Effective Bylaw Drafting. Ed Gullberg McLennan Ross LLP

Transcription

1 Effective Bylaw Drafting Ed Gullberg McLennan Ross LLP

2 What makes a bylaw effective? Preliminary Considerations Overview Legal Considerations for Bullet-Proof Bylaws Recommended Structure Tips on Drafting

3 What Makes a Bylaw Effective? Within the authority of the Municipality Capable of withstanding legal challenges Understood by staff Understood by Public General acceptance and compliance

4 Preliminary Considerations for an Effective Bylaw An effective bylaw starts with consideration of some basic issues: What to you want to do? What problem is being addressed What will the bylaw do about the issue What are the options Which option is best

5 Preliminary Considerations for an Effective Bylaw Why are you doing this? Bad faith can invalidate bylaw Acting for improper purpose can invalidate bylaw Where do you get authority to do it? Municipal legislation Planning & Development Act Dog Act

6 Preliminary Considerations for an Effective Bylaw Is public consultation required or desirable May be mandatory Even if not mandatory, may improve compliance How do you do it? Is a resolution sufficient Is there a specific procedure that applies (a borrowing bylaw, for example) Are there good examples of bylaws that you can use as a starting point? You re not inventing the wheel

7 Legal Considerations for Bullet-proof Bylaws Bylaws are set aside or read down by Courts for a variety of reasons: Procedural Errors Lack of Jurisdiction Conflict with federal or territorial laws Breach of Charter Requirements Improper Purpose Bad Faith Vagueness

8 Attacks on Bylaws - Procedural Issues Failure to follow procedural requirements to pass a bylaw can be grounds to set aside the bylaw Must have three reading Only two readings at same meeting unless council members unanimously agree to three readings Some bylaws have specific procedural requirements that must be followed Borrowing bylaws Zoning Bylaws Bylaws can only be repealed or amended by bylaw Same procedural requirements apply to amendments

9 Attacks on Bylaws - Jurisdiction Municipalities must always act within their jurisdiction Municipal legislation gives broad power to pass bylaws Section 70 of CTV Act, for example Matter does not have to be specifically mentioned if it falls within general types of power to pass bylaws Courts have ruled the modern approach to interpret the bylaw making power generously Supreme Court in Societe Arrosage, for example

10 Attacks on Bylaws - Jurisdiction Bylaws can t protect municipality from claims by third parties for negligence, breach of contract, etc. without express legislative authority Bylaws can t discriminate unless expressly authorized by statute or if discrimination is authorized by necessary implication in exercising the municipal power

11 Attacks on Bylaws Jurisdiction Constitutionally, municipal bylaws cannot affect any matter within federal jurisdiction Airports Banks Railways Criminal law, etc.. Bylaw will be struck down or read down so that it does not apply to matters exclusively of federal jurisdiction May apply to areas of concurrent jurisdiction Can t affect issues determined by territorial law either (age of majority, etc.) Even if a bylaw is within municipal power, it will be inoperative if not possible to comply with both bylaw and federal or territorial law

12 Attacks on Bylaws Charter challenges Municipal bylaws are subject to the Charter of Rights and Freedoms Charter prohibits laws that restrict freedom of religion, freedom of expression; right to vote and hold office; life liberty and security of person and equality rights Equality rights prohibit discrimination based on age, sex, family status, etc.. A bylaw may survive a Charter attack if the breach is reasonably justified in a free and democratic society a difficult test

13 Attacks on Bylaws Lack of Proper Municipal Purpose All municipal bylaws must be enacted for a municipal purpose (see s. 70 of CTV Act, for example) This has been used to strike down bylaws that require local action for things not of local concern to the community Shell Canada v. Vancouver Supreme Court held a resolution prohibiting City from purchasing from Shell until it withdrew from South Africa was not a municipal purpose Recent Ontario case struck down bylaw prohibiting sale of shark fins products in Toronto on the grounds that the issue related to the larger world community rather than an issue of concern to the local community directly

