I'd like TM's opinion on another little gem

Discussion in 'SF Lounge' started by Stamps Rule, Aug 28, 2012.

  1. Stamps Rule

    Stamps Rule Member

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  2. Tundra Mustang

    Tundra Mustang Moderator
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    I've got some commercial leases to prepare for a client tonight, and some litigation matters to review, SR.

    I'll look at the issue in the next day or so and then give you my take...;)

    TM
     
  3. Stamps Rule

    Stamps Rule Member

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    No problem.
     
  4. Rids

    Rids Member

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    I know in Airdrie if there's a sewer blockage they are allowed to track it back to the houses which means entry if necessary. There was a couple of businesses that had a direct drain to the storm drain that were caught a few years ago there.
     
  5. Tundra Mustang

    Tundra Mustang Moderator
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    Here's the section of the current Ottawa by-law:
    The current by-law properly exempts residential dwellings from inspection except where a Warrant or other Court Order permitting such entry is obtained by the municipal authority on reasonable grounds and properly served on the residents of the subject premises.

    Enacting more than that, and the municipality would be acting ultra vires in its very limited constitutional power to make laws of local application, since municipalities are merely creatures of the provincial government and have authority only to do what that provincial government will permit them to do.

    Constitutionally, the province has the right to legislate in relation to matters of property.

    Entry upon property would therefore fall within the pale of that constitutional authority.

    It also has the right to delegate that authority to municipalities.

    From what's being reported, Metro Toronto already has that authority after the Province of Ontario enacted legislation granting that power to it.

    Ottawa is envious.

    It says the process of obtaining an Entry Warrant or other Court Order is 'too cumbersome and expensive'.

    Ottawa wants what Toronto already has.

    To that I say, "Too damn bad!"

    I suspect the by-law in effect in Toronto has remained in place and on the books soley because it is likely only rarely invoked, and for that reason has likely not been legally challenged.

    The province can only supply a municipality with the power it lawfully possesses. A provincial authority acting beyond its legislative entitlement would be unconstitutional. It is no different when that power is given to a city to use.

    In this case, that means a province using that legislative entitlement would have to justify entry 'without due process' on the basis of imminent hazard or risk to life or property.

    The province would certainly have that authority, but it cannot delegate that general power to an inferior entity (such as a municipal government), unless the power is used in conjunction with circumstances justifying its use.

    Long-standing (or even newly created) problems associated with unlawful linkage of homeowners' sewer systems with municipal storm drains hardly constitutes an "emergency" or an "imminent health hazard" justifying the dispensation by governmental authority with the invocation of due process of law in order to gain entry to a private residence.

    If challenged in Toronto, I have no doubt the by-law would fail to meet the test.

    If enacted in Ottawa, or elsewhere, I would expect a similar fate would await it in those jurisdictions as well.

    Because mere inconvenience and expense cannot be conflated with the imperative created by imminent peril to life, limb or property.

    Those would, in any event, be my submissions. ;)

    TM
     
  6. Rusty

    Rusty Member

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    Didn't Regina have all sewer lines directly aimed at Mcallums (sp) home a few years ago?
     
  7. Stamps Rule

    Stamps Rule Member

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    Very good, thank you.

    I didn't realize that the municipality of Toronto already had these "powers" granted to them.

    I mean, I'm not surprised at all considering all of the wacky news stories that originate there; just....disappointed, I guess you could say.
     
  8. Stamps Rule

    Stamps Rule Member

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    I wonder how they would even trace that contamination back to the source. Airdrie isn't a small city any longer.

    It must be a very long and involved process.
     
  9. Tundra Mustang

    Tundra Mustang Moderator
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    Actually, the inspection team isolates the suspected site of contamination to a section of a particular neighbourhood where routine periodic monitoring of storm water lines will have shown 'signs' of sewage infiltration, then goes door to door through the immediate area they've targeted, asking for entry.

    Once let into the house, they look for a toilet in the basement (which is where almost all of the unapproved, d-i-y, plumbing work that violates code is found), and they pour a coloured tracing dye into the toilet, and flush it.

    The team will already have placed a mechanical monitoring device in the storm water drainage line somewhere down the block and they wait 90 seconds or so to see if the coloured dye shows up at the monitoring station.

    If not, it means the coloured marker was carried away from the home through the sewer lines (as it should have been), and the team goes on to the next house on the inspection list.

    By process of elimination (no pun intended ;)), the inspection team is generally able to eventually isolate the problem to a mere handful of homes, in respect of which, if requested entry is denied, consideration will be given to obtaining an Entry Warrant issued by the Court.

    Unless, that is, your home happens to be in Metro Toronto, in which case they apparently just kick your door in, drop you headfirst into the toilet, and then flush you to see where you come out... ;)

    TM
     

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