Judicial Review of Municipal By-Laws: Courts are not to interfere based on reasonableness

In a recent decision, Marsh v. Chatham-Kent, [2009] O.J. No. 3314, Leitch J. reviewed the law on the jurisdiction and scope of judicial review of municipal by-laws.

The application was for an order declaring a by-law invalid on procedural irregularities or alternatively void on the basis that its provisions are discriminating, arbitrary, unfair, vague and uncertain.

Leitch J. dismissed the application.

The case arose after a rural Ontario municipal counsel, after some deliberation and input, decided to proceed with installing a new sewage system. The application against the by-law was perhaps not surprising given that participation was made mandatory and for most owners the tax bill is $15,500.

Leitch J. reviewed section 273(1) of the Municipal Act, 2001, which sets forth the jurisdiction of the court on this application by providing as follows: Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality. However, it is important to note that the reasonableness of the By-law cannot be the issue before the court. Section 272 of the Municipal Act provides as follows: A by-law passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.

Leitch J. cited the Supreme Court of Canada in Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342 at para. 36, quoting McLachlin J., as she then was, in Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231: Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" ... Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives. [Emphasis added]