ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-459825
DATE: 20121130
B E T W E E N:
HUGHES ENG, BARBARA CHIU, PETER TAM and JACKY MA
Applicant
- and -
THE CITY OF TORONTO
Respondent
Andrew J. Roman and Andy Chan, for the Applicants
Ansuya Pachai, for the Respondent
HEARD: November 5, 2012
SPENCE J.
REASONS FOR DECISION
[ 1 ] The Applicants seek a declaration under Rule 14.05(3) (d), (g) and (h) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 that By-law No. 12347-2011 of the City of Toronto (the “By-law”) is ultra vires and of no force and effect. The By-law provides, in section 3, that “no person shall possess, sell or consume shark fin or shark fin food products within the city of Toronto”.
[ 2 ] The Applicants contend that the By-law is ultra vires because it lacks a proper purpose.
[ 3 ] The first recital in the Preamble to the By-law states that “the consumption of shark fin and shark fin products may have an adverse impact on the health, safety and well-being of persons and on the economic, social and environmental well-being of the City of Toronto”. The City contends that the By-law relates to these two matters and therefore has a proper purpose under the City of Toronto Act , 2006, S.O. 2006, c. 11, Sched. A (the “Act”).
[ 4 ] The Applicants also contend that the By-law is constitutionally invalid because the province lacks the authority to delegate to a municipality the authority to pass by-laws to protect national resources that never come within provincial waters, such as sharks.
Background Facts
[ 5 ] There has been widespread media coverage of incidents of sharks being finned alive and then thrown back into the sea to die, merely to collect their fins, the most valuable part of the shark.
[ 6 ] Shark fins are usually sold in frozen or dried form. They are used as one ingredient in shark fin soup, a traditional Chinese delicacy, served at weddings or on other special occasions.
[ 7 ] The By-law was enacted by City Council (the “Council”) on October 25, 2011. The By-law came into force on September 1, 2012.
[ 8 ] The City provided an opportunity for input about the By-law at a Committee meeting on September 9, 2011 at which time the Committee received 10 communications and heard 37 deputations. The second opportunity was a further Committee meeting on October 13, 2011 at which time the Committee received 34 written communications and heard 54 deputations. The third opportunity was at Toronto City Council meetings on October 24 and October 25, 2011, at which it received 13 additional communications, 5 of which were petitions with approximately 16,000 signatures supporting the by-law.
[ 9 ] In addition to hearing from those like the Applicants who sell, purchase or consume shark fins, Committee and Council heard from educators, food industry specialists, professional and recreational scuba divers, school children and their parents, lawyers, environmentalists, animal welfare groups, naturalists, conservationists, and concerned members of the public.
[ 10 ] The legislative record is one of sharp divide and vigorous debate on the various social, environmental, economic and health issues considered by Toronto City Council. Council heard from all sides, and not just from those who supported the By-law.
[ 11 ] As of August 30, 2012, at least six other Canadian municipalities had enacted by-laws substantially similar to Toronto's By-law.
Law and Analysis
[ 12 ] It is not disputed that a municipal by-law, to be valid, must have a proper purpose, i.e. a purpose for which provincial law authorizes the municipality to enact a by-law.
[ 13 ] The City of Toronto Act provides, in part, as follows:
(1) The City of Toronto exists for the purpose of providing good government with respect to matters within its jurisdiction, and the city council is a democratically elected government which is responsible and accountable.
The purpose of this Act is to create a framework of broad powers for the City which balances the interests of the Province and the City and which recognizes that the City must be able to do the following things in order to provide good government:
Determine what is in the public interest for the City.
Respond to the needs of the City. …
(1) The powers of the City under this or any other Act shall be interpreted broadly so as to confer broad authority on the City to enable the City to govern its affairs as it considers appropriate and to enhance the City’s ability to respond to municipal issues.
[ 14 ] It is important that the type of issues for which the City is given its power are “municipal issues”. The Act provides further as follows:
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 .
