April 2004

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

Should you need to discuss a energy regulation related matter, please contact Paul Vogel or John Goudy by e-mail or by telephone at (519) 672-9330.  If corresponding by e-mail, be sure to include your name, your telephone number and a brief message.

The manufacture, sale, storage and application of pesticides in Canada are regulated by both the federal and provincial governments. However, with increasing concern about the health impacts of pesticides, municipalities may wish to prevent or limit pesticide use. Does a municipality have the power to enact a by-law for this purpose?

The Ontario Superior Court recently considered an attack by pesticide producers on a municipal by-law purporting to regulate pesticide use within the boundaries of the municipality. The by-law in question was expressed to be in response to the “health risks associated with the use of pesticides” by prohibiting, subject to specified exceptions, the application of pesticides within the municipality. Persons contravening the by-law were subject to prosecution and penalty under the Provincial Offences Act. Since under the Municipal Act a municipality may only “regulate matters not specifically provided for by this Act or any other Act for purposes related to the health, safety and well-being of the inhabitants of the municipality”, the application of the pesticide producers attacked the by-law on the basis that federal and provincial statutes and regulations already deal with pesticides.

In dismissing the application, the Court was satisfied that the by-law was primarily directed at the health, safety and well-being of the municipality’s inhabitants and noted that the provincial government had declined the municipality’s request under the Environmental Protection Act for authority to enact such a by-law for “the protection or conservation of the natural environment”. The Court concluded that, although federal legislation dealt with the importing, exporting, manufacturing, selling, registration, packaging and labelling of pesticides, and provincial legislation dealt with pesticide storage and licensing of applicators, neither federal nor provincial legislation purported to prohibit or limit the use of pesticides within the municipality. With respect to the effect to be given to municipal by-laws, the court referred to earlier Supreme Court of Canada authority which stated:

“ … courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens of those in municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold in cases where powers are not expressly conferred, but may be implied”.

The court also referred to other Supreme Court of Canada authority that:

“ … law making and implementation are often best achieved at a level government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs to local distinctiveness and to population diversity.

“ … the correct course is to look at the precise provisions and the way they operate in the precise case and ask: Can they co-exist in this particular case in their operation? If so, they should be allowed to co-exist, and each should do so in its own parallel regulation of one aspect of the same activity to two different aspects of the same activity”.

Accordingly, the court concluded that:

“The By-law simply prohibits the use of pesticides (with certain specified exemptions) within the boundaries of the (municipality). I see nothing in any other legislation which conflicts with that. Unquestionably, other statutes deal with pesticides, their manufacture, licensing, packaging and use, but in no instance do they do so in a manner which conflicts with this By-law.”

Federal, provincial and municipal governments may properly regulate pesticides within their respective spheres of legislative jurisdiction. A municipality concerned about health impacts of pesticides has the power to prevent or limit pesticide use.