The lawn as a status symbol in the urban area enjoys a long history in western society. Its origins can be traced back several centuries to the United Kingdom where wealthy landowners were known to leave fields unworked allowing the growth of green grass to take over. Unworked fields of lush green grass gracefully bending in the breeze were symbols of wealth for all the neighbours to see[1]. Centuries later and a continent removed, property owners still stick to this notion of a lush, green lawn as a status symbol. In fact, a whole industry of toxic pesticides has grown to help the homeowner achieve the "perfect" lawn by killing off "injurious" weeds and insects.
However, there is growing evidence of the detrimental effects of pesticides on human health and the environment. Despite this growing evidence, the use of pesticides is steadily on the increase especially in urban areas where homeowners use lawn and garden pesticides for cosmetic purposes. In Canada, the average urban acre receives far more pesticide than the average agricultural acre[2].
Educating the public on the dangers of pesticides is essential in trying to reduce pesticide use. However, laws prohibiting their use for cosmetic purposes in the urban environment may prove to be a quicker and more effective method of protecting human health and the environment.
In this paper, I address the possibility of introducing municipal by-laws prohibiting the urban use of pesticides for cosmetic purposes in Ontario. Topics to be discussed include:
Pesticides are poisons that are designed to kill living matter whether it be unwanted plants, fungus, or insects. Mounting evidence is showing that humans and untargeted plants, insects and wildlife are not immune from adverse effects caused by these pesticides.
Acute harmful and fatal poisonings from pesticides are documented yearly throughout the world[3]. But, quite apart from acute poisonings caused by pesticides, studies are showing that human exposure to pesticides may have longer term carcinogenic, mutagenic and neurological effects.
Unintended human exposure to pesticides can take place, among other routes, through direct contact from drift spray, the entry of a pesticide into a house via pets and small children who have come in contact with sprayed lawns, and groundwater contamination.
Pesticide use has been associated with increased incidence of non-Hodgkins lymphoma in Saskatchewan farmers[4]. Long-term pesticide exposure has also been identified as a risk factor for breast cancer[5,6] and testicular cancer[7].
Due to their smaller body masses and developing systems, children may be particularly vulnerable to the adverse effects of pesticides. Although children's exposure occurs via the routes already identified, there are studies that show infants are also exposed through the ingestion of mother's milk. Breast milk samples analysed in a 1980's Quebec study showed that some samples contained pesticides such as DDT, lindane, and aldrin higher than levels permissible in cow's milk[8]. Studies have made links between exposure of pesticides in children and subtle neuro-behavioural impairments[9]. Another study has shown that children whose parents use garden pesticides have seven times higher the risk of developing childhood leukemia[10].
Wildlife are particularly vulnerable to the effects of pesticides since it is their habitat that is the target of pesticide use. Pesticides accumulate in the environment and poison the food chain where they kill fish, birds and other beneficial insects[11]. Bird deaths associated with the pesticide diazinon have been regularly documented in the United States[12]. The decline of butterfly and honey bee populations has also been associated with pesticide use[13].
The evidence is mounting about the dangers of pesticide use but there remain huge gaps in our knowledge of these potential dangers. Long term studies of the bioaccumulative effects of pesticide exposure have not been done. Synergistic effects (adverse effects of one chemical combining with other chemicals in the environment) of pesticides are unknown. Controlled studies on humans are inherently difficult since, as one researcher put it, "You can't test pesticides on humans because they tend to kill us"[14]. Control groups for comparative purposes are impossible to find because nowhere in the world is there an uncontaminated population. Yet despite the limited knowledge available, and the existence of studies that show harm, pesticide use increases every year as does the number of federally approved pesticides available on the market.
In the absence of essential information on poisons that are being poured into our environment for cosmetic purposes, a risk is being taken with the health of people and the environment for the benefit of having a pretty lawn. Thus, a municipal by-law banning the use of pesticides for cosmetic purposes does not seem unreasonable when human and environmental health are weighed against the desire for pretty grass. There are established organic methods available as alternatives to the use of chemicals. In addition, a simple reshaping of the definition of what constitutes a pretty lawn, might be necessary if organic methods prove to be too labour intensive or expensive for some. Either way prudence would dictate that when there is doubt about whether a chemical may or may not cause harm, we should assume the worst and not take unnecessary risks until proven otherwise.
Pesticide regulation falls under both federal and provincial responsibility. The municipal role in pesticide regulation remains ambiguous. However, municipalities have the power to limit use of pesticides on their own property. The following discussion will examine the regulatory scheme of pesticides. Included will be a critique of the federal and provincial schemes which will show significant shortcomings in pesticide regulation. These shortcomings, I will argue, put human health and the environment at risk and thus, lend support to the argument that cosmetic pesticide use in urban areas must be severely curtailed through a municipal by-law.
Federal control over pesticides is exercised through the Pest Control Products Act (PCPA)[15]. Its purpose is to "regulate products used for the control of pests and the organic functions of plants and animals"[16]. The Minister of Health is responsible for its administration. Responsibility for the PCPA was formerly under Agriculture Canada. However, critics charged this presented a conflict of interest because Agriculture Canada's priorities were agricultural and as such human health effects were considered secondarily when products were approved for use.
