In what circumstances will a municipality be found to have enacted a bad faith By-law to designate a right of way as a public highway?
Ontario, Canada
The following excerpt is from Unifor, Local 1688 v. The City of Ottawa, 2018 ONSC 3377 (CanLII):
In the case of Grosvenor v. East Luther Grand Valley (Township), supra, the Township enacted a By-law to designate a “right of way” property as a public highway. When the By-law was challenged by a group of property owners whose property abutted the trail way, it was found as a fact by the court, among other findings, that the By-law under review was passed primarily to eliminate the Township’s liability for the costs associated with the required building of a fence along the trail way. The evidence showed that the Township had taken no steps or formalized any plans to designate the lands as a highway until the request for fencing came up. There was no notice of the Township’s intention to pass the By-law, notwithstanding the public meetings and consultation process. As a result, the court found that the By-law was enacted in bad faith because it had been adopted for a collateral purpose, namely, to avoid the costs of fencing
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