2023 FC, 2023 FC 1511

Date: 20231116 Docket: T-824-21 Citation: 2023 FC 1511 Toronto, Ontario, November 16, 2023 PRESENT: The Honourable Madam Justice Furlanetto BETWEEN: RESPONSIBLE PLASTIC USE COALITION, DOW CHEMICAL CANADA ULC, IMPERIAL OIL, A PARTNERSHIP, BY ITS MANAGING PARTNER IMPERIAL OIL LIMITED, AND NOVA CHEMICALS CORPORATION Applicants and THE MINISTER OF THE ENVIRONMENT AND CLIMATE CHANGE THE MINISTER OF HEALTH, AND THE ATTORNEY GENERAL OF CANADA Respondents and AMERICAN CHEMISTRY COUNCIL AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, PLASTICS INDUSTRY ASSOCIATION, ENVIRONMENTAL DEFENCE CANADA INC.

AND OCEANA CANADA, ANIMAL JUSTICE, ATTORNEY GENERAL FOR THE PROVINCE OF ALBERTA, ATTORNEY GENERAL FOR THE PROVINCE OF SASKATCHEWAN Interveners JUDGMENT AND REASONS I. Overview [ 1 ] This is an application for judicial review [Application] of the Federal Government’s decisions relating to the addition of " “Plastic Manufactured Items” " [PMI] to the List of Toxic Substances in

Schedule 1 of the Canadian Environmental Protection Act , 1999, SC 1999, c 33 [ CEPA ]. Subsequent to the initial hearing of this application,

Schedule 1 was repealed and re-enacted with all of its same listed substances, pursuant to Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act , SC 2023, c 12 [Bill S-5]. Although this Application involves the Order (defined below) that enabled PMI to be listed on

Schedule 1 as it existed pre re-enactment, for reasons set out below I find that the remedies arising from this Application nonetheless remain of value to an existing controversy between the parties and that the amendments under Bill S-5 have not rendered this Application moot. The analysis that follows accordingly considers all issues argued. [ 2 ] The Applicant, Responsible Plastics Use Coalition [RPUC], is a not-for-profit corporation comprised of companies from the plastic industry who do business in Canada.

The Applicants Dow Chemical Canada ULC and Nova Chemicals Corporation are chemical and plastic resin manufacturers and distributers, and the Applicant, Imperial Oil, by its Managing Partner, Imperial Oil Limited, is a manufacturer of petrochemicals from which plastic resins are made. [ 3 ] The Applicants raise two challenges in this Application. First, the Applicants assert that the Order Adding a Toxic Substance to

Schedule 1 to the Canadian Environmental Protection Act, 1999 , registered on April 23, 2021, and published on May 12, 2021, in the Canada Gazette

Part II, Vol. 155, Number 10 [Order] was unreasonable as it was not a proper use of the Administrator-in- Council’s/Governor-in-Council’s [GIC’s] authority and does not comply with the statutory scheme under CEPA . They contend that the listing for PMI is too broad, that PMI is not a " “substance” " or " “class of substances” " that could fall under the List of Toxic Substances in

Schedule 1 of CEPA , and that the proper scientific analysis and risk assessments were not completed to demonstrate that PMI are toxic. The American Chemistry Council, American Fuel & Petrochemical Manufacturers, and Plastics Industry Association, who have intervener status [Industry Interveners], assert that the Canada-United States-Mexico Agreement [CUSMA] and the Technical Barriers to Trade Agreement [TBT], to which Canada is a signatory, ought to inform the Court’s

interpretation of the requirements of finding a substance toxic under CEPA . [ 4 ] The Applicants further contend that the decision of the Minister of Environment and Climate Change [MECC] to deny requests for a Board of Review to assess the alleged risks associated with PMI, and its proposed addition to

Schedule 1 [BOR Refusal] was unreasonable. Pursuant to rule 302 of the Federal Courts Rules, SOR/98-106 , and the consent of the parties, the Order and BOR Refusal collectively comprise the decisions under review for the purposes of this Application. [ 5 ] Second, the Applicants, the Attorney General for the Province of Saskatchewan [Saskatchewan] and the Attorney General for the Province of Alberta [Alberta] argue that the Order is unconstitutional. They assert that it falls outside of federal criminal law power [CLP]. Saskatchewan and Alberta participate in response to a Notice of Constitutional Question issued by the Applicants.

[6] The Attorney General of Canada [AGC] is the named Respondent on behalf of the GIC who has statutory authority under CEPA tomake orders adding substances to

Schedule 1. The MECC and the Minister of Health [collectively, the Ministers] jointly administerCEPA. [7] The Respondents assert that the Order was reasonable. They argue that the only administrative constraint on the GIC’s ability tomake the Order was the statutory scheme of CEPA and that the GIC acted in accordance with their power under CEPA and itsoverarching purpose.

The Respondents assert that Canada’s trade agreements are irrelevant and outside the jurisdiction of the FederalCourt on this Application. [8] The Respondents further argue that the BOR Refusal was reasonable, as the objections made did not cast doubt on the core scientificfindings supporting the recommendation for the Order.

