I. Facts

     II. Relevant Statutory Provisions

     1.  The following words and expressions, whenever the same occur in this By-Law, shall have the following meaning:

     a)  "PESTICIDES": means any substance, matter or micro-organism intended to control, destroy, reduce, attract or repel, directly or indirectly, an organism which is noxious, harmful or annoying for a human being, fauna, vegetation, crops or other goods or intended to regulate the growth of vegetation, excluding medicine or vaccine;

     b)  "FARMER": means a farm producer within the meaning of the Farm Producers Act (R.S.Q., chap., P-28);
. . .

     2.  The spreading and use of a pesticide is prohibited throughout the territory of the Town.

     3.  Notwithstanding article 2, it is permitted to use a pesticide in the following cases:

     a)  in a public or private swimming pool;

     b)  to purify water intended for the use of human beings or animals;

     c)  inside of a building;

     d)  to control or destroy animals which constitute a danger for human beings;

     e)  to control or destroy plants which constitute a danger for human beings who are allergic thereto.

     4.  Notwithstanding article 2, a farmer using a pesticide on an immoveable which is exploited for purposes of agriculture or horticulture, in a hot house or in the open, is requested to

     a)  register, by written declaration, with the Town, in the month of March of each year, the products which he stores and which he will be using during that year.

     b)  also provide, in the written declaration at article 4 a), the schedule of application of said products and the area(s) of his property where the products will be applied.

     5.  Notwithstanding article 2, it is permitted to use a pesticide on a golf course, for a period not exceeding five (5) years from the date this by-law comes into force:
. . .

     6.  Notwithstanding article 2, it is permitted to use a biological pesticide to control or destroy insects which constitute a danger or an inconvenience for human beings.
. . .

     10.  For the purpose of article 8 of the Agricultural Abuses Act (R.S.Q. chap. A-2), an inspector designated by the Town may use a pesticide, notwithstanding article 2 of the By-Law, if there is no other efficient way of destroying noxious plants determined as such by the Provincial Government and the presence of which is harmful to a real and continuous agricultural exploitation.

     Cities and Towns Act, R.S.Q., c. C-19
410. The council may make by-laws:
(1) To secure peace, order, good government, health and general welfare in the territory of the municipality, provided such by-laws are not contrary to the laws of Canada, or of Québec, nor inconsistent with any special provision of this Act or of the charter;

     ...
In no case may the council make by-laws on the matters contemplated in the Agricultural Products, Marine Products and Food Act (chapter P-29) or in the Dairy Products and Dairy Products Substitutes Act (chapter P-30). This paragraph applies notwithstanding any provision of a special Act granting powers on those matters to any municipality other than Ville de Trois-Rivières and Ville de Sherbrooke.

     412. The council may make by-laws:

     (32) To regulate or prohibit the storage and use of gun-powder, dry pitch, resin, coal oil, benzine, naphtha, gasoline, turpentine, gun-cotton, nitro-glycerine, and other combustible, explosive, corrosive, toxic or radioactive or other materials that are harmful to public health or safety, in the territory of the municipality or within 1_km therefrom;

     By-laws passed under the first paragraph in respect of corrosive, toxic or radioactive materials require the approval of the Minister of the Environment;

     463.1 Subject to the Pesticides Act (chapter P-9.3) and the Environment Quality Act (chapter Q-2), the municipality may, with the consent of the owner of an immovable, carry out pesticide application works on the immovable.

     Pesticides Act, R.S.Q., c. P-9.3

     102. The provisions of the Pesticide Management Code and of the other regulations of this Act prevail over any inconsistent provision of any by-law passed by a municipality or an urban community.

     102. [as revised in 1993; not yet in force] The Pesticide Management Code and any other regulation enacted pursuant to this Act shall render inoperative any regulatory provision concerning the same matter enacted by a municipality or an urban community, except where the provision
- concerns landscaping or extermination activities, such as fumigation, as defined by government regulation, and

     - prevents or further mitigates harmful effects on the health of humans or of other living species or damage to the environment or to property.

     105. [Not yet in force] The Government shall enact by regulation a Pesticide Management Code which may prescribe rules, restrictions or prohibitions respecting activities related to the distribution, storage, transportation, sale or use of any pesticide, pesticide container or any equipment used for any of those activities.

     105.1. [Not yet in force] The Pesticide Management Code may require a person who stores pesticides of a determined category or in a determined quantity to subscribe civil liability insurance, the kind, extent, duration, amount and other applicable conditions of which are determined in the said Code, and to furnish thereof to the Minister.

     106. [Not yet in force] The Pesticide Management Code may cause any rule elaborated by another government or by a body to be mandatory.

