In August 2020, the Supreme Court heard and granted leave to appeal in Marchi v. Nelson, a case from the British Columbia Court of Appeal. The decision is one to watch as it will likely result in a renewed discussion of the distinction of policy versus operational decisions and their impacts on liability in tort law. The discussion will likely impact many of the anticipated post-COVID-19 lawsuits against public and government institutions.
Each year, the City of Nelson hires a city work crew to clear snowfall from its streets. After a heavy snowfall, the crews’ plowing creates an all too familiar sight in Canadian winters — a snowbank along the sidewalk.
Ms. Marchi (the plaintiff) parked her car but saw no other way of getting on the sidewalk and tried to cross the snowbank. Unfortunately, while crossing, she falls forward while the snowbank locked her right leg in place. As a result, she suffered a serious leg injury. She brought a suit against the City of Nelson for damages.
Liability was the only issue at trial as the parties had agreed on damages. The City argued that it did not owe Ms. Marchi a duty of care in the circumstances because the decisions respecting plowing and snow removal were policy decisions.
Ms. Marchi argued that the City should have left openings in the snowbanks to permit safe access from the street onto the sidewalk. She produced evidence of practices from neighbouring cities to establish the availability of reasonable alternatives to clearing the streets to ensure safe access onto the sidewalks. Her complaint was not related to the City’s priorities or budget decisions but howthe City’s crews dealt with the accumulation of snow given its available resources.
The action was dismissed at the trial level. The trial judge concluded that the City did not owe a duty of care because its actions were the result of policy decisions.
The Court of Appeal for British Columbia disagreed, finding errors with the trial judge’s reasoning in both fact and law. Specifically, the Court of Appeal noted a deficiency in the judge’s reasoning in failing to engage in the distinction between a municipal government’s policy and operational decisions.
The Court of Appeal ordered a new trial.
The distinction between operational decisions and policy-based decisions matters because the latter means that government institutions do not owe a duty of care in tort, limiting the availability recourse.
In R. v. Imperial Tobacco Canada Ltd, the Supreme Court noted that “core government policy decisions” are protected from suit where the decisions stem from a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided that they are neither irrational nor taken in bad faith. This description is very broad and unclear, especially where the distinction between policy and operation is so closely linked such that the decision to perform an operational act may easily involve and flow from a policy decision.
In the Imperial Tobacco case, the federal government was immune from liability because the government’s decisions to promote low-tar cigarettes and develop new strains of low-tar tobacco were core policy decisions. The evidence showed that the government did not promote the use of low-tar cigarettes for a commercial purpose, but for a health purpose out of concern for the health of Canadians and the individual and institutional costs associated with tobacco‑related disease, to encourage people who continued to smoke to switch to low‑tar cigarettes.The COVID-19 pandemic has led to several government-based decisions, for example, decisions to ease or increase lock-down restrictions. Those seeking to challenge the government’s various decisions in the context of COVID-19 will have to wait and see if the Supreme Court provides further guidance or narrows the scope of policy decisions that lead to government institutions’ immunity from liability.
In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.