Colchester County (Municipality) v. Colchester Containers Limited, 2021 NSCA 53

Nova Scotia Court of Appeal Citation: Colchester County (Municipality) v. Colchester Containers Limited , 2021 NSCA 53 Date: 20210624 Docket: CA 500734 Registry: Halifax Between: Municipality of the County of Colchester Appellant v. Colchester Containers Limited Respondent Judge: The Honourable Justices J. Edward Scanlan and Cindy A. Bourgeois Appeal Heard: March 25, 2021, in Halifax, Nova Scotia Subject: Challenge to municipal by-laws

Summary: In July 2019, the Municipality of the County of Colchester passed the Disposal of Hazardous Substances By-law. It then passed a policy under the authority of that by-law which identified an existing disposal facility as the only “permitted site” for the disposal of hazardous waste in the county. The respondent, Colchester Containers Limited (CCL), operates a disposal facility for construction and demolition materials in Middle Stewiacke. It wanted to expand its operation to accept hazardous waste materials; specifically, those containing asbestos.

It applied to the Municipality under the Policy for a permit to accept asbestos at its facility. The request was denied. CCL filed two applications in the Supreme Court of Nova Scotia. In the first, it sought an order declaring the By-law and Policy to be beyond the scope of the Municipality’s powers granted under the Municipal Government Act , S.N.S. 1998, c. 18 , as amended. The second matter sought to challenge the Municipality’s decision declining to grant CCL a permit for the disposal of asbestos at its facility. Both matters were heard together.

The hearing judge granted CCL’s application to quash the By-law and Policy. Further, because the By-law and Policy were quashed, the permit decision was also set aside. The Municipality appeals both outcomes to this Court. Issues: 1. Did the hearing judge select the correct standard of review? 2. Did the hearing judge err in applying the reasonableness standard in determining whether the By-law and Policy were “illegal” pursuant to the MGA ? 3. Did the hearing judge err in setting aside the Municipality’s decision to decline the issuing of a permit to CCL?

Result: The hearing judge correctly identified the standard of review as being reasonableness. However, he erred in his application of that standard to the matter before him. A broader consideration of the statutory provisions contained in the MGA demonstrates the By-law and Policy were reasonable exercises of the Municipality’s delegated authority. Appeal allowed, with costs. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 18 pages. Nova Scotia Court of Appeal

Citation: Colchester County (Municipality) v. Colchester Containers Limited , 2021 NSCA 53 Date: 20210624 Docket: CA 500734 Registry: Halifax Between: Municipality of the County of Colchester Appellant v. Colchester Containers Limited Respondent Judges: Bryson, Scanlan and Bourgeois JJ.A. Appeal Heard: March 25, 2021, in Halifax, Nova Scotia Held: Appeal allowed with costs, per reasons for judgment of Scanlan and Bourgeois JJ.A.; Bryson J.A. concurring Counsel: Dennis James, Q.C. and Anna-Marie Manley, for the appellant Richard W.

Norman, for the respondent Reasons for judgment: [ 1 ] In July 2019, the Municipality of the County of Colchester (the Municipality) passed the Disposal of Hazardous Substances By-law (the By-law). It then adopted a policy under the authority of the By-law that identified an existing disposal facility as the only “permitted site” for the disposal of hazardous waste in the county (the Policy). [ 2 ] The respondent, Colchester Containers Limited (CCL), operates a disposal facility for construction and demolition materials in Middle Stewiacke.

It wanted to expand its operation to accept hazardous waste materials; specifically, those containing asbestos. [ 3 ] CCL applied to the Municipality under the Policy for a permit to accept asbestos at its facility. The request was denied. It filed two applications in the Supreme Court of Nova Scotia. In the first, it sought an order declaring the By-law and Policy to be beyond the scope of the Municipality’s powers granted under the Municipal Government Act , S.N.S. 1998, c. 18 , as amended (the MGA ).

