[Pharmwaste] Toronto pesticide ban upheld

[Tenace, Laurie]

Toronto pesticide ban upheld


Hudson, Quebec, was the first Canadian town to ban pesticide use for =
cosmetic
purposes in 2001, basing its ordinance on the precautionary principle. =
Since
then many other Canadian towns have followed suit--45 as of a 2003 =
report,
covering a third of the population. This is the second court challenge
CropLife has lost.


--------------------------------
Toronto Star, May 14, 2005

Toronto pesticide ban upheld by court
Allows city to protect residents

Bylaw foes predict bad weed season

TRACEY TYLER
LEGAL AFFAIRS REPORTER

Ontario's highest court has upheld the City of Toronto's general ban on
pesticides, ruling that municipalities across the province have generous
powers to pass bylaws for the health and well-being of their citizens.

A Toronto bylaw restricting pesticide use took effect nearly two years =
ago,
on May 23, 2003.

Soon after, CropLife Canada, a trade association that includes pesticide
producers, challenged the bylaw, arguing it was enacted under narrow =
health
powers that the city was only supposed to use in an emergency, such as =
an
outbreak of severe acute respiratory syndrome (SARS).

Other municipalities have been waiting for the court's decision before
introducing similar restrictions.

The association also argued the city had no authority to pass the bylaw
because federal and provincial laws were already in place regulating
pesticide manufacturing and use.

But in a unanimous decision yesterday, a three-judge panel of the =
Ontario
Court of Appeal said the law has recognized since the 1990s that =
municipal
councils have broad powers to enact bylaws to meet "the legitimate =
interests"
of the community and that various levels of government can have =
complementary
pieces of legislation.

Since no other legislation specifically gives the city the power to =
regulate
pesticide use and since the restrictions it adopted did not conflict =
with any
federal or provincial law, Toronto council had the legitimate authority =
to
enact the bylaw under general health and well-being provisions of the
Municipal Act, said Justice Kathryn Feldman, writing for a panel that
included Justices Stephen Goudge and Susan Lang.

Dr. David McKeown, Toronto's medical officer of health, called the =
decision
"an important public health victory."

But a pesticide industry representative called it a "disappointing"=20
ruling likely to usher in a season of summer blight.

"It looks like the Great Toronto Dandelion Festival is a go," said Debra
Conlon, president of the Urban Pest Management Council.

She added that while the city has the power to pass such a bylaw "that
doesn't make it sound public policy."

But Gideon Forman, executive director of the Canadian Association of
Physicians for the Environment, one of six intervenors in the case,
disagreed.

"We think it's a real shot in the arm for the organic (gardening) sector =
and,
plus, there's just a lot less poison out there," he said.

Conlon said Health Canada has confirmed "these products can be used =
safely."

"The bylaw is not going away and it's here to stay," said Councillor Joe
Mihevc, vice-chair of the city's board of health.

"Friday the 13th isn't as bad a day as some people would lead you to
believe," he said, noting the court awarded the city $50,000 in legal =
costs,
which comes on top of $59,000 it was awarded after the association's
challenge was dismissed by the Superior Court in 2003.

Apart from pesticides, the case was also important because it was the =
first
to test the breadth of power elected officials have under a revised =
Ontario
Municipal Act, particularly when it comes to passing bylaws aimed at the
health and safety of citizens.


These so-called general "welfare" powers were also front and centre when =
the
Supreme Court of Canada ruled in 2001 that the town of Hudson, Que., had =
the
authority to enact a bylaw regulating pesticide use.=20
Hudson did so under the general welfare provisions of the province's =
Towns
and Cities Act.

But Scott Maidment, a lawyer representing CropLife, argued the Supreme
Court's decision did not apply in Toronto's case. Although the Ontario
Municipal Act contained similar general welfare provisions, the act was
overhauled in 2001 and those powers were drastically narrowed, he said.

Feldman disagreed. The province, in introducing the updated act, said it =
was
giving municipalities "the tools they need to tackle the challenges of
governing in the 21st century," she said.

If the government meant to restrict its power to pass bylaws aimed at =
the
well-being of residents, it would have spelled it out clearly, Feldman =
said,
adding it would be a step backwards to read the legislation as anything =
less
than giving elected officials considerable latitude.

With files from Paul Moloney


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