MEMORANDUM

TO Client
FROM Author
SUBJECT Enforcement of by-law prohibiting the alteration of city property

Question: Is the City’s demand for the removal of the paving of a portion of city property by a resident defendable where the City property was poorly maintained and constituted a danger to the road users.

Facts:

The property in question located at 123 Any Street, City, State, postal code (the “Property”) is a residential property owned by Smith. In front of the Property there is a municipal sidewalk that is separated from the road by a boulevard. The boulevard belongs to the City. Smith acquired the Property in 2012.

The boulevard has been covered by loose gravel without grass, earth or sod since the Property was purchased by Smith. Smith noticed that the boulevard was not being maintained by the City. The gravel on the boule4vard would from time to time spread onto the roadway, causing, among other things, cyclists to lose control and skate boarders to crash and be injured.

Smith decided to pave the boulevard at his own expense out of concern for the danger that was created by the disbursing gravel.

On May 1, 2014, the City issued a letter of complaint to Smith about the paving of the boulevard contrary to the City by-law. The City demanded that the paving of the boulevard in front of the Property be removed and be replaced with turf.

Smith met with representatives of the City. The parties researched the history of the boulevard in front of the Property and determined that there had not been turf on the site since at least 1980.

On September 15, 2014, Smith received a succession of letters which eventually resulted in an ultimatum to remove the paving of the boulevard by December 1, 2014 and to replace it with turf or the City would do it and add it to Smith’s taxes.

There are many other City owned boulevards on the road near the Property that have been paved but the City has not ordered the parties who put the paving on those sites to remove the paving.

Complaint:

Smith complains that he should not have to remove the paving from the boulevard unless the City makes demand that the other owners remove the paving that they installed on the City owned boulevard in front of their homes.

Analysis

Smith takes issue with the City selectively enforcing a by-law against him. He considers it discriminatory and unlawful. The basis of his position is that he should not have to modify the boulevard if Smith’s neighbours do not modify the boulevard.

Analysis

By-law 7.2 states that no one is allowed to alter City owned property except the City. The City can fix the property concerned and attach the cost of the work to the City taxes for the party who altered the City property...

The original advice that you received was that the City can selectively enforce the by-law against you. The City does not have to take action against your neighbours. Assuming that the by-law is legitimate, you should comply or be prepared for a significant cost if the City does the work and passes the cost on to you.

The law supports the City’s position. The 2012 decision of the Supreme Court in the recent case of T. Purchasers Ltd. V. The City sets out the law. The business owner (T) brought an application in court to prevent the enforcement of a by-law against it because 15 of 17 other occupants of the building were also acting contrary to the by-law but were not being prosecuted for the breach of the by-law.

The court reviewed the information and concluded that:

1. Par. 71 – The conduct of the City and the other tenants is not relevant. The only relevant issue was if the business owner had broken the by-law.
2. There is no principal of law that stands for Smith’s proposition that just because the City did not enforce the by-law against the others, then Smith cannot be subject to an action by the City for enforcement of the By-law.
3. Even if a municipality allows a breach of the by-law to continue or ignores it, they can still bring on a prosecution in the future without being stopped by their delay.

Summary

You do not have a strong case to challenge the City’s actions.

The City will modify the boulevard at your expense and you will have to pay for it as part of Smith’s taxes. There will be no defence for you. You should inform the City that you will alter the boulevard as they have requested and keep your exposure to costs to a minimum.