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BY-LAW C-1-2023
A BY-LAW RESPECTING DANGEROUS OR UNSIGHTLY PREMISES
The Council of the Rural Community of Fundy Shores (herein referred to as "Fundy Shores"), under
authority vested in it by section 128 of the Local Governance Act, R.S.N.B. (2017), Part 13, and
amendments thereto, hereby enacts as follows:
Definitions
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The following definitions apply in the Part.
"dwelling" means a building, any part of which is used or is intended to be used for the purposes of
human habitation.
"dwelling unit" means one or more rooms located within a dwelling and used or intended to be used
for human habitation.
Offences and penalties relating to dangerous or unsightly premises
2(1)
No person shall permit premises owned or occupied by him or her to be unsightly by permitting
to remain on any part of the premises
(a)
any ashes, junk, rubbish or refuse,
(b)
an accumulation of wood shavings, paper, sawdust or other residue of production or
construction,
(c)
a derelict vehicle, equipment or machinery or the body or any part of a vehicle, equipment
or machinery, or
(d)
a dilapidated building.
2(2)
No person shall permit a building or other structure owned or occupied by the person to
become a hazard to the safety of the public by reason of being vacant or unoccupied.
2(3)
No person shall permit a building or other structure owned or occupied by the person to
become a hazard to the safety of the public by reason of dilapidation or unsoundness of structural
strength.
2(4)
A person who violates or fails to comply with subsection (2) or (3) commits an offence that is,
subject to subsections (5) and (6), punishable under Part 2 of the Provincial Offences Procedure Act as
a category F offence.
2(5)
Despite subsection 56(6) of the Provincial Offences Procedure Act, if a person who is leasing a
dwelling or dwelling unit to another person commits an offence under subsection (4) in relation to the
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dwelling or dwelling unit, the minimum fine that may be imposed by a judge under that Act in respect
of the offence shall be $1,000.
2(6)
If an offence under subsection (4) continues for more than one day,
(a)
if the offence was committed in relation to a dwelling or dwelling unit by a person who is
leasing the dwelling or dwelling unit to another person,
(i)
the minimum fine that may be imposed is the sum of
(A)
$1,000, and
(B) the minimum fine set by the Provincial Offences Procedure Act for a category F
offence multiplied by the number of days during which the offence continues after the first
day, and
(ii)
the maximum fine that may be imposed is the maximum fine set by the Provincial
Offences Procedure Act for a category F offence multiplied by the number of days during which
the offence continues, and
(b) in any other case,
(i)
the minimum fine that may be imposed is the minimum fine set by the Provincial
Offences Procedure Act for a category F offence multiplied by the number of days during which
the offence continues, and
(ii)
the maximum fine that may be imposed is the maximum fine set by the Provincial
Offences Procedure Act for a category F offence multiplied by the number of days during which
the offence continues.
Notice to owner or occupier
3(1)
If a condition referred to in subsection 2 (1), (2) or (3) exists, a by-law enforcement officer may
notify
(a)
the owner or occupier of the premises, building or other structure,
(b) the person managing or receiving the rent for the premises, building or other structure,
whether on the person's own account or as agent or trustee of any other person, or
(c) the person who would receive the rent if the premises, building or other structure were let.
3(2)
A notice referred to in subsection (1) shall be in the form prescribed by regulation which shall
(a) be in writing,
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(b) be signed by the officer,
(c) state the condition in subsection 2 (1), (2) or (3) that exists,
(d) state what must be done to correct the condition,
(e) state the date before which the condition must be corrected, and
(f)
if an appeal may be brought under subsection 2(1), state the date for giving notice of
the appeal.
3(3)
A notice referred to in subsection (1) may be given in the following ways:
(a)
if the person to be notified is an individual,
(i)
by personal delivery to the individual,
(ii)
by registered mail to the individual's latest known address, or
(iii) by posting the notice in a conspicuous place on the premises, building or other
structure, and
(b)
if the person to be notified is a corporation,
(i) by personal delivery to an officer, director or agent of the corporation or to a manager
or person who appears to be in control of any office or other place of business in the Province
where the corporation carries on business,
(ii)
by registered mail to the corporation's registered office, or
(iii) by posting the notice in a conspicuous place on the premises, building or other
structure.
3(4)
A notice that is posted in a conspicuous place under subparagraph (3)(a)(iii) or (b)(iii) shall be
deemed to have been given to an individual or corporation on the day it was posted.
