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).

NS Supreme Court throws out spray drift case after Farm Practices Board rules farm practice was normal

The Supreme Court of Nova Scotia has dismissed a spray drift claim brought by landowners against a neighbouring farmer and his farm business.  The plaintiffs are organic farmers and alleged that, in 2007, the defendant farmer sprayed his lands with a herbicide that drifted onto their property causing various damage: significant health issues, crop damage, and miscarriages by four horses as a result of exposure to "overspray". 

In response to the claim, which was founded in negligence, the defendants relied on the provisions of the Farm Practices Act.  They stated that their farming activities were carried out in accordance with "normal farm practice" so that, under the legislation, they were protected from any civil action in "nuisance, negligence or otherwise, for any odour, noise, dust, vibration, light, smoke or other disturbance resulting from an agricultural operation."  Following a motion by the defendants, the civil action was stayed pending a determination by the Farm Practices Board of whether the activities in question constituted "normal farm practice".

The plaintiffs then made an application to the Board and a hearing took place in June, 2012.  In January, 2013, the Board ruled that the defendants had not acted in a manner inconsistent with "normal farm practice", and dismissed the plaintiffs' complaint.  That Board decision was appealed unsuccessfully by the plaintiffs.

With all of that completed, the plaintiffs returned to the Supreme Court of Nova Scotia to have the stay lifted so that they could proceed with their action for damages.  The defendants also asked for the stay to be lifted, but for the purpose of dismissing the claim.  The Court had to deal with the ruling by the Board that the activities in question, in particular the spraying, were "normal farm practice".  However, the Board decision was not automatically determinative of the civil action - the question for the Court was whether spray drift was "other disturbance" within the meaning of the Farm Practices Act.

If spray drift fell outside "other disturbance", then there would be no protection against a civil claim afforded by the Act.  Justice Murphy concluded on this point: "Absent contrary authority, I remain of the view that the activities the plaintiffs allege occurred, herbicidal overspray or drift and contaminated run-off from ditching, are "other disturbances" resulting from an agricultural operation as contemplated by section 10(1)(a) of the Act."  Therefore, the claims made by the plaintiffs were barred by the normal farm practices legislation and dismissed as such.

Read the decision at: Nauss v. Waalderbos.

Dead lawn points to neighbour's herbicides, but standard of proof not met

The Plaintiff in a Saskatchewan small claims suit alleged that the Defendant applied a substance in the back alley next to his property that caused damage to the Plaintiff's lawn.  The judge hearing the case was satisfied on a balance of probabilities that a substance from the back alley did migrate to the Plaintiff's lawn, either through run-off or leaching, and killed it.  This finding was supported by viva voce testimony, an investigation report, and photographs.  However, the judge was not satisfied on a balance of probabilities that the Defendant had anything to do with putting the substance into the back alley or that the substance came from the Defendant's property.

Of course, the judge accepted that the Plaintiff's suspicions about the Defendant's involvement were not unwarranted.  The Defendant was employed by a crop production services company and the Plaintiff's wife had seen the Defendant dump liquid in the back alley.  The Defendant told the Plaintiff that he has used glyphosate and Ally, and may have "mixed one a little strong".  The Defendant's yard is directly across the back alley from the Plaintiff's yard, and the alley slopes from the Defendant's yard to the Plaintiff's yard.  And there was no plant kill in any other yard in the area.

In spite of this circumstantial evidence, the judge did not find for the Plaintiff.  There was no evidence of what substance had actually killed the Plaintiff's lawn, and no samples had been taken from the back alley to test for chemicals in that area.  The Plaintiff suggested that the cost of testing for numerous substances until the correct one was found would be prohibitive, but it appears to have left the Plaintiff without the evidence necessary to prove the claim.

The Court dismissed the Plaintiff's claim, but (perhaps tellingly) made no order as to costs. 

Read the decision at: Charbonneau v Statchuk.

Trespass Claim for Pesticide Drift

Click on the following link for an article from the official blog of the Association of American Law Schools - Agricultural Law Section about a significant pesticide drift ruling from the Minnesota Court of Appeals: Johnson et al. v. Paynesville Farmers Union Cooperative Oil Co.  The Johnsons, organic farmers, sued the PFUC over allegations that pesticide and herbicide spray had drifted onto their organic crops and caused crop damage (including the alleged loss of organic certification). 

PFUC applied for summary judgment to have the claim thrown out on the basis that there was no "trespass by particulate matter".  A lower court judge agreed with the PFUC, but the appeal court ruled that pesticide overspray could constitute an unlawful entry (trespass).  The AALS article notes that most jurisdictions now recognize agricultural chemical drift as sufficient grounds for a claim in trespass.

Fines levied against Kingston area lawn care companies for herbicide use

November 8, 2010

TYMACK INCORPORATED O/A NUTRI-LAWN KINGSTON AND ROBERT BAXBY FINED $10,486 FOR USING BANNED PESTICIDES

KINGSTON & BELLEVILLE – On October 14, 2010, Tymack Incorporated operating as Nutri-Lawn Kingston and Robert Baxby were each convicted of four violations under the Pesticides Act for using a prohibited Class 9 Pesticide for cosmetic use and failing to post signs as per regulations.

