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Paramountcy

'Paramountcy' is the issue of resolving when different levels of law conflict. It occurs between any of the three different levels of government: municipal, provincial and federal. Recent case law has held that the tests for municipal-provincial conflicts, and provincial-federal conflict, are the same.

Spraytech

. Croplife Canada v. Toronto (City)

In Croplife Canada v. Toronto (City) (Ont CA, 2005) the Court of Appeal considered a paramountcy case against a Toronto by-law that regulated pesticides, and concluded that the test for conflict should be whether it was "impossible to comply with both" (both the municipal law and the provincial or federal law) in accordance with the 2001 SCC case of 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town) ("Spraytech"):
[28] Finally, having concluded that the Town of Hudson had the authority to enact its pesticide by-law, L'Heureux-Dubé J. had to decide whether the by-law was inoperative because of a conflict with federal or provincial legislation regulating pesticides, i.e., the federal PCPA or the Quebec Pesticides Act, R.S.Q., c. P-9.3. L'Heureux-Dubé J. applied the "impossibility of dual compliance" test from Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161, 138 D.L.R. (3d) 1, under which a provincial law is invalidated if compliance with it would result in the breach of a federal law. Looking first at the federal PCPA, L'Heureux-Dubé J. described it as regulating and authorizing the import, export, sale, manufacture, packaging, and labelling of pesticides, as well as their registration for use in Canada. L'Heureux-Dubé J. concluded that there was no operational conflict between the federal PCPA and the Town of Hudson's pesticide by-law, because it was not impossible to comply with both. She also found that the application of the by-law would not frustrate or displace the legislative purpose of Parliament [See Note 1 at the end of the document].

[29] Turning to the Quebec Pesticides Act, L'Heureux-Dubé J. found that it established a permit and licensing system for vendors and commercial applicators of pesticides. She noted that the provincial legislation complemented the focus of the federal PCPA, which is on the products themselves. She concluded, importantly, that "[a]long with By-law 270, these laws establish a tri-level regulatory regime" (para. 39). She found that there was neither a problem with dual compliance with Quebec's Pesticides Act and the Town of Hudson's pesticide by-law, nor any "plausible evidence that the legislature intended to preclude [page371] municipal regulation of pesticide use". In the result, the Supreme Court upheld the by-law.

....

(4) Is the by-law in conflict with federal or provincial legislation?

[51] The other significant change in s. 130 is the removal of the requirement in s. 102 of the old Act that the by-laws not be "contrary [page377] to law", under which a by-law would not be effective in the event of a conflict with a federal or provincial law. This requirement is now set out in s. 14 of the new Act, which I repeat here for ease of reference:
14. A by-law is without effect to the extent of any conflict with,

(a) a provincial or federal Act or a regulation made under such an Act; or

(b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation.
[52] The appellant acknowledges that s. 14 applies to by-laws made under Part III, including under s. 130, as well as Part II of the new Act, and that s. 14 represents a codification of the "impossibility of dual compliance" conflicts test articulated and applied by L'Heureux-Dubé J. in Spraytech, supra. The appellant also concedes that the City of Toronto's pesticide by-law meets that test. It is not impossible to comply with the city's pesticide by-law and at the same time to comply with the requirements of the federal PCPA or the Ontario Pesticides Act.

[53] The appellant says, however, that the conflicts test from Spraytech, supra, is not relevant for the purposes of s. 130. In other words, the fact that dual (in fact, triple) compliance is possible is not determinative in this case. Again, the appellant points to the words "matters not specifically provided for by this Act or any other Act" in s. 130. The appellant says that because the "impossibility of dual compliance" conflicts rule is articulated in s. 14, the words in s. 130 cannot be a reference to the same conflicts rule, but must have another meaning. Moreover, as discussed under issue (2) above, because of the addition of the words "or any other Act", the phrase is no longer a reference to the rule against circumvention.

[54] The appellant's position is that the effect of the language of s. 130 is that a municipality only has the power to enact a by-law for health, safety or well-being where the subject matter of the by-law in pith and substance is not specifically provided for in any other Act. The appellant says that the federal PCPA and the Ontario Pesticides Act together form a comprehensive regime for the regulation of pesticides, with a view to the protection of health and the environment. Therefore, the subject matter is provided for in other legislation, causing the by-law to be ultra vires. Stated another way, the appellant says that the proper approach is to determine the pith and substance of the by-law, then to see if there is any other legislation dealing with the same pith and substance. If there is, the by-law is invalid. A central implication of [page378] the appellant's position is that, contrary to the approach endorsed by L'Heureux-Dubé J. in Spraytech, s. 130 of the Municipal Act, 2001 precludes municipalities in Ontario from participating in a tri-level regime to regulate the use of pesticides, where each level of government plays a role in the regulatory scheme.

