



COURT OF APPEAL FOR ONTARIO

CITATION: Grain Farmers of Ontario v. Ontario (Environment
    and Climate Change), 2016 ONCA 283

DATE: 20160420

DOCKET: C61289

Laskin, Cronk and Miller JJ.A.

BETWEEN

Grain Farmers of Ontario

Applicant (Appellant)

and

Ontario Ministry of the Environment and Climate
    Change

Respondent (Respondent)

Eric Gillespie and Karen Dawson, for the appellant

Sandra Nishikawa and Domenico Polla, for the respondent

Heard: March 9, 2016

On appeal from the order of Justice Suhail A.Q.
Akhtar
of the Superior Court of Justice, dated October 23,
    2015, with reasons reported at 2015 ONSC 6581.

B.W. Miller J.A.:

I.

Overview

[1]

The Ontario farmers represented by the Grain Farmers of Ontario (GFO) rely
    on seeds treated with neonicotinoids, a class of pesticide, to protect crops
    against harmful insects. However, neonicotinoids are believed to have a toxic
    effect on bees and other pollinators. Out of concern over the environmental
    impact of neonicotinoids, Ontario amended Regulation 139/15 (the Regulation)
    made under the
Pesticides Act
,
R.S.O. 1990, c. P. 11 (the Act) to sharply reduce, but not eliminate, their use.
    GFO is concerned that the Regulation is unworkable, will produce little
    benefit, and will significantly impair the ability of its members to protect
    their crops from damaging insects.

[2]

GFO brought an application under r. 14.05(3)(d) of the
Rules of
    Civil Procedure
, for a declaration interpreting the Regulation. It also
    brought a motion for a stay of the Regulation pending the determination of the
    application. The respondent, Ontario Ministry of the Environment and Climate
    Change (Ontario) brought a cross-motion to strike out GFOs Notice of
    Application as disclosing no reasonable cause of action. The motion judge granted
    Ontarios cross-motion and dismissed GFOs application and stay motion. GFO
    appeals the dismissals of the application and the stay motion.

[3]

This appeal turns on whether the motion judge erred in holding that the
    remedy that GFO sought was not a determination of rights arising from the interpretation
    of the Regulation, but a re-writing of the Regulation. Importantly, GFO
    challenges neither the constitutionality of the Regulation nor its validity. It
    claims that the Regulation, on a plain reading, is ambiguous and that a
    declaration of what the Regulation requires is needed to ascertain the farmers
    rights and obligations in respect to the use of treated seeds. GFO submits that
    in circumstances where a partys rights depend on the interpretation of an
    ambiguous regulation, r. 14.05(3)(d) authorizes that party to apply to court
    for a determination of its rights.

[4]

I would dismiss the appeal. The Regulation is not ambiguous and GFO has
    not identified a genuine dispute about the farmers rights and obligations. To
    grant the remedy that GFO seeks would be tantamount to amending a regulation
    through interpretation, a remedy well outside the courts discretionary power to
    order declaratory relief.

II.

Background

[5]

GFO represents 28,000 producers of corn, soybean, and wheat in Ontario.
    Their produce generates $2.5 billion in farm gate receipts and sustains 40,000
    agricultural jobs. It believes neonicotinoid-treated seeds to be an important weapon
    in the arsenal against crop infestation, allowing for more efficient grain
    farming to the benefit of both farmers and their customers.

[6]

The Act establishes Ontarios authority for classifying pesticides and
    regulating their use in Ontario. The Regulation came into force on July 1,
    2015, amending O. Reg 63/9 made under the Act, restricting the sale and use of
    neonicotinoid-treated seeds. The amendments added neonicotinoid-treated seeds
    to the substances classified as pesticides. The use of these treated seeds is
    still permitted where a user obtains a pest assessment report that establishes
    that the use is in fact necessary, according to the criteria set out in the
    Regulation and Pest Assessment Guideline. The pest assessment report must be
    presented to seed vendors prior to the purchase of treated seeds.

[7]

The Regulation provides for two different types of pest assessment
    reports: a crop pest assessment (CPA), and a soil pest assessment (SPA).
    The Regulation specifies that a CPA may only be prepared after March 1, 2016. There
    is no similar temporal restriction on the preparation of an SPA. GFO argues
    that the absence of a date governing the preparation of SPAs creates an
    ambiguity in the Regulation, making its application uncertain and rendering
    compliance with it impossible. It asks the court to grant a declaration reading
    a specific date into the text of the Regulation before which SPAs will not be required.
    At the appeal hearing, GFO proffered a date of March 1, 2017. This would, in
    effect, create a one year stay of the Regulation.

[8]

The Regulation includes a transitional provision: in the first year of the
    new regime, farmers can use treated seeds on 50% of their lands without needing
    a pest assessment report. GFO argues that the transitional provision suffers
    from a baseline problem: a pest assessment report in the transition year would not
    accurately indicate the need for treated seeds, because the use of treated seeds
    in the previous year will have temporarily suppressed the harmful pests in
    crops and soil. With reduced access to treated seeds, GFO expects the harmful
    insects to rebound, resulting in substantial crop damage in the transition
    year, possibly in the millions of dollars. Only after the farmers have incurred
    these losses will they have the evidence necessary to obtain a favourable pest
    assessment report and purchase treated seeds to combat infestation in the next
    planting cycle. Ontarios response is that the transition provision recognizes
    the baseline problem and provides a compromise by allowing for treated seeds to
    be used on up to 50% of the area farmed without requiring a pest assessment
    report.

