R. v. Tanner, (1988) 85 N.S.R.(2d) 66 (ProvCt)

• Judge: Crowell, J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: January 20, 1988
• Jurisdiction: Nova Scotia
• Citations: (1988), 85 N.S.R.(2d) 66 (ProvCt)

R. v. Tanner (1988), 85 N.S.R.(2d) 66 (ProvCt);

    216 A.P.R. 66

MLB headnote and full text

R. v. Donald Tanner and Marion Tanner

Indexed As: R. v. Tanner

Nova Scotia Provincial Court

Crowell, J.

January 20, 1988.

Summary:

The owners of a swimming pool were charged with failing to erect and maintain a fence or other obstruction around their pool in violation of a town bylaw. The owners claimed that the bylaw was ultra vires and moved to quash the bylaw.

The Nova Scotia Provincial Court reserved judgment on the motion to quash and found the owners not guilty of the charge.

Municipal Law - Topic 3860

Bylaws - Quashing bylaws - Grounds for judicial interference - Unauthorized by empowering statute - Two swimming pool owners were charged under a town bylaw with not erecting and maintaining a fence or other obstruction around their pool - The Nova Scotia Provincial Court held that the words "or other obstruction" were ultra vires, because the enabling statute, the Towns Act, did not contain them - The court held that the additional words were severable and the remainder of the bylaw was intra vires - However, the court found the accused not guilty because there had been reliance on the ultra vires part of the bylaw.

Cases Noticed:

Bluebell Taxi (1977) Limited et al. v. City of Dartmouth (1982), 54 N.S.R.(2d) 434; 112 A.P.R. 434, consd. [para. 1].

Roth v. Board of Examiners in Psychology (N.S.) (1985), 68 N.S.R.(2d) 408; 159 A.P.R. 408, folld. [para. 11].

Statutes Noticed:

Towns Act, R.S.N.S. 1967, c. 309, sect. 221(26A) [paras. 6, 8].

Counsel:

Alan T. Tufts, for the Crown;

Walter O. Newton, Q.C., for the defendants.

This case was heard at Kentville, Nova Scotia, before Crowell, J., of the Nova Scotia Provincial Court, who delivered the following judgment on January 20, 1988.