Law Times

LAW TIMES • NOVEMBER 21, 2011 NEWS PAGE 3 Time to take parking tickets out of court? Law commission recommends mandatory administrative system BY KENDYL SEBESTA Law Times T he Ministry of the At- torney General will spend more than $9.2 million employing justices of the peace who hear minor of- fences like parking infractions in Ontario's courts this year. Th e expense is prompting the Law Commission of On- tario to question whether the province could save time and money by taking things like parking tickets out of court. Th e commission raised the question as one of 47 recom- mendations in its fi nal report on modernizing the Provincial Off ences Act this month. Th e report noted there were 2.8 million parking tickets is- sued in Toronto alone in 2009 with 11 per cent of defendants requesting a trial before a justice of the peace. Th at costs Toronto roughly $50 million annually, according to an August staff report to Toronto's government management committee. To- ronto's city solicitor and treasur- er estimate trial costs at nearly $38.25 per trial, not including other administrative expenses, the staff report noted. But an administrative mon- etary penalty system could sig- nifi cantly reduce those costs and increase effi ciency in the courts, according to the law commission's report. In its view, taking minor off ences like park- ing tickets out of the courts and placing them in the hands of non-judicial municipal adju- dicators will be more "fair, ef- fi cient, accessible, and propor- tionate to the interests at stake." "Th e administrative penalty system that's being proposed would just apply to parking tickets, although the report does suggest the attorney gen- eral should look at other minor off ences to see what could ap- ply to the system," says Patricia Hughes, executive director of the law commission. "Th is is really the fi rst substantial re- view of the Provincial Off ences Act in 30 years. Although the attorney general has done some work in the past to streamline it, overall it hasn't been re- viewed in this way for some time. Th at's despite changes in the provincial off ences envi- ronment like amendments to the Criminal Code." According to the report, the Provincial Off ences Act pro- vides for fi nes that take eff ect after a defendant has pleaded guilty or has been convicted by the courts. In contrast, an ad- ministrative monetary penalty system would issue a penalty once an investigator notes an infraction has occurred. A non-judicial adjudicator at the municipality would then impose the penalty. Th e amounts for those penalties will likely not ex- ceed $100, the report noted. Th ere are also several levels of appeal in the proposed system, it added. Ontario municipalities have been able to establish this type of penalty system for parking infractions since 2001. So far, only Vaughan and Os- hawa, Ont., have adopted it. "Th e City of Vaughan and the City of Oshawa have implemented the pen- alty system, and we've heard good things from them so far," says Hughes. "Th ere are really all kinds of advantages to using the system, like sav- ing time. Before, you would be waiting for a very long time before your case was heard in court. But this penalty system would let you plan and there wouldn't be that kind of wasted time." Th e report recommends a three-year delay before any new penalty system becomes mandatory for municipalities. In addition, other minor of- fences that could be feasible under an administrative re- gime include Highway Traffi c Act charges dealing with issues like licensing, road speeds, and wearing seatbelts. "We're recommending that the penalty system be manda- tory rather than optional like it is now," says Hughes. "But be- cause the City of Toronto is dif- ferent in that they don't fall un- der the Municipal Act of 2001 but rather their own separate act, it would be a question for them and other municipalities of whether or not the province wants to make it mandatory, which is something they'll have to review." According to the commis- sion's report, a mandatory ad- ministrative penalty system could decrease common trial delays of 10 months to less than two months. Despite the goal of minimizing delays, the Law Reform Commission of Sas- katchewan raised a key concern in the Ontario commission's fi - nal report. It argued that such a system opens itself to bias by allowing investigators and ad- judicators to rule collectively as the sole decision-makers for an off ence. "Th e duty of fairness re- quires that the decision-maker be unbiased and independent. It also requires that a person have an opportunity to pres- "I think it's a really good idea and defi nitely something that municipalities should consider," says Jody Johnson, an associate at Aird & Berlis LLP who often advises and represents Ontario munici- palities. "It really appears to free up the court systems and its resources to other more serious off ences." Vaughan implemented its administrative monetary penalty system in 2009 after citing similar concerns with increased wait times, lost 'This is really the first substantial review of the Provincial Offences Act in 30 years,' says Patricia Hughes. ent his or her case and respond to the evidence and arguments that others advance," the re- port noted in reference to the Saskatchewan commission's concerns. "Th e [Saskatchewan commission] notes that in many administrative contexts, the investigative versus adjudi- cative functions of the decision- maker are separated or there is an appeal to an independent adjudicator. However, many of Saskatchewan's [administrative monetary penalty] systems have no statutory right of appeal to a court or review by any other independent decision-maker." Lawyers, meanwhile, are responding favourably to the proposed mandatory system. revenue, and the need to free up court space for more seri- ous matters. Since the system took ef- fect, the city has reported better customer service as residents can deal with park- ing tickets in Vaughan rather than travelling to other provin- cial court locations. In addition, the system has led to faster pro- cessing times for tickets, often within a few weeks rather than months or years. At the same time, it has allowed for the real- location of court time to more serious matters like property standards issues. Still, while an administrative system could address the City of Toronto's concerns with lost rev- enue and delays under the cur- rent structure, George Bartlett, director of prosecutions there, says the proposed alternative cre- ates "signifi cant risks." "We looked at the provi- sion in the City of Toronto Act quite extensively but decided there were several issues that needed to be addressed," he says, adding the city decided against an administrative mod- el as a result. Bartlett wouldn't specify what issues were, but Janice those Atwood-Petkovski, city solici- tor in Vaughan, made reference to some of them in an interview with Law Times in which she touted her city's success with the administrative regime. She noted, for example, that there have been concerns about fairness and issues relat- ed to the Charter of Rights and Freedoms under the proposed system. Still, she notes that the law commission "concluded that the use of AMPs, based on the model adopted in the City of Vaughan, provides a fair and balanced mechanism to review administrative penalties and that this system would not of- fend the Charter." NOTICE Due to a distribution error, a number of copies of the Nov. 14, 2011, issue of Law Times were delivered incor- rectly. If you did not receive your copy, you may ac- cess the digital edition at no charge at this link: http:// lawtimes.clbmedia.dgtlpub.com. We are sorry for any inconvenience this may have caused. ONTARIO LAWYER'S PHONE BOOK 2012 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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• Cover
• Monetary Penalties
• Repatriation Revisited
• Focus On Environmental Law