Article from Cox & Palmer--March-April 2016

NEW DECISION MAY LIMIT PROSECUTION OF HISTORICAL BY-LAW OFFENCES

How Strictly Should the Limitation Period for Offences by Applied?
 by Richard W. Norman, lawyer, Cox & Palmer

A recent decision of the Nova Scotia Provincial Court may limit municipalities’ ability to prosecute historical by-law violations.

In R. v. Bowers, (February 11, 2016, Dartmouth, N.S.P.C.), Bridgid Bowers and Michael Moore were charged under s. 369 of the Halifax Regional Municipality Charter with unlawfully having a garage on their property larger than 650 square feet. The garage was approximately 750 square feet.

The garage was built in 2006. No alterations had been made since that time. In 2014, HRM by-law enforcement attended at the property as a result of an anonymous complaint. The defendants were advised that they had not obtained a permit to build the garage. They then sought the permit, but were denied due to the size of the garage. They received a Notice to Comply ordering them to remove the garage or reduce it. They were subsequently charged.

At trial, the facts were largely uncontested. The defendants argued that the charges were brought outside of the two-year limitation period for prosecution of by-law violations (section 370A of the HRM Charter). The Municipal Crown argued that the offence was a continuing one and chargeable for every day which the non-compliant garage existed on the property, including up to the present day.

In his decision, Judge MacRury relied on a line of cases from Ontario for the proposition that the limitation period in these circumstances begins to run from the time the act of construction is completed. In this case, the completion of construction of the garage was the “commission of the offence”. The offence did not continue for every day that the non-compliant garage stayed on the property. Accordingly, the judge dismissed the charges against the defendants. It remains to be seen if HRM will appeal.

The decision has potential consequences not only for HRM’s prosecution of by-law violations outside of a two-year limitation period, but for other Nova Scotian municipalities too. The provisions of the HRM Charter at issue in this case are identical to those in the Municipal Government Act. Based on Judge MacRury’s interpretation of these provisions, simply being in a state of non-compliance will not be sufficient to constitute the continuing commission of an offence. Municipalities may need to prosecute by-law violations promptly or else seek changes to the law.

*Richard Norman of Cox & Palmer, practices in the areas of municipal and construction litigation and can be contacted at (902) 491-4128 or email at .