8. Exercising municipal powers
Most municipal councils consider it a best practice to exercise their powers and conduct business in a clear and consistent fashion. As a councillor, you may find it helpful to become thoroughly familiar with the proper procedures and necessary conditions for calling and conducting council meetings, passing by-laws and other resolutions, and administering and enforcing by-laws.
The Municipal Act, 2001 provides municipalities with broad authority to delegate (give to other individuals or bodies) powers and duties subject to certain restrictions. Delegation of minor matters may allow your council to streamline its decision-making and focus on the larger matters, making council’s agendas more manageable. Delegation builds on a municipality’s authority to create local bodies (such as advisory committees) to help with local decision-making. The Minister of Municipal Affairs and Housing may make regulations restricting or imposing conditions on the delegation of powers.
In addition to administrative matters or matters that a natural person could delegate (for example, buying and selling real and personal property, hiring staff, and entering into agreements), council can delegate legislative powers under the Act and other listed Acts (for example, noise, fencing, licensing, signage, and animal control by-laws) as well as quasi-judicial powers under the same Acts (for example, revoking or suspending licenses) to certain persons or bodies subject to certain restrictions (see sections 23.1 to 23.5).
Legislative and quasi-judicial matters can only be delegated to one or more members of council or a council committee, or to a body having at least two members. At least 50 per cent of members of such a body must be council members and/or council appointees. Legislative and quasi-judicial matters can also be delegated to officers, employees or agents of the municipality, but they can only be delegated minor legislative powers such as temporarily closing a highway or imposing conditions on a license (see section 23.2).
Powers that cannot be delegated include (see section 23.3):
- appointing or removing statutory officers required under the Municipal Act, 2001
- imposing taxes
- incorporating corporations
- adopting or amending official plans
- passing zoning by-laws
- passing certain by-laws related to small business counselling and municipal capital facilities
- adopting community improvement plans that authorize bonusing
- approving or amending municipal budgets
- other powers as prescribed
Council can revoke (take back) a delegation unless the original delegation by-law specifically limits the power of council to revoke it. A council cannot stop future councils from revoking a delegation.
Council can, within certain limits, designate a person or body (whether composed of themselves or another body) to conduct a review or appeal of the decisions of another person or body who has been delegated a power or duty (see section 284.1).
By-laws and resolutions
The powers of your municipality are generally exercised by either a by-law or a resolution.
Generally, by-laws must be:
- signed both by the head of council or presiding officer of the meeting at which the by-law was passed and by the clerk
- under the seal of the corporation
Additional requirements may apply before a by-law can be passed, such as holding a public meeting, giving public notice, or obtaining the approval of a provincial ministry or board.
Many council statements are recorded in a resolution as an expression of an opinion of council. Resolutions are generally submitted in the form of a motion and adopted by a majority vote. The formalities for adopting a resolution may not be as strict as those for passing a by-law.
As noted above, resolutions may be used to record your council’s views on a specific issue. Such resolutions often express the municipality’s position on various issues or concerns about existing government policy, regulations or funding. They may also call for changes in the provincial-municipal relationship. After adoption, they are often sent to the appropriate government agency, association or Member of Provincial Parliament.
The powers of your council are generally exercised by by-law for matters or for actions that will affect the public. If in doubt, councils may consider whether passing a by-law is the safest approach.
Proper procedures are important when passing or amending by-laws. For example, before passing a by-law, generally, an open council meeting would be in session and there would be a quorum of members in attendance.
Some councils may pass by-laws on the day they are first presented, while for others, a longer time may be needed for practical or legal reasons. As examples, your municipality’s procedure by-law may require advance notice of the introduction of most by-laws, and statutory rules require two readings of certain by-laws. For an example of a statutory requirement, please see section 75 of the Drainage Act.
Every municipality and certain local boards must pass a procedure by-law to govern the calling, place and proceedings of their meetings. The content of the procedure by-law is generally up to the council or the local board. For more information regarding procedure by-laws, please see section 238 of the Act (other provisions may apply).
Municipalities are responsible and accountable governments, and many important legal considerations may apply to their actions and decisions. Here is a brief description of a few of them. As with any legal matter, people with a specific legal question may wish to contact their own legal advisor.