For the purposes of the statute, pest is defined as "any injurious, noxious or troublesome insect, fungus, bacterial organism, virus, weed, rodent or other plant or animal pest, and includes any injurious noxious or troublesome organic function of a plant or animal"[17]. Control product is defined as "any product, device, organism, substance or thing that is manufactured represented, sold or used as a means for directly or indirectly controlling, preventing, destroying, mitigating, attracting or repelling any pest"[18].
The regulating body for pesticide control is the Pesticide Management Regulatory Agency (PMRA) which was established as part of Health Canada in 1995. The agency's mandate is to protect human health and the environment and to make available pest management tools[19].
The PCPA through the PMRA controls the manufacturing, importing and registering of pesticides. Section 5 of the PCPA states that all pesticides used in Canada must be registered by the PMRA. According to the PCPA regulations, the manufacturer must supply the agency with data which show that the product is safe and worthwhile when used according to the label's instructions. The studies must consider occupational safety and exposure, residues and toxicity. The regulations also state that the product must not lead to an unacceptable risk of harm to human health and the environment.
Agriculture Canada officials (when they were formerly responsible for the PCPA) have acknowledged that registration of a product does not guarantee that it is safe and that "it would interpret a claim of safety based on registration under the Act to be a violation of the regulations"[20]. This is significant since often industry's and the uninformed public's reply to increased restrictions of pesticide use is that if a given pesticide were not safe, then the government would not approve it. Unfortunately, flaws in the registration procedure would tend to dispute this claim.
There are many criticisms that can be made about the registration procedure which put into question the safety of an approved product. The first complaint is that many products were approved several decades ago when scientific methods and techniques were not as well honed as they are today. To use an American example, the regulatory agency responsible for pesticide registration in the United States has admitted that between 1945 and 1966, 66,000 pesticide products were approved. However, there was only one toxicologist responsible for reviewing all the applications in this time period. Breaking this figure down, this means that this one toxicologist approved approximately 14 products per day[21]. Recognizing the possible shortcomings of testing during this period, the Environmental Protection Agency has ordered the re-testing of all products registered during this period. This was to be finished in 1997 but now is expected to be finished in 2006 at the earliest due to poor testing methods and lack of resources[22].
Another complaint is that manufacturers are not required to test the long-term effects of their product nor is there any testing of synergistic effects. Admittedly, these would be difficult studies to conduct but nevertheless this does not diminish the importance of health risks posed by these effects.
The approval system itself is somewhat suspect as reported by the Citizens for Alternatives to Pesticides (CAP). In 1994, a new herbicide called Pursuit was registered by Agriculture Canada. The official decision stated: "The risk assessments carried out by Health Canada indicated that when Pursuit is used according to label directions, the margin of safety for occupational exposure is considered to be acceptable." Upon examining the review process, CAP found that a Pursuit exposure study had not been submitted. Rather the registrant had submitted an exposure study conducted with a chemically similar and already approved product to serve as a surrogate study. This was accepted by Health Canada despite the fact that the biological monitoring data (dermal deposition, respiratory exposure, and urinary metabolites) from the surrogate study could not be applied to Pursuit; in the words of Health Canada, "the metabolism of the two products [in the human body] is different"[23].
In the United States, there have been instances of companies submitting false data to support the supposed safety of their product when used according to the directions on the label[24]. These potentials for abuse are all the more worrisome since international harmonization has resulted in Canada and the United States establishing a joint review system for reduced-risk pesticide products. A system for the exchange of data reviews between the signatories of NAFTA has also been set up[25]. A real concern must be what will be the checks and balances in this new harmonized system that would catch submissions of false data.
Inert ingredients in pesticides pose yet another problem. A pesticide product is made up of its active ingredient and inerts. Inerts are supposedly inactive substances that serve as the carrying agents of the active ingredient to facilitate application. Manufacturers are not required to submit data on the safety of inerts[26]. They enjoy this protected status under the guise of protecting companies' trade secrets. However, the inerts may pose more of a risk to human health than the active ingredients yet the public is denied information on these potentially harmful ingredients[27].
In its favour, the PMRA has implemented several changes in pesticide management that were recommended after consultation with stakeholders. The first move was the creation of the agency under Health Canada thus removing the authority for pesticide management from Agriculture Canada. This, at least, gave the impression that health concerns were the primary consideration in registering a product rather than agricultural gains.
Other improvements include increased public consultation before major regulatory decisions are made. Information on which decisions are based will be publicly available.
The PMRA created an alternatives division to look at integrated pest management approaches that rely less on chemical-based products. This division is currently steering a committee called the National Strategy for Sustainable Pest Management in Urban Landscapes targetting specifically parks, golf courses, and landscape service providers.
However, despite these improvements, the current risk of unwanted exposure to harmful pesticides in the urban setting is not likely to change. The shortcomings pointed out in the federal approval system are also unlikely to be addressed in the near future. Introducing legislative change at the federal level to ban cosmetic pesticide use would be a daunting task due to the relative unwieldiness of a federal bureaucracy and the decreased inaccessibility of the public to the decision makers.
