Oct 2005. Municipal World. Vol.115, Iss. 10;  pg. 5, 5 pgs Croplife Canada v. City of Toronto: Ontario Court of Appeal upholds Toronto's Pesticide By-law by Graham Rempe,  Susan Ungar,  Mark Siboni. The Supreme Court of Canada has noted, "The protection of the environment has become one of the major challenges of our time. To respond to this challenge, governments and international organizations have been engaged in the creation of a wide variety of legislative schemes and administrative structures."2 Similarly, that court has observed, "Everyone 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."3 It is not always easy for governments to meet this responsibility, however. While environment may be one of the major challenges today, it was not on the minds of the framers of the Canadian Constitution in 1867, and was not enumerated as a head of power at that time. The jurisdiction to take environmental action has to be found within the existing constitutional framework. As a result, environmental regulation is often met with jurisdictional challenge. Fortunately for the environment in Canada, the Supreme Court of Canada has consistently ruled in favour of legislation that protects the environment whether that legislation is at the federal, provincial, or even municipal level.4 This empowering approach was specifically extended to municipalities in the Supreme Court decision in 114957 Canada Ltée. v. Hudson (Town) (Spraytech),5 a case which upheld a pesticide by-law enacted by the Town of Hudson. The Spraytech decision follows a line of cases in which municipalities have been given greater legislative latitude, as discussed below. Taken in conjunction, increased deference to municipal authority and the consistent support of environmental protection measures may give municipalities a new and logical role in environmental regulation. It may indeed give municipalities a role as, to use the language of the Court of Appeal, a "trustee of the environment."6 Practically, how easy will it be for municipalities to regulate the environment? One recent example of the obstacles to be expected can be seen with the City of Toronto's pesticide by-law, and the legal challenge that followed. Although the pesticide by-law is primarily driven by health-related concerns, the environmental overlap is obvious. It was made an issue in the course of legal proceedings, which recently culminated with the Ontario Court of Appeal confirming the validity of the City's by-law.7 As first reported in Municipal World's March 2004 edition,8 the pesticide by-law was challenged by Croplife Canada, a trade association that includes pesticide producers. One might have supposed, post-Spraytech, that a pesticide by-law would be almost a "given." As in the Spraytech case, the by-law was health-related, and enacted under a general welfare power, in the absence of any specific powers dealing with pesticide use reduction; however, Croplife argued that the by-law was illegally enacted, attempting to distinguish the Spraytech decision. Background On May 23, 2003, the City of Toronto enacted By-law 456-2003, which restricts the non-essential use of pesticides within its territorial jurisdiction. The by-law was scheduled to come into force on April 1, 2004. In June 2003, Croplife Canada challenged the by-law on the basis that it was not a valid enactment under section130 of Ontario's new Municipal Act, 2001. Croplife's application was heard by the Superior Court of Justice on November 10, 2003. On the application, Croplife's principal argument was an attack on municipal environmental power. Croplife's position was that the pesticide by-law was an environmental law, which is the subject of specific provisions within the Municipal Act and the Environmental Protection Act. The court rejected these arguments, probably because the provisions within the Municipal Act deal only with trees and the provisions within the Environmental Protection Act deal only with a permissive ability to enter agreements with other governments in respect of administering environmental matters. Quite clearly, neither one has anything to do with pesticides. The application was dismissed on December 8, 2003. The appeal was heard on November 4, 2004 by Appeal Justices Goudge, Feldman and Lang. The decision of the Court of Appeal was released on May 13, 2005. A number of intervenors represented by the Canadian Environmental Law Association and the Sierra Legal Defence Fund made submissions in support of the by-law on both the application and the appeal. Issues Before Court of Appeal 1) Proper Approach to Interpretation of Non-Sphere Powers Croplife submitted that the general welfare power contained