February 2005

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 Pesticides Act prohibits the discharge of a pesticide which may “cause harm or material discomfort to any person greater than the harm or material discomfort, if any, that would necessarily result from the proper use of (the) pesticide”. Related regulations under the Act provide that “no person shall use a pesticide … except in accordance with the label for that pesticide …”. What are the consequences for a pesticide applicator who applies pesticide contrary to label directions but in accordance with the assurances of the salesman and, as a result, exposes neighbouring pedestrians to the pesticide?

The Ontario Superior Court of Justice recently considered an appeal from a golf club from a conviction for contravention of the Pesticides Act and related regulations. On a warm, sunny December day, the golf club had spread a herbicide containing a possible carcinogen on fairways adjacent to an area used by pedestrians and other members of the public through use of a tractor-pulled spreader. A mother and two children walking past the golf club were enveloped in a cloud of pesticide drift transported by a light wind and suffered dizziness, headaches, skin irritation and burning eyes. The product label prescribed only push spreaders (not power driven pull spreaders) and cautioned “Avoid breathing dust. Avoid contact with eyes, skin and clothing”. Although the golf course had been assured by the pesticide salesman that the product was suitable for use on fairways, no such use was recommended on the product label. It appeared that the pesticide drift had travelled 50 to 100 yards before coming into contact with the affected pedestrians.

Despite evidence of the golf club employees that they had both read the label instructions and ascertained from Environment Canada that weather conditions were appropriate, both the trial and Appellate Courts rejected the golf club’s defence of due diligence. In dismissing the conviction appeal and upholding the fine imposed of $25,000.00, the Appellate Court determined that:

“… the Club applied the product on fairways as opposed to putting greens with a spreader not listed on the label, namely, a power driven pull spreader versus a manual push spreader and at a setting in excess of that provided for in the label;

the product was applied with a power drive pull spreader to save time and other safe methods of application and other products were available for use on the fairways;

… the wind conditions … could have caused the particles to remain airborne for a period of time;

the Appellants were aware of the concern and the dustiness of this particular product and had, in fact, complained about the same in the year prior to the salesperson;

both (employees) were aware of the safety precautions that they must undertake in order to apply this product and in fact, that they were not to apply the product in the presence of golfers;

a large cloud of chemical product of dust did, in fact, engulf the (family) walking in an area which was known by the Appellants to be used by pedestrians and other members of the public; and

the (family) did, in fact, experience significant symptoms.”

Compliance with the Pesticides Act and related regulations require that pesticides be applied strictly in accordance with label instructions. Failure to do so and impact on the neighbouring public may result in prosecution for contravention of these regulatory requirements and, upon conviction, the imposition of substantial penalties.