Authority for Delegation of Matters

Transcription

1 Authority for Delegation of Matters The Special Committee to Review the Final Report of the Toronto Transition Team reports having received the following report (February9, 1999) from the City Solicitor; and having directed that such report be forwarded to Council for information: Purpose: The purpose of this report is to respond to the Council resolutions adopted during consideration of the report of the Special Committee on the Roles and Responsibilities of Community Councils in the context of the Council-Committee structure (Clause No.1 of Report No.12 of The Special Committee to Review the Final Report of the Toronto Transition Team), that the City Solicitor be requested to report to the Special Committee on: (i)the best method of achieving delegation of authority to Community Councils and to City staff where it is feasible and legally possible to do so; (ii)the delegation of final decision-making authority respecting site plan control, ravine by-laws, fence by-laws and trees by-laws, and other matters that can be delegated under current legislation; and (iii)whereby Members of Council can bring Community Council decisions to City Council for review and, recognizing the importance of Community Council and the need to eliminate waste and duplication in the present system of dealing with matters twice, to report on requiring a super-majority of two-thirds of Council to overturn a decision of a Community Council. Funding Sources, Financial Implications and Impact Statement: None. Recommendation: It is recommended that this report be received for information. Council Reference/Background/History: City Council at its meeting held on October 28, 29 and 30, 1998 considered the report of the Special Committee respecting the Roles and Responsibilities of Community Councils in the Context of the Council-Committee Structure (Clause No.1 of Report No.12 of The Special Committee to Review the Final Report of the Toronto Transition Team). In so doing, City Council adopted a number of recommendations intended to streamline decision-making at Council by delegating final decision-making authority to Community Councils and/or City officials. One of those recommendations is for Council to pursue legislative amendments to enable Community Councils to make final decisions on local matters. The City Solicitor was requested to report to the Special Committee on the best method of achieving the delegation of decision-making authority from Council to Authority for Delegation of Matters 1

2 Community Councils, on local matters or to staff to make decisions on the approval of the relevant Community Councils. The City Solicitor was also requested to report on the feasibility and the legality of the delegation of specified responsibilities within the existing legislative structure. Comments and/or Discussion and/or Justification: The purpose of this report is to provide advice respecting Council's legal authority to delegate decision-making power to Community Councils or to City officials, and to provide the Special Committee with the general principles that will determine which matters can be delegated under current legislation. This report will also address the specific requests for the City Solicitor to report on matters where final decision-making authority can be delegated to Community Councils or staff, as previously set out. General Principles of Delegation of Decision-making Authority: The general legal principle of delegatus non potest delagare provides that a delegated authority may not be further delegated. This principle applies to municipal law in that a municipal council, as the recipient of delegated authority from the province, must exercise that authority itself. There are two exceptions to this general principle: (i)where the province has granted express statutory authority to sub-delegate municipal powers; and (ii)where the need to sub-delegate arises by necessary implication from the statutory language. The Municipal Act, the Planning Act and several other statutes governing municipalities provide express authority for city councils to delegate certain acts to specified City officials. For example, section 41(13) of the Planning Act specifically authorizes Council to pass a by-law and delegate its jurisdiction over site plan control matters to a committee of Council or to a official named in the by-law. Under the Municipal Act, Council may delegate its decision-making power respecting the regulation of trees on private property to a named official. In addition to these general statutory authorities, each of the former municipalities have Private members bills (special legislation) authorizing various policy initiatives, many of which contain authority to delegate decision-making to staff or in some cases other bodies. An example of such delegated authority is found in the City of Toronto Act, 1975 which authorized the Council of the former City of Toronto to delegate its jurisdiction to license rooming houses to the Rooming House Licensing Commission. In addition to explicit legislative authority for Council to delegate decision-making, section of the Municipal Act contains a general power for the council of a municipality to delegate any powers, duties or functions that are administrative in nature to either a committee of council or to staff. This authority must be exercised by by-law and the by-law can impose conditions on the exercise or performance of the delegated powers, duties or functions. Administrative acts are generally defined as those acts which are necessary to be done to carry out legislative policies and purposes and clearly do not include the formulation of policy (legislative acts) or acts that otherwise involve the exercise of discretion (quasi-judicial acts). In essence, administrative acts generally Authority for Delegation of Matters 2

