Tag Archives: Ontario

Ontario’s Neonicotinoid Law Survives Appeal

In October 2015 I reported on how Ontario’s neonicotinoid law, which dramatically reduces the number of acres planted with corn and soybean seeds coated with a class of pesticides known as neonicotinoids, was to remain in place despite a challenge to that law by the Grain Farmers of Ontario (“GFO”).

As you probably know, there are strong links between neonicotinoids and bee colony collapses, and neonicotinoids are known as being toxic to bees.

In that post, I referenced the fact that the GFO was “reviewing its legal options”, and the GFO ultimately opted to appeal the Ontario Supreme Court’s decision.

Well today, I’m pleased to report that the appeal was heard, and dismissed, by the Ontario Court of Appeal (the “Court”). For a full review of the decision, just click here.

At the appeal, the GFO raised two issues. It submitted that the motion judge erred in finding that:

(1) Ontario Regulation 139/15 made under the Pesticides Act, R.S.O. 1990, c. P.11 (“the Regulation”) does not limit the farmers’ property rights; and

(2) the relief sought is not the determination of rights through the interpretation of a regulation.

In dismissing the appeal, the Court did find that the Regulation narrows the farmers’ range of legally permitted options of treated seeds, and so affects the farmers’ rights. However, the limitation of a right does not, standing alone, create a justiciable issue (an issue that can be tried in a court of law).

The GFO argued that the justiciable issue in this case was found in r. 14.05(3)(d) of the Regulation, which provides:

“(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;”

However, the Court noted that this rule was a procedural rule, and is not a mechanism whereby a person could simply challenge the wisdom or fairness of a governmental action. The Court agreed with the reasoning of the motion judge, citing the Alberta Court of Appeal in Trang v. Alberta (Edmonton Remand Centre) which provided:

“Private litigants are not entitled to use the courts as an indirect method of altering public policy decisions, especially those involving the expenditure of public funds. Just because a private party has a sincere concern about the validity of a public policy does not entitle him or her to litigate its legality: Canadian Council of Churches v. Canada (Minister of Employment and Immigration). As a corollary, the superior courts are not to use their powers to grant generally worded declarations as a method of controlling or influencing governmental operations.”

In the result, Ontario’s neonicotinoid law remains, and its bees are safer for another day.

James Early

Ontario’s Neonicotinoid Law To Remain In Place

CBC and Better Farming are reporting that the Ontario Superior Court has upheld a provincial regulation to dramatically reduce the number of acres planted with corn and soybean seeds coated with a class of pesticides known as neonicotinoids, which are toxic to bees.

The regulation had been under challenge by the Grain Farmers of Ontario and a decision on the application, which was heard on September 28, 2015, was reserved by the Ontario Supreme Court. It is understood that this may not be the last word on this matter and Grain Farmers of Ontario is “reviewing [its] legal options”.

According to the Ministry of Environment and Climate Change, the new provincial requirements are intended to support the government of Ontario’s target to reduce the number of acres planted with neonicotinoid-treated corn and soybean seed by 80 per cent by 2017.

Banning the use of neonicotinoids has been a hot topic for the environmental movement for the past couple of years. For example, both Environmental Defence, and the David Suzuki Foundation, have called for complete bans on neonicotinoid use on the basis of studies which have shown and link between neonicotinoid pesticide use and escalating honeybee colony losses.

The decision follows on the heels of a US decision in September, 2015 where a US court overturned federal approval for a new  neonicotinoid formulation called sulfoxaflor. In that decision, the US court found that the Environmental Protection Agency had relied on “flawed and limited” data, and its green light was unjustified given the “precariousness of bee populations”.

It is time for an outright ban, country-wide, in Canada.

James Early

Ontario’s Great Lakes Protection Act

Today, October 7, 2015, Ontario passed the Great Lakes Protection Act (the “Act“). The Act is designed to strengthen Ontario’s ability to keep the Great Lakes and St. Lawrence River clean, as well as to protect and restore the waterways that flow into them.

According to the provincial government’s news release, the Act enables the province to address significant environmental challenges to the Great Lakes, including climate change, harmful pollutants and algal blooms. The Act will also:

  • Establish a Great Lakes Guardians’ Council to provide a collaborative forum for discussing and gaining input on issues and priorities relating to the Great Lakes.
  • Allow the Ministry of the Environment and Climate Change to set environmental targets and enable communities to address local problems.
  • Require the establishment of monitoring programs on a number of water quality indices where needed, as well as regular public reporting.
  • Require consideration of Traditional Ecological Knowledge in decisions made about the health of the Great Lakes if offered by First Nations or Métis communities.
  • Enshrine Ontario’s Great Lakes Strategy the province’s action plan on the Great Lakes, as a living document to be reviewed every six years and reported in the legislature every three years.

This is extremely positive news given the declining health of the Great Lakes, particularly with regard to recent toxic algal blooms and the availability of clean drinking water for those people reliant on the Great Lakes’ fresh water supply.

According to Environmental Defence, who has championed this Act for a number of years, the Act will lead to:

  • Empowered communities through consultation and new opportunities for involvement;
  • Consideration of traditional ecological knowledge in research and decision-making;
  • Provincial commitment to meeting targets that will reduce or eliminate harmful pollutants and address algal blooms; and
  • Accountability, through improved monitoring and reporting.

The Great Lakes basin is home to 98 per cent of Ontario’s population, 95 per cent of its agricultural lands, 80 per cent of its power generation capacity and 75 per cent of Canada’s manufacturing sector. Additionally, Ontario has 10,000 kilometres of Great Lakes and St. Lawrence shoreline, the longest freshwater coastline in the world. This is reason enough to celebrate the passing of the Great Lakes Protection Act.

