Do municipalities have a responsibility to set and enforce bylaws?
I’m currently taking a few courses in municipal law to better understand our bylaws and how we enforce them. I’m quickly discovering that, despite the fact that laws are written in the most exhaustively boring way possible in order to avoid any confusion, interpretation is still complicated. And while this question might seem a bit academic, it can have major real-world impacts in our communities.
Some recent examples
Back in 2022, Cobourg faced a motion proposing that the Town of Cobourg stop enforcing certain bylaws pertaining to loitering and camping in public parks, recognizing that these bylaws were being used almost entirely to evict homeless people who were attempting to shelter themselves in out-of-the-way areas. It had been argued, on both practical and humane grounds, that continuing to chase people out of the park wasn’t helpful if they had nowhere else to go, and was therefore also a waste of municipal resources. It did not propose changing the bylaw (I think that idea had previously been floated, and was not popular), but rather that the Town of Cobourg simply make a policy that suspended enforcement for a time. Municipal staff at the time argued that the municipality had a duty to enforce its bylaws, and that it could incur significant liability if they chose not to enforce those bylaws and anyone was hurt as a result. If a municipality has a bylaw, does it have to enforce it?
A few weeks ago, I received a call from a resident who is very frustrated at the amount of dog poop on our sidewalks here in Brighton. I assured them that I share their frustration, along with residents and governments of every city in the world; but that while we have bylaws requiring dog owners to stoop and scoop, and allow us to fine those who choose not to, the odds of catching a dog owner in the act are vanishingly small. Is a bylaw even valid if it can’t really be enforced?
The City of Barrie has a nuisance bylaw that prohibits panhandling, and threatens a fine of up to $5,000 for doing so. But the bylaw itself never actually mentions panhandling, only interfering with someone’s passage of a sidewalk, so “panhandling” is one particular application of a bylaw that should, in theory, apply to anyone blocking a sidewalk. And yet, their signs specifically say panhandling. Is a bylaw legitimate if it says one thing and means another, and functionally targets homeless people over others? And given that it is unlikely that any pandhandler, who almost by definition doesn’t have any money, will ever pay a fine, is it legitimate to have a bylaw whose enforcement is functionally impossible?
The Barrie Nuisance Bylaw
The Barrie bylaw came under fire last year because of a proposed change that would not only make it illegal for people to ask for something from passersby (i.e., panhandle, or in the words of the bylaw itself, “impede the passage of any pedestrian on any City sidewalk”), but would also have made it illegal to give them things like food or water on City property, effectively punishing the act of charity. The City backed down from that change after local charities voluntarily decided to stop giving away food and water on City property, but the public backlash drew my attention to the bylaw itself, and the fact that it never actually mentions panhandling.
The wording of the bylaw itself sounds universally applicable: don’t block the sidewalk. And yet, the signs specifically say “no panhandling,” interpreting the bylaw in a way that only applies to one class of people (since only the poorest of people tend to panhandle). Several other sections of the bylaw follow a similar pattern of saying one thing but not-so-subtly meaning another, such as referring to language or behaviour that is “offensive” or “aggressive” or “likely to be intimidating” without defining them.
Setting aside for a moment the sad feeling we should all get in the pit of our stomachs at the idea of a bylaw, threatening a fine and noted as ZERO TOLERANCE, to require people to be respectful; and setting aside whether it is possible to enforce a subjective standard for respectful behaviour; this bylaw seems to violate the rules of statutory interpretation — at least according to my Municipal Law textbook:
Statutory interpretation should be purposive. A meaning must be given to the words of the statute which is consistent with the objects and intent of the statute.
In the interpretation of a statute, the real meaning attached to the words must be arrived at by consideration of the mischief that the statute was intended to remedy.
AMCTO, Municipal Law Program, Unit 2: Municipal Torts, p. 16
If the signage expresses what the municipality intends to address, i.e. panhandling, they need to say so in the bylaw that the signage refers to. The trouble is, these bylaws indirectly outlaw not just “nuisance” behaviours, but effectively, certain people. Sure, anyone could be fined for blocking a sidewalk; but any homeless person who sits or lays down on a street because they have nowhere else to sit or lay down doesn’t have a lot of choice in the matter (there are also rules preventing them from loitering or camping in a public park). And sure, rules against aggressive or intimidating behaviour at a public library could be applied to even a wealthy resident who, for example, wants to protest a storytime event; but functionally, most complaints about intimidating behaviour in public places is aimed at homeless people, who may or may not be in distress or have some medical reason for their behaviour, or may simply trigger complaints by virtue of their smell and appearance (or the fact that they’re trying to lay down in a public place). Are any fines actually handed out by bylaw enforcement officers, the only response explicitly granted by the bylaw? Or is the bylaw used as a reason to push them off the property? If that’s how the bylaw is going to be used, then that’s how it’s actually intended to be used, and it needs to say so.
