2019 FC, 2019 FC 1637

Date: 20191218 Docket: T-784-19 Citation: 2019 FC 1637 Ottawa, Ontario, December 18, 2019 PRESENT: The Honourable Mr. Justice Southcott BETWEEN: DAVID SUZUKI FOUNDATION, FRIENDS OF THE EARTH CANADA, ÉQUITERRE, and WILDERNESS COMMITTEE Applicants and MINISTER OF HEALTH and SYNGENTA CANADA INC. Respondents and CROPLIFE CANADA Intervener JUDGMENT AND REASONS I. Overview [ 1 ] This decision relates to an application for judicial review, challenging a decision by the Pest Management Regulatory Agency [PMRA] dated April 11, 2019 [the Decision] to amend certain registrations for a pest control product following a re-evaluation under

section 16 of the Pest Control Products Act , SC 2002, c 28 [the Act ]. Specifically, the Applicants challenge the portion of the Decision that provides a 24-month transition period for implementation of the risk mitigation measures required by these amendments. [ 2 ] The Applicants seek an order: (

a) declaring that the PMRA lacks the jurisdiction to provide the transition period in the Decision; (

b) declaring that the PMRA’s practice of providing a transition period in connection with amendments, pursuant to its Policy on Cancellations and Amendments Following Re-evaluation and Special Review [the Policy], is ultra vires the Act ; and (

c) quashing the transition period in the Decision. [ 3 ] For the reasons explained in greater detail below, this application is dismissed. I have found to be reasonable both the PMRA’s

interpretation of the Act , as providing it authority to include the transition period in the Decision, and its decision to include the transition period. II. Background [ 4 ] The Applicants are the David Suzuki Foundation [Suzuki], Friends of the Earth Canada, Équiterre, and Wilderness Committee.

They are all non-governmental organizations that engage in environmental advocacy. [ 5 ] The Respondents are the Minister of Health [the Minister], who is responsible for the Act and has delegated this responsibility to the PMRA, and Syngenta Canada Inc [Syngenta], the registrant of the neonicotinoid pest control product Thiamethoxam Technical Active [TMX] and 17 associated end-use products in which TMX is the active ingredient [together, the TMX Products].

These products include sprays to be applied to plants and to bare soil (respectively, foliar application and soil application) as well as products used as a coating on crop seeds to prevent insects from eating the seeds when they are planted in the ground and to protect the plants grown from treated seeds (seed treatment). [ 6 ] This proceeding also includes an Intervener, CropLife Canada [CropLife], a trade association representing developers, manufacturers, and distributors of plant science products. [ 7 ] The Act governs the regulation of pest control products in Canada, including both active ingredients and their end-use commercial applications.

The provisions of the Act referenced in this Judgment and Reasons are set out in Appendix " “A” " hereto. Subject to certain exceptions, s 6(1) of the Act prohibits a person from manufacturing, possessing, handling, storing, transporting, importing, distributing, or using a pest control product that is not registered under the Act .

For a product to be registered, or for an existing registration to be amended, an application must be made to the Minister, who then conducts any evaluation considered necessary with respect to the health or environmental risks or the value of the pest control product (ss 7(1) and (3) of the Act ). [ 8 ] If the Minister then considers that the health and environmental risks and the value of the pest control product are acceptable, the Minister must register the product or amend its registration, as applicable, by, inter alia , specifying conditions related to its manufacture, handling, storage, transport, import, export, packaging, distribution, use or disposition, composition, and labelling (s 8(1)(a)).

Otherwise, the Minister must deny the application (s 8(4)). Prior to the events giving rise to this application for judicial review, the TMX Products were registered under the Act upon the application of Syngenta to the PMRA. [ 9 ] After registration, the Minister may initiate the re-evaluation of a registered pest control product if the Minister considers that, since

the product was registered, there has been a change in the information required, or the procedures used, for the evaluation of the health or environmental risks or the value such products (s 16(1)).

Similar to the initial registration, the Minister conducts any evaluation considered necessary with respect to the health or environmental risks or the value of the product and carries out any public consultation required by s 28 of the Act (s 16(6)). [ 10 ] If the Minister considers that the health and environmental risks and the value of the pest control product are acceptable after any required evaluations and consultations have been completed, the Minister must confirm the registration (s 21(1)).

If the Minister does not consider these to be acceptable, the Minister’s obligations are provided as follows by s 21(2): Pest Control Products Act , SC 2002, c 28

Loi sur les produits antiparasitaires, LC 2002, ch 28 Amendment or cancellation Modification ou révocation 21

(2) If the Minister does not consider that the health or environmental risks or value of a pest control product are acceptable, the Minister shall 21

(2) Dans le cas où il n’arrive pas à cette conclusion, le ministre modifie l’homologation s’il estime qu’à la suite de la modification la valeur du produit et les risques sanitaires et environnementaux qu’il présente seraient acceptables, ou il la révoque. (

a) amend the registration if the Minister considers that the health and environmental risks and value of the product would be acceptable after the amendment; or [Blank] (

b) cancel the registration. [Blank] [ 11 ] The meaning of acceptable risk is set out in s 2(2), which provides as follows: Acceptable risks Risques acceptables 2

(2) For the purposes of this Act , the health or environmental risks of a pest control product are acceptable if there is reasonable certainty that no harm to human health, future generations or the environment will result from exposure to or use of the product, taking into account its conditions or proposed conditions of registration. 2

(2) Pour l’application de la présente loi, les risques sanitaires ou environnementaux d’un produit antiparasitaire sont acceptables s’il existe une certitude raisonnable qu’aucun dommage à la santé humaine, aux générations futures ou à l’environnement ne résultera de l’exposition au produit ou de l’utilisation de celui-ci, compte tenu des conditions d’homologation proposées ou fixées. [ 12 ] On June 12, 2012, the PMRA gave notice that it was initiating a re-evaluation of TMX and another neonicotinoid, in light of emerging science on neonicotinoids and their potential effects on pollinators, as well as global updates to the pollinator risk assessment framework.

This re-evaluation proceeded over the course of five years, following which the PMRA published the results in its Proposed Re-Evaluation Decision dated December 19, 2017 [the Proposed Decision].

The Proposed Decision then underwent a 90-day consultation period under s 28 of the Act , during which the PMRA received comments from various categories of interested parties including Syngenta and other registrants, non-profit organizations including the Applicants Suzuki and Équiterre, and other industry participants, including CropLife. [ 13 ] On April 11, 2019, the PMRA issued the final Decision, which is the subject of this application for judicial review. III.

Re-Evaluation Decision [ 14 ] The Decision is almost 250 pages including appendices and, to be fully understood, must be read in conjunction with the Proposed Decision, which is another 400 pages. However, the PMRA’s conclusions are summarized at the beginning of the Decision as follows: Outcome of Science Evaluation The risk assessment, conducted according to the Guidance for Assessing Pesticide Risks to Bees , determined that there are varying degrees of effects on bees. Some current uses of thiamethoxam are not expected to affect bees.

For some uses, mitigation measures (in other words, changes to the conditions of registration) are required to minimize potential exposure to bees. Mitigation measures include changes to the use pattern and label improvements. When thiamethoxam is used in accordance with these new risk reduction measures, the reduced environmental exposure is considered adequate and risks are acceptable. Label statements informing users of the potential for toxicity to pollinators are required on product labels. For other uses, risks to pollinators were not found to be acceptable; therefore, these uses are cancelled.

Regulatory Decision for Thiamethoxam Health Canada has completed the pollinator re-evaluation of thiamethoxam. Under the authority of the Pest Control Products Act , Health Canada has determined that, with required amendments, continued registration of products containing thiamethoxam is acceptable; however, certain uses of thiamethoxam are cancelled to address potential risks of concern to pollinators.

