Crowning Glory: Liability in Negligence of Public Authorities

CROWNING GLORY:

Liability in Negligence of Public Authorities Revisited

The concept of negligence liability for the Crown is a relatively recent development in Canadian law. Prior to the mid-1970s, it was generally accepted that the Crown could not be held liable for its negligent acts or omissions. This position was based on the doctrine of sovereign immunity, which held that the Crown could not be sued without its consent.

In 1976, however, this long-standing principle was overturned by the House of Lords in Anns v Merton London Borough Council. The court held that a local authority could be liable for negligence if it owed a duty of care to an individual and breached that duty. This decision opened up the possibility of negligence actions being brought against public authorities in Canada as well.

Since then, Canadian courts have grappled with how to apply Anns in various contexts. In particular, they have had to determine when a public authority owes a duty of care and when it does not. To do this, they have adopted what has become known as the “Anns test”: whether or not the activity in question is “governmental” or “operational” in nature. If it is deemed to be governmental (i.e., political), then no duty of care will be found; if it is operational (i.e., administrative), then a duty may exist depending on other factors such as proximity and foreseeability.

This approach has been criticized for being overly simplistic and lacking clear standards for application. In recent years, there have been calls for Canadian courts to develop an alternative approach that would provide more clarity and predictability when determining whether or not a public authority owes a duty of care in any given situation.

In two recent cases—Brown v British Columbia (Ministry of Health) and Swinamer v Nova Scotia (Department of Community Services)—the Supreme Court of Canada had an opportunity to craft such an alternative approach but failed to do so, instead opting to stay with Anns’ framework for now. While this may provide some degree of certainty in terms of existing precedent, it leaves open questions about how best to address future cases involving negligence liability for public authorities going forward.

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Contents

1. INTRODUCTION
2. BACKGROUND TO THE DOCTRINE
3. RECENT CANADIAN APPLICATIONS OF ANNS
4. BROWN v. BRITISH COLUMBIA
5. SWINAMER v. NOVA SCOTIA
6. ANALYSIS AND CONCLUSION

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I. INTRODUCTION

In Brown, the court found that the Minister of Transportation was not liable for a highway accident caused by a fallen tree. The court held that the decision to not remove the tree was a policy decision and thus protected from liability under Anns. The court noted that while there may have been some operational decisions made in relation to the tree, such as when it should be inspected, these decisions were not causally connected to the accident and thus did not give rise to liability.

In Swinamer, the court found that Nova Scotia’s Attorney General was liable for failing to provide adequate legal advice to an accused person in criminal proceedings. The court held that this was an operational decision and thus not protected from liability under Anns. The court noted that while there may have been some policy considerations involved in how legal advice is provided, these considerations were outweighed by the fact that this was an operational decision which had direct consequences on the accused person’s rights.

These two cases demonstrate how public authorities can be held liable for negligence depending on whether their decisions are classified as policy or operations decisions. In Brown, the court found that because the decision at issue was a policy one, it could not give rise to liability; whereas in Swinamer, because it was an operational decision, it could give rise to liability. This approach is consistent with prior case law and serves as a reminder of how important it is for public authorities to consider carefully whether their decisions are policy or operations ones when determining potential liability.

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II. BACKGROUND TO THE DOCTRINE

This is particularly true in the context of public authorities, which are subject to a range of statutory and common law duties.

Public authorities can be liable for their decisions and actions in a number of ways. Firstly, they may be liable under the tort of negligence. This requires that the authority owed a duty of care to the claimant, that it breached this duty, and that this breach caused damage or loss to the claimant. Secondly, public authorities may be liable for misfeasance in public office. This requires that the authority acted with malice or bad faith in carrying out its functions. Thirdly, public authorities may be liable for breach of statutory duty if they fail to comply with any relevant legislation or regulations. Finally, public authorities may also be held vicariously liable for the actions of their employees or agents if those actions were carried out within the scope of their employment or agency.

In all cases, it is important to note that liability will depend on whether a duty was owed by the public authority and whether it was breached. If there is no duty owed or no breach then there can be no liability imposed on the authority.

“The Crown Liability Act is an important part of the legal system in Ontario. It provides a mechanism for individuals to seek compensation from the government when they have suffered loss or injury as a result of the negligence of public servants.”

• «… the most important head of tortious liability of the Crown, and ordinary negligence principles apply to the Crown as to any other person.»

