Over the past few months, since the Municipal Election, I have been asked by both Council members and residents to go over Municipal By-laws from various municipalities, for any issues that may be present in those documents. This has been done in a purely research capacity and this is for their information only, as I am not a lawyer and do not give legal advice.
In most instances I have been appalled with these documents. What has been found is that a number of these By-laws are merely “copy and paste” from other municipalities; some use sections of the Municipal Act that had been repealed over a decade before the By-law was even presented – let alone passed; that sections of the Municipal Act and other pieces of legislation were used that don’t pertain and/or the interpretation is not what was meant by the legislation/regulation, etc., etc., etc.
An example, and one merely has to go to the “Corporation of the City of Cornwall Regular Meeting of Council By-law 2020-119,” opening paragraph:
“Whereas the Municipal Act, S.O . 2001, c. 25, Part lll, Section 130 authorizes the municipality to regulate matters not specifically provided for by this Act or any other Act for the purposes related to the health, safety and well-being of inhabitants of the municipality;”
Section 130 of the Municipal Act, was repealed in 2006, therefore there is no authority granted to the Municipality to “regulate matters not specifically provided for by this Act or any other Act for purposes related to the health, safety and well being of the inhabitants of the Municipality” established under section 130 of the Municipal Act.
That said, the present section 130, as of 2020, states:
“Noise re delivery of goods
130 (1) Despite sections 9, 10, 11 and 129, a municipality does not have the power to prohibit and regulate with respect to noise made in the municipality in connection with the delivery of goods to any of the following, except as otherwise authorized by regulation:
1. Retail business establishments.
2. Restaurants, including cafes and bars.
3. Hotels and motels.
4. Goods distribution facilities. 2020, c. 29, Sched. 3, s. 1.
(2) The Minister may make regulations,
(a) authorizing municipalities to prohibit and regulate with respect to noise made in the municipality in connection with the delivery of goods to any of the places described in subsection (1);
(b) governing the powers of a municipality under clause (a), including authorizing municipalities to exercise those powers in specified parts of the municipality;
(c) defining any word or expression referred to in paragraph 1, 2, 3 or 4 of subsection (1). 2020, c. 29, Sched. 3, s. 1.”
It seems this By-law, as it is based on a section of the Municipal Act which had been repealed in 2006 and then updated in 2020 has made this By-law an absurdity.
The statement of “copy and paste” is substantiated as this is the same statement in a number of these By-laws throughout Ontario.
Council and Staff have a “duty of care” to ensure they remain inside provincial legislation/regulation, as Municipalities is a creatures of province. When Council is sworn-in, the elected members pledge an oath to the Queen/King and to uphold the law. As one reads these various By-laws they find the contradictions, ambiguities, and the various expansions of jurisdiction beyond what is allowed under the Municipal Act, as well as various other pieces of legislation. This brings one to Court rulings with the statements of (Butterman v. Richmond):
“Municipalities … owe a duty of good faith decision-making to the public as a whole and a duty to take reasonable care in the implementation of a regulatory scheme … The precise nature and extent of that duty is determined on a case by case basis, taking into account the nature and purpose of the authorizing legislation, the nature and purpose of the subordinate legislation, and the relationship between the municipality and the person asserting its obligation of care…”
This is not necessarily the failings of Council, as Council members are told to listen to staff, as staff is supposed to know. It would seem some staff do not know. It could be an issue that there is so many pieces of legislation and regulation, and/or so many amendments to By-laws, that are causing these issues, as well.
It would seem the some, if not all, of these amendments, etc., are merely an avenue of “job security” for staff, to make it look like they are needed, and/or a revenue source to subsidize the municipal corporations, including staff growth. Or could it be that society has devolved so much that municipalities are trying to ensure their By-laws are idiot proof? It would seem they haven’t realized they can’t legislate for the inept.
Suffice it to say everyone should be expressing gratitude to those elected officials and those everyday residents who are questioning their local By-laws. The law is there for a reason – too much, as it is now, fails the people, particularly when they are so poorly written or written for unsubstantiated reasons.
Elizabeth F. Marshall,
President – All Rights Research Ltd.,
Director of Research – Ontario Landowners Association
Past Chair – Canadian Justice Review Board
Legislative/Legal Researcher – Lawyers, MPs, MPPs, Municipal Officials