Property, Taxation, Constitutional, Polluter Pays, Contract, Evidence, Jurisdiction, Inspections
In June 2002, Halifax Regional Municipality (HRM) amended its Solid Waste Resource Collection and Disposal By-Law (S-600) to require that waste generated and collected in the municipality – including IC&I solid waste, but not recyclables – be trucked to a public-private facility at Otter Lake, while C&D waste must go to a privately operated facility in HRM. However, Ed DeWolfe Trucking Limited, a solid waste hauler, challenged the by-law on the basis that HRM had created a waste disposal monopoly. In 2006, the Supreme Court of Nova Scotia agreed and quashed the by-law. The court had to consider whether municipality had the power to impose its flow control bylaw. Halifax argued that its waste management strategy treated waste as a "resource" but the court concluded that the real issue was tip fee revenue. Halifax sought maximum revenue from commercial waste in order to reduce its reliance on taxes to pay for waste management operations. One of the arguments the court relied upon in coming to this conclusion is that no evidence was provided to suggest that the city's $115 tip fee was based on the actual cost of operating the Otter Lake Facility and was, therefore, a form of taxation. The court eventually made its decision on other grounds, but it did note that this apparent municipal taxation may be outside the power of the provincial government to authorize based on constitutional grounds. Ultimately the decision turned on whether Halifax has the power to create or impose monopolies based on what the court referred to as the virtual expropriation of personal property or the restriction on export from a municipal region. The court didn't cite any cases in Canada that have endorsed flow control (as it was proposed in the Halifax bylaw), but the court examined a number of cases dealing with the limits of municipal power and concluded that the scope of the bylaw was so broad that it had an impact far outside the city boundaries, and did much more than suggest how waste was to be handled within Halifax. In the end, the court concluded that the provisions in the Municipal Government Act of Nova Scotia do not provide municipalities such as Halifax with the power to create monopolies or to impose flow controls based on such monopolies. The Act only provides the power to municipalities to restrict the disposal of waste to environmentally approved sites. The court suggested that if Nova Scotia "intends to confer power to enact flow controls upon municipalities, it must make a clear unequivocal grant of that power, especially in a situation where it in effect confers authority to create monopolies and expropriate property." Without such powers, efforts such as the Halifax bylaw are unlawful.