James Early

State of Caribou in Ontario

The Ontario government has released its State of the Woodland Caribou Resource Report 2014 on “five years of research, monitoring and assessment to promote the recovery of woodland caribou and support sustainable forest management”.

The forest-dwelling woodland caribou was listed as threatened under the Endangered Species Act (Ontario) in 2008. The report reviews the progress made towards the protection and recovery of caribou in Ontario, outlines the findings of the monitoring and assessment of caribou and caribou habitat, and identifies details and findings of its caribou research program.

In furtherance of the Caribou Conservation Plan, the Ontario government has invested over $11 million, and had researchers contribute to over 50 research projects on various topics including genetics, habitat use, diet and predation.

Time will tell whether enough was done to protect this iconic species.

James Early

 

Changes to Ontario Greenhouse Gas Emission Reporting Regulation

The Ontario Government is seeking comments on various suggested changes to the Greenhouse Gas Emissions Reporting Regulation. The aim of the changes is to simplify greenhouse gas emission reporting in Ontario. Diane Saxe (here) has summarized some of the changes as including:

  • changes to the Global Warming Potential (GWP) values to adopt internationally-accepted values
  • clarification on verification statements
  • clarification on temporary and partial closures
  • changes to the guideline to remain consistent with requirements in other provinces
  • streamline director approvals in the guideline

The Ontario government has provided a blackline draft of the changes, here. The comment period closes on January 19, 2015.

James Early

Wind Power Gets Go-Ahead in Ontario

Yesterday the Ontario Superior Court of Justice dismissed the appeals of a group of residents who lived close to proposed wind turbines, paving the way for those turbines to be built: Dixon v Director, Ministry of the Environment, 2014 ONSC 7404 (CanLII).

The residents had argued that the turbines would cause serious harm to human health if constructed, and suggested that prior hearings before prior Tribunals were procedurally unfair.

A number of ‘grounds of appeal’ were argued, including suggestions that: the “harm” test contained in the Environmental Protection Act violated the Charter; the Tribunals erred in their treatment of the “post-wind turbine witnesses”;  the Tribunals erred in finding that they lacked jurisdiction to assess whether a Director’s decision, or the process in making a decision, is Charter compliant; and the Tribunals failed to follow the principles of fairness or natural justice. On each ground, the residents failed.

To view the decision in its entirety, click here.

James Early

 

 

Costs: Public Interest Litigation

If you have been reading this blog for the last two months you will have seen reference to the conservation vs. wind energy battle that is playing out in Ontario courts at present. If you haven’t, see here and here.

In relation to the February 20, 2014 appeal (where Ostrander Point GP Inc. (“Ostrander”) was successful in putting the wind energy project back on track) the court asked for written submissions with regard to the issue of costs for that appeal.

Prince Edward County Field Naturalists (“PECFN”) and Alliance to Protect Prince Edward County (“APPEC”) argued that no costs should be awarded as their litigation was in the “public interest” and raised novel issues. Ostrander argued that costs should be awarded in the amount of $150,000.00 ($120,000.00 of which against PECFN, the rest against APPEC).

The court accepted that there was a measure of public interest engaged by the appeals, and that the issues raised were matters that had not previously been considered by the court. However, that was not the end of the decision.

In deciding whether a particular proceeding constitutes public interest litigation, five factors are to be considered:

(1) The nature of the unsuccessful litigant.
(2) The nature of the successful litigant.
(3) The nature of the lis – – was it in the public interest?
(4) Has the litigation had any adverse impact on the public interest?
(5) The financial consequences to the parties.

In response to these five factors, the court found:

“While the outcome of these factors in this case is mixed, overall they do not support a conclusion that this was public interest litigation. First, PECFN and APPEC had a direct and personal interest in the outcome of this litigation. They represent one element of the interests of the residents of Prince Edward County. They clearly have a view about the wisdom of this wind turbine development. They are entitled to pursue that view but not with impunity. Second, Ostrander is a private actor, not a public one. It is more difficult to deny costs to a successful private actor than it is to a public one. The third factor is more favourable to PECFN and APPEC. As we have already said, there is a measure of public interest in this litigation. The fourth factor is more neutral. While there is no serious adverse impact on the public interest from this litigation, there is nonetheless an adverse impact associated with the delay that is occasioned in having a project go forward that has been either directly or indirectly approved by two provincial ministries. Fifth, while undoubtedly Ostrander is better suited financially to absorb the costs of the litigation, that alone is not a reason to deny costs. One of the functions of costs is to ensure that all parties consider the wisdom of pursuing litigation and understand that there are consequences to doing so. PECFN and APPEC chose to pursue this matter before the Tribunal and then chose to pursue it further in this court. They must have been aware that there would be costs considerations engaged by pursuing their appeals in this court. There is no compelling reason to treat PECFN and APPEC any differently than any other party to litigation in that regard. In particular, PECFN and APPEC are not general public advocacy groups whose work elsewhere might be adversely affected by a costs award.”

What the court added, however, was that the five factors also have an impact on the quantum of costs to be awarded. In particular, costs should be fair and reasonable. As there was a measure of public interest involved in the litigation, the court saw fit to reduce the costs sought by two-thirds, resulting in costs awards of $40,000.00 against PECFN and $10,000.00 against APPEC.

The costs are payable within 30 days. To review the costs decision, you can click here.

By James Early