Report to/Rapport au:

Health, Recreation and Social Services Committee/

Comité de la santé, des loisirs et des services sociaux

17 July 2001/le 17 juillet 2001

Submitted by/Soumis par:

J. Jerald Bellomo, City Solicitor/Directeur des services juridiques

Corporate Services Department/Services généraux

Contact/Personne ressource: Tim Marc, Manager, Planning & Development Law/

Gestionnaire, Droit de l’urbanisme et de l’aménagement

580-2424 ext. 21444 Timothy.Marc@city.ottawa.on.ca

Ref N°: ACS2001-CRS-LEG-0020

SUBJECT: PESTICIDES – 114957 CANADA LTÉE (SPRAYTECH, SOCIÉTÉ D’ARROSAGE) AND SERVICES DES ESPACES VERTS LTÉE/CHEMLAWN V. TOWN OF HUDSON

OBJET: PESTICIDES – 114957 CANADA LTÉE (SPRAYTECH, SOCIÉTÉ D’ARROSAGE) ET SERVICES DES ESPACES VERTS LTÉE/CHEMLAWN c. VILLE DE HUDSON

REPORT RECOMMENDATION

That the Health, Recreation and Social Services Committee receive this report for information.

RECOMMANDATION DU RAPPORT

Que le Comité de la santé, des loisirs et des services sociaux prenne connaissance du présent rapport à titre d’information.

BACKGROUND

On July 5, 2001, the following inquiry was filed at the HRSS Committee, “In light of the recent Supreme Court decision re: Hudson (Québec), that staff report to Committee and Council on the next steps that the City of Ottawa may take in regarding the regulation of the use of pesticides.” This report is a response to that inquiry.

On June 28, 2001, the Supreme Court of Canada issued a landmark decision in the area of municipal law in the case of Spraytech and Chemlawn v. Town of Hudson. The specific issue before the Court was whether a municipality can regulate the use of pesticides on private property.

OPINION

Based upon the decision of the Supreme Court of Canada in the Hudson case, it appears that there is jurisdiction for the City of Ottawa to control the use of pesticides on private property within the City. However, such control could not be an absolute prohibition and, further, any differences in the treatment of persons affected by such a by-law would have to be consistent with the principle of advancing the interests of the health of the citizens of Ottawa.

DISCUSSION

In 1991, the Town of Hudson had passed a by-law which prohibited the use of pesticides within the town other than for the following uses:

(a) in a public or private swimming pool;

(b) to purify water;

(c) inside of a building;

(d) to control or destroy animals which constitute a danger for human beings;

(e) to control or destroy plants which constitute a danger for human beings who are allergic to them;

(f) agricultural or horticultural uses provided that notice of schedule of application of the pesticides is given;

(g) for a golf course, until 1996; or

(h) a biological pesticide to control or destroy insects which constitute a danger or inconvenience for human beings.

Pesticide was defined as:

Any substance, matter or micro-organism intended to control, destroy, reduce, attract or repel, directly or indirectly, an organism which is noxious, harmful or annoying for a human being, fauna, vegetation, crops or other goods or intended to regulate the growth of vegetation, excluding medicine or vaccine.

The Court noted that the by-law was not a total prohibition on the use of pesticides, but “rather permits the use of pesticides in certain situations where the use of pesticides is not purely an aesthetic pursuit”. Spraytech and Chemlawn sought a declaration that the by-law was beyond the powers of the Town of Hudson. The lower Courts found in favour of the Town and the Supreme Court of Canada unanimously dismissed the appeal of Spraytech and Chemlawn.

The authority upon which the town relied for the enactment of the by-law was the Cities and Towns Act of Québec, subsection 410(1). This provision permitted a Council to enact by-laws:

(1) To secure peace, order, good government, health and general welfare in the territory of the municipality, provided such by-laws are not contrary to the laws of Canada, or of Quebec, nor inconsistent with any special provision of this Act or of the Charter;

The Court noted the similarity of this subsection to other provisions such as the Municipal Act of Ontario, section 102. Section 102 states:

Every Council may pass such by-laws and make such regulations for the health, safety, morality and welfare of the inhabitants of the municipality in matters not specifically provided for by this Act and for governing the conduct of its members as may be deemed expedient and are not contrary to law.

The Court noted that notwithstanding the generality of the wording in subsection 410(1), such provisions do not confer an unlimited power. There must be a connection to the municipality’s permissible objectives. The Court felt that the implicit purpose of the by-law was to “minimize the use of allegedly harmful pesticides in order to promote the health of its inhabitants” and that such a use fell within the health component of subsection 410(1). Significantly, it was not necessary for the Town of Hudson to establish that pesticides were in fact harmful to human health; it was sufficient that these were “allegedly” harmful and the by-law’s intent was to promote the health of the Town’s inhabitants.

The appellants argued that the by-law should be struck down as discriminatory. However the Court was of a view that the distinctions drawn in the by-law were necessary to the goal of improving the health of the Town’s inhabitants.

Finally, the appellants argued that the by-law was inconsistent with provincial and federal legislation. The Court found that no such inconsistency or actual conflict existed. A by-law would be found outside of municipal authority if it covers the same ground as federal or provincial legislation and if it was impossible to comply with both. So long as “dual compliance” with federal and provincial legislation is possible, the municipality had the authority to enact a by-law that impinged on federal or provincial authority. The Court also found that the by-law has established a tri-level regulatory regime governing pesticide usage.

ENVIRONMENTAL IMPLICATIONS

This report sets out some options available to the municipality. However, a staff report would be required prior to any further action being taken.

RURAL IMPLICATIONS

The concerns of farmers would have to be addressed in any policy restricting the use of pesticides within the municipal boundaries.

CONSULTATION

Not applicable.

FINANCIAL IMPLICATIONS

There are no immediate financial implications.

DISPOSITION

This report is for information only.