Abbotsford (City) v Shantz, 2015 BCSC 1909 (“Shantz”)

Introduction

On October 21, 2015, The British Columbia Supreme Court released the decision Abbotsford (City) v Shantz, 2015 BCSC 1909 (“Shantz”). The litigation dealt with the question of whether the City’s attempts to regulate the use of public parks was constitutional in relation to how it led to treatment of the homeless population.

The Supreme Court found that Abbotsford’s Public Park bylaws were unconstitutional, but only to the extent that they did not allow homeless individuals to erect temporary shelters in public parks from the hours of 7:00 p.m. to 9:00 a.m. The reason for the finding of unconstitutionality was based on the fact that a lack of overnight shelter had a significant negative impact, established by expert evidence, on the health of homeless individuals. Another important factor was that the City of Abbotsford had shortage of affordable housing options and shelter beds.

This recent decision does not impact the current state of the law in a significant way, as the conclusion reached was similar to a case decided by the British Columbia Court of Appeal in 2008 called Victoria (City) v Adams (“Adams”). However, many of the comments made by the judge in Shantz shed light on how the courts view bylaw regulation of public places. The judge touched on not only the content of the bylaws, but also on their enforcement. Keeping these comments in mind will help local governments draft bylaws related to public spaces which will not be vulnerable to constitutional challenges, which are expensive and protracted legal disputes.

The Law before Shantz

The first case dealing squarely with the intersection of public space bylaw regulation and homelessness was Adams. The legal dispute arose after 70 homeless individuals set up a “tent city” in a Victoria public park. The City of Victoria applied for an injunction to remove the tent city arguing breach of their bylaws, and in response the constitutionality of those bylaws was challenged.

It was legal for the homeless to sleep in the parks at night, but putting up temporary overhead shelters in the form of tents, tarps or cardboard boxes was prohibited by the City’s parks and streets bylaws. It was argued that this action by the local government deprived the homeless of “life, liberty and security of the person”, which is a protected constitutional right.

Various factual circumstances were critical to the Court finding that the bylaw was unconstitutional. Evidence was led at trial establishing that there was over 1,000 homeless people in Victoria but only 104 shelter beds in normal conditions and 326 in extreme conditions. Expert evidence was led which showed that exposure to elements without adequate overhead protection from the elements created significant health risks.

The Court of Appeal was careful to limit the scope of their decision. They made sure to point out that there was no positive obligation on local governments to ensure an adequate number of shelter beds. Additionally, they were not making a declaration that there is a “free standing right” to build a shelter in a public park.

Between Adams and Shantz, there have been other cases in British Columbia dealing with similar issues. In Johnston v Victoria (City), 2011 BCCA 400, the Court of Appeal rejected the argument that it was unconstitutional to prohibit shelters during daytime hours. Vancouver Board of Parks and Recreation v Williams, 2014 BCSC 1926, was an application by the City for an injunction involving a group of individuals who took up shelter in Oppenheimer Park . The case is important for local governments, as the court commented that the government has the responsibility to show that enforcement of parks bylaws will not translate to ousting homeless people onto the streets with the effect of placing them in further danger. The court did grant the injunction, but included obligations on the City to ensure that there was an orderly transition from the Park to shelter beds. In that case, there were already enough shelter beds available for the number of homeless involved.

Summary of Shantz

In 2013, the City of Abbotsford applied for a temporary injunction trying to stop a group of homeless individuals from occupying a public park with tents and other structures, along with occupying a large wooden structure in an adjacent parking lot. This temporary injunction was granted, and in 2015 the City sought a permanent injunction to replace it. In response, the British Columbia and Yukon Association of Drug Survivors (“DWS”), on behalf of the homeless group, challenged the constitutionality of the City’s parks and streets bylaws. One of the main bylaw provisions at issue prohibited sleeping or being present in any park overnight and erecting any form of shelter without a permit. Permits for overnight camping were available on a discretionary basis, but cost $10/night per vehicle or tent, and required a valid credit card and that the applicant obtain insurance.

