Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – Powers under legislation – By-laws – Ultra vires – Power to enact by-laws – Permits and licences – Fees – Service fees – Property assessment – Trailer parks – Judicial review – Compliance with legislation
Gould v. Weyburn (City),  S.J. No. 168, Saskatchewan Court of Queen’s Bench, March 19, 2009, G.A.J. Chicoine J.
The Applicant, Mr. Gould, operated a mobile home park in the City of Weyburn for over 38 years. In 2001, the City passed a bylaw requiring owners of trailer parks and the occupants of the trailers to obtain licences. The amount of the licence fees was determined by the square footage of each mobile home. The occupants of the trailers paid the licence fees to the trailer park owner who remitted the fees to the City.
In 2005, the City advised the Applicant that it was going to implement a system whereby the Applicant, as the owner of the trailer park, would be taxed for all of the improvements on his land even though he did not actually own the mobile homes themselves. The City expected the Applicant to simply increase rent to recover these costs.
The City was relying on sections 176 and 177 of the Cities Act, which provided that the assessed person in respect of an improvement is the person shown as the registered owner in the Land Titles Registry. The City sent a letter to all occupants in the Applicant’s trailer park and, in this letter, advised them that the previous system of collecting “taxes” was to be changed and advised the occupants that the new system was expected to be a “fairer method of taxation”.
The Applicant requested the City to amend sections 176 and 177 of the Cities Act so as to make it clear that mobile homes and trailers shouldn’t be considered improvements for tax purposes if not owned by the landowner. After several appeals of tax assessments, the Applicant eventually achieved success in that the legislature passed an amendment to the Cities Act. The amendment created an exception for improvements so that if the improvement is a “house trailer”, the assessed person is the owner of the house trailer.
The City subsequently decided to enact a system for the inspection and regulation of trailer parks. The City enacted a bylaw for this purpose (the “Bylaw”) and the Bylaw stated that it was being created under the Cities Act section 8(3). That section authorizes the City to create a system of licences and inspections. The new system amounted to a fee per trailer for trailer parks regardless of whether each individual trailer was occupied. The owner of the trailer park was required to pay these fees based on the number of trailers in the park.
The Applicant brought the within application on the basis that the Bylaw was outside of the regulatory powers granted under the Cities Act or, in the alternative, the Bylaw was passed in bad faith.
In this case, the City’s dealings with the Applicant indicated that the City viewed the licence fee as a means of collecting an equivalent to a property tax. The City tried to argue that the fee was based on the cost of services provided to trailer parks and they were authorized to collect fees “for the activity authorized”. The fees allegedly incurred by the City in respect of the trailer parks were police, fire, parks and leisure services. However, the Applicant’s receipt of these City services did not amount to an activity. Therefore, the Bylaw was ultra vires the legislative authority granted to the City and the Bylaw was a nullity.
The Court noted that the City could have recovered the cost for services by taxing the owners of the individual mobile homes under the legislative authority granted in sections 176 and 177 of the Cities Act.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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