The Court heard that Mr. Baxby is the manager and sole director of Tymack Incorporated operating as Nutri-Lawn Kingston, who has been providing lawn care services in Belleville and Kingston. On April 24, 2009, Mr. Baxby met with ministry staff in Kingston to discuss the new cosmetic pesticide ban, and the requirements of the ban were explained to him. Mr. Baxby was strongly encouraged to comply with the new ban. On August 13, 2009, the ministry received a complaint that company trucks and employees were applying chemicals to control weeds at a site in Kingston, leaving a strong odour. Ministry staff attended the site and confirmed that the company had sprayed that morning. There were also no signs posted. On August 19, 2009, an examination of the turf areas at the site revealed vegetation with abnormal growth patterns, characteristic of exposure to Class 9 Pesticides.

On October 8, 2009, the ministry received several complaints related company employees using a mixture in the spray tank at a site in Belleville. Again, no signs were posted and the results of samples taken from the tank confirmed high concentrations in the Class 9 category and therefore, a banned substance.

The company was charged following an investigation by the ministry’s Investigations and Enforcement Branch.  The company was fined at total of $10,486 on two charges, plus a victim fine surcharge and given 12 months to pay the fines.

October 15, 2010

KEVIN CROSS FINED $12,000 FOR USING BANNED PESTICIDES

KINGSTON – On September 30, 2010, Kevin Cross was fined $12,000 for using, causing, or permitting the use in, on, or over land of a pesticide, contrary to amendments made under the Pesticides Act.

The Court heard that Mr. Cross owns a lawn care and pest control company in Kingston. From May to August 2009, the ministry had received reports that the company had been applying banned herbicides to three residential properties.

Mr. Cross was charged following an investigation by the ministry’s Investigations and Enforcement Branch.  Mr. Cross was fined $12,000 plus a victim fine surcharge and was given one year to pay the fine.

Alberta Court of Appeal throws out negligence claim against manufacturer of "Glean" herbicide

The Alberta Court of Appeal has upheld a non-suit order made by the trial judge in a case by potato growers against Dupont Canada in connection with its "Glean" herbicide.  NPS Farms Ltd. (NPS) alleged that they suffered production losses in several years beginning in 1990 due to the residual presence of the "Glean" herbicide in the soil.  NPS alleged that because Dupont did not make itself aware of the dangerous propensities of the product, it could not, and did not, provide adequate warning to consumers. Dupont’s marketing of the product without adequate warning was said to have been negligent.
The Court of Appeal found that:

... [t]here was ample evidence before the trial judge to demonstrate that the Appellants [NPS] were aware of the presence of Glean on the lands in 1987 and knew that it was harmful to potatoes. They conducted soil tests and planted test strips of potatoes on the lands in 1987, 1988 and 1989 which showed damage to their potatoes. They did not plant full potato crops on the lands in 1988 and 1989 because they were aware of the injury which would result. [...]

At trial, the Appellants sought, but did not obtain, further amendment to the Statement of Claim in order to specifically allege that Glean was a defective product. In our opinion, the trial judge did not err in refusing the request. We endorse the position of the Respondent that the Appellants cannot now seek a remedy premised upon a new cause of action after representing to the Court and to the Respondent on numerous occasions that the only causes of action claimed were failure to warn and negligent misrepresentation. During the opening statement at trial where the matter of the pleadings and the causes of action alleged were specifically raised, no new cause of action was alluded to by the Appellants. On that basis, the Respondent’s cross-examination and defence of the case was based on the Appellants’ express representations to the Court and to the Respondent and their strategic choice to confine themselves to allegations of failure to warn and negligent misrepresentation. To allow the Appellants to recast their case at this late stage of the proceedings would be prejudicial and unfair given also that the limitation period has long since run.

Read the decision at: NPS Farms Ltd. v. Dupont Canada.

Another canola failure case, another failure to prove cause

Last week, I posted a case in which a farmer alleged that defective seed was the cause of his poor canola crop. This week, I have another case along the same lines. This time Pioneer Grain Company sued Saskatchewan farmer Dale Ortynsky after he refused to pay for herbicides he had purchased because he alleged they were the cause of his crop's poor yield. The spray manufacturers, Bayer and Dupont, were added as third parties to the action. Ortynsky also made a counter claim against Pioneer for damages related to the poor yield.

Once again, lack of evidence about the actual cause of the crop failure meant a finding against the canola farmer. Justice J.E. McMurtry of the Saskatchewan Court of Queen's Bench concluded, "The defendants have not satisfied me that the poor canola crop resulted from herbicides sold by Pioneer and not by some other factor such as weather, soil conditions, farming practice, and/or application of the [herbicide]." Civil claims must be proved on a balance of probabilities (basically, 50% plus 1 or more likely than not). In this case, as Ortynsky could not prove on a balance of probabilities that the herbicide was the cause of the crop failure, his counter claim failed and he was ordered to pay for the herbicide he had purchased, plus interest and costs.

http://www.canlii.org/en/sk/skqb/doc/2009/2009skqb513/2009skqb513.html