Vancouver has banned plastics — but will it hold up, legally?

A similar ban proposed by the City of Victoria has not withstood legal challenge – so will Vancouver's?

The City of Vancouver says its plastic ban bylaw will withstand legal challenge because it is governed by a different charter than the City of Victoria, which had a similar bylaw struck down earlier this year after a legal battle.

On Wednesday, Vancouver city council voted to phase in a ban on plastic straws and plastic shopping bags. Under the bylaw, plastic straws will be banned starting in April, and plastic bags will be banned in January 2021. 

However, in July, a similar bylaw proposed by the City of Victoria — banning plastic bags — was struck down by the B.C. Court of Appeal after being challenged by the Canadian Plastic Bag Association. 

In the decision, the court said Victoria, which is governed by B.C.'s Community Charter, overstepped its jurisdiction in creating the bylaw.

It said the plastic bag ban went beyond the regulatory business rule the city argued it was. Rather, it was an attempt by the city to regulate environmental issues: “It set out to slow down and ultimately end the harm caused by plastics in waterways both local and global,” the decision read. 

In order for the bylaw to be valid, it continued, Victoria would have to seek provincial approval from the Minister of Environment.

Monica Kozmack, senior project manager for the single use reduction strategy at the City of Vancouver, said she is confident Vancouver has authority to create its plastic ban bylaw. 

First of all, she said, the City of Vancouver is governed under the Vancouver Charter, which is different than the Community Charter that governs other municipalities in B.C.

“[The Vancouver Charter] gives us authority to regulate business and that's the authority that we're drawing on to do these bylaws,” Kozmack said. 

When questioned whether that argument would hold — given the City of Victoria's failed characterization of its own bylaw as a business rule — the city said it is confident of its own bylaw. 

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“I think that there was some discrepancy about that, but [at] the City of Vancouver, we're confident this is a regulation of business.”

The City of Victoria has now launched an appeal of the decision at the Supreme Court of Canada. The court has yet to decide whether it will hear the case.

Kozmack says Vancouver will be watching. 

“Our understanding is that the City of Victoria is seeking leave to appeal at the Supreme Court of Canada on the question of regulation for business so it will be interesting to see what happens there,” she said. 

CBC has reached out to the Canadian Plastic Bag Association and the Canadian Plastics Industry Association for comment.

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