The federal government, therefore, appears to be an unlikely route through which to achieve the prohibition of unintended, harmful exposure to pesticides in the urban setting in the immediate future.
In Ontario, the Pesticides Act[28] falls under the control of the Ministry of Environment. The ministry, through the Act, exercises control over the sale, handling and use of pesticides. The Act also outlines conditions for granting permits to vendors and certificates to pesticide handlers specifying who can use pesticides and under what conditions. The Pesticides Act does not, however, state what its purpose is.
All pesticides that are bought, sold and used in the province are classified according to their potential to cause harm to human health and the environment. The classification system is based on a number of factors including the toxicity of the product, its persistence in the environment, and its intended use. A pesticide product may be placed in one of six schedules based on the evaluation of its active ingredient only. Inert ingredients, which were pointed out earlier to be equally potentially hazardous to human health and the environment, are not considered.
Schedules one to four classify pesticides in descending hazard from a serious potential health/environmental hazard to a minimal potential hazard. Schedule five concerns potentially seriously hazardous agricultural products and schedule six deals with products sold in large quantities[29].
The Ontario Pesticide Advisory Committee (OPAC), a legislative sub-committee established under the Pesticides Act, is responsible for assigning products to a particular schedule. The committee's responsibilities also include streamlining the licensing and permit system for pesticide application and public education on pesticide use. Its mandate includes an annual evaluation of the Pesticides Act and regulations. However, due to funding cutbacks, this has been an impossible task[30].
The licensing and permit system is the key provincial control mechanism of pesticide use. Licenses are issued to pesticide applicators and vendors according to the classification of the products and where they will be used. Members of the public do not require a license to apply pesticides approved for private use. Permits are required for certain land and water applications that are specified in s. 7 of the Act[31].
If an applicator does not comply with the terms and conditions of a license or permit as outlined in s. 11 of the Act, the minister can refuse, revoke, suspend or cancel the license. Control orders, stop orders and penal consequences are also available to the ministry as enforcement techniques. Grounds for invoking such measures include: breach of terms of a license, incompetency of a licensee, evidence of gross negligence, and danger to human health or the environment. The use of quasi-criminal measures are reserved for such violations as the use of products not registered under the Pest Control Products Act and improper labelling of products[32].
At present, only one out of three employees of a licensed company need be certified to apply the most toxic products--and this after only a one-day safety course. OPAC proposed to change this one-day safety course to a six month course, however, strong lobbying efforts by the chemical lawn care industry may thwart this proposal.
OPAC also attempted to introduce a re-certification program that would require licensed pesticide applicators to update regularly on safety issues. This proposal was defeated by the lobbying efforts of the chemical lawn products industry[33]. Pesticide applicators likely have a high risk of developing health problems from pesticide exposure and thus would directly benefit from increased safety knowledge in pesticide handling and application. However, the public at large is also at a high risk from poor application methods (ex. exposure to pesticide drift on windy days). A complete ban on cosmetic pesticide use aside, improved knowledge in application safety could only benefit applicators and the public. Thus, it is difficult to understand the defeat of proposed improvements for increasing the safety and knowledge of pesticide applicators.
Any administrative decision made regarding a licence or permit can be appealed to the Environmental Appeal Board by the applicant/holder. As John Swaigen points out in his book, Environment on Trial: "Members of the public who may be adversely affected by the pesticide spraying have no similar right to appeal the issuance of a license or permit . . ."[34] Swaigen does point out that the board has the power to grant standing to others interested in participating in the proceedings but usually only the applicant and the government are involved.
The only protection the public has against unwanted pesticide exposure of legally approved pesticides under the Pesticide Act is found in the Land Extermination Notification regulations[35]. These regulations outline the notice that must be given either before or after pesticide application. In residential areas, commercial pesticide users are required to post warnings immediately before spraying and leave the warnings in place for at least twenty-four hours. In some areas that are frequented by the public more notice may be required.
Notification immediately before spraying is totally inadequate for those people who wish to limit their exposure to pesticides. Without adequate notice, people may not be able to take measures to prevent exposure such as closing windows to limit drift into their houses, changing plans of working outside that day, or preventing their pets or children from coming into direct contact with the neighbour's freshly sprayed lawn. Chemically or environmentally sensitive people are particularly vulnerable[36] since acute exposure can pose a significant, immediate health risk yet there are no adequate regulatory measures to protect them. It is unfortunate that the regulations instead allow toxic chemical use to enhance the aesthetics of a lawn at the expense of the health of vulnerable members of the public.
In the foregoing examination of both the federal and provincial governments' roles, I have demonstrated significant shortcomings in pesticide regulation. These shortcomings allow for unwanted exposure to chemicals whose true hazards to human health and the environment remain to be seen. There is a growing awareness of these possible risks and concomitantly a growing movement of citizens' groups[37] and individuals against the use of pesticides for cosmetic purposes in urban areas. A near-complete ban of cosmetic pesticide use is seen as the best way to limit this. These interested citizens have decided to target the municipal government as the appropriate level at which to obtain legislation prohibiting cosmetic pesticide use in urban areas.