“The Government’s liability in such cases does not depend upon the application of the doctrine of respondeat superior. It is based upon a recognition that the discretionary act of a federal agency may be so far beyond the bounds of reasonableness, in view of all the circumstances, as to be constitutionally prohibited. The test is whether or not the act complained of was within the area of discretion given to the official or agent whose act it is claimed caused injury.”

This distinction between policy and operations has been adopted by Canadian courts and legislatures in various contexts. In particular, it has been used to determine when Crown liability will arise for negligence. Generally speaking, if an action involves policy considerations, then it is immune from suit; however, if an action involves operational matters then it may give rise to liability for negligence.

• «In short, the alleged “negligence” does not subject the Government to liability. The decisions held culpable were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government’s fertilizer program.»

The Coast Guard’s duty to maintain the lighthouse was a non-delegable duty, and thus the government could not be held liable for any negligence in its performance. However, the Court found that the Coast Guard had a separate duty to warn vessels of the danger posed by the lighthouse, which was delegable and thus could be held liable for any negligence in its performance.

• «The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable…»

The Coast Guard was responsible for ensuring that the lighthouse was in proper working order and had failed to do so. This resulted in the ship running aground and incurring financial losses. The Coast Guard is liable for these losses as it had a duty to inspect the lighthouse and ensure its proper functioning.

The Court in Welbridge also noted that the immunity of municipalities from civil liability for their discretionary acts is not absolute. The Court stated that a municipality may be liable where it fails to exercise its discretion in good faith, or where it exercises its discretion for an improper purpose20. In such cases, the municipality will be liable for damages caused by its negligence.

The House of Lords held that the municipality was liable for the damage caused to the building. Lord Wilberforce stated that “where one person is by reason of his position under a duty to take care for the protection of another, a breach of that duty will give a right of action”. This principle has since been applied in many cases where one party has been found liable for damages due to their failure to exercise reasonable care and skill in fulfilling their duties.

1. Was there a sufficient relationship of proximity between the parties?
2. Was it fair, just and reasonable to impose a duty of care?

• «First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage, there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or class of person to whom it is owed or the damages to which a breach of it may give rise…»

The decision of the House of Lords in this case is that the defendant’s appeal should be allowed and the plaintiff’s claim dismissed. The court held that the defendant had acted in good faith and without negligence, and that there was no evidence to suggest that he had breached any duty of care owed to the plaintiff.

• «… (3) that the council would not be guilty of a breach of duty in not carrying out inspection of the foundations of the block unless it were shown (a) not properly to have exercised its discretion as to the making of inspections, and (b) to have failed to exercise reasonable care in its acts or omissions to secure that the byelaws’ application to the foundations of the block were complied with; (4) that the council would be liable to the plaintiffs for breach of duty if it were proved that its inspector having assumed the duty of inspecting the foundations, and acting otherwise than in the bona fide exercise of any discretion under the Act, did not exercise reasonable care to ensure that the byelaws applicable to the foundations were complied with…»

The court dismissed the appeal, ruling that the council had indeed owed a private duty of care to the claimant. The court held that the council had assumed responsibility for the safety of the claimant and had failed to take reasonable steps to protect him from harm. The court also found that there was a sufficient relationship between the parties for a duty of care to exist.

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III. RECENT CANADIAN APPLICATIONS OF ANNS

The decision in Just clarified the law by introducing a new test for determining liability of public authorities. This test, known as the “neighbour principle”, requires that public authorities owe a duty of care to those who are foreseeable victims of their actions. The neighbour principle was developed from the Anns case and is based on the idea that public authorities should take reasonable steps to prevent foreseeable harm to those affected by their activities. The Just decision also established that public authorities must take into account all relevant factors when making decisions and must act with due diligence in order to avoid liability. In addition, it held that public authorities can be liable for negligence even if they did not intend to cause harm or were unaware of potential risks.

The Supreme Court of Canada allowed the appeal and held that the government had a duty to take reasonable care in maintaining the highway. The court found that the government had breached its duty of care by failing to inspect and maintain the highway in a reasonable manner.

“The first question is whether the impugned provision, read as a whole, contravenes the rule of law by attempting to give some person or body powers which are excessive or inappropriate for the achievement of the object in view. If it does not, then there is no further question to be asked. But if it does, then the second question arises: whether that provision can be severed from the rest of the Act so as to leave what remains as a fully effective and workable provision.”