The Problem of Poop
But what about bylaws that can’t actually be enforced? If we have a bylaw, do we have to enforce it? If a resident sued the municipality for failing to enforce the stoop and scoop bylaw, would they have any grounds for doing so?
The long answer is very very long, so let’s stick with the short answer: mostly no.
A municipality has the ability to make bylaws, and can do so for any number of reasons, be they social or economic or political. There are certain laws that we must have, as dictated by the province, which requires us to enforce certain provincial legislation — such as the fact that we must have a building inspector, etc. Otherwise, we can make our own bylaws, or choose not to; there’s nothing forcing us to have a stoop and scoop bylaw, it’s up to the municipality’s discretion. And if we do have one, we have discretion over how it’s enforced: we get to set policy, within the framework of the law.
Some bylaws and provincial laws have very extensive policies that stem from them. To use the Building Code as an example again, the Act sets out many details about when and how inspections are to occur, what powers the inspector has to make an inspection or force a builder to comply, etc. The municipality still gets to set policy internally to give yet more detail about how they want to approach the matter, with some things even being up to the discretion of the inspector. Other bylaws are very simple: most bylaws note that the penalty is a fine that may be issued by the police or bylaw officer, and may be appealed, etc. Almost all bylaws function on a responsive basis: the bylaw officer doesn’t go out on patrol looking to catch a dog and their owner in the act of a poop-and-run, but they do respond to a written complaint from a resident.
In a long section I read today about Supreme Court decisions on the liability of municipalities, I learned about “the Anns Principle”, a reference to a British case that has formed the basis for what our Supreme Court calls the “Anns/Kamloops test” (after a case from Kamloops BC) that reasons that for a municipality to have liability under private law (i.e., in order for them to be successfully sued) they need two things:
(1) is there a sufficiently close relationship between the parties (the local authority and the person who has suffered the damage) so that, in the reasonable contemplation of the authority, carelessness on its part might cause damage to that person? If so,
(2) are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?
AMCTO, Municipal Law Program, Unit 2: Municipal Torts, p. 61
Put more simply, is the municipality actually in a position to have a duty of care to the person who has been wronged, and is there any limitation on that duty of care or responsibility?
The “Anns” part of the Anns/Kamloops test defines that duty of care: yes, a municipality has a duty of care to its residents, but not to an extent that makes them liable for the misdeeds of others. If someone breaks a law, the fact that the law exists and that timely policing of the law might have prevented the damage does not, in itself, mean that the damage is the municipality’s (or police’s) fault; the person who broke the law is still the responsible party. Police, and municipalities, have discretion on the policies that we enact, which we might enact for any number of reasons that have nothing to do with enforcement. We write a bylaw against leaving dog poop on the sidewalk for social reasons, to set a standard for residents and the cleanliness of our community; but it is up to us how to enforce it, with the law taking into account how much duty of care we have based on how serious the matter is. When it comes to building inspections, it may be a life-or-death matter and therefore the duty of care is high; but the worst case scenario with dog poop is probably just that we step in it, which is gross but not particularly dangerous. The duty of care is low because the stakes are low.
The duty of care is based on the notion that a reasonable person can see a level of responsibility that one party in a relationship might have for the other. In the case of a municipality, we have the ability to enforce bylaws that might save a life, therefore we should enforce them. But police still have the discretion to decide when to press charges or make an arrest and when not to; they are not liable for making the decision not to act, even if choosing not to act might result in some unforeseen harm. But if there’s a foreseeable harm, and the police (or municipality) simply fails to act, whether through indecision or the failure to engage in reasonable foresight by simply not having a really important bylaw or policy in place, they could be liable for negligence. So choosing not to act is very different from failing to act…unless you make failure to act into a policy.
