It's in the Bag (For Now): BC Supreme Court Upholds Victoria's Ban on Single-Use Plastic Bags

Across the globe, municipal bans on plastic bags have been met with varying levels of opposition. In Texas, the state Supreme Court, in a ruling that ultimately held municipal plastic bag bans are “at odds with state law”, provided guidance to legislators on how to support plastic bag bans in the future. In Australia, ‘plastic bag rage’ has been making headlines as shoppers respond to bag bans with violence. Meanwhile in BC, plastic bag bans appear here to stay after the BC Supreme Court ruled last month that Victoria’s bylaw banning single-use plastic bags is valid.

The Canadian Plastic Bag Association (the “CPBA”) challenged Victoria’s bylaw at the BC Supreme Court on the basis that the City had no power to enact the ban as it was an environmental regulation that required provincial approval. The City’s position was that the bylaw was enacted under their authority to make regulations in relation to business.

The CPBA characterized the bylaw’s origin as a response to a draft bylaw and petition the City received in 2015 from the Surfrider Foundation, a non-profit that is “dedicated to the protection of the ocean, waves and beaches.” Relying on this characterization, the CPBA argued that Victoria enacted the bylaw “to protect the natural environment, including the ocean environment beyond the City’s borders.” While Justice N. Smith accepted that the Surfrider bylaw and petition, and the environmental issues underlying them, had provided the initial impetus for the City to consider a ban on single-use plastic bags, he also held that was insufficient to determine the bylaw was enacted to regulate the environment.

In order to determine the purpose of the bylaw, Justice Smith considered numerous reports which had been provided to city council between 2015 and when the ban bylaw was enacted in January 2018. He highlighted that the reports had repeatedly considered the impact of single-use packaging on the City’s streets and waste management infrastructure. The reports also mentioned that “the current overuse of plastic checkout bags in our community is unsustainable over the long term and has been identified by many in the public to be inconsistent with the values of Victorians.”

The court ultimately determined that “although some members of council may have been motivated by broad environmental concerns, council’s attention was properly drawn to ways in which discarded plastic bags impact municipal facilities and services.” Council had decided that those issues could be addressed by prohibiting the use of single-use plastic bags, which the court considered to be a “specific form of consumer transaction.”

Justice Smith also concluded that “in order to be considered a bylaw for the protection of the natural environment within the meaning of ss. 8(3)(j) and 9(1)(b) of the [Community Charter], a bylaw must…regulate the conduct of parties directly engaged in activities that are considered to have a negative environmental impact.” In the case of plastic bag use, any negative environmental impacts were “the result of subsequent actions by the customer” and were not a direct result of the transaction that provided the consumer with the plastic bag. On that basis, prohibiting businesses from providing customers with a certain type of packaging (i.e. single-use plastic bags) was a bylaw aimed at business regulation and not one aimed at environmental protection.

In addition to affirming a local government’s ability to regulate plastic bag use, this decision provides guidance on when a bylaw will be characterized as “for the protection of the natural environment” such that provincial approval is required under the Community Charter.

To date, no Notice of Appeal has been filed. Victoria’s ban on single-use plastic bags took effect July 1, 2018.

Sabrina Spencer