3(5)
A notice given to a person referred to in paragraph (1)(b) or (c) shall be deemed to have been
given to the owner of the premises, building or other structure.
Evidence
4(1)
Proof of giving a notice in a manner provided for in subsection 3(3) may be made by a
certificate or an affidavit purporting to be signed by the by-law enforcement officer referred to in
subsection 3(1) naming the person named in the notice and specifying the time, place and manner in
which notice was given.
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4(2)
A document purporting to be a certificate under subsection (1) shall be
(a) admissible in evidence without proof of signature, and
(b)
conclusive proof that the person named in the certificate received notice of the matters
referred to in the certificate.
4(3)
In a prosecution for a violation of a by-law made under paragraph 10(1)(d) in which proof of
the giving of the notice is made in accordance with subsection (1), the onus is on the accused to prove
that the accused is not the person named in the certificate or affidavit.
4(4)
A notice given under section 3 and purporting to be signed by a by-law enforcement officer
shall be
(a)
received in evidence by any court in the Province without proof of the signature,
(b)
proof, in the absence of evidence to the contrary, of the facts stated in the notice, and
(c)
in a prosecution for a violation of a by-law made under paragraph 10(1)(d), proof, in
the absence of evidence to the contrary, that the person named in the notice is the owner or
occupier of the premises, building or other structure in respect of which the notice was given.
Appeal
5(1)
An owner or occupier of premises or a building or other structure who has been given a notice
under section 3, other than a notice prepared and signed under subsection 5(1), and who is not
satisfied with the terms or conditions set out in the notice may appeal to the appropriate committee of
council by sending a notice of appeal by registered mail to the clerk of Fundy Shores within 14 days
after having been given the notice.
5(2)
A notice that is not appealed within the time referred to in subsection (1) shall be deemed to
be confirmed and is final and binding on the owner or occupier who shall comply within the time and
in the manner specified in the notice.
5(3)
On an appeal, the committee of council shall hold a hearing into the matter at which the owner
or occupier bringing the appeal has a right to be heard and may be represented by counsel.
5(4)
On an appeal with respect to a notice under section 3 arising out of a condition referred to in
subsection 2(2), the onus is on Fundy Shores to prove that the building or structure has become a
hazard to the safety of the public by reason of being vacant or unoccupied.
5(5)
On an appeal, the committee of council may confirm, modify or rescind the notice or extend the
time for complying with the notice.
5(6)
The committee of council shall provide a copy of its decision to the owner or occupier who
brought the appeal within 14 days after making its decision.
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5(7)
If a notice that is confirmed or modified by a decision of the committee of council under
subsection (5) is not appealed within the time referred to in subsection (8), it shall be final and binding
on the owner or occupier who shall comply within the time and in the manner specified in the notice.
5(8)
The owner or occupier who is provided with a copy of a decision under subsection (6) may
appeal the decision to a judge of The Court of King's Bench of New Brunswick within 14 days after the
copy of the decision was provided to the owner or occupier on the grounds that
(a)
the procedure required to be followed by this Act was not followed, or
(b)
the decision is unreasonable.
5(9)
On an appeal, the judge of The Court of King's Bench of New Brunswick may confirm, modify
or rescind the whole or any part of the decision of the committee of council, and the decision of the
judge under this subsection is not subject to appeal.
5(10) A notice that is confirmed or modified by a judge of The Court of King's Bench of New
Brunswick under subsection (9) shall be final and binding on the owner or occupier who shall comply
within the time and in the manner specified in the notice.
5(11) An appeal does not prevent a further notice from being given under section 3 or from being
prepared and signed under subsection 10(1) in relation to a condition referred to in the notice that is
the subject of the appeal, if there has been a change in the condition.
Registering a notice
6(1)
In this section "land registration office" means a registry office established under the Registry
Act or a land titles office established under the Land Titles Act.
6(2)
A notice given under section 3 may be registered in the appropriate land registration office and,
on registration, any subsequent owner of the premises, building or other structure in respect of which
the notice was given shall be deemed, for the purposes of sections 8 and 10, to have been given the
notice on the day on which the notice was given under section 3.
6(3)
Section 44 of the Registry Act and section 55 of the Land Titles Act do not apply to a registration
under subsection (2).
6(4)
Within 30 days after the terms of a notice have been complied with or a debt due to Fundy
Shores under subsection 8(3) or 10(4) or due to the Minister of Finance under subsection 14(3), as the
case may be, is discharged, Fundy Shores shall provide a certificate in the form prescribed by regulation
to that effect to the person to whom the notice was given under section 3 or was deemed to have been
given under subsection (2), as the case may be, and the certificate shall operate as a discharge of the
notice.
