Town of Cobourg Letter to Northumberland County Denying ECE Exemption Request

Pete Fisher
2 months ago
• Categories: Local

Today’s Northumberland has received a copy of the e-mail sent to Northumberland County by Municipal Clerk Brent Larmer from the Town of Cobourg.

The Town of Cobourg received a request by Northumberland County for an exemption for the Emergency Care Establishment By-Law for 310 Division Street.

The document was brought up by Northumberland County Councillor and Cobourg Mayor Lucas Cleveland at Northumberland County Council on Wednesday, October 16, 2024, but was never posted.

Today’s Northumberland requested a copy of the decision for the Emergency Care Establishment Exemption Request.

 

Emergency Care Establishment Exemption Request
DECISION

Applicant: Northumberland County

Location: 310 Division Street, Cobourg

Exemption Request:
The Town of Cobourg is in receipt of your Emergency Care Establishment Licensing Application and Exemption Request(s) for specific provisions under the Emergency Care Establishment Licensing By-law No.018-2024 (ECE) By-law.

The decisions below identify the exemptions requested with the decision noted, and where necessary specific conditions and any supporting information included.

Exemption Request #1:

Reason for Exemption Request:

The County is requesting an exemption from this section insofar as it requires the provision of mobile security to address “circumstances involving shelter residents in the surrounding 500-meter radius.” Neither the County, nor any private security contracted by the County, has a mandate or legal authority to respond to issues off its property, other than the enforcement of County By-laws. The responsibility as a service manager under the Housing Services Act, 2011to develop and implement strategies and services to support that plan, does not include a broader mandate, responsibility or authority to control, police, or monitor the conduct or activities of individuals who may be accessing those services when they are not at the property or actively engaged accessing those services. In the County’s submission the intent of the By-law can be met by the provision of security at the property itself, as well as through education of residents of applicable by-laws, including the Town’s nuisance Bylaw.

Emergency Care Establishment Licensing By-law No.018-2024 Section 6.1 (d) (iii)

d) An operational plan outlining specific measures to comply with Town By-laws and applicable law including but not limited to;

iii) The provision of both on-site and 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 meter radius.

Director Decision: GRANTED WITH CONDITION

The ECE Applicant has provided clarification through recommended conditions related to on-site security which is delivered by staff and through existing infrastructure and utilizing other areas of requirements within the ECE By-law. These include the code of conduct, communicating the Town’s Nuisance By-law, and addressing issues raised by the community within the Community Liaison Committee.

In keeping with the general intent and purpose of the By-law, the Town is looking for confirmation from the County of Northumberland to confirm that the Owner and Operator will work to assist with good neighbor practices and to intervene and remind known shelter residents within the property vicinity of the various by-laws and rules in place within public spaces within sightlines of the property and become compliant with those by-laws and rules in addition to contacting emergency services when necessary.

Reference to 500-meter radius is directly related to activity for which a security response is necessary for an incident which can be proven to be directly related to ECE activities.

For clarification an individual’s actions unrelated to an ECE activity or its programs and services would not be the responsibility of the ECE.

In addition, the ECE Applicant should add to their contact list for those working within the ECE, the Municipal Law Enforcement Department phone number 905-372-8380 (daytime & afterhours response), who can also report incidents directly to a Municipal Law Enforcement Officer seven (7) days a week and 24/7 to be addressed and responded to as it relates to any municipal enforcement infraction and complaints.

Action: The ECE Applicant shall confirm that the Owner and Operator will work to assist with good neighbor practices and to intervene and remind known shelter residents within the property vicinity of the various by-laws and rules in place within public spaces within sightlines of the property and become compliant with those by-laws and rules in addition to contacting emergency services when necessary. ECE Applicant will only be responsible for the 500-meter radius which is proven to be directly related to ECE activities.

Exemption Request #2:

Reason for Exemption Request:

The County requires a partial exemption from this submission requirement. The County and its operator will ensure that there are adequate waste receptacles and garbage facilities on site and submit a lot maintenance plan identifying the locations of such infrastructure. The County will also take steps to ensure that the shelter operator has commercially reasonable policies are in place to limit waste generated at the site from shelter activities, such as avoiding the use of disposable products and packaging wherever possible and encouraging any waste to be deposited on site. The County cannot be responsible for waste and debris from the activities of shelter occupants within a 500m radius of the site and believes the intent of the by-law to reduce and control waste from shelter operations is met by minimizing waste from shelter services and ensuring adequate facilities to dispose of such waste on site.

