Authority for Delegation of Matters
The Special Committee to Review the Final Report of the Toronto Transition Team
reports having received the following report (February9, 1999) from the City Solicitor;
and having directed that such report be forwarded to Council for information:
Purpose:
The purpose of this report is to respond to the Council resolutions adopted during
consideration of the report of the Special Committee on the Roles and Responsibilities of
Community Councils in the context of the Council-Committee structure (Clause No.1 of
Report No.12 of The Special Committee to Review the Final Report of the Toronto Transition
Team), that the City Solicitor be requested to report to the Special Committee on:
(i)the best method of achieving delegation of authority to Community Councils and to City
staff where it is feasible and legally possible to do so;
(ii)the delegation of final decision-making authority respecting site plan control, ravine
by-laws, fence by-laws and trees by-laws, and other matters that can be delegated under
current legislation; and
(iii)whereby Members of Council can bring Community Council decisions to City Council
for review and, recognizing the importance of Community Council and the need to eliminate
waste and duplication in the present system of dealing with matters twice, to report on
requiring a super-majority of two-thirds of Council to overturn a decision of a Community
Council.
Funding Sources, Financial Implications and Impact Statement:
None.
Recommendation:
It is recommended that this report be received for information.
Council Reference/Background/History:
City Council at its meeting held on October 28, 29 and 30, 1998 considered the report of the
Special Committee respecting the Roles and Responsibilities of Community Councils in the
Context of the Council-Committee Structure (Clause No.1 of Report No.12 of The Special
Committee to Review the Final Report of the Toronto Transition Team). In so doing, City
Council adopted a number of recommendations intended to streamline decision-making at
Council by delegating final decision-making authority to Community Councils and/or City
officials. One of those recommendations is for Council to pursue legislative amendments to
enable Community Councils to make final decisions on local matters. The City Solicitor was
requested to report to the Special Committee on the best method of achieving the delegation
of decision-making authority from Council to Community Councils, on local matters or to
staff to make decisions on the approval of the relevant Community Councils. The City
Solicitor was also requested to report on the feasibility and the legality of the delegation of
specified responsibilities within the existing legislative structure.
Comments and/or Discussion and/or Justification:
The purpose of this report is to provide advice respecting Council's legal authority to delegate
decision-making power to Community Councils or to City officials, and to provide the Special
Committee with the general principles that will determine which matters can be delegated
under current legislation. This report will also address the specific requests for the City
Solicitor to report on matters where final decision-making authority can be delegated to
Community Councils or staff, as previously set out.
General Principles of Delegation of Decision-making Authority:
The general legal principle of delegatus non potest delagare provides that a delegated
authority may not be further delegated. This principle applies to municipal law in that a
municipal council, as the recipient of delegated authority from the province, must exercise
that authority itself. There are two exceptions to this general principle:
(i)where the province has granted express statutory authority to sub-delegate municipal
powers; and
(ii)where the need to sub-delegate arises by necessary implication from the statutory
language.
The Municipal Act, the Planning Act and several other statutes governing municipalities
provide express authority for city councils to delegate certain acts to specified City officials.
For example, section 41(13) of the Planning Act specifically authorizes Council to pass a
by-law and delegate its jurisdiction over site plan control matters to a committee of Council or
to a official named in the by-law. Under the Municipal Act, Council may delegate its
decision-making power respecting the regulation of trees on private property to a named
official. In addition to these general statutory authorities, each of the former municipalities
have Private members bills (special legislation) authorizing various policy initiatives, many of
which contain authority to delegate decision-making to staff or in some cases other bodies. An
example of such delegated authority is found in the City of Toronto Act, 1975 which
authorized the Council of the former City of Toronto to delegate its jurisdiction to license
rooming houses to the Rooming House Licensing Commission.
In addition to explicit legislative authority for Council to delegate decision-making, section
102.1 of the Municipal Act contains a general power for the council of a municipality to
delegate any powers, duties or functions that are administrative in nature to either a committee
of council or to staff. This authority must be exercised by by-law and the by-law can impose
conditions on the exercise or performance of the delegated powers, duties or functions.
Administrative acts are generally defined as those acts which are necessary to be done to carry
out legislative policies and purposes and clearly do not include the formulation of policy
(legislative acts) or acts that otherwise involve the exercise of discretion (quasi-judicial acts).
In essence, administrative acts generally require the application of criteria to a fact situation to
reach a result that does not require interpretation or discretionary judgements to be made.
Examples of matters that have been delegated under this general authority in the former
municipalities include use of the street allowance for matters such as boulevard cafes,
boulevard parking, encroachments into the street allowance, authority to process BIA levies,
designation of fire routes, authority to approve compensation under the Expropriations Act,
authority to execute standard agreements on behalf of the municipality, etc. (subject to
Council approved criteria being met).
Authority for Council to delegate its authority to do certain acts may also be implied in certain
circumstances. Implied sub-delegation is a more difficult question or statutory interpretation.
In his book Principles of Administrative Law, DeVillar considers when authority to
subdelegate can be implied and states that:
"The court inquires whether the policy-scheme of the statute is such as could not easily be
realized unless the policy which requires that a discretion be exercised by the authority named
thereto is displaced; it weighs the presumed desire of the legislature for the judgment of the
authority it has named against the presumed desire of the legislature that the process of
government shall go on in its accustomed and most effective manner and where there is a
conflict between the two policies, it determines which, under all the circumstances, is the
more important."
Case law has established that delegation may be implied where a person delegated a statutory
power is clearly unable to exercise it personally. For example, a Minister of the Crown will
not be able to exercise all of the statutory powers delegated to him or her. In such cases, courts
have found that the Minister is able to delegate certain administrative powers out of
"administrative necessity". In the municipal context, the authority of the City Solicitor to take
steps to defend legal proceedings commenced against the municipality has been implied.