3 require the application of criteria to a fact situation to reach a result that does not require interpretation or discretionary judgements to be made. Examples of matters that have been delegated under this general authority in the former municipalities include use of the street allowance for matters such as boulevard cafes, boulevard parking, encroachments into the street allowance, authority to process BIA levies, designation of fire routes, authority to approve compensation under the Expropriations Act, authority to execute standard agreements on behalf of the municipality, etc. (subject to Council approved criteria being met). Authority for Council to delegate its authority to do certain acts may also be implied in certain circumstances. Implied sub-delegation is a more difficult question or statutory interpretation. In his book Principles of Administrative Law, DeVillar considers when authority to subdelegate can be implied and states that: "The court inquires whether the policy-scheme of the statute is such as could not easily be realized unless the policy which requires that a discretion be exercised by the authority named thereto is displaced; it weighs the presumed desire of the legislature for the judgment of the authority it has named against the presumed desire of the legislature that the process of government shall go on in its accustomed and most effective manner and where there is a conflict between the two policies, it determines which, under all the circumstances, is the more important." Case law has established that delegation may be implied where a person delegated a statutory power is clearly unable to exercise it personally. For example, a Minister of the Crown will not be able to exercise all of the statutory powers delegated to him or her. In such cases, courts have found that the Minister is able to delegate certain administrative powers out of "administrative necessity". In the municipal context, the authority of the City Solicitor to take steps to defend legal proceedings commenced against the municipality has been implied. Delegation - Specific Matters Requested for Report: Council requested that the City Solicitor consult with senior staff and report on the feasibility and the legal limitations on City Council's ability to delegate final decisionmaking in respect of the several matters specifically referred to the City Solicitor for report. The chart attached as ScheduleA addresses the feasibility and legality of delegating each of these matters. In addition, it provides comments respecting the four general areas that the Council recommended be delegated to staff and subject to a bump-up for a hearing at Community Council. A "bump-up" procedure can be described as one that allows a committee to consider and make recommendations to Council on specific applications that either do not meet the criteria approved by Council for it to be processed administratively or, special situations where a ward councillor requests an application be considered by committee and council. As long as Council retains final decision making authority in matters that cannot be processed administratively, there is no legal impediment to this process. Over the past year, City Council has exercised its general authority to delegate administrative matters to staff on several occasions, and has exercised its specific authority to delegate decision-making to staff as well. City Council has placed responsibility for the efficient administration of the corporation with the Chief Authority for Delegation of Matters 3

