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SM 2002, c. 39

The City of Winnipeg Charter

File 1: s. 1 to 223 (Parts 1 to 5)
File 2: s. 224 to 539 (Parts 6 to 12)

PART 6

PLANNING AND DEVELOPMENT

DIVISION 1

PLANS

PLAN WINNIPEG

Adoption of Plan Winnipeg

224         Council must, by by-law, adopt a development plan, in this Part referred to as "Plan Winnipeg", which must set out

(a) the city's long-term plans and policies respecting

(i) its purposes,

(ii) its physical, social, environmental and economic objectives, and

(iii) sustainable land uses and development;

(b) measures for implementing the plan; and

(c) such other matters as the minister or council considers necessary or advisable.

Initiation of amendments to Plan Winnipeg

225(1)      An amendment to Plan Winnipeg may be initiated by

(a) council; or

(b) an application

(i) made by the owner of real property to which the application refers, and

(ii) filed with a designated employee.

Right to hearing

225(2)      Subject to subsection (3), where an owner of property applies under clause (1)(b) for an amendment to Plan Winnipeg, the person is entitled to have the application dealt with at a hearing under subsection 227(1).

Application may be refused

225(3)      An application made under clause (1)(b) may be refused without a hearing if,

(a) in the opinion of executive policy committee, it is without merit; or

(b) in the opinion of a designated employee, it is the same as or substantially similar to an earlier application that was rejected under subsection 227(2) within one year before the day when the new application is made.

Periodic review

226(1)      Council must begin a review of Plan Winnipeg

(a) when required to do so by an order made under subsection (2); and

(b) at least once within five years after each re-adoption or replacement of the plan.

Minister's order to review

226(2)      After consulting with council the minister may, in writing, order council to review Plan Winnipeg or to pass a by-law to replace, re-adopt or amend it within a time specified in the order, or such extension of that time as the minister may by further order allow.

Method of review

226(3)      A review of Plan Winnipeg must include a comprehensive examination of the plans and policies in Plan Winnipeg, and public meetings to obtain representations from citizens, organizations and agencies respecting the review of Plan Winnipeg.

By-law to be re-enacted, amended or replaced

226(4)      On completing a review of Plan Winnipeg, council shall pass a by-law to re-enact, amend, or replace it, in accordance with the process set out in sections 227 to 233.

Conformance with provincial land use policies

226(5)      Plan Winnipeg, as it is re-enacted, amended or replaced, must conform with provincial land use policies that apply to the city.

PLAN WINNIPEG BY-LAWS

Hearings on Plan Winnipeg by-laws

227(1)      After council gives first reading to a proposed Plan Winnipeg by-law, and before second reading,

(a) the city must give notice of a hearing by the executive policy committee of council respecting the proposed by-law; and

(b) the executive policy committee must conduct a hearing and submit its report respecting the proposed by-law to council.

Second reading of proposed by-law

227(2)      After receiving a report from the executive policy committee of council respecting a Plan Winnipeg by-law, council may, without further notice,

(a) proceed to give second reading to the by-law as originally proposed or with amendments; or

(b) reject the by-law either in whole or in part.

Submission to minister

228(1)      As soon as practicable after a proposed Plan Winnipeg by-law is given second reading, the city must submit to the minister

(a) a certified copy of the proposed by-law, or such greater number of certified copies of the proposed by-law as the minister may request;

(b) a copy of the report of the executive policy committee of council respecting the proposed by-law; and

(c) such other information and material as the minister may request;

and council must not pass the proposed by-law until the minister approves it in writing.

Notice of second reading

228(2)      As soon as practicable after complying with subsection (1) in respect of the proposed by-law, the city must give notice by ordinary mail to every person who made submissions at the hearing conducted by the executive policy committee of council respecting the proposed by-law, stating that

(a) council has given second reading to the proposed by-law;

(b) a copy of the proposed by-law has been submitted to the minister for approval; and

(c) any person who made submissions at the hearing respecting the proposed by-law may file an objection, with stated reasons, with the minister within 14 days after the day the notice is given.

MINISTER'S ACTIONS

Decision of minister

229(1)      On receiving a copy of a proposed Plan Winnipeg by-law and any objections to the proposed by-law, the minister may

(a) approve or reject the proposed by-law; or

(b) approve the proposed by-law subject to conditions.

Referral to Municipal Board

229(2)      Before making a decision under subsection (1), the minister may refer a proposed Plan Winnipeg by-law to The Municipal Board.

Where by-law approved by minister

229(3)      Where, under subsection (1), the minister approves a proposed Plan Winnipeg by-law or approves it subject to conditions, the minister must forward the proposed by-law, as approved, to council which may, if it complies with any conditions on the approval, pass the by-law as approved.

Hearing by Municipal Board

230(1)      Where the minister refers a proposed Plan Winnipeg by-law to The Municipal Board, the board must

(a) give notice of a hearing respecting the proposed by-law by ordinary mail to

(i) the city,

(ii) every person who made submissions at the hearing conducted by the executive policy committee of council respecting the proposed by-law,

(iii) every person who filed with the minister an objection to the proposed by-law, and

(iv) such other persons as the board considers advisable,

and give such other notice of the hearing and in such other manner as the board considers advisable;

(b) conduct a hearing respecting the proposed by-law; and

(c) submit a report, with recommendations, to the minister in respect of the proposed by-law.

Adoption after Municipal Board report

230(2)      After a report of The Municipal Board is submitted under subsection (1) to the minister, the minister must give written notice to the city of the minister's decision to approve the proposed by-law, to approve it subject to conditions or reject it and, if the minister approves it or approves it subject to conditions, council may, if it complies with any conditions on the approval, pass the by-law as approved.

Forwarding copy of by-law to minister

231         As soon as practicable after council passes a Plan Winnipeg by-law, the city must forward to the minister a certified copy of the by-law or such greater number of certified copies of the by-law as the minister may request.

Referral of Plan Winnipeg by-law to L. G. in C.

232(1)      Where council fails

(a) to re-adopt, replace or amend Plan Winnipeg as ordered by the minister under subsection 226(2) (minister's order to review); or

(b) to comply with any condition to which an approval of a proposed Plan Winnipeg by-law by the minister is made subject under subsection 229(1) (decision of minister) or 230(2) (adoption after Municipal Board report);

the minister may refer a proposed Plan Winnipeg by-law to the Lieutenant Governor in Council.

Enactment of by-law by L. G. in C.

232(2)       Where the minister refers a proposed Plan Winnipeg by-law to the Lieutenant Governor in Council under subsection (1), the Lieutenant Governor in Council may by order enact it, or an amended form of it, and any such Plan Winnipeg by-law so enacted has the same force and effect as if it had been passed by council under this Division.

Public notice of Plan Winnipeg by-law

233         After a Plan Winnipeg by-law is passed, the city must give public notice of the by-law.

SECONDARY PLANS

Adoption of secondary plans

234(1)      Council may by by-law adopt a secondary plan to provide such objectives and actions as council considers necessary or advisable to address, in a neighbourhood, district or area of the city, any matter within a sphere of authority of the city, including, without limitation, any matter

(a) dealt with in Plan Winnipeg; or

(b) pertaining to economic development or the enhancement or special protection of heritage resources or sensitive lands.

Conformity with Plan Winnipeg

234(2)      A secondary plan by-law must be consistent with Plan Winnipeg.

Hearing on secondary plan by-law

234(3)      After council gives first reading to a proposed secondary plan by-law,

(a) the city must give notice of a hearing by a committee of council respecting the proposed by-law; and

(b) the committee of council designated for the purpose must conduct a hearing respecting the proposed by-law and submit its report respecting the proposed by-law to council.

EFFECT OF PLAN BY-LAWS

Compliance with plan by-laws

235         The passing of a Plan Winnipeg by-law or a secondary plan by-law does not require council, any person, or any department or agency of the government, to undertake a proposal contained in the by-law, but public works, undertakings and development in the city must be consistent with Plan Winnipeg or any secondary plan.

DIVISION 2

DEVELOPMENT

Council to pass zoning by-laws

236(1)      Council must pass zoning by-laws to control or prohibit the use of real property and development in the city or parts of the city.

Content of zoning by-law

236(2)      A zoning by-law may provide for any of the following:

(a) classifications of uses of land and buildings;

(b) permitted and conditional uses of real property;

(c) the number and dimensions of dwelling units or non-residential buildings permitted on a lot or other land;

(d) the area and dimensions of lots or other units of land;

(e) the number, lot coverage, floor area, dimensions and locations of buildings on units of land;

(f) the location, height and maintenance of fences and walls;

(g) open space around and between buildings and minimum distances between buildings;

(h) landscaping and buffers between buildings, units of land, and different uses of real property;

(i) establishment and maintenance of parking and loading facilities;

(j) the design details of buildings and building sites, including vacant sites, and the establishment of committees or boards to approve designs;

(k) the location, dimensions and number of access points from a unit of land to a street;

(l) the use and placement of exterior lighting on land and the exterior of buildings;

(m) the outdoor storage of goods, including machinery, building materials and waste materials;

(n) the removal, deposit or movement of soil, gravel or other material;

(o) the cutting and removal of vegetation;

(p) the placement of pedestrian walkways;

(q) the kind, number, nature, location and dimensions of outdoor signs and displays;

(r) the protection of scenic areas, heritage resources and sensitive land;

(s) the protection of waterways, including setbacks of buildings from a waterway;

(t) the protection of a water or sewage treatment facility, waste disposal facility or any other utility or public work from incompatible uses;

(u) the sequence in which development is undertaken;

(v) such other matters as council consider necessary or advisable.

Hearing on zoning by-law

236(3)      Before or after council gives first reading to a proposed zoning by-law,

(a) it must be referred to a designated committee of council;

(b) the city must give notice of a hearing by the designated committee of council respecting the proposed by-law; and

(c) the designated committee of council must conduct a hearing, and submit a report to council, about the proposed by-law.

S.M. 2004, c. 42, s. 58.

Where non-conforming use not permitted

237         Where a zoning by-law provides

(a) that it is to have force and effect for a period of time or until the occurrence of a specified event; and

(b) that, on the expiry of the period or the occurrence of the event, real property affected by the by-law will become subject to other provisions set out or referred to in the by-law;

subsection 241(1) (previously conforming buildings and uses) does not apply to development existing before the adoption of the by-law or established after, and in conformity with, the by-law unless the by-law so provides.

Effect of zoning by-law on caveats

238         A zoning by-law does not rescind or affect the right of any person to enforce a restriction, interest or covenant affecting land if the restriction, interest or covenant is registered against the land in the land titles office.

Amendment required by Municipal Board

239         An order of The Municipal Board made under subsection 95(1) (application for cancellation of plans) of The Municipal Board Act may require the amendment of a zoning by-law to co-ordinate the zoning by-law with a new plan of subdivision in a case in which the Registrar General imposes a requirement that affects the new plan of subdivision if, in the opinion of The Municipal Board, the amendment does not constitute a significant change in the zoning by-law.

DEVELOPMENT AGREEMENTS

Authority for development agreements

240(1)      Where an application is made under subsection 275(1) (initiation of development proposals) for adoption of, or amendment to, a zoning by-law, the city may, as a condition of adopting the proposed zoning by-law, require the owner of real property affected by the application to enter into a development agreement with the city respecting the development and any adjacent real property owned or leased by the owner, and such agreements may provide for any of the following:

(a) the use of the land and any existing or proposed building;

(b) the timing of construction of a proposed building;

(c) the siting and design of a proposed building, including the materials to be used for the exterior of the building;

(d) traffic control and parking facilities;

(e) landscaping, open space, and grading of land;

(f) any condition described in subsection 259(1).

Registration of agreement in L.T.O.

240(2)      An agreement referred to in subsection (1) may provide that it runs with the land referred to in the agreement, and an instrument that indicates the existence of the agreement may be registered against the land in the land titles office.

Agreement binding on successors

240(3)      When an instrument in respect of a development agreement is registered under subsection (2), the agreement binds the owner of the land referred to in the agreement and the owner's heirs, executors, administrators, successors and assigns without special mention in the instrument of the details of the agreement.

Timing of agreement and by-law

240(4)      Council may authorize the execution of a development agreement before passing a zoning by-law, but such a development agreement is subject to the approval of council and to the adoption of a zoning by-law.

NON-CONFORMING USES

Previously conforming building and use continued

241(1)      A building, or a use of real property, that complies with zoning by-laws before the adoption of a new zoning by-law may continue notwithstanding that the building or use does not conform with the provisions of the new zoning by-law.

What constitutes existing building

241(2)      Subsection (1) applies to a building that, on the day a new zoning by-law comes into force, is lawfully under construction, or for which a permit for its construction is in force.

Certificate may be issued

242         On application of a person who has an interest in real property that does not conform, or the use of which does not conform, with a zoning by-law, a designated employee may issue a certificate respecting the existence or use of the real property, and the certificate is conclusive proof of the facts stated in it.

Limitation on alteration or addition

243(1)      Construction may be carried out in respect of a building that does not conform with a zoning by-law if the construction

(a) does not increase the non-conformity; and

(b) otherwise conforms with the zoning by-law, other by-laws and any variance approved under this Part.

Damaged non-conforming building

243(2)      Where

(a) a building that does not conform with a zoning by-law is damaged or destroyed; and

(b) a designated employee determines that the cost of repairing or rebuilding the building is more than 50%, or such greater percentage as may be specified in the zoning by-law, of the cost of constructing an equivalent new building;

the building must not be repaired or rebuilt except in conformity with the zoning by-law and any variance approved under this Part.

Non-conforming use ending after 12 months

244(1)      Where

(a) the use of real property does not conform with a zoning by-law; and

(b) the real property is abandoned or not so used for 12 consecutive months;

the real property must not be used after that except in conformity with the by-law.

Effect of change of ownership on use

244(2)      A change of owners, tenants or occupants of real property is not in itself a change of use of the real property for the purpose of this section.

Cancellation of permits

245(1)      Council may cancel a permit issued under this Act if the development authorized by the permit has not begun before the passing of a zoning by-law that prohibits the issuance of such a permit.

Expenses where permit cancelled

245(2)       If a permit is cancelled under subsection (1), the city must pay the permit holder such expenses for preparation of plans and any promotion in respect of the development or building for which the permit was issued as may be agreed upon by the city and the person and, if they are unable to agree upon the expenses, the person may require the city to submit the person's claim to arbitration by serving a written notice to that effect on the city.

Arbitration

245(3)      An arbitration of a claim under subsection (2) must be conducted by an arbitrator appointed under The Arbitration Act by the parties to the arbitration or, if they are unable to agree on an appointment, by the minister.

Withholding permit

246(1)      Despite any other provision of this Act, council may require a permit under this Act to be withheld for not more than 60 days after the day the application for the permit is made.

Extension of withholding

246(2)      Within the period for which the issuance of a permit is withheld under subsection (1), council must consider the application for the permit and may

(a) reject the application if council considers that the proposed development for which it is intended does not conform with a Plan Winnipeg by-law or a secondary plan by-law;

(b) require the permit to be withheld for a further period of not more than 90 days if council considers that the proposed development for which it is intended does not conform with

(i) a proposed Plan Winnipeg by-law or secondary plan by-law that is not in force but, before the application was made, had been initiated under subsection 225(1) (initiation of amendment to Plan Winnipeg) or proposed under section 234 (adoption of secondary plans), or

(ii) a proposed zoning by-law that, before the application was made, had been referred under subsection 236(3) (hearing on zoning by-law) to a committee of council or a planning commission; and

(c) where the issuance of the permit has been withheld for a further period under clause (b), require the permit to be withheld for a further period of not more than 35 days if

(i) the proposed Plan Winnipeg by-law was submitted to the minister in accordance with this Part before the application was made or before the expiry of the period for which the permit was withheld under clause (b) and the decision of the minister under section 229 (decision of minister) or an order of the Lieutenant Governor in Council under section 232 (referral to L. G. in C.) is received before the expiry of that period, or

(ii) the report of the committee of council or the planning commission to which the proposed secondary plan by-law or zoning by-law had been referred was not received by council before the expiry of the period for which the permit was withheld under clause (b), or was received before the expiry of that period but the report recommended amendments to the proposed by-law.

Compensation

246(3)      Where a Plan Winnipeg by-law, secondary plan by-law or zoning by-law comes into force within the periods for which the issuance of a permit is withheld under subsections (1) and (2), the application for the permit may be refused if the development for which the permit is intended does not conform with the by-law, but where council does not pass such a by-law within those periods,

(a) the permit must not be further withheld; and

(b) the owner of the land in respect of which the permit is withheld under clause (2)(b) or (c) is entitled to compensation for damages resulting from the withholding of the permit, and subsections 245(2) and (3) (where permit cancelled) apply, with necessary changes, in respect of the withholding.

VARIANCES

Approval of variances

247(1)      Subject to this section, variances which modify provisions of zoning by-laws may be approved.

Authority respecting variances

247(2)      Council may by by-law authorize a designated employee or a planning commission to consider, and make decisions in respect of, applications for variances or specified types of variances and applications for variances may be referred to either the designated employee or the planning commission in accordance with the by-law.

Criteria for approving variances

247(3)      An application for a variance with respect to a property may be approved if the variance

(a) is consistent with Plan Winnipeg and any applicable secondary plan;

(b) does not create a substantial adverse effect on the amenities, use, safety and convenience of the adjoining property and adjacent area, including an area separated from the property by a street or waterway;

(c) is the minimum modification of a zoning by-law required to relieve the injurious effect of the zoning by-law on the applicant's property; and

(d) is compatible with the area in which the property to be affected is situated.

Restrictions on variances

247(4)      A variance must not be approved if it makes a change of land use other than

(a) a temporary change of land use for a period of not more than five years; or

(b) a change of land use to a use that is substantially similar to a use permitted under the zoning by-law being modified by the variance.

Disposition of applications for variances

248(1)      An application for a variance may be

(a) approved or rejected; or

(b) approved subject to conditions that will ensure that any development to be carried out under the variance meets the criteria set out in subsection 247(3).

Submissions before setting conditions

248(2)      The approval of a variance must not be made subject to conditions unless the applicant for the variance has been given a reasonable opportunity to make submissions respecting the variance.

Procedure by planning commission

249         Where an application for a variance is referred to a planning commission,

(a) the city must give notice of a hearing by the planning commission respecting the application

(i) to the applicant, and

(ii) by posting the real property affected by the application in accordance with section 118 (posting notices); and

(b) the planning commission must conduct a hearing respecting the application and make a decision respecting the variance.

Notice of decision

250(1)      When a decision is made on an application for a variance to a zoning by-law,

(a) a copy of the decision must be sent by ordinary mail to the applicant in accordance with section 116 (service of decision); and

(b) if the decision was made by a designated employee, a notice of the decision, containing the information referred to in clauses 116(2)(b) to (d) (notice of right of appeal) must be posted in accordance with section 118 (posting notices) on the real property in respect of which the application was made if

(i) in the case of a variance of any yard or space separation, the variance exceeds 5% of the requirement set out in the by-law or 0.3 m, whichever is the greater, and

(ii) in any other case, if the variance exceeds 5% of the requirement set out in the by-law.

Notice of decision by planning commission

250(2)      When a decision is made by a planning commission on an application for a variance, in addition to the notice of the decision required under subsection (1), notice of the decision containing the information referred to in subsection 116(2) (notice of right of appeal) must be sent by ordinary mail to each person who made submissions at the hearing respecting the application.

Appeals on variances

251(1)      Any decision by a designated employee or a planning commission on an application for a variance may be appealed in accordance with section 189 (appeals) by

(a) the applicant;

(b) the owner of real property adjacent to the real property in respect of which the application was made; or

(c) any person who made submissions at any hearing conducted in respect of the application.

Appeals to committee of council

251(2)      Appeals taken under subsection (1) must be heard by the executive policy committee of council or a standing committee of council as may be designated by council for the purpose.

Procedure for appeal

251(3)      Where a decision on an application for a variance is appealed under subsection (1),

(a) the city must send notice of a hearing by ordinary mail

(i) to the appellant and the applicant, and

(ii) to each person who made submissions at any hearing held by the planning commission in respect of the application; and

(b) the committee of council designated under subsection (2) to hear the appeal must conduct a hearing on the appeal and give its decision on the appeal, and subsection 248(1) (disposition of applications for variance) applies as though the appeal were the original application.

Termination of variances

252         Despite any other provision of this Act, an employee designated by by-law may terminate an approval of a variance with the written consent of every person who is the owner of real property in respect of which the variance was approved.

CONDITIONAL USES

Approval of conditional uses

253(1)      Conditional uses of real property that are permitted under a zoning by-law may be approved.

Authority respecting conditional uses

253(2)      Council may, by by-law, authorize a designated employee or a planning commission to consider, and make decisions in respect of, applications for conditional uses of real property or specified types of conditional uses, and applications for conditional uses of real property may be referred to either the designated employee or a planning commission as determined in accordance with the by-law.

Procedure for applications for conditional uses

254          Subsection 247(3) and sections 248 to 252 apply with necessary changes to applications for conditional uses of land or buildings and approvals and rejections of such conditional uses.

SUBDIVISION STANDARDS

Subdivision standards by-law

255(1)      Council must pass by-laws establishing standards, criteria or requirements respecting the subdivision of land in the city.

Content of standards by-law

255(2)      A by-law passed under subsection (1) must conform with Plan Winnipeg, secondary plans and zoning by-laws, and may establish standards, criteria or requirements respecting

(a) the layout of, and access to, dedicated land, lots, blocks, and other units of land;

(b) the construction of streets;

(c) the width, grade and elevation of streets by reference to minimum or maximum standards, criteria or requirements, or to any other standard council considers appropriate;

(d) the provision and location of strips of land to act as buffers;

(e) the efficient use of energy, including the orientation of lots and parcels so as to obtain maximum benefit from solar energy;

(f) transportation systems, including their operation in a manner that is efficient and convenient for citizens;

(g) the determination of whether land is suitable for subdivision;

(h) the provision of works, services and utilities;

(i) sites for schools, parks and recreation areas;

(j) the protection of sensitive lands;

(k) flood control;

(l) the conveyance or dedication of land for purposes of the city other than streets; and

(m) such other matters as council may consider advisable.

Referral of proposed subdivision standards by-law for report

255(3)      After council gives first reading to a proposed by-law under this section respecting the subdivision of land in the city,

(a) the city must give notice of a hearing by a committee of council respecting the proposed by-law; and

(b) the committee of council must conduct a hearing respecting the proposed by-law and submit a report to council respecting the proposed by-law.

SUBDIVISION APPROVALS

Delegation to committee of council

256(1)      Council may by by-law

(a) authorize a committee of council or a designated employee to consider, and make decisions in respect of, applications for approval of plans of subdivision or specified types of plans of subdivision, and provide that applications for approval of plans of subdivision be referred to either the committee or the designated employee; and

(b) authorize the committee or the designated employee to approve plans of subdivision, or approve them with conditions that, under a by-law passed under subsection 259(1) (conditions for plans of subdivision), may be imposed in respect of plans of subdivision, except the conditions described in clause (d) of that subsection, without conducting a hearing respecting the application if the committee or the employee determines that the plan of subdivision conforms with section 257 and with other plans of subdivision of adjacent land.

Hearing on certain applications

256(2)      Before the approval of a plan of subdivision is made subject to conditions described in clause 259(1)(d),

(a) the city must give notice of a hearing by a committee of council respecting the application; and

(b) the committee of council must conduct a hearing respecting the application and submit a report to council respecting the application.

Restriction on approvals of plans of subdivision

257(1)      A plan of subdivision must not be approved unless

(a) the land that is proposed to be subdivided is suitable for the purpose for which the subdivision is intended; and

(b) the proposed plan of subdivision conforms with

(i) Plan Winnipeg,

(ii) any applicable secondary plan,

(iii) any applicable zoning by-law, and

(iv) the by-law passed under section 255 (subdivision standards by-law).

Submission before setting conditions

257(2)      The approval of a plan of subdivision must not be made subject to conditions unless the applicant for the approval has been given a reasonable opportunity to make submissions respecting the plan of subdivision.

Effect of approval by committee or employee

258         An approval of a plan of subdivision by a committee of council, planning commission or designated employee has the same effect as if council had approved the plan.

