Published In

Osgoode Hall Law Journal

Document Type

Working Paper

Publication Date

2019

Subjects

Operative Subsidiary, Municipal Authority, Toronto

Abstract

This paper analyzes what the principle of subsidiarity means for municipalities, arguing in favour of “operative subsidiarity” in the design of provincial legislation. First, I outline the meaning and origins of subsidiarity, including critiques in the potential of its application. Second, I discuss the judicial treatment of municipal authority in Canada over the last twenty years. I advance that municipal authority as interpreted by the SCC has increasingly made room for municipalities as governments deserving of deference, unless the action breaches fairness or human rights. However, despite this judicial evolution, provinces have not drafted legislation with the principle of subsidiarity in mind, leading to unintended consequences as a result of the interplay between laws. This means that while municipalities, especially cities, are asserting a stronger role in national debates, a complex reading of multiple laws mires their ability to act and ultimately complicates decisions once made.

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