By Cecilia Nasmith/Today’s Northumberland
After many back-and-forths between the Town of Cobourg and the County of Northumberland over Cobourg’s Emergency Care Establishment Bylaw and its effect on the county’s plans to open an emergency-shelter facility at 310 Division St., a lawyer finally addressed the impasse at county council’s April meeting.
Emma Blanchard, a partner at Borden Ladner Gervais, spoke on behalf of Transition House and the impact of the bylaw on its operations – not only in the prospective larger location at 310 Division St. but also in its current location at nearby 10 Chapel St.
Urging the county to take action regarding the impact of this bylaw, Blanchard said it “significantly impacts Transition House’s ability to continue to provide services and accommodation to people at risk or experiencing homelessness.
“We are urging county council to take steps to work with the town to get the bylaw repealed or, at a minimum, defer its effective date so serious discussion can occur about the appropriate revisions or amendments to ensure the continuation of services to this very vulnerable population.”
Transition House was established in 1999 through a collaboration of community organizations in response to a growing homelessness issue. A quarter-century later, that demographic has continued to grow throughout Canada – to the point that many municipalities have declared states of emergency.
The current location offers a 22-bed shelter open 24/7 to offer services aimed at helping people transition to more stable and permanent accommodations, with 13 employees and numerous volunteers.
“This is the only provider of these services offered in the county,” Blanchard stated.
Funding is largely provincial, administered through the county, whose Community and Social Services Department works to ensure “safe, efficient and responsible delivery of services.” It operates through annual service agreements negotiated between the county and Transition House, which include “robust terms of service, reporting and oversight. This is not a situation where Transition House is operating this service on its own.”
Cobourg’s ECE bylaw was brought in Feb. 28, to take effect a mere four weeks later on March 28.
“There are very extensive application requirements, and that includes investigation of Transition House by town staff, requirement that Transition House deliver affidavits to the town, and delivery of an aggressive volume of material. Some of these materials effectively impose new service requirements on operators of shelters.”
Blanchard offered examples of requirements that might be considered onerous, such as the requirement that the shelter provide 24/7 mobile security within a 500-metre radius of the actual facility to address issues involving shelter occupants when they are within this area. There must be a maintenance plan that includes addressing litter, waste and debris within that same 500-metre radius. Basically, she summed up, these requirements entail significant work done in the community well beyond the shelter property.
There must be a code of conduct that addresses mitigation of noise and nuisance concerns. And operators must carry insurance coverage that includes the town as an additional insured party.
When it comes to enforcement, she added, town employees have a great deal of discretion in the actions they may take. And, as currently written, the bylaw exposes employees, volunteers, board members and anyone participating in the operation to prosecution or penalties for noncompliance.
“These are extensive requirements not currently covered in the arrangements between Transition House and the county, and Transition House is not currently in a position to meet the licensing and application process.”
Though Transition House had worked hard to comply with applicable bylaws, Blanchard said, they have been unable to complete current requirements in their application for a license. And though the move to 310 Division St. is a concern, she added, these provisions also apply to Transition House in its current location.
Transition House is a charitable organization, she argued, and new provisions would take significant shares of their budget away from providing vital services and into meeting requirements unilaterally imposed by the town.
“We request urgent action on the part of the county to engage with the town, and try to deal with this before the impacts on Transition House start to seriously affect the provision of homelessness services to the members of the county,” she said.
“Transition House just wants to keep doing the good work it has been doing for decades. There are very serious concerns about being able to continue to operate.”
Warden Brian Ostrander said that Northumberland’s Chief Operating Officer Jennifer Moore “has been endeavouring to reach out to the town to do exactly that.”
Though the matter was part of in-camera discussions following the open session, commentary was entirely absent otherwise.
Transition House Executive Director Ike Nwibe said he had nothing to add, and correspondence was accepted without discussion – a March 26 letter from Blanchard’s firm to the Town of Cobourg and the April 2 reply from the town’s solicitors, Warden Ostrander’s letter to the town of March 8 with a formal request to delay the implementation date of the bylaw and the town’s April 5 reply that the request had been received for information.
