[1] This is an application for judicial review [Application] of the Federal Government’s decisions relating to the addition of “Plastic Manufactured Items” [PMI] to the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA]. Subsequent to the initial hearing of this application, Schedule 1 was repealed and re‑enacted with all of its same listed substances, pursuant to Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act, SC 2023, c 12 [Bill S-5]. Although this Application involves the Order (defined below) that enabled PMI to be listed on Schedule 1 as it existed pre re-enactment, for reasons set out below I find that the remedies arising from this Application nonetheless remain of value to an existing controversy between the parties and that the amendments under Bill S-5 have not rendered this Application moot. The analysis that follows accordingly considers all issues argued.

[2] The Applicant, Responsible Plastics Use Coalition [RPUC], is a not-for-profit corporation comprised of companies from the plastic industry who do business in Canada. The Applicants Dow Chemical Canada ULC and Nova Chemicals Corporation are chemical and plastic resin manufacturers and distributers, and the Applicant, Imperial Oil, by its Managing Partner, Imperial Oil Limited, is a manufacturer of petrochemicals from which plastic resins are made.

[3] The Applicants raise two challenges in this Application. First, the Applicants assert that the Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999, registered on April 23, 2021, and published on May 12, 2021, in the Canada Gazette Part II, Vol. 155, Number 10 [Order] was unreasonable as it was not a proper use of the Administrator-in-Council’s/Governor-in-Council’s [GIC’s] authority and does not comply with the statutory scheme under CEPA. They contend that the listing for PMI is too broad, that PMI is not a “substance” or “class of substances” that could fall under the List of Toxic Substances in Schedule 1 of CEPA, and that the proper scientific analysis and risk assessments were not completed to demonstrate that PMI are toxic. The American Chemistry Council, American Fuel & Petrochemical Manufacturers, and Plastics Industry Association, who have intervener status [Industry Interveners], assert that the Canada-United States-Mexico Agreement [CUSMA] and the Technical Barriers to Trade Agreement [TBT], to which Canada is a signatory, ought to inform the Court’s interpretation of the requirements of finding a substance toxic under CEPA.

[4] The Applicants further contend that the decision of the Minister of Environment and Climate Change [MECC] to deny requests for a Board of Review to assess the alleged risks associated with PMI, and its proposed addition to Schedule 1 [BOR Refusal] was unreasonable. Pursuant to rule 302 of the Federal Courts Rules, SOR/98-106, and the consent of the parties, the Order and BOR Refusal collectively comprise the decisions under review for the purposes of this Application.

[5] Second, the Applicants, the Attorney General for the Province of Saskatchewan [Saskatchewan] and the Attorney General for the Province of Alberta [Alberta] argue that the Order is unconstitutional. They assert that it falls outside of federal criminal law power [CLP]. Saskatchewan and Alberta participate in response to a Notice of Constitutional Question issued by the Applicants.

[6] The Attorney General of Canada [AGC] is the named Respondent on behalf of the GIC who has statutory authority under CEPA to make orders adding substances to Schedule 1. The MECC and the Minister of Health [collectively, the Ministers] jointly administer CEPA.

[7] The Respondents assert that the Order was reasonable. They argue that the only administrative constraint on the GIC’s ability to make the Order was the statutory scheme of CEPA and that the GIC acted in accordance with their power under CEPA and its overarching purpose. The Respondents assert that Canada’s trade agreements are irrelevant and outside the jurisdiction of the Federal Court on this Application.

[8] The Respondents further argue that the BOR Refusal was reasonable, as the objections made did not cast doubt on the core scientific findings supporting the recommendation for the Order. The Respondents contend that the Order is a valid exercise of Parliament’s CLP and that the Applicants’ constitutional arguments are premature.

[9] Environmental Defence Canada Inc. and Oceana Canada [EDCOC] and Animal Justice are also interveners in the Application who oppose the Applicants’ arguments. EDCOC additionally argues that the Order is constitutional under the national concern doctrine, otherwise known as the Peace Order and Good Government [POGG] principle. The Applicants, Saskatchewan, and Alberta assert that EDCOC cannot raise POGG through its intervention, as the Respondents did not pursue this issue in argument.

[10] As set out further below, PMI was too broad to be listed on the List of Toxic Substances in Schedule 1 and this breadth renders the Order both unreasonable and unconstitutional. The GIC acted outside of their authority and the scheme of the relevant provisions of CEPA in listing the broad category of PMI on Schedule 1. Similarly, the Order exceeded beyond the CLP as there is no reasonable apprehension that all listed PMI are harmful. The Order extends beyond the guardrails established in R v Hydro-Quebec, 1997 CanLII 318 (SCC), [1997] 3 SCR 213 [Hydro-Quebec] for rendering the scheme under CEPA within the CLP.

[11] It is undisputed that plastics are ubiquitous. Plastics have been around for over 50 years and comprise manufactured items that include final products, as well as components of products that are found in every facet of everyday life and in industry sectors as diverse as packaging, construction, automotive, electronic equipment, textiles, white goods, and agriculture.

[12] Plastic waste management (the disposal and recycling of plastics) and plastic pollution (plastics that remain in the environment and are not disposed of through a waste management system) have been the subject of growing environmental concern and government focus since at least 2016.

[13] In 2018, the Canadian Council of Ministers of the Environment from all federal, provincial and territorial governments developed a Canada-wide Strategy on Zero Plastic Waste, which recognized plastic pollution as a serious and “exponentially increasing global environmental problem”. It sought to put a scheme in place to achieve its goals by 2030.

[14] Environment and Climate Change Canada [ECCC] commissioned Deloitte and Cheminfo Services Inc to conduct an economic study on the quantities, uses, and end-of-life management of plastics in the Canadian economy, which was published in 2019 as the “Economic Study of the Canadian Plastic Industry, Markets and Waste” [Deloitte Study]. The Deloitte Study opined that a zero plastic waste economy would deliver significant benefits to Canada, but could not be achieved without concurrent, strategic intervention by government, industry stakeholders, and the public across each stage of the plastic lifecycle. The Deloitte Study estimated that 29 kilotonnes of plastic waste (which represented 1% of all plastic waste generated) was released into the environment in Canada in 2016, while 86% was maintained in landfills.

[15] In February 2020, the Ministers published a draft report titled “Science Assessment of Plastic Pollution” in the Canada Gazette, Part I for public comment, which was published in final version on October 7, 2020 [Science Assessment]. The executive summary of the Science Assessment outlined its objective as:

[16] The Science Assessment constituted a review of over 600 scientific publications. It looked at the effects of both macroplastics (plastics greater than 5mm) and microplastics (plastic particles less than or equal to 5mm in size) on the environment and on human health.

[17] The Science Assessment recognized a lack of “standardized methods for monitoring microplastics and characterizing the environmental and human health effects of plastic pollution, as well as inconsistencies in the reporting of occurrence and effects data in the scientific literature.” It found that macroplastics had been demonstrated “to cause physical harm to environmental receptors on an individual level and to have the potential to adversely affect habitat integrity” and that “organisms had been shown to ingest macroplastics and to become entangled in macroplastics.” The report “anticipated that the frequency of occurrence of physical effects on individual environmental receptors [would] continue to increase if current trends continue[d] without mitigation measures”, and recommended action “to reduce macroplastics and microplastics that end[ed] up in the environment.”

[18] At the same time that the Science Assessment was published, the MECC also published a discussion paper entitled “A Proposed Integrated Management Approach to Plastic Products to Prevent Waste and Pollution” [Discussion Paper]. The purpose of the Discussion Paper was to seek input on an integrated management approach to plastics, including their regulation under CEPA. The Discussion Paper outlined a proposed framework for managing single-use plastics [SUP], which involved grouping SUP items into categories and identifying those that were either environmentally problematic or problematic from a “value recovery” perspective (i.e. low recycling rate), and which performed essential functions or lacked viable alternatives. The Discussion Paper recognized the Government of Canada’s commitment to ban or restrict harmful SUP items “where warranted and supported by science” and identified six plastic items that met the requirements of a ban or a restriction (plastic checkout bags, stir sticks, six-pack rings, cutlery, straws, and food service ware made from problematic plastics).

[19] In further conjunction with the publication of the Science Assessment, on October 10, 2020, the Government of Canada published a proposed order and preliminary regulatory impact analysis statement [RIAS] in the Canada Gazette, Part I, giving notice of the GIC’s intention to make an order under section 90 of CEPA to add PMI to the List of Toxic Substances in Schedule 1. The preliminary RIAS provided a 60-day public comment period.

[20] From November 2020 to January 2021, the Ministers engaged in consultations regarding the proposal and solicited feedback from stakeholders. During the consultation process, 17 civil society organizations, one territorial government, two local governments, and one organization representing municipalities indicated support for the proposed order. However, 123 industry associations or companies, two provincial governments, and one foreign government indicated opposition to the proposed order. Several industry stakeholders argued that CEPA was not the appropriate tool to manage plastic waste, suggesting instead that new legislation should be created, or that the federal government should let provincial and territorial governments manage the issue.

