Municipal Act, 2001
The Municipal Act, 2001, represents the culmination of a lengthy consultation process by the government. Introduced to the Ontario Legislature on October 18, 2001, Bill 111, An Act to Amend the Municipal Act and to Amend or Repeal other Acts in Relation to Municipalities, comes into force on January 1, 2003.
The new Municipal Act is an important initiative, the end result of a process begun in 1996 to overhaul the delivery and funding of many government services. In January 1997, the Ministry of Municipal Affairs and Housing released a study paper to outline the need for a new Municipal Act. The study paper suggested that municipalities be granted “natural person powers” — for instance, the power to enter into contracts — and be provided with power to pass by-laws in 12 broad areas of authority. They include the health, safety, protection and well-being of people; protection of property; waste management; the natural environment; and nuisances (noise, odour, vibration and dust). These powers would enable municipalities to respond to issues in their communities without express authorization from the province. A draft Act was released for consultation purposes in 1998, but was not introduced as a bill to the legislature.
The Municipal Act, 2001, incorporates aspects of the 1998 draft Act and results of the 1997 and 1998 consultations. It does not provide municipalities with the power to act autonomously from the province, but it does allow them greater flexibility in certain areas and is generally less prescriptive in nature. Municipalities are provided with natural person powers and are given broad jurisdiction to act in 10 different spheres of jurisdiction.
Missing from these broad spheres of jurisdiction are areas included earlier in the 1998 draft Act, such as control over nuisances (noise, vibration, odour, dust), health and safety, and the natural environment. However, the new Act gives municipalities certain restricted powers over these nuisances.
Other key components of the Municipal Act include the ability of a municipality to designate a road as a toll highway, and to exercise licensing powers in the areas of health, safety, nuisance control and consumer protection.
The legislation also provides for a mandatory five-year review of the Act to ensure that it remains current and is addressing the needs of the municipalities. The Act also enshrines the principle of consultation between the province and the municipalities on matters that will affect them. To develop a framework for the provincial/ municipal consultation, a two-year Memorandum of Understanding between the Association of Municipalities of Ontario and the Province of Ontario was signed in December 2001.
Municipalities will now have greater power to act within their 10 spheres of jurisdiction without having to be specifically authorized by the province to do so. This greater jurisdiction, combined with the new natural person powers, significantly increases the ability of municipalities to govern themselves and to meet local residents’ concerns. However, municipalities will not be able to pass by-laws that are in conflict with provincial or federal Acts or regulations, or that conflict with federal or provincial orders, licences or approvals.
Noise, Odour, Dust Nuisances
The Municipal Act, 2001, contains a specific section allowing municipalities certain powers in prohibiting and regulating noise, odour, dust, vibration, and outdoor illumination. The new Act also concurrently amends the Environmental Protection Act (EPA) by repealing s. 178, which required municipalities to have approval of the Minister of Environment and Energy when passing by-laws regulating noise and vibration.
Over the last several years, the ECO has observed that MOEE has effectively down- loaded the responsibility for dealing with noise, dust and odour nuisances to municipalities. An MOEE policy directs ministry staff not to investigate complaints about these matters, and to refer them instead to municipalities. The new Municipal Act reinforces this direction, by removing the need for ministerial approval of municipal by-laws regarding noise and vibration. Although s.14 of the EPA still contains the general provision prohibiting the discharge of a contaminant, and contaminants are defined by the Act to include noise, odour and vibration, it seems increasingly unlikely that MOEE will put much enforcement effort into this area even if there are contraventions of s.14. Lack of enforcement by MOEE may curtail the public’s rights under the Environmental Bill of Rights, since any actions or inactions by municipalities with regard to noise, odour and dust would not be subject to EBR review. Moreover, many smaller municipalities may lack the resources and expertise to investigate noise and odour problems properly, or to establish effective by-laws, which may lead to variable, patchy enforcement.
Pesticides
In June 2001, the Supreme Court of Canada released its decision in the Spraytech v. Hudson case (“the Hudson decision”), upholding the authority of the Town of Hudson, Quebec, to enact a by-law prohibiting the applications of pesticides within town boundaries. Since then, there has been a great deal of public debate in Ontario regarding the ability of Ontario municipalities to prohibit or regulate pesticides. The Municipal Act, 2001, does not specifically address the future ability of municipalities to respond to environmental concerns, including those related to the use of lawn care pesticides.
| The Hudson Decision |
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| In 1992, Spraytech was charged with violating the pesticides by-law of the Town of Hudson, Quebec.
Spraytech brought a motion before the Supreme Court of Quebec for a declaration that the by-law was not within the town’s jurisdiction. The motion was denied both at the Quebec Supreme Court and the Quebec Court of Appeal. The Supreme Court of Canada held that the Hudson by-law was validly enacted, pursuant to a general welfare provision of Quebec’s Cities and Towns Act, equivalent to Ontario’s Municipal Act, that allows municipalities to enact by-laws “–to secure peace, order, good government, health and general welfare.” The by-law was not in conflict with either the federal Pest Control Products Act or Quebec’s Pesticides Act. In affirming the town’s ability to enact the by-law, the Supreme Court of Canada endorsed the precautionary principle, stating: “In the context of the precautionary principle’s tenets, the Town’s concerns about pesticides fit well under the rubric of preventative action.” The Municipal Act, 2001, contains a general welfare provision (s.130) which states:
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The wording of s. 130 is almost identical to that of the former Municipal Act, with the exception of the addition of “or any other Act.” The additional wording in the general welfare provision, coupled with the withdrawal of nuisance and natural environment matters from the broad spheres of municipal jurisdiction, has led some stakeholders to describe the changes as “Hudson proofing” the Municipal Act — meaning that the new provision would disallow municipalities from passing by-laws controlling pesticide use because they are already specifically regulated by Acts at the provincial and federal levels.
How the courts will interpret the Act remains to be seen, but it does not appear the Municipal Act, 2001, will prevent municipalities from regulating pesticides if they do so to protect the health, safety and well-being of their inhabitants. The courts interpret legislation as having a broad and purposive approach, and one of the purposes of the new Act is to foster “the current and future . . . environmental well-being of the municipality.”
ECO Comment
The lack of certainty about enforcement of noise, odours and dust has concerned the ECO for several years. Municipalities may now pass by-laws to regulate noise, odours, and dust, but they are not required to do so. Because municipalities are not required to undertake EBR investigations regarding noise, odour or dust by-laws, this change reinforces the continued erosion of EBR rights in this area. Much of the implementation of the Municipal Act, 2001, will depend on regulations that are yet to be released. The ECO believes the regulation-making power of the Act should be prescribed under the EBR, so that environmentally significant regulations, such as any dealing with the ability of municipalities to pass by-laws regulating pesticide use or noise, odour, dust or outdoor lighting, will be posted on the Environmental Registry for public comment and review. This will require that the Ministry of Municipal Affairs and Housing make appropriate amendments to the regulations to prescribe certain sections of the new Municipal Act, 2001, under the Environmental Bill of Rights.
| Recommendation 10:
The ECO recommends that the regulation-making power of the Municipal Act, 2001, be prescribed so that proposals for environmentally significant regulations are posted to the Environmental Registry for public comment and review. |
| This is an article from the 2001/02 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2002. "Municipal Act, 2001." Developing Sustainability, ECO Annual Report, 2001-02. Toronto, ON : Environmental Commissioner of Ontario. 79-82.
