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| [[Category:By-Laws]]
| | ==Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55 (CanLII)== |
| [[Category:Interference of Reasonable Enjoyment (LTB)]]
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| ===Potusek v. Township of Alnwick-Haldimand, 2019 ONSC 5677 (CanLII)<ref name="Potusek"/>===
| | [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: |
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| [22] I agree with the judge below that the task of interpreting a municipal bylaw, like statutes, involves both a broad and a purposive approach. Section 64 of the Legislation Act, 2006, SO 2006 c 21, sch F provides that statutes are to be given a “fair, large and liberal interpretation as best ensures the attainment of its objects”. In <b><i>Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC)</b></i><ref name="Rizzo"/>, the Supreme Court of Canada endorsed the modern approach to statutory interpretation as follows:
| | ::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. |
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| ::'''Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.'''
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| | [25] The application judge accepted the respondents' position. I agree with that decision. |
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| [23] In <b><i>Croplife Canada v. Toronto (City), 2005 CanLII 15709 (ON CA)</b></i><ref name="Croplife"/>, the Court of Appeal stressed that the approach to interpreting municipal bylaws is one of large and purposive construction. Moreover, it said that courts ought to be constrained in finding a bylaw invalid so as not to impinge on municipal democracy. | | [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: |
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| <ref name="Potusek">Potusek v. Township of Alnwick-Haldimand, 2019 ONSC 5677 (CanLII), <http://canlii.ca/t/j2nfp>, retrieved on 2020-07-23</ref>
| | 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. |
| <ref name="Croplife">Croplife Canada v. Toronto (City), 2005 CanLII 15709 (ON CA), <http://canlii.ca/t/1kg3l>, retrieved on 2020-07-23</ref>
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| <ref name="Rizzo">Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27, <http://canlii.ca/t/1fqwt>, retrieved on 2020-07-23</ref>
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| ==Gladu v Robineau, 2017 ONSC 37 (CanLII)<ref name="Gladu"/>==
| | [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. |
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| [266] Pomerance J. had the following to say about the statutory duties imposed by the <b><i>Building Code Act, 1992</b></i>, in Essex Condominium Corp. No. 43 v. Lasalle (Town) (2009), 69 M.P.L.R. (4th) 44 (Ont. S.C.), at para. 8:
| | <ref name="Grosvenor">Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55 (CanLII), <http://canlii.ca/t/1qbn4>, retrieved on 2020-08-20</ref> |
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| ::The BCA was enacted in order to ensure that construction in the province meets standards assuring the health and safety of members of the public. The BCA, through the building code establishes minimum standards that must be met in order to satisfy safety concerns. As it was described by the Supreme Court of Canada in <b><i>Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12 (CanLII), (2000) 1 S.C.R. 298 (S.C.C.)</b></i><ref name="Ingles"/> at para. 23:
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| ::::The legislative scheme is designed to ensure that uniform standards of construction safety are imposed and enforced by the municipalities…The purpose of the building inspection scheme is clear from these provisions: to protect the health and safety of the public by enforcing safety standards for all construction projects.</blockquote>
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| <ref name="Gladu">Gladu v Robineau, 2017 ONSC 37 (CanLII), <http://canlii.ca/t/gwvnz>, retrieved on 2020-07-23</ref>
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| <ref name="Ingles">Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12 (CanLII), [2000] 1 SCR 298, <http://canlii.ca/t/527s>, retrieved on 2020-07-23</ref>
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| ==London Property Management Assn. v. London (City)<ref name="LondonProperty"/>==
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| 54. I note also that as a matter of statutory interpretation, courts should attempt to interpret two potentially conflicting pieces of legislation in a way that avoids a conflict. In Brantford (City) Public Utilities Commission v. Brantford (City) (1998), 36 O.R. (3d) 419 (Ont. C.A.), the Ontario Court of Appeal said at para. 27:
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| ::In dissolving the Public Utilities Commission and establishing the Hydro-Electric Commission the City was not exercising any of the powers given to municipalities by Bill 26. More importantly, in my view, the exercise of those powers did not conflict with s. 210.4 or the regulations. <b><u>In approaching this issue it is important to bear in mind a fundamental principle of statutory construction that courts should attempt to avoid finding a conflict between two pieces of legislation.</b></u> Anglin J. expressed this principle in The Toronto Railway Company v. Paget (1909), 42 S.C.R. 488 at p. 499:
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| :::• It is not enough to exclude the application of the general Act that it deals somewhat differently with the same subject-matter. It is not "inconsistent" unless the two provisions cannot stand together.
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| 56 The Applicant points out s. 37 of the RTA, which provides that: a tenancy may be terminated only in accordance with this Act. However, s. 2.2 and 2.4 of the Licensing By-law provide, respectively, that no person shall operate a Rental Unit without holding a current valid license or while their license is under suspension.
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| <b><u>57 The Licensing By-law does not discuss what happens to the tenant in a scenario where a license is either refused or revoked.</b></u> The Applicant points to Ms. McLaren's and Mr. Angelini's circumstances where the License Manager asserted the Rental Unit was illegal and could not be rented. Assuming that a refusal to grant, or a
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| revocation of, a license renders the tenancy at an end the Applicant submits that there is an operational conflict between the statutes.
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| 58 However, <b><u>I am not satisfied that dual compliance is not possible or that the RTA is frustrated.</b></u> For example, if a license is not granted because of a failure to meet Building Code standards, the landlord may properly evict the tenant under s. 50 of the RTA in order to undertake repairs to the rental property.
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| 62 However, I cannot accept this argument by the Applicant. <b><u>The Licensing By-law contains no provisions which evict tenants. I disagree with the Applicant's submission that the Licensing By-law creates a new ground for termination of a tenancy not found in the RTA. The penalty for failing to comply with a Licensing By-law is the potential of a fine or a finding of contempt. The penalty section of the Licensing By-law provides for the imposition of a fine for contravening any provision of the Licensing By-law and s. 10.5 provides that the court which enters a conviction and any court of competent jurisdiction thereafter may make an order prohibiting the
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| continuation or repetition of the offence (that is operating without a license) and requiring the person to correct the contravention in the manner and within the period that the court considers appropriate.</b></u>
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| <ref name="LondonProperty">London Property Management Assn. v. London (City) 2011 CarswellOnt 11699, 2011 ONSC 4710, 90 M.P.L.R. (4th) 30, 11 R.P.R. (5th) 100, 216 A.C.W.S. (3d) 478 <https://caselaw.ninja/img_auth.php/c/cc/LondonProperty_v_City_of_London.pdf>, retrieved on 2020-07-23</ref>
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| ==References== | | ==References== |
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.
[1]
References
- ↑ Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55 (CanLII), <http://canlii.ca/t/1qbn4>, retrieved on 2020-08-20