Conditions for plans of subdivision

259(1)      Council may, by by-law, provide that approval of proposed plans of subdivision be made subject to one or more of the following conditions:

(a) that at least 10% of the land be conveyed to the city for purposes of the city other than streets, without consideration or for nominal consideration;

(b) that instead of setting the condition under clause (a), money be paid to the city for the purchase of land for purposes of the city other than streets;

(c) that all outstanding taxes, including local improvement taxes, be paid;

(d) that streets within the proposed subdivision be dedicated as council considers necessary;

(e) that where land in the proposed subdivision abuts on an existing street, land in the proposed subdivision, other than land occupied by an existing building, be conveyed for the purposes of making the street conform with any provision respecting streets of a by-law passed under section 255 (subdivision standards by-law);

(f) that the owner of land within a proposed subdivision enter into one or more agreements with the city respecting such matters as council considers advisable or necessary, which agreements may include, without limiting the generality of the foregoing, requirements that

(i) the owner pay to the city some or all of the cost of existing or future public works, including the cost of any related environmental, engineering or other studies or reports, which benefit or will benefit the proposed subdivision,

(ii) the owner construct or pay for all or part of the capacity of the public works in excess of the capacity required for the proposed subdivision, and

(iii) the city reimburse the owner for the cost, including interest at such rate as is agreed on, of the excess capacity referred to in subclause (ii) when money is recovered by the city from owners of other lands benefited by the excess capacity or at some earlier time.

Effect of agreement

259(2)      Where the city enters into an agreement containing a requirement referred to in subclause (1)(f)(iii), the city may, when other land benefited by the public works is developed or subdivided, enter into an agreement with the owner of that other land requiring the owner to pay an amount, as determined by the city in respect of the public works, which may exceed the cost of improvements required for the development or subdivision of the other land, including interest at such rate as is agreed on.

CONSENTS FOR REGISTRATION OF INSTRUMENTS

Authority to grant consents

260(1)      Council may, by by-law, authorize a committee of council or a designated employee to grant consents to the registration or filing of

(a) leases, conveyances, grants, assignments, agreements or other instruments that must not be accepted for registration or filing without the consent because of section 263 (restriction on instruments); or

(b) specified types of such instruments.

Consent to dealing with land

260(2)      A committee of council or designated employee authorized under a by-law passed under subsection (1)

(a) may grant a consent to the registration or filing of an instrument in respect of land if the committee or employee, as the case may be, determines that a plan of subdivision is not necessary for the proper and orderly development of the land; and

(b) may make any consent granted subject to any of the conditions described in subsection 259(1) (conditions for plans of subdivision).

Submission before setting conditions

260(3)      The granting of a consent under this Part must not be made subject to conditions unless the applicant for the consent has been given a reasonable opportunity to make submissions respecting the conditions.

Certificate of consent

261(1)      Where consent is granted under this Part for the registration or filing of an instrument, the committee of council, planning commission or designated employee granting the consent must issue a certificate to the applicant stating that the consent has been given, and the certificate is conclusive proof that the consent has been granted in compliance with this Part.

Expiry of consent

261(2)      A consent granted under this Part expires two years after the earlier of

(a) the date of the certificate issued under subsection (1) in respect of the consent; and

(b) the day the instrument in respect of which the consent is granted is registered or filed in the land titles office.

DISPOSITION OF CONVEYED LAND

Land conveyed to city

262(1)       Land conveyed to the city under a development agreement or pursuant to a condition imposed under this Part may be disposed of by the city if council determines that it is not required for purposes of the city.

Money received by city

262(2)      Any money received by the city

(a) from the disposition of land under subsection (1); or

(b) instead of a conveyance of land under a development agreement or pursuant to a condition imposed under this Part;

must be deposited in a reserve fund and used to purchase land for purposes of the city other than streets, or, with the approval of council, used in whole or in part for a city purpose other than the purchase of land.

RESTRICTION ON INSTRUMENTS EFFECTING SUBDIVISION

Instruments not to be accepted

263(1)      Subject to subsection (3), the district registrar must not accept for registration or filing any instrument that has the effect of subdividing land in the city, including

(a) a plan of subdivision;

(b) a plan of survey;

(c) an order or judgement of a court; and

(d) a caveat;

unless the subdivision has been approved under this Part or consent has been granted under this Part to the registration of the instrument.

Instruments void

263(2)      Subject to subsection (3), any instrument, whether registered or filed in the land titles office or not, that purports to subdivide, or has the effect of subdividing, a parcel of land in the city is void to the extent of the effect of subdividing the land unless

(a) the subdivision has been approved under this Part; or

(b) consent has been granted under this Part to the registration or filing of the instrument in the land titles office.

Exceptions to subsections (1) and (2)

263(3)      Subsections (1) and (2) do not apply to instruments that have, or might have, the effect of subdividing a parcel of land where

(a) each parcel resulting from the subdivision is at least

(i) a quarter section,

(ii) a parish lot,

(iii) a settlement lot,

(iv) one or more whole lots or blocks as shown in a previously registered plan of subdivision, or

(v) one or more whole lots or blocks and any existing part or parts of a lot or block contiguous thereto in a previously registered plan of subdivision; or

(b) the land, or any part of or right in the land, is being acquired or disposed of by the city, the Crown or Manitoba Hydro.

Contiguity of land

263(4)      For the purpose of this section, land that is excepted from land described in a certificate of title for a street, railway line, transmission or distribution line, drain or right of way, or is acquired for any of those purposes, is deemed not to create a break in the contiguity of the land.

Easement not a subdivision

263(5)      For the purposes of this section, an easement on or over a parcel of land does not have the effect of subdividing the parcel and is deemed not to create a break in the contiguity of the land.

Unregistered instrument effecting subdivision

264         An interest in land is not created or conveyed by an unregistered instrument that purports to subdivide land or to have the effect of subdividing land contrary to this Part.

OBSOLETE PLANS OF SUBDIVISION

Declaration respecting expiry of plans

265(1)      Council may, by by-law, declare that a plan of subdivision, or any part thereof, of land in the city that was registered more than eight years before the by-law is passed, is not a registered plan of subdivision for the purposes of this Part.

Notice of by-law

265(2)      A notice of the passing of a by-law under subsection (1) must be sent to each person appearing on the real property assessment roll of the city as the owner of a parcel of land covered by the plan of subdivision to which the by-law applies.

Registration of by-law

265(3)      A certified copy of a by-law passed under subsection (1) must be registered in the land titles office.

Coming into force of by-law

265(4)      A by-law passed under subsection (1) does not come into force until subsections (2) and (3) have been complied with.

EXPIRY OF APPROVAL

Registration of plan of subdivision in L.T.O.

266(1)      A plan of subdivision that is not registered in the land titles office within one year after it is approved under this Part must not be accepted by the district registrar for registration unless the time for registration is extended by council.

Time of approval

266(2)      For the purpose of this section a plan of subdivision is approved on the day

(a) where the plan is approved by by-law, on the day the by-law is passed;

(b) where the plan is approved by a committee of council or a planning commission, on the day that the committee or commission passes a resolution to approve the plan; and

(c) where the plan is approved by a designated employee, on the day shown on the written decision of the employee approving the plan.

SUBDIVISION IN FLOODWAY AREAS

Restriction on subdivisions in floodway area

267(1)      Subject to subsection (2),

(a) a plan of subdivision of land wholly or partly in a designated floodway area shall not be approved; and

(b) a consent to the registration or filing of an instrument respecting land wholly or partly in a designated floodway area shall not be granted;

if the approval or consent would create or have the effect of creating a parcel of land in respect of which construction may be permitted under section 158 (construction in floodway and floodway fringe areas).

Agreements re land in floodway areas

267(2)      A plan of subdivision of land wholly or partly in a designated floodway area may be approved, or a consent to the registration or filing of an instrument respecting land wholly or partly in a designated floodway area may be granted, subject to an agreement that prohibits construction on the land in the designated floodway area except as permitted under section 158 (construction in floodway and floodway fringe areas).

Registration and amendment of agreement

267(3)      An agreement entered into under subsection (2) must be registered by way of caveat in the land titles office against the land to which it applies, and

(a) the agreement must not be amended to allow construction in the designated floodway area except as permitted under section 158 (construction in floodway and floodway fringe areas); and

(b) the registration of the caveat must not be withdrawn unless it is withdrawn and re-registered to accommodate procedures in the land titles office.

FILING OF CAVEATS

Caveat respecting agreements

268(1)      Where the city enters into an agreement pursuant to a condition imposed under this Part, a caveat giving notice of the agreement may be filed against land affected by the agreement in the land titles office and thereafter the agreement runs with the land and, without special mention in the caveat, binds the owner of the land, successors in title to the owner and heirs, executors, administrators and assigns of the owner.

Withdrawal of caveats

268(2)      The Crown in right of Manitoba or the city may, at any time, withdraw a caveat referred to in subsection (1).

DIVISION 3

AIRPORT VICINITY PROTECTION AREA

ESTABLISHMENT AND REGULATIONS

Regulations re protection of airport vicinity

269(1)      The Lieutenant Governor in Council may make regulations

(a) requiring the establishment by council in Plan Winnipeg of an area of the city adjacent to Winnipeg International Airport as an airport vicinity protection area;

(b) establishing policies for use of real property, and for development, in the airport vicinity protection area to ensure that the use of real property and development in the area are compatible with the operation of Winnipeg International Airport, and requiring any Plan Winnipeg by-law to be consistent with those policies;

(c) requiring a zoning by-law to be passed by council to control or prohibit any use of real property or development in the airport vicinity protection area, or in a part of it, to ensure that the use of real property and development are compatible with the policies established under clause (b).

269(2)      Repealed, S.M. 2005, c. 30, s. 216.

Compliance with regulations under subsection (1)

269(3)      Every Plan Winnipeg by-law must, in conformity with regulations, if any, made under subsection (1),

(a) establish an area in the city adjacent to Winnipeg International Airport as an airport vicinity protection area; and

(b) contain plans and policies for the use of real property and for development in the airport vicinity protection area to ensure that the use of real property and development in the area are compatible with the operations of the airport.

S.M. 2005, c. 30, s. 216.

Referral to Municipal Board

270(1)      Where

(a) a proposed secondary plan by-law deals with the airport vicinity protection area; and

(b) a municipality, or the board of a planning district established under The Planning Act, that is adjacent to the area, or the Government of Canada or the Government of Manitoba objects to the proposed by-law by filing a notice of objection with the city clerk before the day of the meeting at which council is to consider the report of a committee of council or planning commission respecting the proposed by-law;

the city must, before council gives second reading to the proposed by-law, refer the proposed by-law to The Municipal Board.

Hearing by Municipal Board

270(2)      Where a proposed secondary plan by-law is referred under subsection (1) to The Municipal Board, the board must

(a) give notice of a hearing respecting the proposed by-law in accordance with clause 230(1)(a) (hearing by Municipal Board) which applies with necessary changes;

(b) conduct a hearing respecting the proposed by-law; and

(c) submit a report, with recommendations, to council in respect of the proposed by-law.

Restriction on adoption of by-law

270(3)      Council must not pass a proposed secondary plan by-law that has been referred to The Municipal Board unless the proposed by-law conforms to the recommendations that the board has made in its report to council in respect of the by-law.

DEVELOPMENT IN AIRPORT AREA

Zoning by-laws in airport vicinity protection area

271          The city must ensure that all zoning by-laws that apply to real property in the airport vicinity protection area conform with regulations, if any, made under subsection 269(1).

Application of section 270

272         Section 270 (referral to Municipal Board) applies, with necessary changes, to

(a) every proposed zoning by-law affecting real property in the airport vicinity protection area; and

(b) every application for approval of a plan of subdivision, or amendment to a plan of subdivision, affecting real property in the airport vicinity protection area, in which case,

(i) references in section 270 to a "proposed secondary plan by-law" or "proposed by-law" shall be read as references to an "application for approval of a plan of subdivision or amendment to a plan of subdivision",

(ii) the reference in section 270 to "the day of the meeting at which council is to consider the report of a committee of council or planning commission respecting the proposed by-law" shall be read as "the day the application for approval will be considered",

(iii) references in section 270 to "giving second reading" and "passing" shall be read as references to "approving", and

(iv) references in section 270 to "council" shall be read as references to "council or the committee of council, planning commission or employee authorized to approve the plan of subdivision or amendment".

DIVISION 4

PLANNING COMMISSION

Establishment of planning commission

273(1)      Council may by by-law establish a planning commission.

Application

273(2)      Section 83 (by-law respecting hearing body) applies, with necessary changes, to a planning commission established under this section.

Powers, duties and functions of commission

274(1)      A planning commission must

(a) consider and make decisions respecting applications for variances referred to the commission in accordance with a by-law passed under subsection 247(2) (authority respecting variances);

(b) consider and make decisions respecting applications for conditional use of land referred to the commission in accordance with a by-law passed under subsection 253(2) (authority respecting conditional uses); and

(c) report and make recommendations to council in respect of any planning or development matter referred to the commission by council.

Committee of council duties assigned to commission

274(2)      Council may by by-law assign one or more of the powers, duties and responsibilities of a committee of council under the following provisions to a planning commission:

(a) clause 227(1)(b), but only in relation to an amendment to Plan Winnipeg initiated by an application made under clause 225(1)(b);

(b) subsection 234(3) (hearing on secondary plan by-law);

(c) subsection 236(3) (hearing on zoning by-law);

(d) section 240, in relation to an amendment to a development agreement;

(e) subsection 255(3) (referral of proposed subdivisions standards by-law for report);

(f) subsection 256(1) (delegation to committee of council);

(g) section 260 (authority to grant consents);

(h) the conduct of a hearing in relation to a business licence under section 149.

Planning commission to act by resolution

274(3)      A planning commission may act only by resolution.

DIVISION 5

PROCEDURES

DEVELOPMENT

Initiation of development proposals

275(1)      An application for

(a) adoption of, or an amendment to, a zoning by-law;

(b) approval of a plan of subdivision, conditional use or variance; or

(c) consent to registration or filing of a conveyance;

may be made by the owner of real property to which the application refers.

Rejection of applications

275(2)      If, in the opinion of a designated employee, an application made under subsection (1)

(a) does not conform with Plan Winnipeg or a secondary plan for the area in which the real property to which it relates is situated, the application must be refused without a hearing; or

(b) is the same or substantially similar to an earlier application that was rejected within one year before the day that the new application is made, the application may be refused without a hearing.

ERRORS AND CORRECTIONS

Amendments for errors or corrections

276         Where council considers that a proposed amendment to a by-law passed under this Part is to correct an error or omission and does not prejudice the rights of any person, council may pass the amendment without

(a) giving notice of a hearing in respect of the proposed amendment;

(b) holding a hearing in respect of the proposed amendment; and

(c) receiving a report in respect of the proposed amendment from a hearing body.

NOTICE OF HEARING

Notices of hearings

277         Unless otherwise provided, where under this Part a notice is required to be given of a hearing, other than a hearing conducted by The Municipal Board under subsection 230(1) (hearing by Municipal Board) or 270(2) (hearing by Municipal Board), the notice must be given

(a) by public notice in two newspapers,

(i) in the case of a hearing respecting a proposal to adopt, re-adopt, replace or amend Plan Winnipeg, in not less than two consecutive weeks, and

(ii) in any other case, at least once;

(b) by serving a copy of the notice on

(i) the applicant, if there is one,

(ii) in the case of a hearing respecting a Plan Winnipeg by-law or a zoning by-law, on any municipality, or the board of any planning district, any part of which is within 1 km of any real property in respect of which the hearing is to be conducted, and

(iii) any other person that council considers advisable; and

(c) in the case of a hearing respecting a proposal to adopt, re-adopt, replace or amend Plan Winnipeg, by serving a copy of the notice on the minister at least 21 days before the day of the hearing.

COMBINED HEARINGS

Combined hearings and notices

278(1)      A hearing and notice of the hearing required under this Part in respect of a proposed development may be combined with another hearing and notice where the proposed development requires two or more of the following:

(a) an amendment to Plan Winnipeg;

(b) an amendment to a secondary plan;

(c) an amendment to a zoning by-law;

(d) an amendment to a development agreement;

(e) an application for approval of a variance;

(f) an application for approval of a conditional use of land;

(g) an application for approval of or amendment to a plan of subdivision;

(h) an application for consent to register or file an instrument;

(i) a business licence under section 149.

Combinations of hearings

278(2)      If a hearing provided for in this Part

(a) must be held by

(i) the executive policy committee of council, it may combine the hearing with the hearing of any matter listed in subsection (1), or

(ii) a standing committee of council or a committee of council, the committee may combine the hearing with the hearing of any matter listed in clauses (1)(b) to (i); or

(b) may be held by a planning commission, the planning commission may hold a combined hearing in respect of one or more of the following:

(i) one or more of the matters listed in subsection 274(1) (powers, duties and functions of planning commission), and

(ii) a business licence under section 149.

Exercise of powers where hearings combined

278(3)      Where a hearing body holds a combined hearing under subsection (2), the hearing body has all the powers and duties in respect of all matters dealt with at the combined hearing that the employee or hearing body designated to deal with any of those matters would have had if the matters were not dealt with at the combined hearing.

AVAILABILITY OF MATERIALS

Material available for inspection

279         Where a notice is given of a hearing under this Part, the city must make available, at a place and during hours specified in the notice, a copy of any proposed by-law or any application in respect of which the hearing is to be conducted, any document relating to the proposed by-law or application that is in the possession of the city, and must permit any person to inspect it and to make copies of it for a prescribed fee.

HEARING BODIES

Recommendations by hearing body

280(1)      Where a hearing body conducts a hearing under this Part for the purpose of making a recommendation to council respecting a proposed by-law or an application, the hearing body must, within 30 days after completing the hearing, or such further time as council may allow, prepare and submit to council a report containing

(a) a summary of the submissions made at the hearing;

(b) the recommendation of the body that council approve, reject, or approve with conditions, the proposed by-law or application;

(c) the reasons for the recommendation; and

(d) such other information as council may require.

Decisions by hearing body

280(2)      Where a hearing body conducts a hearing under this Part for the purpose of making a decision respecting an application under this Part, the hearing body must approve the application, reject it, or approve it with conditions.

Notice of report to council

280(3)      Where a hearing body submits a report to council under subsection (1), the city must, as soon as practicable after the report is submitted, send by ordinary mail to the applicant, if the report relates to an application, and to any person who made submissions at the hearing to which the report relates,

(a) a summary of the report and its recommendations; and

(b) notice of the date and time when, and place where, council is to consider the report.

PASSING OR REJECTING BY-LAWS

Consideration of recommendation re by-law

281         Where a hearing body has conducted a hearing respecting a by-law proposed under this Part, before passing or rejecting the proposed by-law, council must consider the recommendations of the hearing body and may then

(a) pass the by-law or pass it with amendments or subject to conditions; or

(b) reject the by-law.

Notice respecting by-law

282         Where council passes or rejects a by-law proposed under this Part, the city must, as soon as practicable, give notice of the decision by ordinary mail to

(a) the person who has applied for the proposed by-law; and

(b) every person who made submissions at any hearing conducted respecting the proposed by-law.

PART 7

FINANCIAL ADMINISTRATION

DIVISION 1

BUDGETS

Fiscal year

283         The fiscal year of the city is the 12 months ending on December 31 in each year.

Annual operating budget

284(1)      Before March 31 of each fiscal year, or such later day in the year as may be fixed for that year by the Lieutenant Governor in Council for the purposes of this section, council must adopt an operating budget for that year.

Capital budget and forecast

284(2)      Before December 31 of each fiscal year, council must adopt a capital budget for that year and a capital forecast for the next five fiscal years.

Manner and form

284(3)      The minister may, where the minister considers it necessary or advisable, prescribe the manner and form in which the city's operating budgets, capital budgets and capital forecasts, or any of them, shall be prepared.

Content of operating budget

285(1)      Every operating budget of the city for a fiscal year shall include estimates of

(a) all operating revenue for the year, including all

(i) amounts, that under this or any other Act, are required to be raised in the year by imposing taxes, and

(ii) transfers from the previous year's surplus or a reserve fund;

(b) all operating expenditures for the year, including all amounts

(i) to be transferred in the year to the capital budget or a reserve fund,

(ii) needed to eliminate any deficit incurred in respect of the previous fiscal year, and

(iii) needed to defray the cost of collection of taxes, the abatement of and discounts on taxes and taxes considered by council to be uncollectible; and

(c) all amounts required to pay principal and interest payments falling due within the year on any debt of the city.

S.M. 2004, c. 42, s. 58.

Expenditures not to exceed revenues

285(2)      In adopting an operating budget, council must ensure that the estimated expenditures for a fiscal year do not exceed the estimated revenues for the year.

Content of capital budget and capital forecast

286         The capital budget of the city for each fiscal year and each five year capital forecast of the city shall include estimates of

(a) the amount needed to acquire or construct each of the works proposed in the budget or forecast; and

(b) the anticipated sources of the amount needed for each of those works.

Grants to city

287          The Minister of Finance may, on order of the Lieutenant Governor in Council, make grants to the city from and out of the Consolidated Fund for purposes stated in the order, of amounts fixed in the order.

DIVISION 2

EXPENDITURES

Expenditures

288(1)      Subject to subsection (2), the city may make expenditures only if they are provided for in the operating budget or capital budget of the city or otherwise approved by council under the authority of this or any other Act.

Expenditures before budget adopted

288(2)      Before the city's operating or capital budget for a fiscal year is adopted, council may authorize expenditures to be made of amounts for operating or capital expenses, not exceeding in total 30% of the expenditures estimated in the city's operating and capital budgets for the previous fiscal year.

Expenditures for purposes not set out in budget

288(3)      Despite subsection (1), council may by by-law establish a process for reallocating funds provided for in an operating budget or capital budget of the city for a purpose other than that set out in the budget.

Reserve funds

289(1)      Council may provide for the establishment or maintenance of a reserve fund for any purpose for which the city has authority to make expenditures.

Definition of "financial institution"

289(2)      In subsection (3), "financial institution" means a bank, trust company, loan company, credit union, insurance company or other similar institution that is supervised or examined by a government or a government authority in the jurisdiction in which it carries on business.

Investment of reserve funds

289(3)      Money allocated to a reserve fund established under subsection (1) shall be deposited as provided in clause 100(b) (duties of chief financial officer) and may be used to purchase, acquire, or hold

(a) securities issued by

(i) the government or a government agency,

(ii) the government of Canada or a province of Canada other than Manitoba,

(iii) a government of a country other than Canada or a government of a political subdivision of a country other than Canada,

(iv) a financial institution,

(v) a municipality, school board or school district in Manitoba, or

(vi) a hospital, hospital district, health district, health and social services district, personal care home or other related or similar entity funded directly or indirectly out of the Consolidated Fund of the government;

(b) securities the payment of which is guaranteed by the government, the government of Canada, the government of a province of Canada other than Manitoba, the government of a country other than Canada, or a financial institution;

(c) securities the payment of which is a charge on the Consolidated Revenue Fund of the government of Canada or a province of Canada;

(d) securities the payment of which is a charge on the revenue of a government of another country; and

(e) securities of a corporation authorized by or belonging to a class authorized by the Minister of Finance.

Restriction on use of reserve funds

289(4)      Money raised for a reserve fund established under subsection (1) shall not be expended or pledged for any purpose other than that for which the fund was established, except where

(a) the chief financial officer certifies that the amount in the fund is greater than the amount required for the purpose for which the fund was established;

(b) the amount in the fund is no longer required for the purpose for which the fund was established; or

(c) the purpose for which the fund was established is terminated.

DIVISION 3

INVESTMENTS

Investment of money

290         Council may provide for

(a) money of the city not immediately required for its purposes to be invested or to purchase, acquire, hold or dispose of any of the securities specified in clauses 289(3)(a) to (e); and

(b) the lending of securities held by the city, under an agreement between the city and a third party, provided

(i) the agreement is first approved by the Minister of Finance, and

(ii) the loan is secured by collateral security satisfactory to the Minister of Finance.

Financial agreements

291(1)      The city may enter into agreements respecting the investment of its money or the management of its debts, including, but not limited to, agreements for the management of risks relating to currency and interest rates, swap agreements, futures agreements, option agreements and rate agreements.

