July 23, 2022

By Mark Mikulasik

Ontario municipalities are in a special position with respect to obtaining injunctions for a breach of a bylaw. Section 440 of the Municipal Act, 2001 provides that a municipality may apply to the court for an order restraining any contravention of its bylaws in addition to any other remedies and in addition to any penalty imposed by the bylaw.

THE ISSUE

Ontario Superior Court judges have arrived at different conclusions with respect to what test applies to grant such an injunction. Because the cases involve different contraventions, and the effect of the injunctions would differ, the differing results might be justified on that basis, but there remains uncertainty about what the true test is in the absence of more guidance from the Ontario Court of Appeal.

An injunction is a court order which requires a person to stop doing a prohibited act, or to comply with the requirements of a law. The second type of injunction is called a mandatory injunction and is sometimes considered to have a tougher test then obtaining a prohibitory injunction.

THE CASE

An Ontario Court considered the requirements for a municipality to obtain an injunction in the case of Geil Style Enterprises Inc. v. Corporation of the Township of North Dumfries. In that case, a property owner had altered the grade of their property by adding fill, which violated the terms of the township’s fill bylaw.

The court began by examining the traditional test for an interlocutory injunction – that is an injunction prior to trial. There is an established three part test as follows:

1. The moving party must establish a “serious question to be tried”;
2. The moving party must show that it will suffer irreparable harm if the injunction is not granted; and
3. Balance of convenience favors the granting of an injunction. This involves a consideration of which party will suffer greater harm if the injunction is granted or refused.

“Serious issue to be tried” is a very low threshold which simply means that the case is not so weak that it is frivolous or vexatious, and there is some possibility that the moving party might win at trial. It does not involve any close look at the merits of the case.

There is an exception to this general rule in cases where the result of the injunction will affectively determine the rights of the parties. In those situations, the “serious issue to be tried” test may be elevated to require a “strong prima facia case” or, to eliminate the Latin, a strong chance of success which requires that the judge considering the injunction look closely at the likelihood that the case would succeed at trial and only grant an injunction if the case is strong.

The property owner in Geil was able to point to an earlier case which was an example of a case where a municipality seeking an injunction to prevent contravention of a zoning bylaw must have a strong chance of success. In the Geil case, the court did not apply that test. The judge determined that because complying with the fill bylaw would not shut down the landowner’s entire business, the less onerous serious issue test applied.

Where the special status of municipalities is particularly apparent is in considering the issue of irreparable harm. Superior Court authorities appear to be consistent that the need for irreparable harm does not apply in these situations. Municipalities have obligations to citizens as a whole, which put them in a different position than an ordinary person. The duty to protect residents requires that the bylaws will be enforced.

Not only does the municipality not have to prove irreparable harm, there is a presumption that the balance of convenience favors the municipality. A property owner who chooses to contravene a bylaw needs to be aware of the risk of not following the law. The municipality, on the other hand, has a compelling interest in enforcing the public interest.

Although the Ontario Court of Appeal has not specifically endorsed these propositions, they appear to be well settled.

Because the granting of an injunction is always a discretionary remedy, there are still situations in which a judge may not grant the order. Most of these involve questions where the good faith or motivation of the municipality is in doubt.

TAKEAWAYS

If you are a municipal official:

• This decision should give you comfort and encouragement about seeking court orders to enforce compliance with your bylaws.
• There may be situations such as zoning, or personal use property rather than commercial property, where the courts will make it more difficult, but…
• It is refreshing to see courts recognizing the important public interests represented by municipalities as opposed to older attitudes about property rights being sacrosanct and municipal efforts which affected property rights were viewed a suspect interference with those rights.

On the other hand, if you are a landowner, you need to be aware that:

• A court is not likely to be sympathetic to any violation of a bylaw.
• The court is likely to say that you assumed the risk of the consequences of violating that bylaw.
• One of those consequences might be an injunction to prohibit the improper use.
• Another more serious consequences may be a mandatory injunction to require you to take steps to bring your property into compliance.
• Although there may be some exceptions, in most cases the municipality will only have to show that its allegations that you are in violation raise a serious issue and are not frivolous or vexatious in order for the injunction to be granted.
• Even at the balance of convenience stage where your interests would normally be considered, your economic interests are likely not to be viewed as being as important as the public interest in compliance with the law.
• There will be exceptions in your favor, particularly those that would prevent a lawful use of your property in order to comply with technical aspects of a law. Courts will be more sympathetic if they are personal interests rather than business or economic interests.

In all situations, we still await further guidance from the Ontario Court of Appeal. If the results of the injunction being granted or denied are of general importance, an appeal may change the outcome.

HOW WEILERS LLP CAN 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.