HomeMy WebLinkAboutCLD-043-05
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REPORT
CLERK'S DEPARTMENT
Meeting:
GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date: November 21 , 2005
Report #: CLD-043-05
File #:
cPA - (/lJ'7-C5
By-law #:
~()06-a6\S
Subject:
ORDER TO RESTRAIN - APPEAL HEARING PROCESS
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report CLD-043-05 be received;
2. THAT the powers of Council to hold a hearing to determine whether or not to exempt
the owner of a dog in whole or in part from the Order to Restrain, and the powers to
render a ruling on such an appeal, be delegated to the Manager of Municipal Law
Enforcement, as per section 105(3) of the Municipal Act, 8.0.2001, c.25;
3. THAT the by-law attached to Report CLD-043-05, as Attachment 1, to Appoint a
Manager of Municipal Law Enforcement, to repeal By-law 91-158, and to appointment
the Manager of Municipal Law Enforcement as an Animal Control Officer for the
purpose of hearing Appeals relating to Orders to Restrain, be forwarded to Council for
Approval;
4.
5.
THAT the by-law attached to Report CLD-043-05 as Attachement 2, delegating
Council's authority to hold a hearing respecting appeals to Order to Restrain to the
Manager of Municipal Law Enforcement, and amending By-law 95-55 and By-law 99-90,
be forwarded to Council for Approval; and
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THAT all inter~sled p rties be notified of Council's decision, FORTHWITH.
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Reviewed by: Franklin Wu,
Chief Administrative Officer
Submitted by:
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T 905-623-3379 F 905-623-6506
REPORT NO.: CLD-043-05 PAGE 2
BACKGROUND AND COMMENT
By-law 99-90, as amended, is commonly referred to as the Responsible Pet Ownership By-law
and was enacted by Council in accordance with Sections 103 and 105 of the Municipal Act
(the Act). Section 5.1 of the By-law, requires the Animal Service Officer to issue an “Order to
Restrain” where they are satisfied that a dog has placed a person or domestic animal at risk of
physical harm or where a dog has bitten or attacked a person or domestic animal. Section 5.3
gives the owner of the dog the right to appeal the “Order to Restrain” and apply for a hearing
by Council to determine if the “Order to Restrain” should be revoked in whole or in part.
Hearings respecting appeals to “Orders to Restrain” are often very emotional and upsetting for
all parties having an interest in the hearing. Currently these hearings are conducted in an
open meeting of Council with Council ruling on the appeal. Addressing Council on such a
sensitive subject, in the Chambers, and with the media present can be very challenging and
uncomfortable for the parties of the appeal. The potential for the hearing to be televised can
further add stress to the situation.
Section 105.3 of the Act, grants Council the authority to delegate its powers, to conduct a
hearing and to rule on an appeal, to a committee of Council or to an animal control officer of
the municipality.
Staff contacted several municipalities to research methods of conducting hearings and to seek
input regarding the success and shortcomings of the various processes. Many municipalities
do not rely on Sections 105 of the Act, but instead rely on the Courts to issue Orders under the
Dog Owner’s Liability Act. Staff findings indicate that the municipalities who do rely on Section
104 of the Municipal Act, have implemented varying methods for conducting hearings including
the following:
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Appeals heard by all members of Council during a regular Council Meeting.
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Appeals heard by a Committee of Council (comprised only of members of Council) at a
special scheduled Hearing.
REPORT NO.: CLD-043-05 PAGE 3
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Appeals heard by an “Appeals Committee” (comprised only of residents appointed by
Council) at a special scheduled Hearing. It’s worth noting that in some municipalities,
these committee members are paid for their services.
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Appeals heard by a Manager.
Consideration of Options
Status Quo
1. – As mentioned earlier in this report, our current process for conducting
hearings meets our legislative obligations, but it presents a situation whereby individuals who
are often upset and emotionally charged are required to speak in a formal and high profile
venue. For these reasons, this is not a preferred option.
Sub-Committee of Council
2. – Council could appoint a Committee comprised only of
Members of Council (a sub-committee of Council if you will) to conduct the hearings. To
implement this option Council would be required to pass a by-law to amend the Responsible
Pet Ownership By-law (99-90) and to amend the Procedural By-law (By-law 95-55)
establishing an Order to Restrain Appeal Committee. Council would then be required to
appoint the members of Council to sit on this Appeal Committee. This option is not the
preferred option as it places the Members of Council in a position whereby they are perceived
as passing judgement on our residents of Clarington.
Appointment of an Animal Control Officer
3. – Our Animal Control Officers are the staff
members who are in fact issuing the Order to Restrain. To appoint one of their peers to
conduct a hearing of an Appeal would place the officers in a conflicting and compromising
position. For this reason, this option is not preferred.
