2682283 Ontario Ltd O/A Volcano Café and Lounge v. The Regional Municipality of Durham
OSHAWA COURT FILE NO.: CV-21-1407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
2682283 Ontario Ltd O/A Volcano Café and Lounge Applicant
– and –
The Regional Municipality of Durham Respondent
COUNSEL:
R.P. Zigler, for the Applicant
Sylvain Rouleau and Chantal deSereville, for the Respondent
HEARD: December 21, 2022
Ruling on Application
[1]. The applicant opened a hookah (water-pipe) lounge in Durham in February 2020. The applicant has brought an application to quash the the Region of Durham’s (“Region”) Smoking By-law No. 28-2019 (“By-law”) for illegality.
[2]. The By-law, inter alia, prohibits the smoking of any substance in enumerated public spaces, including casinos, bowling alleys, billiard halls, and hookah and vape lounges. The applicant seeks to quash the By-law or in the alternative, seeks a declaration that the prohibition against the use of lighted water-pipe or hookah s. 1.1 (as) is ultra vires the respondent. The applicant also submits that the By-law is illegal because after it was passed, changes were made to Schedule A of the By-law.
[3]. The respondent submits that the application is statute-barred because it was started outside the one-year period mandated by s.273 of the Municipal Act. The respondent further submits that the By-law is not ultra vires of the municipality and that this issue has been twice decided in the respondent’s favour by the Ontario Court of Appeal. Finally, the respondent notes that Schedule A was implemented to set the applicable fines. The set fines are approved by the RSJ and are a different legal instrument then the challenged By-law. The respondent asserts that the implementation of, or changes to, Schedule A has no effect on the validity of the By-law.
[4]. This application raises three issues:
a) Is the application statute barred by s.273(5) of the Municipal Act?
b) Is the By-law ultra vires and thus unconstitutional?
c) Do the subsequent changes to Schedule A invalidate the Region’s prior approval of the By-law?
[5]. For the reasons set out below I find that:
a) The request for relief under s.273 is statute-barred by operation of s. 273(5). However, the application also seeks a declaration pursuant to s. 14.05(3)(d) of the Rules of Civil Procedure. The request for a declaration is not statute-barred and the court has jurisdiction to hear the application;
b) The By-law is not ultra vires and is not unconstitutional. The By-law was not a disguised attempt by the respondent to regulate business. The purpose of the By-law was to protect public health and safety from the risks posed by waterpipe smoking, a purpose authorized under s. 11(2)(6) of the Municipal Act, 2001; and
c) The By-law was properly approved. The changes to the Schedule do not affect the validity of the By-law and simply result by the legislative scheme by which set fines are approved.
Factual overview
[6]. In July of 2018, the Health Protection Division of the Durham Region Health Department began public consultations for a new smoking by-law. On December 11, 2018, the Region’s Health Protection Division Staff, under the supervision of the Region’s Medical Officer of Health, Dr. Kyle, gave a presentation to the Region’s Health and Social Services Committee recommending the enactment of the By-law. In support of the new By-law, the presentation cited, amongst things, the health effects of vaping and the recent legalization of cannabis.
[7]. On April 4, 2019, Dr. Kyle and the Region’s Health Protection Division Staff finalized a report to the Region’s Health and Social Services Committee recommending the enactment of the new Regional Smoking and Vaping By-law. The report enclosed the proposed By-law. During its meeting that same day, the Committee recommended the adoption of the new Smoking and Vaping By-law to Regional Council. At its public meeting on April 24, 2019, Regional Council considered and enacted the By-law. The Region subsequently received the consent of four of its lower tier municipalities representing the majority of electors in the Region as required by s. 115(5) of the Municipal Act, 2001. The Region obtained the final consent by the Town of Whitby on June 24, 2019, on which date the By-law came into force and effect.
[8]. The By-law includes new requirements to address cannabis and the new forms of smoking and/or vaping. It includes an expanded list of prohibited places, including college and university campuses, regional and municipal buildings and surrounding properties.
