(portion of article from Municipal World Magazine)
What implications does this Supreme Court of Canada decision have for municipalities in Ontario? Ontario municipalities derive their authority from the Municipal Act. Section 102 of the Act authorizes municipalities to pass by-laws and make regulations for the health, safety, morality and welfare of municipal inhabitants provided that such enactments are not contrary to law. This provision is a "general welfare" provision similar to that successfully relied upon by the Town of Hudson to enable them to pass by-law 270 restricting the non-essential use of pesticides.

The Supreme Court of Canada ruling in the Hudson case upholds municipal authority to regulate pesticide use, so long as such regulation is done with the true purpose of protecting the health, safety or welfare of municipal residents. The Supreme Court ruling provides compelling authority for the proposition that Ontario municipalities are authorized to regulate pesticide use pursuant to the "general welfare" provision of the Municipal Act.

Further authorization for Ontario municipalities to regulate pesticide use may be found in section 210.134 and 210.140 of the Municipal Act which deal with the regulation of public nuisances. Section 210.134 provides that municipalities may pass by-laws for regulating manufactures or trades that in the opinion of council may prove to be or may cause nuisances of any kind, and, without restricting the generality of the foregoing, for prohibiting or regulating the erection or continuance of gas works, tanneries or distilleries or other manufactories or trades that in the opinion of council may prove to be or may cause nuisances. Section 210.140 empowers municipalities to pass by-laws for prohibiting and abating public nuisances. Given societal awareness of atmospheric pollution and the effect of that pollution on the health of human beings, it is arguable that environmental degradation constitutes a public nuisance.

If an Ontario municipality chooses to regulate pesticide use pursuant to their authority as described above, it is imperative that such regulation does not conflict with federal or provincial legislation. The Pest Control Products Act, as federal legislation, applies equally to Quebec and Ontario therefore a municipal by-law similar to that passed by the Town of Hudson in Quebec, if passed in Ontario, would not conflict with federal legislation for the reasons given by the Supreme Court of Canada.

In Ontario the use of pesticides is regulated provincially by the Pesticides Act and the Regulations to that Act. The Ontario Pesticides Act establishes a classification system for pesticides and regulates the licencing of vendors and persons employed as applicators of pesticides, the storage and disposal of pesticides, and the requirements for notification of pesticide use. Although the structure and wording used in Ontario's Pesticides Act are different from those employed by the Quebec Pesticides Act, the two Acts are very similar in terms of the scope and content of their regulation.

Both the Ontario and Quebec provincial pesticides legislation authorize the holders of the requisite permit or licence to use pesticides for the maintenance or control of ornamental lands. These provisions mandate that in order to apply pesticides on residential property for cosmetic purposes, one must obtain the appropriate permit or licence. The provisions do not purport to authorize the application of pesticides on any or all residential lands so long as the applicator possesses the requisite permit. In essence the provincial legislation, much like the federal legislation, is regulatory with respect to the pesticide industry, not permissive.

One distinction between the Pesticides Act of Ontario and that of Quebec is that Ontario's Act does not expressly contemplate municipal legislation of pesticide use. Section 102 of the Quebec Pesticides Act states that the provisions and regulations of the Act prevail over any inconsistent provision of any by-law passed by a municipality or an urban community. The Supreme Court of Canada did refer to this section as proof that the province of Quebec did not intend to preclude municipalities from legislating with respect to pesticides but rather anticipated that municipalities would do so. Section 53 of Ontario's Pesticides Act states that where a conflict appears between the Act or regulations and any other Act or regulation in a matter related to pesticides and the control of pests, the Ontario Pesticides Act shall prevail. This section of the legislation was effected to the accomplish the same end as section 102 of Quebec's Act and the absence of specific contemplation of municipal regulation does not prevent municipalities from exercising their authority under section 102 of the Municipal Act.

In Ontario, as in Quebec, pesticide use can be legally and effectively regulated by a three tier regime. Federal legislation regulates what pesticides can be used, provincial legislation regulates who can use pesticides and how pesticides can be used. It is open to municipalities to enact by-laws dealing with where and when pesticides can be applied within municipal territory.

Since the Supreme Court of Canada decision was released in June, hundreds of municipalities across the provinces are considering or reconsidering the regulation of pesticide use in their communities. Some Ontario municipalities acted quickly to move towards the regulation of pesticide use in the wake of the Supreme Court ruling. On July 16, 2001 the Toronto Board of Health endorsed a motion instructing the preparation of a discussion paper and public consultation with respect to the drafting and enactment of a by-law which would ban the use of certain pesticides. On the same date Sarnia City Council put the issue on the table. Ottawa, London, Cambridge and others are similarly contemplating initiating municipal regulation of pesticide use within their boundaries. For individuals or councils seeking more information on the regulation of pesticide use in Ontario municipalities, the Canadian Center for Pollution Prevention for the Federation of Canadian Municipalities has devised a Responsible Pest Management website (www.c2p2online.com) which contains much valuable information on the subject.

Julie O'Connor
Student at Law
Pavey, Law
Cambridge, Ontario

FOOTNOTES


1. 114957 Canada Ltee (Spraytech, Societe d'arrosage) and Services des espaces verts Ltee/Chemlawn v. Town of Hudson 2001 SCC 40 [hereinafter Hudson]

Cities and Towns Act, R.S.Q., c.C-19

Municipal Act, R.S.O. 1990 c.M.45

Pest Control Products Act, R.S.C. 1985, c.P-9

Pesticides Act, R.S.Q. c.P-9.3

Pesticides Act, R.S.O. 1990 c.P.11