14 Attacks on Bylaws Bad Faith Bylaws have been attacked on the grounds of bad faith Often a result of using a bylaw power for a purpose other than the reason for which it was granted Example, using zoning power to reduce the value of land that was going to be expropriated Bad faith may include: Passing bylaws with inordinate speed Dispensing with normal practices and procedures Withholding information from affected parties Singling out particular properties to detriment of owner

15 Attacks on Bylaws - Vagueness Courts have set aside bylaws for vagueness The test is whether is reasonably informed person would be able to understand what is expected and what the consequences of non-compliance will be

16 Structure of Bylaws Organizing the bylaw like legislation will make it easier to read and easier to find relevant provisions Paragraphs, sub-paragraphs, etc. refine issues further at each level A bylaw will be easier to understand if it follows a recommended structure Helps to organize thoughts Aids in interpretation Makes it harder to forget things

17 Structure of Bylaws Corporate Title This is the full legal name of the municipality Bylaw Number use a logical sequence for numbering. Consider adding the year passed as part of the number Preamble many bylaws have used preambles, setting out background and including specific statutory authority for bylaw. Preferred approach is NOT to use preambles as a Court may use the expressly stated authority to preclude other authority you may have when the Court interprets the bylaw. Purpose a brief statement of the bylaw s purpose Definitions terms that are particular to the Bylaw should be defined and should be used consistently. Do not define terms that are not used. Keep in mind the Interpretation Act applies to define terms and to provide interpretation rules for time, etc..

18 Structure of Bylaws Statement of to Whom and to what the Bylaw applies For example, this bylaw applies to all persons doing business in the community. General Rules and Special Provisions this is the body of the bylaw and will deal with the what, how, if, and exception provisions. Incorporation of Schedules Schedules can be used to provide detail and can be readily swapped out and substituted more easily than changing multiple provisions of a bylaw. If a Schedule is used, the bylaw should refer to the schedule. Penalty Provisions - Any regulatory bylaw should include penalty provisions. Voluntary penalties should be specified where appropriate to make it easier to enforce the bylaw by issuing tickets. Transitional Clause if there is a transitional period, this should be specified. Repeal If the bylaw repeals an earlier bylaws (including bylaws amending the original bylaw), each bylaw repealed should be specified.

19 Structure of Bylaws Effective Date If the bylaw is to come into effect on a particular date, that date should be specified. Readings this set out information on the dates of each reading and, when required, particulars of voter approval or Ministerial approval. Signature The bylaw must have signatures of the Mayor and SAO.

20 Drafting Tips Rules of Interpretation Rules of statutory interpretation apply to interpreting bylaws. Some of those rules include: Different words mean different things Avoid using synonyms Not creative writing Every word has meaning A bylaw won t say something that doesn t need to be stated A bylaw won t repeat itself Modifiers will be deemed to change the meaning Costs will be different from reasonable costs

21 Drafting Tips Rules of Interpretation Unless defined, a word has its ordinary grammatical meaning in context, consistent with bylaw s objective and intention To express one thing is to exclude others A red car precludes a blue car The entire bylaw, including recitals, must be used to determine meaning The Interpretation Act will apply defines frequently used terms states how periods of time are calculated provides direction to courts on interpreting legislation (including bylaws).

22 Drafting Tips Effective Writing Use plain language Be consistent in use of words Use familiar words Avoid turning nouns into verbs Use shorter sentences Use present tense, third person singular Use sections, headings, and formatting to organize text clearly Avoid large blocks of text Avoid unnecessary modifiers Grammar matters Punctuation matters Use SHALL for mandatory things that MUST be done; use MAY to grant authority or discretion; use MAY NOT to prohibit an action Avoid acronyms and initials

23 Thanks! Acknowledgement to Government of Saskatchewan, Advisory Services and Municipal Relations Branch, Municipal Bylaws Presentation, May 2016