Court dismisses Grain Farmers' challenge of new Ontario neonic rules

Tuesday, April 19, 2016

by SUSAN MANN

Grain Farmers of Ontario is turning its attention to documenting the impact on farmers of Ontario’s rules restricting the sales and use of neonicotinoid-treated corn and soybean seeds now that the Ontario Appeal Court has dismissed its challenge of them.

In a unanimous decision released Wednesday, the Ontario Appeal Court upheld an earlier Superior Court of Ontario decision from October 2015 dismissing Grain Farmers of Ontario’s request for a temporary suspension of the regulations. They came into effect July 1, 2015 and are being phased in over two years. Grain Farmers also requested in Superior Court a court review of the regulations.

“The motion judge (Suhail A. Q. Akhtar) was correct to strike the application on the basis that it presented no genuine issue for determination,” the written Appeal Court decision says. The judges who heard the case were: B. W. Miller, John Laskin and E.A. Cronk.

Although Grain Farmers of Ontario’s policy dispute with Ontario is real and may have significant consequences for grain farmers, “the problem of legal interpretation alleged by (Grain Farmers of Ontario) is artificial — the dispute between the parties does not turn on the interpretation of the regulation,” the written decision says.

The Appeal Court judges agreed with Akhtar that the court doesn’t have the power to rewrite or correct legislation that a party argues is faulty. It also isn’t the court’s job to decide on the efficacy or wisdom of government policy when there isn’t a constitutional or jurisdictional challenge, which isn’t the case with Grain Farmers’ action.

In its April 20 press release, Grain Farmers says “the seed treatment regulation and the precedent it sets for regulating farm inputs has a significant and detrimental impact on agriculture in Ontario.”

Grain Farmers also notes the organization went to the highest court possible in Ontario and “the judgment recognizes that there is no legal remedy for regulatory decisions, such as this one, made by government.”

Grain Farmers says in its release it is immediately engaging BDO, one of Canada’s leading accounting and advisory firms, to do an audit of the impact of the regulations on Ontario’s grain farmers. Grain Farmers will regularly inform government of its findings throughout the study.

Over the next three years, BDO will investigate the socio-economic impact of the consequences of the regulations, farmers’ costs to meet the new requirements and the “cost to the future of food and fibre production in Canada.”

Chair Mark Brock couldn’t be reached for comment.

UPDATE: Thurs. April 21, 2016—Grain Farmers of Ontario chair Mark Brock says they’re disappointed with the appeal court’s decision. “We felt we had a good case.”

Brock says the silver lining in the decision, however, is the “court understood the predicament we’re in. But they just said there wasn’t a legal opportunity for us to push back against the regulation.”

The Grain Farmers board plans to discuss the appeal court decision and “if we’re done doing the legal stuff,” he notes.

About the economic impact study being done by BDO, Brock says “we’re going to step back and see what BDO comes out with.”

As for industry/government discussions on how to change the regulations, Brock says they interested in meaningful changes “and not just surface changes.” END OF UPDATE


Stephen Denys, director of business development for Maizex Seeds, says the Appeal Court’s decision is “unfortunate news.” However, “it didn’t come as a complete shock. We knew there was no foregone conclusion as to whether it (Grain Farmers of Ontario’s appeal of the earlier decision denying its challenge of the regulations) would succeed or fail.”

The decision does “conclude the legal chapter on this,” he adds. Now grower and industry representatives have an opportunity to talk to government about the regulations  “to make them a little bit more workable.”

Ontario Environment and Climate Change Ministry spokesman Gary S. Wheeler says by email “we are pleased with today’s decision and are acting to protect pollinator health.”

Wheeler adds the rules are being phased in to give farmers and seed vendors time to adapt.

The Ontario government’s new rules will reduce the acreage planted in Ontario with neonicotinoid-treated seeds by 80 per cent by 2017. Currently, almost all corn and 60 per cent of soybeans are planted using the treated seeds.

The Ontario government has argued that neonicotinoid pesticides are harmful to beneficial insects, such as bees. BF