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An Ontario Superior Court has upheld provincial regulation to dramatically reduce the number of acres planted with corn and soybean seeds coated with a class of pesticides known as neonicotinoids or neonics, which are toxic to bees and other essential pollinators.

In Grain Farmers of Ontario v. Ontario Ministry of the Environment and Climate Change, 2015 ONSC 6581, the court rejected a demand by the Grain Farmers of Ontario (GFO) to stay the coming into force of bee protection regulations adopted in July. GFO argued that Regulation 139/15 under the Pesticides Act, R.S.O. 1990, c. P.11 (“the Regulation”), which amended O.Reg. 63/09, would cause irreparable harm to Ontario corn and grain farmers.

The Regulation imposes new conditions for the sale and control of neonic-treated seeds, to make sure they are used only where there is a legitimate need for the pesticide.

In order to provide adequate time for compliance, the Regulation created a “transition year”. During the first year, farmers wishing to use neonic-treated seeds on more than 50% of their lands would be required to prepare a pest assessment report (“PAR”). That report would need to be provided to vendors of neonic-treated seeds before any could be purchased. After this “transition year”, farmers would be required to prepare PARs to use neonic-treated seeds on any of their lands.

 Two types of assessment may be conducted in order to obtain a PAR: soil pest assessment (“SPA”) and crop pest assessment (“CPA”). The results of either assessment may provide proof that neonic-treated seeds are required on a particular piece of land. During the transition year of August 2015 to August 2016, any farmer may perform the SPA. The following year, a certificate demonstrating completion of training in the assessment process will be required before a SPA can be conducted. Post-2017, only a professional pest advisor will be permitted to conduct the SPA in order to obtain a PAR.

CPAs  may take place after 1 March 2016, and must be performed by a professional pest advisor.

Eric Gillespie, on behalf of GFO, argued that this transition rule places farmers in an impossible position. It says: since the Regulation only came into force in July 2015, the current year’s crops were planted with neonicotinoid-treated seeds. Those seeds prevented any pest damage. Thus, GFO argues, no pest assessment report based on an SPA conducted in the fall will disclose the amount of neonicotinoid-treated seeds that will really be needed the following year. Since farmers must place their orders for seed in the Autumn, they are placed at a huge financial disadvantage if they will not know until next Spring how how much neonicotinoid-treated seed they will be permitted to use.

The court ruled:

[37] In my view, GFO is not asking for a determination of rights that depend on the interpretation of the Regulation but a re-writing of that Regulation in a manner that would permit the effects of the Regulation to be delayed to its advantage.

[38] It is not the job of this court to pronounce on the efficacy or wisdom of government policy absent the aforementioned constitutional or jurisdictional challenges, neither of which are made here: … Nor is it within the power of this court to rewrite or “correct” legislation argued by a party to be faulty or ambiguous. Yet, this is precisely what GFO asks in the context of its application. Such a course of action would, in effect, render the operative Regulation inoperative and would, in effect, change the legislation. I agree with Ontario that it is neither possible nor desirable that this court have the jurisdiction to effectively grant a stay in the guise of a declaration of a Regulation which is otherwise unchallenged…

The GFO application was dismissed, and the bee protection regulations were upheld. This is a big win for Ontario’s Minister of the Environment and Climate Change, and for Ontario beekeepers.

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