The Septic Inspection Debate Continues

Maybe Mayor Paul Tomlinson can't be bothered to educate himself, but more and more concerned citizens of Kearney are sharing their knowledge and research:

From: Bill Tonge
To: "//concernedcitizens@hotmail.com"
Sent: Saturday, April 14, 2012 3:45:40 PM
Subject: sewage system inspection

I have contacted someone from the North Bay-Mattawa Conservation Authority and he has told me that they sent a proposal to the town of Kearney to do the septic inspections and council voted not to. They can create their own septic inspector, as long as he has the credentials, which I was told he does. He does not have the authority to order any repairs or upgrades etc. without notifying the NBMCA.

It also states in the Building Code that you do not have to allow him into your home: 16(1).

Lets be sure to push this one as well : 

15.23  The chief building official, inspectors and persons authorized by a registered code agency to exercise powers and perform functions on its behalf shall carry their certificate of appointment or authorization, as the case may be, when performing their duties and shall produce them for inspection upon request. 2002, c. 9, s. 29.

I have also read about trespassing law in Ontario, and what I get from it is that because he is a by-law / building officer he is not considered a trespasser.

As I was disappointed with my findings on everything I do know that video taping laws allow me to record everything he does on my property and that will be done.

I am also a little concerned about the conflict of interest that Kearney has created by having Mr. Hess as both Chief Building Official and By-law Officer. I think he should have to put in writing in advance to each individual property owner, why he going to be on your land, so he doesn't come saying he is inspecting the sewage system and then tries to site building code violations.

Thanks, Bill! We had a look at the Trespass to Property Act and it says:

2.  (1)  Every person who is not acting under a right or authority conferred by law and who,

     (a) without the express permission of the occupier, the proof of which rests on the defendant,

          (i) enters on premises when entry is prohibited under this Act, or

          (ii) engages in an activity on premises when the activity is prohibited under this Act; or

     (b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $2,000. R.S.O. 1990, c. T.21, s. 2 (1).

Now, we're not lawyers, but at the end of the day, it looks like this:

Henry Hess, if he has reasonable cause to believe your septic system is unsafe (there's a strong odour or visible ponding detectible from the road, or he has other prior evidence) he might then access your property to inspect the unsafe system. He can't check your septic system and then declare it as being unsafe. He has to prove he has reasonable grounds to believe your system is unsafe first. That's the condition that gives him the right or authority. The by-law might say different, but provincial law beats municipal law every time. And if Henry tries the old "We got an anonymous tip" routine, get all the particulars such as the time, date, and the name of the town employee who took the complaint so they can be subpoenaed to testify if the matter goes to court. Henry will have to produce that information when he comes calling to show that he has the right and authority.

Also, when you request to see Henry's credentials (identification, certificate of appointment, inspection certification) he must produce them for your inspection. Which means you get to read through them carefully; He doesn't get to flash them at you and stuff them back in his pocket. He wants to inspect your septic system? You get to inspect his credentials.

A final thought: Bill Tonge makes an excellent point about the potential conflict of Henry being both the CBO and the By-law Enforcement Officer. We already know that Henry has to justify his tripled salary, so is highly motivated to write tickets and reissue building permits (That's a conflict right there if you ask us!), and Tomlinson has now empowered him to stroll around your property with the hope that most people won't know that Henry's probably doing so illegally. Or that he can't access your property as one official, then switch to his role as the other official. But Tomlinson plays by his own rules and figures Kearney's "trash" (as he calls the Townies) will fall into line when Hess comes pounding on their door.

Are you surprised?