There are a number of reasons why municipalities are being targetted as the conduit of change even though a federal or provincial law banning cosmetic pesticide use would be all-encompassing and farther reaching. First, legislative change is bound to be easier at the municipal level where politicians are more accessible and their exercise of power more discrete. Local pressure from community groups who have direct contact with their representative (and probably neighbour) is likely to be more effective than trying to exert pressure on provincial and federal politicians whose interests are broader. Second, powerful lobbying efforts of industry representatives who would be against a restrictive ban are likely to be more organized at the provincial and federal levels without the equivalent counteracting representation of community groups. Community groups just do not have the financial resources to compete with industry lobby groups, nor do they have as ready access to ministry officials[38]. Third, community groups have already tried to instigate change at these higher levels and have been met with roadblocks[39].
John Swaigen, in his chapter on pesticides in Environment on Trial, essentially dismisses the possibility of municipalities controlling the use of pesticides on private property. Although he states there exists the possibility of local governments limiting the use of pesticides through enacting by-laws that relate to the use of pesticides (ex. controlling nuisances, waste disposal), he does not think that a restrictive by-law would withstand a court challenge. He states that municipal powers have been limited in recent years by the courts when by-laws appear to conflict with federal or provincial legislation.
In the following section I will address two questions regarding the implementation of a municipal pesticide by-law: first, are municipal councils empowered to enact a pesticide by-law; and secondly, assuming they are empowered, would the law invade a field otherwise occupied by a higher level of government or conflict with superior legislation.
In the following discussion, I shall explore the different provincial enabling legislations which would enable a municipality to enact a pesticide by-law. As MacDonald J. in Propane Gas Assn. v. North Vancouver[41] stated, the manner in which by-laws are characterized will determine the outcome as to whether they will stand.
I start by looking generally at the scope of powers of a municipality. I then attempt to characterize the pesticide by-law under:
Municipal governments are created by provincial enabling legislation by virtue of s. 92(8) of the Constitution Act, 1867[45] which states that the provinces have the powers to create municipal institutions. In Shell Canada Products v. Vancouver, Sopinka J. for the majority quoted S. M. Makuch's[47] definition of the scope of municipal powers:
". . .[municipalities] may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation."
Sopinka J. went on to say that the purposes of the corporation are "determined by reference to not only those that are expressly stated but those that are compatible with the purpose and objects of the enabling statute".
Rogers, in his book The Law of Canadian Municipal Corporations[48], states that a municipality functions primarily to enhance the welfare and safety of its own citizens and unless competent enabling legislation of the province authorizes an action then it is ultra vires.
Thus the municipal government power to exercise control over pesticide use must be derived from a provincial enabling legislation. The power to make the by-law must be expressly or fairly implied in the enabling statute and cannot usurp the authority of the enabling legislation. With this in mind, I will characterize a pesticide by-law under various provincial acts.
Section 102 of the Municipal Act is a "general welfare"-type provision found in most municipal acts across the country. It 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 as may be deemed expedient and are not contrary to law.
Such a provision allows a municipality certain powers to enact by-laws for the welfare of its citizens without having specific enabling legislation. Rogers, in the Law of Canadian Municipal Corporations, states:
Undoubtedly, the inclusion of "general welfare" provisions was intended to circumvent, to some extent, the effect of the doctrine of ultra vires which puts the municipalities in the position of having to point to an express grant of authority to justify each corporate act . . .The provision at hand should be construed with reference to the object of the municipality: to render services to a group of persons in a locality with a view to advancing their health, welfare, safety and good government.
McLachlin J., (dissenting in a split court of nine), in Shell Canada Products v. Vancouver examined these "general welfare" provisions. In this case, the City of Vancouver enacted by-laws prohibiting the city from doing business with Shell Oil until it had divested from South Africa under its apartheid regime. She described such general welfare provisions in the following way:
. . . provisions in municipal acts for the "good government" or general welfare of the citizens, far from being mere surplusage as my colleagues suggest, found their origin in the desire of legislatures to prevent the decisions of municipal councillors being struck down by the courts.
McLachlin J. went on to say that clauses such as these are included in the legislation to permit municipalities to decide what is in the best interests of their citizens. The majority of the court, however, found the restrictive by-laws to be discriminatory and ultra vires because they dealt with an issue beyond the territorial boundaries of the city. The majority did not specifically address the powers bestowed under the general welfare provision.
In Re Weir et al and the Queen[50], the court looked at the powers that s. 102 bestowed on a municipality. In this case, the City of Toronto had passed by-laws that prohibited smoking in retail stores. An application for judicial review of the by-laws was made on the grounds that they were ultra vires, uncertain, and an improper delegation of authority. Although they were held to be invalid for grounds of uncertainty and improper delegation of authority (enforcement was to be carried out by retail shop workers), the court said, with some caution, that the municipality had the power under s. 102 to implement such by-laws:
Section 242 [now s. 102] has been given a very narrow and restrictive interpretation by the Courts. Unless the section is approached with caution a municipality could be deemed to be empowered to legislate in a most sweeping way. However, once the preamble to the by-law is accepted as factually correct, then it would seem that the municipality is empowered to pass a by-law such as this to regulate smoking. If the by-law does not meet with approval of the majority of the voters of the municipality, then undoubtedly the next ensuing election will ensure the presence of councillors who will see to its repeal.
