Public Commons

• City parks staff made rules about how and when park patrons can take photographs in Toronto parks. In 2009, CELOS asked what gives non-elected city staff the authority to make these rules. Here is: a) a summary and b) the correspondence.

Part of Photography Policy

In Toronto, there are signs up in all Parks and recreation facilities, telling people they cannot take photographs - even of their own family members - without first getting permission from the staff.

Below is a record of correspondence between Belinda Cole of CELOS, and City of Toronto staff, about the city-staff made policy.

Summary

City staff and legal staff were most helpful and responded promptly and courteously to all of CELOS's questions.

In summary, the correspondence below established that:

1. There is no by-law to support this Photography Policy. This means that these rules were not discussed and passed by elected city councillors.

2. Rather, non-elected city parks staff have made the rules.

3. City legal staff state that:

"under the Trespass to Property Act the City of Toronto can prohibit activities, such as photography, from taking place on its property. The City is entitled to rely on this legislation to prohibit an activity even though no by-law exists." and, that: "as the landlord, the City of Toronto can enact certain rules and regulations for the welfare of those on its property".

4.CELOS questioned whether or not "the City of Toronto" means our elected officials, rather than non-elected city staff.

5. City legal staff stated that:

"City staff also try to ensure that one member of the public’s use and enjoyment of its facilities is not impeded by the actions of another. The Trespass to Property Act and judicial decisions analyzing that statute’s restriction on some activities, recognizes the right of those charged with management of facilities to do so."

"The Trespass to Property Act allows occupiers of property, which includes the people in physical possession of the premises, to control the premises and to limit the performance of certain activities on that property. Pursuant to that authority, City employees who are responsible for the administration of various City facilities, such as community centres, ice rinks and parks, have made decisions to control the taking of photographs at some of those facilities. The basis for this decision is rooted in the desire to protect the safety, security and privacy of members of the public who use those facilities."

Record of Correspondence

Belinda Cole 1/22/2009 6:13 AM to City of Toronto Director of Recreation Malcolm Bromley

I'm seeking more information regarding your posted rules forbidding photographs at outdoor rinks. I would like to know the rationale behind this rule and also, the law which backs that rule. As you may know, city employees, who are not elected, have no legal authority to make rules or insist that any rules be followed by citizens unless they have first been made law by our elected officials, the City Councellors.

Is there a bylaw, passed by Council, forbidding the use of cameras at the city's outdoor rinks? If so, could you let me know the date of that by-law's passage, so that I can read the staff report associated with it?

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On Thu 22/01/09 2:17 PM , "John Gosgnach" jgosgna@toronto.ca sent:

Dear Ms. Cole, Photography is in fact permitted but it is subject to City staff approval. Here is the policy statement: Patrons wishing to use cameras, video cameras or other photographic devices, including camera phones and PDA's (Personal Digital Assistants), in any program or facility must receive permission from staff before filming. Pictures may only be taken of children/patrons in their personal care. Every attempt should be made to limit or eliminate other patrons from being filmed in the background. When possible, staff should make a verbal request for permission to photograph other patrons who may be in the area where pictures are being taken. Documentation of the verbal permission must be noted in the facility log book including date, program and name of patron taking the pictures. The policy was established for the privacy and safety of our patrons. Please give me a call at (416) 392-8386 if you wish to discuss the policy.

John Gosgnach

Manager, Communications, City of Toronto

Social Development, Finance & Administration Division

Metro Hall, 9th Floor, 55 John Street, Toronto, ON M5V 3C6

Phone 416-392-8386

Cell 647-404-4531

Fax 416-392-5859

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From: Belinda Cole To: John Gosgnach Sent: 22/01/2009 6:57:05 PM

Thank you for your prompt reply.

I'll call you tomorrow afternoon between 2:00 -2:30 to discuss this with you. In the meantime, would you please look up the actual by-law which makes this policy legally enforceable? If it wasn't passed by council, it is my understanding that, under law, staff do not have the authority to enforce it.

I look forward to talking to you.

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Thu 22/01/09 7:19 PM , John Gosgnach sent:

Dear Ms. Cole,

I have determined that a by-law does not exist regarding this matter. I am told by legal council that, as the landlord, the City of Toronto can enact certain rules and regulations for the welfare of those on its property.

I look forward to your telephone call.

