[All] Ecojustice advice re: Wilmot Line

[Louisette Lanteigne]

Hi folks
I relayed what happened with the Wilmot Line with the staff at Ecojustice. They reviewed the matter and below is their response with the key point being this:
Section 27 of the Municipal Act, 2001 states that where a highway is under joint jurisdiction of two or more municipalities, a by-law in respect of that highway must be passed by all of the municipalities having jurisdiction over the highway. 
Lulu
--- On Tue, 8/9/11, Justin Duncan <jduncan at ecojustice.ca> wrote:

From: Justin Duncan <jduncan at ecojustice.ca>
Subject: RE: More OMB violations in Waterloo Region
To: "Louisette Lanteigne" <butterflybluelu at rogers.com>
Date: Tuesday, August 9, 2011, 4:02 PM

Lulu,  Our student performed a search for an hour or so on this today.  The following may be useful to you but I have to stress that this information is provided based on the basic facts you outlined in your email so it may or may not be applicable based on more specific details of the situation involved:  Both the Township of Wilmot and the City of Waterloo appear to be lower-tier municipalities within the upper-tier municipality of the Region of Waterloo. Section 29 of the Municipal Act, 2001 (S.O. 2001, c. 25) states that local municipalities on either side of a boundary line have joint jurisdiction over any highways forming the boundary line. The Municipal Act, 2001 defines ‘highway’ as a common and public highway and includes any bridge, trestle, viaduct or other structure forming part of the highway and, except as otherwise provided, includes a portion of a highway.                        This probably includes any
 roads, including the one in question. Ontario Regulation 239/02 sets out the minimum maintenance standards for municipal highways and includes provisions dealing with non-paved roads, so that assumption would appear to be correct (although Class 6 highways, which generally include any road with a posted speed limit up to 80 km/h and less than 50 cars per day, are not subject to the regulation – but presumably are still highways).  Section 27 of the Municipal Act, 2001 states that where a highway is under joint jurisdiction of two or more municipalities, a by-law in respect of that highway must be passed by all of the municipalities having jurisdiction over the highway. Perhaps an argument could be made in this case that a by-law has not been properly passed by both municipalities. No by-law dealing with road maintenance was available on the Township of Wilmot website, but presumably the paving was authorized pursuant to such a by-law. If so, section
 273 of the Municipal Act, 2001 provides that any person can apply to the Superior Court of Justice to quash a by-law in whole or in part for illegality. Perhaps the sections of the by-law (or the by-law as a whole as it applies to this road) could be challenged in this manner as the town must have passed a by-law jointly with the City of Waterloo to deal with this road.  Perhaps you could encourage Waterloo to challenge the town’s bylaw in Court.  The EA you mentioned should have occurred would have come under the Municipal Class Environmental Assessment, as amended in 2007. Under section 13(3) of the Ontario Environmental Assessment Act, no undertaking subject to the MCEA is to proceed unless it does so in accordance with the class EA or with the approval of the Minister. Failure to properly comply with this provision is an offence under section 38 of the Environmental Assessment Act. It could be possible to request the MOE undertake an
 investigation into this or you could consider bringing a private prosecution under this section of the act against the town.  Hope this is helpful.  Justin  
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