APPEAL VoLuME 18
coordination betwe en actors can represent serious barriers to adaptation.15 Fur thermore,
this paper takes an innovative approach to analysing Hudson by connecting t he local
pesticide issue in Hud son to climate ch ange adaptation.
Climate change adaptation has the potentia l to evoke complex division of powers issues
in Canada. A s a federalist state, Can ada faces “special chal lenges” in developing eective
environment al reg ulat ions,16 since environmenta l issues do not t neatly into constitutiona l
categories.17 ese challenge s will likely surface for climate change adaptation because
adaptation processes, by their nature, occur across various interact ing scales.18 On one
hand, adaptation is often characteriz ed as a local matter; climate impacts tend to be felt
and dealt with relat ively locally and top-down, ‘one size ts all’ solutions do not apply to
all localities.19 Canada is currently experiencing, and is expected to experience, various
local climate impacts given the countr y’s diverse landscapes a nd vulnerabilities.20 On
the other hand, local adaptation occurs in the context of larger processes.21 Regional
and national adaptation programs and strategies guide adaptation research, planning,
and resources, wit h implications for local adaptation. Larger-sca le processes may al so be
necessar y to combat collective action problems.22 Adaptation ta ken by one local actor may
have “adverse spillover eects” in other juri sdictions, potentially undermin ing the overall
eectiveness. Ad aptation may require policy coordination across mu ltiple jurisdictions to
avoid this leaka ge problem.23 For these reasons, adaptation involves complex interactions
between dierent levels of government that may lead to constitutional disputes. ese
issues must be resolved for adaptat ion measures to be succ essful.
Municipalities are a relevant level of government to study for two key reasons. First, as
mentioned, municipal adaptation is crucial because climate change impacts tend to be
felt and addressed loca lly. Urban municipalities face unique vulnerabilities to climate
change. Eight y percent of Canada’s population lives in municipalities.24 A lthough urban
15 Emma Tompkins et al, “Obser ved Adaptation to Climate Change: UK Eviden ce of Transition to
a Well-Adapting Societ y” (2010) 20:4 Global Environmental Change 627 at 628; James D Ford
& Lea Berrang-Ford, “ Introduction” in James D Ford & Lea Ber rang-Ford, eds, Climate Change
Adaptation in Developed Nations: From The ory to Practice (Dordrecht: Sprin ger, 2011) 3 at 9.
16 “Preface” in Kenneth M Hol land, FL Morton & Brian Galligan, eds , Federalism and the Environment:
Environmental Policymaking in Australia, Canada, and the United States (Westport, CT: Greenwood
Press, 1996) vii at vii.
17 John Swaigen, “ The Hudson Case: Municipal Powers to R egulate Pesticides Conrmed by
Quebec Courts” (200 0) 34 Canadian Environmental Law Rep orts 162 at 182; Chalifour, supra note
14 at 173; FL Morton, “The Constitutional Divisio n of Powers with Respect to the Environm ent in
Canada” in Kenneth M Holland, FL M orton & Brian Galligan, eds, Fede ralism and the Environment:
Environmental Policymaking in Australia, Canada, and the United States (Westport, Conn:
Greenwood Press, 1996) 37 at 37.
18 Adger et al, supra n ote 12.
19 Thomas J Wilbank s, “Scale and Sustainabilit y” (2007) 7:4 Climate Policy 278 at 284; Jan
McDonald, “Mapping the L egal Landscape of Climate Change Adapt ation” in Tim Bonyhady,
Andrew Macintosh & Jan McDonald , eds, Adaptation to Climate Change (Annandale, NSW:
Federation Press, 2010) 1 at 23-25; Glicksman, supra n ote 12 at 1164.
20 From Impacts to Adaptation, supra note 7; Human Health, supra not e 7.
21 Adger et al, supra note 12 at 79; Wilbank s, supra note 19 at 284.
22 Collective action problems may aris e in the federalism context when in dividual states have
incentives to act in a way that deviates f rom the interests of the nation as a whol e (Glicksman,
supra note 12 at 1175).
23 Glicksman, supra note 12 at 1165.
24 Statistics Canada, “Populatio n, urban and rural, by province and territo ry” (last modied 22
September 2009), online: Statistics Canada
som/l01/cst01/demo62a-eng.htm> [Statistics Canada]; Eugene Meehan, Robert Chiarelli & Marie-
France Major, “The Constitution al Legal Status of Municipalities 1849-2004: Success I s a Journey,
but Also a Destination” (2007) 22:1 NJCL 1 (growing urb an population at 6).
APPEAL VoLuME 18
centres have high adaptive capacity in some respects,25 they rely heavi ly on critical
energy, transportation, and w ater infrastructure and su er greater heat stress and poorer
ai r q ua l it y.26 Second, municipalities represent a dynamic level of government from a
constitutional perspe ctive. e constitutional status of municipa lities as mere “creatures”
of the provinces has been que stioned recently, particularly followin g Hudson.27 Munic ipal
responsibilities have grown to include broad and diverse matters. Most municipa lities
have environment-related responsibilities, including water and waste systems, zoning,28
and hydroelec tric plants.29 Municipal ities have also been subject to federal and provi ncial
downloading of services, which has further increa sed their responsibilities.30 Have
municipalities become a de fac to third level of government in Canada with the power to
regulate environmenta l issues?31
Hudson provides a prism t hrough which to view health a daptation because it demonstrates
municipalities’ potential power to reg ulate issues at the nexus of environmental health
and constitutional law. In this case, the Town of Hudson, Quebec (“Hudson”), adopted
By-law 270 (“the By-law”) in 1991. e By-law responded to residents’ concerns by
restricting the use of cosmetic pesticides in Hudson. In 1992, two landscaping a nd
lawncare companies, Spraytech and Chemlawn, were charged with violating the By-law.
Spraytech and Chemlaw n asserted that the By-law was ultra vires Hudson’s authority and
inoperative due to a conict with provincial and federal regulation.32 e By-law was
found to be valid and operable at the Superior Court and the Court of Appeal, and this
nding was upheld at the Supreme Court of Canada (SCC). Although t he By-law was
not framed as addre ssing adaptation to climate change per se, it cou ld easily be construed
as such: climate change will li kely lead to increased heavy precipitation events,33 and t his
precipitation could increase pesticide runo into water bodies,34 with negative eects on
human he alth.35 Hudson m ay also have wider implications for other adaptations. e By-
law relied on a general welfare (‘omnibus’) provision in the Cities and Towns Act: “the
council may make by-laws: to secu re peace, order, good government, health and general
welfare in the territory of the municipality […].”36 Presumably, omnibus provisions such
25 Urban centers tend to have higher levels of wealth, edu cation and skill sets, and access to
technology and institu tions (From Impacts to Adaptation, supra note 7 at 14).
26 These vulnerabilities are par ticularly dangerous for poor a nd elderly populations, which te nd to
cluster in urban areas (ibid).
27 Meehan et al, supra note 24 at 43-4 4.
28 For an excellent summary of municipal powe rs and land use, see Howard M Epstein,
“Subsidiarity at Work — The L egal Context for Sustainabilit y Initiatives at the Local Government
Level: How an Environmental Agend a Could be Advanced by Canadian Municipali ties” (2010) 63
Municipal and Planning Law Rep orts 56 [Epstein 2010].
29 Donald Lidstone, “A Comparison of New and Propos ed Municipal Acts of the Provinces:
Revenues, Financial Powers and Re sources” (Paper prepared for the 2001 Annual Co nference of
the Federation of Canadian M unicipalities, Ban, Alberta, 27 May 20 01) [unpublished] at 1.
30 Meehan et al, supra note 24 at 8.
31 Meehan et al, supra n ote 24.
32 Hudson, supra note 11 at paras 6-7.
33 From Impacts to Adaptation, supra note 7 at 10.
34 Pamela D Noyes et al, “The Toxicology of Climate Change: Enviro nmental Contaminants in a
Warming World” (2009) 35:6 Environment Interna tional 971.
35 KL Bassil et al, “Cancer Health Eec ts of Pesticides” (2007) 53:10 Canadian Family Physician 1705.
36 RSQ c C-19, s 410(1).
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as this could be used for other environmental hea lth issues relevant to climate change
is paper is subsequently divided into Parts I through III. Part I will present a brief
overview of projected impacts of c limate change on Canadia ns’ health and introduce the
concept of climate chang e adaptation. Part II wil l describe the legal context for ad aptation,
as well as ex isting health adaptations, at federal, provi ncial, and municipal leve ls. Part II
will draw va riously on environmental law, general climate change a daptation, and health
adaptation, as appropriate.38 Part III w ill provide a Hudson case comment. is Pa rt will
describe the case, analyze its implications for municipal authority over environmental
issues, respond to criticism of the case, and explain its potential implications for
municipal health ad aptation. Finally, the Conclusion will summariz e the main ndings,
namely that municipalities may have increasing l atitude to regulate local environmental
issues, including hea lth adaptation.
