In Held v. Sechelt (District), 2021 BCCA 350 the British Columbia Court of Appeal affirmed that an approving officer could not be held personally liable in negligence while acting in the course of his duties related to the review, consideration and approval of a subdivision and development within a municipality.
The appeal arose from an order dismissing claims in negligence against the former approving officer of the District of Sechelt. This approving officer had authorized a subdivision that was later declared to be unsafe for occupation as a result of geotechnical instability. The approving officer had approved the development of the subdivision in September 2006 but at the time had required the developer to commission reports prepared by engineers attesting to the suitability of the lands for residential development purposes and to register covenants against title the subdivided lots under s. 219 of the Land Title Act, RSBC 1996, c 250 [LTA] .
Sinkholes and geotechnical issues subsequently occurred in the subdivision. In February 2019, the District declared a state of local emergency as a result of immediate danger arising from land subsidence and geotechnical instability in the area of the subdivision. The residents were evacuated and the subdivision was closed and fenced off. Thereafter, a number of property owners initiated actions against several parties, including the developer, the Province, the District, and the approving officer.
It was alleged in the pleadings that the approving officer owed a duty of care to potential purchasers of the lots in the development to ensure that properties purchased in the development would be reasonably safe and free from occurrence of landslip, soil subsidence, sinkholes and other potentially dangerous or disruptive geotechnical events. The plaintiffs claimed the approving officer was required to exercise reasonable care in determining whether or not to approve the subdivision, and in setting terms, conditions and requirements for approval of the subdivision.
In order to be found liable in negligence, a defendant must owe the plaintiff a duty of care. In assessing whether the approving officer owed a duty of care in the specific circumstances of the Held case, the Court of Appeal followed its recent decision in Waterway Houseboats Ltd. v. British Columbia, 2020 BCCA 378 [Waterway], which outlines when a duty of care is owed by a public regulatory authority.
In Waterway, the Court of Appeal set out a two-stage analysis to assess whether sufficient proximity exists between a public authority and a plaintiff to justify the recognition of a duty of care. The Court of Appeal commented that a Court must:
- determine whether the statutory scheme discloses a legislative intention to exclude or confer a private law duty of care; and
- if the legislation is not determinative, then the courts must look to the interaction between the regulator and the plaintiff to determine whether a sufficiently close and direct relationship exists to impose a prima facie duty of care.
In applying the Waterway test to the circumstances in Held, the Court of Appeal looked to the provisions of the LTA which outlined the authority of an approving officer. The Court gave notice to the wording in section 85(3) of the LTA, and which grants an approving officer the discretion to refuse to approve a subdivision in the public interest.
The Court also noted that while sections 86(1)(c) and 87 of the LTA set out a list of matters to be considered by the approving officer in assessing an application for a subdivision, these considerations do not limit the public interest criterion in section 85(3). Based on the legislative provisions governing an approving officers authority, the Court concluded that the public interest was an overarching consideration of an approving officer while acting in the course of their duties related to subdivision review.
Ultimately, the Court of Appeal held that no private law duty of care could arise between an approving officer and a subsequent purchaser of a lot created by a subdivision approval. The LTA affords an approving officer with wide discretion to refuse to approve a subdivision where it is against the public interest. The exercise of that discretion involves weighing risks and balancing competing interests, including those of neighbouring landowners, the local government, and lot owners in the subdivision, to arrive at a conclusion that is in the public interest.
Given that the Court of Appeal found that the legislative intent in the LTA was to exclude a private law duty of care, the Court was not required to proceed to stage two of the Waterway test.
4.0 Takeaways for Local Government
The impacts of this decision should be welcomed by local governments across British Columbia as affirmation that approving officers acting in the public interest and within their authority prescribed by statute are shielded from tortious claims while performing their job duties on behalf of the local government.
Of course, whether or not a negligence claim can be sustained in any particular case will ultimately be determined by the court’s assessment of the governing statute from which a public official derives their authority. However, the public policy context of a local government official’s responsibilities is an important factor that may protect them from a claim in negligence.