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DIVISION 1
CHALLENGING BY-LAWS AND RESOLUTIONS
Application for declaration of invalidity
382(1) A person may make an application to the court for a declaration that a by-law or resolution is invalid on the ground that
(a) the council acted in excess of its jurisdiction;
(b) the council acted in bad faith;
(c) the by-law is discriminatory; or
(d) the council failed to comply with a requirement of this or any other Act or the municipality's procedures by-law.
When by-law is discriminatory
382(2) A by-law is discriminatory if it operates unfairly and unequally between different classes of persons without reasonable justification.
Order
382(3) Upon hearing an application under subsection (1), a judge may make the requested declaration and any other order he or she considers appropriate.
Time limit for action under clause 382(1)(d)
383(1) Subject to subsection (2), an application under clause 382(1)(d) must be filed within one year after the by-law or the resolution is passed.
Validity relating to public participation
383(2) The limitation period in subsection (1) does not apply if the ground for the application is that
(a) the by-law is required to be put to a vote of voters, and the vote has not been conducted or the by-law was not given the required approval in the vote;
(b) notice of an intention to pass the by-law was required but not given; or
(c) a public hearing was required in respect of the by-law but was not held.
S.M. 2005, c. 27, s. 158.
No challenge on certain grounds
384 No by-law, resolution or proceeding of a council and no resolution or proceeding of a council committee may be challenged on the ground that
(a) the by-law is unreasonable or not in the public interest;
(b) a person sitting or voting as a councillor
(i) was not qualified when elected, or
(ii) after being elected, ceased to be qualified or became disqualified;
(c) a person sitting or voting as a member of a council committee
(i) was not qualified when appointed or elected, or
(ii) after being appointed or elected, ceased to be qualified, or became disqualified;
(d) the election of one or more councillors or members of the committee of a local urban district is invalid;
(e) a councillor or a member of the committee of a local urban district has resigned because of disqualification;
(f) a person has been declared disqualified from being a councillor or a member of a committee of a local urban district;
(g) a councillor or a member of a committee of a local urban district does not take the oath of office; or
(h) there was a defect in the appointment of a councillor or other person to a council committee.
DIVISION 2
LIABILITY OF MUNICIPALITIES
Definitions
385 In this Division,
"building standard" means
(a) a building construction standard adopted, established, prescribed or varied under The Buildings and Mobile Homes Act, and
(b) a standard adopted, established, prescribed or varied under a regulation under The Fires Prevention and Emergency Response Act; (« norme de construction »)
"inspection" means an examination, review, survey or other action permitted or required to enforce a building standard; (« inspection »)
"public facility" means a place that is subject to the direction, control and management of a municipality, and includes playgrounds, arenas, swimming pools, recreation centres, offices and libraries operated by a municipality; (« installations collectives »)
"public work" means any work that is constructed or maintained by a municipality for a municipal purpose, but does not include a public facility. (« ouvrage public »)
S.M. 1998, c. 33, s. 37; S.M. 2002, c. 26, s. 22.
MUNICIPAL ROADS
No liability unless municipal road
386(1) A municipality is not liable for loss or damage sustained in respect of a road in the municipality unless the road is a municipal road.
Liability for municipal roads
386(2) A municipality is not liable for loss or damage in respect of a municipal road
(a) for failing to construct or maintain the road beyond the standard required under section 294 and subsection 295(2);
(b) caused by installing, failing to install, or the choice of a wall, fence, guardrail, railing, curb, pavement marking, traffic control device, illumination device or barrier adjacent to or in, along or on the road, except where the loss is caused by the municipality's failing to replace or repair a guardrail, railing, traffic control device, illumination device or barrier adjacent to, or in, along or on, the road and the municipality
(i) knew or ought to have known of the state of disrepair, and
(ii) failed to take reasonable steps to correct the state of disrepair within a reasonable period of time;
(c) caused by
(i) any construction, obstruction or erection, or
(ii) the situation, arrangement or disposition of any earth, rock, tree or other material or thing,
adjacent to or in, along or on the portion of the road that is not designed for vehicle use; or
(d) caused by rain, hail, snow, ice, sleet or slush on the road or on a sidewalk adjacent to or along the road, unless the municipality is grossly negligent.
Liability for location of municipal road
386(3) Where a municipality in good faith constructs a municipal road, but the road is located other than according to the plan for the road, the municipality is liable to the owner of the land on which the road was constructed only to the same extent as if that land had been expropriated.
BUILDING INSPECTIONS
Requests for inspections
387(1) A municipality is not liable for a loss related to
(a) the manner or extent of an inspection; or
(b) the frequency, infrequency or absence of inspection;
unless the inspection was requested at the appropriate stage of construction and with reasonable advance notice before the inspection was required, and the municipality failed to conduct the inspection or conducted it in a negligent manner.
