Can Municipal Councillors Be Personally Liable For Drinking Water?

Municipal councillors are generally protected from personal liability, for any decisions they make in good faith in the course of their duties. This protection is incorporated into Municipal Acts of each province. For example, the Municipal Government Act of Alberta states:

535(2) Councillors, council committee members, municipal officers and volunteer workers are not liable for loss or damage caused by anything said or done or omitted to be done in good faith in the performance or intended performance of their functions, duties or powers under this Act or any other enactment.

In Gook v. Quesnel1, Justice Smith explained why:

97 The obvious policy reason behind this general immunity is that there is a major public interest in the democratic administration of municipalities, which requires that individuals in those communities be willing to run for office. There are numerous ways that actions taken by a municipal council may be subsequently found to be unlawful...particularly ... in smaller municipalities such as Quesnel, which may not have the in-house legal staff present in larger cities. Without the protection from personal liability that s. 287 provides, individuals would be reluctant to seek municipal office.

There is usually an exception for unlawfully spending civic funds, but even this is strictly construed

99 ..... If council members could be held personally liable for unlawful expenditures even where they acted honestly, reasonably and with no knowledge that the action was unlawful, it is difficult to imagine why any reasonable person would be willing to run for office.2

It is against this background that Ontario municipal councillors and senior staff are nervously awaiting December 31, 2012, when s. 14 and 19 of the Safe Drinking Water Act, 2002 (SDWA) come into force. Among others, section 19 imposes a personal duty on "every person who, on behalf of the municipality, oversees the accredited operating authority of the [drinking water] system or exercises decision-making authority over the system." That duty is to

exercise the level of care, diligence and skill in respect of a municipal drinking water system that a reasonably prudent person would be expected to exercise in a similar situation; and act honestly, competently and with integrity, with a view to ensuring the protection and safety of the users of the municipal drinking water system. 2002, c. 32, s. 19 (1). Every one who fails to carry out this duty is guilty of an...