February 28, 2023
Newsletter – February 2023
“Municipal Law Special”
This special edition of our newsletter focusses on common municipal law issues, which will be of interest for municipalities and their insurers. As well, we include some practical “takeaways” that will help professionals working with municipalities navigate through these common issues.
Municipal Environmental Liability
By Jonathan Weisman, Dolden Wallace Folick Vancouver, Email: [email protected]
Environmental liability is a growing concern in all sectors, and municipalities are no exception. Municipalities are generally liable like any other landowner to contribute to the costs of remediation. Though environmental statutes provide some protections from liability, even these exceptions leave municipalities with significant exposure to both remediation orders and private suits for contribution. Moreover, there is an increasing risk of private suits with broader environmental claims, and these, too, pose a risk for local governments. A number of recent cases emphasize these risks.
Once contamination is discovered, the response must not be delayed, as the case of Bloom v. London Transit Commission shows. In 1973, the City of London received lands from an auto part manufacturer and transferred them to the Commission responsible for public transit. In 2011, a neighbouring landowner notified the Commission that the neighbour’s lands were contaminated. From 2012 to 2014, the neighbour provided the Commission with reports that identified the manufacturer’s work as a potential source of the contamination. Despite requests, the Commission refused to investigate and denied the neighbour access for its own investigation until the Ministry of the Environment intervened.
The Commission began testing its property in December, 2014. In March, 2016, after learning that the manufacturer had operated a sludge pit on the lands, the Commission filed a third party claim against the manufacturer, seeking contribution and indemnity but not specifically claiming contribution under s.99 of the EPA.
The manufacturer sought to dismiss the Commission’s claim as limitation-barred. The Court agreed, comparing the Commission unfavorably to a co-defendant who had promptly begun investigations on receipt of the neighbour’s reports. The Commission had buried its head in the sand, and although it had some arguments on appeal which offered a second chance, its apathetic conduct doubtless helped persuade the Court of Appeal not to exercise judicial discretion in its favour.
Notice of potential contamination should be diligently handled. It is often wise to let investigations proceed where there is some risk of exposure, even by others but perhaps under observation by one’s own professionals’.
Private suits based on broader allegations of environmental rights have been launched in several jurisdictions. La Rose et al. v. HMK, a lawsuit filed against the Federal Government in 2019, sought to compel the government to develop and implement a new plan to combat climate change on the grounds that the failure to do so violated Charter rights. The suit was dismissed in 2020 on the grounds that the impugned laws, policies, and conduct were too broadly-defined to be judged against Charter rights. The dismissal is under appeal.
In the United States, statutes like the Clean Water Act establish private actions against governments. This past year, the City of Alexandria, Virginia, was sued under that Act by an environmental NGO, demanding remediation of a riverway.
Although no comparable statutory action is available under Canadian law, a similarly-focused claim could target government actions closely enough to survive the obstacle presented in La Rose. Municipal affairs represent a precise enough target to make such an approach effective, and such claims therefore pose an impending risk in Canada. Bylaws, policies, and regulation which do not appropriately balance environmental concerns therefore represent a future source of exposure.
Speedy response is essential. On learning of potential contamination, a municipality should not leave matters to others – prompt engagement with the problem is critical to managing potential liability.
The emerging area of environmental rights should encourage municipalities to ensure that environmental issues factor closely into municipal decision-making.
On both fronts, the same imperative emerges – the time to do so is now.
Can a Municipality Avoid Liability by Delegating Responsibility for Maintenance of Sidewalks to Residents and Businesses?
By Amelia Staunton, Dolden Wallace Folick Vancouver, Email: [email protected];
and Lindsay Nilsson, Dolden Wallace Folick Kelowna, Email: [email protected];
and Lauren Shenkar, Dolden Wallace Folick Vancouver, Email: [email protected]
Recent winter storms in the Western provinces, and the resulting accumulation of snow and ice on sidewalks, illustrate the difficulty municipalities may have in ensuring that sidewalks are safe for pedestrians. Put simply, there are insufficient resources in many municipalities to ensure that all sidewalks are cleared of the hazards of ice and snow, or once cleared, remain so for the duration of a storm. So who is legally liable for injuries that arise on municipal sidewalks as a result of the accumulation of snow and ice?
