NORTH WESTSIDE RATEPAYERS ASSOCIATION RESURRECTED

Is it a tax or a regulatory charge?

*** This is just a snippet

Judgements of the Supreme Court of Canada

Citation:Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3 S.C.R. 134
Date:September 10, 1999
Docket: 26450

Indexed as: Westbank First Nation v. British Columbia Hydro and Power Authority

File No.: 26450.
Hearing and judgment: June 21, 1999
Reasons delivered: September 10, 1999

Section 125 of the Constitution Act, 1867 is one of the tools found in the Constitution that ensures the proper functioning of Canada’s federal system. It advances the goals of federalism and democracy by according a degree of operational space to each level of government, free from interference by the other. It prohibits one level of government from taxing the property of the other. However, it does not prohibit the levying of user fees or other regulatory charges properly enacted within the government’s sphere of jurisdiction.

Although in today’s regulatory environment, many charges will have elements of taxation and elements of regulation, the central task for the court is to determine whether the levy’s primary purpose is, in pith and substance: (1) to tax, i.e., to raise revenue for general purposes; (2) to finance or constitute a regulatory scheme, i.e., to be a regulatory charge or to be ancillary or adhesive to a regulatory scheme; or (3) to charge for services directly rendered, i.e., to be a user fee. In order to determine whether the impugned charge is a “tax” or a “regulatory charge” for the purposes of s. 125, several key questions must be asked. Is the charge: (1) compulsory and enforceable by law; (2) imposed under the authority of the legislature; (3) levied by a public body; (4) intended for a public purpose; and (5) unconnected to any form of a regulatory scheme? If the answers to all of these questions are affirmative, then the levy in question will generally be described as a tax.

The levies are properly described as being, in pith and substance, taxation enacted under s. 91(3) of the Constitution Act, 1867. They are enforceable by law, imposed under the authority of the legislature, and levied by a public body for a public purpose. The appellant has not demonstrated that the levies are connected to a “regulatory scheme” which could preclude the application of s. 125. The charge does not form any part of a detailed code of regulation. No costs of the regulatory scheme have been identified, to which the revenues from these charges are tied. The appellant does not seek to influence the respondent’s behaviour in any way with these charges. There is no relationship between the respondent and any regulation to which these charges adhere. Although the Indian Act is legislation in relation to “Indians, and Lands reserved for the Indians”, this does not, in itself, create a “regulatory scheme” in the sense required by the Constitution.

As these taxes are imposed on the respondent, which it is conceded is an agent of the provincial Crown, s. 125 is engaged. The taxation and assessment by‑laws are accordingly inapplicable to the respondent.

Source http://scc.lexum.umontreal.ca/en/1999/1999scr3-134/1999scr3-134.html

March 17, 2010

SUBMISSION TO THE BOARD RE SOLID WASTE MANAGEMENT BYLAW FOR BUDGET MEETING MARCH 26, 2010

Mr. Chair; Regional Directors; Dan Plamondon; Chris Radford; Peter Rotheisler:

The issue of an increase in rates for the North Westside Transfer Station first came to light when the North Westside Ratepayers Association (NWRA) observed a Report to the Board authored by Peter Rotheisler, Waste Reduction Supervisor dated December 14, 2009 (attached). This report was a comparison of the North Westside and Traders Cove Transfer Stations over the past 5 years. Subsequent to this the NWRA sent a letter to Peter Rotheisler dated February 10 (attached) expressing our concern with the large increase without any real costing or explanation to the residents of the North Westside. We also spoke with Mr. Rotheisler several times via phone in order to solicit more information and were told that a more definitive costing was being done and would be available for the April 14th meeting to be held on the North Westside on April 14th. Of course this is 2 weeks after the budget and as it turns out after the new Bylaw was passed.

Because traffic at the North Westside Transfer Station has increased by about 35% over the past few years the NWRA also asked that the attendantʼs hours be increased an additional 4 hours, preferably on a Saturday. Apparently this increase in hours was not approved, we are continuing to seek this increase. Did the Engineering staff take into consideration that water is coming to Valley of the Sun and Upper Fintry and this will cause more buildout? This will most certainly increase users at Sugarloaf Transfer station.

