|THE REGIONAL MUNICIPALITY OF PEEL|
|BY-LAW NUMBER 38- 2005|
A by-law to provide for certain insurance and reimbursement of employees and members of Council by The Regional Municipality of Peel.
WHEREAS The Regional Municipality of Peel (the "Region") desires to be or to act as an insurer and to:
(a) protect members of Council and employees of the Region against risks that may involve pecuniary loss or liability on the part of members of Council and employees; (b) pay damages or costs awarded against or expenses incurred by a member of Council or an employee; (c) pay sums required in connection with the settlement of an action or other proceeding against a member of Council or an employee; and (d) assume the cost of defending the member of Council or employee in an action or other proceeding, arising out of acts or omissions done or made by the member of Council or employee in the attempted performance in good faith of their duties as a member of Council of the Region or as an employee of the Region including while acting in the performance of any statutory duty, subject to the limitations of the Municipal Act, 2001, S.O. 2001, c. 25 (the "Municipal Act");
AND WHEREAS the Municipal Act provides the Region with authority to do so, pursuant to section 279 thereof;
AND WHEREAS the Municipal Act provides in section 283 that a municipality may pay in whole or in part such expenses of the members of Council and of the employees of the municipality as are actually incurred as a result of their acting in their capacity as members of Council of the municipal corporation or employees of the municipality;
NOW THEREFORE, the Council of the Regional Corporation enacts as follows:
1. In this By-law,
(a) "action or proceeding" includes all civil actions, provincial offences or administrative proceedings, except proceedings brought under the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50, as amended, the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, the Criminal Code, R.S.C. 1985, c. C.46, as amended, the Controlled Drugs and Substances Act, S.C. 1996, c.19, as amended, or municipal parking and traffic by-laws; (b) "Council" means the Council of The Regional Municipality of Peel; (c) "coverage" means coverage of the nature set out in Section 5; (d) "covered action or proceeding" means an action or proceeding commenced after the passing of this By-law or pending but not finally determined at the time of passing of this By-law, and arising out of acts or omissions done or made by a covered individual in the attempted performance in good faith of his or her duties as a member of Council or as an employee of the Region including while acting in the performance of any statutory duty; (e) "covered individual" means a person who was a member of Council or was an employee, as the case may be, at the time the cause of action or other proceeding arose or at the time that the act or omission occurred that gave rise to the action or proceeding, notwithstanding that prior to judgment or other settlement of the proceeding the person may have ceased to be a member of the Council or to be an employee; (f)
"employee" means any salaried officer, or any other person in the employ of the Region and includes persons that provide their services on behalf of the Region without remuneration, exclusive of reimbursement of expenses or honoraria, and excludes uniformed and civilian members of the police service of the Region, employees of The Regional Municipality of Peel Police Services Board (the "Board") and any other person holding an office or position that is appointed by the Board.
2. Subject to the provisions of this By-law, in a covered action or proceeding against a covered individual or in which the covered individual is a party and in which their conduct is called into question, the Region will, with the consent of the covered individual, defend or represent the covered individual in the covered action or proceeding in the name of, and on behalf of, the covered individual.
3. Notwithstanding Section 2, the Region shall not defend or represent a member of Council or employee in an action or proceeding against the member of Council or employee which is commenced by the Region.
4. Where the Region is defending or representing a covered individual in a covered action or proceeding, the Region may make such investigation, negotiation and settlement of any claim in the covered action or proceeding as may be deemed necessary or expedient by the Region.
DAMAGES, COSTS AND FINES
5. Subject to this By-law, in a covered action or proceeding, the Region will:
(a) pay all damages and legal costs, including interest, awarded against a covered individual; (b) pay all sums required in connection with the settlement of the action or other proceeding against a covered individual, provided that as a condition precedent the Region approves the terms of the settlement; (c) pay any fines, monetary penalties or award of damages levied or imposed against a covered individual by reason of the covered individual being convicted of any violation except the Highway Traffic Act, municipal parking and traffic by-laws, and offences under the Criminal Code and Controlled Drugs and Substances Act;
provided always that the legal liability for damages or for the imposition of a fine or monetary penalty arose out of acts or omissions done or made by the covered individual in his or her capacity as a member of Council or as an employee of the Region including while acting in the performance or attempted performance of any statutory duty.
6. The Region shall indemnify a member of Council or employee in the manner and to the extent provided by Section 5 of this By-law, in respect of any covered action or proceeding only if, in the opinion of the Council:
(a) the member of Council or employee acted honestly and in good faith with a view to the best interests of the Region; and (b)
the member of Council or employee had reasonable grounds for believing that his or her conduct was lawful.