Policy for financial agreements

291(2)      Before entering into an agreement under subsection (1), council must

(a) establish a policy for entering into that type of agreement and, without limiting the generality of the foregoing, any such policy

(i) may delegate to a committee established by council or to designated employees the authority to make decisions or enter into agreements under the policy,

(ii) must outline the procedure to be followed in exercising authority under the policy or subclause (i), and

(iii) must establish a system of accountability to council for decisions made under the policy or subclause (i); and

(b) have the policy approved by the Minister of Finance.

Changes in the policy must be approved

291(3)      Council may not make any changes to the policy established under subsection (2) without first obtaining the further approval of the Minister of Finance.

DIVISION 4

BORROWING

Definition of "relevant sinking fund account"

292         In this Division, "relevant sinking fund account" means the sinking fund account established or provided by the city as a result of the city issuing sinking fund securities.

GENERAL AUTHORITY

Temporary borrowing

293         Council may pass by-laws to provide for temporary borrowing by the city, in such amounts and on such security as council may consider necessary, for operating and capital expenditures not exceeding the revenues estimated in the city's operating budget for the previous fiscal year.

Long-term borrowing authority

294(1)      Subject to subsection (2), council may pass by-laws enabling the city to borrow money in such manner, in such amounts, and on such security as council may consider necessary for any purpose for which the city is authorized to make provision, including, without limiting the generality of the foregoing, borrowing money required for local improvements.

Approval of Minister of Finance required

294(2)      Before council gives second reading to a by-law under subsection (1), the city must apply for and obtain the approval of the Minister of Finance for the borrowing under the proposed by-law.

Details in application

294(3)      An application for approval under subsection (2) must specify the principal amount to be borrowed and give a general description of the objects for which the amount will be used, but it is not necessary to specify in the application

(a) the manner of borrowing;

(b) the particulars of any proposed securities to be issued in respect of the borrowing; or

(c) the rate of interest payable on the amount or the term within which it is repayable.

Consideration by Minister of Finance

294(4)      In dealing with an application made under this section, the Minister of Finance must consider only the financial position of the city and must

(a) approve the application in whole or in part or subject to terms and conditions, including specifying the time within which the amount to be borrowed is to be repayable; or

(b) refuse to approve the application.

Reference to Municipal Board

295(1)      Before dealing with an application under section 294, the Minister of Finance may refer it to The Municipal Board, and in that event, that board shall give, to the city and such other persons as the board considers appropriate, notice of a hearing at which those wishing to make submissions in respect of the application may appear and be heard.  The notice must be given not less than 14 days before the hearing begins.

Report of Municipal Board

295(2)      After a hearing, The Municipal Board must, within such period of time as the Minister of Finance has specified, file with the Minister of Finance a report with its advice and recommendations in respect of the application.

Notification to city

296         Upon making a decision under subsection 294(4), the Minister of Finance shall promptly advise the city in writing of the decision.

Borrowing must complies with conditions

297         The city may borrow money under a by-law made under section 294 only if the borrowing complies with the approval of the Minister of Finance under subsection 294(4) (consideration by minister of finance).

CITY SECURITIES

Powers and duties of chief financial officer re city securities

298(1)      When council provides in a by-law under subsection 294(1) that money should be raised by the issue and sale of city securities, the chief financial officer may, subject to this Act, determine

(a) the principal amount of the city securities to be issued;

(b) the rate of interest payable and the rate of any premium or discount applicable on the city securities;

(c) the currency in which the principal amount of the city securities and any interest or premium is payable;

(d) the sale price of the city securities;

(e) the form, denomination and dates of issue and maturity of the city securities; and

(f) any other terms and conditions of the city securities.

Terms and conditions of city securities

298(2)      The terms and conditions of city securities may include any provision that in the opinion of the chief financial officer is necessary or advisable to facilitate the sale of the city securities, including, without limiting the generality of the foregoing, a provision that

(a) the interest rate payable on the securities or the amount of principal payable at maturity be calculated and paid with reference to the value of a share or commodity or with reference to an index or some other basis;

(b) the securities may be redeemed before maturity at the option of the city or the holder;

(c) the holder of the security be reimbursed by the city for withholding taxes, duties, assessments or charges imposed by law on or with respect to a payment under the security by the city to the holder; or

(d) some or all of the securities are designated as sinking fund securities.

Other powers respecting city securities

298(3)      When raising money by way of the issue and sale of city securities, the chief financial officer may do all acts and things that he or she considers necessary or advisable to satisfy the requirements of any jurisdiction with respect to the offer, issue, sale and trade of city securities and other transactions relating to securities in the jurisdiction, including, without limiting the generality of the foregoing,

(a) the preparation, approval, filing or delivery of a registration statement, prospectus, offering circular or other document or any amendment or supplement to any of them;

(b) the registration, qualification or exemption from registration or qualification of the city under the laws of the jurisdiction regarding the offer, issue, sale or trade of city securities;

(c) the disclosure of financial and other information;

(d) entering into agreements with respect to the offer, issue, sale and trade of city securities and other transactions relating to city securities, including underwriting, fiscal agency, pricing, exchange rate agency, paying agency, trust, distribution, registrar or other agreements; and

(e) the execution of all documents and instruments in relation to matters described in this subsection.

No preferences

298(4)      No security issued by the city has or constitutes a preferential pledge, lien, mortgage, hypothec or preference over any other securities issued by the city.

Chief financial officer to report

299(1)      The chief financial officer must report the issue and sale of city securities in such a manner as may be resolved by council.

Payments under city securities

299(2)      After receiving a report under subsection (1), council must

(a) provide for levying and raising the amounts that are estimated to be required to pay all debts under the securities, which amounts may vary from year to year; or

(b) if the security is a sinking fund security, subject to subsection 304(2), provide for levying and raising in each year during its term an amount that, together with the amounts paid into the relevant sinking fund account in other years, and the interest and earnings from investments, is sufficient to discharge the amount due under the security on maturity.

Application re obligation to levy and raise amounts

299(3)      The obligation to levy and raise the amounts payable under clause (2)(a) applies to the extent that those amounts have not been provided for by other funds of the city or by taxes or fees or charges imposed on persons or property by by-law.

Payments into sinking fund

299(4)      The amount levied and raised in respect of a sinking fund security must be paid into the relevant sinking fund for that security.

Policy for variable interest rate securities

300(1)      Before a city security bearing a variable rate of interest can be issued or sold

(a) council must, by by-law, establish a policy respecting the issuing of securities bearing a variable rate of interest and, without limiting the generality of the foregoing, any such policy

(i) may delegate to a committee established by council or to designated employees the authority to make decisions relating to the issue of such securities,

(ii) must outline the procedures to be followed in exercising any authority delegated under subclause (i), and

(iii) must establish a system of accountability to council in respect of any authority delegated under subclause (i); and

(b) the policy must be approved by the Minister of Finance.

Changes in the policy must be approved

300(2)      Council may not make any changes to the policy established under subsection (1) without first obtaining the further approval of the Minister of Finance.

Use of money received

301(1)      Subject to this section, money received from the issue and sale of city securities, including any premium, and any earnings derived from the investment of that money,

(a) must be applied only for the purposes for which the city securities were issued or for the repayment of outstanding temporary borrowing for which the city securities were deposited as security; and

(b) must not be applied to payment of other expenditures of the city.

Money not required

301(2)      If the money described in subsection (1) in respect of city securities exceeds the amount required, or is not required, for the purposes for which the securities were issued, the excess, or the money, as the case may be, shall be applied

(a) to repay the principal of the securities;

(b) to repay any other capital expenditures of the city if the debt charges for those expenditures are or will be raised from the same class of ratepayers from which the amounts required to repay the securities are or will be raised; or

(c) to the relevant sinking fund account.

Reduction of levies etc.

301(3)      The city may reduce an amount required to be raised for the repayment of securities to the extent that an amount applied under subsection (2) is sufficient to pay the principal and interest of the securities on the days they are payable.

Full amount recoverable

301(4)      The amount payable in respect of a city security is recoverable under the security even though it was issued and sold by the city at a discount.

Refinancing city securities

302         Where an outstanding city security is refinanced by the issue and sale of a new city security, the principal amount of the new security may exceed the amount required to repay the outstanding security; but, if the net amount raised by the new security exceeds the amount required to repay the outstanding security, the excess must be used to reduce the levies for principal and interest, or be paid into the relevant sinking fund account, in respect of the new security.

Consolidating securities by-laws

303(1)      Despite this or any other Act, if council has passed separate by-laws authorizing borrowing by the issue of city securities, council may, by a consolidating by-law, provide for the issue of one series of securities for the combined amount of the authorized borrowings.

Contents of by-law

303(2)      A by-law passed under subsection (1)

(a) must recite or otherwise refer to the separate by-laws that it consolidates; and

(b) may authorize the issue of city securities in one series even if the principal and interest of some of the securities in the series is payable on different days than the principal and interest on others.

SINKING FUNDS

Limitation on use of sinking funds

304(1)      Money paid into a relevant sinking fund account must be applied to the repayment of those city securities as they fall due.

Deficiency in sinking fund

304(2)      If, when the debts under city securities become payable, the balance in the relevant sinking fund account is less than the amount required to pay the debts in full, the city may apply under section 294 (long-term borrowing) to the Minister of Finance for authority to borrow an amount of money which, with that balance, will be sufficient to discharge the debts in full.

Chief financial officer's duties re sinking funds

305         Where the city issues sinking fund securities, the chief financial officer must

(a) keep separate accounts to show at all times the status of every debt for which the securities are issued and the amount raised, obtained and appropriated for payment of the annual requirements of the sinking funds;

(b) deposit, in accordance with clause 100(b) (duties of chief financial officer), all income arising from investments of the sinking funds to the credit of the relevant sinking fund account; and

(c) in each year before the annual mill rate for the city for the year is struck, prepare and provide council with a statement showing the amount that will be required to be raised during the year for the sinking funds.

Management of sinking funds

306(1)      Unless otherwise provided in a by-law passed under subsection 307(1), the chief financial officer may

(a) invest the money in the sinking fund account

(i) in any of the securities specified in clauses 289(3)(a) to (e), or

(ii) in temporary loans or advances to the city;

(b) pursuant to an agreement entered into by the city under clause 290(b), lend securities held in the sinking fund; and

(c) subject to this section, manage those investments in any manner that may be determined to be the best advantage to the city.

Payments from sinking fund account

306(2)      Immediately before or on the maturity of a sinking fund security, the chief financial officer must transfer from the relevant sinking fund account to other accounts of the city such sums as have been provided for in the by-law authorizing the issue of the security.

Surpluses in sinking fund account

306(3)      If on the maturity of a sinking fund security there is a surplus in the relevant sinking fund account, the chief financial officer may provide that the surplus be applied to reduce future levies that may be unpaid in connection with any part of the funded debt of the city.

Establishment of Sinking Fund Committee

307(1)      Council may, by by-law, establish a Sinking Fund Committee consisting of the chief financial officer and such other individuals as council may by resolution appoint and, where the committee is established,

(a) council must provide for the remuneration of the committee members who are not members of council or employees, and for the administrative and other expenses incurred by the committee;

(b) its members hold office until they are removed by council; and

(c) council may give the committee authority over any other fund under the direction and control of the city.

Powers and duties of Sinking Fund Committee

307(2)      A Sinking Fund Committee established under subsection (1)

(a) may, except as otherwise provided by council, establish rules and procedures for the conduct of meetings of the committee; and

(b) must, in place of the chief financial officer, exercise the powers of the chief financial officer under subsection 306(1) and carry out the duty of the chief financial officer under subsection 306(2).

Chief financial officer may not delegate

307(3)      The powers and duties of the chief financial officer under this section or section 306 may be delegated only to an employee designated by council.

FOREIGN CURRENCIES

Borrowing in foreign currencies

308(1)      Subject to this Act, council may, by by-law, authorize the borrowing by the city by way of loan in a currency other than Canadian dollars.

Calculation of amount

308(2)      Where borrowing in a currency other than Canadian dollars is authorized by by-law passed under subsection (1), the amount that may be borrowed in the other currency must be calculated in accordance with the method prescribed in section 52 (raising money in foreign currency) of The Financial Administration Act.

LIABILITY

Restrictions

309(1)      After a debt has been contracted under a by-law, council must not, until the debt and interest on it have been paid,

(a) repeal the by-law or any by-law appropriating money from any source for payment of the debt or interest, including any surplus income from any work financed by the debt; or

(b) amend any by-law referred to in clause (a) to reduce the amount to be raised annually to pay the debt or interest.

Unused borrowing authority may be rescinded

309(2)      Council may amend a by-law referred to in subsection (1) in order to rescind unused borrowing authority.

Liability on local improvement securities

310         The city is liable for, and must pay to the holders of, the whole of the principal of city securities issued for local improvements, and interest on those securities, as they fall due, including not only the share assumed by the city but also the share repayable from special assessments.

Defect in form

311          City securities authorized by a by-law under this or any other Act are valid and binding on the city despite any insufficiency in form or otherwise of the by-law, in the securities or in the authority of the city in respect of the securities.

MISCELLANEOUS

Application of section 86 of Municipal Board Act

312         Section 86 (validation of acts of local authorities) of The Municipal Board Act applies to the city, with necessary changes.

Evidence respecting city securities

313         If there is no original written record of, or related to, a city security, any writing produced in a readily understandable form, from an electronic or magnetic medium that is established and stored in accordance with a by-law passed under the authority of section 109 (admissibility of record in converted form) is admissible in evidence to the same extent and with the same probative value as an original written record.

FINANCIAL STATEMENTS

Annual financial statements

314         The city must prepare annual financial statements of the city for the immediately preceding year.

PART 8

ASSESSMENT, TAXATION AND OTHER LEVIES ON PROPERTY

Definitions

315(1)      In this Part,

"business assessment" means the assessment of premises made under Division 1 for the purposes of business tax; (« évaluation commerciale »)

"business tax roll" means the business tax roll prepared under Division 2; (« rôle de la taxe d'entreprise »)

"licence fee" means the fee for a licence that a person is required under a by-law passed under

(a) section 320 (licence in lieu of business tax) to have in lieu of business tax, and

(b) section 321 (mobile home licences) to have for a mobile home; (« droit de licence »)

"personal property tax roll" means the personal property tax roll prepared under Division 2; (« rôle de la taxe sur les biens personnels »)

"premises" means land or buildings in the city, or both, or any part of land or a building, occupied or used by a person for the purpose of carrying on a business; (« locaux commerciaux »)

"real property tax roll" means the real property tax roll prepared under Division 2; (« rôle de la taxe foncière »)

"tax roll" means a real property tax roll, a business tax roll or a personal property tax roll, or a combination of two or more of those tax rolls combined in a single roll under subsection 337(1) (tax rolls may be combined). (« rôle d'imposition »)

Definitions in Municipal Assessment Act apply

315(2)      In this Part, words and expressions that are

(a) used in this Part but not defined in this Act; and

(b) defined in The Municipal Assessment Act or regulations made under that Act;

have the meanings assigned by that Act or those regulations.

DIVISION 1

ASSESSMENT

BUSINESS ASSESSMENT

Municipal Assessment Act applies

316(1)      The provisions of The Municipal Assessment Act, except those in section 3 and subsections 17(15) and (16) of that Act, apply to business assessment in the city.

All businesses to be assessed

316(2)      Subject to subsection (3) and section 317 (specific exemptions), premises used or occupied by a person for carrying on a business in the city, whether or not the person resides in the city, must be assessed for business assessment at a sum equal to the annual rental value of the premises on the reference date.

Exception

316(3)      Subsection (2) does not apply to premises

(a) used or occupied by a person for carrying on a business if the city assessor finds it impractical to determine the annual rental value of the premises; or

(b) the use of which is not for the preponderant purpose of earning a profit.

S.M. 2004, c. 42, s. 58; S.M. 2008, c. 34, s. 18.

Specific exemptions

317         Business assessments must not be made for

(a) halls or other places used for social gatherings or activities by political, religious, friendly or other groups, including incorporated charitable, fraternal and social organizations;

(b) boarding houses; and

(c) theatrical performances or concerts by students of the University of Manitoba or any of its affiliated colleges, the University of Winnipeg, or a public school or private school, as those terms are defined in The Education Administration Act.

Annual rental value to include cost of services

318(1)      For the purposes of this Act, the annual rental value of premises is deemed to include the cost of providing heat and other services necessary for the comfortable use or occupancy of the premises, whether provided by the occupant or the registered owner.

Basis of annual rental value

318(2)      In determining the annual rental value of premises, the city assessor must take all factors into account so that, as far as possible, premises similar in size, suitability, advantage of location, and the like, are equally assessed at a fair annual rental value, based in general on the rents being paid for similar premises.

Determining annual rental value

318(3)      In determining the annual rental value of a premises, the city assessor is not bound to determine the amount of rent that the premises would probably earn in any year, but may fix that value in any reasonable manner that is fair and just to all other registered owners or occupiers of premises.

Subtenants and assessment

319(1)      Where the occupier of premises sublets all or part of it, an assessor may issue the assessment for the premises, or the part, to the occupier and the subtenant, or either of them.

Filling stations

319(2)      The business assessment for premises used for gasoline filling stations may be made under the name of

(a) the occupant; or

(b) the person the sale of whose products is the principal business of the occupant.

Gas distribution system

319(3)      The premises of the owner of a gas distribution system that is assessed as personal property, as provided in The Municipal Assessment Act, are liable to business assessment for business tax.

LICENCE IN LIEU OF BUSINESS TAX

By-law requiring licence

320(1)      Council may pass by-laws

(a) requiring a person who, in carrying on a business for the preponderant purpose of earning a profit,

(i) occupies premises or a class of premises for which an assessor finds it impractical to determine the annual rental value, to have a licence in lieu of business tax on the premises,

(ii) does not occupy premises for the purpose of carrying on business, to have a licence in lieu of business tax, or

(iii) is the owner of an advertising sign, billboard or similar device described in the by-law, to have a licence in lieu of business tax for each such sign, billboard or similar device; and

(b) fixing, or providing for the manner of determining and fixing, the licence fee payable for a licence referred to in clause (a) in respect of

(i) a person or a class of persons,

(ii) a premises or a class of premises,

(iii) a business or a class of businesses, or

(iv) each sign, billboard or similar device or each sign, billboard or similar device of a class of them.

Collection of licence in lieu fees

320(2)      The fee for a licence in lieu of business tax shall be collected in the same manner and with the same priorities as business taxes.

MOBILE HOME LICENCES

By-law requiring licence of mobile homes

321(1)      Council may pass by-laws

(a) defining what is a mobile home;

(b) requiring a person who owns or occupies a mobile home in the city to obtain a licence for it;

(c) fixing, or providing for the manner of determining and fixing, the licence fee payable for a licence referred to in clause (b); and

(d) prohibiting the removal of a mobile home from land on which it is situated without the prior approval of the tax collector, if a licence fee in respect of the mobile home is unpaid.

No licence for tourists

321(2)      A by-law passed under subsection (1) must not require a licence to be obtained in respect of a mobile home if the tax collector is satisfied that its occupant is a tourist and that it is being used for vacation or holiday purposes.

Collection of mobile home licence fees

321(3)      Mobile home licence fees shall be collected in the same manner and with the same priorities as business taxes.

ADJUSTMENTS IN BUSINESS TAX

Adjustment of business tax on reassessment

322(1)      Council may, by by-law, on such terms and conditions as it considers appropriate, limit the amount of the increase or decrease in the business tax or licence fee in respect of the premises of a class or group of businesses that council determines has resulted because of a reassessment.

Limitation on by-law under subsection (1)

322(2)      A by-law passed under subsection (1) may apply to limit the amount of an increase or decrease in the business tax or licence fee in one or more of the years of a general assessment and the years before the next general assessment.

UTILITY CORPORATIONS' PROPERTY

Utility corporations' property assessments

323(1)      For the purpose of assessment and taxation, the property of a corporation providing telephone services fixed or placed in a street is deemed to be real property.  The city assessor must not value that property but rather must assess it by entering in each year's real property assessment roll the amount of $1,200,000. for each corporation that provides telephone services.

Liability of corporation for other tax

323(2)      A corporation that has property assessed under subsection (1) is not exempt from real property tax on other real property owned by the corporation on the ground that it is liable for tax on that assessment.

Telephone companies

324         A corporation providing telephone service that pays real property tax for property fixed or placed in a street, and deemed by section 323 to be real property, is not subject to business tax for premises, or a part of them, used or occupied by the corporation for housing its telephone exchange and switching equipment.

ASSESSMENT ROLLS

Completion of assessment rolls

325(1)      The assessment rolls for a year must be completed as early as the city assessor considers practicable.

Form of rolls

325(2)      Council may by by-law provide that the city's assessment rolls be in any form, including an electronic form.

Certification of rolls

326         On completion of each assessment roll, the city assessor must

(a) certify it;

(b) notify council and the board of revision in writing that it is completed and certified; and

(c) deliver a copy of the roll to the tax collector.

Defects do not invalidate

327         An assessment shown on an assessment roll is not invalidated by a defect or error committed in the assessment or any part of the roll, or by an error in, or a failure to mail, deliver or publish, any notice.

Assessment rolls valid and binding

328          Despite any amendment of, or any application for revision and resulting appeal from, an assessment shown in the assessment rolls, the assessment rolls, on being certified by the city assessor are valid and binding, but any necessary amendment or variation to conform with the final decision in any application for revision or appeal must be made without affecting their validity and binding effect.

REVISION OF ASSESSMENT

Rolls subject to revision

329         Assessment rolls are subject to revision in accordance with Part 8 of The Municipal Assessment Act, except that,

(a) if under section 340, taxes are cancelled or reduced and an amended tax notice is sent; or

(b) if under section 341, supplementary taxes are imposed and a supplementary tax notice is sent under section 342;

an application for revision in accordance with Part 8 of the Municipal Assessment Act may be made within 20 days after the day the amended or supplementary tax notice based on the amended assessment was received by the person to whom it was sent.

Change in taxes payable

330(1)      If, as a consequence of a revision of an assessment roll, there is an increase or decrease in the taxes imposed in respect of a property or premises for a year, the tax collector must send by ordinary mail to the person in whose name the property or premises is assessed an amended tax notice, which must show

(a) the amount at which the affected property or premises has been newly reassessed;

(b) the portion of the year or years to which the change relates; and

(c) the reason for the change.

Change in tax after revision

330(2)      If, as a consequence of a revision of an assessment roll, there is an increase or decrease in any tax,

(a) any increase in the tax must be paid promptly to the city by the person in whose name the property or premises is assessed; and

(b) any decrease must be refunded promptly by the city to the person in whose name the property or premises is assessed.

331         Repealed.

S.M. 2005, c. 34, s. 4.

DIVISION 2

TAXATION

LIABILITY FOR TAXES

Liability for real property taxes

332(1)      Each person in whose name real or personal property in the city is assessed is liable to pay to the city real or personal property taxes imposed under this Act in respect of the property, except where the person or the property is exempted under this or any other Act from payment of such taxes.

Liability for business tax or fee

332(2)      Each person in whose name business is carried on in the city or in whose name business premises are assessed is liable to pay to the city business tax or a licence fee, except where the person or the premises are exempted under this or any other Act from payment of business tax or the licence fee.

Liability of owner for business tax

332(3)      A person is not exempt from business tax in respect of premises on the grounds that the person is also liable to taxation as the person in whose name property is assessed in the realty assessment roll.

Partnerships

332(4)      Where a partnership is liable for business tax,

(a) if the partnership is a limited partnership, the general partner is liable for the tax; and

(b) if the partnership is not a limited partnership, every partner in the partnership is liable for the tax.

Joint liability

332(5)      If taxes imposed under this Act are payable by two or more persons, any payment of the taxes by one of them discharges the liability of the others for the taxes to the extent of the payment.

Business tax not a charge on real property

332(6)      Nothing in this Act makes business tax or a licence fee imposed under this Act in respect of a business a charge on the real property that is used or occupied for the purpose of the business or in which the business is carried on.

LIABILITY OF CITY FOR TAXES

Exemption from taxation

333(1)      Despite any other Act, but subject to subsections (2) and (3), the city, and all property belonging to the city, are exempt from taxes or rates levied and licence fees imposed by municipalities, including school taxes.

Agreements regarding taxes

333(2)      The city and a municipality may enter into an agreement under which the city binds itself to make a grant to the municipality annually in lieu of paying taxes, and the city may pay the amount that it has agreed to pay under the agreement.