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From: Belinda Cole To: John Gosgnach Sent: Thu 22/01/09 9:54 PM

I am most grateful for your follow up on this matter.

If legal counsel advises this, I would still need to know the basis in law of his/her opinion. I am merely unaware of what that actual law is (the law and the precise statement in the law) that states that photographs cannot be taken unless approved by staff. It is my understanding to date that, if there is, in fact, no such law, then, presumably, this "rule" is merely a policy and not legally enforceable.

Can you let me know what precise legal basis there is for this?

Many thanks for your help getting to the bottom of this. I look forward to filling in any gaps in my knowledge of this law in order to discuss this with you.

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From: John Gosgnach to Belinda Cole, January 28, 2009

Dear Ms. Cole,

My apologies for the delay in providing you with an answer to your question.

I have been advised that under the Trespass to Property Act the City of Toronto can prohibit activities, such as photography, from taking place on its property. The City is entitled to rely on this legislation to prohibit an activity even though no by-law exists.

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Belinda Cole 5/5/2009 11:55 AM

Hi Mr. Gosgnach,

I have reviewed the Trespass to Property Act that you sent me in late January. Thank you again for your very prompt help in getting this material to me.

After looking at the Act, I have a few observations and questions in response to your email:

1. What is the exact wording of the prohibition against photography on property that belongs to the City? Is it a written policy?

2. You state that you have been advised that "the City" is entitled to rely on this legislation to prohibit an activity even though no by-law exists. Who exactly is "the City" in this case?

I am not a lawyer. As I understand it, however, people are entitled to live in such a way that they see fit provided they do not break the law. People need to know clearly what is against the law, and that such laws can be made only be people legally entitled to do so.

Here is what we find puzzling: Under the City of Toronto Act, only elected City Councellors can make policy for the city. Staff's job is not to make, but rather to implement policy. The legitimate way of making policy, according to Act and the City's website, is to pass a by-law.

Accountable, transparent government is a key principle in the City of Toronto Act. If officials who are not elected and therefore not accountable to the people who enjoy their city parks and facilities can make any rules they want about how public space is and is not used, without public input or decision-making by accountable, elected officials, there seems to be a fundamental problem, or misunderstanding of the roles and responsibilities at the city.

Perhaps Council has delegated this policy making authority re: photography to staff. Or perhaps I have misunderstood the law, or there is more to this than I realize. If so, please let me know.

Will you get back to me on these questions, and then we can talk about this issue? If you need any clarification or if it would be helpful to talk about this, please let me know.

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Reply To:Todd Orvitz Tel: 416. 397.5475 Fax: 416.397..5624 E-Mail: torvitz@toronto.ca

June 17, 2009

Dear Ms. Cole:

Re:Taking Photographs on City of Toronto Property

I am writing in response to your recent email to John Gosgnach, Manager, Social Development and Finance, regarding photography on City of Toronto property.

As Mr. Gosgnach noted in his previous correspondence to you, dated January 28, 2009, the Trespass to Property Act allows occupiers of property, which includes the people in physical possession of the premises, to control the premises and to limit the performance of certain activities on that property. Pursuant to that authority, City employees who are responsible for the administration of various City facilities, such as community centres, ice rinks and parks, have made decisions to control the taking of photographs at some of those facilities. The basis for this decision is rooted in the desire to protect the safety, security and privacy of members of the public who use those facilities.

It is important to note that the controls in place at some City facilities do not prohibit the taking of all photographs at those facilities. As the City’s primary interest is to ensure the safety and protection of members of the public using its facilities, the control of photography does allow for the taking of photographs that do not involve identifiable people, as well as the taking of photographs of people who have given their consent – including taking photographs of one’s own family.

You noted in your letter that “people are entitled to live in such a way that they see fit provided they do not break the law”. While this is generally true, with respect, City staff also try to ensure that one member of the public’s use and enjoyment of its facilities is not impeded by the actions of another. The Trespass to Property Act and judicial decisions analyzing that statute’s restriction on some activities, recognizes the right of those charged with management of facilities to do so.

I hope that this adequately explains the reasons for the restrictions on the taking of photographs at some City facilities.

If you have any further questions with regard to this matter, I invite you to contact me at your convenience.

Thank you, again, Ms, Cole, for your letter.

Yours truly,

Todd Orvitz City of Toronto, Legal Services