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Local Government Act

[RSBC 2015] CHAPTER 1

Part 18 — Legal Proceedings in Relation to Local Governments and Other Authorities

Division 1 — Legal Proceedings Against Municipality or Regional District

Limitation period for certain actions

735  All actions against a municipality or regional district for the unlawful doing of anything that

(a) is purported to have been done by the municipality or regional district under the powers conferred by an Act, and

(b) might have been lawfully done by the municipality or regional district if acting in the manner established by law

must be commenced within 6 months after the cause of action first arose, or within a further period designated by the council or board in a particular case, but not afterwards.

Notice requirement respecting damages

736  (1) A municipality or regional district is in no case liable for damages unless notice in writing, setting out the time, place and manner in which the damage has been sustained, is delivered to the municipality or regional district, as applicable, within 2 months from the date on which the damage was sustained.

(2) In case of the death of a person injured, failure to give the notice required by this section is not a bar to the maintenance of the action.

(3) Failure to give the notice required by this section or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a) there was reasonable excuse, and

(b) the defendant has not been prejudiced in its defence by the failure or insufficiency.

Proceedings against municipality or regional district in relation to damages caused by others

737  (1) This section applies to a proceeding brought against a municipality or regional district to recover damages sustained by reason of an obstruction, excavation, cellar or opening in or adjoining a street, lane, square, public highway or bridge placed, made, left or maintained by a person other than an employee or agent of the municipality or regional district.

(2) The municipality or regional district, as applicable, has a remedy over against the person referred to in subsection (1), and may enforce payment accordingly of any damages and costs that the plaintiff may recover against the municipality or regional district.

(3) The municipality or regional district is entitled to the remedy over only if

(a) the person referred to in subsection (1) is made a party to the proceeding, and

(b) it is established as against that person that the damages were sustained because of an obstruction, excavation, cellar or opening placed, made, left or maintained by the person added as a defendant or third party.

(4) The person referred to in subsection (1) may defend the proceeding against the plaintiff's claim and the claim of the municipality or regional district.

(5) The court may order costs to be paid by or to any party or on any claim set up as in other cases.

Division 2 — Immunities and Indemnities

Immunity for individual local public officers

738  (1) In this section, "local public officer" means any of the following:

(a) a member of a council;

(b) a director of a regional board;

(c) a trustee of an improvement district;

(d) a commissioner for a local community commission under Division 9 [Local Community Commissions] of Part 6 [Regional Districts: Governance and Procedures];

(e) a member of a commission established under section 263 (1) (f) [regional district commissions] of this Act or section 143 [municipal commissions] of the Community Charter;

(f) a member of a library board under the Library Act;

(g) a member of any greater board or of any board that provides similar services and is incorporated by letters patent;

(h) a member of an advisory planning commission under section 461;

(i) a member of a board of variance under Division 15 [Board of Variance] of Part 14 [Planning and Land Use Management];

(j) a member of the Okanagan-Kootenay Sterile Insect Release Board or an officer or employee of that board;

(k) a member of the Okanagan Basin Water Board;

(l) a trustee of a body of the Islands Trust under the Islands Trust Act;

(m) an officer or employee of a municipality, regional district, improvement district, library board under the Library Act, a greater board referred to in paragraph (g), the trust council under the Islands Trust Act or the Okanagan Basin Water Board;

(n) an election official or a regional voting officer under section 179 [assent voting conducted by more than one local government];

(o) a volunteer firefighter or a special constable;

(p) a volunteer who participates in the delivery of services by a municipality, regional district or a body referred to in paragraphs (c) to (l) under the supervision of an officer or employee of the municipality, regional district or any of those bodies;

(q) a member of a board of trustees established or appointed by a municipality under section 37 [local government operations] of the Cremation, Interment and Funeral Services Act;

(r) a member of a municipal committee, of a regional district board committee or of an improvement district committee under section 689 [appointment of select and standing committees] who is not also a member of the municipal council, regional district board or improvement district board, as applicable.

(2) No action for damages lies or may be instituted against a local public officer or former local public officer

(a) for anything said or done or omitted to be said or done by that person in the performance or intended performance of the person's duty or the exercise of the person's power, or

(b) for any alleged neglect or default in the performance or intended performance of that person's duty or the exercise of that person's power.

(3) Subsection (2) does not provide a defence if

(a) the local public officer has, in relation to the conduct that is the subject matter of the action, been guilty of dishonesty, gross negligence or malicious or wilful misconduct, or

(b) the cause of action is libel or slander.

(4) Subsection (2) does not absolve any of the corporations or bodies referred to in subsection (1) (a) to (l) from vicarious liability arising out of a tort committed by any of the individuals referred to in subsection (1) for which the corporation or body would have been liable had this section not been in force.

Warning as defence for local government financial officer

739  It is a good defence to any action brought against a municipal or regional district financial officer for unlawful expenditure of local government funds if it is proved that the individual gave a written and signed warning to the council or board that, in his or her opinion, the expenditure would be unlawful.