Two Letters from Solicitors Representing the Town of Cobourg and Transition House
Office of the Mayor
55 King Street West,
Cobourg, ON
K9A 2M2
Members of Council
Re: Emergency Care Establishment Licencing By-Law No. 18-2024 (the “ECE Licensing By- law”) – Town of Cobourg (the “Town”)
We are legal counsel for the Transition House Coalition of Northumberland (“Transition House”).
We are writing to urge Council to immediately repeal the ECE Licensing By-law.
Transition House is a registered charity which provides accommodation and support for adults at risk of or experiencing homelessness. It is the only provider of these services in the Town and in
the County of Northumberland (the “County”).
Pursuant to the Housing Services Act, upper tier municipalities, including the County, are responsible for the administration of provincial funding for housing and support services for people
at risk of or experiencing homelessness. Transition House receives a significant portion of its funding from the County and operates pursuant to an agreement with the County.
The Town is not a party to the agreement between Transition House and the County. Based on documents produced by the Town, including Staff Report No. LS-2024-009 published on February
21, 2024, (the “February Report”) as well as Minutes of the February 28, 2024 meeting of Council, it is clear that the ECE Licensing By-law was passed for the purpose of imposing terms
of service on Transition House that the County has not agreed to fund or impose. Furthermore, as described in more detail below, the requirements of the By-law are so onerous and unreasonable
they make compliance with the By-law practically impossible.
The ECE Licensing By-law was adopted with virtually no notice or consultation, targets Transition House as the only provider of housing and support services for people at risk of or experiencing
homelessness in the Town, and jeopardizes the continued operation of Transition House. These are all indicia of bad faith. The ECE Licensing By-law should be repealed immediately.
(1) CURRENT OPERATIONS – 10 CHAPEL STREET
Transition House was established in 1999 through the collaboration of a number of community organizations committed to addressing the growing need for accommodation and support for
individuals at risk of or experiencing homelessness. In 2003, Transition House purchased property at 10 Chapel Street and currently offers the following services in that location:
· Temporary housing with 24-hour support for up to 22 occupants;
· Counselling, financial management and employment;
· Social services referrals; and,
· Family diversion programs.
Transition House also manages a number of off-site services from its current location at 10 Chapel Street including a warming hub and a motel overflow program, which involves co-ordinating motel stays for individuals who cannot be accommodated on the premises.
(2) CHARACTERIZATION OF TRANSITION HOUSE USE
As confirmed by Town Staff in the February Report, Transition House is properly characterized as an “Institutional Use” for the purposes of the Town’s Zoning By-law and, as such, is a permitted
use in the Main Central Commercial (MC) Zone where 10 Chapel Street is located. Institutional Uses comprise a wide range of uses for public or non-profit purposes including “Emergency Care
Establishments” which “provide a means of immediate, temporary accommodation and assistance for a short-term period, generally less than one week for the majority of the residents.” Residential uses in an institutional building are also permitted in the MC Zone.
Given the severity of the housing shortage currently being experienced throughout the province of Ontario including in Cobourg and the County of Northumberland, the average stay for clients of
Transition House is approximately 90 days, and therefore well in excess of the one week period contemplated in the definition of Emergency Care Establishments. To the extent that length of stay
is the defining characteristic of an Emergency Care Establishment, Transition House may in fact be primarily engaged in the delivery of another form of residential accommodation, such as
transitional housing, in an institutional setting; however, Transition House does accommodate some individuals for shorter periods and in this regard may be considered to be operating an
“Emergency Care Establishment” for the purposes of the ECE Licencing By-law.
While further investigation may lead to the conclusion that Transition House does not in fact operate an Emergency Care Establishment, it is clear from the February Report that the Town
considers the ECE Licencing By-law to be directly applicable to Transition House’s operations and that enforcement action by the Town is likely to follow a failure of Transition House to obtain
a licence under the By-law. Transition House therefore requires urgent action with respect to the repeal of the ECE Licencing By-law.
