Emerging Risk Management Issues for Local Government

October 16, 2006
Author: Charles M.K. Loopstra, Q.C.

Murphy and Peter

To appreciate risk management and what it entails at the local government level, one has to know Murphy’s Law :
Whatever can go wrong, will go wrong.
Murphy was an engineer who predicted with some accuracy that if there is a right way to do something and a wrong way, sooner or later someone will do it wrong. Or putting it another way, if there is more than one way to do a job, and one of those ways will result in disaster, then somebody will eventually do it that way.

By understanding this philosophy you will understand risk management. By undertaking any task, whether developing a sophisticated policy or executing a simple task, if there is a potential for flaws, then it is a good policy to take necessary precautions to make sure the flaws don’t happen.

The problem in implementing a good risk management strategy lies with strength or weakness of the organization. This leads me to introduce the second principle: The Peter Principle :

In a hierarchy every employee tends to rise to his level of incompetence.

The implication of this principle is that an organization or a department within an organization is prone to collapse when the number of incompetents reaches a critical mass.
My thesis is not that local governments are full of incompetents and that every civil servant will sooner or later perform an act resulting in civil liability. However, it is my thesis that ignoring these two principles will inevitably result in greater liability exposures. Things will go wrong, and there are those among us who are blissfully unaware of what can go wrong.

High Risk Areas of Exposure?
The title is misleading. All operational decisions and actions are prone to high liability risks. The only distinction is that some lead to greater potential damages than others. The only areas that are low or no risk areas of exposure are:

1. Policy decisions

2. Inevitable consequence in the exercise of statutory authority

3. Conduct that is subject to statutory immunity

Unfortunately, even in these areas of government activity, resourceful lawyers and result oriented judges have found ways to impose liability.

Policy Decisions
Generally there are two types of decisions or functions carried out by government: policy decisions and operational decisions and both can lead to a private law duty of care. Operational decisions can result in a finding of negligence if the duty carried out was not performed in a reasonable manner. The courts will apply a “standard of reasonableness” in deciding whether the duty was carried out with or without negligence.

However, actions or inactions resulting from a true policy decision in the exercise (or non-exercise) of a discretionary power or function made in good faith are not actionable in negligence. These policy decisions can be made at all levels of decision making (from council to managers) and are not limited to initial decision making, such as whether to do or not to do something. It can also apply to policies with respect to how a discretionary duty is to be carried out. For example the adoption of a policy and procedures manual as to how to carry out a certain function, amounts to a policy decision. The failure to carry out a duty prescribed in the policy and procedures manual may constitute evidence of a negligent operational decision.

Notwithstanding a common law or statutory protection against actions resulting from policy decisions, policy decisions are actionable in the following circumstances:

1. taken in bad faith

2. made for an improper purpose

3. so irrational or unreasonable so as not to be a bona fide exercise of discretion

4. when opting out of mandatory statutory duties

The first 3 are difficult to nail down, especially if you are a risk manager for a local municipality. You are not part of the decision making process, and don’t always know what goes into the making of policy decisions. However, the fourth exception is an area that needs constant vigilance. We all know that if a statute mandates a duty, the municipality cannot opt out of the duty. This has led to a number of areas of new liability exposure, such as negligent building inspections and failure to enforce a property standards by-law.

Negligent Building Inspections
Most provinces have adopted a mandatory duty to inspect buildings. The current Building Code Act in Ontario imposes a host of mandatory statutory duties which include:

the establishment of operational policies for enforcement
co-ordinate and oversee enforcement
review plans and inspect construction to determine compliance with the OBC
ensure compliance with “applicable law”

Just as an example, the statutory duty relating to compliance with “applicable law” has been recently changed from a generic approach to a check list of other laws that must be complied with before a permit can be issued. Whereas before the change a municipality could rely on the “reasonable standard of care” defence, now the municipality is either in compliance or not. The economic consequences of issuing a permit in contravention of other applicable law may be serious.