The second matter sought to challenge the Municipality’s decision declining to grant CCL a permit for the disposal of asbestos at its facility. Both matters were heard together by The Honourable Justice Jamie Campbell. [ 4 ] The hearing judge granted CCL’s application to quash the By-law and Policy. Further, because the By-law and Policy were quashed, the permit decision was also set aside. The Municipality appeals both outcomes to this Court. For the reasons to follow, we would allow the appeal. Background [ 5 ] It is useful to set out portions of the By-law and Policy in question.

Both were given final approval by the Municipality on July 4, 2019. The By-law provides: 1 Title & Scope To restrict the disposal of all hazardous or dangerous waste in the County of Colchester to appropriate sites, and to ensure proper insurance and bonding requirements are in place for such sites. 2

Definitions For the purposes of this By-law: … 2.6 Permit means a permit for a particular physical site to accept hazardous and dangerous substances pursuant to this By-law and shall be referred to herein as a Permit; 2.7 Permitted Site means a physical site for which a Permit has been issued;

… 3 Restriction 3.1 No Hazardous Substance may be received for Disposal in the Municipality without a Permit issued by the Municipality, and without confirmation having been provided to the Municipality that the proponent has received approval to operate a facility for Disposal of the particular Hazardous Substance(

s) from the Department of Environment. 3.2 The Municipality shall only issue Permits for sites located in those geographic areas that are set out in Municipal policy and on those terms set out in Municipal policy or otherwise consented to by the Municipality. [ 6 ] The Policy is brief: 1. Application of Policy: This policy supplements the Disposal of Hazardous Substances By-law. 2.

Purpose: Municipal Council recognizes that appropriate sites should be used for the disposal of Hazardous Substances, due to the potential for harm to human health and the environment during the transportation and disposal of such substances. Municipal Council also recognizes the importance of protecting its residents from potentially expensive clean-up and closing down costs of such sites. 3.

Definitions: Hazardous Substances means any hazardous, toxic, dangerous, or waste dangerous substance or material, and includes any substance or material declared or defined to be a hazardous, toxic, dangerous or waste dangerous substance in or pursuant to any applicable law or policy. Permit means a permit for a particular physical site to accept hazardous and dangerous substances pursuant to the Disposal of Hazardous Substance By-law and shall be referred to herein as a Permit; Permitted Site means a physical site for which a Permit has been issued. 4. Permitted Sites: For the purposes of

section 3 of the Disposal of Hazardous Substances By-law, the following are designated as Permitted Sites: PID #20286902, Kemptown, Colchester County, Nova Scotia. [ 7 ] On August 23, 2019, Derek Ross of CCL wrote to the Municipality to request a permit pursuant to the By-law to accept asbestos waste materials at its existing Construction and Demolition waste management facility. [ 8 ] The Municipality declined CCL’s request.

The decision was communicated by way of correspondence from the Municipality’s Chief Administrative Officer, Rob Simonds, dated September 5, 2019: Your letter to Mayor Christine Blair of August 23, 2019 on behalf of Colchester Containers was received by Council for the Municipality of the County of Colchester and considered at its meeting of August 29, 2019. After deliberation, Council voted to reject Colchester Containers Limited’s request for a permit under the Hazardous Substance Disposal By-law.

Council is satisfied that the existence of the hazardous substance disposal site at the Kemptown Environmental Facility meets the needs of the Colchester community. The Kemptown site is part of the well-established, planned, environmental waste management site with appropriate access to emergency infrastructure. Council is not in favour of location of additional sites in Colchester County and certainly not any location which would involve transportation through rural communities on secondary roads.

Council is of the view that transportation of hazardous substances over secondary roads throughout small rural communities is not in the best interest of its residents. [ 9 ] On October 2, 2019, CCL filed a Notice of Judicial Review challenging the Municipality’s decision declining to grant a permit as requested. On the same day, CCL filed a Notice of Application in Court requesting the By-law and Policy be quashed. [ 10 ] The matters were heard on July 8, 2020. In its submissions regarding the permit decision, CCL argued it should be set aside for a number of reasons:

a) it was made pursuant to an invalid by-law or policy;

b) the decision was ultra vires ;

c) it resulted from an improper fettering of municipal discretion; and

d) it was a result of procedural unfairness. [ 11 ] In its submissions regarding the By-law and Policy, CCL argued they should be quashed because:

a) they were ultra vires ;

b) they constituted an improper fettering of municipal discretion;

c) they were void for vagueness and uncertainty; and

d) they were created in bad faith and for an improper purpose. [ 12 ] The Municipality asserted the hearing judge should reject all of CCL’s complaints and dismiss both matters. Decision under appeal