[21] During November and December 2020, 60 Notices of Objection were filed under section 134 of CEPA, and 52 requests were made for a Board of Review [BOR] to be established pursuant to section 333 of CEPA.

[22] On April 21, 2021, the Ministers denied all requests for a BOR. The Order was subsequently registered on April 23, 2021, and published in the Canada Gazette, Part II, on May 12, 2021.

[23] The RIAS identified the objective of the Order as enabling “the ministers to propose risk management measures under CEPA on certain [PMI] to manage the potential ecological risks associated with those items becoming plastic pollution.” The RIAS referred to “macroplastic pollution as pos[ing] an ecological hazard, including physical harm, to some animals and their habitat” and stated that “all plastic manufactured items” had the potential to become plastic pollution.

[24] The RIAS referred to data from the Deloitte Study on the plastic market sectors, the percentage of end-use plastic in 2016 by sector and the corresponding amount of plastic waste generated by sector. The RIAS also referred to the state of the science with respect to the effects of plastic pollution on the environment and human health as reported in the Science Assessment and the recommendations made in the Science Assessment.

[25] The RIAS acknowledged the opposition to the Order and outlined the departments’ response to recurrent criticism from stakeholders, including with respect to the processes followed and screening assessments conducted, stating that:

[26] There are two preliminary issues raised by the Respondents on the Application: the first is an assertion of mootness arising from changes that were made to CEPA after the Application was heard, and the second relates to the evidence that should be considered by the Court on the Application.

[27] Shortly after the Application was heard, Bill S-5 received Royal Assent. As a result of Bill S-5, CEPA was amended and Schedule 1 of the List of Toxic Substances was repealed and re-enacted. The new Schedule 1 now has two parts: Part 1 and Part 2. All of the substances that were listed on Schedule 1 of the List of Toxic Substances are on the new Schedule 1 in one of the two parts. PMI is listed under Part 2 of the re-enacted Schedule 1.

[28] Upon Royal Assent of Bill S-5, the parties indicated by letter their agreement that the Court could and should continue to decide the Application, either because it was not moot (the Applicants’ submission) or because the Court may exercise its discretion to do so (the Respondents’ submission). However, in view of the re-enactment of Schedule 1, the parties requested that they be given the opportunity to provide further submissions as to the impact of Bill S-5 on the Court’s pending decision. The parties proposed a schedule which allowed for further submissions to be provided in writing. The schedule provided for initial representations from the Respondents, followed by representations from the Applicants and interveners Alberta and Saskatchewan, which would then be followed by further reply submissions from the Respondents. A further hearing in respect of the submissions was also scheduled and took place on September 15, 2023.

[29] In the submissions, the Respondents maintained that the Application was moot, but that this was one of the rare and exceptional circumstances where the Court could nonetheless exercise its discretion to decide the pending issues. The Applicants, Alberta and Saskatchewan submitted that the Application was not moot and that the only issue arising from Bill S-5 was one of remedy.

[30] A proceeding is moot where there is no longer any live controversy between the parties: Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 [Borowski] at p 353. While the general policy is that the Court will decline to decide a case that is moot, the Court maintains discretion to depart from this policy where other factors are satisfied; such as, where collateral consequences result in an adversarial context that prevails, where judicial economy favours a decision and resolution of an issue is in the public interest, and where rendering a decision does not depart from the Court’s traditional role: Borowski at pp 358-363.

[31] The parties disagree as to whether a live controversy remains. The Respondents assert that the controversy in this application centers around the Order and listing of PMI on Schedule 1 to the List of Toxic Substances, which is now repealed. Thus, even if the Order is found invalid or unconstitutional it will not affect the listing of PMI on the new Schedule 1 as Bill S-5 is now the enabling legislation for the listing. The Applicants argue that a finding that the Order was invalid and/or unconstitutional on the date it was made could nonetheless impact the listing of PMI as PMI would not be listed on the new Schedule 1 if it had not been listed on Schedule 1 of the List of Toxic Substances. They assert that the underlying constitutional question remains unchanged by the manner of enactment − that is, whether the listing is a valid exercise of the CLP. Thus, a finding that the Order (and its listing on Schedule 1 of the List of Toxic Substances) was ultra vires has practical utility on the retention of PMI on the current Schedule 1. Similarly, a finding that the Order was void as of the day it was made on administrative law grounds, will impact whether PMI should be retained on Schedule 1 or whether it should be deleted pursuant to the transitional provisions of Bill S-5 or under the GIC’s authority.

[32] I agree that the challenges to the Order raised in this Application remain relevant to the listing of PMI on the new Schedule 1. While Parliament could have chosen to add PMI to Schedule 1 for different reasons, the logical inference from the transposition of the complete List of Toxic Substances from Schedule 1 under CEPA to Schedule 1 enacted by Bill S-5 is that PMI would not be listed on the new Schedule 1 if it were not listed on Schedule 1 of the List of Toxic Substances. A challenge to the legal foundation for listing PMI on Schedule 1 of the List of Toxic Substances therefore may be relevant to its listing on the new Schedule 1. The Application is not moot.

[33] However, even if I were to move on to the second stage of the Borowski analysis, there is no dispute between the parties that the issue in this Application should be determined as a decision here may have a consequential impact on the ongoing challenge in this Court to the Single Use Plastics Regulations, SOR/2022-138 [SUP Regulations]. The SUP Regulations prohibit the manufacture, import and sale of six categories of single use plastics. The adoption of the SUP Regulations was enabled by the listing of PMI on Schedule 1 of the List of Toxic Substances and the GIC’s regulation-making power under section 93 of CEPA. RPUC is also an Applicant in the SUP challenge (Petro Plastics Corporation Ltd et al v Canada (Attorney General), Court File No. T-1468-22 [Petro Plastics]). In Petro Plastics, the applicants challenge the SUP Regulations on administrative and constitutional grounds. As agreed by the parties, the outcome of this application may have direct practical implications on the Petro Plastics proceeding. The impact on Petro Plastics along with the time and expense already expended on this application justifies a decision being rendered on the pending issues.

[34] Accordingly, I will go on to consider the issues as argued before me and the analysis that follows relates to CEPA and its Schedule 1 as it existed prior to the amendments imposed by Bill S-5 unless stated otherwise.

[35] As a further preliminary matter, the Respondents question whether certain evidence submitted by the parties on the Application can be considered by the Court.

[36] As the Order in issue is an order of the GIC, the record is subject to Cabinet privilege and the Certified Tribunal Record [CTR] before the court is what was before the Ministers. In addition to the CTR, each side also filed additional fact and expert evidence.

[37] The Applicants filed three fact affidavits:

[38] The Respondents do not appear to dispute that this background evidence is properly before the Court.

[39] The Applicants also provided two expert affidavits:

[40] The Respondents provided three affidavits, including a fact affidavit from a paralegal with the Department of Justice who attached information relating to RPUC from its website and information transmitted by its members. The Respondents also provided the following additional evidence:

[41] The evidence record was the subject of two lengthy motions to strike that resulted in the removal of those portions of the Gobas and Granville affidavits that provided legal opinions regarding the interpretation and application of the relevant provisions of CEPA, and removal of portions of the Kruidenier and Rochman affidavits that were not relevant or were found to be aimed at improperly advancing or bolstering the decisions under review. The Order and Reasons relating to the Gobas and Granville affidavits provided the following directions relating to their amendments (Responsible Plastic Use Coalition v Canada (Environment and Climate Change), 2022 FC 377):

[42] At the hearing of the Application, the Respondents argued that the Applicants’ expert evidence should not be used by the Court as it is not evidence that was before the decision‑makers and was proffered to have the Court second-guess the scientific methodologies that were used to support the decisions.

[43] The general rule on judicial review is that absent limited exceptions, the evidentiary record is restricted to the material that was before the decision-maker. Evidence that was not before the decision-maker, or that could have been placed before the decision-maker, that goes to the merits of the matter is not admissible: Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at para 19; Bernard v Canada (Revenue Agency), 2015 FCA 263 [Bernard] at para 13; Delios v Canada (Attorney General), 2015 FCA 117 [Delios] at para 42; Galderma Canada Inc v Canada (Attorney General), 2022 FC 19 at para 12. The rationale behind the general rule is to promote judicial efficiency and to recognize the differing roles of administrative decision-makers and reviewing courts: Bernard at paras 15-16.

[44] As one of the recognized exceptions, general background information that will assist the Court in understanding the issues in the judicial review may be permissible as long as it does not include additional evidence, argument, or comments on the evidence before the decision‑maker: Access Copyright at para 20a; Delios at paras 44-48; Bernard at paras 20-23. A second exception allows for evidence highlighting the complete absence of evidence on a conclusion reached by the decision-maker: Access Copyright at para 20c; Bernard at para 24; Re Keeprite Workers’ Independent Union et al and Keeprite Products Ltd (1980), 1980 CanLII 1877 (ON CA), 29 OR (2d) 513 (CA).

