Municipalities are ‘creatures of the provinces’

The often-used expression and commonly cited “municipalities are creatures of the provinces” comes from a 1993 decision by the Supreme Court of Canada ruling:

Municipalities are entirely creatures of provincial statutes. Accordingly, they can only exercise those powers which are explicitly conferred upon them by a provincial statute. The Ontario Interpretation Act, R.S.O. 1990, c. I.11, states:

10.  Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

Supreme Court of Canada – R. v. Greenbaum (1993), 14 M.P.L.R. (2d) 1 [at para. 20]

Usage

Municipal officials often use the phrase to defer action or responsibility to the provincial government.

The phrase reflects the constitutional reality in Canada: municipalities have no independent constitutional status and derive all authority from provincial legislation.

Municipal council members and staff use it to explain why they:

• Cannot act independently on certain issues (e.g. housing policy, environmental regulation).
• Lack funding or need provincial approval for initiatives.
• Oppose or delay policy changes and shift pressure back to the province.

Examples

When facing public pressure to expand tenant protections, a mayor might say:

We’re limited in what we can do — housing law is under provincial jurisdiction.

When asked why the city can’t tax vacant homes or regulate short-term rentals:

We’re creatures of the province; we can’t implement new taxation powers without legislation.

In short, it’s often both a legal explanation and a political tool to manage expectations, deflect criticism, or push for changes at the provincial level.

Municipal powers are granted by each province

Municipalities are established by the provincial government, which delegates (or “downloads”) some of their powers and responsibilities to municipal governments. Their responsibilities, powers, structure and funding mechanisms are determined by provincial legislation (eg. the Municipal Act in Ontario).

The powers granted to municipal governments are delegated by each of the provinces and territories of Canada according to governing legislation. Therefore, the legislation passed by municipalities has the status of subordinate legislation under provincial and territorial jurisdiction:

To act, a municipality must be able to establish a grant of authority within an enabling provincial statute. The Supreme Court of Canada in Nanaimo (City) v. Rascal Trucking Ltd., ruled that a municipality’s grant of power must be construed reasonably and generously, however, it cannot receive a power unless it already exists.

Mary L. Flynn-Guglietti, Annik Forristal, Kailey Sutton, Student-At-Law

Supreme Court: Municipalities are “government” for the purposes of the Canadian Charter of Rights and Freedoms

Rather than being “mere ‘creatures of the provinces,'” municipal governments have independent constitutional status, and are considered a separate level of government:

First, municipal councils are democratically elected by members of the general public and are accountable to their constituents in a manner analogous to that in which Parliament and the provincial legislatures are accountable to the electorates they represent.

Second, municipalities possess a general taxing power that, for the purposes of determining whether they can rightfully be described as “government”, is indistinguishable from the taxing powers of the Parliament or the provinces. 

Third, and importantly, municipalities are empowered to make laws, to administer them and to enforce them within a defined territorial jurisdiction. 

Finally, and most significantly, municipalities derive their existence and law‑making authority from the provinces.

Godbout v Longueuil (City of) [1997] 3 SCR 844

Godbout v Longueuil (City of), [1997] 3 S.C.R. 844 is a leading Supreme Court of Canada decision where the Court found that the city of Longueuil’s requirement that all permanent employees of the city must reside within the municipality was in violation of the Quebec Charter of Human Rights and Freedoms.

Supreme Court: Municipalities have no independent constitutional status

Toronto (City) v Ontario (Attorney General), 2021 in a 5-4 decision found that municipalities have no independent constitutional status and that they’re completely under the jurisdiction of the provincial government. They derive their existence and powers solely from provincial legislation, are not protected by Charter democracy or representation rights, and cannot rely on unwritten principles to claim constitutional status or override provincial authority.

Toronto (City) v Ontario (Attorney General), 2021 SCC 34, is a landmark decision of the Supreme Court of Canada on freedom of expression and unwritten constitutional principles. By a 5–4 majority, the court held that the Government of Ontario’s decision to reduce the size of the Toronto City Council in the middle of 2018 municipal election campaign did not violate either section 2(b) of the Canadian Charter of Rights and Freedoms or the unwritten principle of democracy. The court further held that unwritten constitutional principles could not serve as an independent basis to invalidate legislation.

Commentary

Support

When the founders of Canada contemplated municipal government, they actually gave it little thought. At the time, provinces were barely given consideration and cities were irrelevant. The population was mostly rural and government played a substantially smaller role than it does today. Over ensuing decades, cities became the engines of the economy and as government expanded so did the need for cities to play a much more central role in delivering services to the public.

An important lesson of good governance is to learn how to work with the rules you are given. It’s highly unlikely that there’s an appetite among the general public to open the Constitution and give the City of Toronto constitutional status.

Should cities remain creatures of the province? Yes – Fraser Institute

Criticism

This odd and disparaging way of describing an order of government in the Canadian federation downplays the democratic and constitutional significance of municipalities. It disengages citizens from their municipal institutions and therefore lessens the scrutiny of municipal decisions and the accountability of municipal decision-makers.

The phrase also perpetuates the notion that municipalities are administrative arms of provincial governments. It downplays their fundamentally political nature.

…

I argue that the laws that establish and delegate power to municipalities (and create municipal systems) ought to be considered a particular kind of constitutional law — “organic statutes,” which are ordinary (unentrenched) statutes that are constitutional in subject matter and significance.

Centre of Excellence on the Canadian Federation

[Municipalities’] status in Canada’s constitutional order ought to be recognized and secured. The constitutional doctrine of “creatures of the provinces” is a legal fiction. The fact that municipalities are included under provincial jurisdiction in Section 92 of the Constitution Act, 1867, need not imply a subordinate status. Municipal systems are fundamentally constitutional insofar as they establish and design democratically elected governments and divide power on councils and between levels of government in a way that furthers constitutional values.

The Fallacy of the Creatures of the Provinces Doctrine – IMFG (2019)