An evaluation of available scientific information found that some uses of thiamethoxam products meet current standards for protection of pollinators when used according to the conditions of registration, which include required amendments to label directions. Label amendments, as summarized below and listed in Appendix III, are required for all

end-use products. No additional data are requested. Risk Mitigation Measures to Protect Pollinators Registered pesticide product labels include specific directions for use. Directions include risk mitigation measures to protect human health and the environment and must be followed by law. As a result of this re-evaluation of thiamethoxam, further risk mitigation measures for product labels are required. Certain crops are highly attractive to bees when their flowers are in bloom.

Since large numbers of bees are attracted to these crops when they are in bloom and based on an assessment of the risks to bees, the application of pesticides containing thiamethoxam can lead to effects that may have an impact on the survival of bee colonies or solitary bee species.

In order to protect pollinators, Health Canada is cancelling the following uses of thiamethoxam : ● Foliar and soil application to ornamental crops that will result in pollinator exposure (in other words, are planted outdoors and are attractive to pollinators) ● Soil application to berry crops, cucurbit crops and fruiting vegetables, and ● Foliar application to orchard trees.

Due to the attractiveness of some crops to bees and based on an assessment of the risks to bees, application of pesticides containing thiamethoxam before and during crop flowering can lead to effects that may have an impact on the survival of bee colonies or solitary bee species. In order to protect pollinators, Health Canada is changing the timing of application for the following uses of thiamethoxam The following crops cannot be sprayed before or during bloom: ● Foliar application to legume and outdoor fruiting vegetables, and ● Foliar application to berry crops (without renovation required for woody berries).

The following crops cannot be sprayed during bloom: ● Foliar application to sweet potato and potato To minimize bee exposure to dust during planting of treated seed, additional label statements are required for the following use: ● Seed treatment of cereal and legume crops. Thiamethoxam has value to crop production in Canada as an insecticide to control a variety of insect pests when applied as a foliar or soil application, as well as a seed treatment.

An assessment of the registered products determined a lack of alternatives for the following pests and sites: ● Brown marmorated stink bug on apple, crab apple, pear, and oriental pear; ● Brown marmorated stink bug and obscure root weevil on bushberries; ● Black vine weevil, cranberry weevil and strawberry root weevil on low growing berries (except strawberry and lowbush blueberry); and Brown marmorated stink bug and black vine weevils on outdoor ornamentals. The additional risk mitigation measures described above will be implemented over a 24-month period.

The risks identified are not considered imminent because they are not expected to cause irreversible harm over this period. Potential effects include sublethal effects on colonies or solitary bees, but affected pollinator populations are expected to recover following implementation of the additional restrictions which will reduce exposure. Moreover, recovery is expected because risks to pollinators are geographically limited to areas where these products are applied and areas adjacent to application sites.

The presence of unaffected solitary bees, bumble bees, and honey bees in areas where products are not being used will further facilitate recovery since unaffected bees in the environment can move back into areas where effects may have occurred. Overall, risk to pollinators is acceptable over the time period required to implement the mitigation measures. As a result of this decision, growers will be required to change their pest management practices. Pesticides have extensive and precise instructions and often require specialized application and safety equipment and training.

This transition period will allow for an orderly and safe implementation of these new restrictions, and should reduce the risk of product misuse or the improper disposal of products as users switch to alternatives, where required. This approach is consistent with Health Canada’s current policy and practice with respect to phase out of uses as a result of a re-evaluation (Regulatory Directive DIR2018-01, Policy on Cancellations and Amendments Following Re-evaluation and Special Review ) and with the practice of other international regulators.

A small subset of uses were found to lack alternatives for the management of serious pests (the invasive brown marmorated stink bug and certain weevils) on a very few crops present in limited geographical areas of Canada. As a result, the

implementation of the re-evaluation decision for these uses will be delayed for an additional year to allow growers to find pest management solutions. During this period, the overall exposure to pollinators will be significantly reduced through both removal of uses to control other pests on these crops and other crops that pose a risk to bees, as well as through implementation of additional restrictions in application timing which will further reduce pollinator exposure. The risks to pollinators are therefore considered acceptable for an additional year for this small subset of uses.

Next Steps To comply with this decision, taking into account Regulatory Directive DIR2018-01, Policy on Cancellations and Amendments Following Re-evaluation and Special Review , the required mitigation measures must be implemented on all product labels sold by registrants no later than 24 months after the publication date of this decision document . Appendix I lists the products containing thiamethoxam that are registered under the authority of the Pest Control Products Act .

Other Information Any person may file a notice of objection regarding this decision on thiamethoxam within 60 days from the date of publication of this Re-evaluation Decision. For more information regarding the basis for objecting (which must be based on scientific grounds), please refer to the Pesticides

section of the Canada.ca website (Request a Reconsideration of Decision) or contact the PMRA’s Pest Management Information Service. [Internal cites omitted; underlining emphasis added; bold emphasis in original] IV. Policy [ 15 ] This application seeks relief not only against the portion of the Decision underlined above, but also in relation to the portion of the Policy referenced and relied upon in the Decision.

The PMRA published the Policy on March 7, 2018 describing its purpose as follows: 1.0 Purpose The purpose of this policy is to provide a framework for the cancellation of pesticide products or amendments to pesticide product uses, labels, or other conditions of registration following a re-evaluation or special review decision. The policy also outlines the process, the associated timelines as well as how the timelines for cancellation or amendment of pesticide products are established.

This policy is intended to enhance transparency of the process and associated timelines when regulatory action is required to remove products from the market, change approved uses, or introduce amendments to labels. It is intended to facilitate efficient and effective implementation of re-evaluation and special review decisions. Standardized timelines aim to clarify expectations, obligations and communications around the implementation of regulatory decisions. [ 16 ] The PMRA practice, which the Applicants ask this Court to declare ultra vires the Act , is set out in

Section 6.2 of the Policy as follows: 6.2 Amendment Timelines When an amendment to a registration is determined to be necessary as a result of the product not meeting current standards for human health and/or environmental protection, such as the need for additional risk mitigation measures or the cancellation of certain uses ( refer to Appendix I.a ): ● The PMRA notifies registrants of the need to amend their product registration and update product labels to reflect the required amendments. The PMRA also communicates the required process and implementation timelines. ● Registrants submit an application.

The PMRA reviews the applications within the performance standard (i.e., 37 calendar days for completeness check followed by 240 calendar days for review). When there are no imminent and serious risks to human health or environment, registrants will generally have up to two (2) years from the date of the decision to transition to selling the product with the newly amended labels.

Subsequent to the decision, if at any point it is determined that imminent and serious risks to human health and/or the environment may exist, expedited timelines will be determined on a case-by-case basis commensurate with the likelihood and severity of the risk. [Underlining emphasis added] V. Issues [ 17 ] The Applicants take issue with the underlined portions of the above paragraphs of the Decision and the Policy, which afford a 24- month transition period for implementation of risk mitigation measures.

The Applicants argue that this transition period represents a delay which is outside the PMRA’s statutory authority. Their arguments rely significantly on s 21(3) of the Act , which provides as follows:

Delay of effective date Report de la modification ou de la révocation 21

(3) The Minister may delay the effective date of the amendment or cancellation if 21

(3) Le ministre peut différer la modification ou la révocation de l’homologation lorsqu’il n’existe aucune solution de rechange satisfaisante à l’utilisation du produit antiparasitaire et qu’il juge que la valeur du produit et les risques sanitaires et environnementaux qu’il présente sont, jusqu’à la date de modification ou de révocation, acceptables. (

a) no suitable alternative to the use of the pest control product is available; and [BLANK] (

b) the Minister considers that the health and environmental risks and value of the product are acceptable until the effective date of the amendment or cancellation. [BLANK] [ 18 ] The Applicants do not take issue with the delay of an additional year for the subset of uses that the Decision found lacked alternatives for the management of serious pests [the Subset Uses], as they consider that delay to be permitted by s 21(3). [ 19 ] The Applicants and each of the Respondents articulate the substantive issues for the Court’s determination somewhat differently.