4 Administrative Officer; Council has delegated certain administrative functions as well as the powers and duties of Council under the Freedom of Information and Protection of Privacy Act to the City Clerk; and Council has delegated certain administrative and statutory duties to several other municipal officials. The delegations that existed prior to amalgamation have largely been carried forward as an interim measure, by the by-laws appointing the Chief Administrative Officer, the Commissioners and statutory and other officials. In addition, Council has already delegated functions including the enforcement of provisions of lease(s), licence and similar agreements to the City Solicitor; an interim purchasing by-law is in place; responsibility to accept conveyances of land for public highway purposes; authority for various City officials to sign standard form agreements including various health funding agreements and standard letter agreements respecting grants; and most recently, Council has exercised its statutory ability to delegate responsibility for seizing dogs, issuing muzzling orders and holding hearings respecting dogs that have bitten. Several initiatives are under way to recommend new City-wide regulatory by-laws that will harmonize the practices that were in place in the former municipalities. Reports are at various stages of preparation, and will be going to the appropriate Standing Committees and to Community Councils for consideration. They will contain recommendations and options for delegating decision-making authority with respect to the matters specifically referred to in them and will set out the principles, details and policy options necessary for Council to consider to make a proper delegation of authority. Generally, until decisions are made on the substantive policy issues, it is premature to consider delegating final approval of these matters to either staff or Community Councils. To provide Council with some sense of the matters that can be delegated to staff under current legislation, Schedule B sets out these functions and comments respecting each of them. Authority to Require a Super-Majority of Two-Thirds of Council to Overturn a Decision of the Community Council: The City Solicitor has been requested to report on methods whereby, in order to eliminate the waste and duplication of the present system of dealing with matters at Community Councils and again at Council, a super-majority of two-thirds of Council be required to overturn a decision of a community council. There is no legislative authority to require anything more than a simple majority decision of Council to overturn a decision of a community council or a decision of any other council committee. To impose this requirement would be illegal and would improperly fetter the discretion of Council. Legislative change would be required to implement this recommendation. Section 28(c) of the Interpretation Act provides that in every Act, unless the contrary intention appears, where an act or thing is required to be done by more than two persons, a majority of them may do it. This provision is set out in the converse in the Municipal Act, which provides in Section60 that, "except where otherwise expressly provided by this Act, any question on which there is an equality of votes shall be deemed to be negatived." It follows then that unless otherwise authorized, a simple majority of those councillors present and voting is all that is required to determine a question. Authority for Delegation of Matters 4

5 Rogers, in reaching the conclusion that a simple majority governs in The Law of Canadian Municipal Corporations, states: "As in the case of quorums, the common law rules respecting majorities established with reference to corporate bodies have, as a rule, been applied to municipal Councils and other local authorities... At common law, provided there is a quorum present, a majority of the quorum may bind the corporation." Finally, Section 105 of the Municipal Act authorizes Council to delegate the conduct of statutory hearings to a committee of Council however, it does not authorize Council to pass on any authority to make a final decision in respect of the subject of the hearing or to pass by-laws. In the case of statutory hearings held at community councils, to require a super majority of two-thirds of Council to overturn a decision of the Community Council would contravene the provisions of subsection105(3) of the Municipal Act. Subsection 105(3) requires Council to take any necessary action, including passing by-laws after a hearing has been held under a by-law delegating the hearing function to committee, and a requirement that Council pass a by-law unless two-thirds object is contrary to this provision. This proposal would in effect result in final decisions being made by Community Councils in areas where Council cannot legally delegate final decisionmaking. Conclusions: Council may delegate final decision-making authority to Community Councils or to staff, only where legislation authorizes this delegation. Where policy or discretionary decisions must be made, and where statutory hearings are required, Council cannot delegate its authority without an explicit statutory provision to do so. However, Council's general ability to delegate administrative acts can be used to reduce the matters on Council's agenda. Council can, as a policy matter, adopt criteria or processes to be applied by staff to process those regulatory matters which are administrative. Most such delegated authority in place before amalgamation has been retained, and staff are working to prepare new City-wide policies and procedures for Council's consideration that will eventually replace existing limited authorities. The chart attached contains comments on those specific matters which were referred by Council for report. Respecting the proposal to require a super majority of two-thirds of Council to overturn a decision of a Community Council, such a requirement would illegally fetter Council's decision. Consequently, legislative change is required to implement it. Contact Name: Mary Ellen Bench Legal Services Division Authority for Delegation of Matters 5

