Is there anything in writing that defines ‘duty of care’ and/or precautionary principle when it comes to Ottawa Councillor decision-making?
This is a question Councillor Curry recently received. We wanted to share her response with everyone in our community:
There is no single sentence that says ‘Councillors must apply the precautionary principle,’ but under Ontario law, once risks to health, safety, or the environment are known, Council has a duty to act carefully and reasonably. That duty comes from provincial law and the courts, not politics. The precautionary principle means we don’t wait for harm to happen before asking hard questions or taking protective steps — especially when residents didn’t choose the risk.
However, here is a lot more information that might be helpful.
1. Is “duty of care” explicitly written in a Councillor oath or code of conduct?
No — not in those exact words.
But that does not mean it does not apply to City Councillors.
At the City of Ottawa, Councillors are bound by:
- The Councillor Declaration of Office
- The Code of Conduct
- Provincial legislation
- Common law obligations once risks are known
These documents use language like honesty, integrity, good faith, and acting in the public interest — which is how duty of care is expressed in public law.
2. Where does a Councillor’s duty of care actually come from?
A. Ontario’s Municipal Act (statutory duty)
Under the Municipal Act, 2001, municipalities — through Council — must act:
- In the public interest
- For the health, safety, and well-being of residents
- With reasonable care once risks are known
Once Council (or an individual Councillor) has actual notice of a risk (e.g., contamination, vibration impacts, drainage interference), the standard changes from passive governance to active responsibility.
Courts have repeatedly held that:
Once a municipality has notice of a foreseeable risk, failure to act reasonably may constitute negligence.
That is duty of care in law — even if the phrase is not used in the oath.
B. Common law negligence (very important)
Under Canadian common law, elected officials can engage municipal liability when:
- A risk is foreseeable
- The municipality (or Council) has knowledge of that risk
- There is a failure to take reasonable steps
You, personally, are protected from personal liability in most cases — but the City is not protected if Council knowingly ignores risk.
Once residents are reporting:
- shaking homes,
- possible environmental exposure,
- drainage interference,
Council is on notice.
At that point:
- asking questions,
- demanding independent review,
- improving transparency,
- pausing or scrutinizing activity
are not political acts — they are risk-management acts.
3. Where does the precautionary principle come from?
A. It is embedded in Ontario environmental law
The precautionary principle is not political rhetoric — it is recognized in Ontario and Canadian environmental jurisprudence.
It appears (explicitly or implicitly) in:
- Environmental Protection Act decision-making
- Water protection frameworks
- Tribunal and court reasoning
The principle is generally stated as: Where there is a risk of serious or irreversible harm, lack of full scientific certainty shall not be used as a reason for postponing measures to prevent harm.
For a Councillor, this means:
- You do not need certainty to act;
- You are allowed — even expected — to ask for caution where harm may be irreversible.
B. Councillors are expected to rely on precaution when risks affect people who did not choose the risk
This is critical.
Residents:
- did not choose mercury contamination,
- did not choose vibration,
- did not choose drainage alteration,
- did not choose winter construction with little notice.
That is precisely when precaution is most defensible.
4. Does this conflict with OLT decisions?
No — and this is crucial.
The Ontario Land Tribunal decides:
- planning conformity,
- land-use approvals.
It does not:
- remove municipal duty of care,
- override environmental protection,
- eliminate responsibility to respond to new facts.
Once new circumstances arise (e.g., unanticipated vibration, resident harm, incomplete testing, drainage interference), Council has both the authority and obligation to respond.
That is settled law.