Municipal bylaw won't supercede Highway Traffic Act ? MILLROY ...

By Doug Millroy

Posted 1 day ago

The city legal department says it is still in the research stage as to whether side-by-sides could be included in a bylaw council asked it to explore that would allow off-road vehicles access to some city streets.

But I get the sneaking suspicion after a couple of discussions with Matthew Caputo, who was called to the bar last week and as of Monday became a full-time member of the legal staff, that they won?t be.

I returned to the issue of side-by-sides and the city bylaw after hearing that the city?s legal staff believed they had found a loophole in the Highway Traffic Act that would allow side-by-sides to be included.

Upon contacting Caputo, I was told the loophole was found in the Off-Road Vehicles Act, which he said includes side-by-sides in its definition of an off-road vehicle.

And since the Highway Traffic Act allows a municipality to pass a bylaw which would allow off-road vehicles the use of roadways in its jurisdiction, he reasoned that by passing such a bylaw a municipality would be allowed to provision out of HTA rules restricting any roadway use by off-road vehicles.

As you have probably surmised from what I have written on this subject before, I certainly don?t subscribe to this theory.

I can?t see any municipal bylaw governing anything to do with traffic being allowed to supersede the Highway Traffic Act, which covers every roadway in the province, including those in cities, towns and villages.

And Sec. 1 of the regulations specifically says, ?An all-terrain vehicle (ATV) means an off-road vehicle (ORV) that, (a) has four wheels, the tires of all of which are in contact with the ground, (b) has steering handlebars, (c) has a seat that is designed to be straddled by the driver, and (d) is designed to carry a driver only and no passengers.?

There is no mention of side-by-sides, a vehicle that wasn?t even in existence as a sporting machine when the regulations were upgraded in 2003 to allow ATVs more access to the shoulder and paved portions of some Ontario highways.

My reading of the act is supported by Bob Nichols, senior media relations officer with the Ministry of Transportation, and Sgt. Ray Magnan, in traffic operations with the Sault Police Service.

"Municipalities do not have the authority to pass bylaws to allow other types of off-road vehicles road access, beyond single-rider ATVs," I reported Nichols as telling me in a column a couple of weeks back.

"Under subsection 191.8 (2) of the Highway Traffic Act, it is only the Lieutenant Governor in Council who may make regulations to permit and regulate the operation of specific classes of off-road vehicle while on a highway,? he said. ?In contrast, subsection 191.8 (3) sets out the limits to which municipalities may permit and prescribe the operation of permitted off-road vehicles on roads under their authority.

"It is important to remember that the provisions of the Highway Traffic Act apply to all public roads in Ontario. Under section 195 of the HTA, any municipal bylaw found to be inconsistent with the HTA, or any other federal or provincial statute or its regulations, shall be deemed to have no effect."

Magnan agreed that nothing can supersede the Highway Traffic Act and he said he had learned there were no immediate plans by the MTO to allow side-by-sides use of the road. The pilot project was only for those off-road vehicles that were straddled.?

However, in a fairly lengthy discussion on Wednesday, Caputo initially wasn?t swayed by my argument or theirs, which were, of course, second-hand to him.

When I told him both the MTO and city police said the HTA can?t be superseded no matter what a municipality may pass in way of a bylaw, he said:.

?Absolutely correct. A municipality cannot pass a bylaw superseding highway traffic act UNLESS the highway traffic act says it is OK. And in this circumstance the HTA says it is OK.?

Except it doesn?t.

And Caputo now, after contacting Magnan himself, seems to agree.

He called me Thursday afternoon to say the conversation he had with Magnan revealed that bylaws that could be passed involve ATVs (that have handlebars and are straddled by the driver) and not side-by-sides.

?The wording we went through yesterday was all true in regard to the HTA,? he said. ?It states that a bylaw can be passed, but that is further restricted and I didn?t realize that.?

Prince Township passed a bylaw last year that it thought included side-by-sides, but a read of it has both myself and Magnan, who had originally told me side-by-sides were not included in the Prince bylaw, wondering.

Under definitions, the Prince bylaw reads, ?Off-road vehicle (ORV) means a vehicle propelled or driven otherwise than by muscular power or wind and designed to travel, a) on not more than three wheels or b) on more than three wheels and being of a prescribed class of vehicle.?

That is about as vague as a bylaw could be, neither specifically including or excluding any type of off-road vehicle, let alone side-by-sides.

However, this may have stemmed from the fact that for reference council appears to have received information from the regulations in the Highway Traffic Act governing off-road vehicles starting at Sec. 6.

This meant councillors didn?t see Sec. 1 which, as shown above, covers ATVs that have handlebars and are straddled.

I questioned Reeve Ken Lamming about Magnan?s comment that side-by-sides were not included in the bylaw.

?Side-by-sides are included in our bylaw,? Lamming said. ?Ian Chambers is the councillor who brought it forward.?

However, he said after reading my column of June 9 he assumed ?that the government law overrides ours and I hope this council pushes forward to get the law changed.?

Caputo said Thursday he still had some checking to do and if he finds the city can?t move forward in this way, then it obviously won?t.

?Ultimately we are going to consult with different organizations and determine which direction we are going to travel,? he said.

He said council wouldn?t be presented with an unenforceable bylaw.

That would be wise, especially for himself.

Because it would put him in the situation of having to prosecute those who followed the rules laid down in a city bylaw of his making, who used their ATVs on the road but were charged by police for running afoul of the Highway Traffic Act.

I still say lobbying the provincial government for changes to the regulations, rather than flouting them in a bylaw that will be considered repealed the moment it is passed, is the way to go.

Doug Millroy, editor emeritus of The Sault Star, can be reached at millroy@shaw.ca

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