Negligent inspections
387(2) An inspection is conducted in a negligent manner only if it fails to disclose a defect or deficiency that
(a) could be reasonably expected to be detected; and
(b) falls within the scope of the inspection being conducted.
Certification by professionals
387(3) For the purpose of an inspection, a municipality may rely on a certification or representation by an engineer, architect, surveyor or other person with expertise respecting the thing being certified or represented, and a municipality that relies on such a certification or representation is not liable for any loss or damage caused by the negligence of the engineer, architect, surveyor or other person in making the certification or representation.
Matters outside scope of inspection
387(4) An inspection by a municipality to enforce a building standard does not create or impose a duty on the municipality with respect to any matter not being inspected.
Failure to comply with conditions
387(5) If conditions are imposed by the municipality in respect of or in the course of an inspection, the municipality is not liable to any person for loss or damage as a result of the conditions not being complied with, unless the municipality
(a) knew of the failure to comply with the conditions;
(b) had the power to order that the conditions be complied with; and
(c) failed to order compliance.
Failure to prevent or limit loss
387(6) A municipality is not liable for loss or damage resulting from an inspection or a failure to inspect if the person claiming the loss knew or ought to have known of the thing or matter that caused the loss and failed to take reasonable steps to limit or prevent the loss.
Inspection not a guarantee
387(7) An inspection or a system of inspections by a municipality is not a representation, guarantee, warranty or insurance of the quality or standard of construction of, or of any other thing respecting, the property, building, utility, structure or other thing inspected.
OTHER MATTERS
388(1) Repealed, S.M. 1998, c. 33, s. 38.
Limited liability for public facility
388(2) A municipality is not liable for failing to maintain a public facility in a reasonable state of repair unless the municipality knew or ought to have known of the state of disrepair and failed to take steps to rectify the state of disrepair within a reasonable period of time.
S.M. 1998, c. 33, s. 38.
Limited liability for utilities or services
389 Where a municipality operates a utility or provides a service, it is not liable for loss or damage as a result of
(a) the breaking of a pipe, service line, conduit, pole, wire, cable or other part of the utility or service; or
(b) the discontinuance or interruption of a service or connection;
by reason of
(c) accident;
(d) disconnection for non-payment or non-compliance with a term or condition of service; or
(e) necessity to repair or replace a part of the utility or service.
Limited liability for water overflow
390 Where an overflow of water from a sewer, drain, ditch or watercourse is a consequence of excessive snow, ice or rain, a municipality is not liable for a loss as a result of the overflow.
Limitation on standard of care for protective fire services
391 For the purpose of determining the standard of care of a municipality in an action or proceeding relating to the provision by the municipality of a protective fire service, the court shall consider all relevant factors that might reasonably have affected the ability of the municipality to provide the fire protection services, including, but not limited to,
(a) the population density of the municipality;
(b) geographic limitations to the provision of the service;
(c) whether the service provided is volunteer or partly volunteer;
(d) the amount of the total municipal assessment against which taxes may be imposed; and
(e) any other criteria specified by the minister by regulation.
Exercise of discretion
392 A municipality that has the discretion to do something is not liable for deciding in good faith not to do that thing or for not doing it.
Liability for remedying contravention of by-law
393 A municipality is not liable for loss or damage caused by it in remedying, or attempting to remedy, a contravention of a by-law, unless the municipality is grossly negligent.
No liability for negligent supervision by others
394 Where a municipality entrusts the construction of a public work or a public facility to the supervision of an engineer, architect, surveyor or other person with relevant expertise to supervise the construction, the municipality is not liable for loss or damage arising from any negligence on the part of the supervisor.
No liability for certain nuisances
395 A municipality is not liable for a nuisance as a result of
(a) the construction, operation or maintenance of a system or facility for collection, conveyance, treatment or disposal of sewage or storm water, or both sewage and storm water, unless the municipality is negligent; or
(b) the construction or operation of a public work, regardless of whether the authority to construct or operate the work is mandatory or permissive, unless the nuisance could have been prevented by another practicable method of constructing or operating the public work.
Notice requirement
396(1) To claim against a municipality for loss or damage as a result of the municipality's failure to maintain a municipal road or a public facility, the claimant must, in writing, notify the chief administrative officer of the municipality of the event on which the claim is based within three days after the event.
Limitation of actions
396(2) Failure to notify the municipality within the time required by subsection (1) bars the action unless
(a) the claimant has a reasonable excuse for the lack of notice and the municipality is not prejudiced by the lack of notice;
(b) the claim relates to the death of a person as the result of the event complained of; or
(c) the municipality waives the notice requirement.
DIVISION 3
JUDGMENTS AGAINST MUNICIPALITIES
Service of judgment
397(1) A judgment creditor may serve a judgment issued against a municipality by serving it on the chief administrative officer of the municipality, who must bring the judgment to the attention of the council at the next council meeting.
Payment by municipality
397(2) A municipality must pay money owing by it to a judgment creditor from its surplus funds or a reserve fund that is not designated for a special purpose.
Borrowing to pay judgment
397(3) If there is not sufficient money in a surplus or reserve fund to satisfy a judgment, the municipality must
(a) borrow sufficient money to pay the balance of the money owing; and
(b) subject to subsection (4), in its annual tax by-laws for the next year and later years, levy an additional tax sufficient to repay the amount borrowed.
Amount of tax
397(4) A tax levied under clause (3)(b) must not exceed, in any one year, the greater of
(a) a rate of two mills on the portioned assessment of all taxable property in the municipality; and
(b) the minimum amount necessary to pay the interest and principal of the borrowing over the longest term for which the loan could be obtained.
Failure to pay judgment
398 Where a municipality fails, in whole or in part, to satisfy a judgment owed by it, the minister may do one or both of the following:
(a) request the Minister of Finance to pay the amount owing on the judgment to the judgment creditor and deduct the amount of the payment from any amount of money payable to the municipality by the government, including money payable under an agreement or an Act of the Legislature;
(b) request the Lieutenant Governor in Council to appoint a supervisor, administrator, or receiver under Division 6 (Municipalities in Financial Difficulties) of Part 6.
Effect of deduction
399 An amount of money paid to a judgment creditor and deducted by the Minister of Finance from money payable to the municipality by the government is deemed to have been paid to the municipality.
Liens against municipal property
400(1) A judgment creditor of a municipality does not have and never had a lien or charge on land or personal property of the municipality unless the lien was created as a specific charge on the land or property.
Registration of judgment
400(2) The registration of a certificate of judgment against a municipality in a land titles office, or any other place, for the purpose of collecting the judgment is void unless the judgment was made under a security agreement specifically charging the land or property.
Prohibition of execution against municipality
401 No execution, attachment or process of a similar nature shall be issued out of any court to enforce payment of money by a municipality under a judgment.
DIVISION 4
INDEMNIFICATION OF MEMBERS OF COUNCIL, MUNICIPAL EMPLOYEES, AND VOLUNTEERS
Definitions
402 In this Division,
"costs" means any costs, charges, fees and expenses, reasonably incurred in respect of a civil, criminal, or administrative action or proceeding, including an amount paid to settle an action or satisfy a judgment; (« frais »)
"municipal officer" means
(a) the chief administrative officer,
(b) a designated officer, and
(c) any other employee of the municipality; (« fonctionnaire municipal »)
"volunteer worker" means a voluntary member of a fire or ambulance service or local emergency response control group established by a municipality, or any other volunteer performing duties authorized by a municipality. (« travailleur bénévole »)
Protection from liability
403(1) A member of a council or council committee, or a municipal officer or volunteer worker is not liable for any loss or damage suffered by a person by reason of anything said or done or omitted to be done by the member, officer or volunteer worker in good faith in the performance or intended performance of powers, duties or functions under this or any other Act.
No protection re defamation
403(2) Subsection (1) is not a defence to an action in defamation.
No protection re municipality
403(3) Subsection (1) does not relieve a municipality of liability to which it would otherwise be subject in respect of the actions of the persons referred to in subsection (1).
Indemnification on successful defence
404(1) Subject to subsection (3), a municipality must indemnify a current or former member of a council or council committee, or a municipal officer or volunteer worker, or the heirs and legal representatives of such a person, for reasonable costs incurred in a civil, criminal or administrative action or proceeding commenced as a result of anything said or done or omitted to be done in the performance or intended performance of their functions, duties or powers if the person was substantially successful on the merits of the defence of the action or proceedings.
Discretion to indemnify
404(2) Subject to subsection (3), the municipality may indemnify a current or former member of a council or council committee, or a municipal officer or volunteer worker, or the heirs and legal representatives of such a person, in whole or in part, for reasonable costs incurred in a civil, criminal or administrative action or proceeding commenced as a result of anything said or done or omitted to be done in the performance or intended performance of their functions, duties or powers if
(a) the person acted in good faith; and
(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the person had reasonable grounds for believing the conduct in question was lawful.
Costs incurred under Conflict of Interest Act
404(3) A municipality may indemnify a current or former member of a council or council committee, a municipal officer or volunteer worker, or the heirs and legal representatives of such a person, in whole or in part, for costs incurred in defending an application by or on behalf of the municipality under The Municipal Council Conflict of Interest Act only if the person, on making an application to the court, satisfies the court that he or she acted in good faith.
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