David M. Sanders

The appellants appealed a decision dismissing their application under s. 440 of the Municipal Act, 2001, seeking to enforce a municipal fence by-law against the respondents.

The application judge had declined to intervene, finding the Municipality had articulable reasons for not enforcing the by-law.

The Court of Appeal agreed that the application judge erred in requiring proof of municipal unreasonableness or bad faith for a taxpayer to succeed under s. 440.

However, the appeal was dismissed because the appellants failed to provide sufficient evidence to establish a clear breach of the Fence By-law, particularly regarding how the by-law's definitions, which are tied to "street," applied to the respondents' property, which abuts private roads.

The applicants sought an order compelling the respondents to reduce the height of a fence to comply with a municipal by-law, after the municipality declined to enforce it.

The court considered whether it could intervene in a municipality's discretionary decision not to enforce a by-law.

Relying on established jurisprudence, the court found that it could only intervene if the municipality acted unreasonably or in bad faith.

As no such evidence was adduced, and the municipality provided articulable reasons for its decision, the application was dismissed.

The applicants successfully obtained an order declaring the respondents vexatious litigants.

The court then considered the applicants' request for costs.

The respondents did not file any responding costs submissions.

The court found that the respondents' underlying litigious conduct involved abuse of process and reprehensible conduct, which justified an elevated costs award.

The court awarded the applicants costs on a full indemnity basis, fixed at $10,000, noting that parties who successfully bring vexatious litigant applications perform a service for the court and other litigants.