Willms & Shier's Virginia MacLean successfully represented the Town of Caledon in obtaining an injunction to prevent the continued operation of a wood waste processing facility in contravention of a zoning by-law.

In 2000, the defendant established a wood waste processing facility to sort, chip and grind waste wood. The processed wood chips were sold to various users for commercial purposes.

Dust from the facility's operations resulted in numerous complaints from neighbours. The MOEE took no effective action. The Town tried to get the defendant to control the nuisance, and moved against the defendant under its Property Standards By-law.

Enforcing property standards by-laws is an arduous process, however. During the process, the Town realized there was a zoning problem.

The defendant was operating in a "serviced industrial zone" (MS), where "a processing plant" is a permitted use. However, the Zoning By-law also establishes a "waste management zone" (MD), where one of the permitted uses is a "waste processing plant."

The Court found that the existence of a waste processing category necessarily meant that a facility that processed waste (even waste for recycling), could not be characterized as a mere "processing plant" under the industrial zone. The Court held that waste processing could only be conducted in an MD zone.

The Judge noted evidence of numerous breaches of the Property Standards By-law. Given the evidence of serious impact on neighbours, the Judge exercised his discretion and granted an injunction preventing the continued use of a waste processing plant on the site.

Under the Municipal Act, 2001, municipalities will gain expanded power to prohibit and regulate noise, vibration, odour and dust.

When By-Laws Can Limit Freedom of Expression

Expanded municipal powers and more flexibility under the new Municipal Act, 2001 means many new or improved by-laws in the coming years. These recent cases should alert municipal counsel and administrators to keep the Charter in mind when drafting or amending by-laws.

Supreme Court Strikes Down Sign By-Law

A recent Supreme Court of Canada decision struck down a municipal sign by-law, while the Ontario Court of Appeal upheld a Toronto by-law restricting collision centre referrals. It is not always simple to determine when a by-law fatally infringes freedom of expression.

A zoning by-law of the City of Saint-Hyacinthe, Quebec, prohibited the erection of an advertising sign outside an industrial zone. Robert Guignard was angry with his insurance company, and posted a sign on his building (outside an industrial zone) to express his dissatisfaction. The courts deem this kind of sign to be "counter-advertising" - a form of commercial expression that is protected by section 2(b) of the Charter.

The Supreme Court found that Guignard's sign was an inexpensive and expedient way for him to deliver a message that he was entitled to express. The courts have ruled that it is unduly restrictive to prevent individuals from using an inexpensive means to express their ideas in public.

This decision is consistent with Supreme Court decisions such as the 1993 Ramsden decision, which struck down a municipal anti-postering by-law.

When a by-law is shown to breach a Charter right, the courts apply the Oakes test to determine whether the restriction in the by-law is reasonable and consistent with the values of a free and democratic society under s. 1 of the Charter. The Oakes test requires the municipality to show that the goal of the challenged by-law is pressing and substantial. The law must be proportionate to the goal in the sense of furthering the goal, and must be tailored to minimize impairment of the right, and its benefits must outweigh the detriment to the freedom of expression. The by-law failed the test in Guignard. This case demonstrates that sign by-laws must be drafted carefully to avoid potential Charter right infringement.

Court of Appeal Upholds Collision Centre Restrictions

In contrast to Guignard, the Ontario Court of Appeal upheld a City of Toronto by-law that infringed the Charter's protection of freedom of expression. The by-law related to Collision Reporting Centres - offices where people involved in motor vehicle accidents are required to report to the police under the Highway Traffic Act.

The by-law prohibits anyone on the premises of a collision-reporting centre from recommending an automotive repair or body shop to the owner of the vehicle involved in the accident. The by-law also requires the Centres to post signs stating that the insurance company representatives and employees of the Centre are prohibited from making such recommendations. An insurance company challenged the by-law.

Although the Court of Appeal held that the by-law violated the Charter's guarantee of freedom of expression, in this case the violation was justified under the Oakes test. The City enacted the by-law to protect owners of cars who would be in a vulnerable state just following an auto accident and who are compelled by law to attend a Collision Reporting Centres to report to police and have their vehicles assessed. People in this state are susceptible to undue pressure from tow truck drivers, insurance adjusters and collision centre staff, all of whom may benefit from steering customers to their preferred garages and body shops

The Court of Appeal was satisfied that the Toronto by-law was passed for the purpose of consumer protection, and to protect the integrity of the collision reporting centres.