(3) NEW FACILITY AT 310 DIVISION STREET
Recognizing the need to increase the availability of accommodation and supportive services for persons at risk of or experiencing homelessness, in December of 2023 the County acquired new
premises at 310 Division Street in the Town of Cobourg. 310 Division Street is a former retirement home which is located within the MC Zone with the full range of Institutional Uses permitted and which the County intends to repurpose to accommodate a multipurpose facility, including 35 emergency shelter spaces to meet immediate needs as well as transitional housing and other service offerings, including a warming and cooling hub (the “310 Division Facility”). The County and Transition House are currently in the process of negotiating an agreement to provide for the
relocation of Transition House’s current operations to the 310 Division Facility and the future operation of the 310 Division Facility by Transition House.
As described in the February Report, following the initiation of community engagement processes by the County with respect to the 310 Division Facility, and in response to community concerns,
the Town approached the County with a request that the County enter into agreement directly with the Town with respect to the operation of the 310 Division Facility similar to an agreement
negotiated by the Town of Whitby and the Region of Durham (the “Whitby/Durham Agreement”). The Whitby/Durham Agreement was concluded following the Region of Durham’s
decision to purchase lands for a new emergency shelter in order to avoid the passage of an interim control by law by the Town of Whitby prohibiting new low barrier shelters and transitional
housing.
Town staff developed a list of requirements for the proposed agreement with the County including:
· The engagement of a mobile security team which would patrol each and night both at 310 Division Street and in its general vicinity;
· Provisions addressing public areas in the community including, the maintenance of roads, sidewalks, boulevards and parking lots free of additional refuse, shopping carts and luggage including but not limited to garbage, debris, temporary shelter materials, drug paraphernalia (including needle sharps) and portable heating implements;
· Tracking of statistics and trends related to crime, complaints, service calls and other data in an area within a 500-metre radius of 310 Division Street; and
· A requirement for “enforceable principles of a code of conduct…linked to the Town Nuisance By-law.”
The February Report also includes significant discussion of provisions of the Whitby/Durham Agreement which require for cost sharing as between the two municipalities with respect to costs
associated with “incremental services for the general area in the agreed upon radius on an equal cost sharing basis.” The February Report goes on to note that “if Council elects to license
Emergency Care Establishments the costs associated with [additional garbage, debris etc…] could be recovered to manage this type of business in the community and help offset the costs to the
taxpayer.”
According to the February Report, during a meeting which occurred on February 14, 2024, the County declined to provide a commitment to negotiate an agreement with the Town, though the
County did agree to consider the Town’s list of requests as it proceeds with the negotiation of an agreement with Transition House.
(4) THE ECE LICENCING BY-LAW
The ECE Licencing By-law adopted by Council on February 28th, 2024, contains numerous provisions which are problematic, and which are also directly related to the requests which the
Town has made of the County, including as described above. These include but are not limited to:
(1) Personal liability for “agents, trustees or representatives”: Pursuant Section 4.3 of the ECE Licencing By-law, “agents, trustees or representatives of persons operating an
[Emergency Care Facility]” are “personally liable for compliance ….with the by-law.”
While the drafting of this provision is unclear, it can reasonable be construed to mean that Directors and Officers of Transition House and potentially its employees, contractors or subcontractors will be personally liable for any failure of Transition House to comply with the By-law and may be subject to administrative penalties or liable to fines of up to $100,000 for each part of a day that the failure to comply continues. There is no reasonable basis for this type of provision in a by-law aimed at the delivery of social services and its inclusion in the By-law may dissuade directors, officers, employees or contractors of Transition House from continuing to serve this charitable organization.
(2) Grounds For Refusal of a Licence: The ECE Licencing By-law creates extensive application requirements and provides for the refusal of an application for a licence if the
requirements are not met (s. 5 and 6). These requirements include but are not limited to:
a. “Evidence that all property owners within a 500-metre radius are aware of the E.C.E. use.” Meeting this requirement would involve extensive title searching to confirm property ownership and significant effort to achieve the required awareness;
b. The delivery of a plan confirming that Transition House will provide “mobile security 24 hours/7 days per week to manage issues involving shelter occupants on the property and such circumstances involving shelter occupants in the surrounding 500-metre radius”;
c. The delivery of a maintenance plan which includes “a maintenance schedule to address litter, waste accumulation and debris arising from ….shelter occupants…in the surrounding 500-meter radius”;
d. “ A Code of Conduct in alignment with a good neighbour policy and in accordance with the Town’s Nuisance By-law” which Transition House assumes would be required to provide that its clients will be denied access to accommodation and services in the event that the clients are found not to have complied with either the Town’s good neighbour policy or the Nuisance By-law.