6(5)
A person to whom a certificate is provided under subsection (4) may register the certificate in
the appropriate land registration office, and, on registration of the certificate, the appropriate registrar
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of the land registration office shall cancel registration of the notice in respect of which the certificate
was provided.
Offence and penalty for failure to comply with a notice
7(1)
A person who fails to comply with the terms of a notice given under section 3 commits an
offence that is, subject to subsections (2) and (3), punishable under Part 2 of the Provincial Offences
Procedure Act as a category F offence.
7(2)
Despite subsection 56(6) of the Provincial Offences Procedure Act, if a person who is leasing a
dwelling or dwelling unit to another person commits an offence under subsection (1) in relation to a
notice given under section 3 with respect to the dwelling or dwelling unit, the minimum fine that may
be imposed by a judge under that Act in respect of the offence is $1,000.
7(3)
If an offence under subsection (1) continues for more than one day,
(a) if the offence was committed by a person in relation to a notice given under section 3 with
respect to a dwelling or dwelling unit the person is leasing to another person,
(i)
the minimum fine that may be imposed is the sum of
(A)
$1,000, and
(B) the minimum fine set by the Provincial Offences Procedure Act for a category F offence
multiplied by the number of days during which the offence continues after the first day,
and
(ii)
the maximum fine that may be imposed is the maximum fine set by the Provincial
Offences Procedure Act for a category F offence multiplied by the number of days during which
the offence continues, and
(b) in any other case,
(i)
the minimum fine that may be imposed is the minimum fine set by the Provincial
Offences Procedure Act for a category F offence multiplied by the number of days during which
the offence continues, and
(ii) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences
Procedure Act for a category F offence multiplied by the number of days during which the
offence continues.
7(4)
The conviction of a person under this section does not operate as a bar to further prosecution
for the continued neglect or failure on the person's part to comply with the provisions of this Part.
Power to clean, repair or demolish
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8(1)
If an owner or occupier does not comply with a final and binding notice given under section 3
within the time set out in the notice, Fundy Shores may, rather than commencing proceedings in
respect of the violation or in addition to doing so,
(a) cause the premises of that owner or occupier to be cleaned up or repaired if the notice arises
out of a condition contrary to subsection 2(1),
(b) cause the building or other structure of that owner or occupier to be repaired or demolished
if the notice arises out of a condition contrary to subsection 2(2), or
(c) cause the building or other structure of that owner or occupier to be demolished if the notice
arises out of a condition contrary to subsection 2(3).
8(2)
Subsection (1) does not apply in respect of a notice prepared and signed under subsection
10(1).
8(3)
The costs of carrying out any work set out in subsection (1), including any associated charge or
fee, is chargeable to the owner or occupier and becomes a debt due to Fundy Shores.
8(4)
For the purpose of subsection (1), the by-law enforcement officer who gave the notice in
respect of the premises, building or other structure and the authorized employees of Fundy Shores or
other persons acting on behalf of Fundy Shores may, at all reasonable times, enter the premises,
building or other structure in order to clean up or repair the premises or repair or demolish the
building or other structure, as the case may be.
8(5)
Fundy Shores or a person acting on its behalf is not liable to compensate an owner or occupier
or any other person by reason of anything done by or on behalf of Fundy Shores in the reasonable
exercise of its powers under this section.
Report required before demolition
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Fundy Shores shall not proceed to act under paragraph 8(1)(c) unless it has a report from an
architect, an engineer, a building inspector or the fire marshal that the building or structure is
dilapidated or structurally unsound and that report is proof in the absence of evidence to the contrary
that the building or structure is dilapidated or structurally unsound.
Emergency
10(1) If, on inspection of a property under section 144 of the Local Governance Act, the by-law
enforcement officer referred to in that section is satisfied that there is nonconformity with the
provisions of this Part to such an extent as to pose an emergency, the by-law enforcement officer may
prepare and sign a notice referred to in section 3 requiring the owner or occupier of the premises,
building or other structure in respect of which the notice is prepared to immediately carry out work to
terminate the danger.
10(2) After having prepared and signed a notice referred to in subsection (1), the by-law enforcement
officer may, either before or after the notice is given, take any measures necessary to terminate the
danger giving rise to the emergency, and, for this purpose, the by-law enforcement officer who
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prepared the notice and the authorized employees of Fundy Shores or other persons acting on behalf
of Fundy Shores may, at any time, enter the premises, building or other structure in respect of which
the notice was prepared.
