Casual Legal: Municipal exemption from liability

By Ben Throndson
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

In a recent decision, the Alberta Court of King’s Bench narrowly interpreted the scope of municipal exemption from liability for damage attributable to inspection and maintenance under section 530 of the Municipal Government Act (MGA).

This decision suggests that the defence afforded to municipalities by s 530 may be more limited than it otherwise might seem at first glance.

This case was an appeal from a decision of the Provincial Court. The Provincial Court had found that the municipality was liable under s 530 of the MGA for the loss in value of a residential property resulting from a violent sewer back up. The back up was partially caused by a sewer line the municipality knew to be narrower than provincial standards allowed. The Provincial Court found that the municipality owed a duty of care under s 532 of the MGA, and that this duty was an exception to the “shield” otherwise provided by s 530 of the MGA.

The Provincial Court decision was upheld on appeal to the Court of King’s Bench. The Court noted that while s 530 exempts municipalities from liability for damage attributable for inspection and maintenance, s 532 imposes liability on municipalities for failing to keep “public works in, on or above the roads” (which included the sewer in the present case) in a reasonable state of repair. In the Court’s opinion, a broad interpretation of the exemption from liability in s 530 would render the imposition of liability in s 532 meaningless.

The Court went on to explain how there can still be an obligation to inspect and maintain in the face of the apparent exemption from liability for inadequate inspection and maintenance in s 530 of the MGA.

In this case, the Court viewed the narrow diameter sewer line as “a defect in the original design”. Where public roads and works have design defects, they can be considered to be “in a state of disrepair”. A failure to address this could give rise to a claim under s 532 of the MGA.

As noted by the Court, once the municipality became aware of the state of disrepair, it had a choice: upgrade the sewer line to the required standard, or implement a heightened regimen of inspection and maintenance. This heightened regimen of inspection and maintenance differs from the “routine inspection and maintenance of infrastructure in a good state of repair” to which the exemption in s 532 of the MGA applies.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.