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).

Grain Farmers of Ontario appealing neonicotinoid decision

Grain Farmers of Ontario ("GFO") is appealing the October 23 dismissal of its challenge to Ontario's neonicotinoid regulations.  That appeal is made to the Ontario Court of Appeal.  GFO is also making a motion to the Ontario Divisional Court for a review of the earlier Superior Court decision dismissing GFO's request for a stay of the regulation.  GFO says that, "We believe there are proper grounds for these steps".  GFO's news release can be found at: GFO Appeal.

This challenge by GFO still strikes me as an attack on government policy, something in which the courts are loathe to interfere (as was noted by Justice Akhtar in his dismissal of the case).  GFO's news release doesn't provide any details about the "proper grounds" for the appeal(s).  We may need to wait until the appeals are heard (if they proceed) and decisions rendered to see what "proper grounds" are being advanced.

Federal Court of Appeal split on Chippewas of the Thames appeal of NEB Line 9B Decision

In a split decision, the Federal Court of Appeal has dismissed the appeal of the Chippewas of the Thames First Nation of the National Energy Board's approval of Enbridge's Line 9B Reversal and Line 9 Expansion Project.  At issue in the appeal was the Federal Crown's duty to consult with First Nations - was the NEB required as part of its decision-making process to determine whether the Federal Crown (which was not a party to the NEB process) was under a duty to consult First Nations with respect to potential adverse impacts of the proposed project and, if so, whether it had adequately discharged that duty?

Ryer, J.A., writing for the majority of the Court in dismissing the appeal, found that that the NEB was not required as a precondition to its consideration of Enbridge's application to determine whether the Federal Crown was under a duty to consult (or whether it had discharged that duty) because the Federal Crown was not a participant in the Enbridge application.  Justice Ryer noted that, if the Crown had appeared before the NEB, these issues could have been argued.  However, the Federal Crown did not participate in the NEB approval process.

Justice Ryer then went on to consider whether the NEB itself has the power to undertake and discharge the duty to consult with First Nations on behalf of the Federal Crown.  He noted that it is within the power of Parliament to require the NEB to discharge the Crown's duty to consult, but it has not done so by legislation.  He questions how the NEB could both carry out the duty to consult and then adjudicate on whether or it had adequately discharged the duty.  Yet, in a letter sent by the Minister of Natural Resources concerning the Enbridge project, the Minister suggested that the Federal Government "relies on the NEB processes to address potential impacts to Aboriginal and treaty rights stemming from projects under its mandate."

Nevertheless, Justice Ryer concluded that there was no delegation of the duty to consult by the Federal Crown to the NEB.  Therefore, any shortcoming in the NEB's consultation with First Nations could not stand as a reason for setting aside its decision to consider Enbridge's application and, ultimately, to approve it.

Justice Rennie of the Federal Court of Appeal provided a dissenting opinion on the case.  His opinion was that the Supreme Court's 2010 decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council meant that it was not necessary for the Federal Crown to be a party to the NEB proceeding in order for the NEB to be required to rule upon the Crown's duty to consult.  He viewed that decision of the Supreme Court as changing the law on the duty to consult.  As a result, Justice Rennie's opinion was the NEB must review the duty to consult in the context of a Section 58 application (like the Enbridge Line 9B application, which is not subject to final approval by the Federal Cabinet):

The Board must have, and exercise, the power to assess whether the duty to consult has been fulfilled, and to refuse to grant an approval if there is an unfulfilled duty to consult; otherwise the section 58 regime allows for the approval of projects which may adversely affect Aboriginal rights without the Crown ever consulting with the Aboriginal group in question. A project proponent can apply, go through the NEB's hearing process, and receive approval. The Crown can remain silent, on the sidelines. No consultation with the Crown need occur at any point. Indeed, the Crown lacks the statutory authority to prevent an application from being approved by the Board, even if it should want to.

Rennie, J.A. concluded that the NEB should have considered whether there was a duty to consult and, if so, whether it had been fulfilled.  And the NEB should only have granted approval to Enbridge if there was no unfulfilled duty to consult with First Nations.  Justice Rennie would have allowed the appeal.

Given the split in the Federal Court of Appeal on this appeal, this may very well be a case that will be heard by the Supreme Court of Canada.

The full text of the Federal Court of Appeal decision is available at: 2015 FCA 222.

