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Report To: General Government Committee
Date of Meeting: November 30, 2020 Report Number: LGS-005-20
Submitted By: Rob Maciver, Director of Legislative Services/Municipal Solicitor
Reviewed By: Andrew C. Allison, CAO
File Number: L2030-02-61E
Resolution#:
By-law Number:
Report Subject: Municipal Law Enforcement Policy
Recommendations:
1.That Report LGS-005-20 be received;
2.That Council Adopt the Municipal Law Enforcement Policy, as Attachment 1 to
Report LGS-005-20;
3.That the draft by-law found at Attachment 3 to Report LGS-005-20, be enacted; and
4.That all interested parties listed in Report LGS-005-20 and any delegations be
advised of Council’s decision.
Municipality of Clarington Page 2
Report LGS-005-20
1. Background
1.1 This report is the culmination of multiple independent directions to staff in relation to the
transparent, fair, and consistent enforcement of municipal by-laws, and the proper
relationship between Council members and municipal law enforcement staff.
1.2 On, May 11, 2020, the General Government Committee requested a response from the
Municipal Integrity Commissioner to the following question : “can a Council Member who
believes that a by-law infraction has occurred report the alleged infraction to the
Municipal Law Enforcement Division?” The Integrity Commissioner’s response was
provided to Council on June 15, 2020.
1.3 In response to a request for further clarification, council passed Resolution #C-265-20,
which provided:
That Correspondence Item 9.1 be referred back to staff to enquire if Members
of Council are permitted to follow up with Municipal Law Enforcement staff on
whether a matter has been rectified, and if not why; and
That a policy detailing Council's role in enforcement be developed.
1.4 On September 14, 2020 Report CLD-013-20, Addressing Frivolous, Vexatious or
Malicious Enforcement complaints, was considered during the Joint Committee
Meeting. At the September 21, 2020 Council meeting, Council passed Resolution # C-
386-20, which provided:
That Report CLD-013-20 be received; and
That Staff be directed to report back on developing a By-law that is similar to St.
Catharines' regarding frivolous, vexatious or malicious enforcement complaints.
Report Overview
This report is provided in response to the Council direction to prepare a Municipal Law
Enforcement Policy which is similar to the City of St. Catharines regarding frivolous and
vexatious requests. The draft policy also clearly establishes the role of Council in
enforcement activities, in response to an earlier request from Council for further clarification
from the Municipal Integrity Commissioner.
Municipality of Clarington Page 3
Report LGS-005-20
2. Discussion
2.1 As was indicated by the former Municipal Clerk during the September 21, 2020 Council
meeting, a Municipal Law Enforcement Procedure was in development and had just
been reviewed with the Enforcement Team. The management of frivolous and vexatious
complaints has been included as a component of the draft procedure. The Draft
Municipal Law Enforcement Policy is found at Attachment 1 of this report.
2.2 In response to Resolutions #C-265-20 and #C-386-20, staff have undertaken a review
of policies and By-laws implemented or considered by other municipalities, including
Oshawa, Mississauga, and St. Catharines.
2.3 Staff incorporated many of the elements from other municipalities into the draft
Municipal Law Enforcement Policy and provided the draft to the Municipal Integrity
Commissioner for additional input.
2.4 The Municipal Integrity Commissioner was also provided with the recordings of the
Council and Committee meetings at which the issue of interactions between Council
members and municipal law enforcement staff were discussed. A response from the
Integrity Commissioner is attached to this report as Attachment 2.
2.5 In response to the direction from Council and having regard for the advice of the
Integrity Commissioner, staff recommends that the by-law found at Attachment 3 be
enacted to adopt the draft Municipal Law Enforcement Policy.
3. Concurrence
Not Applicable.
4. Conclusion
It is respectfully recommended that Council enact the draft by-law attached to adopt the
Municipal Law Enforcement Policy.
Staff Contact: Rob Maciver, Director of Legislative Services, 905-623-3379 ext. 2013 or
rmaciver@clarington.net.
Attachments:
Attachment 1 – Draft Municipal Law Enforcement Policy
Attachment 2 – Memorandum from Integrity Commissioner Guy Giorno, dated Oct. 15, 2020
Attachment 3 – Draft By-law to adopt Municipal Enforcement Policy
Interested Parties:
There are no interested parties to be notified of Council's decision.
Attachment 1 to Report LGS-005-20
Policy Title: Enforcement Policy
Policy #: xxx
Report #: LGS-005-20
Resolution: xxx
Effective Date: December 14, 2020
Revised Date:
Legislative History:
Notes:
1. Purpose:
To establish a transparent, consistent, fair, unbiased, and effective process for
enforcement and prosecution of relevant laws.
