Improving Bylaw Enforcement

Transcription

1 Improving Bylaw Enforcement BYLAW ADJUDICATION (BEN) The New Bylaw Enforcement Tool A short comparative analysis between MTI and BEN Prepared by Peter Longhi Chief Building Inspector Prepared by Peter Longhi, Chief Building Inspector and Bylaw Manager, SCRD

2 General Definitions MTI The Municipal Ticketing Information System, MTI,, is a long standing enforcement tool used by local governments and facilitated under the Ministry of the Attorney General for many years. The SCRD has the MTI system in place currently, however there are some significant problems in issuing i tickets of this nature: 2

3 MTI continued The ticket can only be served in person, If disputed, it may only be disputed in Court, The rules of Court must apply, There is often legal Council services required, Costs of resolution are generally much higher, Witnesses need to appear, Evidence requires presentation before a judge, Time for resolution is long and protracted, A permanent court record is filed if found guilty. 3

4 BEN The Bylaw Enforcement Notice System, BEN, is relatively new, (2003), and is being adopted by many Local Governments as a more efficient streamlined tool to accomplish the same ends. It is equally supported by the Ministry and seen as the preferred system. 4

5 BEN Eliminates need for Bylaw Officers to spend countless hours at the Court house waiting to provide evidence Removes minor bylaw violations from complex Provincial Court system Bylaw notices deemed served when placed on site or delivered by mail Limited need for legal counsel assistance Reduction in collection costs (reduction in time) 5 5

6 BEN continued Provides local government with control over the process and greatly assists with compliance within a short timeline. Saves time in processing file and bring closure to the offence on both sides. Eliminates judicial discretion on penalties Can be implemented by individual municipality or jointly on regional basis. 6 6

7 The Act s Main Targets Minor infractions with Small fines Deal effectively with these infractions in an informal environment 7

8 BEN Model The goal of the new enforcement model is to create simple, fair, and cost effective systems for dealing with minor bylaw infractions. To meet this goal, the BEN model: eliminates the requirement for personal service; establishes a dedicated forum for resolving local bylaw enforcement disputes; uses a dispute resolution based approach to obtaining independently adjudicated decisions; avoids the unnecessary attendance of witnesses; avoids the need to hire legal counsel; and promotes the timely resolution of bylaw enforcement disputes. 8

9 New Terminology Adjudication is the term used to define the process of deciding if the penalty is applicable and the fine upheld An Adjudicator may be a retired or active Judge, Justice of the Peace or Lawyer experienced with settling minor Bylaw infractions and appointed by the Province A Screening Process gives the Local Government an opportunity to verify the violation and/or enter into a compliance agreement with the offender. A Screening Officer is charged with administering the enforcement process and may decide on whether a ticket may be revoked. A Compliance Agreement is an admission of the offence but seeks agreeable terms for rectifying the situation in writing and is made between the Screening Officer and the offender. 9

10 Lets Compare the Two Systems 10

11 Originating Document Old MTI Letter Info/Summons New Bylaw Notice Single Document Legally effective on delivery 11 11

12 Delivery of Bylaw Notice Old Personal Delivery Only New o Leave on Site (on building or boat at the dock) o Mail (7 days) deemed d served o Personal delivery 12 12

13 Ticket sample 13

14 Resolution Old No formal power to resolve outside court process once legal process under way New Formal Review by Screening Officer BEFORE Adjudication (cancel / confirm) 14 14

15 Sample of Screening Officer notes BYLAW NOTICE SCREENING DATE : March 16 th, 2005 BYLAW NOTICE NUMBER: WV TIME: 1:43pm DATE NOTICE ISSUED: 03/15/05 ISSUING OFFICER: Paul Seco NAME: Sarbjit Singh Lally TELEPHONE #: CELL #: ADDRESS: A Avenue FAX# West Vancouver BC V4N 5K6 SCREENING OFFICER : Marie Whitmore March 16 th, 2005 We received a fax copy requesting adjudication for Bylaw notice WV This ticket was issued for operating a heavy vehicle on a prohibited highway. March 16 th, :49pm I called Sarbjit Lally to discuss the ticket. The receptionist advised that Sarbjit is the on the road so he will have to call me back. March 17 th, :12am Left another message fro Sarbjit Lally to call to discuss ticket. March 21s, :15pm Called to speak to Sarbjit Lally regarding ticket. Receptionist gave me his cell Called his cell and left a message for him to call me. Screening Officer s Notes Form March 21, :22: Kulvinder Lally is the owner. Driver was picking up a container right off of Marine Drive Esquimalt & 12 th I advised a suggested route they could of taken. (Down Taylor Way, right on Marine Drive, right on 12 th, and up to Esquimalt) Owner advised that the driver or the company wasn t aware of the regulations. I advised that if you or your driver are I faxed a copy of the schedule of heavy vehicle prohibited highways for future reference. Owner is upset that the fine is so much and she wanted to know if we could reduce the fine amount. I advised there is no reducing the fine amount. Owner advised that the customer should pay for some of the fine. I advised that their customer isn t liable for a driver s route. The driver is the one drove not the customer. Owner was hesitating on paying the fine amount so she passed the phone to a co-worker who knew the customer in West Vancouver that the dropped the stuff off to. This employee advised the same issues as the owner and I retold 15

