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.