2. Definitions:
“Council” means the Council of the Municipality of Clarington;
“Officer” means a person appointed by the Municipality to enforce or prosecute a
Relevant Law;
“Relevant Law” means any Municipal by-law, or Provincial legislation, for which
the Municipality has a responsibility to enforce or prosecute.
3. Roles
Reporting Infractions
3.1. Any person who has reason to believe that an infraction of a Relevant Law has
occurred, may report the matter to the Municipal Law Enforcement Division.
3.2. A person who reports an infraction may be summonsed to testify before a court
or tribunal in the prosecution of an alleged contravention of a rel evant law.
Council
3.3. Council Members will respect and abide by the legally recognized principle that
Officers have a duty to enforce and prosecute Relevant Laws in a manner that is
fair and impartial and in a manner that is independent of political direction .
3.4. Council Members will respect that Officers have an independent discretion to
make enforcement decisions based on their knowledge, experience, and
educated judgement.
3.5. Council Members will acknowledge that the independence of an Officer
includes, for example, the discretion to investigate (or not) and to issue a ticket
(or not).
Attachment 1 to Report LGS-005-20
3.6. Council Members will not interfere with an Officer in the exercise of their duties
or attempt to influence the actions of an Officer except in the circumstances
specifically provided in this policy.
3.7. Consistent with the provisions of the Code of conduct for Members of Council,
no member shall use or attempt to further his or her authority or influence by
intimidating, threatening, coercing, commanding or influencing improperly any
staff member of interfering with that staff person’s duties, including the duty to
disclose improper activity.
3.8. As with any other person, a Council Member who has reason to believe that an
infraction of a Relevant Law has occurred may report the matter to the Municipal
Law Enforcement Division.
3.9. Upon submitting a report, a Council Member shall be treated with the same
courtesy, and with the same restrictions on access to information, as would any
other complainant.
3.10. In reporting an infraction, a Council Member shall simply communicate the facts
and not express an opinion about how a Relevant Law should be enforced.
Thereafter, in order to avoid influencing or interfering with municipal law
enforcement, the Council Member shall not communicate with an Officer about
how the matter should be handled.
3.11. It is only legitimate for a Council Member to communicate with an Officer about
a law enforcement matter if the Council Member does seek to influence the
discretion of the Officer in the performance of their duties.
3.12. A Council Member will not inquire with an Officer about the status of any
particular enforcement matter except to query whether a file has been opened or
closed, whether an inspection has occurred, or whether a ticket has been
issued. In the case of a matter that has been fully resolved, a Council Member
is also permitted to inquire as to the outcome. In making such inquiries, Council
Members will refrain from stating or insinuating an opinion about any action
taken, or decision made, by the Officer with respect to the matter.
3.13. It is also consistent with the objectives of this policy for a Council Member to
inquire with the Director of Legislative Services or the Manager of Municipal Law
Enforcement about general concerns that do not relate to a specific enf orcement
decision, or about standard operating procedures, processes, or practices of the
Municipal Law Enforcement Division.
3.14. Reports from a Council Member must be based on direct (first-hand) knowledge.
3.15. Council Members will refrain from relying on second-hand information as the
basis of their complaint. If information about the alleged infraction originates
from a third party, the Council Member should explain how to contact the
Attachment 1 to Report LGS-005-20
Municipal Law Enforcement Division so that the third party may, if desired, make
the report directly.
3.16. Council Members shall refrain from forwarding third party communications or
complaints to an Officer for a response.
3.17. In referring a third party to the Municipal Law Enforcement Division, a Council
Member will only provide contact information and information about the reporting
process and will neither encourage nor discourage the third party from taking
action. Reporting a matter must be an independent decision.
3.18. A Council Member will refrain form the exercise of any official function that could
impact the outcome of any complaint or investigation.
3.19. With respect to enforcement of Relevant Laws, Council may,
a) From time to time establish, amend or repeal Municipal by-laws;
b) Establish the budget for and policies related to the enforcement of
Municipal by-laws; or
c) At meetings of Council or one of its Standing Committees, ask general
questions of, and receive information from, the Director on general
questions relating to the enforcement activities of the Municipality.
