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LOSS PREVENTION AND MUNICIPALPRACTICE
Neil RobertsonCity Solicitor's Office
City of ReginaCity Hall, P. O. Box 1790Regina, Sask. S4P 3C8
Ph: 777-7476 Fax: 777-6818
BIOGRAPHICAL INFORMATION
Neil Robertson
Neil earned a B.A. from the University of Regina in 1979 and an LL.B. from Osgoode Hall Law School in1982. He was called to the Saskatchewan Bar in 1984. His area of practice is in municipal law. From1987 to 1989 Neil was Vice-Chair of the Municipal Law Section of the CBA (Sask. Branch); from 1989 to1992 Chair of the Municipal Law Section of the CBA (Sask. Branch); from 1990 to 1993 President of theOrganization of Civic Executives, City of Regina. He has published numerous articles and has presentedat many workshops and seminars. Neil works for the City Solicitor's Office, City of Regina.
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Assessment Appeals .Supplementary Assessment .Water and Sewer Utility Charges . . . . . . . . . . . . . . . . . . . . . . . . . . .Property Nuisance Charges .
ENCROACHMENTS .
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TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
GOVERNING LEGISLATION 2
LEGAL ACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3NAMING THE RIGHT PARTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Municipalities 3Municipal Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Service on a Municipality 4
VICARIOUS LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Municipalities 5Municipal Police .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
NAMING OTHER PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5LIMITATION PERIODS 6
Municipalities 6Notice of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Municipal Officials and Police Officers . . . . . . . . . . . . . . . . . . 7
SPECIAL PROTECTIONS 7Municipalities 7Municipal Police . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 8Public Complaints Against Police 9
ASSESSMENT APPEALS 91997 Revaluation 9Limitation Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1QAnnual Assessments .11Appeal Fees and Outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
TRANSFER OF REAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14PROPERTY TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Revaluation 14Personal Liability and Remedies 14Tax Certificate 16
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DEVELOPMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21Subdivision Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21Zoning Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21Heritage Designation 23Liability of the Owner 23
FINAL ADVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25
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INTRODUCTION
The purpose of this paper is not to determine the standard of care expected of
lawyers. Rather, it is to discuss some aspects of municipal law and related practice
which may be of assistance to practitioners in representing their clients. The list is not
exhaustive. The paper attempts to focus on matters which, in the experience of the
author, are sometimes overlooked or misunderstood.
Four areas will be reviewed: the legislation governing municipalities and the
concept of statutory authority; legal actions against municipalities, including assessment
appeals; transfer of real property, in particular the adjustment of property taxes and other
charges.which may be applied againstlhe property; and restrictions on the development
and use of real property.
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GOVERNING LEGISLATION
The municipality is a creature of statute. Generally speaking, municipal council can
only do what the Legislature has authorized. All of its powers, duties and legal capacity
are founded in legislation. This concept of statutory authority is fundamental to municipal
government. There are many different statutes governing the operation and activities of
municipalities. Most of these powers, duties and capacities are found in the Municipal
Act applicable to that class of municipality. There are three Municipal Acts under which
municipalities operate in Saskatchewan: The Urban Municipality Act. 19841; The Rural
Municipality Act. 19892; and The Northern Municipalities Act3• Although these statutes
have much in common, there are differences. It is important to refer to the legislation
governing that class of municipality: urban; rural; or northern. There are four categories
of urban municipalities: cities, towns, villages and resort villages.
When researching caselaw, it is important to keep in mind that the legislation
applied in a case involving an urban municipality may be different from that applicable to
a rural municipality, for example. Also, these municipal Acts are usually amended at
every session of the Legislature and are completely revised every decade or so. The
changes in wording that occur can affect the application of caselaw precedent.
5.5. 1984, c. U-11 Hereafter cited as "UMA". (The City of L10ydminster operates under TheL10ydminster Charter, which is a provincial regulation and which applies only to that border city.)
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5.5. 1989-90, c. R-26.1 Hereafter cited as "RMA".
5.5. 1983, c. N-5.1 Hereafter cited as "NMA".
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LEGAL ACTIONS
NAMING THE RIGHT PARTY
Municipalities
Although I have seen both private and municipal practitioners style the name of a
municipality in various ways, I would suggest that the simplest form is the best. "The City
of Regina" is in my opinion quite sufficient, although some people will follow it with words
such as "being a municipal corporation operating pursuant to The Urban Municipality Act.
1984". Rural municipalities all have a name at:1d a number ( ie. the Rural Municipality of.
Eyehill No. 382). There are 523 urban municipalities and 298 rural municipalities in
Saskatchewan. If you are suing a municipality for something that happened within its
boundaries; make sure you have identified the correct one in your statement of claim.