Taxes payable in certain cases

333(3)      Instead of taxes, rates and licence fees, the city shall in each year pay

(a) to The Rural Municipality of Springfield, $15,000.;

(b) to The Rural Municipality of Taché, $3,750.; and

(c) to The Rural Municipality of Reynolds, $2,500.

IMPOSING TAXES

Fixing property, personal and business tax rates

334(1)      After the city's operating budget for a fiscal year is adopted, council must by by-law set and impose the following rates of tax sufficient to raise the revenue required in the operating budget to be raised by imposing taxes:

(a) a single rate of real property tax for the year;

(b) rates of business tax for the year, as provided for in section 334.1, which must not be more than 15% of the business assessment of any premises; and

(c) a single rate of personal property tax for the year.

Fixing local improvement and frontage tax rates

334(2)      Council may by by-law set and impose

(a) rates of local improvement taxes for the year imposed under Division 5; and

(b) rates of frontage taxes for the year imposed under Division 6.

By-laws re payment of taxes

334(3)      Council may pass by-laws in respect of real and personal property taxes and business taxes

(a)  setting a due date for the payment of the taxes imposed;

(b) providing that, in the fiscal year in which they are imposed, taxes may be paid in instalments as permitted in the by-law, subject to such terms and conditions as are specified and, if so provided, fixing the date or dates on which the instalments are due, or prescribing the manner in which such date or dates are to be fixed;

(c) providing that, when taxes are paid other than by instalments, discounts at rates prescribed in the by-law may be allowed on amounts that are prepaid on account of those taxes by dates specified in the by-law; and

(d) providing that, when taxes are paid by instalments, discounts at the rates prescribed in the by-law may be allowed on instalments that are prepaid.

By-law may specify purpose of instalment

334(4)      A by-law passed under clause (3)(b) may provide that each instalment consist of the whole or a part of the taxes imposed for a particular purpose specified in the by-law and, if it does so provide, may authorize the tax collector to send by ordinary mail before July 31 of the year for which the taxes are payable, notices containing a statement and demand for payment of instalments of taxes imposed for the particular purpose so specified.

Restriction on discounts

334(5)      A prepayment of taxes or an instalment of taxes must not be accepted in respect of a tax account if there are taxes in arrears on that account.

Application of prepayment

334(6)      A person who prepays taxes must specify the tax account to which the prepayment is to be applied and the tax collector must not apply the prepayment to any other account.

S.M. 2004, c. 49, s. 2.

Establishing classes for purposes of business tax

334.1(1)    Council may by by-law create classes of premises assessed for business assessment.  Classes may be differentiated in any way and on any basis that council considers appropriate.

Different rates for different classes

334.1(2)    The business tax rate set and imposed under clause 334(1)(b) may be different for each class established under subsection (1).

Corrections — business tax rate

334.1(3)    If, after sending out a tax notice respecting a business premises, the city discovers an error or omission relating to the business tax rate set under clause 334(1)(b), the tax collector

(a) must, if correcting the error or omission would result in a decrease in the taxes imposed in respect of the premises, correct the tax rolls for the year and send an amended tax notice, by ordinary mail, to the person in whose name the premises is assessed; and

(b) may, if correcting the error or omission would result in an increase in the taxes imposed in respect of the premises, correct the tax rolls for the year and send a supplementary tax notice, by ordinary mail, to the person in whose name the premises is assessed.

Provisions that apply to corrections

334.1(4)    With necessary changes,

(a) subsection 340(3) (refunds) applies to an amended tax notice under clause (3)(a); and

(b) subsections 341(2) (tax rates) and (4) (owner's liability) apply to a supplementary tax notice under clause (3)(b).

Appeal

334.1(5)    A person in whose name a premises is assessed may, in accordance with section 189 (appeals),

appeal either or both of the following to a hearing body designated by council:

(a) a determination as to which class established under subsection (1) the premises belongs in;

(b) a correction made under subsection (3).

The tax collector must amend the business tax roll to conform with the hearing body's decision, and section 343 applies, with necessary changes, to the amendment.

S.M. 2004, c. 49, s. 3.

Taxes imposed on January 1

335         Taxes imposed for a year are deemed to be imposed on January 1 of that year.

TAX ROLLS

Preparation of tax rolls

336         After the taxes for a year have been imposed under subsection 334(1), the tax collector must prepare

(a) a real property tax roll for the year, which must contain all the properties in the city that are subject to real property tax;

(b) a personal property tax roll for the year, which must contain all the personal property in the city that is subject to personal property tax; and

(c) a business tax roll for the year, which must contain all the premises in the city that are subject to business tax.

Tax rolls may be combined

337(1)      The real property tax roll, the business tax roll and the personal property tax roll may be combined.

Tax roll may be combined with assessment roll

337(2)      A tax roll may be combined with the corresponding assessment roll.

Form of rolls

338         Council may by by-law provide that the city's tax rolls be in any form, including an electronic form.

Content of tax roll

339(1)      The tax rolls must show the following for each property or premises in respect of which taxes are imposed:

(a) the roll number;

(b) the name of the person whose property or premises is assessed on the corresponding assessment roll;

(c) the description of the property or premises and its assessed value;

(d) the amounts levied for every purpose, including those which are required by the law or by-law imposing them to be kept distinct and accounted for separately.

Assessed value re community revitalization property

339(2)      For the purpose of clause (1)(c), the assessed value of a community revitalization property designated under The Community Revitalization Tax Increment Financing Act must indicate separately the portions of the property's assessed value that are attributable to its pre-designation assessed value and its incremental assessed value, as determined under sections 8 and 9 of that Act.

S.M. 2009, c. 29, s. 19.

Cancellation or reduction of taxes

340(1)      The tax collector must correct the tax rolls for the year and cancel or reduce taxes before or after the tax rolls have been prepared, if the city assessor reports one of the following changes has occurred:

(a) real or personal property has become entitled to an exemption from taxation because of a change in its owner or its use;

(b) the assessment of real or personal property is required to be reduced because of a change in its physical condition;

(c) the business assessment of a business is required to be reduced because of a reduction in the size of the premises occupied or used for the purpose of the business;

(d) a change has been made in the classification of property under The Municipal Assessment Act or a regulation made under that Act;

(e) a business has become entitled to an exemption from taxation because of a change in its proprietor or the use of its premises;

(f) a business has ceased to be operated and is no longer subject to business assessment.

Amended tax notice

340(2)      If a correction to a tax roll results in a decrease in taxes imposed on real or personal property or a business for a year, the city must send the person in whose name the property or premises is assessed an amended tax notice that

(a) shows the taxes payable after the correction; and

(b) includes a reference to the right to apply for revision of assessment as provided in section 329 (revision of assessment).

Refunds

340(3)      If taxes for the year on the property or business in excess of the amount shown on the amended notice are paid, the city must refund to the person in whose name the property or premises is assessed the excess, with interest at the rate prescribed under clause 343(1)(c) (repayment of taxes paid under protest) of The Municipal Act calculated for the period from the day the excess was paid to the day the refund is made.

Period of refunds

340(4)      The period for which the city must pay a refund under subsection (3) begins on the later of

(a) the day a change referred to in subsection (1) occurred; and

(b) January 1 of the year before the year in which the city assessor reports a change referred to in subsection (1) occurred.

S.M. 2004, c. 42, s. 58.

Supplementary taxes

341(1)      The tax collector may correct the tax rolls and impose supplementary taxes before or after the tax rolls have been prepared, if the city assessor reports one of the following has occurred:

(a) real or personal property or a business is liable to taxation but no assessment was made of the property or the business premises;

(b) real or personal property or a business has become liable to taxation because of a change

(i) in the owner or use of the property, or

(ii) in the proprietor of the business or the use of the business premises;

(c) the assessment of an improvement on real or personal property or of business premises is required to be increased because of a change in the physical condition of the improvement or premises;

(d) a change has been made in the classification of property under The Municipal Assessment Act or a regulation made under that Act;

(e) real property has been improved or subdivided.

Rates of supplementary taxes

341(2)      Supplementary taxes imposed under subsection (1) in respect of real or personal property or a business for a year or part of a year must be calculated using the applicable rates set by by-law for the year.

Period of supplementary taxes

341(3)      Supplementary taxes imposed under subsection (1) are payable for the period that begins on the later of

(a) the day the circumstances referred to in subsection (1) occurred; and

(b) January 1 of the year before the year in which the city assessor reports the circumstances referred to in subsection (1) occurred.

Liable for supplementary taxes only while owner

341(4)      To be liable to pay supplementary taxes under this section a person must be the person in whose name the property or premises was assessed for the period for which supplementary taxes are being imposed.

S.M. 2004, c. 42, s. 58.

Supplementary tax notice

342         Where supplementary taxes are imposed, the tax collector must send to the person in whose name the property or premises is assessed by ordinary mail a supplementary tax notice that includes, in addition to the information required to be shown in a regular tax notice, a reference to the right to apply for revision of assessment as provided in section 329 (revision of assessment).

Validity of tax rolls

343(1)      Subject to amendments made under subsection (2), the tax rolls for a year and all tax notices and demands for taxes issued by the tax collector have the same validity as if the tax rolls had been prepared after the final disposition of all applications for revision and resulting appeals of assessments for the year.

Adjustments to tax rolls

343(2)      The tax rolls must be amended to conform with

(a) the final decision in any application for revision or resulting appeal of assessment;

(b) the cancellation or reduction of taxes under subsection 340(1); or

(c) the imposition of supplementary taxes under section 341 (supplementary taxes);

and the tax collector shall then make such adjustments in the collection of taxes as are required by those amendments.

TAX NOTICES AND COLLECTION

Issuing tax notices

344(1)      On or before July 1 in each year, the tax collector shall send by ordinary mail to the person whose name appears on the tax roll a notice which must

(a) be in a form approved by the minister responsible for The Municipal Assessment Act;

(b) contain a statement of, and demand for payment of, taxes and arrears of taxes; and

(c) contain or be accompanied by information as to when the taxes are required to be paid, when discounts will be allowed and when penalties will be charged.

Entry of date of notice

344(2)      The tax collector shall enter the date when each notice was mailed in the tax roll.

Material with tax notices

344(3)      Tax notices or statements of, and demands for, taxes sent out under subsection (1) shall include or be accompanied by any tax-related printed information or material supplied by the minister.

TAXES RE SUBDIVISIONS

If land in tax arrears subdivided

345(1)      If satisfied that a parcel of land on which taxes are due has been divided or subdivided, the city may

(a) receive the proportionate amount of tax chargeable on any of the divisions or subdivisions and leave the other divisions or subdivisions chargeable with the remainder; and

(b) in the records of the city, divide the parcel of land as is necessary for the purposes of clause (a).

If plans of subdivision cancelled

345(2)      If a plan subdividing land is cancelled in whole or in part, the land that before cancellation comprised any lot or lots, block or blocks, is liable for and chargeable with the total amount of the arrears of taxes charged against the lot or lots, block or blocks, included in the area affected by the cancellation, and it may be sold for non-payment of the taxes.

TAXES PAID BY MISTAKE

Refund and charging

346         Where a person by mistake pays an amount as taxes to the city on real or personal property or premises in which the person has no interest and the amount is refunded,

(a) the city may charge back the amount on the property on which it was paid; and

(b) if in the meantime a tax certificate was issued showing taxes on the property to have been paid and a subsequent change in ownership of the property occurred, the city may charge the taxes against any other property assessed in the name of the person by whom the taxes should have been paid, and may in any event collect the taxes from that party by action, distress and sale of personal property of the party, or otherwise.

CANCELLATION OF TAXES

Council may cancel taxes

347         Council may by by-law cancel in whole or in part any taxes or any debt or money owing to the city, other than local improvement taxes.

PENALTIES AND INTEREST

Council may set penalties

348(1)      Council may by by-law

(a) fix a rate of interest to be paid as a penalty on taxes that are due and unpaid, or prescribe the manner in which the interest rate is to be fixed;

(b) in respect of real property sold for unpaid taxes,

(i) establish a penalty calculated as a percentage of the amount for which the property was sold at tax sale, and

(ii) fix a rate of interest on the amount for which the property was sold at tax sale to be paid as a penalty;

(c) provide for compounding the interest and prescribing the manner of compounding it; and

(d) provide that the penalties be added to the taxes at a specified time or times.

Collection of penalties

348(2)      Penalties on taxes must be collected in the same manner and with the same priorities as the taxes on which they are payable.

Penalty applies in spite of appeal

348(3)      Despite any decision on an application for revision of an assessment or an appeal, the penalties provided by by-law apply to all unpaid taxes whether paid before or after the final disposition of the application or the appeal.

Interest on refunds

349         If, as a consequence of a revision of an assessment roll, the amount of taxes for a year payable by a person is reduced after the taxes have been paid, the city must pay interest on the refund of any excess paid, at a rate prescribed under clause 343(1)(c) (repayment of taxes) of The Municipal Act, calculated from the day the excess was paid to the day the refund is made.

DIVISION 3

COLLECTION OF TAX ARREARS AND DEBTS

GENERAL

Payments on tax arrears

350         Where real or personal property taxes in respect of property are in arrears, any payment in respect of taxes in respect of the property must be applied first on the year's taxes longest in arrears, except that where there is a dispute as to taxes for a particular year, a payment may be applied on taxes for the first year that is not in dispute.

Collection remedies

351(1)      The city may attempt to collect or enforce payment of taxes in accordance with any or all remedies provided in this or any other Act, and, except as otherwise provided, the use of one remedy does not prevent the use, separately or concurrently, of another remedy in respect of the same taxes; but the city is not under any compulsion to exercise any right to collect taxes by any remedy.

Debt owing to city

351(2)      Every amount payable to the city under this Act, whether it is a tax, a penalty, a recoverable cost of seizure or sale payable by a taxpayer, an amount authorized under this or any other Act to be added to taxes, or an amount payable by a third party in respect of the tax arrears of a taxpayer, is a debt owing to the city by the person liable to pay the amount and recoverable in a court of competent jurisdiction.

Evidence of taxes payable

351(3)      Production of a copy of a tax roll or a part of a tax roll as it relates to taxes payable in respect of a property or a business, purporting to be certified by the tax collector as a true copy, is sufficient proof

(a) of the amount of taxes payable or in arrears in respect of the property or business and payable by the person in whose name the property or premises is assessed; and

(b) if it contains an entry respecting the mailing of a tax notice as required under subsection 344(2) (entry of date of notice), of the mailing of the tax notice.

Tax certificate

352(1)      On request and payment of a fee prescribed by by-law, the tax collector must issue a tax certificate showing

(a) the taxes for the year in respect of the property or business specified in the request, and any amount paid as of the date of the certificate;

(b) any tax arrears owing in respect of the property or business as of the date of the certificate; and

(c) in respect of real property taxes, whether the property has been

(i) sold for unpaid taxes, and, if it has, the date when it was sold, or

(ii) advertised for sale for unpaid taxes, and, if it has, the date when the sale will take place.

Certificate binding

352(2)      A tax certificate issued under subsection (1) is binding on the city but does not prevent the city from imposing

(a) supplementary taxes after the date of the certificate;

(b) additional taxes resulting from an application for revision, or resulting appeal, commenced before the date of the certificate; or

(c) other fees, levies, charges or amounts that, under this or another Act, the city is required to or may collect in the same manner as taxes.

LIENS FOR TAXES

Special lien on land and improvements

353(1)      The city has a special lien on real property for the amount of taxes imposed in respect of the real property.

Special lien on personal property

353(2)      The city has a special lien

(a) on all personal property in the possession of a person, wherever it may be found, for the amount of the taxes imposed in respect of any personal property or business of the person; and

(b) in regard to a corporation providing telephone services, on its property that is deemed to be real property under subsection 323(1) (utility corporations' property assessment), for the amount of the taxes imposed in respect of the $1,200,000. assessed value of that property.

No registration and priority of lien

353(3)      A special lien created under this section

(a) is not required to be registered to preserve it;

(b) is not defeated by judicial proceedings, changes in ownership or other acts or things; and

(c) unless otherwise provided in this Act or any other Act, and subject to the Bankruptcy and Insolvency Act (Canada), has priority over claims, liens, charges and encumbrances of every person, including registered and unregistered mortgages, encumbrances, assignments, debentures and other security interests, whether made, given, accepted, issued or arising before or after the coming into force of this Act, other than

(i) a claim, lien, charge or encumbrance in favour of the Crown,

(ii) a claim for wages or salary, for a period not exceeding three months immediately preceding the day when the first steps to collect under the lien are taken, of an individual who has provided services or labour to the person liable to pay the taxes, and

(iii) a claim for the costs of a seizure or sale, or of any proceeding in respect of a distress, seizure or sale to enforce the lien.

No lien on land for business tax etc.

353(4)      There is no lien or charge on real property for business tax, personal property tax, licence fees, or the special lien specified in clause (2)(b).

No lien on goods on consignment or in storage

353(5)      Where personal property is in the possession of a person solely for the purpose of storing or warehousing it for another person or for sale on consignment, on commission or as agent,

(a) there is no lien or charge on the property; and

(b) the personal property shall not be distrained or sold;

for taxes payable by the person in possession.

S.M. 2004, c. 42, s. 58.

Priority in bankruptcy

354(1)      Except as otherwise provided, on an assignment for the benefit of creditors made by or on a bankruptcy of a person liable to pay taxes, or on a receiving or winding-up order being made in respect of a corporation liable to pay taxes, a special lien created under subsection 353(2) is on all the personal property passing under the assignment or bankruptcy or affected by the winding-up order, and the city has priority over any and all other fees, charges, liens and claims whatsoever; and any disposal of such property may be made by the assignee, trustee, receiver or liquidator only on payment to the city of the amount of the taxes.

Personal property of bankrupt liable

354(2)      Personal property that is in the hands of an assignee, trustee in bankruptcy, receiver or liquidator and that is subject to a lien for business taxes or licence fees payable by the assignor or bankrupt or by the corporation that is in receivership or being liquidated is liable only for those taxes or licence fees imposed in respect of the premises in which the property was situated at the time of the assignment, application for bankruptcy or the appointment of the receiver or liquidator was made and thereafter imposed in respect of the premises while the assignee, trustee in bankruptcy, receiver or liquidator occupies the premises or while the property remains in the premises.

DISTRAINT AND SALE OF PERSONAL PROPERTY

Sale or distraint for lien under subsection 353(2)

355         Subject to subsection 353(5) (goods on consignment or in storage), the city may collect taxes in respect of which a lien is created under subsection 353(2), by distraint or sale of the personal property.

Distress and sale for taxes

356(1)      When a person who is liable for payment neglects to pay personal or real property taxes within 30 days, or business taxes or a licence fee immediately, after the day the payment is due, the city may, by distraint and sale of personal property that is subject to a lien for the payment thereof, collect the taxes or licence fee, together with the costs and charges for or in respect of the distress and sale on the same scale as those that may be charged and collected under The Distress Act.

Sale and right of distraint

356(2)      In the event of the sale of a business by a person liable for unpaid business tax or licence fees in respect of the business, all the personal property passing by the sale continues, as against the immediate purchaser, to be liable to distraint and sale under subsection (1).

Distress and sale to be by tax collector

356(3)      The tax collector, or a person appointed in writing by the tax collector, may carry out the distraint and sale under subsection (1).

Right of entry of person levying distress

356(4)       Where under this section a person is authorized to distrain personal property and the personal property is enclosed, or purported to be enclosed, in a building or closed place, the person may, in the presence of two witnesses, cause the building or place to be opened with all force necessary to effect the opening.

Restriction on distraint

357(1)      Subject to subsection 356(2) and subsection (2), no distraint or sale to collect taxes shall be made under this Part of personal property of a person who is not liable to pay the taxes or fee if that person claims the property.

Where subsection (1) not to apply

357(2)      The restriction under subsection (1) on distraint and sale of personal property to collect taxes does not apply to the interest of the person liable to pay the taxes or fee in the property where the property is in the possession of that person under a contract

(a) for purchase of the property; or

(b) under which the person may or is to become the owner of the property on the performance of a condition.

Persons in possession to pay taxes

358(1)      Where personal property that is subject to a lien for taxes, or liable to distraint and sale for taxes, as provided in this Part

(a) is in the possession of any person because the property

(i) is under execution or attachment, or

(ii) has been seized by

(A) the sheriff of the Court of Queen's Bench,

(B) a landlord or landlord's bailiff,

(C) a person, or the bailiff of a person, who has taken possession of the property because of default under a security agreement, or

(D) any other person;

(b) is in the possession of a receiver or assignee for the benefit of creditors or a trustee in bankruptcy;

(c) is claimed by or in the possession of a corporation in respect of which a liquidator has been appointed; or

(d) in any of the circumstances described in this subsection, has been converted into cash and the cash is undistributed and in the possession of any person;

it is sufficient for the tax collector to give to that person notice of the amount of taxes that are due, and in that case that person shall, subject to subsection (3), pay the amount to the city, in preference and priority to any and all other fees, charges, liens and claims whatsoever.

Distraint for real property taxes

358(2)      Where real property taxes in respect of real property are due and unpaid, the city may collect, or enforce the payment of, the taxes by distraint and sale of personal property of the person in whose name the property is assessed.

Exception

358(3)      Where personal property has been distrained by a landlord's bailiff, the legal fees of the bailiff, based on a distraint for an amount equal to the amount of the taxes, may be deducted from any amount that the bailiff is required under subsection (1) to pay to the city.

Acknowledgment

359         An acknowledgment by a person that the person's personal property has been distrained under this Act for unpaid taxes is of the same force and effect as an actual distraint or seizure of the property.

Release not to prejudice city

360         Where a person's personal property has been distrained under this Act for unpaid taxes, the city may, on payment of part of the taxes in arrears, release some or all of the property without prejudice to its right to use any remedy, including distraint and sale, to recover the balance of the arrears.

Limit on liability for distrained property

361         The city is not liable for any damage, loss or destruction of personal property that has been distrained under this Act except to the extent that the damage, loss or destruction resulted from the negligence of the city or its employees or agents.

Sale of distrained goods

362(1)      Personal property that has been distrained under this Act may be sold by the city by public auction, public tender or other public competition.

Notice of sale

362(2)      The city must give public notice of any sale of personal property to be conducted under this Part and the notice must set out

(a) a description of the property to be sold;

(b) the time when and the place where the sale will take place or tenders must be submitted, as the case requires; and

(c) the manner in which the sale will be conducted.

Proceeds of sale of seized property

363(1)      Where the city sells all or part of property seized or removed by the city under this Act or a by-law, the proceeds of the sale must be used

(a) to pay the expenses and costs of the seizure or removal;

(b) to pay any taxes owing to the city; and

(c) to pay any debt owing to the city;

and the city must pay the surplus, if any

(d) to the person in whose possession the property was when it was distrained; or

(e) if another person claims the balance, into the Court of Queen's Bench to be paid out as the court orders.

Where person entitled not known

363(2)      Where the whereabouts of the person entitled under subsection (1) to any balance arising from the sale of personal property under this Part are unknown to the tax collector at the time of the sale, the surplus shall remain in the hands of the city and

(a) if, within six years after the sale, that person claims the surplus with evidence of the entitlement, the city must pay to that person the surplus, with interest on it at the rate prescribed by regulation for the purposes of clause 343(1)(c) (repayment of taxes) of The Municipal Act calculated from the day of the sale to the day of payment; and

(b) if the person entitled to the surplus does not claim the surplus within six years after the sale, the surplus becomes part of the general revenues of the city and is not recoverable from the city.

Application to court re seizure

364(1)      Any person whose property is seized by the city under this Act or a by-law may, within 30 days, or such longer period as the court may allow, apply to the Court of Queen's Bench for an order under subsection (2).

Order on application

364(2)      On an application under subsection (1),

(a) where the property was seized for the purpose of recovering a debt owing to the city, if the court is satisfied that

(i) the applicant does not owe the debt, or

(ii) the value of the property is excessive having regard to the amount of the debt; or

(b) where the property was seized as a remedial action in respect of a contravention or alleged contravention of this Act or a by-law, if the court is satisfied that

(i) the alleged contravention did not occur, or

(ii) some or all of the property was not a factor in the contravention;

the court may

(c) order the return, if possible, of some or all of the property to the applicant;

(d) order the city to make restitution to the applicant in an appropriate amount, including any money expended by the applicant in making the application; or

(e) make such other order as the court considers just in the circumstances.

