The Supreme Court of Canada recently issued contemporaneous judgments in two cases involving claims of negligence on the part of public authorities. The court again applied the «policy» versus «operations» decision-making model to determine liability. These principles, originally laid out in Anns v. Merton London Borough Council2, were relied upon in decisions such as Barratt v. North Vancouver3, City of Kamloops v. Nielsen4 and were more recently expounded upon in Just v. British Columbia5. These two new cases,Brown v. British Columbia (Minister of Transportation)6 Swinamer v. Nova Scotia (Attorney General)7, are important in how they demonstrate the court's steadfast adherence to this approach to negligence of public authorities.
VI. ANALYSIS AND CONCLUSION
The early law on negligence liability of public authorities was set out inEast Suffolk, which was decided prior to the enactment of the Crown Proceedings Act in the United Kingdom. There it was held that public authorities had absolute immunity from civil liability for discretionary decisions. The Anns decision represented a radical departure from the notion that the electorate carried the sole responsibility to judge the decisions and actions of elected officials by use of their franchise, and instead tried to define a basis on which public authorities would be liable. As noted by Lord Wilberforce in his examination of the statutory position of the council in Anns59 :
- «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.»
The court's consideration of a method by which public authorities could be judged led to the adoption of the conceptual distinction between «policy» and «operational» decisions60. Based on earlier decisions of other jurisdictions, policy matters considered in a bona fide manner were held to provide no exposure to civil liability. Actions and decisions taken within the operational sphere would be subject to the ordinary principles of negligence.
It had been suggested in Just61 that the expansion of the public sector into almost all facets of daily life led to the need to examine the extent to which principles of private law liability should realistically apply to public authorities.Anns represents the foundation of the policy or operations diadic framework as it is still applied in Canadian courts. These two most recent cases from the Supreme Court of Canada, Brown and Swinamer, add no new insights to the policy versus operations distinction. In fact they may be criticized for further confusing and destabilizing it.
What we do learn from Brown and Swinamer is the commitment of the Supreme Court of Canada to stay the course with the principles and indeterminate approach that were ushered in with Anns and which have been so widely and consistently criticized. This is so even in light of evidence that the House of Lords62 and other Commonwealth jurisdictions63 are retreating fromAnns. While it is unfortunate that they offer no assistance to more clearly delineate or define those matters which fall within the policy sphere and those which are plainly in the operations sphere, these decisions are nonetheless significant in signalling the Supreme Court's adherence to the model, at least until they can find or fashion something finer.
Consider an example of the uneven, if not capricious, application of the principle. Cory J. for the majority in Just held that «the manner and quality of an inspection system is clearly part of the operational aspect of government activity»64. Matters of policy which are characterized by factors such as budgetary considerations or personnel limitations were not sufficient in Just to clothe the province with immunity as to its system of inspection of rocks along highways. Nevertheless, in Brown the court found that the summer schedule was a policy decision.
In Swinamer, meanwhile, the Department of Transportation decision to undertake a survey of dangerous trees was held to be «...a preliminary step in what will become a policy decision involving the expenditure and allocation of funds»65. A survey considered to be preliminary to a policy decision had all the
appearances of a system of inspection. In what way is the survey of dead and potentially dangerous trees different from the inspection of the rock work crew whose job it was to identify loose or dangerous rocks? In both circumstances the workers failed to identify the source of the ultimate tragedy. If a decision which is «preliminary to a policy decision» provides immunity to the public authority, at what point would a decision which is «pre-operational» cross over from policy to operations?
The notion of budgetary constraint and political motive guiding the determination is also circular. Ultimately, every decision and action by government is reducible to economic considerations. Why would the law consider that public authorities are immune to budgets and fiscal accountability much in the same way as private organizations? The same applies to political motivation. Every official action, inaction and utterance can be ultimately attributed to political objective as it can be attributed to non-political purposes. The court is not equipped to accurately surmise, if it can be done at all, and balance the political content of the conduct of public authorities.
