114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town)

114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town)
Collection
Supreme Court Judgments
Date
2001-06-28
Neutral citation
2001 SCC 40
Report
[2001] 2 SCR 241
Case number
26937
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Arbour, Louise; LeBel, Louis
On appeal from
Quebec
Subjects
Municipal law
Notes
SCC Case Information: 26937
Decision Content
114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40
114957 Canada Ltée (Spraytech, Société d’arrosage)
and Services des espaces verts Ltée/Chemlawn Appellants
v.
Town of Hudson Respondent
and
Federation of Canadian Municipalities, Nature-Action
Québec Inc. and World Wildlife Fund Canada, Toronto
Environmental Alliance, Sierra Club of Canada, Canadian
Environmental Law Association, Parents’ Environmental
Network, Healthy Lawns – Healthy People, Pesticide Action
Group Kitchener, Working Group on the Health Dangers of the
Urban Use of Pesticides, Environmental Action Barrie, Breast
Cancer Prevention Coalition, Vaughan Environmental Action
Committee and Dr. Merryl Hammond, and Fédération
interdisciplinaire de l’horticulture ornementale du Québec Interveners
Indexed as: 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town)
Neutral citation: 2001 SCC 40.
File No.: 26937.
2000: December 7; 2001: June 28.
Present: L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Municipal law -- By-laws -- Regulation and restriction of pesticide use -- Town adopting by-law restricting use of pesticides within its perimeter to specified locations and enumerated activities -- Whether Town had statutory authority to enact by-law -- Whether by-law rendered inoperative because of conflict with federal or provincial legislation -- Town of Hudson By-law 270 -- Cities and Towns Act, R.S.Q., c. C-19, s. 410(1).
The appellants are landscaping and lawn care companies operating mostly in the greater Montreal area, with both commercial and residential clients. They make regular use of pesticides approved by the federal Pest Control Products Act in the course of their business activities and hold the requisite licences under Quebec’s Pesticides Act. In 1991 the respondent Town, located west of Montreal, adopted By-law 270, which restricted the use of pesticides within its perimeter to specified locations and for enumerated activities. The definition of pesticides in By-law 270 replicates that in the Pesticides Act. Under s. 410(1) of the Quebec Cities and Towns Act (“C.T.A.”), the council may make by-laws to “secure peace, order, good government, health and general welfare in the territory of the municipality”, while under s. 412(32) C.T.A. it may make by-laws to “regulate or prohibit the . . . use of . . . combustible, explosive, corrosive, toxic, radioactive or other materials that are harmful to public health or safety, in the territory of the municipality or within l km therefrom”. In 1992 the appellants were charged with having used pesticides in violation of By-law 270. They brought a motion for declaratory judgment asking the Superior Court to declare By-law 270 to be inoperative and ultra vires the Town’s authority. The Superior Court denied the motion, and the Court of Appeal affirmed that decision.
Held: The appeal should be dismissed.
Per L’Heureux-Dubé, Gonthier, Bastarache and Arbour JJ.: As statutory bodies, municipalities may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation. Included in this authority are “general welfare” powers, conferred by provisions in provincial enabling legislation, on which municipalities can draw. Section 410 C.T.A. is an example of such a general welfare provision and supplements the specific grants of power in s. 412. While enabling provisions that allow municipalities to regulate for the “general welfare” within their territory authorize the enactment of by‑laws genuinely aimed at furthering goals such as public health and safety, courts faced with an impugned by-law enacted under an “omnibus” provision such as s. 410 C.T.A. must be vigilant in scrutinizing the true purpose of the by-law.
By-law 270 does not fall within the ambit of s. 412(32) C.T.A. There is no equation of pesticides and “toxic . . . materials” either in the terms of the by-law or in any evidence presented during this litigation. Since there is no specific provision in the provincial enabling legislation referring to pesticides, the by-law must fall within the purview of s. 410(1) C.T.A. By-law 270 read as a whole does not impose a total prohibition, but rather permits the use of pesticides in certain situations where that use is not purely an aesthetic pursuit. Based on the distinction between essential and non-essential uses of pesticides, it is reasonable to conclude that the Town by-law’s purpose is to minimize the use of allegedly harmful pesticides in order to promote the health of its inhabitants. This purpose falls squarely within the “health” component of s. 410(1) C.T.A. The distinctions impugned by the appellants as restricting their businesses are necessary incidents to the power delegated by the province under s. 410(1) C.T.A. Moreover, reading s. 410(1) to permit the Town to regulate pesticide use is consistent with principles of international law and policy. The interpretation of By-law 270 set out here respects international law’s “precautionary principle”. In the context of the precautionary principle’s tenets, the Town’s concerns about pesticides fit well under their rubric of preventive action.