Indemnification against proceedings for local government officials

740  (1) In this section:

"indemnification" means the payment of amounts required or incurred

(a) to defend an action or prosecution brought against a person in connection with the exercise or intended exercise of the person's powers or the performance or intended performance of the person's duties or functions,

(b) to satisfy a judgment, award or penalty imposed in an action or prosecution referred to in paragraph (a), or

(c) in relation to an inquiry under the Public Inquiry Act, or to another proceeding, that involves the administration of the municipality or regional district or the conduct of municipal or regional district business;

"municipal official" means

(a) a current or former council member,

(b) a current or former municipal officer or employee, or

(c) a person who is or was a person referred to in section 738 (1) [immunity for individual municipal local public officers], but only in relation to the exercise of powers or the performance of duties or functions for or on behalf of a municipality;

"regional district official" means

(a) a current or former member of a regional district board,

(b) a current or former officer or employee of a regional district, or

(c) a person who is or was a person referred to in section 738 (1), but only in relation to the exercise of powers or the performance of duties or functions for or on behalf of the regional district.

(2) Indemnification for municipal officials and regional district officials may be provided as follows:

(a) a council may do the following:

(i) by bylaw, provide for the indemnification of municipal officials in accordance with the bylaw;

(ii) by resolution in a specific case, indemnify a municipal official;

(b) a board may do the following:

(i) by bylaw, provide for the indemnification of regional district officials in accordance with the bylaw;

(ii) by resolution in a specific case, indemnify a regional district official.

(3) As a limit on indemnification under subsection (2), a council or board must not pay a fine that is imposed as a result of a municipal official or regional district official, as applicable, being convicted of an offence that is not a strict or absolute liability offence.

(4) Sections 100 [disclosure of conflict] and 101 [restrictions on participation if in conflict] of the Community Charter do not apply to a council member or board member who could be, or would be, indemnified under a bylaw or resolution under subsection (2) of this section.

(5) Subject to subsection (6), a council may not seek indemnity against a municipal official, and a board may not seek indemnity against a regional district official, in respect of any conduct of the person that results in a claim for damages against the municipality or regional district, as applicable.

(6) The restriction under subsection (5) does not apply if the court makes a finding in the action that the person has been guilty of dishonesty, gross negligence or malicious or wilful misconduct.

Indemnification against proceedings for other local public officers

741  (1) Subject to subsection (2), section 740 applies to the following in relation to any person referred to in section 738 (1) [immunity for individual local public officers]:

(a) a greater board;

(b) the Okanagan-Kootenay Sterile Insect Release Board;

(c) the trust council under the Islands Trust Act;

(d) a library board under the Library Act.

(2) Subsection (1) applies only in relation to the exercise of powers or the performance of duties or functions for or on behalf of the applicable corporation.

Immunity in relation to building bylaw enforcement

742  A municipality or a member of its council, a regional district or a member of its board, or an officer or employee of a municipality or regional district, is not liable for any damages or other loss, including economic loss, sustained by any person, or to the property of any person, as a result of neglect or failure, for any reason, to enforce, by the institution of a civil proceeding or a prosecution,

(a) the Provincial building regulations,

(b) a bylaw under Division 1 [Building Regulation] of Part 9 [Regional Districts: Specific Service Powers],

(c) a bylaw under section 8 (3) (l) [fundamental powers — buildings and other structures] of the Community Charter, or

(d) a bylaw under Division 8 [Building Regulation] of Part 3 of the Community Charter.

Immunity in relation to approval of certified building plans

743  (1) If a municipality or regional district issues a building permit for a development that does not comply with the Provincial building regulations or another applicable enactment respecting safety, the municipality or regional district must not be held liable, directly or vicariously, for any damage, loss or expense caused or contributed to by an error, omission or other neglect in relation to its approval of the plans submitted with the application for the building permit if

(a) a person representing himself or herself as a professional engineer or architect registered as such under Provincial legislation certified, as or on behalf of the applicant for the permit, that the plans or the aspects of the plans to which the non-compliance relates complied with the then current Provincial building regulations or other applicable enactment to which the non-compliance relates, and

(b) the municipality or regional district, in issuing the building permit, indicated in writing to the applicant for the permit that it relied on the certification referred to in paragraph (a).

(2) Subsection (1) does not apply if the municipality or regional district knew that the person making the certification referred to in that subsection was not, at the time of certification, registered as a professional engineer or architect under Provincial legislation.

(3) If a municipality or regional district makes an indication in accordance with subsection (1) (b), it must reduce the fee for the building permit to reflect the costs of the work that would otherwise be done by a building inspector to determine whether the plans or the aspects of the plans that were certified to comply do in fact comply with the Provincial building regulations and other applicable enactments respecting safety.

Immunity in relation to certain nuisance actions

744  A municipality, municipal council, regional district, regional district board, improvement district or greater board is not liable in any action based on nuisance or on the rule in the Rylands v. Fletcher case if the damages arise, directly or indirectly, out of the breakdown or malfunction of

(a) a sewer system,

(b) a water or drainage facility or system, or

(c) a dike or a road.

