September 12, 2023
Dolden Municipal Law Newsletter – September 2023
Wait! It Might be How Long Until a Building Permit Claim is Statute Barred? Part 2
By Jordan Cutler, Dolden Toronto
In my last newsletter article, I discussed the potential impact of ss. 15(4)(b) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Act”) on the running of the ultimate limitation period, found at s. 15 of the Act (the “Ultimate Limitation Period”). Briefly, the plain language of ss. 15(4)(b) of the Act provides that the Ultimate Limitation Period does not run while the plaintiff is a minor and not represented by a litigation guardian. In the following scenario, a plain language reading of the subsection leads to a situation where the building permit claim against a municipality is not statute barred by the Ultimate Limitation period until 33 years after the Act came into force:
- on January 1, 1985, a structure (the “Structure”) is negligently constructed on a property (the “Property”);
- on January 1, 1985, the relevant municipality (the “Municipality”) negligently inspects the construction of the Structure (the “Municipality’s Negligence”);
- on February 1, 2019, a plaintiff, born on January 1, 2004, purchases the Property;
- on May 1, 2019, the plaintiff discovers that Structure was not constructed in accordance with the applicable Building Code; and
- on May 1, 2020, the plaintiff commences an action as against, amongst others, the Municipality in relation to its negligent inspection of the Structure (the “Action”).
Since my last newsletter article, the Ontario Court of Appeal, in Wong v. Lui, 2023 ONCA 27, released a decision in which it interpreted this section.
Takeaway
As it relates to the above scenario, the Ontario Court of Appeal held that ss. 15(4)(b) of the Act only suspends the running of the Ultimate Limitation Period “for minors who have claims that arose when they were minors.” In other words, in the above scenario, the Ultimate Limitation Period will have expired prior to the date on which the plaintiff’s claim arose (the plaintiff’s claim arose on or after the date that the plaintiff purchased the Property) and so the Plaintiff should be statute barred from advancing a claim against the Municipality relating to the Municipality’s Negligence.
For further information or if you have any questions about the above article, please contact the author: Jordan Cutler, Dolden Toronto, Email: [email protected].
Measuring a Surface Discontinuity – The Court of Appeal Weighs In
By Charles Painter, Dolden Toronto
A municipal defendant who receives timely notice must measure a surface discontinuity itself, using reliable and verifiable methods, if it wants to ensure that it has the evidence available to establish a defence under the Minimum Maintenance Standards (“MMS”).
This was the key finding by the Court of Appeal for Ontario in Beardwood v. Hamilton (City), 2023 ONCA 436, which recently overturned the trial decision of the Honourable Justice Krawchenco, finding that he committed an error in holding \ that the height of the road surface discontinuity met the MMS standard, resulting in a dismissal of the plaintiff’s action against the City.
In the Court of Appeal’s view, the trial judge’s overall approach to determining the height of the pavement discontinuity “was flawed”, as “the trial judge’s approach of assessing the height of the discontinuity by using the average of the appellant’s expert’s range was an error because it amounted to guesswork superimposed on the appellant’s expert’s speculation.”
The Court of Appeal stated:
“[15] The fact that the appellant introduced the photographic evidence through his expert did not relieve the respondent of its obligation to prove that the height of the discontinuity was less than the 5 cm MMS standard for repair. The appellant’s expert did not accept the photographic evidence as providing a precise or accurate depiction of the height of the discontinuity. Rather, he explained why the photographic evidence was not likely accurate and the trial judge relied on his critique when he analyzed the appellant’s expert’s range. In these circumstances, it was up to the respondent to call evidence to establish the reliability and accuracy of the photographic evidence or some other accurate measure of the range in heights of the pavement discrepancy. It failed to do so.
[16] We observe that even though the respondent received timely notice of the appellant’s accident and had at its disposal measuring devices that could establish whether the MMS repair obligations had been triggered, it called no evidence to establish the height of the discontinuity that caused the appellant’s accident.