[9]. The By-law prohibits the use of water pipes and hookahs in the same places where smoking is prohibited. The definition of the smoking in the By-law is:
"smoke or smoking" includes but is not limited to the carrying or holding of a lighted cigar, cigarette, pipe, water pipes, hookahs, medicinal cannabis, cannabis, or any other lighted or heated smoking product.
[10]. The By-law states that smoking is prohibited from the following places. It reads:
There shall be no smoking or vaping in, or within a 9m radius of any entrance, exit or air intake of, a public place, including but not limited to:
(a) the prohibited places contained within section 12(1) of the Smoke Free Ontario Act, 2017 S.O. 2017 c.26 or as set out in any subsequent legislation;
(b) common area;
(c) public washrooms;
(d) funeral home;
(e) racetrack;
(f) casino;
(g) bingo hall;
(h) billiard hall;
(i) bowling alley;
(j) hookah and vape lounges;
(k) restaurant;
(l) bar;
(m) patio;
(n) recreational facility;
(o) service line whether indoors or outdoors;
(p) shopping centres, plazas, and/or malls, and;
(q) public transport vehicle.
[11]. The applicant opened its business on February 21, 2020, after the By-law had come into effect. The applicant states that before finalizing his arrangements he asked his son-in-law to ascertain the legality of and any municipal requirements that had to be met before he could operate a hookah lounge. His son-in-law, Mr. Afzali, provided an affidavit. He swore that he was advised by a Durham employee that it was permissible to operate a lounge and no special license was required. He was not told of the By-law. I do not accept this evidence for the following reasons:
a. The respondent was able to find a May 31, 2019 call log from Mr. Afzali. According to this call log, Mr. Afzali asked about any permits required to open a new food premises. According to the log, Mr. Afzali was referred to online resources regarding food safety and advised of the basic process of opening a food premises in the Region. There is no indication in the call log that Mr. Afzali ever advised that he was seeking to open a hookah establishment in the Region.
b. The applicant was required to complete a questionnaire in August of 2019. On this questionnaire, the applicant indicated that tobacco would not be sold at the premises.
c. On February 14 and 21, 2020, Mr. Jack Le, a health inspector at the Region, conducted routine pre-operational and opening-day inspections at the applicant’s business located at 1755 Pickering Parkway in Pickering, Ontario. Despite inspecting every room at the site, Mr. Le did not observe any hookahs, waterpipes, shisha, tobacco, or related paraphernalia at the site during either of his inspections. Mr. Le was not told of any intention to allow hookah use at the site.
[12]. The city received numerous complaints that the applicant was violating the By-law. Compliance officers attended at the establishment and saw that hookah was being smoked. Further complaints led to further visits where compliance officers saw hookah being smoked in violation of the By-law, resulting in the issuance of numerous orders under the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 and charges laid under the By-law on September 29, 2020 and March 16, 2021. The applicant requested the adjournment of the provincial offences proceedings for the charges laid under the By-law pending the disposition of the within application.
Is the application statute barred by s.273(5) of the Municipal Act?
[13]. The respondent submits that the application is statute-barred because it was started outside of the one-year time limit set out by section 273(5) of the Municipal Act. I disagree.
[14]. Section 273 of the Municipal Act states:
Application to quash by-law
273 (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality. 2001, c. 25, s. 273 (1).
Definition
(2) In this section,
“by-law” includes an order or resolution. 2001, c. 25, s. 273 (2).
Inquiry
(3) If an application to quash alleges a contravention of subsection 90 (3) of
the Municipal Elections Act, 1996, the Superior Court of Justice may direct an inquiry into the alleged contravention to be held before an official examiner or a judge of the court, and the evidence of the witnesses in the inquiry shall be given under oath and shall form part of the evidence in the application to quash. 2001, c. 25, s. 273 (3).