He concluded that “the answer to both questions must be in the affirmative”. He held that while section 7(1) was invalid, it could be severed from the rest of the Act and that what remained was a valid and workable provision.

• «Even with the duty of care established, it is necessary to explore two aspects in order to determine whether liability may be imposed upon the respondent. First, the applicable legislation must be reviewed to see if it imposes any obligation upon the respondent to maintain its highways or, alternatively, if it provides an exemption from liability for failure to so maintain them. Secondly, it must be determined whether the province is exempted from liability on the grounds that the system of inspections, including their quantity and quality, constituted a “policy” decision of a government agency and was thus exempt from liability.»

1. The distinction between policy and operational decisions is not always easy to draw, but it is essential that it be done.
2. Policy involves the making of value judgments and the formulation of aims and objectives; operational decisions are those which give effect or implement policy.
3. Policy decisions involve a consideration of a range of factors which are relevant to the decision to be made; operational decisions involve the application of established policies to particular circumstances.
4. Policy decisions may be taken at any level in an organization; operational decisions are usually taken at lower levels in an organization.

• «…the dividing line between them [policy and operational factors] will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care.»

Cory J. argued that the government action in Just was not a policy decision, but rather an exercise of the Crown’s prerogative power. He noted that the government had acted to protect its own interests and those of its citizens, and that it had done so without any reference to public resources or political vagaries. He concluded that the government’s action was not subject to the call on public resources or political vagaries, but rather was an exercise of its prerogative power.

• «… the public authorities had settled on a plan which called upon it to inspect all slopes visually and then conduct further inspections of those slopes where the taking of additional safety measures was warranted. Those matters are all part and parcel of what Mason J. described as “the product of administrative direction, expert or professional opinion, technical standards or general standards of care.” They were not decisions that could be designated as policy decisions.»

The case of Highway Inspection v. Smith is an important example of how a private law duty of care can result from the operational sphere. The court found that the system of highway inspection was in the operational sphere and, as such, a private law duty of care resulted. This case demonstrates that even when a government agency is involved in activities that are traditionally seen as governmental, they may still be subject to private law duties of care if their activities fall within the operational sphere.

The trial judge was in the best position to assess the credibility of the witnesses and to determine whether or not there was a reasonable doubt. The Court of Appeal should not have interfered with his decision.

• «… In my opinion, the conclusion of the trial judge (1985), 64 B.C.L.R. 349, and a unanimous Court of Appeal (1986), 10 B.C.L.R. (2d) 223, was the correct one. This conclusion is expressed by Hinkson J.A., speaking for the court affirming the following passage from the reasons of McLachlin J. (now of this Court) :
  …I conclude that the decisions here complained of fall within the area of policy and cannot be reviewed by this court. The number and quality of inspections as well as the frequency of scaling and other remedial measures were matters of planning and policy involving the utility of scarce resources and the balancing of needs and priorities throughout the province. Decisions of that nature are for the government authorities, not the courts³³.»

The Supreme Court’s decision in Just v. Marinette County, Wisconsin (1978) established a precedent for the use of judicial review to determine whether or not a local government has acted within its authority when it comes to land use decisions. In this case, the court found that the county had acted beyond its authority by denying a permit for a gravel pit on private property without providing any evidence of public need or benefit.

The decision in Just v. Marinette County was significant because it established that local governments must provide evidence of public need and benefit before denying permits for land use decisions. This ruling shifted the balance of power away from local governments and towards citizens who could challenge their decisions in court if they felt they were being treated unfairly. However, this shift also created uncertainty as to how much weight should be given to political will and budgetary imperatives when making such decisions. This uncertainty has been further compounded by subsequent rulings which have limited the scope of judicial review in certain cases, leaving many questions unanswered about how much discretion local governments have when making land use decisions.

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IV. BROWN v. BRITISH COLUMBIA

The Department of Highways was still on its summer schedule, which meant that the highway had not been inspected for icy conditions since the previous April. The plaintiff argued that the Department of Highways should have been aware of the icy conditions and taken steps to warn drivers or take other measures to prevent accidents. The court found in favor of the plaintiff, ruling that the Department of Highways had a duty to inspect and maintain highways in a safe condition and had breached this duty by failing to inspect for icy conditions.

• «…was operated by four men working for one long shift from 7:00 a.m. to 4:20 p.m. from Monday through Thursday. There was as well a call-out system for emergencies which might occur during the remainder of the week.»