Municipal Police
There are 15 municipal police services in Saskatchewan operating pursuant to The
Police Act, 1990: the cities of Regina, Saskatoon, Prince Albert, Moose Jaw, Estevan,
Weyburn; the towns of Churchbridge, Cudworth, Dalmany, Luseland, Macklin, Stoughton,
Watson and Yellowgrass; and the village of Caronport. The size of these police services
range from a single officer to over 300 sworn officers and numerous other civilian
personnel.
There are special considerations in an action against municipal police. A municipal
police service is not a department of the municipality. Rather it is a separate and
independent service governed by The Police Act. 1990. Although the municipal council
appoints the members of the Board of Police Commissioners and is responsible for
funding and approving the bUdget, it has no further control over the police service. It is
usually improper to name the municipality in an action arising from acts or omissions of
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the municipal police service. The two are considered independent entities. Indeed, the)
municipal police service is not a legal person capable of being sued. The Board of Police
Commissioners is a body corporate, pursuant to section 27(3) of The Police Act, 1990,
however, it is not vicariously liable for the actions of the police officers. Actions naming
the Board, the municipality or members of the Board or municipal Council are invariably
struck.4
An action arising from an act or omission of a municipal police officer should,
therefore, name the individual police officer. If unknown, Cst. "John/Jane Doe" may be
substituted until the proper officer is identified.
Service on a Municipality
Rule 22(2)(e) of the Queen's Bench Rules provides that the mayor, reeve, clerk or
secretary of the municipality, or their deputy, is the proper person to accept service on
behalf of a municipal corporation. Process served or documents delivered elsewhere
may not get the same attention and sometimes get misplaced. It is advisable, therefore,
to follow the rule. Counsel acting on a file can, of course, also accept service on behalf
of their client.
4 Klein v. Board of Police Commissioners of Regina (1995) 130 Sask. R. 198 (Sask. a.B,)Kvello v. Miazga 26 July 1994, J.C,S, a,B. No. 271/94 unreported (Sask. a.B,)Penn v. Singbeil and Saskatoon Board of Police (1986) 44 Sask, R. 312 a,B.: affirmed (1987) 56Sask. R. 314 (Sask. C.A.)Empringham v. Regina, Citv of (1984) 34 Sask, R. 141 (Sask. a.B.)Bruton v, Regina Citv Policeman's Association 2 W.W,R. 273 (Sask. C,A.)For an excellent discussion of the law, see: G.H. Rust-D'Eye "Municipalities As Parties To LegalProceedings" [1992] 14 Advocate's auarterly 91 at 102
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VICARIOUS LIABILITY
Municipalities
An urban municipality is vicariously liable for loss or injury arising from any act or
omission of a municipal employee or an agent of the urban municipality acting in the
course of his duties,S It is not usually necessary, therefore, to name an individual and,
in some cases, it may be improper. Urban munioipalities are required to obtain insurance
to protect its employees,6 .Both the urban and rural municipalities are required to pay the
cost of defending any action brought against a municipal employee or satisfying any
damage award?
Municipal Police
As discussed above, the concept of vicarious liability is generally inapplicable to
municipal police. That does not mean, however, that you may have an impecunious
defendant. Section 32 of The Police Act, 1990 provides that, where a claim or action is
made against a member as the result of an act committed while in the scope of
employment as a member, the Board must provide legal counsel to the member and pay
any settlement or judgment and costs awarded against the member.
NAMING OTHER PERSONS
No action can be brought against any member of council or any board,
association, commission or other organization established under the municipal act by
council or against a municipal employee based upon non-repair of public highways.
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UMA 57(4)
UMA 57(3)
UMA 57(4) and RMA 54(2)
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Such action can only name the municipality8. Similarly, an action arising from an illegal
bylaw can only be brought against the municipality9.
LIMITATION PERIODS
Municipalities
There is a general limitation period of one year for claims against municipalities10•
This limitation period begins when the damages are sustained, even though the claimant
may not be aware that the municipality is potentially at fault11.
The change in wording from the previous municipal acts has, in the opinion of the
author, rendered inapplicable the earlier cases which narrowly construed the scope of
those limitation periods12.
Notice of Claim
There is an additional requirement barring any action arising from non-repair of a
public highway unless written notice is provided within the prescribed period (14 days for
urban municipalities and 30 days for rural municipalities)13. The apparent purpose of
these notice requirements is to allow the municipality the opportunity to inspect the
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UMA 314(3) and RMA 402(3).
UMA 318 and RMA 398.