By-law 270 was not rendered inoperative because of a conflict with federal or provincial legislation. As a product of provincial enabling legislation, By-law 270 is subject to the “impossibility of dual compliance” test for conflict between federal and provincial legislation set out in Multiple Access. The federal Pest Control Products Act regulates which pesticides can be registered for manufacture and/or use in Canada. This legislation is permissive, rather than exhaustive, and there is no operational conflict with By-law 270. The Multiple Access test also applies to the inquiry into whether there is a conflict between the by-law and provincial legislation. In this case, there is no barrier to dual compliance with By-law 270 and the Quebec Pesticides Act, nor any plausible evidence that the legislature intended to preclude municipal regulation of pesticide use. The Pesticides Act establishes a permit and licensing system for vendors and commercial applicators of pesticides and thus complements the federal legislation’s focus on the products themselves. Along with By-law 270, these laws establish a tri‑level regulatory regime.
Per Iacobucci, Major and LeBel JJ.: The basic test to determine whether there is an operational conflict remains the impossibility of dual compliance. From this perspective, the alleged conflict with federal legislation simply does not exist. Nor does a conflict exist with the Quebec Pesticides Act, for the reasons given by the majority.
The issues in this case remain strictly first whether the C.T.A. authorizes municipalities to regulate the use of pesticides within their territorial limits, and second whether the particular regulation conforms with the general principles applicable to delegated legislation. The Town concedes that the only provision under which its by-law can be upheld is the general clause of s. 410(1) C.T.A. While it appears to be sound legislative and administrative policy, under general welfare provisions, to grant local governments a residual authority to address emerging or changing issues concerning the welfare of the local community living within their territory, it is not enough that a particular issue has become a pressing concern in the opinion of a local community. This concern must be closely related to the immediate interests of the community within the territorial limits defined by the legislature in a matter where local governments may usefully intervene. In this case, the by-law targets problems of use of land and property, and addresses neighborhood concerns that have always been within the realm of local government activity. The by-law was thus properly authorized by s. 410(1).
Two basic and longstanding principles of delegated legislation state that a by-law may not be prohibitory and may not discriminate unless the enabling legislation so authorizes. While on its face, By-law 270 involves a general prohibition and then authorizes some specific uses, when it is read as a whole its overall effect is to prohibit purely aesthetic use of pesticides while allowing other uses, mainly for business or agricultural purposes. Moreover, although the by-law discriminates, there can be no regulation on such a topic without some form of discrimination in the sense that the by-law must determine where, when and how a particular product may be used. An implied authority to discriminate was thus unavoidably part of the delegated regulatory power.
Cases Cited
By L’Heureux-Dubé J.
Distinguished: R. v. Greenbaum, [1993] 1 S.C.R. 674; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; applied: Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; referred to: Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; R. v. Hydro-Québec, [1997] 3 S.C.R. 213; R. v. Sharma, [1993] 1 S.C.R. 650; Re Weir and The Queen (1979), 26 O.R. (2d) 326; Kuchma v. Rural Municipality of Tache, [1945] S.C.R. 234; Montréal (City of) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13; Scarborough v. R.E.F. Homes Ltd. (1979), 9 M.P.L.R. 255; Allard Contractors Ltd. v. Coquitlam (District), [1993] 4 S.C.R. 371; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; A.P. Pollution Control Board v. Nayudu, 1999 S.O.L. Case No. 53; Vellore Citizens Welfare Forum v. Union of India, [1996] Supp. 5 S.C.R. 241; M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; Attorney General for Ontario v. City of Mississauga (1981), 15 M.P.L.R. 212; Township of Uxbridge v. Timber Bros. Sand & Gravel Ltd. (1975), 7 O.R. (2d) 484; British Columbia Lottery Corp. v. Vancouver (City) (1999), 169 D.L.R. (4th) 141; Law Society of Upper Canada v. Barrie (City) (2000), 46 O.R. (3d) 620; Huot v. St-Jérôme (Ville de), J.E. 93-1052; St-Michel-Archange (Municipalité de) v. 2419-6388 Québec Inc., [1992] R.J.Q. 875.