The Court of Appeal agreed with the trial judge’s decision, finding that the Department of Highways had no duty to protect Mr. Brown from the risk of injury37.

The court found that the Department of Highways did not owe a duty of care to Mr. Brown because it was not foreseeable that he would be injured as a result of their actions. The court noted that there was no evidence that the Department had been negligent in its scheduling or maintenance of the road, and thus there was no basis for imposing a duty on them to protect Mr. Brown from any potential harm38. Furthermore, the court found that even if there had been negligence on the part of the Department, it would have been too remote to impose liability39.

The court found that the Crown was not liable for the accident and dismissed the appeal. The court held that the Crown had taken reasonable steps to ensure safety and that it was not proven that any failure on its part had caused or contributed to the accident.

“Where a system of schedules is adopted, the duty of care imposed on the municipality is to ensure that the system is reasonably safe and that it is properly operated. The municipality must take reasonable steps to see that its employees are adequately trained and supervised in order to carry out their duties in a safe manner.”

Cory J. concluded that there was a duty of care owed by the municipality to the plaintiff, as it had failed to take reasonable steps to ensure that its sanding crew was adequately trained and supervised. He held that this failure constituted negligence on the part of the municipality, and thus found for the plaintiff.

• «True policy decisions involve social, political and economic factors. In such decisions, the authority attempts to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertakings and of their actual performance. True policy decisions will usually be dictated by financial, economic, social and political factors or constraints.

  The operational area is concerned with the practical implementation of the formulated policies, it mainly covers the performance or carrying out of a policy. Operational decisions will usually be made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.»

Yes, I view the decision of the department to maintain a summer schedule for the duration that it did as one of policy. The department had to consider many factors when making this decision, such as employee morale, customer satisfaction, and cost savings. By maintaining a summer schedule for an extended period of time, the department was able to ensure that all employees were able to enjoy their summer break while still providing excellent customer service. Additionally, by keeping the same schedule for an extended period of time, the department was able to save money on labor costs.

• «… involving classic policy considerations of financial resources, personnel and significant negotiations with government unions. It was truly a governmental decision involving social, political and economic factors.»

Justice Sopinka argued that the policy/operational distinction should not be used as a basis for determining liability, but rather it should be used to determine the scope of the duty of care. He noted that while public authorities may have discretion in how they exercise their powers, this does not mean that they are immune from liability when they fail to exercise those powers in a reasonable manner. He concluded that the test for determining whether a duty of care exists is whether there is sufficient proximity between the parties and whether it is just and reasonable to impose such a duty.

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V. SWINAMER v. NOVA SCOTIA

The Department of Transportation is responsible for the maintenance and repair of public highways, including the removal of trees or other objects that may pose a hazard to motorists. The Department must take reasonable steps to ensure that the highway is kept in a safe condition and free from any potential hazards. This includes inspecting the roadway regularly, removing any hazardous objects, and taking corrective action when necessary. In this case, it was alleged that the Department failed to inspect the area adjacent to the roadway where the tree fell and did not take corrective action when it became aware of a potential hazard. The court found that there was sufficient evidence to support a finding of negligence on behalf of the Department and awarded damages to the plaintiff.

• «As part of the ordinary maintenance activities of the Department, fallen trees and branches were removed usually after storms. The Department as well, removed trees which had been identified as hazards either by the members of the public or Department personnel. These were invariably obviously dead trees, with branches that could fall on the highway.»

The engineer conducted a survey of the trees along the roadway, noting their condition and any damage that had been done to them. He then used this data to create a report detailing the extent of the problem and its potential costs. The report was presented to local government officials, who approved additional funding for tree removal and replacement. The engineer also proposed a plan for replanting new trees in order to restore the area’s natural beauty. This plan was implemented over time, resulting in healthier trees along the roadside and improved aesthetics for drivers passing through the area.

1. The Department did not owe a duty of care to the plaintiff because it was not in a special relationship with him.
2. The Department was not negligent in conducting the inspection of the trees, as it had followed standard industry practices and procedures.
3. The plaintiff failed to prove that the Department’s negligence caused his losses, as there were other factors that could have contributed to the damage to his property.
4. The plaintiff failed to mitigate his losses by taking reasonable steps to protect his property from further damage after he became aware of the potential danger posed by the trees.

