Appeals from the Pesticide Control Act
Decision Date: November 8, 2004
Pesticide Control Act - ss. 1, 6(3)(a)(ii);
adverse effect; cost-benefit analysis; reconsideration of appeal; MSMA
Josette Wier (the “Appellant”) appealed a
pesticide use permit issued by the Deputy Administrator, Pesticide Control Act
(the “Deputy Administrator”) for the application of monosodium methane arsenate
(“MSMA”) to control beetle attacks on forests in the Morice Forest District and
Tweedsmuir Provincial Park between May 14, 2001 and October 31, 2003.
On July 23, 2002, the Board issued a decision
that confirmed the permit, subject to certain amendments. In its decision, the
Board applied a two-part test asking: 1) whether the use of MSMA would cause an
adverse effect; and, 2) if so, according to a risk-benefit analysis, is the
adverse effect unreasonable? Finding that, subject to certain amendments, the
permit would not cause “an unreasonable adverse effect,” the Board found it
unnecessary to review the second part of the test. The Appellant applied to the
B.C. Supreme Court for a judicial review. The Court concluded that the Board
had erred in failing to apply the second part of the test, and sent the matter
back to the Board with directions to “consider the viable alternatives disclosed
by the evidence when applying the second step of the legal test.”
The Board considered the evidence of all
parties on the risks and benefits of using MSMA and alternative methods to
control beetles in the affected areas. The Board found that the risks
associated with MSMA use under the terms of the permit were mitigated to a
reasonable level when the permit was amended as originally directed by the
Board. The Board found that costs and risks associated with alternative
treatment methods made those alternatives unreasonable. Accordingly, the Board
confirmed the decision of the Deputy Administrator to issue the permit, subject
to the changes ordered by the Board.
The appeal was dismissed.
Decision Date: July 14, 2004
Pesticide Control Act - ss. 4, 13, 24; licence to sell; bonding and
insurance; suspension and revocation
Jim Fairall appealed the Deputy
Administrator’s decision to revoke Mr. Fairall’s pesticide applicator
certificate to restrict his right to apply for a new certificate.
The Deputy Administrator revoked
the certificate on the basis of his finding that Mr. Fairall had: 1) held
himself out as someone with a pest control service licence and liability
insurance when he had neither; 2) offered services which required him to have a
licence; and, 3) ignored warnings from the Deputy Administrator that he needed
both a licence and liability insurance.
The Board found that Mr.
Fairall’s advertising did give the impression that he was licenced by the
provincial government. The Board further found that he had offered to apply
pesticides on a fee for service basis.
In response to Mr. Fairall’s
submission that the revocation had occurred without his being afforded a chance
to be heard, the Board found that he had been informed of the reasons for the
revocation prior to it occurring and had refused an invitation to meet with
staff of the Deputy Administrator to discuss the status of his pesticide
applicator certificate. Therefore, the Board held that there was no breach of
procedural fairness by the Deputy Administrator. The Board also found that the
revocation was an appropriate enforcement action.
The appeal was dismissed.
Decision Date: June 1, 2004
Pesticide Control Act - ss. 1 definitions of “adverse effect,”
“integrated pest management” and “pest management plan”, 6, 12,13; pest
management plan, glyphosate; triclopyr; “unreasonable adverse effect;”
Canadian Earthcare Society v. Environmental Appeal Board (1988) 3 C.E.L.R.
(N.S.) 55 (“Canadian Earthcare”); Islands Protection Society v.
British Columbia Environmental Appeal Board (1988) 3 C.E.L.R. (N.S.) 185 (“Islands
Protection”); grizzly bears
Nadine Dechiron, on behalf of the Granby
Wilderness Society and the Boundary Naturalists (the “Appellant”) appealed the
issuance of an approval (the “Approval”) of a pest management plan by the Deputy
Administrator. The Approval was issued to the Minister of Forests, BC Timber
Sales, Kootenay Business Area (“MOF”). The plan and the Approval together
authorize the use of pesticides to control vegetation in cutblocks on Crown land
in the Boundary Timber Supply Area for a five-year term.
The Appellant sought an order
reversing the Approval, or, in the alternative, an order adding conditions
prohibiting the eradication of, and use of pesticides on, grizzly forage foods.
The Appellant raised a number of issues, including: the appropriate test for
determining whether a plan will cause unreasonable adverse affects; whether the
Deputy Administrator had improperly delegated his discretion in making the
Approval; whether the plan met statutory requirements for content; and whether
the plan could result in a use of pesticides that would have an unreasonable
The Board reviewed relevant
legislation and case law to determine whether the test that is applied by the
Board in determining whether a pesticide use will have an unreasonable adverse
effect is appropriate for evaluating pest management plans. It found that the
test was appropriate for evaluating pest management plans. The Board also found
that the plan in this case met statutory requirements for plan content and that
the Deputy Administrator did not improperly delegate his authority to MOF when
he approved the plan.
With regard to the question of
whether the use of pesticides in accordance with the plan and the approval would
cause an unreasonable adverse effect, the Board found that the Appellant
provided insufficient evidence to establish that the pesticide use will have an
adverse effect on grizzlies as a result of ingesting or directly contacting
pesticides. The Board also found, based on expert testimony from both sides,
that the pesticide use might have an adverse effect through the loss of grizzly
bears’ food plants and that the Approval does pose some risk to the bears,
particularly breeding females. The Board found that the plan did not reduce the
risk of loss to food plants to a reasonable level.
