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: