Bylawpedia
Direct Enforcement
Introduction
Methods of bylaw enforcement which a local government may take directly, and without the involvement of the court system, are known as direct enforcement (Howieson, 2008, p. 4). Sometimes these enforcement methods are also referred to as 'self-help' remedies (Government of British Columbia, 2024). These direct enforcement actions can involve a local government officer, employee or contractor taking some action to stop or correct a bylaw violation that has been committed, such as towing and impounding a vehicle that is illegally parked on a street or seizing and impounding an animal that is illegally running loose in a public place. Often, the local government may also charge the person responsible for the bylaw violation a sum of money for taking these direct actions, referring to those sums of money as fees, penalties, costs and similar terms (Office of the Ombudsperson, 2015, p. 35).
Exactly what kinds of direct enforcement actions a local government can take is contingent on the legislation which applies in its jurisdiction. Since local governments fall under the jurisdiction of provincial and territorial governments, this means that the authority for taking direct enforcement will be dependent on what province or territory one finds oneself in (Plunkett, 2006). In British Columbia, there are three provincial statutes which provide the basis for the majority of direct enforcement measures, those being the Community Charter (2003), the Local Government Act (2015), and the Motor Vehicle Act (1996).
Seizure and Impound
One way that a local government can enforce its bylaws through direct action is by making use of the power of seizure and impound. This is most commonly used in the context of enforcing bylaws relating to animal control, traffic and parking, although it might apply in other situations as well. As an example, provincial law authorizes municipalities[1] to enact bylaws that allow for vehicles to be towed and impounded if they are found to be located on a public road or public place illegally. Bylaws can also be enacted by municipalities[1] to authorize the seizure and impound of other objects, other than vehicles, that are placed or left illegally on a public road or public place. The owners of these vehicles and other items can then be charged fees and costs for seizing, impounding, transporting and storing them and the local government can refuse to release the impounded vehicle or item until they are paid; also, if these costs are not paid within a reasonable time, the local government may sell the vehicle or item to recover the money (Community Charter, 2003, s. 46).
When it comes to the seizure and impound of animals, local governments which choose to do so may implement animal control bylaws which grant power to their officers, employees and agents to seize and impound animals for certain bylaw violations. Provincial legislation authorizes municipalities to enact bylaws to allow for the seizure and impound of an animal in situations where the animal is required to be licensed and is not, if the animal is at large[2], if the animal is straying or trespassing on someone else's property, or if the animal is on unfenced land and not property secured (Community Charter, 2003, s. 48). Similarly, provincial law allows regional districts to pass bylaws to seize and impound animals if they are required to be licensed and are not or if the animal is at large[2] (Local Government Act, 2015, s. 320).
As with other forms of impound, a local government which impounds an animal is entitled to establish fees, costs and penalties which can be charged to the owner of the animal. The local government can require that these be paid before the animal is released from impound and, if this doesn't happen within a reasonable time limit established by the local government, they can decide to either sell or euthanize the animal (Community Charter, 2003, ss. 48(b)-48(d); Local Government Act, 2015, s. 320(c)-320(d)).
Municipalities are also expressly authorized by the Community Charter to enact bylaws to allow for their representatives to seize and euthanize an animal if they determine it to be in distress and it cannot reasonably be helped in some other way (Community Charter, 2003, s. 48(e)). Provincial statute does not expressly grant a similar power to regional districts in the Local Government Act, but it could possibly be argued that this power is implied under their general authority to make bylaws related to animal control, provided they have established an animal control service.
There are also some special powers to seize and impound dogs that meet the definition of 'dangerous dogs' under the provincial Community Charter. That enactment stipulates that animal control officers working for a local government may seize and impound a 'dangerous dog' to ensure public safety if certain conditions are met (Community Charter, 2003, s. 49; Local Government Act, 2015, ss. 317 & 321).
Remedial Action Requirements (Municipalities)
Remedial action requirements are another avenue that local governments may take if they wish to pursue direct enforcement. These are orders that the council of a municipality can issue to persons who own or occupy private property to correct certain problems on their land. Authority to issue these orders is found in the Community Charter. Regional districts also have some authority to impose remedial action requirements on property holders but this is more limited than the authority granted to municipalities, and will be discussed in greater detail later (Bradley, 2009, pp. 1-5; Howieson, 2008, pp. 13-14; Moll & Howieson, 2011, pp. 1-5).
Municipal governments are able to issue remedial action requirements for three types of problems enumerated in the Community Charter, those being hazards, nuisances and harm to dikes or similar watercourses.
