Q:In a recent column, you wrote about a landmark ruling last year in
which the Supreme Court of Canada upheld the right of an urban Quebec
municipality to ban pesticides. Does this mean that municipal
governments are gaining more power?
A: No, this case does not mean the municipalities have gained more
power.
The problem is that municipalities are not recognized constitutionally.
While the constitution spells out what powers the federal and
provincial governments have, there is no similar listing of municipal
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powers. In fact, the only mention of municipalities is in the section
of the constitution defining provincial powers, which says they are
under provincial jurisdiction.
Alberta has probably gone further than most provinces in trying to
widen municipal powers. Its law states that municipalities have
“natural person powers” presumably meaning that municipalities can do
almost anything that a person can do. However, this does not mean that
the Alberta government hasn’t intervened to reduce municipal powers. As
readers know, the Alberta government recently took over the power to
approve intensive livestock operations from municipalities.
In 2000, the Manitoba government changed legislation to make clear that
matters of water drainage are within the authority of the province.
Perhaps the most drastic exercise of provincial power over
municipalities was demonstrated in central Canada. Ontario in the
mid-1990s amalgamated many municipalities, including those surrounding
Toronto and Ottawa, in spite of considerable opposition.
In the pesticide ban case mentioned earlier, the court had to decide
whether the town’s action fell within the powers granted municipalities
by Quebec law.
Quebec’s Cities and Towns Act allows municipalities to make bylaws “to
secure peace, order, good government, health and general welfare in the
territory of the municipality … provided such bylaws are not contrary
to the law of Canada, or of Quebec.”
Therefore, the question was: did this general power allow the passage
of the bylaw in question? The Supreme Court concluded that this bylaw
dealt with health issues and therefore was within municipal power.
Further, it did not conflict with provincial or federal laws. Of
course, this case dealt with Quebec’s laws and municipal powers vary
depending on the province.
Don Purich is a former practicing lawyer who is now involved in
publishing, teaching and writing about legal issues. His columns are
intended as general advice only. Individuals are encouraged to seek
other opinions and/or personal counsel when dealing with legal matters.
