Issuing Violation Tickets for Price Gouging During COVID-19: What You Need To Know

The Bottom Line

As of April 19, 2020, the Province granted Bylaw Enforcement Officers the authority to issue violation tickets for certain offences related to price gouging and reselling during COVID-19. However, Consumer Protection BC will continue to be the main point of contact, to receive and investigate complaints and reach out to other enforcement authorities if they need assistance in issuing a Provincial violation ticket. Complaints of price gouging or reselling can be directed to Consumer Protection BC.

Authority to Issue Violation Tickets

“But wait a minute…” you say, “Wasn’t issuing fines is the one thing they told us we couldn’t do?” Allow me to explain.

This new and expanded authority for Bylaw Officers comes from an Order In Council which amended the Violation Ticket Administration and Fines Regulation. The newly amended regulation allows anyone who is a bylaw enforcement officer, as defined in the Bylaw Enforcement Officer (COVID-19) Order, MO 82/2020 to issue violation tickets for breaches of sections 8 (4) and (5), and section 9(2) of Ministerial Order 84/2020, and section 3 of Ministerial Order 115/2020.

This new power does not conflict with section 3(2)(b) of MO 82/2020 which prohibits Bylaw Enforcement Officers from issuing fines or administrative penalties under the Public Health Act, as the Ministerial Orders to be enforced by violation ticket were made under the Emergency Program Act.

For more information on Bylaw Enforcement powers under MO 82/2020, see Expanded COVID-19 Role for Bylaw Officers by Troy DeSouza.

Procedure

The Province indicates that Consumer Protection BC is still the main contact point and the public are to submit complaints of price gouging or reselling to them for investigation. Consumer Protection BC has said that it will reach out to various enforcement authorities to assist them with complaints as needed. We encourage you to work cooperatively with Consumer Protection BC where possible to assist them in protecting your local residents.

If you receive information from the public regarding price gouging or reselling, you can direct them to Consumer Protection BC. Complaints can be submitted through Consumer Protection BC’s online form: https://www.consumerprotectionbc.ca/report-price-gouging/.

Article author:

Lisa Guidi is an associate lawyer at GovLaw. Originally from the Okanagan, Lisa has established a strong bylaw enforcement practice. When visiting family, Lisa works out of our Kelowna office.

Important Notice RE: Legal Services During COVID-19

RE: Legal Services During COVID-19

This is to update you on how legal services have been affected or adapted to serve your needs during the COVID-19 pandemic. We continue to monitor the situation closely and follow the latest direction from our health authorities.

Courts

The Honourable Chief Justice Hinkson has suspended regular operations of the Supreme Court of British Columbia at all of its locations. In Provincial Court, all bylaw matters between now and May 4, 2020 have been adjourned.

File Action

Necessary legal file work for local governments continue. From legal opinions to Court action, we are making the most of this time to maintain, catch-up and be proactive to move matters forward.

GovLaw Team Access

Almost all of the GovLaw team is working from home. To ensure no disruptions to our services and prompt response, emails continue to be actioned and our office telephone lines are connected to the corresponding cell phone line of the person you wish to reach.

We are obligated to do our part as a firm to minimize the contagion. Nevertheless, we maintain our confidence to effectively serve the needs of local governments during these challenging times.

Yours truly,

DOMINION GOVLAW LLP

Per:

Troy DeSouza
Direct email: Troy.DeSouza@GovLaw.ca

Read Emergency Program Act, Ministerial Order No. M082 [PDF file]

Expanded COVID-19 Enforcement Role for Bylaw Officers

The Minister of Public Safety and Solicitor General Mike Farnworth announced today that he was enabling municipal bylaw officers to support enforcement of the Provincial Health Officers orders for business closures and gatherings in line with offences under the Public Health Act. The key parts of the order are summarized as follows:

  • Bylaw enforcement officers specifically designated under the order and regulations include local government corporate officers, BEO’s under section 36 of the Police Act, licensing inspectors, building inspectors, animal control officers or other persons acting in another capacity on behalf of a municipality, regional district or local trust committee for the purpose of enforcement of one or more of its bylaws;
  • To the greatest extent possible without unduly compromising any other bylaw enforcement objectives of the local authority, each local authority must ensure that the local authorities bylaw enforcement officers provide assistance as may be required to enforce public health orders to include:
    • Monitoring facilities and areas closed to the public;
    • Provide warnings, information and advice to businesses and members of the public with respect to the health orders
    • Provide health officers with information in respect of potential contraventions; and
    • BEOs are not authorized to detain individuals or issue a fine or penalty.