10 UMA 314(1)(a) and RMA 402(1)(a).
11 Regina (City) v. Bobbi Stadnyk J.C.A.O.B.M. 372/92,17 September 1992 unreported, (Sask. O.B.Lawton, J.)Stark v. A.M. of Edenwold No. 158 J.C.A.O.B. 2201/95, 28 March 1996 unreported, (Sask. O.B.MacLean, J.)
12 Galatiuk v. City of Regina (1986) 32 D.L.A. (4th) 432 (Sask,C.A.) reversing 36 Sask. R.2Sawden v. Maple Creek. Town of (1981) 12 Sask. A. 68 (Sask. O.B.)
13 UMA 314(1)(b) and RMA 402(1)(b).
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alleged non-repair around the time that the injury occurred. You should be aware that
this provision applies beyond the actual road and includes most everything in the road
allowance (street signs, tree branches, ditches, sewer lines, etc). A Queen's Bench
justice may, however, waive this requirement in certain circumstances (a. where the
claimant has a reasonable excuse for failing to deliver the notice and the municipality is
not prejudiced, or b. where the person injured died.)14
There is also a one month limitation period and a requirement for one month's
written notice before an action can be brought on the basis of anything done pursuant
to an illegal bylaw or resolution which was quashed or repealed15. Also, as noted above,
no person can be personally sued for anything done under the authority of such a law.
The apparent purpose of this limitation is to protect persons acting under ostensible
authority and to allow the municipal council an opportunity to replace such an invalid
bylaw or resolution with a valid bylaw or resolution.'·
Municipal Officials and Police Officers
Municipal officials and police officers are generally protected by The Public Officers
Protection Act, which also provides a one year limitation period16•
SPEC~LPROTECTIONS
Municipalities
Municipalities have certain protections against actions arising from the use of
public works. To succeed in an action based upon non-repair of a public highway, for
14 UMA 314(2) and RMA 402(2).
15 UMA 318 and RMA 398.
16 Empringham v. Regina. City of (1984) 34 Sask. R. 141 (Sask. a.B.)Paskv. McDonald [1980] 6W.W.R.133, 5Sask. R.143: affirmed [1983] 6W.W.R. 287 (Sask. C.A.)
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example, the plaintiff must prove that the municipality previously knew or should have
known of the non-repair.17 The extent of the municipality's duty of repair will depend on
a number of factors and does not make the municipality an insurer of its roads.18
Municipal Police
Even when their negligence results in damages, police officers may be protected
by section 10 of The Police Act. 1990 against liability if they were acting in good faith.19
The apparent rationale behind this protection is that police officers act on behalf of the
community to enforce the law and maintain public order. In doing so, they are required
to continually interfere with the activities of citizens and their use of property. It is
inevitable that they will sometimes make mistakes, however, the cost of compensating
every claimant would be so high and the effect on law enforcement so adverse that
damages suffered in the good faith exercise of their extraordinary powers will not always
be compensable.
The Criminal Code of Canada also protects peace officers against claims of
excessive force or false arrest when acting in good faith and on reasonable and probable
grounds.20
17 UMA 154(3) and RMA 192(3).see: Gessell v. Indian Head (R.M.) (1981) 10 Sask. R. 92 (Sask. a.B.)
18 Nelson v. Waverly (R.M.) (1988) 65 Sask. R. 260 (Sask. a.B.)Beaulac v. Debden Nillage of) (1981) 11 Sask. R. 206 (Sask. a.B.)Bartok v. lantallon Milage of) [1937] 2 W.W.R. 81 (Sask. C.A.)Fafard v. auebec (Citv) (1917) 55 S.C.R. 615, 39 D.L.R. 717(S.C.C.)
19 Arnault v. Board of Police Commissioners of Prince Albert (1995) 136 Sask. R. 49, [1996] 4W.W.R. 38 (a.B.)Morrissette v. Salagubas (1984) 32 Sask. R. 25 (O.B.)Carr v. Forbes (1980) 7 Sask. R. 123 (a.B.)
20 ss. 25-33 of the Criminal Code
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Public Complaints Against Police
If your client is upset with the actions of municipal police, you may wish to advise
them of the public complaints process introduced by The Police Act. 1990. Under this
procedure, a member of the public may make a complaint by completing a form which
should be available from the Office of Public Complaints, Saskatchewan Justice, the local
Board office or the municipal police headquarters. The investigation of the complaint will
be overseen by the Public Complaints Investigator, Elton Gritzfeld, a.c. The complainant
and any member who is the subject of such a complaint are kept advised of the progress
of the investigation through periodic letters until the investigation is completed. At that
time, the complainant is advised of the outcome. If formal discipline proceedings result,
the complainant has a right to be present with counsel.
