How to quash a municipal by-law

The following two tabs change content below.
is a litigation lawyer practicing at Perley-Robertson, Hill & McDougall LLP in Ottawa, Ontario. He may be reached at 613.566.2823 or obourns@perlaw.ca.

Latest posts by Owen Bourns (see all)

Municipal councils in Ontario are granted significant power, discretion and autonomy in their ability to pass municipal by-laws.  However, they are required to adhere to certain principles of fairness and openness which are necessary in our democracy.

Where a municipal council has acted in bad faith or in an illegal manner to pass a by-law there is a remedy for disgruntled citizens under section 273 of the Municipal Act which permits an applicant to bring a court application to quash the bylaw.  Section 273 states:

273. (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.

In Grosvenor v. East Luther Grand Valley (Township), [2007] the Ontario Court of Appeal defined “illigality” under s.273 as “bad faith” (para 27):

“‘Illegality’ is a generic term covering any act not in accordance with the law”: Immeubles Port Louis ltée c. Lafontaine (Village), [1991] 1 S.C.R. 326 (S.C.C.), at 343 … it encompasses by-laws that are passed in bad faith.

While the door is open to quash a by-law, the opening is quite slim.  The “bad faith” required to quash a by-law is quite high.

In Wyoming (Village) v. Homex Realty & Development (“Homex Realty“) Weatherston J.A. of the Ontario Court of Appeal re-affirmed the high standard which must be satisfied in order to quash a municipal by-law as set out in Re Howard and Toronto:

Certain elementary principles must be kept in mind when dealing with questions such as those here raised. A municipal council is a legislative body having a very limited and delegated jurisdiction. Within the limits of its delegated jurisdiction, and subject to the terms of the delegation, its power is plenary and absolute and in no way subject to criticism or investigation by the courts. When the municipal council goes beyond its limited jurisdiction or seeks to ignore conditions precedent to the exercise of the power that has been conferred upon it, it is the duty of the courts to interfere and quash the municipal by-law for illegality. Beyond that the courts cannot go. The question is always one of the right of the municipality to determine the question; the justness or fairness of the action of the council is quite beside the mark. If it is shewn that the municipal councillors have abandoned all honest attempts at legislation and are corruptly seeking by the prostitution of their legislative powers to advance the ends of some member of the council or some favoured individual, the courts may also interfere. (underline added)

Despite the above, the Court of Appeal upheld the impugned by-laws, however, the Supreme Court of Canada subsequently overturned the Court of Appeal’s decision and quashed the by-laws.  The issue in that case was that the municipality failed to give Homex Realty the notice it was entitled to under s.29 of the Planning Act.

In Farber v. Kingston (“Farber“) the city passed a by-law to re-name a historic landmark after the name of a particular family in exchange for substantial donation. The Ontario Superior Court held that while no public consultations were had, they did discuss the matter in two public in-camera meetings including one which was well attended by the public and where there was free and open discussion by councilors on the merits of the by-law.  Thus, the application to quash the by-law was declined.

However, the necessary “bad faith” has been found in some cases.

In the above cited Farber Quigley J. also cited RSJ Holdings Inc. as an example of a by-law passed in “bad faith”.  In that case the controversial by-law was passed by city council, along with 31 other by-laws, in a time span of eight minutes without any public debate or discussion.

Another example of “bad faith” is in Grand Valley where concerned citizens notified council that the city was required to erect some safety fences under the Lines Fences Act.   In order to avoid this responsibility and save money city council, six days before the fences were to be erected, secretly passed a by-law, without notice to the concerned citizens, which nullified the city’s requirement to erect the fences.

Therefore, if you are going to be successful quashing a municipal by-law for illegality then the bad faith must of the level in the  Homex Realty, Grand Valley, and Farber v. Kingston cases. In those cases the “bad faith” concerned clear and conscious decisions by council to evade public notification, consultation and accountability altogether.  Thus, the courts have shown concern that both (a) those entitled to by-law related notification receive it, and (b) councils act in an open and accountable manner.

_______________________________________________________________________

Owen Bourns is a litigation lawyer in Ottawa, Ontario.  He may be reached at 613.566.2823 or at obourns@perlaw.ca.

3 comments
jamesadib
jamesadib

Didn't Cooper espouse in a federal court that it would be a dark day if the 9th agreed with the lower court's ruling? How is it that he gets away with this? How is it that Ken Mehlman capitalizes on the marriage equality victories when he was the self loathing, self righteous infection that delivered us to the waste we're continuing to clean up? 

Outsourced IT Services Dallas

onitamina1
onitamina1

I didn't know that "legal custody" and "physical custody" were two
different things. I thought that they were both under the blanket term
"custody." That's good to know. I'm glad I've never had to go through a
divorce like some of my friends. They told me that the worst part was
the custody battle. http://www.rosslawcenter.com/

didarulislam234
didarulislam234

Great Article. I think there will be many people like it, of course, I was one of the people. I think this article increase my knowledge. it is nice to know quash a municipal by-law. Thanks for the time and effort. it’s Really Helpful and Enjoyable Post for Everyone. Thank you very much for Sharing with us. http://www.bailbondinwesthollywood.com