Decision Date: September 24, 2003

Court: B.C.S.C., Ross, J

Cite: Smithers Registry No. 12731

Josette Wier applied for a judicial review of a decision by the Environmental Appeal Board upholding a decision by the Deputy Administrator to issue a permit for the use of the pesticide monosodium methane arsenate (“MSMA”) to control beetle infestations in trees.

At the Board hearing, Ms. Wier contended that the use of MSMA in accordance with the permit would result in adverse effects on the environment and human health.  Ms. Wier also argued that the two-step test set out in Canadian Earthcare Society v. British Columbia (Environmental Appeal Board) (1987), 2 C.E.L.R. (NS) 254, [1987] B.C.J. No. 1747, (“Earthcare”), and generally applied by the Board in pesticide permit appeals, had been affected by the Supreme Court of Canada decision in 114957 Canada Ltee. (Spraytech, Societe d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42, (“Spraytech”).  The two-step test requires the Board to determine whether the use of a pesticide in accordance with a permit will cause any adverse effects on human health or the environment, and if so, the Board must then determine whether the adverse effects are unreasonable based on a risk-benefit analysis.

Board held that the two-step test set out in Earthcare was unaffected by the Spraytech decision. The Board also found that the volume of MSMA allowed under the permit was excessive and could lead to harmful results. The Board ordered that the total volume of MSMA approved for use under the permit should be reduced by the equivalent of 57,500 trees, or approximately 38.3%. The Board also ordered that the permit should be amended so that MSMA could not be used in Tweedsmuir Provincial Park.  Subject to those amendments, the Board was satisfied that the application of MSMA under the permit would cause no unreasonable adverse affects.

At the judicial review, the B.C. Supreme Court considered whether the Board erred in its application of the Earthcare test by improperly limiting its considerations to only that evidence related to site-specific concerns, and by failing to undertake the appropriate analysis before concluding that the permitted pesticide use would cause no unreasonable adverse effects.

Before addressing those issues, the Court determined that the applicable standard of review was “correctness,” because the questions concerned the Board’s interpretation of the law.

The Court found that the Board erred in its analysis of the risk of adverse effects by only considering site-specific concerns.  The Court found that although the Board can consider a federally licensed pesticide to generally be safe if used in accordance with the conditions listed on its label, that does not mean that the Board cannot consider evidence of general toxicity.  Earthcare does not prevent the Board from considering evidence on the toxicity of a federally licenced pesticide, simply because it has been so licenced.  It is within the Board’s discretion to consider evidence on general toxicity within an analysis of adverse effects posed by that pesticide.  The Court further held that this interpretation of the test articulated in Earthcare is consistent with both the decision of the Supreme Court of Canada in Spraytech and with the precautionary principle.  However, the Court determined that the Board had, in fact, considered some evidence on the general toxicity of MSMA, because the Board had heard and accepted the evidence of Dr. Cullen, one of the Appellant’s witnesses, on the question of toxicity of the arsenic compounds found in MSMA.

On the second issue, the Court determined that the Board had found that the permitted use of MSMA posed some risk of adverse effects.  However, the Board erred in applying the second stage of the two-step test, by failing to consider the evidence of two of the Appellant’s witnesses concerning alternative, non-pesticide methods of beetle control.  Instead, the Board took steps to make this risk of adverse effects reasonable through modification of the terms of the Permit.  In failing to consider the evidence of alternative beetle control methods, the Board misapprehended the law and failed to meet the standard of correctness.

The Court sent the matter back to the Board to reconsider the question of unreasonable adverse effects, taking into consideration the evidence of alternatives for controlling beetle infestations.