The effect of these seemingly irreconcilable judicial decisions is an inexorable enlargement of the scope of civil liability. This may be seen as inescapable given the range of activities in which government is involved. The effect nevertheless has been to confer an abiding sense of chance in the distinction between policy and operational matters.
The frustrating lack of judicial unity continued with the Brown andSwinamer decisions. In Just, the three levels of court had six judges finding the decision to be operational, while five judges found them to be grounded in policy. In Brown and Swinamer, divergent conclusions were not a major problem at the Supreme Court of Canada but the court was split on both the use of the policy versus operations approach, what it means and the manner in which the determination is reached. Yet it is this framework which structures the application of duty of care which, in turn, ultimately leads to the conclusion about liability. Characterizing the «either/or» result along these lines, where everything rests upon the all-or-nothing conclusion, is like pulling a rabbit out of the hat. Injured people can always be expected to look for compensation to the deep pocket of government. It is of course the taxpayers who will pay for the negligence of Crown agents. What is there, moreover, to prevent this
particular issue from being decided upon the judge's view of the degree of compassionate grounds for recovery?
Some commentators have called for Crown liability to accord more closely to the private law duty of care66. Any immunity is thought to promote negligence, or at least countenance it, and reduce public accountability. These proponents would likely be content with the trend to expand the scope of liability. After all, what difference should it make to a plaintiff if he or she was injured from private or public neglect67. The injury is equally grievous in both cases. On the other hand, the law must permit the Government to govern in the public interest without concern for adverse consequences that might be visited upon each particular individual. To hold that its decisions of a policy nature would be subject to review by the courts would pitch the entire system of government and administration into a quagmire, likely to be bogged down by a flood of claims given the enormous expanse of activities in which various levels of government are involved each day. This concern received attention by Wilson J. in Kamloops from the perspective that any finding of a duty of care comparable to that of the private individual carried with it the risk of opening the «floodgates and creat(ing) an open season on municipalities»68. Moreover, the claims are likely to be greeted with woolly, but nevertheless demanding, standards of public performance which would exceed the prescriptions of conduct for private defendants. The public authority could always have done more to avoid the accident.
It could be argued that every decision of a public authority could be characterized as a policy decision while every action could be held to be operational. Or, that every activity of government contains within it policy as
well as operational elements which co-exist on a continuum. While this may be a satisfactory circumstance for some, it remains as ambiguous as the current analysis69.
This approach has been defended as offering as much definition as can be brought to the issues. This is the view of the Ontario Law Reform Commission70 :
- «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 suggestion of numerous academic writers following the Justdecision that the scope for policy decisions would be severely restricted while the operational sphere would be enhanced has not been borne out by these most recent decisions. Policy decisions continue to be characterized by an expenditure of funds, budgetary constraints, personnel limitations - «decisions involving social, political and economic factors.» There was no distinction in the Brown and Swinamer cases as to the level of the decision making which had previously been raised as a determining factor in Just.
Given the decision of the Court not to seize the opportunity presented by Brown and Swinamer to chart a new direction in the area of liability for public authorities, the examination of alternatives and scholarly dissertations might just as well be set aside for now. The court could scarcely send a clearer
signal that its course is set on hold71. One observes that the personal injury suffered in most of the recent Canadian cases arose from motor vehicle accidents on public roadways. This often produces a seriously injured plaintiff, whom compassion can favour heavily, in comparison to the inert and virtually infinite juridical person of the Crown. The law applying to public authorities must be certain not to develop by proxy as the law of motor vehicle mishaps on public property.
Efforts nevertheless should be directed toward refining and modelling the delineations which are decisive to the analysis. In this regard, Professor Hogg's thoughts are apposite72 :
- «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.»
In the meantime, legislative bodies which still find themselves dissatisfied with the extent of civil liability flowing from the decisions of public authorities continue to grip the ultimate lever of public policy : the power to enact legislation itself. They might consider enactment of protective exemptions where public authorities are engaged, to foreclose the issue. Keeping in mind Cory J.'s comments from Swinamer relative to the duties and the powers of the Minister contained in the Public Highways Act, legislative drafters are cautioned to capture a «clear statutory exemption».