We review the iconic environmental law case, 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40 (Spraytech), in which the courts affirm the municipalities by-law making powers for sustainability purposes.
Note: this article was originally written for the Saskatchewan Urban Municipalities’ (SUMA) newsletter, Urban Voices, in a collaborative basis. A link to the article will be posted here soon.
REVIEW OF SPRAYTECH
114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40 (Spraytech) is a well-known 18-year old Supreme Court of Canada (SCC) decision on the bylaw-making powers of municipalities in regard to environmental issues. Any numbers in parentheses below indicate the paragraph being referred to from the above case law.
This case involved a landscaping/lawn care company who challenged Bylaw 270, enacted by the Town of Hudson, that restricted pesticide use to certain activities and locations. The appellant challenged the law after getting charged pursuant to the bylaw for restricted use of a pesticide. The pesticides were approved for use by the federal Pest Control Products Act and licensed under Quebec’s Pesticides Act. The appellant sought a declaratory judgment from the Superior Court that Bylaw 270 was inoperative and beyond the scope of the municipality’s authority (“ultra vires”). The Superior Court denied the motion, which the Court of Appeal confirmed on appeal. The SCC also agreed and dismissed the appellant’s appeal.
The main issue in this case was whether the bylaw was within the town’s legal authority to enact. The second issue was whether the bylaw was in an operational conflict with federal or provincial laws.
The SCC started by acknowledging that every Canadian community depends on a healthy environment and that we all have a responsibility to protect the environment (1). Municipalities are created by statute and must only use powers they are expressly or impliedly given by legislation. Of particular relevance to the municipality’s authority in this case was its ability to regulate for the “general welfare” of the people, such as their public health and safety, as outlined in s. 410 of Quebec’s Cities and Towns Act. The SCC determined that Bylaw 270 fell under this section.
In reaching their conclusion, the court also noted several guiding principles in this case, namely:
Law-making is often best achieved at the level closest to the citizens affected (principle of subsidiarity) (3)
So long as the municipality is not exceeding its delegated powers, it should be afforded wide discretion (23)
A. Did the municipality have legislative authority to enact the bylaw?
To assess whether a bylaw is constitutional, the court must first examine the bylaw’s purpose and determine whether it has a reasonable connection to municipal purposes (26). Given residents’ concerns about the health risks of non-essential uses of pesticides in this case, and the bylaw’s distinction between essential and non-essential pesticides, the SCC concluded that its purpose was to minimize the use of allegedly harmful pesticides to protect public health (27). This purpose fell appropriately under s. 410.
The SCC also found additional support for its conclusion in international law, which can help inform statutory interpretation (30). Specifically, the SCC drew from the “precautionary principle”, which is defined as follows:
In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
This principle supported the municipality’s attempt to take preventative action against the potential health harms of non-essential pesticides (32).
B. Was the bylaw in conflict with federal or provincial legislation?
The appellants tried to argue that regardless of the municipality’s authority to enact the bylaw, the Pest Control Products Act and Pest Control Products Regulations permitted them to use the pesticides targeted by the bylaw, which put the laws in conflict. In other words, one law said “yes,” while the other said “no”.
The SCC concluded that the bylaw was not in conflict with either federal or provincial laws. The federal legislation regulated the import, export, sale, and manufacturing of pesticides used in Canada. This legislation was permissive. Much like with motor vehicles and cigarettes, federal laws can approve the particular product, but its use can nonetheless be restricted by a municipality. Complying with the federal and provincial legislation and Bylaw 270 was possible (35). The SCC found that the provincial legislation operated in a similar way and did not conflict with the bylaw (39).
Given the municipality’s authority to regulate for residents’ “general welfare” and the bylaw’s related purpose furthering that value, in addition to the absence of any legislative conflict, the SCC found Bylaw 270 constitutional.
SPRAYTECH AND SASKATCHEWAN
Today, municipalities are facing increasing pressures due to the realities of climate change. Natural disasters, infrastructure costs, and public demand for action are issues that require responses from municipalities across Saskatchewan. While the task seems daunting, municipalities can feel empowered knowing that they are in a unique position to respond to these demands in ways other levels of government cannot.
In Saskatchewan, sections 8(1)(a) & (b) of The Municipalities Act, SS 2005, c M-36.1 provide our local governments with general welfare bylaw-making powers that are clearly analogous to s. 410 of Quebec’s Cities and Towns Act that was successfully relied upon in Spraytech:
Jurisdiction to pass bylaws
8(1) A municipality has a general power to pass any bylaws for the purposes of the municipality that it considers expedient in relation to the following matters respecting the municipality:
(a) the peace, order and good government of the municipality;
(b) the safety, health and welfare of people and the protection of people and property;
Section 6 of The Municipalities Act also directs courts to interpret municipal bylaw-making powers broadly. According to the Saskatchewan Court of Appeal, this provision ‘softens’ the level of scrutiny that Saskatchewan courts will impose on municipal bylaws when they are challenged.1 This is also consistent with the SCC’s jurisprudence on municipal powers, which affords a high degree of deference to their authority to pass bylaws.2.
Several other cases following Spraytech have also confirmed municipalities broad jurisdiction to enact bylaws that benefit the public and the environment. Ontario courts rejected a challenge of municipal pesticide bylaws in Croplife Can. v Toronto3 based on legislation that provided similar broad bylaw-making powers. In Montréal (City) v 2952-1366 Québec Inc.4, the Supreme Court decided that Montreal had the power to regulate noise pollution from a club.
These cases reflect the SCC’s acknowledgement that municipalities take into account a wide variety of social, economic, and demographic factors relating to the community when developing their bylaws.5 In light of this, courts are urged to “respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable”.6
Spraytech and the other cases above are great examples of municipalities that were successful in pursuing initiatives to protect the environment and health of their residents. Given the similar legislation in Saskatchewan, municipalities here also have the potential to pursue ambitious and creative solutions to foster sustainable communities for the betterment of their citizens and the environment.
- See Duffield v Prince Albert (City), 2015 SKCA 46 at paras 31-33.
- See United Taxi Drivers' Fellowship of Southern Alberta v Calgary (City),  1 SCR 485, 2004 SCC 19 at paras 6-8; see also Catalyst Paper Corp v North Cowichan (District),  1 SCR 5, 2012 SCC 2 at paras 19-25
- Croplife Canada v Toronto (City) (2005), 75 O.R. (3d) 357 (ONCA), leave to appeal to ref'd  S.C.C.A. No. 329
- 2005 SCC 62.
- Catalyst Paper Corp v North Cowichan (District),  1 SCR 5, 2012 SCC 2 at para 19.