Glyphosate Battles Continue

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

Following the lead of their American counterparts, Canadian class-action lawyers have been busy commencing lawsuits in Canada against Monsanto and Bayer over allegations that glyphosate (the active ingredient in the herbicide Roundup) has caused cancer in individuals exposed to the chemical.  A quick Google search brings up references to at least seven different actions commenced across Canada in 2019 by various representative plaintiffs on behalf of proposed classes of people exposed to glyphosate.  Damages claimed are in the hundreds of millions of dollars, and include “exemplary, punitive, and aggravated damages” intended to address the Defendants’ alleged callous and reckless disregard for the health and safety of users of glyphosate.

On another front, objections have been raised against the continued registration of glyphosate for use in Canada.  In April, 2017, the Pest Management Regulatory Agency (“PMRA”) of Health Canada released a Re-evaluation Decision by which it granted continued registration of products containing glyphosate for sale and use in Canada.  Health Canada evaluated available scientific information and found that:

… products containing glyphosate do not present risks of concern to human health or the environment when used according to the revised label directions.  As a requirement for the continued registration of glyphosate uses, new risk reduction measures are required for the end-use products registered in Canada.  No additional data are being requested at this time.

Health Canada summarized its overall findings from the re-examination of glyphosate as follows:

• Glyphosate is not genotoxic and is unlikely to pose a human cancer risk.
• Dietary (food and drinking water) exposure associated with the use of glyphosate is not expected to pose a risk of concern to human health.
• Occupational and residential risks associated with the use of glyphosate are not of concern, provided that updated label instructions are followed
• The environmental assessment concluded that spray buffer zones are necessary to mitigate potential risks to non-target species (for example, vegetation near treated areas, aquatic invertebrates and fish) from spray drift.
• When used according to revised label directions, glyphosate products are not expected to pose risks of concern to the environment.
• All registered glyphosate uses have value for weed control in agriculture and non-agricultural land management.

A number of Notices of Objection were filed pursuant to the federal Pest Control Products Act requesting that a review panel of scientists be established to review Health Canada’s decision to continue glyphosate’s registration.  The PMRA of Health Canada decided not to establish a review panel on the basis that the “objections raised did not create doubt or concern regarding the scientific basis for the 2017 re-evaluation decision for glyphosate.” 

In January, 2020, the Federal Court of Canada heard an application for judicial review of the PMRA’s decision not to establish a review panel.  The Applicants were Safe Food Matters, a non-profit corporation dedicated to the safety of food production technologies, and its President.  They requested an order “quashing” or voiding the decision and directing the PMRA to establish a review panel.  The Applicants’ Notice of Objection raised concerns about using glyphosate as a pre-harvest dessicant for crops, rather than as a weed killer, and focused on harm to humans rather than harm to the environment.  The PMRA found that the objection did not raise “scientifically founded doubt” about the validity of Health Canada’s Re-evaluation Decision on glyphosate, and that expert scientists would not be able to assist in addressing the topics raised in the objection.

In a decision dated February 13, 2020, Madam Justice Simpson dismissed the application for judicial review on the basis that the Applicants failed to show in their Notice of Objection that “there exists scientifically founded doubt” about the validity of Health Canada’s Re-evaluation Decision on glyphosate.  She applied the standard of review of “reasonableness”, meaning that the PMRA’s decision would stand as long as it was both logical and rational, and fell within relevant factual and legal constraints (such as rules imposed by the law governing the PMRA, principles of statutory interpretation, past practices and decisions, etc.).  Justice Simpson’s view was that the decision would only be unreasonable if the Applicants’ Notice of Objection showed a “well founded scientific doubt about a conclusion” in Health Canada’s Re-evaluation Decision, and that “scientifically founded doubt … must be demonstrated by at least one controlled peer reviewed study published in a reputable journal that contradicts or raises a reasonable doubt about the Evaluations’ conclusions.”  She concluded the Applicants failed to show that the PMRA’s decision was unreasonable based upon those criteria.

Following the release of the Federal Court decision, Safe Food Matters announced on its website that it would review its next steps with counsel and its board, which could include a possible appeal, a further judicial review application, and pushing for changes to the law.

Read the Federal Court decision at:  M. v. Canada (Attorney General).