Recent cases in BC have confirmed that a municipality cannot avoid liability by creating bylaws requiring residents and business to maintain municipal sidewalks. Certainly, municipal bylaws can require that residents and businesses perform this work, and there may well be fines levied against those who fail to comply, but a municipal bylaw does not create a duty of care to users of the sidewalk; the duty of care remains with the municipality. This is because the proximity of the relationship between a property owner and a pedestrian is not close enough to fairly impose a duty of care on the landowner or occupant. A property owner is also not considered an occupier merely because they complied with a municipal bylaw and cleared the sidewalk of snow and ice.
However, there have been instances where landowners, and particularly commercial property owners, have been found to be liable as an occupier based on their taking control of the sidewalk8 or where they have created unreasonable risks. One example of such behavior is where a defendant hotel was found liable in negligence after placing planters on a public sidewalk which diverted pedestrians towards a known danger on another part of the sidewalk.
Thus, liability for maintenance of sidewalks cannot be ‘offloaded’ to residents and businesses by way of bylaw; legal responsibility for maintaining sidewalks remains with the municipality. Municipalities can take advantage of the unique defences available to them in cases where a sidewalk user is injured as a result of the presence of snow and ice. At an executive level, municipalities should consider (and properly document) what fiscal budget they can reasonably allocate to the removal of ice and snow, given their available resources. If resources are allocated to snow and ice removal based on these considerations, and an injury arises as a result of insufficient resources – such as a failure to clear a sidewalk as a result of available personnel attending to a higher priority roadway – then a municipality has a strong defence to a personal injury claim.
However, if the injury arose as a result of implementing a policy decision – such as the failure to create an access point from shovelled parking spaces to the sidewalk, which requires a pedestrian to climb over a snow bank – then the municipality’s decision is open to judicial scrutiny. In these cases, an ordinary negligence analysis will apply, and a municipality may be liable for any breach of the standard of care.
Johnson v. Lewin, 2018 ONSC 850: A Recipe for Disaster – Forgetting Your Aprons Could Lead to Liability
By Charles Painter, Dolden Wallace Folick Toronto, Email: [email protected]
One of the ways that Plaintiff’s counsel attempt to cook up a dish of liability against municipalities in Ontario, is to advance a claim alleging improper maintenance of the apron. The apron typically lies between the road and sidewalk:
The apron falls within the limits of the highway and the s.44(1) Municipal Act, 2001 duty to maintain thus applies. Accordingly, there can be liability if the apron falls into a “state of disrepair” and that state of disrepair is proven to have been a cause of the Plaintiff’s injury. As in the case of pedestrians crossing a road-mid block, the legal issue is one of confirming the “character” of the specific location, and determining whether a maintenance standard beyond that for vehicular traffic is required.
The apron is not an area that municipalities in Ontario typically include within their winter maintenance program. They tend not to consider them part of the sidewalk network, as it’s not normally an area where they expect pedestrians to routinely walk, and therefore many municipalities simply ignore these portions of the highway altogether. Many may expect that the abutting property owner will plow and salt the apron as part of maintaining their own driveway. Some may seek to rely upon a local bylaw that may require property owners to clear their aprons.
The law however is that the reliance upon the abutting owner is tenuous at best in most circumstances. A municipality cannot bylaw its way out of a Provincially imposed statutory duty. At best, at trial it can seek to rely on the activities of the adjacent owner to comply with the bylaw as part of its own defence. Arguments that the abutting owner themselves is an “occupier” and owes a duty to maintain the apron, are not always available and depend largely upon the degree to which they treated the area as “theirs.” Many have avoided liability due to evidence they did not consider the area as their own and apart from driving over it to get to their house, did little if any maintenance.
In Ontario there have only been a handful of cases that address claims involving slips/trips and falls on aprons. In Gribowski v. Singh, 2013 ONSC 744 (CanLII), the Court noted that (at that time) there were no Canadian cases deciding liability in respect of a failure to maintain a private driveway apron. The municipal expert provided evidence that they did not know of any municipality that provides winter maintenance to the aprons of private driveways within a municipal road allowance. The evidence from the municipal defendant was that including aprons in winter maintenance would increase the City’s annual expense five-fold. The summary judgment motion of the private homeowners was dismissed and the matter remitted to trial. It appears the case later settled as there is no reported trial decision.