[45] The Applicants assert that the Granville and Gobas affidavits provide useful background information about toxicology, plastics, and past practice relating to the assessment of substances listed on Schedule 1. I agree; however, in my view, this presents a fine line. As stated in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paragraph 83 (and recently repeated in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason] at para 62), opinions that ask the court to conduct a de novo analysis using a different yardstick extend beyond the bounds of reasonableness review:

[46] As set out further below, to the extent I rely on the Granville and Gobas affidavits, I do so only to refer to its factual background content, including the government documents and background regarding the substances listed on Schedule 1 and evaluated under Part 5 of CEPA. This is rather than for any opinions that may lend to creating a new yardstick for independent evaluation of whether PMI is properly listed or whether a Board of Review should have been constructed. I have approached the Kruidenier and Rochman affidavits with these same principles in mind.

[47] The following issues are raised by this Application:

[48] The parties do not dispute that the decisions are to be reviewed on the reasonableness standard as considered within the particular context in which the decisions were made. As explained in Vavilov at paragraph 89:

[49] In this case, the Ministers and GIC are constrained by the statutory scheme of CEPA. The role of the Court is to ask if the enabling legislation construed reasonably allows for the particular decision. This requires looking at the text, context and purpose of the legislation. As set out at paragraphs 108 to 110 of Vavilov:

[50] The approach set out in Vavilov was applied in Portnov v Canada (Attorney General), 2021 FCA 171 and Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 [Innovative Medicines], both of which involved challenges to decisions of the GIC to make regulations as a species of administrative decision-making. In Innovative Medicines, the Federal Court of Appeal emphasized at paragraphs 39 and 40 the importance of looking at the limiting statutory language when considering the regulation-making power of the GIC:

[51] For constitutional challenges and questions relating to the division of powers, the parties agree that an exception to reasonableness review applies and the standard of review is correctness: Vavilov at paras 17, 55; Mason at paras 41-42.

[52] As a preliminary matter, the Respondents note that the parties do not agree as to what constitutes the appropriate context for reasonableness review of the Order.

[53] The Respondents assert that the Order was a policy decision made by the GIC on behalf of the government, after consultation and by weighing the interests of stakeholders, and in furtherance of its overall objectives to address plastic pollution. They refer to the “Instrument choice” section of the RIAS, which states that:

[54] The Respondents argue that taking away the GIC’s authority to make such an order limits the options open to government. They contend that the Court is not free to decide that the Order is unreasonable because it disagrees with the policy choice it embodies. Rather, the role of the Court in this context is limited to assessing whether there was authority within the governing statute for the GIC to make the Order it made.

[55] The Applicants assert that the Order was not discretionary in the ordinary sense nor is the policy content of the Order itself so great as to justify any higher level of deference.

[56] While the RIAS sets out certain policy goals of the government in instituting the Order, the authority of the GIC arises from CEPA itself and its statutory scheme. Thus, to address this issue, I will start with a review of the scheme and relevant provisions of CEPA.

[57] The full title of CEPA is “An Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development.” The Declaration of CEPA states that its primary purpose is “to contribute to sustainable development through pollution prevention.”

[58] CEPA was amended in 1999 to include, inter alia, the following preamble clauses which emphasize the Government of Canada’s commitment to pollution prevention and operating under the precautionary principle, and its recognition of the importance of the ecosystem:

[59] Section 2 of CEPA sets out certain mandatory duties of the GIC in its administration of CEPA, including as relevant to this Application, the GIC’s duty to:

[60] CEPA is organized into twelve different parts: Part 4 deals with “Pollution Prevention”, Part 7 deals with “Controlling Pollution and Managing Wastes”, and as relevant to this Application, Part 5 deals with “Controlling Toxic Substances”, which includes maintaining Schedule 1.

[61] Through Part 5, CEPA ensures that no new substances are introduced into the Canadian marketplace before they have been assessed to determine whether they are toxic or capable of becoming toxic to the environment or human health. It provides “a procedure to weed out from the vast number of substances potentially harmful to the environment or human life those only that pose significant risks of that type of harm.”: Hydro-Quebec at para 147.

[62] Pursuant to subsection 90(1) of CEPA (as it read at the time of this Application): “...the Governor in Council may, if satisfied that a substance is toxic, on the recommendation of the Ministers, make an order adding the substance to the List of Toxic Substances in Schedule 1” [emphasis added]. A substance had to comply with subsection 90(1) to be included on the List of Toxic Substances in Schedule 1.

[63] Once a substance was listed on the List of Toxic Substances in Schedule 1, section 93 allowed the GIC, on recommendation of the Ministers, to broadly make regulations with respect to the substance, including (as this section read at the time of the Application):

[64] The scheme under CEPA is thus binary. First, the GIC must determine whether a substance is toxic such that it can be listed on Schedule 1; second, and only after a substance is listed, does the GIC have broad authority to regulate the substance.

[65] To add something to Schedule 1 of CEPA, therefore, the GIC must be satisfied that it is a substance or class of substances that is toxic, within the meanings prescribed by CEPA. Subsection 90(1) provides no discretionary language with respect to these requirements.

[66] The Order, which was made pursuant to subsection 90(1), cannot be described as “quintessentially executive in nature”, nor as being grounded on “polycentric, subjective or indistinct criteria” that are based on “the administrative decision makers’ view of economics, cultural considerations and the broader public interest”: Entertainment Software v Society of Composers, Authors, and Music Publishers of Canada, 2020 FCA 100 at para 28. I agree with the Applicants, the fact that the Order is aligned with the government’s policy motivations does not mean that it justifies a higher level of deference.

[67] The Applicants argue that PMI as a broad category meets neither of the requirements of subsection 90(1) of CEPA. As such, the Order is unreasonable because it does not comply with the statutory scheme under CEPA and was not a proper use of the GIC’s authority. The Respondents argue that it was within the GIC’s authority to add PMI to Schedule 1 and that the choice to list PMI as a toxic substance was reasonable when considered within the text, context and purpose of CEPA and the provisions at issue.

[68] Subsection 90(1) of CEPA permits the addition of a “substance” to Schedule 1, and by virtue of subsection 3(3), a class of substances. “Substance” and “class of substances” are defined in subsection 3(1) of CEPA (as it read at the time of the Application) as follows:

[69] The RIAS uses the language of paragraph 3(1)(f) to define PMI as “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. They can include final products, as well as components of products.”

[70] The Applicants argue that PMI are neither a substance nor a class of substances for the purposes of CEPA, but rather a broad category containing thousands of disparate items. They assert that the definition of substance in paragraph 3(1)(f) of CEPA is in the singular; thus, it only contemplates single specific items − i.e., fishing nets or six-pack rings.

[71] They further assert that PMI do not have the requisite connection to form a class of substances as the properties and attributes of PMI vary widely. They point to, inter alia, statements made by Dr. Rochman that plastics are “made from many, many different polymers and they have different chemical additives”, that they have different shapes, designs, functions, chemical structures, and toxicological or hazard profiles (Rochman cross examination at pp 81, 87-88), and that plastic pollution is “a complex mixture of plastic materials ranging in product type, polymer type, size, chemical additive mixtures, shape, and color” (Rochman affidavit at para 22).

[72] The Respondents concede that they are not asserting that PMI is a class of substances. They accept that PMI can vary in their form and shape, chemical composition, chemical structure and physico-chemical properties and are used for a variety of purposes.

[73] Rather, they contend that PMI satisfies the definition of a “substance” as “substance” is intended to be in the plural. The Respondents refer to subsection 33(2) of the Interpretation Act, RSC 1095, c I-21, which states that: “[w]ords in the singular include the plural, and words in the plural include the singular” and to the French text of paragraph 3(1)(f), which they assert indicates that this paragraph was intended to apply in the plural.

[74] The Applicants take issue with each of these arguments. They assert that subsection 33(2) of the Interpretation Act must be read together with its subsection 3(1), which states that “[e]very provision of the Act applies, unless a contrary intention appears, to every enactment”. In this case, the Applicants assert, and I agree, CEPA uses plural and singular definitions intentionally, including within the definition of subsection 3(1) of CEPA.

[75] Further, even if paragraph 3(1)(f) is read in the plural, as consistent with the use of the article “les” in the French language version, it does not take away from the singular use of the word “substance” in the preamble of the definition, which is consistent in both languages and must be read together with paragraph 3(1)(f). In either case, it is my view that the intended reading of paragraph 3(1)(f) is that any manufactured item comprised of organic or inorganic material that is formed into a specific physical shape or design during manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design, can be included in the definition of a substance.