(2) The City may pass by-laws respecting the following matters:
Economic, social and environmental well-being of the City.
Health, safety and well-being of persons.
Protection of persons and property, including consumer protection.
Animals.
(3) Without limiting the generality of section 6, a by-law under this section respecting a matter may,
(a) regulate or prohibit respecting the matter; . . .
(1) Without limiting the generality of section 6 and except as otherwise provided, a by-law under this Act may be general or specific in its application and may differentiate in any way and on any basis the City considers appropriate.
It is the role of city council,
(a) to represent the public and to consider the well-being and interests of the City;
(b) to develop and evaluate the policies and programs of the City; . . .
A by-law of the City or a local board of the City passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law. 2006, c. 11 , Sched. A, s. 213.
(1) Upon the application of any person, the Superior Court of Justice may quash a by-law, order or resolution of the City or a local board of the City in whole or in part for illegality.
[ 15 ] The By-law, in the second recital in its preamble, refers to the powers to pass by-laws referred to in the portion of s. 8(2) of the Act excerpted above.
The Role of the Court
[ 16 ] In considering challenges to municipal by-laws, courts have embraced a generous, deferential approach which accords considerable respect to municipal councils. In modern jurisprudence, this deferential approach is exemplified in the following excerpt from the dissenting reasons of McLachlin, J. (as she then was) in Shell Canada Products Ltd. v. Vancouver (City) (“ Shell Canada ”) [1] . This approach recognizes that municipal councils are elected representatives of their community and are accountable to their constituents. Accordingly:
…courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the ‘benevolent construction’ …and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.
[ 17 ] Municipal by-laws attract a strong presumption of validity. The party challenging a by-law's validity bears the burden of proving that it is invalid. Where a by-law is susceptible to more than one interpretation, it must be read to fit within the parameters of the enabling municipal legislation. Barring "clear demonstration" of invalidity, courts should not so hold. [2]
[ 18 ] The analytical approach to be applied in determining the purposes of a particular by-law requires consideration of the entire context. Failure to do so constitutes palpable and overriding error. As stated by Cromwell, J.A. (as he then was) in Halifax (Regional Municipality) v. Ed DeWolfe Trucking Ltd. , 2007 NSCA 89 , at para. 54 : [3]
To determine the purpose of a by-law, one considers express statements of purpose contained in it or in other sources; draws inferences about the purpose from the text; has regard to the overall scheme of which the provision is part; looks at the evolution of the provision and the broader scheme, and assesses the external context in which it was enacted. …
[citations omitted]
Municipal Issue; Municipal Purpose
[ 19 ] In considering the breadth of the powers of the City, it is important that the powers are delegated to the City to enable it to deal with “municipal issues”, a term which is not defined. A by-law must have a proper municipal purpose; otherwise it falls outside the jurisdiction of the City and the powers delegated to it by the City.
[ 20 ] The power to deal with municipal issues is a broad power since it is not defined in the Act . However, that fact does not mean that an issue is a municipal issue merely because a policy decision is taken by City Council that an issue is important and it is desirable to take municipal action with regard to the issue. If all that was required to give jurisdiction to the City were such a policy decision, the determination of the scope of the jurisdiction of the City would be solely a matter for the decision of City Council. That result would be inconsistent with the fact that the powers delegated to the City under the Act are limited to municipal issues.
[ 21 ] Nor does the fact that a matter relates to one of the categories of matters identified in section 8(2) of the Act by itself make that matter a municipal issue. For example, the criminal laws of Canada certainly bear on the “social well-being of the City”, but that fact does not by itself make the matters dealt with by the Criminal Code municipal issues within the jurisdiction of the City under the Act.