ASSESSMENT APPEALS
1997 Revaluation
1997 will bring about a province-wide general revaluation of property in
Saskatchewan.21 The last general revaluation occurred over a ten-year period from
1976-1985. The assessed values established at that time generally remain in effect today,
except to account for new construction or demolition of buildings and to account for
limited changes such as zoning or subdivision of land. Those assessed values are based
on 1965 replacement cost with limited depreciation to 1982 for improvements and land
values based on average market values from base years which varied from municipality
to municipality. In Regina and Saskatoon, for example, the last reassessment occurred
in 1984 and was based on 1980/81 market value for land.
The 1997 revaluation will use both a common assessment manual and a common
base year, established by the Saskatchewan Assessment Management Agency for all
21 s 22(1.1) of The Assessment Management Agency Act S.S. 1986, c. A-281
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municipalities in Saskatchewan. There are a number of recent legislative amendments,
which have been passed but not yet proclaimed. For the purposes of the following
discussing I am assuming these laws as enacted. Generally speaking the assessed
values of both land and improvements will be based upon average market values at 30
June 1991. The resulting changes in assessed value may bring about dramatic shifts in
the distribution of the local tax burden amongst properties. Although both the
Government of Saskatchewan and municipal councils will have ways to limit the
immediate effect of this shift, the revaluation will have a sighificant impact on many local
taxpayers.
You may be asked to appeal the new assessments to try to lower the local taxes
levied against the property. Three things of which you should be aware in assessment
appeals are the time period for appealing, the requirement for annual appeals, and the
potential for both gain and loss on appeal.
Umitation Period
You will have thirty days from the date of mailing of the notice of assessment or
the later of the publication or posting of notice of completion of the municipal assessment
roll.22 Notice of assessment is usually mailed to the assessed owner only where there
is a change in the assessment. Since all assessed values will change in 1997, notice of
assessment should be mailed to all assessed owners at the mailing address entered on
the assessment roll. You should not, however, depend upon receipt of the mailed notice.
IneVitably, some mailed notices will be delayed or disappear. The onus is upon the
owner to appeal within the thirty day period. There is no power to extend this statutory
22 R.M.A. 303 and U.M.A. 251
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period for appeal.23
While the revaluation will be well-advertised, the period to appeal will vary from
municipality to municipality depending upon the date of mailing. Generally speaking,
most mailings will likely occur at the end of December or the start of January so most
appeals will have to be filed in the month of January.
Annual Assessments
There are three levels for assessment appeals: the local board of revision as the
trial division; the Saskatchewan Municipal Board's Assessment Appeal Committee for
appeals on the record below; and the Court of Appeal, with leave, on questions of law
or jurisdiction only. Although the board of revision is required to complete its hearings
and render all decisions by June 15 in urban municipalities24 and August 1 in rural
municipalities25, there is no such limitation on the Municipal Board. These time limits
have two implications. First, if you agree to represent an appellant, you will be on a fast
track for presentation of your case at the trial level. Adjournments, if granted, will
23 Investors Group Trust v. City of Regina 11 May 1993 Appeal No. 120/92 (S.M.B.AAC.)
see: Jordan v. Saskatchewan Securities Commission (1968) 64 W.W.A. 121. This judgment wasfollowed in Shell Oil Resources v. Turner (1989) 75 Sask. A. 150 at 152 (Sask. C.A.)
Such time limits have been similarly applied to assessment and development appeals in otherjurisdictions:Saunders Holdings Ltd. v. Provincial Municipal Assessor (Man.) (1991) 76 Man. A. (2d) and 10WAC. 302 at 303 (Man. C.A.)Re City of St. John's and F.W. Woolworth Co. Ltd. (1981) 130 D.LR. (3d) 171 at 173 (Nfld. C.A.)Glow-Worm Investments Ltd. v. Atlantic Shopping Centers (1981) 46 N.S.R. 89 A.P.A. 223 at 225(N.S.CA)Stuart Olson Construction v. Edmonton (1977) 3 M.P.LA. 95 at 99 (Alta. CA)Re Fraser and J. Stollar Construction Ltd. [1972] 2 O.R. 352 at 353 (ant. CA)Mady v. City of Windsor (1966] 1 O.A. 242 at 243 (ant. Co. Crt.)