Staff
3.20. In consultation with a supervisor, it is the responsibility of an Officer to,
a) receive complaints regarding alleged contraventions of relevant laws;
b) continuously communicate and coordinate call investigations to provide
the most efficient time management and customer service;
c) screen complaints to determine if the subject matter of the allegation(s)
falls within their jurisdiction;
d) undertake investigations by making one of the following
determinations:
i. there is insufficient evidence to proceed with enforcement in
response to the complaint;
ii. the subject matter of the complaint has been resolved though
compliance;
iii. the complaint is trivial, frivolous, vexatious or made in bad faith;
or
Attachment 1 to Report LGS-005-20
iv. the matter the subject of the complaint requires enforcement
action.
e) For such matters for which a determination has been made pursuant to
clause d), cause to be undertaken enforcement by such means as may
result in compliance as efficiently and effectively as possible, including
as applicable, by
i. request;
ii. commencement of a proceeding pursuant to the Provincial
Offences Act; or
iii. commencement of remedial work by the Municipality.
4. Complaint Requirements
4.1. A complaint related to an infraction of a Relevant Law may be submitted to the
Municipal Law Enforcement Division via email, telephone, on-line form, or in
person. The following information must be provided by the complainant:
a) name;
b) address;
c) contact number; and
d) details regarding the issue (e.g. address/area, timing, alleged violation)
4.2. Inaction will result if there is failure to provide this necessary information, unless
there is an apprehension of a significant risk to health or safety of the public, in
which case the matter will be dispatched with an emergency priority.
4.3. Notwithstanding the above requirements, a complaint about property standards
shall be submitted in writing (including email, or online complaint form). Where
a person is unable to submit in writing, they shall be offered the option to attend
the Municipal Law Enforcement Office where a staff member can assist them in
documenting their concerns.
5. Prioritizing Calls
5.1. Investigations will be distributed by the Manager of Municipal Law Enforcement,
or their delegate, to Officers based on their assigned patrol areas and by priority.
5.2. The priority ratings of files in descending order are:
a) Emergency – matter of public safety; immediate threat such as uncovered
well, hazardous broken tree limbs, or aggressive animal at large (i.e. not
confined nor restrained);
Attachment 1 to Report LGS-005-20
b) High - time sensitive; a pressing necessity to act such as a vehicle
blocking driveway, active site alterations, boulevards and fill operations,
injured animal/wildlife, dog bites, or confined animal;
c) Low – long-term issue which is just now being reported such as long
grass, weeds, public nuisance, parked more than 3 hours, or failure to
retrieve pet waste;
d) Routine – matter is a known re-occurring issue affecting multiple residents
such as 3-5 a.m. parking, snow removal, school zone enforcement, or dog
off leash patrols; and
e) Information Only – e.g. wildlife sighting.
5.3. Investigative response to all files shall be attended/completed in a timely
manner, within the established policies and procedures. The following shall be a
guideline to assist in initiating investigations to calls as prioritized:
a) Emergency priority calls will be attended at the earliest opportunity by
the most available Officer. The most available Officer may be
determined by response time, ability to attend based on active field
investigations, and will be assisted by the Officer assigned to the area
at the earliest opportunity;
b) Investigations of High prioritized calls will be initiated by the Officer
within 12 business hours after being assigned; and
c) Investigations of Low and Routine prioritized calls shall be initia ted by
the Officer based on existing call load.
5.4. In addition to the above, several factors shall be taken into account when
determining appropriate timelines for an initial response and complete
processing of any complaints up to, and including, voluntary or court ordered
compliance. It is acknowledged that an officer’s ability to process any complaint
efficiently and effectively is greatly impacted by issues and factors beyond their
individual control. Some examples of factors that could impede an enforcement
response include:
a) threats to public safety (which always take priority over other
complaints);
b) Council requests;
c) court preparation and appearance;
d) ticket review session attendance;
e) special projects (e.g. taxi, mobile signs);
Attachment 1 to Report LGS-005-20
f) administration and revisions of current by-laws (e.g. research and
drafting of new by-laws);
g) Municipal events (e.g. Canada Day, Ribfest, Food Truck Frenzy,
Municipal Elections);
h) scheduled review and administration of license and permit applications
(e.g. mobile signs, taxi drivers);
i) responding to calls for actions from other departments and agencies;
j) coordination with contractors for completion of work orders on private
property;
k) holidays and vacation;
l) illness;
m) staff vacancies;
n) inclement weather; or
o) Provincial Order.
6. Investigations
6.1. All investigations shall follow the appropriate Policies and Procedures with due
diligence with the objective of fairness and consistent application of Relevant
Laws.
6.2. Once assigned a file, an Officer shall undertake an investigation to better
understand the situation. All investigations shall be initiated based on the priority
system identified in this policy, and in accordance with any other applicable
policies and procedures.
