Many municipalities are familiar with the processes available under the Planning Act for challenging by-laws by appealing to the Ontario Land Tribunal (formerly the LPAT). However, it is important to ensure when passing by-laws that they are not vulnerable to an application to quash under Section 273 of the Municipal Act, 2001.
Section 273 of the Municipal Act, 2001 permits the Superior Court of Justice to quash any by-law of a municipality in whole or in part for illegality and may be brought by any person.
The application to quash is a distinct remedy from an appeal to the OLT and addresses unique concerns regarding the passing of a by-law. As detailed by the Court of Appeal in Country Pork v Ashfield (Township), an appeal to the OLT deals primarily with the conformity of a by-law with applicable planning principles. An application to quash, however, is concerned with “illegality” in the passing of the by-law.
There are several grounds that constitute “illegality” and warrant the quashing of a by-law. Municipalities should be mindful of the following when passing by-laws to ensure they are not vulnerable to an application to quash:
- Follow all required statutory procedures (public notice, mandatory consultation and issuing notice of a decision);
- Consider possible conflict with the Charter of Rights and Freedoms (discrimination of protected groups);
- Make sure that there is statutory authority to pass the by-law;
- Establish that the by-law has a proper municipal purpose;
- Draft provisions that are not vague;
- Is the process or the decision susceptible to an allegation of bias of Council or relevant staff?
While there are several avenues available to defend against an application to quash a by-law, it is important for municipalities to keep Section 273 of the Municipal Act, 2001 in mind when passing by-laws to prevent unnecessary and costly litigation.
Our team has extensive experience in by-law drafting and review as well as responding to applications to quash by-laws. Please do not hesitate to contact us if we can assist you.