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By-Laws and By-Law Enforcement

Municipalities, through legislation in their respective provinces, are delegated law-making powers. The authority under which they can pass by-laws may be permissive or prescriptive depending on the legislation under which they operate. As experienced municipal lawyers who know and understand the powers and spheres of jurisdictions afforded to local governments, DD West LLP works with our clients to create and achieve powerful and enforceable by-laws. We understand the purpose and objectives of by-laws, how they work, and how they are best implemented and enforced.

By-Laws

It is important in the creation and drafting of by-laws to ensure compliance with all applicable powers afforded to municipalities under various acts of legislation. It is also important to ensure that the effects of the by-laws are achieved and most importantly, that the by-laws are enforceable and limited to any possible challenge.

Purpose of By-Laws

By-laws are passed to deal with matters pertaining to safety, health, and the protection of people and property; to regulate and administrate activities on or near public places; and to regulate activities on private property which may have effects on the public. Some examples of by-laws our advisory team can assist in drafting are:

  • those dealing with administrative matters of the municipality such as powers and duties of council, changing number of councillors, organization and procedural bylaws
  • those dealing with financial matters such as fee charges (Regulatory Charges), borrowing of funds, property taxes, and other taxes
  • those dealing with municipal services and utilities such as the opening and closing of roads and rate setting bylaws for water and sewer utility rates
  • those dealing with emergency measures
  • those dealing with property such as unsightly and dangerous property, dangerous animals, noise and other nuisance violations

Drafting of By-Laws

Proper and specific attention to detail is required when drafting by-laws. A poorly drafted by-law can lead to it being challenged and possibly being declared invalid or void by a court. More and more often by-laws are being challenged. The courts have the power to set aside part or all of a by-law. When drafting a by-law, consideration should be given to ensure that:

  • it is in written form, duly passed, and enacted by the municipality and signed by the head of council or the proper delegated authority
  • any prerequisites required by legislation have been complied with
  • any required approvals or publications required by legislation after the passing of the by-law are obtained and performed
  • the subject matter and content are within the powers of the municipality to create and regulate
  • the by-law is created for the whole of the community and done in good faith

By-Law Enforcement

Just as a municipality is granted a broad range of authority to enact its by-laws, it is also granted broad powers to enforce its by-laws. DD West LLP has been assisting municipalities with by-law enforcement for many years. We offer advice on a case-by-case basis relating to inspections and the preparation of enforcement documents.

Our firm has been involved in the area of municipal enforcement both in the context of statutory enforcement and municipal prosecutions. We have extensive experience in representing municipalities in the prosecution of by-law and safety code offences before Courts in Western Canada and Northwestern Ontario. This includes civil proceedings brought under the provisions of the municipal and planning acts before the Court of King’s Bench and the Court of Appeal.

Our role as municipal prosecutors for municipalities has allowed our lawyers to hone effective and efficient protocols for the successful prosecution of municipal offences.

Enforcing a Municipality’s By-Law

Our lawyers look at the preparation and review of enforcement related documents, including enforcement orders and charging documents. We provide legal advice and guidance to municipal clients in the context of inspections and investigations relating to land use, safety codes, nuisance and unsightly premises, animal control, business licensing, noise, traffic control and other by-law matters. We have represented municipalities in the court process when parties fail to comply with enforcement orders or have pleaded not-guilty to common offences notices.

Our team works collaboratively with the municipality and their enforcement personnel to achieve exceptional results in by-law enforcement and prosecution.

Defending a Challenge to a Municipality’s By-Law

Our advisory team is also able to provide assistance to a municipality if proceedings are brought by another party to quash or “challenge” a by-law.

Generally when a by-law is challenged, it is because of a limitation or weakness within the content of the by-law. Therefore, when drafting by-laws, it is essential to ensure they are as complete as possible.

The most common areas of challenge to a by-law include:

  • the by-law is too vague or it is uncertain
  • the by-law is not within the powers of the municipality
  • the by-law improperly delegates council’s decision-making powers
  • the by-law was created in bad faith, creates an atmosphere of bias, or is discriminatory
  • procedural defects within the by-law or the prerequisites or passing regulations for the by-law were not followed

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