Other cases
(4) The court may direct that nothing shall be done under the by-law until the application is disposed of. 2001, c. 25, s. 273 (4).
Timing
(5) An application to quash a by-law in whole or in part, subject to section 415, shall be made within one year after the passing of the by-law. 2001, c. 25, s. 273 (5).
[15]. There is no factual dispute that this application was commenced after the one-year time limit set out in s.273(5). There is no question that the original notice of application and the amended notice of application sought the quashing of the Bylaw. There is also no question that the original notice of application and the amended notice of application relied on s. 273. However, the applicant in both notice of applications has also relied on s.14.05 (3) of the Rules of Civil Procedure and sought a declaration. The Court of Appeal stated in Foley v. St. Marys (Town), 2016 ONCA 528 that an applicant is not restricted to attacking the by law only on the basis of s.273. In Foley, the applicant had restricted its application as an application under s.273 and was therefore subject to the one-year limitation period imposed by s.273(5). However, the Court stated at paras. 28-30:
To summarize, a party may commence proceedings to quash a bylaw under s. 273 of the Municipal Act, 2001 by way of application. Such a proceeding is captured by the statutory one year limitation period. Alternatively, a party may commence an application or an action for declaratory relief. Such a proceeding is distinct from the statutory remedy of quashing a bylaw under s. 273, and as such, is not captured by the one year limitation period.
Here, there is no question that this proceeding was framed as an application to quash under s. 273 of the Municipal Act, 2001. Both the title of the proceedings and the enumerated grounds support this conclusion. Accordingly, the one year limitation provision applies.
Moreover, this is not simply a technical analysis. On an application, a party need only respond to the case asserted against it. Had declaratory relief been sought, a different strategy may have ensued, including the development of a more detailed record and a request for a trial of the issue.
[16]. The applicant in this case has pursued both avenues. I agree that the application to quash pursuant to s.273 is caught by the limitation period but the application for a declaration pursuant to s.14.05 is not.
[17]. The respondent relies on Grain Farmers of Ontario v. Ontario Ministry of the Environment and Climate Change, 2016 ONCA 283, where the court stated at paras. 18 and 19:
Rule 14.05, as has often been noted, does not create jurisdiction but assumes it, and provides a means by which to engage that jurisdiction: Canada Post Corp. v. C.U.P.W. (1989), 1989 4337 (ON SC), 70 O.R. (2d) 394, [1989] O.J. No. 1583, 62 D.L.R. (4th) 724 (H.C.J.), at p. 397 O.R.; N. (J.) v. Durham (Regional Municipality) Police Service, [2012] O.J. No. 2809, 2012 ONCA 428, 284C.C.C. (3d) 500, at para. 16.
Accordingly, rule 14.05(3)(d) does not expand the court's jurisdiction to grant declaratory relief on the basis of a free-standing challenge to the wisdom or fairness of governmental action. The motion judge, as required by Rule 21, accepted the facts as pleaded: the regime will create significant, serious hardship for the farmers represented by GFO. But even if, as pleaded, the Regulation creates financial hardship, is futile, and provides little environmental benefit, neither the wisdom nor the efficacy of a regulation is a justiciable issue. Although couched in the language of rule 14.05(3)(d), the remedies that GFO is actually seeking are solely within the powers of the legislative and executive branches of government. [emphasis added]
[18]. However, the Court of Appeal also approved of the motion judge’s comments in this regard, at para. 23:
I agree entirely with the reasoning of the motion judge, at paras. 38-39:
It is not the job of this court to pronounce on the efficacy or wisdom of government policy absent the aforementioned constitutional or jurisdictional challenges, neither of which are made here: see Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources).
[19]. The applicant in this case is alleging that the By-law is unconstitutional.
Is the By-law ultra vires and thus unconstitutional?