Trespass to Farm Property

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

In 1980, the Ontario Legislature enacted the Trespass to Property Act in order to remedy a number of perceived shortcomings in the existing Petty Trespass Act (first enacted in 1834 as the Act to provide for the Summary Punishment of Petty Trespasses and other offences), including the inadequacy of protections for farm landowners.  The Ministry of the Attorney General noted at the time that the existing law did “not deter trespass onto land under cultivation even though significant farm losses are caused by trespassers.”  The Petty Trespass Act required that before a person could be prosecuted for entry on agricultural land, the person must have had notice that trespass is prohibited, or the land had to be enclosed or posted with signs.  The Ministry further noted that modern agricultural techniques to maximize crop yields had resulted in the removal of existing fencing from fields and orchards, and that maintaining signage on large open areas was impractical.

The Trespass to Property Act prohibits entry onto premises “that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on lands used primarily for agricultural purposes.”  Entry is also prohibited on premises that “is enclosed in a manner that indicates the occupier’s intention to keep persons off the premises or to keep animals on the premises.”  A key element in both prohibitions is that no notice or posted sign is required to prohibit entry.  Entry is prohibited by virtue of the agricultural use of or the enclosure of the land.

The Ontario Court of Justice recently heard an appeal from a conviction under the Trespass to Property Act related to a farm property.  The appellant and others had been hunting coyotes with the use of hounds and snowmobiles when one of the hunters shot and wounded a coyote.  The appellant followed the wounded coyote’s tracks across an old split rail fence with barbed wire (in poor condition in places) onto a woodlot area in the neighbouring 96-acre farm property beyond the fence, and there shot the animal.

The owner of that neighbouring property happened to be walking trails on his farm at the same time, and heard the gunshots.  He confronted the appellant and told him to leave the property.  The landowner viewed the entry as a trespass, and he was also concerned for his safety given that a firearm had been discharged on his property.  Although the appellant had permission from ninety percent of the landowners in the area to hunt, he did not have the permission of the owner of the land where he shot the coyote.  The appellant was charged with trespass under the Act, and convicted following a trial.

On appeal, the issue was whether the appellant’s entry onto to the property beyond the fence was a trespass in the absence of a notice or posted sign.  At trial, the Justice of the Peace found that no notice or sign was required because the land was bounded by a split rail fence and barbed wire, which indicated the owner’s intention to keep persons off the premises, and because the land was “in part a garden, in part a field, or other land that is under cultivation.”  The appellate judge upheld the conviction.  He found that, though the Justice of the Peace didn’t specify it, the land was a woodlot on land used primarily for agricultural purposes and so no notice of sign was required.  The judge also agreed that the land was enclosed in a manner indicating an intention to keep persons off the property.

In making that finding, the appellate judge said the following in response to the appellant’s contention that the dilapidated split rail and wire fence was not an effective enclosure and that there was no evidence of an intention to keep people out:

… this argument is extremely narrow and places an unreasonable burden on landowners. It would require them to rebuild fences upon their purchase of property and to testify at trial as to their mindset in keeping and maintaining fences. In effect it shifts the burden, in this strict liability offence, to the landowner to establish and then re-establish again and again their intent. It also means that persons who wish to access property would effectively have to interview the landowner as to their mindset and the history of the fence. That does not make sense. And it certainly is not in keeping with the purpose of legislation, which is to allow property owners in agricultural areas to be free from unwanted encroachments onto their property without the burden of onerous notification and fencing requirements.

On December 2, 2019, the Ontario Government’s Bill 156, the “Security from Trespass and Protecting Food Safety Act, 2019”, passed first reading in the Legislature.  That proposed legislation would apply to all farms and animal processing facilities at which farm animals are kept, and would prohibit entry to “animal protection zones” – any enclosure for farm animals or other area marked as an “animal protection zone” – without the prior consent of the owner or occupier of the farm.  The proposed legislation specifies that the existing Trespass to Property Act would no longer apply to “animal protection zones”. 

In debate on Bill 156, a government member explained that the new legislation differs from the Trespass to Property Act in the following ways, providing enhanced protection to the livestock industry:

·         It considers animal welfare and biosecurity as a key component;

·         It covers the transportation of farm animals;

·         It provides that consent to enter an “animal protection zone” cannot be implied;

·         It allows for consent to be voided if obtained under false pretences;

·         It protects the owner or occupier from civil liability if a trespasser is harmed;

·         It provides stronger recovery mechanisms for harms caused by a trespasser; and,

·         It requires trespassers to identify themselves.

Existing provisions under the Trespass to Property Act would continue to apply to all property other than an “animal protection zone”.