Two-year limitation governs negligence claims against municipalities
Recent BC Court of Appeal ruling
Alert! 2002: No. 1 February
Editor's notes:
1. Amendments to the Local Government Act came into force in January 2016; sections 285 and 286 of that Act are now sections 735 and 736, respectively.
2. The new Limitation Act came into force in June 2013; section 3(2)(a) of the former Act is now section 6(1).
3. The contact information was updated in May 2016.
In October, 2000 the Lawyers Insurance Fund issued an Alert! highlighting the uncertainty over whether claims brought against municipalities for negligence were governed by the six-month limitation in section 285 of the Local Government Act or the two-year limitation in section 3(2)(a) of the Limitation Act.
The uncertainty has now been resolved by the recent decision of the British Columbia Court of Appeal in Gringmuth v. The Corporation of the District of North Vancouver (2002) BCCA 61: Claims against a municipality for a breach of a duty of care in tort trigger the two-year limitation in the Limitation Act.
Section 285 of the Local Government Act reads:
All actions against a municipality for the unlawful doing of anything that
(a) is purported to have been done by the municipality under the powers conferred by an Act, and
(b) might have been lawfully done by the municipality 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 in a particular case, but not afterwards.
Section 3(2)(a) of the Limitation Act reads:
After the expiration of 2 years after the date on which the right to do so arose a person may not bring any of the following actions:
(a) subject to section (4)(k), for damages in respect of injury to person or property, including economic loss arising from the injury, whether based on contract, tort or statutory duty;
In paragraph 21 of the Reasons for Judgment in Gringmuth, Newbury J., writing for the Court, sets out the ambit of the six-month limitation period under the Local Government Act:
In counsel's submission, it applies to the exercise by a municipality of a power conferred by an enactment that, even if done "in a manner prescribed by law," would have inflicted harm or resulted in loss or damage to the plaintiff.
To use Bauman J.'s example, a municipality carrying out an expropriation of land is empowered by statute to commit what would otherwise be acts of trespass and conversion. These are peculiarly "public" powers normally exercisable only by governments or emanations thereof.
Where a municipality fails to carry out an expropriation in the manner prescribed by law (i.e., in accordance with "the requirements of the enactment" - see Grewal, supra, at 254) the municipality is nevertheless entitled to the protection of s. 285 because the trespass and conversion "might have been lawfully done."
The focus, then, is on the harm complained by the plaintiff and whether it could have been lawfully inflicted, rather than on the nature (i.e. statutory or common law) of the duty or power that was being carried out by the municipality, or on a dichotomy (often illusory) between statutory powers and duties. And, since no enactment has the effect of making lawful a negligent act or omission, negligence actions fall outside the special provision and are subject only to the general limitation in the Limitation Act.
And at paragraphs 30-31 of the Reasons, Justice Newbury says:
Finally, I agree with Bauman J. in Pausche that the proper question to ask is whether, if the municipality had complied with the existing statute law when it (allegedly) caused injury to the plaintiff, it could have done that harm lawfully - i.e., in accordance with the statute. At present, I cannot conceive of a case in which this question would be answered in the affirmative in respect of a breach of a private or common law duty of care - i.e., in a case of negligence.
It follows in my view that the Chambers judge in the case at bar erred in ruling that an allegation of negligent inspection by the District of North Vancouver came within the terms of s. [285].
Although this decision settles the confusion over when the six-month limitation applies, there remain other reasons that the Lawyers Insurance Fund receives claims and potential claims relating to the notice and limitation provisions governing claims brought against municipalities.
As noted in the October, 2000 Alert!, some lawyers are simply unaware of the two-month notice requirement found in section 286(1) of the Local Government Act, and others fail to recognize within the appropriate time limits that a municipality is a necessary and proper party to an action.
Please direct any questions or comments to Lamour Afonso or Leanne Wood at the Lawyers Insurance Fund.