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…)
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 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…)
On August 20, 2020, the Supreme Court of Canada granted leave to hear a future appeal in the matter of Marchi v. City of Nelson.
This case arose from an incident in Nelson, BC in January 2015. The City was experiencing a heavy snowfall and on the early morning of January 5 sent out City crews to plow the main downtown area. The plowing created snowbanks along the curb and onto the sidewalk of the streets. On January 6, 2015, Ms. Marchi parked her car along Baker Street in downtown Nelson and attempted to make her way to the sidewalk. Seeing no other convenient way of getting to the sidewalk, she attempted to walk over the snowbank left by the City’s work crews, which was approximately 2’ high, 2-3’ wide, and appeared to run the length of the block. As Ms. Marchi attempted to cross the snowbank, her right foot sunk deep into the snow and she suffered a serious injury to her leg. Ms. Marchi sued the City, alleging it was negligent in leaving the snowbanks along the road without spaces for pedestrians to cross from their car onto the sidewalk. (more…)
The recent decision of Pellegrin v. Wheeldon, 2020 BCPC 143 reads as an “instructable” on neighbourly nuisances. In Judge Catherine Crockett’s judgment she reviews a lengthy history of behaviour between neighbours that would make Mr. Rogers shudder. Judge Crockett uses this decision as an opportunity to give a lesson on the torts of nuisance and trespass, and the differences and similarities between these causes of actions. As most local governments have the power to regulate or prohibit nuisances by bylaw pursuant to sections 8(3)(h) and 64 of the Community Charter or Division 6 of Part 9 of the Local Government Act, it is an interesting case to read for the sheer volume of different types of objectionable behaviour that are captured in the decision.