24 UMA 215.
25 RMA 312.
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necessarily be short. Second, the Municipal Board has in the past been unable to hear)
and determine appeals against decisions of Boards of Revision within the calendar of
filing. This will almost certainly continue with the expected flood of appeals attendant
upon the general revaluation. If an appeal is made to the Municipal Board against the
decision of the Board of Revision, the owner must be prepared to take steps to protect
its interest in subsequent assessment years by filing and pursuing new appeals each
year.26 While the original appeal is outstanding, the assessor will usually leave the
original assessment unchanged for subsequent years. The decision of the board,
however, is not stayed by an outstanding appeal nor is the tax enforcement process. It
isa case of IIpay now, argue laterll• No interest is paid on refunds. At the same time, no
late payment penalties are added where a reduction in assessed value is later reversed.
Appeal Fees and Outcome
Recent amendments to the Municipal Acts27 will introduce filing fees for
assessment appeals to the Board of Revision, in addition to the existing regime of fees
for appeals to the Municipal Board. Appeals will be struck if these fees are not paid.
Perhaps more important to the owner, however, is the ability of the appellate
tribunals to both reduce or raise the assessed value on appeal. In other words, it is not
a IIno losell situation. It may not be prudent, therefore, to file an appeal unless there is
some realistic chance of success. If it turns out the property is underassessed, the Board
at either level may order an increase in assessed value to correct the assessment. The
rationale is that these tribunals are not there simply to adjudicate a dispute between two
26 Fennell Holding Ltd. v. City of Regina 28 January 1991 Appeal No. 181 - 184/90 (S.M.B.AAC.)Northern Telecom Ltee. v. Cormier [1988] 1 S.C.R. 966, (1988) 38 M.P.L.R. 190 (S.C.C.)
27 The Northern Municipalities Amendment Act. 1996 S.S. 1996, c. 54The Rural Municipalitv Amendment Act. 1996 S.S. 1996, c. 58The Urban Municipalitv Amendment Act. 1996 S.S. 1996, c. 67
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') parties, but also to correct any errors in assessment to ensure the dominant principle of
equity prevails. If some properties remain under-assessed, then other owners end up
subsidizing them.
Further, although I am not aware of any precedent in Saskatchewan, assessment
tribunals elsewhere have taken the position that there is no "right" to withdraw an appeal
once it is filed. The appellant can potentially end up worse off than if there was no
appeal.
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TRANSFER OF REAL PROPERlY
Lawyers involved in real estate transactions should be aware of the following
municipal aspects.
PROPERlY TAXES
Except in the case of tax exempt property, where a taxable occupant may be
personally liable for payment of property tax, property taxes attach to the property as an
unregistered lien which survives the transfer of title.28 For this reason, lawyers will obtain
a tax certificate from the municipality and adjust any tax liability or credit between vendor
and purchaser at the time of sale. Not all lawyers may fully appreciate, however, the
effect of revaluation, the personal liability of both current and previous owners for
property taxes and the limited application of the tax certificate.
Revaluation
As discussed above, the 1997 revaluation will change all assessed values. As a
result, taxes levied this year will not be a reliable estimate for 1997. Keep this in mind
when making adjustments between vendor and purchaser. Until the 1997 final tax notice
is issued, estimates based on 1996 taxes are unreliable.
Personal Uability and Remedies
Although municipalities usually look to the land in tax enforcement proceedings
under The Tax Enforcement Act, owners remain personally liable for taxes up until the
date of acquisition of the real property by the municipality. As property values have
fallen, civil action against owners has become more attractive to municipalities..
28RMA 344 and UMA 299.s. 69(a) of The Land Titles Act also provides that any transfer of title is subject to all unpaid taxes.s. 30(1) of The Tax Enforcement Act provides that no tax lien shall be removed until all tax arrearsare paid. (payments are applied to current taxes first)
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Property taxes and occupancy taxes can be recovered from any owner or tenant,
respectively, who was originally liable for the taxes and from any subsequent owner of
the whole or any part of the land29• In other words, an owner cannot simply "walk away"
from property taxes.
The municipality has several remedies available to enforce payment of outstanding
property taxes: civil action30, distress on personal property31, attachment of rents32,
or insurance proceeds33, and the acquisition of real property, through a voluntary
transfer in settlement of the tax debt34 or by involuntary sale of the real property under
The Tax Enforcement Act. These statutory remedies are the only methods available to
the municipality to compel payment of taxes.35 The municipality may avail itself of
whichever remedy it considers appropriate.36 It would seem, however, that these
remedies cannot be pursued concurrently except where the statute expressly allows.
