Weed Management and the Law
Weed Management: Legal
Implications
Date: November 28, 2005
Jason Unger, Staff Counsel
Environmental Law Centre
Weed Management and the Law
The Environmental Law Centre
• Vision
– A clean, healthy and diverse environment protected
through informed citizen participation and sound law
and policy, effectively applied.
• Mission
– To ensure that laws, policies and legal processes
protect the environment.
• Ends
– Enactment and effective enforcement of sound
environmental laws and policies.
– Effective and informed public participation in
environmental regulatory, law-making and decision
making processes.
Weed Management and the Law
ELC’s Public Programs
• Information and referral
• Legal education
• Public library of environmental law
• Environmental law monitoring and reform
• Legal research
Weed Management and the Law
Legal Aspects to Weed Management
• Types of Liability
– Regulatory
– Civil
• Minimizing Liability
– Delegating liability
– Risk Management and Due Diligence
• Limitations on Liability
– Limitations Act
– Other limitations
Weed Management and the Law
Civil & Regulatory Liabilities
• Environmental liabilities
– Two main areas of potential liability
• Regulatory –statutory
• Civil
– civil liability more likely at issue in relation
to work with herbicides (if application,
storage and handling is unlawful)
Weed Management and the Law
Regulatory offences
• Classes of offences:
– mens rea: requires actus reus (guilty act) &
mens rea (guilty intent)
– strict liability: upon proof of actus reus, accused
must prove due diligence to escape conviction
– absolute liability: only actus reus must be
proven to convict
– Ticketable or administrative penalties –often like
absolute but often carry limited rights to appeal
and not in court
Weed Management and the Law
Due diligence
Defence to strict liability offences
•
– Operates as a full defence
– If successfully shown, no offence exists
– Crown must first prove actus reus committed
•
Proven by accused on balance of probabilities
– that all reasonable steps were taken to prevent
commission of the offence
• Prove by showing no negligence - will vary in
each case
Weed Management and the Law
Due diligence – suggested factors (R. v. Gonder)
• General business/industry standard of care
• Special circumstances indicating different level of
care
– Gravity of potential harm
– Available alternatives
– Likelihood of harm
– Knowledge/skill expected of defendant
– Extent to which causes beyond defendant’s
control
Weed Management and the Law
Statutes of Relevance
• Environmental Protection and Enhancement Act
– Pesticide (Ministerial) Regulation
– Pesticides Sales, Handling, Use and Application
Regulation
– Code of Practice for Pesticides
• Weed Control Act
– Weed Regulation
• Federal Pest Control Products Act
– Pest Control Products Regulation
Weed Management and the Law
Example Case of Regulatory Liability
• Municipal District of Cardston No. 6 v. Direct,
Enforcement and Monitoring Division, Alberta
Environment Protection (17 August 1999) 99-011
(EAB)
– Administrative penalty for violating section 5 of
the Pesticide Sales, Handling, Use and
Application Regulation and s 9 of the Pesticide
(Ministerial) Regulation
– Applying pesticide in manner which causes or is
likely to cause an adverse effect and using a
restricted pesticide within 30 metres of an open
body of water (without special use approval)
– $5000 penalty upheld by EAB
Weed Management and the Law
Civil causes of action
• Operate separately & independent of regulatory
liability
• Regulatory liability may be evidence in a civil
action, but does not determine civil liability
• Ultimately determined by courts
Weed Management and the Law
Trespass
• Direct interference with another’s property,
property interest or person without lawful excuse
or justification
• Liability unless defence
• Defences:
– involuntary act
– consent
– necessity
– statutory authority
• Remedies: damages &/or injunction
Weed Management and the Law
Private nuisance
• Unreasonable interference with use & enjoyment of
private property
– direct, physical entry not required
– balance of rights
– substantial interference
– does not apply to abnormal/delicate uses of
property
• Remedies: damages &/or injunction
Weed Management and the Law
Negligence
• 3 elements
– duty of care owed by defendant to plaintiff
– breach of that duty - failure to meet legal
standard of care (“reasonable person” test)
– loss or injury resulting from breach (causation)
• Defences: failure to prove elements of tort;
contributory negligence
• Remedy: damages
Weed Management and the Law
Defence of Statutory Authority
