Several months ago, the City of Toronto announced its decision to ban plastic shopping bags, commencing January 1, 2013. The decision by city council was a reaction to Mayor Rob Ford’s opposition to the five cent mandatory plastic bag fee that consumers have been paying when they receive a plastic bag for merchandise. As one would expect, support and opposition for the ban came from different quarters and in different forms. However, two organizations took their opposition to a higher level: they decided that the courts should intervene and determine whether Toronto’s decision to ban plastic bags can withstand a legal challenge.
City council has now reversed its decision to ban plastic bags, but some councillors are suggesting they want to bring this issue forward again next year for consideration. Had the ban proceeded, it would have been enacted by way of by-law and would have prohibited all Toronto retail stores from providing customers with single-use plastic carry-out shopping bags, including those advertised as compostable, bio-degradable, photo-degradable or similar. Although the ultimate fate of the proposed ban in Toronto remains uncertain at this time, it’s interesting to analyze the basis for the legal challenges that were commenced.
The Ontario Convenience Stores Association (OCSA) brought an application in the Ontario Superior Court of Justice against Toronto, seeking a declaration that either the decision by the city to ban plastic bags, or the bylaw that will be enacted in relation to that decision, was of no legal force and effect.
Legal arguments advanced
The OCSA argued that the resolution made by Toronto falls outside the city’s jurisdiction under the legislation that governs its activities (namely, the City of Toronto Act, 2006). The association argued that the resolution passed by city council was approved without a proper consultation process and therefore violates the common law duties of natural justice and procedural fairness that apply when making such decisions.
The OCSA further argued that the resolution to ban plastic bags is vague and therefore violates Section 7 of the Canadian Charter of Rights and Freedoms. The association advanced several other arguments, including that the ban constitutes a violation of the Canadian Bill of Rights, that the resolution is contrary to Ontario’s Environmental Assessment Act, and that the resolution was made for an improper purpose and constitutes an improper exercise of administrative discretion.
In support of its legal arguments, the OCSA made reference to the fact that the industry consultation process was not undertaken prior to drafting of the by-law, but rather was to be conducted after the resolution was made, and in parallel to drafting of the by-law that was to reflect the resolution. The association argued that such a process cannot be said to be true consultation (since consultation should precede a resolution and occur well before drafting of a by-law).
The association claimed that the draft by-law defined “single use plastic carry out (shopping) bags” in what it called an “arbitrary and discriminatory manner” by excluding bags used in the grocery, “big box,” bakery, laundry/dry-cleaning, newspaper, pharmacy and other sectors. The association argued that singling out of the convenience store sector would directly or indirectly assist a number of competing commercial enterprises.
The CPBA also started a legal proceeding in the Ontario Superior Court of Justice against the City of Toronto. It argued that the plastic bag ban was unlawful and that the resolution was passed in bad faith. The CPBA argued that city council had not received any advice, evidence, or opinion from staff or other persons indicating that the ban would further the economic, social or environmental well-being of the city, or protect the health, safety and well-being of any person.
The CPBA argued that its members have a substantial economic interest in the manufacture, supply, distribution, and sale of plastic bags in Toronto and would be significantly impacted by the ban.
Legal authority of municipalities
These two court challenges to the proposed by-law banning plastic bags are interesting from a legal perspective for two reasons. The first is that, if they proceed, the court will have an opportunity to assess the discretion afforded to city councils to enact legislation that purportedly furthers environmental objectives. Specifically, the court will need to consider the nature and strength of the evidence required for a municipality to enact such a by-law. The second reason is that the court will also consider the jurisdiction given to municipalities, and whether they have the authority to implement measures such as this one.
It will be interesting to see whether the city chooses to proceed with the ban and whether a court will ultimately decide whether municipalities have the authority to make these types of decisions.
Rosalind Cooper, LL.B., is a partner with Fasken Martineau DuMoulin LLP in Toronto, Ontario. Contact Rosalind at firstname.lastname@example.org