[17] We conclude that the respondent failed to meet its onus of proving it was entitled to a statutory defence under s. 44(3) of the Act.” (emphasis added)
Takeaway
This latest ONCA decision applying the MMS further emphasizes the importance of using reliable equipment when measuring an alleged surface discontinuity, such as a carpenter’s square with metric measurements (i.e. mm/cm), and documenting the distance of the camera and angle of the photographs taken. See: Barbeau v. Kitchener (City) [2017] O.J. No. 10.
For further information or if you have any questions about the above article, please contact the author: Charles Painter, Dolden Toronto, Email: [email protected].
The Liberating Power of Covenants – Broad Waivers of Liability Favour Municipalities
By Jonathan Weisman, Dolden Vancouver
Municipalities often use covenants on land to ensure safe development and preserve public rights. But it is worth remembering how powerful a protection against liability they can be. In Rai v Sechelt, the BC Court of Appeal issued just such a reminder, releasing a municipality from liability connected with a large-scale evacuation.
This case stems from a 28-lot subdivision development (the “Subdivision”) in the District of Sechelt, built by the development company Concordia (“Concordia”), on land that was known to have subsidence and sinkhole issues. The plaintiffs in the BC Supreme Court case were several homeowners in the Subdivision who had been displaced from their homes after the District called a local state of emergency in February 2019 due to the danger arising from land subsidence and geotechnical instability after several sinkholes had opened up in the Subdivision. The Subdivision was evacuated and locked up behind a fence. As a result of the abandonment, some of the houses in the development have been ransacked and despite evaluations of similar homes in the area at around $1 million, BC Assessment has assessed the properties in the Subdivision at zero to a few dollars.
Background
In 2006 the District approved the 28-lot subdivision. Pursuant to Section 219 of the Land Title Act a covenant was registered against each of the 28 proposed lots in the development.
Section 219 of the Act allows a municipality to register a covenant against land that is enforceable against the covenantor and their successors in title. On approving the Subdivision, the District required a covenant on the lots providing, in part, that:
7. The Covenantor, for himself and his successors and assigns, hereby releases, saves harmless and indemnifies the Municipality for any damage, loss claim, demand, cost (including legal cost), whether as a result of injury or death to any person, or damage to property of any kind, including any claims by third parties, arising from or in connection with the construction of any structures on the Lands or use of the Lands, whether or not construction is in accordance with the geotechnical assessments referred to herein, including without limitation any subsidence, settling of any structure including any utility or road infrastructure, loss of slope stability, or any similar matter.
The Lawsuit and the Release
In 2019, years after homes had been built in the Subdivision, the District declared a state of emergency for the subdivision, citing a series of geotechnical events. Homeowners in the subdivision sued the District in negligence for approving the subdivision and issuing permits. In its defence, the District contended that the covenant released it from liability.
The plaintiffs sought declaratory relief that the covenants had not released the District from their claims. The Supreme Court held, in their favour, that Section 219 of the Act did not authorize a release as part of a registered covenant.
On Appeal, that decision was overturned. Section 219 “contemplated management and allocation of risk, notice to the public, and the protection of the public purse.” Given that, and its broad wording, the Court of Appeal concluded that the Act contemplated releases as part of a registered covenant.
Both the District and the developer had been aware of the site’s geotechnical risks when the release (the covenant) was drafted. Therefore, the release could be said to contemplate the homeowners’ claims. The Court of Appeal reversed the lower court’s judgment and declared that the respondents had released the District from the claims.
Takeaway
Given the District’s knowledge, their initial decision to include a waiver of liability in the covenant was worthwhile. But the Court of Appeal’s attention to that initial state of knowledge suggests that blanket releases may not be so effective.
Ultimately, this is a case which proves the value of taking a proactive, thoughtful approach to risk management. Where identifiable risks would impose a significant burden on municipal resources, the use of well-framed releases in pre-development covenants can be an excellent tool to manage those risks.
For further information or if you have any questions about the above article, please contact the author: Jonathan Weisman, Dolden Vancouver, Email: [email protected].
