Decision Date: June 16, 1988
Court: B.C.C.A., Taggart, Hinkson, and Wallace, JJ.A.
Cite: Registry No. CA008290
The Canadian Earthcare Society (the petitioner) applied for judicial review to quash a decision of the Board upholding the granting of a pesticide use permit to the Ministry of Forests. The petitioner submitted that the Board committed errors of law/jurisdiction by assuming a Federally registered pesticide to be generally safe without assessing evidence of its toxicity; by refusing to consider alternatives to the pesticide for eliminating brush; and by exceeding its jurisdiction in granting an extension of the permit for one year.
The Court held that the Board was entitled to assume that a federally registered pesticide was generally safe. The Court further held that the Board did consider evidence of toxicity to the extent that the evidence showed that the specific site in question prevented the safe application of the pesticide, whether the proposed pesticide use was contrary to registration restrictions, or that the permit holder was unable to apply the pesticide safely.
The Court found, however, that the Board erred in its decision that it did not have jurisdiction to consider alternatives to the pesticide. The Board was obliged to consider viable alternatives to the use of the pesticide in question once it was determined that the application of the pesticide would support adverse effects. Specifically, in considering whether these effects were unreasonable, the Board was required to inquire as to whether alternatives existed to the pesticide. The Court found that the Board failed to do this in this instance. Accordingly, the Court allowed the appeal on this ground and remitted the matter to the Board, directing it to take into account possible alternatives in its analysis as to whether the adverse effects associated with the use of the pesticide were unreasonable.
The Court also found that it was inappropriate for the Board to grant an extension of the permit for one year without first insuring that parties affected by the permit received reasonable notice of the application for the time extension. The Court held that no such notice was given in this instance. The application was allowed in part.