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CROWNING GLORY:

Liability in Negligence of Public Authorities Revisited

Background

The concept of negligence liability for public authorities has its roots in the English common law. In the early 19th century, the Crown was held to be immune from tort liability, as it was considered to be a “sovereign” and thus not subject to suit. This principle was codified in the Crown Proceedings Act 1947 (UK), which provided that the Crown could only be sued for certain specified torts.

In Anns v Merton London Borough Council [1978] AC 728, however, the House of Lords held that a local authority could be liable for negligence in certain circumstances. The court reasoned that since local authorities were performing functions which had been delegated by Parliament, they should not enjoy immunity from suit when their actions caused harm to individuals. This decision opened up a new area of tort law and allowed individuals to sue public authorities for negligence.

The Anns Model in Canada

In Canada, the Anns model has been adopted by courts as a means of determining whether or not a public authority can be held liable for negligence. The model requires courts to characterize the sphere of government activity in question as either political (not reviewable) or operational (reviewable). If it is determined to be operational, then it is open to judicial review and may give rise to liability if it is found that there has been negligence on behalf of the public authority.

The Supreme Court of Canada had occasion recently in Brown v British Columbia (Minister of Transportation and Highways) [1995] 3 SCR 305 and Swinamer v Nova Scotia (Minister of Transportation and Public Works) [1996] 2 SCR 595 to craft a more effective approach to this issue but failed to do so. In both cases, the court affirmed Canadian judicial policy to stay with Anns despite its weaknesses and uncertainties.

Conclusion

The Anns model has been adopted by Canadian courts as a means of determining whether or not a public authority can be held liable for negligence. While this model provides some guidance on how such cases should be decided, it lacks standards for predictable application and is unwieldy in practice. The Supreme Court of Canada had an opportunity recently in Brown and Swinamer to craft a more effective approach but chose instead to affirm Canadian judicial policy and stay with Anns for now.

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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 large pothole. The court held that the decision to repair or replace the road was a policy decision and thus not subject to review under the standard of negligence. In Swinamer, the court found that the Attorney General was liable for failing to provide adequate security at a provincial jail. The court held that this was an operational decision and thus subject to review under the standard of negligence.

These two cases demonstrate how courts will continue to apply Anns v. Merton London Borough Council’s policy versus operations model when determining liability in cases involving public authorities. This approach allows courts to distinguish between decisions which are based on policy considerations and those which are based on operational considerations, with only operational decisions being subject to review under the standard of negligence. This approach provides clarity and consistency in how courts determine liability in such cases, while also allowing public authorities some degree of protection from liability for their policy decisions.

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II. BACKGROUND TO THE DOCTRINE

This has been reflected in the development of legislation such as the Crown Proceedings Act 1947, which allows for claims to be brought against public authorities.

The general principle is that public authorities are liable for their decisions and actions in the same way as any other person or organisation. This means that they can be held liable for negligence, breach of statutory duty, nuisance and other tortious claims. However, there are some exceptions to this general rule. For example, public authorities may have immunity from certain types of claims if they are acting in a judicial capacity or if they are exercising a discretion conferred on them by statute.

In addition, public authorities may also be subject to different standards of liability than private individuals or organisations. For example, it may be more difficult to prove negligence against a public authority than against a private individual or organisation due to the complexity of their decision-making processes and the fact that they often have wider considerations than just those relating to an individual case.

Overall, it is clear that public authorities can be held liable for their decisions and actions in much the same way as any other person or organisation. However, there are some exceptions and differences which must be taken into account when considering potential liability.

“The Crown Liability Act is an important part of the legal framework that ensures that government is accountable for its actions. It provides a mechanism for individuals to seek compensation when they have been wronged by the government, and it serves as a deterrent to negligent behaviour on the part 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 activities in this case were essentially planning activities, rather than operational activities. The distinction between planning and operational activities is one of degree, and the line between them is not capable of precise definition. Generally speaking, however, planning activities involve considerations of public policy; operational activities involve applying the policy so formulated to a particular set of facts.»