[20]. The applicant acknowledges the binding authority of the Court of Appeal which clearly allows the respondent to regulate in this area; Ontario Inc. (Farouz Sheesha Café) v. Toronto (City), 2017 ONCA 484, 2386240 Ontario Inc. v. Mississauga (City), 2019 ONCA 413. However, the applicant submits that the respondent did so in the absence of a proper record supporting its assertion that the purpose of the By-law was for health and safety. The applicant submitted in its factum:
In this case, the pre-amble to the By-law and the legislative history as outlined in the material before Council, do not assist in determining the legislative purpose in prohibiting, in effect, the consumption of herbal shisha .But for that provision, the By-law essentially replicates the provisions and protections to the public of the Smoke Free Ontario Act There is nothing in the legislative record to suggest the water-pipe use presented a health problem in Durham, unlike the Toronto and Peel cases. There was no concern about the use of water-pipe lounges other than in hookah bars, and no evidence that it was taking place anywhere else. The By-law prohibition therefore has literally no effect, other than with respect to hookah lounges. Of special note, in his case, unlike the Toronto and Peel cases, the By-law specifically identified “hookah lounges” as a public place in which the use of water-pipe was prohibited. In the context of all of the above, the specific discussion about Hookah lounges at Council, and the extensive discussion of the Toronto and Peel By-laws at Council, are indicative, it is submitted of a legislative purpose to regulate hookah lounges. The Respondent has no authority to regulate businesses under the Municipal Act.
[21]. The applicant submits that the By-law is a disguised attempt to shut down hookah bars:
It is submitted on the record before this Court, the “dominant character” of the By-law is business regulation. As stated, the Respondent has no general power to regulate businesses under the Municipal Act.
[22]. I disagree. In my view, there is no evidence that the respondent was, through the By-law, trying to regulate business or shut down hookah lounges. I find that the respondent in enacting the By-law fell within its statutory authority under s.11(2)6 of the Municipal Act, 2001, which reads:
11 (1) A lower-tier municipality and an upper-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public, subject to the rules set out in subsection (4). 2006, c. 32, Sched. A, s. 8.
By-laws
(2) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting the following matters:
- Health, safety and well-being of persons
[23]. In my view, the true purpose of the By-law was to protect public health and safety from the risks posed by smoking, including waterpipe smoking, a purpose authorized under s. 11(2)(6) of the Municipal Act, 2001.
[24]. The applicant submitted in oral argument that the respondent did not create a proper record to demonstrate that the By-law was necessary to protect the health of the public. Rather, the applicant submits that the respondent merely copied Toronto and Peel’s By-law. I disagree. The respondent conducted its own analysis of the health concerns. In addition, they were aware of the research that Toronto and Peel relied on in support of their bylaws. Dr. Kyle explained that the new By-law was necessary to deal with vaping and other types of smoking. Dr. Kyle also said that he was aware of the research conducted by Peel and Toronto in this area. As stated by Dr. Kyle:
The Previous Smoking By-law regulated the smoking of tobacco but was ill-equipped to deal with vaping or other types of smoking. For instance, the Previous Smoking By-law did not address any non-tobacco herbal mixtures, such as shisha, nor did it address the devices used to smoke shisha, namely hookahs or waterpipes. I was informed by the Region’s former manager of Health Protection, Ross MacEachern, that it was difficult to determine from the naked eye or nose whether a hookah contained pure herbal product or tobacco or a combination of them. According to Mr. MacEachern, the consequence of this ambiguity was that enforcement of the Previous Smoking By-law with respect to shisha was often inefficient and cumbersome as additional testing to determine tobacco content was sometimes required.
In addition, since the last amendment to the Previous Smoking By-law in 2007, there have been several changes to federal, provincial, and municipal legislation that necessitated an updated smoking and vaping by-law in the Region. For instance, in 2016, both the City of Toronto and the Regional Municipality of Peel enacted by-laws regulating the use of hookahs or water pipes. I had knowledge of these legislative changes in Toronto and Peel, including the subsequent unsuccessful legal challenges brought against those by-laws. I am also aware that the research compiled and relied on by Toronto and Peel in enacting their respective smoking by-laws confirms the well-established and widely accepted understanding in the medical community that hookah smoking, whether with tobacco or non-tobacco products, can be harmful to human health. [emphasis added]
[25]. Dr. Kyle further stated that he and the Region’s Health Protection Division staff wanted to ensure that the new By-law extended occupational health and safety protections to hookah establishment employees, who, Dr. Kyle opined, are at risk of second-hand smoke in those establishments.
