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Municipal - Enforcement of By-laws. Leamington (Municipality) v. Ramirez
In Leamington (Municipality) v. Ramirez (Ont CA, 2023) the Court of Appeal considered (and dismissed) an appeal of a statutory injunction under s.440 of the Municipal Act, here granted at the municipality's application - despite the fact that a POA charge was pending on the same basis and despite the fact that a related administrative re-hearing of an Appeal Committee had been ordered by a JR in the Divisional Court:[4] On October 28, 2021, the appellant was charged under the Provincial Offences Act, R.S.O. 1990, c. P.33, with operating a business without a licence, contrary to s. 9 of the Business By-law. This charge is pending in the Ontario Court of Justice. The relevant provision of s. 9 of the Business By-law reads that “No person shall: (a) operate a Business … (i) without a Business License”.
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(iii) The permanent injunction was properly granted
[20] We see no basis to interfere with the application judge’s granting of a permanent injunction. The application judge properly applied the governing legal principles and considered and weighed all relevant factors.
[21] We are not persuaded by the appellant’s arguments about unfairness or irreparable harm. The appellant knowingly and unlawfully carried on business without a licence for several years until permanently restrained and enjoined by the order made by the application judge. The appellant’s clear and continuing breach of the Business By-law outweighed any issues of unfairness or irreparable harm to the appellant.
[22] As this court instructed in Newcastle Recycling Ltd. v. Clarington (Municipality), 2005 CanLII 46384 (ON CA), 204 O.A.C. 389 (C.A.), at para. 32, “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.”
[23] The application judge’s determination that there were no exceptional circumstances militating against the granting of the permanent injunction was based on his assessment of the evidence. His assessment is entitled to deference, absent error. We see none here.
[24] We do not agree that the Divisional Court’s decision changes this result. While the Divisional Court ordered a new appeal before the Appeals Committee because of procedural unfairness and the unreasonableness of the decision, it stopped short of finding bad faith and expressly refused to require the respondent to issue a business licence because, as it concluded, “[w]ith respect to remedy, this is not a case where a particular outcome is inevitable”: Paradise Night Club, at para. 4. . Syrowik v. Wheeler
In Syrowik v. Wheeler (Ont CA, 2021) the Court of Appeal commented on the requirements of s.440 of the Municipal Act, where private parties may make an application to enjoin breach of a by-law:[7] Section 440 of the Act reads as follows: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.] [8] Both parties submit that the application judge erred in concluding that in order to succeed on an application to enforce a by-law under s. 440 of the Act, where a municipality has declined to do so, a taxpayer is required to show that the Municipality acted unreasonably or in bad faith in declining to enforce the by-law.
[9] We agree. The appellants were not seeking an order compelling the Municipality to enforce the Fence By-law. ...
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