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The Voice of Municipalities within Federal and Provincial Legislative Powers John Mascarin 2017 ROMA Annual Conference January 30, 2017 Wind Farms Property Standards Cell Phone Towers Outline • Canadian Constitutional Context • Constitutional Law - Interpretive Doctrines • Case Study • Canada Post Corporation v. Hamilton (City) – Ont. S.C.J. and Ont. C.A. • Conclusions Constitutional Context Constitution Act, 1867 (formerly BNA Act) • provided for the union of three colonies into a federal state based on a British parliamentary system • distribution of powers between the central Parliament and the provincial legislatures • no independent constitutional protection for municipal governments • municipalities placed under the purview of the provinces – s. 92(8): “Municipal Institutions in the Province” Constitutional Context • the Constitution Act, 1867 sets out the division of powers between the federal Parliament and the provincial legislatures (which includes powers that the provinces have delegated to municipalities) • section 91 lists the subject matters over which the federal Parliament has “exclusive” power and section 92 sets out the heads of authority that the legislatures have “exclusive” power to legislate • even though the powers are “exclusive”, a degree of overlap is inevitable in some laws Constitutional Context Division of Powers • sections 91-92 list the subject matters assigned to the two superior levels of government: Federal Powers (s. 91) Provincial Powers (s. 92) Criminal Law Hospitals/Health National Defence Municipalities Income Tax Local Works and Undertakings Trade and Commerce Property and Civil Rights in the Province Constitutional Context • Louis Silva, “Escaping from the Straight Jacket that Baffled Houdini: An Analysis of the Myths and Realities of Empowering Toronto through a City Charter” (July 2005) “Contrary to a common misconception, municipalities are not an order of government within Canada like the national or provincial orders of government. Even though municipalities behave like other levels of government since they also include a governance structure comprised of elected officials with the ability to levy taxes, they are just one provincial responsibility among a list of other responsibilities assigned to provincial governments under the Canadian Constitution. This means that any Canadian municipality – whether it is a city, a county, a hamlet, a parish, a town, or a village – is a corporation established by the province.” Constitutional Context • R. v. Greenbaum (1993), 14 M.P.L.R. (2d) 1 (S.C.C.) per Iacobucci J. [at para. 20]: “Municipalities are entirely creatures of provincial statutes. Accordingly, they can only exercise those powers which are explicitly conferred upon them by a provincial statute.” Constitutional Context • East York (Borough) v. Ontario (1997), 41 M.P.L.R. (2d) 137 (Ont. Gen. Div.): “four principles which apply to the constitutional status of municipal governments: (i) municipal institutions lack constitutional status; (ii) municipal institutions are creatures of the legislature and exist only if provincial legislation so provides; (iii) municipal institutions have no independent autonomy and their powers are subject to abolition or repeal by provincial legislation; (iv) municipal institutions may exercise only those powers which are conferred upon them by statute” Constitutional Context Paul Perell, “Ten Commandments & Attacking Municipal By-laws” 26 Advocates Quarterly 177 at 181: (2) A By-law Shall Not Contravene the Constitution Act, 1867 “Under the Constitution Act, municipalities are creatures of the provinces and just as a province does not have universal power of legislation, its creatures cannot have any powers greater than that of the province. Where a province or municipality purports to exercise legislative authority beyond that provided under the constitution, the legislative act is ultra vires.” Interpretive Doctrines • in order to resolve issues of overlap, the courts rely on several different analytical approaches or “doctrines” to determine the validity, applicability or operability of the legislation in question: • pith and substance doctrine • double aspect doctrine • ancillary powers doctrine • doctrine of interjurisdictional immunity • paramountcy doctrine Pith and Substance Doctrine • there is no single test to determine the pith and substance of legislation (i.e. true meaning or dominant feature); approach must be flexible • courts may consider both intrinsic evidence (evidence within the text) and extrinsic evidence (evidence outside of the text, such as minutes of parliamentary debate) • courts will consider: • the purpose of the enacting body • the legal effect of the law • once the pith and substance of the law has been established, the law’s “subject matter” must be determined Ancillary Powers Doctrine • the constitutionality of both an entire law and only a particular provision of a law may be challenged • every provision of a law has its own pith and substance • even if a particular provision is outside of the enacting government’s constitutional power, the provision may still be saved if it is sufficiently connected to the law achieving its objectives Double Aspect Doctrine • a matter may have both federal and provincial aspects • the federal Parliament and the provincial legislatures may both legislate in relation to a matter, as long as they are addressing different aspects of it • the double aspect doctrine allows both the federal and provincial governments to enact laws with the same subject matter as long as: • each level of government has the power to enact its respective law, and • the two laws do not conflict with one another Paramountcy Doctrine • if there is a conflict between the two laws, the conflict must be resolved in favour of the federal legislation • the federal law will prevail and the provincial law will be inoperative to the extent that it conflicts with the federal law • a conflict exists when: • it is impossible to comply with both laws (operational conflict), or • if it is technically possible to comply with both laws, but the operation of the provincial law has the effect of frustrating the federal purpose (frustration) Paramountcy Doctrine Municipal Act, 2001 Conflict between by-law and statutes, etc. 