[ 13 ] On July 15, 2020, the hearing judge issued written reasons in relation to both applications ( 2020 NSSC 203 ). To put our analysis to follow in context, we will highlight the most relevant aspects of the decision. [ 14 ] After reviewing the background, the hearing judge identified the issue before him as follows: [22] The issue in the application in court is whether the amendments to the Construction and Demolition By-law [1] , the new Disposal of Hazardous Waste By-law and the Disposal of Hazardous Waste Policy should be quashed.

More specifically, the question is whether the Municipality of the County of Colchester in passing the by-law and policy was engaged in the exercise of the municipality’s authority to regulate solid waste disposal or were engaged in the regulation of land-use. If the by-law and policy were land-use regulation, they were not passed following the procedural requirements in

Part VIII of the Municipal Government Act . [ 15 ] The standard of review was described as: [25] The standard of review for most decisions made by municipal councils is reasonableness. That does not mean that councils are entitled to expand their powers beyond those granted by the legislature. The governing statutory regime, in this case the Municipal Government Act , is a constraint on their authority. When the reasonableness standard is applied in reviewing the council’s

interpretation of its authority, “precise or narrow statutory language will necessarily limit the number of reasonable

interpretations open to the decision maker – perhaps limiting it [to] one” Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 , para. 68 . (Emphasis in original) [ 16 ] The hearing judge proceeded to consider a number of relevant provisions of the MGA . He observed: [30] The words of the Municipal Government Act must be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and objective of the legislation. Strict

interpretation should be applied only when that approach does not provide a clear answer. The Municipal Government Act is a comprehensive piece of legislation. It sets out the way municipal governments are required to exercise the authority delegated to them from the province. They are given a broad scope of authority to act within their legislative jurisdiction but there are some detailed provisions about how that is to be done. [ 17 ] He then reviewed the two parts of the MGA in issue, those governing Solid-Waste management (Part XIII) and Land-use planning (Part VIII) powers respectively: [40] When

Part VIII and

Part XIII are compared,

Part VIII provides a comprehensive set of rules that relate to land-use planning and provides the kinds of substantive and procedural protections for landowners to which Justice Moir referred. Section 220(5)(

f) says that where the municipal planning strategy provides for it, a land-use by-law may “regulate the location of disposal sites for any waste material”. The location of disposal sites is specifically provided for in

Part VIII. [41]

Part XIII sets out that wide range of powers that a municipality has to regulate solid waste disposal. The location of the site however is not one of them. The Municipal Government Act should be read to give the powers granted to municipalities a wide range to enable them to accomplish their purposes.

That broad reading must also be undertaken with a view to the procedural and other protections that are granted to landowners and residents in issues related to land-use. [42] If a municipality wants to regulate the geographical areas within which a material can be disposed of, that must be done through a land-use by-law. Doing that through a solid waste management by-law would effectively do an end run around the land-use planning regime mandated by the Municipal Government Act .

A municipality can regulate the site requirements for a solid waste disposal location under its authority to deal with the management of solid waste but if it limits the available sites to certain geographic areas it has engaged in land-use regulation . (Emphasis added) [ 18 ] On the basis of the above, the hearing judge concluded: [44] The Disposal of Hazardous Substances By-law and the Disposal of Hazardous Substances Policy passed by the Municipality of the County of Colchester regulated land-use and were not passed using the process required to have been used by the Municipal Government Act .

They were then “illegal” as that term is used in s. 189 of the Act. The by-law and policy are quashed, and the decision made under them is set aside. [45] There is no requirement to address the other grounds put forward by Colchester Containers Limited. [ 19 ] The hearing judge confined his analysis to whether the By-law and Policy were vires . He did not address CCL’s claims regarding the improper fettering of discretion, procedural fairness or improper motive/bad faith.

