waste diversion

Toronto cracks down on waste contamination

Co-mingling of garbage and recyclables attracts fines in multi-res sector
Thursday, March 2, 2017
By Michelle Ervin

The City of Toronto is cracking down on bylaw infractions concerning the co-mingling of garbage and recycling in bins put out for municipal pick-up at multi-residential properties. Last year, bylaw enforcement officers issued 15 times as many tickets for waste contamination at residential properties that receive municipal pick-up as were issued in the three previous years combined.

Jim McKay, general manager of Solid Waste Management Services, said that some of the increase could be attributed to a new initiative aimed at tackling waste contamination at multi-residential properties across the city. He said Municipal Licensing and Standards, the division responsible for bylaw enforcement, set up a multi-residential team, which is working with leads from his division on the initiative.

Toronto Municipal Code Chapter 844 – 16A(3) makes it an offence for residential property owners to put contaminated waste out for city collection. In this context, contamination refers to the co-mingling of garbage, organics, recycling, prohibited and yard waste.

Bylaw enforcement officers issued single tickets under Chapter 844 – 16A(3) in 2013 and 2014, 10 tickets in 2015 and 184 tickets in 2016. These numbers explain a perceived increase in enforcement activity after a report recently emerged of condo corporations and condo management companies facing charges for waste contamination.

The uptick in ticketing sends a warning to condo corporations that rely on municipal pick-up about complying with waste collection bylaws. As condo lawyer Denise Lash pointed out in a blog post flagging the issue, these bylaw infractions can ultimately attract penalties of up to $50,000 for first-time offences and up to $100,000 for repeat offences. Corporations further run the risk of having the municipality suspend city collection services at their building.

Although these risks exist, data for the last four years show that all charges laid for waste contamination were pursued as less serious Part I offences, which carry a ticket with a set fine of $100. More serious Part III offences are where a ticket is bypassed in favour of an information, which summons the accused to court.

Property owners or managers should get a warning before facing charges based on the process described by Rose Burrows, district manager, parks and waste enforcement. Burrows said that bylaw enforcement officers proceed to issue charges only after representatives of a property have received education and a notice of violation.

Many investigations are triggered by complaints, according to the City of Toronto’s long-term waste management strategy, but investigations can and do occur proactively. Burrows said Municipal Licensing and Standards coordinates with Solid Waste Management Services to dispatch bylaw enforcement officers to locations based on contamination levels in the loads dropped off at transfer stations. When bylaw enforcement officers attend a site, they look for the property manager or superintendent to obtain access to the waste collection bins in order to conduct inspections.

Lash said in a phone interview that she is cautioning condo corporations against providing access to their buildings, as the Toronto Municipal Code only entitles bylaw enforcement officers to access “land” to carry out their work. In her blog post, the condo lawyer documented a case in which a condo management company was charged with a waste collection offence after a staff member of the property let bylaw enforcement officers into the garbage room.

Complicating the matter further, she argued that the condo management company is the wrong party to charge. She reported that in this case the condo management company succeeded in fighting the charge in court on the basis that it was not the property owner.

“Even so, it was really a concern that this is how the City of Toronto is going about dealing with this issue,” Lash said in the phone interview.

Burrows maintained that Municipal Licensing and Standards can charge both owners and operators of properties, and property management companies would be considered operators. Burrows also said that bylaw enforcement officers can access common areas in “multi-residential rental buildings.”

Laura McKeen, a partner at Cohen Highley LLP Lawyers with expertise in condo and municipal law, said that condo corporations may want to ask for requests to access common areas in writing and confer with their legal counsel. But she added that denying access could potentially result in further charges.

McKeen said that condo management companies can get caught in the crosshairs of bylaw enforcement because the Toronto Municipal Code defines property owners to include anyone “in charge or in control of” a property.

“As a management company, it’s always important to know where your potential liability is and making sure that you, in your management contract, have clear responsibilities set out there in terms of indemnification,” she said.

There may be an opportunity to sort out the differences in opinion surrounding whether bylaw enforcement officers have a right to access buildings and whether condo management companies are the correct party to charge with waste contamination offences. A multi-residential waste diversion advisory group is due to be established as Toronto rolls out its long-term waste management strategy, which was adopted by city council last summer.

The strategy puts a big target on multi-residential buildings, where diversion rates are typically worse and where residents will increasingly live. With roughly 50 per cent of Torontonians living in multi-residential buildings, these communities will be expected to play a major role in the city being able to reach its waste diversion goal for the next 10 years. The municipality is aiming to achieve a waste diversion rate of 70 per cent among residential users of city collection services by 2026.

The strategy lays out a number of options for improving waste diversion in multi-residential buildings.

The city will contemplate introducing bylaws that would extend waste diversion requirements to multi-residential buildings that use private collection services. Currently, 420,000 of Toronto’s 621,000 multi-residential units are serviced by city collection.

The city will also contemplate updating multi-residential development standards to require, for example, that space be allocated to common area drop-off depots.

“The planning, policies and enforcement recommendations are expected to elicit the greatest impact to increase diversion from this particular sector,” states a staff report accompanying the strategy.

The strategy acknowledges the success of ongoing promotion and education efforts, but suggests enforcement measures may need to be strategically used in under-performing areas of the system.

As the City of Toronto looks to enforcement as part of its strategy, condo corporations have the daunting task of making sure their communities comply with waste collection bylaws. In other words, corporations are responsible for policing the behaviour of residents, the ones doing the sorting of garbage, recyclables and the like.

Lash said the challenge is particularly great for older condo buildings where there is a single garbage chute, as compared with newer condo buildings where updated development standards have mandated solutions such as tri-sorters that make it easy to comply with waste collection bylaws. She noted that a condo corporation can apply to the municipality to have its garbage chute sealed, forcing residents to walk to a central waste collection facility to place their waste in the appropriate bins.

The condo lawyer also said that condo corporations can incent compliance by educating residents and penalize non-compliance by passing rules. Most compelling may be the fact that corporations have an opportunity to save money by improving their waste diversion rates.

Unrelated to bylaw enforcement, Solid Waste Management Services also put properties on notice last December that it will be visiting sites that receive municipal pick-up to inspect recycling bins for contamination, McKay said. The move, which comes in response to a “substantial increase” in non-recyclable materials arriving at the city’s recycling processing facility, will see contaminated recycling bins collected and charged as garbage bin lifts.

Michelle Ervin is the editor of CondoBusiness.

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