Emergency Care Establishment Licensing By-law No.018-2024
Section 6.1 (d) (iv)
d) An operational plan outlining specific measures to comply with Town By-laws and applicable law including but not limited to;

iv) A lot maintenance plan identifying locations of waste receptacles, garbage facilities and the frequency or maintenance schedule to address litter, waste accumulation and debris arising from the activity of the E.C.E. or its shelter occupants on the property and in the surrounding 500 meter radius;
Director Decision: GRANTED

The ECE Applicant has provided clarification on lot maintenance procedures and obligations and oversight on the operator, and that the property owner and tenant must comply with Town’s Property Standards, Lot Maintenance and Waste Collection By-laws consistent with general intent and purpose of the By-law.
The reference to the 500-meter radius is directly related to activity for which litter, waste
and debris can be proven to be directly related to ECE activities. For clarification an individual’s actions unrelated to an ECE activity or its programs and services would not be the responsibility of the ECE licensee.

Action:
No action needed, other than understanding of the Towns’ By-laws on Lot maintenance. The ECE Applicant will only be responsible for the 500-meter radius which is directly related to activity for which litter, waste and debris can be proven to be directly related to ECE activities.

Exemption Request #3:
Reason for Exemption Request:

The County requires exemptions from section 6.l (i) and proposes to submit an alternative sworn statement to the one included in the application form.

As the proposed shelter at 310 Division Street is not yet operational and design and renovations to the building are ongoing, the County cannot confirm that it currently meets the requirements of the applicable laws listed in subsection 6.l(d)(ii), but can confirm that it intends to meet these requirements upon occupancy and commencing shelter operations.

Changes to the standard statement are also required due to the various required exemptions outlined in this schedule.

The Town or its agents will have final approval of the design and renovations of the building, including under the Building Code Act, 1992, which will satisfy the intent of the By-law.

Emergency Care Establishment Licensing By-law No.018-2024
Section 6.1 (i)

i) A statement by the applicant attesting to the accuracy, truthfulness and completeness of the application and other items, including but not limited to, that:

ii) the E.C.E. is in compliance with various legislation as required by the Town of Cobourg, including the Building Code Act, 1992, S.O. 1992, c. 23 or any regulations made under it, including the Building Code O. Reg. 332/12; all Town of Cobourg municipal by-laws, including Property Standards Bylaw 18-99, as amended, and Zoning By-law 085-2003, as amended; and the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, or any regulations made under it, including the Fire Code, O. Reg. 213/07;

Director Decision: DENIED

Pursuant to 6.1 of the ECE By-law No. 018-2024, the Director or Manager may refuse to accept an application for an E.C.E. Operator license unless the application is submitted on forms approved by the Director or Manager. The Town requires that the Applicant use the forms approved by the Director or Manager which formulates part of the Application Package when applying for an ECE License. By completing the Declaration (Attestation) on page 4 and 5 of the application is keeping with the general intent and purpose of the By-law confirming compliance with the requirements of the Emergency Care Establishment Licensing By-law.

Action:

The ECE Applicant shall complete and submit the Town’s Declaration (Attestation) Form as the required form that has been approved by the Director or Manager.

Exemption Request #4:
Reason for Exemption Request:

As a municipal government, the County understands that there are circumstances where a municipal by-law must be able to “pierce the corporate veil” to ensure individual responsibility and accountability cannot be avoided through corporate dissolution or insolvency. Such authorities must, of course, be used sparingly and only where it would not be possible or appropriate to hold the responsible corporation liable.

The County requires an exemption from this section due to its nature as a municipal corporation. The County is not prone to dissolution or insolvency, and therefore the intent of the by-law that the entity most responsibility under any licence is maintained with respect to the County without recourse to personal liability.

It is also noted that subsection 448(1) of the Municipal Act, 2001 applies with respect to the Councilors, officers, and agents of the County, and provides that no proceeding may be commenced against such an individual for any act done in good faith performance of a duty or authority.

Emergency Care Establishment Licensing By-law No.018-2024
Section 4.3, 24.2

4.3 An agent, trustee or representative of persons operating an E.C.E. in the Town for which a licence is required shall also be personally liable for the compliance of his principal, beneficiary or persons he represents in connection with this bylaw. Failure by such a person to comply with this section constitutes an offence.

24.2 Each director or officer of a corporation who knowingly concurs in the contravention of this By-law by the corporation is guilty of an offence for each day or part of a day that the contravention occurs or continues

Director Decision: DENIED

The County’s submission for its Exemption Request #4 effectively requests two exemptions.

