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Environment - Evidence. 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 addresses evidence, and the approach to evidence, in this important case:[21] Under section 64 of CEPA, a finding that a substance is toxic arises from evidence of potential or actual harm to the environment. In the context of the harm that the GIC was considering, and to which the Order is directed, namely the harm and potential harm of plastic pollution generally, a requirement for quantitative testing to determine the chemical composition of a particular plastic is irrelevant. To put the matter bluntly, and as the Science Assessment and RIAS make clear, the chemical content of PMI is irrelevant to the sea otter choking on a plastic straw. The problem is the plastic item itself, not its chemistry. I also note, parenthetically, that on the evidence that was before the Federal Court, quantitative testing would be impractical and ethically reprehensible. No court should require that a decision maker engage in unethical testing to meet the threshold of reasonableness.
[22] There was overwhelming scientific evidence before the GIC supporting a finding that PMI were ubiquitous in the environment and, to mirror the language of section 64, may be present in such conditions and concentrations that they were, or could be, harmful to the environment or its biological diversity. Further, section 68 of CEPA (reproduced at Annex A) grants the Minister broad discretion to gather and evaluate data to determine whether it is harmful within the meaning of section 64. In urging a different or higher research standard, the respondents, again, substitute their own norms to assess the reasonableness of the Order.
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II. The facts before the GIC
[34] By way of summary, the RIAS and Science Assessment describe the ubiquitous and persistent nature of plastics in the environment and the varied, sometimes unknown, sources of plastic pollution. These documents explain that the problem targeted by the GIC in listing PMI as toxic was plastic pollution at large and speak to a near universal scientific consensus that macroplastic pollution (>5 millimeters (mm)) is an environmental hazard. The RIAS provides examples of types of macroplastic pollution that harm terrestrial and marine animals, and the Science Assessment describes how the harm is caused, whether through ingestion, suffocation, strangulation, internal hemorrhaging or disease transmission. Macroplastic pollution was also found to affect the integrity of animal habitats and breeding (RIAS, Appeal Book, at 789–790, 792–793; Science Assessment, Appeal Book, at 1049–1053).
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[140] CEPA provides a suite of tools that the Ministers may rely on in assessing a substance for its capacity to cause harm. Section 68 gives the Ministers "“broad powers”" to collect and generate data and conduct investigations relating to the features or effects associated with a substance (Hydro-Québec, at para. 143). It provides a list of approaches that may be used to generate and analyze data for the purposes of assessing toxicity and, to the extent that they are described, these methods are diverse and extensive. Section 68 does not limit the Ministers to any particular methodology or technique; "“investigations”" are not required to be qualitative or quantitative (see e.g. s. 68(a)); and the provision is explicitly not self-limiting, stating that these options are available "“without limiting the generality of the foregoing”" (ss. 68(a)).
[141] Neither sections 64 nor 90 impose a requirement for an analysis of the chemical content of individual plastics for listing. ....
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