By LeBel J.
Applied: Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; referred to: M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 2 S.C.R. 409, 2000 SCC 45; Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), [2001] 1 S.C.R. 470, 2001 SCC 15; Montréal (City of) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; R. v. Sharma, [1993] 1 S.C.R. 650; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13; R. v. Greenbaum, [1993] 1 S.C.R. 674; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231.
Statutes and Regulations Cited
Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, s. 2(1) (a).
Cities and Towns Act, R.S.Q., c. C-19, ss. 410 [am. 1982, c. 64, s. 5; am. 1996, c. 2, s. 150], 412(32) [am. 1984, c. 47, s. 213; am. 1986, c. 31, s. 5; am. 1996, c. 2, s. 151], 463.1 [ad. 1998, c. 31, s. 15].
Cities, Towns and Villages Act, R.S.N.W.T. 1988, c. C-8, ss. 54, 102.
Code of Civil Procedure, R.S.Q., c. C-25, art. 453.
Endangered Species Act, S.N.S. 1998, c. 11, ss. 2(1)(h), 11(1).
Local Government Act, R.S.B.C. 1996, c. 323, s. 249.
Municipal Act, R.S.O. 1990, c. M.45, s. 102.
Municipal Act, R.S.Y. 1986, c. 119, s. 271.
Municipal Act, S.M. 1996, c. 58, C.C.S.M. c. M225, ss. 232, 233.
Municipal Government Act, S.A. 1994, c. M-26.1, ss. 3(c), 7.
Municipal Government Act, S.N.S. 1998, c. 18, s. 172.
Municipalities Act, R.S.N.B. 1973, c. M-22, s. 190(2), First Schedule.
Oceans Act, S.C. 1996, c. 31 , Preamble (para. 6).
Pest Control Products Act, R.S.C. 1985, c. P-9, ss. 4(1) , (3) , 6(1) (j) [am. 1993, c. 44, s. 200].
Pest Control Products Regulations, C.R.C. 1978, c. 1253, s. 45.
Pesticides Act, R.S.Q., c. P-9.3, ss. 102 [am. 1987, c. 29, s. 102; am. 1990, c. 85, s. 122; repl. 1993, c. 77, s. 9], 105 [am. 1987, c. 29, s. 105], 105.1 [ad. 1993, c. 77, s. 11], 106 [am. 1987, c. 29, s. 106], 107 [am. 1987, c. 29, s. 107].
Town of Hudson By-law 248.
Town of Hudson By-law 270 [am. 1995, by-law 327; am. 1996, by-law 341], arts. 1, 2, 3, 4, 5, 6, 10.
Authors Cited
Cameron, James, and Juli Abouchar. “The Status of the Precautionary Principle in International Law”, in David Freestone and Ellen Hey, eds., The Precautionary Principle and International Law. The Hague: Kluwer Law International, 1996.
Canada. CEPA Issue Elaboration Paper No. 18 - CEPA and the Precautionary Principle/Approach. Paper prepared by Dr. David VanderZwaag, Director of Marine and Environmental Law Program (MELP), Dalhousie Law School. Ottawa: Environment Canada, 1995.
Côté, Pierre-André. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Driedger on the Construction of Statutes, 3rd ed. by Ruth Sullivan. Toronto: Butterworths, 1994.
Duplessis, Yvon, et Jean Hétu. Les pouvoirs des municipalités en matière de protection de l’environnement, 2e éd. Cowansville: Yvon Blais, 1994.
Dussault, René, and Louis Borgeat. Administrative Law: A Treatise, vol. 1, 2nd ed. Toronto: Carswell, 1985.
Freestone, David, and Ellen Hey, eds. The Precautionary Principle and International Law. The Hague: Kluwer Law International, 1996.
Garant, Patrice. Droit administratif, vol. 1, 4e éd. Cowansville: Yvon Blais, 1996.
Hétu, Jean, Yvon Duplessis, et Dennis Pakenham. Droit Municipal: Principes généraux et contentieux. Montréal: Hébert Denault, 1998.
Hoehn, Felix. Municipalities and Canadian Law: Defining the Authority of Local Governments. Saskatoon: Purich Publishing, 1996.
Hogg, Peter W. Constitutional Law of Canada, vol. 1, loose-leaf ed. Scarborough, Ont.: Carswell, 1997 (updated 2000, release 1).