Position of the parties [ 20 ] The Municipality filed a Notice of Appeal on September 29, 2020. [ 21 ] CCL did not file a Notice of Contention requesting this Court uphold the hearing judge’s decision on the basis of alternate grounds. As such, and notwithstanding CCL had launched significantly broader attacks against the By-law, Policy, and permit decision in the court below, this appeal is confined solely to the issues raised in the Notice of Appeal.

Our reasons are focused accordingly and should not be viewed as having endorsed or rejected any of the other arguments advanced before the hearing judge. [ 22 ] In its factum, the Municipality sets out three issues for determination: • Did the hearing judge err in his

interpretation of a municipality’s authority to control the disposal of waste pursuant to the solid-waste management provisions (Part XIII) of the MGA ?

• Did the hearing judge err in concluding the By-law and Policy constituted land-use regulation? • Did the hearing judge err by interfering with the Municipality’s decision to refuse CCL’s request for a permit to dispose of asbestos at its site in Middle Stewiacke? [ 23 ] The Municipality asserts on appeal the hearing judge erred in adopting a narrow

interpretation of its powers, and by concluding the purpose of the By-law and Policy were land-use.

It says the By-law and Policy, when considered within the entire legislative scheme, are completely consistent with solid-waste management and permitted under the MGA . [ 24 ] In its factum, CCL says this Court should ask two questions to resolve the appeal: • Was the Municipality’s passing of the By-law and Policy a valid exercise of municipal authority? • Did the hearing judge err by interfering with the Municipality’s decision to refuse it a permit for disposal of asbestos at the Middle Stewiacke facility? [ 25 ] CCL urges this Court to deny the appeal. It says the hearing judge did not err in his

interpretation and application of the MGA . It argues the hearing judge was correct in determining the By-Law and Policy amounted to illegal land-use regulation. The illegality, says CCL, was the result of the Municipality not having followed the procedural requirements of the MGA relating to land-use planning.

CCL does not appear to dispute the Municipality can manage where hazardous materials are disposed of, but that here, it attempted to exercise its power under the wrong provisions in the MGA . [ 26 ] We will reformulate the questions to be asked to address the issues raised on appeal, but first it will be useful to consider the standard of review this Court must apply.

Standard of Review In this Court [ 27 ] Both applications in the court below asked the hearing judge to review discretionary decisions of the Municipality—the decisions to pass the By-law and Policy, and the decision to decline the issuance of a permit to CCL. What lens does this Court now apply to the hearing judge’s reviews? [ 28 ] On an appeal from a judicial review decision, this Court has previously determined it must decide if the hearing judge identified the appropriate standard of review and then applied it correctly ( Halifax (Regional Municipality) v. Rehberg , 2019 NSCA 65 at para. 29 ).

This standard would apply to the hearing judge’s review of the permit decision. [ 29 ] Similarly, on the appeal of the Municipality’s

interpretation of its authority under the MGA to control the disposal of hazardous waste by virtue of the By-law and Policy, this Court must also ask whether the hearing judge identified the correct standard of review and appropriately applied it. In the court below [ 30 ] In order for this Court to consider whether the hearing judge applied the correct standard of review, it is helpful to identify what standard the matter before the hearing judge required. [ 31 ] There is no doubt that in Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 the Supreme Court of Canada pushed a reset button on the judicial review of administrative decisions. Prior to the Court adopting a revised framework for determining the standard of review for administrative decisions, the judicial review of municipal by-laws attracted a two-stage analysis that often resulted in two differing standards of review being applied. Determining whether a municipality possessed the legislative authority to pass a by-law was assessed through the lens of correctness.

However, challenges to how a municipality exercised its power was afforded deference. (See Nanaimo (City) v. Rascal Trucking Ltd. , 2000 SCC 13 ; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) , 2004 SCC 19 ; Halifax (Regional Municipality) v. Ed DeWolfe Trucking Ltd. , 2007 NSCA 89 .) [ 32 ] Vavilov served to compress the former two-stage analysis into one for the vast majority of municipal decisions. The single inquiry is now whether a challenged decision is unreasonable (at para. 83).

