By Stuart Gordon, Student-At-Law

In Ontario, municipalities are governed by the Municipal Act, 2001.  This legislation outlines the powers granted to municipalities and affects the types of by-laws they may pass.  The Municipal Act also provides a mechanism under section 273 through which one may apply to quash a by-law for ‘illegality’.  In Singh v. Corporation of the City of Brampton, 2022 ONSC 4059, Councillor Singh of Brampton City Council did that just that and succeeded in quashing By-law 129A-2022.

Facts

On May 31, 2022, prior to voting day in the Ontario provincial election, Brampton City Council passed By-law 129A-2022, confirming Resolution C168-2022.  These provisions were passed in anticipation of then City Councillor Williams winning her seat in the Ontario legislature and creating a vacancy on Brampton City Council.  The Resolution had the effect of conditionally appointing former City and Regional Councillor Elaine Moore to fill the anticipated vacancy, should it be created.

During debate of the Resolution, both the City Solicitor and the City Clerk advised that what the Resolution sought to do was not in compliance with statutory by-law requirements.  Despite their warning, Council passed the Resolution by a vote of 6 to 5.  Council then passed By-law 129A-2022 confirming the Resolution.

As predicted, on June 2, 2022, then Councillor Williams won her riding in the Provincial election, creating the anticipated vacancy on Brampton City Council. 

On June 6, Elaine Moore provided her consent to the City Clerk to fill the Council vacancy.

Then on June 7, MPP Williams provided her resignation as City Councillor, to be effective the following day. 

What is ‘Illegality’?

Any person can make an application to the Ontario Superior Court of Justice to quash a municipal by-law, in whole or in part, for illegality under section 273 of the Municipal Act, 2001.  Section 273 defines ‘By-law’ to also include a resolution passed by city council.  An application to quash a by-law must be made within a year the by-law was passed by city council.

“Illegality” has a broad definition and means any form of non-compliance with the law.  Municipalities are empowered to operate and pass by-laws by the Municipal Act.  A city cannot pass a by-law which contravenes the power granted to it by the Municipal Act.  Essentially, when a city seeks to utilize powers beyond those expressly conferred to municipalities by the Province when passing a by-law, a court may exercise its discretion and quash the by-law.  However, courts require a “clear demonstration” that a by-law is illegal before they may quash it.  

Factors that a court will consider before declaring a by-law illegal are:

• The nature of the by-law,
• The seriousness of the illegality,
• The consequences of the illegality
• Delay and mootness

The Municipal Act prevents a court from interfering with legal by-laws.  Specifically, section 272 insulates by-laws passed in good faith from review by courts based on any alleged unreasonableness of the by-law.    

Determining whether a by-law is illegal requires a court to interpret the Municipal Act and asses whether the powers conferred to municipalities allow the by-law at issue to be passed.

Municipal Powers

The Municipal Act says that a municipality has the power to provide “good government” to its local jurisdiction.  With that mandate, municipal powers are to be interpreted broadly so as to achieve the “legitimate interests” of a city.  The Municipal Act also legislates that where there is ambiguity concerning whether a municipality has a particular power, such ambiguity is to be resolved in favour of municipal powers which were in existence before the Act came into force in 2001.

Notably, municipal powers include:

• The powers of natural person
• The power to provide anything necessary or desirable for the public (single-tier municipalities)
• The power to pass by-laws affecting a municipal governance structure

However, where legislation expressly limits municipal power, other municipal powers cannot then be interpreted broadly to circumvent any prescribed limitations.

Was Brampton City By-law 129A-2022 Illegal?

The Municipal Act places limits on when a city may declare a council vacancy.  Acceptable occasions include when a councillor becomes disqualified or resigns from office. 

In Singh v. Corporation of the City of Brampton, the Court found that the Municipal Act creates two prerequisites which must be satisfied before a municipality may appoint an interim-councillor.

• A vacancy must exist in accordance with one or multiple of the specific scenarios outlined in the Act, and;

(2) City council must declare the vacancy at its next meeting after the vacancy is created; 

The Court also inferred that the purpose of these requirements is to prevent current city councillors from voting for their interim-replacements in advance of resigning from council. 

Due to the fact that MPP Williams only provided her resignation on June 7, there was no vacancy on Brampton City Council when it passed Resolution C168-2022 pre-emptively filling a non-vacant seat. 

Based on there not having been a vacancy when they were passed, the Court quashed the Resolution and By-law for illegality because they do not conform to the powers granted to municipalities from the Province. 

Summary

Section 273 of the Municipal Act, 2001 offers a statutory mechanism through which anyone can apply to quash a by-law for illegality.  Illegality has a broad definition which may be distilled to any municipal action that is not rooted in the powers granted to municipalities by the Province. 

Councillor Singh of Brampton City Council was successful at quashing a Resolution and By-law purporting to pre-emptively confirm a person to Brampton City Council without first having; (1) an existing vacancy on City Council and (2) a declaration of said vacancy by City Council.