April 24, 2022
You might not be aware that section 440 of Ontario’s Municipal Act provides that:
If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.” [Emphasis added.]
“Restrained” means enforcement through an injunction or court order.
The section is silent about when a taxpayer may obtain such an order.
Syrowik v. Wheeler involves a dispute between neighbours over the height of a fence. The sort of situation that occurs all too frequently, which is why municipalities from Timmins to Thunder Bay and Kingston to Kenora have fence by-laws. This case happened to arise in Lambton Shores on Lake Huron, but it might happen where you live too, even along Lake Superior. The properties were in a private development owned by a cottager’s association, so the streets were private. This sort of use is also found in recreational areas of Northwestern Ontario.
The applicants complained to the municipality but the municipality determined that there was no violation of the by-law. So they applied under section 440. The Superior court judge who initially heard the application determined that the fence was “probably higher than the Municipality permits” but declined to grant an injunction. Among the judge’s reasons was their belief that in order to succeed, the applicants need to show that the municipality acted unreasonably or in bad faith.
So the appellants, still not satisfied, appealed to the Court of Appeal. This appears to be the first time that the court considered when a taxpayer may obtain an injunction.
The court agreed that as long as the taxpayer is not seeking an order that the municipality enforces the by-law, no bad faith or unreasonableness on the municipality’s part is necessary.
In this case, though, after determining that the applicants could apply for the order, the appeal court decided that no order should be granted, because there was insufficient evidence to prove a clear breach of the by-law. This requirement for a clear breach is not a familiar standard for enforcing by-laws, or for obtaining court orders generally. Normally, all that is required is, as the first judge said, is proof that the breach is more likely than not, since the injunction is not a criminal or even a provincial offences conviction. For example, in the 2020 Superior Court case of JJ’s Hospitality v. Kal Tire, the usual “serious issue to be tried” accessibility threshold was used to award an injunction in favour of a taxpayer against their neighbour based on a breach of a zoning by-law. No need for a “clear breach” was mentioned.
The appeal court in Syrowik was not satisfied that the by-law even applied to the respondent’s fence, because it was not adjacent to a public street. That could have been enough to dispose of the application, without the mention of a need to show a “clear breach.” We are going to watch closely to see if and how future cases apply this “clear breach” standard.
Among the unanswered questions is whether the court would apply that standard to a request from a municipality to restrain a breach, or if their concerns are greater when it is a taxpayer applying.
If you are a taxpayer and have exhausted your efforts to achieve results through discussions with your neighbour and the municipality, consulting Weilers Law will increase your chances of obtaining satisfaction with your neighbour dispute.
If you are the neighbour who is the target of dispute, then retaining Weilers Law may be your best defence.
If you are part of a municipal government we can advise you on fence by-laws, and options for enforcement. Weilers Law is ready and experienced in representing municipalities in a wide range of legal proceedings, including by-law matters.