The first Exemption Request is for an exemption from section 4.3 of the E.C.E. By-law and the second Exemption Request is for an exemption from section 24.2 of the E.C.E. By-law.

Both submissions rely upon proposed statements of law from the County rather than upon factual information and reasons for an exemption request. The decision in response to each exemption request is as follows

The Section 24.2 Exemption Request
Section 24.2 of the E.C.E. By-law reads as follows:
24.2 Each director or officer of a corporation who knowingly concurs in the contravention of this By-law by the corporation is guilty of an offence for each day or part of a day that the contravention occurs or continues.

In support of this Exemption Request, the County refers to subsection 448(1) of the Municipal Act, 2001. The Town of Cobourg is fully aware of the immunity provisions set out in subsection 448(1) of the Municipal Act, 2001. For ease of reference, section 448 of the Municipal Act, 2001, reads as follows:

Immunity
448 (1) No proceeding for damages or otherwise shall be commenced against a member of council or an officer, employee or agent of a municipality or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority

Liability for torts
(2) Subsection (1) does not relieve a municipality of liability to which it would otherwise be subject in respect of a tort committed by a member of council or an officer, employee or agent of the municipality or a person acting under the instructions of the officer, employee or agent.

That is, immunity is provided under this section “for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it”. The E.C.E. By-law was passed under the Municipal Act, 2001.

Based on that, please take note that section 425(1) and (3) of the Municipal Act, 2001, reads
as follows:

Authority to create offences
425 (1) A municipality may pass by-laws providing that a person who contravenes a by-law
of the municipality passed under this Act is guilty of an offence.

Directors and officers
(3) A by-law under this section may provide that a director or officer of a corporation
who knowingly concurs in the contravention of a by-law by the corporation is guilty of an offence.

Accordingly, section 24.2 of the E.C.E. By-law is consistent with and in conformity to section 425 of the Municipal Act, 2001, and its scope will be interpreted by the Town of Cobourg in accordance with governing principles.

Section 20.1 of the E.C.E. By-Law permits the Director to “exempt any person from all or any part of the Emergency Care Establishment By-law where the Director is satisfied that the granting of the exemption would maintain the general intent and purpose of the By-law”.

This Director is not satisfied that the granting of an exemption to section 24.2 of the E.C.E. By-law to the Applicant would maintain the general intent and purpose of the By-law because section 24.2 was passed in accordance with the language set out in section 425 of the Municipal Act, 2001, under which the E.C.E. By-law was expressly passed. Therefore, this Exemption Request is not granted.

The Section 4.3 Exemption Request

Section 4.3 of the E.C.E. By-law reads as follows:

4.3 An agent, trustee or representative of persons operating an E.C.E. in the Town for which a licence is required shall also be personally liable for the compliance of his principal, beneficiary or persons he represents in connection with this bylaw. Failure by such a person to comply with this section constitutes an offence.

As stated above, Section 20.1 of the E.C.E. By-Law permits the Director to “exempt any person from all or any part of the Emergency Care Establishment By-law where the Director is satisfied that the granting of the exemption would maintain the general intent and purpose of the By-law”.

The County makes this Exemption Request based on a legal position that the E.C.E. Bylaw should not “pierce the corporate veil”. The E.C.E. By-law makes no reference to piercing the corporate veil in section 4.3 of the E.C.E. By-law.

The general intent and purpose of the Town of Cobourg’s E.C.E. By-law (including section 4.3) is to be consistent and compliant with governing legislation, including the Municipal Act, 2001, and the Provincial Offences Act, RSO 1990, c P.33, and consistent and compliant with governing common law, including the Supreme Court of Canada’s decision rendered in the case of R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299.

Accordingly, an Exemption Request based on the scope of the concept of “piercing the corporate veil” does not satisfy this Director that such an exemption requested on that basis would maintain the general intent and purpose of the by-law and, therefore, this Exemption Request is not granted.

Action:
No action required, exemption request denied, and the County must comply as with the general intent and purpose of the by-law as written.

Summary:
In summary, out of the four (4) exemption requests submited, one (1) exemption request has been granted, one (1) request granted with condition, and two (2) exemption requests denied.
All exemption decsions have been descibed and actions of the ECE Applicant noted.

Option for Hearing Officer Appeal:
With respect to the By-law, the ECE By-law provides that where a person is denied an exemption by the Director or is dissatisfied with any condition imposed by the Director in relation to an exemption, the person may request a review by the Hearings Officer of the Director’s denial or condition.

The person’s right to request a review expires on the tenth (10th) day after notice of the Director’s decision is given to the person at which time the Director’s decision is final and not subject to review.