[76] The Applicants argue that to read “substance” as including a broad category ignores the statutory context and purpose of the language of CEPA. The scheme of CEPA is clear: an individual item is a substance, whereas multiple items can only be added where they are a class of substances and share similar properties. If otherwise, these definitions would be redundant, and/or inconsistent, which runs contrary to principles of statutory interpretation: Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at para 37, citing Québec (Attorney General) v Carrières Ste-Thérèse Ltée, 1985 CanLII 35 (SCC), [1985] 1 SCR 831 at p 838.

[77] They assert that an interpretation of substance that would include PMI is contrary to the scheme of Part 5, which requires that the substances and classes of substances listed on Schedule 1 be identified with precision to enable an assessment of toxicity and risk assessment. As contended by the Applicants “[i]t is not possible to conduct a single risk assessment for thousands of disparate products ranging from bottle caps to railway cars.” Such assessments can only be done if substances are listed one at a time, or if there is a class of substances that share similar chemical, physico-chemical or toxicological properties, or similar types of use. They point to the existing list of substances on Schedule 1, which they assert follow this scheme.

[78] The Respondents argue that the Applicants’ view is overly technical and at odds with the purpose of CEPA, and its aim to provide the government with robust and efficient tools to prevent pollution. It submits that if each item or type of plastic was its own substance it would be subject to its own assessment causing significant delay to controlling plastic pollution in contradiction of the precautionary principle and the observation in the RIAS that “[a]ll plastic manufactured items have the potential to become plastic pollution.”

[79] EDCOC makes similar submissions. It asserts that given the centrality of the precautionary principle, the Court should interpret CEPA in a “large and liberal manner that most fully protects the environment and human health.” It notes that this is consistent with the Supreme Court’s recognition that environmental legislation is entitled to a generous interpretation as it is remedial legislation that is intended to respond to a wide variety of dangerous scenarios: Castonguay Blasting Ltd v Ontario (Environment), 2013 SCC 52 at para 9.

[80] In my view, these arguments are intimately linked to the further issue of whether the GIC acted outside their authority because the second requirement of subsection 90(1) had not been satisfied, in that it cannot be demonstrated, and was not demonstrated, that all PMI were toxic. While I agree that PMI as a category appears broader than the definition of substance in paragraph 3(1)(f) and the existing substances that appear on Schedule 1, on its own this is insufficient, in my view, to render the Order unreasonable. Rather, in my view, the second requirement of subsection 90(1) must be considered before any determination can be made as to whether the Order is contrary to subsection 90(1) and to the scheme of CEPA.

[81] Section 64 of CEPA outlines when a substance will be considered toxic for the purpose of Part 5 of CEPA:

[82] As provided in the RIAS, in listing PMI on the List of Toxic Substances, the Ministers were satisfied that PMI met the ecological criterion for a toxic substance set out in paragraph 64(a). The RIAS refers to the current science evidence as confirming that “plastic pollution was ubiquitous in the environment” and that “macroplastic pollution pose[d] an ecological hazard, including physical harm, to some animals and their habitat.” The RIAS premises its findings on the background that “all plastic manufactured items have the potential to become plastic pollution.”

[83] For the purpose of assessing whether a substance is toxic or is capable of becoming toxic, section 68 of CEPA as it read at the time of the Application provided that either Minister may:

[84] There is no dispute that the Science Assessment serves as the foundation for the Ministers’ recommendation that PMI met the ecological criterion for a toxic substance under paragraph 64(a) of CEPA. The RIAS refers to the Science Assessment as being made in accordance with section 68 of CEPA for the purpose of “summariz[ing] the current state of the science regarding the potential impacts of plastic pollution on the environment and human health, as well as to inform future research and decision-making on plastic pollution...” The

[85] The Applicants assert that the text, context and purpose of CEPA indicate that Parliament did not intend to confer on the GIC the power to extrapolate potential harm and to label items toxic unless they met the requirements of section 64. They argue that the Government had no evidentiary foundation for concluding that all PMI are toxic. Simply stated, they say that what was listed was not studied and what was studied was not listed. They assert that only twelve items and certain types of litter were identified in the Science Assessment as causing environmental harm, namely “lost and abandoned fishing gear (rope, line, nets), bags, straws, cable ties, packaging bands (i.e., six-pack rings), bottle caps, balloons, sheets/films (for corals, sponges and plants), and one large plastic bowl.” However, the Order impermissibly extrapolates this evidence to cover the entire category of PMI. They argue that the Government failed to characterize exposure levels and to conduct a risk assessment to evaluate toxicity of all PMI. They assert that exposure levels need to be evaluated as a measure of the population; otherwise, environmental harm cannot be established.

[86] The Granville affidavit attaches ECCC’s guidance document entitled “Overview of the Ecological Assessment of Substances under the Canadian Environmental Protection Act, 1999” [EA Guide], which states that “[a] substance is considered toxic if, after rigorous scientific assessment and based on decisions taken under federal programs, it either conforms or is equivalent to “toxic” as defined in the Canadian Environmental Protection Act (CEPA).”

[87] The EA Guide outlines the steps in an ecological risk assessment as including both an exposure characterization – i.e., “[t]he ways in which a substance may enter the environment, what happens to the substance in the environment, and how non-human organisms may be exposed to the substance,” and a hazard characterization of “the potential effects of the substance on the environment or its biological diversity.” An ecological risk characterization is then conducted “integrating information on its effects and the potential for exposure in Canada” along with an uncertainty analysis.

[88] The EA Guide states that the main objective of quantifying exposure is to “determine the concentrations of the substance in the media in which it is expected to reside following release to the environment.” The EA Guide outlines different procedures that may be used to quantify exposure, depending on the information available for the substance, including when available, measured data from monitoring studies in Canada, or other countries, or calculations made “at the local scale using models based on generic environments to which site-specific information may be incorporated.”

[89] The EA Guide explains that the lines of evidence explored are considered using a weight‑of-evidence approach that considers multiple sources of information and lines of evidence. The EA Guide states that “the ecological assessment and its conclusions regarding the ecological risks posed by the substance provide the scientific foundation for recommending whether or not the substance meets the criteria set out in Section 64 of CEPA 1999.”

[90] Mr. Granville reviews the approach taken to risk assessments for the substances that were listed on Schedule 1 when PMI was listed. He explains that the list at that time included 152 entries (two of which were blank). This included nine substances that were formerly regulated by the Environmental Contaminants Act, RSC 1985, c E-12 and the Clean Air Act, RSC 1985, c C‑32 that were rolled onto Schedule 1 when CEPA 1988 (CEPA 1999’s predecessor) was enacted, as well as 135 “Existing Substances” (substances that were in commerce prior to the implementation of CEPA 1988 that are listed on Canada’s Domestic Substances List [DSL]) and six “New Substances” that were not listed on the DSL and were assessed for toxicity prior to their introduction into commerce.

[91] New substances are assessed pursuant to a notification and assessment process set out in sections 83 and 108 (for organisms) of CEPA of under the New Substance Notification Regulations (Chemicals and Polymers), SOR/2005-247 and the New Substance Notification Regulations (Organisms), SOR/2005-248. Existing Substances are subject to a screening assessment process set out under section 74 of CEPA and have been subject to priority substance screening assessments to accelerate the assessment of the 23,000 substances on the DSL (sections 73 and 76 of CEPA). They may also be assessed under section 75 where use has been prohibited or substantially restricted by province, territory or member of the Organization of Economic Cooperation and Development, or under section 68.

[92] Mr. Granville notes that the government has carried out various forms of risk assessment to assess toxicity under CEPA for all but one of the substances that were previously added to Schedule 1. The one exception, listing #133, was for “plastic microbeads that are ≤ 5mm in size” which was supported by a science literature review that did not quantify exposures. This is the only other manufactured item that appears to be listed on Schedule 1. He notes that the listing of microbeads was not challenged through the Notice of Objection or BOR process and had a very narrow focus of the risk management measure proposed, which was removal of microbeads from personal care products.

[93] The Industry Interveners additionally refer to certain international agreements to which Canada is a signatory (Sectoral Annex 12-A of CUSMA on Chemical Substances and Article 2.2 of the TBT). These agreements refer to using a risk-based approach to regulate chemical substances and chemical mixtures that includes consideration of both hazard and exposure and looks at potential adverse environmental effects caused by the chemical substance or chemical mixture. They assert that the interpretation of CEPA must be consistent with the language of these treaties.

[94] While a treaty may be relevant when interpreting statutes that purport to implement the treaty, in whole or in part (Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30 [SOCAN] at para 44), it cannot overwhelm clear legislative intent. The Court’s task is to interpret what the legislature (federally and provincially) has enacted and not subordinate this to what the federal executive has agreed to internationally. International law cannot be used to support an interpretation that is not permitted by the words of the statute: SOCAN at para 48, citing Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62, [2014] 3 SCR 176 at para 60.

[95] In this case, CEPA states only by way of preamble that “the Government of Canada must be able to fulfil its international obligations in respect of the environment.” It does not seek to implement either CUSMA or TBT. I agree with the Respondents, the references to CUSMA and TBT are of little relevance to the analysis.

