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Municipal - By-laws

. Croplife Canada v. Toronto (City)

In Croplife Canada v. Toronto (City) (Ont CA, 2005) the Court of Appeal considered the 'rule against circumvention' in the then-new Municipal Act, 2001:
(2) Interpreting the phrase "matters not specifically provided for in this Act or any other Act"

[38] In Spraytech, supra, a pesticide by-law with very similar aims and objectives was found to be within the ambit of the general welfare power in s. 410(1) of the Cities and Towns Act, which was the province of Quebec's counterpart to s. 102 of the old Ontario Municipal Act. The question, then, is: Does the wording of s. 130 of the new Act, properly interpreted, make the result in Spraytech inapplicable to the case at bar? To answer that question, I must consider the differences between s. 130 and its predecessor provision.

[39] Section 102 of the old Municipal Act provided:
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.
(Emphasis added)

[40] The appellant acknowledges that, as it was worded in s. 102, the phrase "in matters not specifically provided for by this Act" articulated a "rule against circumvention". That is, the phrase articulated a rule prohibiting a municipality from making by-laws using the s. 102 general welfare power to circumvent restrictions on its ability to enact by-laws regarding a particular subject matter, contained in specific powers in other parts of the old Act. To formulate a simple example, if a specific provision elsewhere in the old Municipal Act provided that a municipality could pass by-laws related to pool safety, but not height limits for diving boards, a municipality could not then pass a by-law purporting to limit the height of diving boards under s. 102.

[41] Another example of this rule can be found in the Supreme Court decision in Greenbaum. In that case, the court held that Metropolitan Toronto could not use its general welfare power in s. 102 of the old Municipal Act to enact a by-law prohibiting the sale of goods on Metro sidewalks except to licensed owners or occupiers of abutting property. The court's reasoning was that there were other specific sections of the old Act that authorized by-laws for the purposes of controlling sidewalk obstructions, street vending and public nuisances. If those specific powers did not give Metro the authority to enact the impugned by-law, then the municipality could not find that authority in the general welfare section. [page375]

[42] The appellant submits that the rule against circumvention is now codified in Part II of the Municipal Act, 2001 in s. 15(1), which by its terms, relates only to ss. 8 and 11. Section 15(1) provides:
15(1) If a municipality has power to pass a by-law under section 8 or 11 and also under a specific provision of this or any other Act, the power conferred by section 8 or 11 is subject to any procedural requirements, including conditions, approvals and appeals, that apply to the power and any limits on the power contained in the specific provision.
[43] The appellant argues that the words in s. 130 that provided for the rule against circumvention in the old s. 102, must now have a different meaning, since the only rule against circumvention in the new Act is in s. 15(1).

[44] The appellant also submits that the addition of the words "or any other Act" to the words "matters not specifically provided for by this Act" indicates a change in meaning. The appellant says that the phrase that was the rule against circumvention of more restrictive by-law making powers elsewhere in the Act now means that where the subject matter of the by-law is already the subject of federal or provincial legislation, the municipality is precluded from legislating in respect of that subject matter. I will discuss this argument when dealing with issue (3), below.

[45] The City's position is that the phrase "matters not specifically provided for by this Act or any other Act" in s. 130 is an extended version of the rule against circumvention from the old Act. The motion judge agreed with this interpretation and so do I. I do so for three reasons.

[46] The first is that the legislature has repeated the same phrase from the former s. 102, merely adding the four additional words "or any other Act". Citing Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths Canada Ltd., 2002) at p. 395, Bastarache J. in United Taxi, supra, at para. 11, stated: "It is well established that the legislature is presumed not to alter the law by implication ... Rather, where it intends to depart from prevailing law, the legislature will do so expressly." The use in s. 130 of language identical to s. 102, with the addition of the words "or any other Act", is not enough to signal a change in meaning. Rather, it simply indicates an extension of the same rule against circumvention that existed in the old Municipal Act to by-law making powers granted to municipalities in acts other than the Municipal Act, 2001.