The factual background surrounding the dispute is important. In June 2013, City employees were found to have made efforts to evict individuals from a separate camp located on Gladys Avenue. The Court found they did this by spreading chicken manure on the campsite. In protest, a group of homeless set up another camp in Jubilee Park without the permission of the City. They were ordered to vacate this camp after the City was granted an injunction in 2013. After that, some of the homeless erected tents along the west side of Gladys Avenue. Their presence along the road was tolerated by the City and their staff while the constitutional challenge was pending.

Abbotsford has a relatively high level of “chronically homeless” individuals, defined as those who have been without a home for more than one year. The available shelter space in the City is not sufficient for the number of homeless in the city, and there is a general shortage of affordable housing.

There was also evidence that conditions in the various camps set up by the homeless contained unsafe conditions. It was common to find drug paraphernalia littered on the ground along with other waste. Assaults and fires were reported, and some weapons were found.

The City’s bylaw enforcement policy was to remove those occupying parks after receiving calls or complaints from the public. They would generally do this by issuing verbal and written notices to vacate and began with seeking voluntary compliance. They would also take measures to ensure homeless were not “squatting” on private property. There were anecdotes about the actions of City officials, including cutting the straps holding up a tent, spraying pepper spray into empty tents, cutting open a tent to see if anyone was inside, and of course the spreading of chicken manure to induce the homeless to leave the original camp. DWS sought damages in relation to these anecdotes, based on government officials breaching the Charter by abusing their powers.

The Court made a number of findings. The expert evidence established that continual displacement of Abbotsford’s homeless caused them impaired sleep and psychological pain and stress which created a risk to their health. While the judge recognized that the sustainable use of publicly owned property required the local government to create some constraints, the effect on the homeless of prohibiting temporary shelters overnight without a permit was “grossly disproportionate” to any benefit to the City or the rest of the public and so was unconstitutional. The Court found that it was also “overbroad” in relation to what the City was trying to achieve. This conclusion was almost exactly the same as what was decided by the Court in Adams.

Ultimately, the judge concluded that the best balance between the needs of the homeless and those of the City was to allow temporary shelters to be set up from the times of 7:00pm to 9:00am, to be taken down during the day. One of the factors for not allowing the camp to remain during the day was the dangerous conditions created by having a permanently established camp.

One thing the judge strongly considered ordering was that specific park land be designated for use by the homeless as it would provide some certainty for them and residents of the City, taking into account proximity of public parks to services for the homeless. However, this was not ordered as the judge felt that such a decision should be left to politicians to make and not the courts.

The judge declined to order damages for the alleged misconduct of City officials in enforcing the bylaws. However, the main reason for this was because there was a lack of evidence at trial showing that their actions harmed any particular individual, which is required for Charter damages. The judge was, however, highly critical of their actions and suggested that the individuals affected were still open to undertake separate legal action. In response to the spreading of chicken manure, the judge commented that it was “disgraceful and worthy of the Court’s disapproval.”

Implications for Local Governments

The only clear obligation that Adams and Shantz imposes on local governments is that when there is not enough shelter beds for the homeless population, it is unconstitutional to pass a bylaw prohibiting temporary shelters to be put up at night. 

In a more general sense, the Courts in British Columbia do recognize the need for local governments to regulate the use of their public spaces for the benefit of all groups. In drafting bylaws, the most important thing to consider is whether the effect of regulation will be the displacement of homeless or will have a negative impact on their health. Often, streets and parks bylaws will have this effect but are also necessary to the safe use and enjoyment of the public space by the general public. Regulations falling under this category are allowed only to the extent that they impair the right to “life, liberty and security of the person” of the affected homeless group as little as practically possible. This extends not only to the drafting of the bylaw, but also to its enforcement.

On the topic of minimal impairment, an interesting aspect of the Shantz decision was that the enforcement practices of other cities were compared to Abbotsford’s enforcement measures. Some cities ticketed and fined homeless groups without first seeking voluntary compliance, which was viewed as being more impairing. However, just because Abbotsford’s enforcement measures were less impairing on the rights of the homeless than other cities did not mean these measures were minimally impairing. It is important that measures adopted which will affect the health and safety of the homeless have the least impact necessary to achieve an important public purpose.

While the Courts are hesitant to impose positive obligations on local governments to deal with the complex issue of homelessness, they do expect that local governments will consider the impact that their actions will have on this group. In both Adams and Shantz, the argument that homelessness is a “choice” was rejected. Actions to displace homeless groups are likely to be met with criticism when those individuals have no safer place to go.

