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Paramountcy - Hudson (SCC, 2001)

. 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town)

In 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town) (SCC, 2001) the Supreme Court stated a monumental shift towards 'pluralism' in legal paramountcy, whereby laws emanating from different jurisdictional levels (ie. federal, provincial and municipal) should be judged with toleration towards co-existence, not the old 'occupying the field' doctrine. Here, a municipal environmental law restricting pesticide use to non-cosmetic purposes was held to be valid:

B. Even if the Town Had Authority to Enact it, Was By-law 270 Rendered Inoperative Because of a Conflict with Federal or Provincial Legislation?

33 This Court stated in Hydro-Québec, supra, at para. 112, that Oldman River, supra, “made it clear that the environment is not, as such, a subject matter of legislation under the Constitution Act, 1867. As it was put there, ‘the Constitution Act, 1867 has not assigned the matter of “environment” sui generis to either the provinces or Parliament’ (p. 63). Rather, it is a diffuse subject that cuts across many different areas of constitutional responsibility, some federal, some provincial (pp. 63-64).” As there is bijurisdictional responsibility for pesticide regulation, the appellants allege conflicts between By-law 270 and both federal and provincial legislation. These contentions will be examined in turn.

1. Federal Legislation

34 The appellants argue that ss. 4(1), 4(3) and 6(1)(j) of the Pest Control Products Act (“PCPA”), and s. 45 of the Pest Control Products Regulations allowed them to make use of the particular pesticide products they employed in their business practices. They allege a conflict between these legislative provisions and By-law 270. In Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161, at p. 187, Dickson J. (as he then was) for the majority of the Court reviewed the “express contradiction test” of conflict between federal and provincial legislation. At p. 191, he explained that “there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says ‘yes’ and the other says ‘no’; ‘the same citizens are being told to do inconsistent things’; compliance with one is defiance of the other”. See also M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., 1999 CanLII 648 (SCC), [1999] 2 S.C.R. 961, at paras. 17 and 40; Bank of Montreal v. Hall, 1990 CanLII 157 (SCC), [1990] 1 S.C.R. 121, at p. 151. By-law 270, as a product of provincial enabling legislation, is subject to this test.

35 Federal legislation relating to pesticides extends to the regulation and authorization of their import, export, sale, manufacture, registration, packaging and labelling. The PCPA regulates which pesticides can be registered for manufacture and/or use in Canada. This legislation is permissive, rather than exhaustive, and there is no operational conflict with By-law 270. No one is placed in an impossible situation by the legal imperative of complying with both regulatory regimes. Analogies to motor vehicles or cigarettes that have been approved federally, but the use of which can nevertheless be restricted municipally, well illustrate this conclusion. There is, moreover, no concern in this case that application of By-law 270 displaces or frustrates “the legislative purpose of Parliament”. See Multiple Access, supra, at p. 190; Bank of Montreal, supra, at pp. 151 and 154.

2. Provincial Legislation

36 Multiple Access also applies to the inquiry into whether there is a conflict between the by-law and provincial legislation, except for cases (unlike this one) in which the relevant provincial legislation specifies a different test. The Multiple Access test, namely “impossibility of dual compliance”, see P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 1, at p. 16-13, was foreshadowed for provincial-municipal conflicts in dicta contained in this Court’s decision in Arcade Amusements, supra, at p. 404. There, Beetz J. wrote that “otherwise valid provincial statutes which are directly contrary to federal statutes are rendered inoperative by that conflict. Only the same type of conflict with provincial statutes can make by-laws inoperative: I. . Rogers, The Law of Canadian Municipal Corporations, vol. 1, 2nd ed., 1971, No. 63.16” (emphasis added).

37 One of the competing tests to Multiple Access suggested in this litigation is based on Attorney General for Ontario v. City of Mississauga (1981), 1981 CanLII 1860 (ON CA), 15 M.P.L.R. 212 (Ont. C.A.). In that case, decided before Multiple Access, Morden J.A. saw “no objection to borrowing, in this field, relevant principles of accommodation which have been developed in cases involving alleged federal-provincial areas of conflict. In both fields great care is, and should be, taken before it is held that an otherwise properly enacted law is inoperative” (p. 232). He added, at p. 233, the important point that “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. This is not conflict or incompatibility per se” (quoting Township of Uxbridge v. Timber Bros. Sand & Gravel Ltd. (1975), 1975 CanLII 507 (ON CA), 7 O.R. (2d) 484 (C.A.)). See also P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 353 (“In some cases, the courts have held that the provincial statute does not imply full repeal of the municipal power. 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”).

38 Some courts have already made use of the Multiple Access test to examine alleged provincial-municipal conflicts. For example, in British Columbia Lottery Corp. v. Vancouver (City) (1999), 1999 BCCA 18 (CanLII), 169 D.L.R. (4th) 141, at pp. 147-48, the British Columbia Court of Appeal stated that cases pre-dating Multiple Access, including the Ontario Court of Appeal decision in Mississauga, supra, “must be read in the light of [that] decision”.