Issuing Building Permits – the Standard of Care
By Frank Caruso, Dolden Toronto, and Andrea Jasko, Dolden Toronto
When construction deficiencies give rise to litigation, the municipality is often implicated. Most of these claims center on the municipality’s inspection of the work, but in some cases the courts have also been asked to determine whether a municipality was negligent in issuing a building permit at all.
The Building Code Act sets out the statutory obligation of the Chief Building Official to administer and enforce the Building Code, and sets out the situations in which a Chief Building Official may refuse to issue a permit. The courts have consistently found that there is a corresponding duty to the public in negligence. The key question is usually whether the municipality met the standard of care.
The Ontario courts have reviewed this area fairly recently in Breen v. Lake of Bays. In that case, a building permit was issued in 1989. The evidence demonstrated that the building permit application was reviewed and approved in a single day, and it was apparent that no plans had been included with the application. Years later, in 2012, a subsequent owner exploring renovations discovered serious deficiencies.
The trial judge set out a formulation of the standard of care applicable to municipalities, and found that the municipality fell below the standard of care in its review of the permit application. In particular, the municipality had issued the permit despite the fact that it failed to include any plans as required by the municipality’s by-laws.
The decision went to appeal. Ultimately, the Court of Appeal accepted most of the trial judge’s analysis of the standard of care. The accepted formulation of the standard of care discussed in Breen touches on a number of significant points:
- First, in cases of negligence, the standard is reasonableness and not perfection. The municipality, as any other defendant, has a duty to behave reasonably. It is not an insurer or guarantor of every deficiency and workmanship issue.
The Court of Appeal in Breen applied this principle in overturning the trial judge’s finding that the building inspector was negligent in missing certain deficiencies simply because the deficiencies existed. By doing so, the trial judge was “lowering the negligence threshold from unreasonable conduct to imperfect conduct”. - Second, the building permit process is part of the enforcement of the Act and the Code. The application must contain the information required to enable enforcement.
The historical case law, including particularly the Rothfield case, had suggested that the test of what is a reasonable review of the permit application depends on the scope of the project. The court in that case noted that it would be unreasonable to expect the municipality to be responsible for ‘perfecting’ all of the permit applications that do not include enough information to ensure that the Act and Code have been satisfied, particularly when an inspection will follow that permits the municipality to confirm compliance.
There are of course risks in taking that approach. Rothfield was decided in 1989. It is not clear that courts remain of this view, particularly in cases where there is an objective standard (for example a by-law) setting out what must be included in an application. In the Breen case, the court took specific notice of the fact that the permit application did not satisfy the municipality’s own by-law. Having not ensured that the application complied with its own by-laws in terms of content and information, the municipality was unable to establish that it exercised reasonable care in reviewing that application. - Third, the issuance of the permit goes hand-in-hand with inspection of the work, as part of the enforcement of the Act and the Code. The municipality must ensure that the permit application, if accepted, will enable meaningful inspections of the work.
In Breen, for example, the court placed significant importance on the fact that the plans that were required for a permit application “operate as a reference point against which the construction inspections are conducted. Indeed, some of the deficiencies discussed below would have been impossible to examine and assess without building plans”. - Fourth, a municipality in reviewing the application and plans should be alert to inconsistencies, uncertainty, or further information that may be required.
This came in to play in the very recent case of Armstrong v. Penny. In this case, a building permit was issued in September 1998 for construction of a cottage. The cottage was built, and it was eventually identified that a substantial part of the structure was built on the wrong side of the property line.
The court found that the municipality had failed to meet the standard of care in reviewing the application and issuing the permit. As in Breen, the application had failed to include a document required by the by-law (in this case, a survey), such that the permit should not have been issued.
However, the court also took issue with the fact that certain errors on the application (for example discrepancies between the measurements and report square footage) ought to have been identified, and should have triggered a more detailed review and request for information.
Takeaway
In almost all cases where issuance of a permit is in dispute, there will also be disputes regarding the adequacy of the subsequent inspections. The standard of care for inspections deserves its own discussion.