I. CLIMATE CHANGE HEALTH IMPACTS AND ADAPTATION
Climate change w ill have serious and complex impacts on human health. e
Intergovernmental Panel on Climate Change (IPCC) state s that climate change is
“unequivocal”39 and is projected to lead to health impacts in all countries and regions.40
ese impacts wil l “put the lives and wellbeing of billions of people at increased risk,”41
particula rly vulnerable populations like children and the elderly.42 Health Canada
highlights si x main health v ulnerabilities for Canada: extreme temperatures; air
quality; str atospheric ozone depletion; extreme weather events; vector- and rodent-borne
infectious disease; and food- and water-borne disease.43 Consider water-borne disease,
which could be aected by climate change in various ways. Heav y precipitation could
increase runo, leading to water contamination by E . coli (similar to contamination by
pesticide runo, discu ssed above). Marine environments could experience increa sed algal
blooms, such that sh and shellsh for human consumption contain increased levels of
toxins. Water-borne disease may also be i mpacted indirectly by climate change —longer
swimming s easons could increase exposure to poor water qu ality, increasing disease risk .
ese vulnerabil ities are summarized in Table 1. Adaptation wil l be necessary to prevent,
reduce, and manag e these climate change-related risks .
37 Howard Epstein, “Case Comment: Spray tech v. Town of Hudson” (2001) 19 Municipal and Planning
Law Reports 56 at 65 [Epste in 2001] (potential for omnibus provisions to address varie ty of
issues); Swaigen, supra note 17 at 163 (potential for omnibus provisi ons to address variety
of issues); Marcia Valiante, “Turf War: Municipal Power s, the Regulation of Pesticides and the
Hudson Decision” (2001) 11 J Envtl L & Prac 327 at 339 (potential for omnibus provisions to
address variety of issu es).
38 Health adaptation is an incredibly bro ad, cross-cutting issue that could invol ve a wide
range of government depar tments (see Part I). This paper is wr itten primarily with a lens on
environmental issues and climate c hange, rather than health care per se, to prov ide a more
focused analysis of Hudson.
39 “IPCC, 2007: Summary for Policymakers ” in S Solomon et al, eds, Climate Change 20 07: The
Physical Science Basis. Contribution of Working Group I to the Four th Assessment Report of the
Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) at 5.
40 Klein et al, supra note 1.
41 Costello et al 2009, supra note 5 at 1693.
42 Human Health, supra note 7 at 3 71.
43 Ibid at 14.
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Table 1: Summary of typical climate change impacts on health in Canada44
Selected climate-related causes Selec ted projected / possible
Air qu ality
levels of ground-le vel ozone and
airborne du st
pollens and spores by plants
and shortness of breath
allerg y symptoms
to UV radiation owi ng to
behavioural changes resulting
from a warmer climate
cancers, cata racts, and eye
thunderstorm s and hurricanes
violent storms, oods, etc.
psychologic al harm
infrastr ucture damage, etc.
ecology of various d isease-
carryi ng insects, ticks, and
borne infectious dis eases native
to Canada (e.g. Rocky Mounta in
and recreational water
environments that result in a lgal
blooms and higher levels of
toxins in sh and shel lsh
to behavioural changes resulting
from a warmer climate (e.g.
through longer BBQ and
swi mming season s)
organisms such a s E. coli and
other water-borne pathogens
44 Adapted from Human Health, supra note 7 at 14.
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Adaptation is a complex process, since adaptation can take many forms and involve
various actors over time.45 Ad aptation actions include: research, such a s reports, maps, and
models; planning st rategies to guide adaptation; network s between relevant stakeholders;
legislation; awareness ra ising; and implementing ad aptation infrastructure.46 Sustained
commitment to research and planning, for instance, is often required before adaptation
infrastructure can be implemented successfully. It is necessary to appreciate these
dierent types of actions to understand the diverse and complementary roles t hat may
be played by actors at dierent levels of government.
It can be dicult to identif y health adaptations. Health and climate change are broad
subjects aected by a ra nge of government roles and responsibilities. Often, initiatives
not described as explicit health adaptation, like the Hu dson By-law, have implications
for adapting to the health eects of climate change.47 It is preferable to take a broad
view of health adaptat ion, rather than limit the analysis to mea sures that explicitly
cite climate change a s a motivation,48 because (1) a measure’s true motivation can be
dicult to ascer tain, and (2) an action’s impact—rather than its stated motivation—is
more relevant to Canadia ns’ actual health. erefore, I adopt a broad concept of health
adaptation for this paper.
II. LEGAL FRAMEWORK FOR ADAPTATION AND EXISTING
To understand the legal framework for municipal health adaptation, it is necessary
to understand the broader lega l context at dierent levels of Canadian government.49
First, Subpart A wil l examine the federal and provincia l division of powers and how this
division of powers has played out for environmenta l issues in general, and adaptation in
particula r. Subpart B will examine municipalities’ evolving powers and roles, drawing
principally from work by constitutiona l law expert and practitioner Eugene Meehan,50
and will provide a snapshot of adapt ations occurring at the municipal level.
A. Federal and Provincial Governments
i. Federal and Provincial Division of Powers
e Constitution Act, 1867 sets out the legislative powers of the federal government and
provincial governments in sec tions 91 and 92 respectively.51 e environment constitutes
45 Lindsay F Wiley, “Mitigation/Adaptation and Health: Health Policymaking in the Global
Response to Climate Change and Imp lications for Other Upstream De terminants” (2010) 38:3 JL
Med & Ethics 629 at 636 (interdisciplinar y nature of adaptation).
46 Tompkins et al, sup ra not e 15.
47 Carolyn Poutiainen et al, Civil So ciety Organizations and Adaptation to the H ealth Eects of Climate
Change in Canada (2011) [in press].
48 Tompkins et al, sup ra note 15 at 630 (denition of adaptation that includes ac tions motivated by
non-climate drivers as well as climate change).
49 Th is analysis does not consider: (1) actions taken by other ac tors (civil society organiz ations,
businesses, individuals), which ar e important for adaptation (Pout iainen et al, supra note 47); or
(2) the international legal contex t, since the United Nations Framework Conventio n on Climate
Change (UNFCCC) (9 May 1992, 1771 UNTS 107
) prioritizes adaptation in developing countries ,
rather than domestic adaptation in developed countries.
50 Supra note 24 .
51 Constitution Act, 1867 (UK), 30 & 31 Vict, c3, ss 91-92, reprinted in RSC 1985, App II, No 5.
APPEAL VoLuME 18
a cross-cutting, inter-sectoral matter that does not t neatly into these legal categories.52
Many federal heads of power a re potentially relevant to environmental issues, such a s
trade and commerce (section 91(2)) and sheries regulation (section 91(12)).53 e federal
government also has the re sidual “peace, order and good government” (POGG) power.54
e POGG power has been applied to environmental issues such as marine pollution.55
Meanwhile, the province s have jurisdiction over property and civ il rights (section 92(13)),
which has proved most releva nt to environmental regulat ion.56
Under the classical federalism paradigm, jurisdictions are seen as “watertight
compartments,” with strong exclusivity between federa l and provincial powers.57
However, the prevailing modern paradigm features weaker exclusivit y between federa l
and provincial powers, which permits complementary progra ms between levels of
government and spillover eects of sin gle-jurisdiction programs.58 For example, the SCC
has sanctioned the u se of administrative inter-delegation,59 sometimes enthusiastically.60
Both paradigms have been associated w ith dierent stages of Canadian constitutional
history—with t he classical paradigm corresponding with the pre-World War II Privy
Council period, and the modern paradigm gaining prominence post-World War II61—
and map onto dierent subject matters.62 e classical paradigm, with its deregulatory
bias, has been applied to legislation that is viewed a s “interfering with the operation
of free markets”; the modern paradigm has been applied to legislation seen as treating
“issues of morality or social order.”63 e modern paradigm has also been useful for
legislation addressing complex issues that “do not t so neatly into jurisdictional boxes”
as envisioned by the classic al paradigm.64
Swaigen, supra note 17 at 182; Chalifour, supra note 14 at 173; Morton, supra note 17 at 37. Note
that environmental issues will b e examined here because they o er richer and more extensive
jurisprudence than climate chan ge, and environmental issues often have imp lications for health
53 Morton, supra note 17 at 42.
54 Constitution Act, 1867, su pra note 51 (Parliament may make laws “for the Peace, Or der, and good
Government of Canada, in rela tion to all Matters not coming within the Cl asses of Subjects by
this Act assigned exclusivel y to the Legislatures of the Provinces” at s 91).
56 Morton, supra note 17 at 38.
57 B ruce Ryder, “The Demise and Rise of th e Classical Paradigm in Canadian Federal ism: Promoting
Autonomy for the Provinces and First N ations” (1991) 36:2 McGill LJ 308 at 312, 323 (citing, e.g.,
Canada (AG) v. Alberta (AG),  1 AC 588, 26 DLR 288 (PC) Lord Haldane).
58 Ibid a t 312.
59 Prince Edward Island (Potato Marketing Board) v HB Willis Inc,  2 SCR 392, 4 DLR 146; Reference
(Highway Transport Board),  SCR 569, 68 DLR (2d) 384 [Coughlin]; Ryder, supra note 57 at
326 (citing these cases). Administrative inter-del egation refers to the delegating o f power by
the federal Parliament and t he provincial legislatures “in fur therance of the administration of
government” (CED (Administrat ive Law), II.1.(b) at §12).