[96] Irrespective, there is no real dispute that a chemical assessment of toxicity has historically included a risk-based assessment looking at both hazard and exposure. The Respondents do not deny that quantitative analyses of the type typically conducted for chemical compounds were not conducted in this case. However, they assert that it was not necessary and was impractical in view of the substance at issue.

[97] The RIAS explains that the PMI were not reviewed under the same authority as those substances assessed under section 74 of CEPA or those that are subject to a chemical assessment:

[98] The Respondents assert that there are limitations to what can be tested when a substance is not a chemical and the substance is not dispersed into the environment in a predictable way that can be modelled or measured.

[99] Indeed, the Science Assessment acknowledges certain limitations with respect to its purpose and scope. The executive summary and introductory portions of the Science Assessment states that it is “not intended to quantify the risks of plastic pollution on the environment.” The Science Assessment is “not intended as a substitute for chemical risk assessment”, which is typically “conducted to assess the potential for risk to the environment and human health associated with a substance.” It states that “significant data gaps currently exist that preclude the ability to conduct a quantitative risk assessment” and notes that “risk assessment frameworks for evaluating the potential risks associated with plastic pollution are currently under development.” The Science Assessment recommends that further research be carried out to assess, inter alia, “[d]eveloping standardized methods for sampling, quantifying, characterizing, and evaluating the effects of macroplastics and microplastics.”

[100] The Science Assessment refers to the information on macroplastics being limited to “data from litter cleanup initiatives as well as from reports in the popular press” and effects such as entanglement, ingestion or impacts on habitat integrity. It notes various challenges with microplastics in identifying items, where degradation has occurred and items have become unrecognizable.

[101] Animal Justice submits that for most substances that cause chemical harm, particularly those that are imperceptible, it is only with comprehensive testing that substances can be demonstrated as toxic. However, in this case, it is readily observable that plastics are entering the environment in a manner that is causing harm. While the precise number of animals affected by plastic pollution was not characterized, the Science Assessment established that plastic pollution is entering the environment in quantities that are sufficient to harm animals.

[102] The Respondents assert that paragraph 68(a) of CEPA permits the Ministers to “collect or generate data and conduct investigations respecting any matter in relation to a substance” for the purpose of assessing whether PMI was toxic. The Science Assessment was a critically reviewed assessment of over 600 scientific literature references that was made in accordance with paragraph 68(a). It recommended pursuing action to reduce macroplastics and microplastics in the environment in accordance with the precautionary principle, and in the Respondents’ submission was sufficient to support the listing of PMI on Schedule 1.

[103] EDCOC reinforces the need to look at persistence and accumulating effects as “Canada’s environment doesn’t get a fresh start each year” – there is a slow rate of breakdown of plastic in the environment. As stated in the Science Assessment, “[s]ince plastics degrade very slowly and are persistent in the environment, the frequency of occurrence of plastic pollution in the environment is expected to increase.” They assert that the projected rise in plastic pollution needs to be considered. Environmental policies must anticipate and prevent environmental degradation and allow government to act in a preventative manner.

[104] EDCOC refers to Morton v Canada (Fisheries and Oceans), 2015 FC 575 at paragraph 43, which described the impact and importance of considering the precautionary

[105] However, even with the precautionary principle in mind, recognizing the difficulty of achieving the same precise quantifications and risk assessments as with chemicals, the challenge with the Order is its breadth and scope when considered within the scheme of Part 5 of CEPA and the interpretation of that scheme as discussed by the Supreme Court of Canada in Hydro‑Quebec.

[106] As described in Hydro-Quebec at paragraph 147, Part 5 of CEPA (then Part II) provides “a procedure to weed out from the vast number of substances potentially harmful to the environment or human life those only that pose significant risks of that type of harm. Specific targeting of toxic substances based on individual assessment avoids resort to unnecessarily broad prohibitions and their impact on the exercise of provincial powers.” It is, as argued by the Applicants, in effect a triage tool.

[107] The intention of CEPA is that only substances that are toxic in “the real sense” were on the List of Toxic Substances: Hydro-Quebec at paras 143-145.

[108] Mr. Granville refers to the example of benzenamine, N-phenyl-, reaction products with styrene and 2,4,4-trimethylpentene (BNST) which was removed from Schedule 1 when it was later shown not to be toxic. He notes from his review of the substances listed on Schedule 1 that if only certain forms of a substance or group of substances were found to meet the test in section 64, or if information was unavailable for certain forms of a substance, only those meeting the test were listed, leading to narrower substance additions in some instances. He further notes certain substances that were not listed on the basis of an inconclusive assessment, that were added later when a subsequent assessment showed toxicity.

[109] The Respondents point to examples of substances on Schedule 1, such as lead and carbon dioxide, that are not inherently harmful until released into the environment. They note that Hydro-Quebec at paragraph 141 provides that toxic as used in CEPA includes “substances that are not per se, toxic, but that may, when released into the environment in a certain quantity, concentration or condition, become toxic.” However, all of these examples are of different forms of the same substance; the breadth does not engage a large group of disparate items like PMI.

[110] The statement in the RIAS that “all plastic manufactured items have the potential to become plastic pollution” serves as the foundation for the breadth of the Order extending to all PMI, but the RIAS does not provide the evidence to bridge the gap between this statement and the Order listing the category of PMI as toxic.

[111] A peremptory conclusion will rarely assist a reviewing court. As stated at paragraph 102 of Vavilov:

[112] The RIAS provides that “[p]lastic manufactured items that are discarded, disposed of, or abandoned in the environment outside of a waste management system (such as a recycling facility or landfill) constitute plastic pollution.” It notes that in Canada “the majority of plastic manufactured items that become plastic waste enter a managed waste stream” and refers to the data from the Deloitte Study, indicating that 1% of plastic waste entered the environment as plastic pollution in 2016, with the majority remaining in landfill. Thus, not all plastic waste becomes plastic pollution.

[113] The basic principle of toxicity for chemicals is that all chemical substances have the potential to be toxic; however, for a chemical substance to be toxic it must be administered to an organism or enter the environment at a rate (or dose) that causes a high enough concentration to trigger a harmful effect.

[114] In this instance, the reverse logic appears to be applied: all PMI are identified as toxic because they are made of plastic and because all plastic is deemed to have the potential to become plastic pollution. The conclusion is devoid of consideration of the extreme variability in the shape and type of plastic used to make items and of plastic’s variable properties, or whether the plastic item is conducive to causing harm to animals from strangulation or suffocation or to the environment because of effects such as rafting etc.

[115] As noted earlier, the RIAS refers to only a small number of specific items (ropes, nets, cable ties, plastic bags, packaging rings) as being reported in the scientific literature to exhibit adverse effects on some animals as a result of entanglement or ingestion.

[116] In my view, the GIC could not have been satisfied from this evidence that all PMI are toxic.

[117] The government in the context of considering regulations to prohibit SUP published findings in the Discussion Paper indicating that not all PMI are harmful. The Discussion Paper reported on ECCC’s categorization of select SUPs and whether they were environmentally problematic. The report (excerpted below) indicated several types of SUPs (other bags (for example, garbage), multi-packaging, disposable personal care items, contact lenses and packaging, and hot and cold drink cups and lids) that were not considered to be environmentally problematic because they were either not prevalent, or were not known or suspected to cause

[118] Even if the statement that all PMI have the potential to become plastic pollution is taken on its face, the evidence available to the GIC did not support the finding that all PMI are toxic.

[119] In this case, the GIC knowing that such a broad extrapolation was not supported by the evidence, and in particular that certain PMI included within the scope of the listing were not toxic, acted outside their authority in listing the broad category of PMI on Schedule 1 in an unqualified manner.

[120] Subsection 333(1) of CEPA provides for BOR proceedings at the discretion of the Ministers. As is it read at the time of the Application, this provision provided:

[121] It is up to the Minister to determine the extent of danger posed by the substance and whether there is sufficient uncertainty or doubt in the underlying science that a BOR is warranted: Goodyear Canada Inc v Canada (Environment), 2017 FCA 149 [Goodyear] at para 45. CEPA does not set any criteria for determining whether to establish a BOR. This is a discretionary determination of the Minister which has been contrasted with other circumstances in which the Minister must establish a BOR, such as when the Minister decides not to list a substance as toxic in the face of a recommendation to list the substance as toxic in the final screening assessment: Goodyear at para 46.

[122] As stated in Goodyear at paragraph 49, “[t]he essence of a decision not to convene a board under section 333 is the Minister’s assessment as to the sufficiency of the science in support of the proposed order. Consistent with standard of review principles, the Court is reluctant to second-guess decisions of this nature.”

