ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NOS.: CV-09-379099
CV-10-406007
DATE: 20120810
BETWEEN: (Court File No.: CV-09-379099)
GREATER TORONTO APARTMENT ASSOCIATION
Applicant
– and –
CITY OF TORONTO
Respondent
Counsel:
Jeff G. Cowan & Raivo Uukkivi, for the Applicant
Ansuya Pachai, for the Respondent
APPLICATION UNDER subsection 214(1) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Schedule A, as amended, and Rule 14.05(3) of the Rules of Civil Procedure
BETWEEN: (Court File No.: CV-10-406007)
373041 ONTARIO LIMITED
Applicant
- and -
CITY OF TORONTO
Respondent
APPLICATION UNDER Rule 14.05(3)(d) and (h) of the Rules of Civil Procedure, made under the Courts of Justice Act, R.R.O. 1990, Reg. 194
Counsel:
Pamela Miehls & Jody E. Johnson, for the Applicant
Ansuya Pachai, for the Respondent
HEARD: June 25 & 26, 2012
LEDERER J.:
Introduction
[1] The City of Toronto wished to rationalize and re-arrange the basis upon which it provided and paid for the collection and disposal of solid waste for residential land uses. It determined to rationalize its systems by putting in place processes which, it expected, would lead to the diversion of 70% of the waste that had previously been disposed of in landfills. It sought to re-arrange the funding used to pay for this service by ceasing to rely on the revenue obtained through the property tax scheme and, instead, charging a user fee. As a catalyst for its diversion program, it proposed to utilize money, collected through property tax, which, in previous years, had been set aside to pay for the collection and disposal of waste, as a fund from which it would deliver “rebates”, what counsel for the City referred to as “grants”, to the owners of residential properties if they achieved the levels of diversion set by the applicable by-law.
[2] This case deals with two applications: one brought by the Greater Toronto Apartment Association, a group of apartment owners; and, the second, by 373041 Ontario Limited, the owner of three multi-residential buildings. Together, the applications seek an order quashing the sections of the by-law which put the collection of the fee and the “rebate” plan in place as outside and beyond the authority of the City.
[3] The lesson of modern statutory interpretation is to look beyond a simple reading of the words, to understand them in the context of the purpose of the legislation. This is reflected in a new approach in the legislation that forms the authority under which municipalities act. It is trite to say the municipalities are creatures of statute. They have no constitutional standing other than as legislative emanations of the provinces. In the past, legislation providing the jurisdiction for municipalities to act tended to be direct and specific in the authority they provided. With the passage and proclamation of the Municipal Act, 2001, S.O. 2001, c. 25, s. 9 and s. 10, the Legislature recognized the importance and broad role of municipalities in present-day Canadian society. These were repeated in the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, at s. 7 and s. 8:
Powers of a natural person
- The City has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act.
Broad Authority
(1) The City may pass by-laws respecting the following matters:
Services and things that the City is authorized to provide under subsection (1).
[4] Nothing like this existed in the prior legislation.
[5] What does this broader approach say about the role of the courts in determining whether and when the by-laws and programs of municipalities should be set aside? Does this broader approach lead to a more flexible understanding of the authority the legislation provides to municipalities? Does this suggest that the courts should not narrowly-interpret the words of the legislation to conclude whether the by-law is within or outside the jurisdiction of the municipality? Would it be better for the court to work with the legislation to determine whether, and if so, the basis on which the municipality can be found to have acted within its authority?
Background
[6] The disposal of waste produced by the residents of the City of Toronto has been an issue for both the municipal council and the provincial government for many years. The work leading to the program and by-law that is the subject of this application began on January 29, 2001. On that day, the City of Toronto created the Waste Diversion Task Force 2010. Its mandate was to develop a comprehensive waste diversion plan. It was asked to design a “made in Toronto solution” for meeting prescribed diversion targets, being:
• 30% diversion for household waste by 2003;
• 50% by 2006; and,
• 100% by 2010. [1]
[7] Both in the report and its appendices, user fees were considered. It was noted that:
In some US cities where households pay separately for garbage pickup, the fee structure has been found to be an effective tool for getting residents to recycle. Many cities charge for garbage removal but not for recycling, and the cost difference provides an incentive for people to change their behaviour.
Quantity based user fees charge residents for garbage collection according to the volume of waste they generate. This approach is a policy option for the city of Toronto to consider. [2]
[8] This was followed by the “Multi-Year Business Plan 2005”, which provided an assessment of the increased cost associated with the implementation of diversion programs in company with annual inflation and expected population growth. It observed that: “Enforcement of mandatory recycling is required if the city is to meet its waste diversion goals”. The Plan went on: “The intent of the enforcement is to change the behaviour of those who blatantly refuse to recycle”. It concluded: “Enforcement alone will not change the behaviour in the multiple household location” [ sic ]. The biggest impact enforcement will have on diversion will be in conjunction with the implementation of a pay-as-you-throw program.” [3]
[9] The work continued. The report which appears to have been the immediate catalyst for the amendments to the applicable by-law, which are now being challenged, was delivered to the Executive Committee of Council by staff of the City on May 14, 2007. It dealt with and considered the two aspects of the program that are, by these applications, challenged. Under the heading “Financial Impact”, it notes:
In order to assist in meeting the waste diversion objectives, it is proposed that the cost of the Solid Waste Management program be removed from the broad property tax base and instead, the City implement a volume-based, solid waste rate structure better related to a property’s residual solid waste needs. A volume-based rate structure would provide individuals with the opportunity and means to reduce the generation of waste and in doing so manage their household expense. [4]
[10] Under the heading “Short-Term-Grant Program”, the report says:
In the short-run, the City has the ability in the current legislation to provide a grant program whereby every residential property could be provided a flat rate rebate to offset the $183.5 million in taxes collected as the solid waste portion of the budget. The use of rebates does not require any legislative or regulatory change, with the exception of a minor regulatory change to allow the City to add outstanding solid waste fees to the property tax bill and collect them as a priority lien. The rebates would be included on a proposed utility style bill which would include both a water billing and a solid waste billing. [5]
(Full decision text continues exactly as provided above, including all paragraphs [11]–[76], judgment section, and footnotes, unchanged except for formatting.)
JUDGMENT
LEDERER J.
Released: 20120810