posted March 09, 2008

City Rink helmet policy working notes

What is happening at City of Toronto rinks

City employees made a policy which aims to compel people who use City rinks to wear helmets. Chris Gallop from Councilor Giambrone’s office confirmed that this policy has never been adopted by City Council as a by-law. The policy applies to children under 6 and all shinny hockey players. CELOS’ question is: what authority do city staff have to make this and other policies and rules about how citizens enjoy their own public facilities.

This summary looks at how laws are made in Canada and the principles behind the process for making laws in a democracy. Then, it looks at the current status of the provincial bike helmet law and the City’s rink helmet policy and compares the process by which the first was made law and the second policy. The City of Toronto Act, 2006 is the law made by provincial legislators to determine how the municipality is to run and who runs it. It has specific sections which set out the responsibilities of elected City officials and those of hired city staff. Other parts of the law tell us the purposes for which the City exists and the intention of the law-makers about how the City of Toronto should be run.

Making laws in a democracy

Making a law or rule that people have to do, or must not do something (often with the power to enforce that rule) is called a “legislative” or law-making function. In a democratic society, laws are made by democratically elected officials. The principle behind this practice is that if a citizen doesn’t like the decisions being made by an elected official, s/he can campaign and vote for a different candidate who better represents his or her views in the next election.

In Canada, there are three levels of elected officials who have the authority to make laws which will affect citizens: at the federal level, our Members of Parliament; in Ontario, our Members of Provincial Parliament; and at the municipal level, our Mayor and City Councilors. At all levels of government specific procedures must be followed in order for a law to be valid and enforceable. Law-making processes include an explanation of the objectives of the proposed law, a consideration, analysis and testing of the background information and evidence in support of and against the proposed new law, hearings from people who may be affected by a proposed law, and debate about the merits of the proposed law. Passing laws at the federal and provincial levels is generally very time-consuming.

The principles of a democratic society are founded on the understanding that a person and the public at large must be informed of a proposed law before it takes effect. As well, the public has an opportunity to comment on the proposed law, provide additional information and review the information and analysis offered both for and against it. In turn, the law-makers consider this new information and the wishes of the people whom they represent. They then make a permanent record of what they considered and the process they followed in coming to their decision as to whether or not to pass the proposed law.

Law-making in Action - Provincial bike helmet law and City helmet policy

A pertinent example of how a law is passed is the provincial bicycle helmet law, introduced as a private member’s bill in July 1990. The scope of the bill was to make bicycle helmets mandatory for all cyclists in Ontario. After it died on the order paper, it was reintroduced in the spring of 1991. It was an extremely controversial bill finally passed in July 1993, following lengthy debates, committee meetings, and public hearings held over a seven month period. The law was to come into effect in October 1995. Just before that time the Minister of Transportation modified the law using his power to make regulations so that the law would apply only to cyclists under 18. He publicly stated that while all cyclists would benefit from wearing a helmet, adults were able to make up their own minds. In 2004-05, another private members’ bill was unsuccessfully introduced once again to compel adults to wear helmets.

The City of Toronto’s rink helmet policy was first approved by the directors and general manager of Parks and Recreation on August 16 2002, but it was not to be implemented until September 1 2003. The policy was two sentences:

On the same day (Aug.16 2002), the directors and general manager also passed a separate policy for permit groups:

The specified signage for this policy restricted mandatory helmets to supervised shinny hockey, and that word was put in bold on the policy statement. Unsupervised shinny hockey (also bolded) was left as "highly recommended."

On April 10 2003, a memo was sent out to full-time recreation staff and supervisors, reminding them that part-time instructional and rink guard staff would have to wear helmets as well. This directive was later removed for skating instructors but not for rink guards. However, in 2008 some rink guards were able to refuse helmets on the basis of their health and safety, saying that they couldn't keep their heads warm because the helmets prevented them from wearing warm hats, and so they were getting sick.

This memo was signed "Skating Committee" but without any names attached.

In 2006, new signs went up without the "supervised" shinny hockey distinction, and at about half the rinks, staff began to spend a large amount of their time enforcing the helmet rules.

Councillor Adam Giambrone's staff did some research to find out how this policy came about. This is what they found out:

1. The policy was not discussed by Council and not passed as a by-law.

2. Parks and Recreation staff may have asked the City's risk management staff to comment on the policy. Risk management may have declined comment, or not been involved at all.

3. When asked about this in December 2007, risk management staff couldn't remember their involvement, if any, but their "Senior Risk Management Analyst" Erick Gawlik wrote: "...it certainly is good risk management to have a policy on helmet use because it has been proven to prevent injury and death. The City of Toronto arenas are private property and if our policy is that helmets are mandatory for certain types of usage then customers/the public should abide by the policy. Clearly it is a safety concern and if we allow citizens on the ice without helmets and they subsequently become injured then the corporation will bear the brunt of future lawsuits." [Dec.19, 2007]

4. A "Program Standards and Development Officer," Sandra Ceolin-Celestini, wrote back that Parks and Recreation had indeed got comments from Risk management when the policy was developed "by recreation staff" in 2002. She quotes their comment from that time:

"Helmet use is encouraged at all times, in programs where there are higher risks of injury the use of CSA approved hockey helmets will be required. If signs are posted indicating that helmets are mandatory and staff are present, staff need to enforce the policy or this could attract liability."

