On July 11, 2019 the B.C. Court of Appeal in Canadian Plastic Bag Association v. Victoria (City), 2019 BCCA 254 invalidated a City of Victoria by-law that would have prohibited businesses from providing or selling plastic bags to customers and further would have imposed fees to be charged for paper or other re-useable bags. The Court held that the City required Ministerial Approval of the by-law pursuant to the Province's Community Charter S.B.C. 2003, c.26 because the by-law related to the protection of the natural environment rather than the regulating business.

The True Nature of the Law

The Court applied the constitutional principle of pith and substance as a means of resolving the choice of two sources of provincial delegated authority one, environmental protection which requires provincial approval and the other, regulation of business, which doesn't. In that regard the Court found that the true target of the law was the consumer and the effects on the global environment caused by wasteful consumer practices. Businesses would be affected by the law but only incidentally. Applying the pith and substance principle left no room for a concurrent head of authority (the municipality) and an ordinary one (the Province).

The Chambers Judge, who first adjudicated the petition for judicial review brought by the Plastics Association, sided with the City. He interpreted the regulation in relation to the protection of the natural environment narrowly as meaning regulation of those directly engaged in activities that had a negative environmental impact. The Municipal by-law addressed only the transaction in which the merchant packaged the goods purchased by the consumer and not the subsequent actions by the consumer or others who came into possession of the plastic bag. It was, in the Chamber judge's view, regulation of business rather than regulation in relation to the protection of the natural environment.

The Court of Appeal disagreed with this finding. The Court regarded the regulation of packaging as part of a complicated web of legislation including several related recycling regulations involving producers of packaging and paper products entering into producer responsibility plans requiring provincial approval.

"[51] From this, one can understand that the Province might wish to have the right to approve, or withhold approval of municipal bylaws relating to environmental protection in order to ensure that a patchwork of different municipal laws does not hamper provincial environmental programs."

What's the "Take-Away"?

Courts faced with potentially conflicting remedial legislation examine these laws contextually in relation to the entire legislative scheme. It is somewhat ironic that in this case the argument in support of an environmentally progressive Victoria by-law required a narrow interpretation of regulation protecting the natural environment, while the argument which resulted in the invalidity of the law took a more expansive interpretation. What is clear though is that in the final result, courts are more concerned with the ultimate, rather than immediate purpose of legislation and how that legislation fits within the web of related laws.

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