Recently, in Nelson (City) v. Marchi, 2021 SCC 41 (“Marchi”), the Supreme Court of Canada took up the challenge of clarifying the analysis to be followed in tort claims brought in negligence against public entities. In particular, the Supreme Court dealt with the enigmatic ‘core policy’ defence, and provided litigants with guidance on (a) the Anns-Cooper test, and (b) how to distinguish immune core policy decisions from government activities capable of attracting a finding of liability.
Concerning the application of the two step Anns-Cooper test, Marchi clarified that both steps are not required where the alleged duty of care falls within a previously recognized duty of care category. Where the relationship of proximity has previously been recognized, the Court suggests that the broad policy factors contemplated in the second step of the Anns-Cooper test are not key to the analysis. They are presumed to have been previously considered and found not to negate the prima facie duty of care accepted under the first step. Marchi clarified that the core policy decision defence may be integrated into the second step of the Anns-Cooper test where a novel duty of care is alleged, or raised independently where the relationship of sufficient proximity is already recognized.
In seeking to clarify, and put forward a framework for classifying, what will constitute a “core policy” decision attracting immunity from liability, Marchi sets out four factors to be considered. The four factors are: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision in question was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria. Marchi also provides important comments regarding the role of the judiciary in our constitutional system.
A factor-based analysis may help categorize some decisions that are at issue in civil matters. However, going forward, it remains to be seen how Courts will handle the delicate task of categorizing, classifying, and commenting on the Marchi factors while adhering to the parameters of the judiciary’s constitutional sphere.
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