However, in my view, the following set of issues provides a framework for consideration of the arguments raised by all parties, including the Intervener, in determining whether the Applicants are entitled to any of the relief claimed: A . Which standard of review applies to the issues raised by the Applicants? B . Does the PMRA lack the authority to provide a transition period in connection with amendments following a re-evaluation, where the requirements of s 21(3) of the Act are not met? C .

If the PMRA does have such authority, did the PMRA nevertheless commit reviewable error in providing the transition period in the Decision, through either its adoption or its application of the test for acceptable risk employed in the Decision? D . If the Court concludes that it should quash the portion of the Decision that provides the transition period, should it quash just that portion of the Decision or the entire Decision? VI.

Preliminary Issue – Motion to Strike the Syngenta Affidavit [ 20 ] Before turning to the above issues, it is necessary to address a preliminary issue that the Applicants raise concerning Syngenta’s supporting affidavit. Syngenta relies on an affidavit of its Head of Crop Protection Development, Dr. Nancy Tout, sworn on June 21, 2019. On July 3, 2019, the Applicants filed a motion seeking to strike portions of Dr. Tout’s affidavit, as well as exhibits thereto.

The parties subsequently agreed this motion would be argued at the main hearing of this application for judicial review and could be addressed in this Judgment and Reasons. [ 21 ] The portions of Dr. Tout’s affidavit and exhibits the Applicants seek to strike fall broadly into the following categories: A . Evidence concerning the past, present or intended commercialization of particular TMX Products, which the Applicants submit: (

i) represents irrelevant information not before the decision-maker, (ii) is based on information and belief contrary to Rule 81(1) of the Federal Courts Rules , and/or (iii) represents argument; B . Evidence as to categories of information included on TMX Product labels, which the Applicants submit represents unqualified expert opinion and argument; and C .

Evidence as to Syngenta’s preparation and submission of draft amended product labels pursuant to the Decision, including copies of such draft labels attached as exhibits, which the Applicants submit represents irrelevant information not before the decision- maker and/or represents argument. A. Evidence of Commercialization of TMX Products [ 22 ] Dr. Tout deposes that four of Syngenta’s seed treatment pest control products, which are registered under the Act , are not currently commercialized for sale and are not intended to be commercialized.

She states that Syngenta is moving forward to discontinue these products. Dr. Tout also identifies one of Syngenta’s soil and foliar pest control products which, while registered, has never been commercialized for sale in Canada. [ 23 ] In her affidavit, Dr. Tout states that she has knowledge of the matters to which she deposes and that the statements in her affidavit are made to the best of her knowledge, based on her own experience and involvement in the matters which are the subject of the affidavit and her review and knowledge of the contents of documents related to such matters.

She also explains that, where her statements are based on information and belief, she has stated the source of that information and believes such information to be true. The only subjects in the affidavit, in relation to which Dr. Tout states a source of information and her belief therein, are the commercialization of the products described above.

[ 24 ] The Applicants therefore argue that Dr. Tout’s evidence surrounding commercialization of Syngenta’s products (found in paragraphs 11, 13, 48 and 50) should be struck from her affidavit, because it offends Rule 81(1) . This Rule provides that affidavits shall be confined to facts within the deponent’s personal knowledge, except on certain motions. I agree with Syngenta’s response to this argument, that this evidence from Dr.

Tout constitutes corporate evidence which relevant authority recognizes does not infringe Rule 81(1) . [ 25 ] In Twentieth Century Fox Home Entertainment Canada Ltd v Canada (Attorney General) , 2012 FC 823 [ Twentieth Century Fox ] at paragraphs 22 to 23 , Justice Phelan noted that Rule 81(1) must be considered in light of the Supreme Court’s acceptance of hearsay on a principled basis and that this Court has accepted evidence on information and belief.

Justice Phelan described the evidence of the deponent in that case as " “corporate” " evidence, noting that he acted in a supervisory capacity and was responsible for the subordinate who provided information to the deponent, such that he was in a position to know if the facts were true. [ 26 ] In O’Grady v Canada (Attorney General) , 2016 FC 9 at paragraphs 19 to 20 , Justice LeBlanc relied on Twentieth Century Fox in concluding that, while the respondent’s affiant had sworn her affidavit on information and belief, her position with Statistics Canada was such that she was probably aware of the particular facts to which she had deposed and was therefore in a position to swear the affidavit.

On appeal, the Federal Court of Appeal confirmed that Justice LeBlanc had not erred in considering the admissibility of the affidavit and had correctly determined that the affiant, by virtue of her responsibilities in the Government of Canada, was in a position to depose to the matters in question without necessarily having personal knowledge ( 2016 FCA 221 at para 10 ). [ 27 ] The same analysis applies in the present circumstances. Dr.

Tout deposes that she has been the Head of Crop Protection Development for Syngenta since March 2016 and describes her responsibilities in that role, including working closely with Syngenta’s regulatory team. The individuals, who Dr. Tout states advised her as to the commercialization of the products to which the disputed evidence relates, are the respective Regulatory Portfolio Managers for those products.

Given her role, and the nature of her evidence as corporate evidence, I am satisfied that Rule 81(1) does not preclude admission of this evidence. [ 28 ] The Applicants also argue that this evidence is irrelevant and argumentative. I find no merit to the submission that the evidence is argumentative, as it represents simple statements of fact surrounding the past, present, or future commercialization of certain products. Syngenta submits that the evidence is relevant, because the PMRA would have been aware of the commercialization of the various TMX Products that were the subject of its re-evaluation.

Syngenta observes that s 8(5) of the Act requires a registrant of pest control product, as a condition of registration, to report to the Minister information on sales of the product. I accept that the evidence is relevant and find no basis to strike it from Dr. Tout’s affidavit. However, I also note that nothing turns on this decision, as this evidence is not material to the analysis of the substantive issues in this application. B. Evidence of Categories of Information on TMX Product Labels [ 29 ] Dr.

Tout’s affidavit includes evidence (in paragraph 16) in which she provides examples of categories of information that are included among the environmental precautionary measures and directions for use on TMX Product labels. The Applicants submit this evidence represents unqualified expert opinion and argument. [ 30 ] I find nothing argumentative about this evidence.

While it represents examples of categories of information provided on product labels, and therefore is not an exhaustive list, the evidence remains factual and is not offered in a manner that I consider to represent advocacy or argument. [ 31 ] Nor is there merit to the Applicants’ argument that this paragraph represents unqualified expert opinion. Dr.

Tout’s affidavit explains that an integral part of her duties at Syngenta includes knowing and understanding the product label requirements of the PMRA and the Act, including identifying what information Syngenta is required to list on its pest control product labels to satisfy applicable statutory, regulatory, and policy requirements. The evidence in the disputed paragraph does not represent opinion but rather is factual testimony based on Dr.

Tout’s experience with the regulatory process that is the subject of this application for judicial review. [ 32 ] I find no basis to strike this paragraph of the affidavit. C. Evidence of Syngenta’s Draft Amended Product Labels [ 33 ] Dr. Tout’s affidavit includes (in paragraphs 21, 23, 29, 35, 38, 42, 46 and 50) evidence surrounding Syngenta’s preparation and submission to the PMRA of draft TMX Product labels, in compliance with the requirements of the Decision, and attaches copies of such draft labels as exhibits.

