On May 2, 2014 the Supreme Court of Canada decided a party can’t rely on a municipality’s actions – or lack of actions – to defend itself against charges it violated a municipal zoning by-law. Parties dealing with municipal authorities should exercise due diligence – and not blind reliance.

The municipality charged a public parking lot owner for violating a zoning by-law. The owner defended itself with the estoppel defence: it said the municipality’s own actions over the years precluded it from asserting the lot violated the by-law. For example, the municipality:

  • paid the owner when municipal activities prevented use of some of the parking spaces
  • charged property taxes on the lot at the non-residential rate
  • installed a sign on city property directing the public to the lot

The SCC disagreed, confirming that a municipality can’t deviate from its by-law or authorize a party to do so (unless there is legislation permitting it) – and it can’t be forced to do so through estoppel:

  • A party can’t rely on estoppel to defend itself against a regulatory offence in the face of a valid and explicit law – like the zoning by-law here
  • Courts have only applied the doctrine of estoppel against public authorities where the representative’s promises were lawful or were consistent with a statutory discretion 
  • Estoppel could force a public authority to exercise a discretion in a particular way, but ensuring by-law compliance and by-law enforcement are not discretionary

The decision was based on a Quebec by-law, but the estoppel defence and the principles apply across Canada. The message is a simple one – proper due diligence is key:

More Than Zoning By-Laws. The by-law in this case was a zoning by-law, but the decision likely applies equally to any type of municipal by-law.

Independent Verification. Owners (and purchasers) of residential or commercial property should verify the acceptable property uses by referring to the applicable zoning by-law, municipal plan or rural plan – and not relying on a municipal official’s confirmation that the use of the property is acceptable.

Municipal Officials’ Scope. An individual or company (or their legal counsel) should review the applicable laws and satisfy themselves that a municipal official is permitted to give the advice or grant the discretion in the matter in which it’s sought – or be unable to rely upon the advice given.    

Click here to read the SCC’s decision in Immeubles Jacques Robitaille inc. v. Québec (City) 2014 SCC 34.