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Environment - Canadian Environmental Protection Act, 1999 (CEPA). Canada (Attorney General) v. Responsible Plastic Use Coalition [precautionary principle]
In Canada (Attorney General) v. Responsible Plastic Use Coalition (Fed CA, 2026) the Federal Court of Appeal allowed an appeal, this brought against a successful industry-brought JR against "the GIC’s [SS: Governor in Council's] order and the Minister’s [SS: of the Environment and Climate Change] decision to not constitute a" Board of Review respecting the CEPA listing of plastics as a toxic.
The court considers the 'precautionary principle', here as embodied in the CEPA:[66] The 1999 amendments expanded the range of substances canvassed by CEPA and introduced Part 4 "“Pollution Prevention,”" which aimed at fortifying CEPA’s ability to pre-empt environmental harm. The precautionary principle was also established as a binding administrative duty under paragraph 2(1)(a) and the "“ecosystem approach”" was embedded in a new paragraph of the preamble. The addition of "“biological diversity”" and "“environment”" in section 64 introduced the assessment of harm to ecosystems and reflected Canada’s increasing obligations under international environmental commitments (see, for example, the 2018 Ocean Plastics Charter, which commits G7 nations to greater plastics stewardship).
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[74] The precautionary principle is a mandatory consideration in the GIC’s administration of CEPA, 1999 (para. 2(1)(a)), along with the duty to "“act expeditiously and diligently to assess [substances]”" (para. 2(1)(k)). Paragraph 2(1)(a) stipulates that full scientific certainty shall not be a reason to postpone cost-effective measures to prevent environmental degradation where there are threats of serious or irreversible damage. The addition of the word "“may”" throughout section 64 in the 1999 amendments to CEPA infused the precautionary principle into the scheme’s framework for controlling toxic substances, underscoring CEPA, 1999’s risk-based approach to thwarting environmental harm before it occurs. . Canada (Attorney General) v. Responsible Plastic Use Coalition [board of review appointment under s.333(1)]
In Canada (Attorney General) v. Responsible Plastic Use Coalition (Fed CA, 2026) the Federal Court of Appeal allowed an appeal, this brought against a successful industry-brought JR against "the GIC’s [SS: Governor in Council's] order and the Minister’s [SS: of the Environment and Climate Change] decision to not constitute a" Board of Review respecting the CEPA listing of plastics as a toxic.
Here the court considers the appointment of a Board of Review [under CEPA s.333(1) 'Board of Review Proceedings']:VIII. The BOR decision
[190] The reasonableness of the Minister’s decision not to establish a BOR is assessed in light of the statutory framework empowering the decision and the relevant evidence before the Minister. Both lead to the conclusion that the decision was reasonable.
[191] Beginning with the legal constraints, subsection 333(1) of CEPA (reproduced at Annex A) provides that if a person files a notice of objection with respect to a proposed Order, the MECC "“may establish a [BOR] to inquire into the nature and extent of the danger posed by the substance [at issue].”" The statute does not establish any criteria, considerations or other factors to be taken into account. The language is permissive, not mandatory, and speaks to a broad Ministerial discretion over whether or not to establish a BOR.
[192] This understanding of subsection 333(1) is reinforced when contrasted with subsections 333(3) and (4). These provisions, by use of the word "“shall,”" make it mandatory for the Minister to establish a BOR in certain circumstances.
[193] The Minister’s task in determining whether a BOR should be established is to decide "“whether there is sufficient uncertainty or doubt in the underlying science”" (Goodyear, at paras. 45, 49). The purpose of the BOR is, in essence, to inquire into areas where the Minister is not satisfied as to the underlying science.
[194] The Federal Court did not identify anything in the notices of objection that questioned the reasonableness of the Minister’s conclusion in this respect; rather, it found that the Minister’s decision was not responsive to "“the issue of the breadth of the proposed Order,”" which, it said, "“was a central argument that challenged the sufficiency of the science”" (Federal Court Decision, at para. 136).
