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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
• 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
• 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
National Defence
Income Tax
Local Works and
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:
municipal institutions lack constitutional status;
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,
“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.
(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:
the statute entrenches on the core of a power of
the other government, and
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
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), [2015] 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), [2011] 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), [2001] 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
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
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
• 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
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
• 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
• 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
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)
• 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]
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.