Intervenor: vol. 26, no. 4 September - December 2001

Bill 111 - Ontario's New Municipal Act and Pesticide By-law Powers

CELA conducted an anlaysis of Bill 111, Ontario's proposed new Municipal Act in November, 2001, to evaluate what the impact would be on the ability of Ontario municipalities to pass by-laws to control pesticide application within their boundaries. CELA's analysis was conducted in light of the Supreme Court of Canada's recent decision, issued in June, 2001, in the case of Spraytech et al. v. Town of Hudson.

Bill 111 was passed into law in December, 2001, in part due to the use of time allocation motions by the government. Except for some particular matters, the Act will come into force on January 1, 2003. In the meantime, municipalities continue to find their powers under the existing Municipal Act.

Bill 111 replaces section 102 with a new section, section 130.

The two sections compare as follows:

Existing section 102 reads:

"102. Every council may pass such by-laws and make such regulations for the health, safety, morality and welfare of the inhabitants of the municipality in matters not specifically provided for by this Act as may be deemed expedient and are not contrary to law…"

The new section 130 reads:

"A municipality may regulate matters not specifically provided for by this act or any other Act for purposes related to the health, safety and well-being of the inhabitants of the municipality."

There are several other sections of particular note in the new Municipal Act. The new Municipal Act provides for the powers of municipalities in a different framework than does the former Municipal Act. Rather than an exhaustive list of specifically provided powers that form the entire set of powers of a municipality, the new Act provides that "a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act. (section 8)" Section 9 requires that municipal powers under the new Act shall be interpreted broadly, "to enable [municipalities] to govern their affairs as they consider appropriate…".

The statutory provisions of any statute must be interpreted in light of the purposes of the Act. The purposes of the new Municipal Act are stated to be:

"2. Municipalities are created by the Province of Ontario to be responsible and accountable governments with respect to matters within their jurisdiction and each municipality is given powers and duties under this act and many other acts for purposes which include…. (c) fostering the current and future economic, social and environmental well-being of the municipality…"

There is a limitation section in the Act, namely section 14, which provides that a by-law is without effect to the extent of any conflict with a provincial or federal Act or a regulation made under such an Act or an instrument issued under a provincial or federal Act or regulation. Other sections deal with the ability of a court to overturn a by-law. By-laws passed in good faith shall not be quashed because of the unreasonableness or supposed unreasonableness of the by-law; a Court may only quash a by-law for illegality.

ANALYSIS

What is the importance of these new sections of the Municipal Act on the ability of Ontario municipalities to pass by-laws to control pesticide use in their boundaries? Does the new Act change the meaning of the Supreme Court of Canada's recent Spraytech et al. v. Town of Hudson decision for Ontario?

CELA represented eleven Interveners in that Supreme Court case, and in its factum, argued that the Court's decision could potentially affect municipalities in other provinces across the country, acting under the various provincial and territorial municipal Acts. The Court agreed that the provision they were reviewing in the Hudson case was analogous to powers found in many other provinces' legislation, including Ontario's existing section 102.

The Court had to consider not only the enabling power, but also the question of whether there was a conflict between the by-law and federal or Quebec pesticides laws.

Quebec's relevant legislation, their Cities and Towns Act contained a power allowing a council to make by-laws "to secure the peace, order, good government, health and general welfare in the territory of the municipality…". It also contained a limitation on the power, namely "provided such by-laws are not contrary to the laws of Canada, or of Quebec, nor inconsistent with any special provision of this Act or of the charter".

The Supreme Court of Canada styled such powers as "general welfare" powers that generally supplement the specific grants of power contained in most provinces' municipal legislation. The court noted that such powers allow municipalities to respond expeditiously to new challenges facing local communities.

In passing by-laws under the general welfare powers, the court noted that these powers are not open ended - they must be "genuinely aimed at furthering goals such as public health and safety".

In the case of the Hudson by-law, the Court found that the Town's pesticides by-law was aimed at such goals. It considered the exceptions to the by-law, such as for agricultural purposes and other matters, and concluded that its implicit purpose was to promote the health of the Town's residents. The Court found that the by-law's distinction between essential and non-essential uses supported this purpose. The court found the by-law's purpose was "to minimize the use of allegedly harmful pesticides in order to promote the health of its inhabitants." This purpose fell squarely within the "health" component of the municipal section.

The court also considered whether there was an invalid conflict between the by-law and the federal and Quebec pesticides laws and found that there was no such invalid conflict. The court applied a test that queried whether there was an operational conflict in operation of the various laws. The federal legislation (dealing with such matters as registration of pesticides in Canada), and the Quebec legislation (establishing a permit and licensing system for vendors and commercial applicators of pesticides) do not place anyone in the impossible position of being unable to comply with them and with the municipal by-law. There was no invalid conflict.

The Supreme Court found further support for the validity of the by-law in its consistency with the international precautionary principle, and made contextual statements about the necessity of a healthy environment. It also articulated the importance of governance at the local level in addition to the provincial and federal levels.

The new Municipal Act is consistent with these interpretive statements made by the court in that:

  • Section 272 states that a by-law passed in good faith by a municipality may not be quashed by a court by reason of unreasonableness;
  • Section 2, the purposes section, expressly states that one of the purposes for which Municipalities are created is the "fostering the current and future economic, social and environmental well-being of the municipality";
  • Section 130 provides municipalities with a general welfare power, including for health, safety and well-being of inhabitants of the municipality, analogous to the power in the present Ontario section 102;
  • Section 9 provides that sections 8 and 11 (the natural persons section and the spheres of jurisdiction section) shall be interpreted broadly so as to confer broad authority on municipalities, to enable them to govern their affairs as they consider appropriate, and to enhance their ability to respond to municipal issues and that in the event of ambiguity in sections 8 and 11, those sections shall be interpreted broadly to include, rather than exclude, municipal powers that existed on December 31, 2002; and
  • Bill 111 contains no provision expressly prohibiting municipalities from passing pesticides by-laws, and nor does any other Ontario legislation.

Based on the foregoing, CELA is of the opinion that in general, Ontario municipalities will continue to be able to pass municipal by-laws dealing with pesticides under the proposed Bill 111 in accordance with the reasons of the Supreme Court of Canada in Spraytech et al. v. Town of Hudson.

Note: This is not a legal opinion relevant to any specific municipality or any specific proposed by-law. A specific legal opinion in light of the proposed wording would have to be obtained for a particular by-law.
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Theresa McClenaghan is a lawyer at CELA