Zurich Insurance in Zoning By-Law Dispute

Justice MacKenzie of the Ontario Superior Court of Justice recently held that municipalities do not have any duty to pass noise by-laws, property standard by-laws or to enforce zoning by-laws, including site specific zoning by-laws.

The case involved a resident (Jack Williams) of the Township of Amaranth suing his neighbour for operating a rifle and pistol range on his property. Contributing to the ire of the plaintiff was the fact that his neighbour also operated an air strip on his property. The action claimed damages for nuisance and alleged the operations were being carried out in contravention of the site specific by-law approved by the Ontario Municipal Board in 1987.

Both the Township and the Province were also named as defendants. The Township, it was alleged, should have enforced the zoning by-law, which would have alleviated the plaintiff’s suffering. In addition, the plaintiff alleged that the Township should have passed noise control and property standard by-laws, the enforcement of which would also have helped.

The decision makes it clear that in Ontario there is no duty in these circumstances and that municipalities have discretion, unreviewable by the courts, to decide how they want to police their by-laws and whether they should pass by-laws to deal with matters that they have received a great many complaints about and which they know to be problematic. The decision also means that claims of this sort can be disposed of early in the action by means of summary judgement.

David Tang of Gowling, Strathy & Henderson in Toronto represented the Zurich Insurance, the insurer responsible for defending the Township. Geoff Mullin of Wardlaw, Mullin, Carter & Thwaites in Orangeville also represented the Township and Bruce Pugsley of Parkinson & Parkinson represented the plaintiff, Jack Williams.