Section 73 of the Community Charter lists the range of things which a municipality can declare to be a hazard and these include buildings, structures, openings in the ground (whether natural or artificial), trees, wires, cables and several other things. To make a declaration under this section, council needs to be satisfied the thing in question either is in an unsafe condition or it contravenes building regulations (either local building bylaws or provincial building regulations) in some way (Community Charter, 2003, s. 73).
Section 74 of the Community Charter then goes on to list the things which can be declared a nuisance by a municipality, including buildings, structures, openings in the ground, ditches, drains, ponds and additional things (Community Charter, 2003, s. 74). In order to declare something a nuisance, the municipal council must be satisfied that it meets the definition of a nuisance under the law. The section specifically mentions that a building or structure can be declared a nuisance if it is so 'dilapidated or unclean' that it offends the community, but does not explicitly state what other conditions could possibly constitute a nuisance. Because of this, one must look to the common law for guidance on what else might qualify, although care should be taken because some common law nuisances will not be applicable (Moll & Howieson, 2011, p. 3).
Section 75 of the Community Charter deals with ditches, drains, creeks, dikes, watercourses and reclamation works. If a municipal council is satisfied someone has damaged or destroyed, or obstructed or filled up, any of those things they can, by resolution, declare the person responsible for the harm (Community Charter, 2003, s. 75; Moll & Howieson, 2011, p. 4).
Once a municipal council has declared something to be a hazard or nuisance, or declared that a person has harmed a dike or similar watercourse, they are then able to impose a remedial action requirement which requires the person responsible to take some action to remediate the problem; hence the name remedial action requirement. For a hazard or nuisance located on private property, the person held responsible can be either the owner, lessee or occupier of the thing which constitutes the hazard or nuisance or the owner or occupier of the land where the hazard or nuisance happens to be located. For harm to a dike or similar watercourse, the person held responsible must be the person which the municipal council has declared to have caused the obstruction or other damage (Community Charter, 2003, ss. 72 & 75).
The action required by a remedial action requirement can be to remove the problem or to repair or correct it in some other way (Community Charter, 2003, s. 72). For example, in the case of a building that is declared to be a hazard, the property holder could be required to either demolish it or to repair it so it is no longer dangerous. As an alternative example, if the problem is a pond of water on one parcel of land which is causing a nuisance because it is leaking onto neighbouring properties, the owner of the land where the pond is situated could be directed to either remove it or build a barrier around it that is adequate to prevent spillage.
When imposing a remedial action requirement on a person, a council or board must also set a time limit for the person to do the work that is demanded by the remedial action requirement. Under the legislation, this time limit should normally not be any less than 30 days, but this can be reduced if the council or board decides that the matter is so urgent a shorter time limit is necessary to avoid a significant risk to health or safety (Community Charter, 2003, s. 76 & 79).
A council or board is not required to give notice to, or hear from, a person before imposing a remedial action requirement on that person. However, once the local government adopts a resolution to impose the remedial action requirement, the law does require notice to be served on the person who is subject to the remedial action requirement and, in addition, the owner of the property in question and any other person who has a charge against the property. After this notice has been served, the person who is subject to the remedial action requirement, as well as the owner of the land where it is to be performed, will be granted a certain time period to request the council or board of the local government to reconsider the decision; normally this time period is at least 14 days, but the council or board can set a shorter period if they decide this is necessary to avoid a significant risk to health or safety (Moll & Howieson, 2011, pp. 6-7; Community Charter, 2003, ss. 77-79).
A reconsideration is an opportunity for the person who has had a remedial action requirement imposed on them, or the owner of the land in question, to provide submissions to the council or board on why they should cancel or alter the remedial action requirement. This is normally done by inviting the person who requested reconsideration to a meeting of the council or board and allowing the person to present information and documents. After providing this opportunity to the person who requested reconsideration, the council or board will vote on whether to confirm the remedial action requirement or to amend or cancel it (Moll & Howieson, 2011, pp. 7-8).
Should a person who is subject to a remedial action requirement fail to comply and perform the required remediation, then the law authorizes a municipality to send its employees or contractors onto the property to perform the work at the person's expense. The municipality is then entitled to charge the costs of the work back to the person who didn't comply with the remedial action requirement. If those costs are not paid, the municipality is permitted to recover the costs through normal debt collection measures (Community Charter, 2003, s. 17) or by adding the amount to the property taxes of the land in question (Community Charter, 2003, ss. 258 & 259; Moll & Shergill, 2020, p. 2). There is also legal authority to seize and sell certain types of property if they were subject to a remedial action requirement which was not complied with, but this is only available for some kinds of remedial action requirements. (Community Charter, 2003, s. 80).