MISCELLANEOUS REMEDIES

Assets insufficient to cover taxes

365         A person shall not, in any year, carry on a business that is subject to business tax or a licence fee if

(a) the person is in default in the payment of any business taxes or licence fees for the previous year or part of the previous year; and

(b) the city has issued a warrant of distress for the business taxes or licence fees due by the person and the value of the property distrained is not sufficient to pay the total of the taxes or fees in arrears and the costs of the distress and sale of the property.

Building not to be removed if taxes unpaid

366(1)      No person shall, without the prior consent of the tax collector, remove a building from land on which it is situated if taxes on the building or land, or any penalties in respect thereof, are unpaid.

Transfer of taxes

366(2)      If

(a) taxes on a building or the land on which it is situated are unpaid; and

(b) the building is removed from that land to other land without the prior consent of the tax collector;

the tax collector may transfer the unpaid taxes to the other land, and this Act applies, with necessary changes as the circumstances require, in respect of that other land and those taxes on the other land as if they had originally been levied on that other land.

Tenant required to pay rent to city

367(1)      Where a tenant occupies property on or in respect of which taxes are due and unpaid, the tax collector may give notice to the tenant requiring the tenant to pay to the city the rent as it becomes due from time to time to the amount of the total of the unpaid taxes and costs incurred by the city in attempting to collect them; and, if the tenant fails or neglects to pay the rent to the tax collector,

(a) the amount of the rent may be recovered with costs in a court of competent jurisdiction as a debt due from the tenant to the city; and

(b) the city may, subject to The Landlord and Tenant Act, levy the amount of the rent, with costs, by distress and sale of the personal property of the tenant.

Effect of payment by tenant

367(2)      Payment of an amount by a tenant under a demand given under subsection (1) for payment of rent to the city has the same effect, as between the tenant and the landlord, as if the amount had been paid by the tenant directly to the landlord, or other person entitled to the amount.

Action by tenant to recover taxes paid

368         If a tenant of property pays taxes levied on that property, the tenant has, unless the contrary has been agreed to by the tenant and the landlord, a right of action against the landlord for the recovery of the amount so paid, with interest and costs, or the amount may be retained and deducted by the tenant from any rent or other amount due or accruing due for the use or occupation of the property.

Insurance money applied to taxes

369(1)      Subject to subsections (2) and (4), when real property is damaged or destroyed and

(a) taxes on the property are unpaid; or

(b) the property has been sold for taxes and the city holds the tax sale certificate;

any amount payable to any person in respect of the damage or destruction under a policy of insurance covering the property shall, to the extent of the unpaid taxes or the amount necessary to redeem the property from the tax sale, be paid by the insurer to the city.

Limitation on application of subsection (1)

369(2)      Subsection (1) applies only to the extent that the money payable under an insurance policy is not used, or to be used, in or toward

(a) the rebuilding, reconstruction or repair of the property damaged or destroyed; or

(b) the acquisition, setting up or repairing of another building on the same site to take the place of the building that was damaged or destroyed.

Application of insurance money

369(3)      Subject to subsection (4), when personal property that is subject to a lien for business tax or licence fees is damaged or destroyed and the business taxes or licence fees are unpaid, any amount payable to any person in respect of the damage or destruction under a policy of insurance covering the property shall, to the extent of the unpaid taxes or licence fees, be paid by the insurer to the city on demand.

Insurers to notify tax collector

369(4)      Where the insurer under a policy of insurance on any property in the city that is subject to a lien for taxes receives notice of loss under the policy, the insurer shall, within 48 hours after receiving the notice, inform the tax collector by registered mail of the notice of loss, and, unless a written demand for the taxes within 14 days after the information is mailed, the insurer is not liable as provided in subsection (1) or (3).

DIVISION 4

TAX SALES FOR REAL PROPERTY TAXES

Definitions

370         In this Division,

"costs", in relation to real property that is being or has been sold for unpaid taxes, means the total of

(a) the expenses incurred by the city in connection with the collection of unpaid taxes in respect of the property, including a sale or proposed sale of the property for unpaid taxes, and

(b) any fees paid by the city to the land titles office in respect of the sale or proposed sale of the property for unpaid taxes or in respect of the redemption of the property from the tax sale; (« frais »)

"date of sale", in relation to real property that is being or has been sold for unpaid taxes, means the day on which a public auction of the property, advertised under section 374 (preliminary steps to tax sale),

(a) took place or will take place, or

(b) would take place or would have taken place if the city had not, before that day, purchased the real property for unpaid taxes; (« date de la vente »)

"tax purchaser" means a person, including a municipality, who purchases real property at a tax sale under this Division, and includes the city if the city exercises its right under subsection 377(1) (prior right of city to purchase) to purchase real property for unpaid taxes; (« adjudicataire »)

"taxes", in relation to real property, means

(a) real property taxes on the property, whether or not the property has been sold for unpaid taxes,

(b) all other amounts, including penalties, that, under this or any other Act, may be added to or collected in the same manner, and with the same priorities, as real property taxes on the property, and

(c) costs in relation to the sale of the property for unpaid taxes. (« taxes »)

Land liable to tax sale

371         When any taxes on real property in the city have been due and unpaid for more than one year after December 31 in the year in which the taxes were imposed, the property is liable to be sold for unpaid taxes as provided in this Division.

Description of land

372         For the purposes of this Division, a parcel of real property may be described by stating the number of the registered instrument from which a description of the parcel can be obtained.

Tax arrears list

373         The city must maintain a list that

(a) identifies each parcel of real property that is liable to be sold for unpaid taxes; and

(b) for each such parcel, shows the unpaid taxes for each year for which taxes are unpaid.

Preliminary steps to tax sale

374         The city must at least annually arrange for the sale of real property in the city that is liable to be sold for unpaid taxes, and shall

(a) prepare a list of the parcels to be sold; and

(b) publish in one issue of The Manitoba Gazette, at least 30 days but not more than 60 days before the date of sale, a notice setting out

(i) the list,

(ii) a statement that, unless the unpaid taxes are sooner paid, each of the parcels on the list will be sold for unpaid taxes, and

(iii) the place where and day and time when a public auction for the sale will be held if required under subsection 378(1) (sale by auction).

Where title vested in Crown

375         Where title to real property to be sold for unpaid taxes is vested in the Crown, the sale conveys only such right to or interest in the property as the Crown

(a) may have conveyed or disposed of; or

(b) is willing to recognize or admit is possessed by another person, however it may have been acquired.

First notice to registered owner

376(1)      At least 120 days before the date of sale of real property, the city must give notice to the registered owner of the property liable to be sold that

(a) the taxes on the property are unpaid, and the amount of those unpaid taxes; and

(b) unless the property is redeemed as provided in this Division, the property may be sold for unpaid taxes.

Second notice to registered owner

376(2)      At least 60 days before the date of sale of real property, but at least 14 days after giving notice under subsection (1), the city must again give notice of the information described in subsection (1) to the registered owner of the property liable to be sold.

Manner of giving notice

376(3)      A notice under this section may be sent by ordinary mail.

Prior right of city to purchase

377(1)      Subject to the right of the registered owner to redeem the property from tax sale, instead of offering real property on the list of parcels to be sold by public auction for unpaid taxes, the city may purchase the property for the amount of the unpaid taxes; but if the city intends to exercise its right under this subsection, the notice published under clause 374(b) (preliminary steps) must contain a statement to that effect and must identify the parcels in respect of which the city intends to exercise that right.

Purchase money not needed

377(2)      Where the city

(a) exercises its right under subsection (1) to purchase real property; or

(b) bids and is successful in purchasing real property sold at a public auction for unpaid taxes;

it is not necessary for the city to pay the purchase money for the property; but the provisions of this Division respecting redemption of real property from tax sale continue to apply as though the property had been purchased at the auction by a person other that the city.

Sale by auction

378(1)      Unless the property is redeemed from tax sale, or the city exercises its right to purchase the parcel under subsection 377(1), real property identified in the list set out in the notice published under clause 374(b) (preliminary steps) must be offered for sale by public auction at the place, day and time set out in the notice and sold to the highest bidder.

Auction may be adjourned

378(2)      A public auction of real property to be sold for unpaid taxes may be adjourned from time to time for any reason, but unless the date, time and place of the continuation of the auction is announced at the time of the adjournment, notice of that information must be given as though the continuation were a new auction.

Where bidder doesn't pay immediately

378(3)      If the person making the highest bid for the purchase of real property at an auction held under this section fails to pay, immediately after the bid is accepted, the amount of the unpaid taxes, or such lesser sum as may have been accepted as the highest bid, the property may be put up for sale again at the auction.

Restriction on bidders

379         The following persons must not bid for, or buy, or act as an agent for anyone but the city, in the buying of, real property at an auction held under subsection 378(1):

(a) the auctioneer conducting the auction;

(b) a member of council;

(c) a statutory officer;

(d) a member of a class or group of employees designated by by-law;

(e) the spouse, common-law partner or a dependant family member of an individual described in clause (a) to (d) who resides with that individual;

(f) a person in which an individual described in any of clauses (a) to (d) has a pecuniary interest.

S.M. 2002, c. 48, s. 26.

Return to district registrar

380         Within one month after exercising the prior right under subsection 377(1) or holding an auction under subsection 378(1), or as soon as is reasonably practicable after that, the city must forward to the district registrar a return setting out all the parcels of real property that were sold at the auction or in respect of which the city exercised its prior right to purchase, and the district registrar must make entries in the records of the land titles office to indicate that the parcels have been sold.

Purchaser to pay all unpaid taxes

381         If at an auction held under subsection 378(1) real property is sold for more than the unpaid taxes on the property, the tax purchaser must pay at the time of the sale the amount of the unpaid taxes, and if the property is not redeemed from the tax sale, the balance of the purchase price must be paid to the city within one month after the district registrar notifies the tax purchaser that a certificate of title for the property may be issued to the tax purchaser, as provided in this Division.

Tax sale certificate

382(1)      Where real property is sold for taxes, a designated employee must issue to the tax purchaser a tax sale certificate in a form prescribed by the district registrar.

Modified certificate

382(2)      Where real property is sold for taxes and the purchase price is more than the unpaid taxes on the property, the certificate issued under subsection (1) must indicate

(a) the total purchase price;

(b) the amount of the unpaid taxes for which the property was sold and which was paid to the city by the tax purchaser at the time of the sale; and

(c) that the balance of the purchase price must be paid to the city within one month after the district registrar notifies the tax purchaser that a certificate of title for the property may be issued to the tax purchaser.

Statement of payment of balance

383(1)      Where the balance of the purchase price of real property sold for unpaid taxes is paid within the one month period referred to in section 381, the city must give the person paying the balance a statement showing the payment.

Where balance not paid

383(2)       Where the balance of the purchase price of real property sold for unpaid taxes is not paid within the one month period referred to in section 381, the tax purchaser of the property forfeits all claim to the property and to any amount paid at the time of the sale, or later for taxes, and the property ceases to be affected by the sale in the same manner as if it had been redeemed from tax sale.

Rights of tax purchaser

384(1)      The tax purchaser of real property, on receipt of the tax sale certificate issued under section 382, becomes the owner of the parcel so far as to have all rights of action and powers that are necessary to protect the property from waste for the period during which the property may be redeemed from tax sale, and has the right to pay taxes on the property after the expiry of 60 days after the day they are demanded by the tax collector and to be reimbursed, as provided in this Division, for all taxes so paid, but the tax purchaser

(a) must not injure or commit waste of, or permit others to injure or commit waste of, the property; and

(b) is not liable for damage done to the property during that period without the tax purchaser's knowledge.

Right of city to enter unoccupied real property

384(2)      Where real property of which the city is the tax purchaser becomes wholly unoccupied at any time after the date of sale of the property and before the property is redeemed from tax sale, the city may enter into possession of the property and, subject to any right to redeem it from tax sale, may exercise all powers of an owner in respect of the property.

Assignment of tax sale certificate

385(1)      The tax purchaser of real property may at any time assign the tax sale certificate.

Rights of assignee

385(2)      Production of a tax sale certificate in respect of real property entitles the assignee to all the rights of the original tax purchaser, both in respect of the property and any redemption amount as provided in this Division, and for the purposes of this Act, an assignee of a tax sale certificate in respect of the property is deemed to be the tax purchaser of the property.

Tax purchaser may be required to assign

385(3)      At any time before a certificate of title is issued to the tax purchaser of real property that has been sold for unpaid taxes, a person who has an interest in, or a charge on, the property may require the tax purchaser to assign to the person the tax sale certificate in respect of the property on payment to the tax purchaser of

(a) the amount required, as of the day of the assignment, to redeem the land from tax sale; and

(b) the amount of the expenses that the tax purchaser incurred incidental to the assignment.

Priorities of rights

385(4)      As between persons having different interests in or charges on real property, a requisition made under subsection (3) for an assignment of a tax sale certificate in respect of the property of a person who has a prior interest or charge prevails over a requisition of a person who has an interest or charge that is subject to that prior interest or charge.

No requisition to person with prior right

385(5)      A person who has an interest in, or a charge on, real property that is subject to a prior interest in, or charge on, the property, may not require, under subsection (3), an assignment of a tax sale certificate from the person who has the prior interest or charge.

Application to court

385(6)      Whether or not the amounts mentioned in subsection (3) have been tendered, a tax purchaser of real property or a person who has an interest in, or a charge on, the property may apply to a judge of the Court of Queen's Bench in respect of a requisition made, or a question arising, under this section.

REDEMPTION THROUGH CITY

Redeeming by payment to city

386(1)      Any person who has an interest in real property that has been sold for unpaid taxes, or any other person on his or her behalf, may, within one year after the date of sale of the property, redeem the property from tax sale by paying to the city

(a) the full amount of all unpaid taxes on the property, including taxes levied after the property was sold for taxes; and

(b) where the tax purchaser of the property is not the city, a sum by way of penalty calculated at the rate prescribed by regulation for the purpose of clause 343(1)(c) (repayment of taxes) of The Municipal Act multiplied by the total of the full amount that was paid by the tax purchaser at the tax sale.

Actions on redemption

386(2)      Where, under subsection (1), the amount required to redeem the property from tax sale is paid, the city must

(a) issue to the person who paid the amount a statement of redemption of the property from tax sale, which is evidence of the redemption and may be registered in the land titles office without an affidavit of execution;

(b) give to the tax purchaser of the property, if it is not the city, notice of the redemption; and

(c) pay to the holder of the tax sale certificate for the property, if it is not the city, the total of

(i) the amount of the purchase money paid on the purchase of the property at the tax sale,

(ii) the amount, if any, of any subsequent taxes on the property that were paid by the tax purchaser, and

(iii) the amount of the penalty paid under clause (1)(b).

Payment without tax sale certificate

386(3)       Where real property is redeemed under subsection (1) and the tax sale certificate for the property is lost or destroyed, the city may, on such security as the city may reasonably require, make the payment under clause (2)(c) to a person who the city is satisfied is entitled to the payment.

Continuing assessment and taxation

387         From the time real property is sold for unpaid taxes until the time for redeeming it from tax sale has expired, the property continues to be liable to assessment and taxation in the name of the person who was the registered owner of the property immediately before the sale.

When rights of tax purchaser cease

388         Where real property is redeemed from tax sale under subsection 386(1), all rights of the tax purchaser of the property cease from the time the redemption money is paid.

REDEMPTION THROUGH LAND TITLES OFFICE

Return to L.T.O.

389         Upon the expiration of one year after the date of sale of real property for unpaid taxes, the city must forward to the district registrar a return showing, in respect of each parcel of real property that was sold and that has not been redeemed,

(a) the person to whom the parcel was sold;

(b) the amount for which the parcel was sold;

(c) the taxes paid by the tax purchaser since the sale and before the expiration of the year; and

(d) such other information as the district registrar may require.

Redeeming by payment to district registrar

390         Any person who has an interest in real property that has been sold for unpaid taxes, or a person on their behalf, may, after the expiration of one year after the date of sale of the property and before a certificate of title is issued to the tax purchaser of the property, redeem the property from tax sale by paying to the district registrar

(a) the full amount of all unpaid taxes owing on the property, including taxes levied after the property was sold for taxes;

(b) all expenses incurred by the tax purchaser in proceeding to obtain title to the property, including solicitor's fees, if any, which costs and fees may be fixed and taxed by the district registrar;

(c) all fees charged under section 404 (forms and fees for L.T.O.) by the district registrar in respect of the redemption;

(d) the amount of any taxes on the property for the current year paid by the tax purchaser since the sale; and

(e) where the tax purchaser of the property is not the city, an amount by way of penalty calculated at the rate prescribed by regulation for the purpose of clause 343(1)(c) (repayment of taxes) of The Municipal Act multiplied by the total of the full amount that was paid by the tax purchaser at the tax sale.

District registrar's duties

391(1)      Where real property is redeemed from tax sale under section 390, the district registrar must

(a) record the redemption in the records of the land titles office;

(b) provide a statement to the city advising of the redemption and the amount paid in respect of it;

(c) retain from the amount paid on the redemption any fees due to the district registrar; and

(d) pay the balance of the amount paid on the redemption to the city.

Money not subject to attachment

391(2)      While money paid to the district registrar for the redemption of real property from tax sale remains in the hands of the district registrar, it is not subject to attachment or garnishment proceedings.

Payment by city to tax purchaser

392         Upon receiving payment of the amount under clause 391(1)(d) in respect of the redemption of real property from tax sale, the city must pay to the tax purchaser of the property on demand, and on surrender of the tax sale certificate for the property or if the tax sale certificate is lost or destroyed, on provision of such security as the city may reasonably require,

(a) the amount of the purchase price paid by the tax purchaser for the property;

(b) the amount of taxes on the property paid by the tax purchaser after the tax sale; and

(c) the amount referred to in clause 390(b) paid on the redemption.

REDEMPTION BY INSTALMENTS

Authority for instalments

393(1)      Council may by by-law authorize the city to enter into an agreement with a person (in this section referred to as "the contracting party") who is the registered owner of, or who has an interest or estate in, or a charge on, real property that has been sold for taxes for the redemption of the property from the tax sale through the payment of instalments.

Copy of agreement to district registrar

393(2)       Where an agreement is made under subsection (1), the city must forward a copy of it to the district registrar who shall make entries in the records of the land titles office to indicate that the agreement for redemption has been made.

Agreement not to affect other remedies

393(3)      The making of an agreement under subsection (1) for the redemption of real property from tax sale and payments by the contracting party under the agreement do not prejudice, alter or affect any remedy that the city may take to enforce payment of taxes on the property in the event of default under the agreement.

Default under agreement

393(4)      Where there is default by the contracting party under an agreement made under subsection (1), the agreement is void and

(a) all money paid by the contracting party under the agreement becomes the property of the city even if the real property to which the agreement relates is not completely redeemed from the tax sale; and

(b) the district registrar must proceed to deal with any application by the tax purchaser in respect of the real property as though the agreement had not been made.

Power of city to assign tax sale certificate

393(5)       Despite the making of an agreement under subsection (1) for the redemption of real property from tax sale, the city, if it is the tax purchaser of the property, may assign the tax sale certificate for the property and all its rights under the certificate, but the assignee of the certificate must observe and comply with all the provisions of the agreement required to be observed or complied with by the city.

Effect of agreement on tax purchaser

393(6)       Despite subsection 394(1), where an agreement is made under subsection (1) for the redemption of real property from tax sale, an application under subsection 394(1) by a tax purchaser of the property

(a) must not be made until after the contracting party defaults under the agreement; and

(b) may be made within two years after any default under the agreement by the contractor.

TRANSFER OF TITLE

Tax purchaser's application for title

394(1)      At any time after one year after the date of sale of real property that has been sold for taxes and before three years after that date of sale, if the property has not been redeemed from tax sale, the tax purchaser of the property may apply to the district registrar for a certificate of title to the property to be issued in the name of the tax purchaser.

How application to be treated

394(2)      An application under subsection (1) must be dealt with as an application to bring the real property under The Real Property Act or for a transmission under that Act, as the case requires.

Failure to make application

394(3)      If a tax purchaser of real property that has been sold for unpaid taxes fails to make an application under subsection (1) in respect of the property within the period provided in that subsection, the tax purchaser forfeits all claim

(a) as tax purchaser to the property; and

(b) to the amount paid for the property at the tax sale and all subsequent taxes paid on the property;

and the property ceases to be affected in any way by the tax sale as if it had been redeemed from the tax sale.

Notice to interested persons of application for title

395(1)      Where the tax purchaser of real property makes an application under section 394 for title to the property, the district registrar must require the applicant to give notice of the application to

(a) the registered owner of the property, by personal service on

(i) the registered owner, or

(ii) an adult person residing at the address shown on the most recent tax notice issued in respect of the property; and

(b) every person who appears from the land titles records to have an interest in the property, by any delivery service whereby the sender is provided with an acknowledgment of receipt.

Contents of notice

395(2)      Each notice given under this section in respect of an application for title to real property must indicate that unless, within 90 days after the notice is given to the registered owner and the interested persons,

(a) the tax sale of the property is challenged under section 403 (action to set aside tax sale); or

(b) the property is redeemed from tax sale by payment of the amount necessary for that purpose;

a certificate of title to the property will be issued in the name of the tax purchaser.

Proof of service

395(3)      The tax purchaser must file with the district registrar acknowledgments of receipt or other evidence of service of the notices required under this section, and if the tax purchaser is unable to provide such acknowledgments or proof, the tax purchaser may apply to the district registrar for directions for substitutional service.

Directions for substitutional service

395(4)      Where a tax purchaser applies under subsection (3), the district registrar may grant directions for substitutional service of the notice required under subsection (1) on any person required to be served with the notice.

Compliance with directions

395(5)      Proof of compliance with directions for substitutional service on a person of a notice required under this section is deemed to be proof of service of the notice on the person.

Fixing date of service

395(6)      Where the district registrar is satisfied that all persons required under this section to be served with a notice of application for title to real property have been served with the notice, the district registrar must determine the day upon which the last such service was effected, and that determination is final.

Persons entitled to redeem

396         Every person required under subsection 395(1) to be served with a notice in respect of an application for title to real property in tax sale who does not,

(a) exercise the right of redemption of the property from the tax sale before title is issued to the tax purchaser; or

(b) challenge the tax sale under section 403 (action to set aside tax sale) within 90 days after the day determined under subsection 395(6);

is forever estopped and debarred from setting up any claim to or in respect of the property.

Issue of title

397(1)      Where an application for title to real property is made by the tax purchaser of the property and, within 90 days after the day determined under subsection 395(6), the property is not redeemed from tax sale under section 396, and the tax sale is not challenged under section 403 (action to set aside tax sale), the district registrar must

(a) where the tax purchaser is the city, issue a certificate of title under The Real Property Act to the property in the name of the city; and

(b) where the tax purchaser is not the city, notify the tax purchaser that a certificate of title under The Real Property Act to the property will be issued in the name of the tax purchaser upon the district registrar being satisfied that the balance, if any, of the purchase price for the tax sale has been paid to the city, and when the district registrar is so satisfied, he or she shall issue a certificate of title under that Act to the property in the name of the tax purchaser.

Validity of title

397(2)      A certificate of title to real property issued under subsection (1) has, in every respect, the same effect as any other certificate of title issued under The Real Property Act and, except as otherwise provided in that Act, extinguishes every interest in, and right in respect of, the property that arose or existed in the property before it was sold for taxes.

District registrar not obliged to inquire

398(1)      The district registrar is not obliged to ascertain or inquire into the regularity or lawfulness of any proceedings

(a) in respect of a tax sale of real property under this Act; or

(b) in respect of the assessment of any real property under this or any other Act.

No action against district registrar

398(2)      An action does not lie and is not maintainable against the district registrar, the land titles office or the government for damages that may accrue because of any action by the district registrar or the land titles office under this Division.

Withdrawal by city

399         The city may, at any time, withdraw an application for title made by it under this Division.

CHANGING BUILDING RESTRICTION COVENANTS

Effect on building restriction covenants

400(1)      Where

(a) real property affected by building restriction covenants is sold for taxes under this Division;

(b) it is deemed, by subsection 45(5) (land subject to encumbrances) of The Real Property Act to be sold subject to those covenants; and

(c) a certificate of title to the real property is issued under this Division in the name of the city;

council may, by by-law passed by a 2/3 majority of council present, remove all or any of the restrictions set out in the covenants, and the filing of the by-law in the land titles office is authority to remove the restrictions from the title.

