Facts:
The Federal Government sought to address the growing issue of plastic pollution due to the negative effects on the environment and human health. The Governor-in-Council added “Plastic Manufactured Items” (“PMI”) to the list of toxic substances in Schedule 1 of the Canadian Environmental Protection Act, 1999.1 At the time, s. 90(1) of CEPA permitted the GIC to make an order adding “a substance” to the list of toxic substances “if satisfied that [the] substance is toxic”. CEPA contains definitions of “substance” and “toxic”.
When a substance is listed in Schedule 1, the GIC then has broad powers to make regulations regarding the substance. Because PMI was listed as a toxic substance, the GOC was able to adopt the Single Use Plastics Regulations2, prohibiting the manufacture, import and sale of six categories of single use plastics.
A group of applicants – consisting of a not-for-profit corporation comprised of companies from the plastics industry, chemical and plastic resin manufacturers, a petrochemical manufacturer, and the Provinces of Saskatchewan and Alberta – challenged the order adding PMI to the list of toxic substances.3 They brought an application for judicial review, arguing that the order was unreasonable because it did not comply with the CEPA.
Decision:
Application allowed (per Furlanetto J.).
The order to list PMIs in Schedule 1 of CEPA was unreasonable and therefore invalid.
All parties agreed that the order should be reviewed on the reasonableness standard. Given that the GIC is constrained by the statutory scheme, the central question is whether CEPA reasonably allows for the decision.
Courts should not lightly interfere with decisions of the GIC, who has broad authority to make regulations. However, a higher level of deference is not warranted in this case. Because the language of s. 90(1) of CEPA requiring the GIC to be satisfied that the substance is toxic is not discretionary, the order is not “quintessentially executive in nature” (para. 66). Further, more deference is not justified simply because the order aligns with the government’s broader policy goals regarding eliminating harmful plastic pollution.
A “substance” must comply with the provisions of s. 90(1) to be validly included on the list of toxic substances. The applicants argued that the order did not comply with the statutory provisions in two respects: (1) PMI are not a “substance”; and (2) PMI are not “toxic”.
PMI is a broad category of items that can vary in their form, shape, chemical composition, chemical structure, and physico-chemical properties. Therefore, they appear broader than the definition of “substance” in the act, which seems to refer only to singular items. However, this alone is insufficient to make the order unreasonable.
The true issue is whether PMI can be considered “toxic”. CEPA’s definition of “toxic” is broad and includes a substance that has or may have “an immediate or long-term harmful effect on the environment or its biological diversity”.4
The government’s own assessment indicated that not all plastic waste becomes harmful plastic pollution. It is insufficient to deem all PMI as toxic because all PMI have the potential to become plastic waste. PMI are extremely variable and only a small number of specific items have been identified in the scientific literature to have adverse effects on animals. From this, the GIC could not reasonably conclude that all PMI are toxic. PMI as a broad category includes some items with no reasonable apprehension of environmental harm.
As a result, it was unreasonable for the GIC to list the entire category of PMI as toxic in Schedule 1 in an unqualified manner.
The Court also found that the listing of PMI on Schedule 1 was unconstitutional as it goes beyond the federal criminal law power.
Commentary:
The impact of this decision extends beyond its effect on Canadians’ access to their beloved plastic straws.
This decision is an example of the Federal Court carefully scrutinizing the GIC’s regulation-making authority for compliance with the enabling statutory scheme. While the standard of review was reasonableness, the Court still examined the CEPA requirements and the evidence before the government in detail. It refused to show greater deference to the GIC simply because the order was an exercise of enacting subordinate legislation (similar to enacting regulations), or because it furthered the government’s public policy objectives. This recognizes a robust role for the courts to ensure that subordinate legislation complies with the strict requirements of the enabling statutory regime.
In addition, the decision demonstrates how the government can run into trouble when it acts too broadly in exercising its power to enact regulations or similar subordinate legislation. There was little doubt in the case, and from the scientific evidence before the GIC, that certain PMI and single use plastics can be harmful to the environment and human health. Further, the language of CEPA is incredibly broad in how it defines both “substance” and “toxic”, giving the executive wide-ranging powers to regulate environmentally harmful substances. Nevertheless, the government still overstepped its statutory bounds in this case by adding all PMI to the list of toxic substances. The irony is that the government’s subsequent actions – enabled by the impugned order – was only to regulate the manufacture and sale of a much smaller category of single use plastics. Thus, the listing of all PMI in Schedule 1 was unnecessary to the government’s objective of addressing the subset of harmful PMI. We can expect the likely result of the case to be a narrower order listing a more carefully defined category of plastic substances to be regulated.
Ultimately, this case serves as an important reminder to governments crafting regulations to ensure they are carefully crafted and not broader than permitted by the enabling legislation. Otherwise, the courts will find them unreasonable.