Law Times

Law Times • march 1, 2010 Pesticide case a fly in government's ointment a popular bandwagon and, at the stroke of a pen, changes the rules governing your business? That's the dilemma faced by W the lawn and garden industry, which last year found itself un- der the gun when the province enacted the 2008 Cosmetic Pes- ticides Ban Act that forbids the use of synthetic herbicides and pesticides for cosmetic purposes. Quebec, Newfoundland, New Brunswick, and P.E.I. have simi- lar bans while British Columbia is considering taking action. In the meantime, the impact on the lawn-care sector here has been cataclysmic with the industry claiming it lost $300 million last year from the $1.26 billion in revenue in 2007. More than 250 pesticide prod- ucts have been banned from sale since last April, and at least 95 pesticide ingredients are banned for cosmetic uses. In the mean- time, the industry is scrambling to come up with organic prod- ucts to keep lawns and gardens pest- and disease-free. While the science catches up to reality, the industry is seeking a novel remedy through a private in- formation filing under the auspices of Jeffrey Lowes, a Kingston, Ont., communications strategist whose past claim to fame was as a failed mayoralty candidate in that city. Lowes claims the 2008 law and related regulations are a vio- lation of the federal Pest Control Products Act. The charge names six senior civil servants for failing "to exercise their assigned fidu- ciary responsibilities by not tak- ing reasonable care to ensure that the Ministry of Environment complies with the Pest Control Products Act and its regulations and did thereby commit an of- fence contrary to section 70, subsection 2 of the Pest Control Products Act." Lowes has also filed additional information against the six bu- reaucrats and the ministry under s. 504 of the Criminal Code and the federal Competition Act. Lowes claims the province and its officials were aware or should have known that the federal gov- ernment "had warned Ontario about the province's regulatory methodology." The focus of the claim is centred on one ingredient, azadirachtin, a bio-insecticide. In Ontario, it counts as a class 11 pesticide, meaning it's not banned but can only be used by licensed professionals under spe- cific restrictions. Lowes notes any pesticide in use in Canada must be registered with Health Cana- da's pest management regulatory agency. Azadirachtin isn't regis- tered, although it was granted temporary approval for use as a tree injection. That expired in August. The case includes a letter from Jason Flint, director of policy and regulatory affairs at the federal hat do you do when the government of the day jumps on Inside Queen's Park By Ian Harvey agency, to Dale Henry, director of the standards development branch at the Ontario Minis- try of the Environment. In the letter, dated March 25, 2009, Flint pointed out some errors in how pesticides were going to be regulated in reference to federal guidelines. "This active ingredient (azadir- achtin) is not registered for use in Canada, except for the current emergency regulation for tree in- jection which expires in Ontario Aug. 31, 2009," Flint wrote. "Giv- en this substance is of great inter- est to organizations in Ontario, such as lawn-care companies, this listing has the potential to create confusion about which products and actives are permitted and may lead to use which would be illegal under both Ontario and federal legislation." The lawn-care industry is holding this up as an egregious example of how the legislation and regulations were rushed through with little thought to the complexities involved or any real science. Private charges are rare. It's even rarer for them to succeed, as witnessed by the private in- formation filed by activist Gary McHale against Ontario Provin- cial Police Commissioner Julian Fantino claiming the veteran cop's 2007 e-mails to area politi- cians amounted to an attempt to influence municipal officials in the Caledonia, Ont., dispute. McHale's complaint centred on the standoff between natives and police there, which has been at an impasse for nearly four years. On Feb. 4, Crown prosecu- tor Milan Rupic told a justice of the peace there was little hope of conviction. The charge was with- drawn accordingly. Anticipating that result and fully aware that the province is always loath to prosecute itself, Lowes is asking for a federal prosecutor to take the case. One imagines there's a little squirm- ing going on in Ottawa since this is a political hot potato the government would rather settle through discussions between mandarins (or through a simple rule change taking azadirachtin out of the class 11 schedule) than in the public glare of the courts. The case may not make big headlines, but there's always en- tertainment value in watching people tilt at windmills. LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. COMMENT Memo to government: New rule on regular mail a big deal for small claims BY JORDAN FARKAS For Law Times O n Jan. 1, the maximum claim amount for the Small Claims Court rose to $25,000 from $10,000. The change has sparked much debate on whether or not it will increase access to jus- tice or simply bog down the court system with more cases. What nobody has discussed, however, is another change that will certainly have a nega- tive impact on the Small Claims Court: the re- moval of the rule allow- ing a plaintiff to serve a defendant with the