McIntyre, Owen, and Thomas Mosedale. “The Precautionary Principle as a Norm of Customary International Law” (1997), 9 J. Env. L. 221.
Rogers, Ian MacFee. The Law of Canadian Municipal Corporations, Cum. Supp. to vol. 1, 2nd ed. Toronto: Carswell, 1971 (loose-leaf updated 2001, release 1).
Swaigen, John. “The Hudson Case: Municipal Powers to Regulate Pesticides Confirmed by Quebec Courts” (2000), 34 C.E.L.R. (N.S.) 162.
United Nations. General Assembly. Preparatory Committee for the United Nations Conference on Environment and Development. Report of the Economic Commission for Europe on the Bergen Conference, Annex I, Bergen Ministerial Declaration on Sustainable Developments, A/CONF.151/PC/10, August 6, 1990, para. 7.
APPEAL from a judgment of the Quebec Court of Appeal, [1998] Q.J. No. 2546 (QL), J.E. 98-1855, affirming a decision of the Superior Court (1993), 19 M.P.L.R. (2d) 224, dismissing the appellants’ motion for declaratory judgment. Appeal dismissed.
Gérard Dugré and Denis Manzo, for the appellants.
Stéphane Brière and Pierre Lepage, for the respondent.
Stewart A. G. Elgie and Jerry V. DeMarco, for the interveners Federation of Canadian Municipalities, Nature-Action Québec Inc. and World Wildlife Fund Canada.
Written submissions only by Theresa A. McClenaghan and Paul Muldoon, for the interveners Toronto Environmental Alliance, Sierra Club of Canada, Canadian Environmental Law Association, Parents’ Environmental Network, Healthy Lawns – Healthy People, Pesticide Action Group Kitchener, Working Group on the Health Dangers of the Urban Use of Pesticides, Environmental Action Barrie, Breast Cancer Prevention Coalition, Vaughan Environmental Action Committee and Dr. Merryl Hammond.
Jean Piette, for the intervener Fédération interdisciplinaire de l’horticulture ornementale du Québec.
The judgment of L’Heureux-Dubé, Gonthier, Bastarache and Arbour JJ. was delivered by
1 L’Heureux-Dubé J. – The context of this appeal includes the realization that our common future, that of every Canadian community, depends on a healthy environment. In the words of the Superior Court judge: “Twenty years ago, there was very little concern over the effect of chemicals such as pesticides on the population. Today, we are more conscious of what type of an environment we wish to live in, and what quality of life we wish to expose our children [to]” ((1993), 19 M.P.L.R. (2d) 224, at p. 230). This Court has recognized that “[e]veryone is aware that individually and collectively, we are responsible for preserving the natural environment . . . environmental protection [has] emerged as a fundamental value in Canadian society”: Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 55. See also Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 16-17.
2 Regardless of whether pesticides are in fact an environmental threat, the Court is asked to decide the legal question of whether the Town of Hudson, Quebec, acted within its authority in enacting a by-law regulating and restricting pesticide use.
3 The case arises in an era in which matters of governance are often examined through the lens of the principle of subsidiarity. This is the proposition that law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity. La Forest J. wrote for the majority in R. v. Hydro-Québec, [1997] 3 S.C.R. 213, at para. 127, that “the protection of the environment is a major challenge of our time. It is an international problem, one that requires action by governments at all levels” (emphasis added). His reasons in that case also quoted with approval a passage from Our Common Future, the report produced in 1987 by the United Nations’ World Commission on the Environment and Development. The so-called “Brundtland Commission” recommended that “local governments [should be] empowered to exceed, but not to lower, national norms” (p. 220).
4 There are now at least 37 Quebec municipalities with by-laws restricting pesticides: J. Swaigen, “The Hudson Case: Municipal Powers to Regulate Pesticides Confirmed by Quebec Courts” (2000), 34 C.E.L.R. (N.S.) 162, at p. 174. Nevertheless, each level of government must be respectful of the division of powers that is the hallmark of our federal system; there is a fine line between laws that legitimately complement each other and those that invade another government’s protected legislative sphere. Ours is a legal inquiry informed by the environmental policy context, not the reverse.
I. Facts
5 The appellants are landscaping and lawn care companies operating mostly in the region of greater Montreal, with both commercial and residential clients. They make regular use of pesticides approved by the federal Pest Control Products Act, R.S.C. 1985, c. P-9 , in the course of their business activities and hold the requisite licences under Quebec’s Pesticides Act, R.S.Q., c. P-9.3.
