ATTORNEY GENERAL OF CANADA, THE MINISTER OF THE ENVIRONMENT v. CLIMATE CHANGE, and, 2024 FCA 18

Date: 20240125 Docket: A-337-23 Citation: 2024 FCA 18 Present: GLEASON J.A. BETWEEN: ATTORNEY GENERAL OF CANADA, THE MINISTER OF THE ENVIRONMENT AND CLIMATE CHANGE, and THE MINISTER OF HEALTH Appellants and RESPONSIBLE PLASTIC USE COALITION, DOW CHEMICAL CANADA ULC, IMPERIAL OIL, A PARTNERSHIP, BY ITS MANAGING PARTNER IMPERIAL OIL LIMITED and NOVA CHEMICALS CORPORATION Respondents Motion dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on January 25, 2024. REASONS FOR ORDER BY: GLEASON J.A. Date: 20240125 Docket: A-337-23 Citation: 2024 FCA 18 Present: GLEASON J.A.

BETWEEN: ATTORNEY GENERAL OF CANADA, THE MINISTER OF THE ENVIRONMENT AND CLIMATE CHANGE, and THE MINISTER OF HEALTH Appellants and RESPONSIBLE PLASTIC USE COALITION, DOW CHEMICAL CANADA ULC, IMPERIAL OIL, A PARTNERSHIP, BY ITS MANAGING PARTNER IMPERIAL OIL LIMITED and NOVA CHEMICALS CORPORATION Respondents REASONS FOR ORDER GLEASON J.A. [ 1 ] The appellants have moved for a stay of the judgment of the Federal Court in Responsible Plastic Use Coalition v. Canada (Environment and Climate Change) , 2023 FC 1511 ( per Furlanetto J.).

They seek a stay until 60 days following the disposition of their appeal from the Federal Court’s judgment. In the judgment in question, the Federal Court quashed and declared retroactively invalid and unlawful as of April 23, 2021 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 (the Order). [ 2 ] The Order added plastic manufactured items (PMI) to the List of Toxic Substances in

Schedule 1 to the Canadian Environmental Protection Act , 1999, S.C. 1999, c. 33 (CEPA). [ 3 ]

Section 90 of CEPA ( as it read on April 23, 2021) delegates to the Governor in Council the authority to add substances to

Schedule 1 to CEPA. It provided: Addition to List of Toxic Substances Inscription sur la liste des substances toxiques

● 90

(1) Subject to subsection (3), 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. ● 90

(1) S’il est convaincu qu’une substance est toxique, le gouverneur en conseil peut prendre, sur recommandation des ministres, un décret d’inscription de la substance sur la liste de l’annexe 1. ● Priority ● Priorité

(1.1) In developing proposed regulations or instruments respecting preventive or control actions in relation to substances specified on the List of Toxic Substances in

Schedule 1, the Ministers shall give priority to pollution prevention actions.

(1.1) Lorsqu’il s’agit d’établir des projets de textes — règlements ou autres — portant sur les mesures de prévention ou de contrôle relatives à des substances inscrites sur la liste de l’annexe 1, les ministres donnent priorité aux mesures de prévention de la pollution. ● Deletion from List ● Radiation de la liste

(2) Subject to subsection (3), the Governor in Council may, if satisfied that the inclusion of a substance specified on the List of Toxic Substances in

Schedule 1 is no longer necessary, on the recommendation of the Ministers, make an order

(2) S’il est convaincu qu’une substance n’a plus à figurer sur la liste de l’annexe 1, le gouverneur en conseil peut, sur recommandation des ministres et par décret : ○ (

a) deleting the substance from the List and deleting the type of regulations specified in the List as being applicable with respect to the substance; and ○

a) radier de la liste la substance et la mention du type de règlements afférents; ○ (

b) repealing the regulations made under

section 93 with respect to the substance. ○

b) abroger les règlements pris en application de l’article 93. ● Order subject to conditions ● Réserve

(3) Where a board of review is established under

section 333 in relation to a substance, no order may be made under subsection (1) or (2) in relation to the substance until the board’s report is received by the Ministers.