But in terms of the issuance of permits, the message from the courts seems to be that municipalities will be held strictly to the standards set out in their own by-laws.
For further information or if you have any questions about the above article, please contact the authors: Frank Caruso, Dolden Toronto, Email: [email protected], and Andrea Jasko, Dolden Toronto, Email: [email protected].
Who Needs to Know? Emerging Technologies and Privacy Risks for Municipalities
By Mercy Iannicello, Dolden Vancouver
With the emergence of new technologies, municipalities are starting to rely on digital communications and storage to improve their efficiency. Although these new innovations will most certainly provide benefits, they may also create increased privacy risks. Given this, municipalities should be aware of their legal obligations, as well as how to mitigate risks associated with collecting and storing personal or sensitive information.
Applicable Legislation
Most Canadian jurisdictions have legislation that require municipalities to protect against the unauthorized access or disclosure of personal information.
Section 2(1) of the Personal Information Protection and Electronic Documents Act defines personal information as “information about an identifiable individual”. Examples of personal information can be broad and include variables such as name, age, address, credit records, medical records, and email addresses.
Public bodies, including municipalities in British Columbia, are subject to the Freedom of Information and Privacy Act, which regulates how public bodies collect, use, retain and disclose personal information. As of February 1, 2023, public bodies in B.C. are mandated to report a privacy breach under section 36.3(2)(a) of the Act, if that breach could result in significant harm to the individual. Significant harm can include bodily harm, humiliation, damage to reputation or relationships, loss of employment, identity theft or financial loss.
Similarly in Alberta, public bodies are subject to the Freedom of Information and Protection of Privacy Act. This Act allows individuals the right to request access to information in the custody or control of the public bodies and outlines how the public bodies can collect, use, and disclose personal information. In Alberta, however, there is no mandatory requirement to notify individuals of a privacy breach, although the Privacy Commissioner encourages voluntary reporting.
Ontario municipalities are regulated by the Municipal Freedom of Information and Protection of Privacy Act. This Act outlines the role of municipal bodies to protect the privacy of individual’s personal information that exists in government records. While there are no mandatory notification requirements to either the Privacy Commissioner or affected individuals in the event of a privacy breach, the Ontario Information and Privacy Commissioner recommends notification where there is a large number of affected individuals or where personal information, if taken, could result in significant harm.
Emerging Trends
One of the latest initiatives that may impact municipalities from a privacy standpoint is the 2017 Smart Cities Challenge, launched by the Canadian government. At the time, over 225 Canadian municipalities across every province and territory expressed interest in becoming a “smart city”. A smart city is defined as one that collects and analyses data interactions with public infrastructure. Data is collected through connected sensors and individuals’ devices, which form part of a centralized network. The purpose is to enhance the quality and efficiency of municipal services and help communities of any size improve residents’ lives through innovation, data and technology.
While this technology is meant to provide significant benefits, it is not without risks. As part of its process, smart city technologies will collect and process large amounts of personal and corporate data through its interactions. Risks from a privacy perspective include the potential unauthorized access to this data, including the misuse and unauthorized access to personal and corporate data. This of course, could be detrimental to a municipality if such information was taken by a foreign threat actor, or if used in a harmful way.
Takeaway
Smart cities provide municipalities with ways to become more efficient and innovative. However, given how smart cities operate, they may also create increased privacy risks. There are various steps municipalities can take to safeguard against privacy breaches:
- Assess guidelines to consider how information is stored, who has access to that information, and whether there is a robust system to protect this information;
- Strengthen employee training program relating to the storage and access of personal information and cyber security; and,
- Put a privacy management program in place to ensure that systems, including all confidential and sensitive data, are secure from privacy threats. Public bodies may consider collaborating with provincial regulators to ensure policies, guidelines, and procedures are in accordance with the law and to help mitigate risk of future cyber incidents.
For further information or if you have any questions about the above article, please contact the author: Mercy Iannicello, Dolden Vancouver, Email: [email protected].
