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Extended Producer ResponsibilityInterpreting the Municipal Act, 2001: What’s Possible?

Prepared by Laura K. Bissetfor the Recycling Council of OntarioApril 14, 2011

Overview

Municipal Powers

Waste Disposal Challenges to Municipalities

Tools available to Ontario Municipalities to Enable Extended Producer Responsibility

Municipal Powers

Municipal Powers

Municipalities are creatures of provincial statute

Trend toward broad interpretation of municipal powers in the Courts

Broad powers granted by (relatively) new legislation

Municipal Act, 2001

Codification of broad interpretation of municipal powers (s. 8)

Natural person powers (s. 9)

Broad authority (ss. 10(1), 11(1))

By-law powers: matters and spheres of jurisdiction (ss. 10 and 11)

Subject Matters

Governance structure of the municipality and its local boards Accountability and transparency of the municipality and its operations and of

its local boards and their operations Financial management of the municipality and its local boards Public assets of the municipality acquired for the purpose of exercising its

authority under this or any other Act Economic, social and environmental well-being of the municipality Health, safety and well-being of persons Services and things that the municipality is authorized to provide Protection of persons and property, including consumer protection Animals Structures, including fences and signs Business licensing

Spheres of Jurisdiction

Highways, including parking and traffic on highways Transportation systems, other than highways Waste management Public utilities Culture, parks, recreation and heritage Drainage and flood control, except storm sewers Structures, including fences and signs Parking, except on highways Animals Economic development services Business licensing

Limitations on Municipal Powers

By-laws apply only within municipal boundaries (s. 19), except for joint undertakings (ss. 20, 22), and waste management (s. 74)

Restriction on by-laws related to financial matters

Exception for City of Toronto (s.267 City of Toronto Act)

Fees and Charges

Subject to certain restrictions, municipalities may impose fees or charges for:

• Services provided by the municipality

• Costs incurred for services provided by the municipality to other municipalities

• The use of its property (ss. 390-394)

Toronto v. Weingust (2006): • These sections set out a legislative scheme whereby municipalities may

exercise a limited power to charge fees, so long as the exercise of that power does not trench on the taxation or regulatory powers of the other levels of government. These sections do not enumerate the services or uses for which the municipalities may charge fees. But this cannot be construed to preclude charging fees for any service not enumerated. …[T]here must be flexibility to permit the city to levy fees within its legislative competence on a variety of types of services.

Waste Disposal Challenges to Municipalities

Challenge for Municipalities

Municipalities are primarily responsible for waste management

However, municipalities have limited ability to affect waste generation, to divert waste from disposal, and to address the consumption and design of products purchased by their citizens

Extended Producer Responsibility

A policy approach in which a producer’s responsibility, physical and/or financial, for a product is extended to the post-consumer stage of a product’s life cycle. EPR shifts responsibility upstream in the product life cycle to the producer and away from municipalities. As a policy approach it provides incentives to producers to incorporate environmental considerations in the design of their products. EPR also shifts the historical public sector tax-supported responsibility for some waste to the individual brand owner, manufacturer or first importer.

Tools available to Ontario Municipalities to Enable Extended Producer Responsibility

Voluntary Mechanisms

Green Building

Green Procurement

Retail Take-Back

Design Influence Mechanisms

Design for Environment

Market Development

Financial Mechanisms

Differential tipping fees

Landfill taxes/levies

Other Levies

Permitting Mechanisms

Official Plan Policies

Development and Building Permits

Regulatory Mechanisms

Disposal bans

Legislative Basis for these Mechanisms

Subject Matters

Spheres of Jurisdiction

Questions?