Grain Farmers of Ontario Neonic Appeal Dismissed

The Court of Appeal for Ontario has dismissed the appeal by the Grain Farmers of Ontario ("GFO") related to its challenge of Ontario's neonicotinoid regulations.  As noted by the Court, GFO was concerned that the regulation was unworkable, would produce little benefit, and would significantly impair the ability of grain farmers to protect their crops from damaging insects.  However, the Court of Appeal has ruled that the regulation is not ambiguous and that GFO has not identified a genuine dispute about the rights and obligations of farmers - "to grant the remedy that GFO seeks would be tantamount to amending a regulation through interpretation, a remedy well outside the court's discretionary power to order declaratory relief."

The Court of Appeal found that the motion judge (who originally dismissed GFO's application) was correct to strike the application on the basis that it presented no genuine issue for determination. Even if, as GFO pleaded, the regulation creates financial hardship, is futile, and provides little environmental benefit, "neither the wisdom nor the efficacy of a regulation is a justiciable issue."  The remedies sought by GFO are "solely within the powers of the legislative and executive branches of government."

Thankfully for grain farmers, the Court did not order costs of the appeal against GFO. While GFO will likely be responsible for the costs of its own lawyers, it won't have to pay the costs of the government's lawyers.

Read the decision at: Grain Farmers of Ontario v. Ontario (Environment and Climate Change).

GFO Appeal on Neonicotinoid Decision to be heard in March

According to the Grain Farmers of Ontario ("GFO"), its appeal of the decision rejecting its challenge of Ontario's new neonicotinoid regulations will be heard by the Ontario Court of Appeal in Toronto on March 9, 2016.

I commented on this case back in November, 2015: 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.

I still think GFO has a very steep hill to climb in challenging what is a policy decision of the Ontario government.  Generally, the Courts will not interfere in policy decisions of the government unless those policies were made without authority or violate some overriding constitutional or other right.  Courts will interfere where government enacts a policy but fails to follow it.  That's not likely the case here.

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.

Grain Farmers of Ontario v. MOECC decision now available

Grain Farmers of Ontario ("GFO") has now posted a copy of the decision dismissing its challenge of Ontario's new neonicotinoid regulations at its website: 2015 ONSC 6581. GFO alleged that the regulations in their current form would cause irreparable harm to Ontario corn and grain farmers, and asked for a stay of the regulations until May, 2016 or "such time as the requirements of the Regulation can be met."  Justice S.A.Q. Akhtar of the Superior Court heard the case and declined to order a stay.  He also allowed the cross-motion by the Ontario Ministry of the Environment and Climate Change ("MOECC") ruled that GFO's application disclosed no reasonable cause of action. The application was dismissed on that basis.

On review of the GFO application, Justice Akhtar was "of the view that the application is concerned with the economic interests of the affected farmers rather than any property rights.  Prior to the Regulation, the farmers did not have an unrestricted right to use their lands as they wished but were subject to a highly regulated pesticide regime. ... If there is no constitutional challenge or allegation of ultra vires, then what is GFO's aim in making the application? ... 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.  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...".

Thankfully for GFO, the MOECC did not seek any costs of the court proceeding against GFO (though GFO will most likely have incurred its own legal costs in the matter).  According to its website, GFO is evaluating its options and says that it has not conceded on this matter.

Ontario Court has dismissed challenge to provincial neonicotinoid regulations

I'll post a link to the court decision as soon as I can find a copy.  In the meantime, here is a link to the cbc.ca story: Law to reduce use of bee-killing pesticides upheld in court.