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. Interjurisdictional Immunity • a statute or action by one level of government cannot impair the “core” of the other level of government’s head of power • analysis will seek to determine whether: (1) the statute entrenches on the core of a power of the other government, and (2) the effect of the statute on the protected power is sufficiently serious to trigger the doctrine • SCC: this doctrine should be applied with restraint and generally be reserved for situations already covered by precedent (i.e. the “core” of the head of power has already been articulated as well as what constitutes as impairment) Additional Interpretative Concepts Cooperative Federalism • a “network of relationships” that supports the concept of a “continuous redistribution of powers and resources without recourse to the courts or the amending process” which recognizes overlapping jurisdiction • Quebec (Attorney General) v. Canada (Attorney General),  1 S.C.R. 693, at para. 17, citing P. W. Hogg, Constitutional Law of Canada • flexibility and cooperation “cannot override or modify the separation of powers” – “the constitutional boundaries that underlie the division of powers must be respected.” • Reference re Securities Act (Canada),  3 S.C.R. 837 Additional Interpretative Concepts Principle of Subsidiarity • “... 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...” • 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town),  2 S.C.R. 241 Case Study Case Study Canada Post Corp. v. Hamilton (City) • Canada Post is a federal Crown corporation responsible for making regulations “governing the design, placement and use of any receptacle … intended for the posting …or delivery” of mail, pursuant to the Canada Post Corporation Act • Mail Receptacles Regulation: Canada Post “may install … in any public place, including a public roadway, any receptacle … to be used for the collection, delivery or storage of mail” and no person may relocate or remove a mail receptacle without Canada Post’s prior authorization • Canada Post is required to “have regard to … the need to conduct its operations on a self-sustaining financial basis while providing a standard of service that will meet the needs of the people of Canada” Case Study • Canada Post announced that it would restructure its mail delivery services from door-to-door delivery to community mailboxes to build a sustainable fiscal delivery model • City council passed a by-law that regulated the installation of equipment on municipal road allowances: • the by-law: • established a regulatory regime giving the City control over the installation of equipment (including community mailboxes) on its road allowances • imposed a moratorium and required Canada Post to pay an upfront fee for each of its first 500 community mailbox permits Case Study • Canada Post challenged the validity of the City’s by-law on both constitutional and other grounds • although not expressly identified, the application appears to have been brought pursuant to s. 273 of the Municipal Act, 2001 as an application to quash the by-law • Ontario Superior Court of Justice (Whitten J.) held that the by-law was inoperative and invalid as it applied to community mailboxes on each and every ground alleged by Canada Post in its application Case Study Ontario Superior Court of Justice • Whitten J. held that the City’s by-law: • was uncertain because it was too vague • fell outside of the City’s jurisdiction and was of no effect pursuant to s. 14 of the Municipal Act, 2001 • was ultra vires the City’s legislative authority given that, in pith and substance, it sought to control the location of community mailboxes 26 Case Study Ontario Superior Court of Justice • conflicted with Canada Post’s purpose and was, therefore, inapplicable to the Crown corporation by operation of the doctrine of interjurisdictional immunity • was inapplicable to Canada Post on the basis of Crown immunity, since it is a federal agent • was inoperative vis-à-vis Canada Post by virtue of the doctrine of paramountcy 27 Case Study Ontario Court of Appeal • the City appealed to the Court of Appeal which dismissed the appeal on the basis that the by-law: • was intra vires the City’s legislative authority to enact, as the by-law’s pith and substance was the regulation of municipal rights of way for the protection of the physical safety of persons and property but • was invalid as it applied to Canada Post because it conflicted with the Canada Post Corporation Act which granted Crown Post the sole decision-making power over the location of mail receptacles Case Study Ontario Court of Appeal • the trial judge incorrectly determined that the pith and substance of the by-law was not within a municipal power – however, it impacted a federal power • the City’s by-law did not prohibit community mailboxes or restrict their placement in a way that amounted to a prohibition • even though Canada Post was directly mentioned in the moratorium provision, there was a close enough link between the provision and the permitting process so that the provision was “in the service of the permitting process” Case Study Ontario Court of Appeal • in addition, the Court of Appeal held that: • it was unnecessary to answer the question of Crown immunity given its conclusion on the doctrine of paramountcy • the doctrine of interjurisdictional immunity did not apply since this was a novel situation for the application of the doctrine • the by-law was not vague in view of the standards contained in the City’s manual that accompanied the by-law Case Study Ontario Court of Appeal • just because one level of government has the authority to legislate with respect to a subject matter does not mean the other level of government does not have the authority to legislate with respect to another aspect of the same subject matter for a different purpose • while the by-law was within the City’s constitutional authority to enact, it still could not conflict with or frustrate the very purpose of federal legislation (i.e. Canada Post Corporation Act and Mail Receptacles Regulation) Conclusions • municipalities are not constitutional governments and are subservient to their federal and provincial counterparts • when enacting a by-law, council members must consider: • the link between the by-law and municipality’s powers as delegated under the provincial statute (such as the Municipal Act, 2001, Planning Act, etc.) • whether the by-law overlaps with federal or provincial heads of powers or jurisdiction • consider s. 14 of the Municipal Act, 2001 for guidance • division of powers analysis is complex – one court may take one position, and another court a different position ~ fin ~ John Mascarin [email protected] 416.865.7721 This presentation may contain general comments on legal issues of concern to organizations and individuals. These comments are not intended to be, nor should they be construed as, legal advice. Please consult a legal professional on the particular issues that concern you.