Division 3 — Enforcement of Court Orders Against Municipality or Regional District

Writ of execution against municipality or regional district

745  (1) A writ of execution against a municipality or regional district must not be issued without leave of the Supreme Court, which may

(a) permit its issue at a time and on conditions the court considers proper, or

(b) refuse to permit it to be issued or suspend action under it on terms and conditions the court thinks proper or expedient, having regard to the reputed insolvency of the municipality or regional district and the security afforded to the person entitled to the judgment by the registration of the judgment.

(2) On being satisfied by affidavit by a competent person on behalf of the municipality or regional district that the municipality or regional district intends to appeal with due diligence from the judgment, the court may refuse to permit a writ of execution for costs to be issued unless security is given to the satisfaction of the court by the person to whom the costs are payable for their repayment to the municipality or regional district in the event the judgment is reversed or varied on appeal.

(3) A writ of execution against a municipality may be endorsed with a direction to the sheriff to levy its amount by rate, and the proceedings on it are to be as provided in this Division.

Copy of writ of execution to be left with corporate officer

746  The sheriff must deliver to the corporate officer of the municipality or regional district, as applicable, or leave at the office or dwelling house of that officer,

(a) a copy of the writ of execution and endorsement, and

(b) a statement in writing of the sheriff's fees, and of the amount required to satisfy the execution, including in the amount the interest calculated to a day as near as is convenient to the date of the delivery.

Local government officers as officers of the court for purposes of execution

747  (1) For all purposes connected with carrying into effect, or permitting or assisting the sheriff to carry into effect, the provisions of this Division for executions, the corporate officer, the financial officer and the municipal collector, as applicable, are deemed to be officers of the court in which the writ was issued.

(2) As officers of the court, the officials referred to in subsection (1) are accountable to the court, and may be proceeded against by attachment, or otherwise, to compel them to perform their duties.

Certain local government property exempt from seizure

748  The corporate seal, tools, machinery, equipment and records, office furniture, fixtures and fittings of a municipality or regional district are exempt from forced seizure or sale by any process of law.

Tax to be imposed if amount not paid by municipality

749  (1) If, in relation to a municipality, the amount, with interest on it from the day mentioned in the statement under section 746 [copy of writ to be delivered to corporate officer], is not paid to the sheriff within one month after service under that section, the sheriff must

(a) examine the assessment rolls of the municipality, and

(b) establish a rate sufficient to cover the amount due on the execution, with an addition to it that the sheriff considers sufficient to cover the interest and the sheriff's own fees.

(2) A rate under subsection (1) must be established in the same manner as a rate under section 197 (1) (a) [municipal property value taxes] of the Community Charter.

(3) After establishing the rate, the sheriff must

(a) issue a direction to the collector of the municipality,

(b) attach to the direction either the roll of the rate or particulars of it, and

(c) after stating the writ, stating that the municipality had neglected to satisfy it and referring to the roll or the particulars, direct the collector to promptly levy the rate.

Payment of municipal amount levied

750  (1) If, at the time of levying a rate under a direction of the sheriff, the tax notices for that year have not been issued, the collector must add a column on the notices, headed "Execution Rate in A.B. v. the Corporation", and must insert in it the amount required to be levied under the direction.

(2) If subsection (1) does not apply, the collector must proceed to issue separate tax notices for the execution rate.

(3) The collector must with all due diligence return to the sheriff the direction with the amount levied.

(4) After satisfying the execution and all fees on it, the sheriff must pay any surplus within 10 days after receiving it to the municipal financial officer, for the general purposes of the municipality.

Division 4 — Other Matters

Self-insurance by local authorities

751  (1) In this section, "local authority" means a municipality, a regional district or an improvement district.

(2) A local authority may, with one or more other local authorities,

(a) enter into a scheme of self-insurance protection under section 187 [permit for reciprocal insurance] of the Financial Institutions Act or under the Insurance (Captive Company) Act, or

(b) with the consent of the Superintendent of Financial Institutions, enter into a joint scheme of self-insurance protection.

(3) For a regional district, a scheme under subsection (2) may have a single deductible for any number of services.

Application of this Part in relation to the Nisga'a Final Agreement

752  (1) The Lieutenant Governor in Council may make regulations prescribing the modifications considered necessary or advisable for applying this Part for the purposes of paragraphs 133, 135 and 138 of the Nisga'a Government Chapter of the Nisga'a Final Agreement.

(2) The authority to make regulations under subsection (1) applies to provisions of the Community Charter enacted in substitution for or replacement of provisions of this Part.

Application of this Part to treaty first nations

753  The Lieutenant Governor in Council may make regulations prescribing modifications considered necessary or advisable for applying this Part for the purposes of a final agreement that provides the treaty first nation or its government with some or all of the same protections, immunities, limitations in respect of liability, remedies over and rights provided to a municipality and its council and public officers under this Part.

Contents | Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Schedule | Revision Schedule