For some of its actions – for example, revoking a business license – council may decide it needs to hold a hearing for legal or other reasons. These reasons might include fair treatment of the people involved (for example, an individual license holder).
The Statutory Powers Procedure Act sets out procedural rules that may apply to such hearings. These rules include that most proceedings would be held in public (some might be confidential), and that parties involved would be given reasonable notice.
Municipalities may wish to consider use of their delegation powers in relation to hearings (see, among other provisions, sections 23.1 to 23.5 of the Municipal Act, 2001 for more information). Some councils have delegated their authority to hold hearings.
Good faith, reasonableness and the courts
Generally, municipal decisions must not be based on fraud, oppression or improper motive. Courts may decide to quash a by-law based on bad faith. The courts decide about good faith and other legal issues on a case by case basis. For example, while generally a by-law passed by council in good faith cannot be quashed or reviewed by the courts because of claims of unreasonableness of the by-law (see section 272 of the Municipal Act, 2001), the courts have held that unreasonableness might be evidence of bad faith.
Enforcement of by-laws
Navigating the legal complexities of passing a by-law is only the first step. In practice, a by-law will have little value unless your municipality has the determination and the means to enforce it. Before a by-law is passed, careful consideration of the by-law – including its intended purpose and outcome – may be helpful. Implications of passing the by-law may include such issues as:
- how will the by-law affect the community?
- will it impose restrictions or hardships on particular areas or groups of people?
- will public reaction be favourable? If not, how will council respond?
- what will it cost to administer the by-law?
- can existing staff be expected to handle the additional responsibilities, or will more staff be required?
- is the municipality prepared to enforce the by-law and enforce it consistently?
General responsibility for enforcement
Municipal enforcement personnel
Council may decide to hire one or more by-law enforcement officers. Council may wish to consider if these people will act only on complaints or will actively look for infractions. In either case, your municipality will benefit from employing by-law enforcement officers that have diplomacy, tact and negotiating skills because many complaints can be resolved without going to court.
Action by the public
If a person believes that there has been a contravention of a by-law and is dissatisfied with the level of enforcement provided by a municipality, they may wish to consider taking steps themselves to bring the alleged offender before the courts. To do so, the person would need to appear before a justice of the peace or provincial judge.
Action by police
Council sometimes calls on the local police force or the Ontario Provincial Police, where it provides local police services, to enforce by-laws. You should keep in mind that the police have extensive responsibilities and your council may wish to consider other means of enforcement, or how your enforcement regime might interact with police services.
Offences and penalties
The Act provides that a municipality may establish a system of fines for offences under a by-law of the municipality (see section 429). This includes:
- designating an offence as a continuing offence and establishing a minimum and maximum fine for the offence for each day, or part day, that a contravention continues
- establishing escalating fines for repeat convictions for the same offence
- establishing special fines designed to reduce or eliminate any economic advantages resulting from a contravention
However, a municipality cannot establish fines for a by-law offence for which specific fines are set out in another Act (see subsection 429(4)).
The municipality can also establish a procedure for voluntary payment of penalties out of court for contraventions of by-laws related to the parking, standing or stopping of vehicles, or related to animals being at large or trespassing (see section 432).
Administrative penalties are a civil mechanism for promoting compliance with municipal by-laws. Administrative penalties are imposed through administrative processes (rather than fines imposed in quasi-criminal court processes).
A municipality may establish a system of administrative penalties to help the municipality in promoting compliance with its by-laws. The municipality may require a person, subject to such conditions as the municipality considers appropriate, to pay an administrative penalty if the municipality is satisfied that the person has failed to comply with a by-law of the municipality passed under the Act (section 434.1).
It is up to the municipality to decide the by-laws for which to impose administrative penalties and to decide the amount of an administrative penalty that a person would be required to pay. However, the amount of an administrative penalty cannot be punitive in nature and cannot exceed the amount reasonably required to promote compliance with a by-law.
Administrative penalties are imposed without a court hearing. However, other protections are typically put in place to help ensure that the process for imposing a penalty is fair. It would be up to municipalities to set up processes and procedures for an administrative penalty system, such as putting in place a review process for a person who has received an administrative penalty.
If a municipality requires a person to pay an administrative penalty for a by-law contravention, the person cannot be charged with an offence for the same contravention.
