By Troy DeSouza, Dominion GovLaw LLP
Each time a bylaw is created or amended, a local government must be sure it has clear authority to regulate or prohibit over the subject matter. Otherwise, a local government can risk having a part or the whole of a bylaw being declared invalid by a court. Poorly written bylaws may still be supported but defending bylaw mistakes in court can be risky and costly. To minimize this risk, local government staff should plan ahead and ensure that draft bylaws are reviewed by a lawyer before they are enacted.
Copying and pasting from other bylaws is an acceptable practice.
Bad idea. While copying and pasting is seen by some as a time and cost saver, relying on other local government bylaws without considering Council/Board intentions, your community’s specific needs, and jurisdiction is ill-advised. Moreover, this practice can lead to increased legal costs in fixing mistakes, public embarrassment, and lack of enforceability in courts.
Confirming statutory or case law authority can be done later.
Not recommended. Confirming authority is an ongoing part of bylaw drafting. Each time a bylaw is amended, you must ensure your local government has clear authority to regulate or prohibit over a certain issue (as was a key question in West Kelowna (District) v. Newcombe, 2013 BCSC 1411 for the issue of water lot zoning). Otherwise, you risk having a part or the whole of a bylaw being declared invalid.
Errors or omissions in a bylaw will be upheld in court.
Possibly, but it may cost you. Every word in a piece of legislation should have a specific purpose and will be interpreted as such.1 While poorly written bylaws may still be supported (as was the case in Okanagan Land Development Corp. v. Vernon (City), 2012 BCCA 332), defending bylaw mistakes in court is risky and costly. Time and effort are better spent at the start crafting a well-drafted bylaw.
Format and layout are not important.
Not really. The way a bylaw is structured is a key part to its readability. If the layout renders the content too confusing to be reasonably understood, a court may find those sections of a bylaw unenforceable. As statutory interpretation expert Ruth Sullivan explains, legislative structure should be “methodical and follow a conventional order or reflect an intelligible plan.”2 More importantly, you want to make your bylaws understood by the public.
Section revisions can be done in a day.
Nice try. Small revisions may seem straightforward, but one revision can easily invalidate another part of a bylaw without careful review. As legislative drafting expert Paul Salembier says, “Good drafting takes time.”3 A team approach is best where staff legislates the intentions of elected officials with input from the public and with assistance of those skilled in legal drafting.
2 Ruth Sullivan, Statutory Interpretation, 2nd ed. (Toronto, ON: Irwin Law Inc., 2007) at page 167.
3 Paul Salembier, Legal and Legislative Drafting (Markham, Ontario: LexisNexis Canada Inc., 2009) at page 479.