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This article was published 11/12/2015 (500 days ago), so information in it may no longer be current.
Tens of thousands of invalid parking tickets were issued during winter parking bans in the past three years because someone in the city’s legal department missed a key provision of the Highway Traffic Act.
But even though the tickets shouldn’t have been issued, a senior civic official said there are no plans now to issue a refund to any motorist who paid the fine.
But that’s not good enough for the man whose appeal of his own parking ticket led to the discovery of the invalid ticket bylaw — or to the city councillor who oversees the snowclearing operations.
What The City’s Legal Department Missed
Section 90 (5) of the Highway Traffic Act requires clearly marked street signs prohibiting parking during certain hours, or the drivers have to be personally contacted by a peace officer.
“The council or other traffic authority concerned shall cause every rule made under subsection (1) or (3), that is supplementary to, or in addition to, the rules prescribed in this Part to be indicated or made known to drivers by traffic control devices or by peace officers.”
The Exception To The Rule
City hall says a different section of the HTA, Section 122 (1) (q) allows it to issue parking tickets between the hours of 11 p.m.- 6 a.m. on streets even if street signs are not posted.
Except when necessary to avoid conflict with traffic or to comply with another provision of this Act or the regulations under this Act or the directions of a peace officer or traffic control device, no person shall stop, stand, or park a vehicle…
(q) on a highway from 11 o'clock in the evening of one day until six o'clock in the morning of the following day, where stopping during that period is prohibited by by-law of the appropriate traffic authority and subsection 90(5) does not apply to such a by-law.
Michael Jack, the city’s chief operating officer, held a news conference Friday to say that the city will be asking the court to stay all parking tickets issued during the winter overnight parking bans and all efforts to collect outstanding fines will be discontinued.
But, he doesn’t believe the error justifies the city paying out refunds.
"The fine revenue that has been collected, on the advice of our legal department, if that has been paid we are legally justified and perhaps required to keep it," Jack said.
No posted signage
A recent court challenge by local activist Todd Dube has prompted city hall to change its ticketing practices for overnight parking bans.
Dube’s appeal was based on the fact the tickets were issued in absence of posted signage on city streets, as required by the Highway Traffic Act.
Earlier Friday, the city issued a statement that it cannot issue parking tickets to motorists who violate the overnight winter parking ban outside the hours of 11 p.m. to 6 a.m.
Winter parking bans on posted snow routes are in effect from 2 a.m. to 7 a.m., from Dec. 1 to March 1.
The city has also imposed, for the past three years, 12-hour parking bans on residential streets as part of its Know Your Zone snowclearing efforts, from 7 a.m. to 7 p.m., and from 7 p.m. to 7 a.m..
It’s the city bylaw behind the Know Your Zone residential ban that the city now acknowledges was improperly written and unenforceable.
Jack said the HTA does allow municipalities to enforce parking bans between 11 p.m. and 6 a.m., without the need for street signs, and that will continue.
Jack said in the three years since the Know Your Zone bylaw was put into effect, the city issued about 32,000 parking tickets. Of those, 25,000 were issued outside the hours of 11 p.m. to 6 a.m. and are therefore invalid.
An honest mistake
Someone in the legal department made an honest mistake, Jack said.
Jack was a lawyer in the city’s legal department and rose to city solicitor before becoming COO. However, he was not in charge of the legal department when the faulty bylaw was written in 2011, and he said he was not involved in its preparation.
"There are literally hundreds, if not thousands, of elements that you need to take into account when you’re drafting legislation," Jack said. "Our legal department does an incredible job doing that day after day.
"At any level of government there will be technicalities revealed, quite often through the court process and individual court processes like those of Mr. Dube, and this is one of those instances."
A civic spokeswoman estimated the city will forgo about $740,000 in fine revenue as a result of the outstanding tickets being quashed or withdrawn.
However, Jack said he expects the provincial government will amend the HTA for next winter so that parking tickets can be issued around the clock without the need for street signage, as is required now.
Jack said the city will continue to conduct "courtesy tows" for vehicles left on streets during snow bans. He said tickets might be issued, at the discretion of city staff, during the hours of 11 p.m. to 6 a.m.
Jack said the threat of a ticket and fine is a strong motivator in getting residents to co-operate with the city’s snowclearing efforts. He said he hoped that even if tickets can’t be issued for most of the day, that drivers will make every effort to not park on streets that are designated for snowclearing.
Considering class-action lawsuit
Coun. Janice Lukes, chairwoman of the public works committee, said that the city’s legal position is different from its responsibility to the public.
"If the city has done something that is illegal or that they shouldn’t have done, then I think that the folks should have a refund," Lukes said. "If the city’s done something it shouldn’t have done, then for sure."
Lukes said she is concerned about the error made by the legal department and expects CAO Doug McNeil will conduct a thorough review to find out what went wrong.
"We really need to get to the bottom of this to see where the error lies and correct it and move forward."
Dube said he expects city hall to issue a refund to those who have paid their tickets and said he’ll pursue a $10-million class-action suit if it doesn’t.
Dube said it cost him $10,000 in legal fees to challenge the ticket he was issued last year, adding he also expects to be reimbursed those costs.