[123] As noted in the RIAS, throughout the consultation process, 123 industry associations or individual companies, two provincial governments, and one foreign government indicated opposition to the proposed Order. A number of the stakeholders expressed concern that the proposed Order did not reflect a risk-based approach to managing toxic substances, including inconsistencies with typical processes under the Chemicals Management Plan, such as not assessing chemically distinct substance, and not publishing a draft and final screening assessment. The departments also received 60 written notices of objection on the proposed Order, 52 of which included a request for a BOR to inquire into the nature and extent of the danger posed by PMI. All requests for a BOR were denied.

[124] The RIAS describes the nature of the objections as follows:

[125] The MECC engaged in a two-step process for analyzing the notices of objection. First, it determined whether the information provided would lead to a change in the findings of the Science Assessment regarding the ability of macroplastics to cause harm to the environment. It determined from this analysis that it did not. Second, it elicited a review by neutral departmental officials who agreed that a sound scientific process had been respected and the conclusions of the first review were reasonable.

[126] The RIAS provides the following summary of the process followed:

[127] The Applicants argue that the MECC ignored the key question in their notice of objection, which was whether the Science Assessment provided evidence that all PMI are toxic, dismissing the objection as a matter of policy. They assert that the review process instead focused on whether additional scientific sources could change the initial conclusions of the Science Assessment. The Applicants contend that the issue relating to the breadth of the proposed Order and whether there was sufficient evidence of toxicity for the broad listing was an issue of science that should have been considered in the analysis.

[128] In their notice of objection, the Applicants argued, inter alia:

[129] The MECC provided the following response to the Applicants’ objections in the BOR Decision. There was no specific response to the breadth argument:

[130] The Respondents assert that the breadth of the Order was not a relevant consideration for the MECC when determining whether to establish a BOR. Rather, this was a question for the MECC when determining whether to recommend that the GIC add PMI to Schedule 1. The Respondents contend that if the MECC was satisfied that the Science Assessment established that PMI are “entering or may enter the environment in quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity”, the only consideration left was whether there was anything in the objections that would lead to a change in this core finding.

[131] They nevertheless assert that the MECC was satisfied that there was sufficient evidence that PMI are toxic within the meaning of section 64 of CEPA and that there was no scientific information in the Applicants’ objection to cast doubt on this.

[132] However, neither of these explanations are provided in the MECC’s BOR Decision.

[133] The memorandum to the MECC on the notices of objection states that objections that were non-scientific were not considered in developing the recommendation to deny a BOR, as they did not relate to the mandate of the BOR. The memorandum states that such objections would be addressed in the final decision on the Order and in the accompanying RIAS. The memorandum refers to an Annex detailing the non-scientific objections, which included the “Rationale for broad listing based on findings of Science Assessment.”

[134] Thus, the memorandum suggests that the recommendation was not to consider the sufficiency of the scientific evidence relating to the listing of PMI. While the Respondents assert that the Science Assessment concluded that “all manner of plastic items can cause harm when released into the environment – regardless of their shape, size, or purpose at the time of release”, as stated earlier, there is no such finding in the Science Assessment.

[135] The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. A failure to meaningfully grapple with key issues or central arguments raised by parties may call into question whether the decision-maker was actually alert and sensitive to the matter before it: Vavilov at paras 127-128, repeated in Mason at para 74.

[136] In my view, the issue of the breadth of the proposed Order was a central argument that challenged the sufficiency of the science. As such, it should have been addressed in the MECC’s response. The failure to refer to the argument leaves uncertainty as to whether the MECC considered the argument or whether it lumped the argument into the non-scientific concerns which were policy-based. This lack of transparency and completeness renders the BOR Decision unreasonable.

[137] The second challenge to the Order is to its constitutionality. The Applicants assert that the Order extends beyond the federal CLP.

[138] A law will fall under subsection 91(27) of the Constitution Act, 1867 if it contains three elements: 1) a criminal law purpose; 2) a prohibition; and 3) is accompanied by a penalty: Hydro-Quebec at paras 34-36 and 119; Reference re Assisted Human Reproduction Act, 2010 SCC 61 [Assisted Human Reproduction Act] at paras 35-36; Groupe Maison Candiac Inc v Canada (Attorney General), 2020 FCA 88 [Groupe Maison] at para 49; Reference re Firearms Act, 2000 SCC 31 (CanLII), [2000] 1 SCR 783 [Firearms Reference] at para 27.

[139] In Hydro-Quebec at paragraph 132, the Supreme Court of Canada confirmed that the protection of the environment through prohibitions against toxic substances, is a “wholly legitimate public objective in the exercise of the criminal law power.” It is a public purpose sufficient to support a criminal prohibition that does not rely on any of the other traditional purposes of criminal law (health, security, public order, etc.): Syncrude Canada Ltd v Canada, 2016 FCA 160 [Syncrude] at para 49 in reference to Hydro-Quebec, including part of the dissent that agreed with Justice La Forest’s view.

[140] The Supreme Court of Canada considered the statutory scheme relating to listing toxic substances on Schedule 1 of CEPA (pre-1999) and the ability to regulate such substances thereafter. It found that there were sufficient limitations (referred to by the Applicants as “guardrails”) within the statutory framework to interpret the legislation narrowly and to keep it within the constitutional bounds of the CLP. As stated at paragraphs 130 and 146 of Hydro‑Quebec with respect to Part II and sections 11 and 34(1) of CEPA 1988, which became Part 5 and sections 64 and 93 of CEPA as amended in 1999:

[141] The Applicants do not challenge these findings from Hydro-Quebec or the constitutional validity of subsections 90(1), 64(a), section 93 and Schedule 1 of CEPA. Rather, their constitutional challenge within the Application relates to the Order and the corresponding listing of PMI on Schedule 1. Their arguments are two-fold. First, they assert that the Order does not seek to restrict toxic substances, but rather to manage plastics in the economy. Second, they argue that the breadth of the Order extends outside the guardrails established in Hydro-Quebec and the constitutional limitations intended by the underlying statutory scheme.

[142] There is a two-step analytical framework for the review of legislation on federalism grounds. At the first stage (the “characterization stage”), the Court considers the law’s purpose and its effect with a view to identifying its true subject matter, essential character, or its “pith and substance.” At the second stage (the “classification stage”), the Court considers whether the true subject-matter falls within the head of power being relied on to support the legislation’s validity. (Reference re Pan-Canadian Securities Regulation, 2018 SCC 48 at para 86; Firearms Reference at para 15).

[143] There are several core principles that are also relevant to the analysis; these include co‑operative federalism, incidental effects and double aspects.

[144] Federalism and the division of powers is a fundamental organizing principle of the Canadian Constitution: Reference re Secession of Québec, 1998 CanLII 793 (SCC), [1998] 2 SCR 217 at paras 32, 55-60. Cooperative federalism recognizes that the provincial government and federal government are coordinate – the provinces are not subordinate to the federal government. A federal head of power cannot be given a scope that would eviscerate a provincial legislative competence: Reference re Securities Act, 2011 SCC 66 at para 71.

[145] The “pith and substance” doctrine is founded on the recognition that it is in practice impossible for the legislature to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the jurisdiction of another level of government: Canadian Western Bank v Alberta, 2007 SCC 22 [Western Bank] at para 29. Secondary incidental effects, which may have practical significance, will not impact the constitutionality of a law, as long as the law’s dominant purpose falls validly within a head of power assigned to Parliament: Western Bank at para 28; Syncrude at paras 61-70; Groupe Maison at para 46; Reference re Genetic Non‑Discrimination Act, 2020 SCC 17 [Genetic Non-Discrimination Reference] at para 22.

[146] The double aspect doctrine recognizes that some subject-matter may involve both provincial and federal powers. As recognized by Justice La Forest in Hydro-Quebec at paragraph 131, with respect to toxic substances, “the use of the federal criminal law power in no way precludes the provinces from exercising their extensive powers under s. 92 to regulate and control the pollution of the environment either independently or to supplement federal action.”

[147] A law’s pith and substance has been described as the law’s “dominant purpose”, “leading feature or true character” or “dominant or most important characteristic”: Genetic Non‑Discrimination Reference at para 29.

[148] In the characterization stage, the pith and substance must be identified without regard to the heads of legislative power to avoid the danger that the “exercise will become blurred and overly oriented towards results”: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 [GGPPA References] at para 56. The Court looks at the Order’s purpose and its effect to determine its dominant purpose: Quebec v Canada (Attorney General), 2015 SCC 14 at para 29; Syncrude at para 39. Purpose is determined from the Order itself – i.e., the intrinsic evidence – and from extrinsic evidence, such as the RIAS and government reports on which the law is based: Syncrude at para 39. The analysis then turns to determining the legal and practical effects of the Order; that is, how the law operates in practice and how it will affect the rights and liberties of those subject to its terms: GGPPA References at para 70.

[149] The Applicants assert that the pith and substance of the Order is directed to managing plastics in the economy, not toxic substances in the environment. Saskatchewan and Alberta characterize the purpose even more broadly, asserting that it is simply about regulating plastics.