[9]

On GFOs reading, the plain textual meaning of the Regulation would
    perpetrate a senseless and harmful result  significant losses from crop damage.
    It submits that such an interpretation is inconsistent with the basic
    assumption that Ontario is a competent institution acting in the public
    interest.

[10]

GFO applied for a declaration providing an interpretation of the
    Regulation that would relieve farmers from having to comply with the
    Regulations requirements for the 2016 growing season.

[11]

Ontario brought a cross-motion to strike GFOs application as disclosing
    no reasonable cause of action. The motion judge granted that motion, holding at
    para. 38 that although GFO formally sought an interpretive declaration, in
    reality it was asking the court to rewrite or correct legislation argued []
    to be faulty or ambiguous.

III.

Issues

[12]

GFO raises two issues on appeal. It submits that the motion judge erred
    in finding that: (1) the Regulation does not limit the farmers property
    rights, and (2) the relief sought is not the determination of rights through
    the interpretation of a regulation.

IV.      Analysis

(1)

Does the Regulation affect property rights?

[13]

GFO submits that the motion judge erred by characterizing GFOs claim as
    one of economic rather than property rights. It is unnecessary, however, to
    decide whether the Regulation affects property rights. It would be enough, for
    the purposes of GFOs argument, that the Regulation affect any of the farmers
    legal rights. Nothing is added to GFOs argument by further specifying those
    rights as distinctly property rights.

[14]

Although the motion judge concluded that the Regulation does not affect
    property rights, I do not interpret him as concluding that the Regulation does
    not affect the farmers legal rights at all. In any event, in my view, it
    plainly does. Purchasing and using treated seeds is an exercise of a liberty. A
    liberty, to use the standard grammar of juridical relationships, is a species of
    legal right: it is the absence of any law that would constrain any particular action:
MacDonald v. City of Montreal
, [1986] 1 S.C.R. 460 (Wilson J., in
    dissent) at pp. 517-519.
[1]
Because a liberty is only the absence of a legal restriction, and not a legal
    or constitutional right that government not create such restrictions, a liberty
    can be narrowed, or extinguished entirely, by a constitutionally valid statute
    or regulation.

[15]

The Regulation narrows the farmers range of legally permitted options,
    and so affects the farmers rights in this sense. Little, however, turns on
    this. The limitation of a right does not, standing alone, create a justiciable
    issue. The problem that GFO cannot overcome is that there is simply no
    controversy as to the farmers rights or obligations under the Regulation that
    could make the matter justiciable. As the motion judge held, and as I explain
    below, the exercise of the courts declaratory power is discretionary and is
    informed by the doctrine of justiciability:
Canada v. Solosky
, [1980]
    1 S.C.R. 821, at p. 832;
Green v. Canada (A.G.)
, 2011 ONSC 4778,
    [2011] O.J. No. 3615, at paras. 24-25.

(2)

Rule 14.05(3)(d): has GFO identified a justiciable issue?

[16]

The motion judge was correct to strike the application on the basis that
    it presented no genuine issue for determination. Although the court has broad
    jurisdiction to grant declaratory relief as a result of its inherent
    jurisdiction and pursuant to s. 97 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, the party seeking the declaration must establish that the
    question it raises in its application is a legal or justiciable issue: L.
    Sossin,
Boundaries of Judicial Review: The Law of Justiciability in Canada
,

2nd ed. (Toronto: Carswell, 2012), at p. 275;
Bedford Service
    Commission v. Nova Scotia (A.G.)
(1976), 72 DLR (3d) 369, (N.S. C.A.),
    revd on other grounds [1977] 2 S.C.R. 269.

[17]

GFO has attempted to ground the relief sought in r. 14.05(3)(d), arguing
    that it provides free-standing jurisdiction where an interpretative question is
    raised. This submission is clearly in error. Rule 14.05(3)(d) is procedural in
    nature. The rule provides:

(3)
A proceeding
    may be brought by application where these rules authorize the commencement of a
    proceeding by application or where the relief claimed is,



(d) the determination of rights that depend on the
    interpretation of a deed, will, contract or other instrument, or on the
    interpretation of a statute, order in council, regulation or municipal by-law
    or resolution;

[18]

Rule 14.05, as has often been noted, does not create jurisdiction but
    assumes it, and provides a means by which to engage that jurisdiction:
Canada
    Post Corp. v. C.U.P.W.
(1989), 70 O.R. (2d) 394, 62 D.L.R. (4th) 724
    (H.C.), at p. 397;
N.(J.) v. Durham

Regional Police Service
,
    2012 ONCA 428, 284 C.C.C. (3d) 500, at para. 16.

