BYLAW - Excavation and Installation on Highways - 20150526 - 573315THE CORPORATION OF THE TOWN OF AURORA
By-law Number 5733-15
BEING A BY-LAW to regulate the
manner in which persons may enter
onto boulevards, rights -of -way, and
highways within the Town of Aurora for
the purpose of constructing access
driveways, service connections, mail
receptacles, or other works and
equipment
WHEREAS subsection 8(1) of the Municipal Act, 2001, S.O. 2001, c. 25, as
amended (the "Act") states that the powers of a municipality under this or any other
statute shall be interpreted broadly so as to confer broad authority on the municipality
to enable the municipality to govern its affairs as it considers appropriate and to
enhance the municipality's ability to respond to municipal issues;
AND WHEREAS subsection 8(2) of the Act states that in the event of ambiguity in
whether or not a municipality has the authority under this or any other statute to pass
a by-law or to take any other action, the ambiguity shall be resolved so as to include,
rather than exclude, powers the municipality had on the day before the Act came into
force;
AND WHEREAS subsection 8(3) of the Act states that, without limiting the generality
of subsections 8(1) and 8(2) of the Act, a by-law under sections 10 and 11 of the Act
respecting a matter may: (a) regulate or prohibit respecting the matter; (b) require
persons to do things respecting the matter; or (c) provide for a system of licences
respecting the matter;
AND WHEREAS subsection 8(4) of the Act states that, without limiting the generality
of subsections 8(1), 8(2) and 8(3) of the Act and except as otherwise provided, a by-
law under the Act may be general or specific in its application and may differentiate in
any way and on any basis a municipality considers appropriate, save and except for
a by-law regarding municipal taxation issues or municipal debt and investment;
AND WHEREAS section 9 of the Act states that a municipality has the capacity,
rights, powers and privileges of a natural person for the purpose of exercising its
authority under this or any other statute;
AND WHEREAS the application of section 11 of the Act permits The Corporation of
the Town of Aurora (the "Town") to pass by-laws regarding: (a) economic, social and
environmental well-being of the municipality; (b) health, safety and well-being of
persons; (c) protection of persons and property, including consumer protection; (d)
highways, including parking and traffic on highways; (e) culture, parks, recreation and
heritage; and (f) structures, including fences and signs;
AND WHEREAS subsection 27(1) of the Act states that, except as otherwise
provided in this Act, a municipality may pass by-laws in respect of a highway only if it
has jurisdiction over the highway;
AND WHEREAS section 14 of the Act states that a by-law is without effect to the
extent of any conflict with a federal statute or regulation, and a conflict may exist
between a municipal by-law and a federal statute or regulation if the by-law frustrates
the purpose of the federal statute or regulation;
AND WHEREAS the intent of Council in passing this by-law is not to frustrate, impair,
or paralyze the intent or operation of any federal statute or regulation regarding the
placement of community mailboxes on municipal boulevards, but instead intends to
ensure (among other things) that the placement of community mailboxes is in a safe
location within such boulevards, having due consideration to public safety,
accessibility, municipal services and utilities (both above -and below -ground), and
municipal operations;
By-law Number 5733-15 Page 2 of 8
AND WHEREAS Council believes that it is possible to comply with this by-law and
any federal statute and regulation that authorizes the placement of community
mailboxes (and related cement foundation pads and supports) on municipal
boulevards, insofar as this by-law simply requires that basic investigations and
consultations be conducted before the installation of such community mailboxes (and
related works) as with any other works being installed on municipal boulevards,
which investigations and consultations the Canada Post Corporation has already
indicated that it intends to do as part of its due diligence;
AND WHEREAS such due diligence will require the assistance and approval of the
Town prior to the placement of such community mailboxes, for which the Town is
entitled to recover its reasonable cost for such assistance and approval as a fee or
charge pursuant to subsection 391(1) of the Act;
AND WHEREAS the payment of such fee or charge is not specific to a class of
person that is solely comprised of the Crown or a Crown corporation, but rather to all
persons conducting excavation and construction work within Town -owned boulevards
and roadways, and therefore such fee or charge does not conflict with the provisions
of section 1 of O. Reg. 584/06 (Fees and Charges) to the Act;
AND WHEREAS the Town may collect such securities as necessary to ensure
compliance with this by-law, and to ensure the proper construction of any works on
Town -owned boulevards and roadways;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF
AURORA ENACTS AS FOLLOWS:
DEFINITIONS
1. In this by-law, the following terms shall have the following meanings:
(a) "Act" means the Municipal Act, 2001, S.O. 2001, c. 25, as amended;
(b) "Canada Post" means the Canada Post Corporation, established
pursuant to the CPC Act, including its employees, agents, contractors,
successors and assigns, and those acting under its direction or
authority;
(c) "Council" means the Council of The Corporation of the Town of Aurora;
(d) "CPC Act" means the Canada Post Corporation Act, R.S.C. 1985, c. C-
10, as amended;
(e) "Director" means the Director of Infrastructure & Environmental
Services of the Town, and his or her designate or successor;
(f) "highway" means any portion of any highway, as defined in the Act,
and shall include, without limiting the generality of the foregoing, all
boulevards, roadways and rights -of -way which are owned by the Town,
and includes the area between the lateral property lines thereof;
(g) "mail receptacle" means any receptacle or device to be used for the
collection, delivery or storage of mail pursuant to the CPC Act and its
regulations, and includes, without limiting the generality of the
foregoing, community mailboxes, mail storage boxes, pickup mailboxes,
and accessory works (e.g., cement foundation pads or support
structures for the mail receptacle);
(h) "person" includes a natural individual and a corporation, association, or
partnership, and includes, without limiting the generality of the
foregoing, a Crown corporation such as Canada Post; and
(i) "Town" means The Corporation of the Town of Aurora.