6.3. For by-law matters which have a high frustration level or emotional component
for complainants (e.g. noise, dog incident), the Officer shall contact the
complainant to acknowledge the complaint and discuss the matter before
initiating any action.
6.4. If requested, an Officer shall maintain contact with a complainant to keep them
apprised of the investigation as it progresses and of the outcome.
7. Frivolous, Vexatious or Malicious Complaints
7.1. For the purposes of this policy, f rivolous or vexatious refers to any action made
with the intention to embarrass or annoy the recipient or that is part of a pattern
of conduct that amounts to an abuse of the infraction reporting process.
Attachment 1 to Report LGS-005-20
7.2. In the assessment of whether a pattern of conduct has been established in
relation to the above, the factors to be considered include but are not limited to:
a) whether the complaint concerns an issue which staff have already
investigated and determined to be groundless, or an issue which is
substantially similar to an issue which staff have already investigated and
determined to be groundless (e.g. with respect to the same neighbour or
same property);
b) whether the complainant engages in any unreasonable conduct or
aggravating behaviour, including, but not limited to:
i. harassment, verbal abuse or intimidation;
ii. making excessive or multiple lines of enquiry regarding the same
issue (e.g. pursuing a complaint with staff in multiple departments
and/or elected officials simultaneously) while their complaint is in
the process of being investigated;
iii. repetitious and unreasonable criticism of an investigation or
outcome;
iv. repetitious and unreasonable denial that an adequate response has
been given;
v. unreasonable refusal to acknowledge that an issue falls outside the
Municipal jurisdiction;
vi. unreasonable demands (e.g. insisting on responses to complaints
and enquiries within an unreasonable timeframe);
vii. statements or representations that the complainant knows or ought
to know are incorrect, or influencing others to make such
statements;
viii. demanding special treatment from staff (e.g. ignoring established
complaint protocols);
ix. shifting basis of the complaint and/or denial of previous statements
made;
x. refusal to cooperate with the investigation process while still
wanting their complaint to be resolved; or
xi. failure to clearly identify the precise issues of the complaint, despite
reasonable efforts of staff to assist.
7.3. If an Officer concludes that a complaint is frivolous, vexatious, or malicious, the
Officer shall provide to the Manager of Municipal Law Enforcement any
Attachment 1 to Report LGS-005-20
documents or other materials in support of their conclusion, together with any
relevant details, including but not limited to the number of interactions with the
complainant, the amount of time invested, the repetitiousness of interactions,
and presence of any of the above-mentioned factors, and the Manager shall
make a final determination. In making a final determination, the Manager may
contact the complainant to discuss the background information.
7.4. If the Manager of Municipal Law Enforcement determines that a complaint is
frivolous, vexatious, or malicious, the Manager may issue a warning letter to the
complainant which may include the imposition of limitation concerning future
interactions with staff (e.g. restricting interaction with a single point of contact
with the Municipality, instructing staff to not respond to further written
correspondence, or ensuring no staff member is left alone in the presence of the
complainant).
7.5. If the Officer, in consultation with the Manager, determines that a complaint is
frivolous, vexatious, or malicious in nature, the file shall be closed, the reasons
for the decision documented, and the complainant shall be advised of the status.
No further action will be taken on the file.
7.6. Notwithstanding a determination that a complaint is frivolous, vexatious or
malicious, a file may be re-opened in the future where there is sufficient reason
to do so, or the situation has changed.
8. Communication about a Particular Enforcement Matter
8.1. A complainant shall be notified at the first opportunity, that their complaint has
been received, together with the name of the Officer who will be investigating
the matter, and the Occurrence Tracking System File Number.
8.2. Where the complaint is received through a channel other than in person or over
the phone, prior to assigning the complaint to an Officer, and where deemed
necessary, a staff member will contact the complainant within one business day
of receipt to clarify the information that has been previously provided.
8.3. Staff will ensure that complainants are provided the information required to
adequately understand the role of the Officer, and the extent of their ability to
assist them with their concern. General information may be provided to assist
them in finding a solution, including information on our website or re-directing to
another Department or agency.
8.4. An Officer shall not disclose any confidential information including personal
information gained in the performance of their duties except as required for
prosecution purposes or otherwise as legally authorized.
8.5. Every Officer shall report to the Manager of Law Enforcement, who will in turn
report to the Director of Legislative Services, any attempt at improper influence
Attachment 1 to Report LGS-005-20
or interference, financial, political or otherwise, respecting the Officer’s
performance of his or her duties.