[19]

Accordingly, r. 14.05(3)(d) does not expand the courts jurisdiction to
    grant declaratory relief on the basis of a free-standing challenge to the
    wisdom or fairness of governmental action. The motion judge, as required by r.
    21, accepted the facts as pleaded: the regime will create significant, serious
    hardship for the farmers represented by GFO. But even if, as pleaded, the Regulation
    creates financial hardship, is futile, and provides little environmental
    benefit, neither the wisdom nor the efficacy of a regulation is a justiciable
    issue. Although couched in the language of r. 14.05(3)(d), the remedies that
    GFO is actually seeking are solely within the powers of the legislative and
    executive branches of government.

[20]

Although its policy dispute with Ontario is real and may have
    significant consequences for GFO, the problem of legal interpretation alleged
    by GFO is artificial  the dispute between the parties does not turn on the
    interpretation of the Regulation. The regulatory preconditions that must be
    satisfied before a farmer can purchase and use treated seeds are clear. A
    farmer must obtain a pest assessment report that demonstrates the need for
    treated seeds, according to the criteria set in the Regulation. GFO has not
    identified any ambiguity in the Regulation. The absence of a date in the SPA
    provision does not create any interpretive problems. It is clear that the
    farmers are free to obtain an SPA report at any time, as Ontario argued.

[21]

The issues raised in the Notice of Application can be contrasted with
    the issues raised in
Schaeffer v. Wood
, 2011 ONCA 716, 107 O.R. (3d)
    721, revd on other grounds, 2013 SCC 71, [2013] 3 S.C.R. 1053.
Schaeffer
involved a successful application for a determination of rights under r. 14.05(3)(d).
    In that case, the applicants sought an interpretation of a legislative
    framework governing investigations by the Special Investigations Unit, which
    was established by the
Police Services Act
, R.S.O. 1990, c. P.15. That
    legislation had left unspecified whether police officers involved in SIU
    investigations were permitted to consult with legal counsel prior to drafting
    notes that they were required to make. There were, in short, practical questions
    to be answered about the rights of state actors under legislation that was intended
    to guide and constrain their conduct.

[22]

There are no similarly practical questions of interpretation or
    application raised here. Instead, GFO makes an open-ended invitation to the
    court to rewrite a regulation of general application. GFO asks the court to take
    the alleged unfairness of the Regulation as authority to rewrite it to
    alleviate the burden on its members. To do so would not resolve a genuine
    interpretive question. It would instead defeat the intention of the Regulation.
    This problem was clearly identified by the motion judge at para. 37 of his reasons:

In my view, GFO is not asking for a determination of rights
    that depend on the interpretation of the Regulation but a re-writing of that
    Regulation in a manner that would permit the effects of the Regulation to be
    delayed to its advantage.

[23]

I agree entirely with the reasoning of the motion judge at paras. 38-39:

It is not the job of this court to pronounce on the efficacy or
    wisdom of government policy absent the aforementioned constitutional or
    jurisdictional challenges, neither of which are made here: see
Ontario
    Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources)
.
    Nor is it within the power of this court to rewrite or correct legislation
    argued by a party to be faulty or ambiguous. Yet, this is precisely what GFO
    asks in the context of its application. Such a course of action would, in
    effect, render the operative Regulation inoperative and would, in effect,
    change the legislation. I agree with Ontario that it is neither possible nor
    desirable that this court have the jurisdiction to effectively grant a stay in
    the guise of a declaration of a Regulation which is otherwise unchallenged:
Rajan
    v. Canada (Minister of Employment and Immigration)
.

The words of the Alberta Court of Appeal in
Trang v.
    Alberta (Edmonton Remand Centre)
are apposite in the circumstances of this
    case:

Private litigants are not entitled to use the courts as an
    indirect method of altering public policy decisions, especially those involving
    the expenditure of public funds. Just because a private party has a sincere
    concern about the validity of a public policy
does
not entitle him or her to litigate its legality:
Canadian Council of
    Churches v. Canada (Minister of Employment and Immigration)
. As a
    corollary, the superior courts are not to use their powers to grant generally
    worded declarations as a method of controlling or influencing governmental
    operations. [Citations omitted.]

[24]

The motion judge made no error in concluding that the Notice of
    Application does not disclose a reasonable cause of action. I would dismiss the
    appeal from the dismissal of GFOs application.

[25]

Given this result, it is unnecessary to consider the appeal from the
    dismissal of GFOs stay motion.

V.      Disposition

[26]

For the reasons given, I would dismiss the appeal from the dismissal of
    GFOs application. I would make no order as to the costs of the appeal.

Released: JL APR 20 2016

B.W. Miller J.A.

I agree. John Laskin
    J.A.

I agree. E.A. Cronk
    J.A.





[1]
See also Adam J. Macleod,
Property and Practical Reason

(Cambridge
    University Press 2016) p. 60, 214-15. Simon Douglas, Ben MacFarlane Defining
    Property Rights in James Penner and Henry Smith (eds.)
Philosophical
    Foundations of Property Law

(Oxford University Press 2013)