Remedial Action Requirements (Regional Districts)
Regional districts have the ability to impose remedial action requirements on owners and occupiers of private property just as municipalities do, but their authority is more restricted. The provincial legislation does not allow a regional district to use a remedial action requirement to deal with a nuisance at all, and it only is permitted to impose a remedial action requirement for a hazard if it is mentioned in paragraphs (a) or (b) of Section 73, which refers to buildings, structures, openings in the ground and similar things. The remedial action requirement powers dealing with watercourses in Section 75 are also available to regional districts (Local Government Act, 2015, ss. 305 & 309; Moll & Howieson, 2011, pp. 2-4).
The same cost recovery methods for remedial action requirement enforcement enjoyed by municipalities are also available to regional districts; i.e. to charge the costs to the person who failed to comply with the remedial action requirement and, if these are not paid, to pursue ordinary debt collection or add the amount to the property taxes of the land in question (Local Government Act, 2015, s. 399, 400 & 418).
Notices Against Land Title
One interesting direct enforcement tool for local governments is the ability to register a notice on the land title for properties that are in contravention of certain regulations. Under the Community Charter and the Local Government Act, both municipalities and regional districts (Community Charter, 2003, s. 57; Local Government Act, 2015, s. 302(d)) are able to attach a notice to the land title of a property if the council or board of the local government adopts a resolution finding the property to be in violation of certain building regulations (Howieson, 2008, p. 14). This notice is publicly accessible information available for anyone who pays a fee to access the land title records of the British Columbia Land Title and Survey Authority (Land Title and Survey Authority of BC, n.d.).
Before a local government council or board can place a notice against title, they are required to receive a report from a building inspector which includes three elements. For the first element, the report must show the inspector has determined there is a violation of a local building bylaw, a provincial regulation or some other enactment related to construction or building safety. Secondly, the report must show the inspector finds this violation to create an unsafe condition or will make the building or structure likely unusable for its intended purpose during its normal lifetime. Thirdly, the report must include a recommendation that the local government register a notice against the title of the property in question. As an alternative for the second element, the report can - instead of finding the building or structure is unsafe or unusable - indicate the inspector has determined that something was done to the building or structure without a permit or inspection required by a local building bylaw, a provincial regulation or other enactment related to construction or building safety (Community Charter, 2003, s. 57).
Before a local government registers a notice against land title for a property, they are required to provide an opportunity to be heard to both the building inspector who made the recommendation for the notice against title and the property owner. In practice, this is usually done at a meeting of the municipal council or regional district board, where both parties are given a chance to speak and present information. After considering the submissions from both parties, the council or board will then vote to either approve the building inspector's recommendation and register the notice against land title or they can reject the recommendation (Community Charter, 2003, s. 57(3)).
The law also provides a mechanism for having these notices against title removed. If a building inspector files a report with the local government advising that the building regulation violation in question has been rectified, then the local government must cancel the notice against title (Community Charter, 2003, s. 58).
The main benefit of notices against title for a local government is that they allow them to provide a public warning to any persons who would seek to purchase a property, or to provide a mortgage or financing for a property, that there are problems they should be aware of. This can be especially important if the building or structure in question poses a potential safety hazard.
Unsightly Premises Cleanup and Nuisance Abatement
Remedial action requirements imposed pursuant to the Community Charter are not the only way that a local government can compel property owners or occupants to take action to correct a problem on their land. Local governments can also issue orders and take direct enforcement action to remediate bylaw violations on private property using their own local bylaws. For example, many local governments have unsightly premises bylaws and nuisance abatement bylaws which allow for orders to be issued to property holders to remove or repair things on their land or to stop certain activities on their land. These bylaws also authorize local government employees or contractors to enter private property and take actions to enforce these orders if the property holders do not voluntarily comply, and then also empower local governments to charge the cost of taking these enforcement actions back to the property holder (Nuisance Abatement and Cost Recovery Bylaw No. 8940, 2018 (Prince George), ss. 3 & 4; Unsightly Premises Regulation Bylaw No. 3194, 2020 (Regional District of Fraser-Fort George), s. 4).
Authority for local governments to make these sorts of bylaws is found in the Community Charter and the Local Government Act (Howieson, 2008, p. 14). A municipality is authorized to enact bylaws governing various kinds of nuisances, disturbances, unsightly conditions and other objectionable things by the Community Charter (2003, ss. 8(3)(h) & 64). Regional districts are authorized to enact similar bylaws, as long as the regional district has instituted a relevant service first (Local Government Act, 2015, ss. 323-325).