(3) La prise des décrets visés aux paragraphes (1) ou (2) est toutefois subordonnée à la réception par les ministres du rapport de la commission de révision éventuellement constituée en vertu de l’article 333. [ 4 ] By virtue of this provision, substances may be added to the list in

Schedule 1 to CEPA if the Governor in Council is satisfied that they are toxic. [ 5 ] In the judgment under appeal, the Federal Court held that the Order was both unreasonable and unconstitutional because the Governor in Council " “could not have been satisfied” " that all PMIs are toxic ( at paras. 116 and 184). [ 6 ] It is common ground between the parties that the Order enabled the promulgation of a subsequent regulation, the Single-use Plastics Prohibition Regulations , SOR/2022-138 (the Single-use Regulations ). [ 7 ] As of the date of these Reasons, several provisions in the Single-use Regulations have come into force.

These provisions prohibit, in the circumstances detailed in them, the manufacture and import for sale in Canada of a number of single-use plastic items. These include certain types of: single-use plastic ring carriers, single-use plastic straws, plastic checkout bags, single-use plastic cutlery, single-use plastic foodservice ware, and single-use plastic stir sticks.

In addition, the Single-use Regulations prohibit the sale in Canada as of December 20, 2023 of certain: plastic checkout bags, single-use plastic cutlery, single-use plastic foodservice ware, single-use plastic stir sticks, and single-use plastic straws. [ 8 ] The Regulatory Impact Statement (RIAS) that accompanied the Single-use Regulations explains that the prohibited items are the most prevalent items contributing to plastic pollution and that it is estimated that the Single-use Regulations will result in a net decrease of approximately 1.3 million tonnes of plastic waste in Canada over 10 years.

This represents approximately 3% of the plastic waste in the country and 5% of the total plastic pollution in Canada. [ 9 ] It is clear from the materials filed by the appellants, which include the mandate letters issued to two successive Ministers of the Environment and Climate Change, that banning the use of harmful single - use plastics and taking steps toward eliminating plastic pollution in Canada were and are important objectives of the federal government. [ 10 ] Based on the evidence filed by the appellants in support of their stay motion, it appears that Environment and Climate Change Canada has spent over $1.5 million in the 2022-2023 fiscal year and had planned spending of over $3.3 million in the 2023-2024 fiscal year to implement the Single-use Regulations .

Activities undertaken include meeting with businesses and industry associations,

publishing news releases, conducting social media campaigns, completing design work for compliance materials, conducting campaignswith regulatees, developing and delivering training to enforcement officers, and responding to enforcement referrals. [11] According to the same evidence, as of December 8, 2023 (the date the appellants’ supporting affidavit was sworn), many businesseshave switched to alternatives to the single-use plastics that then were or would be prohibited by the Single-use Regulations.

It is to beanticipated that many more businesses have made or are in the process of making the switch as several prohibitions came into force onDecember 20, 2023 or will come into force on June 20, 2024. [12] The Single-use Regulations are being challenged in an application that is currently pending before the Federal Court in Court File T-1468-22. While the parties to that application have agreed that it should be stayed, pending the disposition of this appeal, the FederalCourt has not issued a stay order.

Moreover, as the appellants note in their submissions, another party could commence a similarapplication in the Federal Court at any point. [13] With this background in mind, I turn now to more specifically address the appellants’ stay application. [14] The test for the grant of a stay in a case like this is well-known and requires the moving party to establish that: (1) their appeal raisesa serious issue; (2) they would suffer irreparable harm if the stay were not granted; and (3) the balance of convenience favours grantingthe stay: RJR-Macdonald Inc v.

Canada (Attorney General), (SCC), [1994] 1 SCR 311 at 334 (RJR-MacDonald);Canada v. Canadian Council for Refugees, 2008 FCA 40 at para. 18 (Canadian Council for Refugees). [15] The threshold for establishing the first criterion of a serious issue is generally a low one. It will be met in a case like the present ifthe issues raised in the Notice of Appeal are not frivolous: RJR-Macdonald at 348; Canadian Council for Refugees at paras. 18, 22. [16] Here, I am satisfied that the Notice of Appeal raises many such issues.

This is especially so when one recalls that the applicablestandard of review will require this Court to effectively step into the shoes of the Federal Court, to re-conduct the reasonablenessanalysis, and to decide if it erred in law in its constitutional analysis.

Thus, the first criterion for the issuance of the requested stay is met. [17] I am also of the view that the second and third criteria are met in this case. [18] The case law recognizes that, where the grant or refusal of a stay would suspend legislation, regulations or other promulgations, thepublic interest is engaged and is considered as part of both the second and third criteria for the issuance of a stay: RJR MacDonald at348; Canadian Council for Refugees at para. 24. [19] The public interest, moreover, is to be widely-construed.