[195] I appreciate the argument that some of the objections before the Minister were somewhat Janus-like. They could be framed as a question of science (i.e. there is no evidence that a certain type of plastic is causing harm) or policy (i.e. what subset of PMI ultimately warrants regulation). The Minister characterized the objections as raising questions that went to the underlying science.
[196] A BOR is not a surrogate for the question of whether to regulate and, if so, which substances or manifestations and how. Those are policy considerations that arise downstream in the legislative process, and which have their own mandatory consultations. It is after a section 90 listing order that the debate with stakeholders about regulatory scope takes place; namely, whether, following a risk assessment, any prohibitions or sanctions ought to be put in place. The Single-use Plastics Prohibition Regulations, derived as they are from the Order listing PMI, are a good teaching point. They arose following a lengthy consultation with the public and industry about the scope of the proposed regulations, generating limitations on their reach, numerous exemptions and tailored timeframes for implementation.
[197] Here, the MECC considered the notices of objection and concluded that the core finding of the Science Assessment—that macroplastics are ubiquitous and may harm the environment—was not challenged. It was reasonable for the Minister to conclude that the thrust of the objections was to debate which PMI should escape a regulatory net.
[198] Not all the notices of objection related to the science; some of the objections "“raised legal issues or concerns about risk management approaches”" (Kruidenier Affidavit, Appeal Book, at 16597). Certain objections described the important role of plastics in society and identified concerns about trade and economic harm resulting from decreased investment, reduced consumer demand, or increased costs. These matters are irrelevant to the mandate of the BOR.
[199] Regarding the scientific concerns raised in the notices, a two-step process was followed to determine whether the information submitted merited establishing a BOR. First, scientists reviewed the 27 objections made regarding the Science Assessment’s core findings on the environmental impact of macroplastic pollution to determine whether they raised sufficient uncertainty or established doubt about the evidentiary basis of the proposed Order. The scientists found that they did not. Second, a group of independent scientists with experience in risk assessment reviewed the 60 notices of objection to ensure the first-round review was unbiased, scientifically-sound, and considered all scientific information and arguments submitted. This second, neutral review was to ensure that "“the scientific process had been respected”" (Kruidenier Affidavit, Appeal Book, at 16597–16598; Memorandum to Minister, Appeal Book, at 1246).
[200] The criteria relied on by the Minister to assess and consider the notices of objection were legally relevant and consistent with the jurisprudence (Goodyear, at paras. 45–47). The RIAS summarized the issues raised in the notices of objection and explained on an objection-by-objection basis why they did not undermine the scientific approach or conclusions of the Science Assessment (RIAS, Appeal Book, at 799–800).
[201] The Federal Court held that the Minister did not "“grapple”" with the arguments raised in the notices of objection. Some of the objectors argued that CEPA was not the appropriate tool to address the problem, some suggested that new legislation should be enacted, some that the Order was too broad and should be narrowed and still others objected that the provinces should deal with the problem.
[202] The MECC addressed these objections, head-on, and gave reasons why they did not justify constituting a BOR. The Ministerial decision letters differentiated between those objections that raised no scientific issue (Appeal Book, CKF Inc. Response Letter, at 2641–2642), those that challenged the data (Appeal Book, Vinyl Institute Response Letter, at 2751–2752), those that raised a scientific reason (Appeal Book, Layfield Group Response Letter, at 2643–2644), and those that raised a specific scientific reason (Appeal Book, Gowling WLG Response Letter, at 2675–2676). The Minister decided that many of the objections were policy questions about the scope and nature of the regulatory response under section 93.
[203] A reasoned disagreement with a submission does not lead to the conclusion that the decision maker failed to "“grapple”" with the issue. Grappling does not mean acceding. The only way the MECC could better "“grapple”" with the objections would be for the Minister to agree that that the objections undermined the findings and conclusion of the Science Assessment. Here, the Minister noted the objections and explained, in respect of each, why he disagreed. This was a reasoned exercise of discretion considering the purpose and text of section 333. . Canada (Attorney General) v. Responsible Plastic Use Coalition
In Canada (Attorney General) v. Responsible Plastic Use Coalition (Fed CA, 2026) the Federal Court of Appeal allowed an appeal, this brought against a successful industry-brought JR against "the GIC’s [SS: Governor in Council's] order and the Minister’s [SS: of the Environment and Climate Change] decision to not constitute a" Board of Review respecting the CEPA listing of plastics as a toxic.
