Attachment “B”: Local Government Act Excerpt (Immunities and Indemnities)
Legislative excerpt from the Local Government Act providing the legal authority for municipal indemnification.
LOCAL GOVERNMENT ACT
CHAPTER 1 [RSBC 2015] [includes 2023 Bill 4, c 0 amendments (effective March 30, 2023)]
Immunity for individual local public officers
738. (1) In this section, "local public officer" means any of the following: (a) a member of a council; (b) a director of a regional board; (c) a trustee of an improvement district; (d) a commissioner for a local community commission under Division 9 [Local Community Commissions] of Part 6 [Regional Districts: Governance and Procedures]; (e) a member of a commission established under section 263 (1) (g) [regional district commissions] of this Act or section 143 [municipal commissions] of the Community Charter; (f) a member of a library board under the Library Act; (g) a member of any greater board or of any board that provides similar services and is incorporated by letters patent; (h) a member of an advisory planning commission under section 461; (i) a member of a board of variance under Division 15 [Board of Variance] of Part 14 [Planning and Land Use Management]; (j) a member of the Okanagan-Kootenay Sterile Insect Release Board or an officer or employee of that board; (k) a member of the Okanagan Basin Water Board; (l) a trustee of a body of the Islands Trust under the Islands Trust Act; (m) an officer or employee of a municipality, regional district, improvement district, library board under the Library Act, a greater board referred to in paragraph (g), the trust council under the Islands Trust Act or the Okanagan Basin Water Board; (n) an election official or a regional voting officer under section 179 [assent voting conducted by more than one local government]; (o) a volunteer firefighter or a special constable; (p) a volunteer who participates in the delivery of services by a municipality, regional district or a body referred to in paragraphs (c) to (l) under the supervision of an officer or employee of the municipality, regional district or any of those bodies; (q) a member of a board of trustees established or appointed by a municipality under section 37 [local government operations] of the Cremation, Interment and Funeral Services Act; (r) a member of a municipal committee, of a regional district board committee or of an improvement district committee under section 689 [appointment of select and standing committees] who is not also a member of the municipal council, regional district board or improvement district board, as applicable.
(2) No action for damages lies or may be instituted against a local public officer or former local public officer (a) for anything said or done or omitted to be said or done by that person in the performance or intended performance of the person's duty or the exercise of the person's power, or (b) for any alleged neglect or default in the performance or intended performance of that person's duty or the exercise of that person's power.
(3) Subsection (2) does not provide a defence if (a) the local public officer has, in relation to the conduct that is the subject matter of the action, been guilty of dishonesty, gross negligence or malicious or wilful misconduct, or (b) the cause of action is libel or slander.
(4) Subsection (2) does not absolve any of the corporations or bodies referred to in subsection (1) (a) to (l) from vicarious liability arising out of a tort committed by any of the individuals referred to in subsection (1) for which the corporation or body would have been liable had this section not been in force. RS20 5 738 (B C Reg 257/20 5); 20 7 0 32
Warning as defence for local government financial officer
739. It is a good defence to any action brought against a municipal or regional district financial officer for unlawful expenditure of local government funds if it is proved that the individual gave a written and signed warning to the council or board that, in the individual's opinion, the expenditure would be unlawful. RS20 5 739 (B C Reg 257/20 5); 2023 0 530
Indemnification against proceedings for local government officials
740. (1) In this section:
"indemnification" means the payment of amounts required or incurred (a) to defend an action or prosecution brought against a person in connection with the exercise or intended exercise of the person's powers or the performance or intended performance of the person's duties or functions, (b) to satisfy a judgment, award or penalty imposed in an action or prosecution referred to in paragraph (a), or (c) in relation to an inquiry under the Public Inquiry Act, or to another proceeding, that involves the administration of the municipality or regional district or the conduct of municipal or regional district business;
"municipal official" means (a) a current or former council member, (b) a current or former municipal officer or employee, or (c) a person who is or was a person referred to in section 738 (1) [immunity for individual municipal local public officers], but only in relation to the exercise of powers or the performance of duties or functions for or on behalf of a municipality;
"regional district official" means (a) a current or former member of a regional district board, (b) a current or former officer or employee of a regional district, or (c) a person who is or was a person referred to in section 738 (1), but only in relation to the exercise of powers or the performance of duties or functions for or on behalf of the regional district.