     In addition, the code may cause any instructions of the manufacturer of a pesticide or of equipment used for any activity referred to in the code to be mandatory.

     107. [Not yet in force] The Government may prescribe that the contravention of the provisions of this code which it determines constitutes an offence.

     Pest Control Products Act, R.S.C. 1985, c. P-9

     4. (1) No person shall manufacture, store, display, distribute or use any control product under unsafe conditions.

     ...

     (3) A control product that is not manufactured, stored, displayed, distributed or used as prescribed or that is manufactured, stored, displayed, distributed or used contrary to the regulations shall be deemed to be manufactured, stored, displayed, distributed or used contrary to subsection (1).

     6. (1) The Governor in Council may make regulations
...
(j) respecting the manufacture, storage, distribution, display and use of any control product;

     Pest Control Products Regulations, C.R.C., c. 1253

     45. (1) No person shall use a control product in a manner that is inconsistent with the directions or limitations respecting its use shown on the label.

     (2) No person shall use a control product imported for the importer's own use in a manner that is inconsistent with the conditions set forth on the importer's declaration respecting the control product.

     (3) No person shall use a control product that is exempt from registration under paragraph 5(a) for any purpose other than the manufacture of a registered control product.

     III. Judgments
A. Superior Court

     B. Court of Appeal, [1998] Q.J. No. 2546 (QL)

     IV. Issues

     (1) Did the Town have the statutory authority to enact By-law 270?

     (2) Even if the Town had authority to enact it, was By-law 270 rendered inoperative because of a conflict with federal or provincial legislation?

     V. Analysis

     A. Did the Town have the statutory authority to enact By-law 270?

     As a result, since there is no specific provision in the provincial enabling legislation referring to pesticides, the by-law must fall within the purview of s. 410(1) C.T.A. The party challenging a by-law's validity bears the burden of proving that it is ultra vires: see Kuchma v. Rural Municipality of Tache, [1945] S.C.R. 234, at p. 239, and City of Montréal v. Arcade Amusements Inc., [1985] 1 S.C.R. 368, at p. 395.

     Suppose, for example, that a municipality passed a by-law prohibiting the use of chemical pesticides on residential lawns. With no additional information, one might well conclude that the purpose of the by-law was to protect persons from health hazards contained in the chemical spray. This inference would be based on empirical beliefs about the harms chemical pesticides can cause and the risks of exposure created by their use on residential lawns. It would also be based on assumptions about the relative value of grass, insects and persons in society and the desirability of possible consequences of the by-law, such as putting people out of work, restricting the free use of property, interfering with the conduct of businesses and the like. These assumptions make it implausible to suppose that the municipal council was trying to promote the spread of plant-destroying insects or to put chemical workers out of work, but plausible to suppose that it was trying to suppress a health hazard.

     (Driedger on the Construction of Statutes (3rd ed. 1994), at p. 53)

     Kennedy J. correctly found that the Town Council, "faced with a situation involving health and the environment", "was addressing a need of their community." In this manner, the municipality is attempting to fulfill its role as what the Ontario Court of Appeal has called the "trustee of the environment" (Scarborough v. R.E.F. Homes Ltd. (1979), 9 M.P.L.R. 255, at p. 257).

     ... in Montréal (City of) v. Arcade Amusements Inc., supra, this Court recognized that discrimination in the municipal law sense was no more permissible between than within classes (at pp. 405-6). Further, the general reasonableness or rationality of the distinction is not at issue: discrimination can only occur where the enabling legislation specifically so provides or where the discrimination is a necessary incident to exercising the power delegated by the province (Montréal (City of) v. Arcade Amusements Inc., supra, at pp. 404-6). [Emphasis added.]

     Canada "advocated inclusion of the precautionary principle" during the Bergen Conference negotiations (D. VanderZwaag, CEPA Issue Elaboration Paper No. 18, CEPA and the Precautionary Principle/Approach (1995), at p. 8). The principle is codified in several items of domestic legislation: see for example the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6); Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 ("CEPA"), s. 2(1)(a); Endangered Species Act, S.N.S. 1998, c. 11, ss. 2(1)(h) and 11(1).

     B. Even if the Town had authority to enact it, was By-law 270 rendered inoperative
because of a conflict with federal or provincial legislation?