The court continued recognizing that circumstances of a purely local nature may exist that would necessitate the enactment of a by-law that would diminish a health hazard, "the result of an ever-widening knowledge in the field of preventative medicine."
In a Quebec lower court decision, Canada Limitee v. Hudson[51], a by-law prohibiting the use of pesticides for cosmetic use in the city of Hudson was challenged by two chemical lawn care companies. The city claimed it was authorized to enact the by-law under the general welfare provision of the Quebec Cities and Towns Act[52]. The court held that the municipality did not act beyond its powers under the Cities and Towns Act and acknowledged that:
The town council is recognizing a current apprehension in the citizens in respect of health and the environment. Twenty years ago, there was very little concern over the effect of chemicals such as pesticides on the population. Today, we are more conscious of what type of an environment we wish to live in, and what quality of life we wish to expose our children [sic].
Section 102 of the Municipality Act should allow a municipality to enact by-laws for the welfare of its citizens without specific enabling legislation. Since the section could potentially empower a municipality with sweeping powers, courts have given a narrow interpretation of the provision. However, it appears that with a factually correct preamble supported by evidence, s. 102 can empower a municipality to enact by-laws to diminish a health hazard.
Thus it seems that the municipality does have the power to enact a pesticide by-law if it is created to "render services to a group of persons in a locality with a view to advancing their health, welfare, [and] safety"[53]. Section 102 indicates that a specific grant of authority is not necessary. A pesticide by-law will likely be upheld if there is a factually correct preamble, supported by scientific evidence, explaining the need for such a by-law. If the case can be made that the widespread use of pesticides in the urban area constitutes a health hazard, and that banning the use of pesticides would be an important aspect of preventative medicine, then it would likely stand. Evidence would likely be required to support such a claim which might prove to be somewhat difficult due to the difficulties identified earlier in conducting studies on the health hazards (especially long-term effects) of pesticides. It is also interesting to note that at least one court has recognized that it is up to the electorate to decide if a by-law will stand or not by using its voting power. Although the Hudson, Quebec decision above is interesting in the court's recognition of the changing public awareness of the dangers of introducing chemicals into the environment, this decision would not be anything more than persuasive in an Ontario court.
Municipalities have long had the power to enact by-laws under the public nuisances provisions of the Municipal Act. The appropriate provisions under s. 210 paras. 134 and 140 state that by-laws may be enacted ...
134. For regulating manufactures and trades that in the opinion of the council may prove to be or may cause nuisances of any kind, and, without restricting the generality of the foregoing, for prohibiting or regulating the erection or continuance of gas works, tanneries or distilleries or other manufactories or trades that, in the opinion of the council, may prove to be or may cause nuisances.
140. For prohibiting and abating public nuisances.
According to Rogers[54], a public nuisance is an "interference with the rights enjoyed by all members of the community of an injury to the right or property of all persons who come within the sphere of its operation." A suit can only be brought forward by the Attorney-General therefore an individual has no right to sue independently unless the person affected can show damages above and beyond that suffered by the general public. The injury suffered must be direct and substantial.
There is little caselaw regarding municipal by-laws and public nuisances in Ontario simply because there have been few court challenges of public nuisance by-laws.
In Re Weir and The Queen, the City of Toronto attempted to characterize smoking in retail stores as a public nuisance. The court was generous in its interpretation of what constitutes a public nuisance and took notice of the fact that the definition of a public nuisance may change with time as our knowledge increases:
. . . a municipality cannot constitute an act a public nuisance by the simple expedient of designating it as such; the act sought to be prohibited must in itself constitute a public nuisance. The concept of what may constitute a public nuisance is bound to vary with the times and the scope of our knowledge. In the recent past, society has become aware of the pollution of the atmosphere and the effect of that pollution upon the health and well-being of mankind. If the first paragraph of the preamble is accepted as factually correct, it is wide enough to constitute the act sought to be prohibited a public nuisance.
The court held that the City of Toronto was empowered to enact the no-smoking by-law under the public nuisance provisions of the Municipal Act.
In Toronto v. Toronto Transit Commission[55], the City of Toronto tried to characterize its by-laws restricting the use of diesel buses on certain routes in the city as an attempt to control the public nuisance of noise emitted from the buses. The court relied on Weir's definition of a public nuisance being more than that designated as such by the city. The court refused to accept the city's definition and found that the by-law was an attempt to coerce the Transit Commission into reinstating its trolley cars that had been removed from service as a result of city funding cutbacks. It could not be characterized as a public nuisance as long as its effect was to control the TTC--an action which was beyond its powers.
Thus a public nuisance is an interference with the rights enjoyed by all members of the community where direct and substantial injury has been proven. The courts have recognized that the definition of a public nuisance will likely change with time and our knowledge of the injurious effects of certain nuisances. It is likely that if a preamble to a by-law includes factually correct information regarding the injurious effects of the nuisance, then the by-law will be upheld as within the powers of the municipality. The by-law cannot purport to regulate a hazardous effect as a means of regulating something else.