Any administrative penalty imposed on a person constitutes a debt of that person to the municipality. An unpaid administrative penalty can be added to the tax roll for any property in the local municipality for which all of the owners are responsible for paying the administrative penalty and can be collected in the same manner as taxes.
There are also particular rules for administrative penalties for by-law contraventions related to the parking, and the standing or stopping of vehicles (see section 102.1, Ontario Regulation 333/07 under the Municipal Act, 2001).
Other by-law enforcement powers
In addition to penalties, other powers related to by-law enforcement include:
- powers of entry for purposes of inspection to determine if a by-law is being complied with, and to search for and seize evidence with a warrant (for example, see sections 435 – 439)
- a municipality may make an order requiring certain persons to discontinue a by-law contravention and to undertake work to correct a by-law contravention; and the municipality can carry out work at the person’s expense if the person is in default of a work order (see sections 444 – 446)
- a municipality, local board or taxpayer can ask the courts to restrain by-law contraventions (see section 440)
- a municipality can ask the courts to close a premises to any use for up to two years if an owner is convicted of knowingly carrying on a trade, business or occupation on the premises without a license (see section 447)
- if the clerk of a local municipality is notified by a police force that a building in the municipality contained a marijuana grow operation, the municipality must ensure that an inspection is conducted of the building in accordance with the Act (see section 447.2)
All of the above powers are subject to restrictions and conditions as set out in the Act. When contemplating one of these powers, municipal council could consider checking the details of the legislation and consult with municipal staff and/or the municipal solicitor.
As previously mentioned, other statutes such as the Building Code Act, 1992 and the Fire Protection and Prevention Act, 1997 also contain by-law making and enforcement powers. Municipal council could consider consulting with the appointed staff and your solicitor regarding their obligations, operation and limitations.
Actions against the municipality
In addition to actions your council can take against local residents, there are actions citizens can take against your municipality.
Under section 273 of the Act, any person may apply to the Superior Court of Justice to quash a by-law, in whole or in part, for illegality.
Civil action for damages
As a corporation, your municipality may be sued for failure to carry out, or negligence in the conduct of, its legal duties. For example, damage to vehicles caused by poorly maintained roads or an injury suffered in a fall on an icy sidewalk could result in a civil suit. You and the rest of council could ask your staff whether your municipality has adequate insurance to cover this type of civil action.
The legislature and the courts have come up with certain restrictions to protect municipalities from litigation. For example, subsection 44(9) of the Act limits potential municipal liability for personal injury caused by snow or ice on a sidewalk to cases of “gross negligence.”
More and more, municipalities are adopting risk management strategies to address public liability. Generally, risk management strategies seek to minimize the effects and costs of public liability suits against a municipality. This involves identifying potential hazards and taking the appropriate measures to reduce or eliminate them in your community.
You may find that the biggest areas for potential liability are public works, or parks and recreational services. Risk management initiatives will usually relate to these service areas.
Where specifically allowed by statute, an individual may appeal municipal decisions to the courts and to certain quasi-judicial bodies such as the Ontario Land Tribunal and the Assessment Review Board. Several examples can be found in land use planning, with appeals of decisions made by committees of adjustment, land division committees and councils.
This form of court action is limited to situations where it is alleged that the municipality proposes to act, or has acted, without power or beyond its powers, or has refused to exercise a mandatory power. In these circumstances, an individual may take action to bring the matter before the courts for a legal remedy.
Helpful considerations: section 8
- Be aware of the legal framework within which your municipality must operate and the need for legal advice.
- Familiarize yourself with provincial legislation, such as the Municipal Act, 2001, Municipal Conflict of Interest Act and the Planning Act, and how they relate to your municipality, and review your municipality’s existing by-laws.
- Municipal non-legal staff, however knowledgeable, should not be expected to provide you with legal advice; that is the responsibility of your municipal solicitor.
- Consider whether your municipality has adequate insurance coverage to protect both staff and councillors in the exercise of their duties.
- Become familiar with how to access federal and provincial statutes, regulations and orders online.
- You may wish to support the development or enhancement of a basic municipal library in hard copy or online that includes your municipality’s documents, including:
- minutes of meetings
- official plans
- strategic plans
- performance measurements
- registries, etc.
- You may wish to consider options to enforce municipal by-laws, such as offences and administrative penalties.