60 Coughlin, supra note 59 (Cartwright J state d that “it is satisfactory to nd tha t there is nothing
which compels us to hold that the ob ject sought by this co-ope rative eort is constitutionall y
unattainable” at 576 cited to SCR); Ryder, supra note 57 at 326 (citing permissive judicial attitude
61 Ibid at 380.
62 Ibid at 327-2 8.
63 Ibid at 380. See e.g. Re Insurance Act of Canada,  AC 41,  1 DLR 97 (PC) (strik ing down
federal insurance regulati on under classical paradigm, cite d by Ryder, supra note 57 at 329),
Russell v R, (1882) 7 App Cas 829 (PC) (allowing regulation of liquor tr ade using principles of
modern paradigm, cite d by Ryder, supra note 57 at 329). Note that obviously, legislation does
not “come pre-package d with a markets or morality ‘t ag.’ The characterization that is ad opted is
largely a matter of judicia l discretion […]” (Ryder, supra note 57 at 331).
64 Ibid at 313.
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Unsurprisingly, this modern trend is pre valent for environmental regulation. is re gime
has been shaped by jurispr udence and political forces to emerge as a province- dominated
patchwork. Jurisprudence has rec ognized concurrent jurisdiction in most envi ronmental
areas, limiting federal unilateralism and a llowing a strong provincia l presence.65 In
Friends of the Oldman River Society v Canada (Minister of Transport), Justice La Forest
acknowledged that the environment “does not comfortably t within the existing
division of powers without considerable overlap and uncertainty,”66 and that both the
federal and provincial levels of government can exercise authority in a way that aects
the environment.67 e provinces became active in regulating environmental issues
in the 1960s-70s, principally based on section 92(13) powers relating to property and
civil rights.68 By the late 1960s, when the federal government rst became interested in
regulating environmental issues, much provincial regulation with a rm constitutional
basis had already been established. is timing—in conjunction with a limited judicial
interpretation of the federal POG G power up to that point—minimize d federal unilatera l
powers on environmental matters.69 To summari ze, the Canadian environmental pol icy
regime is a patchwork that could be described as province-dominated, with federal
support in shared progra ms and limited federal unilatera lism.70
ii. Federal and Provincial Climate Change Adaptation
Canadian climate change adaptation is described as an evolving patchwork or “mosaic”
of actions at dierent levels of government.71 Ca nada still lacks a nat ional adaptation plan
or strategy to provide top-down d irection and cohesion to adaptation eorts.72 Ho wever,
the federal government has b een active in developing climate models and sc enarios73 and
undertaking national assessments.74 Regarding health in par ticular, the major resea rch
group is the Climate Cha nge and Health Oce in Health Ca nada. is group published
Human Health in a Changing Climate in 2008,75 which assesses Canada’s vulnerability
and ability to adapt to the hea lth eects of climate change. is group also conducts
other research, such a s response systems to add ress extreme heat events.76
Many provinces have provincia l adaptation plans or strategies contai ning health-relevant
component s.77 For example, Ontario’s Climate Change Action Plan addresses climate
change impacts on source water protection.78 Provinces also participate in six Regional
Adaptation Collaborat ives (RACs) in the North, British Columbia , the Prairies, Ontario,
65 Morton, supra n ote 17.
66 Supra note 52 at para 94.
67 Ibid at para 95.
68 See e.g. R v Lake O ntario Cement,  2 OR 247, 35 D.L.R. (3d) (Ont HC); Morton, supra note 17 at
38-40 (citing R v Lake Ontario Cement ).
69 Ibid at 41.
70 Ibid at 50.
71 Thea Dickinson & Ian Burto n, “Adaptation to Climate Change in Canada: A Multi-Le vel Mosaic”
in James D Ford & Lea Berrang- Ford, eds, Climate Change Adaptation in Devel oped Nations: From
Theory to Practice (Dordrecht : Springer, 2011) 104.
72 Ibid at 105-106, 116.
74 Canada, Environment Canada, The Canada Country Study: Climate Impacts and Adaptation
(Ottawa: Government of Can ada, 1997); From Impacts to Adaptation, supra no te 7.
75 Human Health, supra no te 7.
76 Health Canada, “Developing Heat Resilient Communities and Individuals in Canada” (2010),
online: Health Canada .
77 Dick inson & Burton, supra note 71 at 109.
78 Ibid at 112.
APPEAL VoLuME 18
Quebec, and the Atla ntic, respectively.79 RACs were est ablished in conjunction with
Natural Resources Canada and the provinces80 in order to address regional decision-
making and adaptation planning. Many areas of study are connected to health, such a s
water management and ood protect ion in the British Columbia RAC.81
In summar y, adaptation eorts to date be ar out the modern trend that allows concurrent
jurisdiction and discards the watert ight compartment paradigm. Adaptation eorts
resemble the environmental policy regime in that adaptations are emerging ad hoc.
However, it is unclear whether adaptation will end up dominated by the provinces a s
the general environmental regulation regime has been. Both levels of government must
continue addressing adaptation, and in particular, a national plan or strategy is needed
to guide eorts at a ll levels.
B. Municipal Governments
i. Municipal Powers: the Traditional View
Under the traditional view, municipal powers are quite limited. Municipal powers
are derived from two fu ndamental source s: the Baldwin Act and section 92(8) of the
Constitution Act, 1867. e 1849 Baldwin Act set out the role, function, and structure
of local governments in what wa s to become Canada.82 e Baldwin Act places local
governments in a “secondary a nd subservient position” to higher levels of government.83
Section 92(8) of the Constitution Act, 1867 grants provinces the authority to pass laws
establishing municipalities.84 Municipalities, a s “creatures” of the provinces, are deleg ated
their authority from the province s through provincial statutes .85 ese provincial statutes
can only delegate powers to municipa lities that are intra vir es the provinces’ own authority
under the Constitution.86
Broadly speaking, provinces delegate authority by enacting municipa l enabling
legislation. Provinces pa
ss general municipal act
that provide for the “f
formation and operation” of municipalities.88 To incorporate a specic municipa lity, a
province may also enact a n individual statute (e.g. City of Toronto Act).89 e general
municipa l act plus any specic incorporating legislation comprise that municipality’s
79 Natural Resources Canada, “Re gional Collaboratives: About the Collaboratives” (2011), online:
Natural Resources Canada
80 Dickinso n & Burton, supra note 71 at 107.
81 RACs, supra note 79.
82 Ian M acFee Rogers, The Law of Canadian Municipal Corporations, vol 1 (Toronto: Carswell, 1959) at
83 Me ehan et al, supra note 24 at 4.
84 Constitution Act, 1867, su pra note 51 at s 92(8); Rogers, supra note 82 at 36 (explanatio n of
provincial constitutional authority).
85 Me ehan et al, supra note 24 at 5 (explanation of munici pal status).
86 Rogers, supra note 82 at 36.
87 Ibid at 37; Mark Adkins, Len Griths & Shawna Parr, “Th e Hudson Decision: An ‘Over-
Precautionary’ A pproach?” (2002) 51 UNBLJ 231 at 232-33; Meehan et al, supra note 24 at 16.
88 Adkins et al, s upra note 87 at 232.
89 Cit y of Toronto Act, 2006, SO 2006, c 11, Sch A. See Rogers (supra no te 82 at 37) for details on
various modes by which incorporation may occur.
90 Adkins et al, su pra note 87 at 232. Note that this is a simplied v iew of “enabling legislation.”
For example, Ontario has over 100 st atutes assigning powers to local autho rities beyond those
conferred on them by the gen eral municipal act
(Rogers, su pra
note 82 at 32).
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Using a basic framework, enabling legislation ty pically gives municipalities authority
in two ways.91 First, this legislation may enumerate municipal authority within specic
subject areas,92 such as local tree pla nting. Second, enabling legislation may include
omnibus provisions that confer discretionary powers over broad issues that are not
enumerated by the legislation.93 For example, reca ll that section 410(1) of the Quebec
Cities and Towns Act, which was at issue in Hudson, states that “the counci l may make by-
laws: to secure peace, order, good government, hea lth and general welfare in the ter ritory
of the municipality […].”94
e traditional principle, know n as Dillon’s Rule, is that municipalities can only exerc ise
powers that are explicitly conferred upon them by a provincial statute, construed
narrowly.95 Any doubts are resolved against municipality authority.96 As summarized by
the Ontario Court of Appe al in Ottawa Electric Light Co v Ottawa (City):
It is a general and undisputed proposition of law that a municipal
corporation possesses and can exercise the following powers and no
others, rst, those granted in express words; second, those necessarily or
fairly implied in or incident to the powers expressly granted; third, those
essential to the declared objects and purposes of the corporation, not
simply convenient , but indispensable.97
is traditiona l view is also expressed in E ast York (Borough) v Ontario (Attorney Gen eral),
in the follow ing four principles:
(i) municipal institutions lack constitutional status;
(ii) municipal institutions are creatures of the legislature and exist only if
provincial legislation so provide s;
(iii) municipal institutions have no independent autonomy and their
powers are subject to abolition or repeal by provi ncial legislation;
(iv) municipal institutions may exercise only t hose powers which are
conferred upon them by statute.98
Overall, the traditional view has largely constra ined municipal law-mak ing powers
ies.99 Municipal action ha s been “particularly susceptible” to
judicial in spection.100
ii. Increased Municipal Latitude: A Changing Paradigm
In spite of the traditional view of municipalities, jurisprudence and legislation have
increasingly allowed some degree of deference to municipal decisions. Yet, despite their
91 Adkins et al, supra note 87 at 233.
92 Rogers, supra note 82 at 306.
93 Ibid at 313 .
94 Cities and Towns Act, supra note 36.
95 Me ehan et al, supra note 24 at 16, 26; Valiante, supra note 37 at 333.
96 Meehan e t al, supra note 24 at 26.
97 Ottawa Electric Co v Ottawa (City) (1906), 12 OLR 290 (Ont CA), cited in Meehan et al, su pra note 24
98 (1997), 34 OR (3d) 789 at para 14, 45 CRR (2d) 237, (Ont Gen Div).
