Oy Canada

Flow control hits the land of the maple leaf.

Waste Haulers in Canada can no longer simply shrug off the flow control controversy as a purely U.S. phenomenon.

In August, the Nova Scotia Court of Appeal overturned a lower court judgment and ruled that the Halifax Regional Municipality (HRM) could lawfully enact and enforce a by-law (comparable to an ordinance) requiring locally generated solid waste to be disposed of within the municipal boundaries.

The ruling is the first waste flow control decision by any appellate level court in Canada, according to Kevin Latimer, who served as counsel for HRM in the appeal, and the last word on the by-law in Nova Scotia. The court of appeal is the top tier of the provincial court system.

In 2002, HRM amended its Solid Waste Resource Collection and Disposal By-Law by adopting a by-law mandating flow control for solid waste. As a result, all construction and demolition (C&D) waste must go to a privately operated facility and industrial, commercial and institutional waste to the public-private Otter Lake Waste Management Facility — the only facilities in the city that are licensed to accept these wastes.

Shortly after HRM enacted the flow control provision, Ed DeWolfe Trucking Ltd., a hauling company based in Darmouth, Nova Scotia, decided to test the legality of the measure by collecting waste in the municipality and taking it elsewhere for disposal.

HRM promptly went to court asking for a declaration that the hauler had violated the flow control provision and for an injunction prohibiting the company from exporting solid waste. The hauler responded by challenging the validity of the law.

The case drew widespread attention. The Halifax Waste Resource Society and the Valley Region Solid Waste-Resource Management Authority intervened in support of HRM. At the same time, the Region of Queens Municipality, which feared losing substantial C&D disposal revenue due to the HRM flow control by-law and similar measures by other cities, intervened on behalf of the hauler.

In October 2006, the trial judge ruled that the by-law was invalid because it was enacted to boost tipping fees collected locally by interfering with a hauler's right to select the most cost-efficient site and because provincial law did not expressly authorize HRM to enact it.

On appeal, a three-judge panel rejected the lower court's conclusion that the by-law unlawfully interfered with contractual arrangements outside the municipality.

Although the by-law has “some effect … outside the [HRM] boundaries, … it does so as an aspect of managing solid waste in the municipality — a core municipal function — and … for the purpose of providing identifiable benefits to [HRM's] inhabitants” and a “predictable flow of revenue to help fund the … system,” the opinion stated.

The appeals court also held that the provincial municipal government law “confers wide powers … to manage waste/resource systems … [including] the power[] … to enact[] the challenged by-law.”

[Halifax Regional Municipality v. Ed DeWolfe Trucking Ltd., Docket No. CA272349, Nova Scotia Court of Appeals, Aug. 16, 2007]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.