In addition to the above, the ECE Licencing By-law provides for the delivery of affidavits in support of an application and requires the applicant to submit to investigations.
These requirements, among others in the ECE Licencing By-law, are patently unreasonable, would make a Transition House responsible for policing and maintaining municipal property in areas up to 500 metres away from its premises and would require Transition House to implement a Code of Conduct designed to prevent access to its services for clients who may have failed to comply with the Town’s Nuisance By-law and good neighbour policy. All of these requirements are premised on unsubstantiated assumptions that the delivery of assistance to members of the community who are unhoused or at risk of becoming unhoused results in an increase in crime and property damage.
Furthermore, the requirements are so onerous that there is no reasonable prospect that Transition House will be able to meet them and also continue to serve the vulnerable population which
requires Transition House’s services . It is clear that the ECE By-law was enacted in bad faith, was aimed at Transition House and indirectly at the County, and was intended to prohibit Transition
House from operating or to significantly limit its operation and thereby apply pressure on the County to accept the Town’s demands for a direct agreement including cost sharing for municipal
services.
The lack of consultation and the timing for the implementation of the ECE By-law also demonstrate bad faith on the part of the Town. The ECE By-law was adopted on February 28th,
2024, without consideration by Standing Committee or public consultation and was published in draft for the first time on February 21st, 2024, one week prior to being enacted without amendment at the February 28th Council meeting. The ECE By-law comes into effect four weeks after its enactment, leaving no time for Transition House to attempt to comply with the extensive licencing requirements contained in the By-law and making it an offence for Transition House to offer accommodation comprising an “Emergency Care Establishment” after March 28th, 2024.
CONCLUSION
We understand that Town Council has been advised that there are no existing examples of a municipality in Ontario licensing an emergency shelter and that these public service uses are
generally managed and administered through funding agreements such as the agreement between the County and Transition House. We urge this Council to consider that this is for good reason.
Emergency shelters are not businesses which may require the application of special fines “designed to eliminate or reduce any economic advantage or gain” associated with failing to comply with
By-law requirements as contemplated in Section 24.4 of the ECE Licencing By-law. They provide basic necessities of life to the most vulnerable members of the community and their ability to
respond to requirements imposed on them typically depends on the public funding available.
In our opinion, the ECE Licensing By-law is invalid and would not withstand a challenge. On this basis we request that Council immediately repeal the ECE Licencing By-law or, at a minimum, defer the effective date of the ECE Licensing By-law for a period of at least six (6) months to allow for proper consultation.
Yours very truly,
Emma Blanchard O’Neal Ishimwe
Dear Ms. Blanchard:
Re: Town of Cobourg Re: Emergency Care Establishment By-law No. 018-2024
(the “ECE By-law”)
Our File No.: 20240428
Thank you for your reply e-mail of March 27th, 2024, regarding the above-referenced matter. I have had the opportunity to review the letter that you sent to the Town of Cobourg on
March 26th, 2024. I am writing to reply to your letter.
Your letter indicates that the Town of Cobourg should immediately repeal the ECE Bylaw for the following reasons:
1. The “requirements of the By-law are so onerous and unreasonable they make compliance with the By-law practically impossible”.
2. The “By-law was adopted with virtually no notice or consultation”.
3. The By-law “targets Transition House”.
4. Your client indicates that these alleged circumstances are “all indicia of bad faith”. Transition House’s Allegation that the Town of Cobourg is Acting in Bad Faith
I will address each of the alleged indicia in a moment; however, it is very important for me to first state that the Town of Cobourg takes any suggestion that it is acting in bad faith very
seriously. On a reciprocal basis, such an allegation should not be made lightly in this context, particularly when the Town of Cobourg is working hard to ensure that individuals that find
themselves in crisis and require accommodation services from an ECE can reasonably expect that such ECE services meet basic health and safety (and other) standards of operation. In
other words, the Town of Cobourg’s focus in this context is on seeing that the needs of ECE residents are met and that the well-being of Cobourg residents more broadly is enhanced and
not on fostering a situation that tends to diminish the standard of services provided by ECEs.
