July 2007 - Nr. 7
Ontario communities have the right to ban cosmetic pesticide use
Communities across Ontario are banning pesticides and other harmful chemicals used to keep lawns and gardens free of bugs and weeds. Out of 465 municipalities in Ontario, 22 have enacted pesticide by-laws preventing their use*. And for good reason: some pesticides can be highly poisonous, especially to children and pets.
Pesticide by-laws are a real watershed for the environmental powers of municipalities, as well as for communities that want to prevent the use of harmful chemicals in their neighbourhoods.
Until recent years, municipalities were the 'Cinderella' of government power, the weakest among governments. To make matters worse, courts used to be very hostile to the use of municipal powers, often striking down their attempts to make things better in their jurisdictions.
But in a stunning 2001 Supreme Court decision, Hudson v. Spraytech, the Court decided that municipalities do have broad environmental powers, saying municipalities should be respected and be able to use those powers. This was the first time the Supreme Court of Canada made this acknowledgement.
In addition to setting an important precedent, the Supreme Court specifically upheld a municipal by-law in Quebec banning the cosmetic use of pesticides, despite strong opposition from the pesticide and lawn care industries which argued that pesticides are already heavily regulated by the federal and provincial governments. Nevertheless, municipalities were given the right to add their own restrictions on top of those imposed by the federal and provincial governments, at least for uses that are relatively frivolous and unnecessary.
In 2005, this was tested in the City of Toronto v. Croplife case, by the Ontario Court of Appeal under Ontario's Municipal Act, 2001, since the earlier Supreme Court decision involved a Quebec case. Did the same rules applied in other provinces? Yes. This means no Ontario municipality has any excuse about jurisdiction: They all have the power to ban non essential pesticide uses.
With the Supreme Court and the Ontario Court of Appeal's decisions, citizens and communities have an opportunity to enact anti-pesticide by-laws.
Copies of the decisions Hudson v. Spraytech and City of Toronto v. Croplife can be found at http://www.envirolaw.com/html/resources.htm.
Dianne Saxe, one of Canada's leading environmental lawyers, is a Certified Specialist in Environmental Law, and holds one of Canada's only Doctorates of Jurisprudence (PhD) in environmental law.
* The following Ontario municipalities have pesticide by-laws: Toronto, Hamilton, Waterloo, London, Markham, Windsor, Oakville, Guelph, Peterborough, Newmarket, North Bay, Caledon, Georgina, Orangeville, Thorold, Cobourg, Perth, Gananoque, Deep River, Georgian Bay, Cobalt, and The Archipelago (Parry Sound)