[26]. The applicant argues that the By-law can be distinguished from the ones in Peel and Toronto because Dr. Kyle testified in cross-examination that he was unaware of the prevalence of hookah being used in any place in Durham, other than in hookah lounges. The applicant argues that:
In the case at Bar however Dr. Kyle disclaimed any “prophylactic” purpose for the Bylaw. He confirmed that the spread of hooking smoking beyond lounges was a not consideration for the passing of the By-law, nor does any such purpose appear in the legislative record. On the record before the Court, the purpose and effect of the Durham By-law are different than Peel.
[27]. The applicant concedes that if the By-law is truly a By-law about smoking, then it was properly made, but in reality, it was a disguised attempt to shut down hookah lounges because it is only in those areas where people smoke hookah and waterpipes. Again, I disagree. Dr. Kyle’s evidence makes it clear that the research showed that smoking of any kind, including smoking hookah, poses harm to human health. He summarized his opinion at paragraph 38 of his affidavit:
In my role as MOH, I am mandated to protect and promote the health of the residents residing in my health unit, and I recommended the enactment of the Regional Smoking and Vaping By-law in furtherance of this objective. It is my professional opinion as the Region’s MOH that there were compelling public health and occupational health and safety considerations that necessitated the adoption of the By-law by Regional Council, and which resulted in the decisions by Regional Council, as well as the Councils of five local municipalities within the Region, to adopt and consent to the By-law, respectively. It is well-established and widely accepted in the medical community that smoking of any substance poses harms to human health. [emphasis added]
[28]. The applicant wrote in his factum that “Unlike the Toronto and Peel By-law, the Durham by-law is not a “water wipe By-law”. He is correct but, with respect, I do not see how that assists the applicant’s argument that the By-law is about regulating business. The By-law is about smoking. The pre-amble reads:
Being a by-law to regulate smoking and vaping in public places and in the workplace. Whereas the Municipal Act, 2001, S.O. 2001 c.25 as amended (the "Municipal Act') authorizes municipalities to pass by-laws respecting health, safety and well-being of persons within their jurisdiction;
And whereas subsection 115(5) of the Municipal Act provides that a regional municipality may pass a by-law regarding the smoking of tobacco or cannabis if a majority of the councils of the lower-tier municipalities within the regional municipality representing a majority of the population of the regional municipality approve the exercise of such powers;
[29]. In my view the pre-amble in conjunction with the evidence of Dr. Kyle shows that the purpose of the By-law was for the Region to modernize its rules to ensure that it address the health consequences posed by all the various types of smoking and not to regulate businesses.
[30]. The courts have repeatedly found that business impacts, because they are often necessary incidents to the powers delegated to municipalities by legislation, are not determinative of the purpose of municipal legislation. Even in the Peel case, where the By-law applied exclusively to hookah establishments, the Court of Appeal found that the effect on hookah businesses in that case was merely incidental to Peel’s permissible exercise of its jurisdiction to regulate health and safety; Ontario Inc. (Farouz Sheesha Café) v. Toronto (City) at para. 15, 2386240 Ontario Inc. v. Mississauga (City), at para. 25.
[31]. The applicant has a specific complaint with respect to s. 7.1 of the By-law. The section states:
If any provision of this by-law conflicts with any Act, regulation or other municipal by-law, the provision that is the most restrictive shall prevail.
