Municipal Bylaws - As Evidence in a Hearing

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-12-24
CLNP Page ID:	2449
Page Categories:	[By-Laws]
Citation:	Municipal Bylaws - As Evidence in a Hearing, CLNP 2449, <https://rvt.link/ek>, retrieved on 2024-12-24
Editor:	Sharvey
Last Updated:	2024/12/18

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Evidence Act, R.S.O. 1990, c. E.23

1 In this Act,

“action” includes an issue, matter, arbitration, reference, investigation, inquiry, a prosecution for an offence committed against a statute of Ontario or against a by-law or regulation made under any such statute and any other proceeding authorized or permitted to be tried, heard, had or taken by or before a court under the law of Ontario; (“action”)

...

29 Where the original record could be received in evidence, a copy of an official or public document in Ontario, purporting to be certified under the hand of the proper officer, or the person in whose custody such official or public document is placed, or of a document, by-law, rule, regulation or proceeding, or of an entry in a register or other book of a corporation, created by charter or statute in Ontario, purporting to be certified under the seal of the corporation and the hand of the presiding officer or secretary thereof, is receivable in evidence without proof of the seal of the corporation, or of the signature or of the official character of the person or persons appearing to have signed the same, and without further proof thereof. R.S.O. 1990, c. E.23, s. 29.

Grand Central Ottawa Ltd. v. Ottawa (City), 1998 CanLII 18876 (ON SC)

The statutory provisions involved read as follows:

Section 1 of the Interpretation Act:

1(1) The provisions of this Act apply to every Act of the Legislature contained in these Revised Statutes or here-after passed, except in so far as any such provisions,

(a) is inconsistent with the intent or object of the Act;

(b) would give to a word, expression or provision of the Act an interpretation inconsistent with the context; or

(c) is in the Act declared not applicable thereto.

(2) Sections 2, 4, 9, 28 and 29 apply to the regulations made under the authority of an Act.

Section 7 of the Interpretation Act:

7(1) Every Act shall be judicially noticed by judges, justices of the peace and others without being specially pleaded.

(2) Every proclamation shall be judicially noticed by judges, justices of the peace and others without being specially pleaded.

Section 29 of the Interpretation Act:

29(1) In every Act, unless the context otherwise requires . . .

Section 31 of the Interpretation Act:

31. The interpretation section of the Municipal Act extends to all Acts relating to municipal matters.

Section 127 of the Municipal Act, R.S.O. 1990, c. M.45:

127(1) Every by-law shall be under the seal of the corporation, and shall be signed by the head of the council or by the presiding officer at the meeting at which the by- law was passed and by the clerk.

(2) Every by-law purporting to be so sealed and signed, when produced by the clerk or any officer of the corporation charged with the custody of it, shall be received in evidence in all courts without proof of the seal or signature.

(3) Where, by oversight, the seal of the corporation has not been affixed to a by-law, it may be affixed at any time afterwards, and, when so affixed, the by-law is as valid and effectual as if it had been originally sealed.

(4) A copy of a by-law, purporting to be certified by the clerk, under the seal of the corporation, as a true copy, shall be received in evidence in all courts without proof of the seal or signature.

Section 76(1) of the Municipal Act:

76(1) A copy of any document in the possession or under the control of the clerk of a municipality purporting to be certified by the clerk and under the seal of the corporation may be filed and used in any court or tribunal in lieu of the original and shall be received in evidence without proof of the seal or of the signature or official character of the person appearing to have signed the same, and without further proof, unless the court or tribunal otherwise directs.

Section 29 of the Ontario Evidence Act, R.S.O. 1990, c. E.23:

29. Where the original record could be received in evidence, a copy of an official or public document in Ontario, purporting to be certified under the hand of the proper officer, or the person in whose custody such official or public document is placed, or of a document, by-law, rule, regulation or proceeding, or of any entry in a register or other book of a corporation, created by charter or statute in Ontario, purporting to be certified under the seal of the corporation and the hand of the presiding officer or secretary thereof, is receivable in evidence without proof of the seal of the corporation, or of the signature or of the official character of the person or persons appearing to have signed the same, and without further proof thereof.

Section 24 of the Canada Evidence Act, R.S.C. 1985, c. C-5, contains provisions similar to s. 29 of the Ontario Evidence Act.

When statutes conflict, the rules of statutory interpretation dictate that the general act (in the case at bar, the Interpretation Act) yields to the specific Act (the Municipal Act): see Part III, Interpretation of Statutes, Canadian Encyclopedic Digest, para. 50. Section 1 of the Interpretation Act states that the Interpretation Act applies except where it is inconsistent with the intent or object of the Act. Sections 76 and 127 of the Municipal Act and s. 29 of the Ontario Evidence Act clearly set out the method of introducing by-laws into evidence and such procedure is unaffected by s. 7 of the Interpretation Act. It is my conclusion that the trier of fact cannot take judicial notice of municipal by-laws.

As indicated previously R. v. Dowslay, supra, was not referred to in either the Lockyer or Smith decisions. R. v. Dowslay held that a municipal by-law must be proved by the tendering of a copy certified by the clerk to be a true copy and under the corporate seal pursuant to the legislation then in force.

This has been the generally accepted method of proving municipal by-laws: see R. v. Snelling, [1952] O.W.N. 214 (H.C.J.); R. v. Bleta, [1965] 2 O.R. 108 (C.A.); Wigmore on Evidence, para. 2572; McWilliams, Canadian Criminal Evidence, 2nd ed. (Aurora, Ont.: Canada Law Book, 1984), p. 121; Ewarb, Documentary Evidence in Canada (1984), p. 178.

Since I have concluded that the trier of fact cannot take judicial notice of municipal by-laws the convictions cannot stand.

The appeal is therefore allowed and acquittals will be entered.

Appeal allowed.

2386240 Ontario Inc. v. The City of Mississauga, 2018 ONSC 3992 (CanLII)

[1] The applicants seek a declaration that part of a by-law enacted by the respondent The Regional Municipality of Peel (the “Region”) banning the use of waterpipes is invalid and as such those provisions of the by-law should be quashed.

...

[18] At common law, a “public document” has been held to mean a document that is made for the purpose of the public making use of it, and being able to refer to it: Sturla v. Freccia (1880), 5 App. Cas. 623 at 643 (H.L.).

[19] Clearly the letter in question is not a public document at common-law as there was no intention that this letter would be made use of by the public, let alone for the purpose of the public being able to refer to it.

[20] In the Ontario Court of Appeal decision R. v. Kaipianen 1953 CanLII 96 (ON CA), [1954] O.R. 43 the court having reviewed leading English authorities as to what constituted a public document concluded that there are four conditions that must be present for a public document to be admissible without proof, namely:

(1) there must be a judicial or semi-judicial inquiry;

(2) the inquiry must be with the object that the report be made public;

(3) the report must be open to public inspection or an inference to this effect should be drawn from the circumstances; and

(4) statements in a public document must relate to matters for which it was the duty of the public officer holding the inquiry to inquire into and report on: The Law of Evidence in Canada, 4th Edition, p. 1268 at para 18.62.

[21] As there is no evidence at all that the letter in question satisfies any of the required criteria for admission as a public document whether at common-law or under s. 29 of the Evidence Act (supra), I reject the applicants’ submission for the admission of this evidence on this ground.