Peacock v. Norfolk (County) et al., (2006) 213 O.A.C. 347 (CA)

• Judge: Weiler, Blair and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 13, 2005
• Jurisdiction: Ontario
• Citations: (2006), 213 O.A.C. 347 (CA)

Peacock v. Norfolk (2006), 213 O.A.C. 347 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. JN.112

Marilyn Peacock and Reginald Peacock (applicants/respondents) v. The Corporation of Norfolk County (respondent/appellant) and The Ontario Pork Producers' Marketing Board (intervener)

(C42944)

Indexed As: Peacock v. Norfolk (County) et al.

Ontario Court of Appeal

Weiler, Blair and Rouleau, JJ.A.

June 28, 2006.

Summary:

The Peacocks wished to double the capacity of their hog raising facility to 2,000 hogs. The facility would contain a large reservoir for nutrient storage. The Peacocks received approval of their Nutrient Management Plan, as required under the Nutrient Management Act and corresponding Regulation. The Regulation required, inter alia, that the new nutrient storage facility be at least 100 metres from a municipal well. The municipality passed a bylaw respecting the siting of intensive livestock operations and associated nutrient facilities. The municipality argued that the Peacocks had to comply with both the Regulation and the bylaw and that the bylaw prohibited the proposed expansion. The Peacocks and the intervener, the Ontario Pork Producers' Marketing Board, argued that the Regulation superseded the bylaw, pursuant to s. 61 of the Act, and only compliance with the Regulation was necessary.

The Ontario Superior Court, in a decision reported at [2004] O.T.C. 969, held that the Regulation addressed the same subject-matter as the bylaw, and as such, superseded the bylaw. The municipality appealed.

The Ontario Court of Appeal, Blair, J.A., dissenting, dismissed the appeal.

Municipal Law - Topic 1583

Powers of municipalities - Exercise of powers - Conflict with provincial or federal legislation - Section 61(1) of the Nutrient Management Act provided that "A regulation supersedes a bylaw of a municipality or a provision in that bylaw if the bylaw or provision addresses the same subject-matter as the regulation." - The Ontario Court of Appeal stated that "... the impossibility of dual compliance test only applies in the event that the relevant provincial legislation does not specify a different test. Section 61 of the Nutrient Management Act, in my view, specifies the test to be applied in the event that the Regulation and a local bylaw or provision of a bylaw address the same subject-matter. If they address the same subject-matter, s. 61(2) specifies that the bylaw or provision of the bylaw is 'inoperative while the regulation is in force.' Section 61 therefore clearly displaces the impossibility of dual compliance test." - See paragraph 32.

Municipal Law - Topic 3729

Bylaws - Construction or interpretation - Severability - Sections 61(1) and 61(2) of the Nutrient Management Act provided that "A regulation supersedes a bylaw of a municipality or a provision in that bylaw if the bylaw or provision addresses the same subject-matter as the regulation" and "A bylaw or a provision of a bylaw that is superseded under subsection (1) is inoperative while the regulation is in force" - The Ontario Court of Appeal stated that "[t]aken together, s. 61(1) and s. 61(2) provide that it is only the portion of the Bylaw that addresses the same subject matter as the Regulation that is rendered inoperative, not the whole of the Bylaw. Applied to the present case, this means that those portions of the municipality's Bylaw prohibiting other uses, such as foundries, petroleum product and refining remain in force. Only that portion of the Bylaw which addresses the same subject matter as the Regulation is rendered inoperative." - See paragraph 69.

Municipal Law - Topic 3859

Bylaws - Quashing bylaws - Grounds for judicial interference - Conflict with statute or regulations - [See Municipal Law - Topic 1583 ].

Municipal Law - Topic 3864

Bylaws - Quashing bylaws - Grounds for judicial interference - Field occupied by provincial legislature - [See Municipal Law - Topic 1583 and Municipal Law - Topic 3729 ].