Notice of by-law

400(2)      Council must not pass a by-law under subsection (1) unless

(a) at least 30 days before passing it, notice of the proposed by-law is given to the registered owner of each other parcel of real property covered by the same building restriction covenants;

(b) public notice is given of the proposed by-law;

(c) every person who files an objection in accordance with a notice given under clause (a) or (b) is served with a further notice indicating that they may appear, at a time and place set out in the further notice, before a designated committee of council to present their objections; and

(d) the committee has forwarded its report, with its recommendations, in respect of the proposed by-law to council.

PROCEEDS OF TAX SALE

Surplus proceeds

401(1)       If the amount paid by a tax purchaser at a tax sale of real property exceeds the unpaid taxes on the property,

(a) the city must notify every person who is entitled to notice under section 395 of that excess; and

(b) within 90 days after receiving notice under clause (a) any of those persons may apply to the Court of Queen's Bench for an order to pay all or a part of the excess to the applicant.

Priority of claims to excess

401(2)      In making an order under clause (1)(b) in respect of excess proceeds from the tax sale of real property, the Court of Queen's Bench must have regard to the priority of the applicant's interest in the property in relation to all interests in the property immediately before the sale.

Proceeds of a tax sale to city

401(3)      For the purposes of this section, the proceeds of a tax sale of real property to the city at a public auction are the amount bid by the city, or by another person on the city's behalf, for the property.

Excess not paid out

401(4)      The city may apply the excess proceeds of a tax sale to its general revenue, to the extent that the excess is not required by an order of the Court of Queen's Bench to be paid out to another person.

SETTING ASIDE TAX SALE

Grounds for setting aside tax sale

402(1)      A tax sale of real property shall not be annulled, set aside or declared illegal except on the grounds that

(a) the sale was not conducted in a fair and open manner or notice of the sale was not published and served in accordance with clause 374(b) (preliminary steps) and section 376 (notices to registered owner);

(b) the taxes on the property for the years for which the property was sold had been paid; or

(c) the property was not liable for the taxes, or a portion of the taxes, for which the property was sold.

Where sale set aside

402(2)      Where a tax sale of real property is annulled, set aside or declared illegal, the amount paid by the tax purchaser at the sale, and subsequently for taxes or otherwise, are a lien on the property and payable by the registered owner to the tax purchaser.

Action to set aside tax sale

403         A person wishing to challenge a tax sale of real property must, within 30 days after the date of sale of the property or within 90 days after receiving notice under section 395 (notice of application for title),

(a) bring an action in the Court of Queen's Bench to annul or set aside the sale; and

(b) obtain a pending litigation order and file it in the land titles office.

MISCELLANEOUS

Forms and fees for land titles office

404         The district registrar may

(a) approve or prescribe the form and content of any notice, application, form or evidence of service required under this Division to be filed or forwarded to the district registrar or the land titles office; and

(b) set, and charge to the city, tax purchasers and others, reasonable fees for filing or forwarding notices and applications under this Division with or to the district registrar or land titles office.

Application of Real Property Act

405         Subsections 45(1) to (4) (tax sale applications) and section 47 (mines and minerals vested in Crown) of The Real Property Act do not apply to applications for title to real property made under this Division.

DIVISION 5

LOCAL AND DISTRICT IMPROVEMENTS

Definitions

406         In this Division,

"district improvements by-law" means a by-law passed under section 430; (« règlement d'aménagement de district »)

"district proposal" means a written proposal to establish a local improvement district and undertake one or more local improvements in it; (« projet de district »)

"local improvement" means a project intended to be paid for or maintained wholly or partly by local improvement taxes imposed on real property benefited thereby as determined under this Division and includes a project carried out in a local improvement district; (« aménagement local »)

"real property benefited" by a local improvement means

(a) real property fronting or abutting any portion of the local improvement,

(b) real property that is determined by by-law passed under section 407 to be real property benefited by the local improvement,

(c) where the local improvement is carried out under the authority of a by-law establishing a local improvement district passed under section 430 (district improvement by-law), real property within that district, and

(d) where the local improvement is situated in a street, any parcel of real property any part of which is within 4 m of the street. (« bien réel bénéficiaire »)

LOCAL IMPROVEMENTS

Determination of real property benefited

407(1)      Council may pass by-laws determining, or providing for the method of determining,

(a) what real property is benefited by local improvements; and

(b) for the purpose of clause 408(b), section 411, and subsection 412(1), what is the total real property benefited, which may be based on one or more of the following:

(i) the total length of the boundary of the real property benefited that fronts or abuts any portion of the local improvement,

(ii) the total area of the real property benefited,

(iii) the total assessed value of the real property benefited.

Different determination for different improvements

407(2)      For different types of local improvements, the determination, or method of determining, under subsection (1) what real property is benefited, and the total real property benefited, may be different.

Initiation of local improvement

408         A local improvement may be proposed

(a) by council; or

(b) by a petition signed by registered owners of at least 3/5 of the total real property that is to be benefited by the proposed local improvement.

Notice of proposal

409(1)      If a local improvement is proposed the city must

(a) give public notice of the proposed improvement; and

(b) send by ordinary mail a notice of the proposed improvement to each registered owner of property to be benefited by it.

Property not fronting on improvement

409(2)      Before passing a by-law which would result in local improvement taxes being imposed under this Division on real property that does not front on the local improvement,

(a) the city must send by ordinary mail to the registered owner of the real property notice of the time when and place where a committee of council will meet to hear objections respecting the proposed by-law; and

(b) the committee of council designated to hear the objections must conduct a hearing respecting the proposed by-law and submit its report, with recommendations, to council.

Contents of notice

409(3)      Notice of a proposed local improvement given under subsection (1) must contain

(a) a description of the local improvement and the real property to be benefited by it;

(b) the estimated cost of the local improvement;

(c) the estimated amount of the annual local improvement taxes that are to be imposed on the real property to be benefited from the local improvement, and the number of years over which the taxes are to be imposed; and

(d) the day by which objections to the proposal must be filed, which must be at least 30 days after the day notice is published or sent under subsection (1), and the place where such objections must be filed.

When notice and hearing not required

409(4)      Subsections (1) to (3) do not apply to a local improvement proposed by a petition signed by all of the registered owners, other than the city, of the total real property to be benefited by it.

Where city's real property benefited

410(1)      If the city is the registered owner of real property to be benefited by a proposed local improvement, the city is to be regarded as having refrained from exercising its ability to petition for, or object to, the local improvement.

Where real property benefited is exempt

410(2)      If real property that is to be benefited by a proposed local improvement is exempt from taxation, the city is deemed to be the registered owner of the real property for the purpose of any petition for, or objection to, the local improvement.

Effect of objections

411         Where registered owners of at least 3/5 of the total real property that is to be benefited by a proposed local improvement object to the local improvement,

(a)  the proposed local improvement must not be proceeded with; and

(b) the same or a similar local improvement benefiting the same real property must not be proposed again for a period of two years after the day public notice of the by-law is given under subsection 409(1).

By-law authorizing local improvement

412(1)      Unless registered owners of at least 3/5 of the total real property that is to be benefited by a proposed local improvement object to the local improvement within the period set out in the notice respecting the local improvement, council may, by by-law,

(a) authorize the local improvement to be undertaken at any time within the next two years; and

(b) authorize local improvement taxes to be imposed, when the local improvement is completed or a part of the local improvement is completed and operational, against the real property that will be benefited by the local improvement.

Calculating local improvement taxes

412(2)      Subject to subsection (3), council must establish by by-law a rate for calculating the local improvement taxes for each class of local improvement.  The rate established for a class must be applied uniformly throughout the city and be based on one or more of the following factors:

(a) the length of the boundaries of parcels of real property benefited by the local improvement that front or abut any portion of the local improvement;

(b) the area of parcels of real property that are benefited by the local improvement; and

(c) the assessed value of parcels of real property that are benefited by the local improvement.

Exceptional cases

412(3)      Where council considers that it would not be equitable, feasible or practical to calculate or levy local improvement taxes in accordance with the rate established under subsection (2), council may by by-law

(a) establish uniform rates, that are not consistent with rates established under subsection (2), for real property benefited by the local improvement; or

(b) provide any other equitable method for imposing local improvement taxes against real property benefited by the local improvement.

Appeal in exceptional cases

413(1)      Where the city imposes local improvement taxes against real property on the basis of a method provided under subsection 412(3) and issues a demand for payment of the taxes, the registered owner of the real property may, within 30 days after the day the first such demand is made, appeal the taxes to a designated committee of council.

Powers on appeal

413(2)      A committee of council designated for the purpose of subsection (1) has the same powers as a board of revision appointed under section 35 (board of revision) of The Municipal Assessment Act.

Adding real property for local improvement

413(3)      On an appeal under subsection (1), the designated committee of council may, subject to subsection (4), add to the real property against which local improvement taxes for the improvement may be imposed, additional parcels of real property whose registered owners did not receive notice of the proposed local improvement as required under subsection 409 (notice of proposal).

Notice to owner

413(4)      Before adding any parcel of real property under subsection (3), the designated committee of council must send by ordinary mail to the registered owner of the parcel a notice in accordance with section 409 (notice of proposal) and allow the registered owner not less than 30 days after the sending of the notice to file with the committee an objection to the parcel being so added.

Determining local improvement taxes

414         When work on a local improvement is completed, council must by by-law set the amount of local improvement taxes to be imposed in respect of the costs incurred in carrying out the improvement, which taxes may vary from the estimate thereof set out in the notices given under section 409 (notice of proposal) but, except where parcels of real property are added under subsection 413(3), no taxes shall be imposed for the local improvement against a parcel of real property whose registered owner was not sent a notice of the proposed local improvement in accordance with section 409 (notice of proposal).

Cost borne by city

415         If council considers that a proposed local improvement will benefit the city at large, council may provide by by-law that all or a portion of the cost of the local improvement shall be borne by the city at large.

Effect of subdivisions and other property changes

416         If, after a local improvement is approved by by-law,

(a) there is a subdivision or consolidation of a parcel or parcels of real property, or a change in a plan of subdivision of real property, benefited by the improvement; and

(b) council determines that a parcel of real property resulting from the subdivision, consolidation or change will not bear its appropriate share of the cost of the improvement;

council must amend the by-law to ensure that each such parcel bears its appropriate share of the cost.

Improvement in middle of street

417         Where a local improvement is constructed in a street and is to be connected to real property by separate connections, all local improvement taxes imposed against real property benefited by the local improvement must be imposed on the assumption that the local improvement was constructed in the middle of the street.

Eligible costs

418         The city may include the following in the cost of carrying out a local improvement:

(a) all capital costs incurred for the purpose of the local improvement, including the cost of acquiring real property that council considers necessary for the local improvement;

(b) the cost of professional services needed to undertake the local improvement;

(c) the amount required to repay any existing debt incurred for an earlier local improvement to be replaced or upgraded;

(d) the costs of financing the local improvement;

(e)  other expenses incidental to the undertaking of the improvement or to the raising of revenue to pay for it.

Adjustment for property needed for improvement

419         If the city requires a parcel of real property for a local improvement, the city may enter into an agreement with the registered owner of the parcel under which, in consideration of

(a) a dedication or gift of the parcel to the city; or

(b) a release by the registered owner of all or part of the registered owner's right to, and claim for, compensation for the parcel;

the local improvement taxes that would otherwise be imposed in respect of the remainder of the registered owner's real property are reduced by an amount not exceeding the fair market value of the registered owner's interest in the parcel.

Additional charges

420         Where the local improvement taxes initially imposed for a local improvement prove insufficient, council may impose further or other additional local improvement taxes in the same manner as the initial taxes, and repeatedly, until sufficient money has been raised to pay for the local improvement; and if too large an amount is raised, the excess must be credited rateably on account of other taxes imposed against the real property against which the local improvement taxes were imposed.

Reconstruction of private works

421(1)      Council may, by by-law, provide that the registered owners of real property benefited by a private work pay the cost of any reconstruction of the private work that results from work done for a local improvement.

Costs collected in same manner

421(2)      Costs to be paid under subsection (1) may be collected by the city in the same manner as local improvement taxes.

Consolidated by-laws

422(1)      Council may pass by-laws consolidating the imposition of local improvement taxes for any number of local improvements; and the local improvement taxes imposed by such by-laws may be at various rates and for various terms.

Provisions of consolidating by-law

422(2)      A by-law passed under subsection (1) must include a separate schedule for each separate local improvement, containing

(a) a description of the local improvement;

(b) the actual cost of the local improvement;

(c) the amount of the annual local improvement taxes that are imposed against real property benefited by the local improvement and the number of years over which the taxes are to be imposed; and

(d) the actual cost to each parcel of real property benefited from the local improvement.

Power to defer charges

423(1)      Council may, by by-law, defer or remit, subject to such terms and conditions as may be prescribed in the by-law, the payment of the whole or a part of any local improvement taxes imposed.

Notice of deferment

423(2)      If a by-law passed under subsection (1) defers local improvement taxes levied against a parcel of real property, the city must promptly file in the land titles office a notice of the deferment, and the district registrar must make an entry respecting the notice on the certificate of title for the parcel.

Commuting charges

424         Council may, by by-law, provide for the times and manner in which local improvement taxes imposed against real property are to be paid, and the terms on which they may be commuted by the payment of principal amounts.

Collection of local improvement taxes

425         Local improvement taxes imposed under this Division against real property are deemed to be, must be added to, and may be collected in the same manner and with the same priorities as, real property taxes imposed against the real property.

LOCAL IMPROVEMENT DISTRICTS

Initiation of district proposal

426(1)      A district proposal may be initiated

(a) by council; or

(b) by a petition to council that

(i) sets out all the information required under subsection (2), and

(ii) is signed by registered owners of at least 50% of the total area of the real property within the proposed local improvement district.

Contents of district proposal

426(2)      A district proposal must set out

(a) the boundaries of the proposed local improvement district;

(b) each proposed local improvement to be undertaken under the proposal;

(c) the estimated costs of each of those proposed local improvements including, where work is carried out as part of the local improvements outside the district for the benefit of real property within the district, the portion of the costs of that work that may be excepted under subsection 430(3) (cost paid by local improvement taxes) from the calculation of local improvement taxes to pay the cost of the proposed local improvements;

(d) the real property against which local improvement taxes to pay for the proposed local improvements are to be imposed; and

(e) the method and estimated rate of taxation to be used in calculating the proposed local improvement taxes and the number of years in which they are to be imposed.

S.M. 2004, c. 42, s. 58.

Referral to committee

427         Each district proposal, whether initiated by council or by petition, must be referred to a committee of council to conduct a hearing and provide a report with recommendations to council in respect of the proposal, and the committee must give, by ordinary mail, notice of the hearing to each registered owner of real property within the proposed local improvement district.

Action by council after hearing

428(1)      After considering the report of the committee of council in respect of a district proposal, council may

(a) decide not to proceed with the proposal; or

(b) give first reading to a district improvement by-law to approve the proposal, in whole or in part, and with or without changes to any of the matters set out in the proposal.

Notice of proposed by-law

428(2)      At least 30 days before council gives second reading to a district improvement by-law, the city must

(a) give public notice of the proposed by-law; and

(b) send by ordinary mail a notice of the proposed by-law to each registered owner of real property within the proposed local improvement district.

Contents of notice

428(3)      A notice given under subsection (2) must

(a) include a copy or summary of the district proposal and any changes made to it under subsection (1); and

(b) set out

(i) the right of registered owners of real property within the proposed local improvement district to object to the proposed by-law, and

(ii) the day by which objections to the by-law must be filed, which must be at least 30 days after the day notice is published or sent under subsection (2), and the place where such objections must be filed.

Effect of objections

429         Where registered owners of at least 50% of the total area of the real property within a proposed local improvement district object to the establishment of the proposed local improvement district, council must not

(a) pass the district improvements by-law relating to the proposed district; or

(b)  within two years after the day public notice of the by-law is given under subsection 428(2), proceed to initiate, approve or proceed with a similar local improvement district proposal.

S.M. 2004, c. 42, s. 58.

District improvements by-laws

430(1)      Council may, by by-law,

(a) approve a district proposal, thereby

(i) establishing a local improvement district,

(ii) authorizing the undertaking of one or more local improvements in and for the district and approving the estimated cost of the local improvements, and

(iii) approving a method of imposing local improvement taxes to pay for the local improvements; and

(b) after implementing a local improvement in a district, establish the rate of local improvement taxes to be imposed to pay for the local improvement, using the method approved under subclause (a)(iii), and authorize the taxes to be imposed accordingly.

Methods of levying

430(2)      For the purpose of subclause (1)(a)(iii), council may approve

(a) different methods of imposing local improvement taxes for different local improvements within a single district; or

(b) different methods of imposing local improvement taxes for similar local improvements within different districts;

but the method of imposing local improvement taxes for a particular local improvement within a district must be uniform for all real property within the district.

Entire cost paid by local improvement taxes

430(3)      Council must not pass a district improvement by-law unless the local improvement taxes provided in the by-law are calculated to generate enough revenue to pay the entire cost of the proposed local improvements, except that, where the proposed local improvement will benefit real property outside the district, the taxes imposed against real property within the district are to be proportionate to the benefit enjoyed by real property within the district.

Application of certain provisions

431         Sections 410 (city and exempt property affected) and 416 to 425 apply, with necessary changes, to and in respect of local improvement districts and district improvement by-laws.

DIVISION 6

FRONTAGE TAXES

By-laws for frontage taxes

432(1)      Council may by by-law impose frontage taxes, which must be charged separately and apart from other taxes or prices charged, on real property

(a) that is determined, according to a method established by council, to abut or front on a street or right of way, a back lane, or a water or sewer main; or

(b) that is determined under a by-law passed under clause 407(1)(a) to be benefited by a water or sewer main, a storm sewer or a drainage system.

Uniform rate established

432(2)      In a by-law under subsection (1) council may establish a uniform rate to be applied throughout the city for each frontage tax imposed.

Application of uniform rate

432(3)      In respect of parcels of real property that abut, front or are benefited by the works mentioned in clauses (1)(a) and (b), the uniform rate may be applied on one, or a combination, of the following factors:

(a) the length of the boundaries of the parcels that front or abut any portion of the works;

(b) the area of the parcels;

(c) the assessed value of the parcels.

How frontage taxes may be used

432(4)      Money from a frontage tax may be used for the

(a) upgrading, repair, replacement and maintenance of water and sewer mains and streets and sidewalks; and

(b) installation, upgrading, repair, replacement and maintenance of lighting in streets and back lanes.

Collection of frontage taxes

433         Frontage taxes imposed under this Division against real property are deemed to be, must be added to, and may be collected in the same manner and with the same priorities as, real property taxes imposed against the real property.

DIVISION 7

BUSINESS IMPROVEMENT ZONES

Definitions

434         In this Division,

"board of a zone" means the management board of a zone; (« conseil de zone »)

"business" means a business that is entered on the latest revised business assessment roll; (« entreprise »)

"zone" means a business improvement zone established under this Division. (« zone »)

Purpose of business improvement zone

435         The purpose of a business improvement zone is

(a) to beautify, improve and maintain real property of the city within the zone; and

(b) to promote improvements and economic development in the zone.

Establishment of business improvement zones

436(1)      Council may by by-law establish a business improvement zone, but only if council has

(a) passed a by-law under section 437; and

(b) received a petition from businesses in the proposed zone that meets the requirements established in the by-law under clauses 437(b) and (c).

Content of by-law establishing a zone

436(2)      In a by-law establishing a business improvement zone, council must

(a) fix the boundaries of the zone;

(b) establish a management board for a zone and fix

(i) the number of members of the board, which must include one councillor, and

(ii) the terms of office of members of the board;

(c) establish the procedure for nominating individuals from businesses operated in a zone to be members of the board of the zone;

(d) establish the procedure for removing a member from the board of a zone;

(e) establish the powers, duties and functions of the board of a zone and procedures to be followed by the board in the conduct of its affairs; and

(f) establish requirements for an annual report of the zone, including audited financial statements and the date in each year by which the report must be submitted by the board of a zone to council and to all proprietors of businesses in the zone.

Policies and procedures for zones

437         Before passing a by-law under section 436, council must by by-law establish

(a) criteria to be considered in fixing boundaries of zones;

(b) the process and procedure to be used by proprietors of businesses within an area of the city to petition council for the establishment of a zone in that area;

(c) the percentage of proprietors, and the percentage of total business assessment in the proposed zone those proprietors must represent, that is sufficient in a petition under clause (b) for a zone to be established;

(d) the process and procedure to provide notice to all the proprietors of businesses in a proposed zone that a zone may be created, and a process and procedure to be used by those proprietors to file objections to the creation of a zone with council;

(e) the percentage of objecting proprietors, and the percentage of total business assessment in the proposed zone those proprietors must represent, that is sufficient to prevent the creation of a proposed zone;

(f) the process and procedure to be followed by the board of a zone for the annual approval of the budget by businesses within the zone, including

(i) the method by which notice of the budget approval process and procedure must be given to businesses within a zone, and

(ii) the process, procedures that must be followed and requirements that must be met in order for the board of a zone to submit its proposed budget to council;

(g) the process and procedure to be used by council in approving the budget of a zone; and

(h) the process and procedure by which a zone may be terminated, or have its boundaries altered.

Annual budgets must be approved by by-law

438(1)      Council may by by-law approve all or part of a zone's proposed budget and, upon approval, may direct the payment of an amount not exceeding the amount approved, on such terms as council may determine, to or on behalf of the board of the zone.

Circumstance where budget may not be approved

438(2)      If the board of a zone does not comply with the process, procedures and requirements established in the by-law under subclause 437(f)(ii), council must not approve the budget of that zone.

Tax in zone

439(1)      For the purpose of raising money for a zone's approved budget, council may, by by-law, impose on each business in the zone, a business improvement zone tax at a uniform rate based on the business assessment of the business.

Collection of charges

439(2)      Business improvement zone taxes levied under subsection (1) are deemed to be business taxes, and may be collected in the same manner and with the same priorities, as business taxes.

Expenditures by boards

440(1)      A board of a zone must not expend any money in excess of the amount approved by council in the budget for the zone.

Indebtedness

440(2)      A board must not incur any indebtedness or other obligation that extends beyond the fiscal year in which the indebtedness was incurred, unless the indebtedness is approved as an expenditure specified in the budget for the zone.

Unexpended funds

440(3)      Any funds of a board that are unexpended at the end of a fiscal year may be carried forward to the next fiscal year.

DIVISION 8

ELECTRICITY AND GAS TAX

Definitions

441(1)      In this Division,

"base load" means the amount of gas purchased during a month by a purchaser for or in connection with premises for purposes other than to heat the premises and, subject to subsection (2), is to be determined by dividing the total amount of gas purchased for or in connection with the premises during the preceding months of June, July and August by three; (« charge de base »)

"domestic purposes" means the consumption of electricity or gas solely to heat or serve a dwelling unit; (« fins domestiques »)

"dwelling unit" means

(a) a house, apartment or suite or a separate part of a multiple dwelling, occupied by one person, a single family or a group of persons living as a single family or household,

(b) an apartment block or other multiple dwelling containing not more than four apartments, suites or other self-contained domestic establishments, or

(c) a farmhouse and a farm and all barns, sheds and other buildings used in connection with the farm; (« logement »)

"purchase price" means the price at which electricity or gas is sold by a seller to a consumer before the allowance or deduction of any discount for prompt payment, and includes

(a) where the electricity or gas is purchased, manufactured or otherwise acquired outside the province and is later received in the city for use or consumption in the city, any cost to the purchaser related to the electricity or gas, including the cost of transportation, and

(b) any tax, levy or duty that is imposed by the Government of Canada in respect of the electricity or gas, or its purchase, sale or importation, and that is paid or collected by the seller,

whether or not the cost, tax, levy or duty is shown separately on any invoice or in the books of the seller or purchaser; but does not include any tax or levy imposed by the Government of Manitoba in respect of the electricity or gas or its purchase or sale; (« prix d'achat »)

"purchaser" means a person who purchases electricity or gas for use or consumption in the city and also means a consumer; (« acheteur »)

"seller" means

(a) in the case of electricity, a person, including Manitoba Hydro, who has agreed to sell to a consumer electricity that the person supplies directly to that consumer, and

(b) in the case of gas, a person who

(i) has agreed to sell to a consumer gas that the person supplies directly to that consumer, or

(ii) supplies gas to a consumer on behalf of a broker who has agreed to sell the gas to the consumer; (« vendeur »)

"tax" means tax imposed by a by-law passed under the authority of clause 442(1)(a). (« taxe ») 

Determination of base load

441(2)      Where the base load in respect of premises cannot be determined as described in the definition of "base load" in subsection (1), the seller of the gas must estimate the amount of gas used in the month in or in connection with the premises for each purpose other than to heat the premises and the total of all amounts of gas so estimated is deemed to be the base load in respect of the premises for that month.

