This paper provides an overview of site alteration by-laws in Ontario and the limits of their authority to regulate excess soils. As Ontario’s On-site and Excess Soil Management regulation (“O. Reg 406/19”) comes into force,1 municipalities are forced to revisit their existing site alteration by-laws and determine a framework for how best to manage and regulate soils excavated from construction sites in their borders.
Single-tier and lower-tier municipalities can both prohibit and regulate site alteration activities through a by-law.2 This authority also allows those municipalities to establish a permitting scheme for the above activities and impose various conditions to the issuance of these permits.3
The Province has recognized the importance of municipal authority in the excess soil regulatory framework. O. Reg 406/19 prescribes requirements for the quality and quantity of excess soils destined for a re-use site. If a “municipal instrument” 4 deals with “quality” requirements, then the regulation will benchmark the stringency of the instrument against provincial standards, such as the Excess Soil Quality Standards (the “Excess Soil Standards”),5 and then imposes the following conditions on the soil:6
|
Stringency
|
Condition
|
|
Equivalent to or more stringent, or in the case that the instrument does not address soil quality.
|
The applicable excess soil quality is determined in accordance with the Excess Soil Standards, not the municipal instrument.7
|
|
Less stringent
|
The requirement in the instrument must be satisfied.
|
A similar analysis is performed to determine the quantity of soil permitted at the re-use site. If the municipal instrument does not stipulate a maximum quantity of soil that may be imported, but does identify the “beneficial purpose” for which soil must be used, then the quantity must not exceed the quantity necessary for the beneficial purpose. If however, the instrument deals with quantity, then the importation must comply with the maximum quantity specified in the instrument.8
Limits to site alteration by-laws
While municipal authority over site alteration is broad, it is not unlimited. In particular, a site alteration by-law cannot apply to various enumerated activities set out in the Municipal Act, 2001,9 notably including site alteration as a condition to the approval of a site plan, a plan of subdivision or a consent or as a requirement of a site plan agreement or subdivision agreement. As such, many larger developments may be exempt from a site alteration by-law.
Other statutory exemptions may also limit the scope of site-alteration by-laws. For example, the Farming and Food Production Protection Act, 1998, states that no municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.10 If a person seeks to engage in a “normal farm practice,” such as for example, conducting site alteration for the purpose of rehabilitating agricultural lands, then that person may apply to the Normal Farm Practices Protection Board for a declaration that an activity is a normal farm practice and that a municipal by-law restricts that practice.11
In addition, residents in a municipality retain a residual discretion under the Municipal Act, 2001 to apply to the Superior Court of Justice to quash a by-law on the basis of illegality.12
The Municipal Act, 2001 is mostly silent on the meaning of “illegality” apart from the express restriction against a challenge on grounds of unreasonableness referenced above. However, Canadian courts have embraced a broad understanding of illegality based on well-developed principles of administrative and constitutional law. Two common issues arise when a site alteration by-law empowers municipal staff to exercise discretion: (1) vagueness, and (2) the rule against sub-delegation.
As a fundamental principle of the rule of law, the unconstitutional vagueness doctrine attempts to ensure that laws provide sufficient guidance so that a reasonably intelligent citizen can remain in compliance.13 A by-law can be invalid for vagueness where it is not “sufficiently intelligible” to provide an adequate basis for debate or reasoned analysis, where the by-law fails to delineate any area of risk, or fails to offer any handhold for a court to perform its interpretive functions.14 Courts have been willing to grant municipalities leeway with respect to their by-laws, meaning that unconstitutional vagueness must be proved to an “exacting” standard.15
The exercise of discretion can attract allegations that a by-law is inappropriately vague. If a by-law empowers an officer to enforce a rule without clear guidance on an applicable standard, then the officer is forced to exercise his/her personal judgment rather than any objective rule. As a result, this discretion can result in the by-law being applied to one individual in one manner, and another in a different way, without any intelligible basis to support the distinction. This type of behaviour violates the rule of law and can lead to a by-law being quashed.