99 Meehan e t al, supra note 24 at 15.
100 Ibid at 22.
APPEAL VoLuME 18
increasing importance, neither municipalities’ constitutional status nor revenue raising
abilities have substantially changed.101 Municipalities today are t herefore in a dicult
position: “[o]n the one hand the demands made upon municipalities have signicantly
grown, yet on the other hand, the law-ma king and nancial tool s have remained virtua lly
Responding at least in part to this problem, progressive judicial interpretation of
municipal authority has emer ged. In Shell Canada Products Ltd v Vancouver (City) (“Shell
Canada Products”), the SCC asses sed whether impugned municipal provisions were ultra
vires.103 Justice McLachlin (as she then was), dissenting, identied two approaches to
assessing municipa l powers: (1) a “narrow conning approach” or (2) a “broader more
deferential approach.”104 While the majority adopted the narrow approach, Justice
rgued that, except i
n cases where municipal act
ions are clearly ultra
vires, the deferential approach is preferable for four reasons. First, cour ts must respect
local decisions for the proper functioning of local democracy.105 Second, deference to
municipal decisions avoids the cost s and uncertainty of excessive litigation.106 ird,
deference is more consistent with municipalities’ expanding range of responsibilities; a
traditional inter ventionist approach would conne municipa lities in the “straightjackets
of t ra dit ion .”107 Final ly, a deferential approach is more consistent with the SCC’s approach
to judicial review of administrative agencies.108 e deferential approach advocated here
has been quoted approvingly in recent SCC cases, including Hudson.109 Progre ssive
judicial interpretation may contribute to easing municipalities’ di cult position in the
face of increasing re sponsibilities.
Some recent provincial legislation similarly adopts a progressive approach to municipal
law making. Se
ction 8 of the Ontario Municipal Act, 2001
powers should be interpreted broadly to “confer broad authority on the municipality to
enable the municipality to govern its a airs as it considers appropriate and to enha nce the
municipality’s ability to respond to municipa l issues.”110 e Quebec Municipal Powers
Act (“MPA”)—which replaced the Cities and Towns Act at issue in Hudson—has similar
interpretive provisions.111 e British Columbia Community Charter: A New Legislative
Framework for Local Government (“Community Charter ”) recognizes that municipalities
are an order of government that occupy a “centra l place” in the governmental system,
and that they must have a rel ationship with the provinces based on “mutual respect.”112
101 Meehan et al, supra note 24 at 9.
102 Ibid at 10.
104 Ibid at para 49; Mee han et al, supra note 24 at 28 (noting two approach es taken in Shell Canada
105 Shell Canada Products, supra note 103 at para 64; Meeh an et al, supra note 24 at 28 (noting
benets of deferenti al approach expounded by McLa chlin J).
106 Shell Canada Products, supra note 103 at para 65; Meehan et al , supra note 24 at 28 (noting
benets of deferenti al approach expounded by McLa chlin J).
107 Shell Canada Products, supra note 103 at para 66.
108 Ibid at para 67; Meehan et al, su pra note 24 at 28 (noting benets of defere ntial approach
expounded by McLach lin J).
109 Hudson, supra note 11 at para 23; Meehan et al, supra note 24 at 28 (noting Suprem e Court’s
approval in Hudson).
111 RSQ 2009, c C-47.1, art 2.
112 British Columbia, The Community Cha rter: A New Legislative Framework for Local Government
(British Columbia: Government o f British Columbia, 2002) at 7 [Community Charter].
APPEAL VoLuME 18
In summary, a progressive approach to municipal regulation ha s emerged in the
jurisprudence and some provincial legislation. is progressive approach, and especially
the Quebec MPA, wi ll be discussed in Part III. However, municipalities’ constitutional
status remains formally unchanged, and their revenue ra ising abilities remain largely
limited, despite being face d with increasing responsibilities.113
iii. Municipal Climate Change Adaptation
Many municipal responsibilities are potentially relevant for health adaptation,114 and
adaptations are occu rring within t hese recognized spheres in conjunction with other
levels of government.115 A n example of national–municipal cooperation is t he Natural
Resources Canada report Adapting to Climate Change: An Introduction for Canadian
Municipalities.116 is report provides information to municipal decision-makers,
primarily through case studies on municipal adaptations across Canada. For instance,
the report highlights Metro Vancouver’s Stormwater Management Program, which
addresses stormwater runo quality and qua ntity. An example of provincial–municipal
cooperation is the Ontario Cl imate Change Action Plan, which provides for the creat ion
of Municipal Water Sustainability Plans under the provincial Water Opportunities and
Water Conservation Act.117 In this way, higher levels of government recognize and guide
municipal adaptation wit hin spheres of established municipal responsibility.
To summarize Subpart B, the subordinate constitutional status of municipalities has
not formally changed, although jurisprudence and provincial legislation are showing
increased deference to municipa l authority. Municipalities are currently engaging in
adaptation initiatives, like stormwater management described above. ese initiatives
contribute to Canada’s adaptation patchwork and support the view that adaptation is
occurring in the spirit of the modern federalism pa radigm, with action being taken at
dierent levels of government. e Hudson decision furt her suggests how municipalities
may contribute to this adaptation patchwork.
III. HUDSON: CASE COMMENT
e Town of Hudson, Quebec, adopted By-law 270 in 1991. e By-law restricted the
use of cosmetic pesticides in the municipality. In 1992, two landsc aping and lawncare
companies, Spraytech a nd Chemlawn (“the appellants”), were charged with v iolating the
By-law and summoned before the Municipal Cour t. e appellants held valid provincial
113 Meehan et al, sup ra note 24 at 30-31, 35-36.
114 Dickinson & Bur ton, supra note 71 at 108.
115 Municipal adapta tions are also occurring in conjunctio n with non-governmental ac tors. Many
municipalities parti cipate in the Partners for Climate Protec tion program, which is run by the
Federation of Canadian Muni cipalities and ICLEI Canada to suppor t adaptation to local climate
impacts (Federation o f Canadian Municipalities, “Par tners for Climate Protection: Munici pal
Resources for Adapting to Climate Chan ge” (2009), online: Federation of Canadian Mu nicipalities
116 Canada, Natural Resources Canada, Adapting to Climate Change: An Introduction for Canadian
Municipalities (Ottawa: Government of Canada , 2010) [Adapting to Climate Change].
117 Ontario, Ontari o Ministry of the Environment, Clima te Ready: Ontario’s Adaptation Strategy and
Action Plan (Ontario: Government of Ontar io, 2011) at 30-31.
APPEAL VoLuME 18
licences and applied federa lly registered pesticides.118 e appell ants pled not guilty to the
municipal charge a nd obtained a suspension of proceedings in order to bring a motion
for a declaratory judgment before the Quebec Superior Court. e appella nts sought a
declaration that the By-law was ultra vires Hudson’s authority and inoperative due to
conict with provincia l and federal regulation.119
ii. Legal History
At the Superior Court, Justice Kennedy rst found that the By-law was valid under the
omnibus section 410(1) of the Quebec Cities and Towns Act, which states that “the council
may make by-laws: to secure peace, order, good government, health and general welfare
in the territory of the municipa lity […].”120 Justic e Kennedy also held that the By-law did
not conict with federa l or provincial regu lation121 and was therefore va lid and operable.
At the Court of Appea l, the appellants cha llenged Justice Kennedy’s ruling on two
grounds. First, the appellants alleged that the By-law was enacted pursuant to section
412(32) of the Quebec Cities and Towns Act, which regulates toxic substa nces, rather
than section 410(1). However, Justice Delisle held that the By-law was enacted under
section 410(1), since the By-law’s denition of “pesticide” is identical to that found in
the Pesticides Act,122 and does not refer to toxicity or terms used in section 412(32).12 3
Furthermore, the By-law was enacted in the public interest and in response to residents’
health conc erns.124 Second, the appellants argued that the By-law conicted with the
provincial Pesticides Act125 a nd was therefore inoperative. e court rejec ted this argument
and conrmed the Superior Cou rt judgment.126
iii. Supreme Court of Canada Judgment
e SCC upheld the By-law and dismissed the appea l. e seven Justices were divided
between two opinions. Jus tice L’Heureux-Dubé wrote for the majority (Justices Gonthier,
Bastarache, a nd Arbour concurring), and Justice LeBel wrote a concurring judgment
(Justices Ia cobucci and Major concurring).