8.6. Each Officer who is contacted by a member of Council with respect to an
outstanding complaint or investigation matter, other than a complaint made by or
against the Council member, or in which the Council member is a witness, shall
immediately report such contact to the Manager of Law Enforcement who will in
turn report it to the Director of Legislative Services.
8.7. The Director may report to Council with the particulars of any reports received
from an Officer pursuant to Section 8.5 and 8.6.
8.8. No action shall be taken against an Officer or the Director, as the case may be,
for reporting in good faith pursuant to sections 8.5, 8.6, or 8.7.
9. General
9.1. Enforcement related records shall be managed through the Occurrence
Tracking System Database. Access to this system is limited to those staff
members who require access in the performance of their duties. Records shall
include personal information pertaining to complainants and any witnesses,
investigation notes and details, communications, photos and any other
supporting materials.
309844.00001/108812705.3
MEMORANDUM
To: Council
Municipality of Clarington
From: Guy W. Giorno
Integrity Commissioner
Date: October 15, 2020
Re: Council Members and Follow-Up Communication with Bylaw Enforcement
This memorandum is written further to my June 8 report, “Council Members and Alleged By-
law Infractions.” It specifically addresses the question of whether, and how, a Council Member
should follow up about a property standards concern that the Member believes has not been
addressed. More generally, it addresses the appropriate role of Council in the by-law
enforcement process.
Summary and recommendations
I support the staff’s initiative to develop a transparent policy or procedure on by-law
enforcement. I have reviewed and provided comment the section of the draft policy dealing with
“Council Interactions with Enforcement Officers,” and find that it is consistent with my previous
recommendations. However, as discussed below, it is also open to Clarington to address
additional issues in a policy on by-law enforcement, and I have offered comments to the
Municipal Clerk and the Director of Legislative Services on other sections of the draft.
Any involvement of Council in by-law must be exercised by Council as a whole, not individual
Members. I confirm my previous advice that individual Members should not involve themselves
in specific enforcement matters. Non-involvement means, among other things, that a Member
should not be copied on communication about an enforcement matter.
Despite the general principle of non-involvement, my view remains that an individual Member
has the same right as a member of the public to complain personally about an alleged by-law
infraction. The Member who does this, acts in an individual capacity and must be treated the
same as any other complainant. The Member who files a by-law complaint must refrain from the
exercise of any official function that could affect the complaint and investigation.
309844.00001/108812705.3 2
Independence of municipal by-law enforcement officers
The observations I made about independent by-law enforcement are not mine alone. The legal
principle that enforcement decisions must not be subject to political involvement or interference
has been adopted and confirmed in a number of places, including the City of Oshawa.
The Preamble to Oshawa’s Enforcement By-law recognizes that:
Council considers it appropriate to ensure the proper administration of justice, to
respect the roles of Council members, complainants, staff investigators and
prosecutors in the administration, enforcement and prosecution of alleged
contraventions of municipal bylaws and other applicable provincial legislation, and to
ensure that such investigations and prosecutions occur in a fair and unbiased way,
free from any improper influence or interference.1 [emphasis added]
The Oshawa by-law obliges a municipal law enforcement officer to report immediately any
contact from a Council Member related to a complaint or investigation, except in the case of a
complaint made by or against the Council Member or an investigation in which the Member is a
witness.2 The report of Council Member contact must be made to the by-law officer’s director,
who then must inform the City Solicitor, who, in turn, may inform City Council.3
The principle of independent by-law enforcement has been incorporated into the policy
statements of several other municipalities. For example, the Town of Mono and the Town of
Shelburne have confirmed, as policy, that, “Council … shall not be involved individually in day
to-day by-law enforcement decisions.”4
Meanwhile, the policy of the Town of Amherstburg is that, “Municipal Council is not involved
in any way with the sanctioning of an investigation or making a decision on who shall be
investigated.”5
In the Township of Wainfleet, Council has approved the following rule:
Once an investigation is underway: no Complainant, Member of Council, Staff or
other person shall attempt to influence, obstruct or hinder any investigation, or
provide direction on who shall or shall not be investigated – other than through their
rights in the filing of a Complaint.6
1 City of Oshawa, By-law 92-2014, Being a by-law to establish a transparent, consistent, fair, unbiased, and
effective process for the enforcement and prosecution of alleged contraventions of municipal standards,
Preamble, para. 5.
2 Ibid., section 11.
3 Ibid., section 11.
4 Town of Mono, Bylaw Enforcement Policy (approved May 12, 2020), section 3.21; Town of Shelburne, Policy
Number 2019-07, By-law Enforcement Policy, section 3.23.
