Negligent Governance: No Liability

Posted by Johannes Schenk on November 17th, 2005 — Posted in Municipal Law

Negligence on the part of governmental authorities is a difficult matter to prosecute. This theme is repeated in a number of legal areas including, policy defences and the fallout from various legislative processes, and plays itself out in another recent BC Court of Appeal case, Kimpton v. Canada (A.G.) and British Columbia (HMTQ), 2004 BCCA 72. Here the plaintiffs were suing the BC Provincial government and the Federal government over the National Building Code that allegedly led to the leaky condo disaster. The National Research Council, as advisors and agents, of the Federal government in regards to the National Building Code, were also included as defendants.

In a nutshell the matter was dismissed because the process that led to the creation of the National Building Code was a matter of lawmaking not open to challenge in the Courts. Justice Huddart having this to say:

[6] As I view the case against British Columbia, there is only one issue. In my view the chambers judge correctly found the creation and establishment of the BCBC to be an act of lawmaking. See Welbridge Holdings Ltd. v. Metropolitan Corporation of Greater Winnipeg, [1971] S.C.R. 957. Immunity from the application of tort law flows from that fact. As the chambers judge noted at paragraph 63 of his reasons for judgment, “[t]o the extent a government negligently governs, the voting public may impose a political consequence at an election.” It follows I would not accede to the grounds of appeal that apply to British Columbia.

[7] Nor would I accede to the grounds of appeal with regard to the claim against Canada. I am not persuaded the chambers judge erred when he held that the National Research Council was not in a relationship of sufficient proximity with the appellant to give rise to a private law duty of care. The appellant presented no authority establishing a duty of care on any advisor to a legislative body. And that is the role of the National Research Council with regard to the NBC. The National Research Council is a creature of statute. Parliament created it to have “charge of such matters affecting scientific and industrial research as the Governor in Council may assign to it” National Research Council Act, R.S., c. N-14, s. 4. Included in such matters was the development of a model building code to assist municipalities in enacting building bylaws and the construction industry by having uniform national building standards.

[8] To the extent the appellant and others in her very unhappy situation may have been injured by the alleged negligence in the preparation or dissemination of the NBC, their reliance can only be on British Columbia, whose Legislature authorized the making of the regulation adopting the NBC by reference, with the effect of a municipal building bylaw, an act of lawmaking, as I have said, beyond review by a court in the conduct of tort law.

The case presents what might be considered a harsh result. The underlying principle is, however, longstanding and seen in a wide range of scenarios involving legislative and quasi-legislative decision making.

1 Comment »

Comment by mlmartens

In your comments, you write “the National Building Code that led to the leaky condo disaster.”

It is disappointing to see someone repeat the talking point phrase created by the BC building industry as a way to evade respondibility. The Barrett Commissions found that shoddy construction, poor design, and a lack of oversight was responsible for the leaky condo disaster. The building code was not responsible for the leaky condo problem.

Hundreds of engineering investigations that have been conducted in leaky condo repairs have found dozens of building code violations in each leaky condo building. There has not been a single leaky condo found that did not have multiple building code violation. Activists have challenged the BC building industry and the developers to produce a leaky condo that was built to code and not a single example has been produced.

Please don’t resurrect a discredited meme.

Editor’s note:

Mr. Martens is correct in that the case speaks to a code that “allegedly” led to the leaky condo problem. The post has been so modified.

Mr. Martens refers to the Barrett Inquiry. Here is the section that speaks to building codes.

The Commission’s report makes the following statements:

The Commission was unable to find evidence that the building code, per se, has caused the problems. It agrees that the BC Building Code outlines appropriate performance standards for large buildings, as well as prescriptive standards for smaller buildings and houses. Where the building code may have failed is in the definitions of large and small buildings. This has resulted in a number of large complex, wood-frame condominiums being built under guidelines meant for smaller buildings. However, even under the prescriptive approach, the buildings should have been well constructed.

(emphasis in original)

and,

The BC Building Code and the Vancouver Building By-Law never explicitly stated that, because of the Lower Mainland’s special weather conditions, it may be advisable to take extra care in determining the method of wall construction. They could have done so, and more clearly identified the unique building envelope needs of BCs coastal climate.

In any event, the point of the case and the post, that a claim of negligent governance is extremely difficult to prosecute, stands.

Posted on December 2, 2005 at 7:24 am

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