claim by regular mail. Up until Dec. 31, a plaintiff was able to file a case and serve it on the defendant through that method. As of this year, though, the plaintiff will pretty much have to either personally deliver the claim to the defendant or send it by regis- tered mail or courier and get a signed confir- mation of receipt. This will prove to be problematic for the Small Claims Court and plaintiffs for a number of reasons. First, it will destroy the use of the letter of demand. A common method used by plaintiffs and legal profes- sionals alike is to send a letter in advance of a claim offering the debtor to resolve the matter prior to spending time and money in court. Often, these letters succeed, thereby saving the court from opening another file. When the matter doesn't settle, the plaintiff simply files the claim and pops it in the mail to the defendant. With the new rule in place, the letter will serve to tip off the debtor that the matter is going to litigation. The defendant will know not to answer the door to unexpected guests and will refuse to sign for couriers and registered mail. As a result, creditors will be less willing to take a chance with a letter of demand. This means that cases that could have settled with a letter will now proceed directly to court. At the same time, the change will lead to increased motions for substituted service. Editorial Correspondence FEELING SORRY FOR PARALEGALS I agree with that portion of the article that points out what I have always felt was a blatant conflict of interest between what is in a law- yer's interest (barring paralegals from anything lucrative) versus what is in a paralegal's inter- est (being allowed to handle as many types of matters as possible). There is, in my mind, an expectation that the Law Society of Upper Canada will decide on the side of lawyers for the most part. Even though I am a retired law- yer, I feel sorry for paralegals. Comment posted on lawtimesnews.com by Don Desaulniers about "Disbarred lawyer challenges LSUC." REGULATION MAKES PARALEGALS ACCOUNTABLE, TOO I am sympathetic to the concern that some people who cannot afford a lawyer will be denied access to justice. But I have seen cases where people would have been better off going it alone than sticking with the poor level of service, including fatal legal errors, they were www.lawtimesnews.com Speaker's Corner Because defendants often evade service of a claim, plaintiffs will often have no choice but to bring a motion to the court to al- low them to serve it using other means such as regular mail or e-mail. You can imagine how many of these motions the court will now be dealing with as a result of the revo- cation of the regular-mail option. Overall, then, plaintiffs will have to spend more money. Most people either don't have the time to personally deliver a claim to the defendant or don't want to. So, when registered mail or the courier option fails, they'll have to hire professional pro- cess servers to deliver their claims at a con- siderable expense. When those companies can't get the job done due to evasion of service, the only op- tion is to bring a motion for substituted ser- vice. People who are unfamiliar with court processes already have a difficult time figur- ing out how to start a claim, let alone how to bring a motion for substituted service. They'll now have no choice but to spend even more money on legal advice or repre- sentation for such motions. It's difficult to comprehend why the gov- ernment revoked the rule allowing for ser- vice by regular mail. It's possible the change was a result of the common occurrence of defendants claiming they never received a copy of the lawsuit. But is the answer to make things more difficult for the plaintiff who is trying to get access to justice? There were other options available to the court, such as allowing ser- vice by e-mail or fax. As it stands, it appears the decision to disallow service by mail is a mistake that may undermine access to jus- tice, something the court is so rigorously try- ing to achieve. LT Jordan Farkas is founder and lead lawyer of www.MrSmallClaimsCourt.ca. He also acts as an outsourced litigation consultant to lawyers and self-represented parties on higher- court matters. He can be reached at 647-727- 4686 or jfarkas@jordanfarkas.com. getting from their paralegal. Sure, lawyers mess up from time to time. But they have always been answerable for their mistakes and ethical lapses. Furthermore, the more infamous members of this group have stood as a warning and example for the rest of us. Now paralegals are being held accountable, too. If a few paralegals cannot make a go of it in a more regulated environment, then there is probably a good reason for that, and the public is better off for the disappearance of their inad- equate, incompetent or unscrupulous services. Comment posted on lawtimesnews.com by Jef- frey Gauze about "Disbarred lawyer challenges LSUC." KOPYTO HAS SUPPORT Harry Kopyto has been in court on several oc- casions, and all the people in the gallery were people who were helped by him. I don't think that most lawyers at a disciplinary hearing can fill a telephone booth when they are in front of such a panel. I think that speaks volumes about what he has provided to those in need of affordable legal representation. Comment posted on lawtimesnew.com by Anonymous about "Disbarred lawyer challenges LSUC." LT PAGE 7

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