The Choice to Not Enforce
Which brings us back to the 2022 dilemma that Cobourg faced: did they really have a duty to enforce their bylaws?
In reference to a situation in which the City of Toronto performed inadequate inspections on a home that later incurred damages due to shoddy work that should have been caught in an inspection, the Supreme Court reasoned:
…the City owed Mr. Ingles a duty of care to conduct an inspection of the renovations on their home and to exercise reasonable care in doing so, despite the fact that the building permit was obtained late. Therefore, the City could be found negligent if it ignored its own scheme and chose not to inspect the renovations. It could also be found negligent for conducting an inspection of the renovations without adequate care.
AMCTO, Municipal Law Program, Unit 2: Municipal Torts, p. 66
The City knew that the builder had started the renovation before applying for the building permit, but they had a policy that whenever they issued a permit they would do an inspection. The work had already progressed past the point where they could adequately inspect the work, so the inspector just took the builder’s word for it that it was done correctly. Because of this, the City was held partially liable for the shoddy work of a builder who knowingly applied late for a permit and then lied to the building inspector; the City’s duty of care required that they not only follow their own policy on doing inspections, but that they do an adequate inspection.
There are two keys here for us.
- First, the fact that they had a policy. Their internal policy said that they would perform an inspection when they issued a permit, and if they hadn’t bothered to follow that policy they could have been found negligent. So even though their policy wasn’t particularly good (it didn’t save them here), it would have been worse to have a policy and then not follow it.
- Second, they did an inadequate inspection. They might have the discretion to set policies on when and how they inspect buildings, but that discretion doesn’t cover how good of a job they can do at it. If a bylaw enforcement officer or building inspector or even police officer breaks the law or exercises negligence during their duties, they (or the municipality, depending) are still on the hook for those breaches.
So if Cobourg has a bylaw, but then makes a policy of not enforcing it, they’re in a very awkward place when it comes to liability. In that case, it would probably be better to not have the bylaw at all, since having the bylaw is a matter of the Town’s discretion (again, unless there’s reasonable foresight of harms that could be construed as resulting from the Town failing to meet a burden of care on the issue); or to have enforcement left vague enough to be a matter of discretion on the part of the bylaw enforcement officer. The best practice would probably be to have a bylaw that is demonstrably enforceable, but that makes explicit allowance for homeless residents (like this one from Vancouver).
Doing it Wrong
The biggest liability is at the operational level, rather than at the policy level. That is, whatever policies a municipality may or may not have, the worst thing they can do is to act in a way that is incorrect or inadequate. In the case of the Toronto building inspection above, it would have been better for them to have no policy at all than to have shown up for an inspection and then just taken the builder’s word for it that things had been done correctly (which they did, twice).
In the case of poop scooping, having a bylaw that we can’t adequately enforce (and especially one with such low stakes) isn’t necessarily a problem, at least in the eyes of the court; but if our bylaw enforcement officer did try to enforce it, and in doing so somehow infringed on the rights of the non-scooper, that’s much worse than doing nothing.
With regard to the Barrie nuisance bylaw above, removing homeless people from the street on the basis of the threat of levying a fine against them strikes me as a violation that they could likely sue over; but I’m not lawyer, and I’m still learning. But as I wrote last week, the Ontario Superior Court has ruled that evicting homeless people from encampments on public land violates their rights unless there’s a genuine alternative for them, so I expect that many people are looking more closely at how laws that are ostensibly universal might discriminate against the poor and unhoused.
So as municipalities continue to enforce their bylaws, they must take into account not only the risk of negligence from doing nothing, but also the negligence that comes from doing something poorly: if people are being evicted from public land, they need to have another place to go, their belongings cannot be seized, and their rights cannot otherwise be infringed upon. In the past such things were able to happen without anyone else noticing, while the courts focused on sorting such disputes out for those who could afford a lawyer. As these cases continue to come up through the work of legal aid clinics and catch the spotlight, municipalities might find themselves having to clarify bylaws to ensure that they’re meeting the needs of all residents, not just those with homes; and that they’re enforcing them in a way that doesn’t discriminate or deny a duty of care to certain classes of people.
Meanwhile, bylaw enforcement might not be the best way to clean up poop. Taiwan has a lottery, in which they give out entries to people who tag and turn in bags of poop; the winner gets a gold bar! Should Brighton follow suit?