The Province of BC announced plans for the regulation of the sale and use of non-medical cannabis today.

As expected retail cannabis sales will occur along the same lines as liquor sales, with the Province’s Liquor Distribution Branch serving as the sole source of wholesale distribution. Just as with liquor, there will be government-operated as well as private retail stores. Co-selling with other products (i.e. liquor, tobacco, food) will not be permitted. Sale by ‘craft’ or micro producers will be prohibited, at least for now.

Importantly for local governments, the Provincial licensing regime will begin taking applications this spring, ahead of the scheduled legalization in July, and the first licensed retailers are expected to open their doors in late summer. The licensing regime will not usurp the ability of local governments to control cannabis retail in their communities. For example, the Province will defer to local governments that wish to ban retail sales entirely (as the City of Richmond has expressed). In addition, local governments will retain the ability to restrict the locations where retailers may operate. There is also some indication that to obtain a licence, the applicant will require the support of the local government.

Also of note to local governments, cannabis use will be permitted in those areas where tobacco and vaping are permitted, although it will be banned in public places frequented by children, including parks, community beaches and playgrounds. Local governments will have the right to further restrict the use of cannabis in public. Personal cultivation will be permitted for up to four plants per household, with the caveat that plants must not be visible from public spaces. Landlords will be able to restrict or prohibit production on their property.

The Province stressed that many important policy decisions remain to be made, in particular in the areas of supply chain tracking, testing, and packaging.

Here is a summary of the Province’s plans announced today:

Retail Framework

• Private run and government-operated retail stores, and government online sales
• Liquor Control and Licensing Branch will be responsible for licensing stores and monitoring the retail sector
• Operating rules to be similar to liquor sales
• Wholesale distribution by the Liquor Distribution Branch
• Cannabis and accessories must be sold in stand-alone stores. No co-selling of cannabis with either liquor or tobacco (or food, gas, lottery, clothing) *except in rural communities, with details to be determined (will likely be similar to liquor stores, where co-selling exists)
• Early registration process for licenses will be open this spring (*see additional detail below)
• Consumption lounges will not be permitted, at least initially
• No sampling

Personal Public Possession

• 19 years minimum age for purchase and possession
• Up to 30 grams of non-medical cannabis permitted for possession in a public space
• Cannabis transported in a vehicle will need to be in a sealed package or inaccessible to vehicle occupants

Public Use

• Use permitted in public spaces where tobacco and vaping are permitted
• Use banned in areas frequented by children (parks, community beaches, playgrounds)
• Use banned in vehicles, for all occupants
• Local Governments will be able to set additional restrictions, as they do now for tobacco use
• Landlords and strata councils will be able to restrict or prohibit non-medical cannabis smoking and vaping at tenanted or strata properties

Personal Cultivation

• Up to four plants per household, unless home is used as a daycare cultivation will be prohibited
• Must not be visible from public spaces
• Landlords and strata councils will be able to restrict or prohibit home cultivation

Drug-impaired Driving

• Drug Impaired driving continues to be illegal in B.C.
• New 90-day administrative driving prohibition to be created
• Zero-tolerance for drivers in the Graduated Licensing Program

Retail Licensing

• Existing dispensaries will not be given preferential treatment
• Local government support an element of the application process
• Local government to consider public input in the location of the proposed retail store
• Province will not cap the number of licences, however, local governments to decide how many retailers may operate within their boundaries
• Dried cannabis, oils, and seed permitted – no edibles, per federal requirements
• Stores in rural communities to follow somewhat different model (i.e. regarding co-selling with other products)

Watch Mike Farnworth’s announcement here or see the following provincial government links for more information:

• Cannabis Retail, Driving Laws Amongst New Firm-On-Safety Policy Decisions
• B.C. Cannabis Private Retail Licensing Guide – Applications and Operations

Klonteig v. West Kelowna (District), 2018 BCSC 124

Introduction

The British Columbia Supreme Court recently released a decision confirming that local governments should proceed with caution when considering whether to fire an employee for off-duty conduct – in this case, driving under the influence in the employer’s truck. Only when such conduct can be shown to prejudice the local government’s reputation or interests is dismissal justified.

The challenge remains in determining whether a particular incident of misconduct crosses that threshold.