(2) Indemnification for municipal officials and regional district officials may be provided as follows: (a) a council may do the following: (i) by bylaw, provide for the indemnification of municipal officials in accordance with the bylaw; (ii) by resolution in a specific case, indemnify a municipal official; (b) a board may do the following: (i) by bylaw, provide for the indemnification of regional district officials in accordance with the bylaw; (ii) by resolution in a specific case, indemnify a regional district official.
(3) As a limit on indemnification under subsection (2), a council or board must not pay a fine that is imposed as a result of a municipal official or regional district official, as applicable, being convicted of an offence that is not a strict or absolute liability offence.
(4) Sections 100 [disclosure of conflict] and 101 [restrictions on participation if in conflict] of the Community Charter do not apply to a council member or board member who could be, or would be, indemnified under a bylaw or resolution under subsection (2) of this section.
(5) Subject to subsection (6), a council may not seek indemnity against a municipal official, and a board may not seek indemnity against a regional district official, in respect of any conduct of the person that results in a claim for damages against the municipality or regional district, as applicable.
(6) The restriction under subsection (5) does not apply if the court makes a finding in the action that the person has been guilty of dishonesty, gross negligence or malicious or wilful misconduct. RS20 5 740 (B C Reg 257/20 5)
Indemnification against proceedings for other local public officers
741. (1) Subject to subsection (2), section 740 applies to the following in relation to any person referred to in section 738 (1) [immunity for individual local public officers]: (a) a greater board; (b) the Okanagan-Kootenay Sterile Insect Release Board; (c) the trust council under the Islands Trust Act; (d) a library board under the Library Act.
(2) Subsection (1) applies only in relation to the exercise of powers or the performance of duties or functions for or on behalf of the applicable corporation. RS20 5 74 (B C Reg 257/20 5)
Immunity in relation to building bylaw enforcement
742. A municipality or a member of its council, a regional district or a member of its board, or an officer or employee of a municipality or regional district, is not liable for any damages or other loss, including economic loss, sustained by any person, or to the property of any person, as a result of neglect or failure, for any reason, to enforce, by the institution of a civil proceeding or a prosecution, (a) the Provincial building regulations, (b) a bylaw under Division 1 [Building Regulation] of Part 9 [Regional Districts: Specific Service Powers], (c) a bylaw under section 8 (3) (l) [fundamental powers – buildings and other structures] of the Community Charter, or (d) a bylaw under Division 8 [Building Regulation] of Part 3 of the Community Charter. RS20 5 742 (B C Reg 257/20 5)
Immunity in relation to approval of certified building plans
743. (1) If a municipality or regional district issues a building permit for a development that does not comply with the Provincial building regulations or another applicable enactment respecting safety, the municipality or regional district must not be held liable, directly or vicariously, for any damage, loss or expense caused or contributed to by an error, omission or other neglect in relation to its approval of the plans submitted with the application for the building permit if (a) a person representing themselves as a professional engineer or architect registered as such under Provincial legislation certified, as or on behalf of the applicant for the permit, that the plans or the aspects of the plans to which the non-compliance relates complied with the then current Provincial building regulations or other applicable enactment to which the non-compliance relates, and (b) the municipality or regional district, in issuing the building permit, indicated in writing to the applicant for the permit that it relied on the certification referred to in paragraph (a).
(2) Subsection (1) does not apply if the municipality or regional district knew that the person making the certification referred to in that subsection was not, at the time of certification, registered as a professional engineer or architect under Provincial legislation.
(3) If a municipality or regional district makes an indication in accordance with subsection (1) (b), it must reduce the fee for the building permit to reflect the costs of the work that would otherwise be done by a building inspector to determine whether the plans or the aspects of the plans that were certified to comply do in fact comply with the Provincial building regulations and other applicable enactments respecting safety. RS20 5 743 (B C Reg 257/20 5); 2023 0 53
Immunity in relation to certain nuisance actions
744. A municipality, municipal council, regional district, regional district board, improvement district or greater board is not liable in any action based on nuisance or on the rule in the Rylands v. Fletcher case if the damages arise, directly or indirectly, out of the breakdown or malfunction of (a) a sewer system, (b) a water or drainage facility or system, or (c) a dike or a road.