Casual Legal: The Policy Operational Dichotomy

By Kelsey Becker Brookes
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

Municipalities make important decisions every day, including what services to provide and what service levels are appropriate. But the decision to provide or not provide a particular service or service level can have negative consequences for residents, from snow clearing to playgrounds to fire service.

The Policy Operational Dichotomy refers to the protection from liability that public authorities are afforded for true policy decisions. Simply put, municipalities will not be found liable for bona fide policy decisions (that are made in good faith), but they can be found liable for operational decisions. But what constitutes a core policy decision such that a municipality will be protected from liability?

Core policy decisions are decisions as to a course of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith. These decisions are a narrow subset of discretionary decisions.

When determining if a decision is a core policy decision, a law court must consider the extent to which a government decision was based on policy considerations and the extent to which the considerations impact the rationale for core policy immunity. These decisions differ from operational decisions, which represent the implementation, performance, or carrying out of the policy.

The Supreme Court of Canada in the recent case of Nelson (City) v Marchi, 2021 SCC 41, provided the following factors to be used to identify a core policy decision:

• The level and responsibilities of the decision-maker
• The process by which the decision was made
• The nature and extent of budgetary considerations 
• The extent to which the decision was based on objective criteria.

The mere presence of budgetary, financial, or resource implications, or the use of the word “policy”, does not determine if a policy is a core policy decision. However, municipalities can increase the likelihood a decision will be considered a core policy decision by supporting those decisions with detailed documentation identifying the budgetary or other considerations at play.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.