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Municipal - Cost Recovery on Bylaw Violation. Fitchett v. The Corporation of the Town of Gravenhurst
In Fitchett v. The Corporation of the Town of Gravenhurst (Div Court, 2023) the Divisional Court heard an interesting JR case where a man who had plead guilty to a small 'illegal fire' POA fine, was later sent a much larger invoice reflecting the actual fire department actual costs. Here the court sets out the municipality's Municipal Act, 2001 jurisdiction (and by-law) to recover their costs of fire service [MA 391, 446]:[12] The property owner also has the opportunity to become immediately involved at the scene of the fire to mitigate any impacts. Subsection 446(1) of the Municipal Act, 2001, S.O. 2001 c. 25 provides that where the municipality under a by-law can direct a person to do a “matter or thing,” the municipality may also provide that in default of the person doing it, the matter or thing shall be done at the person’s expense. In the context of an attendance at a fire, this means that the first step will be for the fire fighters to direct the property owner to cease the activity and extinguish the fire. If the owner does not extinguish the fire, the fire fighters will do so and the owner will be responsible for the related fees.
[13] Subsections 9(2) to 9(4) of the Burning By-Law establish this sequence of events mores specifically. They provide:9(2) Open air fires in contravention of this by-law are not approved by the Chief Fire Official and shall be extinguished.
(3) Where the person does not comply with the directive to extinguish the open air fire, the Chief Fire Official, his firefighters, fire trucks or any other fire equipment may enter upon the land where the fire is located to extinguish the fire.
(4) Upon the fire department attending to extinguish the open fire, whether it since has been extinguished or not, the owner will be responsible to pay fees as established in the Fees and Services Charge By-law. ....
[15] Nature of statutory scheme: The statutory scheme reflects the immediacy of the decision-making process with respect to the Burning By-Law violation, as outlined above. With respect to the issuance of the invoice, it also provides the municipality with broad powers to charge an individual for a service done on their behalf. For example, s. 391(1) of the Municipal Act provides:391(1) Without limiting sections 9, 10 and 11, those sections authorize a municipality to impose fees or charges on persons,
(a) For services or activities provided or done by or on behalf of it;
(b) For costs payable by it for services or activities provided or done by or on behalf of any other municipality or any local board; and
(c) For the use of its property including property under its control. [16] Subsection 391(4) confirms that the municipality may impose a charge whether or not the service was mandatory:391(4) A fee or charge may be imposed whether or not it is mandatory for the municipality or local board imposing the fee or charge to provide or do the service or activity, pay the costs or allow the use of its property. ....
[42] Once it was determined that the Burning By-Law was violated, the Respondents had no discretion regarding the issuance of the invoice. However, they did provide information to Mr. Fitchett regarding the policy reasons behind issuing the invoices and how the invoice would be calculated. Specifically, the Fact Sheet explained that the policy to recover costs for violation of the Burning By-Law was “based on the premise that law-abiding citizens should not subsidize or pay for the fire suppression activities created by those who break the law.”
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