16 Compliance agreement Old No process to obtain formal agreement to comply New Legislatively recognized compliance agreement 16 16

17 Compliance Agreements In addition to canceling or upholding a ticket a Screening Officer may also enter into a Compliance Agreement with a disputant. A disputant who enters into a Compliance Agreement is conclusively deemed to have accepted liability for the bylaw contravention as set out in the bylaw notice. 17

18 Effect of Compliance Agreement The Compliance Agreement sets out the amount of any reduction in the fine penalty It may also include the terms and conditions the screening officer considers necessary or advisable. If the person who received the bylaw notice and who entered into the compliance agreement observes or performs all the terms of the agreement the bylaw bl notice is deemed to be paid. If however, in the opinion of the screening officer, the person breaches the compliance agreement the screening officer may rescind the agreement. 18

19 THE DISTRICT OF WEST VANCOUVER COMPLIANCE AGREEMENT PURSUANT TO BYLAW NOTICE ENFORCEMENT BYLAW NO.4368, 2004 I (name), of (address), acknowledge receipt of Bylaw Notice(s) # (the Bylaw Notice ), and wish to enter into this Compliance Agreement whereby I agree to fulfill the conditions below, in exchange for a reduced penalty. Specifically, I agree to pay the reduced penalty of $ on or before I further agree to comply with the following terms and conditions of this Agreement: 1. On or before I will ; and 2. On or before I will. I understand that this Agreement is binding upon me for one year from the date of this Agreement. I also understand that if I breach a term of this Agreement, or fail to observe or perform the above terms and conditions, the District s Screening Officer may rescind this Agreement. I understand that if this Agreement is rescinded, I will have 14 days to dispute the Screening Officer s decision to rescind the Agreement, and that if I do not dispute this decision in that time, the full penalty stated in the Bylaw Notice(s) of $ will be immediately due and payable and subject to all fees and penalties as if the Bylaw Notice was not disputed. Signature of Bylaw Notice Recipient Signature of Screening Officer D ate D ate 19

20 Screenings Quality Screenings must be concise Benefits to Community in that the opportunity for compliance can be obtained Benefits to Adjudication di Program in that t if there is an infraction, it is documented and clear 20

21 Types of ticket able Offences under MTI and BEN Most often a complaint driven process If compliance once identified by the If compliance once identified by the designated officer is not met by the owner

22 Shed located contrary to zoning 22

23 Boat illegally moored at dock 23

24 Illegal dumping 24

25 Watering outside the prescribed hours 25

26 Construction underway without a valid building permit 26

27 Work underway without permits or approvals 27

28 Work without Building or Zoning compliance; non compliant construction 28

29 Work or repairs or additions without a permit 29

30 Substandard construction 30

31 Dispute Adjudication Occurred Or Didn t Occur Appeal Screening Officer* Disputed or Compliance agreement* *Optional Compliance agreement* Or Notice cancelled* 31 Bylaw Notice issued Paid Default (14 days) 31

32 Requiring Dispute Adjudication Where a screening officer rescinds a compliance agreement, the persons who entered into the agreement may, within 14 days after receiving notification, require the screening officer to submit for dispute adjudication the issue of whether the agreement was breached. (That is the only issue to be adjudicated) If the person fails to appeal the rescinding of the compliance agreement within the required 14 days the penalty set out in the original notice is immediately due and payable 32

33 If NO Resolution is found ADJUDICATOR 33 33

34 The Adjudication Can take place at any venue 34 34

35 Forum Old New Provincial Screener & Court Location Court House Adjudicator Local Government Dispute Adjudicator selected by the Province Location Wherever appropriate (Board room at SCRD for example) 35 35

36 Adjudicators ADJUDICATION HEARING 36

37 Typical informal hearing 37

38 Standard of Proof Old New Proof beyond a reasonable doubt Civil Standard Balance of probabilities 38 38

39 Hearing Rules Old Common Law & Statutory Rules Rules of evidence Pursuant to Common Law Rules of procedures of the court system New Credible & Relevant (Small Claims test) Simple process 39 39

40 Hearing Format Old COMPLEX 1. Prosecution case Direct/Cross exam. Rules of Evidence Witnesses 2. Defense Case Direct/Cross exam. Rules of Evidence 3. Reply 4. Submissions 5. Decision 6. Sentencing 40 SIMPLE New 1. Review/Hear No witnesses required In person/in writing/by phone No Lawyers required 2. Decide [Did or didn t occur] 3. Penalty automatically falls from the decision 40

41 Appeals Old New As a Right Costly y in time and money Must be made in Supreme Court Limited Section 22 (1)&(2) Only if an error in law was made by the Adjudicator Can also be made in the Supreme Court at a cost 41 41

42 In a Nutshell 42 42

43 MTI = BEN PLUS Pre-process discretion to resolve through compliance agreements Discounts if paid within 14 days Collection Agency Small claims Court 43 43

44 Implementation Steps Make application to the Province Create the enabling Bylaw to establish new Bylaw Notice Dispute Adjudication System (BEN) Create new Bylaw Notices (tickets) Screening Policies adopted by Board resolution 44 44

45 SCRD Bylaw Enforcement 45