Interpreting a Municipal Bylaw

Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55 (CanLII)

[20] After a careful and detailed analysis of the facts, the applicable legislation and the law, the application judge made a critical finding: he found that in enacting By-law 2003-07 in the manner in which it was enacted, the Township had acted in bad faith. Recognizing that he must adopt the "generous deferential standard of review" towards the decision of a municipal council exercising its admitted authority, [See Note 3 below] and that he "must interpret [page352] the By-law benevolently and support it if possible", the application judge nonetheless concluded that the by-law must be quashed as it had been enacted in bad faith. The substance of his reasoning in this regard is found in paras. 70-73:

The question is why was the By-law passed as stated? The Applicants contend that there was no reason for Council to pass the By-law, that it was passed in bad faith and the fact that Council failed to consider the interest of the Applicants at large and primarily to eliminate its own liability for the costs of the fencing, that it was illegal, because it was passed to eliminate the possibility of a proper decision by the line fence viewers and/or a proper application of the law under that Act.

[25] The application judge accepted the respondents' position. I agree with that decision.

[26] While a municipal by-law is generally assumed to be valid, it may be set aside on grounds of illegality. Section 273(1) of the Municipal Act, 2001 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.

[27] " aeIllegality' is a generic term covering any act not in accordance with the law": Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, [1991] S.C.J. No. 14, at p. 343 S.C.R. As I will explain, it encompasses by-laws that are passed in bad faith.