Power of Entry By-law

BY-LAW Number: 
2016-047
Summary: 

BEING A BY-LAW TO PROVIDE FOR POWERS OF ENTRY ON LAND FOR THE PURPOSE OF CARRYING OUT INSPECTIONS


WHEREAS section 436, subsection (1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, provides that a municipality has the power to pass by-laws providing that the municipality may enter on land at any reasonable time for the purpose of carrying out an inspection;
 
AND WHEREAS sections 435, 437 and 438 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, set out additional powers and restrictions in regards to the power of entry;
 
AND WHEREAS section 426 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, prohibits any person from hindering or obstructing, or attempting to hinder or obstruct, any person exercising a power or performing a duty under this Act or under a by-law passed under this Act;
 
AND WHEREAS the Town of Collingwood wishes to pass a By-law allowing for the entry on land for the purpose of carrying out an inspection to ensure that its By-laws, directions, orders and conditions of a licence are being complied with;
 
AND WHEREAS this by-law applies to any Town of Collingwood by-laws without power of entry provisions passed pursuant to the Municipal Act, 2001, S.O. 2001 c. 25, as amended or its predecessors;
 
NOW THEREFORE COUNCIL OF THE CORPORATION OF THE TOWN OF COLLINGWOOD ENACTS AS FOLLOWS:
 
1.0          SHORT TITLE
 
This By-law may be cited as the “Power of Entry By-law”
 
2.0          DEFINITIONS
 
Land” includes buildings, structures and dwellings;
 
Municipal Act” means the Municipal Act, 2001, S.O. 2001, c. 25, or any predecessor Municipal Act;
 
Officer” means a police officer or municipal law enforcement officer or other person appointed by by-law to enforce the provisions of a by-law of the Town;
 
"Occupier” means any person, firm or corporation having control over any portion of the building or property under consideration and includes the persons in the building or property;
 
"Municipality" means the Corporation of the Town of Collingwood.
 
3.0          APPLICATION
 
3.1          This by-law applies to all by-laws passed under authority of the Municipal Act.
 
4.0          ENTRY AND INSPECTION
 
4.1          An officer may at any time, enter onto land for the purpose of carrying out an inspection to determine whether or not the following are being complied with:
 
a)    a by-law of the municipality passed under the Municipal Act;
 
b)    a direction or order of the municipality made under the Municipal Act or made under a by-law of the municipality passed pursuant to the Municipal Act;
 
c)    a condition of a licence issued under a by-law of the municipality passed under the Municipal Act;
 
d)    an order made under section 431 of the Municipal Act.
 
4.2          For the purposes of an inspection, an officer may:
 
a)    require the production for inspection of documents or things relevant to the inspection;
 
b)    inspect and remove documents or things relevant to the inspection for the purpose of making copies or extracts;
 
c)    require information from any person concerning a matter related to the inspection; and
 
d)    alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs necessary for the purposes of the inspection.
 
4.3          A sample taken under section 4.2 (d) shall be divided into two parts, and one part shall be delivered to the person from whom the sample is taken, if the person so requests at the time the sample is taken and provides the necessary facilities.
 
4.4          If a sample is taken under section 4.2 (d) and the sample has not been divided into two parts, a copy of any report on the sample shall be given to the person from whom the sample was taken.
 
4.5          A receipt shall be provided for any document or thing removed under section 4.2 (b) and the document or thing shall be promptly returned after the copies or extracts are made.
 
4.6          Copies of or extracts from documents and things removed under section 4.0 and certified as being true copies of or extracts from the originals by the person who made them are admissible in evidence to the same extent as, and have the same evidentiary value as, the originals.
 
5.0          CONDITIONS GOVERNING POWERS OF ENTRY
 
5.1          Unless otherwise provided in the Municipal Act, in an order under section 438 of the Municipal Act, or in a warrant under section 439 of the Municipal Act, the following conditions apply to a power of entry under this by-law:
 
a)    the officer must on request display or produce proper identification;
 
b)    the officer may be accompanied by a person under his or her direction; and
 
c)    the municipality shall restore the land to its original condition in so far as is practicable and shall provide compensation for any damages caused by the entry or by anything done on the land except where the entry is under section 446 of the Municipal Act, or is under Part XI of the Municipal Act, if under that Part, the treasurer registers a notice of vesting, in the name of the municipality, in respect of the land.
 
6.0          RESTRICTIONS REGARDING DWELLINGS
 
6.1          Despite any provision of this by-law, a person exercising a power of entry shall not enter or remain in any room or place actually being used as a dwelling unless:
 
a)    the consent of the occupier is obtained, the occupier first having been informed that the right of entry may be refused and, if refused, may only be made under the authority of an order issued under section 438 of the Municipal Act, a warrant issued under section 439 of the Municipal Act or a warrant under section 386.3 of the Municipal Act;
 
b)    an order under section 438 of Municipal Act is obtained;
 
c)    a warrant issued under section 439 of the Municipal Act is obtained;
 
d)    a warrant issued under Section 386.3 of the Municipal Act is obtained;
 
e)    the delay necessary to obtain an order under section 438 of the Municipal Act, to obtain a warrant under section 439 of the Municipal Act or to obtain the consent of the occupier would result in an immediate danger to the health or safety of any person; or
 
f)     the municipality has given the occupier of land notice of its intention to enter as required under section 435 (2) of the Municipal Act and the entry is authorized under section 79, 80 or 446 of the Municipal Act.
 
