When a municipality seeks injunctive relief to restrain the breach of a by-law pursuant to section 440 of the Municipal Act, 2001, the municipality enjoys different rights versus a party seeking standard injunctive relief flowing from the equitable jurisdiction of the Superior Court of Justice.
One specific distinction is the legal test to be applied. With limited exceptions, a municipality generally need not satisfy all three (3) steps of the RJR-MacDonald test when seeking a ‘statutory’ section 440 injunction.
Section 440 of the Municipal Act, 2001 sets out the statutory grant of authority empowering the Superior Court of Justice to restrain the contravention of municipal by-laws on an interim, interlocutory, or permanent basis:
440 If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.
While section 440 of the Municipal Act, 2001 constitutes a specific codification of the equitable injunction power, the normal injunction test generally does not apply when a municipality seeks to restrain a by-law violation on an interim, interlocutory, or permanent basis. In such instances, the ‘balance of convenience’ & ‘irreparable harm’ factors are generally not relevant:
The Township of Amaranth v. Ramdas, 2020 ONSC 2428 (CanLII):
[54] … the Township seeks a statutory injunction pursuant to s. 440 of the Municipal Act, 2001. In seeking a statutory interim injunction, irreparable harm and balance of convenience do not need to be considered. This is because the public authority is presumed to be acting in the best interests of the public
Geil Style Enterprises Inc. v. Corporation of the Township of North Dumfries, 2022 ONSC 1636 (CanLII):
[30] There is ample authority for the principle that a municipality seeking to enforce a bylaw is not required to demonstrate irreparable harm or satisfy the court that the balance of convenience is in its favour…
Regional Municipality of York v. DiBlasi, 2014 ONSC 3259 (CanLII):
[62] In seeking a statutory injunction, the factors that would normally be considered in an application for an equitable injunction do not apply. Irreparable harm and balance of convenience do not need to be considered because the public authority is presumed to be acting in the best interests of the public and a breach of the law is considered to be irreparable harm to the public interest.[8]
The Corporation of the Township of Schreiber v. Figliomeni et al., 2018 CanLII 64061 (ON SC):
[34] A municipality also need not show irreparable harm or that an injunction is favoured in a balance of convenience in the same manner as a private person seeking injunctive relief, but only a clear violation of the by-law, which is presumed to be against the public interest for sufficiency of both the requirements of irreparable harm and the balance of convenience: Ottawa (City) v. Barrymore’s Inc., supra, at paras. 65-71; Regional Municipality of York v. DiBlasi, 2014 ONSC 3259, at paras. 62-64.
[35] These principles apply equally to interlocutory and permanent municipal injunction requests made pursuant to s. 440 of the Act, and the effect of the relief upon the Respondents is irrelevant: Township of Uxbridge v. Corbar Holdings Inc. et al., 2012 ONSC 3527, at paras. 41-42; Suprun v. Bryla, 2007 CanLII 56089 (ONSC), at paras. 66-74.
Furthermore, once the municipality has established a breach of the by-law in question, the Superior Court of Justice has little discretion. Namely, the Superior Court of Justice will only refuse to issue the statutory section 440 injunction in exceptional circumstances, and the onus for showing said exceptional circumstances rests with the property owner, not the municipality.
Leamington (Municipality) v. Ramirez, 2023 ONCA 334 (CanLII) [leave to SCC denied]:
[22] As this court instructed in Newcastle Recycling Ltd. v. Clarington (Municipality), 2005 CanLII 46384 (ON CA), 204 O.A.C. 389 (C.A.), at para. 32, “Where a municipal authority seeks an injunction to enforce a bylaw which it establishes is being breached, the courts will refuse the application only in exceptional circumstances.”
The Corporation of the Township of South Frontenac and 360788 Ontario Ltd., 2018 ONSC 1344 (CanLII):
[18] It is entitled to injunctive relief because section 440 of the Municipal Act, 2001, S.O. 2001, c. 25 provides this as a statutory remedy and, due to the public interest in the enforcement of the law, an injunction to restrain future breaches is appropriate. There is a residual discretion not to grant this relief but that should only be exercised in exceptional circumstances and the burden of proving such circumstances is on 360778 Ontario.
However, there appears to be some disagreement at the Superior Court of Justice as to the test for establishing the breach of the by-law when seeking interim or interlocutory injunctive relief: i.e., the test for the threshold of the ‘serious issue to be tried’.
There is considerable caselaw wherein the Superior Court of Justice stating that municipalities should be held to the higher “strong prima facie case” when seeking a statutory section 440 injunction:
Automotive Parts Manufacturers’ Association v. Boak, 2022 ONSC 1001 (CanLII):
[60] In this modified test, there is no need for the City to prove that it will suffer irreparable harm and there is no need to consider the balance of convenience because the public authority is presumed to be acting in the best interests of the public and a breach of the law is considered to be irreparable harm to the public interest: see The Township of Amaranth, at para. 54. However, in this modified test, the first criteria (serious issue to be tried) should be higher than the standard required when all three criteria are considered under the RJR-MacDonald test. A strong prima facie case must be established: Hamilton (City), at para. 37.
However, there is also recent caselaw wherein the Superior Court of Justice has determined that the “strong prima facie case” standard should not apply in all circumstances. Rather, as per RJR-MacDonald, the higher standard should only apply where the injunction will, in effect, constitute a final determination: e.g., where it will destroy the respondent’s business or lead to the destruction of property):
Geil Style Enterprises Inc. v. Corporation of the Township of North Dumfries, 2022 ONSC 1636 (CanLII):
[21] The plaintiffs cite Tay (Township) v. Fan, 2018 ONSC 6375 as an example of a case where a municipality sought an interlocutory injunction to prevent the continued contravention of a zoning bylaw and the court found that the “strong prima facie case” threshold applied, on the basis that the granting of the interlocutory injunction would be tantamount to a final order (see para. 29)…
[22] I am unable to accept this submission. In Tay (Township) the municipality sought an injunction where the respondents were growing cannabis in an area not zoned for that type of activity. Boswell, J. noted the respondents’ position that an injunction would completely shut down their growing operations, requiring them to destroy their plants and relocate (see para. 27).
[23] There is no evidence before the Court in the case at bar that the granting of an injunction will require Geil Enterprises to destroy or dispose of any property or relocate pending the determination of the Geil Action on its merits on summary judgment or at trial. Moreover, there is nothing to suggest that the injunction will have run its course by the time the case reaches trial. As indicated, the Township’s summary judgment motion, which will determine whether there is a genuine issue requiring a trial in the Geil Action, is scheduled to be heard in July of this year.
[24] Tay Township does not stand for the proposition that the “strong prima facie case” standard applies in every case in which a municipality seeks interlocutory injunctive relief under section 440 of the Municipal Act, 2001.
[25] I find that the first prong of the RJR-MacDonald test, namely whether there is a “serious question to be tried” is applicable in the case at bar.
[26] As noted by Boswell, J. at para. 6 of Tay Township the "serious issue to be tried" threshold is very low as it ordinarily requires an applicant to establish little more than that the case is not frivolous or vexatious.
While the debate surrounding the threshold for the case to be established will be relevant in injunction proceedings relating to the interpretation of a by-law, they are likely not as germane where the requirements of a by-law are clear, and the property owner is clearly/flagrantly in violation of same.
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