Municipal Legislation and By-laws; Addendum Proposed New Municipal Act

May 1, 1998
Author: Quinto M. Annibale
Ontario Association of Property Standards Officers Conference

The paper which has been distributed with your materials was prepared last year when a consultation document had been released predicting that a new Municipal Act would be in effect for Ontario by January of 1998. Since that time a new consultation document was released (Spring of 1998) which, among other things, contains a more comprehensive draft Act than the earlier consultation document. Obviously the January 1998 implementation timetable has not been met, but the official position of the government now is that a Municipal Act will be in effect January 1, 1999. However, rumours abound that the government may defer introduction of the new Municipal Act until after the election because of the limited time remaining in this Legislative session and because of the controversy surrounding the proposed new Act.

However, I felt it would be useful to review some of the matters which have changed since the preparation of the paper that you have in your materials and some of the matters which are new to the revised draft. In no particular order, they are as follows:

1. Enforcement Powers

The enforcement powers of a municipality with respect to by-laws have been included as a separate part (Part XV), which is reproduced at the end of this addendum. It is described in greater detail below. It includes the power to create offences and the power to apply to a court for injunctive relief as well as setting out what the powers of entry for a municipality are with respect to inspections and the non-voluntary completion of work. It also deals with the imposition and collection of fines.

2. Business Licensing

Business licensing provisions are continued and are contained in Part III of the draft legislation.

3. User Fees

User fees are continued and included in Part XIII under the heading "Fees and Charges".

4. Enforcement

(i) Creation of Offences

Section 378 authorizes municipalities to pass by-laws creating offences. The Provincial Offences Act would continue to set out what the fine for contravention of the by-law would be.

(ii) Obstruction of Officer

Section 379, which is new, creates an offence of hindering or obstructing any person performing a duty under the Act or a by-law under the Act. Subsection (2) of that section actually creates the offence.

(iii) Self Help

Section 380 is a restatement of the existing section 326 of the Municipal Act which allows a municipality to authorize the doing of things which are required to be done, where the person required to do it defaults in the doing of it. Subsection 380(2) provides for the entry upon land and into structures at any reasonable time without a warrant for the purposes of carrying out the matter or thing to be done under subsection 380(1). It should be noted that this right of entry and every other power of entry is limited by sections 382 to 385 (described below) especially with respect to entering into any room or place actually being used as a dwelling (i.e. usually requires a warrant).

As well, the section re-iterates the ability to recover the costs of doing the thing or matter by action or in like manner as municipal taxes (same wording) in subsection 380(3).

(iv) Administrative Inspections - Warrantless Searches

The proposed Act contains a new provision providing for administrative inspections. Section 381 provides that a municipality may enter upon land and into structures at any reasonable time to inspect the land and structures to determine whether its by-laws under the Municipal Act are being complied with. This particular provision, as mentioned, is new and will assist greatly in the by-law enforcement efforts of municipalities.

(v) Powers of Entry - Assistance/Identification

Section 382 provides that a power of entry must be exercised by an employer or agent of the municipality, with or without accompaniment. Section 383 provides that any person exercising a power of entry must, on request, display or produce proper identification.

(vi) Warrant for Dwelling

Section 384, which is new, provides that any entry for the purposes of the exercise of any power under the Municipal Act or a by-law under the Act to any room or place actually being used as a dwelling, may not be made unless:

(1) the consent of the occupier is obtained following the occupant being informed that the right of entry can be refused and only exercised under warrant;

(2) a warrant is issued under section 158 of the Provincial Offences Act;

(3) the delay necessary to obtain a warrant or consent would result in "an immediate danger to the health or safety of any person"; or

(4) the requirements of section 385 (reasonable notice by personal service, restoration of the land to its original condition and compensation for any damage) are met and the entry is authorized under sections 34 or 35 (entry for the purposes of undertaking certain works related to public utilities) or subsection 380(3) (for the purposes of carrying out work required to be done in the event of default under a by-law or at law).

(vii) Order Closing Premises - Licensed Establishments

Section 386 sets out provisions related to the ordering premises to be closed. These are premises the owners of which have been convicted of knowingly carrying on or engaging in the trade business or occupation without a license.

(viii) Proof of By-law - Convictions not Invalidated

Section 387 of the Act provides rules for proof of a by-law on a motion to quash a conviction where the conviction was entered without proof of the by-law. The provision provides that the court hearing the motion to quash may dispense with proof of the by-law or may permit the by-law to be proved by an affidavit or in such other manner as it considers appropriate. This does not dispense with the necessity of proof in the first instance.

(ix) Certified Copies of Records Admissible

Section 388 of the proposed Act provides that a copy of any record under the control of the Clerk which is purported to be certified by the Clerk under seal, may be filed and used in the court instead of the original and is admissible in evidence without proof of the seal or of the signature of the person signing it unless a court otherwise orders. Subsections (2), (3), (4) and (5) contain similar provisions with respect to certified copies of documents of local boards, archivists and statements with respect to licensing status.

(x) Fines

Section 389 re-iterates that every fine imposed for a contravention of a municipal by-law belongs to the municipality and that the proceeds of any fine imposed in a prosecution under section 379 (obstruction of an officer) also belong to a municipality. Section 390 contains special rules as between lower and upper tier municipalities and when they are entitled to fines.

(xi) Other

Provisions related to an owner's liability for illegally parked vehicles (Section 391), collection of unpaid licensing fines (Section 392), costs in legal proceedings (Section 393), orders of prohibition for continuation of an offence (Section 394), the ability to restrain by action (Section 395) and the right to enforce agreements (Section 396) have not changed substantially.

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