In 2018, the City of Victoria successfully defended a petition brought by the Canadian Plastic Bag Association to quash the City of Victoria’s Checkout Bag Regulation Bylaw which prohibited businesses from providing customers with single-use plastic checkout bags. The Supreme Court determined that the Bylaw was a regulation of business and even though it may have incidental effects on the protection of the environment, that did not affect the validity of the Bylaw.
Pith and Substance
On July 11th, 2019, the B.C. Court of Appeal allowed the appeal of the Canadian Plastic Bag Association and quashed the City of Victoria’s Bylaw. The B.C. Court of Appeal’s analysis begins with a determination of the pith and substance of the Bylaw. This involves determining the true character or dominant characteristic of the Bylaw and involves an examination of the purpose and effect of the Bylaw. In examining this issue, the Court of Appeal considers the two sources of delegated authority: one to regulate in relation to business and the other to regulate, prohibit and impose requirements in relation to the protection of the natural environment.
The Court first examines the purpose of the Bylaw in its pith and substance analysis. The City’s Bylaw sets out its purpose in the preamble: to regulate business’ use of single-use checkout bags to reduce the creation of waste and associated municipal costs, to better steward municipal property, including sewers, streets and parks and to promote responsible and sustainable business practices that are consistent with the values of the community. The main debate between the parties on this point was whether the Bylaw regulated the action of business operators only or whether its primary purpose was to protect the environment by prohibiting the distribution of plastic bags.
The Canadian Plastic Bag Association emphasized that the process that led to the adoption of the Bylaw was initiated by Surfrider, an organization dedicated to the protection of the global marine environment. The Bylaw was then supported and publicized as a measure to curtail wasteful practices that have local consequences but also as a broader measure that is necessary for the future health of oceans and beaches around the world.
Next, the Court examined the effects of the Bylaw in the second part of the pith and substance analysis. The Court of Appeal determines that it is the consumers that are the targets of the Bylaw and who are most affected by the Bylaw.
“The City did not set out to prohibit some types of checkout bags and encourage other types in order to interfere with or somehow improve business transactions. Rather, it set out to slow down and ultimately end the harm caused by plastics in waterways both local and global. Its success will be measured by an evaluation of whether the amount of plastic in waterways locally and globally begins to decrease – not by any commercial yardstick, such as whether businesses continue to sell goods or not. In other words, the Bylaw imposes requirements and some prohibitions in order to protect the natural environment.”
The City argued that section 9(2) of the Community Charter expressly recognizes that a bylaw can be adopted under more than one authority. However, the Court observes that it would be absurd if by simply attaching a different label to a bylaw a municipality could avoid an express requirement of the Community Charter. The Court of Appeal determines that the approval of the Minister of Environment was required for the Bylaw.
“The fact that the Bylaw might have been validly enacted in the absence of section 9 in the guise of a bylaw relating to business does not detract from the fact that in pith and substance, this Bylaw was intended for protection of the natural environment and that is its primary effect.”
Future Bylaws Regulating Plastics: Valid Municipal Purpose
For any municipalities considering adopting a bylaw that would regulate plastic bags or other plastic items, consideration of the municipal purpose of the bylaw is crucial. In the BC Supreme Court case of International Bio Research v Richmond (City), 2011 BCSC 471 the court determined that a bylaw banning the sale of puppies in pet stores was a valid municipal purpose because it would reduce the number of unwanted and abandoned dogs which would reduce the costs of municipally-funded animal shelters caring for unwanted and abandoned dogs.
Valid Municipal Purposes and the Environment
The issue of valid municipal purposes was raised in a decision one year following the International Bio Research case in the Ontario Supreme Court case of Eng v Toronto (City), 2012 ONSC 6818. In this case, the City passed a bylaw prohibiting the sale of shark fin in order to foster “the environmental wellbeing of the City”. The preamble to the bylaw stated that the consumption of shark fin may have an adverse impact on health, safety and wellbeing of persons and on the economic, social and environmental wellbeing of the City. In analyzing the municipal purpose in relation to the shark fin prohibition, the court considered the Supreme Court of Canada decision in 114957 Canada Lt’ee (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40.
“It is not enough that a particular issue has become a pressing concern in the opinion of a local community. The 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 interest of the community within the territorial limits defined by the legislature in a matter where local governments may usually intervene.”
In deciding that the bylaw was ultra vires the court in Eng made two determinations. The bylaw did not respond to “municipal issues…although ecological threats facing the planet affect the entire planet, including the City, that does not make those ecological threats a municipal issue.” Also, the court considered shark finning or the cruelty to sharks and whether that goes to the economic, social and environmental wellbeing of the City. The Court concludes “there is nothing to suggest that the offensive practice of shark finning in distant oceans affects the ability of Torontonians to live together as an urban community. For this reason, it cannot be considered to relate to their social wellbeing.”
In considering regulating the use of single-use plastic bags or other plastic items, a municipality should be alive to this issue in establishing a municipal purpose for which the bylaw is to be enacted. Further, the municipality should also provide the council with evidence that supports the conclusion that the bylaw will be effective in achieving the valid municipal purpose.
If the main purpose is to reduce waste, then there should be some evidence that the use of single-use plastic bags increases the amount of waste that each municipality must pay to dispose of. If the single-use disposable plastic bag is being replaced by other plastic bags this argument may be suspect.
If the true character of a bylaw regulating plastic bags or other plastic items is to protect the natural environment it would be best if it was to protect the local environment as opposed to the global environment since otherwise the bylaw may fall under the decision in the Eng case. Nevertheless, if such a bylaw was about protecting the local natural environment the approval of the Minister of Environment under section 9 of the Community Charter should be sought.
Further, if a plastic bag bylaw is proposed, local governments should also consider how particular exemptions to the regulations might give rise to issues of discrimination. Are any exemptions in the bylaw that allow plastic use supported by a valid municipal purpose? For example, the use of plastic to wrap meat products in grocery stores may be viewed as a valid exemption to a ban on plastic in order to protect consumers’ health and consumers’ goods.
However, if this reasoning also applies to other circumstances where no exemption is allowed, it might give rise to an allegation of discrimination. For example, if grocery stores are exempt from the ban on plastic bags to protect consumers’ foodstuffs, then should takeout restaurant businesses also not be exempt from the use of plastic bags in the delivery of food where the contamination of food is also an issue? The best approach would be to provide as few exemptions as possible and across all similar circumstances.