[32]. I will deal briefly with this issue. I agree with the respondent. Section 7.1 is not ultra vires for the following reasons:
a) As it relates to cannabis and tobacco, s. 7.1 merely mirrors section 115(10) of the Municipal Act, 2001;
b) Nothing prevents a municipality from duplicating provincial legislation where it otherwise has jurisdiction to legislate on an issue; Stelmach Project Management Ltd. v. Kingston (City), 2021 ONSC 4343 at paras 83-84;
c) A municipal by-law is not void or ineffective merely because it imposes stricter standards of control than those imposed by a provincial statute. As stated by the majority in 14957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 SCR 241 at para. 37:
…He added, at p. 233, the important point that “a by-law is not void or ineffective merely because it ‘enhances’ the statutory scheme of regulation by imposing higher standards of control than those in the related statute. This is not conflict or incompatibility per se” (quoting Township of Uxbridge v. Timber Bros. Sand & Gravel Ltd. (1975), 1975 507 (ON CA), 7 O.R. (2d) 484 (C.A.)). See also P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 353 (“In some cases, the courts have held that the provincial statute does not imply full repeal of the municipal power. The municipality retains its authority as long as there is no conflict with provincial legislation. It may be more demanding than the province, but not less so”);
d) Section 7.1 of the By-law is only activated if a substantive conflict arises between the By-law and a provincial or federal legislative instrument. No such conflict has been alleged. Should a conflict within the meaning of section 14 of the Municipal Act, 2001 arise, section 14 would render the offending provision inoperative to the extent of the conflict.
Do the subsequent changes to Schedule A invalidate the Region’s prior approval of the By-law?
[33]. Section 11.1 of the By-law states that the By-law shall come into force and effect once a “triple majority” has been obtained in accordance with s. 115(5) of the Municipal Act, 2001. The By-law came into force and effect on June 24, 2019, upon the Town of Whitby’s consent to the By-law. There is no dispute that in this respect, that By-law received the required triple majority.
[34]. The applicant has submitted that the By-law should be quashed because the attached Schedule A was subsequently changed. Therefore, the applicant argues, because the By-law was altered it was never properly approved. The applicant seeks:
An order or Declaration that the By-law as approved by the Council of the Respondent was subsequently altered by staff of the Respondent on at least two occasions.
An Order or Declaration that the By-law has not come into effect because it has not obtained a triple majority in accordance withs. 115 (5) of the Municipal Act 2001 S.O. c. 25 ("the Municipal Act"); or alternatively, the current version of the By-law has not obtained a triple majority;
[35]. I disagree with the applicant. There is no dispute that the By-law obtained the requisite triple majority. There is no dispute that the By-law itself has not been changed. There is also no dispute that Schedule A which was attached to the By-law when it was passed has been changed. For the reasons set out below, in my view, the changes to Schedule A do not affect the validity of the By-law and simply result from the legislative scheme by which set fines are approved.
[36]. Section 10 of the By-law is entitled, “Set Fines”. Section 10.1 states:
Set fines for contraventions of this by-law shall be in accordance with Schedule A to this by-law, attached hereto and forming part of this by-law.
[37]. In this case, on February 25, 2020, the Regional Senior Justice of the Ontario Court of Justice (RSJ) specified the Set Fines for certain offences under the By-law in the form of a revised Schedule “A”. On June 20, 2022, the RSJ approved a new version of Schedule “A” superseding that which was approved by the RSJ on February 25, 2020. The applicant has screamed foul because the schedule does not match the one that was attached to the By-law that was approved by Council in 2019.
[38]. In my view, nothing untoward has taken place. Rather, the cumbersome process by which set fines are approved simply result from the scheme set out in s. section 91.1(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33. The section states:
(2) The regional senior judge of the Ontario Court of Justice for a region may specify an amount as the set fine for the purpose of proceedings under Part I or II for an offence under a by-law of a municipality in the region. 2017, c. 34, Sched. 35, s. 17.