These bylaws, and the orders and enforcement actions issued or taken pursuant to them, have similarities to remedial action requirements taken under the Community Charter. Just as with a remedial action requirement, if a local government has to send its staff onto private property to conduct enforcement action because a property holder doesn't comply with an order, then the local government can recover its costs by charging them to the defaulter and, if the person doesn't pay those, by adding them to the property taxes of the land in question (Community Charter, 2003, ss. 17, 258 & 259; Howieson, 2008, pp. 13-14; Local Government Act, 2015, ss. 399, 400 & 418).
As well, nuisance and unsightly premises bylaws and often can be used to deal with some of the same problems that a Community Charter remedial action requirement could. Imagine there was an unsightly accumulation of graffiti on an abandoned building, bothering the neigbours with its appearance. In such a case, a municipality could use the Community Charter to declare it a nuisance and impose a remedial action requirement to compel the property owner to clean it up. In the alternative, they could use a nuisance or unsightly premises bylaw to order the property owner to clean up.
However, there is not complete equivalency between remedial action requirements and these other methods. Remedial action requirements can only be used for matters that are specifically listed in the relevant sections of the Community Charter, whereas actions taken under a nuisance abatement or unsightly premises bylaw can potentially deal with a wider range of issues.
Denial and Termination of Licences
[WORK IN PROGRESS]
END NOTES:
[1] These powers to regulate vehicles and other items located on public roads only apply to municipalities, not regional districts. The provincial government of British Columbia has not granted this authority to regional districts (Union of British Columbia Municipalities, n.d.).
[2] The term 'at large' is not defined in the Community Charter, the Local Government Act or the Interpretation Act (Community Charter, 2003; Local Government Act, 2015; Interpretation Act, 1996). Different local governments will employ different definitions of the term in their respective animal control bylaws, although there is a great degree of similarity between the definitions. There is wide agreement between the animal control bylaws of various communities that an animal is 'at large' if it is off its owner's property and is not under the supervision of a person (Animal Control Bylaw No. 34-11 (Consolidated) (Kamloops), s. 1.1; Animal Control Bylaw No. 2556, 2021 (Consolidated) (Fort St. John), s. 3; Animal Control By-law No. 9150 (Consolidated) (Vancouver), s. 1.2), but some communities may also consider an animal to be 'at large' in additional scenarios. For example, under the bylaws of the City of Vancouver, a dog is considered 'at large' if it is in a public place and is not on a leash that is attached to a responsible person; i.e. it is not sufficient that a person be present to supervise the animal (Animal Control By-law No. 9150 (Consolidated) (Vancouver), s. 1.2).
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Animal Control Bylaw No. 2556, 2021 (Consolidated) (Fort St. John). https://www.fortstjohn.ca/assets/Documents/Bylaws/Bylaw~Enforcement/Animal%20Control%20Bylaw%20No.%202556,%202021.pdf
Animal Control By-law No. 9150 (Consolidated) (Vancouver). https://bylaws.vancouver.ca/9150c.PDF
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Community Charter, SBC 2003, c. 26. https://canlii.ca/t/5660d
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Interpretation Act, RSBC 1996, c. 238. https://canlii.ca/t/5656s
Nuisance Abatement and Cost Recovery Bylaw No. 8940, 2018 (Prince George). https://www.princegeorge.ca/sites/default/files/2023-04/BL8940_BYLAW-ADOPTED.pdf
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Land Title and Survey Authority of BC. (n.d.). Search Land Title Records. BC Land Title & Survey. Retrieved on March 10, 2024 from https://ltsa.ca/property-owners/how-can-i/search-land-title-records/
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Moll, M. & Shergill, S. (2020, November 25). Overdue Taxes - Options for Collection [Seminar Paper]. Young, Anderson Barristers & Solicitors. https://www.younganderson.ca/assets/seminar_papers/2020/Overdue-Taxes-Options-for-Collection.pdf
Motor Vehicle Act, RSBC 1996, c. 318. https://canlii.ca/t/566f3
Plunkett, T.J. (2006). Municipal Government in Canada. In The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/municipal-government
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Union of British Columbia Municipalities. (n.d.). (2018, November). Fact Sheet #27: Licensing [Fact Sheet]. Union of British Columbia Municipalities. https://www.ubcm.ca/sites/default/files/2021-05/27%20Licensing.pdf
Unsightly Premises Regulation Bylaw No. 3194, 2020 (Regional District of Fraser-Fort George). https://www.rdffg.bc.ca/sites/default/files/2023-11/Unsightly%20Premises%20Regulation%20Bylaw.pdf