     1. Federal Legislation

     2. Provincial Legislation

     36Multiple Access also applies to the inquiry into whether there is a conflict between the by-law and provincial legislation, except for cases (unlike this one) in which the relevant provincial legislation specifies a different test. The Multiple Access test, namely "impossibility of dual compliance", see P. W. Hogg, Constitutional Law of Canada (loose-leaf ed. 1997), vol 1, at p. 16-13, was foreshadowed for provincial-municipal conflicts in dicta contained in this Court's decision in Arcade Amusements, supra, at p. 404. There, Beetz J. wrote that "otherwise valid provincial statutes which are directly contrary to federal statutes are rendered inoperative by that conflict. Only the same type of conflict with provincial statutes can make by-laws inoperative: Ian M. Rogers, The Law of Canadian Municipal Corporations, vol. 1, 2nd ed., 1971, No. 63.16" (emphasis added).

     It is no longer the key to this kind of problem to look at one comprehensive scheme, and then to look at the other comprehensive scheme, and to decide which scheme entirely occupies the field to the exclusion of the other. Instead, the correct course is to look at the precise provisions and the way they operate in the precise case, and ask: Can they coexist in this particular case in their operation? If so, they should be allowed to co-exist, and each should do its own parallel regulation of one aspect of the same activity, or two different aspects of the same activity." [Emphasis added.]

     The court summarized the applicable standard as follows: "A true and outright conflict can only be said to arise when one enactment compels what the other forbids." See also Law Society of Upper Canada v. City of Barrie (2000), 46 O.R. (3d) 620 (Sup. Ct.), at pp. 628-30: "Compliance with the provincial Act does not necessitate defiance of the municipal By-law; dual compliance is certainly possible."; Huot v. Ville de Saint-Jérome, J.E. 93-1052 (C.S.), at pp. 19-20: [TRANSLATION] "A finding that a municipal by-law is inconsistent with a provincial statute (or a provincial statute with a federal statute) requires, first, that they both deal with similar subject matters, and second, that obeying one necessarily means disobeying the other."

     According to proponents of the pluralist theory, the provincial legislature very definitely did not intend to abolish the municipality's power to regulate; rather, it intended merely to better circumscribe that power, to ensure complementarity with the municipal management scheme.

     . . .

     The pluralist theory accordingly concedes that the intention is to give priority to provincial statutory and regulatory provisions. However, it does not believe that it can be deduced from this that any complementary municipal provision in relation to planning and development that affects the quality of the environment is automatically invalid.

     . . .

     A thorough analysis of the provisions cited supra and a review of the environmental policy as a whole as it was apparently intended by the legislature leads to the conclusion that it is indeed the pluralist theory, or at least a pluralist theory, that the legislature seems to have taken as the basis for the statutory scheme.

     In this case, there is no barrier to dual compliance with By-law 270 and the Pesticides
Act, nor any plausible evidence that the legislature intended to preclude municipal
regulation of pesticide use. The Pesticides Act establishes a permit and licensing
system for vendors and commercial applicators of pesticides and thus complements the
federal legislation's focus on the products themselves. Along with By-law 270, these
laws establish a tri-level regulatory regime.

     - concerns landscaping or extermination activities, such as fumigation, as defined by government regulation, and

     - prevents or further mitigates harmful effects on the health of humans or of other living species or damage to the environment or to property.

     This revised language indicates more explicitly that the Pesticides Act
is meant to co-exist with stricter municipal by-laws of the type at issue in this case. Indeed, the new s. 102, by including the word "health", echoes the enabling legislation that underpins By-law-270, namely s. 410(1) C.T.A. Once a Pesticide Management Code is enacted, municipalities will be able to draw on s. 102 in order to continue their independent regulation of pesticides. As Duplessis and Hétu, supra, explain at p. 111: [TRANSLATION] "the Quebec legislature has again recognized that municipalities have a role to play in pesticide control while at the same time indicating that it intends to make the municipal power subordinate to its own regulatory activity."

     VI. Disposition

     LEBEL J. --

     Introduction

     The Operational Conflict

     Appeal dismissed with costs.

     Solicitors for the appellants:  Fraser Milner Casgrain, Montréal.

     Solicitors for the respondent:  Bélanger Sauvé, Montréal.

     Solicitors for the interveners Federation of Canadian Municipalities, Nature-Action Québec Inc. and World Wildlife Fund Canada: Sierra Legal Defence Fund, Toronto.

     Solicitors for the interveners Toronto Environmental Alliance, Sierra Club of Canada, Canadian Environmental Law Association, Parents' Environmental Network, Healthy Lawns -- Healthy People, Pesticide Action Group Kitchener, Working Group on the Health Dangers of the Urban Use of Pesticides, Environmental Action Barrie, Breast Cancer Prevention Coalition, Vaughan Environmental Action Committee and Dr. Merryl Hammond: Canadian Environmental Law Association, Toronto.

     Solicitors for the intervener Fédération interdisciplinaire de l'horticulture ornementale du Québec: Ogilvy Renault, Québec.