Law Times

Page 8 November 17, 2014 • Law Times www.lawtimesnews.com Environmental class action Will beekeepers succeed in suit over pesticides? By arshy mann Law Times ntario beekeepers have filed a class action lawsuit against two chemical man- ufacturers that produce pesticides alleged to have contributed to the large-scale death of bees. The beekeepers are seeking $450 mil- lion in damages from Bayer AG, Syngen- ta International AG, and their Canadian subsidiaries that produce neonicotinoids, a popular class of pesticide. The plaintiffs claim neonicotinoids are a primary cause of "colony collapse disorder," a global phenomenon in which honeybees are dying at alarming rates. The beekeepers claim the bee deaths have caused them significant economic harm. According to the statement of claim, those pesticides are amongst the most widely used in Canada on a wide range of crops, including corn, wheat, canola, rice, grapes, and strawberries. "When bees forage on pollen or nec- tar from treated crops, consume gutta- tion droplets or are otherwise exposed to small levels of neonicotinoids, paralysis and death can result along with a bioaccu- mulation of the neonicotinoids in the bee hive," according to the statement of claim. Bee populations began plummeting in various parts of the world in the mid- 2000s, causing scientists, environmental- ists, and food producers to scramble for answers. "Bees, both domesticated honeybees and wild pollinators, are absolutely criti- cal to our food supply and practically ev- erything else in the natural world," says environmental lawyer Dianne Saxe. "And they are in worldwide trouble." While bee deaths have been occurring across Canada, the majority of reports have come from southern Ontario. According to Saxe, colony collapse disorder isn't only a significant environ- mental problem; it could also result in an economic crisis. "One way of thinking about it is if you think of each honeybee as a f lying $50 bill," she says. "That doesn't mean that the beekeeper's making $50 from every bee but it does mean that we as a society get about that much benefit from the bee." While a scientific consensus has yet to fully emerge, much of the focus has been on neonicotinoids and the role they may play in bee deaths. In his annual report, Ontario environ- mental commissioner Gord Miller noted that over the last eight years, more than twice as many bees had been dying over the winter than is generally acceptable. He pointed to neonicotinoids as the most likely culprit. "There is now abundant evidence linking bee kills to neonicotinoid-con- taminated dust generated during the planting of seed-treated crops," he wrote. According to Saxe, both the federal and provincial governments have been reluctant to do anything concrete about colony collapse disorder beyond com- missioning studies. While Miller suggested new fed- eral government regulations around neonicotinoid-treated seeds could be ef- fective, he urged the province to imple- ment restrictions on planting these sorts of seeds by the 2015 planting season if those rules don't end up working. "Although reducing exposure to neonicotinoids presents an immediate challenge, fully protecting our pollina- tors requires a more comprehensive and long-term approach that accounts for the inf luence of additional contributing fac- tors," he wrote. Saxe says the lawsuit against Bayer AG and Syngenta International AG is likely a long shot. "Courts are often reluctant to mess with government decisions on scientific matters," she says. "The judges often find it very difficult to deal with scientific disputes of this kind." However, even if they're not successful in court, the beekeepers could get some action from the lawsuit. "Being forced to respond to a law- suit often forces government to take an issue more seriously than they otherwise would," says Saxe. "You get lawyers forcing senior bu- reaucrats to get some work done so that they can answer questions. And some- times that process of examination itself is enough to provoke some action." At the very least, Saxe says the action will get some attention from the govern- ment. "If the question is ultimately will the court give the beekeepers damages from the manufacturers, well that would be a surprising result," she says. "It is possible, it certainly would be surprising, and I'm sure it would be ap- pealed. But from the beekeepers' point of view, when they see year after year after year of losses and deaths and the govern- ment doing nothing — in polite letters, just getting brushed off — litigation is an option to try and force some attention onto the case." Saxe, however, believes that the class action stands a good chance of success at the certification stage. "The courts have been extremely re- sistant to any effort to make class action claims in terms of human health impacts, but this should be simpler," she says. "The common issue of whether or not this pesticide causes bee deaths seems to me to be a sufficiently prominent part of the litigation that it would warrant certi- fication." Jennifer Kalnins Temple, another law- yer with Saxe's law office, says while the scientific community has yet to arrive at a consensus about what's causing colony collapse disorder, that's not the threshold the court requires to find in favour of the plaintiffs. She says the plaintiffs will only have to demonstrate to the court it's more likely than not that the pesticides are killing bees. Scientists, meanwhile, are working with a standard that falls closer to beyond a reasonable doubt. "They're looking to prove something to 99-per-cent certainty or with whatev- er margin of error the scientific commu- nity believes is acceptable," says Kalnins Temple. LT Bees are at the heart of a class action against the producers of a popular class of pesticide. Focus on Environmental Law 2015 ONTARIO LAWYER'S PHONE BOOK THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Perfectbound Published December each year On subscription $77 One time purchase $80 L88804-677 Multiple copy discounts available. Plus applicable taxes and shipping & handling. (prices subject to change without notice) Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: ȕ Over 27,000 lawyers listed ȕ Over 9,000 law firms and corporate offices listed ȕ Fax and telephone numbers, e-mail addresses, office locations and postal codes Includes lists of: ȕ Federal and provincial judges ȕ Federal courts, including a section for federal government departments, boards and commissions ȕ Ontario courts and services, including a section for provincial government ministries, boards and commissions ȕ Small claims courts ȕ The Institute of Law Clerks of Ontario ȕ Miscellaneous services for lawyers Untitled-7 1 2014-10-29 11:13 AM O Photo: rtbilder/Shutterstock

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