The Court also provided assistance in the application of the reasonableness standard: [68] Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where the reasonableness standard is applied in reviewing a decision maker’s

interpretation of its authority, precise or narrow statutory language will necessarily limit the number of reasonable

interpretations open to the decision maker — perhaps limiting it one. Conversely, where the legislature has afforded a decision maker broad powers in general terms — and has provided no right of appeal to a court — the legislature’s intention that the decision maker have greater leeway in interpreting its enabling statute should be given effect . … (Italics in original; bolding added) [ 33 ] Earlier in Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 the Supreme Court specifically addressed the application of the reasonableness standard to the review of municipal by-laws.

It is clear that assessing a by-law for reasonableness is a contextual exercise, and one in which the decision-maker is owed significant deference. Writing for the Court, Chief Justice McLachlin said:

[19] The case law suggests that review of municipal bylaws must reflect the broad discretion provincial legislators have traditionallyaccorded to municipalities engaged in delegated legislation. Municipal councillors passing bylaws fulfill a task that affects theircommunity as a whole and is legislative rather than adjudicative in nature. Bylaws are not quasi-judicial decisions. Rather, theyinvolve an array of social, economic, political and other non-legal considerations. “Municipal governments are democraticinstitutions”, per LeBel J. for the majority in Pacific National Investments Ltd. v.

Victoria (City), 2000 SCC 64, [2000] 2 S.C.R. 919, atpara. 33. In this context, reasonableness means courts must respect the responsibility of elected representatives to serve the people whoelected them and to whom they are ultimately accountable. [20] The decided cases support the view of the trial judge that, historically, courts have refused to overturn municipal bylaws unlessthey were found to be “aberrant”, “overwhelming”, or if “no reasonable body” could have adopted them (para. 80, per Voith J.). SeeKruse v. Johnson, [1898] 2 Q.B. 91 (Div. Ct.); Associated Provincial Picture Houses, Ltd. v.

Wednesbury Corp., [1948] 1 K.B. 223(C.A.); Lehndorff United Properties (Canada) Ltd. v. Edmonton (City) (1993), (AB KB), 146 A.R. 37 (Q.B.), aff’d(1994), 1994 ABCA 276 , 157 A.R. 169 (C.A.). [21] This deferential approach to judicial review of municipal bylaws has been in place for over a century. As Lord Russell C.J.stated in Kruse v. Johnson: … courts of justice ought to be slow to condemn as invalid any by-law, so made under such conditions, on the ground of supposedunreasonableness. Notwithstanding what Cockburn C.J. said in Bailey v.

Williamson [(1873), L.R. 8 Q.B. 118, at p. 124], an analogouscase, I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn by-laws, made under suchauthority as these were made, as invalid because unreasonable. But unreasonable in what sense?

If, for instance, they were found to bepartial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if theyinvolved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds ofreasonable men, the Court might well say, “Parliament never intended to give authority to make such rules; they are unreasonable andultra vires.” But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded.

A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient,or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. These are the general indicators of unreasonableness in the context of municipal bylaws.

It must be remembered, though, that what isunreasonable will depend on the applicable legislative framework. … (Underlining of Chief Justice; bolding added) [34] The Chief Justice added: [24] It is thus clear that courts reviewing bylaws for reasonableness must approach the task against the backdrop of the wide varietyof factors that elected municipal councillors may legitimately consider in enacting bylaws. The applicable test is this: only if thebylaw is one no reasonable body informed by these factors could have taken will the bylaw be set aside.

The fact that widedeference is owed to municipal councils does not mean that they have carte blanche. [25] Reasonableness limits municipal councils in the sense that the substance of their bylaws must conform to the rationale ofthe statutory regime set up by the legislature.

The range of reasonable outcomes is thus circumscribed by the purview of thelegislative scheme that empowers a municipality to pass a bylaw. (Emphasis added) [35] The fact municipal decisions often do not result in written reasons was noted by the Chief Justice, and guidance given as tohow a reviewing court should assess for reasonableness in those instances: [29] It is important to remember that requirements of process, like the range of reasonable outcomes, vary with the context and natureof the decision-making process at issue.