It is no longer the key to this kind of problem to look at one comprehensive scheme, and then to look at the other comprehensive scheme, and to decide which scheme entirely occupies the field to the exclusion of the other. Instead, the correct course is to look at the precise provisions and the way they operate in the precise case, and ask: Can they coexist in this particular case in their operation? If so, they should be allowed to co-exist, and each should do its own parallel regulation of one aspect of the same activity, or two different aspects of the same activity. [Emphasis added.]

The court summarized the applicable standard as follows: “A true and outright conflict can only be said to arise when one enactment compels what the other forbids.” See also Law Society of Upper Canada v. Barrie (City) (2000), 2000 CanLII 22319 (ON SC), 46 O.R. (3d) 620 (S.C.J.), at pp. 629-30: “Compliance with the provincial Act does not necessitate defiance of the municipal By-law; dual compliance is certainly possible”; Huot v. St-Jérôme (Ville de), J.E. 93-1052 (Sup. Ct.), at p. 19: [translation] “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.”

39 As a general principle, the mere existence of provincial (or federal) legislation in a given field does not oust municipal prerogatives to regulate the subject matter. As stated by the Quebec Court of Appeal in an informative environmental decision, St‑Michel‑Archange (Municipalité de) v. 2419‑6388 Québec Inc., 1992 CanLII 2888 (QC CA), [1992] R.J.Q. 875 (C.A.), at pp. 888-91:

[translation] According to proponents of the unitary theory, although the provincial legislature has not said so clearly, it has nonetheless established a provincial scheme for managing waste disposal sites. It has therefore reserved exclusive jurisdiction in this matter for itself, and taken the right to pass by-laws concerning local waste management away from municipalities. The Environment Quality Act therefore operated to remove those powers from municipal authorities.

According to proponents of the pluralist theory, the provincial legislature very definitely did not intend to abolish the municipality’s power to regulate; rather, it intended merely to better circumscribe that power, to ensure complementarity with the municipal management scheme. . . .

....

The pluralist theory accordingly concedes that the intention is to give priority to provincial statutory and regulatory provisions. However, it does not believe that it can be deduced from this that any complementary municipal provision in relation to planning and development that affects the quality of the environment is automatically invalid.

....

A thorough analysis of the provisions cited supra and a review of the environmental policy as a whole as it was apparently intended by the legislature leads to the conclusion that it is indeed the pluralist theory, or at least a pluralist theory, that the legislature seems to have taken as the basis for the statutory scheme.

In this case, there is no barrier to dual compliance with By-law 270 and the Pesticides Act, nor any plausible evidence that the legislature intended to preclude municipal regulation of pesticide use. The Pesticides Act establishes a permit and licensing system for vendors and commercial applicators of pesticides and thus complements the federal legislation’s focus on the products themselves. Along with By-law 270, these laws establish a tri-level regulatory regime.

40 According to s. 102 of the Pesticides Act, as it was at the time By-law 270 was passed: “The provisions of the Pesticide Management Code and of the other regulations of this Act prevail over any inconsistent provision of any by‑law passed by a municipality or an urban community.” Evidently, the Pesticides Act envisions the existence of complementary municipal by-laws. As Duplessis and Hétu, supra, at p. 109, put it, [translation] “the Quebec legislature gave the municipalities the right to regulate pesticides, provided that the by-law was not incompatible with the regulations and the Management Code enacted under the Pesticides Act”. Since no Pesticide Management Code has been enacted by the province under s. 105, the lower courts in this case correctly found that the by-law and the Pesticides Act could co-exist. In the words of the Court of Appeal, at p. 16: [translation] “The Pesticides Act thus itself contemplated the existence of municipal regulation of pesticides, since it took the trouble to impose restrictions.”

41 I also agree with the Court of Appeal at p. 16, that: [translation] “A potential inconsistency is not sufficient to invalidate a by-law; there must be a real conflict”. In this regard, the Court of Appeal quoted, at p. 17, St-Michel-Archange, supra, at p. 891, to the effect that: [translation] “However, to the extent that and for as long as the provincial regulation is not in force, the municipal by-law continues to regulate the activity, provided, of course, that it complies with all the rules established by the law and the courts concerning its validity.”

42 I note in conclusion that the 1993 revision to the Pesticide Act added a new s. 102 stating:

The Pesticide Management Code and any other regulation enacted pursuant to this Act shall render inoperative any regulatory provision concerning the same matter enacted by a municipality or an urban community, except where the provision

– concerns landscaping or extermination activities, such as fumigation, as defined by government regulation, and

– prevents or further mitigates harmful effects on the health of humans or of other living species or damage to the environment or to property.

This revised language indicates more explicitly that the Pesticides Act is meant to co-exist with stricter municipal by-laws of the type at issue in this case. Indeed, the new s. 102, by including the word “health”, echoes the enabling legislation that underpins By-law-270, namely s. 410(1) C.T.A. Once a Pesticide Management Code is enacted, municipalities will be able to draw on s. 102 in order to continue their independent regulation of pesticides. As Duplessis and Hétu, supra, explain at p. 111: [translation] “the Quebec legislature has again recognized that municipalities have a role to play in pesticide control while at the same time indicating that it intends to make the municipal power subordinate to its own regulatory activity”.