Court documents state the County of Northumberland has submitted a judicial review on the grounds municipal by-law didn’t have the authority and the county had no reasonable grounds to appeal.
Town of Cobourg stated to Today’s Northumberland on April 11, 2025 that The Municipal Law Enforcement Department and the Cobourg Fire Department have been working with the operators at 310 Division Street on multiple occasions through regular communications and inspections.
After several warnings, the Town of Cobourg has had to place an order and issue a penalty notice due to continued non-compliance.
The Town’s Order is to comply with applicable law and ensure the Fire Safety Plan is followed in regard to the following items in accordance with the Fire Protection and Prevention Act, 1997:
a) The facility will have one staff on duty for every 10 occupants.
b) The main floor warming/cooling area is to be used as a relief space for individuals to get out of the elements and is not to be used as a sleeping area.
c) The on-duty manager shall at all times carry the key required to activate the twostage fire alarm.
i) There shall at all times be an on-duty manager.
Northumberland County that on April 10th, 2025 Northumberland County received an order from the Town of Cobourg under its Emergency Care Establishment (ECE) By-law. This order was related to ensuring compliance with the fire safety plan for the 310 Division Street shelter.
The County has asked the court to review the specific order – through a process called a judicial review – to resolve a disagreement on the application of the By-law.
“This is the only process available to the County to have the order reviewed. This is not a challenge to the By-law itself,” said Kate Campbell, Director of Communications.
“Even though there is disagreement about how the By-law applied in this specific case, County and Town staff continue to work together to make sure the shelter is a safe and supportive place for clients and the community. The County and Transition House have already added more staff to further improve support and safety, and we are working closely with the fire department to update the fire safety plan.
We hope the judicial review will help make things clearer, so the County can continue to ensure compliance with By-law requirements.”
A Judicial Review is heard by the Divisional Court. The Divisional Court for the Central East Region (which includes Northumberland County) sits in Oshawa.
Court documents obtained by Today’s Northumberland state the County claims they were in compliance at all times with the Fire Safety Plan and that the penalty and orders given on April 10, 2025 were “unreasonable,” stated it was a “denial of natural justice and procedural fairness” and wants a “prohibition barring the Town of Cobourg from issuing similar and further Orders related Penalty notices related to the ECE By-Law in respect to 310 Division Street in Cobourg.
The County claims the Order and related Penalty Notice dated April 10, 2025 were issued
without lawful authority or jurisdiction and wants an order barring the Town of Cobourg from issuing similar Orders and Penalty Notices related to the ECE By-Law.
They would also like the order issued on April 10, 2025, “set aside.”
Court documents state the grounds for the application are the following:
The Respondent Town of Cobourg and the ECE By-Law
(a) The Town of Cobourg is a lower tier municipality with statutory power to enact by-laws, including by-laws passed pursuant to Ontario’s Municipal Act respecting the health, safety and well-being of persons, the protection of persons and property and business licensing.
(b) On February 28, 2024 the Town of Cobourg passed the ECE By-Law to license, regulate and govern emergency care establishments in the Town of Cobourg. An emergency care establishment is defined as an institutional use that provides a means of immediate, temporary accommodation and assistance for a short term period, generally less than one week, for the majority of the residents. Emergency care establishments provide tempoary shelter to vulnerable and unhoused individuals.
The ECE By-Law references certain provincial statutes, including Ontario’s Fire Protection and Prevention Act.
(e) The ECE By-Law authorizes certain individuals, including municipal law enforcement officers, to enter upon and inspect emergency care establishments to ensure that such establishments are in compliance with the ECE By-Law. Inspections may be carried out at “any reasonable time.”
(f) Municipal law enforcement officers can issue orders when an officer has reason to believe that any provision of the ECE By-Law or any condition of a licence has been contravened.
When a municipal law enforcemnt officer has reason to believe that a person has contravened any provision of the ECE By-Law, administrative penalties may be imposed through the issuance of a Penalty Notice as an alternative to a certificate of offence or information under the Provincial Offences Act.
(h) Penalty notices can be challenged by way of the Town of Cobourg’s screening process and upon further appeal to a Hearing Officer as set out in the Administrative Penalty By-Law.
The County of Northumberland and 310 Division Street
(i) The applicant is an upper-tier municipal government comprised of seven lower-tier municipalities including the Town of Cobourg.
(j) The applicant is designated as the Service Manager for the region of Northumberland. As such, the applicant is mandated to establish a plan to address housing and homelessness within its geographic boundaries.
(k) In an effort to address the urgent and ongoing needs of unhoused individuals, the applicant applied for and obtained an ECE License on November 8, 2024. This license authorizes the applicant to carry on the business of an emergency care establishment on the property located at 310 Division Street in Cobourg. The ECE License was issued pursuant to the Town of Cobourg’s ECE By-Law and expires on November 8, 2025.
(l) The County of Northumberland is the registered owner of the property at 310 Division Street. After obtaining the ECE Licence, 310 Division Street was opened to provide modernized shelter services, including emergency shelter beds, a warming/cooling centre, as well as a range of supports and resources for the local unhoused population. 310 Division Street is operated in partnership with Transition House Coalition and is the only emergency shelter for both men and women in the County of Northumberland.
(m) As a condition of continuing to hold a licence as an ECE Operator, the ECE operator must ensure compliance with all applicable laws, including the FPPA, and in this respect, must give those individuals designated as “inspectors” pursuant to the FPPA access to the emergency care establishment for the purpose of conducting inspections to determine compliance with the FPPA.