The Applicants submit this evidence represents irrelevant information not before the decision-maker and argument. [ 34 ] Again, I find nothing argumentative about this evidence, as it is purely factual. However, the Applicants’ submissions, that this evidence is irrelevant and was not before the PMRA when it made its decision, require more detailed consideration.

As the Applicants correctly submit, as a general rule, evidence on judicial review is restricted to the evidentiary record that was before the administrative decision-maker, and evidence that goes to the merits of the matter before the decision-maker is not admissible on judicial review (see Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright) , 2012 FCA 22 [ Access Copyright ] at para 19 ; Delios v Canada (Attorney General) , 2015 FCA 117 [ Delios ] at para 42 ). [ 35 ] There are exceptions to this general rule (see Access Copyright at para 20 ), but the only exception potentially applicable to the present circumstances is the so-called " “general background” " exception (see Delios at para 43 et seq ).

Both the Applicants and the Respondents refer the Court to Bernard v Canada (Revenue Agency) , 2015 FCA 263 [ Bernard ] at paras 20 to 23 , which describes this exception as follows: 20 The first recognized exception is the background information exception. Sometimes on judicial review parties will file an affidavit that contains summaries and background aimed at assisting the reviewing court in understanding the record

before it. For example, where there is a large record consisting of many thousands of documents, it is permissible for a partyto file an affidavit identifying, summarizing and highlighting, without argumentation, the documents that are key to thereviewing court’s understanding of the record. 21 In Delios, above, I put it this way (at paragraph 45): The “general background” exception applies to non-argumentative orienting statements that assist the reviewingcourt in understanding the history and nature of the case that was before the administrative decision-maker.

Injudicial reviews of complex administrative decisions where there is procedural and factual complexity and arecord comprised of hundreds or thousands of documents, reviewing courts find it useful to receive an affidavitthat briefly reviews in a neutral and uncontroversial way the procedures that took place below and the categoriesof evidence that the parties placed before the administrator.

As long as the affidavit does not engage in spin oradvocacy – that is the role of the memorandum of fact and law – it is admissible as an exception to the generalrule. 22 But “[c]are must be taken to ensure that the affidavit does not go further and provide [fresh] evidence relevant to themerits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider”: Access Copyright, above at paragraph 20; Delios, above at paragraph 46. 23 The background information exception exists because it is entirely consistent with the rationale behind the general ruleand administrative law values more generally.

The background information exception respects the differing roles of theadministrative decision-maker and the reviewing court, the roles of merits-decider and reviewer, respectively, and in sodoing respects the separation of powers. The background information placed in the affidavit is not new information going tothe merits. Rather, it is just a

summary of the evidence relevant to the merits that was before the merits-decider, theadministrative decision-maker. In no way is the reviewing court encouraged to invade the administrative decision-maker’srole as merits-decider, a role given to it by Parliament.

Further, the background information exception assists this Court’stask of reviewing the administrative decision (i.e., this Court’s task of applying rule of law standards) by identifying,summarizing and highlighting the evidence most relevant to that task. [36] Syngenta takes the position that the disputed evidence was before the PMRA and also that it falls within the general backgroundexception.

To be clear, Syngenta is not arguing that the proposed amended labels were actually before the decision-maker in that form.Rather, it submits that the Court should take a broad view of what constitutes information before the decision-maker, including thedecision-maker’s regulatory experience (see Bell Canada v 7262591 Canada Ltd, 2016 FCA 123 at para 15).

I understand Syngenta’sargument to be that, given the PMRA’s experience in administering the regulatory scheme under the Act, it made the Decision with anunderstanding of the nature of the product label amendments that would be required as a result of the Decision. [37] Alternatively, Syngenta submits that provision to the Court of copies of the proposed amended labels falls within the backgroundexception, because it represents a distillation of the amended conditions of registration resulting from the Decision and therefore assiststhe Court to understand the Decision. [38] I find merit to both of Syngenta’s arguments.

As explained in the above passage from Bernard, both the general rule and thebackground exception are intended to respect the differing roles of the administrative decision-maker and the reviewing court. In thepresent case, the draft labels are provided to the Court for a purpose that respects these differing roles and do not represent an effort tointroduce fresh evidence, relevant to the merits, that was not before the PMRA. [39] The labels appended to Dr. Tout’s affidavit are presented in a form which demonstrates through black-lining the proposed changesfrom the existing labels that predated the Decision.

The principal issue the Court must address in this application for judicial reviewsurrounds the PMRA’s

interpretation of its statutory authority. The arguments advanced by the parties in connection with this issueinclude submissions that require an understanding of the practical implications of the Decision, such as the requirement to generateamended labels. It is therefore potentially useful for the Court to understand what is required on the ground to implement the Decisionthrough these labels.

Presumably, the PMRA had such an understanding, and the proposed amended labels represent a means by whichthe Court can develop such an understanding more easily than by attempting to parse the amended conditions of registration set out inthe Decision. [40] In conclusion on the motion, I find no basis to strike any of the impugned portions of Dr. Tout’s affidavit. The Applicants’ motionis therefore dismissed in its entirety. VII. Analysis A.

Which standard of review applies to the issues raised by the Applicants? [41] Before turning to analysis of the substantive issues in this application, it is necessary to address the applicable standard of review,on which the parties disagree for most of the issues. [42] Other than in connection with one of its last arguments, surrounding the application of the test for acceptable risk in the Decision,the Applicants take the position that the issues raised in this application are reviewable on a standard of correctness, because theyinvolve statutory

interpretation by the PMRA. In contrast, the Respondents take the position that all issues in this application, includingthose involving statutory

interpretation, are reviewable on the reasonableness standard. [43] The Applicants’ arguments on standard of review begin with the Supreme Court’s explanation in Dunsmuir v New Brunswick, 2008SCC 9 , [2008] 1 SCR 190 [Dunsmuir] at para 62, that the process of judicial review involves two steps. First, courts ascertain

whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be afforded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. The Applicants take the position that applicable jurisprudence has already established that questions relating to the Minister’s

interpretation of the Act are reviewable on a standard of correctness. [ 44 ] The Applicants rely principally on Équiterre v Canada (Minister of Health) , 2016 FC 554 [ Équiterre ] at paragraphs 45-48 , in which the Federal Court addressed the standard of review applicable to a question of statutory

interpretation surrounding s 17 of the Act (relating to the Minister’s obligations to conduct a special review of the registration of a pest control product) as follows: 45 The Supreme Court of Canada has reiterated that the presumptive standard of review is “reasonableness”, including for

interpretations of the decision-makers’ home statute. The reach of that presumption is more case-dependent. However, the elegantly simple analysis in Wier v Canada (Minister of Health) , 2011 FC 1322 , 400 FTR 212, that the Minister’s

interpretation of the legal standards imposed on him by statute is reviewable on the standard of correctness but the performance of the duties rests on reasonableness, does not hold the same force and effect. 46 The Federal Court of Appeal in Canada (Fisheries and Oceans) v David Suzuki Foundation , 2012 FCA 40 , [2013] 4 FCR 155 [ David Suzuki ], recognized that the presumption can and will be rebutted: [88] However, deference on a question of law will not always apply, notably where the administrative body whose decision or action is subject to review is not acting as an adjudicative tribunal, is not protected by a privative clause, and is not empowered by its enabling legislation to authoritatively decide questions of law.

A standard of review analysis is still required in appropriate cases. As noted by Justices Bastarache and LeBel at paragraphs 63 and 64 of Dunsmuir : [63] The existing approach to determining the appropriate standard of review has commonly been referred to as “pragmatic and functional”. That name is unimportant. Reviewing courts must not get fixated on the label at the expense of a proper understanding of what the inquiry actually entails.