6 Schedule "A" Legal Ability to Delegate Items Specifically Referred to for Report Function Licensing and extension of boulevard cafes Comments - s.2(2)2 of the City of Toronto Act, 1997 (No. 2) authorizes Council to delegate the exercise of its powers over the use of the highway, including boulevard cafes, to a City employee, with or without conditions on the delegated power - where there is an objection to a decision made Council is required to hold a hearing (delegated to committee under s.105 of the Municipal Act) criteria in place in former municipalities Special Occasion LLBO permits - can generally be delegated to staff where Council has approved specific criteria that is to be applied to determine when an event is an event of municipal significance. Where criteria is not met, staff cannot exercise discretion but a bump-up to Community Council and ultimately Council to approve in the circumstances is possible. Section 3.3 of Regulation 388/91 under the Liquor Licence Act makes provision for municipal councils to designate events as being of municipal significance for the purpose of obtaining special occasion permits, and section 3.6 thereof authorizes a delegated official to designate an event as a community festival when conducted by a registered charity or non-profit association. - a harmonized set of criteria for designating events as municipal significance for the purpose of obtaining special occasion LLBO permits is being prepared by the Clerks Division Street name changes - cannot be delegated under current legislation - s.210 paragraph 111 of the Municipal Act requires Authority for Delegation of Matters 6

7 Council to publish notice and hold a hearing before passing a by-law to change a street name Parking pad issues - generally, can be delegated to staff where Council sets out specific criteria to be applied in determining whether or not a permit is available (administrative delegation - no discretion) - sections 308(3) and 310 of the Municipal Act provide general authority for boulevard and front yard parking (use of the road allowance, which is currently supplemented by special legislation in the City of Toronto (1980 and 1993(3)) - parking pad issues have also been regulated under zoning by-laws, in terms of front yard parking or driveway widening Temporary road closures for special events Installation of stop signs on local roads - can be delegated to staff under current legislation - s.207, paragraph 44 of the Municipal Act authorizes Council to, by by-law, delegate to a committee or to a City employee responsibility for temporarily closing a highway for social or recreational, community or athletic purpose subject to any conditions Council chooses to impose on the exercise of this authority - requirement for a specific by-law prohibits delegation of final decision-making authority - s. 210, paragraph 123 of the Municipal Act requires Council to act by by-law Installation of speed bumps and speed humps - cannot be delegated under current legislation - in municipalities other than the former City of Toronto, installation could be classified as a highway alteration which requires a notice and public meeting under section 297(1) of the Municipal Act - in the former City of Toronto speed humps are authorized under special legislation respecting traffic calming (1993, as amended), which also requires notice and a public meeting. This legislation allows for speed reductions in conjunction with speed humps, Authority for Delegation of Matters 7

8 thereby reducing potential liability - Council, at its meeting of October 28, 29 and 30, 1998 (Clause No. 7 of Report No. 12 of the Urban Environment and Development Committee) authorized the City Solicitor to make application for special legislation to remove or extend the sunset provision on the former City of Toronto traffic calming legislation and to extend this legislation City-wide. That application is presently being processed. Changes to parking prohibitions on local roads Preliminary evaluation reports for planning applications Regular contract awards to the lowest bidder where funding for the project has already been approved in the budget - s. 210, paragraph 123 respecting parking in general and paragraph 124 respecting permit parking, of the Municipal Act, requires Council to act by by-law therefore cannot delegate final decision-making authority - partially delegated by By-law No (Clause No. 2 of Report No. 9 of the Urban Environment and Development Committee) as amended and adopted by Council on July 29, 30 and 31) - can be delegated where an administrative function, and has been partially delegated - the interim purchasing by-law (By-law , as amended by By-law ) delegates authority to the Bid Committee to award contracts to the lowest bidder who meets specifications up to $1 million and authorizes Standing Committees to make such awards where the amount is between $1 million and $2.5 million. For matters over $2.5 million a Standing Committee or Community Council will make a recommendation to City Council - staff are currently preparing a report on a revised purchasing by-law Appointments to local BIA's - cannot be delegated under current legislation - s.220(6) - Council is required to appoint members to BIA boards - could accept a recommendation of BIA as long as discretion not fettered Authority for Delegation of Matters 8