The Purpose of the By-law: What the By-law Discloses
[ 22 ] The Preamble to the By-law is the only part of the By-law that provides potential assistance about its purpose. As noted above, it states that “the consumption of shark fin and shark fin product may have an adverse impact on the health, safety and well-being of persons, and on the economic, social and environmental well-being of the city of Toronto”. Section 2 of the By-law provides no person shall possess, sell or consume shark fin product within the City. In view of the Preamble, it must be inferred that the purpose of its prohibition is to prevent the occurrence of the adverse impacts referred to in the Preamble.
[ 23 ] The Preamble does not identify the nature of the potential adverse impacts of shark fin or shark fin product consumption. Consequently, it is of very limited assistance. Since the By-law is focussed on consumption of shark fin or shark fin product and mentions health, it is reasonable to infer that the by-law is directed to the possibility of poisoning or similar deleterious effects because of consumption of shark fin.
[ 24 ] Is that inference alone sufficient to establish the purpose of the by-law, or must the enquiry into the purpose go further? Help on this question is afforded in the decisions of L’Heureux-Dubé J. and LeBel J. in 114957 Canada Ltée (Spray-Tech, Société d’arrosage) v. Hudson (Town) , [2001] S.C.R. 241 (“ Spray-Tech ”). The enabling legislation that applied in that case was more “open-ended” than here because it empowered regulation for the “general welfare” without being more specific. Nevertheless, the following remarks are instructive.
[ 25 ] At para. 20 in he reasons., L’Heureux-Dubé J. said:
While enabling provisions that allow municipalities to regulate for the “general welfare” within their territory authorize the enactment of by-laws genuinely aimed at furthering goals such as public health and safety, it is important to keep in mind that such open-ended provisions do not confer an unlimited power. Rather, courts faced with an impugned by-law enacted under an “omnibus” provision such as s. 410 C.T.A. must be vigilant in scrutinizing the true purpose of the by-law. In this way, a municipality will not be permitted to invoke the implicit power granted under a “general welfare” provision as a basis for enacting by-laws that are in fact related to ulterior objectives, whether mischievous or not. As a Justice of the Ontario Divisional Court, Cory J. commented instructively on this subject in Re Weir and The Queen (1979), 26 O.R. (2d) 326 (Div. Ct.), at p. 334. Although he found that the City of Toronto’s power to regulate matters pertaining to health, safety and general welfare empowered it to pass a by-law regulating smoking in public retail shops, Cory J. also made the following remark about the enabling provision: ‘There is no doubt that a by-law passed pursuant to the provisions of s. 242 must be approached with caution. If such were not the case, the municipality could be deemed to be empowered to legislate in a most sweeping manner.’
[ 26 ] At para. 53 in his reasons, LeBel J. said as follows:
The case at bar raises a different issue: absent a specific grant of power, does a general welfare provision like s. 410(1) authorize By-law 270? A provision like s. 410(1) must be given some meaning. It reflects the reality that the legislature and its drafters cannot foresee every particular situation. It appears to be sound legislative and administrative policy, under such provisions, to grant local governments a residual authority to deal with the unforeseen or changing circumstances, and to address emerging or changing issues concerning the welfare of the local community living within their territory. Nevertheless, such a provision cannot be construed as an open and unlimited grant of provincial powers. It is not enough that a particular issue has become a pressing concern in the opinion of a local community. This concern must relate to problems that engage the community as a local entity, not a member of the broader polity. It must be closely related to the immediate interests of the community within the territorial limits defined by the legislature in a matter where local governments may usefully intervene.
Conclusion
[ 94 ] For the reasons set forth, a declaration is granted to the Applicants against the City that the By-law is ultra vires and without any force and effect
[ 95 ] If necessary, counsel may make written submissions to me about costs. In that event, the Applicants should make the first submissions within 30 days of the release of these reasons, with any responding submissions from the City to be made within 15 days after the Applicants’, and any reply submissions within 15 days afterwards. It would be helpful if a copy of any submission could be sent by e-mail to my assistant.
Spence J.
Released: November 30, 2012