As noted by the Supreme Court of Canada at page 346 of RJR MacDonald,in the context of a request to stay the effect of legislation that was alleged to violate the Charter: … the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus ofdemonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of thenature of the public authority and partly a function of the action sought to be enjoined.

The test will nearly always besatisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interestand upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to thatresponsibility. Once these minimal requirements have been met, the court should in most cases assume thatirreparable harm to the public interest would result from the restraint of that action. A court should not, as a general rule, attempt to ascertain whether actual harm would result from the restraintsought.

To do so would in effect require judicial inquiry into whether the government is governing well, since itimplies the possibility that the government action does not have the effect of promoting the public interest and thatthe restraint of the action would therefore not harm the public interest. [Emphasis added.] [20] Contrary to what the respondents assert, these principles have been applied to stay cases outside the Charter context.

For example,the Quebec Court of Appeal, in a division of powers case, refused a stay where the effect of granting it would have been to suspendlegislation in Québec (Procureur général) c. Canada (Procureur général), 2013 QCCA 1263 at para. 50. [21] Here, the appellants have established that the promulgation of the Order and enactment of the subsequent Single-use Regulationswere undertaken pursuant to the federal government’s responsibility to act in the public interest as that concept has been defined by thecase law. [22] Moreover, the linkage between the Order and the Single-use Regulations is evident.

While the appellants do not concede that theFederal Court’s judgment means that the Single-use Regulations are invalid, they nonetheless recognize that the Order enabled theenactment of the Single-use Regulations. [23] Such enablement is evident. Subsection 93(1) of CEPA ties the Governor in Council’s delegated authority to promulgate regulationsunder CEPA to substances having been listed in

Schedule 1 of CEPA. At the relevant time, subsection 93(1) of CEPA provided: "Regulations " "Règlements ""● 93(1) Subject to subsections (3) and (4), theGovernor in Council may, on the recommendation ofthe Ministers, make regulations with respect to asubstance specified on the List of Toxic Substances inSchedule 1, including regulations providing for, orimposing requirements respecting, " "● ""93""

(1) Sous réserve des paragraphes (3) et (4), legouverneur en conseil peut, sur recommandation desministres, prendre des règlements concernant unesubstance inscrite sur la liste de l’annexe 1, notammenten ce qui touche : "

" ○ (

a) the quantity or concentration of the substance that may be released into the environment either alone or in combination with any other substance from any source or type of source; " " ○

a) la quantité ou la concentration dans lesquelles elle peut être rejetée dans l’environnement, seule ou combinée à une autre substance provenant de quelque source ou type de source que ce soit; " " ○ (

b) the places or areas where the substance may be released; " " ○

b) les lieux ou zones de rejet; " " ○ (

c) the commercial, manufacturing or processing activity in the course of which the substance may be released; " " ○

c) les activités commerciales, de fabrication ou de transformation au cours desquelles le rejet est permis; " " ○ (

d) the manner in which and conditions under which the substance may be released into the environment, either alone or in combination with any other substance; " " ○

d) les modalités et conditions de son rejet dans l’environnement, seule ou combinée à une autre substance; " " ○ (

e) the quantity of the substance that may be manufactured, processed, used, offered for sale or sold in Canada; " " ○

e) la quantité qui peut être fabriquée, transformée, utilisée, mise en vente ou vendue au Canada; " " ○ (

f) the purposes for which the substance or a product containing it may be imported, manufactured, processed, used, offered for sale or sold; " " ○

f) les fins auxquelles la substance ou un produit qui en contient peut être importé, fabriqué, transformé, utilisé, mis en vente ou vendu; " " ○ (

g) the manner in which and conditions under which the substance or a product containing it may be imported, manufactured, processed or used; " " ○

g) les modalités et conditions d’importation, de fabrication, de transformation ou d’utilisation de la substance ou d’un produit qui en contient; " " ○ (

h) the quantities or concentrations in which the substance may be used; " " ○

h) la quantité ou la concentration dans lesquelles elle peut être utilisée; " " ○ (

i) the quantities or concentrations of the substance that may be imported; " " ○

i) la quantité ou la concentration dans lesquelles elle peut être importée; " " ○ (