Justice L’Heureux-Dubé summarized the t wo issues raised by the appeal: (1) did Hudson
have the statutory authority to en act the By-law; and (2) if Hudson had authority to enact
it, was the By-law inoperative due to a conict wit h federal or provincial legislation?127
Regarding the rst issue, Justices L’Heureux-Dubé and LeBel agreed that the By-
law was validly enacted since its purpose falls within the ambit of section 410(1). e
Justices noted that by-laws are presumed valid;128 the part y challenging the by-law has
the burden of proof;129 and courts should ta ke care to avoid substituting their views of
118 Valiante, supra note 37 at 330.
119 Hudson, supra no te 11 at paras 6 -7.
120 Cities an d Towns Act, supra note 36.
121 Hudson, supra note 11 at para 11.
122 Pesticides Act, RSQ 1993, c P-9.3, s 1.
123 Hudson, supra note 11 at paras 12-13.
124 Ibid at para 14.
125 Pesticid es Act, supra note 122.
126 Hudson, supra note 11 at paras 15-16.
127 Ibid at para 17.
128 Ibid at para 10.
129 Ibid at para 21.
APPEAL VoLuME 18
what is best for citizens,130 in line with the principle of subsidiarity.131 Under this view,
the By-law was held to respond to residents’ concerns about alleged health risks of non-
essential pest icides applied within the municipality, thus falling under section 410(1).132
While Justice LeBel rejected the relevance of international law,133 Justice L’Heureux-
Dubé noted that her reading of statutory authority is consistent with international law’s
precautionary principle. i s principle dictates:
Where there are threats of serious or irreversible damage, lack of full
scientic certai nty should not be used as a reason for postponing mea sures
to prevent environmental degradat ion.13 4
Hudson’s concerns about pesticides ts within this “rubric of preventative action.”135
However, municipalities cannot enact a ny by-law whatsoever under omnibus provisions;
omnibus provisions “do not confer unl imited power” and municipalities can not use these
provisions to enact by-laws that serve u lterior non-municipal objectives.136 Irrespe ctive of
these general lim its to omnibus provisions, the By-law was val idly enacted.
Regarding the second issue—the By-law’s operability—Justices L’Heureux-Dubé and
LeBel agreed that the By-law did not conict with federa l or provincial legislation and
thus was operable. e Justices applied the “express contradiction”137 or “impossibilit y
of dual compliance”138 test to a ssess whether a con ict existed bet ween legislation by
higher levels of government and the By-law. is test denes conict as one regulation
saying ‘yes’ while another says ‘no,’ such that “the same citizens are being told to do
inconsistent things.”139 e federal Pest Control Products Act (“PCPA ”)140 regulates the
importation, manufacturing, sale, and distribution of pesticides in Canada.141 A s the
PCPA is permissive, rather than ex haustive,142 the PCPA was found not to conict with
the By-law.143 e provincial Pesticides Act establishes a permit and licensing system for
vendors and commercial applicators of pesticides.144 e SCC found no barrier to dual
compliance w ith the Pesticides Act and the By-law. e provincial legislation complements
the federal and municipa l legislation, creating a “tri-level regulatory regi me”145 in which
the By-law was operable. is decision embodies several principles that a re potentially
relevant to municipal environmenta l regulation.
130 Ibid at para 23.
131 L’Heureux-Dubé J explained the princip le of subsidiarity as the “propositio n that law-making
and implementation are of ten best achieved at a level of governm ent that is not only eective,
but also closest to the citizen s aected and thus most responsive to t heir needs, to local
distinctiveness, and to p opulation diversity” (Ibid at par a 3).
132 Hudson, supra no te 11 at paras 26-27, 53.
133 Ibid at para 48 .
134 Ibid at para 31 (quoting para 7 o f the Bergen Ministerial Declarat ion on Sustainable Development
135 Ibid at para 32.
136 Ibid at para 20. Als o note that there were no limitations on sec tion 410(1) (Cities and Towns Act,
supra note 36), e.g. municipalities d id not require ministerial approval wh en enacting by-laws
pursuant to this section .
137 Ibid at para 34.
138 Ibid at para 4 6.
139 Ibid at para 34.
140 Pest Control Produc ts Act, RSC 1985, c P-9.
141 Hudson, supra note 11 at paras 35, 46.
142 Ibid at para 35.
143 Ibid at para 46.
144 Pesticides Act, sup ra not e 122 .
145 Hudson, supra note 11 at para 39.
APPEAL VoLuME 18
i. Hudson and Implications for Municipal Environmental Regulation
Hudson exemplie s the emerging trend of judicial deference to municipal authority, and
seems to embody several pri nciples for interpreting municipal law s, including:
1. e part y challenging the by-law has the burden of proof to show it is
ultra vires.146 By-laws are generally presumed v alid;
2. e principle of subsidiarity may be a use ful lens for viewing municipal
3. A lthough they do not confer unlimited power, omnibus provisions can
be a valid source of law.148 Omnibus provisions must be given meaning
to allow municipalities to a ddress emerging or changing loca l issues;149
4. e precautionary principle can be i nvoked to support a by-law;150
5. A federal or provincial regu latory regime does not automatically
invalidate a municipal by-law per taining to the same matter; import ant
matters can be addressed by all levels of government. e dual
compliance test should be used to assess whether a conict exists, and
thus determine the by-law’s operability;151 a nd
6. In gener al, municipal powers should be interpreted generously.152
Immediately following t he Hudson decision, commentators had conicting v iews as to
what the eects of t he case might be. On the one hand, the municipa l and environmental
law scholar Howard Epstein a rgued that Hudson’s practica l eect would be quite limited,
and that municipalities would likely prefer to rely on enumerated powers rather than
omnibus provisions for increased certainty.153 On the other hand, some commentators
hailed Hudson as a “turning point” for Canadian municipalities, with the potential to
dramatica lly enhance municipalities’ abilities to respond to issues ranging from climate
change mitigat ion to perfume bans to f urther restrictions on smoking.154
146 Hudson, supra no te 11 at para 21; Ep stein 2001, supra note 37 at 59 (highlighting important
principles in Hudson).
147 Hudson, supra note 11 at paras 3, 10; Epstein 2001, supra note 37 at 59 (highlighting principles
in Hudson); Meehan et al, supra note 24 at 44 (highli ghting principles in Hudson). Recall
the principle of subsidiari ty enunciated in Hudson: the “proposition that law- making and
implementation are of ten best achieved at a level of government t hat is not only eective,
but also closest to the citizen s aected and thus most responsive to t heir needs, to local
distinctiveness, and to p opulation diversity” (su pra no te 11 at para 3).
148 Hudson, supra note 11 at para 20; Epstein 2001, supra note 37 at 59 (highlighting princip les in
Hudson); Meehan et al, supra note 24 at 57-58 (highlighting princip les in Hudson).
149 Hudson, supra note 11 at para 51; Epstein 2001, supra note 37 at 59 (highlighting principles in
Hudson); Meehan et al, supra note 24 at 58 (highlighting p rinciples in Hudson).
150 Valiante, supra note 37 at 353. Recall the precaut ionary principle enunciated i n Hudson: “Where
there are threats of serious o r irreversible damage, lack of full sci entic certainty should not b e
used as a reason for postp oning measures to prevent environmental d egradation.” (supra n ot e 11
at 31, quoting para 7 of the Bergen Ministerial D eclaration on Sustainable Devel opment (1990)).
151 Hudson, supra note 11 at paras 34, 46; Epstein 2001, supra note 37 at 59 (highlighting principl es in
Hudson); Meehan et al, supra note 24 at 57 (highlighting pri nciples in Hudson). Note that the dual
compliance test has the eec t of minimizing potential conicts ( Valiante, supra note 37 at 341).
152 Hudson, supra note 11 at para 23; Epstein 2001, supra note 37 at 59-60 (highlighti ng principles in
Hudson: Hudson continues and exemplies the trend of a de ferential judicial approach towards
municipal powers, rejec ting the restrictive approa ch adopted by the majority in Shell Canada
Products, supra note 103); Meehan et al , supra note 24 at 44 (highlighting princip les in Hudson).
153 Epstein 2001, supra note 37 at 59-60.
154 Valiante, supra note 37 at 339, 358; Adkins et al, supra no te 8 7.
APPEAL VoLuME 18
Empirically, the former view has prevailed, with most municipalities relying on
enumerated powers—although isolated exa mples support the latter view a s well. For
example, some Quebec decisions have upheld municipalities’ role in regulating local
environmental matters.155 In Wallot c Québec (Ville de) (“Wallot”) at the Quebec Court
of Appeal, the City of Quebec wa s permitted to enact reg ulations forcing landowners
to maintain riparian vegetation in order to protect water qua lity.156 e regulations
were enacted under the omnibus provisions of the Municipal Powers Act,157 as well
as enumerated powers of the Charter of Ville de Québec relating to water quality.158
Notwithstanding these enumerated powers, t he authority conferred under omnibus
provisions was weighed heavi ly by the Court.159
Principles embodied in Hudson have also been cited in decisions about municipal
regulation under enumerated powers. e principle of subsidiarity has been cited in
certain Ontario decisions.16 0 For example, in Pub & Bar Coalition of Ontario v Ottawa
(City) (“Pub & Bar Coalition”), the Pub and Ba r Coalition (“Coalition”) argued that t wo
by-laws enacted by the City of Ottawa (“the City”), which banned smoking in certain
locations, were ultra vires the City’s powers. e Court rejecte d the Coalition’s arguments,
supporting its decision by citing the SCC’s invocation of the principle of subsidiarity in
Hudson. e Court also armed that the party challenging a by-law’s validity has the
burden of proving it is ultra vires, and adopted a generous view of the Cit y’s aut hority.161
erefore, while Hudson may not have dramatica lly increased municipal regulations
under omnibus provisions, principles embodied in Hudson have proved nonet heless
useful for as sessing municipal regulations enacted u nder enumerated powers.
