Written by Julia Schatz and Jessica Mathewson
On July 6, 2016, the David Suzuki Foundation, along with Friends of the Earth Canada, Ontario Nature, and Wilderness Committee, brought two judicial review applications against the Minister of Health and registrants of the active ingredients clothianidin and thiamethoxam and their end-use products, seeking a declaration that the registrations of both the active and end-use products are invalid (Court File Nos. T-1071-16 and T-1070-16). While the two applications seek slightly different forms of relief with respect to clothianidin and thiamethoxam, the overall goal is clear: to challenge the conditional registration regime for neonicotinoid products. Conditional registrations are granted on the condition that further information be provided by the registrant in respect of the products registered.
Both clothianidin and thiamethoxam end-use products are used as seed treatments. Many environmental interest groups claim that neonicotinoids, such as clothianidin and thiamethoxam, are toxic to bees and other pollinators.
Both thiamethoxam and clothianidin actives and end-use products were originally registered as "temporary registrations" under the previous Pest Control Products Act. The applicants allege that before 2006 the Pest Management Regulatory Agency (PMRA) became concerned about the risk of toxicity to pollinators. After the new Pest Control Products Act (PCPA) and the Pest Control Products Regulations (PCPR) came into force on June 28, 2006, the PMRA registered both clothianidin and its end-use product and thiamethoxam and its end-use products as "conditional registrations". Subsequently, the PMRA has reportedly continued the conditional registrations of both clothianidin and thiamethoxam to December 31, 2017, and December 31, 2016, respectively.
The thiamethoxam judicial review application challenges the conditional registration provision of the PCPR, asking the court to declare subsection 14(1)(b) ultra vires, or beyond the authority set out in the PCPA, and to find that any reliance on that section invalidates the registrations granted under it. Subsection 14(1)(b) exempts conditional registrations from public consultation.
Conditional registrations of pest control products have been a hot topic for environmental interest groups and were the subject of a specific recommendation made by the Commissioner of the Environment and Sustainable Development in its recent audit of the PMRA. One of the auditor's recommendations was that the PMRA should ensure registrants respect the timeline specified in conditional registrations for providing required information (2015 Fall Reports of the Commissioner of the Environment and Sustainable Development: Report 1 Pesticide Safety). Subsequently, the PMRA released Regulatory Directive DIR2016-03, which confirmed the PMRA's decision to discontinue the granting of new conditional registrations as of June 1, 2016.
The two specific concerns of the applicants in these judicial reviews are: (1) an alleged lack of consultation on the registrations of the impugned products; and (2) the continued registration of the impugned products without, in the applicants' opinion, the PMRA having sufficient information to determine whether the environmental risks are acceptable. As such, the applicants allege the PMRA's actions are unlawful. In the clothianidin judicial review, the applicants also allege that the clothianidin registrations were extended contrary to the PCPR.
Neonicotinoid pest control products and particularly, neonicotinoid-treated seeds have been the subject of controversy over the past several years. Ontario has recently introduced regulations creating a new class of pesticides Class 12 for corn and soybean seeds treated with imidacloprid, thiamethoxam, and clothianidin. These new regulations, Regulation 139/15 (the "Regulation"), require vendors to hold special licences, to make certain reports, to require farmers to successfully complete an integrated pest management course in order to purchase and plant neonicotinoid-treated seed after August 31, 2016, and to present a pest assessment report documenting there is a pest problem requiring neonicotinoid-treated seed to control pests, among other things. The Grain Farmers of Ontario (GFO) sought a declaration that the Regulation was ambiguous and required interpretation. GFO also sought an interlocutory stay of all sections of the Regulation pending the hearing of the application. The application was dismissed by the Ontario Superior Court of Justice, which dismissal was upheld on appeal (2016 ONCA 283).
There is also a class action pending in Ontario against neonicotinoid producers which was brought by Sun Parlor Honey Ltd and Munro Honey on behalf of a class of Ontario beekeepers. The claim alleges that the defendants are liable in negligence and conspiracy for harm to bee populations leading to significant business losses to the class, caused by the use of neonicotinoids manufactured, marketed, distributed and sold by the defendants. The plaintiffs are claiming general and specific damages in the amount of $400 million on behalf of the class, as well as $50 million in punitive damages. The Statement of Claim in this action was filed on September 2, 2014.
We continue to actively follow the litigation and regulatory developments with respect to neonicotinoids as a part of our broader pest control products practice.