This distinction has been adopted by Canadian courts in determining whether or not Crown liability exists for negligence. In Hill v Hamilton-Wentworth Regional Police Services Board16 the Ontario Court of Appeal held that «the distinction between policy and operations is a useful tool in determining whether or not the Crown can be held liable for negligence». The court went on to state that «the focus should be on the nature of the activity being undertaken by the Crown at the time of the alleged negligence»17.

• «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 was not liable for the negligent operation of the lighthouse, as it was a governmental function. However, the Coast Guard was liable for its failure to inspect and maintain the lighthouse, as this was a proprietary function.

• «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, causing financial loss to its owner. The Coast Guard is liable for this negligence and must compensate the owner of the ship for their losses.

The House of Lords held that the Council was liable for the damage caused by the negligent inspection or lack thereof. The court reasoned that since the Council had a duty to ensure that building plans were followed, it was responsible for any damage caused by its failure to do so. This established the principle of strict liability in negligence cases, which holds that a defendant can be held liable for damages even if they did not intend to cause harm.

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 House of Lords decision in the case of Donoghue v. Stevenson is a landmark ruling that established the modern law of negligence. It established the principle that a person who suffers harm as a result of another’s careless or negligent act can seek compensation from them. The decision also set out the three elements necessary for a successful claim in negligence: duty of care, breach of duty and damage suffered as a result. The ruling has been cited in numerous subsequent cases and has become an important part of English common law.

• «… (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 owed a private duty of care to the claimant. The court held that the council had been aware of the risk posed by its actions and had failed to take reasonable steps to protect the claimant from harm. The court found that this constituted a breach of its duty of care and that the claimant was entitled to compensation for their losses.

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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 is based on the idea that public authorities should take reasonable steps to prevent foreseeable harm to those who may be affected by their actions. This test was used in subsequent cases such as Hill v. Hamilton-Wentworth Regional Police26 and Cooper v. Hobart27, which further clarified the law by providing guidance on how to determine whether a duty of care exists between a public authority and an individual or group.

The Supreme Court of Canada allowed the appeal and found that the government had a duty to take reasonable care in maintaining the highway. The court held that the government was liable for failing to properly inspect and maintain the highway, and awarded damages to the plaintiff.

“The first question is whether the impugned provision involves a sufficiently close relationship between the payment and the grant of planning permission to amount in law to a condition or consideration for it. If it does, then the second question is whether the requirement is so unreasonable that it should not be recognised by the court.”

He concluded that there was a sufficient connection between the payment and the grant of planning permission, but that it was not so unreasonable as to be unenforceable.

• «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. Policy decisions involve the making of value judgments and the formulation of aims and objectives, while operational decisions involve the implementation of policy.

2. Policy decisions are those which determine what is to be done, while operational decisions are those which determine how it is to be done.

3. Policy decisions are made at a higher level than operational decisions, and usually by a different body or person.

4. Operational decisions are usually made in accordance with predetermined criteria or standards established by policy makers.

• «…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 subject to the call on public resources and political vagaries, but rather was a matter of constitutional law. He noted that the government had a duty to protect the rights of individuals, and that this duty could not be overridden by considerations of cost or politics. He further noted that the government’s decision to intervene in Just was based on its obligation to uphold fundamental rights, which could not be compromised for any reason.

• «… 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. It demonstrates that even when a system of inspection is in place, there is still an onus for reasonableness in the manner in which the inspections are carried out. This case serves as a reminder to all those involved in the operational sphere that they must take reasonable steps to ensure that their systems and procedures are up to date and effective.

The trial judge was in the best position to assess the credibility of the witnesses and his conclusion that the accused was not guilty should not be disturbed. The evidence of the complainant was contradicted by other witnesses and there were inconsistencies in her testimony. The trial judge had a reasonable doubt as to whether or not the accused committed the offence.

• «… 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) was a 5-4 split decision that upheld the right of local governments to impose taxes on property owners for the purpose of funding public schools. The majority opinion, written by Justice William J. Brennan Jr., argued that local governments have the power to tax property owners for public school funding as long as they do not violate any other constitutional provisions. The dissent, written by Justice Potter Stewart, argued that such taxation violated the Equal Protection Clause of the Fourteenth Amendment because it imposed unequal burdens on different classes of taxpayers.