9 Appointments to recreation centre boards - cannot be delegated under current legislation - s.207, paragraph 58(e) of the Municipal Act requires Council to appoint persons to act as a board of management for community recreation centres - subsection 5(1) of the Community Recreation Centres Act requires Council to appoint a committee for the management and control of a community recreation centre established under this Act Sign variances - cannot be delegated under current legislation - s.210, paragraph 146(g) authorizes minor variances from a Sign By-law passed by Council only if, in the opinion of Council, the general intent and purpose of the by-law is maintained Disabled persons parking spaces Loading zones Loading zones for disabled person parking permit holders Public lanes - s.210, paragraph 125 of the Municipal Act requires Council to act by by-law and therefore final decisionmaking authority cannot be delegated - s. 210, paragraph 123 of the Municipal Act requires Council to act by by-law and therefore it cannot delegate its final decision-making authority - s. 210, paragraph 123 of the Municipal Act requires Council to act by by-law and therefore it cannot delegate its final decision-making authority - s. 259 of the Municipal Act authorizes Council to acquire or assume a highway, including a public lane, by passing a by-law and consequently final decisionmaking authority cannot be delegated - City Council at its meeting of November 25, 26 and 27, 1998 adopted Clause No.7 of Report No. 13 establishing criteria by which the authority to approve the acceptance, laying out and dedication of land could be carried out by the Commissioner of Works and Emergency Services who is authorized to instruct the City Solicitor to introduce the necessary bill for Council's approval Pedestrian crossovers - s.210, paragraph 123 of the Municipal Act and Authority for Delegation of Matters 9

10 section 140 of the Highway Traffic Act requires Council to designate pedestrian crossovers by by-law and consequently final decision-making authority cannot be delegated Matters Where Delegation has Been Recommended to Streamline Community Council Agendas Function Site Plan Control Comments - s. 41 of the Planning Act authorizes full or part delegation, with or without conditions - as an interim measure, By-law No amended the existing planning delegation by-laws of the former municipalities until a new policy could be put forward for Council's consideration - to be considered in "best practices" report requested by UEDC Ravine By-laws - can delegate Municipal Act authority. Discretionary powers under Weed Control Act and special legislation cannot be delegated - to be considered in "best practices" report requested by UEDC - s (respecting grading) and s (respecting trees on private property), as well as the provisions of the Weed Control Act, Trees Act and Public Parks Act authorize certain provisions in Ravine By-laws - in the former City of Toronto, special legislation, being s.2 of the City of Toronto Act, 1971 as amended by s. 8 of the City of Toronto Act, 1983 authorized the former City to regulate vegetation and development in areas designated as ravine on the Official Plan also apply Authority for Delegation of Matters 10

11 Trees By-laws - s of the Municipal Act authorizes full or part delegation, with or without conditions, of Council's authority to pass by-laws prohibiting or regulating the injury or destruction of trees, including trees on private property - s.312 of the Municipal Act, respecting the planting of trees on highways requires Council to pass a by-law authorizing or regulating such planting - staff anticipate coming forward to Economic Development this spring with a report on a harmonized policy for trees within the street allowance and hazardous trees, and a follow-up report regarding trees on private property Fence By-laws - s.210, paragraphs 25 to 30 of the Municipal Act authorize by-laws setting standards respecting the height, material and maintenance of fences - division fences may be also be subject to the Line Fences Act - under current legislation, Council cannot delegate decision-making respecting exemptions from by-law standards - a harmonized by-law respecting swimming pool fences, fences along highways and fencing standards is anticipated to be presented to the Community Councils and to the Urban Environment and Development Committee this spring - staff anticipate a follow-up report regarding a harmonized by-law for division fences (this appears to be an area where practices varied significantly between former municipalities) Schedule "B" Additional Matters Where Final Decision-Making Can be Delegated to Staff or Community Councils Authority for Delegation of Matters 11