A generous view of municipal authority is also reected in recent changes to Quebec’s
legislative regime. e Municipal Powers Act,162 which replac ed the Cities and Towns Act,
still contain s an omnibus provision: “In addition to the regulatory powers under t his Act,
a local municipalit y may adopt a by-law to ensure peace, order, good government, and
the general welfare of its citizens.”163 e MPA also contains other key articles that have
profoundly modied our conception of municipa l powers with respect to environmental
matters.164 Art icle 2 states:
[M]unicipalities are granted powers enabling t hem to respond to various
changing municipa l needs in the interest of their citizen s. e provisions of
the Act are not to be interpreted in a litera l or restrictive manner.165
155 Jean-Francois Girard, « Dix ans de pr otection de l’environnement par les mu nicipalitiés depuis
l’arrêt Spraytech: const ats et perspectives» in Ser vice de la formation continue, Barreau du
Québec, Développements récents en droit de l’environnement, vol 329 (Cowansville, Que: Yvon
Blais, 2010) 49 at 55.
156 Wallot c Québec (Ville de), 2011 QCCA 1165 [Wallot].
157 Supra n ot e 111.
158 Charter of Ville de Québec, RSQ, c C-11.5, ss 147, 195; Wallot, s upra note 156 at paras 29-34.
159 Ibid at par as 29-33.
160 Pub & Bar Coalition o f Ontario v Ottawa (City) (2001), 23 MPLR (3d) 42 (Ont SCJ) [Pub & Bar
Coalition], armed 2002 CarswellOnt 2079 (Ont CA) and 2002 Car swellOnt 2080 (Ont CA); Ben
Gardiner Farms Inc v West Perth (Township), (2001) MPLR (3d) 43, 152 OAC 47, (Ont Div Ct); Goldlist
Properties Inc v Toronto (City) (2002), 58 OR (3d) 232, 26 MPLR (3d) 25, (Ont Div Ct), additional
reasons in 2002 CarswellOnt 1753 (Ont Div Ct), leave to appeal refuse d and reversed in part
(2003) 232 DLR (4th) 298, 67 OR (3d) 441, (Ont CA); Meehan et al, supra note 24 at 45-46 (citing
161 Pub & Bar Coalition, supra note 160.
162 Supra n ot e 111.
163 Ibid, s 85.
164 Girard, supra not e 155 at 55-61 (explaining signicance of MPA).
165 Supra n ot e 111.
APPEAL VoLuME 18
is interpretive provision foresees mun icipal action on new or emerging issues, inc luding
environmental. Ar ticle 4(4), a general provision on municipal powers, specic ally grants
municipalities jurisdiction in the environmental eld.166 Article 19 elaborates that “[a]
local municipalit y may adopt by-laws on environmental matters”167—if it were not
already suciently clear. In this way, the MPA streng thens municipalities’ ability to
regulate environmenta l issues.
e Municipal Powers Act does not confer municipal authority in all circumstances. In
Ferme l’Éva sion inc c Elgin (Municipalité du canton d’) (“Ferme l’Éva sion”), the namesake
farm was charged with violating a municipal by-law that prohibited spreading sewage
sludge as agricultural fertilizer.168 e farm claimed the ban was ultra vires municipa l
authority. e Superior Court decision echoed Hudson: Justice Reimnitz held that the
by-law was valid under the MPA , and even invoked the precautionary principle, noting
that lack of scientic certainty was not a barrier to the by-law’s validity.169 Howe ver,
this decision was reversed on appeal. Since provincial legislation set specic pa rameters
for permissible municipal bans on sludge application, and the by-law did not respect
these parameters, the by-law was struck down a s invalid.170 erefore, while the overall
trend in Quebec jurisprudence and legislation arguably points to a liberal conception
of municipal authority, cases like Ferme l’Évasion show limits to municipal authority as
well. Municipalities rema in technica lly subordinate, and cannot regulate in a way that
conicts with spe cic regulation by higher levels of government.171
ii. Criticism of Hudson
Some commentators argue that Hu dson is problematic. In t his section, I will outline and
respond to criticism focused on municipa lities’ apparently limited capabilities to reg ulate
environmental issues, in conjunction with the SCC’s treatment of the precautionary
Hudson may arguably provide support for municipalities to regulate complex area s that
are beyond the experience, e xpertise, and resources of municipa l councils. Municipalities
may invoke the precautionary principle to pass by-laws regulating potentially harmful
activities; thi s type of regulation cou ld be a “major step backward” for scientica lly sound
environment al regulation.172 I c oncede that municipalities often lack nancia l resources
to conduct, for example, their own research on best practices.173 I also concede that the
criticism of the precautionar y principle is serious, and will be discusse d in Subpart C.iii.
However, the notion that municipalities should not regu late in complex areas that are
supposedly beyond local c apabilities is suspect for three rea sons. First, local governments
may possess greater knowledge of certain aspects of local issues than higher levels of
government. is rationale under pins the principle of subsidiarity, which recognizes t hat
166 Quebec Municipal Powers Act, supra note 11, s 4(4) (“In addition to the areas of jurisdiction
conferred on it by other Act s, a local municipality has juris diction in the following elds: (4) the
167 Ibid, s 19.
168 Ferme l’Évasion in c. c Elgin (Municipalité du canton d’), 2009 QCCS 4386 [Ferme l’Évasion].
169 Ferme l’Évasion, supra note 168 at paras 175-177.
170 Ferme l ’Évasion inc. c Elgin (Municipalité du canton d’), 2011 QCCA 967.
171 Valiante, supra note 37 (“If federal o r provincial governments want to exclude mun icipal
action from part icular subjects, or steer it in sp ecic limited directions, th ey will have to do so
expressly” at 343).
172 Adkins et al, supra note 87 at 232, 237-238.
173 Jaclyn A Paterson et al, “Adaptation to Climate Cha nge in the Ontario Public Health Sec tor”
(2012) 12 BMC Public Health 452; Sarah Burch, “Transfor ming Barriers into Enablers of Ac tion on
Climate Change: Insights from Thr ee Municipal Case Studies in British Colum bia, Canada” (2010)
20:2 Global Environmenta l Change 287 at 293.
APPEAL VoLuME 18
local governments are more ee ctive in responding to local nee ds.174 is rationale also ts
with local adapt ation to local impacts of climate chan ge, which will be discussed f urther
below in Subpart C. Second, this criticism ignores interaction between municipalities
and other actors. Municipal reg ulation does not occur in a vacuum; it can be supported
by research (e.g. best practice s guides) and nancing from higher level s of government to
combat resource decits and to avoid duplication of eor t where appropriate.175 Depending
on the municipality, even non-governmental organizations (NGOs) may play crucial
roles.176 ird, municipal action can be critical when higher levels of government fa il to
regulate eect ively, as was arguably tr ue for pesticide regulation at the time of Hudson .
e federal government has acknowledged that pesticide registration is no guarantee
that they are sa fe—it just means t hat pesticide risks were considered acceptable at the
time of registration.177 According to an audit in 1999, the federal government fa iled to
re-evaluate the risks of pesticides that had been approved for use long ago, with many
active ingredients in registered pesticides having been approved before 1960.178 is
pesticide regime demonstr ates that municipal act
ion may be needed to protect residents’
health when regulation at higher levels of government is inadequate. For these reasons,
the argument that mun icipalities are ill-equipped to respond to complex environmental
issues likely does not apply in a ll cases.
Overal l, Hud son demonstrates t he enormous potential for municipalities to regu late issues
related to the environment and healt h. To what e xtent may this be true for adaptation to
the health eect s of climate change?
C. Hudson and Health Adaptation
is section will explore the possible implications of Hudson for health adaptations
undertaken by Ca nadian municipalities, based on the fol lowing four points:
1. Adaptations will li kely occur under the authority of exi sting enumerated
powers, alt hough omnibus provisions ma y provide support;
2. Municipal health adaptations may be supported by the principle of
subsidi arit y;
3. Municipal health ad aptations may be supported by the precautionary
4. Municipal health adaptations may complement federal or provincial
regulations related to t he same matter.
i. Adaptations Will Likely Occur Under the Authority of Existing Enumerated
Powers, Although Omnibus Provisions May Provide Support
Unlike in Hudso n, enumerated powers will likely be used to implement municipal hea lth
adaptations. First, as d iscussed above, municipalities tend to rely on enumerated powers
for certainty. Second, enumerated powers have great potential for implementing hea lth
174 Meehan et al, supra note 24 at 44 .
175 Paterson et al, supra note 173; Burch, supra not e 173 at 293; John R Nolon & Patricia E Salkin,
Climate Change and Sustainable Development Law in a Nutshell (St. Paul: Thomson Reuters, 2011)
176 For example, Toronto has an active NGO communi ty that conducts research on envi ronmental
issues (e.g. Clean Air Partnershi p, Pollution Probe). However, not all Canadian municipalities h ave
access to this NGO support (Pouti ainen et al, supra not e 47).