[55] Both in its factum and in oral argument, the appellant developed a detailed examination of the federal PCPA and of the Ontario Pesticides Act. The appellant sought to show that, although they deal in the case of the PCPA with such issues as registering and labelling pesticide products, and in the case of the Pesticides Act with the licensing of pesticide contractors, the true "matter" of those Acts is the protection of human health through restrictions on the use of registered pesticides. Since this is also the "matter" of the by-law, the appellant argues that the pesticide by-law is ultra vires the City of Toronto. In my view, the position of the appellant is without merit and must be rejected.

[56] As I stated in the discussion of issue (2), above, as a matter of statutory interpretation there is no basis to read the phrase "matters not specifically provided for by this Act or any other Act" other than in accordance with Iacobucci J.'s interpretation from Greenbaum, supra. The phrase is a mere restatement, and modest extension, of the traditional rule against circumvention. This reading gives the provision a pragmatic and workable meaning; it is consistent with the accepted interpretation of those words in previous incarnations of the Municipal Act; and there is nothing in the language used to indicate that the legislature intended that a new and different meaning be given to the phrase. Had the legislature wanted such a drastic change, it would have used very clear language to communicate that intention: United Taxi, supra, at para. 11.

[57] Once it is accepted that the words "matters not specifically provided for by this Act or any other Act" is merely a rule against circumvention referring to other specific municipal by-law making powers, the appellant's argument collapses.

[58] Regardless, the appellant's proposed interpretation is one that would have to be clearly intended and expressed by the legislature because its effect would be to turn the "impossibility of dual compliance" conflicts rule from Multiple Access, supra, and Spraytech, supra, on its head. It would reintroduce the approach to paramountcy, long since rejected in Canada, that legislation by one level of government occupies the field and precludes complementary legislation by other levels: see Peter W. Hogg, Constitutional Law of Canada, 4th ed., looseleaf (Scarborough, Ont.: Thomson-Carswell, 1997) at pp. 16-7 to 16-13. Moreover, the [page379] validity of tri- level regulation, which the appellant's position repudiates, has been unambiguously endorsed by the Supreme Court of Canada in Spraytech, supra, at para. 39, as the accepted model in our federal system.

[59] The most recent discussion by the Supreme Court of the conflicts rule and the doctrine of paramountcy is in Major J.'s decision in Rothmans, Benson & Hedges Inc. v. Saskatchewan, supra. The issue in that case was whether s. 30 of the federal Tobacco Act, S.C. 1997, c. 13, rendered s. 6 of the Saskatchewan Tobacco Control Act, S.S. 2001, c. T-14.1 inoperative, based on the doctrine of paramountcy. Section 30 of the federal Act permits the retail display of tobacco products or accessories as an exception to a prohibition of the promotion of tobacco products contained in s. 19 of the same Act. Section 6 of the Saskatchewan Act bans all advertising and promotion of tobacco products in any place where persons under 18 are allowed.

[60] In Rothmans, Major J., writing for the court, set out at para. 15 a two-part test to determine whether a provincial provision is so inconsistent with a federal provision that the paramountcy doctrine renders it inoperative: (1) can a person simultaneously comply with both provisions? (the impossibility of dual compliance test); and (2) does the provincial provision frustrate Parliament's purpose in enacting the federal provision? Major J. concluded that a person could comply with both s. 6 of the Saskatchewan Tobacco Control Act and s. 30 of the federal Tobacco Act. The federal Act did not grant a positive right to advertise tobacco products. Although the federal government's constitutional jurisdiction to legislate in the area came from its criminal law power, the purpose of the Act was to promote public health and to protect young persons by restricting access to tobacco. Major J. observed that a provision enacted in the prohibitory context would not ordinarily create a freestanding right. Indeed, such a right would be inconsistent with the stated purpose of the Act.

[61] Major J. at para. 21 specifically rejected the suggestion that Parliament intended to occupy the field with respect to the regulation of the retail display of tobacco products: "In my view, to impute to Parliament such an intention to 'occup[y] the field' in the absence of very clear statutory language to that effect would be to stray from the path of judicial restraint in questions of paramountcy that this Court has taken since at least O'Grady [O'Grady v. Sparling, 1960 CanLII 70 (SCC), [1960] S.C.R. 804, 25 D.L.R. (2d) 145], at p. 820 S.C.R." He also found that the more stringent provincial prohibition on the retail display of tobacco products enhanced rather than frustrated the legislative purpose of the federal Act. [page380]

[62] The Rothmans case is the latest in the series of cases from the Supreme Court that explains how different levels of government may legislate in related or overlapping fields. The only restrictions on this co-operative view of federalism are that the legislative provisions may not expressly conflict, and the legislation of the lower levels of government may not frustrate the legislative purpose of the more senior level of government.

