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HomeMy WebLinkAboutCLD-013-20Clarington Staff Report If this information is required in an alternate accessible format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. Report To: Joint Committees Date of Meeting: September 14, 2020 Submitted By: Anne Greentree, Municipal Clerk Reviewed By: Andrew C. Allison, CAO File Number: Report Number: CLD-013-20 Resolution#: JC-121-20 By-law Number: Report Subject: Addressing Frivolous, Vexatious or Malicious Enforcement Complaints Recommendations: 1. That Report CLD-013-20 be received; and 2. That all interested parties listed in Report CLD-013-20 and any delegations be advised of Council's decision. Municipality of Clarington Report CLD-013-20 Report Overview This report outlines direction for handling complaints deemed to be frivolous, malicious or vexatious by Municipal Law Enforcement Division. 1. Background 1.1 On April 15, 2020 Council passed Resolution #JC-034-20; Page 2 That Staff report back at the September 14, 2020 meeting on wording to be included in all regulatory By-laws as follows: a Municipal Law Enforcement Officer (MLEO) deems a reported violation of municipal by-law(s) to have been made that is frivolous, vexatious or malicious in nature; 1. Where the complainant of the reported violation(s) is not adversely and/or directly affected by the by-law violation; 2. Where the complainant of the reported violation does not reside or own property within The Municipality of Clarington; 3. Where a reported violation does not compromise or otherwise negatively affect the health, safety or security of person of the citizens of the Municipality of Clarington; 4. The Municipal Law Enforcement Officer (MLEO) may exercise his/her discretion in not proceeding with enforcement action; and 5. The complainant who has reported a violation of municipal by-law(s) pursuant to (1), (2), (3) or (4) above shall be guilty of an offence, and subject to a maximum fine of $1,000.00. 1.2 Malicious or exaggerated complaints are unfortunately a deeply embedded tendency of people in virtually every setting. Municipal by-law enforcement is no exception. A large part of the skill involved in effective by-law enforcement is the ability to manage and de-escalate the emotions of the parties involved in a dispute. 1.3 Municipal Law Enforcement Officers routinely encounter situations in which a complaint they receive cannot be substantiated to the degree required to initiate an enforcement response. In these situations, the Officers employ various informal means of discontinuing the file in a manner that minimizes aggravation to all persons. Municipality of Clarington Report CLD-013-20 Page 3 1.4 Some of Clarington's by-laws expressly provide for circumstances in which an investigation will be discontinued. For example, Section 5.03 of Property Standards By-law 2007-070 provides: Where an officer has determined that a complaint has been filed for a malicious or vexatious reason or as part of an ongoing pattern of harassment and does not involve a matter of serious health or safety, the officer may, after conferring and confirming with the Manager of Municipal Law Enforcement, cease the investigation and close the file with no further action taken. The officer shall then advise the complainant of this in writing. 1.5 Past practice has been with the MLEO Division, that where it is identified on reasonable grounds that complaints are malicious, vexatious or frivolous they are dealt with on a case by case basis. Dependant on the nature or seriousness of the concern (safety, hazards etc) the individual may be notified after discussion with Manager of Municipal Law Enforcement, the files will no longer be investigated for the identified reasons. 1.6 This process, while imperfect, is generally an effective means of screening out complaints that are not substantiated or that otherwise do not warrant further enforcement action. 2. Discussion 2.1 The current suggested regulatory wording for a proposed bylaw may become problematic both in its interpretation and in its implementation. Below is an explanation of envisioned challenges, limitations, and reasonable alternatives. No Adverse or Direct Impact / Non-resident or Property Owner 2.2 In many situations an individual may not be adversely affected, but the situation may pose a hazard to other individuals (for example an unenclosed pool). 2.3 Only addressing concerns from residents of Clarington may pose the same concern as an issue such as an unenclosed pool. In addition, a business owner, who may reside outside the Municipality, may have legitimate complaints that should not be ignored. No Health or Safety Impact 2.4 The health, safety and well-being of persons is only one of the objectives of municipal by-law enforcement. For example, other objectives include the security of property, protection of the environment, the safety of animals, and Municipality of Clarington Page 4 Report CLD-013-20 the avoidance of nuisance activity. The resolution of Council does not acknowledge these as legitimate grounds of complaint. Officer's Discretion 2.5 The authority granted to a Municipal Law Enforcement Officer already includes the discretion, and exercise of judgement (not an absolute discretion if based on favouritism, or on cultural, social or racial stereotypes) to determine the appropriate actions to take based on information gathered. 2.6 Many factors may play into the determination of a frivolous or malicious complaint. To ensure that this discretion is applied consistently, and to underscore that the option is available to the Officers, the Department Procedure P14-004 Investigations and Outcomes has been amended in response to Resolution #JC-034-20 to include the following: • The finding of information that leads an Officer to believe a complaint is frivolous, malicious or vexatious in nature shall be documented. • A determination will be made assessing the nature of the complaint, the affect of health, safety or protection of property or persons and impacts to legal land use or businesses. • The Officer will discuss the finding with the Manager of Municipal Law Enforcement the aforementioned factors to assist in determination. • If a complaint is determined to be found frivolous, malicious or vexatious in nature, the file will be closed, and the resident shall be advised the status and will not be further investigated. Prosecution of Frivolous and Vexatious Complaints 2.7 This aspect of the Resolution is perhaps the most problematic. Municipal law enforcement relies, for its effectiveness, on complaints from the public. We want to encourage, rather than deter, the public from informing the Municipality of potential by-law offences. According to staff with the Ministry of Municipal Affairs and Housing that we spoke with, it is uncommon for a municipality to adopt a policy of deterrence with respect to unsubstantiated by-law complaints. We found that the City of Oshawa and the Township of Armour both have published documents that address the issue of frivolous complaints, however neither municipality has sought to create a Provincial offence that is subject to monetary penalties for those convicted. Municipality of Clarington Page 5 Report CLD-013-20 2.8 Charging and fining complainants for making unsubstantiated complaints could also have the unintended consequence that legitimate health and safety concerns within the community go unreported and unresolved. 2.9 There is also a very practical concern that charging complainants with an offence will actually create more administrative burden on Municipal law enforcement than it will resolve. For instance, case law reflects that the courts have place a high evidentiary burden to prove an allegation of frivolousness or vexatiousness. The prosecution of complainants would therefore require significant amounts of time and resources to collect and document evidence. The prospect of a conviction in many cases will be low. 2.10 Another practical concern is that charging a complainant with an offence for making an unsubstantiated complaint is likely to offend and aggravate the problematic complainant. This is likely to result in complaints to the Manager, the Department Head, the CAO, and ultimately the Municipal Ombudsman. If the objective of Resolution #JC-034-20 is to decrease unnecessary administrative responsibilities, there is a real possibility that it will have exactly the opposite effect. 3. Concurrence This report has been reviewed by Municipal Solicitor who concurs with the recommendations. 4. Conclusion Staff are sympathetic to the efforts by Council to provide a tool to the Enforcement Officers to relieve some of the pressure of the increasing demands placed on the Enforcement resources. However, for the reasons given, Staff submit that there are various informal means of addressing the problem of unsubstantiated complaints that are a part and parcel of Municipal by-law enforcement. Staff Contact: Duncan Anderson, Manager Municipal Law Enforcement, 905-623-3379 Ext 2110 or danderson@clarington.net. Attachments: None Interested Parties: There are no interested parties to be notified of Council's decision.