[47] Consistent with this interpretation, the respondent points out that with the passage of the new Act, the legislature transferred some by-law making powers out of the old Municipal Act into other provincial acts such as the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, s. 7.1, and the Fluoridation Act, R.S.O. 1990, c. F.22, s. 2.1. [page376] See Municipal Act, 2001, supra, at ss. 475, 476. Some of these powers may well relate to matters of health and safety.

[48] Second, I reject the appellant's argument that s. 15(1) is the only "rule against circumvention" in the new Act, and that therefore the court must adopt a radically different interpretation of the limiting words in s. 130. The purpose of s. 15(1) is to ensure that, where the spheres of jurisdiction in s. 11 or the natural person powers in s. 8 overlap with any specific power in Part III, the procedural or other restrictions in the specific power will be respected. There is no indication that this section in any way replaces the limitation that has always been part of the general welfare power. If the appellant's argument were correct, it would mean that there no longer is any language in s. 130 that specifically addresses how the general welfare power is to be interpreted in relation to other powers in the Act. Again, that would represent a significant and unworkable shift in the meaning of s. 130, when compared to the interpretation given to s. 102 of the old Municipal Act by Iacobucci J. in Greenbaum, supra.

[49] Third, the clearest and most logical interpretation of the phrase "matters not specifically provided for in this Act or any other Act" is its historical meaning, which is the rule against circumvention. It is to be noted that this rule goes back at least as far as the 1937 case of Morrison v. Kingston (City), 1937 CanLII 131 (ON CA), [1938] O.R. 21, 69 C.C.C. 251 (C.A.), which was cited by Iacobucci J. in Greenbaum, supra. In Morrison, Middleton J.A. interpreted essentially the same language as follows (at p. 26 O.R., p. 255 C.C.C.):
A third limitation is, I think, to be found in the express enactments of the Municipal Act. Very few subjects falling within the ambit of local government are left to the general provisions of sec. 259 [the general welfare power at that time]. Almost every conceivable subject proper to be dealt with by a municipal council is specifically enumerated in the detailed provisions in the Act, and in some instances there are distinct limitations imposed on the powers of the municipal council. These express powers are, I think, taken out of any power included in the general grant of power by sec. 259.
[50] In other words, previously, when there was no other specifically related by-law making power elsewhere within the old Municipal Act, then a matter could be made the subject of a by-law under s. 102 or its predecessors. Under s. 130 of the Municipal Act, 2001, a matter can be regulated by by-law so long as there is no other specifically related by-law making power elsewhere in the new Act or in any other Act.
. 30 Bay ORC Holdings Inc. et al. v. City of Toronto

In 30 Bay ORC Holdings Inc. et al. v. City of Toronto (Div Ct, 2021) the Divisional Court held that normal principles of statutory interpretation also apply to municipal by-laws:
[49] Determining the scope of Council’s discretion to approve grants under the 2012 By-law is, first and foremost a matter of statutory interpretation. The modern approach to statutory interpretation was set out in Rizzo & Rizzo Shoes (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, that is, “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” The same principles apply when interpreting a municipal by-law, Montreal (Ville) v. 2952-1366 Quebec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141.
. 2222868 Ontario Inc. v. Grimsby (Town)

In 2222868 Ontario Inc. v. Grimsby (Town) (Ont CA, 2020) the Court of Appeal set out some basics on the interpretation of municipal by-laws:
[32] It is helpful to first set forth the legal principles applicable to the interpretation of a by-law.

• The interpretation of a by-law is a question of law, reviewable on a correctness standard: Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 494, 336 O.A.C. 373, at para. 22.

• A zoning by-law is the end-product in law of the planning process legislated by the Planning Act: Rotstein v. Oro-Medonte (Township), 2002 CanLII 25100 (ON SC), 2002 CarswellOnt 4411 (S.C.), at para. 22.

• The modern principles of statutory interpretation apply equally to the interpretation of a municipal by-law and statute. Thus, the interpretation of a by-law involves consideration of the text of the by-law, the intent of municipal council, and the purpose and scheme of the by-law as a whole: Clarington, at para. 17.