6 The respondent, the Town of Hudson (“the Town”), is a municipal corporation governed by the Cities and Towns Act, R.S.Q., c. C-19 (“C.T.A.”). It is located about 40 kilometres west of Montreal and has a population of approximately 5,400 people, some of whom are clients of the appellants. In 1991, the Town adopted By-law 270, restricting the use of pesticides within its perimeter to specified locations and for enumerated activities. The by-law responded to residents’ concerns, repeatedly expressed since 1985. The residents submitted numerous letters and comments to the Town’s Council. The definition of pesticides in By-law 270 replicates that of the Pesticides Act.
7 In November 1992, the appellants were served with a summons by the Town to appear before the Municipal Court and respond to charges of having used pesticides in violation of By-law 270. The appellants pled not guilty and obtained a suspension of proceedings in order to bring a motion for declaratory judgment before the Superior Court (under art. 453 of Quebec’s Code of Civil Procedure, R.S.Q., c. C-25). They asked that the court declare By-law 270 (as well as By-law 248, which is not part of this appeal) to be inoperative and ultra vires the Town’s authority.
8 The Superior Court denied the motion for declaratory judgment, finding that the by-laws fell within the scope of the Town’s powers under the C.T.A. This ruling was affirmed by a unanimous Quebec Court of Appeal.
II. Relevant Statutory Provisions
9 Town of Hudson By-law 270
1. The following words and expressions, whenever the same occur in this By-Law, shall have the following meaning:
a) “PESTICIDES”: means any substance, matter or micro-organism intended to control, destroy, reduce, attract or repel, directly or indirectly, an organism which is noxious, harmful or annoying for a human being, fauna, vegetation, crops or other goods or intended to regulate the growth of vegetation, excluding medicine or vaccine;
b) “FARMER”: means a farm producer within the meaning of the Farm Producers Act (R.S.Q., chap., P-28);
. . .
2. The spreading and use of a pesticide is prohibited throughout the territory of the Town.
3. Notwithstanding article 2, it is permitted to use a pesticide in the following cases:
a) in a public or private swimming-pool;
b) to purify water intended for the use of human beings or animals;
c) inside of a building;
d) to control or destroy animals which constitute a danger for human beings;
e) to control or destroy plants which constitute a danger for human beings who are allergic thereto.
4. Notwithstanding article 2, a farmer using a pesticide on an immoveable which is exploited for purposes of agriculture or horticulture, in a hot house or in the open, is requested to
a) register, by written declaration, with the Town, in the month of march of each year, the products which he stores and which he will be using during that year.
b) also provide, in the written declaration at article 4 a), the schedule of application of said products and the area(s) of his property where the products will be applied.
5. Notwithstanding article 2, it is permitted to use a pesticide on a golf course, for a period not exceeding five (5) years from the date this by-law comes into force:
. . .
6. Notwithstanding article 2, it is permitted to use a biological pesticide to control or destroy insects which constitute a danger or an inconvenience for human beings.
. . .
10. For the purpose of article 8 of the Agricultural Abuses Act (R.S.Q. chap. A-2) an inspector designated by the Town may use a pesticide, notwithstanding article 2 of the By-Law, if there is no other efficient way of destroying noxious plants determined as such by the Provincial Government and the presence of which is harmful to a real and continuous agricultural exploitation.
Cities and Towns Act, R.S.Q., c. C-19
410. The council may make by‑laws:
(1) To secure peace, order, good government, health and general welfare in the territory of the municipality, provided such by‑laws are not contrary to the laws of Canada, or of Québec, nor inconsistent with any special provision of this Act or of the charter;
. . .
In no case may the council make by‑laws on the matters contemplated in the Agricultural Products, Marine Products and Food Act (chapter P‑29) or in the Dairy Products and Dairy Products Substitutes Act (chapter P‑30). This paragraph applies notwithstanding any provision of a special Act granting powers on those matters to any municipality other than Ville de Trois‑Rivières and Ville de Sherbrooke.
. . .
412. The council may make by‑laws:
. . .
(32) To regulate or prohibit the storage and use of gun‑powder, dry pitch, resin, coal oil, benzine, naphtha, gasoline, turpentine, gun‑cotton, nitro‑glycerine, and other combustible, explosive, corrosive, toxic or radioactive or other materials that are harmful to public health or safety, in the territory of the municipality or within 1_km therefrom;
By‑laws passed under the first paragraph in respect of corrosive, toxic or radioactive materials require the approval of the Minister of the Environment;
. . .
