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LOCAL SELF-GOVERNMENT BULLETIN – NO. 19, September 2001

The purpose of this bulletin is to focus debate on the need to increase
local self government in Canada and to help local communities achieve more
autonomy. The local self government web site is http://www.localselfgovt.org

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In this issue:
1. Striking gold in British Columbia
2. Finding a way to de-amalgamate
3. Leaky condo liabilities
4. Subscribe to the Bulletin
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1. Striking gold in British Columbia
From the standpoint of local government it almost seems too good for legislation to begin with a preamble reading:
`WHEREAS the Provincial government believes that (a) municipalities should have greater autonomy, (b) municipalities should have a wider range of tools to reduce reliance on property tax revenues, and (c) the Provincial government should not reduce its costs by transferring responsibilities to municipalities…’
But that indeed is how Bill 12, the Community Charter Council Act, reads. It was given Third Reading in late August by the government of Premier Gordon Campbell of British Columbia. The Bill establishes a council consisting of local and provincial government representatives, to report by mid-January on a `new foundation for municipal government.’ It states that the council’s report must be based on the following principles:
(a) the residents of British Columbia have the right to form autonomous municipalities that provide for the residents' needs for community association;
(b) municipalities are recognized as an order of government;
(c) municipal governments must be democratically elected, responsible, accountable and accessible;
(d) municipal governments must be provided with adequate powers and discretion to address existing and future community needs;
(e) municipal governments have authority to determine the public interest of their communities, including authority to determine the level of municipal expenditures and taxation;
(f) municipal governments have authority to determine their administrative mechanisms in order to adapt them to community needs and to ensure effective management and delivery of services;
(g) municipalities must be able to draw on financial and other resources that are adequate to support community needs;
(h) before new responsibilities are assigned to municipalities, there must be provision for resources required to fulfill the responsibilities;
(i) the Provincial government must respect municipal authority in areas of municipal jurisdiction;
(j) the Provincial government must respect the varying needs and conditions of different municipalities in different areas of British Columbia when taking actions that directly and specifically affect municipalities;
(k) the Provincial government must notify and consult with municipal representatives before it takes actions that directly and specifically affect municipalities and when addressing interprovincial, national or international issues or agreements that will directly and specifically affect municipalities;
(l) the Provincial government and municipalities will attempt to resolve conflicts by consultation, negotiation, facilitation and, if necessary, formal dispute resolution.
Municipal leaders in the rest of the country reading this legislation might well think British Columbia is lotus land. The fear among some municipal leaders is that the new government will do such a vicious job of cutting programs and expenditures that the principles will have little real meaning left in them by the time the council reports in January.
The Bill can be accessed at http://www.legis.gov.bc.ca and follow the links to Legislative Proceedings, Bills, Third Reading, Community Council Charter Act.
2. Finding a way to de-amalgamate
With wholesale amalgamations forced upon mostly unwilling municipalities in the provinces of Ontario and Quebec, it wasn’t hard to imagine that sooner or later - particularly after court challenges lay exhausted and unsuccessful – a political process would emerge to start the unraveling process.
That’s now under way in one of the weirdest of amalgamated communities in Ontario, the City of Kawartha Lakes. Before this January, the City of Kawartha Lakes was known as the County of Victoria. At about 2800 square kilometres - five times the size of Toronto – it is now one of the largest cities in the country. But the population is small, well under 70,000, and mostly rural. The biggest settlement is a place that used to be called the Town of Lindsay, at 17,000. It’s a city only in the wildest dreams of the provincial government.

Needless to say, residents are very unhappy with this new state of affairs thrust upon them. As one resident said `I’m a farmer and there’s nothing makes me madder than being called a city slicker.’