This announcement acknowledges the expertise and critical role bylaw officers have to play in our communities during this public health emergency. The goal should be to utilize all professional law enforcers to bend the curve on identified cases and deaths with the coronavirus so that communities can get back to normal sooner.

The Minister’s directive requires cooperation and coordination with local governments and our health authorities. GovLaw recommends the following action be taken:

  •  Senior staff should enquire and coordinate with their Health Authority counterparts on the enforcement of the Provincial Health Officers directive and the Public Health Act;
  • Primary enforcement should focus on public gatherings and business closures as directed by the Minister; and
  • Evidence can be gathered for health officers and charges prepared to proceed as a “long form information (LFI)” prosecution in Provincial Court. A filed and served LFI can quickly send a message of responsibility and action required by individuals to reduce the coronavirus risk.

For more information, we provide the following links for your benefit.

 Ministerial Order No. M082
 Official News Release

Take care,

Troy DeSouza's signature

Troy DeSouza

Expanded COVID-19 Enforcement Role for Bylaw Officers

The Minister of Public Safety and Solicitor General Mike Farnworth announced today that he was enabling municipal bylaw officers to support enforcement of the Provincial Health Officers orders for business closures and gatherings in line with offences under the Public Health Act. The key parts of the order are summarized as follows:

Bylaw enforcement officers specifically designated under the order and regulations include local government corporate officers, BEO’s under section 36 of the Police Act, licensing inspectors, building inspectors, animal control officers or other persons acting in another capacity on behalf of a municipality, regional district or local trust committee for the purpose of enforcement of one or more of its bylaws;

To the greatest extent possible without unduly compromising any other bylaw enforcement objectives of the local authority, each local authority must ensure that the local authorities bylaw enforcement officers provide assistance as may be required to enforce public health orders to include:

  • Monitoring facilities and areas closed to the public;
  • Provide warnings, information and advice to businesses and members of the public with respect to the health orders;
  • Provide health officers with information in respect of potential contraventions; and
  • BEOs are not authorized to detain individuals or issue a fine or penalty.

This announcement acknowledges the expertise and critical role bylaw officers have to play in our communities during this public health emergency. The goal should be to utilize all professional law enforcers to bend the curve on identified cases and deaths with the coronavirus so that communities can get back to normal sooner.

The Minister’s directive requires cooperation and coordination with local governments and our health authorities. GovLaw recommends the following action be taken:

  • Senior staff should enquire and coordinate with their Health Authority counterparts on the enforcement of the Provincial Health Officers directive and the Public Health Act;
  • Primary enforcement should focus on public gatherings and business closures as directed by the Minister; and
  • Evidence can be gathered for health officers and charges prepared to proceed as a “long form information (LFI)” prosecution in Provincial Court. A filed and served LFI can quickly send a message of responsibility and action required by individuals to reduce the coronavirus risk.

For more information, we provide the following links for your benefit.

Ministerial Order No. M082
Official News Release

Take care,

Troy DeSouza

5 Myths of Bylaw Drafting

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 discussed and reviewed with a lawyer before they are enacted.

MYTH 1

All you need to do is copy and paste from other bylaws.

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.

MYTH 2

Double-checking statutory or case law authority can be done later.

Not recommended. Double-checking 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.

MYTH 3

Wording mistakes in bylaws will still 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. The earlier you start, the better.

1 Ruth Sullivan, Statutory Interpretation, 2nd ed. (Toronto, ON: Irwin Law Inc., 2007) at pages 164 to 168.

MYTH 4

Format and layout are less 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

MYTH 5

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.

Elena Merritt

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.