Court of Appeal Clarifies: No Private Law Duty of Care Owed to Applicants in Council Meetings

On July 25, 2012, the BC Court of Appeal dismissed the appeal in P.S.D. Enterprises Ltd. v. New Westminster (City), 2012 BCCA 319. Although the appeal was dismissed, the majority found that the trial judge misapprehended the effect of s. 890 of the Local Government Act.The trial judge appeared to draw a distinction between private and public communications to council, when in fact s. 890 applies to both. However, the majority held that the error was not significant or material in the circumstances.

The majority further found that the trial judge erred when she held that the City owed PSD a private law duty of care to follow its own policies and bylaw regarding the council meeting process. The trial judge had found that the City clerk’s failure to stop the applicant from speaking at the council meeting was operational. On appeal, the City argued that the failure occurred in a quasi-judicial context, and that the judge failed to apply settled law regarding the immunity from liability that attaches to such functions.

The Court of Appeal held that the trial judge took an overly narrow view and thus eliminated the proper context of the function at issue, which was in fact quasi-judicial. The Court of Appeal went on to note that council has a public law duty to follow the procedural bylaw’s provisions, but held that a private law duty should not be superimposed on that public duty. To do so would unduly encumber the City’s quasi-judicial function with the threat of private tort liability. This decision can be found on the British Columbia Court of Appeal Website.