in section 130 of the Municipal Act, 2001 should be interpreted narrowly. Croplife argued that because subsection 9(1) states that the Part II sphere powers of the Act are to be interpreted broadly, the Part III powers, including section 130, are to be interpreted narrowly. Feldman J.A., who wrote the unanimous decision of the court, did not agree. She rejected the more restrictive approach set out in "Dillon's Rule" and in older cases, which held that municipalities must frame their by-laws strictly within the scope delegated to them by the legislature. She stated: In light of the development of the jurisprudence in this area over the last twelve years and the clear adoption by the Supreme Court of a generous approach that accords deference to municipal governments, it would take clear legislative language to return to Dillon's Rule when interpreting those parts of the new Act not contained in Part II. She also noted that it would be a "retrograde step" to interpret the non-sphere powers restrictively, when the goal of modernizing the Act, as stated by the Minister of Municipal Affairs at the time, was to give municipalities in Ontario "the tools they need to tackle the challenges of governing in the 21st century." Feldman J.A. referred to the recent Supreme Court decision in the case of United Taxi Drivers ' Fellowship of Southern Alberta v. Calgary (City).9 In that case, Bastarache J. confirmed that "the evolution of the modern municipality has produced a shift in the proper approach to the interpretation of statutes empowering municipalities" such that "a broad and purposive approach to the interpretation of municipal powers has been embraced.10 Feldman J.A. also made reference to the concurring reasons of Lebel J. in the Spraytech case11 where he stated that restrictive interpretation would have made the general welfare section nothing more than "an empty shell." On this issue, Feldman J.A. concluded: [A]bsent an express direction to the contrary in the Municipal Act, 2001, which is not there, the jurisprudence from the Supreme Court is clear that municipal powers, including general welfare powers, are to be interpreted broadly and generously within their context and statutory limits, to achieve the legitimate interests of the municipality and its inhabitants. 2) Interpretation of Limiting Language in Section 130 Section 130 of the Municipal Act, 2001 authorizes the regulation of matters "not specifically provided for by this Act or any other Act." It differs from the former general welfare power,12 which referred only to "this Act." Croplife argued that the addition of the words "any other Act" precluded the city from regulating pesticides under section 130. Croplife took the position that the regulation of pesticides was a matter that was "specifically provided for" in the provincial Pesticides Act and in the federal Pest Control Products Act (PCPA). They argued that the words "specifically provided for" mean that the subject matter could not be dealt with elsewhere. The city's position was that these limiting words refer to by-law making powers provided in the Municipal Act, 2001 or other legislation. Feldman J.A. confirmed that the limiting language in section 130 refers to by-law making powers, and not merely the subject matter in question. She noted that the predecessor language in section 102 had been interpreted as a "rule against circumvention."13 In other words, a municipality could not circumvent a specific but limited by-law making power by using the general welfare power. In Croplife, Feldman J.A. concluded that the addition of "any other Act" was simply an extension of this rule to prevent circumvention of specific by-law making powers contained in legislation other than the Municipal Act. The key, however, remains the existence of a specific municipal power. If no specific municipal power exists, then the rule has no application. In this case, Feldman J.A. concluded that there is no specific power provided to municipalities to pass the pesticide by-law in either the Municipal Act or elsewhere (including the Pesticides Act). Therefore, the rule against circumvention has no application, and the by-law is a valid enactment under section 130. 