Formal reasons may be required for decisions that involve quasi-judicial adjudication by amunicipality. But that does not apply to the process of passing municipal bylaws. To demand that councillors who have just emergedfrom a heated debate on the merits of a bylaw get together to produce a coherent set of reasons is to misconceive the nature of thedemocratic process that prevails in the council chamber.

The reasons for a municipal bylaw are traditionally deduced from the debate,deliberations and the statements of policy that give rise to the bylaw. [30] Nor, contrary to Catalyst’s contention, is the municipality required to formally explain the basis of a bylaw. As discussedabove, municipal councils have extensive latitude in what factors they may consider in passing a bylaw. They may considerobjective factors directly relating to consumption of services.

But they may also consider broader social, economic and politicalfactors that are relevant to the electorate. (Emphasis added) Issues [36] Having reviewed the record, the decision of the hearing judge, and considered the submissions of the parties, we would re-frame the issues on appeal as follows: 1. Did the hearing judge select the correct standard of review? 2. Did the hearing judge err in applying the reasonableness standard in determining whether the By-law and Policy were“illegal” pursuant to the MGA? 3.

Did the hearing judge err in setting aside the Municipality’s decision to decline the issuing of a permit to CCL?

Analysis Did the hearing judge select the correct standard of review? [ 37 ] The hearing judge, relying on Vavilov , selected reasonableness as the standard for assessing the Municipality’s decision to pass the By-law and Policy under its solid-waste management authority. As our discussion above reveals, he was correct in doing so. The more complex analysis is whether he appropriately applied that standard to the Municipality’s actions.

Did the hearing judge err in applying the reasonableness standard in determining whether the By-law and Policy were “illegal” pursuant to the MGA ? [ 38 ] The Notice of Application filed by CCL sought a finding that the By-law and Policy were “illegal” pursuant to s. 189(1) of the MGA . That

section provides: 189(1) A person may, by notice of motion which shall be served at least seven days before the day on which the motion is to be made, apply to a judge of the Supreme Court of Nova Scotia to quash a by-law, order, policy or resolution of the council of a municipality, in whole or in part, for illegality. [ 39 ] “Illegality” is not defined in the legislation.

However, given the authorities outlined above and the arguments advanced, determining “illegality” required the hearing judge to ask whether the passing of the By-law and Policy constituted an unreasonable exercise of the Municipality’s authority under the MGA . [ 40 ] As the Court in Catalyst directed, assessing reasonableness requires a reviewing court to consider a challenged by-law or policy within a multi-factorial context, including the statutory framework.

In this case, only if the By-law and Policy are ones that “no reasonable body informed by these factors” could have passed, will they be unreasonable. [ 41 ] The statutory framework is an essential consideration in determining the reasonableness of a challenged by-law. Here, that was the sole foundation underpinning the hearing judge’s analysis. We will track his review of the MGA . [ 42 ] The hearing judge began by noting ss. 2, 9A and 14A.

Section 14A provides: 14A The powers conferred on a municipality and its council by this Act must be interpreted broadly in accordance with the purpose of this Act as set out in

Section 2 and in accordance with the purposes of a municipality as set out in

Section 9A. [ 43 ]

Section 2 sets of the purpose of the MGA : 2 The purpose of this Act is to (

a) give broad authority to councils, including broad authority to pass by-laws, and to respect their right to govern municipalities in whatever ways the councils consider appropriate within the jurisdiction given to them; (

b) enhance the ability of councils to respond to present and future issues in their municipalities; and (

c) recognize the purposes of a municipality set out in

Section 9A. [ 44 ] The purposes of a municipality are itemized in s. 9A: 9A The purposes of a municipality are to (

a) provide good government; (

b) provide services, facilities and other things that, in the opinion of the council, are necessary or desirable for all or part of the municipality; and (

c) develop and maintain safe and viable communities. [ 45 ] The hearing judge, referencing the above provisions, appropriately identified the broad and liberal

interpretation to be afforded to the powers conferred on a municipality. He then continued his analysis with consideration of the provisions granting the Municipality’s powers of solid-waste management and land-use planning. [ 46 ] The hearing judge noted

Part XIII – Solid-Waste Resource Management contains only two sections.