Municipal Law - Topic 3864

Bylaws - Quashing bylaws - Grounds for judicial interference - Field occupied by provincial legislature - The Peacocks wished to double the capacity of their hog raising facility - The facility would contain a large reservoir for nutrient storage - They received approval of their Nutrient Management Plan, as required under the Nutrient Management Act and corresponding Regulation - Among the Regulation's requirements was that the new nutrient storage be at least 100 metres from a municipal well - Section 61(1) of the Nutrient Management Act provided that "A regulation supersedes a bylaw of a municipality or a provision in that bylaw if the bylaw or provision addresses the same subject-matter as the regulation." - The municipality had passed a bylaw that prohibited intensive livestock operations and associated nutrient facilities within Sensitivity Areas 1 and 2 - The municipality submitted that the Peacocks' proposed expansion was located within Sensitivity Area 2, an area from which it would take two years or less for contamination to reach the municipal well - The municipality argued that the Peacocks had to comply with both the Regulation and the bylaw and that the bylaw prohibited the proposed expansion - The Ontario Court of Appeal held that the relevant portion of the bylaw addressed the same subject matter as the Regulation - Therefore, the Regulation rendered that portion of the bylaw inoperative.

Words and Phrases

Subject matter - The Ontario Court of Appeal discussed the meaning of this phrase as found in s. 61 of the Nutrient Management Act, S.O. 2002, c. 4 - See paragraphs 38 to 53.

Cases Noticed:

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201; 2001 SCC 40, refd to. [para. 4].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [paras. 28, 76].

Saumur v. Quebec (City), [1953] 2 S.C.R. 299, refd to. [para. 40].

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146; 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1, refd to. [paras. 50, 94].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [paras. 57, 79].

Reference Re Employment Insurance Act, [2005] 2 S.C.R. 669; 339 N.R. 279, refd to. [para. 58].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 79].

Croplife Canada v. Toronto (City) (2005), 198 O.A.C. 35; 75 O.R.(3d) 357 (C.A.), refd to. [para. 81].

Ontario (Attorney General) et al. v. Mississauga (City) (1981), 33 O.R.(3d) 395 (C.A.), refd to. [para. 82].

Adler et al. v. Ontario et al. (1994), 73 O.A.C. 81; 19 O.R.(3d) 1 (C.A.), refd to. [para. 86].

Union Colliery Co. v. Bryden, [1899] A.C. 580, refd to. [para. 86].

Whitbread v. Walley et al., [1990] 3 S.C.R. 1273; 120 N.R. 109, refd to. [para. 86].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 86].

Consortium Developments (Clearwater) Ltd. v. Sarnia (City) et al. (1996), 92 O.A.C. 321; 30 O.R.(3d) 1 (C.A.), refd to. [para. 86].

Maple Ridge (District) v. Meyer, [2000] B.C.T.C. 367; 77 B.C.L.R.(3d) 171 (S.C.), refd to. [para. 86].

Rothmans, Benson & Hedges Inc. v. Saskatchewan et al., [2002] 10 W.W.R. 733; 224 Sask.R. 228 (Q.B.), revd. [2005] 1 S.C.R. 188; 331 N.R. 116; 257 Sask.R. 171; 342 W.A.C. 171, refd to. [para. 86].

Statutes Noticed:

Nutrient Management Act, S.O. 2002, c. 4, sect. 61 [para. 28].

Nutrient Management Act (Ont.), General Regulations, Reg. 267/03, generally [para. 1].

Norfolk (County) Bylaws, Wellhead Protection Areas Bylaw, Bylaw No. 64Z-2003, sect. 3.31.4(c) [para. 6].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [paras. 57, 79].

Hansard (Ont.) - see Ontario, Hansard, Legislative Assembly, Standing Committee on General Government, Official Report of Debates.

Ontario, Hansard, Legislative Assembly, Standing Committee on General Government, Official Report of Debates (June 3, 2002), p. G-3 [para. 91].

Ontario, Hansard, Legislative Assembly, Standing Committee on General Government, Official Reports of Debates (June 3, 2003), pp. G-48 to G-51 [para. 34, footnote 2].

Ontario, Ministry of the Environment, Report of the Walkerton Inquiry, Status of Part Two Recommendations (2005), http://www.ene.gov.on.ca, generally [para. 8, footnote 1].

Ontario, Walkerton Commission of Inquiry, Report of the Walkerton Inquiry Part 2 (2002), Recommendation 14, p. 139 [para. 35, footnote 3].

Counsel:

Keith M. Jones, for the appellant;

Thomas A. Cline, Q.C., for the respondents;

John M. Buhlman, for the intervener.

This appeal was heard by Weiler, Blair and Rouleau, JJ.A., of the Ontario Court of Appeal, on December 13, 2005. The court delivered the following decision on June 28, 2006, including the following opinions:

Rouleau, J.A. (Weiler, J.A., concurring) - see paragraphs 1 to 62;

Blair, J.A., dissenting - see paragraphs 63 to 108.