In order to classify pesticide use as a public nuisance, it must be proven that pesticides have substantially and directly interfered with the rights of all the members of a community. This will likely require scientific evidence outlining the injury that pesticides cause to human health and the environment. If factually correct information regarding these injurious effects is included in the preamble to the by-law then it will more likely be upheld. If the effects of the by-law can be construed as attempts to regulate the chemical lawn industry then it is likely that the by-law would not be upheld. A preamble that emphasizes the effects of pesticides on human health and the environment would likely diminish the chance that the by-law could be interpreted as anything other than the regulation of a public nuisance. Problems regarding the availability of sound scientific evidence supporting claims of damage to human health and the environment have been identified earlier; this lack of information will likely present barriers to making the case for injurious effects caused by pesticides.
One of the purposes of the Health Promotion and Protection Act outlined in s. 2 of the Act is the promotion and protection of the health of the people of Ontario. One way in which this aim can be achieved is through the powers designated to a municipal officer of health as outlined in s. 13 of the Act. Section 13 states that a medical officer of health or a public health inspector may make an order where he or she is of the opinion, upon reasonable and probable grounds, that a health hazard exists in the particular health unit. An order can be directed to a person or persons. The order will indicate how the hazard will be dealt with which may include a complete prohibition of the action or thing. There is no provision allowing the creation of a by-law. However, according to Rogers[56], this provision essentially gives the power to public health officers to prevent and abate public nuisances. There appears to be no caselaw that addressed this issue in particular.
It appears that if a case can be made, on reasonable and probable grounds, that pesticides constitute a health hazard, then the public health officer would have the power to issue an order to prevent pesticide use. What would be the effect of such an order? Would it constitute a ban on pesticide use for cosmetic purposes?
Section 13(5) (a,b) state that an order may be directed to a person in charge of the thing causing the health hazard, while s. 13(5)(c) is directed to a person who is engaged in or administers an enterprise or activity. Section 13(8) states that a person or persons to whom the order is directed does not have to be named.
An argument could be made that a system of controls could be enacted to prevent pesticide use by individuals and those who engage in or administer the business of chemical-based lawn care/garden companies. Although this may exist as a possible avenue for controlling pesticide use, it may not be the best choice. Orders would likely have to be passed out to individuals and companies on a piecemeal basis and may not result in uniform application of a ban. Difficulty may also arise since an order will have bypassed the democratic system and stakeholders will not have been consulted thus compliance would likely be low.
One of the purposes of the Planning Act is to promote sustainable economic development in a healthy natural environment within the policy and by the means provided by the Act. Section 34 (1).1 enables municipalities to enact zoning by-laws prohibiting the use of land for any purpose as may be set out in a municipal by-law.
In Re Martin Feed Mills and Woolwich[57], the town of Woolwich enacted a by-law prohibiting any manufacturing or processing which is obnoxious or offensive by reason of presence or emission of odour, fumes and noise. The applicant operated a pet food processing plant for which it had the appropriate approvals under the Ontario Environmental Protection Act[58]. His plant, however, was found to be in contravention of the Woolwich by-law. In the application for judicial review, the applicant claimed the by-law was ultra vires because of improper delegation of authority, failing to comply with the Planning Act and conflicting with the Environmental Protection Act and the Public Health Act[59]. Van Camp J. held that the by-law was valid on all grounds put forth. Specifically with regard to s. 34(1) of the Planning Act, she stated that the municipality: ". . .is given the authority to prohibit the use of lands for any purpose so defined or to prohibit the use of lands generally, except for such purposes as are expressly authorized."
In Propane Gas Assn. v. North Vancouver, a similar decision was made. North Vancouver had enacted two by-laws that had the effect of prohibiting the bulk storage and sale of propane at service stations in the city. The by-laws were made in response to a disastrous fire at a service station that sold propane. The Propane Gas Association brought a claim saying the by-laws were illegal because they conflicted with the Gas Safety Act[60]. MacDonald J., however, accepted the city's argument that the by-law was a zoning by-law regulating land use and not a by-law dealing with propane storage which would be covered by the Gas Safety Act. In British Columbia, the municipality has the power to prohibit any particular use in any or all parts of the municipality under the Municipal Act[61]. MacDonald J. further addressed the characterization of by-laws by acknowledging that the manner in which the by-laws were characterized (ex. regulating the safe use of propane as opposed to the use of land) would determine the outcome of the decision.
Thus it appears that under s. 34(1) of the Planning Act, a municipality has the power to enact zoning by-laws that prohibit use of the land for such purposes as decided by the municipality. The courts appear to have given a fairly broad interpretation of land use for the purposes of a zoning by-law allowing by-laws to stand that have the effect of banning noxious fumes from industry and banning bulk storage of propane.
It appears possible to enact a zoning by-law banning pesticide use in a municipality under s. 34(1) of the Planning Act. A strong argument could be made that a pesticide by-law fits the purpose of the Act which is to promote sustainable economic development in a healthy natural environment. Banning pesticide use would encourage the use of organic methods which are more labour intensive and would require the hiring of more employees in a given area. A pesticide ban would also contribute greatly to a healthy natural environment.
A zoning by-law prohibiting the use of pesticides may be characterized as regulating land use in the municipality. The by-law would indicate that the use of land for pesticide application is prohibited.