That is, the Town of Cobourg believes that ECEs should be bound to deliver these critical care services to a reasonable standard. The Town of Cobourg believes that the needs of ECE residents should take priority and that ECEs should be required to meet stable, specific, identifiable standards of service for their residents. There are many examples, such as in the long-term care sector, where reasonable standards of service have been implemented in order to transform service delivery to resident-centred care from institutional-focused operations. The Town of Cobourg genuinely hopes that Transition House will join it in working towards meeting their resident-centred needs by meeting the standards set out in the ECE By-law.
To state it another way, the Town of Cobourg passed the ECE By-law to ensure that those individuals that find themselves in crisis and require emergency care from your client can reasonably expect that your client will live up to clearly identified standards of service for its residents. The ECE By-law focuses on the needs of individuals in crisis. For that reason, the Town of Cobourg will not accept an argument for lower standards. Instead, the Town of Cobourg will take the steps necessary to look out for vulnerable individuals seeking ECE services by requiring that ECE providers meet reasonable standards in service provision. These standards, in turn, have the additional benefit of improving the well-being of all Cobourg residents.
Finally, it was surprising for the Town of Cobourg to receive an argument from Transition House in your letter that Transition House may not even be an ECE but some other unidentified
Institutional Use in order to support its position that it need not meet basic ECE standards of service as set out in the ECE By-law itself. This is surprising because both Northumberland
County and Transition House have consistently argued that Transition House’s proposed operations at 310 Division Street will be zoning compliant because Transition House will, it has
stated, be operating an ECE. I believe that this is the first time that my client has received any indication from Northumberland County or Transition House that its operations may not be an
ECE and, therefore, not zoning compliant. Therefore, I would appreciate if you let me know immediately if Transition House intends to operate 310 Division Street other than as an ECE.
The ECE By-law is Not Onerous nor Unreasonable
The Town of Cobourg does not agree with Transition House’s assertion that the requirements of the ECE By-law are so onerous and unreasonable “they make compliance with the By-law practically impossible”.
With reference to the examples identified in your letter:
1. Is it practically impossible for Transition House to let its neighbours know that Transition House is operating an Emergency Care Establishment?
No, it’s not impossible for Transition House to let its neighbours know who Transition House is and what services they are providing.
2. Would it be acceptable to ask Transition House’s security personnel to assist shelter occupants while on ECE property but practically impossible to ask them to assist residents that are in need the moment they walk off the property?
No, it’s not impossible to look out for your residents if they are in need and within a short
walking distance of the ECE.
3. Would it be practically impossible for Transition House to provide maintenance of its establishment and ask that they please clean up any litter, waste or debris arising from its occupants that is deposited onto its neighbours’ properties?
No, it’s not impossible. We should all be prepared to clean up any litter, waste or debris arising from places that we are responsible for.
4. The ECE By-law defines the “Code of Conduct” as meaning “the document produced by the E.C.E. that communicates expectations to shelter occupants of how the shelter engages, communicates and works with the surrounding community to foster a positive relationship, mitigate impacts and maintain the safety of neighboring residents including noise and nuisance mitigation and outlines the actions dealing with shelter occupants who violate Town By-laws, or who are violent or disorderly and provides guidance on Town bylaws and other information.”
a. Is it impossible to ask Transition House to produce a document for its residents that sets out expectations and informs them of Town by-laws?
No, in fact our rule of law requires that we let citizens know about laws that may affect them and as a charitable organization, Transition House should welcome the opportunity to set out their expectations for their residents.
5. Is it practically impossible for a not-for-profit corporation that employs full-time staff to provide affidavit information in support of an application for a license and then allow the Town of Cobourg to assess (inspect) the property to ensure that the laws it enforces, including the Building Code and Fire Protection and Prevention Act, 1997, are complied with?
No, it would not be impossible for Transition House to supply supporting documentation and comply with inspection requests.
6. Is it patently unreasonable to hold directors, officers, employees or contractors of not-for-profit corporations personally liable for their actions in certain circumstances and will this dissuade them from continuing to serve the charitable organization?
