In recent years, several communities all over the world have sought means by which to reduce the accumulation of plastic in our natural environment. The reasoning being that the accumulation of plastics in the natural environment is having and will have detrimental effects on the biosphere, ecosystems and a number of vulnerable species.
Communities such as the City of Victoria recently enacted a bylaw prohibiting businesses from providing single-use plastic bags to customers and otherwise charging a fee for paper and reusable bags. Some additional information on the bylaw and the City’s initiative to reduce plastic bag use can be found here. The Bylaw’s preamble is as follows:
The purpose of this Bylaw is 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 Bylaw was not without some controversy including a legal proceeding commenced by the Canadian Plastic Bag Association, an organization dedicated to the growth of the plastics business, which argued that the Bylaw was beyond the power of a municipality to pass given that the Bylaw was, in fact, environmental regulation and passed without the approval or agreement of the provision government. Canadian Plastic Bag Association v Victoria (City), 2018 BCSC 1007 (CanLII) is the judgment arising out of that dispute.
The process of the creation of Victoria’s Bylaw was a long one beginning with a petition supported by 2,500 signatures. That petition was followed up by a report to council estimating that Victoria businesses distributed more than 17 million single-use plastic bags a year and as many as 798,000 of those were littered and not collected. Additional reports received underscored the impact of plastic bags on littering, landfill use, increased costs of municipal services and negative environmental effects.
The Canadian Plastic Bag Association brought their petition about the Bylaw pursuant to s. 623 of the Local Government Act which section permits an application to be brought to set aside bylaws where they are illegal. The challenge posed by the Canadian Plastic Bag Association was that Victoria had no authority to pass its bylaw.
In its analysis, the Court noted that s. 8(3) of the Community Charter permits local governments to exercise power concerning protection of the natural environment and that s. 8(6) of the Community Charter permits local governments to regulate businesses by bylaw. The Court went on to recognize that caselaw and s. 4(1) of the Community Charter call on the courts to take a broad and purposive approach when determining whether municipal legislation authorizes exercises of certain power. This includes considering both the purpose and effects of bylaws under review.
The Court noted caselaw that provided that the purpose of bylaws is gleaned from its wording as well as the minutes and public submissions surrounding the adoption of such a bylaw.
Ultimately the Court found that the Bylaw was properly characterized as one which regulated business and that any environmental purpose or effect was in addition to that the purpose and effect as a regulation of business. The reports received by council indicated a number of municipal concerns raised directly by the use of plastic bags including waste collection, sewers, drainage and litter control. The Court cited case law that makes it clear that bylaws can be passed which have more than one purpose and, even if the dominate purpose is beyond the power of a local government, a bylaw can still be saved if it still serves a purpose within the powers of a local government.
Victoria’s Bylaw, ongoing concerns about plastic accumulation and the decision in Canadian Plastic Bag Association v Victoria (City), 2018 BCSC 1007 (CanLII) all suggest that we may continue to see a number of communities in our province enact bylaws aimed at reducing plastic waste generated through business activities regulated by municipal authorities and that, so long as they are properly crafted, such bylaws may be expected to be upheld on any challenge.
By Jeremy Burgess, Pushor Mitchell LLP
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