Because the phrase “pragmatic and functional approach” may have misguided courts in the past, we prefer to refer simply to the “standard of review analysis” in the future. [64] The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. 47 Recognizing that the Agency is a specialized body and entitled to deference does not equate with any expertise in

interpretation of the obligations imposed on the Minister. In my view, the presumption is displaced because, as noted in David Suzuki , this is not an administrative tribunal tasked with deciding issues of law; it has no privative clause; the issue is the citizen’s right to require the Executive to do what Parliament says it should; and the function required –

interpretation of a statute – is not a matter that touches on any area of Agency expertise. 48 Further, the issue of standard of review is largely academic. Even on a reasonableness standard, the

interpretation of s 17(2) admits of only one answer. [ 45 ] The Applicants submit that, as in Équiterre , the exercise of interpreting the Minister’s authority surrounding timing of the implementation of an amendment does not depend on the technical and specialized expertise of the PMRA. The Applicants also argue that the correctness standard applies in this case, because it involves a question of true jurisdiction.

They rely on United Taxicab Drivers’ Fellowship of Southern Alberta v Calgary (City) , 2004 SCC 19 , in which the question whether a City of Calgary bylaw was ultra vires the provincial legislation was a question of true jurisdiction reviewable on the standard of correctness. [ 46 ] In contrast, the Respondents rely on the decision of the Supreme Court of Canada in Canada (Human Rights Commission) v Canada (Attorney General) , 2018 SCC 31 [ CHRC ], which the Respondents argue has overtaken the standard of review analysis performed in Équiterre , requiring this Court to revisit that analysis and pointing to a conclusion that the standard of review applicable to the PMRA’s

interpretation of the Act in the case at hand is reasonableness. [ 47 ] In CHRC , the majority of the Supreme Court explains that the Court has for years attempted to simplify the standard of review analysis in order to prompt litigants to argue the substantive merits of their cases rather than tests for standard of review. To that end, there is a well-established presumption that, where an administrative tribunal interprets its home statute, the reasonableness standard applies (at para 27). CHRC states this presumption may be rebutted, and the correctness standard applied, where one of the following categories can be established: (

a) true questions of vires ; (

b) issues relating to the constitutional division of powers; (

c) issues of competing jurisdiction between tribunals; and (

d) questions that are of central importance to the legal system and outside the expertise of the decision-maker.

CHRC also states that, exceptionally, the presumption can be rebutted where a contextual inquiry shows a clear legislative intent that the correctness standard be applied (at para 28). [ 48 ] CHRC describes true questions of vires or jurisdiction as a narrow and exceptional category of correctness review (at para 31) The Supreme Court notes that, in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 [ Alberta Teachers ] , a majority of the Court considered eliminating this category (at para 34); and, since Alberta Teachers , the Court has not identified a single instance where this category was applicable (at para 37).

It describes this category as being " “on life support” " (at para 41). [ 49 ] CHRC also explains that true questions of vires are questions that determine whether one has authority to enter into an inquiry, as opposed to simple questions of jurisdiction, involving questions that determine the scope of one’s authority (at para 38). It is clear to me that the principal question raised in the present application, whether the PMRA has the jurisdiction or authority to provide a transition

period in connection with amendments following a re-evaluation, involves the scope of the PMRA’s authority, not whether it hasauthority to enter into the inquiry giving rise to the Decision. It is not a true question of vires. [50] However, the Équiterre decision, upon which the Applicants rely, did not turn on the category of true question of vires. Rather, theconclusion in Équiterre resulted from a contextual inquiry, taking into account the absence of a privative clause in the Act and the factthe tribunal was not tasked with deciding issues of law and had no expertise in statutory

interpretation. [51] In CHRC, the Supreme Court described the contextual approach as playing a subordinate role in the standard of review analysiswhere the presumption of reasonableness applies (at paras 45, 47). While a contextual inquiry can occasionally rebut this presumption,this will occur in the "“exceptional other case”" (at para 45).

The Supreme Court also notes that, in the past, this has been limited tocircumstances where determinative factors have shown a clear legislative intent justifying the rebuttal of the presumption (at para 46). [52] I recognize the guidance in Dunsmuir that it is unnecessary to conduct a standard of review analysis in relation to a category ofquestion where the jurisprudence has already determined in a satisfactory manner the degree of deference to be afforded to that category(at para 62).

However, I agree with the Respondents’ submissions that the Supreme Court’s relatively recent pronouncements in CHRCmilitate in favour of revisiting the standard of review analysis, as performed in Équiterre and the jurisprudence upon which it relied,applicable to the PMRA’s

interpretation of the Act. [53] The statutory

interpretation question before the Court involves the PMRA’s

interpretation of its home statute. The presumption ofreasonableness therefore applies. None of the categories, in which the presumption is rebutted in favour of correctness, applies in thiscase. As noted in CHRC, in explaining that the contextual approach should be used sparingly, the presumption of reasonableness reviewand the identified categories will generally be sufficient to determine the applicable standard (at para 46).

While this guidance suggestsno need to turn to the contextual approach in the case at hand, I have nevertheless considered the effect of the contextual approach,because it was employed in the standard of review analysis in Équiterre. [54] Employing that approach, and considering the factors that influenced the finding in Équiterre, but with the benefit of the subsequentguidance in CHRC, I find no clear legislative intent justifying rebuttal of the presumption of reasonableness. As noted in CHRC, theabsence of a privative clause does not rebut the presumption of deference (at para 50).

I appreciate that the PMRA is not principallytasked with deciding issues of law or broadly an expert in statutory

interpretation. However, the presumption of reasonableness, in thecontext of an administrative tribunal interpreting its home statute, is premised on the tribunal having expertise relevant to interpretingthat particular statute. [55] In McLean v British Columbia (Securities Commission), 2013 SCC 67 [McLean] at paragraphs 30-33, the Supreme Court explainedthat the modern approach to judicial review does not allow for a neat division between what one might call a "“lawyer’s question”" and a"“bureaucrat’s question”". This is because the choice between multiple reasonable

interpretations of an administrative decision-maker’shome statute will often involve policy considerations that we presume the legislature intended the decision-maker, not the courts, tomake. The exercise of that interpretive discretion is part of an administrative decision-maker’s expertise. In my view, there is nothingabout the nature of the PMRA, or the particular question currently before the Court (involving an aspect of the scope of the PMRA’sauthority when making a re-evaluation decision), that takes this matter outside the circumstances where this presumption as to thelegislature’s intent applies.

I will therefore apply the standard of reasonableness to that question. [56] As noted in the list of issues set out earlier in these Reasons, the Applicants argue that, even if the PMRA does have the disputedauthority, it nevertheless committed reviewable error in providing the transition period in the Decision, through either its adoption of thetest for acceptable risk employed in the Decision or its application of that test.

While the Applicants acknowledge that application of thetest is subject to a reasonableness review, they argue that whether the PMRA erred in the test it adopted requires a correctness review, asit necessarily involves a question of statutory

interpretation. Applying the same reasoning as I applied to the question of the PMRA’sauthority to provide a transition period, I find this question to be reviewable on the standard of reasonableness. It involves the PMRA’sinterpretation of its home statue and forms part of the risk analysis with which it is tasked under the Act. No categorical exceptions orcontextual analysis factors warrant application of the correctness standard. [57] I therefore find that all substantive issues in this application are reviewable on the standard of reasonableness. B.

Does the PMRA lack the authority to provide a transition period in connectionwith amendments following a re-evaluation, where the requirements of s 21(3) of theAct are not met?