Abuse Policy: A Critical Risk Management Tool for Local Governments
By Brett Stephenson, Dolden Toronto, Lindsay Nilsson, Dolden Kelowna, and H. Kate O’Malley, Dolden Toronto
Local governments face exposure for all types of risks. Abuse claims are an emerging risk, reflective of a larger social trend that warrants careful consideration by municipalities. One way to manage this risk is through a well-developed and finely-tuned standalone abuse policy.
Standalone Abuse Policy
A standalone abuse policy is distinguishable from a traditional harassment policy that operates to promote a work environment in which all individuals are treated with respect dignity, free of harassment and discrimination. A policy addressing abuse is broader in scope and designed to prevent and respond to specific circumstances of abuse. Simply stated “abuse” is when an individual causes harm to another; it can take on many forms including physical, sexual, verbal/emotional, mental/psychological, financial/economic and cultural/identity. A traditional harassment policy is specific in scope and does not address these other types of harms.
A standalone abuse policy operates to protect the public, employees and the local government. It creates a system of checks and balances that should be followed by an individual if they are a victim of abuse themselves, become aware of the abuse of another individual, or suspect someone may be at risk. It provides a framework for how to respond and execute the reporting protocols that are contained within each province’s legislation.
Risk Management Tool
Importantly, a standalone abuse policy can be utilized by local governments as an effective tool for risk management. It can reduce exposure to claims of vicarious lability, negligence and breach of duty.
a) Vicarious Liability
Vicarious liability is liability imposed on one party for the misconduct of another party. Although the categories of relationships in law that attract vicarious liability are neither exhaustively defined nor closed, the most common one to give rise to vicarious liability is the relationship between employer and employee. Courts will sometimes impose vicarious liability without direct fault on the part of the municipality for the inappropriate or negligent actions of its employees, agents or volunteers.
Having a policy addressing abuse will help minimize the potential for vicarious liability claims against local governments. Not only will it reduce the risk of abuse occurring in the first instance, it will serve as evidence that a local government acted reasonably and in good faith when a claim has arisen.
b) Negligence
A standalone abuse policy can also build on the “core-policy” defence to shield local governments from liability in negligence. This defence is based on the principle that core policy decisions made by democratically elected officials, or their delegates, should remain free from judicial supervision, to protect the independence of the legislative branch and the separation of powers. Where a local government can demonstrate it had a policy in place and implemented that policy, there is a greater chance that it will be found to have met the standard of care and therefore not be held liable.
c) Breach of Statutory Duty
Further, such a policy clarifies the statutory duty to report any disclosed, observed or suspected abuse to the applicable child, youth or family protection agency. This is important because a failure to do so is likely a breach of provincial legislation and considered an offence that can result in a fine, imprisonment or both. Notably, the statutory duty to report abuse overrides any duty a local government may have to protect the confidential or privileged information of its clients, employees, agents and volunteers.
Form and Content:
It is good practice for a policy specific to abuse to be in writing and drafted in consultation with legal counsel. It should be clear, concise and provide the requisite direction for all municipal employees, agents and volunteers and include the following:
- the purpose (i.e. the policy statement);
- key definitions (types of abuse and indicators for same);
- governing legislation (criminal; child, youth and family protection; human rights and regulated health professionals legislation);
- abuse reporting procedures;
- abuse reporting protocol;
- investigative and disciplinary proceedings; and,
- signatures by staff/volunteers acknowledging that it has been read and understood.
Takeaway
A standalone abuse policy is a critical risk management tool for local governments in an environment where we are seeing an emergence of abuse claims throughout society. It is recommended that local governments consult with legal counsel when drafting the policy to ensure it meets the requisite criteria as set out in the applicable legislation for their jurisdiction.
For further information or if you have any questions about the above article, please contact the authors: Brett Stephenson, Dolden Toronto, Email: [email protected], Lindsay Nilsson, Dolden Kelowna, Email: [email protected], and H. Kate O’Malley, Dolden Toronto, Email: [email protected].
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