Another area of increased liability is the failure to properly conduct mandatory building code inspections. The liability risks are substantially increased if defective work is covered up that otherwise would have been identified at a routine stage of inspection. Even if work is commenced without a permit, the failure to make a proper inspection can lead to liability.

The Ultimate Limitation Period
The new Limitations Act in Ontario became effective on January 1, 2004. Aside from a shortened limitation period of 6 years to 2 years for most actions, it has created an ultimate limitation period of 15 years from the negligent act, regardless of discovery. A recent decision involving the City of Toronto has held that the transition sections of the Act do not apply and that even for negligent acts that occurred before January 1, 2004, the 15 year ultimate limitation period applies, regardless of discovery. This case, if upheld on appeal, will be a strong defence against old building code claims recently discovered.

Failure to Enforce By-Laws and Building Codes
Generally, where the municipality has a discretion to enforce or not enforce its by-laws, a decision not to do so is a policy decision and immune from civil action. This is so even if a municipality is discriminatory in its enforcement practices. This principle must be qualified in the following circumstances:

a decision not to enforce does not avoid a private law duty of care. For example, the failure to prosecute a building code offence may be a discretionary policy decision, but the failure to inspect and note the defect may be a breach of a private law duty of care resulting in negligence;
Where there has been a failure to even consider enforcement, there has not been a bona fide policy decision, which may give rise to a claim for negligent enforcement.
Identifying a problem and issuing orders, and then failing to do anything about it, may give rise to a breach of private law duty of care if the failure affects innocent third parties.

The distinction between policy decisions as to whether to enforce and the breach of a private law duty is becoming increasingly blurred. This is best illustrated by the Foley v. Shamess decision released in 2005, which is under appeal.

The Foley case involved 3 properties joined together. For simplicity, two were owned by Shamess and one by Foley. Foley brought a complaint about the condition of the Shamess units in 1994 which resulted in an inspection and Notice of Violation under the Property Standards By-law of the Town with respect to all 3 units. In 1995 Foley corrected all of the contraventions in his unit, but Shamess did not. The failure to do so affected the structural integrity of the entire building.

In 1996 the Town writes letters to Shamess with deadlines that pass and with no enforcement action taken. A letter dated September 9, 1996 asked Shamess to provide assurances from an engineer that the Shamess units had not deteriorated in the past two years, and that they wouldn’t further deteriorate in the next two years. The assurances were not forthcoming. One year later, Foley asks the Town to conduct a further inspection.

In November of 1997 the Chief Building Official for the town issues an unsafe building order against Foley and Shamess with respect to all 3 units which requires the production of an engineer’s report and addresses the problem in two parts: 1) what is required to make the building temporarily safe, and 2) what permanent measures are required if the building is to remain and not be demolished. Foley hires an engineer that addresses solutions to make the building temporarily safe, but does not address the second part of the order. Shamess did not respond with a report.

The Town then brought an action for a mandatory order against Shamess requiring compliance with the November 1997 order. Shamess retained an engineer that addresses the issues in a report delivered in July of 1998. This led to the Town arranging for a joint report to be issued by both engineers which was delivered in March of 1999 recommending 3 options:

1. demolish all 3 units

2. repair all 3 units

3. demolish the Shamess units and retain the Foley unit

This led to further action by the Town in April of 1999 by way of enforcement proceedings against both Foley and Shamess pursuant to the Provincial Offences Act. In May of 1999 Foley brought a civil action for damages against Shamess and the Town, followed by a motion for an order requiring the Shamess units to be demolished and leaving the Foley unit standing. This motion was denied by the court since the Town was dealing with the unsafe building and failure to comply issues, and pre-empting this process would be usurping the Town’s legal jurisdiction.

Finally, in 2000 the Chief Building Official for the Town issued an order requiring the entire building demolished, including the Foley unit. Foley appealed this order, but the appeal was denied.

