Arrondissement du Sud-Ouest

Following an incident, a citizen has lost her access and borrowing privileges to Ville de Montréal’s network of libraries for one year. She disputes this penalty.

Following discussions, the Borough agrees that the sanction is too harsh in view of what happened and in light of the provisions of its Règlement relatif aux bibliothèques du Sud-Ouest. It offers to reduce the ban to three months, which seems reasonable to us. This period having already elapsed, the citizen immediately recovers her access rights.

Our office’s findings, however, point to weaknesses in the management of this file and the application of the Règlement relatif aux bibliothèques du Sud-Ouest. The Borough welcomes our comments: it carries out an in-depth analysis and enhances its incident management procedures that could lead to imposing a sanction against a user. The Borough must also provide its staff with training on managing difficult situations in 2017.

In order to present a musical or an artistic performance on the public domain, artists must first obtain a Public Entertainer Permit, in accordance with the Règlement sur les musiciens et amuseurs publics.  One of the prerequisites is to successfully audition before an evaluation committee.

A musician who had failed was complaining that his audition had been too short and that the Borough had not communicated his results and the evaluation grid, within a reasonable time.

The OdM’s investigation confirms that these grievances were founded.

The evaluation committee members acknowledge that they had indeed shortened the duration time of these auditions because, based on their experience, they deemed it too long.  The committee also confirms having exceeded the deadline to communicate the results and evaluation grid to the plaintiff.

The Borough offers to reimburse the musician his audition costs, which he accepts.

The Borough also commits to respect the provisions of the Bylaw with regard to the audition process and communication of the results.  If it deems it appropriate, the Borough could, however, proceed to amend these provisions.

A citizen was expelled from the Laurier community garden, in Arrondissement de Rosemont – La Petite-Patrie, where she had been gardening for about a decade.  However, the Garden Committee had not respected the procedure provided for in the Règles de civisme et de jardinage applicable in this Borough.  These rules provide for a gradation of sanctions and impose that written notices be given to the gardener, identifying the available recourses to contest the sanction.  In light of these non-compliances, the OdM recommends the cancellation of the Notice of expulsion as well as the reinstatement of the gardener: Recommendation refused.  The Borough offered the gardener the option of registering at another garden.  This offer was refused since the citizen found it too far from her residence.

During the investigation, we had agreed with the Borough that the plaintiff’s tools and other gardening goods, still at the community garden, would be kept so she could retrieve them.  Nonetheless, a member of the Garden Committee threw them away.  We were able to obtain a financial compensation from the Borough.  This aspect of the file was settled to the plaintiff’s satisfaction.

In 2013, a citizen contacted our office because she had been expelled from the Jardin communautaire Laurier, in Arrondissement de Rosemont–La Petite-Patrie, on the basis she would not have respected the Borough’s Règles de jardinage et de civisme. The plaintiff had been a gardener in this community garden for about ten (10) years.

The rules contained in the Règles de jardinage et de civisme not only apply to gardeners, but also to managers of community gardens. These rules clearly define the procedure to be followed when a gardener fails to meet its obligations:

• Before expelling a gardener, managers must first give the gardener a verbal notice which must then be followed by formal written notices whose content is defined in the rules. In this instance, the written notices sent to the plaintiff did not comply with it;

• The rules provide that managers must inform the gardener that he may appeal a decision of expulsion: in the present case, managers had not done so;

• Before taking action against a gardener, managers must ensure fair process and give him the opportunity to provide explanations. In the present case, the plaintiff did not get such a chance.

In light of the above, our office concluded that this expulsion had not been done in conformity with the applicable rules and, as a result, it was not valid. We, therefore, suggested that the Borough cancels the notices and reinstates the plaintiff in this community garden. The Borough did not react positively to our conclusions.

Moreover, in the course of our investigation, the Borough confirmed the citizen could recover all her plants and supports, as long as it was done within a period mutually agreed. However, before this period had elapsed, the Borough informed us that the citizen’s garden had been cleaned by garden’s committee members who had disposed of all her personal effects, contrary to the undertaking we had obtained from the Borough. We asked the Borough, therefore, to compensate the plaintiff for her losses. As of December 31, 2013, we were awaiting for an official answer from the Borough.

A citizen was complaining that there was no children playground in Parc Jarry, since summer 2006.

The old playground had been closed due to the re-development of Parc Jarry, according to a plan which had been the object of public consultations, in 2005. During the said consultations, however, the playground had been identified as a priority. The implementation of the re-development plan took a long time, partly because the site had to be decontaminated first. At the end of 2006, the City called for outside tenders to carry out this major re-development project. However, the evaluation grids of the tenders were later modified by Ville de Montréal and, as a result, the tender process had to be started over again. According to the information we received, the re-development of Parc Jarry should be completed by summer of 2008.

The Ombudsman de Montréal contacted the Service du développement culturel, de la qualité du milieu de vie et de la diversité ethnoculturelle to explore if, in the meantime, a playground could be made available to children.

The response to our request was positive and Ville de Montréal proceeded to the temporary restoration of the old playground which children had access to, in the summer of 2007.