(1) Framework for Reasonableness Review of Statutory

Interpretation [58] The Applicants take the position that the Act does not provide the PMRA with the authority to employ a transition period inconnection with the amendment of a registration following a re-evaluation—either as contemplated by the Policy, or as included in theDecision. They submit that, in the event I found this issue to be reviewable on a standard reasonableness, the PMRA’s

interpretation ofthe Act as providing it with this authority is not reasonable. The Applicants refer to McLean, in which the Supreme Court explained itwill not always be the case that a particular statutory provision permits multiple reasonable

interpretations. Where the ordinary tools ofstatutory

interpretation lead to a single reasonable

interpretation and the administrative decision-maker adopts a different one, itsinterpretation will necessarily be unreasonable (at para 38). [59] The parties agree on the applicable principles of statutory

interpretation. As summarized in the Applicants’ Memorandum of Fact inLaw (citing, e.g., Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27 at paras 21, 31, 35): The modern approach to statutory

interpretation requires that the words of

an Act are to be read in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of

Parliament. Legislative purpose and intent provide important context in discerning the meaning of the legislation. Legislative history, including Hansard evidence to a limited extent, can provide insight into legislative purpose and intent. [ 60 ] The Applicants also refer the Court to Justice Grammond’s recent decision in Mason v Canada (Citizenship and Immigration) , 2019 FC 1251 [ Mason ], which provides a very thoughtful analysis of how the Court might approach the task of conducting reasonableness review of an issue of statutory

interpretation by an administrative tribunal. Justice Grammond concludes that modern principles of statutory

interpretation, requiring attention to the text, context, and purpose of the provision to be interpreted, should be applied when conducting such a review. Such principles are not incompatible with deference, and their use does not necessarily lead to what had been termed " “disguised correctness review” " . Rather, a deferential review of statutory

interpretation decisions is possible if the reviewing judge keeps in mind that: (

a) many statutory

interpretation problems admit of more than one reasonable answer; and (

b) the methods of statutory

interpretation are not binding rules that dictate a particular outcome (at paras 17 to 21). [ 61 ] However, Mason also emphasizes that, while deference forbids courts from substituting their own views for those of the decision- maker, it does not permit decision-makers to subvert Parliament’s intent (at para 11). Justice Grammond uses the language of a " “knock- out punch” " to refer to a statutory

interpretation argument that is internally consistent, that withstands scrutiny, and that is not met by an argument of similar force. Such an argument, which may be based on any of the recognized methods of statutory

interpretation, may be conclusive evidence of Parliament’s intent and a basis for finding an administrative decision-maker’s

interpretation unreasonable. Where the reviewing court does not find a " “knock-out punch” " , the decision-maker’s

interpretation should be considered to be reasonable, even if it is not the reviewing judge’s preferred

interpretation (at paras 25-31). [ 62 ] I note that some of the framework set out in Mason involves consideration of the arguments taken into account by a tribunal in arriving at a given statutory

interpretation. This aspect of the Mason framework is not directly applicable to the present case, as the Decision does not contain an express statutory

interpretation analysis. The Minister argues that, in such circumstances, the guidance provided by Alberta Teachers applies (at paras 51-54 ): 51 In the present case, the adjudicator, by completing the inquiry, implicitly decided that extending the 90-day period for completion of an inquiry after the expiry of that period did not result in the automatic termination of the inquiry. However, as the issue was never raised and the decision was merely implicit, the adjudicator provided no reasons for her decision.

It is therefore necessary to address how a reviewing court is to apply the reasonableness standard in such circumstances. 52 In Dunsmuir , the majority explained (at paras. 47-48): In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”: “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286. Obviously, where the tribunal’s decision is implicit, the reviewing court cannot refer to the tribunal’s process of articulating reasons, nor to justification, transparency and intelligibility within the tribunal’s decision-making process.

The reviewing court cannot give respectful attention to the reasons offered because there are no reasons. 53 However, the direction that a reviewing court should give respectful attention to the reasons “which could be offered in support of a decision” is apposite when the decision concerns an issue that was not raised before the decision maker. In such circumstances, it may well be that the administrative decision maker did not provide reasons because the issue was not raised and it was not viewed as contentious.

If there exists a reasonable basis upon which the decision maker could have decided as it did, the court must not interfere. 54 I should not be taken here as suggesting that courts should not give due regard to the reasons provided by a tribunal when such reasons are available. The direction that courts are to give respectful attention to the reasons “which could be offered in support of a decision” is not a “carte blanche to reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favour of the court’s own rationale for the result” ( Petro-Canada v.

Workers’ Compensation Board (B.C.) , 2009 BCCA 396 , 276 B.C.A.C. 135 , at paras. 53 and 56 ). Moreover, this direction should not “be taken as diluting the importance of giving proper reasons for an administrative decision” ( Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 , at para. 63 , per Binnie J.). On the contrary, deference under the reasonableness standard is best given effect when administrative decision makers provide intelligible and transparent justification for their decisions, and when courts ground their review of the decision in the reasons provided.

Nonetheless, this is subject to a duty to provide reasons in the first place. When there is no duty to give reasons (e.g., Canada (Attorney General) v. Mavi , 2011 SCC 30 , [2011] 2 S.C.R. 504 ) or when only limited reasons are required, it is entirely appropriate for courts to consider the reasons that could be offered for the decision when conducting a reasonableness review.

The point is that parties cannot gut the deference owed to a tribunal by failing to raise the issue before the tribunal and thereby mislead the tribunal on the necessity of providing reasons. [ 63 ] The Applicants disagree the principles in Alberta Teachers set out above are applicable, because these principles were premised on the disputed question not having been raised at all before the tribunal in that case. The Applicants note that, in the present case, the Policy includes a

section entitled " “Context and Legal Framework” " , as well as an appendix entitled " “Legislative Authority.” " The Applicants argue this content should be construed as the PMRA’s reasons for the statutory

interpretation demonstrated by the Policy and subsequently the Decision, such that the arguments presented by the Respondents in this application, to extent they vary from the reasons contained in the Policy, represent inappropriate bolstering of those reasons. [ 64 ] The Context and Legal Framework

section of the Policy refers to the re-evaluation and special review processes for post-market

review of registered pest control products, provided respectively by ss 16 and 17 of the Act , and concludes with the following paragraphs: During a re-evaluation or special review, pursuant to s. 20(1), the Minister may amend or cancel the registration if a registrant fails to provide information required under s. 16(3) , s. 18(1) or para. 19(1) (

a) of the Pest Control Products Act , or if the Minister has reasonable grounds to believe that the amendment or cancellation is necessary to deal with a situation that endangers human health or safety or the environment, taking into account the precautionary principle (s. 20(1)(b); s. 20(2)). The Pest Control Products Act also provides the authority to amend or cancel the registration of a pest control product when, after considering the necessary scientific evaluations and consultations, the Minister does not consider the risks or value of the product to be acceptable (para. 21(2)(

a) and (b)). In these circumstances a phase-out may be implemented as part of the decision, commensurate with the level of risk. When the re-evaluation or special review decision is to cancel a registration of a pest control product, continued possession, handling, storage, distribution and use of stocks may be allowed, subject to any conditions considered necessary (para. 21(5) (a)).

The implementation date of cancellation may be delayed if no suitable alternatives to the use of the pesticide is available, and a determination is made that human health and environmental risks and value of the product are considered acceptable until the effective date of the amendment or cancellation (s. 21(3)). This policy has undergone a 60-day public consultation as Regulatory Proposal PRO2016-04, Policy on Cancellations and Amendments Following Re-valuation and Special Review which was published on 21 December 2016.