5 Town of Amherstburg, Municipal By-law Enforcement Policy, section 6.2 d).
6 Township of Wainfleet, Corporate Policy Manual, Policy 3-1, By-law Enforcement Policy (approved October
22, 2019), para. 3-1 d.
309844.00001/108812705.3 3
The connection between enforcement officers’ discretion and their independence from Council
Members was explained in this manner in a staff report to Toronto City Council:
Once officers determine the permitted tools, they use their discretion to determine
the tool that will achieve compliance most effectively. Officers consider the
seriousness of the violation, the impact of the violation on public safety, the likelihood
of the person to repeat the violation, and the impact of the enforcement activity on
business and community in Toronto. The decision to take enforcement action must
be free from bias and political interference. The tool used should be proportional to
the harm caused by the violation.7 [emphasis added]
This specific issue was considered at great length by the British Columbia Ombudsperson, whose
observations (in a 2016 special report) represent the most detailed review of the independence
principle in a Canadian context:
… council establishes overall priorities for enforcement, enacts bylaws, and adopts
bylaw enforcement policies and standards of conduct for bylaw enforcement staff.
Council may also provide direction on types of bylaw enforcement issues. For
example, council may direct its enforcement staff to prioritize enforcement of certain
bylaws, or to issue warnings rather than tickets for specific categories of violations.
Within this framework, everyday enforcement decisions are delegated to staff.
Defining and maintaining separation between council and front-line enforcement staff
is essential to an administratively fair bylaw enforcement system. It is important for
council members to be aware of how their own actions can affect the fairness of an
enforcement process. This means that while council sets policy and provides general
direction on enforcement priorities, its individual members should not become directly
involved in enforcement action by directing enforcement against specific residents,
groups or businesses, or by directing that enforcement action not occur in a
particular circumstance. Rather, individual enforcement decisions should be made by
delegated bylaw enforcement staff or contractors.
It can be difficult for council members to remain a step removed from the day-to-day
enforcement process when they are a main point of contact for members of the
public who have complaints or who have been the subject of enforcement. It is
understandable that council members want to be responsive to the concerns of those
who elected them. In such situations, it is certainly appropriate for a member of
council to seek assurance that bylaw enforcement staff have fairly responded to a
person’s concerns.
However, even if motivated by good intentions, council members should not
advocate either publicly or privately for a particular result in a specific case. Doing so
can create the appearance of bias, particularly if council later hears an appeal on the
same matter after bylaw enforcement action is taken. Moreover, any action by a
council member that is motivated by favouritism or personal animosity toward an
individual may be perceived as an improper use of discretion. Each member of
council should strive to remain uninvolved in a specific bylaw enforcement decision
unless and until the matter is put on the agenda for the entire council to consider.8
7 City of Toronto, Executive Director, Municipal Licensing and Standards, “Tools Available to Municipal
Licensing and Standards for Enforcement” (September 7. 2016), at 3.
8 British Columbia, Office of the Ombudsperson, “Bylaw Enforcement: Best Practices for Local Governments”
(March 2016), Special Report No. 36, at 15-16.
309844.00001/108812705.3 4
A policy on by-law enforcement
Many municipalities, in Ontario and across Canada, have adopted policies on by-law
enforcement. Here in Clarington, the staff has been engaged in development of a policy or
procedure on law enforcement, and will present it to Council. In my view, this is a welcome
initiative.
Among other aspects of the policy under development, the Municipal Clerk specifically asked
me to review the section, “Council Interactions with Enforcement Officers.” In my view, this
draft section is consistent with my previous recommendations, and consistent with the Canadian
principle of the independence of law enforcement from political interference. I provided to the a
few comments on that draft section. I also made comments on the rest of the draft
policy/procedure.
Council should note that Members’ involvement in the process is just one of many topics that
could be covered in a policy on by-law enforcement. For example, some of the issues addressed
by the enforcement policies of other municipalities include the following:
Complaint intake process
Confidentiality/privacy
Priority of response / hierarchy of alleged contraventions
Identification of “hotspots” for priority enforcement
Investigation process
Communication with complainants
Record keeping
Enforcement options
“Spite complaints” / Frivolous and vexatious complaints
This is an incomplete list.
As elaborated below, my recommendations on by-law enforcement include: (a) treating
individual Council Members who complain exactly the same as residents who complain, and
(b) defining the role of Council as a whole. A formal enforcement policy would assist in meeting
these objectives.