[150] The Respondents argue that the pith and substance of the Order is to add PMI to Schedule 1 of CEPA in order to enable the exercise of delegated powers to prevent environmental harms associated with certain items entering the environment as plastic pollution.

[151] The Respondents stress the importance of being specific at the characterization stage, to help the second stage of the analysis (classification stage). They refer to GGPPA References at paragraph 69 where the Supreme Court of Canada rejected a broad characterization of the pith and substance in that case by the Attorneys General of Alberta and Ontario −i.e., the regulation of greenhouse gas emissions − finding it was too non-specific and did not reflect the statute’s goal:

[152] The parties agree that when considering intrinsic evidence, the Court may look to the title and language of the Order.

[153] The title of the Order reads, “Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999.” The preamble states that pursuant to subsection 90(1) of CEPA, the Administrator-in-Council is satisfied that the substance set out in the Order, namely PMI, is a toxic substance and that the Order is being made as a result of that conclusion. The text of the Order is brief and states only that, “Schedule 1 of the Canadian Environmental Protection Act, 1999 is amended by adding the following in numerical order: 163 Plastic manufactured items.”

[154] The Applicants assert that as the text of the Order captures all PMI, it reveals an intention to regulate all PMI, not just those that create risk to the environment. The Respondents argue that to understand the purpose and effect of the Order a review of the intrinsic evidence must also consider the statutory scheme of the underlying legislation – in this case, CEPA. In Syncrude at paragraphs 34-35, the Federal Court of Appeal considered the approach to be taken to a challenge to one or more provisions within a piece of legislation, noting that unless clear on their face, impugned provisions of legislation must be considered in context:

[155] The Respondents assert that the text, preamble and declaratory provisions of CEPA are all consistent – the primary purpose of the legislation is to protect the environment through pollution prevention. One of the ways CEPA achieves this purpose is by prohibiting, through regulation, environmentally harmful aspects of its listed toxic substances. They contend that the Order serves as a precondition that allows the GIC to make regulations relating to PMI that are in line with the purpose of CEPA.

[156] The parties agree that the extrinsic evidence that bears on the Order’s purpose includes the RIAS and the collection of governmental reports and studies that preceded the Order’s making; namely, the Deloitte Study, the Science Assessment and the Discussion Paper.

[157] The RIAS identifies the “issues” underlying the Order as plastic pollution created by “[p]lastic manufactured items that are discarded, disposed of, or abandoned in the environment outside of a waste management system (such as a recycling facility or a landfill).” It refers to current scientific evidence (from the Science Assessment), confirming “plastic pollution is ubiquitous in the environment, and that macroplastic pollution poses an ecological hazard, including physical harm, to some animals and their habitat.”

[158] The RIAS characterizes the objective of adding PMI to Schedule 1 of CEPA, as enabling the ministers to “propose risk management measures under CEPA on certain plastic manufactured items to manage the potential ecological risks associated with those items becoming plastic pollution.” However, the RIAS is narrower than the Order. The Order does not restrict the listed substance to certain PMI, but rather to PMI broadly. The RIAS does not provide guidance in its objectives as to what certain PMI would be the target of further regulation.

[159] The Respondents assert the objective stated in the RIAS confirms that the Order is not intended to have any substantive regulatory effect on its own. Rather, it is intended to enable the ministers to propose risk management measures for managing potential ecological risk associated with PMI becoming plastic pollution.

[160] Both parties refer to passages from the Discussion Paper. The Applicants argue that the Discussion Paper indicates that the focus extends beyond the restriction of toxic substances to include waste management and the broader circular plastic economy. The Applicants refer to the following passage from the Discussion Paper:

[161] This broader focus is consistent with the Deloitte Study and the Strategy on Zero Plastic Waste, which outlines Canada’s “circular economy approach” and its vision towards pursuing zero plastic waste. As stated in the Strategy on Zero Plastic Waste “[t]he vision is to keep all plastics in the economy and out of the environment” through the interdependence of three areas of activity as part of an integrated system: prevention; collection and clean-up; and value recovery.

[162] The reports demonstrate broad concern regarding environmental harms resulting from plastic pollution and the need to engage CEPA’s prohibitory scheme as part of an integrated approach that includes pollution prevention as well as plastic waste management. There will be a reduction in plastic pollution if there is a reduction of plastic waste in general because there will be less waste to end up outside the waste management system.

[163] While the Applicants assert that the reference to a circular economy evinces an intention to regulate plastics unrelated to environmental harm, I do not agree that this is the intended purpose of the Order. The Order by its stated objective in the RIAS is intended to facilitate one aspect of the integrated approach, namely to list PMI on what was the List of Toxic Substances so that PMI could be regulated to manage the potential environmental harm associated with their becoming plastic pollution. The disconnect that exists is because of the breadth of what is listed in the Order.

[164] In discerning pith and substance, the Court may also consider the legal and practical effects of the Order – that is, how the Order operates in practice to impact “the rights and liabilities of those subject to its terms”: GGPPA References at para 70. While this part of the analysis can in some instances provide clarity as to dominant purpose, in this instance the parties agree that the Order on its own does not impact the rights and liabilities of Canadians; instead it targets the GIC and the GIC’s regulation-making powers under section 93 of CEPA.

[165] There is only one example of regulations arising in respect of the listing – i.e., the SUP Regulations to ban certain single use plastics. While these regulations target specific SUP items used or dealt with in specific circumstances, there is no suggestion that they exemplify the full scope of regulation that could be made under the GIC’s authority in respect of SUP or other PMI. The effect of the Order renders all PMI subject to the regulatory powers set out in section 93 of CEPA.

[166] In my view, the dominant purpose or pith and substance of the Order was to list PMI on the List of Toxic Substances so that PMI could be regulated to manage the potential environmental harm associated with their becoming plastic pollution.

[167] As stated earlier, for legislation to fall within the CLP it must contain a criminal law purpose, a prohibition and be accompanied by a penalty. The focus of the challenge here is to whether the Order can be characterized as providing a criminal law purpose.

[168] As set out in Attorney General for Ontario v Reciprocal Insurers, [1924] 2 AC 91 [Reciprocal Insurers] at page 343, “the machinery of criminal law” cannot be used to assume control over something that is not within Parliament’s authority.

[169] Further, Parliament may not assume control over an activity that is not in itself harmful or dangerous in order to prevent the harmful or dangerous forms of the activity. As stated in the Firearms Reference at paragraph 43:

[170] While Hydro-Quebec established that there is a criminal law purpose to the protection of the environment, this was because it was calibrated to a harm. It was protection of the environment through prohibition against toxic substances that justified the public objective in the exercise of the CLP: Hydro-Quebec at para 132.

[171] The Applicants assert all PMI cannot be listed on Schedule 1, even if the intention is only to regulate those plastics that have the potential to cause environmental harm. This is because PMI does not pose any environmental harm as a broad group. The Science Assessment has not shown that there is a reasonable apprehension of harm for every plastic manufactured item. Indeed, the RIAS asserts that Parliament is only seeking to prohibit certain PMI that pose ecological risks on becoming plastic pollution. However, the Order and the listing is not so limited.

[172] The Respondents highlight that the Order benefits from a presumption of constitutional validity: Firearms Reference at para 25.

[173] The Respondents contend that the breadth of the listing is a reflection of how the statutory scheme under CEPA operates in practice – section 93 of CEPA allows the GIC to narrow the reach of the CLP to achieve CEPA’s environmental objectives. They assert that sweeping delegation of regulation-making power is constitutionally valid as long as there are constitutional and administrative constraints on the delegated power enabled by order. While applied in a different context, the Respondents refer to the GGPPA References at paragraphs 87‑88 as support for this contention:

[174] The Respondents argue by analogy that there are inherent constitutional and administrative constraints on the regulations made pursuant to section 93 of CEPA. They assert that the listing of a toxic substance on Schedule 1 does not alter the division of powers. Any regulation enacted in respect of PMI will be constitutionally valid only insofar as the regulation itself furthers a valid criminal law purpose (Assisted Human Reproduction Act at para 84), and will only be administratively sound if it falls within the scheme of CEPA. If it is not, it can be challenged.

[175] The Applicants assert this is nothing more than a “trust me” argument with the Order permitting the GIC to assume control over all PMI on the trust that regulations will be restricted to only those PMI that create a real risk to the environment. They contend that they should not have to wait until regulations are enacted to challenge an unconstitutional order. I agree.

[176] As set out in the record and highlighted by Saskatchewan, all of the provinces are heavily involved in the regulation of plastics. Most industries that produce or use PMI will be under provincial regulatory jurisdiction, including environmental aspects of their activities such as the production and disposal of waste products. The ubiquity of plastic in society means that most businesses and organizations will use PMI and will be under provincial jurisdiction: Constitution Act, 1867, ss. 92(10), 92(13), 92(16).