[63] Applying these principles to the issues in this case, the conflicts test explicitly provided in s. 14 of the Municipal Act, 2001 must be interpreted in accordance with the two-pronged test prescribed in Rothmans: (1) Is it impossible to comply simultaneously with the pesticide by-law and with the federal PCPA or the Ontario Pesticides Act?; (2) Does the by- law frustrate the purpose of Parliament or the Ontario legislature in enacting those laws? If the answer to both questions is "no", then the by-law is effective.

[64] Using Major J.'s analysis, had either Parliament or the Ontario legislature intended to occupy the field of pesticide regulation with the federal PCPA or the provincial Pesticides Act, they would have used very clear language to say so. Furthermore, had the Ontario legislature intended to prevent municipalities in Ontario from having the authority to enact by-laws limiting the use of pesticides following the Supreme Court's decision in Spraytech, it could have done so explicitly either in the Municipal Act, 2001, which was enacted after the Spraytech decision, or by including a provision prohibiting municipalities from enacting pesticide by-laws in the provincial Pesticides Act [See Note 4 at the end of the document].

[65] The appellant concedes it that it is possible to comply with the City of Toronto's pesticide by-law, the federal PCPA, and the Ontario Pesticides Act at the same time. However, in subsequent submissions, the appellant took the position that the pesticide by-law contravenes the second part of the test from Rothmans, suggesting that it frustrates the purpose of the federal pesticide regime, which the appellant says is to make pesticides available for use by the public.

[66] The appellant also refers to the new federal Pest Control Products Act, 2002, c. 28, which has been passed but is not yet in force. The preamble to that Act states that, "[P]est control products of acceptable risk and value can contribute significantly to the attainment of the goals of sustainable pest management." [page381] The appellant says that the by-law deprives residents of Toronto of the benefits of the pesticides that are regulated by the PCPA but are restricted or prohibited by the by-law.

[67] In my view, this argument has been addressed and determined by the Supreme Court in Spraytech, supra. There the court held that the Town of Hudson's pesticide by-law would not frustrate the purpose of the old federal PCPA, which, like the new federal Act, is permissive only. Its purpose is to make certain pesticides available by regulating their manufacture and labelling, but it does not require that everyone be able to use every regulated product in an unrestricted way.

....

[72] The motion judge found that the by-law is aimed primarily at the matters of health, safety and well-being of the City of Toronto's inhabitants. Its municipal purpose therefore falls squarely within the authority granted by s. 130 of the Municipal Act, 2001.

[73] No by-law can be enacted under s. 130 to regulate matters of health, safety or well-being of the inhabitants of the city if the purpose of the by-law is to regulate a "matter that is specifically provided for by this Act or any other Act". These limiting words require the court to examine the Municipal Act, 2001 and other provincial Acts to determine if they give municipalities any specific powers to regulate the use of pesticides. If so, no such by-law can be enacted using s. 130. There is no dispute that there is no specific municipal power to regulate pesticide use contained in the Municipal Act, 2001 or in any other Ontario statute. Therefore, the limiting words of s. 130 do not preclude enactment of the pesticide by- law.

[74] Finally, the by-law will not be effective if it expressly contradicts any other law, whether federal or provincial, or if it frustrates the purpose of those laws. The appellant concedes that it is not impossible to comply with the pesticide by-law at the same time as the federal PCPA or the Ontario Pesticides Act. Moreover, as I have found, the pesticide by-law does not frustrate the purpose of those Acts. Therefore, the by-law is not rendered inoperative by the conflicts test in s. 14 of the Municipal Act, 2001, applied in accordance with the Supreme Court's decisions in Spraytech and Rothmans, supra.
. wpd Sumac Ridge Wind Incorporated v. Kawartha Lakes (City)

In wpd Sumac Ridge Wind Incorporated v. Kawartha Lakes (City) (Ont CA, 2016) the court discusses the modern law of interjurisdictional conflict, here as it relates to a conflict between a municipal resolution versus an approval granted under provincial legislation:
(a) The doctrine of paramountcy and the governing test for frustration of purpose

[37] A cardinal rule of municipal law is that “all by-laws are subject to the general law of the realm and are subordinate to it”, and that “any by-laws which are repugnant to or inconsistent with general provincial legislation are void and of no effect, or else superseded to the extent that the legislature has acted”: Ian MacF. Rogers, Q.C., The Law of Canadian Municipal Corporations, loose-leaf (2014-Rel. 5), 2d ed. (Toronto: Carswell, 1988), at para. 63.16 (citations omitted).

[38] This principle has been codified in s. 14 of the Municipal Act, which provides as follows:
14. (1) A by-law is without effect to the extent of any conflict with,

(a) a provincial or federal Act or a regulation made under such an Act; or

(b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation.

