Decision Date: April 16, 2021

Panel: Darrell Le Houillier

Keywords: Integrated Pest Management Act – s. 6(1)(a); Administrative Penalties (Integrated Pest Management Act) Regulation – s. 7(1); contravention; administrative penalty; aerial pesticide application

Western Aerial Applications Ltd. (the “Appellant”) appealed an administrative penalty issued by the Administrator, Integrated Pest Management Act (the “Administrator”), Ministry of Environment and Climate Change Strategy (the “Ministry”). The penalty was issued to the Appellant for applying a pesticide outside the area where it was permitted to do so, contrary to section 6(1)(a) of the Integrated Pest Management Act (the “Act”). The Administrator imposed a penalty of $20,750 for the contravention.

The Appellant has been a licensed pesticide applicator for over 20 years. In 2019, the Appellant was hired to apply herbicides by helicopter on some private land to control plants that were undesirable as forage for livestock. Before applying the herbicides, the Appellant received maps and GPS data for the treatment area. The treatment area consisted of private land owned by David Jarvis and Janice Jarvis, and neighbouring privately-owned land. Mr. Jarvis holds a grazing licence under the Range Act over an area of Crown land adjacent to the Jarvis’ land (the “Grazing Licence Area”). The Jarvis’ cattle graze in the Grazing Licence Area.

On July 1, 2019, the Appellant’s helicopter pilot applied herbicides to the treatment area. Before applying the herbicides, the pilot received GPS data and a map of the treatment area. After completing treatment, the pilot cleaned the equipment by adding water to the system, resulting in a diluted herbicide solution (“Rinsate”). The pilot informed Mr. Jarvis that he was planning to apply the Rinsate to part of the treatment area. Mr. Jarvis instructed the pilot to instead spray the Rinsate over an area (the “Additional Area”) adjacent to the treatment area. The pilot applied the Rinsate to the Additional Area, believing it was the Jarvis’ private land. However, the Additional Area was 3.76 hectares of Crown land within the Grazing Licence Area. Neither the Appellant nor Mr. Jarvis had a permit to apply pesticides to the Additional Area.

In August 2019, a Range Agrologist with Ministry of Forests, Lands, Natural Resource Operations and Rural Development (“FLNRORD”) was inspecting the Grazing Licence Area when she observed plants that appeared to be damaged by herbicides.

On July 6, 2020, following an investigation, the Administrator issued the determination of contravention and the penalty.

The Appellant appealed the penalty. The Appellant acknowledged that the contravention had occurred, but it asked the Board to rescind or reduce the penalty.

The Board considered the parties’ submissions and evidence, the Administrator’s rationale for the penalty, the factors in section 7 of the Administrative Penalties (Integrated Pest Management Act) Regulation, and the $40,000 maximum penalty for the contravention. The Board agreed with the Administrator’s findings that the nature of the contravention was “major”, and the contravention had “medium” actual or potential adverse effects. The unauthorized aerial spraying of Rinsate on Crown land caused a significant adverse environmental impact. It killed or damaged native plants on the Additional Area, which will cause a shift in the plant community that will reduce biodiversity and wildlife habitat for several years. Aerial spraying was not planned for Crown land in this region because it affects non-target plants, including those that are important for biodiversity, wildlife, and First Nations’ uses. The Board confirmed that these considerations warranted a significant base penalty of $20,000.

The Board also agreed with the Administrator’s findings that the base penalty should not be increased based on any previous contraventions by the Appellant. Also, the contravention was not deliberate or repeated, and there was no evidence of any economic benefit to the Appellant from the contravention.

In addition, the Board confirmed that the Appellant did not exercise due diligence to prevent the contravention, there was no evidence of the Appellant making efforts to correct the contravention, and the Appellant’s steps to prevent recurrence of the contravention seemed to consist of training and reminders that should be standard practice. Therefore, no reduction in the base penalty was warranted for those factors.

Regarding additional relevant considerations, the Board confirmed, but for different reasons than the Administrator, that a $750 increase in the penalty was appropriate. The Board found that the aerial application of Rinsate to the Additional Area, without first inspecting the area or delineating its boundaries, added an element of risk to the herbicide application. Even if the Appellant had been authorized to apply herbicides to the Additional Area, doing so without having first inspected the area and properly defining its boundaries may have attracted its own penalty. This was a distinct and aggravating factor from what was represented by the base penalty.

In conclusion, the Board confirmed the penalty of $20,750, and dismissed the appeal.