During a distress on personal property, therefore, the right to jUdgment on a civil suit is
suspended until the distress and sale of personal property seized is completed.37
Section 10(4) of The Tax Enforcement Act, however, does provides that a tax lien may
be filed notwithstanding any distress that may be upon the land. Section 15 of that Act
29 UMA 298; see also Dunn v. Moose Jaw [1921] 2 W.W.A. 881 at 882 (Sask. C.A.)
30 RMA 381 and UMA 299.1.
31 RMA 370 and 374 and UMA 299.
32 RMA 367 and 369 and UMA 300.
33 RMA 365 and UMA 308.
34 RMA 384-385 and UMA 170.
35 Reliance Lbr. Co. v. Village of Semans [1924] 1 W.W.A. 1203 at 1207 and 1208 (Sask. C.A.)
36 Local Improvement District No. 453 v. North Saskatchewan Land Co. [1917] 2 W.W.A. 138 at 140(All. Dist. Crt.)
37 Gisalon v. A.M. of Foam Lake [1929] 1 W.W.A. 233 at 238 (Sask. C.A.)
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also provides that a municipality may exercise any powers conferred on it by any other
Act for the recovery of property taxes, notwithstanding the registration of a tax lien on the
property.
Until acquisition of title, therefore, the municipality may pursue its remedies,
including civil suit, against both the current and former owner to the extent of their
personalliability.38 Further, there is no limitation on the time within which a municipality
may commence action or take proceedings for the recovery of taxes39•
Once a municipality takes title to land for property taxes, however, it must remove
the taxes from the tax roll.40 The municipality then assumes responsibility for all
outstanding taxes.41 The former owners are then relieved of any responsibility and
cannot thereafter be sued to recover the taxes as a debt,42
Tax Certificate
Municipalities are required by statute to provide a tax certificate showing the
amount of taxes due on the requested property. The municipality must produce this
certificate on demand and can only charge ten dollars43• Once issued, the recipient is
entitled to rely upon the information provided and the municipality is bound by the
38 Swift Current (City) v. Western Credit Union Limited 27 January 1993 J.c.S.C.a.B. No. 193/92(Sask. a.B. McLellan, J.) unreported
39 RMA 405 and UMA 319(2).
40 S. 34 of The Tax Enforcement Act
41 Smart Hardware Co. v. Meltort (1917) 32 D.L.A. 552 at 555, 10 S.L.A. 40 (Sask. C.A.)
42 Village of Leslie v. Bronfman [1922] 3 W.W.R. 804 at 808-810
43 RMA 395; UMA 297.1; The Urban Municipality Regulations (No. 20), s. 16.
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) certificate44•
It is common practice for lawyers to obtain tax certificates to protect both the client
and the lawyer. The certificate, however, only purports to state what is due and owing
at that time. There remains the possibility of the subsequent addition of charges which
arose from prior events.
Assessment Appeals
A decision on an outstanding assessment appeal can result in a credit or debit to
the property tax account45• Where a property has transferred since the filing of the
appeal, it is the current owner who reaps the entire benefit or burden. This can be a
significant amount, especially if the decision applies to more than one year's appeal.
Because the tax certificate only states taxes due (and does not account for future
contingencies), the issuance of a previous tax certificate showing no taxes owing will not
bar recovery of the new tax charge.46
Supplementary Assessment
Although the assessment roll is completed at the start of each year and the mill
rate is struck in spring or early summer, additional taxes may be levied later in the year
as the result of a supplementary assessment. Supplementary property assessments are
limited to new construction or registration of a subdivision or condominium plan.47
Similarly, demolitions may result in a tax credit. In either case, it is the current owner who
44 See Melville Holdings Ltd. v. Melville. City of (1981) 13 Sask. R. 59 (Sask. CA)
45 RMA 322 and UMA 284.
46 Hensrud v. Regina (City) (1994) 125 Sask. R. 208, 81 WAC. 208, [1994] 10 W.W.R. iv, 121 D.L.R.(4th) 188 (Sask. C.A.): affirming (1994) 119 Sask. .R. 97,21 M.P.L.R. (2d) 35,115 D.L.R. (4th) 69,[1994] 6 W.W.R. 751 (Sask. a.B.)
47 RMA 324 and UMA 269 and 270.
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gets the burden or benefit. In the event of a recent transfer of title, you may have the
vendor seeking a piece of the pie or the purchaser looking for someone to pay the bill.
In either event, you don't want to be blamed. Nor, in my opinion, should you be since
these parties should have knowledge of the change in condition of the property at the
time of sale. If your client tells you before hand, you may want to consider whether a
condition should be imposed for joint-sharing of the potential credit or charge. This may
be difficult to administer and may be speculative since the assessor may be unaware of
the change or simply choose not to bother with a supplementary assessment due to
more pressing demands.