It seems that a municipality may be able to enact a pesticide by-law under various provincial enabling statutes. The general health and welfare provision of the Municipal Act would allow the creation of a pesticide by-law without any specific grant of authority being necessary. The public nuisance provisions of the Municipal Act may also provide the powers to the municipality to enact a pesticide by-law. The Planning Act may enable the municipality to enact zoning by-laws that would prohibit the use of pesticides on land within the municipality. The Health Promotion and Protection Act appears to be less useful in that it does not allow for the creation of by-laws but may allow a public health officer to issue orders preventing the use of pesticides in certain instances or areas.
Whether or not a municipality has the power to enact a pesticide by-law is only part of the battle of introducing a municipal by-law. Two more questions must be addressed: a) does it attempt to occupy the realm of an area otherwise occupied by provincial legislation; b) will it conflict with provincial legislation thus be rendered inoperative.
In St. Leonard v. Fournier[62], the court held that by-laws are inferior to laws and cannot usurp authority or be contrary to the higher law nor can they be at variance with provincial legislation. A by-law cannot supersede a provincial act to the extent that the legislature has acted. It could be argued that the provincial Pesticides Act occupies the realm of pesticide use in Ontario and thus any municipal by-law dealing with pesticide use would be an attempt to usurp the authority of the province. A ban on pesticide use could be seen as conflicting with the Act which allows the use of these same pesticides.
In general, the Pesticides Act and the regulations thereunder, deal with the sale, purchase, storage and use of registered pesticides[63]. Section 4 of the Pesticides Act is a prohibitory provision that states that no person will discharge a pesticide into the environment if it causes or is likely to cause more damage to human health or the environment than would necessarily result from the proper use of the pesticide. Section 28 outlines control orders that can be directed to the person responsible for the discharge of a pesticide that causes or is likely to cause harm to human health or the environment. Both these provisions could be interpreted as covering the prohibitory use of pesticides and thus occupying the realm in which the municipal by-law is attempting to regulate. Section 53 of the Act states where a conflict appears between the Pesticides Act and any other Act in a matter related to pesticides and the control of pests, the Pesticides Act shall prevail.
The schedule system set out in the regulations under the Pesticide Act outlines the use of registered pesticides. When applied according to the regulations, the use of registered pesticides is legal. A municipal by-law banning the use of those same pesticides could be seen as conflicting with the Pesticides Act which would render the by-law inoperative. In the following section I will examine caselaw that looks at these two issues of by-laws usurping provincial authority and conflicting with provincial legislation.
In Re A.G. for Ontario and City of Mississauga[64], a Court of Appeal decision, Mississauga enacted by-laws prohibiting the burning of fuel containing PCB's. However, a cement manufacturer received a certificate of approval under the terms and conditions of the Environmental Protection Act to do a test burn of PCB's[65]. The Environmental Protection Act contained a specific provision stating that in the event of a conflict, the Act would prevail. The manufacturer applied to have the by-laws quashed but the laws were found to be valid at the divisional court. On appeal, Weatherston J. held that the by-laws were invalid. Regarding provincial authority, he stated:
. . .where the Provincial Legislature has itself undertaken to deal with a certain subject matter in the interest of the inhabitants of the Province all legislation by the municipality must be subject to the provincial enactment.
Morden J., in a concurring judgement, set out a test for conflict between competing pieces of legislation and a by-law enacted under a provincial statute:
[I]f the competing pieces of legislation are intended to advance the same policy and the provision in the statute covers the same ground as the by-law in a way to give rise to the interpretation that the statutory provision is intended " . . . completely, exhaustively, or exclusively [to express] what [shall be] the law governing the particular conduct . . .to which its attention is directed . . ", then there is a case of conflict. . . . If in covering the same ground the subordinate legislation works at cross purposes to the provincial statute, then the case for conflict is reinforced.
However, he allowed room for a by-law that would enhance the standards of a statute:
Where the municipality, acting within its powers, passes more stringent, enhancing, legislation than the provisions of a statute, it cannot be said that the two pieces of legislation cover the same ground. There is room for the municipal law to operate.
Morden J. found that the by-law and the provision in the Environmental Protection Act (when a certificate of approval was denied [i.e. both were prohibitory of PCB burning]), were virtually identical. Thus the by-law met the test of repugnancy.
In the Ontario Court of Appeal decision, Superior Propane Inc. v. York (City)[66], the city of York enacted zoning by-laws that regulated propane storage and dispensing facilities. The provincial Energy Act[67] also had a comprehensive scheme to regulate propane storage and handling. It also contained a provision which implied that the Act would prevail in the event of a conflict. Superior Propane applied for a declaration that the by-laws were ultra vires on the grounds that they conflicted with the Energy Act. In the lower court, the by-laws were held to be valid because they enhanced the statutory standard. However, on appeal, the majority of the court disagreed finding that the provincial law and the by-law were at cross-purposes because the provincial law negated the operating effect of the by-law.
In Toronto v. Toronto Transit Commission, the issue of conflict arose between a by-law regulating diesel emissions from buses and both the Environmental Protection and Highway Traffic Acts[68]. It was found, among other grounds, that the by-law was inoperative because it covered the same ground as the provincial legislation.
