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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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