3) Conflict with Other Legislation Having found that circumvention was not an issue, the court then considered whether there was any conflict with federal or provincial legislation. This question had been fully canvassed by the Supreme Court of Canada in Spray tech, where the court concluded that there was no conflict. Feldman J.A. followed Spray tech. She also considered the recent conflict test provided by the Supreme Court of Canada in Rothmans, Benson & Hedges Inc. v. Saskatchewan.14 Using that test, the court considered: (a) Is it possible to comply simultaneously with the pesticide by-law and with the PCPA or the Pesticides Act? and (b) Does the pesticide by-law frustrate the purpose of parliament or the legislature in enacting those laws? Feldman J.A. determined that the answer to both of these questions was "no." She thus held that the city's pesticide by-law did not conflict with federal or provincial legislation. Precautionary Principle Finally, Feldman J.A. considered the application of the precautionary principle to the interpretation of the by-law making power in section 130. The precautionary principle is a rule of international law, which states that, where there are grounds for believing that an activity or a product is likely to threaten public health or the environment, lack of full scientific certainty should not be used as a reason for postponing measures that may prevent the materialization of these types of risks. The court did not address the precautionary principle in detail because the motion judge did not refer to it. Feldman J. A. did note, however, that if there was no credible research basis for enacting the by-law and if the municipality didn't otherwise have the power to enact the by-law (which it did in Croplife), the municipality would not be able to use the precautionary principle as authority for upholding the by-law. The court appears to have sent a message that although the precautionary principle is available, it must be based on credible research. Presumably, credible research would be of the type conducted by Toronto Public Health; that is, an extensive review of a recognized, peer-reviewed research. Conclusion The Court of Appeal decision is important for municipalities for a number of reasons. It clarifies municipal authority respecting pesticide by-laws in Ontario. It also provides analysis of the "general welfare section" - section 130 of the Municipal Act, 2001. Finally, it provides further guidance on the manner in which municipal powers are to be interpreted, particularly in light of the recent overhaul of Ontario's Municipal Act, 2001. In upholding the City of Toronto's pesticide by-law, the Court of Appeal followed the jurisprudence from the Supreme Court of Canada recognizing that municipal enabling legislation should be construed in a generous and benevolent manner. The court confirmed that this rule of interpretation should be applied with respect to any municipal by-law making powers, not simply sphere powers in the new Municipal Act, 2001. In so doing, the Court of Appeal has added its voice to the consensus among Canadian legislators and the courts that the modern municipality requires effective legislative tools in order to "tackle the challenges of governing in the 21st century." In so doing, the court has also reinforced the notion that environmental laws are tools available to municipalities to meet that challenge. [Footnote] 2 Friends of the Oldman River v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at pp. 16-17. 3 Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 at p. 1075. 4 Friends of the Oldman River, supra; Ontario v. Canadian Pacific Ltd., supra; R. v. Hydro Quebec, [1997] 3 S.C.R. 213; 114957 Canada Ltee. v. Hudson (Town), [2001] 2 S.C.R. 241 (Spraytech). 5 supra, footnote 4. 6 See Scarborough v. REF Homes Ltd. ( 1979), 9 M.P.L.R. 255 (O.C.A.), at p. 257; see also British Columbia v. Canadian Forest Products Ltd., [2004] S.C.J. No. 33 at par. 73, and Spraytech at par. 27. 7 A further appeal to the Supreme Court of Canada is possible, but would require leave. As at the date of writing, leave has not been sought. 8 Croplife v. City of Toronto: Ontario Superior Court breathes life into Toronto's Pesticide By-law. Municipal World, March 2004, p. 25. 9 [2004] 1 S.C.R. 485. 10 Ibid, at par. 6. 11 114957 Canada Ltée v. Hudson (Town), [2001] 2 S.C.R. 241. The Supreme Court held that the Town of Hudson in Quebec had authority under its general welfare power to enact a similar pesticide by-law. 12 Municipal Act, R.S.O. 1990, c. M.45, s. 102. 13 See for example, Greenbaum v. City of Toronto, [1993] 1 S.C.R. 674. 14 [2005] S.C.J. No. 1. [Author Affiliation] Graham Rempe, Susan Ungar and Mark Siboni1 [Photograph] Left to right: Mark Siboni, Susan Ungar and Graham Rempe at Osgoode Hall. The authors are in-house counsel with the City of Toronto and represented the city before the Court of Appeal. The views expressed in this article are their own. [Author Affiliation] 1 The authors were counsel for the City of Toronto at the Court of Appeal. The opinions they express are their own. Copyright Municipal World Oct 2005