The civil action against Shamess and the Town was tried in 2005 and liability for negligence was apportioned 40% against the Town, 40% Shamess and 20% contributory negligence by Foley. The Town’s negligence was found on the following basis:

By October of 1996, the Town must have known that [Shamess] would not be providing the engineering assurances requested in the Town’s letter of September 9, 1996. Its failure to enforce its [Property Standards] by-law in the ensuing 12 months coupled with the ongoing deterioration of the entire building, leading to the decision ultimately made to demolish the entire building, contributed…to the damages sustained by the plaintiffs through the loss of their building .

In his legal analysis, the trial judge determined that the Town owed a duty of care to Foley in its enforcement of the Property Standards By-law, and that it was reasonably foreseeable that the Town’s failure to enforce the by-law against Shamess would cause harm to Foley. In coming to this conclusion the judgment is not clear on what actions of the Town fall within policy decisions and what actions are subject to a private law duty of care. It states:

No evidence was called by the Town to explain why during the 11 month period from September of 1996 to October of 1997, it did not enforce its [Property Standards] by-law. Evidence was not put forward to suggest that for various policy reasons, the Town determined that enforcement should not proceed. A process that had been started by the Town in 1994 was still underway, but not complete, some three years later in 1997.

Most municipalities enforce Property Standards by-laws on a complaint only basis, and do so with some reluctance. What is significant about this case is that the Town did not make a determination that the building was unsafe and did not issue an unsafe building order pursuant to the Ontario Building Code Act until 1997. The trial judge did not fault the Town for its failure to issue the unsafe building order at an earlier date, but rather for its failure to enforce its Property Standards By-law after it issued a Notice of Violation in 1994. The 1994 Notice identifies certain deficiencies and requires Foley and Shamess “to make the said property comply with the standards prescribed by the [Property Standards By-law] should be completed as soon as possible”. The order then states that the property will be re-inspected after December 2, 1994 and “an order may be made requiring the property be repaired to conform with the standards [or be demolished].”

At first glance the Town in effect made a policy decision that indicated it would re-inspect but not necessarily enforce. This is consistent with typical practice. The failure to enforce in my opinion is not actionable unless it can be shown that the Town by its conduct breached a separate and independent private law duty it owed to Foley. It may well be that the Town owed such a duty to Foley and that it was negligent in the way it handled the file. The private law duty of care owed by municipalities in the case of new construction has been articulated by the Supreme Court of Canada as follows:

Once it made the policy decision to inspect building plans and construction, [the municipality] owed a duty of care to all who it is reasonable to conclude might be injured by the negligent exercise of those powers.

In this case the Supreme Court of Canada held that the duty equally extends to an owner/builder and in Inglis, the court held that it applies even where the damages were caused or contributed to by the owner/builder’s own negligence.

What is disturbing about the Foley decision is that it was extended to a Property Standards By-law which did not involve new construction. Also the statutory authority for Property Standards By-laws in Ontario does not impose mandatory duties to enforce. Even though Property Standards have now been incorporated into the Building Code Act, all of the enforcement provisions are discretionary. Moreover, at the time of the Town’s alleged inaction, the Property Standards enforcement process was pursuant to the Planning Act which did not contain any mandatory statutory duties imposed on building officials that are now contained in the Building Code Act.

Although the trial judge used the Town letter of September 1996 as the trigger for the duty to enforce (since by then he held the Town must have known it was not going to get the engineering assurances sought from Shamess’ engineer), it is important to note that the only enforcement proceeding then pending was the 1994 Notice of Violation issued under the Property Standards By-law. As stated above, the Town had not made a policy decision to proceed beyond an inspection.

The conclusion I draw from this case is that once you go down any enforcement road, you need to be concerned about the consequences of failing to go all the way down the road at a reasonable speed. It is clear that the Town ultimately acted by issuing an unsafe building order. However, the consequences of that order to Foley were such that according to the trial judge it was too late in the day to save the building from demolition. In that respect he stated:

The weight of the evidence suggests that an enforcement proceeding would not have resulted in expensive repairs being carried out to the building. No policy reason was put forward by the Town to explain why it did not move to demolish [the Shamess units], and to recover the costs of such work against the owners.

