The Ontario Superior Court on Friday struck down a City of Toronto municipal bylaw which banned the sale of shark fin and shark fin products in the City of Toronto.
The danger of shark fin products to sharks was never seriously in doubt. There was ample evidence that the collection of fins from live sharks was dangerous to the well-being of sharks and shark species. The primary consideration of the court was whether the bylaw was properly enacted by the City of Toronto, that is, whether it was enacted for a valid municipal purpose. The Court ultimately decided that it was not.
In a recent B.C. Supreme Court case, the Court considered similar issues (municipal purposes) and ruled that a City of Richmond bylaw banning the sale of dogs in pet stores was valid.
The City of Toronto was not as fortunate in defending its bylaw.
The Court considered whether the bylaw fell within the municipal power (under the City of Toronto Act) to regulate animals, and decided that it was not (shark fin being an animal product but not itself an animal). Similarly, the Court found that the bylaw did not fall within the municipal power to regulate the economic, social and environmental well-being of the City, or the health, safety and well-being of persons, as no negative impact on the environment or the health of the City or its residents could be identified.
The Court was clear that it is not enough that an issue be important in order for the City to have jurisdiction - there must also be a valid municipal purpose:
The power to deal with municipal issues is a broad power since it is not defined in the Act. However that fact does not mean that an issue is a municipal issue merely because a policy decision is taken by City Council that an issue is important and it is desirable to take municipal action with regard to the issue. If all that was required to give jurisdiction to the City were such a policy decision, the determination of the scope of the jurisdiction of the City would be solely a matter for the decision of City Council. That result would be inconsistent with the fact that the powers delegated to City Council under the Act are limited to municipal issues.
The case has importance for other cities in Canada that are also considering similar bans. The City of Calgary, governed by the Municipal Government Act (which, at Section 7 contains a similar list of the heads of municipal power as the City of Toronto Act) is currently in consultations on a similar ban. A number of British Columbia cities have enacted similar bans, and the City of Vancouver is currently considering a similar measure.
The case is Eng v. Toronto (City), 2012 ONSC 6818