A citizen and her spouse were expelled from Le Michelois community garden, for a period of two years, following an altercation between her husband and another gardener who would have made offensive remarks towards her. The police had been called to the scene but no formal complaint was filed against either of the people concerned. This garden is located in Arrondissement de Villeray – Saint-Michel – Parc-Extension.

The gardeners of Le Michelois must abide by the Règles de civisme et de jardinage which the borough hands over to them. These Rules stipulate that an enjoyable atmosphere is essential to the practice of any leisure activity and that a person whose repetitive comments, behavior or attitude harm the serenity of the place can be sanctioned and, as a last resort, be expelled.

The same document provides that when the rules are not respected, a verbal warning must first be given, and then a written warning, following which the person may be expelled.

The procedure to be followed, when a problem arises, was imposed and communicated to the gardeners by the borough: in our opinion, therefore, they are binding on both the gardeners and the borough. According to these rules, prior notices must have been issued before a gardener may be expelled.

In the present instance, the borough initially alleged previous notices given to the citizen/complainant. After investigation, however, it turned out that all of these notices had been cancelled by the borough: thus, the citizen’s file did not contain any valid previous notice and the altercation should have been sanctioned as a first offence.

The borough then acknowledged that the expulsions were sprung only from the acts of the citizen’s spouse, during the altercation, and that it considered the citizen to be fully liable for the actions of her spouse/co-gardener. The Règles de civisme et de jardinage do not refer to such mutual liability between co-gardeners, but the borough rejected our suggestion that only the co-gardener/spouse should be sanctioned for his own actions.

The borough also submitted that under a Zero tolerance policy, it systematically expels anyone who verbally or physically abuses another person. In the present instance, however, the other gardener involved in the altercation was not expulsed nor imposed any sanction whatsoever.

In light of the foregoing, this double expulsion, for a period of two years, appeared to us as unjust and unfair.

The Ombudsman de Montréal issued a Recommendation that the expulsion of the citizen be cancelled and that she be reinstated in her community garden and that the borough reconsiders its decision in regards to the spouse/co-gardener and reduce his expulsion to a period of one season only.

The Borough Council of Arrondissement de Villeray – Saint-Michel – Parc-Extension reexamined the case and, in spite of our Recommendation, it maintained the initial decision to expel both the gardener and her spouse for a period of two years. We were very disappointed by this decision.

However, the borough has committed to update its Règles de civisme et de jardinage et de jardinage to clearly specify that expulsions may be imposed as a first sanction, in some instances, and to clarify the current “non written rule” according to which gardeners are fully responsible for the actions of their co-gardeners.It is very important, in our opinion, that complete and unambiguous rules be communicated to the gardeners.

In 2008, Arrondissement de Villeray – Saint-Michel – Parc-Extension modified its Règles de civisme et de jardinage which now clearly provide for the main gardener’s responsability toward the actions of his co-gardener as well as the existence of a “zero tolerance” policy in regards to violence, in any form.

For a few years, a couple benefited from the right to use a plot in a community garden belonging to the city. In the summer of 2003, these citizens received a notice revoking this privilege, as they had not maintained their plot properly. The citizens appealed to the managers of the community garden concerned but were unsuccessful in having this decision reversed.

These citizens sought the assistance of the Ombudsman de Montréal since, in their opinion, the rules governing the rights of expulsion of a member had not been respected, causing them significant injustice.

An analysis of the rules in effect for the community garden concerned confirmed that when a member does not adequately maintain his garden, he, in fact, risks expulsion. However, these rules also specify that before a user can be expulsed, he must have previously received at least two warnings, the first one verbal or written and the second one, having to be in writing and signed by two specific persons.

In the present case, neither the citizen nor his spouse had been advised and no personalized written notice had been posted anywhere in the community garden. Moreover, the written notice they had received had been signed by one person only.The community garden managers contended that the general written notice posted permanently at the garden’s entrance to remind all users of the importance of respecting the obligation to maintain their plot properly, under threat of expulsion, constituted a valid first notice. The Ombudsman de Montréal did not accept this interpretation. In his opinion, the prior notice requirement aims to allow the delinquent member to remedy the situation so as to retain his gardening privileges and, therefore, in all fairness, a last chance notification before the withdrawal of privileges should be addressed specifically to the offending user.

As for the second warning required under the applicable rules, before a user can be expulsed, the rules stated clearly that it has to be in writing and signed by both a member of the garden Committee and the borough’s horticultural coordinator.

In this instance, however, the written notice had been signed by the horticultural coordinator only. The Ombudsman de Montréal thus concluded that this second warning also did not conform to the procedural rules enacted by the community garden itself. Following her Recommendation, the citizens were, therefore, able to reclaim their right to use the plot.

Nonetheless, since the citizens had admitted to being negligent in the maintenance of their lot, the Ombudsman de Montréal drew their attention to the importance of properly maintaining their plot, and obtained their written pledge, in return for the privilege regained, that they would weed their plot regularly and that they would adequately maintain their garden.

In the context of this file, the Ombudsman de Montréal pointed out to the volunteers responsible for the administration of the community garden the importance of strict adherence to the rules and procedures they themselves adopted and posted for garden members. Where rights or privileges granted to citizens are concerned, it is in fact crucial that procedures be duly applied so that citizens are not deprived of their right to remedy a deficiency, in a timely fashion.