Neonic challenge returns to court in March

Wednesday, January 13, 2016

by SUSAN MANN

Grain Farmers of Ontario is heading into the Ontario Court of Appeal March 9 to challenge an October court decision dismissing its case on the province’s regulations governing the sales and use of neonicotinoid-treated seeds.

Grain Farmers chair Mark Brock said the organization would have preferred an earlier court date for the appeal. “Based on the ability to have it heard as soon as possible, that’s the closest date we could get that worked for both parties – the province and ourselves. I think we just have to work within the time that we’re given.

The fact that it’s happening in March is still nice to see,” he added.

The Ontario Court of Appeal in Toronto will also address Grain Farmers request for a stay of the regulations until May, or until the time the regulations’ requirements can be met, as well as the organization’s request for a court review of the regulations.

Grain Farmers government relations manager Debra Conlon said she doesn’t know if everything will be heard on March 9. “It’s all up to the courts. It could all happen on one day or it could happen on different court dates.”

Conlon said “there are three decisions to be made. One is the original decision of the lower courts – will it be overturned? The second step is the request for the stay” while the third is the court review of the regulation.

In an Oct. 23, 2015 written decision, Ontario Superior Court of Justice Judge S.A.Q. Akhtar declined to order a stay of the regulations introduced July 1, 2015 and dismissed Grain Farmers’ motion for the court to review the regulations.

Farmers’ claim of losses was speculative, and suspending the regulations for a year “has potential harmful effects to the pollinating species in the province,” Akhtar said in the written decision.

Grain Farmers wasn’t requesting “a determination of rights that depends on the interpretation of the regulation, but a re-writing of the regulation that would permit the effects of the regulation to be delayed to its advantage,” Akhtar said.

The court’s job isn’t to pronounce on the “efficacy or wisdom of government policy” when there isn’t a constitutional or jurisdictional challenge. “Nor is it within the power of this court to rewrite or “correct” legislation argued by a party to be faulty or ambiguous. Yet this is precisely what GFO asks in the context of this application,” Akhtar said.

Conlon said Grain Farmers doesn’t need to seek leave from the Court of Appeal to appeal the Oct. 23, 2015 decision. “This one we have the right to have it heard.”

Farmers must follow the regulations while the court proceedings are ongoing, she said. “The law is the law. We can’t do anything about that.”

Grain Farmers said it plans to provide updates on the ongoing court case.  BF