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REQUIREMENT FOR PERMIT
2. No person shall do or shall cause to be done or shall attempt to do on any
portion of any highway any of the following actions, without previously
obtaining a permit pursuant to this By-law from the Director and agreeing to
comply with the terms and regulations of the permit and this By-law:
(a) excavate, dig -up, break, tear -up, connect to, alter, obstruct, or destroy
any portion of the land within a highway, including the following:
(i) sidewalk;
(ii) boulevard;
(iii) road structure, including the paved surface of any highway and
fill;
(iv) curb or gutter;
(v) municipal services, including storm sewer, sanitary sewer, water
mains, ditches, foundation drain collectors or culverts;
(vi) top -soil or sub -soil; or
(vii) vegetation, including grass and trees;
whether for the purpose of constructing a means of access, for the
installation of a mail receptacle, or for any other purpose; or
(b) place, construct, or cause to be placed or constructed any object,
equipment, material, mail receptacle, or works on any portion of the
highway.
3. In addition to the requirement for a permit to comply with subsection 2(b) of
this By-law, no person shall place, construct, or cause to be placed or
constructed any object, material, mail receptacle, or works on any portion of
the highway except in accordance with applicable standards for such works
then current in the Town and such works shall be installed in a good and
workmanlike manner.
PURPOSE OF PERMIT
4. The purpose for the requirement of such permit as provided for in this By-law
is to ensure that:
(a) the placement of any object, equipment, material, mail receptacle, or
works is within an area that does not impact public safety, municipal
services (both above- and below -ground), and other utility installations;
and
(b) any excavation, alteration, digging, or destruction within a highway is
regulated by the Town and that the Town is notified of such activities in
order to: ensure public safety, accessibility, compatibility with the
neighbourhood, protection of municipal services and utilities (both
above -and below -ground), minimize interruptions to municipal
operations, and minimize liability to the Town for such activities
occurring within its highways.
PERMIT DETAILS
5. Every applicant for a permit to perform any regulated activities on Town
highways pursuant to this By-law shall:
(a) furnish such plans, surveys and other information to the Director as
may be required, with respect to the identity and contact information of
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the applicant, the nature of the activities proposed to be performed, and
timeframes for the proposed works or activities to be performed;
(b) if installing a mail receptacle, provide such written evidence to the
Director that the applicant has consulted with and notified adjoining
landowners regarding the installation of a mail receptacle;
(c) pay such fee as may be prescribed from time to time by Council;
(d) provide a reasonable estimate of the cost of performing that portion of
the proposed work which will lie entirely in the highway;
(e) provide a minimum deposit of $100.00 for each $1000.00 of the
estimated cost of the works on the highway; this deposit represents an
estimate of liquidated damages in the event of the applicant's breach of
the terms of such permit and does not represent a penalty;
(f) agree to sign the permit and to abide by the terms and conditions
therein, which shall generally include the applicable standards then
current in the Town for the construction of such works and the
restoration of the highway or municipal services or boulevard;
(g) agree that should the applicant fail to perform the work proposed in the
permit application and it becomes necessary, in the opinion of the
Director acting reasonably, to repair that portion of the highway affected
by the activities of the applicant, the Town may use the deposit to
engage contractors or may perform the work itself and invoice the
applicant according to the standard policy and credit the amount of the
deposit against such invoice; otherwise, such deposit shall be returned
to the applicant upon final inspection and approval of the restoration
works;
(h) agree to indemnify and hold harmless the Council and the Town from
any form of claim, action, suit, or lien (including any and all legal costs
required to defend the same) whatsoever caused by the work
performed on the highway by the applicant; and
(i) at the discretion of the Director, maintain certain general liability
insurance coverage for the conduct of such work or activity on the
highway by the applicant.