• Official Plans are not statutes: Bele Himmell Investments Ltd. v. Mississauga (City), 1982 CarswellOnt 1946 (Div. Ct.), at para. 22. The purpose of an Official Plan is to set out a framework of “goals, objectives and policies”. It establishes the broad principles that are to govern the municipality’s land use planning generally: Goldlist Properties Inc. v. Toronto (City), 2003 CanLII 50084 (ON CA), 232 D.L.R. (4th) 298 (Ont. C.A.), at para. 49.

• As by-laws are the means by which Official Plans are implemented, the terms of an Official Plan aid in the contextual interpretation of the by-law: Clarington, at para. 21.

• Under the Building Code Act, 1992, S.O. 1992, c. 23, an applicant for a building permit must be in compliance with the applicable By-law. Unambiguous by-laws provide clarity to the Chief Building Official and to a landowner.
. Clublink Corporation ULC v. Oakville (Town)

In Clublink Corporation ULC v. Oakville (Town) (Ont CA, 2019) the Court of Appeal considers the standard to be applied when considering whether a by-law is ultra vires:
[34] Municipalities are creatures of provincial legislation and a municipality’s law-making authority is limited to the powers conferred on it by the provincial legislature: see Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732 (CanLII), at para. 1; Friends of Lansdowne Inc. v. Ottawa (City), 2012 ONCA 273 (CanLII), 110 O.R. (3d) 1, at para. 12. The issue of whether the passing of a particular by-law is within a municipality’s power is therefore, at its core, a question of statutory interpretation. Applying the modern approach to statutory interpretation, “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of [the legislator]”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, at para. 26.

[35] The interpretive exercise must, however, also be attentive to the important role of municipal governments. As Feldman J.A. observed in Croplife Canada v. Toronto (City) (2005), 2005 CanLII 15709 (ON CA), 75 O.R. (3d) 357 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 329, the Municipal Act is intended to give municipalities in Ontario “the tools they need to tackle the challenges of governing in the 21st century” and, as a consequence, municipal powers are to be “interpreted broadly and generously within their context and statutory limits, to achieve the legitimate interests of the municipality”: at paras. 34, 37; see also 1298417 Ontario Ltd. v. Lakeshore (Town), 2014 ONCA 802 (CanLII), 122 O.R. (3d) 401, at para. 76, leave to appeal refused, [2015] S.C.C.A. No. 43. The provincial legislator has made clear that it intends for municipal powers to be interpreted broadly by expressly stating as much at s. 8 of the Municipal Act.

[36] Further, as I mention above, municipal by-laws and resolutions benefit from a presumption of validity. The onus is on the applicant to prove that the enactment falls outside of the municipality’s powers: Ontario Restaurant, at para. 3. Courts require a “clear demonstration” before concluding a municipality’s decision was made without jurisdiction: Friends of Lansdowne, at para. 14.

[37] In assessing whether a municipality has acted within their statutory authority, it is necessary to have regard both to the stated purpose and actual substance of the impugned instrument. This point was made by Doherty J.A. in Barrick Gold Corp. v. Ontario (Minister of Municipal Affairs and Housing) (2000), 2000 CanLII 16929 (ON CA), 51 O.R. (3d) 194 (C.A.), at para. 59:
Municipalities must, however, do more than conform with the strict letter of the law in order to remain within the boundaries of their lawmaking powers. As indicated in R. v. Greenbaum, supra, the purpose of the provincial enabling legislation also constrains the municipal lawmaking power. In Rogers, The Law of Canadian Municipal Corporations, supra at 1021, it is put this way:
A by-law which is ostensibly within the authority of a council to enact may be set aside or declared invalid if its real purpose and attempt is to accomplish by indirect means an object which is beyond its authority. ... Hence, the court must always ‘in examining a by-law, see that it is passed for the purpose allowed by a statute and that such purpose is not resorted to as a pretext to cover an evasion of a clear statutory duty’.
[Emphasis in original.]
[38] I appreciate that Barrick Gold was decided prior to the enactment of the Municipal Act. In my view, however, the foregoing remains an accurate statement of the law. It follows logically from the principle that municipal powers find their source in statutes that are interpreted purposively applying the modern approach. Where the legislator has evidenced its intention to set limits on otherwise expansive municipal authority, municipalities cannot rely on broad grants of power to escape these constraints.


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