Comments received during this consultation were taken into consideration for the preparation of this document. [Underlining emphasis added] [ 65 ] The Legislative Authority appendix states that it lists the sections of the Act that are relevant to the amendment or cancellation of registration of pest control products in the context of re-evaluation or special review. The appendix then sets out the text of certain

section of the Act (ss 7(1), 16(1)-(3), 17(1)-(4), 18(1), 19(1)(a), 20, 21(2)-(5), and 22). [ 66 ] It is clear from the sentence in the Context and Legal Framework

section emphasized above, and indeed from the Decision itself, that the PMRA interprets the Act as conferring upon it the authority, when amending a registration under s 21(2)(a), to implement a phase-out or transition period between the original and amended conditions of registration. While the Legislative Authority appendix cites certain provisions of the Act , the Policy provides no particular analysis, of those provisions or otherwise, in support of its

interpretation. [ 67 ] I acknowledge that

section 6.2 of the Policy, reproduced earlier in these Reasons, explains the activities involved in a transition period and provides some insight into the PMRA’s rationale for such a period. However, this

section does not set out a statutory

interpretation analysis. There is no evidence that the statutory

interpretation question presently at issue was raised before the PMRA when issuing the Policy or Decision. While the Policy states that it was the subject of a public consultation, the comments received as part of that consultation are not part of the record before the Court. In my view, the content of the Policy does not detract from the application of the principles from Alberta Teachers described above.

(2) The Applicants’ Position [ 68 ] The Applicants’ principal arguments, in support of their position that the PMRA lacks authority for the impugned transition periods contemplated by the Policy and included in the Decision, are as follows. [ 69 ] First, the Applicants emphasize s 4(1) of the Act states that, in the administration of the Act , the Minister’s primary objective is to prevent unacceptable risks to individuals and the environment from the use of pest control products.

The Applicants also cite multiple Hansard references supporting their submission that the purpose of the Act is to protect Canadians and their environment from the risks associated with pesticides. [ 70 ] Pursuant to s 2(2), the health or environmental risks of a pest control product are acceptable if there is reasonable certainty that no harm to human health, future generations or the environment will result from exposure to or use of the product, taking into account its conditions or proposed conditions of registration.

The Applicants emphasize the reference to " “no harm” " in s 2(2), which they refer to as the " “no harm standard” " . They submit that this standard is incorporated into the analysis the PMRA must perform in connection with a re-evaluation under s 21.

The authority for the PMRA’s Decision to amend the registrations in the case at hand is conferred by s 21(2), the text of which is set out earlier in these Reasons. [ 71 ] The Applicants submit that, in order to have decided to amend the registrations under s 21(2)(a), the PMRA must have concluded, first, that the health or environmental risks or value of the product were not acceptable (within the s 2(2) definition) under the registrations with their existing conditions and, second, that these would be acceptable after the amendment. The Applicants therefore take the position that the PMRA was required by 21(2)(

a) to make the amended conditions of registration effective immediately at the time of its Decision. Otherwise, the presence of an unacceptable risk, which the PMRA found to be present under the existing conditions, would continue until the future effective date of the amended conditions. The Applicants submit that authority to introduce a transition period of this nature is not contemplated by, and would be contrary to, the wording of s 21(2)(a), and that it would be inconsistent with the Act ’s primary objective to conclude that the Act confers upon the PMRA implied authority of this sort. [ 72 ] The Applicants also argue that their

interpretation of s 21(2)(

a) is supported by s 21(3) of the Act , the text of which is set out earlier in these Reasons. The Applicants submit that Parliament provided limited authority for the Minister (acting through the PMRA) to delay implementing amendments or cancellations to a pest control product, solely in the circumstances where the two-part conjunctive test prescribed by s 21(3) is met: (

a) no suitable alternative to the use of the product is available; and (

b) the Minister considers that the health and environmental risks and value of the product are acceptable until the effective date of the amendment or cancellation. The PMRA’s inclusion of a 24-month transition in the Decision is not premised on the application of s 21(3). The PMRA relies on s 21(3)

only in connection with the delay of an additional year for the Subset Uses. The Applicants argue that an implied authority to introduce a transition period for amendments under s 21(2)(a), when the two-part s 21(3) test is not met, would render s 21(3) redundant, which cannot have been Parliament’s intent. [ 73 ] The Applicants also rely upon s 21(5) to support their

interpretation of the Act . Section 21(5) provides as follows: Continued possession, etc., of existing stocks Produits existant à la date de révocation 21

(5) When cancelling the registration of a pest control product under this

section or any other provision of this Act , the Minister may 21

(5) Lorsqu’il révoque l’homologation, en application du présent

article ou de toute autre disposition de la présente loi, le ministre peut : (

a) allow the continued possession, handling, storage, distribution and use of stocks of the product in Canada at the time of cancellation, subject to any conditions, including disposal procedures, that the Minister considers necessary for carrying out the purposes of this Act ;

a) soit, aux conditions qu’il estime nécessaires pour l’application de la présente loi — notamment quant à la façon d’éliminer le produit — autoriser que se poursuivent la possession, la manipulation, le stockage, la distribution ou l’utilisation des stocks du produit se trouvant au Canada à la date de la révocation; (

b) require the registrant to recall and dispose of the product in a manner specified by the Minister; or

b) soit obliger le titulaire à faire le rappel du produit et à procéder à sa disposition de la manière qu’il précise; (

c) seize and dispose of the product.

c) soit confisquer le produit et procéder à sa disposition. [ 74 ] The Applicants note that s 21(5)(

a) confers upon the Minister discretion to allow transitional activities with pest control products, but only when cancelling the registration of a product after a re-evaluation or special review (under s 21(2)(b)). There is no equivalent provision providing the Minister with such discretion following an amendment of a registration (under s 21(2)(a)).

The Applicants argue that this precision indicates Parliament intended the discretion afforded to cancellations not apply to amendments and that the sort of transition period contemplated by the Policy and employed in the Decision is inconsistent with such intention. [ 75 ] The Applicants also note that s 35 of the Act creates a process whereby, within 60 days of publication of a re-evaluation decision, any person may file a notice of objection to the decision.

Under s 36, this objection does not suspend the decision under review, but the Minister may suspend the decision until a final decision is made on completion of the review. The Applicants argue that this power to suspend the decision exists because the decision takes effect immediately upon publication.

(3) The Respondents’ Position [ 76 ] While the arguments of the two respondents, Syngenta and the Minister, are not identical, they are aligned and support the same position. As such, these Reasons will not draw distinctions, to negligible effect, between the two Respondents’ respective arguments. Both Respondents emphasize that, pursuant to the reasonableness standard, the PMRA’s

interpretation of the Act is entitled to deference. They argue that the PMRA’s

interpretation, that s 21(2)(

a) of the Act does not require that amendments following a re-evaluation be implemented with an immediate effective date, is reasonable. The Respondents submit that s 21(2)(

a) is silent on this issue and, as a matter of practical necessity and taking into account other provisions of the Act , it is reasonable to conclude that the statute provides the Minister (and therefore the PMRA) implied authority to employ a transition period in connection with amendment of a registration following a re-evaluation. [ 77 ] The Respondents take no issue with principles of statutory

interpretation upon which the Applicants rely. In relation to the purpose of the Act , they emphasize that the primary objective described by s 4(1) involves the prevention of unacceptable risks to individuals and the environment from the use of pest control products, but not the ban of such products.

The Respondents also rely on the recitals at the beginning of the Act which, in addition to recognizing this primary objective, recognize other purposes. [ 78 ] The recitals acknowledge, inter alia , that pest management plays a significant role in diverse areas of the economy and other aspects of the quality of life throughout Canada; and that the goals of sustainable pest management are to meet society’s needs for human health protection, food and fibre production, and resource utilization and to conserve or enhance natural resources and the quality of the environment for future generations, in an economically viable manner.