j) the countries from or to which the substance may be imported or exported; " " ○

j) les pays d’exportation ou d’importation; " " ○ (

k) the conditions under which, the manner in which and the purposes for which the substance may be imported or exported; " " ○

k) les conditions, modalités et objets de l’importation ou de l’exportation; " " ○ (

l) the total, partial or conditional prohibition of the manufacture, use, processing, sale, offering for sale, import or export of the substance or a product containing it; " " ○

l) l’interdiction totale, partielle ou conditionnelle de fabrication, d’utilisation, de transformation, de vente, de mise en vente, d’importation ou d’exportation de la substance ou d’un produit qui en contient; " " ○ (

m) the total, partial or conditional prohibition of the import or export of a product that is intended to contain the substance; " " ○

m) l’interdiction totale, partielle ou conditionnelle d’importation ou d’exportation d’un produit destiné à contenir la substance; " " ○ (

n) the quantity or concentration of the substance that may be contained in any product manufactured, imported, exported, offered for sale or sold in Canada; " " ○

n) la quantité ou la concentration de celle-ci que peut contenir un produit fabriqué, importé, exporté, mis en vente ou vendu au Canada; " " ○ (

o) the manner in which, conditions under which and the purposes for which the substance or a product containing it may be advertised or offered for sale; " " ○

o) les modalités, les conditions et l’objet de la publicité ou de la mise en vente de la substance ou d’un produit qui en contient; " " ○ (

p) the manner in which and conditions under which the substance or a product containing it may be stored, displayed, handled, transported or offered for transport; " " ○

p) les modalités et les conditions de stockage, de présentation, de transport, de manutention ou d’offre de transport de la substance ou d’un produit qui en contient; " " ○ (

q) the packaging and labelling of the substance or a product containing it; " " ○

q) l’emballage et l’étiquetage de la substance ou d’un produit qui en contient; " " ○ (

r) the manner, conditions, places and method of disposal of the substance or a product containing it, including standards for the construction, maintenance and inspection of disposal sites; " " ○

r) les modalités, lieux et méthodes d’élimination de la substance ou d’un produit qui en contient, notamment les normes de construction, d’entretien et d’inspection des lieux d’élimination; " " ○ (

s) the submission to the Minister, on request or at any prescribed times, of information relating to the substance; " " ○

s) la transmission au ministre, sur demande ou au moment fixé par règlement, de renseignements concernant la substance; " " ○ (

t) the maintenance of books and records for the administration of any regulation made under this section; " " ○

t) la tenue de livres et de registres pour l’exécution des règlements d’application du présent article; " " ○ (

u) the conduct of sampling, analyses, tests, measurements or monitoring of the substance and the submission of the results to the Minister; " " ○

u) l’échantillonnage, l’analyse, l’essai, la mesure ou la surveillance de la substance et la transmission des résultats au ministre; " " ○ (

v) the submission of samples of the substance to the Minister; " " ○

v) la transmission d’échantillons de la substance au ministre; " " ○ (

w) the conditions, test procedures and laboratory practices to be followed for conducting sampling, analyses, tests, measurements or monitoring of the substance; " " ○

w) les conditions, procédures d’essai et pratiques de laboratoire auxquelles il faut se conformer pour les opérations mentionnées à l’alinéa u); "

" ○ (

x) the circumstances or conditions under which the Minister may, for the proper administration of this Act, modify " " ○

x) les cas ou conditions de modification par le ministre, pour l’exécution de la présente loi, soit des exigences posées pour les opérations mentionnées à l’alinéa u), soit des conditions, procédures d’essai et pratiques de laboratoire afférentes; " " ▪ (

i) any requirement for sampling, analyses, tests, measurements or monitoring, or " " " " ▪ (ii) the conditions, test procedures and laboratory practices for conducting any required sampling, analyses, tests, measurements or monitoring; and " " " " ○ (

y) any other matter that by this

Part is to be defined or prescribed or that is necessary to carry out the purposes of this Part. " " ○

y) toute mesure d’ordre réglementaire prévue par la présente

partie et toute autre mesure d’application de la présente partie. " [ 24 ] The respondents argue that the appellants take an inconsistent position on the stay motion to that they took before the Federal Court on the effect of subsequent legislation that added PMIs to

Schedule 1 of CEPA and that this motion consequently should be dismissed. [ 25 ] Subsequent to the passage of the Single-use Regulations , Parliament adopted legislation that also itself added PMIs to

Schedule 1 of CEPA, namely, the Strengthening Environmental Protection for a Healthier Canada Act , S.C. 2023, c. 12 ( Bill S-5). The respondents argue that, in seeking the present stay, the appellants take a position that is inconsistent with their assertion before the Federal Court that Bill S-5 rendered the application to strike the Order moot. They say that, for this reason among others, this stay motion should be refused. [ 26 ] With respect, I disagree.