[39]. The effect of the section is twofold:
It is the RSJ who has the ability to approve the amount of a set fine. The set fines are not determined by the municipality;
The RSJ can only determine a set fine where the municipality has created an offence under the By-law.
[40]. It is impossible for the municipality to approve of a By-law with determined set fines for offences under Part 1 and Part 2, as only the RSJ has the authority to determine the set fines. Again, the municipality has no jurisdiction to approve of a set fine. It is equally impossible for the RSJ to determine the set fines until the municipality has approved of a By-law that carried with it a provincial offence. In this case, the municipality approved the creation of an offence if the By-law if violated. Section 6.1 states:
Any person who contravenes any provision of this by-law is guilty of an offence and upon conviction is liable to a fine of not more than $5,000.00 exclusive of costs, as provided in the Provincial Offences Act, R.S.O. 1990, c. P. 33, as amended.
[41]. The attached Schedule A can best be described as a stakeholder for the possible creation of set fines for offences under Part 1 of the Provincial Offences Act, if approved by the RSJ. I note that Part III proceedings can be brought with or without the existence of Set Fines. Including a schedule, in my view is important, even when that schedule cannot be approved by council as it informs the public that there could be Part 1 offences.
[42]. In my view, a reading of the Provincial Offences Act and the Municipal Act explains the changes to Schedule A. The RSJ’s Schedule “A”s are court orders made pursuant to the statutory authority created by s. 91.1(2) of the Provincial Offences Act. The By-law, on the other hand, was enacted by the Region pursuant to sections 11 and 115 of the Municipal Act, 2001, S.O. 2001, c. 25. I agree with the respondent that the RSJ’s orders did not have the effect of amending the By-law.
[43]. The applicant, in essence, has submitted that the council that approved of the By-law was duped because there is no evidence that they understood that Schedule A would be changed. However, municipal by-laws benefit from a presumption of validity. As stated by the Court of Appeal in Clublink Corporation ULC v. Oakville (Town), 2019 ONCA 827 at para 36:
Further, as I mention above, municipal by-laws and resolutions benefit from a presumption of validity. The onus is on the applicant to prove that the enactment falls outside of the municipality's powers: Ontario Restaurant, at para. 3. Courts require a "clear demonstration" before concluding a municipality's decision was made without jurisdiction: Friends of Lansdowne, at para. 14.
[44]. The applicant has not submitted any evidence to rebut the presumption. I agree with the following submissions by the respondent:
The Applicant has provided no evidence that council was not aware of its inability to enact set fines for Part I matters. It is respectfully submitted that this Court can take judicial notice that the Region is a sophisticated municipality that enacts by-laws on a routine basis. There is no evidence that council was not aware that Schedule “A” would be altered after it passed the By-law.
[45]. In the event that I am wrong and that the subsequent changes to Schedule A make them invalid, then in my view, the remedy is not to strike down the By-law, but to delete section 10.1 and sever it from the rest of the By-law pursuant to s. 8.1 of the By-law which states:
If any section of this by-law or parts thereof are found by any Court to be illegal or beyond the power of the Region to enact, such section or parts thereof shall be deemed to be severable and all other sections or parts of this by-law shall be deemed to be separate and independent therefrom and to be enacted as such.
[46]. Schedule “A” does not in any way affect the substantive prohibitions, obligations, or offences created by the By-law. Schedule “A” merely consists of a list of set fines corresponding to the offences created in the By-law. Schedule “A” does not create the offences themselves. If Schedule A is struck down, the respondent would, of course, be allowed to enforce the offences created by the By-law under Part III of the Provincial Offences Act.
Conclusion
[47]. The application is dismissed. In the event that the parties cannot agree on costs, the respondent shall provide its bill of costs and written submissions, totaling not more than three pages, within 15 days of the release of these reasons. The applicant shall provide its bill of costs and written submissions, totaling not more than three pages within 20 days of the release of these reasons. The respondent may file reply, within 25 days, totaling not more than one page.
Justice H. Leibovich
Released: February 13, 2023