177 Swaigen, supra note 17 at 179.
178 Valiante, supra note 37 at 344-3 46.
APPEAL VoLuME 18
adaptations, due to the cross-cutting nature of health adaptation. Municipalities are
likely to implement many adaptations i n enumerated domains of municipal ju risdiction
which are indirect ly related to health and climate chan ge. Recall that health a nd climate
change are incred ibly broad subjects that are aected by a rang e of government roles and
responsibilities. Often, initiatives that are not described as explicit health adaptations
have implications for adapting to the health eects of climate change.179 For example,
urban tree-planti ng within a municipality ca n be considered a health adaptation.180 Tr ees
in urban area s can oset the heat-island eect to protect ag ainst extreme heat;181 improve
air quality;182 provide shade to protect against UV radiation; and reduce storm runo
volume, therefore reducing ooding ha zards and surfac e pollutant washo.183 In this way,
tree-planting as pa rt of municipal planning, over which municipa lities have enumerated
powers, could be considered a health adaptation. Whether an initiative is intra vires
will depend on the ty pe of initiative: an initiative falling within an area of recognized
municipal authority (e.g. planning, sewage treatment) will likely be acceptable, but an
initiative characterized as a matter within federal or provincial control (e.g. healthcare)
or exceeding enumerated mun icipal powers will l ikely be ultra vires.184
Adaptations enacted on the ba sis of enumerated powers may be further supported by
omnibus provisions. Recall Wallot, in which the City of Quebec’s regulations relied
on both enumerated powers and omnibus provisions.185 Municipal adaptations could
likewise be supported by progressive provincial legislation recognizing municipal
authority ge nerally186 or in the environmental eld.187
ii. Municipal Health Adaptations may be Supported by the Principle of Subsidiarity
e principle of subsidiarity is well suited to supporting local health adaptation
undertaken by a municipa lity. e principle of subsidiarity was explained in Huds on as
the proposition that:
[L]aw-making and implementation are often best achieved at a level
of government that is not only eective, but also closest to the citizens
aected and thus most responsive to their needs, to local distinct iveness,
and to population diversity.188
is principle is usefu l notwithsta nding that provinces have jurisdiction over regu lating
179 Poutiainen et al, supra n ot e 47.
181 Per Bolund & Sven Hunhammar, “Ecosystem Services in Urb an Areas” (1999) 29:2 Ecological
Economics 293; H Akbari, M Pomerant z & H Taha, “Cool Surfaces and Shade Trees to Reduce
Energy Use and Improve Air Qualit y in Urban Areas” (2001) 70:3 Solar Energy 295.
182 Bolund & Hunhammar, supra note 181; David J Novak, Daniel E Crane & Jack C Stevens, “Air
Pollution Removal by Urban Trees and Shru bs in the United States” (2006) 4:3-4 Urba n Forestry &
Urban Greening 115.
183 Qingfu Xiao & E Gregory McPherson , “Rainfall Interception by Santa Mon ica’s Municipal Urban
Forest” (2002) 6:4 Urban Ecosyste ms 291.
184 Epstein 2010, supra note 28 at 89 (limits on exercise of municipal power); Hudson, supra n ote 11
(“In Shell Canada Products…the Court emphasized the local ambi t of such power. It does not
allow local governments an d communities to exercise powers in quest ions that lie outside the
traditional area of municip al interests, even if municipal powers s hould be interpreted broadly
and generously” at par a 53).
185 Wall ot, supra note 156.
186 Ontario Municipal Act, supra note 110, s 9; Community Charter, supra note 112 at 7.
187 Quebec Municipal Powers Act, supra note 111, ss 4(4), 19.
188 Hudson, supra note 11 at para 3.
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health care outcomes per s e.189 Many area s of municipal competence, such as sewage and
zoning, are indi rectly related to health adaptation. e principle of subsidiar ity could be
invoked to support municipal regulation in these domains, as was done in Pub & Bar
Coalition where the principle of subsidiarity was cited to support mun icipal anti-smoking
by-laws enacted pursuant to enumerated power s.190
e principle of subsidiarity emphasiz es how local governments are well-positioned
to regulate local issues eectively. Adaptation is of ten characterized as a local matter:
climate impacts tend to be felt and dealt with fairly loc ally. Top-down ‘one size ts all’
solutions do not apply to all localities, given each location’s particular vulnerabilities.191
Each location has unique exposure and sensitivity to climatic impact s, and unique
abilities to adapt.19 2 Dierent locations a re exposed to dierent climatic impacts, suc h as
storm surges in Atla ntic Canada and permafrost melti ng in Northern Canada. Dierent
locations have vary ing levels of sensitivity to climate impacts: a location with less
coastal development will be less sensitive to storm surges than a location with extensive
development on the coast; a location with a lower popul ation density will be less sensitive
to permafrost melting t han a location with a higher population density, all other things
being equal. Dierent locations also have unique capacities to adapt due to local socia l,
human, and nancia l capital. In this way, the principle of subsidiarity, which emphasiz es
the importance of loca l decision-making, is a suitable lens through which to view and
justify loca l adaptation.193
iii. Municipal Health Adaptations May Be Supported by the Precautionary Principle
Although potentia lly problematic, the precautionary pri nciple may serve as an interpretive
aid to support municipal hea lth adaptations if operationa lized in a meaningfu l way.
e SCC’s use of the precautionary principle as an interpretive tool in Hud son has been
roundly criticized .19 4 e principle cited by the SCC dictate s that:
Where there are threats of serious or irreversible damage, lack of full
scientic certai nty should not be used as a reason for postponing mea sures
to prevent environmental degradat ion.19 5
e SCC has been criticized for missing an opportu nity to advance the development
of this principle in Canadian law, leaving many questions unanswered.196 Given the
189 Constitution Act, 1867, supra note 51, s 92(7).
190 Sup ra note 160.
191 “Appendix 1: Glossary” in in ML Parry et al, e ds, Climate Change 2007: Impacts, Adaptation
and Vulnerability. Contribution of Working Grou p II to the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007)
869 at 883 (denes vulnerabilit y as “a function of the character, magnitu de, and rate of climate
change and variation to which a s ystem is exposed, its sensitivity, and its ad aptive capacity”).
192 Wilbanks, supra note 19 at 284; McDonal d, supra note 19 at 23-25; Glicksman, supra note 12 at
193 McDonald, supra note 19 (“Applying the principle o f subsidiarity to adaptation poli cy and law,
the vast majority of me asures will have to be designed, implemente d and enforced at the local
scale, closest to where imp acts are experienced and th eir eects must be minimize d.” At 24,
194 Valiante, supra n ote 37 at 354; Adkins et al, supra note 87 at 240.
195 Hudson, supra note 11 at 31 (quoting para 7 of the Bergen Min isterial Declaration on Sustaina ble
Development (1990)). Note that there are various formu lations of the precautionary p rinciple,
but all generally follow th e notion “better safe than sorr y” (Chris Tollefson, “Litigating the
Precautionary Princi ple in Domestic Courts” (2008) 19:1 J Envtl L & Prac 33 at 35-36).
196 Valiante, supra note 37 at 353-54; Adkins et a l, supra note 87 at 240.
APPEAL VoLuME 18
principle’s open-ended and ambiguous nature, how should the principle be implemented?
