Sections of the Local Governance Act: 144 - 160
Description:
Part 14 sets out the authority local governments have with respect to various aspects of by-law enforcement. Specifically, the provisions contained in these sections address the following matters:
- Inspections and entry onto premises
- Prohibitions and offences relating to inspections
- Offences and penalties
- Power of local governments to create offences and establish fines
- Proceedings and convictions
- Issuing of demands by by-law enforcement officers
- Court orders
- Evidence
- Administrative penalties and penalty notices
New Provisions and Intent:
There are several new provisions and clarifications contained in Part 14. The most significant areas where adjustments to the legislation have been made are as follows:
Entry onto properties
Subsection 144(2) provides by-law enforcement officers with the authority to enter land, buildings or other structures at any reasonable time, for purposes of carrying out inspections (as required by by-law or the Act), as long as reasonable notice has been provided to the owner or occupier. In cases where a by-law enforcement officer wishes to enter a dwelling or dwelling unit (at a reasonable time) for purposes of carrying out an inspection, consent from the occupier or an entry warrant under the Entry Warrants Act must be obtained. The definitions of dwelling and dwelling unit are found in subsection 144(1).
In cases of emergencies or in extraordinary circumstances (refer to definition of “emergency” found in subsection 1(1) of the Local Governance Act), a by-law enforcement officer is not required to give notice prior to entering a premises and does not require the consent of the owner or occupier.
Offences and Penalties
The Act allows local governments to establish “a system of fines for offences under by-laws under the authority of this Act”. This could include different minimum and maximum fines for offences committed by individuals versus corporations. Furthermore, if these offences continue for more than one day, the local government may impose fines (per the by-laws) for each day the offences continue.
By-law violations can be classified as offences, which are punishable by fines and/or actions once an individual has been prosecuted and a conviction has been entered by a court. By-law violations can also be classified as ticketable offences, for which a municipal by-law enforcement officer can issue a ticket (administrative penalty notice), which contains a fine payable to the local government without court proceedings. In general, these types of tickets are issued for less serious offences, such as parking offences, while more serious offences must be prosecuted through the court system. A different type of ticket may also be issued for more serious matters, such as dangerous or unsightly premises violations, under the Provincial Offences and Procedures Act (POPA”). This Act also houses offence categories and related fine ranges.
Administrative Penalties
The most substantive change regarding enforcement relates to the authority of local governments to establish “administrative penalties”. The Local Governance Act now authorizes local governments to establish administrative penalties to be paid as a result of a contravention of a provision of a by-law. Such penalties can be established for all of a local government’s by-laws, with the exception of contraventions pertaining to speeding, firearms, dangerous and unsightly premises, and standards for maintenance and occupancy of buildings and premises. It should also be noted that administrative penalties can only be established for by-laws enacted under the authority of the Local Governance Act.
Administrative penalties, which would be levied through the issuance of “penalty notices”, are essentially tickets (like a parking ticket) that would be given to an individual or corporation as a result of a by-law infraction. Such a penalty notice may only be issued if the local government has a by-law in place that identifies the specific contraventions for which a penalty notice may be issued, identifies the amount of the penalty, and prescribes the time within which the penalty must be paid.
The amounts of the administrative penalties cannot exceed $1,500 and, like offences, the amounts of such penalties can be different for individuals versus corporations. Local governments also have the authority to include in their by-law the possibility of a discount for early payment of the administrative penalty.
The form for the penalty notice (referred to as Form 1 - Administrative Penalty Notice) that a local government must use is being established by way of a regulation under the Local Governance Act.
Further details regarding the contents of penalty notices, the delivery and receipt of the penalty notices and payment of the administrative penalties are contained in sections 157 through 159. An individual or corporation charged with an offence under a local government’s by-law cannot be subject to an administrative penalty for the same infraction. However, if an individual or corporation fails to pay an administrative penalty, they may be charged with an offence.