Alberta Court upholds denial of crop insurance on basis of false or misleading reporting

The Alberta Court of Queen's Bench recently dismissed an application for judicial review of a decision by the appeal committee related to Alberta's crop insurance program.  The regulations that govern crop insurance provide that the decision of the appeal committee is final and binding on the parties; only a challenge to the decision by way of judicial review is possible.

In this case, crop insurance denied claims by a farmer for its 2009 canola crop, its 2009 Canadian Prairie Spring wheat crop and its 2010 Canadian Prairie Spring wheat crop.  Crop insurance declined to pay the benefit to the farmer on the basis that the farmer's post harvest assessments were incomplete and inconsistent with actual crop production.  On the appeal of this denial of coverage, the appeal committee decided that credibility was an issue.  The committee found that where there was a conflict in the evidence between the farmer and the crop insurance witnesses, the evidence of the crop insurance witnesses was to be preferred.  The committee cited examples where the farmer under-reported grain sales or was not forthright about grain sales until confronted with third-party documentation obtained during the crop insurance investigation.  The committee, which consisted of five farmer members, was left with the impression that the farmer "had not been honest and forthcoming in his dealings with AFSC during the claims process and subsequent contact with Program Cross Compliance and Investigation, despite several opportunities to make full and honest disclosure of the production and sales of crops."

The Court ruled that the standard of review applicable to this judicial review was a standard of reasonableness: if the Court found that the appeal committee's decision was "reasonable", then the decision would stand.  On review of the record from the appeal process, the Court concluded that the appeal committee's decision was, in fact, reasonable, and denied the judicial review application on that basis.  In particular, the Court found that it was abundantly clear that the committee had found evidence of false or misleading reporting from the farmer.  The Court could find nothing unreasonable about that conclusion and the denial of the crop insurance claims.

Read the decision at: F Prins Potatoes Ltd v Agriculture Financial Services Corporation.

NEB introduces Administrative Monetary Penalties to landowners

The National Energy Board ("NEB") has issued a new publication called "Administrative Monetary Penalties: Information for Landowners".  Among the information provided by the NEB is the following:

• How did Administrative Monetary Penalties ("AMPs") come to be?  They were created in July, 2012 as part of the Government's omnibus budget bill;
• If an AMP is issued to a landowner, the NEB may post the landowner's name on its website;
• If an AMP is issued to a landowner by the NEB, the landowner may ask the NEB to review its own decision (but, although it is possible for a landowner to ask the Court for a judicial review of the NEB's decision, there is no appeal available where an AMP has been issued).

Landowners are now at risk of being charged AMPs for violations of the NEB Act, including carrying out certain farming activities without pipeline company approval.  Daily penalties range from $250 to a maximum of $25,000 per violation for individuals.  Daily penalties range from $1000 to a maximum of $100,000 per violation for corporations.

BC Horse Farm case sent back to Farm Industry Review Board - original decision was unreasonable

In 2009, PH constructed a new barn on her farm property in Kelowna, BC to accommodate an equestrian business.  Her neighbours to the south brought a claim before the Farm Industry Review Board claiming that they were suffering from the effects of noise, lights, flies and odour from the farm.  In March, 2013, the Board found that a section of the horse farm and equestrian centre was not a normal farm practice - turning out horses within 15 metres of the southerly property line was deemed not a normal farm practice based on the City of Kelowna's zoning by-law and the Ministry of Agriculture's Farm Practice Review Guide.

 

The Board dismissed the noise and light complaints and determined that the farm's manure management practices were normal farm practice.  However, the Board accepted the complaint concerning the location of "livestock area B", which was not set back from the southerly property line.  The Board ordered that the area be shifted at least 15 metres from the boundary.

 

PH appealed and, on judicial review, the BC Supreme Court found that the Board's decision was unreasonable; the matter was remitted to the Board for a re-hearing.

 

The Court found that the Board, on the whole, failed to consider evidence pertaining to similar farm businesses in similar circumstances.  The Board's decision was not justified or transparent and reasonable because of that.  The Court wrote:

Although it is important to conduct an evaluative function that addresses the "good neighbour" principle, etc., the BC legislature chose clear and specific features of normal farm practices, including "accepted", "established", and "followed" practices.  This language is a clear and specific direction from the legislature that instructs the [Board] that it can supplement but not substitute certain evidence - e.g. provincial guidelines or the "good neighbour" principle - in place of evidence that demonstrates "proper and accepted customs and standards as established and followed by similar farm businesses under similar circumstances".  Indeed, the [normal farm practices legislation] circumscribes the evidence the [Board] must consider in making its final determination of normal farm practice.

and,

The legislature was clear when it defined the normal farm practice as a practice consistent with "proper and accepted customs and standards as established and followed by similar farm businesses under similar circumstances"; the [Board] was required to determine whether practices and by laws comport with those established practices.