Tax on electricity and gas

442(1)      Council may pass a by-law providing that

(a) subject to subsection (2), every person who consumes electricity or gas in the city shall pay to the city a tax calculated

(i) at the rate of 2.5% of the purchase price of the amount consumed for domestic purposes, and

(ii) at the rate of 5% of the purchase price of the amount consumed for purposes other than domestic purposes;

(b) where for any year a consumer pays more than $1000. in tax in respect of electricity or gas consumed for purposes other than domestic purposes, the city may refund to the person such part of the excess as is specified in the by-law; and

(c) where, in premises heated primarily by electricity or gas, part of the electricity or gas purchased for the premises is consumed to heat the premises and part for other purposes, the purchaser is exempt from payment of the tax in respect of the electricity or gas consumed for heating, which is deemed to be, as the case requires,

(i) 80% of the total electricity consumed by the purchaser in the premises, or

(ii) the amount of the gas consumed by the purchaser in the premises during any month that is in excess of the base load.

Exceptions

442(2)      No tax is payable in respect of

(a) electricity or gas consumed by its producer in the business of the producer;

(b) electricity or gas purchased for resale;

(c) a purchase of electricity by Manitoba Hydro;

(d) electricity or gas purchased by a hospital as defined in The Hospitals Act, for consumption in the hospital or in connection with its operation; or

(e) electricity or gas used solely for heating, but not including supplementary heating, except to the extent required in the administration of a provision of a by-law authorized under clause (1)(b) or (c).

Due date for payment

443(1)      Tax in respect of the purchase of electricity or gas is due on the day that a bill for the purchase price is sent by ordinary mail to the purchaser, and is payable within 10 days after that day.

Seller is collector

443(2)      Every seller must collect the tax in respect of electricity or gas sold by the seller, and for that purpose is a tax collector for the city, and all money received by the seller from a purchaser in respect of the sale of electricity or gas must be applied in payment of the tax in priority over the purchase price.

Part of cent

443(3)      In computing tax, any fraction of a cent shall be computed as a whole cent.

Refund of money paid as tax

444         A by-law passed under subsection 442(1) may provide that where a consumer has entered into an agreement with a broker for the purchase of gas at a price that is less than the purchase price of the seller who supplies the gas (in this section referred to as the "broker's price"),

(a) the city will refund to the consumer the difference between

(i) the tax the consumer paid to the seller on the purchase price of the gas, and

(ii) the tax the consumer would have paid if the tax had been paid only on the broker's price of the gas;

(b) no refund will be paid on an amount below a prescribed amount; and

(c) an application for such a refund must be made before a prescribed period expires.

Recovery of tax from collector

445         Every person required to collect tax becomes a debtor of the city for any amount of tax collected and any amount of tax which the person refused or neglected to collect.

Remedies

446         Division 3 (Collection of Tax Arrears and Debts) applies, with necessary changes, to and in respect of tax and the collection thereof.

Seller not to remit tax to purchaser

447         A seller shall not

(a) remit tax to a purchaser; or

(b) advertise or in any way let it be known that tax is not payable or paid by a purchaser.

Disclosure of tax

448         Every bill for the purchase price of electricity or gas sent to the purchaser by the seller

(a) must show separately the purchase price and the tax payable; and

(b) in any action to collect tax from purchasers or to recover from the sellers any tax that was collected or should have been collected by them, is conclusive proof of the amount of electricity or gas sold, the purchase price and tax payable.

Reports and remission of tax by sellers

449(1)      Every seller must

(a) keep a separate account, in such form as a designated employee may from time to time direct, of tax that was collected or should have been collected; and

(b) at such intervals and in such manner as the designated employee may require, report and remit to the city the tax that was collected or should have been collected by the seller.

Powers for collector

449(2)      For the purpose of collecting tax from purchasers and enforcing remittance by sellers of tax that was collected or should have been collected, by them, a designated employee has the powers set out in the following provisions, which apply to the designated employee with such changes as the circumstances require:

(a) subsections 105(5) (powers of auditor);

(b) subsection 106(1) (powers under Evidence Act).

Estimates if no return by seller

449(3)      If a seller fails to report or remit to the city the tax that was collected or should have been collected by the seller at the interval or in the manner prescribed by the designated employee, the designated employee must estimate and certify the amount of tax that was collected or which should have been collected and remitted by the seller, and the amount so certified is due and payable immediately to the city by the seller.

Compensation to sellers

449(4)      The city must compensate sellers for services performed under this Division at the same rate or in the same amount as is paid to dealers as remuneration for collecting and remitting taxes imposed under The Revenue Act.

Purchaser to assume duties of seller

449(5)      Where a seller does not carry on business in the city, every purchaser who purchases electricity or gas from the seller must assume, in respect of the purchase, the duties, responsibilities and liabilities imposed under this Division on the seller, but subsection (4) does not apply to a purchaser who assumes those duties, responsibilities and liabilities.

Owner of distribution system

449(6)      The owner of a distribution system that transports or distributes in the city gas that is owned by someone else must advise the designated employee monthly of the amount of gas so transported or distributed and the name of the persons who own the gas.

Liability for acts of employees

450         For the purposes of this Division,

(a) every sale of electricity or gas made by an employee or representative of a seller is deemed to be made by the seller; and

(b) every purchase of electricity or gas made by an employee or representative of a purchaser is deemed to be made by the purchaser.

PART 9

OFFICIAL LANGUAGES OF MUNICIPAL SERVICES

Definitions

451(1)      In this Part,

"designated area" means the area of the Riel Community as set out in the City of Winnipeg Wards and Communities Regulation, Manitoba Regulation 154/92; (« zone désignée »)

"historic St. Boniface" means the area described as Taché Ward in Order in Council 656/71; (« vieux Saint-Boniface »)

"municipal services" means services that are provided to the public by the city; (« services municipaux »)

"St. Boniface Ward" means St. Boniface Ward as described in the City of Winnipeg Wards and Communities Regulation, Manitoba Regulation 154/92. (« Saint-Boniface »)

Meaning of "official languages"

451(2)      For the purposes of this Part, English and French are the official languages.

General obligation of city

452(1)      Except where a later date or series of dates is fixed by by-law under subsection 460(1) (by-law for implementation) for compliance with a provision of this Part, the city shall ensure that all things necessary are provided or done to satisfy the requirements of this Part and to permit a person to do anything he or she is entitled to do under this Part.

Interpretation

452(2)      Nothing in this Part shall be interpreted to prevent the city from providing more municipal services in French than are required in this Part or from providing municipal services to persons in any language other than English or French.

Limitation of obligation

452(3)      The obligations of the city under this Part are subject to such limitations as circumstances make reasonable and necessary, if the city has taken all reasonable measures to comply with this Part.

PROCEEDINGS OF COUNCIL AND ITS COMMITTEES

Use of French in council and its committees

453(1)      In addition to English, every person is entitled, upon notice, to use French in a proceeding of or before council or a committee of council with respect to a matter and, where notice is given, the proceeding with respect to that matter shall be conducted or simultaneously interpreted in French.

Notice

453(2)      A notice referred to in subsection (1) must be in writing, must specify the matter and the proceeding and must be given to the city clerk

(a) in the case of a regular meeting of council, not less than two working days before the proceeding; and

(b) in the case of a special or emergency meeting of council, within a reasonable time after notice of the meeting is given, having regard to the period of that notice.

COMMUNICATION AT CITY OFFICES

Official languages at City Hall

454(1)      Every person is entitled, within a reasonable time of a request, to receive in the official language of the person's choice any municipal services that are available at any office of the city located at City Hall and in the course of the provision of those services to speak and be spoken to in the official language of the person's choice.

Official languages at designated locations

454(2)      Where a municipal service is not available in both official languages in the designated area, every person is entitled, within a reasonable time of a request, to receive that municipal service in the official language of the person's choice at an office at any location designated by council by by-law under subsection 460(1) (by-law for implementation) for the purposes of this subsection and in the course of the provision of those services to speak and be spoken to in the official language of the person's choice.

Written communications

454(3)      Every person who communicates in writing with the city with respect to a matter is entitled with respect to that matter to be communicated with in writing in the official language of the person's choice.

Subsequent communications

454(4)      If a person initiates a communication with respect to a matter in an official language, whether spoken or written, in circumstances where the person is entitled to do so under this section, the person is entitled to use and to require the use of that official language in all subsequent communications, whether spoken or written, with respect to that matter.

St. Boniface office

454(5)      The city shall provide an office in historic St. Boniface where the municipal services prescribed by by-law under subsection 460(1) (by-law for implementation) for the purposes of this subsection are provided in both official languages.

MUNICIPAL SERVICES

Application

455(1)      This section applies in respect of municipal services other than those available at an office.

Receipt of municipal services in St. Boniface Ward

455(2)      Every person resident in St. Boniface Ward is entitled to receive in the official language of the person's choice, at a facility of the city within that Ward or at the person's place of residence, all municipal services that are ordinarily provided at that facility or place of residence.

Municipal services for designated area

455(3)      Every person who is resident in the designated area and who goes to a facility of the city where a municipal service is ordinarily provided is entitled to have that municipal service provided in either official language within the designated area or at any location designated by council by by-law under subsection 460(1) (by-law for implementation) for the purposes of this subsection.

Subsequent communications

455(4)      A person who is entitled to a municipal service in the official language of the person's choice under this section and who initiates communication respecting that service in the official language of the person's choice is entitled to use or to require the use of that official language in all subsequent communications, whether spoken or written, in respect of that service.

BILINGUAL DOCUMENTS

Notices, statements etc.

456(1)      All notices, statements of account, certificates, demands in writing and other documents sent or given by the city to persons resident in the designated area shall be in both official languages.

Forms and brochures

456(2)      All application forms provided by the city to the general public and all brochures, pamphlets and similar printed documents distributed by the city to the general public shall be available to the general public in the designated area in both official languages.

Publication of notices and advertisements

457(1)      Any public notice respecting a matter that affects the designated area generally, whether or not it also affects the rest of the city, and any advertisement for the employment of a person with competence in both official languages shall be published by the city in both official languages.

Public notices may be published separately

457(2)      The English and French versions of a public notice or advertisement referred to in subsection (1) may be published in separate publications.

Cost of publication

457(3)      Where a public notice referred to in subsection (1) is given under Part 6 (Planning and Development) in respect of land in the designated area, the person on whose behalf it is published shall pay the cost of publication in the official language of the person's choice and the city shall pay the cost of publication in the other official language.

BILINGUAL SIGNS

Signs respecting municipal services

458(1)      The city shall, inside and outside each location where municipal services are available in both official languages, erect and maintain signs bearing information in both official languages respecting the particular municipal services that are available in both official languages at that location.

General information signs

458(2)      In addition to the signs referred to in subsection (1), all signs that are inside or outside each location where municipal services are available in both official languages and that provide information to the public shall be erected and maintained in both official languages.

Street and traffic signs

458(3)      All street signs and the words on all traffic signs erected or maintained in the St. Boniface Ward and, where feasible, elsewhere in the designated area shall be in both official languages.

ACCESS GUIDE

Contents of access guide

459(1)      The city shall cause to be prepared and published in both official languages an access guide to municipal services in French that shall include

(a) a statement of the requirements to be satisfied by the city and the things that a person is entitled to do under this Part;

(b) details of the actions the city has taken to satisfy those requirements, including, without limitation, a list of the offices, together with their addresses and telephone numbers, where municipal services are available in French and particulars of whether the municipal services are available during normal business hours or within a reasonable time of request; and

(c) such information respecting the organizational structure of the city and of each of its administrative subdivisions as is reasonably necessary to enable a person to take advantage of what the person is entitled to under this Part.

Availability of access guide

459(2)      The city shall ensure that copies of the access guide are available

(a) in every office or facility of the city in the designated area;

(b) in every office or facility at every location designated by council by by-law under subsection 460(1) (by-law for implementation) for the purposes of any provision of this Part; and

(c) at any other location considered appropriate by the city.

Updating access guide

459(3)      The city shall prepare and publish an updated access guide

(a) if the information becomes substantially inaccurate, within a reasonable period after that occurs; and

(b) at least every three years.

IMPLEMENTATION

By-law for implementation

460(1)      The City of Winnipeg shall at all times have in force a by-law respecting the implementation of this Part, and, where necessary, the by-law shall contain a schedule identifying the day after which each service described in the by-law will be provided in both official languages at an office at a location designated in the by-law.

Priority services

460(2)      The city shall, in the by-law referred to in subsection (1), give priority to providing in both official languages fire, police and ambulance services, library services and leisure and recreational programming to persons in St. Boniface Ward.

ADMINISTRATION

French language co-ordinator

461         Council shall provide for the designation of a French language co-ordinator

(a) to assist in the development and coordination of the implementation of this Part in accordance with a by-law referred to in subsection 460(1) (by-law for implementation); and

(b) to advise on, co-ordinate, oversee and monitor the provision of municipal services in accordance with, and in satisfaction of the requirements of, this Part.

Annual report to minister

462         The council shall annually, not later than four months after the end of each fiscal year of the city, make a report in English and French to the minister respecting the compliance by the city with its obligations under this Part, and that report shall include particulars of any complaints under this Part filed with the city ombudsman and the disposition of each of those complaints.

COMPLAINTS

Complaint to ombudsman

463         Any person who feels that the city has failed to meet its obligations under this Part may make a complaint to the ombudsman.

PART 10

LEGAL MATTERS

DIVISION 1

CHALLENGING BY-LAWS, RESOLUTIONS AND ORDERS

"By-law" defined

464         In this Division, "by-law" includes a resolution of council.

Application for declaration of invalidity

465(1)      Subject to subsection 466(1), an application to the Court of Queen's Bench for a declaration that a by-law is invalid on the grounds that

(a) council acted in bad faith; or

(b) council or the city failed to comply with a requirement of this or any other Act in respect of the by-law;

must be made within three months after the day that the by-law is passed.

Applicant's requirements

465(2)      A person applying under subsection (1) for a declaration that a by-law is invalid must

(a) not less than 10 days before the day of the hearing of the application, serve a notice of the application on the city clerk;

(b) show by affidavit the person's interest in the by-law;

(c) provide the court with a certified copy of the by-law; and

(d) provide the court with proof of the service of a notice of the application on the city clerk.

Order

465(3)       Subject to subsection (4), upon hearing an application under subsection (1), the court may make the declaration applied for and may make any other order the court considers appropriate.

No declaration on certain grounds

465(4)      A by-law must not be declared invalid on the grounds that

(a) it is unreasonable or not in the public interest;

(b) a person sitting on council and voting on the by-law

(i) was not qualified to be a member of council when elected, or

(ii) after being elected, ceased to be so qualified or became disqualified;

(c) a person sitting on a committee of council or a subcommittee thereof and voting on any matter related to the by-law

(i) was not qualified to be a member of council when elected or to be appointed to the committee or subcommittee when appointed, or

(ii) after being elected or appointed, ceased to be so qualified or became disqualified; or

(d) it was not put to a vote of the voters.

S.M. 2005, c. 27, s. 164.

Limit on application re securities by-law

466(1)      No application may be made under subsection 465(1) in respect of a by-law authorizing the city to borrow money by the issue and sale of city securities if any of the securities authorized under the by-law have been sold.

Effect of application re securities by-law

466(2)      Where an application is made under subsection 465(1) in respect of a by-law authorizing the city to borrow money by the issue and sale of city securities before any of the securities authorized by the by-law have been sold, the city must not sell the securities until the Court of Queens Bench decides the application.

Application of section 465 to committees

467         Section 465 applies, with necessary changes, to orders and resolutions of committees of council and subcommittees thereof.

DIVISION 2

PROPERTY AND LIABILITY OF CITY

GENERAL

"Public facility" defined

468         In this Division, "public facility" means a place that is subject to the direction, control and management of the city, and includes all playgrounds, arenas, swimming pools, recreation centres, offices and libraries operated by the city.

City's assets not subject to seizure

469         The property of the city is not liable to any execution, attachment or garnishment, or to sale under a certificate of judgment.

Payments to persons indebted to city

470         The chief financial officer of the city must not make a disbursement in favour of a person who is indebted to the city, or to the assignee of the person, except for the balance that is due to the person over and above the debt due to the city.

Effect of formal defects

471         No proceeding, act, matter, or thing done or purporting to be done under this Act is invalid on account of any formal defect or omission.

Exercise of discretion

472         The city is not liable for loss or damage arising from a decision made in good faith not to do something that it has discretion to do or from that thing not being done.

Liability for remedying contraventions

473         The city is not liable for loss or damage arising from its enforcing or attempting to enforce a by-law, or remedying, or attempting to remedy, a contravention of a by-law, unless the city is grossly negligent in respect of the enforcement, remedy or attempt.

Negligent supervision by others

474         Where the city entrusts the construction of works or a facility to the supervision of an engineer, architect, surveyor or other person with relevant expertise to supervise the construction, the city is not liable for loss or damage arising from any negligence on the part of the supervisor in respect of the construction.

STREETS

Streets to be kept in repair

475(1)      The city must

(a) construct every street to a standard that is appropriate for the use to which the city expects the street to be put; and

(b) keep every street in repair.

Restriction on responsibility

475(2)      The responsibility of the city under subsection (1) to keep every street in repair is limited to those portions of streets on which work has been performed, or local improvements made, by the city.

Restrictions on liability

475(3)      The city is not liable for loss or damage arising from

(a) the failure of the city to construct a street beyond the standard that is appropriate for the use to which the city expects the street to be put;

(b) the installation, failure to install, or choice of, a wall, fence, guardrail, railing, curb, pavement marking, traffic control device, illumination device or barrier in or adjacent to a street, unless

(i) the loss or damage is caused by the failure of the city to replace or repair a guardrail, railing, traffic control device, illumination device or barrier in or adjacent to the street,

(ii) the city knew or ought to have known of the state of disrepair, and

(iii) the city failed to take reasonable steps to correct the disrepair within a reasonable time;

(c) any construction, obstruction or erection, or the situation, arrangement or disposition, of earth, rocks, trees, or other material or things, in or adjacent to that portion of a street that is not designed for the use of vehicles; or

(d) rain, hail, snow, ice, sleet or slush in streets or in sidewalks in or adjacent to streets, unless the city is grossly negligent in remedying the condition.

Nuisance on street

476         Section 475 applies, with necessary changes, to actions against the city for damages arising from the presence of nuisances on streets.

Liability for private works

477(1)      When private works consisting of a pipe line, wire, cable or conduit of any kind has been constructed for the use or benefit of an owner of land, the owner or user of it

(a) is directly liable to any person who sustains loss or damage from the construction or existence of the private works or from any failure to maintain, repair, cover or protect them; and

(b) shall indemnify the city for, and save the city harmless from, all costs, damages and expenses arising from or in connection with the private works, whether or not a claim is made against the city in respect of them.

No interference with liability and no vested rights

477(2)      Nothing in this Act, nor any permission or privilege granted by the city in respect of any private works,

(a) interferes with or limits the liability created under this section or otherwise existing under this Act or interferes with remedies otherwise provided under this Act; or

(b) creates any vested rights in private works.

Rights of city respecting private works in streets

477(3)      The city may at any time reconstruct, alter or remove any private works in existence in a street.

Persons obstructing to indemnify city

478         Any person other than the city who places, causes or permits an obstruction, encroachment or nuisance in a street, whether directly or as the result of some default,

(a) is directly liable to a person who sustains loss or damage from the obstruction, encroachment or nuisance or from any failure to remove it; and

(b) shall indemnify the city for, and save the city harmless from, all costs, damages and expenses arising from or in connection with the obstruction, encroachment or nuisance.

Agreement has no effect on city's liability

479         An agreement between the city and another person under which the city permits the air space above, or the space below, a street to be used by the person does not affect the city's liability in respect of the street.

Claim for change in street level

480         A person who constructs a building on, or on land that abuts or is contiguous to, an established or contemplated street without first obtaining from the city information concerning the level and line of the street forfeits all claims for and rights to damages arising from the level and line of the street as determined by the city.

Registering changes in street names

481         A by-law changing the name of a street has no force or effect until it is registered in the land titles office, and no fee is payable for the registration or for the necessary entries and certificates in connection with the change.

PUBLIC FACILITIES

Limited liability for public facilities

482         The city is not liable for failing to maintain a public facility in a reasonable state of repair unless the city

(a) knew or ought to have known of the state of disrepair; and

(b) failed to take reasonable steps to correct the disrepair within a reasonable time.

BUILDING INSPECTIONS

Requests for inspections

483(1)      The city is not liable for loss or damage arising from

(a) the manner or extent of an inspection; or

(b) the frequency, infrequency or absence of inspection;

unless the inspection was requested at the appropriate stage of construction and with reasonable advance notice before the inspection was required and the city failed to conduct the inspection or conducted it in a negligent manner.

Negligent inspections

483(2)      An inspection is conducted in a negligent manner only if it fails to disclose a defect or deficiency that

(a) could reasonably be expected to be detected; and

(b) falls within the scope of the inspection being conducted.

Certification by professionals

483(3)      For the purpose of an inspection, the city may rely on a certificate of or representation by an engineer, architect, surveyor or other person with expertise respecting the thing being certified or represented, and where the city relies on such a certificate or representation, it is not liable for any loss or damage arising from the negligence of the person giving the certificate or making the representation.

Matters beyond scope of inspection

483(4)      An inspection by the city to enforce a building standard does not create or impose a duty on the city in respect of any matter not being inspected in that inspection.

Failure to comply with conditions

483(5)      If conditions are imposed by the city in respect of or in the course of an inspection, the city is not liable to any person for loss or damage arising as a result of the conditions not being complied with, unless the city

(a) knew of the failure to comply with the conditions;

(b) had the power to order that the conditions be complied with; and

(c) failed to order compliance.

Failure to prevent or limit loss

483(6)      The city is not liable for loss or damage resulting from an inspection or a failure to inspect if the person claiming the loss or damage knew or ought to have known of the thing or matter that caused the loss or damage and failed to take reasonable steps to prevent or limit the loss or damage.

Inspection not a guarantee

484         An inspection or a system of inspections by the city is not a representation, guarantee, warranty or insurance of the quality or standard of construction of, or of any other thing respecting, the building or other thing being inspected.

DELIVERY OF COMMODITIES OR SERVICES

Discontinuance or interruption

485(1)      The city is not liable for loss or damage as a result of

(a) the breakage, malfunction or failure of any pipe, wire, conduit, meter or other apparatus or equipment used for the delivery or supply of water or a commodity, service or thing unless it is established that the break, malfunction or failure was the result of the negligence of the city or its employees; or

(b) the discontinuance or interruption of the delivery or supply of water, or a commodity, service or thing provided by the city

(i) because of an accident or emergency,

(ii) if the discontinuance or interruption was imposed by the city for failing or refusing to pay the price, rate, fee, deposit or charge prescribed or fixed for the delivery or supply, or for failing or refusing to comply with any term or condition of the delivery or supply, or

(iii) because of the necessary repairs, replacement or extension of any pipe, wire, conduit, meter or other apparatus or equipment used for the delivery or supply.

Interrupted supplies

485(2)      Interruption or reduction of the supply of water or a commodity, service or thing by the city to a person shall not be considered to be a breach of contract, or to entitle the person to rescind the contract, or to release any guarantor from the performance of the guarantor's obligation.

Damages caused by quality of water

485(3)      The city is not liable for damages caused by the quality or content of water supplied by the city unless the water does not meet accepted standards of purity established under provincial regulations respecting health.

