Tort of Negligence

The tort of negligence was again clarified and confirmed in the recent Supreme Court of Canada (SCC) decision of Nelson (City) v. Marchi, 2021 SCC 41 issued on 21 October 2021. This SCC decision is important for a number of reasons including the affirmation that public bodies such as cities can be liable like private individuals for a breach of the duty of care we all owe our "neighbour".

Of course, like all legal principals, there is a balancing of societal interests so an immunity from liability for negligence can apply depending on the facts such as the statutory protection for some public servants acting in good faith within their responsibilities. This particular case helped explain the analysis to determine the distinction between the immunity given to core policy decisions by governments and the liability which can apply to operational decisions implementing policy, such as city street snow removal.

This case also confirms at paragraph 15: "The foundation of the modern law of negligence is the neighbour principal established in Donoghue v Stevenson, (1932) A C. 562 (H.L.), under which "parties owe a duty of care to those whom they ought reasonably to have in contemplation as being at risk when they act" (Rankin (Rankin's) Garage & Sales) v J.J., 2018 SCC 19, (2018) 1 S C.R. 587, at para. 16). The neighbour principal does not discriminate between private and public defendants - it is applicable to both..."