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Highways - HTA Paramountcy re Bylaws [HTA s.195]. R. v. Pahal
In R. v. Pahal (Ont CA, 2023) the Court of Appeal considered a paramountcy provision in the HTA that 'deems repeal' of "inconsistent" municipal by-laws:(iii) Section 195 of the HTA
[23] Section 195 of the HTA reads as follows:Inconsistent by-laws deemed repealed
195 (1) If a provision of a municipal by-law passed by the council of a municipality or a police services board for,
(a) regulating traffic on the highways;
(b) regulating noise, fumes or smoke created by the operation of motor vehicles on the highways; or
(c) prohibiting or regulating the operation of motor vehicles or any type or class thereof on the highways,
is inconsistent with this Act or the regulations, the provision of the by-law shall be deemed to be repealed upon the inconsistency arising. ....
[31] To assess the question whether the 2018 Amending By-law is inconsistent with s. 177(3) of the HTA, the Justice of the Peace focused primarily on the following statements in 114957 Canada Ltee (Spraytech) v. Hudson (Town), 2001 SCC 40, [2001] S.C.R. 241, at paras. 37 and 38:[A] by-law is not void or ineffective merely because it “enhances” the statutory scheme of regulation by imposing higher standards of control than those in the related statute. [Citation omitted.] … The municipality retains its authority as long as there is no conflict with provincial legislation. It may be more demanding than the province, but not less so. [Citation omitted.] A finding that a municipal by-law is inconsistent with a provincial statute (or a provincial statute with a federal statute) requires, first, that they both deal with similar subject matters and, second, that obeying one necessarily means disobeying the other. [Emphasis added.]
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[46] I accept the test adopted in the courts below for making a finding of inconsistency under s. 195 of the HTA:A finding that a municipal by-law is inconsistent with a provincial statute … requires, first, that they both deal with similar subject matters and, second, that obeying one necessarily means disobeying the other: 114957 Canada Ltee (Spraytech), at para. 38. See also Croplife Canada v. Toronto (City), 2005 CanLII 15709 (ON CA), 75 O.R. (3d) 357, at para. 63. [47] Given my conclusion that s. 177(3) of the HTA does no more than create an exception to the prohibition in s. 177(2) against commercial solicitation from motor vehicle occupants while on a roadway, I see no basis for holding that Waterloo’s 2018 Amending By-law is inconsistent with s. 177(3). Even assuming they deal with the same subject matter, obeying one does not necessarily mean disobeying the other.
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