August 4, 2023
We have written before about the advantages that municipalities have in enforcing bylaws through injunctions. Superior Court judges have relaxed the test to grant an injunction in a number of cases, but they have not gone about it in exactly the same way.
The source for consistency and clarity needs to be the Ontario Court of Appeal.
Now, the Ontario Court of Appeal has clarified the test somewhat in Leamington (Municipality) v. Ramirez.
As with many bylaw disputes, this case involved a tavern. The dispute centered on whether or not the owner had the proper municipal licensing. A prosecution was pending in the courts. Meanwhile, the municipality had obtained a permanent injunction prohibiting the operation of the business in Superior Court. The owner appealed to the Court of Appeal.
The judges quoted a 2005 Court of Appeal decision which said, “Where a municipal authority seeks an injunction to enforce a bylaw which it establishes is being breached, the courts will refuse the application only in exceptional circumstances.”
This is a much lower threshold than is commonly applied in injunctions sought by other persons or entities. Good news for municipalities. Bad news for wrongdoers.
The appeal court agreed with the Superior Court judge that no exceptional circumstances existed in this case.
The court upheld the injunction.
Unfortunately, the Superior court decision is not available to us, so we cannot update the test for “exceptional circumstances”. As the earlier 2005 appeal used the term but did not define it, a future Court of Appeal decision would be helpful in providing further clarification.
Our prior comments about the test as applied in Superior Court, discussed in the prior article, remain accurate based upon the clarification from the Court of Appeal.
In particular, this new ruling emphasizes that:
- Municipalities will attract support from the courts in the enforcement of bylaws.
- The public interest may supplant older attitudes about “property rights being sacrosanct.”
- For property owners or business operators, the usual injunction factors of irreparable harm and balance of convenience will not save you from the injunction.
- The onus will be on the property or business owner to show “exceptional circumstances” why the injunction should not be granted.
- “Exceptional circumstances” may need further clarification from the Court of Appeal. Until then, this factual issue will remain a battleground.
WHAT WEILERS LLP CAN DO TO HELP YOU
At Weilers LLP, we have recent experience in advising clients about the interpretation and enforcement of bylaws, including obtaining injunctions on behalf of municipalities in Northwestern Ontario where bylaws have been contravened. We are also experienced in appeals if your case is important and may help clarify the law. Whether you are a municipality or are the target of municipal enforcement, Weilers LLP may be the right law firm for you.