Appointment of Manager of Municipal Law Enforcement
4. – The Manager of
Municipal Law Enforcement is a member of staff who has been appointed by Council to
enforce the by-laws of the Municipality of Clarington. In this capacity, this Manager portrays a
professional and unbiased position, demonstrates sound judgement based on facts and the
law, and respects the balance of the scales of justice. The Manager of Municipal Law
Enforcement does not directly work with the Animal Control Officers or animal control matters
REPORT NO.: CLD-043-05 PAGE 4
in the course of his regular duties and therefore conducting hearings and ruling on appeals
should not present any conflict. It is recommended that Council delegate its authority to
conduct hearings and to rule on appeals, as per section 105 of the Municipal Act, to the
Manager of Municipal Law Enforcement, and that staff take the necessary steps to establish a
procedure which is open, fair and within the rules of the Statutory Powers Procedures Act for
the purposes of conducting hearings respecting Orders issued under By-law 99-90, as
amended.
The Solicitor for the Municipality has reviewed and concurs with this recommended delegation
of authority.
Note, the draft by-law (Attachment 2 to this report) appointing Len Creamer as the Manager of
Municipal Law Enforcement repeals By-law 91-158 for housekeeping purposes, rather than
amending it to add the new delegated authority . By-law 91-158 appointed Len Creamer as a
Senior Municipal Law Enforcement Officer and since the passing of this By-law, the position
title has changed to Manager of Municipal Law Enforcement. Therefore, the proposed draft
by-law updates the position title, delegates Council’s authority respecting hearings relating to
Orders To Restrain, and appoints Len Creamer as an Animal Control Officer for the purposes
of conducting the hearings.
Interested parties to be advised of Council's decision:
Animal Advisory Committee
Attachment 1 – By-law delegate Council’s authority to conduct an appeal hearing to the
Manager of Municipal Law Enforcement.
Attachment 2 – By-law to and to amend the Responsible Pet Owners By-law (By-law 99-90)
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 2005-
Being a by-law to appoint a Manager of Municipal Law Enforcement, to
delegate Council’s authority to conduct hearings and to rule on appeals, as
per section 104 of the Municipal Act, and to repeal By-law 91-158.
WHEREAS
Section 20 of The Police Services Act, R.S.O. 1990, c.P15, Section
15(1), authorizes a Council of any Municipality to appoint one or more by-law
Enforcement Officers, who shall be Peace Officers for the purpose of enforcing
the by-laws of the Municipality; and
WHEREASLeonard Donald Creamer
it is desirable to appoint as Manager of
Municipal Law Enforcement by by-law for the purposes of enforcing the by-laws
of the Municipality of Clarington; and
WHEREAS
Section 5 of By-law 99-90 grants the authority for the Animal
Services Officer to issue an Order to Restrain under certain circumstances, to the
owner of a dog; and
WHEREAS
Section 105(1) of the Municipal Act, requires Council, upon request
of the owner of the dog, to hold a hearing to determine whether or not to exempt
an owner in whole or in part from the requirements detailed in an Order to
Restrain; and
WHEREAS
Section 105(3) of the Municipal Act, grants the municipality the
authority to delegate Council’s powers under section 105 to an animal control
officer of the municipality;
NOW THEREFORE BE IT ENACTED
:
Leonard Donald Creamer
1. THAT is hereby appointed as Manager of
Municipal Law Enforcement for the purpose of exercising all the powers
and performing all the duties of a municipal law enforcement officer in the
enforcement of the by-laws of the Municipality of Clarington;
2. THAT the powers of Council to hold a hearing to determine whether or not
to exempt the owner of the dog in whole or in part from the Order to
Restrain, and the powers to render a ruling on such an appeal, are hereby
delegated to the Manager of Municipal Law Enforcement;
3. THAT the Manager of Municipal Law Enforcement Officer is hereby
appointed as an Animal Control Officer for the purpose of hearing Appeals
relating to Orders to Restrain issued under By-law 99-90, as amended;
and
4. THAT By-law 91-158 is hereby repealed.
th
By-law read a first and second time this 28 day of November 2005.
th
By-law read a third time and finally passed this 28 day of November 2005.
________________________________
John Mutton, Mayor
________________________________
Patti L. Barrie, Municipal Clerk
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 2005-226
Being a by-law to amend By-law 99-90, a by-law to license, regulate and
prohibit certain animals or classes thereof within the limits of the Municipality
of Clarington, or defined areas therein.
WHEREAS
By-law 2005-225 delegates Council’s powers to hold a hearing to
determine whether or not to exempt the owner in whole or in part from the Order
to Restrain, and the powers to render a ruling on such an appeal, to the Manager
of Municipal Law Enforcement.
NOW THEREFORE BE IT ENACTED:
THAT By-law 99-90, as amended, be further amended as follows:
1. THAT Sections 5.3 and 5.4 be amended to replace “Council” with
“Manager of Municipal Law Enforcement”.
th
By-law read a first and second time this 28 day of November 2005.
th
By-law read a third time and finally passed this 28 day of November 2005.
________________________________
John Mutton, Mayor
________________________________
Patti L. Barrie, Municipal Clerk