An Ottawa man whose fence was torn down by the city more than a decade ago says the city’s bylaw enforcement system is unfair, and says he has evidence to support his case.
Legal experts consulted by CBC News say while no system is perfect, municipalities have a responsibility to investigate all complaints equally if they want to maintain public trust.
In 2013, Mo Haider and his neighbour Nitin Datta’s shared fence in Orléans was partially torn down after Haider’s family was subjected to constant bylaw complaints, some unfounded, by someone down the street.
The city said the fence was built on the its right-of-way and had serious safety concerns with its placement because it wove around a hydro box and was installed near a high-voltage underground wire. The city charged the families for the removal, a bill that has now snowballed to more than $43,000 for both properties.
On Monday, CBC News published a story looking back at the decade-long saga.
Amid that dispute, Haider submitted dozens of his own complaints to bylaw about other properties and parking violations to see how the department handled them.
He now has a binder full of complaint logs from court submissions.
This month, Haider accompanied CBC News to see the subject of one of those complaints, a fence in Orléans that he suspects was built on the city’s right-of-way.
From fence to curb, Haider measured 2.7 metres, or about nine feet — “exactly how far our fence was,” he noted. “And it’s still standing.”
I think the system has some issues.– Mo Haider
While this fence may not have been subject to removal like Haider’s, which city and hydro officials said was “potentially endangering” the public, Haider feels it wasn’t investigated properly.
CBC has no evidence of whether it is in violation of a bylaw.
However, markers on GeoOttawa, a city tool that can be used to estimate property lines, suggest the fence in questions was built within the city’s right-of-way, while an adjacent property’s fence stands father back.
Bylaw records show the case was closed just three hours after Haider complained about the fence. The report contains no investigative notes, while complaints made against Haider’s family do.
“So unless there’s different rules for brown fences and white fences or red cars and black cars, the rule should be the same,” Haider said.
Similar fences left alone
CBC visited other addresses with fences and hedges that Haider had complained to bylaw about.
One of the fences — similar to Haider’s — stands next to a hydro box and appears to be built on the city’s right-of-way. Internal records show the case was closed the day after Haider complained.
“Left a message on the answer[ing] machine that the case is close[d] and the defendants does not need to do anything,” the 2013 log states.
“The [bylaw officer] did warn that if we receive another complaint in the future … he may have to remove it.”
When CBC News asked specifically about these cases, the city did not comment. Bylaw director Roger Chapman wrote that his department “does not publicly discuss enforcement tactics.”
“I think the system has some issues,” Haider responded.
City must investigate calls ‘equally,’ says lawyer
Lawyer Stéphane Émard-Chabot says under a complaints-based bylaw system, it’s important “that all complaints be investigated in the same way.”
“To maintain public confidence, a complaints-based system has to be processed equally,” said Émard-Chabot, a former city councillor who now practises municipal law. “If there are different reasons to enforce or not enforce, a bit of transparency I think is key.”
Émard-Chabot said officers can exercise a certain amount of discretion in how strictly they enforce a matter.
“Where I think there should be no room for discretion is in investigating a complaint,” he said.
WATCH | Reporter lays out decade-long fence feud:
The City of Ottawa tore down a fence shared by neighbours Mo Haider and Nitin Datta more than a decade ago, claiming it was installed on the city’s right-of-way. The dispute has now ballooned into multiple lawsuits and more than $43,000 in penalties against the two families.
At the same time, Émard-Chabot believes fairness is a “subjective concept.”
Municipalities have two choices when it comes to enforcing bylaws: Ottawa’s current reactive model, which relies on complaints, or a more proactive enforcement-first approach.
The latter is costly, he said. That’s why the complaints-based system is a “workable compromise.”
“The system is not perfect. No system is,” Émard-Chabot noted. “Either system will lead to results, outcomes that will feel unfair to people.”
Criminal lawyer David Anber said the city has a duty to demystify its complex enforcement system for residents — to explain, for example, how someone can be ticketed with a provincial offence for breaking a bylaw, but also be billed for any corrective actions taken by the city such as removing a fence.
“The ordinary person might not realize the different regimes that apply to them,” Anber said. “I do think the city has a responsibility to try and [better] explain to the citizenry.”
Residents do have other options, such as requesting judicial review or taking civil action, but both lawyers warn those avenues can be expensive and time-consuming.
Time for a ‘cry wolf’ bylaw?
Meanwhile, former Ottawa bylaw officer Derek Petch said he saw his fair share of “frivolous” complaints and serial complainants during his 28 years on the job.
Prior to amalgamation, Petch said he remembers officials mulling over a “cry wolf bylaw” to potentially “mitigate these kinds of neighbour disputes and a lot of unnecessary complaints.” But that never materialized.
“Bringing in those types of bylaws always becomes a question of how enforceable is it?” Petch said.
In Haider and Datta’s situation, a judge dismissed the case against the complainants and deemed their calls “not frivolous.”
The city declined an interview on this topic.
In a statement, Chapman said officers have discretion in each case and handle them “diligently,” and said requests are investigated and resolved as quickly as possible.
He added bylaw officers receive training to ensure a consistent response to service calls, and said the department “takes every opportunity to work with residents and educate them.”