7.0          INSPECTION PURSUANT TO ORDER
 
7.1          An officer may enter on lands for the purpose of carrying out an inspection pursuant to an order that is issued under section 438 of the Municipal Act.
 
7.2          An officer may apply for an order under section 438 of the Municipal Act if:
 
a)    an inspection is desired to determine whether or not the following are being complied with:
(i)    a by-law of the Town as passed under the Municipal Act;
(ii)   a direction or order of the Town made under the Municipal Act or made under a by-law of the Town passed under the Municipal Act;
(iii)  a condition of a licence issued under a by-law of the Town passed under the Municipal Act; or
(iv)an order made under section 431 of the Municipal Act;
 
b)    the inspection is reasonably necessary; and
 
c)    the Town has been prevented or is likely to be prevented from doing anything set out in section 4.1 or 4.2 of this By-law.
 
7.3          An order under section 7.0 shall expire on the date stated in the order or 30 days after the order is issued, whichever is earlier.
 
7.4          An order under section 7.0 may be executed only between 6 a.m. and 9 p.m. unless the order provides otherwise.
 
7.5          In the case of an order authorizing an inspection of a room or place actually being used as a dwelling, the occupier must be given notice concerning when the inspection will be carried out.
 
7.6          An order under section 7.0 may be issued on application without notice.
 
8.0          INSPECTION FEE
 
8.1          An inspection fee, as stated in the Fees and Service Charges By-law, may be imposed when an officer conducts an inspection in which there is a failure to remedy a by-law violation by the date of compliance set out in a written notice or order or when an officer conducts an inspection where there is a repeat by-law violation.
 
9.0          OBSTRUCTION
 
9.1          No person shall obstruct or attempt to obstruct any officer or other person, who is exercising a power or performing a duty under this by-law or any other Town of Collingwood By-law or the Municipal Act.
 
9.2          Without limiting section 9.1, “obstruct” includes:
 
a)    to hinder or mislead;
 
b)     to knowingly provide false information or make a false claim or statement;
 
c)    to prevent, bar or delay or attempt to prevent, bar or delay entry or inspection by an Officer, or any person under his or her direction;
 
d)    to prevent, bar or delay or attempt to prevent, bar or delay any person, including an officer, from carrying out his or her duties or exercising his or her powers, including but not limited to the removal of documents or things relevant to the inspection, or the taking of any tests, samples or photographs necessary for the purposes of the inspection;
 
e)    to prevent, bar or delay or attempt to prevent, bar or delay any person, including an officer, from exercising his or her authority pursuant to an order issued by a provincial judge or justice of the peace under section 438 of the Municipal Act; and
 
f)     to fail to provide, upon request by an officer, any information, documents or things relevant to an inspection.
 
9.3          Without limiting sections 9.1 and 9.2, every person who is alleged to have contravened any of the provisions of any Town of Collingwood By-law shall identify themselves to an officer upon request and failure to do so shall be deemed to have obstructed the officer in the execution of his or her duties contrary to section 9.1 of this By-law.
 
10.0       PENALTY
 
10.1       Every person who contravenes any of the provisions of this by-law is guilty of an offence and upon conviction is liable to a fine as provided for in Provincial Offences Act, R.S.O. 1990, c.P.33.
 
10.2       Upon conviction, in addition to any other remedy and to any penalty imposed by this by-law, the court in which the conviction has been entered and any court of competent jurisdiction thereafter may make an order prohibiting the continuation or repetition of the offence by the person convicted.
 
11.0       VALIDITY AND SEVERABILITY
 
11.1       This By-law shall apply in addition to the provisions of any other Town By-law and the Municipal Act, 2001, S.O. 2001 c. 25, as amended, provided that in the event of conflict, the provisions of any other Town By-law or the Municipal Act, 2001, S.O. 2001 c. 25, as amended, shall be paramount over this by-law, provided such provisions are not contrary to law.
 
11.2       Nothing in this By-law shall limit any other statutory or common law rights or powers of the Municipality or any Officer to enter on Land.
 
12.0       EFFECTIVE DATE
 
THAT this By-law shall come into full force and effect on the date of final passage hereof at which time all By-laws and/or resolutions that are inconsistent with the provisions of this By-law and the same are hereby repealed or rescinded insofar as it is necessary to give effect to the provisions of this By-law.
 
ENACTED AND PASSED this 11th day of July, 2016.
 
 
 
                                                                                               ____________________________
                                                                                                MAYOR
 
 
                                                                                                ____________________________
                                                                                                CLERK
 
                                                       
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BL2016-047 Power of Entry By-law.pdf785.65 KB