Our Legal Defense Fund (the Fund) allows us to intervene on behalf of municipalities like yours in precedent-setting, federal appellate cases that can affect municipalities across Canada. We also use it to pay for legal information or guidance from specialists when there is an emerging, nationally relevant, municipal operational issue with a legal dimension. Their advice helps us understand the issue’s legal context and consider ways in which we or municipalities might respond. We often use that information to prepare guidance materials (not legal advice) for our members.

Our members support the Fund on a voluntary basis. Their financial contributions have allowed us to cost-effectively defend their interests and influence legal precedents since 1997. It’s an effective way—particularly for small municipalities—to get results that would be tough to achieve alone.

Defending municipal jurisdiction in court is a tall task for municipalities to bear on their own, especially for smaller municipalities. That's why FCM's Legal Defense Fund is such a critical tool. 
— Councillor Lorne Olsvik, Lac Ste. Anne County, Alberta

 

What we fund

Litigation interventions

We can’t take on your legal case as our own, but we may be able to intervene in a precedent-setting case that is moving to an appellate stage. We will consider intervening in cases being appealed to the Federal Court, the Federal Court of Appeal, the Supreme Court as well as cases going to a province’s Court of Appeal as long as the legal issue at play relates to matters of federal jurisdiction or arising from federal legislation. Under those circumstances, the Fund will cover FCM’s direct legal costs. As an intervenor, we’d offer the court contextual information about the case and its repercussions for municipalities across Canada.

Courts limit the number of interveners allowed to participate in each case. We have been recognized by the Supreme Court of Canada as the pre-eminent municipal representative and, at times, we’ve been the only municipal intervener allowed to participate. The Court has often rejected applications from individual municipalities. With nearly 2,000 municipal members across the country, we’re in a unique position to convene expertise, develop a collective position and represent the entire municipal sector before the judiciary.

These are examples of the types of cases we’ve supported in the past:

Constitutional Jurisdiction of Municipalities
We intervened in Spraytech v. Hudson, in which the Supreme Court ruled that courts should defer to choices made by local elected officials. It also indicated that municipal legislative authority should be interpreted broadly and that local rules could coexist with federal regulations.

Federal Payments in Lieu of Taxes
In separate appeals, Montreal and Halifax sought clarification of the PILT Act to bring greater predictability and stability to PILT calculations. We intervened in both cases and both resulted in the Supreme Court unequivocally endorsing FCM's interpretation of the PILT Act.

Rights-of-Way Management
We were the Appellant to the Federal Court of Appeal in the landmark Ledcor case that established the principle that municipalities have the right to recover all incremental costs related to telecommunications activity on their land.

Jurisdiction of the Federal Court
In 2016, we intervened in a dispute between Windsor and the Canadian Transit Company. We argued that questions of federal-municipal jurisdiction must be decided in the local courthouse by a Superior Court Justice, not by the Federal Court. The Supreme Court of Canada ruled in favour of the City of Windsor.

Policy development

Federal policies can have legal implications for municipalities across Canada. When we hear about such an emerging policy from our staff, board or technical committees, we can use the Fund to pay for legal information about how municipalities might respond (usually through operational policies). We often share what we learn through guidance materials so municipalities like yours can develop appropriate operational policies.

As an example, we recently used the Fund to pay for legal guidance about the federal changes to cannabis laws. We then created the Cannabis Guide to help you create appropriate operational policies.

The FCM Legal Defense Fund remains a key tool for bringing the national voice to legal disputes and in defending the municipal sector's collective interests.” 
— Mayor Mike Savage, City of Halifax, Nova Scotia

Application process for litigation cases

Step 1

Before you apply, assess whether your case reflects the factors listed below. They help us decide whether we’ll intervene:

  • National relevance
  • Precedent setting potential
  • Your municipality’s demonstrated financial commitment and ability to pay for the case as the principal party (the Fund will only support costs we incur directly at FCM by seeking intervener status).
  • The stage of the proceedings (It must be an active, federal, appellate case. We generally do not intervene at the trial stage.)
  • Likelihood of success on appeal (Our Legal Advisor and Legal Advisory Committee will consider your case’s likelihood of success. Cases that have won at trial and are facing an appeal are generally preferred over those that have lost at trial and are appealing the decision.)

Step 2

Submit an application letter to our CEO that includes the following:

  • Name of the parties
  • Name of the court or tribunal that has jurisdiction over the case
  • Judiciary history (Include all earlier court or tribunal decisions related to the dispute.)
  • Summary of the case, including the specific statutes and regulations at play, the legal questions raised by the case, and the position advocated by your municipality
  • Implications of the case, including how it would potentially affect the municipal sector across Canada     
  • The type of support you are requesting (For example, are you asking us to join the proceedings as an intervenor or do you want our input into the case, such as exchanging views with your legal counsel or reviewing your documents prior to filing? )
  • Your municipality’s commitment to further appeals beyond the current stage
  • Contact information for the municipal official in charge of the file and the lawyer representing your municipality

Step 3

We’ll connect with you throughout the review process:

  • One of our staff leads and our external Legal Advisor will review your request and recommend whether or not to pursue the case.
  • If your case is outside the Fund’s scope, we’ll inform you as well as our CEO, Legal Advisory Committee and Board of Directors.
  • Positive recommendations go to our Legal Advisory Committee for feedback and a recommendation. If your case is about rights-of-way, FCM’s Technical Committee on Telecommunications and Rights-of-Way will provide input before the Legal Advisory Committee makes a final recommendation.
  • Our Legal Advisory Committee’s recommendations go to our Board of Directors (and in time-sensitive cases, our Executive Committee) for final approval.
  • If our Board approves your request, our staff lead will move the file forward with your municipality.

In 2015, FCM successfully defended the municipal sector's interests before the CRTC in our city's rights-of-way dispute with Bell Canada. FCM's support has proven invaluable in advancing the sector's interests before the courts.” 
— Mayor Fred Eisenberger, City of Hamilton, Ontario

Email Jen Arntfield if you have questions.

2019 Federation of Canadian Municipalities