1. DAVIS LLP and the DAVIS LLP logo are trade-marks of Davis LLP, © 2007 Davis LLP, all rights reserved. Unauthorized copying, distribution and transmission is strictly prohibited. Extended Producer Responsibility Interpreting the Municipal Act, 2001: What’s Possible? Prepared by Laura K. Bisset for the Recycling Council of Ontario April 14, 2011

2. Overview  Municipal Powers  Waste Disposal Challenges to Municipalities  Tools available to Ontario Municipalities to Enable Extended Producer Responsibility

3. Municipal Powers

4.  Municipalities are creatures of provincial statute  Trend toward broad interpretation of municipal powers in the Courts  Broad powers granted by (relatively) new legislation

5. 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)

6. 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

7. 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

8. 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)

9. 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.

10. Waste Disposal Challenges to Municipalities

11. 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

12. 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.

13.  Tools available to Ontario Municipalities to Enable Extended Producer Responsibility

14. Voluntary Mechanisms  Green Building  Green Procurement  Retail Take-Back

15. Design Influence Mechanisms  Design for Environment  Market Development

16. Financial Mechanisms  Differential tipping fees  Landfill taxes/levies  Other Levies

17. Permitting Mechanisms  Official Plan Policies  Development and Building Permits

18. Regulatory Mechanisms  Disposal bans

19. Legislative Basis for these Mechanisms  Subject Matters  Spheres of Jurisdiction

20. Questions?