Read the decision at: Holt v. Farm Industry Review Board.

Manitoba Court determines that proposed pipeline is provincial, not federal

In a post last December, I reported about a case in Manitoba being fought over the jurisdiction of a proposed pipeline - federal or provincial.  A group of affected landowners had sought leave to appeal a decision of the Surface Rights Board and had also requested the judicial review of Manitoba's decision to approve the pipeline.  The leave to appeal matter was put on hold pending the outcome of the judicial review.  In January of this year, the Court of Queen's Bench issued its decision on the judicial review.

The landowners applied to the Court for an order declaring that the pipeline is interprovincial and, therefore, outside the jurisdiction of the Province of Manitoba.  They had previously applied to the National Energy Board (NEB) for the same order, but that application was rejected.

On the basis of the test set out in the Supreme Court of Canada decision in Westcoast Energy Inc. v. Canada (National Energy Board), the Court ruled that the Manitoba pipeline was provincial in nature and, therefore, within the jurisdiction of the Province.  The Court found that the EOG pipeline (the one at issue in the case) and the MIPL pipeline (the cross-border pipeline to which the EOG pipeline would connect) were not a single federal undertaking, and that the EOG pipeline is not integral to the operation of the MIPL pipeline.  On that basis, the EOG pipeline did not become part of the interprovincial MIPL pipeline for the purpose of determining its jurisdiction.  As the EOG pipeline is located within the boundaries of Manitoba, it is a provincial pipeline.

Read the decision at: Daniels et al v. EOG Resources et al.

Is the pipeline provincial or inter-provincial?

Every so often, the question of whether a pipeline is subject to provincial regulation or to federal regulation (by the NEB) comes before the courts.  The issue is now before the courts in Manitoba according to a recent decision of the Manitoba Court of Appeal.  A number of landowners affected by a proposed pipeline filed applications for leave to appeal a decision of the Surface Rights Board of Manitoba to the Court of Appeal.  They then brought a motion seeking to adjourn the leave to appeal applications pending a decision of the Manitoba Court of Queen's Bench regarding a judicial review of the decsion by Mantioba's Minister of Innovation, Energy and Mines (the "Minister") to grant a permit to EOG Resources Canada Inc. (EOG) to construct the pipeline.

The intended purpose of the pipeline, which would cross through the landowners' properties, is to link up to another proposed pipeline that would cross the Manitoba-Saskatchewan border (the "MIPL Pipeline").  The MIPL pipeline project requires approval from the NEB as it is an interprovincial (federal) pipeline.

EOG maintains that, although its pipeline would connect directly to the interprovincial MIPL Pipeline, its pipeline is intended to be wholly within the province of Manitoba.  Therefore, the EOG pipeline would be subject to provincial approval, as was granted by the Minister.  The landowners contest the jurisdiction of the Minister and brought an application for judicial review of the Minister's decision to approve the pipeline on constitutional grounds.

EOG opposed the adjournment of the leave to appeal applications, asserting that a delay would cause it prejudice.  The Court disagreed.  It found that it was not a practical use of judicial resources to have two cases ongoing with respect to the same issues.  It also reasoned that the Court of Queen's Bench proceeding may result in additional evidence necessary to determine the constitutional issue (i.e. the jursidiction of the proposed pipeline).  The Court of Appeal found that these reasons outweighed any potential prejudice to EOG.

Read the decision at: EOG Resources Canada Inc. v. Saskitoba.

While it may sometimes seem unfair when rules are changed in the middle of a game...

... that is the nature of the game when one is dealing with goverment programs.

That was the statement made by the Ontario Divisional Court in a recent decision dismissing an application for judicial review of actions take (or not taken) by the Ontario Power Authority and the Ontario Minister of Energy in connection with green energy Feed-in-Tariff projects.  A long list of project proponents (118 in total) sought declarations from the Court that the OPA and the Minister "acted unreasonably in failing to process applications in accordance with" the OPA's own rules and that the Minister's new "Directions" in the FIT program are "unfair, discriminatory and ultra vires the enabling legislation".  The Applicants also sought an order requiring the OPA to process their existing FIT applications in accordance with the previous FIT Program Rules.