While unconstitutional vagueness applies to site alteration by-laws in the same manner as any other by-law, the standards and site alteration conditions are often set out in precise and significant detail. However, this is not to say that it is impossible to challenge a site alteration by-law for vagueness. The problem is not with general terms conferring broad discretion on a decision-maker, but rather, with “terms failing to give direction as to how to exercise this discretion, so that this exercise may be controlled”.16
The rule against sub-delegation is closely tied to unconstitutional vagueness; municipalities are prohibited from unlawfully delegating legislative and judicial powers without an express statutory authority. This does not prohibit municipalities from sub-delegating administrative tasks to staff, including the ability to issue licences or impose conditions. However, administrative powers can be “transformed” into legislative powers if staff’s discretion is largely unfettered.17 To that end, municipalities should consider providing standards to guide an official’s discretion. Otherwise, the delegation of discretionary power to the official would allow him/her to exercise that power in an unfettered matter or determine the standards that are to be applied in each specific case of site alteration.18
Conclusion
Although site alteration is becoming an increasingly regional issue, the unique circumstances present in each municipality require site alteration to be addressed within the municipality. These tensions reveal the continuing challenge of balancing the often competing provincial interests of promoting growth and intensification against the need to protect the environment and the community from adverse effects.
This article was originally published on the OBA Municipal Law Section’s website.
Matthew Lakatos-Hayward is an associate with Goodmans.
End Notes
2 Municipal Act, 2001, SO 2001, c 25, s 142(1); see also ss 10, 11, 128, 129 [Municipal Act, 2001].
3 Municipal Act, 2001, s 142(2); Section 142(3) also allows a lower-tier municipality to delegate its powers to an upper-tier municipality through an agreement; see also City of Toronto Act, 2006, c 11 Sched A, s 105(1) [City of Toronto Act, 2006].
4 O. Reg 406/19, s 3(2)⁋4, describes municipal instruments as including a site alteration by-law, fill permits issued under a site alteration by-law, Planning Act approvals, certificates of property use issued under the Environmental Protection Act, licences and permits under the Aggregate Resources Act, and other site-specific instruments.
5 see Rules for Soil Management and Excess Soil Quality Standards (2020), available online.
9 Municipal Act, 2001, , s 142(5), see also City of Toronto Act, 2006, s 105(2).
10 Farming and Food Production Protection Act, 1998, SO 1998, c 1, s 6(1).
11 See for example, Snieg v Corporation of the Town of New Tecumseth, 2016 CanLII 66268 (ON NFPPB).
12 Municipal Act, 2001, , s 273(1), see also City of Toronto Act, 2006, supra note 2, s 214(1).
13 Multani c Marguerite-Bourgeoys (Commission scolaire), 2006 SCC 6 at para 117, [2006] 1 SCR 256; Neighbourhoods of Windfields Ltd Partnership v Death (2007), 49 MPLR (4th) 169, 2007 CarswellOnt 9504 at para 18 [Death].
14 Wainfleet Wind Energy Inc v Wainfleet (Township), 2013 ONSC 2194 at para 31, 115 OR (3d) 64 [Wainfleet]; Adult Entertainment Association of Canada v Ottawa (City), 2007 ONCA 389 at para 53, 283 DLR (4th) 704 [Adult Entertainment]; Death, citing Canada v Pharmaceutical Society (Nova Scotia), [1992] 2 SCR 606 at 639 [Nova Scotia Pharma].
15 Nova Scotia Pharma, supra note at 639; Death, supra note at para 26; see also Adult Entertainment at para 53 “Language is not an exact tool, however, and a law cannot be expected to predict the legal consequences of all possible courses of conduct”.
16 Nova Scotia Pharma, at 612; the Ontario Court of Appeal applied Justice Gonthier’s reasoning to a municipal by-law empowering City of Ottawa staff to regulate aspects of adult entertainment clubs in Adult Entertainment, ibid.
17 Vic Restaurant Inc v Montreal (City), [1959] SCR 58 at 64, 17 DLR (2d) 81 [Vic Restaurant].
18 See generally Forst; Vic Restaurant; Stewart v Victoria (City) (1992), 38 ACWS (3d) 172, [1993] BCWLD 671; Kirkpatrick v Maple Ridge (1980), 14 MPLR 19, 119 DLR (3d) 598, rev’d on other grounds, 49 BCLR 134 (BCCA), aff’d [1986] 2 SCR 124.