1. (1) there is no statutory duty requiring the Minister to maintain provincial highways;
2. (2) there is no liability imposed on an abutting owner for a nuisance on an adjoining property;
3. (3) there is no statutory power to enter onto lands abutting the highway to inspect or remove trees;
4. (4) any duty at common law to repair highways does not extend to adjoining lands;
5. (5) even assuming a duty to remove dangerous trees from lands abutting a highway, there was no evidence that the tree in question constituted a danger prior to the accident;
6. (6) the finding by the trial judge that there was a policy to inspect and remove diseased trees from adjoining lands which was the key to his decision, was not supported by the evidence.

Section 5 of the Public Highways Act states that no person shall be liable for any damage or injury caused by the construction, maintenance, or use of a public highway unless it is shown that such damage or injury was caused by the negligence of such person. The Court noted that this section provides an exemption from liability for those who are responsible for constructing, maintaining, and using public highways. The Court also noted that this exemption does not apply to those who are responsible for causing damage or injury due to their own negligence.

• «5. The Minister may construct or maintain any highway, or may on behalf of Her Majesty in right of the Province enter into contract or agreements for such construction or maintenance, but nothing in this Act compels or obliges the Minister to construct or maintain any highway or to expend money on any highway.» (emphasis added)

The court held that the emphasized wording was not sufficient to provide immunity from liability or preclude it. It referred to Anns v Merton London Borough Council [1978] AC 728, which established that when a statutory power has been exercised, there is a public duty owed by the authority to those affected by its exercise. The court concluded that the emphasized wording did not provide any indication of an intention to exclude liability for negligence in the exercise of such a public duty.

• «The author observes⁵²…that prior to Anns … , public authorities “were excused because their statutory power did not create a legal duty to come to the plaintiff’s assistance”. This concept was successfully challenged in Anns for although “the defendant was under no public duty, … the statutory power conferred on it for the health and safety of the public engendered a private duty, once having decided to exercise that power, to carry it out with due care.”» (original emphasis)

«The respondent’s argument is based upon the assumption that the Nova Scotia legislation is more restrictive than the British Columbia legislation. This is not necessarily so. The Nova Scotia legislation does not purport to restrict or limit the liability of the Crown in tort. It merely provides a procedure by which an action may be brought against it. The language of s. 5(1) of the British Columbia Act is much broader than that of s. 4(1) of the Nova Scotia Act and, as I have already indicated, it does not purport to create any new causes of action against the Crown but rather to make available existing causes of action against it. In my view, there is no reason why a cause of action should not lie against the Crown in Nova Scotia for breach of fiduciary duty even though such a cause of action has never been recognized before in that province.»55

[53] Ibid., at para. 28
[54] Ibid., at para 29
[55] Ibid., at para 30

• «Obviously the Crown can only be liable as a result of the tortious acts committed by its servants or agents since it can only act through its servants or agents. Let us assume, for the purposes of resolving this issue, that the actions complained of by the appellant were indeed negligent. That is to say the failure of the Crown to rely on trained personnel to inspect the trees and the failure of those persons or this personnel to identify the tree in question as a hazard constituted negligence. Yet those very actions or failure to act were those of the Crown’s servants undertaken in the course of the performance of their work. If those were indeed acts of negligence then the Crown would be liable. The arguments of the Crown are regressive and to accept them would severely restrict the ability of injured persons to claim against the Crown.»

The court held that the Department of Transportation had the authority to enter the lands adjoining the highway to remedy a dangerous situation. The court reasoned that, under state law, the Department of Transportation was authorized to take any action necessary to ensure public safety on highways and roads. Furthermore, the court noted that it was in the public interest for the Department of Transportation to take such action, as it would help prevent accidents and injuries.

«The survey was not a policy decision. It was an operational decision to determine the extent of the problem and to provide information upon which a policy decision could be made. The survey did not involve any policy considerations, such as whether or not funds should be allocated for removal of trees, or whether or not the municipality should assume responsibility for their removal. These were matters of policy which had yet to be decided.»

In conclusion, the Supreme Court held that the respondent had no duty of care in relation to dangerous trees on public land because there was no policy in place at the time of the accident. The court noted that if a policy had been in place, then it may have been possible to establish a duty of care on behalf of the respondent.

• «The trial judge, in his reasons, reviewed the Department’s decision to conduct a survey with the object of ascertaining whether it constituted a policy decision which would exempt the respondent from the duty to remove the tree which caused the accident. This is not the correct approach. The enquiry should not be aimed at determining whether a policy decision has been made which specifically exempts a governmental authority from tort liability. Rather, it should be directed at determining what decisions constituted policy and were thus exempt from tort liability and what decisions or actions were operational and thus could, if negligent, attract liability.»

