Interpretation (Clearity Requirement)

Hamilton Independent Variety & Confectionary Stores Inc. v. Hamilton (City), 1983 CanLII 3114 (ON CA)

[20] The duty of a municipal council in framing a by-law is to express its meaning with certainty, 28 Hals., 4th ed., p. 731, para. 1329:

1329. Byelaws must be certain. A byelaw must provide a clear statement of the course of action which it requires to be followed or avoided, and must contain adequate information as to the duties and identity of those who are to obey, although all the information need not be apparent on the face of the byelaw. However, if the words of the byelaw are ambiguous but their meaning can be resolved to give a reasonable result the courts will give effect to that result. Any penalty provided must also be expressed with certainty.

[21] The obligation of clarity is to enable every citizen to understand the by-law in order to comply with it. Kelly J.A., delivering the judgment of the court in R. v. Sandler, 1971 CanLII 478 (ON SC), [1971] 3 O.R. 614 at p. 620, 21 D.L.R. (3d) 286 at p. 292, said:

When a municipal council purports to legislate under the powers found in the Municipal Act and thereby creates obligations to be observed by its citizens, the failure to observe which attracts punishment, it is to be expected that the by-law creating such obligations will itself be so explicit that a well-intentioned citizen seeking to observe the provisions of the by-law may, from a reading of the by-law, without the enlargements of its requirement by the order of a municipal servant, be able to satisfy himself that he has complied with its requirements.

[26] In my view, it is no answer to the vagueness and uncertainty argument in this case to say that the by-law incorporates the exact definitions of the Municipal Act While the definition in an enabling legislation may deal in generalities when broadly granting the power to enact a by-law, the by-law itself must be sufficiently specific to enable the proposed licensee to perceive his obligations in advance. The mere repetition of the formula or definition in the Municipal Act, without specifying particulars, fails to give any indication of the scope of the by-law.

[27] In Canadian Institute of Public Real Estate Companies et al. v. City of Toronto et al, 1979 CanLII 30 (SCC), (1979) 2 S.C.R. 2, 103 D.L.R. (3d) 226, 7 M.P.L.R. 39, a development control by-law merely repeated the power granted in the enabling legislation. The city did not exercise that power by enacting a by-law defining the desired regulation. The Supreme Court of Canada held the by-law to be unauthorized. The court relied on its judgment in Brant Dairy Co. Ltd. et al. v. Milk Com'n of Ontario et al, 1972 CanLII 11 (SCC), [1973] S.C.R. 131, 30 D.L.R. (3d) 559.

Canadian Institute of Public Real Estate Companies v. Toronto, 1979 CanLII 30 (SCC), (1979) 2 SCR 2

I am of the opinion that those words may be exactly adopted to the action of the municipal council in the enactment of by-law 419-74. There has been the mere simple repetition of the power and not the exercise of the power by the enactment of a by-law defining the desired regulations. Laskin J., as he then was, continued on the same page:

A statutory body which is empowered to do something by regulation does not act within its authority by simply repeating the power in a regulation in the words in which it was conferred. That evades exercise of the power and, indeed, turns a legislative power into an administrative one. It amounts to a redelegation by the Board to itself in a form different from that originally authorized; and that this is illegal is evident from the judgment of this Court in Attorney General of Canada v. Brent, 1956 CanLII 5 (SCC), (1956) S.C.R. 318.

I am, therefore, of the opinion that the appeal should be allowed and that by-law 419-74 should be held to be ultra vires.