The lessons to be learned from the Foley case are:

1. Once you commence enforcement proceedings, you may in effect have made a policy decision to enforce, even though you may have qualified your notice with respect to further action.

2. You should always consider the consequences of your failure to enforce. Will someone be injured (whether physically or economically) if you do not proceed with enforcement?

3. Are you acting at a reasonable speed? If you issue a notice of contravention requiring certain action, are you waiting too long for a response?

Bad Faith

Another emerging area of municipal liability is in actions were bad faith is pleaded. The concept of bad faith in government decision making can lead to judicial review in an effort to set aside the decision, (such as a by-law or administrative decision), but can also lead to a separate action for damages. It should be noted that the two concepts are distinctly different. For example, to set aside a municipal by-law on the basis of “bad faith”, you must show that the council acted unreasonably and arbitrarily and without the degree of fairness, openness, and impartiality required of a municipal government. This type of bad faith does not lead to an action for civil damages unless the conduct involves an element of wrongdoing on the part of the members of council, such as fraud, collusion, dishonesty, or illegal conduct. What is confusing however, is that the courts increasingly fail to properly define the concept of bad faith and use similar terminology to describe both concepts.

Is Bad Faith an Independent Tort?
The Courts have traditionally rejected the argument that a breach of good faith leads to an independent tort of bad faith. The question remains however, does evidence of bad faith lead to a finding a breach of a private law duty, resulting in damages? There is no question that a finding of bad faith in the context of negligence, fraud, or the tort of abuse of public office, is the factual basis for a breach of a private law duty leading to damages. What is disturbing however, that the courts are prepared to make findings of bad faith in the context of an action for damages without pigeon holing the tort.

In Pedwell v. Pelham (Town) , the Ontario Court of Appeal confirmed a trial judgment in which an interim control by-law was declared a nullity for being passed in bad faith, the Chief Building Official was ordered to issue building permits for a “checker board subdivision”, and the plaintiffs recovered damages against the town for acting unlawfully in passing the by-law and directing the Chief Building Official to hold off in processing the building permit applications, even though there was no finding of improper motivation.

Neither the trial judge nor the appeal decision made any reference to the cause of action on which the award of damages was based, other than making reference to findings of Abad faith@ and Aunlawful interference@ by Town officials. Ordinarily, bad faith is pleaded as a ground to declare a municipal action or by-law invalid. Unless there was a basis for an independent tort based on negligence, abuse of public authority or interference with economic interests, a finding of bad faith would not lead to an award of damages. Clearly this decision could open up the flood gates for damages against municipalities on the grounds of Abad faith@ in the absence of such an independent tort.
The most shocking result of the Pedwell decision is that aside from the fact that the independent tort was not identified in the context of the findings of bad faith, it is doubtful that the findings of fact could substantiate any independent cause of action. This leaves us with the question: Did the Ontario Court of Appeal recognize an independent tort of bad faith in the context of municipal wrongdoing?

Abuse of Public Authority
Fraud (including fraudulent misrepresentation or the tort of deceit) and misfeasance in public office (also referred to as abuse of public authority) are actionable intentional torts. They contemplate wrongful conduct by individuals acting outside of the scope of their duties in a deliberate and intentional manner. In Odhavji Estate v. Woodhouse the Supreme Court of Canada held that the failure of a public officer to perform a statutory duty can constitute misfeasance in public office. However, it is an intentional tort distinguished by (1) deliberate, unlawful conduct in the exercise of public functions; and (2) awareness that the conduct is unlawful and likely to injure the plaintiff. A mere failure to discharge obligations of an office cannot constitute misfeasance in a public office and the plaintiff must prove the failures were deliberate. Increasingly, lawyers are finding new ways to plead what was once considered a simple negligence action for failure to perform a duty.

