North Central Local Government Management Association

Transcription

1 North Central Local Government Management Association Bylaw Drafting Workshop April 5, 2016 Don Lidstone, Q.C. Lidstone & Company Barristers and Solicitors

2 Introduction Powers and jurisdiction Council policy making Bylaw drafting process Bylaw enforcement drives bylaw content

3 Powers and Jurisdiction Municipalities not an order of government Constitution Act, 1867 Federal Provincial Creatures of provincial government Saloons/taverns, asylums, penitentiaries

4 Creatures of Province municipality creature of Province Only powers delegated by Province by Act/Reg Community Charter, Local Government Act, + over 100 statutes apply Community Charter: expanded powers, amplified by Supreme Court of Canada

5 Acts or Decisions Acts or Decisions only bylaw or resolution Valid act or decision by Council or by person delegated by bylaw bylaw or resolution Resolution unless Act says bylaw Bylaw or resolution only in meeting : regular, special, electronic

6 Bylaw Attacks Bylaws/resolutions may be attacked Validity ground for attack Constitutionality Charter of Rights and Freedoms Ultra vires Bad faith

7 Bylaw Attacks (cont d) ground for attack (cont d) Discrimination Uncertainty Fettering Delegation Statutory Procedural fairness

8 Bylaw Attacks (cont d) Council must comply with procedure Bylaws Remedial action Zoning/OCP public hearings/notice/consultation Procedural fairness Norman v Port Moody

9 Liability Liability Remove private law duties from bylaws Policy resolutions versus operational Transfer liabilities agreement, bylaw

10 Financial Matters Financial matters Section 191 Community Charter Powell River case Personal liability and disqualification of elected officials Financial officers defence s Legal opinion evidence of good faith

11 Overview Bylaw Drafting Introduction When Bylaw Required Bylaw Validity Interpretation Act Definitions Content of a Bylaw Bylaw Drafting Fundamentals

12 Overview (Cont d) Organization of a Bylaw Examples of Common Errors Smallville Sample Bylaws Property Nuisance Bylaw Short Term Capital Bylaw Revenue Anticipation Bylaw Temporary Borrowing Bylaw Public Hearing Notice Checklist

13 Introduction Bylaw effect parallel to provincial legislation S. 1 Interpretation Act bylaw is reg Garfield v. Toronto bylaw ME term for local custom

14 When Bylaw Required Local government can only act by Council or Board, except where valid delegation Bylaw is required when Act says bylaw is required S. 122(1) Community Charter Also, if act can be done by resolution, can also be done by bylaw

15 Bylaw Validity Overview of conditions: Corporation valid Vote not disqualified Valid meeting Quorum Statutory conditions precedent Power

16 Bylaw Validity (Cont d) S. 9 Community Charter concurrent authority S. 10 Community Charter meet or beat Reasonableness Certainty Open meeting

17 Bylaw Validity (Cont d) Unlawful Delegation Regina v. Horback Regina v. Sandler BUT delegation bylaw BUT statutory authority to delegate Fire Chief powers s. 66 CC Agreements contract administration

18 Bylaw Validity (Cont d) Reference to Council BC Electric v. Surrey

19 Bylaw Validity (Cont d) Repeating Statutory Power CIPREC v. Toronto Doman v. North Cowichan

20 Bylaw Validity (Cont d) Powers: Community Charter spheres of jurisdiction S. 4 - broad interpretation Nanaimo v. Rascal Trucking; Spraytech v. Hudson S. 8 (3) (8) spheres of jurisdiction S. 12 different modalities S. 15 licence/permit and code/standard Part 3 Additional Powers

21 Bylaw Validity (Cont d) Uncertainty (vagueness) OLDC v. Vernon Barthrop v. West Vancouver Examples

22 Bylaw Validity (Cont d) Procedural Requirements/Conditions precedent E.g., Public hearings Victoria v. Mackay Pitt Polder v. Pitt Meadows Compliance with procedure bylaw checklists

23 Interpretation Act Bylaw = regulation, so Act applies S. 9 preamble S. 11(1) - head note S. 14(1) Crown land S. 28 gender, plural, parts of speech S. 32 reference to BC/federal enactment as amended

24 Definitions Ordinary meaning or intention of legislators Dictionary meaning unless the context allows S. 12 Interpretation Act definitions apply to whole bylaw S. 29 definitions apply S. 40(1) application of municipal legislation

25 Content of a Bylaw Name of local government Title Subtitle to describe purpose Substantive purpose statement Preamble Enactment clause Citation Principles Definitions Interpretation

26 Content of a Bylaw (Cont d) Substantive provisions Severability clause Repeal Readings List of conditions Adoption Authentication Schedule

27 Bylaw Drafting Fundamentals Canadian Legislative Drafting Conventions Interpretation Act Each word Different words Ordinary meaning Plain language

28 Organization of a Bylaw BC Statutes

29 Statutory Interpretation What courts use to interpret legislation Common law rules known as principles of statutory interpretation Legislated rules established by the Interpretation Act and other legislation

30 Statutory Interpretation 3 key common law principles of statutory interpretation: 1. Every word has meaning 2. Different words mean different things 3. The modern approach

31 Every Word has Meaning Each word adds something that would not be there if the words were left out Legislation does not repeat itself Legislation does not say something that does not need to be said because this has already been done by other legislation, or because the common law does the same thing