The Ontario MOEE posted draft Administrative Monetary Penalty regulations with lists of fines for public consultation (ending April 16, 2002). These include draft regulations for each of the EPA, the OWRA and the Pesticides Act. (The TSSA is preparing AMPs under its own legislation for fuel distribution, handling and storage, as discussed below).

AMPs will be used on a wide range of contraventions of environmental laws and regulations where the expense of prosecuting is not justified. MOEE must choose either AMP or prosecution, not both. The MOEE cannot levy AMPs against corporate directors or officers for failing to take reasonable care or for causing an adverse effect or impairment of water quality.

MOEE has structured these penalties to be a financial lever to get companies to submit to orders or to bring operations into compliance. The regulations will give the Director discretion to reduce fines by up to 50% if the company submits to an order, has displayed due diligence, or has effectively mitigates the effects of the contravention.

Amendments to the EPA, OWRA and Pesticides Act authorizing the AMP program have been in place for more than a year. The regulations will establish the procedures, base penalties and penalty calculations, notice provisions and penalty reductions. The maximum penalty is $10,000 per day, with no ultimate limit on the number of days an AMP may include. However, the draft regulations propose lower "base" daily penalties ranging from $1,500 to $4,000 per day.

Base penalties will be increased where there is a record of prior AMPs or regular convictions. Other factors may also trigger increases from the base amount to the maximum $10,000 per day. AMPs can be levied for each day of an ongoing offence.

AMPs are not equivalent to prosecutions, and the due diligence defence does not apply other than to reduce the amount of the penalty.

Prior to imposing an administrative penalty, MOEE will usually give notice of its intent and an opportunity to consult with the Director, although there are limited cases where a provincial officer can write up and deliver an AMP without prior notice.

AMPs can be appealed to the Environmental Review Tribunal. The Tribunal can rescind the AMP, or confirm or amend it. The Tribunal can only change penalty amounts that it considers to be unreasonable.

MOEE has prepared a Compendium that explains the AMP program in general terms, as well as a draft implementation policy describing the considerations for MOEE staff in imposing AMPs and the relationship to orders, prosecutions and voluntary abatement activities. The proposed regulations, penalty schedules, the Compendium, the draft Implementation Policy and the Environmental Registry postings are available for download from www.ene.gov.on.ca/envision/env_reg/er/documents/2002/ra02e0001.htm.

The TSSA has completed consultations with its stakeholders. In spring and summer 2002, the TSSA will ask its Board of Directors for approval of its proposed AMPs scheme. Administrative Monetary Penalties for contraventions of the Liquid Fuels Handling Code, the Fuel Oil Code and other safety codes administered by TSSA could take effect as early as September 2002.

The TSSA website is www.tssa.org.

Environment Canada (EC) is preparing a process for screening substances on the Domestic Substances List to determine whether they are toxic - persistent, bioaccumulative or inherently toxic to non-human organisms. Substances that are declared to be toxic under the Canadian Environmental Protection Act, 1999 (CEPA 1999) will be added to Schedule 1 of the Act and EC will develop regulatory controls.

Most of the substances on the DSL are recognized commercial chemicals that were grandfathered onto the DSL. Substances listed on the DSL are exempt from testing, reporting and handling requirements or restrictions for manufacturers and importers. Where a substance is NOT on the DSL, the manufacturer, importer, must comply with the New Substances Reporting Regulations (NSNR). Non-DSL substances are subject to screening for potential toxicity and restrictions on quantities manufactured and imported until required information filing requirements are complied with and CEPA 1999 assessment deadlines are met. This means that manufacturers or importers must conduct prescribed tests and file results with Environment Canada and Health Canada, and comply with quantity restrictions until all testing is done and cleared.

Having a substance grandfathered onto the DSL meant that manufacturers and importers had a free ride - no screening or testing was required. The significance of EC's proposal to screen DSL substances means that these free ride substances will be screened and assessed. Those eventually found to be CEPA-toxic will be subject to regulations that may prohibit or control manufacture, importation or use. Environment Canada is only dealing with environmental aspects screening - Health Canada will deal with human health aspects of the screening.

For more information on the process visit the federal Environmental Registry - www.ec.gc.ca/ceparegistry/.

The second package of regulations, dealing with "qualified persons", records of site conditions, clean-up standards, site assessment standards, etc., will likely not be ready earlier than winter of 2003. Part of the pre-regulation work will include reviewing some or all of the Guideline clean-up criteria before converting them to legally binding regulated standards. Ultimately, the timing of implementation of the full Brownfields package will depend on MOEE resources and government priorities.