The Board ordered the Deputy
Administrator to amend the Approval to include conditions: 1) requiring
assessment of grizzly bear food production on sites anticipated for herbicide
use; and, 2) prohibiting the use of glysophate in cutblocks that have
exceptional amounts of grizzly bear foods. The Board was satisfied that, if the
Approval was so amended, the use of pesticides under the plan and the Approval
would not have an unreasonable adverse effect. The Board upheld the remainder
of the Approval.
The appeal was allowed, in part.
Decision Date: April 14, 2004
Pesticide Control Act - s. 6; gypsy moth; BTK; Foray 48B; pesticide use
permit; aerial spraying
The Ecological Health Alliance,
Gordon Watson and Nonna Weaver (the “Appellants”) appealed the issuance of a
pesticide use permit by the Deputy Administrator, Pesticide Control Act. The
permit authorized the use of Foray 48B, with the active ingredient Bacillus
thuringiensis Berliner ssp Kurstaki (“BTK”), in a spray program designed to
eradicate localized populations of the North American gypsy moth in Saanich and
Delta, British Columbia. The Appellants sought an order to cancel the permit,
or, in the alternative, an order varying the permit so that it does not allow
aerial pesticide or other pesticide applications on people and their homes.
The issues in this appeal were
whether aerial spraying Foray 48B, as authorized by the permit, would cause an
adverse effect on human health or the environment, and, if so, whether the
adverse effect(s) would be unreasonable.
The Board found that the use of
Foray 48B, as authorized by the permit, would have an adverse effect on the
environment as it would kill non-target moths and butterflies, and may pose a
risk of an adverse effect on the health of some people residing within the spray
The Board found that the adverse effects of
the proposed spray program were not unreasonable in the circumstances of the
permit. The Board found that the adverse effects did not outweigh the potential
economic harm to the provincial economy if a gypsy moth population became
established and resulted in the imposition of trade sanctions on products
exported from British Columbia. In addition, the Board found that, based on the
evidence, the harm to the environment would be limited to non-target butterflies
and moths, and would be temporary, while the risks to human health, should a
person be directly exposed to the pesticide, would be temporary and relatively
The appeals were dismissed.
Decision Date: April 8, 2004
Pesticide Control Act - s. 6, 12; Pesticide Control Act Regulation
- s. 16, 18; West Nile virus; pesticide use permit; honeybee; malathion;
pyrethins; synthetic pyrethoids
Robert Stacey, on behalf of the
Cowichan Beekeepers, and Stan Reist, on behalf of the Nanaimo Beekeepers
Association (the “Appellants”), appealed the decision of the Administrator,
Pesticide Control Act, to issue a pesticide use permit. The permit authorized
the application of pesticides for the purpose of controlling mosquitoes in areas
of British Columbia where there was a risk to human health from the West Nile
virus. The Appellants asked the Board to remove from the Permit those
pesticides that target adult mosquitoes (adulticides), or in the alternative, to
add various conditions to the permit to address their concerns.
The issues in the appeal were
whether the application of adulticides, as currently authorized by the permit,
created an “unreasonable adverse effect” and should be removed from the permit,
whether the permit should be amended to include additional conditions, and
whether there has been, and will continue to be, inadequate public consultation
in relation to the treatments authorized by the Permit.
With regard to the first issue,
the Board found that the Appellants had established that the application of
adulticides authorized in the permit may have an “adverse effect” on honeybee
populations, which would result in damage to the environment. The Board
determined, however, that the potential adverse effect was not unreasonable.
Specifically, the Board found that the adverse effect to honeybees did not
outweigh the intended benefit to the human population in British Columbia, and
the permit set out a measured response based on the level of risk to the
population. Nonetheless, the Board ordered that the permit be amended to limit
the application of adulticides to the hours between dusk and dawn. The Board
determined that the amendment would remove the unnecessary risk of an adverse
effect to honeybees, because mosquitoes are most active at night and honeybees
are most active during the day.
Regarding the second issue, the
Board found there was no need to amend the permit to include additional
restrictions on pesticide use. The Board found that the permit was clear in
describing the permitted pesticide control products, as well as the terms of
activation and triggering of spraying. Furthermore, the Board held that it did
not have the power to amend legislation, as requested by the Appellants.
Finally, the Board determined
that the permit provided for sufficient public notification and consultation
prior to treatment. The Board determined that the Appellants' proposed
amendment requiring the permit holder to publish notice of intended treatments
30 days before they commenced was not reasonable. The Board found that the
permit was designed to address emergency situations and the proposed amendment
would create time restrictions that may disrupt the effectiveness of the
The appeals were allowed, in
Decision Date: January 12, 2004
Pesticide Control Act - s.15(7); pest management plan; approval; Vision; Release
Tom Eberhardt appealed the Deputy
Administrator’s decision to approve Pest Management Plan 390-015-03/08 (the
“PMP”). The approval was in
relation to the authorized use of the herbicides Vision and Release to manage
vegetation competing with crop trees. Mr.
Eberhardt sought an order rescinding the PMP.
The issues in the appeal were:
whether the use of pesticides, as authorized by the PMP, would cause an adverse
effect on human health or the environment; and, if so, whether the adverse
effect is unreasonable.
The Board concluded that Mr.
Eberhardt’s submissions contained no evidence to establish that the use of
herbicides in accordance with the terms and conditions of the PMP will create an
adverse effect on human health or the environment. In addition, the Board held that there was no evidence
submitted to demonstrate that the PMP approval was issued contrary to the
requirements of the Pesticide Control Act.
Accordingly, there was no need for the Board to receive reply submissions
from either the Deputy Administrator or Merrill & Ring.
The appeal was dismissed.