6. The Director may issue a permit after receipt of a completed application,
including any revised or additional information as required, and the payment of
the prescribed fees.
7. The Director may refuse to issue a permit if the person responsible for the
work is not in compliance with this By-law, has submitted an incomplete
application, or has not addressed any previous non-compliance with this By-
law by remedying the outstanding non-compliance.
8. A permit expires on the date the work is completed or as set out in the permit,
whichever comes first, or on notice of revocation by the Director.
9. A permit holder may apply for an extension to the permit, and the Director may
approve of such extension, having regard to:
(a) the work to be completed during the extension;
(b) the progress of the work up until the date of the application;
(c) the performance of the permit holder up until the date of the application;
(d) any potential conflict that may result from the extension with other
planned or ongoing work; and
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(e) the safety and convenience of the public.
10. For clarity, a permit is required under this By-law prior to the installation of
each mail receptacle on a highway.
11. A permit issued under this By-law is the property of the Town and is not
transferrable.
12. A permit holder shall immediately inform the Director of any change to:
(a) the information contained in an application for a permit;
(b) the information contained in a permit that has been issued;
(c) the characteristics of the work for which the permit has been issued; or
(d) the cancellation of the work.
13. The Director may require any one or more of revised or additional information,
additional prescribed fees, or a new application with respect to a change under
section 12 of this By-law.
14. The Director may impose conditions as a requirement for obtaining or
continuing to hold a permit issued under this By-law that he or she considers
appropriate for the protection of a highway, any property abutting a highway,
or of any person.
15. The Director may, on his or her own initiative, acting reasonably:
(a) alter or revoke the terms and conditions of a permit after it has been
issued; or
(b) impose new terms and conditions in a permit.
16. The Director may immediately suspend or revoke a permit issued under this
By-law, in writing, where the Director is satisfied that a suspension or
revocation is necessary in an emergency situation of immediate threat or
danger to a highway, any property abutting a highway, or to any person.
17. The Director may revoke a permit if:
(a) in his or her opinion the permit holder:
(i) fails to comply with the conditions of a permit or this By-law;
(ii) fails to notify the Director immediately of any of the changes
referred to in section 12 of this By-law;
(iii) fails, within thirty (30) days after the issuance of the permit, to
seriously commence the work for which the permit was obtained;
(iv) substantially discontinues the work for a period of more than
(thirty) 30 days;
(v) provides false or inaccurate information in the application for the
permit; or
(b) any person doing work on behalf of the permit holder has failed to
comply with any applicable statutes, regulations, standards, codes, by-
laws, rules or similar requirements.
18. The Director may give notice of the suspension or revocation of a permit by
contacting a permit holder in writing, by telephone or by email in accordance
with the contact information provided on the permit application.
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MAINTENANCE REQUIREMENT — MAIL RECEPTACLES
19. Canada Post is responsible for the maintenance of all mail receptacles once
constructed on a highway, including such area and land around the mail
receptacle which is regularly travelled by the public in order to access the mail
receptacle. By placing a mail receptacle on a highway, Canada Post agrees
to and shall indemnify and hold harmless the Town from any liability, claims,
actions, or suits (including any and all legal costs required to defend the same)
regarding the maintenance of such areas containing a mail receptacle.
ADMINISTRATION AND ENFORCEMENT
20. The Director is authorized to negotiate and enter into agreements with respect
to work as required to ensure compliance with this By-law and to generally
protect the Town's interests.
21. The Director is authorized to administer and enforce this By-law, including
prescribing the format and content of any forms, applications, or other
documents required under this By-law.
22. If the Director is satisfied that a contravention of this By-law has occurred, the
Town may make an order requiring the person who contravened the By-law or
who caused or permitted the contravention, or the owner or occupier of the
property on which the contravention occurred, to discontinue the contravening
activity.
23. An order under section 22 of this By-law shall set out:
(a) reasonable particulars of the contravention adequate to identify the
contravention and the location of the premises on which the
contravention occurred; and
(b) the date or dates by which there must be compliance with the order,
which may be of immediate effect should the Director determine that
the circumstances warrant.
24. If the Director is satisfied that a contravention of this By-law has occurred, the
Town may make an order requiring the person who has contravened this By-
law or who caused or permitted the contravention, or the owner or occupier of
a premises on which the contravention occurred, to do work to correct the
contravention.
