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Sep 17 2011

Corporate Government – for whom and for what purpose? For protection? Not!

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The Langford Bylaw in which Council reserves the right to include unstated amendments appears to be an unauthorized act of discretion.

DISCRETION *
Bylaws should avoid uncertainty and any potential for arbitrary decision-making.  A person who is subject to a bylaw should be able to understand from reading it what he  or she needs to do to avoid breaching it or to obtain a permission or benefit from it. Council cannot reserve to itself the right to make additional decisions on matters that are enacted, or should have been enacted, in the bylaw.

Discretionary powers must always be exercised within the law. This includes bylaws as well as all applicable statutes, regulations and common law doctrines. Bylaws should avoid uncertainty and any potential for arbitrary decision-making. For example, they should not state that something is “subject to the approval of council” or prohibited “except with approval or a permit from council”. A person who is subject to a bylaw should be able to understand from reading it what he or she needs to do to avoid breaching it or to obtain a permission or benefit from it. Council cannot reserve to itself the right to make additional decisions on matters that are enacted, or should have been enacted, in the bylaw.

The Lumby Noise By-law appears to be in violation of the Charter and the UBCM fact sheet:

Authority to discriminate does not include violation of the B.C. Human  Rights Code, which has priority over other enactments, or the Canadian Charter of Rights & Freedoms, which applies to local governments. Discrimination against unpopular groups or individuals or for an improper purpose will be seen as bad faith or an improper exercise of discretion. Examples of lawful discrimination include municipal fees (requires justification) [CC s. 194], service bylaws [CC s. 8(3)(a)] and zoning [LGA s. 903].

* Fact Sheet #6 – BYLAWS – UBCM ADVISORY SERVICE

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