In reviewing zoning by-laws prohibiting obnoxious emissions in the town of Woolwich in Re Martin Feed Mills and Township of Woolwich, the court held that the by-laws were not in conflict with the Environmental Protection Act. The by-laws were validly enacted under the authority of the Planning Act; neither provincial statute could prevail over the other. The court distinguished Mississauga stating:
Unlike the facts in Re A.-G. Ont and Mississauga, the subject matter, policies and spheres of operation of the two pieces of legislation in the present case are different. The former [Planning Act] regulates land use; the latter [Environmental Protection Act] regulates assaults on the environment . . . Each statute and the by-laws thereunder can operate effectively within their allotted spheres and according to their particular objectives.
In Uxbridge v. Timbers Brothers Sand & Gravel[69], the town of Uxbridge enacted by-laws regulating the distances between streets and the boundaries of pits and quarries. Those by-laws that stipulated a shorter road allowance than the distance set out in the Pits and Quarries Control Act[70] were found to be invalid. However, the by-laws that demanded a larger road allowance than that required by the Act were held to be valid because they enhanced the statutory standard.
Thus, in summary, it appears that a by-law cannot occupy a field already occupied by the province. If two pieces of legislation advance the same policy and the provision in the statute covers the same ground as the by-law, then the by-law will likely be invalid. If there is a provision in the provincial legislation that says it will prevail in the case of a conflict, then the case for conflict is reinforced. However, if the by-law is validly enacted under an appropriate enabling legislation which appears to conflict with another provincial legislation, the by-law may stand if neither provincial legislation can prevail over the other. If one of the statutes is more specific then it will prevail over the more general one. If a by-law enhances a standard that is covered by a statute, then an argument could be made that the by-law does not conflict with a provision covering the same ground.
Therefore, if a pesticide by-law is enacted, it would have to: 1) be characterized as such that it would not occupy the field of pesticide use which would fall under the Pesticides Act; and 2) not conflict with the Pesticides Act which would prevail in the case of conflict due to section 53.
The policy of the Municipal Act is the advancement and protection of the general health and welfare of the municipality's citizens. The Pesticides Act, however, exists to control pesticide use. Therefore, it could be said that the two Acts do not occupy the same policy area. However, a pesticide by-law could be said to conflict with the regulations under the Act because the by-law would be banning the use of pesticides that are scheduled for use by licensed applicators and the public. The by-law could also conflict with the federal PCPA since the by-law would be banning the use of federally approved products. However, in both these cases of conflict, an argument could be made that the by-law enhances standards of pesticide use. Since the Pesticides Act is more specific than the Municipal Act, then the Pesticides Act would likely prevail.
The underlying policy of the Planning Act is the promotion of sustainable development in a healthy environment. A pesticide by-law enacted under this Act may better withstand a challenge because: 1) its policy differs substantially from that of the Pesticides Act, and 2) neither Act is more specific than the other therefore neither would prevail over the other. This latter argument, however, could be problematic since s. 53 of the Pesticides Act states the Pesticides Act would prevail in the case of conflict. The argument could be made, however, that restricting the use of pesticides is enhancing the standards of pesticide use. This could be used to boost the argument against conflict with superior legislation.
Section 7 of the Charter[71] states:
Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Although it might be a stretch, a Charter challenge to the sort of pesticide by-law proposed here, may be conceivable. According to Hogg[72], in Singh v. Minr. of Emplmt. and Imm. and Irwin Toy, it was suggested that security of the person might include the economic capacity to satisfy basic human needs. Hogg quotes a Charter expert[73] saying that government action that results in depriving a person of his or capacity to produce an income could be seen as invading the security of the person. However, Hogg concludes that there is no "clear mandate to enter that arena."
Exploring this issue in depth is beyond the scope of this paper. It is noted, however, that a chemical lawn-care company or its employees could conceivably launch a Charter challenge. The challenge could state that a pesticide by-law deprives them of their right to earn a living as licensed pesticide applicators.
The North American Free Trade Agreement (NAFTA) as well as other multi-lateral trade and investment agreements may also provide barriers to the enactment of a municipal pesticide by-law. These issues, however, will not be addressed here.
Cosmetic pesticide use in the urban environment is increasing. At the same time there is increasing research linking pesticide use to detrimental health and environmental effects.
Although pesticide use is highly regulated in Canada, there are significant shortcomings in the pesticide regulatory scheme. As such, unwanted exposure to dangerous chemicals happens on a regular basis in the urban environment--all in the name of aesthetics. Reducing or eliminating this unwanted exposure would best be addressed through a federal or provincial ban on the urban use of pesticides for cosmetic purposes. However, recognizing the difficulties in achieving legislative change, a more immediate route may be the implementation of municipal by-laws banning the use of pesticides for cosmetic purposes.
The possibility may exist through the use of the provincial Planning Act to enact zoning by-laws banning the use of pesticides on land within the municipality. The by-law, however, would likely be challenged on grounds of being ultra vires or conflicting with superior legislation. A zoning by-law might be able to withstand this challenge. Other possibilities also exist to enact a pesticide by-law but these would be less likely to withstand a court challenge.