32 Every Word Has Meaning costs reasonable costs reasonably incurred costs costs other than costs unreasonably incurred costs that the inspector considers reasonable

33 Different Words Different words mean different things Different words mean different things even when they would be synonyms of each other in non-legal writing The same words mean the same thing

34 Different Words promptly immediately with due dispatch at once in a timely fashion without delay without undue delay forthwith as soon as reasonably practicable as soon as reasonably possible

35 Modern Approach Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. E.A Driedger, The Construction of Statutes (2nd ed.1983), at p. 87

36 Modern Approach - Bylaws The words of a bylaw are to be read o in their entire context, o and in their grammatical and ordinary sense o harmoniously with the scheme of the bylaw, the object of the bylaw and the intention of the local government.

37 Definitions The grammatical and ordinary meaning may be changed by a statutory definition That is, an Act (or a bylaw) may define a word or expression in a manner that is different from the ordinary meaning. The change in meaning may be minor, or it may be substantive

38 Definitions (cont d) Interpretation Act - definitions for over 80 words apply to all legislation (including bylaws) Under section 40 of that Act, Community Charter and Local Government Act definitions apply to all enactments relating to municipal or regional district matters (including bylaws)

39 Plain Language What is plain language A document is in plain language if its users can find what they need, and understand what they find in as short a time as possible

40 Plain Language (Cont d) Minimizing barriers to understanding As examples, plain language uses logical organization from the audience perspective familiar words read rather than peruse short sentences average less than 25 words

41 Plain Language (cont d) Organize for the user Use familiar words Use short sentences Use headings and other pointers

42 Plain Language (cont d) Use familiar words money v. tender Avoid legalese provide v. furnish Use active words consider v. give consideration to

43 Bylaw Drafting Start - clear instructions: problem, background, objective specifics Who, What, Where, When, Why, How, If/If Not, But Write word-by-word every word has meaning, different words mean different things keep the context in mind Use basic legislative sentence as starting point Use plain language techniques

44 Public Hearing Notice Checklist Example of proactive/preventive approach

45 Bylaw Enforcement Bylaw Enforcement Options Creating Offences with Enforcement in Mind Avoiding Federal Criminal Jurisdiction Fines and Penalties

46 Bylaw Enforcement Options o Bylaw notice - bylaw notice adjudication system - Local Government Bylaw Notice Enforcement Act); o Municipal ticket information - Community Charter o o Long-form information - Offence Act Civil proceedings - BC Supreme Court

47 Bylaw Notice Simplest form of enforcement Bylaw notice - completed by a police or bylaw enforcement officer, delivered variety of ways, including in person or by being left on a vehicle Resolved by payment of fine or disputed at an adjudication hearing Not apply to bylaw contraventions involving firearms or motor vehicle speed limits

48 MTI Municipal ticket information is completed by a police or bylaw enforcement officer and must be served in person on the alleged offender May be resolved through payment of a fine and admission of guilt or may be disputed in provincial court Cannot be in relation to bylaw contraventions involving firearms or motor vehicle speed limits

49 Prosecution Offence Act long form information Meant for serious and complex bylaw contraventions Long-form information must be sworn in front of a Provincial Court justice who then issues a Summons which must be personally served on the alleged offender and requires that person s appearance at court

50 Civil Proceedings Section 274 Community Charter or common law injunction Most permanent form of bylaw enforcement Municipality may begin a proceeding in the BC Supreme Court to enforce or prevent or restrain the contravention of a bylaw No fines, but court costs can exceed fines

51 R v Badyal Storage of trucks v parking Check court precedents for words used when drafting

52 White v Comox-Strathcona No derelict vehicles in industrial zone Defined a unlicensed vehicle not housed within a garage vision and common sense all that required

53 Sundher v Surrey No vehicles in residential zone if exceed 5000 kg and licensed G.V.W. Reference to the G.V.W. licence merely a convenient way to identify the prohibited vehicles

54 Summary Drafting for Enforcement Use precise, objective definitions Consider existing licensing systems Straightforward ways to enforce are best Visual identification most effective since photographs prove offence

55 Entry on Property Community Charter s. 16 Arkinstall v. City of Surrey, 2010 BCCA 250 o Safety Standards Act, SBC 2003, c 39 authorizes warrantless entry and inspection of residences for regulatory purpose of inspecting electrical systems for safety risks related to marijuana grow-ops

56 Arkinstall (cont d) Court found: Valid provincial purpose high expectation of privacy in residence, and inspections constituted considerable intrusion; and Safety Standards Act provisions violated homeowner s s.8 Charter right to be free from unreasonable search and seizure

57 Fines fine or penalty should be proportional to offence If complex fine/penalty structure, this should be set out in table attached to the bylaw as a schedule

58 Fines (cont d) Offences dealt with by bylaw notice cannot impose a fine over $500 Offences dealt with by municipal ticket information cannot impose a fine exceeding $1000 Offences dealt with by long-form information cannot impose a fine exceeding $10,000 or a term of imprisonment exceeding 6 months Bylaws can impose a minimum or maximum fine for each day of a continuing offence

59 Lessons Learned Proactive preventive policies and procedures Checklists Pro forma documents Precedents Continuing education Policy versus operational New law Do it now/delegate