The split decision in Just v. Marinette County highlights the role of shifting political will and budgetary imperatives in judicial decisions. In this case, both sides had strong arguments based on their respective interpretations of the Constitution and its application to taxation laws. However, it is clear that political considerations played a role in how each side viewed the issue; those justices who were more sympathetic to local government interests were more likely to support the majority opinion while those who were more sympathetic to individual rights were more likely to support the dissent. Additionally, budgetary concerns likely influenced how each side viewed the issue; those justices who believed that public school funding was necessary for educational equity may have been more likely to support taxation laws than those who believed that such taxes would be too costly or burdensome for taxpayers.

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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 that morning. The plaintiff argued that the Department of Highways was negligent in failing to inspect the highway for icy conditions and should have known about the black ice. The court held that the Department of Highways was not liable because it had no duty to inspect the highway for icy conditions since it was still on its summer schedule.

• «…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 and dismissed the appeal.

The court found that the Department of Highways had no duty of care to Mr. Brown in this case because it was a policy matter. The court held that the Department of Highways was not liable for any negligence in how it scheduled the sanding crew or how it carried out the sanding under that schedule. The court also noted that even if there had been some negligence on the part of the Department, it would not have been sufficient to establish liability as Mr. Brown’s injuries were not foreseeable and thus could not be attributed to any negligence on their part.

The court also found that the Crown was not liable for the accident because it had taken reasonable steps to ensure the safety of its employees and the public. The court held that the Crown had met its duty of care by providing a safe workplace, training its employees, and taking reasonable steps to prevent foreseeable risks. The court concluded that there was no evidence of negligence on the part of the Crown or its employees.

“Where a system of schedules is adopted by an employer, the employer must take reasonable care to ensure that the system is properly operated and that it does not create a risk of injury to persons who may be affected by its operation.”

Cory J. concluded that the municipality had failed in its duty of care by failing to ensure that the sanding crew was operating according to their schedule, and thus had created a foreseeable risk of harm. He held that the municipality was liable for negligence in this case.

• «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 was able to provide continuity and consistency in its operations while also allowing employees to take advantage of the summer months. This decision was beneficial for both the organization and its employees.

• «… 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, and instead suggested that the courts should focus on the nature of the activity in question. He noted that public authorities are subject to a duty of care when they undertake activities which involve a risk of harm to others, regardless of whether those activities are classified as operational or policy-based. He also noted that public authorities may be liable for failing to take reasonable steps to protect individuals from foreseeable risks, even if those risks arise from activities which are classified as policy-based.

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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 and taking appropriate action when necessary. In this case, it was alleged that the Department failed to inspect the area adjacent to the highway where the tree was located and failed to take appropriate action to remove it before it fell on the plaintiff’s vehicle. The court found that there was sufficient evidence to support a finding of negligence on behalf of the Department and awarded damages accordingly.

• «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 damaged trees, noting their location, species, and extent of damage. He also took photographs of the trees to document their condition. He then compiled a report detailing his findings and recommendations for removal or repair of the damaged trees. The report was presented to local government officials who approved the necessary funds for removal or repair of the damaged trees. The engineer then supervised the removal or repair of the damaged trees in accordance with his recommendations.

1. The Department had no duty of care to the plaintiff in this case, as it was not foreseeable that the trees would cause injury to the plaintiff.

2. The Department did not owe a duty of care to the plaintiff because it was not aware of any potential danger posed by the trees and did not have any reason to believe that they were unsafe.

3. The Department’s inspection of the trees was reasonable and appropriate given the circumstances, and there was no evidence that its actions caused or contributed to the plaintiff’s injuries.

4. Even if there had been a breach of duty on behalf of the Department, causation could not be established as there was no evidence that its actions caused or contributed to the plaintiff’s injuries.

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 caused by the construction, maintenance or use of a public highway unless it is shown that such damage was caused by the negligence of such person. This section provides an exemption from liability for those who are responsible for constructing, maintaining or using a public highway.

• «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 did not provide immunity from liability, as it was not specific enough to do so. The court referred to Anns v Merton London Borough Council, which established that a public body may be liable for damages if it has acted negligently in exercising a statutory power. This means that even if a public body is performing a duty imposed by statute, it can still be liable for damages if it fails to exercise reasonable care in doing so.

