Summary of Intervenors Factum of Law to the Supreme Court of Canada – Hudson, Quebec Pesticide Bylaw

Title: Summary of Intervenors Factum of Law to the Supreme Court of Canada – Hudson, Quebec Pesticide Bylaw
Resource Type: Legal Submissions
Date authored: September 26, 2000
Author/s: Kathleen Cooper, Theresa McClenaghan
Author Organization: Canadian Environmental Law Association

The City of Hudson’s by-law (No. 270 Concerning Pesticides) determines where and in what circumstances pesticides may be used within the municipality. It does not prevent agricultural producers from applying agricultural or horticultural pesticides, subject to notification requirements. Otherwise, the by-law prohibits all pesticide use except: in swimming pools; inside buildings; in locations where there are plants or animals which pose a danger to humans; and subject to compliance with its provisions, on golf courses. Nor does the prohibition apply to pesticides used for water purification or as a wood preservative. The by-law also states that “it is permitted to use a biological pesticide to control or destroy insects which constitute a danger or an inconvenience for human beings.” The issues considered in the case include: 1 Did the City of Hudson have the authority under the Cities and Towns Act to pass by-law 270? What is the scope of the municipality’s power to pass a by-law such as by-law 270? 2. Was the City of Hudson’s authority to pass by-law 270 limited or constrained by the words “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” as contained in the said Act such that the by-law is invalid? The main conclusions of CELA’s factum of law in this case are summarized as follows: 1. Use and application of pesticides is controlled, prescribed, and regulated in various ways. Federal registration is required by manufacturers to make and market a pesticide. Provincial permission is required for vendors to distribute or sell a pesticide, or for service companies to apply a pesticide. Municipalities can enact by-laws concerning pesticide application within their boundaries. Homeowners have bought and used either pesticides or the services of pesticide applicators for thirty years. However, pesticide application is not a common law private property right. While pesticide products have been available they have been controlled and regulated. During the same time frame, local concerns, validly held, have arisen and been appropriately within municipal control. Significant differences at the local level can lead to valid differences in municipally elected councils making different decisions as to how to control pesticide application in the municipality. 2. Pesticide application that is primarily for cosmetic and aesthetic purposes (cosmetic pesticide use) in home lawns and gardens, is a local concern. Municipalities are empowered by provincial law to enact by-laws. Routinely such by-laws control the appearances of local buildings and lots, parking of vehicles, control of vegetation, tree removal and many other matters. Control of pesticide use and application is clearly within this municipal realm where pesticide use is primarily for appearance and cosmetics. Further, municipalities must be able to address competing concerns among residents in the municipality because of health concerns, short term and long term, and the legitimate concerns as to environmental impacts from urban pesticide use. 3. Different concerns will exist in different municipalities. Variations can occur in terms of daily, seasonal or geographic use of pesticides, in terms of run-off to ground or surface water. Impacts on young children could vary with demographics, location of parks, schools, daycares and recreational facilities. Municipalities have traditionally been empowered to deal with considerations that reflect these differences, from the ability to zone land use, to the ability to pass by-laws for the control of nuisance uses in a community. The underlying concerns have ranged from health concerns (e.g., safety of drinking water) to that of the peace and enjoyment of their lands by neighbours (e.g., by-laws for noise nuisances or air emission nuisances). 4. Municipal power to set by-laws is often unaffected by federal or provincial laws, regulations or or guidelines. E.g., noise by-laws have nothing at all to do with Ontario Ministry of Environment noise guidelines; both deal with different concerns in different ways. Municipal noise by-laws can and do control much activity that would not breach Ministry of Environment noise guidelines. Provisions allowing for municipal by-laws about nuisances from air pollution emissions are often unrelated to Ministry of Environment air standards. The former may be primarily concerned with nuisance impacts; the latter with short or long term “proven” health or environmental impacts, and even then, they tend to focus only on serious impacts. 5. Municipal pesticide by-laws are among the most recent of a line of such by-laws regulating the activities of property owners and occupiers that impact upon others in the municipality. Such by-laws serve the very purpose of the legislation that provides municipal general health and welfare powers to set by-laws. It is not expected, nor practically useful, to attempt a federal or provincial scheme that would deal with all such concerns and conflicts. Short of a nation-wide ban on cosmetic or urban use of pesticides, local impacts from their use will occur in differing ways in differing locations and giving rise to differing concerns. Since it is ecologically impossible to confine pesticides to their place of application, their use by any owner of private or public property is a legitimate community concern. 6. Enactment of a pesticide control by-law in a municipality, whether by way of control over the types of pesticides, or the location, timing or weather conditions for their application, or other controls is valid as a matter of Canadian municipal law. Such a by-law is compatible with federal and provincial law. Without more specific provincial legislation concerning municipal powers, and unless a province specifically prescribed the manner in which they may thus act, municipalities may act under the “general welfare”, “public health” or “nuisance” provisions of the relevant municipal legislation.