Here the court considers aspects of the CEPA in this context, particularly s.90 ['Regulation of Toxic Substances']:[1] The Governor in Council (GIC) issued an order under subsection 90(1) of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 (CEPA 1999, the Act) listing "“plastic manufactured items”" (PMI) on Schedule 1 of that Act as a toxic substance. The Order was published in the Canada Gazette Part II, Volume 155 Number 10 on May 12, 2021, contemporaneously with a regulatory impact analysis statement (RIAS). Two reports preceded the Order. The "“Science Assessment of Plastic Pollution”" (Science Assessment) and "“A Proposed Integrated Management Approach to Plastic Products to Prevent Waste and Pollution”" (Discussion Paper) were published October 7, 2020.
[2] Two days prior to the issuance of the Order, the Minister of Environment and Climate Change (MECC, the Minister) refused requests to establish a board of review (BOR) under section 333 of CEPA to further assess the environmental risks associated with PMI.
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[10] An order under subsection 90(1) (reproduced at Annex A) does not require that the substance, in fact, enter the environment. Nor does listing require a substance be harmful in all its manifestations. To list, the GIC must "“be satisfied”" that the criteria of section 64 are met, and section 64 only requires that a substance "“may”" enter the environment and "“may”" cause harm:"64 For the purposes of this Part and Part 6, except where the expression “inherently toxic” appears, a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that"
"64"" Pour l’application de la présente partie et de la partie 6, mais non dans le contexte de l’expression « toxicité intrinsèque », est toxique toute substance qui pénètre ou peut pénétrer dans l’environnement en une quantité ou concentration ou dans des conditions de nature à :"
"(a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity;"
"a)"" avoir, immédiatement ou à long terme, un effet nocif sur l’environnement ou sur la diversité biologique;"
"(b) constitute or may constitute a danger to the environment on which life depends; or"
"b)"" mettre en danger l’environnement essentiel pour la vie;"
"(c) constitute or may constitute a danger in Canada to human life or health."
"c)"" constituer un danger au Canada pour la vie ou la santé humaines." [11] The decision to list a substance and the decision as to how and to what extent, if any, to regulate it, are discrete steps; first under subsection 90(1) and subsequently, under subsection 93(1) (reproduced at Annex A). That is the scheme established by Parliament and it is, as I will explain, also the scheme as understood by the Supreme Court in R. v. Hydro-Québec, [1997] 3 S.C.R. 213, 1997 CanLII 318 (SCC) (Hydro-Québec).
[12] The Order itself, on its face, reflects the two-stage approach orchestrated by sections 90 and 93.
[13] The Order anticipates the winnowing or narrowing of a broad listing through a triage of risks. The Order enables "“[M]i""nisters to propose risk management measures under CEPA on certain ""plastic items to manage the potential ecological risks associated with those items ""becoming plastic pollution”" (RIAS, emphasis added). This is unsurprising given CEPA’s two-stage process, which demands exquisite particularization, if and when subsection 93(1) regulations are enacted.
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[26] The Order is simply an enabling provision. It imposes neither a prohibition nor a sanction. There are no consequences for anyone. The Order opens the door for Ministers to consider potential regulations, which, if enacted, must themselves meet constitutional and administrative law requirements. As the Supreme Court explained, the Order is the first of a two-stage legislative process, one which winnows "“from the vast number of substances”" to only those that are ultimately subject to the criminal law. La Forest J. captures the point well, noting that section 64 is simply "“a drafting tool”" (Hydro-Québec, at paras. 147, 142). Further, as I will explain later, Ministers may, in fact, decide not to regulate and elect for non-regulatory responses.