The complaint was that changes made to the FIT Program Rules were unfair to those project proponents who had already applied under the old rules - the new rules would apply to all outstanding project applications that had not already reached a certain point in the review/approval process.  Included with the new rules were lower prices to be paid for the electricity generated by FIT projects.

The Divisional Court found that the standard of review of the Minister's decision (in making and applying the new FIT rules) was reasonableness; the Court had to give considerable deference to the decision of the Minister.  In the end, the Court did not agree with the Applicants that the decisions in question were unreasonable.  In response to the argument made about legitimate expectations, the Court said:

Turning then to the ground of legitimate expectations, it is perhaps useful to begin with a definition of what the principle of legitimate expectations involves. The principle was set out in Canada (Attorney General) v. Mavi, 2011 SCC 30 (CanLII), [2011] 2 S.C.R. 504 where Binnie J. said, at para. 68:

Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty.

Once again, I find little to which the applicants can point that would constitute a representation that is “clear, unambiguous and unqualified”. The statements to which the applicants do refer that were made by Ministers Smitherman and Duguid do not, on their face, amount to representations that are unambiguous and unqualified. They are also not directed specifically to the applicants. Rather, they were statements of general application. In addition, the statements were clearly made in relation to the FIT Program itself and have to be read with, and understood in the context of, the detailed requirements and conditions of that program to which I have made reference above. Read in context, the applicants could not reasonably assert a legitimate expectation based on these statements that the criteria for the FIT Program or the process under it would not change.

The Court also disagreed with the Applicants that they had gained any vested rights through their involvement in the FIT program application process.  Likewise, the Court found that there was nothing to prevent the new FIT rules from having retroactive effect.  It was in the course of communicating this conclusion that the Court made its comment about changing the rules of the game mid-course.  As with tax laws, "no one has a vested right to continuance of the law as it stood in the past".  When planning one's affairs based on the current state of legis

Read the decision at: Skypower CL I LP et al. v. Minister of Energy (Ontario) et al.

Alberta farm land tax assessment case sent back for re-hearing

Madam Justice J.M. Ross of the Alberta Court of Queen's Bench in Edmonton has allowed an appeal of a property tax assessment decision involving farm land.  She granted leave to appeal to the Applicant, Associated Developers (AD), from a 2010 decision of the Composite Assessment Review Board (CARB) assessing AD's land as industrial property rather than as farm land.  Justice Ross then heard the appeal, overturned the decision of the CARB and sent the case back to the Board for re-determination.

The Property in question, located in Edmonton, was assessed as industrial property at a value of $6,723,500 in the 2010 assessment year for the 2009 taxation year.  The relevant valuation period for the 2010 assessment was therefore 2009.  Had the Property been assessed as farm land, the assessed value would have been $863,000.   The Applicant complained to the CARB, asserting that the property should have been assessed as farm land.  The Applicant had filed with the CARB annual leases between AD and a farmer for the years 1999-2010.  The leases included terms that the lands would be used solely for agricultural purposes. 

The City of Edmonton (arguing for the industrial land assessment) argued that the crop of hay on the property had not been harvested in 2009.  The City's position was that if the crop was not cut, it could not be said to have been produced and, therefore, was not used for farming operations and could not be classified as farm land.  AD argued in response that the land could still be farm land even if not hayed in 2009, as there are many circumstances in which people leave land idle for a year for a variety of sound agricultural reasons.

Justice Ross allowed the appeal because the CARB failed to provide adequate reasons for its decision and failed to identify the appropriate legal tests in its reasons.  These were breaches of the principles of natural justice and the duty to be fair.  She cancelled the decision and sent the matter back to the CARB to be re-heard.

Read the decision at: Associated Developers Ltd. v. Edmonton (City).

B.C. landowners lose bid for judicial review of Mediation and Arbitration Board decision

The B.C. Supreme Court has refused a request for judicial review by landowners Kenneth and Loretta Vause of a decision of the Mediation and Arbitration Board (now the Surface Rights Board).  The Board had made various orders regarding flow lines to be constructed by Spectra Energy Midstream Corporation.  During the course of proceedings before a mediator and then an arbitrator pursuant to the Petroleum and Natural Gas Act, the landowners and Spectra had come to an agreement over the proposed routing for the lines.  However, the revised routing would require the inclusion of an additional parcel of land owned by the Vauses. 

