(This article was translated from French.)

Here and abroad, many people are already thinking about what the post-pandemic world will be like. There are several possible answers to the burning question of how to reinvent our cities, but any answer will have to take account of the role and powers of municipalities. While the law governing those powers has evolved significantly over the past 25 years, the critical juncture where we find ourselves is the ideal time to stop and think about the way forward.

First, it should be noted that municipalities do not exist in Canadian constitutional law. Section 92 of the Constitution Act, 1867, formerly the British North America Act, gives the provinces power over “municipal institutions in the province.” Municipalities thus act as extensions of the provinces for managing local territory and have only those powers that the provinces decide to grant them. The courts have interpreted this exclusive power of the provinces broadly and have allowed the provinces absolute control over municipalities, from creation to dissolution.

Since the 1990s, however, municipalities have enjoyed increasing autonomy and recognition in Canada, despite this rigid constitutional framework. A major wave of legislative reforms – if not a small revolution – has swept through most provinces: they have chosen, with Alberta leading the way in 1994, to place greater trust in local governments by giving them more flexibility, leeway and powers from a legal standpoint. The Supreme Court of Canada has also contributed directly to what can be described as a process of “municipal empowerment” by making it more difficult to strike down local bylaws.

A paradigm shift

One of the most significant aspects of these reforms is the way in which provincial legislation delegating powers to municipalities is drafted. A transformation has taken place from a “laundry list” approach, which sets out everything a municipality can do in lengthy, detailed and restrictive terms, to a more comprehensive approach, based on the transfer of broad powers, or “spheres of jurisdiction,” from provinces to municipalities. Under the previous approach, a municipality could act only with respect to the specific matters referred to in the legislation; anything not specified in the law was outside its jurisdiction. Under the modern approach, on the other hand, it is presumed that a municipality has all the powers needed to carry out its mission within its areas of jurisdiction.

In Quebec, for example, by enacting the Municipal Powers Act, which came into effect in 2006, the province broke with the tradition of long laundry lists. The act gives Quebec municipalities broad powers in eight areas, including culture and recreation, the environment, sanitation, nuisances and safety. It gives municipalities greater leeway, at least in theory, to deal with current or future issues in these areas without having to ask the provincial legislature every time for a formal amendment to the laundry list.

The difference between the two methods is considerable. While municipalities could, for example, pass bylaws before 2006 to “prevent any person from carrying fire over any public street, or in any garden, yard or field, otherwise than in a metal vessel” or to “regulate or prohibit the ringing of bells and chimes, the blowing of whistles and the making of other noises, the ringing of bells and whistling of locomotives and steamboats and the discharge of steam, cinders, sparks and smoke therefrom,” they now have the power to pass bylaws in relation to both “safety” and “nuisances.”

An analysis of the legislative debates leading up to the adoption of the act shows that the Quebec legislature sought to give municipalities more flexibility and autonomy, and to encourage better practices at the local level. It also sought to renew and simplify the body of legislation and make it more coherent and, by putting an end to what had become a dated view of local government, to usher in a new era in the relationship between the province and its municipalities.

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Numerous courts, including the Supreme Court, have already recognized and affirmed the importance of the principle embodied in this new approach and the shift it implies. For example, the Quebec Court of Appeal ruled in 2011 that Quebec City had the right to adopt a bylaw requiring shoreline property owners to restore the shores of Lake St. Charles, the source of 50 per cent of the city’s drinking water, under its new power with respect to the “environment.” Our current research now focuses on examining how all of the new powers have been used in practice by Quebec municipalities and the outcome of court challenges to those powers since 2006.

Limited leeway still

Obstacles remain, of course, both in Quebec and in the other provinces. For example, provincial legislatures may limit or regulate certain aspects of these broad powers. Also, not all municipal powers are broadly devolved and there is still a need to update the laundry list when new issues arise. This is the case with zoning, for example. Despite requests by the City of Montreal, it had to wait years before being expressly given the power to require developers to include affordable, social or family housing in their projects.

In addition, a provincial norm will often take precedence over the municipal rule. For example, the minimum 500-metre distance that the province requires between a source of drinking water and a gas or oil well prevails over the will of the more than 300 Quebec municipalities that want to see it increased to two kilometres. The province may also choose to exempt itself from municipal bylaws. On that point, the construction of the “Réseau express métropolitain” (REM), a 67‑kilometre light rail transit system in the Montreal area, has often made headlines because the municipalities through which the REM passes have little or no control over the project. On another front, municipal revenues come mainly from property taxes, so diversifying revenue sources would require, among other measures, amendments to provincial laws.

In short, is the glass half empty or half full? Is it appropriate for Canadian municipalities to be still largely at the mercy of the provinces, despite the progress described above? Canadians should be asking themselves what powers, and how much leeway, they want their local governments to have in the 21st century. These questions are even more relevant in a post-pandemic world.

With the heightened social, environmental and other forms of injustice that the health crisis brought with it, it is more necessary than ever that the post-COVID recovery be inclusive and ecological, based on human rights and reconciliation with the First Nations. The recovery must also include measures to guarantee socio-economic rights without discrimination, including the rights to housing, food, education, health and employment. On almost all of these fronts (and many others), Canadian municipalities are uniquely positioned to make a significant contribution. In Canada today, increasing numbers of complex issues fall under the jurisdiction of more than one level of government and affect municipalities, regardless of what the Constitution Act, 1867 says.

The challenge is to ensure that municipalities from coast to coast have the legal, financial and other means to continue to be part of the solution. Canadian municipalities are key players, close to their constituents and their needs, and accustomed to innovating and collaborating. This was true before the pandemic and will be even more so in the post-pandemic world.

This article is part of the Reshaping Canada’s Cities After the Pandemic Shockwave special feature. 

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Benoît Frate
Benoît Frate is an associate professor in the department of urban studies and tourism at the Université du Québec à Montréal and a member of the Quebec bar.
David Robitaille
David Robitaille is a full professor in the faculty of law, civil law section, at the University of Ottawa and a member of the Quebec bar. He is also counsel at DHC Avocats in Montreal.

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