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[64] The primary purpose of CEPA, 1999 is to prevent pollution. This objective is enshrined in both the Act’s preamble and long title ("“An Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development”"), and is embedded throughout its provisions (see, for example, subsection 90(1.1), which requires that the Ministers prioritize pollution prevention actions).
[65] CEPA, 1999’s pollution prevention purpose effected a legislative shift away from managing pollution after it was created, which was the approach under its predecessor statute, the Canadian Environmental Protection Act, R.S.C. 1985, c. 16 (4th Supp.) (CEPA, 1988). CEPA, 1988, the version of the statute in force at the time of Hydro-Québec, itself was also implemented to address the failure of its precursor, the Environmental Contaminants Act, S.C. 1974-75-76, c. 72, to effectively identify toxic substances before they went into use in Canada (Hydro-Québec, at paras. 136, 145).
[66] The 1999 amendments expanded the range of substances canvassed by CEPA and introduced Part 4 "“Pollution Prevention,”" which aimed at fortifying CEPA’s ability to pre-empt environmental harm. The precautionary principle was also established as a binding administrative duty under paragraph 2(1)(a) and the "“ecosystem approach”" was embedded in a new paragraph of the preamble. The addition of "“biological diversity”" and "“environment”" in section 64 introduced the assessment of harm to ecosystems and reflected Canada’s increasing obligations under international environmental commitments (see, for example, the 2018 Ocean Plastics Charter, which commits G7 nations to greater plastics stewardship).
[67] Sections 64 and 68 of CEPA are intimately connected, with the latter providing an extensive, non-exhaustive list of tools the Ministers may use to assess the risk posed by a substance against the criteria outlined under section 64. If a substance causes, or may cause, harm within one or more of the categories described in section 64, the Ministers may recommend to the GIC that an order be issued under subsection 90(1) adding it to Schedule 1.
[68] Section 90 is an enabling authority that, as part of the decision-making machinery of government, opens the door for the possibility of enacting subsection 93(1) regulations. Non-regulatory tools are also available, such as codes of practice (ss. 54(1)(d), 55(1)), guidelines (ss. 54(1), 69), or pollution prevention plans (s. 56(1)). To date, only the Single-use Plastics Prohibition Regulations have been enacted in respect of PMI by order of the GIC under subsection 93(1).
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[71] An Order under section 90 may be made where the GIC "“is satisfied”" that one or more of the criteria under section 64 are met. The language of "“is satisfied”" is subjective: it requires that the GIC itself decide whether a substance is toxic prior to acting. As discussed by John Mark Keyes, subjective language in an enabling provision "“""augments the scope ""of executive legislative authority”" (Keyes, at 427–428; see also Paul Salembier, Regulatory Law and Practice, 3rd ed. (Toronto: LexisNexis, 2021) at 119–123). Even though the law reads the requirement of reasonableness into the language (i.e. the GIC must be "“reasonably satisfied”"), the text reinforces the discretionary nature of cabinet-level decisions.
[72] The words "“is satisfied”" are also a direction from Parliament that perfection is not the standard. To be satisfied does not mean to be certain.
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The decision to list and the decision to regulate are discrete steps
[79] The effect of the addition of a substance to Schedule 1 by subsection 90(1) is to enable the Ministers to further consider how to control the substance, including whether to enact regulations or non-regulatory responses. Determining "“appropriate preventative or control actions to manage the risk posed by a substance is a separate and distinct function from the assessment of whether a substance is toxic”" (Goodyear Canada Inc. v. Canada (Environment), 2017 FCA 149, at para. 42 [Goodyear]).
[80] As I have explained, the GIC’s decision to list a substance on Schedule 1 is distinct from the decision to regulate it: different considerations underpin each decision, necessarily contextualizing the reasonableness analysis. The decision to list a substance under subsection 90(1) flows from the GIC’s determination that it is toxic within the meaning of section 64, posing a risk of harm to human and/or environmental health. A subsequent decision to regulate a substance under section 93 is grounded in further investigation into how to manage the substance’s identified risks, and involves the balancing of policy-based considerations, such as the existence of cost-effective alternatives. This process is played-out in the Discussion Paper with respect to the Single-use Plastics Prohibition Regulations.