No liability for certain water overflows

486         The city is not liable for loss or damage as a result of an overflow of water from a sewer, drain, ditch or watercourse as a consequence of excessive snow, ice or rain.

No liability for certain nuisances

487         The city is not liable for loss or damage arising from a nuisance, or anything in the nature of a nuisance, as a result of

(a) the construction, operation or maintenance of a system or facility for the collection, conveyance, treatment or disposal of sewage or storm water, or both, unless it is established that the city was negligent in respect thereof; or

(b) the construction, operation or maintenance of works, whether the construction, operation or maintenance is mandatory or permissive, unless the nuisance, or the thing in the nature of a nuisance, could have been prevented by another practicable and timely method of construction, operation or maintenance.

DERELICT VEHICLES

Protection from liability

488         The city is not liable for damages as a result of any enforcement action taken in relation to a derelict vehicle, as that expression may be defined in a by-law passed under the authority of clauses 129(a) and 130(e), if it satisfies the court that there was reasonable cause to believe that the vehicle in respect of which the action was taken was in fact a derelict vehicle.

COMPUTATION OF TIME AND LIMITATION PERIODS FOR ACTIONS AGAINST CITY

Holidays

489         In determining periods of time for the purposes of this Act, holidays must be excluded from the determination when the period is eight days or less, and must be included in the determination when the period is longer than eight days.

Limitation on actions respecting streets

490(1)      No action against the city for loss or damage arising out of the construction or condition of a street may be commenced unless

(a) within one month after the happening of the alleged event giving rise to the loss or damage, the claimant serves a notice of the claim or action on the city clerk; and

(b) the action is commenced within two years after the day the notice is served on the city clerk.

Falls due to snow or ice

490(2)      Despite subsection (1), no action against the city for loss or damage arising from a person falling owing to snow or ice on a street may be commenced unless

(a) within seven days after the happening of the alleged fall giving rise to the loss or damage, the claimant has served a notice of the claim or action on the city clerk; and

(b) the action is commenced within three months after the day the notice is served on the city clerk.

Limitation on actions respecting public facilities

491         No action against the city for loss or damage arising from failure to maintain or keep in repair a public facility may be commenced unless

(a) within seven days after the happening of the alleged event giving rise to the loss or damage, the claimant has served a notice of the claim or action on the city clerk; and

(b) the action is commenced within two years after the day the notice is served on the city clerk.

Notice not required in case of death

492(1)      If the claim or action relates to the death of a person as the result of the event complained of, the failure to serve the notice mentioned in clause 490(1)(a) or (2)(a) or 491(a) is not a bar to an action.

Requirement of notice

492(2)      Subject to subsection (1), failure to serve the notice required under clause 490(1)(a) or (2)(a) or 491(a) bars an action unless

(a) the court in which the action is brought considers that there is a reasonable excuse for the failure and that the city has not been prejudiced by the failure; and

(b) the action is commenced within three months after the happening of the event giving rise to the loss or damage.

Limitation of actions respecting works

493(1)      No action for damages, or for indemnity for loss, damage or injury, caused by or arising out of the construction, operation, repair or maintenance of any works or undertakings by the city may be commenced except

(a) within two years after the alleged damages were sustained; or

(b) where there is a continuation of damage or injury, within two years after that damage or injury ceases.

Limitation of actions respecting signs

493(2)      No action for damages, or for indemnity for loss, damage or injury, caused by or arising out of the erection, maintenance or lack of maintenance by the city of any sign or other advertising device, may be commenced except within two years after the occurrence of the event giving rise to the alleged damages or the loss, damage or injury, but nothing in this subsection implies any liability on the part of the city in respect of any such loss, damage or injury.

Limitation of actions respecting taxes

494         No action, suit or proceeding may be brought against the city for the return by the city of money paid to it on account of taxes, whether paid under protest or otherwise, unless the action, suit or proceeding is commenced within six months after the day the money is paid.

Appeals re planning or development

495(1)      An appeal to the Court of Queen's Bench may be taken on a question of law by a person affected by a decision, including a decision by council to pass or not to pass a by-law, made under any of the following provisions:

(a) sections 230 or 232 (passing Plan Winnipeg by-laws);

(b) section 234 (passing secondary plan by-laws);

(c) section 236 (passing zoning by-laws);

(d) section 251 (appeals re variances);

(e) sections 253 and 254 (conditional uses);

(f) sections 256, 257 or 259 (approvals of plans of subdivision);

(g) section 260 (consents to register or file instruments).

Time for appeal

495(2)      The notice of appeal under subsection (1) must be filed in the Court of Queen's Bench within 30 days after the decision being appealed is made.

Proceedings on appeal

495(3)      When a notice of appeal is filed under subsection (1),

(a) the registrar of the court must fix a day for the hearing of the appeal, which must be within 30 days after the day the appeal documents are filed;

(b) a judge of the court may adjourn the hearing of the appeal for a period not exceeding 30 days and, if in the opinion of the judge special circumstances warrant it, for such further period as he or she considers appropriate; and

(c) the judge hearing the appeal must render a decision on the appeal within 30 days after the hearing is completed.

DIVISION 3

LIABILITY AND INDEMNIFICATION OF MEMBERS OF COUNCIL, EMPLOYEES, VOLUNTEERS AND MEMBERS OF AFFILIATED BODIES

UNAUTHORIZED EXPENDITURES

Offence

496(1)      A member of council is guilty of an offence under this Act who

(a) spends or invests, or authorizes the expenditure or investment, of money of the city without being authorized, or contrary to an authorization, by council; or

(b) accepts a payment from the city, or votes in favour of payment by the city to a person, including a member of council, of an amount that is not authorized by council or by this or any other Act, or of an amount that is greater than so authorized.

Civil liability of members of council

496(2)       In addition to any penalty imposed under subsection (1), a member of council who is guilty of an offence under that subsection is liable to the city for the amount spent, invested or paid in contravention of that subsection.

Joint and several liability

496(3)      If more than one member of council is liable under subsection (1) in respect of any money spent, invested or paid, they are jointly and severally liable to the city under subsection (2) for the amount thereof.

Action by city or voter

496(4)      The liability under this section of a member of council may be enforced in an action by the city or a voter.

Exception for expenditures in state of emergency

496(5)      This section does not apply to an expenditure made in respect of a disaster or emergency declared by council or the mayor under The Emergency Measures Act.

S.M. 2005, c. 27, s. 164.

ACTS DONE IN GOOD FAITH

Liability restricted

497(1)      No action or proceeding for damages or other relief may be commenced against a member of council, a member of any board or committee established by this Act or a by-law, a member of any board or committee appointed by council, or an employee

(a) for any act done in good faith in the performance or exercise, or intended performance or exercise, of a duty or authority under this Act or a by-law passed under this Act; or

(b) for any alleged neglect or default in the performance or exercise in good faith of the duty or authority.

Exception for defamation

497(2)      Subsection (1) is not a defence to an action in defamation.

Liability of city

497(3)      Subsection (1) does not relieve the city from liability to which it would otherwise be subject in respect of torts committed by

(a) a member of council;

(b) a member of any board or committee established by this Act or a by-law;

(c) an employee;

(d) an agent of the city; or

(e) a person acting under the instructions of council, an employee or an agent of the city.

INSURANCE

City may take out insurance

498         The city may make provision for

(a) comprehensive insurance to protect the city or members of council against loss arising from damage to property from any cause; and

(b) insurance against claims for loss or damage for which the city or members of council may become liable.

DIVISION 4

CITY RECORDS

Authentication of by-law

499         Every by-law must be under the seal of the city and must be signed by

(a) the mayor, the deputy mayor or the presiding officer at the meeting at which the by-law is passed; and

(b) the city clerk.

Execution of documents

500(1)      Council, by by-law,

(a) may authorize the execution by designated employees of

(i) agreements entered into by the city,

(ii) cheques and other negotiable instruments issued by the city, and

(iii) other documents requiring execution by the city;

(b) must establish the number of designated employees required to sign classes of agreements, cheques and other negotiable instruments and other documents;

(c) may authorize a signature required under clause (a) to be printed, lithographed or otherwise reproduced; and

(d) may authorize the execution of cheques issued by the city by the reproduction of facsimile signatures by mechanical means.

Execution of documents where no by-law in force

500(2)      If no by-law is in force under subsection (1), the mayor and the city clerk must sign all documents referred to in subsection (1).

Definition of "city record"

501(1)      In this section, "city record" means any kind of recorded information that is created or received by, or in the custody or control of, the city, regardless of its physical form or its characteristics, and includes

(a) information recorded on paper, photographic film, microfilm, videotape or disk or in a computer system;

(b) a copy of the record; and

(c) a part of the record.

Admissibility of certified copies

501(2)      A copy of a city record, certified by the city clerk or other designated employee to be a true copy of the original record, is, in the absence of evidence to the contrary, proof of the record.

Admissibility of record in converted form

501(3)      A copy of a city record that has been converted from one form to another and stored in accordance with a by-law respecting the conversion and storage of city records is, in the absence of evidence to the contrary, proof of the record if the city clerk or other designated employee certifies that

(a) the record was converted and stored in accordance with the by-law; and

(b) the copy is a true copy of the record as converted.

Certificate

501(4)      The certificate of the city clerk or designated employee required for the purposes of subsection (2) or (3) is admissible in evidence without proof of the appointment or signature of the city clerk or the designated employee.

Judicial notice

501(5)      When a by-law or resolution certified in accordance with this section is filed with the clerk of a court, the court must take judicial notice of it in any action in the court in which the by-law or resolution is a matter for consideration.

Proof of certain facts

502         Except as otherwise provided in this Act, a return made under section 389 (return to L.T.O. on tax sale) by the city to the district registrar is, in actions and proceedings in a court, and for the purpose of proving title under The Real Property Act, conclusive proof, in respect of any real property to which the return relates,

(a) of the validity of the assessment of the property;

(b) of the imposing of taxes on the property;

(c) of the sale of the property for taxes and the validity of all proceedings leading up to the sale; and

(d) that the property has not, as of the date of the return, been redeemed from the tax sale.

DIVISION 5

SPECIFIC PROVISIONS RESPECTING PROSECUTIONS

Prosecution of corporation

503         A corporation charged with an offence under a by-law for the regulation and licensing of persons carrying on a business shall not, in a prosecution for the offence, be acquitted of the charge on the ground

(a) that it is legally incapable of committing such an offence; or

(b) that the by-law does not apply to it because it is not within its powers to carry on an activity, or perform an act, for gain or profit.

Proof of carrying on business

504(1)      Where the carrying on of a business consists of the selling or the offering for sale of any property or service, or partly of the going from place to place soliciting orders or for other similar purposes in respect of the sale of property or a service, in any prosecution for breach of a by-law respecting such business, evidence of one sale, one offer for sale or one delivery of property or of one sale, one offer of sale or one act of service is, in the absence of evidence to the contrary, proof of the carrying on of a business.

Advertisement or announcement as evidence

504(2)      In any proceeding to enforce a provision of this Act or a by-law, the publication in a newspaper, magazine or other periodical of an advertisement or announcement

(a) giving the name of a person, the street address of premises or a telephone number; and

(b) mentioning the type of goods, work or service, the supply or performance of which, or information concerning which, may be obtained by applying to the person, or at the address, or by calling the telephone number;

is evidence that the person named, or occupying the premises the address of which is given, or at which the telephone referred to is situated, is carrying on the business of supplying the goods or services or performing the work at the premises.

Definition of "transient trader"

505(1)      In this section, "transient trader" means a person who, whether or not occupying other premises elsewhere in the city, offers goods or services for sale in the city at a location where the carrying on of such business is for a temporary period only, and includes a person who begins a business in the city without having resided or occupied a place of business in the city for at least the last three months, but does not include

(a) a person who sells, or offers for sale, by wholesale goods for future delivery from some place outside the city; or

(b) a person who takes orders for a person carrying on a wholesale business in the city.

Onus re carrying on business

505(2)      In a legal proceeding to enforce a by-law for the regulation and licensing of transient traders, the onus is on the person accused of carrying on business as a transient trader without a licence to prove that his or her intention on commencing the business in question was to continue to carry on the business permanently in the location in which the business was commenced, if the business was not in fact carried on in that location for a period of more than three months.

Presumption re litter

506         For the purpose of a by-law made under section 133 (litter from businesses), discarded containers and papers of a kind used in a business described in that section that are found within the distance from the place prescribed in the by-law are presumed to have been used for the sale of goods sold in that business and to have been discarded by its patrons.

Proof of by-law

507         A conviction for a breach of a by-law shall not be quashed for want of proof of the by-law before the convicting justice, but the court hearing the motion to quash may dispense with any proof or permit the by-law to be proved by affidavit or otherwise.

BOARDED-UP BUILDINGS

Proof of boarding up

508         Where, in any proceeding relating to the enforcement of a by-law passed under clause 151(d), there is evidence that a building was boarded up on two separate dates, the onus is on the owner to prove that the building was not continuously boarded up between those dates.

ANIMALS

Meaning of "running at large"

509(1)      For the purposes of this section, an animal is running at large if it is not under control by being

(a) under the direct and continuous control of a person who is competent to control it;

(b) securely confined within an enclosure; or

(c) securely fastened so that it is unable to roam at will.

Offence re dogs running at large

509(2)      No owner or person in charge of a dog shall permit it to run at large at any time within the city.

Onus on prosecution

509(3)      Where a dog is found running at large in contravention of subsection (2), on the hearing of an information and complaint against the owner or person in charge of the dog for breach of that subsection, the owner or person in charge is presumed to have permitted the dog to run at large unless the presiding justice is satisfied that the owner or person took all reasonable precautions to prevent it from running at large.

Animal causing damage

510(1)      A justice with jurisdiction in the city, on being satisfied that an animal found within the city has caused or is likely to cause damage or injury, may, after notice or summons to the owner of the animal, if the owner is known, order that the animal be destroyed or impounded and, whether making such an order or not, may assess damages to be paid by the owner of the animal or the person harbouring it to any person suffering damage or injury caused by the animal.

Procedure

510(2)      On hearing a matter under subsection (1), a justice shall conduct the proceedings according to the same rules as, and has the same powers in all respects as are applicable to, and as a justice would have in, a prosecution for a breach of a by-law, and there is the same right of appeal from any order or award made in the matter as there is in the case of a conviction for such a breach.

DIVISION 6

EXEMPTION ORDERS

Exemption by L.G. in C.

511         If the Lieutenant Governor in Council considers it in the public interest and advisable for the purpose of carrying out or participating in a program or project, the Lieutenant Governor in Council may, by regulation, order that a by-law, resolution, decision or procedure passed, made or required under this Act does not apply to and is not binding on an agency or person, including a statutory corporation or institution, named in the regulation for purposes set out in the regulation.

S.M. 2008, c. 42, s. 99

Hearing required

512(1)      Where a proposed order under section 511 relates to a matter in respect of which a hearing is required under this Act to be conducted, the Lieutenant Governor in Council must not make the order until a hearing is conducted under this section and the report required under subsection (3) is delivered to the minister.

Purpose of hearing

512(2)      The hearing required under subsection (1) is for the purpose of receiving submissions on the proposed order and shall be conducted by a person appointed by the minister.

Notice and adjournment of hearing and report

512(3)      A person appointed under subsection (2) to conduct a hearing

(a) must give public notice of the hearing, and the city is not responsible for giving the notice;

(b) may receive all submissions on the same day or, if it is necessary or advisable, adjourn the hearing from time to time until all submissions are received; and

(c) must, on or before a date specified by the minister, submit a report to the minister setting forth

(i) a summary of the submissions made at the hearing,

(ii) the person's determination of the facts relevant to the proposed order, and

(iii) the person's opinion of the probable and possible effects of making the proposed order.

DIVISION 7

MISCELLANEOUS

RECOVERY OF COSTS IN LEGAL PROCEEDINGS

Authority to recover costs

513         If the city employs a barrister or solicitor whose remuneration is wholly or partly by salary, the city may recover and collect lawful costs in all suits and proceedings in the same manner as if the barrister or solicitor were not receiving a salary, even if the costs are, by the terms of the employment, payable to the barrister or solicitor as remuneration in addition to salary.

NOXIOUS WEEDS ACT

Application of Noxious Weeds Act

514(1)      The city has the responsibilities and duties charged on, and the powers and authority given to, a municipality under The Noxious Weeds Act.

Costs of weed destruction

514(2)       Despite anything in The Noxious Weeds Act, if the city in carrying out its duties, powers and authority under that Act incurs any expense by reason of its weed inspectors' cutting down or destroying noxious weeds on real property within the city,

(a) the amount of the expense is a debt due to the city by the person whose duty it is under that Act to destroy the weeds;

(b) the amount of the expense may be recovered by the city by action in a court of competent jurisdiction;

(c) the city has a lien on the property in the amount of the expense; and

(d)  instead of collecting the amount of the expense as provided in clause (b) or (c), the amount, certified by the weed inspector, may be added to the real property taxes imposed by the city on the property and collected in the same manner and with the same priorities.

RESTRICTIONS ON FLOOD ASSISTANCE

No right to flood assistance

515(1)      There is no right to payment of flood protection assistance or flood damage assistance, and the prohibitions in subsections (2) and (3) of such payments in certain circumstances do not imply that such assistance will be paid in other circumstances.

Building in designated floodway area

515(2)      Neither the government nor the city shall pay flood protection assistance or flood damage assistance in respect of a building that is constructed in a designated floodway area after the day that the area is so designated, unless the building was constructed pursuant to a permit issued under subsection 158(3) (exception for construction in floodway area) and complies with floodproofing criteria.

Government assistance in floodway fringe area

515(3)      The government shall not pay flood protection assistance or flood damage assistance in respect of a building that is constructed or brought within a designated floodway fringe area after the day that the area is so designated unless the building complies with floodproofing criteria.

City assistance in floodway fringe area

515(4)      The city shall not pay flood protection assistance or flood damage assistance in respect of a building that is constructed or brought within a designated floodway fringe area after the day that the area was so designated unless the building complies with

(a)  floodproofing criteria; or

(b) an order made under subsection 158(7) (order varying floodproofing criteria) that does not contain a term or condition prohibiting the payment by the city of flood protection assistance or flood damage assistance.

S.M. 2004, c. 42, s. 58.

DISCHARGE OF BUILDING RESTRICTIONS

Definitions

516(1)      In this section,

"building restriction" means an agreement, bylaw or caveat that is registered in a land titles or registry office and contains a building restriction covenant or scheme; (« restrictions à la construction »)

"registry office" means a registry office as defined in The Registry Act. (« bureau du registre foncier »)

City may discharge instruments

516(2)      The city may discharge a building restriction that is registered in favour of the city.

Specific process

516(3)      If the city has the power to act under subsection (2) and also under a specific provision of this or another Act, the power conferred by subsection (2) is subject to any procedural requirements, including conditions, approvals and appeals, that apply to the power and to any limits on the power contained in the specific provision.

PART 11

TRANSITIONAL AND CONSEQUENTIAL AMENDMENTS

MATTERS UNDER FORMER ACT

Definition of "former Act"

517         In this Part, "former Act" means The City of Winnipeg Act, S.M. 1989-90, c. 10, as amended to the day before the coming into force of this Act.

Continuation of by-laws, resolutions

518(1)      If, as a result of this Act, council no longer has the authority to pass a by-law or resolution that was in force on December 31, 2002, despite the absence of authority,

(a) the by-law or resolution continues in force until its repeal or January 1, 2004, whichever occurs first; and

(b) the authority, as it read on December 31, 2002, continues to apply to the by-law or resolution passed under it before January 1, 2003.

Restriction

518(2)      A by-law or resolution described in subsection (1) shall not be amended.

Appointments and other decisions

519(1)      An appointment or other decision made by or in respect of the city under the former Act continues with the same effect as if it had been passed or made under this Act.

Plans, licences, permits, approvals and authorizations

519(2)      Plans, and licences, permits, approvals and authorizations issued under by-laws or resolutions made under the former Act continue as if they had been issued or made or under this Act.

Agreements and contracts

519(3)      The agreements and contracts of the city under the former Act that are in force immediately before the coming into force of this Act are continued as if they were made under this Act, subject to any provision of this Act that affects them.

Reserves funds under former Act

519(4)      Where money has been paid into or required to be kept in a reserve fund under the former Act, the reserve fund is continued and must be administered in accordance with this Act.

Borrowing

519(5)      Nothing in this Act affects a borrowing made under the former Act.

Continuation of tax and penalty

519(6)      A tax, and a penalty in respect of a tax, imposed before the coming into force of this Act continues with the same effect as if imposed under this Act.

Tax rolls and tax notices

519(7)      A tax roll and tax notice prepared before the coming into force of this Act continue with the same effect as if prepared under this Act.

Tax sales and redemptions

519(8)      Where land within the city is sold for taxes before the coming into force of this Act, the provisions of the former Act respecting the rights, powers and obligations of the city, the tax purchaser and the person who owned the land before the sale continue to apply in respect of the land until the period for the redemption of the land provided for under that Act has expired.

Hearings and applications begun

519(9)      Despite the repeal of the former Act, except to the extent that they are inconsistent with this Act, all hearings that were commenced under the former Act but not completed, and all applications that were made under the former Act but not dealt with before the coming into force of this Act, may be continued and completed or dealt with under this Act, with necessary changes.

Sinking Fund Trustees continued

520(1)      Despite the repeal of the former Act,

(a) "The Sinking Fund Trustees of the City of Winnipeg" is continued as a body corporate and the corporation and its trustees continue to have the same rights, privileges, powers, duties and obligations that they have on December 31, 2002

(i) under the former Act, another Act or a by-law passed under the former Act, or

(ii) in respect of an agreement entered into by the city; and

(b) the city continues to have the same rights, duties and obligations set out in the former Act to

(i) pay money into, and receive money from, the sinking fund, and

(ii) appoint and remunerate the trustees of The Sinking Fund Trustees of the City of Winnipeg.

Trustees continued

520(2)      The persons who are, on December 31, 2002, trustees of The Sinking Fund Trustees of the City of Winnipeg shall remain so until council appoints new trustees.

Limitation

520(3)      This section applies only in respect of the sinking fund for debentures issued pursuant to a debenture by-law passed under the former Act, or the refinancing of them.

Investments and liabilities

521         Except as otherwise provided in section 520, all funds administered by The Sinking Fund Trustees of the City of Winnipeg before the coming into force of this Act shall be transferred by the trustees to the city, and all rights, duties and liabilities of the trustees in respect of those funds vest in the city and the funds shall be administered in accordance with this or any other applicable Act.

S.M. 2004, c. 42, s. 58.

ST. BONIFACE MUSEUM BOARD

Museum board continues to operate museums

522         The St. Boniface Museum Board shall continue to supervise the operation of museums for which it was responsible immediately before the coming into force of this Act.

REGULATIONS

L. G. in C. Regulations

523(1)      The Lieutenant Governor in Council may make regulations respecting any matter that the minister considers is not provided for or not sufficiently provided for in this Act.

Timing of regulations

523(2)      A regulation made under subsection (1)

(a) may be made retroactive to a day not earlier than the day section 8 (city continued) comes into force; and

(b) is repealed on the earliest of

(i) the day an amendment that adds the same or a similar matter to this Act comes into force,

(ii) the day that another regulation repealing the regulation made under subsection (1) comes into force, and

(iii) the day that is two years after the day that it is made by the Lieutenant Governor in Council.

CONSEQUENTIAL AMENDMENTS

524 to 535  

NOTE: These sections contained consequential amendments to other Acts that are now included in those Acts.

UNPROCLAIMED AMENDMENTS RESPECTING PENSIONS

536         

NOTE: This section contains unproclaimed amendments to sections 90 and 91.

PART 12

REPEAL, CITATION AND COMING INTO FORCE

Repeal

537         The City of Winnipeg Act, S.M. 1989-90, c. 10, is repealed.

Citation

538         This Act may be cited as The City of Winnipeg Charter.

Coming into force

539(1)      Subject to subsection (2), this Act comes into force on January 1, 2003.

Coming into force: section 536

539(2)      Section 536 comes into force on a day fixed by proclamation.

File 1: s. 1 to 223 (Parts 1 to 5)
File 2: s. 224 to 539 (Parts 6 to 12)

 

 
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