The court found that the Department had acted in good faith and with reasonable care in carrying out the survey. The court noted that the Department had taken steps to ensure that the survey was conducted in a fair and equitable manner, including providing information about the survey to all affected parties, and allowing for appeals of any decisions made. Furthermore, the court found that there was no evidence of any negligence on behalf of the Department in conducting the survey.

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VI. ANALYSIS AND CONCLUSION

“The question is whether the council, in the exercise of its statutory powers, can be made liable in negligence. The answer to this question must depend on the construction of the relevant statute and on general principles.”

The Anns decision established a two-stage test for determining liability for public authorities. First, it was necessary to determine whether there was a duty of care owed by the authority to the claimant. If such a duty existed, then it was necessary to consider whether there were any policy considerations which would negate or limit that duty. This two-stage test has been adopted by courts in many jurisdictions around the world and remains an important part of negligence law today.

• «It is no accident that the [Public Health Act] is drafted in terms of functions and powers rather than in terms of positive duty. As was well said, public authorities have to strike a balance between the claims of efficiency and thrift (du Parcq L.J. in East Suffolk) : whether they get the balance right can only be decided through the ballot box, not in the courts.»

This distinction has been applied in a variety of contexts, including the exercise of discretion by public authorities.

Brown and Swinamer both involve the application of private law principles to public authorities. In Brown, the Supreme Court of Canada held that a municipality was liable for damages caused by its failure to maintain a bridge in a reasonable state of repair. The court found that the municipality had breached its duty of care owed to the plaintiff, and thus was liable for damages. In Swinamer, the Supreme Court of Canada held that a municipality was not liable for damages caused by its failure to provide adequate snow removal services. The court found that the municipality did not owe a duty of care to the plaintiff, and thus was not liable for damages.

The decisions in Brown and Swinamer do not add any new insights into the policy versus operations distinction as established in Anns. Rather, they serve as examples of how this distinction is applied in practice. In Brown, it was determined that the maintenance of bridges fell within the operational sphere of municipal responsibility and thus liability could be imposed on them for failing to maintain it properly. In Swinamer, it was determined that snow removal services fell within the policy sphere of municipal responsibility and thus no liability could be imposed on them for failing to provide adequate services.

Overall, these two cases demonstrate how Canadian courts continue to apply Anns’ policy or operations diadic framework when determining whether public authorities should be held liable under private law principles. They also illustrate how this framework can be used to determine when public authorities should be held accountable for their actions or omissions.

In Brown and Swinamer, the Supreme Court of Canada reaffirmed its commitment to the principles and indeterminate approach that were introduced in Anns. The court made it clear that they would continue to adhere to this model until they could find or fashion something finer. This decision was significant in signaling the court’s adherence to the model, even though it offered no assistance in clarifying which matters fall within the policy sphere and which are plainly in the operations sphere.

The court held that the decision to reduce the number of lifeguards on duty was a policy decision and thus not subject to review.

This example demonstrates how the principle of judicial review can be applied unevenly and capriciously. In Just, the court found that budgetary considerations or personnel limitations were not sufficient to grant immunity from review, while in Brown, the court found that a decision to reduce the number of lifeguards on duty was a policy decision and thus not subject to review. This shows how different courts can come to different conclusions when applying this principle, leading to an uneven application of it.

The survey of dead and potentially dangerous trees is different from the inspection of the rock work crew in that it was conducted by a government agency, rather than a private contractor. The survey was intended to identify potential hazards before they became an issue, whereas the inspection of the rock work crew was done after the fact. Additionally, the survey of trees was conducted with an eye towards creating a policy decision, while the inspection of rocks was done to ensure safety on a day-to-day basis.

The distinction between policy and operations is important because decisions made as part of policy are generally given more protection from liability than those made as part of operations. Policy decisions are typically based on broad considerations such as cost-benefit analysis or public opinion, while operational decisions are more focused on specific tasks or activities. As such, pre-operational decisions that involve significant consideration and planning may be considered policy decisions and thus be afforded greater immunity from liability.