10(3) Fundy Shores or a person acting on its behalf is not liable to compensate an owner or occupier
or any other person by reason of anything done by or on behalf of Fundy Shores in the reasonable
exercise of its powers under this section.
10(4) The cost of taking measures under subsection (2), including any associated charge or fee, is
chargeable to the owner or occupier and becomes a debt due to Fundy Shores.
10(5) If the notice referred to in subsection (1) was not given before measures were taken under
subsection (2) to terminate the danger, the by-law enforcement officer shall give a copy of the notice
as soon as the circumstances permit after the measures have been taken, and the copy of the notice
shall have attached to it a statement by the by-law enforcement officer describing the measures taken
by Fundy Shores and providing details of the amount spent in taking the measures.
10(6) If the notice referred to in subsection (1) was given before the measures were taken under
subsection (2), the by-law enforcement officer shall give a copy of the statement referred to in
subsection (5) in the same manner as a notice is given under subsection 3(3) as soon as the
circumstances permit after the measures have been taken.
Offence and penalty for obstruction
11(1) No person shall refuse entry to or obstruct or interfere with a by-law enforcement officer, an
authorized employee or other person referred to in subsection 8(4) or 10(2) who under the authority
of that subsection is entering or attempting to enter premises or a building or other structure.
11(2) A person who violates or fails to comply with subsection (1) commits an offence that is, subject
to subsections (3) and (4), punishable under Part 2 of the Provincial Offences Procedure Act as a
category F offence.
11(3) Despite subsection 56(6) of the Provincial Offences Procedure Act, if a person who is leasing a
dwelling or dwelling unit to another person commits an offence under subsection (2) in relation to the
dwelling or dwelling unit, the minimum fine that may be imposed by a judge under that Act in respect
of the offence is $1,000.
11(4) If an offence under subsection (2) continues for more than one day,
(a) if the offence was committed by a person in relation to a dwelling or dwelling unit the person
is leasing to another person,
(i)
the minimum fine that may be imposed is the sum of
(A)
$1,000, and
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(B)
the minimum fine set by the Provincial Offences Procedure Act for a category F
offence multiplied by the number of days during which the offence continues after the
first day, and
(ii)
the maximum fine that may be imposed is the maximum fine set by the Provincial
Offences Procedure Act for a category F offence multiplied by the number of days during which
the offence continues, and
(b)
in any other case,
(i)
the minimum fine that may be imposed is the minimum fine set by the Provincial
Offences Procedure Act for a category F offence multiplied by the number of days during which
the offence continues, and
(ii) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences
Procedure Act for a category F offence multiplied by the number of days during which the
offence continues.
Recovery of Fundy Shores's costs - filing of certificate
12(1) If the cost of carrying out work or the cost of taking measures becomes a debt due to Fundy
Shores under subsection 8(3) or 10(4), an officer of Fundy Shores may issue a certificate stating the
amount of the debt due and the name of the owner or occupier from whom the debt is due.
12(2) A certificate issued under subsection (1) may be filed in The Court of King's Bench of New
Brunswick and the filed certificate shall be entered and recorded in the Court and may then be enforced
as a judgment obtained in the Court by Fundy Shores against the person named in the certificate for a
debt in the amount specified in the certificate.
12(3) All reasonable costs and charges associated with filing, entering and recording a certificate
under subsection (2) may be recovered as if the amount had been included in the certificate.
Lien
13(1) Despite subsection 72(2) of the Workers' Compensation Act, the cost of carrying out work under
subsection 8(1) or of taking measures under subsection 10(2), as the case may be, and all reasonable
costs and charges associated with filing, entering and recording a certificate under section 12 shall,
until they are paid, form a lien on the real property in respect of which the work is carried out or the
measures are taken in priority to every claim, privilege, lien or other encumbrance, whenever created,
subject only to taxes levied under the Real Property Tax Act and to a special lien under subsection
117(9) of the Local Governance Act.
13(2) The lien in subsection (1)
(a) attaches when the work under subsection 8(1) begins or the measures under subsection 10(2)
begin, as the case may be, and does not require registering or filing any document or giving notice
to any person to create or preserve it, and
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(b) is not defeated by a change in the ownership of the real property.
13(3)
A mortgagee, judgment creditor or other person having a claim, privilege, lien or other
encumbrance on or against the real property to which a lien under subsection (1) is attached
(a)
may pay the amount of the lien,
(b) may add the amount to the person's mortgage, judgment or other security, and
(c) has the same rights and remedies for the amount that are contained in the person's
security.