Director Edgson and Peter Rotheisler were both aware that this amendment to the Bylaw was coming before the March 11th meeting. The NWRA spoke with Peter Rotheisler several times over the past month and was never advised of the drastic change being discussed and proposed by Director Edgson and himself. We are at a loss to understand why our rates would have to be blended with the East Electoral area (Joe Rich) who are on automated pickup. Typically their rates would be $187.00 per year. Traders Cove Transfer Stationʼs rates were projected to rise to $179.00 per year.

Both of these areas will now see decreases in their actual rate. However North Westside Transfer Station (Sugarloaf) will see an increase from our projected increase of $91.00. We feel blindsided by this sudden change in direction by Director Edgson and the Engineering Department and will be making residents in the Sugarloaf transfer station catchment area aware.

We understand that the bin/cart pickup in the East Electoral area was not favourably received; however, we the taxpayers should not be paying for RDCOʼs decisions. One has to ask why these residents are not paying the same as other residents for bin/cart pickup?

THEREFORE THE NORTH WESTSIDE RATEPAYERS REQUEST THAT THIS ILL CONCEIVED BYLAW BE REPEALED TAKING INTO CONSIDERATION THE FOLLOWING REASONING:

- Report to the Board dated December 14, 2009 where the recommendations were reported is entirely different than what was presented at the March 11, 2010 meeting. (As stated previously the NWRA would have reacted strongly to this on March 11th had we had been informed of these sweeping changes).

-The Report to the Board dated December 14, 2010 asked that staff report back to the Regional Board on “the proposed user fee increases” prior to 2010 budget deliberations. These user fee deliberations as passed in the bylaw were not the same as presented to the Board on December 14, 2009 and would not be applicable any motion around this recommendation and report.

-The Report to the Board also states: “AND FURTHER THAT staff consult with users of the North Westside and Traders Transfer Stations to explain the need for increased user fees and gauge interest ........instead of transfer station service.” This strictly implies that this consultation should take place before not after a decision is made.

-It is our understanding the residents served by the Sugar Loaf transfer station have no interest in bin/curbside pickup if this is where the Engineering Department is headed with “blending.” We feel we should be responsible for the costs of our solid waste disposal but should not be required to subsidize other areas.

-Reasoning in the March 4, 2010 Board Report is seriously flawed. Think about it please.
Item 3 states: “Due to the $48.00 difference in projected user fees between transfer stations, fees were going to have to be blended to prevent residents from the Traders Cove Transfer Station (more expensive) changing to the NOWESI Transfer Station (less expensive), which would have further increased the difference in cost.” Again, please think about this statement, it is ludicrous to think that residents of Traders Cove would drive 30 kilometres on Westside Road to go to the Sugarloaf Transfer Station. Someone pointed out to the Engineering Department that a handful of residents in the Sugarloaf Transfer Station catchment area travel to Kelowna on a
regular basis and therefore elect to drop their garbage off at Traders Cove. At any rate, it could only assist the Traderʼs Cove count.

-The Ratepayers had projected this increase to be 175% before Engineering staff raised the rate to $167.06. Now it is an increase of 317% with no increase in service.

In closing we again ask that this bylaw be repealed as it is ill conceived, unfair and possibly illegal. Taxpayers in one area of RDCO should not be required to subsidize another area re solid waste management. Living at the farthest end of RDCO we are subjected to increased costs that areas closer to Kelowna are not ie., septage removal.

We accept this as we enjoy our rural surroundings. The cost of our water is also likely to rise when water metres are installed. We just want to point out there are differences in the services of particular areas and do not feel that RDCO should be “blending” rates without considering all the implications. This is not a Municipality, it is a very rural area and we wish to keep it that way.

Diane Baldwin, President
Allastair Fergusson, Director

2. Electoral area residents will pay the same user fee and parcel tax for basic waste management related services whether they are on curbside collection or transfer station service.

3. Due to the $48 difference in projected user fees between transfer stations, fees were going to have to be blended to prevent residents from the Traders Cove transfer station (more expensive) changing to the NOWESI Transfer Station (less expensive), which would have further increased the difference in cost.

March 11, 2010 Regional Board Agenda
Item 3.1 Solid Waste Management Regulation Amendment Bylaw.pdf

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