• «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)

[53] The respondent submits that the Nova Scotia legislation is different from the British Columbia legislation and that it provides that the Province is only liable for a tort committed by its officers or agents if that tortious act of the servant or agent would, in itself, have given rise to a cause of action. This argument was considered and rejected by this Court in Just v. British Columbia (1989), 61 D.L.R. (4th) 321 at p. 327:

The Crown Liability Act does not limit liability to those cases where the servant or agent would be personally liable; it merely states that the Crown shall be liable in such cases as if it were a person of full age and capacity.

[54] I agree with this interpretation of the Nova Scotia legislation and reject the respondent’s submission on this point.

• «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 in order 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 reasonable for the Department of Transportation to enter private property in order to address a dangerous situation on a public highway.

«The survey was not a policy decision. It was an operational decision. The survey did not involve the exercise of discretion as to whether or not to undertake it, but rather the exercise of discretion as to how best to do so. The survey was undertaken in order to determine the extent of the problem and the funds necessary for its resolution. This is an operational decision, and does not involve policy considerations.»

The court then went on to consider whether or not a duty of care had been breached in this case, noting that while there may have been a breach of duty if a policy had been in place, no such breach could be found in this case since no policy existed. The court concluded that since no policy existed, there could be no breach of duty and thus dismissed the appeal.

• «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 properly, including providing training for surveyors and monitoring their performance. Furthermore, the court found that there were no indications of negligence or recklessness on the part 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 tort for negligence. It is not disputed that if it were a private person or body, it would be so liable; but it is said that because it is a public authority, and because its powers are derived from statute, it cannot be so liable.”

The decision in Anns established a two-stage test to determine whether a public authority could be held liable for negligence. The first stage was to ask whether there was a duty of care owed by the public authority to the claimant. If this was established then the second stage was to consider whether there were any policy considerations which should prevent liability being imposed on the public authority. This two-stage test has since been adopted by courts in other jurisdictions 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 widely accepted and applied in many jurisdictions.

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 could be liable for negligence in failing to maintain a bridge. In Swinamer, the court held that a municipality could be liable for negligence in failing to properly inspect a building. Both cases demonstrate that private law principles can apply to public authorities, but they do not add any new insights into the policy versus operations distinction.

The policy versus operations distinction is based on the idea that public authorities should not be held liable for decisions made in their capacity as policy makers, but should be held accountable for decisions made in their capacity as operators of services. The distinction has been used by courts to determine whether or not a public authority can be held liable for its actions. In Brown and Swinamer, however, the Supreme Court of Canada did not provide any guidance on how this distinction should be applied in practice. Instead, it simply stated that private law principles can apply to public authorities without providing any further clarification on how this should be done.

Overall, Brown and Swinamer do not add any new insights into the policy versus operations distinction as applied by Canadian courts. They simply demonstrate that private law principles can apply to public authorities without providing any further guidance on how this should be done. As such, Anns remains the foundation of this framework and provides more clarity than these two cases when it comes to determining liability for public authorities.

In Brown and Swinamer, the Supreme Court of Canada reaffirmed its commitment to the principles set out in Anns. The Court held that the test for determining whether a duty of care exists is still based on the two-part test established in Anns: (1) whether there is a relationship of proximity between the parties; and (2) whether it is just and reasonable to impose a duty of care. The Court also noted that policy considerations should be taken into account when deciding whether or not to impose a duty of care. However, they did not provide any further guidance on how to determine which matters are within the policy sphere and which are within the operations sphere.

The court held that the province was immune from liability for its decision to reduce the number of lifeguards on duty during the summer months.

This example illustrates how the principle of governmental immunity can be applied unevenly and capriciously. In Just, the court found that budgetary considerations or personnel limitations were not sufficient to grant immunity to the province for its system of inspection of rocks along highways. However, in Brown, the court found that these same considerations were sufficient to grant immunity for a policy decision to reduce the number of lifeguards on duty during the summer months. This demonstrates how two similar cases can be treated differently under this principle, leading to an uneven and capricious 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 conducted after the fact. Additionally, while both surveys were intended to identify potential hazards, the survey of trees was more comprehensive and involved a greater degree of expertise.