25. An order under section 24 of this By-law shall set out:
(a) reasonable particulars of the contravention adequate to identify the
contravention and the location of the premises on which the
contravention occurred;
(b) the work to be completed which may include but is not limited to
requiring that prior to performing any work, all necessary permits or
other approvals be applied for and obtained;
(c) the date or dates by which the work must be completed; and
(d) notice that if the order is not complied with, then the work may be done
at the expense of the person ordered to do the work.
26. An order under section 22 or 24 of this By-law may be given by contacting a
permit holder in writing or by email in accordance with the information provided
on the permit application or, if there is no permit application, by contacting the
person the Director determines to be responsible for the work personally or by
registered mail at their last known address.
27. Where a time frame is set out in an order or other document for carrying out
any action, the Director may extend the time for compliance beyond the
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established time frame provided such extension is required and is acceptable
to the Director.
28. Where a person does not comply with a direction or a requirement, including
an order or a condition of a permit under this By-law to do a matter or thing,
the Director, with such assistance by others as may be required, may carry out
such direction, requirement or order at the person's expense.
29. The Town may recover the costs of doing a matter or thing under section 28 of
this By-law by means of any one or more of:
(a) bringing an action;
(b) adding the costs to the tax roll and collecting them in the same manner
as property taxes and such costs shall include an annual interest rate of
fifteen (15) per cent commencing on the day the Town incurs the costs
and ending on the day the costs, including the interest, are paid in full;
(c) realizing on security provided for this purpose; or
(d) charging a fee as set out in the Town's Fees and Charges By-law or as
otherwise set and approved by Council from time to time.
30. The amount of the Town's costs, including interest to the date payment is
made in full, constitutes a lien upon the land, upon the registration of a notice
of lien upon the land, as applicable.
PENALTIES
31. Every person, other than a corporation, who contravenes any provision of this
By-law is guilty of an offence and upon conviction is liable for every day or part
thereof upon which such offence occurs or continues, to a fine of not more
than $10,000 for a first offence and not more than $25,000 for a subsequent
offence.
32. Every corporation that contravenes any provision of this By-law is guilty of an
offence and upon conviction is liable for every day or part thereof upon which
such offence occurs or continues, to a fine of not more than $50,000 for a first
offence and not more than $100,000 for a subsequent offence.
33. Any person who contravenes an order made under this By-law, or an officer or
director of a corporation who knowingly concurs in such a contravention by the
corporation, is guilty of a continuing offence and upon conviction is liable to a
daily fine or penalty of a maximum of $10,000 for each day or part of a day
that the offence continues, and despite sections 31 and 32 of this By-law, the
total of all the daily fines imposed for an offence is not limited by the fine
amounts listed in those sections.
34. Every person who is convicted of an offence under this By-law may be liable,
in addition to the fines established under sections 31, 32, and 33 of this By-
law, to a special fine, which may exceed $100,000, designed to eliminate or
reduce any economic advantage or gain from contravening this By-law or
failing to comply with an order made under this By-law.
35. Where a person has been convicted of an offence, the court in which the
conviction has been entered and any court of competent jurisdiction thereafter
may, in addition to any other remedy and to any penalty imposed by this By-
law, make an order prohibiting the continuation or repetition of the offence by
the person convicted.
36. Where any person contravenes any provision of this By-law, such person shall
be responsible for all costs incurred by the Town related to the contravention.
37. Where any person has contravened the provisions of this By -Law, the Director
may issue a Notice of Violation setting forth details of the contravention and
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the steps required to rectify the contravention and a time period for such
rectification. Issuance of such a Notice shall not be a requirement under this
By-law.
APPLICATION OF BY-LAW
38. This By-law applies to all highways within the geographic boundaries of the
Town.
39. This By-law does not apply to any work carried out by the Town, its
employees, agents, or contractors.
40. This By-law does not apply to any work being carried out pursuant to the terms
of a subdivision agreement, site plan agreement, or any other development
agreement where the Town is a party to such agreement.
GENERAL PROVISIONS AND SHORT TITLE
41. If a court of competent jurisdiction declares any provision, part, or section of
this By-law to be invalid or ultra vires of the Town, the offending provision,
part, or section of this By-law shall be deemed severable, and the remainder
of this By-law shall continue to be valid and of full force and effect.
42. This By-law may be referred to as the "Excavation and Installation on
Highways By-law".
43. By-law Number4741-05.P be and is hereby repealed.
44. This By-law shall come into full force and effect on the date of final passage
hereof.
READ A FIRST AND SECOND TIME THIS 26�h DAY OF MAY, 2015.
READ A THIRD TIME AND FINALL Y PASSED THIS 26h DAY OF MAY, 2015.
IF GEOFOREY DAWE, MAYOR
STEPHE
UYCKE, TOWN CLERK