Section 325 is the provision that gives the Municipality authority to pass a by-law governing the management of solid-waste. The relevant parts provide: 325 The council may make by-laws respecting solid waste, including, but not limited to , (

a) prohibiting persons from depositing any solid waste except at a solid-waste management facility; (

b) regulating the disposal, collection and removal of solid waste; … (

d) licensing persons engaged in the business of removing or collecting solid waste, regulating the operation of the business and prohibiting, in whole or in part, the operation of such a business by a person not holding a licence; (

e) prescribing the materials that may or may not be deposited at a solid-waste management facility of the municipality or in which the

municipality participates; (Emphasis added) [ 47 ] This section, as noted by the hearing judge, is broad in scope: [32] The regulation of the disposal, collection and removal of solid waste is broad in its scope. As noted by the Court of Appeal in Halifax (Regional Municipality) v. Ed DeWolfe Trucking Ltd. 2007 NSCA 89 , the Municipal Government Act empowers municipalities to make by-laws regulating and prohibiting the disposal, collection and removal of solid waste and matters incidental or conducive to the exercise of that power . (Emphasis added) [ 48 ] With respect to the statutory framework contained in

Part VIII, the hearing judge observed: [34]

Part VIII of the Municipal Government Act is headed Planning and Development. It is a lengthy and complicated part running from sections 190 to 267. It sets out the way in which municipal governments are required to deal with land-use planning and decisions related to land-use. That part makes it clear that the Municipal Planning Strategy is an important document. The Municipal Planning Strategy, along with the land-use by-law which gives it legal effect are the documents that deal comprehensively with land-use issues. [35] The land-use by-law must include maps that divide the planning area into zones.

The land-use by-law is required to list permitted and prohibited uses for each zone and include provisions that are “authorized pursuant to this Act and that are needed to implement the municipal planning strategy”. Planning and land-use are centred around the implementation of the planning strategy. (Emphasis added) [ 49 ] The hearing judge identified one provision, s. 220(5)(

f) as particularly relevant. It states: 220(5) Where a municipal planning strategy so provides, a land-use by-law may … (

f) regulate the location of disposal sites for any waste material; [ 50 ] The hearing judge concluded the By-law and Policy was a subject matter specifically falling within the Municipality’s planning powers, and because of that, it could not fall within the more general authority afforded to solid-waste management.

Given his earlier determination the standard of review was reasonableness, implicit in the hearing judge’s conclusion is he found the Municipality’s choice to pass the By-law and Policy within the broader solid-waste management power, to be unreasonable. [ 51 ] We are of the view the hearing judge misapplied the reasonableness standard. He appropriately based his assessment on the statutory framework, but his review was overly narrow. [ 52 ] There were additional sections of the MGA that were relevant to the reasonableness analysis that were not referenced in the hearing judge’s analysis.

Several sections are found in

Part VII, which set out the Municipality’s authority in terms of the creation of by- laws. [ 53 ]

Section 170 provides: 170(1) A by-law (

a) made pursuant to this Act or another Act of the Legislature may apply to an area defined in the by-law ; (

b) may set different charges for different areas; (

c) unless otherwise stated in the by-law, applies to the municipality.

(2) In addition to the powers specifically conferred pursuant to this Act or another Act of the Legislature , a municipality may provide, in a by-law, for matters incidental or conducive to the exercise of the specified powers . (Emphasis added) [ 54 ]

Section 171 states: 171(1) Subject to

Part VIII, in this Act, the power to (

a) license, includes the power to regulate; (

b) regulate, includes the power to license; and (

c) regulate includes the power to prohibit .

(2) A by-law shall not be inconsistent with an enactment of the Province or of Canada. (Emphasis added)

[ 55 ] The above provisions are capable of a reasonable

interpretation that affords a municipality the general power to pass a by-law that targets a particular geographic area outside its land-use planning powers. Further, if given the power to regulate an activity (as s. 325 does regarding the disposal of solid-waste), this may include the power to restrict it.