The Respondents also note the recitals’ reference to a national interest in the federal regulatory system being administered efficiently and effectively in accordance with the principles and objectives set out in the recitals, in a manner that recognizes the various interests and concerns affected and, where consistent with the primary objective of the system, minimizes the negative impact on economic viability and competitiveness.

As such, the Respondents submit that the purpose of the Act is to achieve a balance between various objectives and interests. [ 79 ] The Respondents argue that, in the absence of language in s 21(2)(

a) requiring that an amendment take immediate effect, it is reasonable for the PMRA to interpret the Act as not imposing any such requirement. They argue that it is reasonable for the PMRA to conclude that it has implied authority to apply a transition period because, taking into account other provisions of the Act , a requirement that amendments take immediate effect would lead to highly disruptive and absurd results which could not have been intended by Parliament. [ 80 ]

Section 6 of the Act sets out various prohibitions, contravention of which is prescribed by s 6(9) to constitute an offence punishable by a fine up to $200,000 or imprisonment up to six months (on

summary conviction); or a fine up to $500,000 or imprisonment up to three years (on conviction on indictment). The Respondents’ arguments focus in particular on ss 6(3) and (5), which provide as follows: Prohibitions Interdictions

[…] […] Packaging and labelling Emballage et étiquetage

(3) Except as otherwise authorized under

section 53, 53.3 or 54, no person shall store, import, export or distribute a pest control product that is not packaged and labelled in accordance with the regulations and, if it is registered, the conditions of registration.

(3) Sauf dans les cas autorisés par les articles 53, 53.3 et 54, il est interdit de stocker, d’importer, d’exporter ou de distribuer un produit antiparasitaire s’il n’est pas emballé et étiqueté conformément aux règlements et, dans le cas où il est homologué, aux conditions d’homologation. […] […] Misuse of pest control products Utilisation non conforme

(5) No person shall handle, store, transport, use or dispose of a pest control product in a way that is inconsistent with

(5) Il est interdit de manipuler, de stocker, de transporter ou d’utiliser un produit antiparasitaire, ou d’en disposer, d’une manière non conforme : (

a) the regulations; or

a) soit aux règlements; (

b) if the product is registered, the directions on the label recorded in the Register, subject to the regulations.

b) soit, si le produit est homologué, aux instructions de l’étiquette figurant dans le Registre, sous réserve des règlements. [ 81 ] The Respondents emphasize in particular that storage of a pest control product that is not labelled in accordance with its conditions of registration constitutes an offence (s 6(3)). It is also an offence to handle, store, transport, use, or dispose of a pest control product in a way that is inconsistent with the directions on the label recorded in the Register of Pest Control Products, created under s 42 of the Act (s 6(5)).

The Respondents submit that, if s 21(2) required amendments to take immediate effect, the labels on relevant products would be immediately outdated. Anyone in possession of these products would be automatically and immediately in breach of the Act as soon the PMRA’s decision was issued. Similarly, users of the products would be in breach unless they were immediately aware of the amended label directions so as to be able to follow them accurately.

The Respondents argue that Parliament could not have intended such consequences. [ 82 ] In relation to s 21(3), the Respondents note that its language is permissive, i.e. it does not state that the Minister can delay an amendment only if the conditions in the

section are met. The Respondents also observe that s 21(3) refers to delay of an amendment’s " “effective” " date, which they argue contemplates the possibility of the date for implementation of an amendment being selected by the PMRA in its decision and then subsequently delaying that date if the s 21(3) test is met. That is, s 21(3) fulfills a different function than the implied authority to set the original effective date for an amendment, which can be some time following the date of issuance of the relevant decision so as to achieve an orderly transition. [ 83 ] Like the Applicants, the Respondents also rely on s 21(5) as supporting the

interpretation of the Act for which they advocate. They note that s 21(5) permits the PMRA to allow continued possession, handling, storage, distribution and use of stocks of pest management products existing in the event of cancellation of a registration, i.e. in circumstances where the PMRA has concluded that the risks are not and cannot be made acceptable. Therefore, say the Respondents, it is surely consistent with the Act to permit the PMRA to allow such practices when a registration is merely being amended so as to make its risks acceptable. [ 84 ] In relation to ss 35 and 36, the Respondents submit that the PMRA’s

interpretation of its authority is consistent with the existence of the post-decision objection process. If the PMRA was unable to suspend implementation of an amendment, the industry could face a confusing patchwork of changing instructions as an amendment is implemented, challenged, potentially suspended pending consideration of the challenge, and then potentially re-implemented following adjudication of the challenge.

(4) The Intervener’s Position [ 85 ] The scope of CropLife’s participation in this application is limited by the Order that permitted its intervention. CropLife supports the position taken by the Respondents on the

interpretation of the PMRA’s authority under the Act . As the industry representative of developers, manufacturers, and distributors of relevant products, its submissions in large measure focus upon the potential impact upon its members and users of such products, under the prohibitions contained in s 6 of the Act , if the Applicants’

interpretation of the PMRA’s authority were to be adopted. Like the Respondents, CropLife argues that the Applicants’

interpretation would result in immediate contraventions of the Act following issuance of an amendment decision, which CropLife submits is an absurd result that could not have been intended by Parliament. [ 86 ] CropLife supplements these arguments through submissions as to the steps and associated time frames required to implement registration amendments, involving development and approval of amended labels following issuance of a re-evaluation decision.

It also submits that a transition period is required to educate users of relevant pest control products as to amended use and labelling, which it argues is consistent with the public education mandate that is prescribed by s 4(2) as an ancillary objective of the Act .

(5) Purpose of the Act [ 87 ] In assessing the merits of the parties’ respective arguments on the application of the relevant principles of statutory

interpretation, I have considered first the purpose of the Act . As the Applicants submit, the statute’s primary objective is expressly set out in s 4(1). That objective, which is also referenced in the recitals, is to prevent unacceptable risks to individuals and the environment from the use of pest

control products. The Applicants also advance submissions as to the meaning of unacceptable risk, to which I will return later in these Reasons when considering the reference in s 21(2) to risks being acceptable.

However, in terms of the Act ’s broader purpose, I accept the Applicants’ submissions that it is a precautionary statute, designed to prevent harm before it occurs (see Canada, House of Commons, Evidence of the Standing Committee on Health , 37th Parl, 1st Sess, No 79 (21 May 2011) at 1135 (Basil Stapleton (Legal Counsel, Department of Justice)), and that the purpose of federal pest management regulation is to protect Canadians and their environment from the risks associated with pesticides (see House of Commons Debates , 37th Parl, 1st Sess, Vol 137, No 163 (8 April 2002) at 1600 (Hon Anne McLellan (Minister of Health))). [ 88 ] The Respondents submit the purpose of the Act is to achieve a balance between various objectives and interests.

I agree with that position, with an important qualification. It is clear the Act ’s primary objective is the prevention of unacceptable risks, and other objectives and interests are to be accounted for only to the extent consistent with that primary objective. Therefore, while the Act is intended to address interests including the Canadian economy, the objective of meeting society’s need for food production, and the need for regulatory efficiency, its purpose is to do so in a manner which, above all else, protects Canadians and their environment from the risks associated with pesticides. [ 89 ] Does the PMRA’s

interpretation of the Act , conferring upon it the authority to introduce a transition period in connection with an amendment, conflict with the Act ’s purpose, such that principles of purposive statutory

interpretation represent a " “knock-out punch” " of the sort described in Mason ? In my view, it does not. The PMRA concluded in the Decision that, overall, risk to pollinators is acceptable over the time period required to implement the mitigation measures that were the subject of the amendment. It al

[…]