[81] Again, CEPA provides for non-regulatory tools that may be implemented to manage listed substances, such as codes of practice (ss. 54(1)(d), 55(1)), guidelines (ss. 54(1), 69), or pollution prevention plans (s. 56(1)). The Act also contemplates that ongoing research may reveal that a substance that was listed as toxic no longer meets the criteria for listing and should be deleted (s. 90(2)). For example, this provision was used to remove BNST from Schedule 1 by order published, with a RIAS, in the Canada Gazette on October 6, 2020.
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[87] Hydro-Québec found that section 11 (now section 64 under CEPA, 1999) outlines the types of risk targeted in subsequent assessments, "“weed[ing] out from the vast number of substances potentially harmful to the environment or human life those that pose significant risks of that type of harm” "(Hydro-Québec, at para. 147). Of note, La Forest J., writing for the majority, described this provision as "“""simply a drafting tool,”" which is not operative in and of itself, but which, when combined with section 68, creates a gateway to the process by which CEPA progressively whittles away the number of substances that could be "“candidates for regulations”" (Hydro-Québec, at paras. 141–142).
[88] When considered in light of section 93, the GIC’s listing under subsection 90(1) without proof that every manifestation of the substance is toxic in all circumstances, falls within a reasonable interpretation of the GIC’s authority under that provision. This makes sense. As I will explain later, there are many examples of substances that are listed as toxic, but which have safe uses or permissible concentration levels. Those limits may be fixed by regulations enacted under subsection 93(1).
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[93] It bears repeating that the respondents’ arguments compress the two steps of the regulatory process of CEPA into one – namely, the only manifestations of PMI that can be listed in an order are those that will, in fact, be regulated.
[94] The CEPA scheme does not work that way, never has, and for good reason.
[95] First, it would be absurd to require the Order to prejudge the outcome of the very downstream legislative processes that it contemplates and initiates. The mandatory public consultations associated with publication of regulations in Parts I and II of the Canada Gazette would be redundant. As the Discussion Paper illustrates, it is not until the consultation process is over that the GIC can, in fact, decide what will be regulated and how.
[96] Second, the two-stage nature of the scheme aligns with government’s duties under the Act. The precautionary principle provides that a lack of scientific certainty should not postpone the development of measures to prevent environmental degradation, and paragraph 2(1)(k) directs that substances are assessed expeditiously and diligently. A broad listing followed by narrow regulations allows for an early launch of discussions, both within and outside of government, about the nature and extent of the problem and what, if anything, to do about it. The Supreme Court has already told us that "“broad wording is unavoidable in environmental protection legislation because of the breadth and complexity of the subject and has to be kept in mind in interpreting the relevant legislation”" (Hydro-Québec, at para.134, citing Ontario v. Canadian Pacific, [1995] 2 S.C.R. 1031, 1995 CanLII 112 (SCC), at para. 43).
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[152] The final word as to why the respondents’ argument fails is best left to the Supreme Court itself, which said that "“[t]he effect of requiring greater precision would be to frustrate the legislature in its attempt to protect the public against the dangers flowing from pollution”" (Hydro-Québec, para. 134). Limiting the reasonableness of the Order to PMI that are ultimately subject to regulatory control is to impose a legal constraint inconsistent with the legislative scheme. . Canada (Attorney General) v. Responsible Plastic Use Coalition
In Canada (Attorney General) v. Responsible Plastic Use Coalition (Fed CA, 2026) the Federal Court of Appeal allowed an appeal, this brought against a successful industry-brought JR against "the GIC’s [SS: Governor in Council's] order and the Minister’s [SS: of the Environment and Climate Change] decision to not constitute a" Board of Review respecting the CEPA listing of plastics as a toxic.
