Submitter Information

Ismail SalihFollow

Type of Proposal

Oral Presentation

Start Date

22-3-2018 10:55 AM

End Date

22-3-2018 12:15 PM

Location

Alumni Auditorium A

Faculty

Faculty of Law

Abstract/Description of Original Work

Municipal governments were in existence in Canada before the United Kingdom Parliament enacted British North America Act, 1840 (3 & 4 Victoria, c.35) to unify Upper and Lower Canada. Yet, drafters of the of the law and the subsequent British North America Act 1867 30 & 31 Victoria, c.3 (UK) (“Constitution Act, 1867”) that sets the foundation for Canada government did not consider it worthwhile to regard Municipal government as a distinct branch of government. Section 92 (8) Constitution Act, 1867 empowered the Province to dictate rules and policies governing the existence and functioning of their Municipal governments. This carte blanche, often referred to as Dillon’s rule,[1] has been suggested to mean Municipal governments exist at the mercy of Provincial government. In R. v. Greenbaum, [1993] 1 SCR 674 at 688, Iacobucci J. commented that “Municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitly conferred upon them by the province.” Although s.91 Constitution Act 1867 spelled out Federal power while Provincial powers are described under s.92, one of the backdrops of the Constitution is that there are areas of power that are neither allocated to the Federal government nor the Provincial governments. Thus, the rule that the Province can only dictate the power that it has to the Municipal government is unclear.[2] As a Federal state, Companies and businesses in Canada can choose to register under Federal or Provincial law unless otherwise restricted. One of the advantages of being a Federal incorporation is the ability to operate throughout the Dominion without being unnecessary subjected to Provincial law or Municipal bylaws. Because Municipal councils are responsible for local activities, tension sometimes ensue when companies engaging in federal undertakings[3] refuse to follow bylaws. In Windsor (City) v. Canadian Transit Co., 2016 SCC 54, Canada Transit challenged a bylaw compelling it to repair some of its acquired buildings. Although the Supreme Court of Canada did not rule on whether the bylaw apply to Canada Transit, the Court’ ruling that Federal court had no jurisdiction to hear the claim, impliedly suggests the bylaw is applicable. This research into the origin, scope, and importance of Municipal bylaws critically examined the Supreme Court decision in Windsor (City) v. Canadian Transit, conducted a comparative jurisprudence legal analysis, and discussed the applicability of bylaws to Federal undertakings in the context of Canada Constitution. The research found, to some extent, Federal undertakers are not immune form Municipal bylaws. The degree of control that Municipalities have over Federal project undertaker will depend on the nature of the activity the undertaker is carrying on, and the effect of the bylaw on the free performance of that activity. The research concluded, although Municipal bylaw plays a significant role in Canada legal system, the ability of the Province to do whatever it wants, makes the future of Municipalities and their ability to reach out to Canadian locals uncertain.

[1] See Ottawa Electric Light Co. v Ottawa (City), [1906] O.J No. 60 at para 40 [2] See Ron Levi & Mariana Valverde, “Freedom of the City: Canadian Cities and the Quest for Governmental Status” (2006) 44:3 Osgoode Hall Law Journal 409. [3] Canada Labour Code, RSC 1985, c. L-2 , s.2 defines undertakings as “any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing, … (b) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province”.

Grand Challenges

Viable, Healthy and Safe Communities

Notes

This paper was purposefully drafted in partial fulfillment of the requirement of my Municipal Law 2017 course.

Share

COinS
 
Mar 22nd, 10:55 AM Mar 22nd, 12:15 PM

To What Extent Can a Municipal Government Regulate Federal Undertaking Within Its Territory

Alumni Auditorium A

Municipal governments were in existence in Canada before the United Kingdom Parliament enacted British North America Act, 1840 (3 & 4 Victoria, c.35) to unify Upper and Lower Canada. Yet, drafters of the of the law and the subsequent British North America Act 1867 30 & 31 Victoria, c.3 (UK) (“Constitution Act, 1867”) that sets the foundation for Canada government did not consider it worthwhile to regard Municipal government as a distinct branch of government. Section 92 (8) Constitution Act, 1867 empowered the Province to dictate rules and policies governing the existence and functioning of their Municipal governments. This carte blanche, often referred to as Dillon’s rule,[1] has been suggested to mean Municipal governments exist at the mercy of Provincial government. In R. v. Greenbaum, [1993] 1 SCR 674 at 688, Iacobucci J. commented that “Municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitly conferred upon them by the province.” Although s.91 Constitution Act 1867 spelled out Federal power while Provincial powers are described under s.92, one of the backdrops of the Constitution is that there are areas of power that are neither allocated to the Federal government nor the Provincial governments. Thus, the rule that the Province can only dictate the power that it has to the Municipal government is unclear.[2] As a Federal state, Companies and businesses in Canada can choose to register under Federal or Provincial law unless otherwise restricted. One of the advantages of being a Federal incorporation is the ability to operate throughout the Dominion without being unnecessary subjected to Provincial law or Municipal bylaws. Because Municipal councils are responsible for local activities, tension sometimes ensue when companies engaging in federal undertakings[3] refuse to follow bylaws. In Windsor (City) v. Canadian Transit Co., 2016 SCC 54, Canada Transit challenged a bylaw compelling it to repair some of its acquired buildings. Although the Supreme Court of Canada did not rule on whether the bylaw apply to Canada Transit, the Court’ ruling that Federal court had no jurisdiction to hear the claim, impliedly suggests the bylaw is applicable. This research into the origin, scope, and importance of Municipal bylaws critically examined the Supreme Court decision in Windsor (City) v. Canadian Transit, conducted a comparative jurisprudence legal analysis, and discussed the applicability of bylaws to Federal undertakings in the context of Canada Constitution. The research found, to some extent, Federal undertakers are not immune form Municipal bylaws. The degree of control that Municipalities have over Federal project undertaker will depend on the nature of the activity the undertaker is carrying on, and the effect of the bylaw on the free performance of that activity. The research concluded, although Municipal bylaw plays a significant role in Canada legal system, the ability of the Province to do whatever it wants, makes the future of Municipalities and their ability to reach out to Canadian locals uncertain.

[1] See Ottawa Electric Light Co. v Ottawa (City), [1906] O.J No. 60 at para 40 [2] See Ron Levi & Mariana Valverde, “Freedom of the City: Canadian Cities and the Quest for Governmental Status” (2006) 44:3 Osgoode Hall Law Journal 409. [3] Canada Labour Code, RSC 1985, c. L-2 , s.2 defines undertakings as “any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing, … (b) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province”.