Olivio Fatigati

The appellant appealed an order setting aside a Justice of the Peace's decision to quash a Certificate of Offence.

The Court of Appeal dismissed the appeal, finding that the Justice of the Peace committed a jurisdictional error by failing to properly consider the factors mandated by s. 34(4) of the Provincial Offences Act and relevant case law when deciding whether to amend the certificate.

Instead, the Justice of the Peace improperly based her decision on her view of the fairness of the legislative scheme under s. 9 of the Act.

The appellant challenged a municipal licensing bylaw regulating body rub parlours, arguing it had the effect of virtually prohibiting them due to a lack of available commercial space meeting the bylaw's criteria.

The application judge dismissed the challenge, finding the municipality properly assessed relocation opportunities and was not responsible for market conditions or landlords' unwillingness to lease to such businesses.

The Court of Appeal upheld the decision, confirming that the municipality had no legal obligation to ensure favourable market conditions before exercising its statutory authority to regulate.