Factual Background

The plaintiff, Mr. Klonteig, was an Assistant Fire Chief for the District of West Kelowna. By all accounts, he was an exemplary employee with a bright future with the District’s Fire Department. He had the respect of his co-workers, including his superiors and the unionized firefighters with whom he interacted in the context of labour negotiations and human relations.

Mr. Klonteig was a 5-year veteran of the District’s Fire Department in October 2013 when the incident that ended his employment occurred. Mr. Klonteig had been out with his spouse in Kelowna one evening. On his way home in the early morning hours, he was pulled over and failed a breathalyzer test twice. He was handed a 90-day administrative driving prohibition. To make matters worse, he was driving a District-owned truck allocated to the Fire Chief (although unmarked), and the truck was impounded.

Mr. Klonteig advised his employer of the incident immediately, and expressed remorse for his actions.

While Mr. Klonteig’s direct superior and a human resources advisor preferred a lesser sanction, the District’s Chief Administrative Officer held the view that Mr. Klonteig’s conduct deserved immediate dismissal, citing concerns over the liability to which Mr. Klonteig had exposed the District, and public safety concerns. The human resources advisor urged the CAO to reconsider given Mr. Klonteig’s record and value to the District, to no avail.

Decision

At trial, the District argued that Mr. Klonteig’s conduct was incompatible with his duties as assistant fire chief, especially considering his responsibility for ensuring public safety, and that therefore the District had just cause to terminate his employment.

The Court held otherwise. The Court remarked that off-duty conduct may give rise to dismissal, but only where the conduct is likely to be prejudicial to the interests or reputation of the employer. In this case, the truck was unmarked, Mr. Klonteig was not representing the District, and the public was unaware of the driving suspension.

Furthermore, the Court remarked that the conduct was not of the same moral reprehensibility as other cases in which dismissal was justified (including child pornography in one case, and a dishonest tax scheme by a chartered accountant in another case).

Finally, the Court noted that it could not conclude that the public would lose confidence in Mr. Klonteig, considering that his fellow firefighters, whose role it is to attend accident scenes involving impaired drivers, had not lost confidence in him. On that point, 24 firefighters had signed a letter in support of Mr. Klonteig following his dismissal.

In these circumstances, the Court held that the District’s interests and reputation were not prejudiced. In the result, the Court awarded damages to Mr. Klonteig equal to 5 months wages.

Implications

This case serves a reminder of the risks of dismissing a well-regarded employee, in cases of a single instance of misconduct. While the District likely felt justified in dismissing Mr. Klonteig considering the misconduct in this case, ultimately the Court has the last word.

There are two other noteworthy aspects to this case.

First, Mr. Klonteig’s employment contract limited the District’s liability to give notice or pay severance, to a period of one month per year of service. In this case, the notice period equated to 5 months. Setting out the applicable notice period in the employment agreement eliminates the uncertainty that comes with asking a court to determine what would be a reasonable notice period in all the circumstances.

Second, the court was critical of the dismissal letter in this case, because it cited factors for dismissal that turned out to be false or at least misleading. For example, the dismissal letter remarked that Mr. Klonteig was aware that he should not have been using the Fire Chief’s truck for personal use. However, the court found that there was no evidence that Mr. Klonteig was aware that he should not have been using the truck for personal use, and there was no evidence of such a policy prohibiting personal use of District vehicles. Further, the letter remarked that it would be impossible for Mr. Klonteig to regain the respect of the members of the Fire Department. However, the evidence showed that they continued to support Mr. Klonteig. The message for employers is to ensure that the factors cited in support of dismissal are legitimate and supported.

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In The Redeemed Christian Church of God v. New Westminster (City) 2021 BCSC 1401, the court declared that the City of New Westminster infringed a religious group’s Charter-protected right to freedom of expression, when it cancelled the group’s event on grounds that the event would be discriminatory and would promote hatred against the LGBTQ community.   Although the court acknowledged that protecting LGBTQ rights was laudable, the court found that the City failed to hear from the group prior to canceling the event, and failed to adequately balance the group’s freedom of expression on one hand, and the City’s goals of promoting inclusivity and protecting minority rights on the other.

