Pesticides Part 2
Condo News Volume 2 2008
By Robert Mullin
If the one true constant is change, the law is no different. In recent years, the law has wrestled with the question, "can a homeowner be prevented from applying pesticides to his or her lawn?". Given the consistent direction provided from the Supreme Court of Canada, the Province of Ontario, and a number of Ontario's municipalities, readers would be well served to heed Maria's wise advice. The use of pesticides is becoming increasingly restricted, and in many places out rightly banned. Without overstatement, we may well be witnessing the steady march towards pesticide free communities.
Up until a few years ago, many wondered if a municipality could control or ban the use of pesticides. With the growing and widespread concern for the protection of both the environment and the health of its inhabitants, over ten years ago some municipalities throughout Canada began restricting or banning pesticides. The law was murky on the issue, and inevitably the courts were asked to intervene. Finally Spraytech, a landscaping company, challenged a bylaw passed by the Town of Hudson, a suburb of Montreal. Hudson had largely prohibited the use of pesticides, and argued that Quebec law allowed a municipality to protect the general health and welfare of its inhabitants. In 2001, the matter ultimately went to the Supreme Court of Canada in the watershed case of 114957 Canada (Spraytech) v. Hudson (Ville) 2001 S.C.C. 40; ("Spraytech"). There the Court upheld the Town's by-law, finding that a Quebec municipality could protect the health of its citizens, which a pesticide ban did. Strike one for pesticides.
Although Spraytech was a Quebec case, there are many legal parallels to Ontario. Municipalities in Ontario are created pursuant to the Municipal Act, S.O. 2001. This legislation has a comparable provision to Quebec law, permitting a municipality to pass by-laws to protect the health, safety and well-being of it's inhabitants. Many wondered if Spraytech was applicable to Ontario. The wait didn't take long. In 2005 case of Croplife v. Toronto (City) (2005) 10 M.P.L.R. (4th) 1; ("Croplife"), the Ontario Court of Appeal upheld the City of Toronto's recent pesticide ban, finding that Ontario municipalities can also protect the health of their inhabitants. Strike two for pesticides.
Since Spraytech and Croplife, municipalities throughout Ontario have moved quickly to restrict or ban the use of pesticides. To date, of the 445 municipalities in Ontario, it is understood that approximately 150 municipalities have now passed similar by-laws. Strike three for pesticides. Many of these new by-laws vary, and reference to your local laws is vital. Many provide exemptions, such as for golf courses, controlling pests or farming. Many also have phase i periods. For example, the City of Guelph passed its pesticide by-law (2007-18308) on June 5th, 2007, which comes into effect on April 1st, 2008. The City of Hamilton passed its pesticide by-law (07-282) on September 26th, 2007, which comes into force on September 1, 2008.
So what does this all add up to for you the cautious condominium director or property manager? First, know that the law is changing. The use of pesticides is increasingly becoming a difficult, if not illegal, activity. Learn what by-law your municipality has. It is important to understand and comply with this by-law, or face an expensive fine. Second, if no by-law exists, keep a watchful eye out. Chances are one is coming. It would be wise to begin implementing changes, so that if and when the by-law is passed, your condominium is ready. Third, make sure your landscaper knows the local laws, and is complying with them. Fourth, inform your unit owners. Let them know of the new legalities, and what your condominium has done to comply with them. If landscaping changes are needed, perhaps hold a town-hall meeting or canvass written input as to what unit owners might prefer. Although change may be the sole constant, surprises are rarely popular in condominium living.
Robert Mulln, B.A. (Hons.), LL.B., is a lawyer at Smith Valeriote Law Firm LLP in Guelph. Robert practices extensively in the area of condominium law and development and is currently completing his Master of Law at Osgoode Hall Law School. Robert regularly works with developers, property management firms and condominium boards to find creative , practical and cost effective solutions for the unique challenges that condominiums face. Robert currently serves as director for CCI’s Golden Horseshoe Chapter. He can be reached at rmullin@smithvaleriote.com
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