Well, these individuals are already subject to personal liability in certain circumstances under the Not-for-Profit Corporations Act, 2010. To mitigate personal liability, a not-for profit commonly agrees to indemnify these individuals for personal liability and places officers’ and directors’ errors and omissions insurance coverage for them. However, directors and officers of not-for-profits are required to act honestly and in good faith with a view to the best interests of the corporation and exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
It is the Town of Cobourg’s view that none of these standards of service are “patently unreasonable” or “practically impossible” to comply with. They are usual standards required of many not-for-profits providing health and safety services to the public.
The By-law was Passed with Proper Notice
The Town of Cobourg passed the ECE By-law with proper notice. Furthermore, the Town of Cobourg has been consulting with Northumberland County and Transition House about the matters addressed in the by-law for quite some time before the ECE By-law was passed.
Any timing issues now raised by Transition House stem from the fact that Northumberland County only purchased 310 Division Street as recently as December 8th, 2023, and subsequently confirmed that it intended for Transition House to operate the property as an ECE. The Town of Cobourg is entitled to regulate this institutional use for the benefit, health, safety and well-being of its future residents and the community at large.
The ECE By-law Does not “Target” Transition House
As you know, the Municipal Act, 2001, entitles the Town of Cobourg to pass by-laws that are general or specific in their application and such by-laws may differentiate in any way and on any basis the municipality considers appropriate.
The Town of Cobourg’s ECE By-law, by definition, applies to all ECE’s within the Town of Cobourg’s jurisdiction, including Cornerstone Family Violence Prevention Centre’s ECE.
Moving Forward
The Town of Cobourg sincerely hopes that Transition House will join it in implementing the resident-centred health and safety standards of service referenced in the ECE By-law.
In this regard, I have been provided with a copy of a letter that Alison Lester (in her capacity as secretary for Transition House) wrote to the Town of Cobourg’s CAO, Tracey Vaughan, on March 28th, 2024. See attached.
In response, Kevin Feagan, in his position as Manager of Bylaw Enforcement and Licensing for the Town of Cobourg, wrote a reply e-mail to Ms. Lester on March 28th, 2024, as follows:
“Good Afternoon Alison:
I am in receipt of your letter dated, March 28th and addressed to the Town’s CAO Tracy Vaughan (attached). Thank you for reaching out and seeking clarification concerning the implementation of the Town’s Emergency Care Establishment By-law. As indicated in our meeting, with the implementation of any new licensing initiative there is a period required at the onset of the process to allow for communication, education and assistance between Town staff and applicants to come into compliance with the provisions of the by-law. Municipal Law Enforcement and Licensing is the department which oversees this process and I can assure you that staff are committed to a compliance focused approach and will work with applicants to ensure that they have the necessary information, resources and documents to prepare a complete and compliant application. While a timeline of 30 days from the effective date of the by-law was suggested as sufficient to prepare and complete an application, if an applicant is genuinely working towards compliance and requires additional time or assistance then extensions of time may be granted. The goal is to work collaboratively with applicants throughout the process so that compliance can be achieved in the most effective and efficient manner. On that note, please note link below to the Town’s website information for applicants to begin the process of obtaining an E.C.E. Licence as well as the attached printable forms. As always, do not hesitate to contact me directly for further clarification/assistance or you may also contact Angela Stewart, our Licensing Officer by e-mail AStewart@cobourg.ca or telephone at extension 4205.”
That is, the Town of Cobourg is working cooperatively with your client towards the implementation of the ECE By-law and will continue to do so. I believe that this is moving in the right direction.
However, before I complete this letter, I thought it would be best to expressly address one further matter. Quite candidly, I hope that our clients will continue to work towards the implementation of the service standards set out in the ECE By-law. However, I can’t help but think that based on your client’s position as expressed in your letter, your client may be intending to commence proceedings to challenge the by-law. If your client chooses to do so, I ask that you call me to discuss a reasonable timetable for the proceeding before your client commences the proceeding so that the proceeding in a sensible way.
Thank you.
Yours very truly,
LLF Lawyers LLP
Per:
Jeffrey Lanctot
Jeffrey Lanctot
JDL
Encls.
cc. Town of Cobourg.