The Board eventually made an order permitting the flow lines using the agreed revised route and awarding compensation to the landowners.  The landowners made several attempts to challenge the Board's decision, all of which were dismissed by the Board and by the B.C. Supreme Court.  In a decision released this week, the Supreme Court again declined a request by the landowners for judicial review, this time on the basis that the earlier decisions of the Board could not affect the additional parcel of land because it was not named in the style of case (the case's name).  In other words, they argued that the Board was without jurisdiction to add that parcel of land to the order because it did not form part of the original application by Spectra.

Read the decision at: Vause v. British Columbia (Mediation and Arbitration Board).

Quebec farmer wins appeal against fines for exceeding poultry quota

Ferme Avicole Rodier Bombardier Inc. and Rock Bombardier have successfully challenged quota penalties imposed by the "Éleveurs de volailles du Québec" (the poultry marketing board in Quebec) in the Quebec Court of Appeal.  Bombardier was charged penalties for having exceeded chicken quota production levels by producing chickens for export from Quebec without a purchase contract in place.  In other words, with no contract in place, all of the production was counted against the quota and resulted in over-production in the eyes of the marketing board.

Bombardier contested the allegations on the basis that there was an export contract in place with a company called Volaille Giannone Inc.  Before the marketing tribunal in Quebec, Bombardier sought to have Giannone added to the case (interpleaded) to exercise a "recourse in warranty" against Giannone.  The Tribunal rejected this request and rejected a request by Bombardier to have the penalties dismissed on the basis that they were imposed outside of the applicable limitation period.  Bombardier argued that the penalty imposed falls under the authority of the Penal Code of Procedure in Quebec (rather than the Civil Code of Procedure) so that the limitation period is one year.

The Quebec Court of Appeal has found that the marketing tribunal (la Regie) was not expressly authorized by its constituting statute (the Act of the Legislature that creates the tribunal and delegates to the tribunal its powers) to impose a penalty set by the marketing board.  It did not have authority to be seized of the board's claim for a penalty.  Neither could the tribunal be seized of the producers' claim that they had a valid contract with Giannone.  On this basis, the Court of Appeal allowed the application for judicial review and overturned the decision of the Quebec Superior Court that upheld the penalties imposed by the tribunal.

However, the Court of Appeal declined to award costs to any party of the appeal/judicial review.  The Court rejected the primary argument of the producers that the fines were a penal matter that had to be addressed according to Quebec's Penal Code of Procedure (and, therefore, the board would be out of time to impose the penalties).  In the Court's view, the cost of making this argument did not facilitate the Court's study of the case. 

The decision in French is available at: Bombardier c. Éleveurs de volailles du Québec.

Hanna challenge to Ontario setbacks for wind turbines dismissed by Divisional Court

In a decision released late last week, the Ontario Divisional Court has rejected a challenge by Ian Hanna of the Ministry of the Environment's minimum setbacks for wind energy projects.  The application for judicial review challenged the promulgation of sections 35, 53, 54 and 55 of O. Reg. 359/09 made under Part V.0.1 of the Environmental Protection Act (“the EPA”). The title of the regulation is the “Renewable Energy Approvals Regulation.” The affected sections in the regulation prescribe minimum setback requirements for wind energy facilities and require that they conform to the Ministry of the Environment’s published “Noise Guidelines for Wind Farms.” The regulation came into effect on October 1, 2009, following a period of public consultation ending July 24, 2009.

Section 11 of the Environmental Bill of Rights, S.O 1993, c. 28 (the “EBR”) requires the Minister of the Environment to “take every reasonable step to ensure that the ministry statement of environmental values (the “SEV”) is considered whenever decisions that might significantly affect the environment are made in the ministry.”  Hanna submitted that s. 11 of the EBR establishes a condition precedent for the decision by the minister to recommend promulgation of the regulation, and a breach of that condition renders his decision, and the regulation, ultra vires (or outside the authority of the minister).  In particular, the ministry’s statement of environmental values sets out principles the ministry will apply in developing Acts, regulations and policies. One of those principles is that “the ministry uses a precautionary science-based approach in its decision making to protect human health and the environment.”  Hanna contended that the minister failed to consider that “precautionary principle.”

