Regional districts: policy decisions are protected from liability

Disclaimer: The following is intended for educational purposes, and not as legal advice.

“Policy decisions” by the PRRD include financial decisions (e.g. the annual budget), changes to regional services (e.g. supporting dispatch Option C), and other issues that set “policy direction.”

Bylaws that define regional services are policies, as distinct from the operational implementation of those regional services (e.g. the service establishment bylaw that defines the LIVFD as a regional service vs. the on-the-ground implementation of the Lasqueti fire department).

According to the PRRD lawyer in 2015: “Policy decisions based on budgetary and public policy considerations are protected and immune from tort liability."

What is “tort liability”? A tort is a wrongful act that causes someone else to suffer a loss or harm (a “civil wrong”). Tort liability is the resulting legal liability for the person or entity that commits a tort. In the case of the PRRD, it is the PRRD corporation that would be held liable for any such legal claims (because individuals are immune as explained previously).

Protecting policy decisions of local governments from liability makes sense, and is what I understood as a municipal councillor. As long as a policy decision meets legal requirements, it needs to be protected from liability, otherwise regional districts and municipalities would operate under continual risk of legal action by members of the public or corporations that do not agree with their decisions.

The Municipal Insurance Association of BC describes liability risk in the context of a building inspection service, much of which is generally applicable ( Management/municipal-liability-for-building-inspection.pdf):

  • (a) “Public authorities are tasked with acting for the benefit of a diverse group of constituents, but do not have unlimited resources to do so. In recognition of this unique position, the law distinguishes between “policy” decisions by governmental authorities and the “operational” implementation of those decisions. A true policy decision by a governmental body is not subject to review by the courts and will not give rise to liability in negligence. However, there may be tort liability for negligent implementation of policy (i.e. for negligent “operational” activities).
  • (b) “The Supreme Court of Canada has ruled that true policy decisions involve financial, economic, social and political factors or constraints. Operations, on the other hand, are concerned with the practical implementation of the formulated policies.
  • (c) “Since policy decisions will be immune from review, local governments should, when making decisions of general application, make a record showing the decision was a policy decision reflecting social, economic, financial or political factors and was properly considered.

It is important to distinguish policy and operational decisions, since policy decisions are immune from liability, but liability may arise when implementing a policy decision (a topic of a future note).

As put in Just v. British Columbia, the government “must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions”.