In Bondy v. London (City), 2013 O.J. No. 1281 (S.C.J.), aff’d [2014 O.J. No. 1791 (C.A.) the plaintiff sued the municipality and the adjacent owner when she suffered a slip and fall on a driveway apron, following a freezing rainstorm,. The Court of Appeal upheld the dismissal of the action against the City stating:
“All parties acknowledge that the boulevard is a highway, within the meaning of the Municipal Act. Therefore, the highest standard to which the area needs to be maintained by anyone is as a highway for vehicles, not as a passageway for pedestrian traffic, subject to any special circumstances. The appellant submits that because from time to time people will cross the road in the middle between intersections that that creates a special circumstance that elevates the standard of maintenance. We do not agree. This is a common situation. The fact that people may cross at undesignated places on a road does not create or impose on the Municipality a higher level of maintenance obligation. We would dismiss the appeal as against the City.” As can be seen, the law is such that “special circumstances” are necessary to raise the standard of care to one of pedestrian traffic. “
In Johnson v. Lewin, 2018 ONSC 850, counsel for the Plaintiff succeeded in arguing that the municipality could be held liable for failing to maintain an apron. The Court distinguished Bondy, and held that there were such special circumstances to elevate the standard of care required for the apron in question to that of one for pedestrian travel. Such circumstances included: (i) its close proximity to shopping and schools, (ii) parking on only one side of the street and a sidewalk only on the opposite side – necessitating pedestrians to cross the road to get to the sidewalk via the aprons on the street, and (iii) a waste collection bylaw that required homeowners to place their receptacles as close to the curb as possible. It bears noting that the municipality did not maintain sidewalks in the area at all, relying upon its snow/ice clearing bylaw.
Aprons are part of the highway and should not be ignored. There are likely thousands of similar roads with similar aprons in subdivisions within Ontario, all of which would arguably, according to the analysis in Johnson, require winter maintenance. The risk this raises for municipalities is significant. The character and location of a highway however remains the underlying legal test as to what standard of maintenance applies, and therefore as will other portions of the highway municipalities should consider that when deciding what, if any, maintenance is required.
Wait! How Long Until a Building Permit Claim is Statute Barred?
By Jordan Cutler, Dolden Wallace Folick Toronto, Email: [email protected]
With the enactment of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Act”), an ultimate limitation period, found at s. 15, was created (the “Ultimate Limitation Period”). Briefly, it states that, subject to prescribed exceptions, no proceeding is to be commenced “in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.” The plain language of s. 15(4)(b) of the Act provides that this Ultimate Limitation Period does not run while the plaintiff is a minor and not represented by a litigation guardian. While the purpose of the Act’s minor provision appears to be to prevent a plaintiff from losing a right of action because he/she is under the age of 18, what happens when the Ultimate Limitation Period expires before the plaintiff can discover the claim? For example, what happens in the following circumstances:
- 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”).
For the following reasons, a plain reading of s. 15(4) of the Act would result in a finding that the Action is not statute barred by operation of the Ultimate Limitation Period and that, in fact, the Plaintiff has until January 1, 2037 (33 years from the Act coming into force and 52 years from the Municipality’s Negligence) to commence a claim as against the Municipality for injury, loss or damage that occurred as a result of the Municipality’s Negligence:
- prior to the Act coming into force, there was no ultimate limitation period within which claims needed to be brought against a municipality for its negligent inspection of construction authorized by a building permit and so, pursuant to s. 24(1)(4) of the Act, the Ultimate Limitation Period in relation to the Municipality’s Negligence should begin to run on January 1, 2004, the date on which the Act came into force;
- between January 1, 2004 and December 31, 2021, the plaintiff was a minor; and
- prior to purchasing the Property on January 1, 2004, it was impossible for the plaintiff to have discovered the claim.
It is the writer’s view that there is no principled basis for s. 15(4)(b) suspending the Ultimate Limitation Period in the above-referenced scenario and it is contrary to the balance between a plaintiff’s and defendant’s rights, which is the limitation scheme’s fundamental aim. We shall see what the Court has to say. Until then, when trying to decide if a building permit claim is statute barred, do not forget to factor into your analysis the age of the plaintiff!
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