Debts paid by the Minister of Finance
14(1)
If a debt due to Fundy Shores under subsection 8(3) or 10(4) remains unpaid in whole
or in part and the Minister of Finance is of the opinion that Fundy Shores has made reasonable efforts
to recover the unpaid amount, the Minister of Finance shall, if Fundy Shores requests the Minister to
do so before December 31 in any year, pay to Fundy Shores the following amounts in the following
year:
(a)
the unpaid amount of the debt; and
(b)
interest on the unpaid amount of the debt
(i)
calculated at the same rate that is applied in determining the amount of a penalty under
subsection 10(3) of the Real Property Tax Act, and
(ii)
accruing from the day Fundy Shores completes the work or measures in respect of
which the debt arose to the day Fundy Shores makes a request under this subsection for
payment in respect of the debt.
14(2) Fundy Shores shall make a request under subsection (1) by submitting to the Minister of
Finance a statement of the expenditures of Fundy Shores that gave rise to the debt.
14(3) Subject to subsection (4), if a debt due to Fundy Shores under subsection 8(3) or 10(4) in
relation to work carried out or measures taken with respect to premises or a building or other
structure remains unpaid, in whole or in part, by the person liable to pay the debt and the Minister of
Finance has made a payment under subsection (1) in respect of the debt,
(a) any part of the debt that remains unpaid by the person liable to pay the debt becomes a debt
due to the Minister of Finance, and
(b) the Minister of Finance shall collect the following amounts from the owner of the premises,
building or other structure in the same manner that taxes on real property are collected under
the Real Property Tax Act:
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(i)
any part of the debt under subsection 8(3) or 10(4) that remains unpaid by the person
liable to pay the debt; and
(ii)
interest on the unpaid part of the debt
(A)
calculated at the same rate as is applied in determining the amount of a penalty
under subsection 10(3) of the Real Property Tax Act, and
(B)
accruing from the day Fundy Shores completes the work or measures in respect
of which the debt arose to the day Fundy Shores makes a request under subsection (1)
for payment in respect of the debt.
14(4) Subject to subsections (5) and (6), for the purposes of subsection (3), the following provisions
of the Real Property Tax Act apply with the necessary modifications:
(a) section 7,
(b) section 10, except for subsection (2),
(c) section 11,
(d) section 12,
(e) sections 13 to 16, and
(f) sections 19 to 25.
14(5) If the amounts referred to in paragraph (3)(b) remain unpaid, those amounts and any penalty
added to them under subsection (4) constitute a lien on the real property in respect of which the work
was carried out or the measures were taken, and the lien ranks equally with a lien under subsection
11(1) of the Real Property Tax Act.
14(6) If the real property is sold under any order of foreclosure, seizure and sale, execution or other
legal process or a power of sale under a debenture or mortgage or under subsection 44(1) of
the Property Act, the amount of a lien referred to in subsection (5) constitutes a charge on the proceeds
that ranks equally with a charge under subsection 11(1) of the Real Property Tax Act.
This by-law comes into force January 1, 2024.
Read the first time by title only, this 14th day of September 2023.
Read the second time by title and summary, this 4th day of October 2023.
Read the third time by title only, this 4th day of October 2023.
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_____________________________
___________________________
George (Denny) Cogswell
Linda Sullivan Brown
Mayor
Chief Administrative Officer/Clerk
Rural Community of Fundy Shores
Rural Community of Fundy Shores
13
I, Linda Sullivan Brown, of the Rural Community of Fundy Shores, in the County of Charlotte and
Province of New Brunswick, Rural Community Clerk, DO SOLEMNLY DECLARE:
1.
THAT I am the Rural Community Clerk of Fundy Shores, a municipal corporation, and have
personal knowledge of the facts herein declared.
2.
THAT the requirements of Sections 129 of the Local Governance Act have been complied with
in respect to By-law No. C-1-2023, Being the Dangerous or Unsightly Premises By-law for
Fundy Shores.
AND I make this solemn declaration conscientiously believing it to be true and knowing that it
is of the same force and effect as if made under oath and by virtue of the Evidence Act.
DECLARED before me at the Rural Community
of Fundy Shores, in the County of Charlotte
and Province of New Brunswick,
this ____ day of _____________
A.D. 2023.
____________________________
COMMISSIONER OF OATHS
Linda Sullivan Brown, CAO/Clerk