Delegation - Specific Matters Requested for Report:
Council requested that the City Solicitor consult with senior staff and report on the feasibility
and the legal limitations on City Council's ability to delegate final decision-making in respect
of the several matters specifically referred to the City Solicitor for report. The chart attached
as ScheduleA addresses the feasibility and legality of delegating each of these matters. In
addition, it provides comments respecting the four general areas that the Council
recommended be delegated to staff and subject to a bump-up for a hearing at Community
Council. A "bump-up" procedure can be described as one that allows a committee to consider
and make recommendations to Council on specific applications that either do not meet the
criteria approved by Council for it to be processed administratively or, special situations
where a ward councillor requests an application be considered by committee and council. As
long as Council retains final decision making authority in matters that cannot be processed
administratively, there is no legal impediment to this process.
Over the past year, City Council has exercised its general authority to delegate administrative
matters to staff on several occasions, and has exercised its specific authority to delegate
decision-making to staff as well. City Council has placed responsibility for the efficient
administration of the corporation with the Chief Administrative Officer; Council has
delegated certain administrative functions as well as the powers and duties of Council under
the Freedom of Information and Protection of Privacy Act to the City Clerk; and Council has
delegated certain administrative and statutory duties to several other municipal officials. The
delegations that existed prior to amalgamation have largely been carried forward as an interim
measure, by the by-laws appointing the Chief Administrative Officer, the Commissioners and
statutory and other officials. In addition, Council has already delegated functions including the
enforcement of provisions of lease(s), licence and similar agreements to the City Solicitor; an
interim purchasing by-law is in place; responsibility to accept conveyances of land for public
highway purposes; authority for various City officials to sign standard form agreements
including various health funding agreements and standard letter agreements respecting grants;
and most recently, Council has exercised its statutory ability to delegate responsibility for
seizing dogs, issuing muzzling orders and holding hearings respecting dogs that have bitten.
Several initiatives are under way to recommend new City-wide regulatory by-laws that will
harmonize the practices that were in place in the former municipalities. Reports are at various
stages of preparation, and will be going to the appropriate Standing Committees and to
Community Councils for consideration. They will contain recommendations and options for
delegating decision-making authority with respect to the matters specifically referred to in
them and will set out the principles, details and policy options necessary for Council to
consider to make a proper delegation of authority. Generally, until decisions are made on the
substantive policy issues, it is premature to consider delegating final approval of these matters
to either staff or Community Councils.
To provide Council with some sense of the matters that can be delegated to staff under current
legislation, Schedule B sets out these functions and comments respecting each of them.
Authority to Require a Super-Majority of Two-Thirds of
Council to Overturn a Decision of the Community Council:
The City Solicitor has been requested to report on methods whereby, in order to eliminate the
waste and duplication of the present system of dealing with matters at Community Councils
and again at Council, a super-majority of two-thirds of Council be required to overturn a
decision of a community council. There is no legislative authority to require anything more
than a simple majority decision of Council to overturn a decision of a community council or a
decision of any other council committee. To impose this requirement would be illegal and
would improperly fetter the discretion of Council. Legislative change would be required to
implement this recommendation.
Section 28(c) of the Interpretation Act provides that in every Act, unless the contrary intention
appears, where an act or thing is required to be done by more than two persons, a majority of
them may do it. This provision is set out in the converse in the Municipal Act, which provides
in Section60 that, "except where otherwise expressly provided by this Act, any question on
which there is an equality of votes shall be deemed to be negatived." It follows then that
unless otherwise authorized, a simple majority of those councillors present and voting is all
that is required to determine a question. Rogers, in reaching the conclusion that a simple
majority governs in The Law of Canadian Municipal Corporations, states: "As in the case of
quorums, the common law rules respecting majorities established with reference to corporate
bodies have, as a rule, been applied to municipal Councils and other local authorities... At
common law, provided there is a quorum present, a majority of the quorum may bind the
corporation."
Finally, Section 105 of the Municipal Act authorizes Council to delegate the conduct of
statutory hearings to a committee of Council however, it does not authorize Council to pass on
any authority to make a final decision in respect of the subject of the hearing or to pass
by-laws. In the case of statutory hearings held at community councils, to require a super
majority of two-thirds of Council to overturn a decision of the Community Council would
contravene the provisions of subsection105(3) of the Municipal Act. Subsection 105(3)
requires Council to take any necessary action, including passing by-laws after a hearing has
been held under a by-law delegating the hearing function to committee, and a requirement that
Council pass a by-law unless two-thirds object is contrary to this provision. This proposal
would in effect result in final decisions being made by Community Councils in areas where
Council cannot legally delegate final decision-making.
Conclusions:
Council may delegate final decision-making authority to Community Councils or to staff, only
where legislation authorizes this delegation. Where policy or discretionary decisions must be
made, and where statutory hearings are required, Council cannot delegate its authority without
an explicit statutory provision to do so. However, Council's general ability to delegate
administrative acts can be used to reduce the matters on Council's agenda. Council can, as a
policy matter, adopt criteria or processes to be applied by staff to process those regulatory
matters which are administrative. Most such delegated authority in place before amalgamation
has been retained, and staff are working to prepare new City-wide policies and procedures for
Council's consideration that will eventually replace existing limited authorities. The chart
attached contains comments on those specific matters which were referred by Council for
report.
Respecting the proposal to require a super majority of two-thirds of Council to overturn a
decision of a Community Council, such a requirement would illegally fetter Council's
decision. Consequently, legislative change is required to implement it.
Contact Name:
Mary Ellen Bench
Legal Services Division
392-7245
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Schedule "A"
Legal Ability to Delegate Items Specifically
Referred to for Report