What constitutes a “threat” of serious or irreversible dama ge, and what constitutes
“serious” or “irreversible” damag e? What kinds of measures are per mitted in proportion
to the given risk? To what domains does the precautionary principle apply? To what
extent is it even possible to operationalize the precautionary principle?197 is diculty
can be illust rated by a real-life example that involved a public park i nfested by non-native
beetles. In thi s situation, the Canad ian Food Inspection Agency cited the precautionar y
principle to justify its plan to cut and burn the trees in the park, in order to protect the
lumber industry from the beetle invasion. Groups opposed to the plan also cited the
precautionary principle to justify their proposal of no cutting and fur ther research.198
Clearly, the precautionary principle needs a framework to formalize its implementation
and prevent its “arbitrary use.”199
While Can adian courts have not yet put forwa rd a detailed framework, Aust ralian courts
demonstrate that it is possible to do so. At the La nd and Environment Court of New
South Wales, Chief Justice Preston outlined a framework to apply the precautionary
principle in Telstra Corporation Ltd v Hornsby Shire Council .200 e principle had been
invoked due to health concerns allegedly posed by radiation from a proposed cell
phone station. Chief Justice Preston explained that two conditions must be met before
applying the precautionar y principle. First, there must be a real threat of serious or
irreversible damage.201 Factors to consider include: (a) the spatial scale of the threat;
(b) the magnitude of possible impacts on natural and huma n systems; (c) the perceived
value of the threatened environment; (d) the timing, persistence, a nd complexity of
possible impacts; (e) the manageabi lity and reversibility of possible impacts (i.e. whether
feasible solutions are available); and (f) the level and basis of public concern.202 e
second precondition is whether the appropriate level of scientic u ncertainty exists
regarding the nat ure and scope of environmental damage.2 03 e appropriate level may
be informed by a proportionality test—“where the relevant degree or magnitude of
potential environmental damage is greater, the degree of certainty about the threat is
lower”204—or a “reasonable scientic plau sibility” test.205
If these preconditions are met, t hen the precautionary principle is triggered. e burden
of proof shifts to the par ty seeking to implement a given project to show that the threat
of serious or irreversible damage “does not in fact exist or is negligible.”206 is shifting
does not decide the outcome of the assessment; it aects only one factor, environmental
damage, among many social and economic concerns that must be weighed in a risk
assessment to determine t he appropriate response.207 In this way, the principle “provides
a structured way to deter mine the inputs to a cost-benet analysis.”208 e principle does
not imply zero-risk responses; respons es must be proportional to the risk at hand.209
197 Valiante, supra note 37 at 354-55; Tollefson, supra note 195 at 35-39.
198 Epstein 2001, supra note 37 at 64.
199 Valiante, supra note 37 at 356.
200 Telstra Corporation Ltd v Hornsby Shire Council,  NSWLEC 133 [Telstra]. According to Tollefson
(supra note 195 at 56), the best known case appl ying Preston CJ’s framework is Gray v Min ister for
Planning, 152 LGERA 258,  NSWLEC 720.
201 Telstra, supra note 200 at para 129; Tollefson, supra n ote 195 at 50.
202 Telstra, supra note 200 at para 131; Tollefson, supra note 195 at 50.
203 Telstra, supra note 200 at para 140.
204 Ibid at para 146.
205 Ibid at para 148.
206 Ibid at para 150; Tollefson, supra note 195 at 51-52.
207 Telstra, supra note 20 0 at para 154; Tollefson, supra note 195 at 52.
208 Tollefson, supra note 195 at 52.
209 Telstra, supra note 200 at paras 157, 166.
APPEAL VoLuME 18
If the SCC similarly adopted such a framework, the precautionary principle could be a
useful interpretive aid in assessing municipal health adaptation. Climate change poses
serious threats to Ca nadians’ health, but the precise impacts of cl imate change on health
are fraught with some level of sc ientic uncertainty. For example, predictions about t hese
impacts are ty pically given in probabilistic terms,210 and it is dicult to predict the
occurrence and impac ts of extreme events. Furthermore, indirect impact s often interact
synergistica lly, with potentially complex outcomes that are dicult to predict.211 For
example, recall that the health burden of poor water quality induced by climate change
may be exacerbated by behavioural changes related to climate (increased swimming).212
Given existing k nowledge about the health impacts of climate ch ange, the precautionary
principle could serve as an interpretive aid to support health adaptation undertaken by
municipalities—particula rly “anticipatory” adaptation that seeks to mitigate impacts
before a given stimulus.213
iv. Municipal Health Adaptations May Complement Federal or Provincial
Regulations Related to the Same Matter
Just as the By-law in Hudson contributed to a tri-level regulatory regime for pesticides,
valid and well-designed municipal health adaptation would likely be perm itted to
complement federal and provincial initiatives related to the same health impact. e
municipal adaptation would be subject to the dual compliance test for operability—but
mere overlap between municipal ad aptation and action by other levels of government
would not render the municipal adaptation inoper able.
Indeed, health adapt ation seems to be occurring a s a “mosaic” today, with complementary
eorts being under taken at all levels of government, and actions at h igher levels trickling
down to inform actions at lower levels.214 Complementary eort s should continue to be
taken at dierent levels of government. First, health adaptation touches matters within
the jurisdictions of all levels of government due to its cross-cutting nature.215 Dierent
aspects of a given hea lth impact of climate change, lik e water quality, could interact with
matters within federal, provincial, and municipa l authority simultaneously, implying
that adaptation to this impact would require an overlapping regulatory regime. Second,
adaptation processes mus t occur at dierent levels of government to be eective. Wh ile
local adaptations must be tailored to local conditions, they must also be guided by
broader adaptation plans or strate gies and supported by research and nancia l resources
from higher levels of government.216 For these reasons, an overlapping scheme of hea lth
adaptations should continue in Ca nada, as long as municipal health ad aptation does not
directly con ict with action by other levels of government.
Principles est ablished in Hudson could help to assess the validity and operability of
municipal health adaptations. First, although adaptations will likely be enacted on
210 Timothy R Carter et al, “New assessment meth ods and the characterisation of f uture conditions”
in ML Parry et al, eds, Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of
Working Group II to the Fourth Assessment Re port of the Intergovernmental Panel on Climate Chan ge
(Cambridge: Cambridge University Press, 2007) 133.
211 Costello et al 2009, sup ra note 5.
212 Human Health, supra note 7 at 14.
213 Many writers distinguish “anticipator y” vs. “reactive” adaptations b ased on whether the action
occurs before or aft er the stimulus (Smit et al, supra note 4 at 239).
214 Dickinson & Burton, supra note 71 at 104.
215 McDonald, supra note 19.
216 Paterson et al, supra note 173; Burch, supra note 173 at 293; Nolon & Salkin, supra n ote 175 at 52.
APPEAL VoLuME 18
the basis of enumerated powers, omnibus provisions may provide additional support.
Second, the principle of subsidiarity may justify loca l health adaptation undertaken
by a municipality, since climate impacts tend to be felt and dealt with fairly locally.
ird, municipal health adaptation may be supported by the precautionary principle
as an interpretive aid if a practical framework exists to implement the principle. e
precautionary principle would be particularly persuasive when the adaptation targets
a complex and uncertain health impact of climate change, and when the adaptation
is anticipatory. Finally, valid municipal hea lth adaptations may complement federal
or provincial adaptations related to the same matter. Municipal adaptation would be
subject to the dual compliance test for operability, but mere overlap between municipal
adaptation and action by other levels of government would not render the municipal
adaptation inoperable. Overlap is pa rticularly likely for health adaptations, which by
their nature aect matters within dierent levels of government jurisdiction, and occur
across scales. e e xisting adaptation mosaic evidences t his overlap.
e validity and operability of a given municipal hea lth adaptation must obviously
be assessed on a ca se-by-case basis. Yet, these broad principles extracted from Hudson
suggest that municipalities potentially have wide latitude in implementing loca l health
Climate change w ill have serious impact s on Canadians’ health, and adaptation at all
levels of government will be required to cope with these impacts.218 Division of powers
issues could present unique cha llenges to successfully adapting to climate cha nge. In
particula r, municipal health ad aptations may be susceptible to constitutional cha llenges,
since municipal authority is relatively limited. However, if recent provincial legislation
and cases li ke Hudson are any indication, municipalities may have increasing lat itude to
regulate loca l environmental issues , including health adaptation.
Even if municipalities face fe wer legal barriers to implementing health adapt ation, other
formidable challenges remain. If municipal leaders do not perceive their communities
to be at risk from climatic changes—as is arguably the case in developed countries
generally219 —or if the y are uncertain a bout the extent of municipal authority to undert ake
health adaptation, then they may fail to act. Other salient questions include: To what
extent do municipalities possess sucient political will and funding to adapt?220 How
do municipal adaptations interact with those by higher levels of government?221 What
is the most eective way to implement municipal adaptations?222 ese questions must
be resolved for successf ul adaptation to occur across all levels of C anadian government.
217 Other barriers to eec tive adaptation may exist, such as p olitical leadership, integration o f
actions betwee n levels of government, and nancial constr aints (Burch, supra no te 17 3).
218 Helene Amundsen, Frode Berglund & Hege Wes tskog, “Overcoming Barriers to Clim ate Change
Adaptation - A Question of Mu ltilevel Governance?” (2010) 28:2 Environment and Planning C:
Government and Policy 276 at 277, 287.
219 Ian Burton et al, “From Impacts A ssessment to Adaptation Priorities: T he Shaping of Adaptation
Policy” (2002) 2:2 Climate Policy 145 at 147; Johanna Wolf, “Climate Change Adaptation as a
Social Process” in James D Ford & Lea B errang-Ford, eds, Climate Change Adaptation in Developed
Nations: From Theory to Practice (Dordre cht: Springer, 2011) 21 at 22.
220 Joel B Smith, Jason M Vogel & John E Cr omwell III, “An Architecture for Government Ac tion on
Adaptation to Climate Change. An Editor ial Comment” (2009) 95:1-2 Climatic Change 53 at 54;
Wilbanks, supra note 19 at 283-284.
221 Smith et al, s upra note 220 at 55; Wilbanks, supra note 19 at 283-284.
222 S ee Patricia Hania, “Climate Change and the Prote ction of Drinking Water in Ontario: An
Opportunity to Ad opt Adaptive Management?” (2011) 22:2 J Envtl L & Prac 167 at 170 (discussion
of climate change adaptation implemented using adaptive management principles).