Ontario’s Fire Protection and Prevention Act
(n) The FPPA is a provincial statute. It designates the Fire Marshal, an assistant to the Fire Marshal, or a Fire Chief as inspectors for the purpose of warrantless entry and inspection of premises for the purposes of assessing fire safety. A fire chief may delegate his or her powers or duties to any firefighter or class of firefighters.
(o) An assistant to the Fire Marshal includes the fire chief of every fire department; the clerk of every municipality that does not have a fire department; any member of a fire prevention bureau established by a municipality; and every person designated by the Fire Marshal as an assistnat to the Fire Marshal.
The Town of Cobourg has established a fire department for the whole of the municipality and its council has appointed a fire chief pursuant to section 6 of the FPPA.
The Impugned Order and Penalty Notice Issued on April 10, 2025
(u) A municipal law enforcement officer from the Town of Cobourg attended at 310 Division Street on April 5, 2025 at 3:01 a.m. to conduct an inspection pursuant to the ECE By-Law. Following that inspection, the municipal law enforcement officer issued the impugned Order and Penalty Notice dated April 10, 2025 which are the subjects of this application for judicial review.
(v) The impugned Order issued on April 10, 2025 alleges non-compliance with 310 Division Street’s Fire Safety Plan, specifically;
i One staff on duty for every 10 occupants
ii The main floor warming/cooling area is to be used as a relief space and is not to be used as a sleeping area
iii An on duty manager must always be present and must at all times carry the key to activated the two stage fire alarm.
(w) The impugned Order requires compliance with 310 Division Street’s Fire Safety Plan by April 14, 2025. It does not identify any legal forum or process by which the applicant can challenge the findings of alleged non-compliance nor the impugned Order itself.
(x) The related impugned Penalty Notice was issued pursuant to the ECE By-Law and is defective on its face:
i. The description of the alleged contravention is limited to citations of the ECE By-Law provisions and does not describe the substance of any specific contravention.
ii. The Penalty Notice is not signed by the municipal law enforcement officer and instead includes a QR code linking to a Town of Cobourg parking website.
(y) The municipal law enforcement officer who issued the impugned Order and presumably signed the Penalty Notice dated April 10, 2025 is not known to be the Fire Marshal, an assistant to the Fire Marshal, a fire chief or delegate of the fire chief. The FPPA does not otherwise expressly delegate its inspection and enforcement powers to municipal law enforcement officers.
(z) The municipal law enforcement officer who attended at 310 Division Street on Arpil 5, 2025 did not have any statutory authority, lawful jurisdiction or expert qualification to inspect and investigate pursuant to the FPPA or Fire Code, not to take any related enforcement action.
(aa) A municipal law enforcement officer cannot unilaterally expand his or her authority or jurisdiction, no can a municipal by-law be interpreted to permitted enforcement of provincial legislation such as the FPPA when such an interpretation circumvents and/or removes express statutory and/or regulatory conditions, requirements and procedural safeguards.
(bb) In the circumstances, the impugned Order and related Penalty Notice dated April 10, 2025 were issued without lawful authority or jurisdiction and any power or authorized established by the ECE By-Law. Instead, the issuance of the impugned Order and related Penalty Notice reflect an attempt to accomplish by indirect means an object beyond the authority and power of municipal law enforcement officers and the ECE By-Law.
(cc) The nature of the impugned Order is reflected in the outcome of the applicant’s request to the Office of the Fire Marshal for review. This request for review was declined on the basis that the municipal law enforcement officer was not an “inspector” for the purposes of the FPPA and as such, the Office of the Fire Marshal was without jurisdiction to review the Order.
(ff) The County of Northumberland does not agree that it was in contravention of the Fire Safety Plan for 310 Division Street and, in the circumstances, does not have access to any legal forum or process to challenge the substantive findings of the impugned Order and related Penalty Notice dated April 10, 2025. As such, the County of Northumberland has been denied natural justice and procedural fairness.
Instead, the County of Northumberland is subjected to a “done deal” with no means of obtaining legal redress.
(gg) This denial of natural justice and procedural fairness is serious because the issuance of the impugned Order and related Penalty Notice creates a risk of the applicant’s ECE Licence can be suspended or revoked or subjected to the imposition of new conditions. The impugned Order and related Penalty Notice may also negatively impact the applicant’s future application for a renewal of the ECE Licence, which is required to permit the applicant to continue to operate an emergency shelter for vulnerable unhoused adults in the County of Northumberland.
(hh) The ECE By-Law cannot be interpreted to incorporate the FPPA and Fire Code by reference within its provisions because such an interpretation would amount to an attempt to rest authority granted under provincial laws and bestow it upon the Town of Cobourg’s municipal law enforcement officers.
Such an interpretation also creates unresolvable operational conflicts between the ECE By-Law and provincial legislation. Actions taken and instruments issued pursuant to by-laws that conflict with and/or frustrate the purposes of any provincial Acts or regulations are without force or effect to the extent of such conflicts.
(ii) The issuance of the impugned Order and related Penalty Notice dated April 10, 2025 exceeds the Town of Cobourg’s authority, as well as the authority and powers of its municipal law enforcement officers and constitutes a jurisdictional error reviewable on a correctness.
standard.
(jj) In the alternative, the County of Northumberland was compliant with, and did not contravene, the ECE By-Law nor any other provincial statue or regulation in respect of 310 Division Street on April 5, 2025. The County of Northumberland was at all times in compliance with the Fire Safety Plan for the property. In the circumstances, the issuance of the Order and related Penalty Notice was unreasonable.
The application is scheduled during the Central East Region Divisional Court in the week commencing September 15, 2025.
Author: Pete Fisher
Has been a photojournalist for over 30-years and have been honoured to win numerous awards for photography and writing over the years. Best selling author for the book Highway of Heroes - True Patriot Love