12 Function Under paragraphs 107, 108, 109 and 110 of section 210 of the Municipal Act regarding buildings encroaching on highways, the use of highways or boulevards during construction, projections encroaching into the street allowance (air conditioners, awnings, etc.) and encroachments for refacing Use of the highways under subsection 308(3) of the Municipal Act for various installations (boulevard cafes, vending boxes, transit shelters, etc.) Comments - s. 2 of the City of Toronto Act, 1997 (No. 2) authorizes delegation of all of Council's powers to a City employee, with or without conditions - partially referred to in Schedule A matters in this report - subsection 2(4) requires Council to hold a hearing in the event of an objection to the exercise of the delegated powers - s. 2 of the City of Toronto Act, 1997 (No. 2) authorizes delegation of Council's powers to a City employee, to be exercised with or without conditions - in the event of an objection, Council is required to hold a hearing, and may confirm, rescind or vary a decision made by an employee Street vending - s. 22 of the City of Toronto Act, 1997 (No. 2) authorizes Council to regulate street vendors and subsections 5 and 6 authorize Council to delegate the hearing required under the Act before licence can be suspended or revoked, to a committee of Council - subsection 22(8) authorizes Council to delegate authority to a municipal official to suspend a licence for up to 4 weeks Any power delegated by the Minister of Municipal Affairs and Housing to Council under the Planning Act, other than authority to approve Official Plans and to exempt approval plans as official plans or amendments to Official Plans Authority to approve plans of subdivision Temporarily closing of a highway - final decision-making power can be delegated to a committee of Council or an appointed officer under section 5(1) and (2) of the Planning Act, subject to any conditions imposed by the Minister - all or part of Council's authority may be delegated to a Committee of Council or an appointed officer pursuant to section 51.2 of the Planning Act - final decision-making, with or without conditions Authority for Delegation of Matters 12

13 for repair purposes Issuance of permits for grading alteration, with or without conditions Issuance of permits for the injuring or destruction of trees, with or without conditions Hearing of applications to Council for the cancellation, reduction or refund of taxes levied imposed, may be delegated to a Committee of Council or to an officer or employee under section 207, paragraph 43 of the Municipal Act - final decision-making, with or without conditions imposed, may be delegated to an appointed officer under section 223.1(3) of the Municipal Act - final decision-making authority, with or without conditions imposed, may be delegated to an appointed officer under section 223.2(3) of the Municipal Act - s. 442 and s. 443 authorize Council to delegate this function to the Assessment Review Board - s. 105 of the Municipal Act authorizes Council to delegate the hearing of these appeals, but not final decision-making, to a Committee of Council - City Council at its meeting of December 16, 17 and18, 1998 adopted Clause 35 of Report No. 26 of the Strategic Policies and Priorities Committee establishing the Assessment Review Board as the body to hear these matters Issuance of permits for the moving of heavy vehicles, loads, objects or structures in excess of the dimensional and weight limits set out in the Highway Traffic Act Fire route designations - subject to criteria set out in a by-law, authority to approve fire route designations, application to place banner signs over or across streets, applications for sidewalk sales Approval of the issuance of permits for filming on City property, including highways - delegation of final decision-making authority is authorized to an officer of the corporation under subsection 110(3) of the Highway Traffic Act - approval, subject to criteria set out in a by-law can be delegated to municipal staff under sections 210, paragraph 123 and section of the Municipal Act - approval of applications that meet criteria set out in a by-law can be delegated as an administrative function - Council at its meeting of February 2, 3 and 4, 1999 deferred Clause 6, Economic Development Report No.1 to its March 2, 3 and 4, 1999 meeting of Council Authority for Delegation of Matters 13

14 Noise restrictions - s. 210, paragraph 138 authorizes Council to pass bylaws to prohibit or regulate unusual or disturbing noises - Council could, by by-law, authorize staff to issue permits permitting exceptional noise for special events or other purposes as long as Council sets out criteria to be applied in assessing whether or not a permit can be issued Lottery Licences - Order-in-Council 2688/93, as amended, authorizes Council to appoint a Lottery Licensing Officer (the City Clerk) to issue licences on terms and conditions imposed by both the Director under the Gaming Services Act, 1992 and by City Council Authority for Delegation of Matters 14