The takeaway for local governments is this: Before making a decision that may infringe an individual’s or group’s right to freedom of expression, seek out and consider information from both sides, attempt to balance the competing interests at stake, and ensure that any infringement of the freedom of expression resulting from the decision is kept to a minimum.

This decision also serves as a reminder that nearly all actions of a local government must comply with the Charter ­­– even a decision made in the context of a local government’s contractual relationship with a society.

Background Facts

A Christian-based religious society obtained a licence to host a youth conference in a ballroom within a City-owned event centre.

The City’s booking policy for the event centre states, among other things, that the City may prohibit groups if they promote hate or other unethical pursuits, or intend to conduct activities that are incongruent with the mission and vision of the centre and of the City.  The City’s council evidently endorses a vision of inclusivity and social equity, generally.

The theme of the event was “Let God Be True”, and the posters advertising the event used the acronym “LGBT” surrounded by rainbow colouring.

One month prior to the event, the City received a complaint from a member of the public that the event was anti-LGBTQ and would spread misinformation.  The complainant flagged one of the facilitators of the event as a prominent anti-LGBTQ speaker.  The City conducted its own research and determined that the facilitator had expressed anti-LGBTQ views on social media.  The director of the event centre, in consultation with others including the City’s CAO, canceled the society’s licence for the event, on the basis that the event would be contrary to the booking policy.  The director explained to the society that the facilitator “vocally represents views and a perspective that run counter to… the booking policy.”

A representative of the society requested to meet with the City to explain the event and the society’s intentions in holding the event.  The representative explained that the event would not promote hate, or violence.  Although the director of the event centre indicated a willingness to meet, they explained that the decision to cancel the event was final.  Counsel for the society later explained to the City that the focus of the event was to “consider Biblical views regarding sexuality and identity issues”.

Decision

The City did not dispute that the event was a form of expression protected under s.2(b) of the Charter, or that canceling the event infringed the society’s freedom of expression.  The court’s decision centered on whether the infringement was reasonably justified pursuant to s.1 of the Charter.  In determining this issue, the court considered whether the City’s decision was proportionately balanced having regard to the society’s rights and the City’s objectives, and was minimally impairing of the society’s rights – in the result, the court found in favour of the society.

In reaching this conclusion, the court criticized the City for making the decision to cancel the event based on information from one side only.  The court remarked that, while the City had researched the concerns raised about the facilitator, it did not take similar steps to inform itself of the content of the event, and declined to consider submissions from the society itself before making the decision.   Further, the court noted that the City did not consider how any infringement of the society’s rights of expression might be minimized.  The court described the City’s decision as “quick and precipitous”, and uninformed.

Takeaways

There are a number of other legal issues that were addressed in this case, including (with the court’s ruling in brackets): whether the society can use the judicial review procedure for a decision that is not a statutory decision (it cannot); whether the society has standing to assert the right to freedom of religion under the Charter (it does); whether the society’s freedom of association was infringed (it was not).

The primary importance of this decision to local governments stems from the court’s comments and review of the City’s decision, and decision-making process, to cancel an event and thereby infringe the organizer’s right to freedom of expression.

Questions? Contact Devin Buchanan or our Local Government Law Team.

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Yesterday, the Supreme Court of Canada released its decision in the City of Nelson snow clearing case (Nelson (City) v. Marchi, 2021 SCC 41) in which it confirmed and clarified the principle of policy immunity that can shield government bodies from claims in negligence.

On the facts of the case, the Court unanimously rejected the City’s policy defence, and ordered a new trial on standard of care and causation.

Background Facts

During a heavy snowfall, the City’s crews began plowing the streets in accordance with its written snow clearing policies and its unwritten practices. Crews cleared snow in angled parking stalls on a street in the City’s downtown core. Crews pushed the snow to the top of the parking spaces, creating a continuous snowbank along the curb between the parking stalls and the sidewalk. They did not clear an access route through the snowbank to access the sidewalk from the street. The plaintiff parked in one of the angled parking stalls and decided to cross the snowbank, seriously injuring her leg in the process. She sued the City for negligence.

Lower Court Decisions

The City argued that it was immune from liability because its decision not to clear the snowbanks right away was a core policy decision based on budgetary constraints – in essence, the City argued that it chose to deploy its staff to other tasks rather than to provide access through the snowbanks, in accordance with its policies and long-standing practice.  As such, it should not be required to pay damages to the plaintiff.