Statutory Duties
There are numerous statutes which impose statutory duties on municipalities and its officers. Although the courts still do not recognize breach of a statutory duty as an independent tort, it can be evidence of negligence.
The newOntario Municipal Act, 2001 for the first time enumerates the duties and responsibilities of its officers and employees. Of particular note are the following subsections:

227. Municipal administration. - It is the role of the officers and employees of the municipality.

(a) to implement council's decisions and establish administrative practices and procedures to carry out council's decisions;
...

228.(1) Clerk. - A municipality shall appoint a clerk whose duty it is,
...

(d) to perform the other duties required under this Act or under any other Act; and

...

(2) Deputy clerks. - A municipality may appoint deputy clerks who have all the powers and duties of the clerk under this and any other Act.

229. Chief administrative officer. - A municipality may appoint a chief administrative officer who shall be responsible for,

286.(1) Treasurer. - A municipality shall appoint a treasurer who is responsible for handling all of the financial affairs of the municipality on behalf of and in the manner directed by the council of the municipality, including,
...

Although the breach of these specified duties do not by themselves give rise to a cause of action, they may be relied upon as a formulation of the standard of the private law duty owed to others. In the appropriate circumstances this may give rise to an action against the municipality, even if the officer or employee has statutory immunity under section 448, or against both the officer or employee and the municipality if there is a finding that the officer or employee failed to act in good faith.

In the more egregious cases, were the breach was deliberate and unlawful, the breach may lead to an action for abuse of public authority. For example in Sherway v. Kingsville (Town) the CAO of the municipality was sued successfully when he was found to have acted fraudulently in executing a contract for a water main project when council approval had not been obtained. He clearly acted illegally and in breach of his statutory authority.
In Remmers v. Lipinsk i, the C.A.O. of an Alberta municipality was found personally liable in excess of $3,000,000 for being willfully blind to the dishonesty of his Treasurer, even though there was no finding of dishonesty on the part of the C.A.O.In this case there was a finding of gross negligence on the part of the C.A.O. which may very well equate to failure to act in good faith, thereby negating the statutory immunity which would otherwise be available to a C.A.O. in Ontario.The tort of misfeasance in public office would clearly fall into this category.

Another area of interest is the impact of the English House of Lords decision in Spring v. Guardian Assurance which was considered by the Ontario Court of Appeal in Haskett v. Equifax Canada Inc. Unlike the tort of negligent misrepresentation, where the inaccurate information must be given to the plaintiff and relied upon by the plaintiff, these cases consider whether providing harmful information (even if true) to a third party gives rise to a cause of action for negligence. The Ontario Court of Appeal in Haskett was only dealing with a motion for judgment, and the decision only stands for the proposition that on the basis of the principles adopted in Kamloops v. Nielson, there is a triable issue. What this case decided is that the relevant statute informs the common law duty of care, which may give rise to reporting of information, even if such information is true. This presents a new approach to tort liability which previously was not available if the action was brought for defamation. In defamation cases if the information is false, the defendant may be able to rely on the defence of absolute or qualified privilege. If the information is true, the defendant is able to rely on the defence of justification.

The Haskett case was considered in Dical Investments Ltd. v. Aurora (Town) . In this case the plaintiff was negotiating offers on two lots to two separate purchasers. The plaintiff alleged that the purchasers were provided with erroneous information by the Town with respect to the amount of the applicable development charges, which resulted in the purchasers not executing the final offers. The plaintiff subsequently sold the lots at a substantially reduced price. The trial judge concluded that using the two stage test from Kamloops v. Nielson there was no proximity between the plaintiff and the defendant such as to create a duty of care. Moreover, there could be no claim for negligent misstatement, since it was not the plaintiff that had allegedly relied on the inaccurate information, but rather the potential purchasers.

Procurement Policies
All Ontario municipalities are required by the Municipal Act, 2001 to adopt procurement policies. The matters to be addressed in the procurement by-law or resolution are set out in section 271 and include a requirement for policies with respect to how the integrity of the procurement process will be maintained and how the interests of the municipality, the public and the persons participating in the procurement process will be protected. Once these policies are adopted, the municipality will run significant risks if it fails to comply. What is often not understood by municipalities is that procurement relates to contractual obligations. A breach of the policy will more than likely lead to an action for damages in contract and not in tort. As a result, this is usually an uninsured risk. Municipalities need to pay special attention that they don't create a procurement policy environment that they do not understand, do not intend to abide by or for other reasons fail to comply with.

