Drafting By-Laws: What's In A Definition?

In our municipal practice, we are often asked to review draft by-laws or prosecute by-law infractions. In both scenarios, we come across situations in which we believe the by-law would not withstand a court challenge on the void for vagueness argument. A recent Ontario case illustrates this situation and provides a good outline of the issues to be considered when drafting by-laws.

The Ontario Superior Court recently revisited the "void for vagueness" argument in relation to a definition in a municipal by-law. In 2312460 Ontario Ltd. v. Toronto (City), 2013 ONSC 1279, 115 O.R. (3d) 206, the Court held that the prohibition in a by-law regarding "adult entertainment establishments" was void for vagueness. It is not unusual to have by-laws challenged on this basis in the context of charges for a violation of a by-law under the Provincial Offences Act.

In the 2312460 Ontario Ltd. ("231") case, 231 brought an application before the Superior Court for a determination of rights under a zoning by-law. In 2012, 231 purchased the property in question and leased it to a corporation, 748485 Ontario Ltd. (748), for the operation of an "Aren't We Naughty" ("AWN") store. AWN operates a chain of stores selling goods such as lingerie, books, vibrators, condoms and other items. Shortly after the store was opened, AWN was charged with the offence of operating an adult entertainment establishment where prohibited contrary to the Zoning By-Law.

The City and 748 had visited this issue before. In 2009, 748 had requested from the City an assessment of whether its proposed use of the property for an AWN store was permitted. City staff responded by indicating the zoning did not permit AWN to sell adult novelties. 748 then applied to the Committee of Adjustment for a minor variance that would permit AWN's proposed use. This application was refused in March of 2010, and 748 appealed the decision to the Ontario Municipal Board. The Board refused the variance, holding that the items offered for sale by AWN were "goods" within the meaning of the definition of "adult entertainment establishment" and therefore the proposed use by AWN was prohibited.

Zoning By-Law 514-2003 governed the uses at the property. The provision at issue stated as follows:

"The following uses shall be prohibited: service stations and public garages; new and used car sales rooms and lots; the manufacture of confectionary; drive-through facilities; monuments related to cemeteries; adult video and...