463.1 Subject to the Pesticides Act (chapter P-9.3) and the Environment Quality Act (chapter Q-2), the municipality may, with the consent of the owner of an immovable, carry out pesticide application works on the immovable.
Pesticides Act, R.S.Q., c. P-9.3
102. The provisions of the Pesticide Management Code and of the other regulations of this Act prevail over any inconsistent provision of any by‑law passed by a municipality or an urban community.
102. [As revised in 1993; not yet in force] The Pesticide Management Code and any other regulation enacted pursuant to this Act shall render inoperative any regulatory provision concerning the same matter enacted by a municipality or an urban community, except where the provision
– concerns landscaping or extermination activities, such as fumigation, as defined by government regulation, and
– prevents or further mitigates harmful effects on the health of humans or of other living species or damage to the environment or to property.
. . .
105. [Not yet in force] The Government shall enact by regulation a Pesticide Management Code which may prescribe rules, restrictions or prohibitions respecting activities related to the distribution, storage, transportation, sale or use of any pesticide, pesticide container or any equipment used for any of those activities.
105.1. [Not yet in force] The Pesticide Management Code may require a person who stores pesticides of a determined category or in a determined quantity to subscribe civil liability insurance, the kind, extent, duration, amount and other applicable conditions of which are determined in the said Code, and to furnish proof thereof to the Minister.
106. [Not yet in force] The Pesticide Management Code may cause any rule elaborated by another government or by a body to be mandatory.
In addition, the code may cause any instructions of the manufacturer of a pesticide or of equipment used for any activity referred to in the code to be mandatory.
107. [Not yet in force] The Government may prescribe that the contravention of the provisions of this code which it determines constitutes an offence.
Pest Control Products Act, R.S.C. 1985, c. P-9
4. (1) No person shall manufacture, store, display, distribute or use any control product under unsafe conditions.
. . .
(3) A control product that is not manufactured, stored, displayed, distributed or used as prescribed or that is manufactured, stored, displayed, distributed or used contrary to the regulations shall be deemed to be manufactured, stored, displayed, distributed or used contrary to subsection (1).
. . .
6. (1) The Governor in Council may make regulations
. . .
(j) respecting the manufacture, storage, distribution, display and use of any control product;
Pest Control Products Regulations, C.R.C. 1978, c. 1253
45. (1) No person shall use a control product in a manner that is inconsistent with the directions or limitations respecting its use shown on the label.
(2) No person shall use a control product imported for the importer's own use in a manner that is inconsistent with the conditions set forth on the importer’s declaration respecting the control product.
(3) No person shall use a control product that is exempt from registration under paragraph 5(a) for any purpose other than the manufacture of a registered control product.
III. Judgments
A. Superior Court (1993), 19 M.P.L.R. (2d) 224
10 Kennedy J. held that by-laws are presumed valid and legal. He found that By-laws 248 and 270 were adopted under s. 410 C.T.A. and, thus, did not require ministerial approval to enter into effect. Both by-laws deal with pesticides and not toxic substances and since “pesticides” are not included in s. 412(32), ministerial approval is not required. According to Kennedy J., the Town, faced with a situation involving health and the environment, acted in the public interest by enacting the by-laws in question. Consequently, the Town could rely on s. 410(1) C.T.A. as the legislative provision that enabled it to adopt these by-laws.
11 Kennedy J. then considered the provisions of the Pesticides Act to determine whether the by-laws conflicted with provincial legislation. He found it clear that the Pesticides Act was enacted with the intention to allow municipalities to adopt by-laws of this nature. In this regard, Kennedy J. cited ss. 102 and 105 to 107 of the Pesticides Act, which envision the creation of a Pesticide Management Code allowing the provincial government to restrict or prohibit pesticides. Section 102 of that Act states that the provisions of the Code are to take precedence over inconsistent by-laws. Yet, given that the Code had yet to come into force, nothing prohibited municipalities from regulating pesticide use in the interim. Kennedy J. thus concluded that there was no conflict between the by-laws and provincial or federal legislation.
