Disputes and conflicts routinely arise between owners, builders, contractors and other parties during the planning, design, construction and post-construction phases of a construction project. Delays, unforeseen work or property damage are common grounds for such disputes, which can often result in one of the parties incurring unanticipated costs for which they may seek recovery from the other parties. To address the risks that such disputes may arise, dispute resolution provisions are routinely incorporated into construction contracts to establish a process whereby the parties to a dispute will be required to participate in mediation, arbitration or other alternative dispute resolution processes.
Articles & Publications
Article, Staff | April 12, 2023 |
City of Revelstoke v. Gelowitz 2023 BCCA 139: A Cautionary Tale for Local Governments on the Duty to Warn Public Facility Users of Hazards
The British Columbia Court of Appeal has affirmed the lower court decision in which the City of Revelstoke (the “City”) was held liable for injuries sustained by the plaintiff after the plaintiff dove into a lake and into shallow water.
Although the plaintiff made his dive from private lands owned by a third party those lands were accessed by the plaintiff as part of a swim that began from the Williamson Lake Park and Campground, a pay-for-use park owned by the City. The plaintiff had been camping on the City-owned lands with friends and family and had entered the lake without seeing the “no diving” signs that had been posted elsewhere. The decision is notable because the City was held liable for not warning of the danger of diving from lands that were not owned by the City. This liability arose because the City invited members of the public into its lakefront park, had been made aware of the dangers posed to individuals diving into the lake area, and was aware that park users were routinely accessing other lands surrounding the lake where this danger was present.
The City was found to have failed to warn the plaintiff of the danger of diving into the lake by failing to have adequate warning signs placed in the vicinity of the lake warning of the dangers posed by diving into the water.
Article, Staff | April 5, 2023 |
Liability Claims for Ineffective Enforcement – What’s Scary and What’s a Scare Tactic
It can be difficult to distinguish the situations in which liability is a real legal concern from those in which claims of potential liability are overblown and used to scare local governments into prioritizing a particular enforcement action. This paper discusses the legal principles that relate to the duties and discretions of a local government in conducting bylaw enforcement and how the risk of a successful claim being proven in court in relation to ineffective enforcement can depend significantly on where the contravention occurs.
Presented at MIABC Risk Management Conference, April 6, 2023.
Publication, Staff | March 15, 2023 |
Not the Cost of Doing Business: Deterrence and Denunciation Considerations Mean Individuals and Organizations can Face Serious Consequences for Workplace Safety Violations
In 2021, there were 1,081 work-related fatalities in Canada. The construction industry had the highest number of fatalities, 212. According to the Association of Workers’ Compensation Boards of Canada, workers in the construction industry submitted 28,721 claims for lost time due to injury. Serious injuries and fatalities are devastating for workers and their families. They also place employers at risk of liability.
As published in the NRCA’s Northern Construction Connection March 2023 Newsletter, and VICA’s e-New.
Publication, Staff | February 8, 2023 |
Construction Litigation: How a Negligence Claim can Fail if Parties Allocate Risk by Contract
A summary of Centurion Apartment Properties Limited Partnership v Loco Investments Inc, 2022 BCSC 2273
In settling the terms of a contract, parties often address how liability will be handled in the event of a loss, whether through limitation of liability clauses, indemnity clauses, or otherwise. In some cases, parties may also wish to seek redress outside of the terms of the contract through claims of negligence. As discussed in this article, however, such a claim may not always be successful.
As published in the NRCA’s Northern Construction Connection February 2023 Newsletter, and VICA’s e-New.
Article, Staff | January 25, 2023 |
Tax Sales for Municipal Finance Officers
This paper will discuss current legal trends regarding notices, upset prices and post-redemption period court challenges to tax sales as each of these can have a significant impact on municipal liability. This paper assumes the reader has a general understanding of the mechanics of the tax sale process and is not intended to be a step-by-step guide.
Article, Publication, Staff | January 12, 2023 |
New Energy Efficiency Requirements under the BC Building Code
The BC Energy Step Code is a provincial building standard incorporated within the BC Building Code (BCBC) that provides an incremental approach to achieving more energy efficient buildings that go above the base requirements of the BCBC. The Energy Step Code is designed to slowly introduce and increase mandated efficiency requirements so that local authorities and the construction industry can adapt to the process in a management way.
The standard was first introduced in 2017 as a voluntary, compliance-based roadmap that both local government and industry could choose to use to incentivize or require builders to meet a level of energy efficiency in new building construction. Managing Partner, Sonia Sahota, wrote an article about these standards when they were first introduced. That article can be found here.
However, beginning in early 2023, all new buildings constructed in BC will be required to be 20 percent more energy efficient than those built to the requirements of the 2018 BCBC. This article looks at the updates and changes being made under the BCBC.
Article, Staff | January 11, 2023 |
Modernizing BC’s Privacy Laws: Mandatory Breach Notification Requirements and Privacy Management Programs for Public Bodies
On February 1, 2023 two significant amendments to British Columbia’s Freedom of Information and Protection of Privacy Act (“FOIPPA”) will come into force and which will have major impacts on public bodies handling and management of personal information:
- The implementation of mandatory privacy breach notification requirements; and
- The requirement for public bodies to implement a privacy management program.
To familiarize public bodies with these looming changes and to authorize their adoption into FOIPPA, the Government of British Columbia recently issued an order of the lieutenant governor in council and a ministerial direction from the Minister of Citizens’ Services, which outline the breach notification requirements and set out the necessary building blocks for the design of a privacy management program. These statutory changes are briefly summarized in this article.
Article, Staff | November 24, 2022 |
A Tale of Two Housing Crises: How British Columbia and Ontario are Increasing Housing Supply through new Legislation
Housing affordability has been top of mind for many Canadians, and on November 21, 2022, BC’s Attorney General and Minister Responsible for Housing, the Honourable Murray Rankin, introduced Bill 43 to enact the Housing Supply Act, meant as “an important tool in reversing the housing crisis….” and Bill 44 to enact the Building and Strata Statutes Amendment Act, 2022, to “Expand housing options… in this tight housing market” (together, the “Housing Bills“). The Housing Bills come several months after then-incoming Premier David Eby laid out his plan for affordable housing (the “Housing Plan“), and almost one month after Ontario’s Minister of Municipal Affairs and Housing introduced Bill 23, enacting the More Homes Built Faster Act, 2022 (the “MHBF Act”) to increase housing supply in its Province.
This article provides an overview of the Housing Bills and compares them against the Housing Plan and Ontario’s MHBF Act.
Publication, Staff | November 23, 2022 |
Regulatory Requirements for Municipal Utility Corporations: Recommendations from the British Columbia Utilities Commission
In recent decades local government utility corporations have proliferated in British Columbia and provided a mechanism through which municipalities and regional districts have been able to provide energy utility services to its residents through a legally distinct corporate entity owned and operated by the local government.
With local governments increasingly electing to exercise their statutory authority under section 185 of the Community Charter to incorporate local government corporations as a vehicle through which they can provide energy utility services to its residents, inquiries into whether such local government corporations may be regulated under the Utilities Commission Act (the “Act”) or are exempt from its statutory requirements became a priority for the British Columbia Utilities Commission (the “Commission”).
On November 10, 2022, the Commission released the stage 1 report (the “Report”) of the Inquiry into the Regulation of Municipal Energy Utilities. The Report addresses (1) whether a local government corporation wholly owned and operated by a local government and providing energy utility services exclusively within that local government’s boundaries, meets the municipal exclusion set out in the Act and (2), if not, whether the provision of such energy services should be regulated under the Act.