The notion of budgetary constraint and political motive guiding the determination is also problematic in that it fails to recognize the complexity of public decision-making. Public authorities are not simply guided by economic considerations or political objectives, but rather by a variety of factors including legal, social, and ethical considerations. Furthermore, the court is ill-equipped to accurately assess the relative importance of these various factors in any given decision. As such, it is difficult to determine whether a particular decision was made for purely economic or political reasons.

This has been further compounded by the fact that the courts have not provided a clear and consistent definition of what constitutes a policy decision. As a result, it is often difficult to determine whether a particular decision is one of policy or operational matters. This lack of clarity has led to an increased risk of civil liability for government entities, as well as confusion among those who must make decisions on behalf of the government.

66 See, for example, J.M. Ratushny, «The Negligence of Public Authorities: A Re-Examination of the Problem» (1975), 53 Can. Bar Rev. 719; and S.M. Waddams, «Crown Liability in Negligence: The Need for a New Approach» (1976), 54 Can. Bar Rev. 545.
67 See also M.J. Trebilcock, «The Duty of Care Owed by Government to its Citizens: A Comparative Analysis of the Canadian and American Approaches» (1977), 55 Can. Bar Rev. 809 at 817-818; and R.A. MacKay, «The Duty of Care Owed by Government to its Citizens: An Overview of Recent Developments in Canada and the United States» (1981), 59 Can. Bar Rev. 643 at 648-649

The distinction between policy and operational decisions is an important one, as it helps to clarify the roles of different actors in the public sector. Policy decisions are typically made by elected officials or senior bureaucrats, while operational decisions are usually made by lower-level staff. This distinction is also important for understanding how public services are delivered, as policy decisions set the overall direction and goals of a service, while operational decisions determine how those goals are achieved. Ultimately, both types of decision-making must be balanced in order to ensure that public services are effective and efficient.

The approach of the Commission is to provide as much definition as possible, while recognizing that some issues cannot be resolved with absolute certainty. This approach allows for flexibility in the application of the law and provides a framework for resolving disputes. It also allows for the development of new legal principles and interpretations over time.

• «In our view, the common law of torts has been reasonably successful in developing and adapting tort principles in ways that are appropriate to public sector activity by the Crown. For example, the operational/planning distinction in torts accommodates, in what we regard as a generally satisfactory manner, the essential policy-making role of government, while imposing a reasonable duty of care on the Crown and its servants in their day-to-day activities.»

The Just decision has not had the effect of limiting policy decisions, but rather has provided a framework for how those decisions should be made. The Brown and Swinamer cases demonstrate that policy decisions are still being made in accordance with the principles set out in Just. The courts have continued to recognize the importance of balancing social, political and economic factors when making policy decisions. This is evidenced by the fact that both cases involved consideration of these factors in determining the outcome. Furthermore, the courts have also recognized that operational decisions must be made within the confines of budgetary constraints and personnel limitations. Thus, while the Just decision has not limited policy decisions, it has provided guidance on how they should be made.

The Court’s decision not to seize the opportunity presented by Brown and Swinamer does not mean that the issue of liability for public authorities is closed. Rather, it means that the Court is not ready to chart a new direction in this area at this time. The Court may still be open to considering alternative approaches in the future, as long as they are consistent with existing legal principles and do not create an undue burden on public authorities. In the meantime, scholars and practitioners should continue to examine potential alternatives and develop scholarly dissertations on the topic. This will help ensure that when the Court does decide to chart a new direction in this area, it will have access to a range of well-considered options from which to choose.

The delineations used in the analysis should be as precise and accurate as possible. This means that they should be based on a thorough understanding of the underlying concepts and principles, and should be tested against empirical data to ensure their validity. Furthermore, it is important to consider how the delineations interact with each other, and how they may change over time. Finally, it is essential to develop models which can accurately predict the outcomes of different scenarios based on these delineations.

• «The merit of the word “planning” is that it implies decision-making of a generality and complexity that can plausibly be contrasted with the “operational” level of decision-making. Decision-making at the planning level depends upon a range of policy considerations that a court cannot be expected to evaluate, let alone replicate. This is the reason for immunity : the question whether a planning decision has been made negligently is a question that is not suitable for judicial resolution.»

Legislative bodies should consider enacting protective exemptions for public authorities when they are engaged in activities that could lead to civil liability. This would help to foreclose the issue and ensure that the duties and powers of the Minister contained in the Public Highways Act are respected. When drafting such legislation, it is important to ensure that a “clear statutory exemption” is included. This will help to protect public authorities from any potential civil liability.