Cancellation of the COVID-19 State of Emergency – Transition from the COVID-19 Related Measures Act and the new Municipal Affairs Statutes Amendment Act, 2021

As of the end of the day on June 30, 2021, the COVID-19 State of Emergency, as previously declared under the Emergency Program Act (British Columbia), was cancelled. The Province is now in a period of transition under the COVID-19 Related Measures Act, SBC 2020, c. 8. The COVID-19 Related Measures Act was adopted to enact as statute law various Ministerial Orders that had been made under the Emergency Program Act (“COVID-19 Orders”) in response to the COVID-19 pandemic. (more…)

Claiming Privilege Over Records of Closed Meetings of Council

In McGraw v. Southgate (Township), 2021 ONSC 2785 the Ontario Superior Court of Justice considered the appropriateness of disclosing a recording of a closed council meeting. The disclosure was sought in a wrongful dismissal suit brought by a former employee of the Township and the recording contained discussions related to the Township’s decision to terminate the Plaintiff’s employment. The Township opposed the disclosure of the recording on a number of grounds of privilege. The judge assessed the merits of each claim of privilege over the recording before ultimately ordering the disclosure of a part of the recording.

This decision is a good reminder to local governments that even discussions which occur during closed meetings may not remain confidential in all circumstances. As such, it is important to remain conscious that any recordings or notes of the closed meeting may one day be put before a Court. It is therefore prudent on local governments to maintain appropriate record-keeping practices in order to preserve as much confidentiality as possible. (more…)

Municipal Liability for Negligent Building Inspection and How to Manage Risk

A decision of the Ontario Superior Court from January 2021 highlights the serious financial risk to municipalities that regulate building construction and provides an opportunity for re-visiting best practices for managing such risk. (more…)

Court says Local Governments Cannot Regulate within the Province’s Exclusive Jurisdiction over Mining

In the recent decision of O.K. Industries Ltd. v District of Highlands, 2021 BCSC 81, the BC Supreme Court reaffirmed that the Province has exclusive jurisdiction over “mines” and “mining activities” as each are defined in the Mines Act, RSBC 1996, c. 293.

This decision is important for local governments as it confirms that in relation to mines, mining activities, and other associated and integral activities, including reclamation, a local government cannot exercise its authority over things such as land use, certain buildings, soil deposit and removal, trees, and blasting. (more…)

Snow and Ice Clearing Bylaws Do Not Make Adjacent Private Property Owners Liable to Slip-and-Fall Claimants but May Insulate Local Governments

Many local governments in B.C. have adopted bylaws that require property owners to clear snow and ice from the sidewalks adjacent to their properties. Questions have been raised whether the imposition of this responsibility in a bylaw also makes the property owner legally liable in negligence if a person were to be injured after slipping and falling on uncleared snow or ice on an adjacent sidewalk.

In Der v. Zhao, 2021 BCCA 82, the B.C. Court of Appeal recently conducted a thorough negligence analysis on this question and found that residential property owners do not owe a duty of care to pedestrians passing by on sidewalks adjacent to their properties that are owned by municipalities, even where a bylaw makes them responsible for snow and ice clearing. The Court found that the local government remains the “occupier” of the public sidewalk and that a breach of a bylaw requirement by the adjacent residential property owner does not give rise to the sufficient proximity required to establish a duty of care to persons passing on the sidewalk. (more…)

Private Property Rights, the Common Law and Land Use Regulation

On January 22, 2021, the BC Court of Appeal issued its judgment in Fonseca v Gabriola Island Local Trust Committee, 2021 BCCA 27, which overturned the trial decision from 2018. (more…)

Amendments to the Environmental Management Act and Contaminated Sites Regulation: the Local Government Perspective

On February 1, 2021, several significant amendments to the Environmental Management Act, SBC 2003, c 53 (the “Act”) will come into force and which will result in a substantial overhaul of the Contaminated Sites Regulation, BC Reg 375/96 (the “CSR”). These changes reflect the efforts of the Province to streamline and clarify the process for addressing contaminated sites while addressing purported weaknesses within the previous regime through a mandatory investigation process for contaminated sites.  With these amendments come a number of changes to the Act and applicable regulations that will impact local government responsibilities in the regulation of contaminated sites. (more…)

Campaign Contributions from Developers with “In-Stream” Development Applications held not to Create a Conflict of Interest.

In Reasons for Judgement issued January 8, 2021 in Allan v Froese, 2021 BCSC 28 [Allan], the BC Supreme Court upheld the long-standing principle that the acceptance of a campaign contribution from a developer to an elected local government official does not establish that the official has a monetary interest in that developer’s matters before council without evidence of “something more”.

Jeff Locke and Andrew Buckley of Stewart McDannold Stuart “vigorously defended” the mayor, two current councilors and one former councilor from the Township of Langley in the Allen matter and successfully argued that the fact that a developer’s development applications were “in-stream” before council at the time the contributions were received does not constitute that “something more”. As Justice Walker concluded at the end of his judgement: (more…)

The Limitation Defence in the Public Authorities Context: A Tool for Disposing of Claims Summarily

The civic functions performed by many public authorities put their employees in routine contact with members of the public. As can be expected, their public-facing nature will consequently make these public bodies and their employees the target of some frivolous litigation. The finite time and financial resources available to address these nuisance claims are an unfortunate reality that strains the legal budgets of public authorities and acts as a drain on the use of limited court resources. Addressing and disposing of such claims in a time and cost-sensitive manner is in the best interest of the public authority so that these organizations and their legal counsel can focus their time and resources on more pressing legal matters. (more…)

Surrey not Responsible for Tree Fallen on a Car Due to Policy Defence

A claim against the City of Surrey recently came before the B.C. Civil Resolution Tribunal for the relatively modest amount of $5,000, but the decision of the Tribunal is nevertheless illustrative of the power of the policy immunity defence for local governments facing claims of negligence. (more…)