B. Court of Appeal, [1998] Q.J. No. 2546 (QL)
12 Before the Court of Appeal, the Town conceded that By-law 248 was inoperative. Thus, only By-law 270 was at issue. The appellants challenged Kennedy J.’s ruling on two grounds. First, they argued that By-law 270 was inoperative given that it was incompatible with the Pesticides Act. Second, the appellants contended that since the regulation of toxic substances was covered by s. 412(32) C.T.A., Kennedy J. erred in finding that the by-law was enacted under s. 410(1) C.T.A. While the latter provision allows a municipality to enact by-laws considered necessary for public health and welfare, s. 412(32) C.T.A. is concerned with “toxic” materials, and states that by-laws addressing this subject matter require approval from the Minister of the Environment. Given that the Town did not obtain such approval when it enacted By-law 270, the appellants argued that the by-law was invalid.
13 The Court of Appeal, per Delisle J.A., accepted the Town’s position that By-law 270 was enacted under s. 410(1) C.T.A. In reaching this conclusion, the court noted that By-law 270 repeated the definition of “pesticide” that is found in the Pesticides Act. This definition makes no reference to terms used in s. 412(32) or to toxicity. Moreover, the C.T.A. itself does not discuss whether pesticides are “toxic . . . materials”, nor does it require ministerial approval for regulations relating to pesticides. No evidence was submitted concerning the toxic character of pesticides. The Court of Appeal also held that By-law 270 furthered the objectives set out in s. 410(1) C.T.A. It reiterated the statements of Kennedy J. that by-laws are presumed to be valid and legal and that there is a presumption that legislators act in good faith and in the public interest. It found that s. 410(1) is a very general enabling clause and must receive a liberal interpretation.
14 The court agreed with Kennedy J.’s finding that the by-law was enacted by the Town in the public interest and in response to health concerns expressed by residents. The court noted that these concerns were recorded in the Town Council’s meeting minutes and manifested themselves in letters to Council, as well as a petition with more than 300 signatures. Moreover, the Court of Appeal recognized that s. 410 C.T.A. describes when a municipality may not act under its general governance powers. By-laws on subjects contemplated in the Pesticides Act were not included in this list of unauthorized areas of regulation. The appellants argued that s. 410(1) does not permit the Town to ban pesticides. The Court of Appeal held that an absolute ban would be forbidden, but that the by-law does not impose an absolute ban.
15 The Court of Appeal then examined whether By-law 270 was in conflict with the Pesticides Act and thus inoperative. It found that s. 102 of the Pesticides Act – which states that the Pesticide Management Code and all regulations of the Pesticides Act take precedence over any incompatible municipal by-law – contemplated municipal regulation of pesticide use. The court also commented that the revised version of s. 102, as well as ss. 105 to 107 regarding the Pesticide Management Code, had yet to be enacted. As a result, it held that, as opposed to a real conflict, a potential future incompatibility between the by-law and the Code did not suffice to render the by-law inoperative.
16 Finally, the Court of Appeal noted that, although not yet in force, the revised version of s. 102 of the Pesticides Act allows municipalities to adopt by-laws concerning pesticides, so long as these are not incompatible with the Pesticide Management Code. At the same time, even if such incompatibility arises, the by-laws can continue to be operative if they relate to landscaping activities, or if they aim to prevent or reduce injury or damage to people, animals, the environment or property. As such, this new regime would enable municipalities to enact by-laws that are more restrictive than the provisions set out in the provincial Pesticide Management Code. Based on these reasons, the Court of Appeal dismissed the appeal, holding that By-law 270 was validly enacted and operative.
IV. Issues
17 There are two issues raised by this appeal:
(1) Did the Town have the statutory authority to enact By-law 270?
(2) Even if the Town had authority to enact it, was By-law 270 rendered inoperative because of a conflict with federal or provincial legislation?
V. Analysis
A. Did the Town Have the Statutory Authority to Enact By-law 270?
18 In R. v. Sharma, [1993] 1 S.C.R. 650, at p. 668, this Court recognized “the principle that, as statutory bodies, municipalities ‘may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation’ (Makuch, Canadian Municipal and Planning Law (1983), at p. 115)”. Included in this authority are “general welfare” powers, conferred by provisions in provincial enabling legislation, on which municipalities can draw. As I. M. Rogers points out, “the legislature cannot possibly foresee all the powers that are necessary to the statutory equipment of its creatures. . . . Undoubtedly the inclusion of ‘general welfare’ provisions was intended to circumvent, to some extent, the effect of the doctrine of ultra vires which puts the municipalities in the position of having to point to an express grant of authority to justify each corporate act” (The Law of Canadian Municipal Corporations (2nd ed. (loose-leaf)), Cum. Supp. to vol. 1, at p. 367).