An example is the trend for Requests for Expressions of Interest (RFEI's) and Requests for Proposals (RFP's) which precede a formal tender call. Generally, these are prepared by outside consultants who may not be familiar with the municipality's procurement policies or lack thereof. More important, the consultant may not understand the legal implications of a RFEI and adopt a tender format with the result that the unsuccessful proponent will bring action on the same basis as if the tender process applied. The legal principle that applies is the principle established by the Supreme Court of Canada in Ontario v. Ron Engineering & Construction (Eastern) Ltd. that the submission of a bid in a tender creates a contractual relationship, even if the bid is not accepted. If in the RFEI or RFP process the parties intended to initiate contractual relations, the parties must then deal with each other fairly and in good faith, and the failure to do so may result in an action for damages for breach of contract. If the RFEI or RFP are properly prepared and contain clauses which make it clear that there is no intention to create contractual relations by this process and more importantly do not contain clauses that infer that contractual relations will be created by the process, then liability can be avoided. There is no duty to negotiate or bargain in good faith, only to act in good faith if a contract is found to exist.

As stated above, since actions against municipalities relating to procurement are generally brought in contract, there is likely no insurance coverage for such claims. If municipalities are faced with a suit resulting from a process which was not intended to create contractual relations, but as a result of utilizing a document prepared by an outside consultant, it may be held liable, the municipality ought to consider bringing a third party claim against the consultant for negligence and breach of contract. The allegations of negligence against the consultant in the preparation of the document may well give rise to insurance coverage on the part of the consultant.
Another potential minefield is the pre-qualification process adopted by some municipalities in issuing tenders to a pre-approved list of potential bidders. Once the contractor has been approved and placed on the list, the municipality may well have created a contractual obligation to ensure that the contractor is included in each bidding process, and failure to do so may result in an action for damages. One of the difficulties encountered with this process is that a defaulting contractor who is in imminent litigation with the municipality may be entitled to bid on new contracts, unless a proper process has been followed to remove the contractor form the pre-qualified list. Municipalities should address this issue as part of their procurement policies and ensure that it is a workable system.

Minimizing the Risks
This is a big subject and I am reluctant to encroach on the areas covered by other speakers. For that reason I will only mention a couple. The use of disclaimers is not to be overlooked. They can be effective if properly worded and properly utilized. They cannot be used to avoid statutory duties and responsibilities. Also you cannot contract out of negligence, but you can limit your liability for negligence. Disclaimers can be an effective tool in reducing tort liability. They are particularly useful in avoiding an action for negligent misrepresentation. These actions usually result from employee error in providing erroneous information which is then relied upon to the detriment of the plaintiff. If the document providing the erroneous information contains sufficient qualifications, including a disclaimer, the plaintiff may not be able to rely upon the erroneous information. Reliance is a key element that must be proven by the plaintiff in such an action.

Some other useful ways to limit liability are:

contractually shift responsibilities
insert indemnification clauses in contracts
impose insurance requirements on service providers
Warnings (stamps, signs, public announcements)
Shift the burden (satisfy yourself)

The effective paper trail is another way to minimize exposure to liability. A good paper trail is essential. It is more reliable than oral evidence and tells a story that is difficult to refute. However, you should always be careful in what you put in your file. Not all documents in anticipation of litigation are privileged. Therefore, never put in your file a document that admits liability, unless it is a solicitor client privileged communication.

Is fixing the problem after the loss an admission of liability? The answer is not necessarily. Making something better after the fact, does not mean that before you made it better, you fell below a requisite standard of care. Although post-accident conduct may be relevant and admissible, it is not an admission of negligence or of a breach of a requisite duty of care.