The trial judge agreed with the City.

The plaintiff appealed, and the BC Court of Appeal found in her favour. The City then appealed to the Supreme Court of Canada.

Supreme Court of Canada Decision

The Court unanimously held that the City’s decision to clear the snow from the parking stalls by creating snowbanks along the sidewalks without ensuring direct access to sidewalks was not a core policy decision. In explaining its decision, the Court confirmed that the following criteria are relevant to determining whether a particular decision is a core policy decision:

1. The level and responsibility of the decision-maker;
2. The process by which the decision was made;
3. The nature and extent of budgetary considerations; and,
4. The extent to which the decision was based on objective criteria.

The Court noted that none of these factors are determinative on their own, and courts must assess all the circumstances. The Court also noted that the fact that a local government calls something a “policy decision” is not determinative.

On application of these criteria, the Court found that the City’s decision bore none of the hallmarks of a core policy decision, because:

• The public works supervisor testified that she did not have the authority to make a different decision with respect to the clearing of parking stalls.
• There was no suggestion that the method of plowing the parking stalls resulted from a deliberate decision involving any balancing of competing objectives and policy goals by the supervisor or her superiors.
• There was no evidence suggesting an assessment was ever made about the feasibility of clearing pathways in the snowbanks.
• Although it was clear that budgetary considerations were involved, these were not high‑level budgetary considerations but rather the day‑to‑day budgetary considerations of individual employees.
• The City’s chosen method of plowing the parking stalls can easily be assessed based on objective criteria (e.g. a review of other local governments’ practices).

Accordingly, the City’s policy defence failed, and the Court ruled that the City owed the plaintiff a duty of care.

To be clear, the Court did not rule on whether the City was in fact negligent, or whether the City’s actions caused the injury – those will be the issues at a new trial.

Takeaways

The main takeaway from this decision is that the policy defence has been narrowed somewhat and local governments cannot expect to be able to rely on anything other than a comprehensive written policy adopted by elected officials or, at least, senior management. Unwritten departmental “policies” based on staff choices about how to prioritize scarce resources, or on long-standing practice, are very unlikely to form the basis of a successful defence.

We recommend that local governments review and update all of their policies for winter snow and ice clearing activities, as well as for other areas with high liability potential where the policy defence is commonly invoked. These include road/sidewalk maintenance and infrastructure repair/replacement.

Local governments should incorporate all important aspects of these activities into a written policy, leaving nothing important in the realm of “unwritten practice”. The resulting draft policy should be debated and adopted at a high level – preferably, by the council or board – with consideration given to overarching economic, social and political concerns, as well as objective standards.

Questions? Contact Devin Buchanan or our Local Government Law Team.

The British Columbia Court of Appeal recently upheld a trial decision in which the City of Salmon Arm was found liable in negligence for failing to follow its policy with respect to the inspection and repair of its sidewalks and signs.

As described in more detail below, both the trial decision and the appeal decision hold local governments to a relatively high standard in investigating hazards. The specific message for local governments based on the facts in this case, is to follow-up with inspections as soon as the snow clears, if it is suspected that there is a tripping hazard present. As well, local governments may consider putting their policy in writing, and specifying a lower standard with respect to responding to a suspected hazard.

The Facts

During the winter a resident advised the City that an advanced crosswalk sign was lying in their yard. The sign had apparently been sheared-off at or near its base. A City technician inspected the general area, but due to the presence of snow was unable to determine where the sign originated. The technician went so far as to shovel certain areas to identify the sign’s original location, to no avail. The technician then stored the sign with the intent of replacing it in the spring once the snow cleared.

Sometime after the snow was clear from the sidewalks, the plaintiff tripped on a piece of metal that protruded from the sidewalk. This piece of metal was determined to be the base of the missing sign.

Municipal Liability

The City has an unwritten “complaints-based” policy for inspecting and maintaining sidewalks and signs. When a complaint comes in regarding a sign that poses less of a safety concern than crosswalk signs and stop signs for example, the City uses “best efforts” to reinstall or fix damaged signage as soon as possible. In this case, the unwritten policy was held to represent the applicable standard of care that the City had undertaken to meet.