19 Section 410 C.T.A. is an example of such a general welfare provision and supplements the specific grants of power in s. 412. More open-ended or “omnibus” provisions such as s. 410 allow municipalities to respond expeditiously to new challenges facing local communities, without requiring amendment of the provincial enabling legislation. There are analogous provisions in other provinces’ and territories’ municipal enabling legislation: see Municipal Government Act, S.A. 1994, c. M-26.1, ss. 3(c) and 7; Local Government Act, R.S.B.C. 1996, c. 323, s. 249; Municipal Act, S.M. 1996, c. 58, C.C.S.M. c. M225, ss. 232 and 233; Municipalities Act, R.S.N.B. 1973, c. M-22, s. 190(2), First Schedule; Municipal Government Act, S.N.S. 1998, c. 18, s. 172; Cities, Towns and Villages Act, R.S.N.W.T. 1988, c. C-8, ss. 54 and 102; Municipal Act, R.S.O. 1990, c. M.45, s. 102; Municipal Act, R.S.Y. 1986, c. 119, s. 271.
20 While enabling provisions that allow municipalities to regulate for the “general welfare” within their territory authorize the enactment of by-laws genuinely aimed at furthering goals such as public health and safety, it is important to keep in mind that such open-ended provisions do not confer an unlimited power. Rather, courts faced with an impugned by-law enacted under an “omnibus” provision such as s. 410 C.T.A. must be vigilant in scrutinizing the true purpose of the by-law. In this way, a municipality will not be permitted to invoke the implicit power granted under a “general welfare” provision as a basis for enacting by-laws that are in fact related to ulterior objectives, whether mischievous or not. As a Justice of the Ontario Divisional Court, Cory J. commented instructively on this subject in Re Weir and The Queen (1979), 26 O.R. (2d) 326 (Div. Ct.), at p. 334. Although he found that the City of Toronto’s power to regulate matters pertaining to health, safety and general welfare (conferred by the Municipal Act, R.S.O. 1970, c. 284, s. 242) empowered it to pass a by-law regulating smoking in public retail shops, Cory J. also made the following remark about the enabling provision: “There is no doubt that a by-law passed pursuant to the provisions of s. 242 must be approached with caution. If such were not the case, the municipality could be deemed to be empowered to legislate in a most sweeping manner.”
21 Within this framework, I turn now to the specifics of the appeal. As a preliminary matter, I agree with the courts below that By-law 270 was not enacted under s. 412(32) C.T.A. This provision authorizes councils to “make by‑laws: To regulate or prohibit the storage and use of gun‑powder, dry pitch, resin, coal oil, benzine, naphtha, gasoline, turpentine, gun‑cotton, nitro‑glycerine, and other combustible, explosive, corrosive, toxic or radioactive or other materials that are harmful to public health or safety, in the territory of the municipality or within 1_km therefrom” (emphasis added). In replicating the definition of “pesticides” found in the provincial Pesticides Act, By-law 270 avoids falling under the ambit of s. 412(32). There is no equation of pesticides and “toxic . . . materials” either in the terms of the by-law or in any evidence presented during this litigation. The provincial government did not consider By-law 270 to fall under s. 412(32): see letter of July 5, 1991 from the Deputy Minister of the Environment. As Y. Duplessis and J. Hétu state in Les pouvoirs des municipalités en matière de protection de l’environnement (2nd ed. 1994), at p. 110,
[translation] . . . these subsections concerning “corrosive, toxic or radioactive materials” in no way limit the other more general powers granted to municipalities that could justify municipal intervention in relation to pesticides.
As a result, since there is no specific provision in the provincial enabling legislation referring to pesticides, the by-law must fall within the purview of s. 410(1) C.T.A. The party challenging a by-law’s validity bears the burden of proving that it is ultra vires: see Kuchma v. Rural Municipality of Tache, [1945] S.C.R. 234, at p. 239, and Montréal (City of) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368, at p. 395.
22 The conclusion that By-law 270 does not fall within the purview of s. 412(32) C.T.A. distinguishes this appeal from R. v. Greenbaum, [1993] 1 S.C.R. 674. In that case, various express provisions of the provincial enabling legislation at issue covered the regulation of Toronto sidewalks. The appellant was therefore trying to expand the ambit of these specific authorizations by recourse to the “omnibus