An Ontario Superior Court has upheld provincial regulation to dramatically reduce the number of acres
planted with corn and soybean seeds coated with a
class of pesticides known as neonicotinoids or neonics, which are
toxic to bees and other essential pollinators.
The Regulation imposes new conditions for the sale and control
of neonic-treated seeds, to make sure they are used only where
there is a legitimate need for the pesticide.
In order to provide adequate time for compliance, the Regulation
created a "transition year". During the first year,
farmers wishing to use neonic-treated seeds on more than 50% of
their lands would be required to prepare a pest assessment report
("PAR"). That report would need to be provided to vendors
of neonic-treated seeds before any could be purchased. After this
"transition year", farmers would be required to prepare
PARs to use neonic-treated seeds on any of their lands.
Two types of assessment may be conducted in order to obtain a
PAR: soil pest assessment ("SPA") and crop pest
assessment ("CPA"). The results of either assessment may
provide proof that neonic-treated seeds are required on a
particular piece of land. During the transition year of August 2015
to August 2016, any farmer may perform the SPA. The following year,
a certificate demonstrating completion of training in the
assessment process will be required before a SPA can be conducted.
Post-2017, only a professional pest advisor will be permitted to
conduct the SPA in order to obtain a PAR.
CPAs may take place after 1 March 2016, and must be performed by
a professional pest advisor.
Eric Gillespie, on behalf of GFO, argued that this transition
rule places farmers in an impossible position. It says: since the
Regulation only came into force in July 2015, the current
year's crops were planted with neonicotinoid-treated seeds.
Those seeds prevented any pest damage. Thus, GFO argues, no pest
assessment report based on an SPA conducted in the fall will
disclose the amount of neonicotinoid-treated seeds that will really
be needed the following year. Since farmers must place their orders
for seed in the Autumn, they are placed at a huge financial
disadvantage if they will not know until next Spring how how much
neonicotinoid-treated seed they will be permitted to use.
The court ruled:
 In my view, GFO is not asking for a determination of rights
that depend on the interpretation of the Regulation but a
re-writing of that Regulation in a manner that would permit the
effects of the Regulation to be delayed to its advantage.
 It is not the job of this court to pronounce on the
efficacy or wisdom of government policy absent the aforementioned
constitutional or jurisdictional challenges, neither of which are
made here: ... 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 its application. Such a course of action would, in effect,
render the operative Regulation inoperative and would, in effect,
change the legislation. I agree with Ontario that it is neither
possible nor desirable that this court have the jurisdiction to
effectively grant a stay in the guise of a declaration of a
Regulation which is otherwise unchallenged....
The GFO application was dismissed, and the bee protection
regulations were upheld. This is a big win for Ontario's
Minister of the Environment and Climate Change, and for Ontario
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