Local Improvement Charges
Public works which abut or benefit the property (sidewalks and curbs, water and
sewer lines, etc.) may be carried out as local improvements. When done this way, the
cost or a portion of the cost is charged to the property. The owner can choose either
to pay the entire cost at one time or amortize payments over several years. In most
cases, owners choose to make annual payments. Since the local improvement process
is initiated before the work is carried out and often allows owners the opportunity to
petition against the work, the amount of the charge is unknown and may be speculative.
Until the amount is determined, after completion of the work, notice of pending local
. improvements may be stated on the tax certificate. Once the amount is determined and
the owner has elected annual payments, notice is removed and the annual payments are
simply added to the annual tax levy in the tax notice.
If the owner is expecting to sell the property, the owner will almost certainly opt for
the annual payments. This may result in a higher tax bill than anticipated by the new
owner, if the new owner was estimating annual taxes based upon prior year's property
taxes only. A disgruntled purchaser may complain that they were mislead and argue that
a condition should have been imposed to require that the vendor pay the full local
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improvement charges. On the other hand, it is the new owner who benefits from the new
public works.
Water and Sewer Utility Charges
Outstanding charges for public utility service supplied to the owner of the property
constitute a lien on the real property which may be added to the property taxes at year
end.48 Since water and sewer charges are usually based upon water meter readings,
the municipality cannot know what is owed on any given day. It is, therefore, prudent to
inquire as to whether any charges are currently outstanding, maintain a holdback
adequate to satisfy current and anticipated charges and arrange for a meter reading soon
after possession date to ensure full payment.
Property Nuisance Charges
If your client is purchasing a derelict property, you may wish to inquire as to any
pending action or charges which may be added to the property taxes as a result of
municipal action to remedy any nuisance created by the property. Property nuisances
may take the form of dilapidated or damaged buildings,49 buildings which fall below
minimum standards for habitation,50 weeds,51 untidy yards,52 open excavations,53
or derelict vehicles on the yard.54 In any of these cases, the municipality may order the
owner to remedy the nuisance. If the order is not satisfied within the prescribed period,
48 RMA 233 and UMA 195.
49 RMA 248 and UMA 124 and 125.
50 UMA 126.
51 The Noxious Weeds Act, RMA 206(2)(n) and UMA 127.
52 RMA 250 and UMA 130.
53 RMA 249 and UMA 134.
54 RMA 251 and UMA 132.
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the municipality may do the necessary work and add the cost to the taxes. A new owner
may be caught with either an outstanding order or charges added after the transfer of
title for work done before. Municipalities take the position these orders and charges
apply to the land regardless of change in ownership. Only in the case of the actions to
remedy dilapidated buildings or buildings which fall below minimum standards for
habitation is the municipality entitled to place a caveat at Land Titles and this power is
discretionary.55 Apart from the charges, the new owner may also find the offending
building demolished. This can also occur for a new building for which the necessary
permits were not obtained.56 There is also a general power to remedy any breach of
a bylaw occurring on a property and add the cost to the property taxes.57
ENCROACHMENTS
A current Real Property Report/(Surveyor's Certificate) will, amongst other things,
reveal any building encroachment upon the adjacent right of way/road allowance.
Although the municipality is entitled to its removal, old, minor encroachments are typically
handled through an encroachment agreement under which the owner pays an annual fee
for the privilege of maintaining the encroachment.58
The municipality cannot, however, bind the Crown, which is the owner of all public
right-of-way. An encroachment agreement with the municipality only may not provide any
protection in the event of work by Highways or a Crown utility. It is preferable, therefore,
to also obtain the agreement of the Minister of Highways to the encroachment agreement.
All of this will take time and may affect the date of closing of the sale.
55 UMA 124(3.2) and 126(5.1)
56 UMA 122(9)
57 RMA 173, UMA 84
56 UMA 313.
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DEVELOPMENTS
Lawyers acting for clients who intend to develop property should be aware of
some of the typical costs and restrictions associated with developments. This information
can usually be obtained from the local development officer. This can avoid unwelcome
surprises which can kill a development and bankrupt the developer. To protect
everyone's interest, these inquiries and answers should be made in writing.
SubdMsion Requirements
Subdivision of a parcel into two or more smaller parcels requires the approval of
municipal council and may require dedication of a portion of the land for public purposes
(roadways, greenspace) or cash-in-Iieu, payment for infrastructure development, and
payment of hectarage assessment charges. Hectarage assessment charges are intended
to cover the added costs to the municipality associated with new developments.