The distinction between policy and operations is important when determining whether or not public authorities are immune from liability. Generally speaking, decisions which are considered “pre-operational” are those which involve planning and decision-making prior to any actual implementation or execution of a plan. In contrast, decisions which are considered “operational” involve the actual implementation or execution of a plan. Therefore, if a decision is deemed to be pre-operational, then it would likely provide immunity to public authorities from liability.

The circularity of the notion of budgetary constraint and political motive guiding the determination is that it is impossible to determine definitively whether a decision or action by government is based on economic considerations or political objectives. This means that any attempt to make such a determination will be subjective and open to interpretation. Furthermore, it is difficult to assess the relative importance of each factor in influencing the decision or action taken by government. As such, it is difficult to draw any meaningful conclusions about the motivations behind a particular decision or action taken by government.

This has been further complicated by the fact that the courts have not always been consistent in their approach to this distinction. As a result, it is often difficult to determine whether a particular decision or action of government will be considered as policy or operational and thus subject to judicial review.

The effect of these decisions is that governments are now more likely to be held liable for their actions than ever before. This has led to an increased focus on risk management and compliance with legal requirements, as well as greater scrutiny of government activities by both the public and the courts. It has also resulted in a greater need for transparency and accountability from governments, as well as an increased emphasis on public consultation when making decisions. Ultimately, this may lead to better governance and improved public services.

66 See, for example, J.G. Fleming, The Law of Torts (9th ed., 1998), at p. 544; and M.J. McInnes, «The Crown and Negligence: A Re-Examination» (1985), 14 U.B.C. L. Rev. 1, at pp. 4-5; see also the discussion in Kamloops v. Nielsen, [1984] 2 S.C.R., at p. 612-613; and Rondel v Worsley [1969] 1 AC 191 (HL).

67 See McInnes, supra note 66, at p. 5; and Fleming, supra note 66, at p 544-545; see also the discussion in Kamloops v Nielsen [1984] 2 S.C.R., at p 612-613; and Rondel v Worsley [1969] 1 AC 191 (HL).

68 Kamloops v Nielsen [1984] 2 S.C.R., at p 613

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 allows for greater accountability and transparency in government decision-making, as well as a clearer understanding of who is responsible for what. It also helps to ensure that policy decisions are based on sound evidence and analysis, rather than on political considerations or personal preferences.

The approach taken by the Commission is to provide as much definition as possible, while recognizing that some issues cannot be resolved definitively. This approach has been adopted in order to ensure that the law is clear and accessible to those who must apply it. It also allows for flexibility in the application of the law, which can be beneficial in certain circumstances. By providing a framework for decision-making, this approach allows for a more consistent application of the law across different cases.

• «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 recent decisions have instead focused on the importance of procedural fairness in decision making. This has been seen in the emphasis placed on the need for a fair hearing, and the requirement that decision makers must provide reasons for their decisions. This has resulted in a greater focus on ensuring that all parties are given an opportunity to be heard, and that decisions are made with due consideration of all relevant factors. This has led to a greater emphasis on transparency and accountability in decision making, rather than a restriction of policy decisions.

The Court’s decision not to seize the opportunity presented by Brown and Swinamer to chart a new direction in the area of liability for public authorities does not mean that the issue is closed. Rather, it suggests that further research and analysis is needed to determine how best to address this issue. Scholars should continue to examine the legal principles underlying public authority liability, as well as potential alternatives for addressing this issue. Additionally, legislatures should consider enacting legislation that would provide greater clarity and certainty regarding public authority liability. Such legislation could include provisions that would set out specific standards of care for public authorities or impose additional requirements on them when it comes to protecting citizens from harm. Finally, courts should continue to consider cases involving public authority liability on a case-by-case basis, taking into account all relevant facts and circumstances in order to ensure justice is served.

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, the models used to represent these delineations should be carefully constructed so that they accurately reflect the real-world situation. Finally, it is important to consider how changes in the delineations might affect the results of the analysis.

• «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. These exemptions should be clear and unambiguous, so as to avoid any confusion or misinterpretation. Additionally, the exemptions should be tailored to the specific activity being undertaken by the public authority, so as to ensure that it is not overly broad and does not provide an excessive level of protection. Finally, legislative bodies should also consider providing guidance on how the exemption should be interpreted and applied in order to ensure that it is used appropriately.