Same

(2) Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument.
[39] To determine whether municipal and provincial legislative enactments conflict, this court has endorsed applying the paramountcy doctrine governing conflicts between federal and provincial legislation: Croplife Canada v. Toronto (City) (2005), 2005 CanLII 15709 (ON CA), 75 O.R. (3d) 357, at para. 63; Cash Converters Canada Inc. v. Oshawa (City), 2007 ONCA 502 (CanLII), 86 O.R. (3d) 401, at para. 32.

[40] Whether a true conflict exists between federal and provincial legislative enactments has been the subject of considerable jurisprudence. It was most recently discussed in Alberta (Attorney General) v. Moloney, 2015 SCC 51 (CanLII), [2015] 3 S.C.R. 327.

[41] In that case, the Supreme Court of Canada set out the following analytical framework:
i) As a preliminary question, it must be determined whether both laws are validly enacted. If one is invalid, then no conflict can exist: Moloney, at para. 17; see also Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23 (CanLII), at paras. 34-39.

ii) If both laws are independently valid, the court must then examine whether the laws’ concurrent operation results in a conflict under either branch of the paramountcy test. The two branches are (1) operational conflict – “there is an operational conflict because it is impossible to comply with both laws”; or (2) frustration of purpose – when, “although it is possible to comply with both laws, the operation of the provincial law frustrates the purpose of the federal enactment”: Moloney, at para. 18.

iii) If conflict is found, the inferior law remains in force but is inoperative to the extent it conflicts with the superior law: Moloney, at para. 29.
[42] The party alleging the conflict bears the burden of proving conflict: Moloney, at para. 27. When examining conflict, it is the effect of the inferior law, and not its purpose that is the focus of the paramountcy analysis: Moloney, at para. 28; Husky Oil Operations Ltd. v. Minister of National Revenue, 1995 CanLII 69 (SCC), [1995] 3 S.C.R. 453, at para. 39. That being said, an intention to interfere with the superior government’s purpose may call into question the legitimacy of the inferior law: Moloney, at para. 28; Husky Oil, at paras. 39, 44-45.

[43] In this case, the parties went straight to the second branch of the paramountcy test – frustration of purpose – which the Divisional Court applied to conclude that the City’s resolution was in conflict with the Sumac Ridge Approval and, therefore, invalid. Although the application could have been disposed of on the basis of the court’s finding of bad faith, given the nature of this dispute, it was, and is, in the interests of justice to determine whether the resolution frustrated the purpose of the Sumac Ridge Approval.

[44] In Moloney, the court cautioned that the standard for establishing frustration of purpose is high. It identified, at para. 26, that the following situations would generally not lead to a conflict: “For instance, duplicative federal and provincial provisions will generally not conflict. Nor will a conflict arise where a provincial law is more restrictive than a federal law” (citations omitted).

[45] The court went on to explain that “[t]he application of a more restrictive provincial law may, however, frustrate the federal purpose if the federal law, instead of being merely permissive, provides for a positive entitlement“ (citations omitted).

[46] The Supreme Court cited Law Society (British Columbia) v. Mangat, 2001 SCC 67 (CanLII), [2001] 3 S.C.R. 113, as providing an example of a federal law that created a positive entitlement, rather than being merely permissive, and which was thus frustrated by a more restrictive provincial law.

[47] In Mangat, the issue was whether provincial legislation preventing non-lawyers from charging a fee to represent persons at Immigration Review Board hearings conflicted with federal legislation: namely, ss. 30 and 69(1) of the Immigration Act, R.S.C. 1985, c. I-2. Section 30 provided that every person before the adjudication tribunal had the right to retain and be represented by “a barrister or solicitor or other counsel” and was to be given a reasonable opportunity to “obtain such counsel at the person’s own expense”. Section 69(1) provided that before the Refugee division the person “may, at that person’s own expense, be represented by a barrister or solicitor or other counsel.”

[48] In finding that the provincial legislation conflicted with those federal legislative provisions, the Supreme Court applied the modern approach to statutory interpretation to determine the federal purpose. It looked beyond the specific provisions at issue and considered the legislative scheme as a whole, how similar and related acts governed representatives before federal tribunals, and reviewed an Ontario legislative report that highlighted the benefits of non-lawyer representatives.

[49] Ultimately, and relying heavily on ss. 68(2) and 80.1(4) of the Immigration Act – which called for proceedings to be as informal and expeditious as the circumstances and fairness permit – the court found that in enacting the provisions at issue, Parliament “was pursuing the legitimate objective of establishing an informal, accessible (in financial, cultural and linguistic terms), and expeditious process”: Mangat, at para. 72. The provisions were not simply permissive. They provided a positive entitlement for non-lawyers to represent participants at hearings. Provincial legislation forbidding non-lawyers from charging a fee at the Adjudicative and Refugee divisions was accordingly held to be of no effect.



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