The court considers whether plastics are a 'substance', here within the meaning of CEPA s.3(1) ["Interpretation - Definitions"]:III. Whether PMI are a "“substance”" within the definition of section 3
[54] The GIC’s determination that PMI are a "“substance”" within the meaning of paragraph 3(1)(f) was reasonable having regard to the text, context and purpose of CEPA.
[55] The Federal Court accepted the argument that, as "“plastic manufactured items”" is plural and the English version of paragraph 3(1)(f) references "“any manufactured item”" in the singular, PMI do not fit under the definition of "“substance”" since the term "“substance”" itself is singular. This led the Court to conclude that PMI as a category was broader than the definition of "“substance”" provided at paragraph 3(1)(f) of CEPA (Federal Court Decision, at para. 80).
[56] I do not agree.
[57] While "“""substance”" is defined in the singular in section 3 of the English version of CEPA to include "“any manufactured item,”" subsection 33(2) of the Interpretation Act, R.S.C. 1985, c. I-21 provides that "“[w]ords in the singular include the plural, and words in the plural include the singular.”" This basic rule of statutory interpretation stipulates that "“substance”" includes "“substances”" and "“item”" includes "“items.”" PMI fall within the definition of "“substance”" as the singular necessarily encompasses the plural and the plural the singular.
[58] This conclusion is reinforced by the French version of the statute, which speaks in the plural—"“""les articles manufacturés”" at paragraph 3(1)(f). The search for the common meaning between the two official language articulations, when guided by the Interpretation Act, leads to the conclusion that PMI readily fall within the ambit of "“substance”" (Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841, 1998 CanLII 828; Chrysler Canada Ltd. v. Canada (Competition Tribunal), 1992 CanLII 68 (SCC), [1992] 2 S.C.R. 394 at p.432 per McLachlin J., dissenting but not on this point).
[59] While the past practices of a decision maker are not determinative of reasonableness, they can be instructive (Canada v. Honey Fashions Ltd., 2020 FCA 64 at para. 38). A review of other substances listed on Schedule 1 supports the interpretation that the plural description of an item necessarily includes a singular iteration of the same substance. Numerous other items are listed in the plural on Schedule 1 including, for example, "“plastic microbeads,”" "“inorganic fluorides,”" and "“inorganic arsenic compounds.”"
[60] While this is sufficient to dispense with the matter, I note that this textual reading also aligns with a contextual and purposive understanding of subsection 3(1).
[61] With respect to context, PMI are also "“matter”" within the ambit of paragraph 3(1)(a). While "“matter”" is not defined in CEPA, its ordinary definition is wide and can include "“the substance of which a physical object is composed,”" "“a material substance that occupies space and has mass”" and "“a material substance of a particular kind or for a particular purpose”" (see Oxford Encyclopedic Dictionary / Merriam Webster definition of "“matter”").
[62] With respect to purpose, the objective of section 90(1) is to enable a threshold survey of numerous, diverse candidate substances for toxicity and potential regulation (Hydro-Québec, at paras. 146–147). To this end, it provides for the review of substances that pre-exist in Canada or are new, are living or inanimate; indeed, it expressly includes "“any distinguishable kind of…matter”" (CEPA, s. 3(1)). This aligns with the objective of enabling the detection of substances that may cause harm to health or the environment before it occurs. Given CEPA’s pollution prevention purpose, PMI fits comfortably within the definition of "“substance,”" particularly given that the RIAS’ definition of PMI mirrors paragraph 3(1)(f), except for its plurality:any items made of plastic formed into a specific physical shape or design during manufacture, and have, for their intended use, a function or functions dependent in whole or in part on their shape or design.
[RIAS, Appeal Book, at 788 (emphasis added).] [63] To conclude, the GIC’s finding that PMI are a "“substance”" falls squarely within the relevant constraints of the Act and aligns with the norms of statutory interpretation (Auer, at paras. 37, 39). The narrow, limited and overly technical reading accepted by the Federal Court does not.
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