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Ongoing Offences Continuing Bylaw Breaching Conduct
Question: Can you be repeatedly charged for the same municipal bylaw violation in Ontario?
Answer: Yes, if the alleged bylaw breach is ongoing or repeated on different days, Ontario municipalities may lay multiple charges and seek cumulative fines, even though you generally can’t be prosecuted twice for a single completed incident. Lippa Legal Services provides Ontario paralegal services for defending municipal bylaw and Provincial Offences matters, including assessing whether issue estoppel applies and whether repeated proceedings could be challenged as unfair or abusive based on the facts.
Can a Person Be Repeatedly Accused of a Bylaw Violation?
Violation of Bylaw May Involve Continuous Conduct, Such as Allowing Improper Signage to Remain Displayed. When Continuous Bylaw Breach Occurs Repeated Charges May Result.
Understanding the Inapplicability of the Res Judicata Principle to Continuous Bylaw Violations As Ongoing Offences
The law, generally, prohibits an individual from facing a multiplicity of the same charges for the same transgression. The principle, colloquially referred to as double jeopardy, stops a person from being accused of identical wrongdoing. With this said, while an individual is shielded from multiple accusations for a singular incident of a criminal offence or a provincial offence, there are scenarios wherein the offence is perpetual and may lead to repetitive accusations.
The Law
The legal principle formally known as res judicata, which is loose Latin meaning "things decided", generally applies to prevent a person from being charged repeatedly for the same offence; however, such is only applicable to the same singular offence, such as failing to stop at a red light while driving, rather than being applicable for a continuous offence as may occur with a bylaw violation. In the case of R. v. Nolis, 2012 ONCJ 446, the inapplicability of the res judicata doctrine to ongoing bylaw offences was addressed whereas it was said:
[57] In Re EnerNorth Industries Inc., 96 O.R. (3d) 1, [2009] O.J. No. 2815, 2009 ONCA 536 (O.C.A.), R. A. Blair J.A., in delivering the judgment for the court, describes the doctrine of res judicata, starting at paragraph 53:
The doctrine of res judicata is a common law doctrine that prevents the re-litigation of issues already decided. It is founded on two central policy concerns: finality (it is in the interest of the public that an end be put to litigation); and fairness (no one should be twice vexed by the same cause). The doctrine is part of the general law of estoppel and is said to have two central branches, namely, "cause of action estoppel" and "issue estoppel."
Cause of action estoppel refers to the determination of the cause or causes of action before the court. The applicable form of res judicata in this case, however, is issue estoppel. Issue estoppel prevents a litigant from re-litigating an issue that has been clearly decided by a court of competent jurisdiction in a previous proceeding between the same parties or their privies even if the new litigation involves a different cause of action.
[58] In the matter before me, the applicable form of res judicata is issue estoppel. For issue estoppel to be successfully invoked, three conditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44, at para. 25, per Binnie J.).
As per the Nolis case above, the res judicata principle, or issue estoppel, applies to a specific legal matter that was already decided by the courts. Accordingly, the issue of what was already decided by the courts sometimes comes into question. Simply put, where a person commits a singular offence, such as failing to stop at a red light while driving, the person may only be charged for doing so once. However, if the person fails to stop again the next day, the person may be charged for committed the offence for a second time. While this might seem logical to most people, confusion can arise when, as opposed to committing an infraction for a second time, a person allows continuance of the initial infraction. An example would be permitting excessive noise to persist after receiving an initial charge for a noise violation. The case of Dysart (Municipality) v. Reeve, 2000 CanLII 16841, tackled the contrast between an ongoing bylaw violation and an infraction transpiring at a single moment by confirming that despite the notions within the res judicata doctrine, recurrent charges may arise if an ongoing infraction is involved. Specifically, Dysart stated:
[22] ... Multiple prosecutions of an accused or a defendant may well, at some point, justify a stay. See, for example, R. v. Jack (1997), 1997 CanLII 356 (SCC), 117 C.C.C. (3d) 43 (S.C.C.) and R. v. Mitchelson (1992), 1992 CanLII 4018 (MB CA), 71 C.C.C. (3d) 471 (Man. C.A.). But the context is important. These defendants were charged not with a Criminal Code offence, but with regulatory offences, with violating the municipality’s land use requirements. The offences are not alleged to have occurred at a discrete point in time but to be ongoing violations. The practical effect of a stay would be to give the defendants a legal non-conforming use by court order without the merits of their position ever having been adjudicated. Viewed in this way, it seems to me the community’s tolerance for successive prosecutions is greater than it might be in other kinds of cases. At least for now, the community’s interest in enforcing its land use requirements outweighs any unfairness in prosecuting the defendants again.
Summary Comment
A person who fails to cease a bylaw breach or otherwise allows a bylaw breach to continue in an ongoing manner may be charged repeatedly with an offence for doing so.
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