At trial the judge found that the City should have known that the base of the sign posed a tripping hazard within the sidewalk, by looking at the sheared end of the sign. Furthermore, the trial judge found that although the technician used “best efforts” to locate the tripping hazard initially, he ought to have continued to look for the hazard once the snow melted. Instead, it appears no steps were taken to identify the sign’s location once the snow melted.

The Court of Appeal remarked that “the issue is whether the City ought to have recognized the base could have been in a location that created a risk, thus triggering the standard practice of taking best efforts immediately to locate and remediate the hazard.” The Court did not interfere with the trial judge’s conclusion that the City had notice of the risk when it retrieved the sign, and did not use best efforts to remediate the suspected hazard.

Local governments should heed the message this decision sends, which is to diligently investigate suspected tripping hazards, in particular, immediately once the snow has cleared. Further, local governments may consider setting a lower bar with respect to their response to suspected hazards, by adopting a written policy.

In Michetti v. Pouce Coupe (Village) 2022 BCSC 472, the BC Supreme Court confirmed that a municipal Council owes a duty of procedural fairness to individual Council members (including the Mayor) whenever Council’s decisions affect the rights, privileges or interests of the individual member, even if there are misconduct allegations. The court confirmed that the content of the duty of fairness depends on the circumstances; however, the underlying notion of procedural fairness is to ensure that Council decisions affecting one member are made using a fair and open procedure, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the Council.

This decision stands as a reminder of the care that a municipal Council must exercise in making decisions that affect an individual’s interests, as well as the importance of thorough and timely training for Council members.

The underlying dispute in this case stemmed from a controversial Facebook post made by the Village’s Mayor in February 2021, which drew criticism from Village Council members and the public. In response to this Facebook post, the Village Council initially resolved, at a special meeting, to suspend the Mayor from all public duties and requested that the Mayor resign. Two Council members also resigned, which triggered the need for a by-election.

In May 2021, the Mayor applied to court for a judicial review of Council’s resolution to suspend the Mayor. Th e Village ultimately accepted that the resolution was invalid on the basis that Council had not involved the Mayor in calling the special meeting and had not provided sufficient notice.

Two new Council members were elected in a by-election in September 2021.

Approximately 2.5 weeks after the by-election, the Village Council resolved to remove the Mayor from various portfolios at a regular Council meeting. Th e portfolios related to several entities including the Peace River Regional District, RCMP and South Peace Health. The Council member assigned to a particular portfolio serves as a liaison between the Council and the particular entity.

One of the new Council members made the motion when the agenda item relating to assigning the portfolios was called, and the motion did not specifically appear on the meeting agenda. The Mayor alleged she felt “ambushed” by the motion.

Although the Village argued in court that the Council’s decision to remove the Mayor from the portfolios was not a form of censure or based on misconduct, the court concluded otherwise in finding that the decision was made to effectively censure and sanction the Mayor in relation to the Facebook post. Furthermore, the court found that the resolution prevented the Mayor from participating in the decision-making process for assigning portfolios; therefore, the duty of procedural fairness was triggered. In other words, the Mayor’s rights or interests were impacted. As for the content of the duty, the court remarked that the Mayor “should have been notified of her alleged misconduct in a timely manner, the evidentiary basis and the rationale for the allegation, whether based in the Code of Conduct or otherwise, and provided a meaningful opportunity to address the alleged misconduct.”

Ultimately, the court concluded that the Council had breached the duty of procedural fairness that it owed the Mayor and quashed Council’s motion.

A local government’s Council or Board decision can impact an individual’s rights, and in those circumstances the Council/Board must afford adequate notice to the individual, as  well as the opportunity to be heard, before making its decision. Sanctioning an individual Council/Board member for misconduct is particularly fraught with risk in terms of the  basis and procedure for doing so. Orientation for elected officials is valuable, but it’s equally important to ensure that legal and procedural information is covered. For example,  consider including the following topics in Council/Board orientation:

• Procedural requirements for calling meetings, preparing agenda and proposing and passing resolutions;
• The duty of procedural fairness (when is it triggered and what does it entail?); and
• Does the Council/Board have a code of conduct, and if so what does it say?

Content originally drafted by Devin Buchanan for the LGMA and published in the quarterly LGMA EXCHANGE Summer 2022.