[177] CEPA includes broad regulatory powers under section 93 for substances listed on Schedule 1.

[178] While the regulatory scheme under CEPA was held in Hydro-Quebec to be sufficient to establish the remaining two aspects of the CLP; that is, that the power to create offences under CEPA could be delegated to the GIC along with the power to determine the appropriate penalty for the regulatory offences, this delegation did not extend to the criminal law purpose.

[179] To employ criminal law, what is being restricted has to actually be dangerous i.e., there needs to be a harm. Otherwise, the restriction amounts to nothing more than economic regulation, which does not satisfy the CLP test: Reference Re Validity of Section 5(a) of the Dairy Industry Act, 1948 CanLII 2 (SCC), [1949] SCR 1; aff’d 1950 CanLII 342 (UK JCPC), [1950] 4 DLR 689.

[180] In Hydro-Quebec, the Supreme Court discussed the focus within CEPA as being directed towards only those substances that were harmful to the environment. As stated at paragraph 138:

[181] The intention of CEPA is that only substances that are toxic in “the real sense” were on the List of Toxic Substances: Hydro-Quebec at paras 143-145. The scheme provides “a procedure to weed out from the vast number of substances potentially harmful to the environment or human life those only that pose significant risks of that type of harm. Specific targeting of toxic substances based on individual assessment avoids resort to unnecessarily broad prohibitions and their impact on the exercise of provincial powers”: Hydro-Quebec at para 147.

[182] This structure and framework did not change with the amendments to CEPA in 1999 or with the addition of the precautionary principle.

[183] Without the requirement for toxicity, there would be no point behind sections 64 and 90 of CEPA as any substance could be listed on Schedule 1 of any breadth as long as section 93 limited the substance by regulation. This would not serve the CLP as it would have the effect of turning the statute into a general regulatory power which defines all aspects of the CLP by regulation.

[184] As set out earlier, not every item within PMI has the potential to create a reasonable apprehension of harm. This is different from examples such as lead and carbon dioxide given by the Respondents, which are substances that may not be inherently toxic but which may have aspects or uses that are toxic. In this case, the substance (PMI) is a broad category of items that include items with no reasonable apprehension of environmental harm. The broad and all-encompassing nature of the category of PMI poses a threat to the balance of federalism as it does not restrict regulation to only those PMI that truly have the potential to cause harm to the environment.

[185] The delicate balance discussed in Hydro-Quebec has not been maintained. The screening mechanism which grounded the CLP is no longer there.

[186] Section 93 is insufficient to maintain the Order within the CLP. The Order is ultra vires the CLP.

[187] The Applicants, Saskatchewan and Alberta argue that the Court should not deal with POGG as it is not an issue between the parties in this case − the Notice of Application alleges that the Order is outside federal CLP only and the AGC did not defend this argument by asserting constitutionality on the basis of POGG. The Applicants rely on the decision in R v Mortgentaler, 1993 CanLII 158 (SCC), [1993] 1 SCR 462 at p 463 in which the Supreme Court of Canada stated that “[a]n intervener is not entitled ... to widen or add to the points in issue. ... An intervener cannot introduce a new issue on the ground that it is a response to an argument made by the [applicant] if the respondent has chosen not to raise the issue.”

[188] As emphasized by Justice Stratas in Right to Life Association of Toronto and Area v Canada (Employment, Workforce and Labour), 2022 FCA 67 at paragraph 14, citing his decision in Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 174 at paragraphs 55-56:

[189] EDCOC takes issue with the Applicants’ jurisdictional argument. It asserts that the national concern doctrine was first put into issue by Saskatchewan and Alberta in their intervention factums and that it was just responding to those arguments. However, as Saskatchewan and Alberta were required to file their factums before the Respondents, the essence of their arguments was that the national concern doctrine did not apply. It can hardly be said that Saskatchewan and Alberta put the doctrine in issue by arguing against its application.

[190] I agree that the national concern doctrine is not a justiciable issue in this case. Moreover, even if it could be raised, it is my view that reliance on such doctrine in defence of the constitutional challenge is not appropriate as the listing of PMI does not have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern: GGPPA Reference at paras 145-146, citing R v Crown Zellerbach Canada Ltd, 1988 CanLII 63 (SCC), [1988] 1 SCR 401. Nor is there any direct evidence of provincial inability.

[191] The Applicants do not dispute that the double aspect doctrine could apply in the national concern context such that if Parliament took jurisdiction over plastic pollution it would not take jurisdiction over waste management, which would still be within the jurisdiction of the provinces: GGPPA Reference at paras 120, 122, 126. However, they argue that by allowing the Federal government to regulate PMI, this may trigger the federal paramountcy principle where federal law can supersede provincial law. As such, it must be approached cautiously to avoid eroding the importance attached to provincial autonomy in the jurisprudence: GGPPA Reference at para 128.

[192] In this case, where the Supreme Court in Hydro-Quebec found that the CLP applies to CEPA, I agree with the Applicants that it does not follow that an Order made under CEPA would come under the national concern doctrine rather than the CLP.

[193] For all of these reasons, I find the Order and its corresponding listing of PMI on Schedule 1 of the List of Toxic Substances to be both unreasonable and unconstitutional.

[194] The parties dispute what remedies are available for this Application in view of Bill S-5 and the repeal of Schedule 1 of the List of Toxic Substances. While they agree that the Court may provide declaratory relief that the Order was both invalid and ultra vires as of the date it was made (R v Albashir, 2021 SCC 48 at para 38), they disagree as to whether any further relief may be ordered.

[195] The Applicants assert that if the proceeding is not moot then the Order may be quashed, which would have the effect of treating PMI as if it had never been added to Schedule 1 of the List of Toxic Substances: First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 at para 58. The practical effect would be that this would delete PMI from Schedule 1 of the List of Toxic Substances as it appeared prior to the enactment of Bill S-5.

[196] The Applicants argue that such a deletion would invoke the transitional provisions found in subsection 62(2) of Bill S-5 such that it could be ordered that PMI be deleted from the current Schedule 1.

[197] Subsection 62(2) of Bill S-5 provides:

[198] They assert that it would be absurd to read Bill S-5 as reflecting an intention to list items on Schedule 1 that do not come within the scheme of Part 5 of CEPA.

[199] In a related way, the Applicants argue that the same rationale for finding the Order and the corresponding listing of PMI on Schedule 1 of the List of Toxic Substances unconstitutional – i.e., because there is no reasonable apprehension that all listed PMI are harmful − applies to the current listing of PMI on Schedule 1 as enacted by Bill S-5. Thus, they assert that the current listing of PMI cannot remain on Schedule 1 as it would be ultra vires.

[200] While there may be merit to the Applicants’ assertions relating to the administrative and constitutional validity of the listing on the current Schedule 1, the authority to “add” or “delete” substances from the current Schedule 1 resides with the GIC and not with the Court. I agree with the Respondents, transposing these powers to the Court would exceed its statutory jurisdiction.

[201] The remedies available to the Court on judicial review are the powers set out in subsection 18.1(3) of the Federal Courts Act, RSC, 1985, c F-7 [Federal Courts Act], namely to:

[202] These are not the same powers as the powers granted to the GIC by section 90 of CEPA to “add” and “delete” substances from Schedule 1.

[203] Further, declaring the Order unlawful does not go as far as deleting PMI from the existing Schedule 1. Unlike administrative authorizations, such as the Notice of Compliance issued under the Patented Medicines (Notice of Compliance) Regulations in Apotex Inc v Bayer AG, 2004 FCA 242 at paragraph 10, Schedule 1 is now part of Bill S-5. As set out in R v Sullivan, 2022 SCC 19 at paragraphs 45-46, it cannot be deleted by order of the Court. While a declaration of invalidity could lead the GIC to order that PMI be deleted from the current Schedule 1, the authority to take that step is within the discretion of the GIC.

[204] Similarly, I agree with the Respondents, it is the Order and not Bill S-5 that has been challenged in this Application. As such, it is not open to the Court to rule on the constitutional validity of Bill S-5. While the Court’s finding on the constitutional validity of the Order may bear on the constitutional validity of the listing of PMI on Schedule 1 enacted under Bill S-5, this finding cannot be made without the provision of further argument and evidence from the parties, including as to the scheme and purpose of the amendments made to CEPA as a result of Bill S-5. On the basis of the submissions that were made before me, I cannot conclude that there would be no relevant evidence or material argument forthcoming.

[205] For all of these reasons, the relief provided by this Order shall be limited to the Court’s remedies under subsection 18.1(3) of the Federal Courts Act, which can include quashing the Order and declaring the Order both invalid and unlawful with retroactive effect.

[206] As agreed by the parties, costs shall follow the event and thus be awarded to the Applicants. Should the parties be unable to agree on the quantum of costs, the Applicants shall have 15 days to provide its submissions and the Respondents 15 days thereafter to respond. Each party’s submissions shall not exceed five pages in length.