In the end, the three-member panel of the Divisional Court found that the minister did comply with the process mandated by the EBR when he prescribed a setback requirement of 550 metres:

There was a full public consultation and a consideration of the views of interested parties. The ministerial review included science-based evidence, such as reports of the World Health Organization and the opinions of acoustical engineering experts. Cognizant of the possible health concerns the minister decided the minimum 550 metre setback was adequate. He made that decision knowing the adequacy of the minimum setback could be challenged in any particular case before a specialized tribunal.  In the context of the broad policy issues at play, the alternative protections provided by the Environmental Review Tribunal and the absence of clear evidence the 550 metre setback requirement is necessarily insufficient we find that the minister did comply with the requirement in s. 11 of the EBR, notwithstanding the “precautionary principle” in the statement of environmental values. The precautionary principle does not preclude the decision that was taken by the minister.

Read the decision at: Hanna v. AGO.

Decision on wind turbine judicial review "coming soon"

Ian Hanna's application for judicial review of wind turbine setbacks in Ontario was heard by a three-judge panel of the Ontario Divisional Court last Monday in Toronto.  The Prince Edward County resident has challenged the 550 metre setback under the Green Energy Act regulations.  The responding party, the Province of Ontario, believes that the case should be heard by the Environmental Review Tribunal rather than the Court.  The Divisional Court panel raised the question with counsel for Hanna, but eventually agreed to hear the case. 

The hearing had been scheduled for two days, but was completed in one.  The panel indicated that a decision could be expected "soon".

Read the Countylive.ca story at: Decision on Ian Hanna case "soon".

Application for judicial review of wind turbine setbacks before Ontario Divisional Court

Ian Hanna has made an application to the Ontario Divisional Court challenging the validity of wind turbine setback regulations made under the Environmental Protection Act.  The setbacks relate to the Ministry of the Environment (MOE) Noise Guidelines for Wind Farms, and were prescribed on October 1, 2009 following a period of public consultation.

In the application, the applicant will argue that the regulation was not properly adopted. Section 11 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28 requires the Minister of the Environment to “take every reasonable step to ensure that the ministry statement of environmental values is considered whenever decisions that might significantly affect the environment are made in the ministry”.  In the Statement of Environmental Values (“SEV”), the Ministry sets out principles it will apply in developing Acts, regulations and policies. Ten bullets follow, one of which is “The Ministry uses a precautionary, science-based approach in its decision-making to protect human health and the environment”.  The applicant will argue that the provisions under challenge do not comply with the precautionary principle. The affidavits in support of his position set out concerns about the adverse health effects of wind turbines and the uncertainty surrounding this issue. They are meant to show the government’s lack of compliance with the precautionary principle, as established in the SEV and in international law and the common law.

A recent interlocutory decision (i.e. a decision made during the course of the proceedings rather than a final decision at the end of the proceedings) concerning the admissibility of expert evidence to be submitted by the applicant is available at : Hanna v. Attorney-General for Ontario.

Quebec poultry producer's appeal of quota penalties goes to Court of Appeal

Ferme Avicole Rodier Bombardier Inc. and Rock Bombardier are taking their appeal of quota penalties imposed by the "Éleveurs de volailles du Québec" (the poultry marketing board in Quebec) to the Quebec Court of Appeal.  Bombardier was charged penalties for having exceeded chicken quota production levels by producing chickens for export from Quebec without a purchase contract in place.  In other words, with no contract in place, all of the production was counted against the quota and resulted in over-production in the eyes of the marketing board.

Bombardier contested the allegations on the basis that there was an export contract in place with a company called Volaille Giannone Inc.  Before the marketing tribunal in Quebec, Bombardier sought to have Giannone added to the case (interpleaded) to exercise a "recourse in warranty" against Giannone.  The Tribunal rejected this request and rejected a request by Bombardier to have the penalties dismissed on the basis that they were imposed outside of the applicable limitation period.  Bombardier argued that the penalty imposed falls under the authority of the Penal Code of Procedure in Quebec (rather than the Civil Code of Procedure) so that the limitation period is one year.

Bombardier then asked the Quebec Superior Court to undertake a judicial review of the Tribunal decision and overturn it.  The Superior Court rejected this application.  Bombardier then went and obtained leave to appeal that decision from the Court of Appeal.  Bombardier's appeal was being heard June 9, 2010 before the Quebec Court of Appeal (coincidentally, the day before Guy Lafleur's appeal on a charge of perjury was to be heard in the same courtroom).

Read the Tribunal decision rejecting the request to add Giannone as a party at: Ferme avicole Rodier Bombardier inc. (French-language only).

Read the original Quebec Superior Court decision dismissing the application for judicial review at: Bombardier c. Régie des marchés agricoles et alimentaires du Québec (French-language only).