In its Reasons for Judgment issued in this matter, the Federal Court held at paragraph 32 that the adoption of Bill S-5 did not render the respondents’ m otion to strike the Order moot because: …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 [the original]

Schedule 1 of the List of Toxic Substances. [ 27 ] I express no opinion on whether the Federal Court erred in this regard.

What is certain, though, is that its decision has cast doubt on the validity of the Single-use Regulations and the effect of Bill S-5 on the validity of those regulations, which may well cause considerable confusion in the country. [ 28 ] Given the number of parties impacted by the Single-use Regulations , the recent coming into force of many of the prohibitions in them, and the case law that favours the grant of a stay pending appeal in circumstances where legislation, regulations , o r other promulgation would be rendered inoperative, I find that the second and third steps of the test for the grant of a stay are met in this case.

In short, if the stay were refused, irreparable harm would be done to the orderly roll-out of the Single-use Regulations and considerable confusion would arise for the many businesses that have moved to comply with their provisions. This would not be in the public interest, which has been found by binding case law to exist when there is some indication that the impugned legislation, regulation, or activity was undertaken by a body charged with acting in the public interest.

The Governor in Council, who promulgated the Order, is the highest federal executive authority and is charged with so acting. [ 29 ] Thus, a stay will be granted. However, it will not be for the full duration requested by the appellants. [ 30 ] The appellants have requested that the stay should run until 60 days following the disposition of their appeal from the Federal Court’s judgment. I believe it is appropriate that this interim stay should instead extend only to the date of such disposition.

If the appellants wish a longer stay, they should make a request for it in their memorandum of fact and law and oral argument. It is a matter for the panel hearing the appeal to decide if the stay should be extended past the date on which this Court renders judgment on the appellants’ appeal. I note, parenthetically, that no extension of this stay would be required if the appellants are successful in their appeal. [ 31 ] The respondents have requested that, if the stay is granted, the appeal be expedited.

I agree that this is appropriate. [ 32 ] The parties shall forthwith confer to see if they can agree to a timeline for the completion of the steps required to perfect this appeal, with a view to its being heard by no later than June 7, 2024. They shall submit to the Court their agreed

schedule or, failing agreement, their respective proposed timelines within 7 days. The matter shall thereafter be returned forthwith to the undersigned to make the required order to set the schedule. "Mary J.L. Gleason" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-337-23

STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA, THE MINISTER OF THE ENVIRONMENT AND CLIMATE CHANGE, and THE MINISTER OF HEALTH v. RESPONSIBLE PLASTIC USE COALITION, DOW CHEMICAL CANADA ULC, IMPERIAL OIL, A PARTNERSHIP, BY ITS MANAGING PARTNER IMPERIAL OIL LIMITED and NOVA CHEMICALS CORPORATION MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: GLEASON J.A. DATED: January 25, 2024 WRITTEN REPRESENTATIONS BY : Joseph Cheng Andrew Law Marilyn Venney Alyson E.

Sutton For The Appellants Jennifer Danahy Jay Zakaib Adam Heckman For The Respondents RESPONSIBLE PLASTIC USE COALITION, DOW CHEMICAL CANADA ULC, IMPERIAL OIL, A PARTNERSHIP, BY ITS MANAGING PARTNER IMPERIAL OIL LIMITED Andrew Bernstein For The Respondent NOVA CHEMICALS CORPORATION SOLICITORS OF RECORD : Shalene Curtis-Micallef Deputy Attorney General of Canada For The Appellants GOWLING WLG (CANADA) LLP Toronto, Ontario For The Respondents RESPONSIBLE PLASTIC USE COALITION, DOW CHEMICAL CANADA ULC, IMPERIAL OIL, A PARTNERSHIP, BY ITS MANAGING PARTNER IMPERIAL OIL LIMITED TORYS LLP Toronto, Ontario For The Respondent NOVA CHEMICALS CORPORATION