• often used often unsuccessful
• based on premise that the defendant is authorized
or permitted to do an activity that causes harm by
legislation
• Courts construe the ability to impinge on other’s
private property rights narrowly
– Question to be asked is whether the harm could
be avoided
– Statutory authorizations are understood to
imply that every effort will be made to avoid the
harm
Weed Management and the Law
Past Case Law
• Nuisance and Trespass claims have been
successful in the past
• Statutory authority often rejected on basis that not
enough was done to avoid the harm
• Newman v. Conair Aviation Ltd, Friesen v. Forest
Protection ltd
Weed Management and the Law
Liability through actions of others
• Regulatory and civil liabilities can accrue through
– Agents
– Independent Contractors
– Employees
• Vicarious liability is often expressly stated in the
legislation
– possible where actions of agents, independent
contractors or employees cause the damage
– Question is whether harm is caused by activity
during the course and within the scope of the
employment
– sub-contractors or independent contractors may
insulate against liability to a degree but a
municipality may remain liable by virtue of its
statutory obligations
Weed Management and the Law
Notes regarding sub-contracting
• Municipality, as land manager, is responsible and
may still be liable for activities taking place on land
• If seeking indemnity from sub-contractor must be
express in terms of contract
• Must also ensure contractual terms recognize the
responsibilities of parties
• Legislative responsibilities cannot be delegated
Weed Management and the Law
Minimizing Liabilities
• Policy and operational measures are required to
avoid environmental liabilities
1. Due diligence, Risk Assessment and Risk
Management
2. What it means in operation
Weed Management and the Law
Due Diligence, Risk Assessment & Risk Management
• Risk assessment and management systems are
important in establishing due diligence
– Have systems in place to
• Assess risks
– Identify risks
– Identify legal (civil/regulatory) obligations
• Manage risks
– Practice and policy manuals
– Management framework for targeting
risky activities and mechanism for
monitoring and enforcement
• Communicate the risks
– Ensure proper training
– Ensure due diligence in sub-contracting
Weed Management and the Law
Operationalizing a Risk Management System
http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/RiskManagement/guide12_e.asp
Weed Management and the Law
In Practice
• Risks Identified
– Practices in pesticide/herbicide use and disposal
– Prohibited spray areas –under EPEA, adjacent
land owner concerns
• Managing risks
– Ensure policies expressly deal with identify risks
– Ensure those doing work take on as much
responsibility as possible (eg. Sub-contractors
indemnity clauses)
– Identify and use strategies for risk prevention –
alternatives for minimizing possibility of liability
(choice of weed control technique)
Weed Management and the Law
In Practice continued
• Communicating risks
– Ensure:
• Proper training/certification
• Proper supervision
• Proper response plans in event of harm or
unlawful conduct
Weed Management and the Law
Due Diligence in Practice
• Establishing Due Diligence requires evidence that
all reasonable steps were taken to avoid the
offending act
– This means
• Detailed records of substances used (without
them it is difficult to prove proper monitoring
and enforcement of risk management
policies)
• Location of application
• Weather conditions
Weed Management and the Law
Limitations on Liability
• Civil Liability governed by the Limitations Act
– two years from the cause of action arising –
– Discoverability principle - starts running at time that
you knew or ought to have known of damage
• herbicide residue issue
• Backdrop is 10 years
• Ongoing causes of action and damage may allow
extension
• Regulatory Liability often dictated by Legislation
– EPEA
• 2 years from date of offence or when Director
became aware of offence (s.226)
Weed Management and the Law
Other limitations may apply
• Municipal Government Act limits legal action
regarding maintenance of public places, roads and
public works
– 30 day notice to municipality (failure of which
bars action) exceptions exist
• EPEA section 218
– Statutory provision to allow extension for
releases of substance that causes adverse effect
(subject to discoverability test)
Weed Management and the Law
Contacting the Environmental Law Centre
204, 10709 Jasper Avenue
Edmonton, AB T5J 3N3
Phone: 780-424-5099 or 1-800-661-4238
Fax: 780-424-5133
E-mail: elc@elc.ab.ca
Web: www.elc.ab.ca