Although these costs are typically associated with large developers, small developments
may also be subject to these charges.59
Zoning Controls60
When acquiring real property, it may be advisable to. obtain a Zoning
Clearance/Building Siting Certificate. To obtain this information, you should write to the
local development officer describing the intended use or proposed development. This
59 see: The Planning and Development Act, 1983 S.S. 1983-84, c. P-13.1see also: Woynarowich v. City of Regina 10 August 1981 J.C.A. D.C.M. 245 of 1981 (Sask. a.B.McLelland, J.)- respecting heetarage assessmentNeumann v. Saskatoon (City) (1994) 128 Sask. A. and 85 WAC. 82 (Sask. CA)Marathon ReaJtv Co. Ltd. v. City of Regina (1989) 80 Sask. A. 53 (Sask. C.A.)Linn (H.D. Development Services Inc. v. Talbot (1986) 53 Sask. A. 58 (Sask. C.A.)For an old, but still excellent discussion of subdivision controls, see: Milner, J.B. "An Introductionto Subdivision Control Legislation" (1965) 43 The Canadian Bar Review 49- respecting subdivision approval
60 For a good general review of zoning controls, see: Milner, J.B. "An Introduction to Zoning ControlLegislation" March 1962, XL The Canadian Bar Review 1
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can avoid problems for both residential and commercial properties. The development
officer can also then ensure you receive notice of any pending re-zoning which may affect
the development potential of the property.
The existing use or development may, for example, be allowed as a "lawful non
conforming use" (a use or development allowed at the time of development, but since
disallowed by a change to the Zoning Bylaw).61 This "grandfather protection" only
applies, however, to the original development or continuous use. If the non-conforming
building is demolished, it cannot be rebuilt, except as allowed by the current zoning. If
a non-conforming use is discontinued for six months, it cannot be resumed. Nor can a
non-conforming building or use be expanded. The development potential of such a site
is, therefore, limited.
It is not unusual for vendors and realtors to advertise homes with "basement
suites". Often these "suites" are illegal. If the purchaser is depending upon rental income
to pay the mortgage, the legality may be of more than passing interest.
A purchaser planning to work out of the home should know whether "home
occupations" are permitted and, if so, what restrictions apply to that zone. For example,
the home occupation may be permitted, but may not allow for advertising, business
callers or parking of business vehicles. Again, these may be important considerations
to the potential purchaser.
In the case of commercial developments, there may be off-site parking
requirement. If the site is too small to accommodate both the building and the parking,
the use will not be permitted until the required number off-street parking stalls are
obtained at another site in the vicinity, which must then be caveated to maintain the
61 ss. 113 - 118 of The Planning and Development Act. 1983
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dedicated parking stalls.52 Again, if this is not anticipated, the cost in time and money
may harm the development and cause aggravation all around.
Finally, any development within one of the urban park authorities (Wascana Park
in Regina, Meewasin Valley in Saskatoon, Wakamow Valley in Moose Jaw) must also
satisfy additional development controls imposed by the Authority.
Heritage Designation
Both individually designated properties and defined areas may be subject to
heritage controls. While the designated properties are usually caveated at Land Titles,
properties within areas defined by a municipal holding bylaw are not. The effect of the
holding bylaw is to give municipal council with time to consider whether a particular
property merits heritage designation before demolition or re-development can occur. To
allow for this, applications for a demolition or building permit are subject to a special
waiting period. Any planned re-development will certainly be delayed and may be
prevented.
Uability of the Owner
Landlords should understand that they may be subject to both civil liability and
. prosecution for breaches of municipal bylaws controlling the use of their property.
Owners have, for example, been sued for deaths and injuries from fires based on their
failure to ensure that smoke alarms were placed or inspected on the premises, as
required by the Fire Code. Similarly, landlords have been prosecuted for zoning, fire and
building bylaw violations. Since such offences are considered IIstrict Iiabilityll offences,
due diligence is the only defence available. Owners cannot contract out of their
responsibilities under these bylaws. The mere fact of a lease is no defence. Owners
may, therefore, wish to ensure that the intended use of their property by potential tenants
62 s. 215 of The Planning and Development Act. 1983
is lawful, before granting a lease.
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FINAL ADVICE
Mistakes happen. When they involve a municipality, you may wish to seek
assistance from municipal counselor council. Your client is likely not simply a party, but
also a citizen. As such, both counselor council may be willing to work with you and your
client to resolve the problem. The legal avenue is not the only nor always the best road.
Municipal council, after all, is a political body responsible to its electors.
Finally, I leave you with the advice embodied in "A Lawyer's Prayer", by St. Thomas
More, patron saint of lawyers"
Lord grant that I may be able in argument,accurate in analysis,strict in study,candid with clients,and honest with adversaries.
Sit with me at my desk,and listen with me to client's plaints.Read with me in my library,and stand beside me in court,so that today I shall not,in order to win a point,lose my soul.
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