The role of individual Members
I confirm my previous advice that individual Members should not involve themselves in specific
enforcement matters. In an official capacity, a Member should not attempt to influence who
does or does not get investigated or ticketed.
At the same time, an individual who, in a personal capacity, witnesses an alleged contravention,
might also happen to be a Council Member. Getting elected to office does not deprive an
individual of the benefit of law enforcement. Despite the general principle of non-involvement,
my view is that an individual Member has the same right as a member of the public to complain
personally about an alleged by-law infraction.
309844.00001/108812705.3 5
When this occurs, the complaining Member acts in an individual capacity and must be treated the
same as any other complainant. For example, this means that the individual (who also happens to
be a Member) must complain in the same manner as anyone else, and must receive the same
level of disclosure as anyone else.
The policies of several municipalities require that anyone, including a Council Member, who
wishes to complain about a by-law contravention must file a formal written complaint.
Municipalities that expressly require Council Members to follow the same intake process as
members of the general public include: Amherstburg, Edwardsburgh Cardinal, Greater Napanee,
Penetanguishene, and Wainfleet.
I recommend the same here. A Council Member who wishes to complain about an alleged
contravention should do so in a personal capacity and be subject to the same process as anyone
else.
It must be stressed that making a complaint is a personal act, not something that one does in the
capacity of elected official. Only if the Council Member possesses direct knowledge of an
alleged contravention, and wishes to trigger the enforcement process, should the Member make a
complaint. If the goal of an elected official be merely to assist constituents, then the way to do
so is to make them aware of the enforcement process, including how to file a complaint.
If a Council Member complains about an alleged contravention, then the Member should not
participate in any Council or committee consideration of the matter. The Member who files a by-
law complaint must refrain from the exercise of any official function that could affect the
complaint and investigation. (Withdrawal from Council decision making is also required if a
Member happens to be the subject of a complaint or investigation, such as one involving alleged
non-compliance with a property standard on the Member’s property.)
Communication about a particular enforcement matter
If a Council Member has made a complaint to municipal law enforcement, then the Member is
entitled to no more (and no less) disclosure than any other resident who complains.
Confidentiality and disclosure are topics addressed in many municipal by-law enforcement
policies. Among other reasons, some municipalities find it desirable to be transparent about how
much information will be provided to someone who submits a by-law enforcement complaint.
The appropriate amount of disclosure to a complainant is beyond the scope of this memo. I note,
however, that some municipalities only give the complainant (a) acknowledgement of receipt of
the complaint, and (b) an eventual statement of the fact that action or no action has been, or will
be, taken, or the fact that the investigation and enforcement action have been completed. My
understanding is that Clarington’s current practice is similar.
Regardless of how much disclosure Clarington provides to complainants, a Council Member
who has submitted a complaint should receive the same amount of disclosure as anyone else.
309844.00001/108812705.3 6
Many municipal policies also protect the confidentiality of complainants and their complaints.9
(This is subject, of course, to the possible need to disclose information as part of the legal
process.) A Council Member should receive no greater access to complaint and complainant
information than the access of anyone else. Some municipalities make explicitly clear that the
complainant’s name and personal information shall not be disclosed to any Council Member, the
news media, or any municipal employee who does not need to know.
In hindsight, in this respect, my previous guidance should have been more clear. When I
previously addressed the question of Council Member access to information about by-law
enforcement, I should have pointed to the importance of an overall policy framework that
addresses, among other topics, confidentiality during the complaint and investigation process.
Specific questions about Members’ access to information must be considered in the context of
confidentiality generally, on the basis of the enforcement policy that Council will be asked to
consider.
Absent that larger context, I can only respond conceptually to some of the specific questions that
have been raised about communication, including this one: If a Member has relayed to
Municipal Law Enforcement facts that the Member believes violate the property standard by-
law, and the facts remain unchanged one year later, may the Member follow-up with Municipal
Law Enforcement?
If the Council Member is the complainant, then the Member should receive the same amount of
disclosure that any other complainant would receive in the same circumstance (disclosure that is,
ideally, spelled out in Clarington’s formal statement of policy on enforcement). Since in theory a
member of the public may request information on the status of the individual’s complaint, a
Member should also be allowed to ask the status of the Member’s own complaint. The ability to
ask, does not, however, mean entitlement to an answer, beyond what any other complainant in
the same circumstance would be told.
If the Member is not the complainant, then presumably the complainant is a constituent or a
member of the public who approached the Member. Such complainant should receive the same
amount of disclosure as any other complainant. Aside from the very real concern that Member
involvement could interfere with independence of the investigation, it would also be a problem if
different complainants were to receive different amounts of disclosure based on their degrees of
access to elected officials.