Voices of Central Ontario, the organization that emerged to fight amalgamation, has hit upon an interesting political strategy to keep the issue alive and to force a political reconsideration: the rolling referendum. This summer VOCO has been holding votes in each of the 16 former townships and other municipalities in Victoria County. It set a date in each locale, notified local residents, and established ballot boxes at announced locations. Every attempt was made to ensure that no one voted twice, and that those participating were eligible voters.
The question posed was quite straight-forward: `Do you want to de-amalgamate and restore Victoria County and your former municipalities?’ (Current provincial law in Ontario prevents a municipality from putting such a question on the ballot since it is not something which the municipality alone can accomplish.)
As of mid-September, with 15 areas reporting and one still to come, the vote stands at 5508 Yes, 181 No, 14 spoiled ballots, for a total of 5703 votes.
This strategy has drawn on a wide spectrum of opinion, broken down by defined local area. The results are overwhelmingly clear, and few would challenge them as a fair expression of opinion. The rolling referendum has created much discussion and a considerable political stir which will probably find its best expression in the provincial election expected in 2003. The likelihood of the local MLA, Minister of Municipal Affairs Chris Hodgson (a favourite of the premier) re-opening the matter, is rare. He won’t even meet with representatives of VOCO.
VOCO is testing exactly how people might go about creating the political muscle to undo amalgamation. One can expect other communities to build on their successes, and use VOCO’s rolling referendum technique in their own fights.
3. Leaky Condo Liabilities
The Supreme Court of British Columbia has recently released a decision holding a municipality liable for not fully enforcing the building code. The case involves some of the 45,000 famous `leaky condos’ on the west coast, and the decision could have financial ramifications for local governments across the province and the country.
Mr. Justice William Grist confirmed that a government regulatory body has a duty of care to individuals among the public it serves providing there’s a proximate relationship between the public body and the private claimant, and that negligence by the regulatory body would be expected to cause damage to the claimant. [Para. 25]
The judge ruled this liability attaches to operations decisions, but not policy decisions involving social, political and economic factors where the authority attempts to strike a balance between efficiency and thrift in the context of planning and predetermining the boundaries of its undertakings and of their actual performance. [Para. 32]

Judge Grist wrote that `It seems to me that recovery for economic loss on the foregoing basis accomplishes a number of worthy objectives. It avoids undue interference by the courts in the affairs of public authorities. It gives a remedy where the legislature has impliably sanctioned it and justice clearly requires it. It imposes enough of a burden on public authorities to act as a check on the arbitrary and negligent discharge of statutory duties.’ [Para 31]

Paragraph 59 of the judgment reads: `The evidence here is that [the municipality of ]Delta made a policy decision to administer and enforce the Provincial Code through the process of permit approval and subsequent inspection. Administration of these processes through the Building Department became implementation at the operational level. As I noted earlier, the Director acknowledged the bylaw adopted enforcement of the whole code. It was at the departmental level that the decision was made not to deal with certain provisions.’
The defence that Delta had acted no differently than other municipalities in not enforcing a provision requiring a water barrier between stucco and the exterior wall, was not accepted.
While the judge ruled that the municipality was responsible for only 20 per cent of the costs of rectifying the damage caused by leakage, the defendants are liable jointly and severably. Since it appears the development companies have no funds, claimants will be able to go after the municipality for the full cost.

The decision may be found at http://www.courts.gov.bc.ca/search/queryhit.htm and enter docket number 2001BCSC1214 . Delta mayor Lois Jackson says the decision has been appealed by the municipality, particularly to get itself removed from responsibility of paying the costs which the developers’ shell companies are unable to meet.

4. Subscribe to this bulletin
The bulletin is sent, at no cost, to about 1400 individuals involved directly or indirectly in local government in Canada. The next bulletin will be available in September. We invite you to subscribe by going to the ‘Bulletin’ tab of the web site http://www.localselfgovt.org and following the instructions. More information about the sponsors of the bulletin, a library of relevant and useful documents, and an archives of past bulletins, can be found on our web site. We appreciate your comments, your feedback (to j.sewell@on.aibn.com ), and items of interest that you wish to share with us and others who visit the web site.