Also, having specifically conferred the power to regulate the disposal of solid-waste, s. 170(2) contemplates a municipality having the power to pass by-laws incidental or conducive thereto. [ 56 ] Of particular relevance to the arguments advanced on this appeal is s. 171A: 171A Where this Act confers a specific power on a municipality in relation to a matter that can be read as coming within a general power also conferred by this Act, the general power is not to be interpreted as being limited by the specific power. [ 57 ] The Municipality argues, and we agree, a reasonable

interpretation of the above provision is that the granting of specific authority under

Part VIII does not preclude it from exercising its authority under the more general solid-waste management powers. The hearing judge’s failure to consider this provision may have resulted in his view to the contrary. [ 58 ] Further, as set out in his reasons, the hearing judge had clearly taken note of the complexity of the provisions granting municipalities their planning and development authority. He was of the view those provisions set out a mandatory scheme for how municipalities made “decisions related to land-use”.

He underscored the importance of the municipal planning strategy. [ 59 ] The hearing judge’s view of the importance of a municipal planning strategy was not misplaced. It is an important document as s. 219 demonstrates: 219(1) Where a council adopts a municipal planning strategy or a municipal planning strategy amendment that contains policies about regulating land use and development, the council shall, at the same time, adopt a land-use by-law or land-use by-law amendment that shall enable the policies to be carried out.

(2) A council may amend a land-use by-law in accordance with policies contained in the municipal planning strategy on a motion of council or on application.

(3) A council shall not adopt or amend a land-use by-law except to carry out the intent of a municipal planning strategy . (Emphasis added) [ 60 ] However, when the Municipality passed the challenged By-law and Policy, the implementation of a municipal planning strategy, and the resulting processes for land-use planning, was at the discretion of a municipality.

Section 212 of the MGA , effective at the time of the Municipality’s actions, provided: 212 A council may adopt a municipal planning strategy for all, or part , of the municipality and there may be separate strategies for different parts of the municipality. (Emphasis added) [ 61 ] The unrefuted evidence before the hearing judge contained in the affidavit of the Municipality’s CAO was: 39. Council has made the policy choice not to introduce zoning in Colchester County, outside of the designated area set out in the Central Colchester Land Use By-law.

However, there are occasions that the Municipality has adopted bylaws of general application that deal with land use matters, such as in the Hazardous Substances By-law. … [ 62 ] The Municipality had not adopted a Municipal Planning Strategy that governed land-use planning in the applicable area. There was no obligation on it to do so. [ 63 ] Given a broader view of the statutory regime, we are satisfied the Municipality’s use of its solid-waste authority, as opposed to its land-use planning powers, to pass the challenged By-law and Policy was not an unreasonable

interpretation of its delegated authority under the MGA . The hearing judge erred in concluding otherwise. Did the hearing judge err in setting aside the Municipality’s decision to decline the issuing of a permit to CCL? [ 64 ] CCL had challenged the Municipality’s permit decision on a number of bases. The hearing judge grounded his decision to set it aside solely on the basis the By-law and Policy were invalid.

As we noted earlier, he did not address any of CCL’s alternate arguments, nor were these placed before us on appeal. [ 65 ] Given our decision regarding the validity of the By-law and Policy, and the scope of the issues advanced on appeal, it necessarily follows the hearing judge’s conclusion regarding the permit decision must also be set aside. Disposition [ 66 ] For the reasons above, we would allow the appeal. [ 67 ] The hearing judge awarded costs of $1,750.00 to CCL.

That order should be reversed: CCL shall return any amount paid by the Municipality pursuant to that direction and be further ordered to pay $1,750.00 to the Municipality for the proceedings in the court below. [ 68 ] With respect to costs on appeal, the Municipality sought costs of $1,000.00 in the event the appeal was allowed. We would allow costs of the appeal to the Municipality in the amount requested of $1,000.00, inclusive of disbursements.

Scanlan J.A. Bourgeois J.A. Bryson J.A., concurring