Conclusion
There is no doubt that the law of municipal tort liability has expanded significantly in recent years and has become reasonably complex. The old regime of risk management still used by many municipalities is outdated and not responsive to the realities of current potential legal liability. Very little thought is being given to potential liability from the decision making process and how those decisions will ultimately be implemented. The majority of the risk management is still related to actual conduct and is to a large extent reactive rather than pro-active. Risk management should be seen as an integrated management function, with a strong legal presence. There may be instances where the legislation does not impose a statutory obligation to provide a certain service. The cost of providing that service should be evaluated by calculating the cost of the risks associated with it, including the cost of minimizing such risks, the insurance costs and the legal defence costs. If the municipality fully appreciates the legally required maintenance, inspection and record keeping obligations associated with the service, it can also better assess the costs.
In some cases municipalities make erroneous assumptions concerning risks. They are not fully aware of the statutory duties mandated on the one hand, but may also be unaware of some protection that is available in certain cases, such as statutory immunity or common law defences. Even a simple examination of the requisite duty of care is often ignored in favour of an assumption that a mistake leads to strict liability.
Although each municipality needs to formulate its own risk management program to suit its own needs, I would make the following general recommendations:
1. Identify the various areas of jurisdiction for which there is potential liability
2. Identify the statutory duties associated with each area and any statutory immunities and common law defences that may exist
3. Review the basis for the policy decisions made
4. Identify the appropriate standard of care required
5. Review the implementation of the policy decisions
6. Hire competent staff, fire incompetent staff, and constantly train your staff, including the preparation of proper procedural manuals, which include the requirement for the keeping of proper records of inspections, occurences, warnings and other important procedures
7. Ensure that there are proper follow-up procedures in place. Noting a deficiency with no follow-up is an invitation to a successful lawsuit.

A History of Murphy’s Law by Nick T. Spark

The Peter Principle by Dr. Laurence J. Peter

S. 450 of the Municipal Act, 2001, S.O.2001, c.25

Ingles v. Tutkaluk Construction Ltd. [2000] 1 S.C.R. 298

York Condominium Corp. No. 382 v. Jay-M Holdings Inc. (2006) 79 O.R. (3d) 345 (under appeal to the C.A.)

Toronto v. Polai [1970] 1 O.R. 483 (C.A.) aff’d [1973] S.C.R. 38

Kamloops v. Nielsen [1984] 2 S.C.R. 2

Oosthoek v. Thunder Bay (1995), 30 O.R. (3d) 323 (C.A.)

Foley v. Shamess (2005) 22 M.P.L.R. (4th) 50

ibid

ibid, at p. 91

Rothfield v. Manolakos [1989] 2. S.C.R. 1259

Re H.G. Winton Ltd. and Borough of North York, (1978) 20 O.R. (2d) 737

Whistler Service Park Ltd v. Whistler (Resort Municipality), [1990] B.C.J. No. 1546

Whistler, supra

Pedwell, supra

For a detailed analysis of the trial and appeal decisions see: “Bad Faith by the Administration” - A New Municipal Tort? by George H. Rust-D’Eye in Municipal Liability Risk Management, January 2004, Volume 5, Number 2

[2003] S.C.J. No. 74

[2002] O.J. No. 4938 (S.C.J.)

[2000] A.J. No. 362 (Q.B.); affd [2000] A.J. No. 904 (C.A.); leave to appeal to the S.C.C. refused

[1994] H.L.J. No. 31

(2003) 63 O.R. (3d) 577

[2203] O.J. No. 3439

[1981] 1 S.C.R. 111

Mellco Developments Ltd. v. Portage la Prairie (City), [2003] 1 W.W.R. 216 (Man. C.A.) leave to appeal to S.C.C. denied; Buttcon Ltd. v. Toronto Electric Commissioners, (2003) 65 O.R. (3d) 601 (S.C.J.

Mannpar Enterprises Ltd. v Canada (1999), 173 D.L.R. 243 (B.C. C.A.); Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860

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