This comment draws attention to the paradoxical fact that it is the existence of a mandatory policy, not the lack of one, that can "attract liability," if not properly enforced.

The comments also make it clear how casually the staff at City Hall assumed that such a policy would be enforceable. Their assurance was just as strong in the area of the staff's powers to act as they did in passing and enforcing this policy.

City staff have defended their authority to make and enforce the helmet policy on the basis that it is an “operational policy”, a policy that deals with how things are done in order to provide services to people who live in Toronto.

However, people who choose not to we ar helmets are being turned away from rinks in the City. These people who have come to enjoy the public skating rinks that belong collectively to them and their fellow citizens are under the impression that they must do what the City staff tell them, that they are not entitled to make their own decisions about whether or not they wish to wear a helmet.

The chart below compares the process for making the helmet law at the provincial level and that followed to make the City rink helmet policy.

Bicycle Helmet Law Chart

What the law says about who make the laws at City Hall

The City of Toronto Act, 2006 is the law that tells us how the "City" and city government is to run. The law or "Act" clearly spells out that "The City's powers are exercised by Council" and that these powers must be exercised by by-law, "unless the City is specifically authorized to do otherwise". CELOS researchers, none of whom are lawyers, have found no provision in the Act which authorizes policy to be made in another way. Given this present understanding, it appears that the only legitimate way to affect citizens' rights, through the existing helmet or proposed stroller policy at rinks, must be decided by Council and enacted as a by-law.

It is clear from the wording of the law that the provincial law-makers intended Council to have very broad powers to make by-laws to "regulate or prohibit", or "require persons to do things". Council, however, did not pass any by-law requiring people to wear helmets at city rinks.

The Act is also very clear about who does what at City Hall. City Council has many responsibilities, including the following :

- to represent the public and consider the well-being and interests of the City

- to develop and evaluate policies and programs of the City

- to determine the services the City provides

- to ensure that administrative policies, practices and procedures and controllership policies, practices and procedures are in place to implement Council's decisions

- to ensure accountability and transparency of City operations, including the activities of senior management

- to maintain financial integrity.

The Mayor has additional leadership responsibilities and in particular, specific supervisory duties to provide information and make recommendations to Council:

- to ensure that administrative policies, practices and procedures and controllership policies, practices and procedures are in place to implement Council's decisions

- to ensure accountability and transparency of City operations, including activities of senior management.

Additionally, as the City's chief executive officer, the mayor must

- uphold and promote the city's purposes and

-promote public involvement in the City's activities.

The law is clear that city officers and employees are hired to

- implement Council's decisions and establish administrative policies and procedures to carry out those decisions

- undertake research and provide advice to Council on the City's policies and programs

- carry out other duties required under the Act.

Should they wish to, the Act permits Council to delegate some of its responsibilities. However, where it comes to Council's law-making or "legislative" powers, the law is very clear that Council cannot delegate legislative power to an employee, officer or agent unless, in Council’s opinion, the power is minor in nature. “Minor” is determined by such factors as the number of people who are affected by the decision, the size of the geographic area that the rule or law covers and, and the length of time that the rule or law will be in effect.

In the case of the helmet policy, it affects all rink users all across the entire City and has no specified expiry date.

Council is obliged to adopt policies which would affect the way in which the helmet policy was formulated, including the following:

The manner in which the City will try to ensure that it is accountable to the public for its actions, and the manner in which the City will try to ensure that its actions are transparent to the public.

The manner in which the City will try to ensure that the rights, including property and civil rights, of persons affected by its decisions are dealt with fairly.

The delegation of its powers and duties.

General statements about how the City is to be run and who runs it

Clearly, the staff’s “enactment” of the helmet policy is without their specific authority as discussed above. Nor is staff’s exercise of power in this area consistent with the purposes and intent behind why the City of Toronto Act was made law in the first place. In the first part of the Act, the “Interpretation” section sets out the “governing principles” to be considered whenever a person or court wants to find out the context in which a law was made. These principles state that:

- the City exists for the purpose of providing good government and

- “the city council is a democratically elected government which is responsible and accountable”.

As we know, staff are accountable to their superiors, and unlike our elected officials, there is no way for the public to vote them in or out.

The law goes on to set out the purposes of the City of Toronto Act, as follows:

- to create a broad framework of powers to allow the City to do the following things to provide good government:

- determine what is in the public interest

- respond to the needs of the City

- determine the appropriate structure for governing

- ensure the City is accountable to the public, transparent decision-making

- determine the appropriate mechanisms for delivering municipal services

Links to the controversial history of the bicycle helmet law in Ontario

http://en.wikipedia.org/wiki/Bicycle_helmet

http://www.magma.ca/~ocbc/campaign.html