7. As a condition precedent to the Region making any payment in respect of the costs associated with defence or representation of any covered individual in any covered action or proceeding or making any payment under Section 5 of this By-law, a covered individual shall:
(a) cooperate fully with the Region in the defence, investigation, negotiation or settlement of the covered action or proceeding; (b)
not have or engage in any contact, discussions or negotiations with any adverse person or party without the prior written consent of the Regional Solicitor;
(c) promptly disclose to the Regional Solicitor all contact, discussions or negotiations with any adverse person or party; (d)
apprise the Regional Solicitor on an ongoing basis of all matters relating to the covered action or proceeding; and
execute any documents required by the Region to enable the Region to subrogate as to the position and as to any rights or cause of action of the covered individual, or required by the Region to enable the Region to recover as an assignee of the covered individual of any right of entitlement of the covered individual under an award of costs or otherwise.
RETAINING LEGAL COUNSEL
8. A covered individual may retain their own legal counsel for their defence or representation in a covered action or proceeding in lieu of defence or representation by the Region, provided that the Region shall not reimburse the covered individual for their legal costs and shall not make payment under this By-law unless the Region declined to provide or terminated defence or representation and determined instead to reimburse the covered individual for their legal costs of defence or representation in accordance with this By-law, either because:
(a) the covered individual has demonstrated to the satisfaction of the Region that there exists a clear legal conflict between the interests of the Region and of the covered individual; or (b)
the Region has determined that it would be inappropriate for the Region to defend or continue to defend and represent the covered individual.
9. Notwithstanding the foregoing, in extending coverage under this By-law, the Region shall have the right to reasonably limit the amount which it shall pay a covered individual for legal costs and may:
(a) set a reasonable global upset limit for legal costs paid pursuant to Section 5; and (b)
establish reasonable hourly rates which it will pay legal counsel retained to defend or represent a covered individual.
10. Any requirement that the Region reimburse a covered individual for the costs of defence or representation in a covered action or proceeding shall take into account any pre-paid legal assistance plan or any defence cost insurance or funding that the covered individual has purchased or is available to the covered individual and shall be reduced by or repaid to the Region by the covered individual to the extent of any costs received or recovered by the covered individual, including costs awarded in the action or proceeding.
11. Notwithstanding the foregoing, the covered individual shall not retain legal counsel and the Region shall not be obligated to pay or reimburse the covered individual for defence costs where the covered individual is an insured under a policy of insurance maintained by the Region and the covered action is defended on behalf of the covered individual by the insurers under that policy to the extent that the coverage under that policy will reimburse all defence costs and will pay all damages and costs assessed.
12. Where a covered individual seeks to appeal a judgment in a covered action or proceeding, the Region shall have sole discretion to determine whether coverage of the nature set out in Section 5 shall be extended by the Region for the purposes of the appeal. If a covered individual pursues an appeal without representation by the Region and is successful in that appeal, the Region shall have sole discretion to determine whether the covered individual will be indemnified for his or her legal costs.
13. In exercising discretion under Section 12, the Region shall consider the factors set out in Section 6.
EXCLUDED ACTIONS OR PROCEEDINGS
14. Notwithstanding the foregoing, in respect of any action or proceeding where:
a covered individual has acted in bad faith or intentionally outside the scope of their authority;
(b) the action or proceeding arises out of conduct of the member of Council or employee which constitutes wanton or malicious wrongful conduct; (c)
the covered individual fails or refuses to comply with the provisions of this By-law; or
coverage is otherwise precluded under the provisions of this By-law;
then the member of Council or employee shall not be entitled to coverage under this By-law and the Region shall not be liable to pay any of the damages, costs awarded, expenses incurred, sums required in connection with settlement or the cost of defending any such member of Council or employee under Section 5 hereof.
15. In the case where the Region has determined that a covered individual is not entitled to coverage, that covered individual shall:
be responsible for all costs in connection with representation in the action or proceeding;
(b) reimburse the Region for all costs paid by the Region; (c)
not be entitled to coverage under this By-law or to have the Region make any payments under this By-law; and
be responsible for payment of any penalty or damages or costs awarded or imposed against the covered individual in the action or proceeding.
16. This By-law does not apply to an action or proceeding that relates to a grievance filed under the provisions of a collective agreement or to a disciplinary action taken by the Region as an employer, except insofar as the covered individual is exercising management or management support functions.
17. This By-law does not apply to employees covered by policies under a collective agreement which provide for indemnity of employees for acts done in the course of employment.
18. Notwithstanding anything in this By-law, the Region shall have the right to discipline or terminate employees as it may deem appropriate, having regard to any existing collective agreement or Regional policies, if the covered individual breaches what the Region considers to be normal and prudent conduct for the employee in their capacity, and the employee shall not be entitled to coverage under this By-law arising out of any such discipline.
COUNCIL DISCRETION TO EXTEND COVERAGE
19. The express provisions of this By-law shall not limit or preclude Council from exercising its otherwise existing discretion to extend coverage of the nature set out in Section 5 in circumstances deemed appropriate by the Council.
20. This By-law takes effect on the day that it is passed.
READ THREE TIMES AND FINALLY PASSED IN OPEN COUNCIL this 10th day of March, 2005.