In all cases, a request for a status update must be confined to that request. At no time should the
Member express an opinion on how Municipal Bylaw Enforcement should conduct or conclude
an investigation into a complaint. For example, in a prior case, communicating the opinion that a
9 See, for example, Township of Scugog, By-Law Enforcement Policy (effective March 30, 2009), at 2: “The
Investigator assures the complainant that their name and any personal information provided by them will remain
in the strictest of confidence, in accordance with the Municipal Freedom of Information and Protection of
Privacy Act and will not be revealed to anyone unless so ordered by a Court or other tribunal or body of
competent jurisdiction.”
309844.00001/108812705.3 7
certain situation should not be allowed was considered an attempt to influence or interfere with
the law enforcement staff contrary to Section 8.3(c) of the Code.10
The role of Council (as a whole)
Restrictions on the involvement of individual Members are not meant to apply to Council, which
is the ultimate authority of the municipality in law making, policy making, services
determination, and financial stewardship.
Council makes, amends, and repeals the by-laws that officers enforce. It can also, through policy,
address general matters related to by-law enforcement, including, but not limited to:
principles/processes for communication with complainants and property owners; principles to be
taken into account in the exercise of discretion; and required internal consultation and approval
before escalation. I understand that the draft policy/procedure being developed by staff, for
consideration by Council, will address most of those topics.
As mentioned above, Clarington’s new policy should also – as proposed in the “Council
Interactions with Enforcement Officers” section that I reviewed – define the roles of Council
Members and the staff, and protect the independence of the administration of law enforcement.
Political interference in the administration of law enforcement is never acceptable. Operational
direction should never be given in a particular case. However, within the scope of that principle,
some municipalities formally provide for certain by-law enforcement matters to be brought to the
attention of Council.
For example, some municipalities identify specific decisions with financial consequences of
which their councils must be informed.
Some municipal policies state generally that the staff may report a particular by-law enforcement
matter to Council. I agree that a municipal by-law enforcement policy should address the
circumstances in which reporting to Council would occur, but I recommend that both the
circumstances and the Council role be clearly and specifically described, and not be general or
vague, in order to avoid any possibility or perception of interference in the independence of by-
law enforcement.
(The Ombudsman of Ontario agrees that municipalities should adopt by-law enforcement
policies, and that the policies should address the circumstances of updates to Council. He has
also stressed the distinct roles of Council and staff, and the principle of the exercise of discretion
by the staff.11 He has not, to my knowledge, addressed which particular circumstances he feels
would justify or require reporting to Council.)
10 In Re Partner, 2018 ONMIC 16 at 61, the Respondent expressed the opinion that the reported facts violated
Clarington’s bylaws and expressed shock that the reported facts could be allowed.
11 Paul Dubé, Ombudsman of Ontario, “By-Law Surprise: Investigation into the reasonableness and transparency
of by-law enforcement and billing practices in the Township of St. Clair and the County of Lambton”
(April 2018), at 27-28.
309844.00001/108812705.3 8
Following the adoption of a Clarington policy on by-law enforcement that includes the specific
role (if any) of Council as a whole, Members should respect the policy and limit their
involvement accordingly.
All of which is respectfully submitted.
Attachment 3 to Report LGS-005-20
If this information is required in an alternate format, please contact the Accessibility
Coordinator at 905-623-3379 ext. 2131.
The Corporation of the Municipality of Clarington
By-law 2020-XXX
Being a by-law to establish a transparent, consistent, fair, unbiased, and effective
process for municipal law enforcement
Whereas pursuant to the Municipal Act, 2001, S.O. 2001, c.25, as amended (the “Act”),
a municipality can specify when a contravention of a by-law is an offence, establish a
system of finds for offences under by-laws, and exercise other enforcement powers;
And Whereas the Municipality of Clarington administers, enforces and prosecutes
contraventions of its by-law and other applicable provincial legislation as appointed by
the Province of Ontario;
And Whereas Council considers it appropriate to establish a transparent policy for
municipal law enforcement, and to ensure that enforcement activities are fair, unbiased,
and free from any improper influence or interference.
Now therefore the Council of The Municipality of Clarington enacts as follows,
1. That Attachment 1, and forming part of this By-law, be approved as the Municipal
Law Enforcement Policy.
Passed in Open Council this 14th day of December 2020.
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Adrian Foster, Mayor
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June Gallagher, Municipal Clerk