The Respondents contend that the Order is a valid exercise of Parliament’s CLPand that the Applicants’ constitutional arguments are premature. [9] Environmental Defence Canada Inc. and Oceana Canada [EDCOC] and Animal Justice are also interveners in the Application whooppose the Applicants’ arguments. EDCOC additionally argues that the Order is constitutional under the national concern doctrine,otherwise known as the Peace Order and Good Government [POGG] principle.

The Applicants, Saskatchewan, and Alberta assert thatEDCOC cannot raise POGG through its intervention, as the Respondents did not pursue this issue in argument. [10] As set out further below, PMI was too broad to be listed on the List of Toxic Substances in

Schedule 1 and this breadth renders theOrder both unreasonable and unconstitutional. The GIC acted outside of their authority and the scheme of the relevant provisions ofCEPA in listing the broad category of PMI on

Schedule 1. Similarly, the Order exceeded beyond the CLP as there is no reasonableapprehension that all listed PMI are harmful. The Order extends beyond the guardrails established in R v Hydro-Quebec, (SCC), [1997] 3 SCR 213 [Hydro-Quebec] for rendering the scheme under CEPA within the CLP. II. Background A. Background to the Order and BOR Refusal [11] It is undisputed that plastics are ubiquitous.

Plastics have been around for over 50 years and comprise manufactured items thatinclude final products, as well as components of products that are found in every facet of everyday life and in industry sectors as diverseas packaging, construction, automotive, electronic equipment, textiles, white goods, and agriculture. [12] Plastic waste management (the disposal and recycling of plastics) and plastic pollution (plastics that remain in the environment andare not disposed of through a waste management system) have been the subject of growing environmental concern and government focussince at least 2016. [13] In 2018, the Canadian Council of Ministers of the Environment from all federal, provincial and territorial governments developed aCanada-wide Strategy on Zero Plastic Waste, which recognized plastic pollution as a serious and "“exponentially increasing globalenvironmental problem”".

It sought to put a scheme in place to achieve its goals by 2030. [14] Environment and Climate Change Canada [ECCC] commissioned Deloitte and Cheminfo Services Inc to conduct an economic studyon the quantities, uses, and end-of-life management of plastics in the Canadian economy, which was published in 2019 as the “EconomicStudy of the Canadian Plastic Industry, Markets and Waste” [Deloitte Study].

The Deloitte Study opined that a zero plastic wasteeconomy would deliver significant benefits to Canada, but could not be achieved without concurrent, strategic intervention bygovernment, industry stakeholders, and the public across each stage of the plastic lifecycle.

The Deloitte Study estimated that 29kilotonnes of plastic waste (which represented 1% of all plastic waste generated) was released into the environment in Canada in 2016,while 86% was maintained in landfills. [15] In February 2020, the Ministers published a draft report titled “Science Assessment of Plastic Pollution” in the Canada Gazette, PartI for public comment, which was published in final version on October 7, 2020 [Science Assessment]. The executive

summary of theScience Assessment outlined its objective as: The purpose of this report is to summarize the current state of the science regarding the potential impacts of plastic pollutionon the environment and human health, as well as to guide future research and inform decision-making on plastic pollution inCanada. It provides a review of the available information on plastic pollution, including its sources, occurrence, and fate, aswell as on the potential effects of plastic pollution on the environment and human health.

This report is not intended toquantify the risks of plastic pollution on the environment or human health, but rather to survey the existing state of sciencein order to guide future scientific and regulatory activities. [16] The Science Assessment constituted a review of over 600 scientific publications.

It looked at the effects of both macroplastics(plastics greater than 5mm) and microplastics (plastic particles less than or equal to 5mm in size) on the environment and on humanhealth. [17] The Science Assessment recognized a lack of "“standardized methods for monitoring microplastics and characterizing theenvironmental and human health effects of plastic pollution, as well as inconsistencies in the reporting of occurrence and effects data inthe scientific literature.”" It found that macroplastics had been demonstrated "“to cause physical harm to environmental receptors on anindividual level and to have the potential to adversely affect habitat integrity”" and that "“organisms had been shown to ingestmacroplastics and to become entangled in macroplastics.”" The report "“anticipated that the frequency of occurrence of physical effectson individual environmental receptors [would] continue to increase if current trends continue[d] without mitigation measures”", andrecommended action "“to reduce macroplastics and microplastics that end[ed] up in the environment.”" [18] At the same time that the Science Assessment was published, the MECC also published a discussion paper entitled “A Proposed

Integrated Management Approach to Plastic Products to Prevent Waste and Pollution ” [Discussion Paper]. The purpose of the Discussion Paper was to seek input on an integrated management approach to plastics, including their regulation under CEPA . The Discussion Paper outlined a proposed framework for managing single-use plastics [SUP], which involved grouping SUP items into categories and identifying those that were either environmentally problematic or problematic from a " “value recovery” " perspective ( i.e. low recycling rate), and which performed essential functions or lacked viable alternatives.

The Discussion Paper recognized the Government of Canada’s commitment to ban or restrict harmful SUP items " “where warranted and supported by science” " and identified six plastic items that met the requirements of a ban or a restriction (plastic checkout bags, stir sticks, six-pack rings, cutlery, straws, and food service ware made from problematic plastics). [ 19 ] In further conjunction with the publication of the Science Assessment, on October 10, 2020, the Government of Canada published a proposed order and preliminary regulatory impact analysis statement [RIAS] in the Canada Gazette ,

Part I, giving notice of the GIC’s intention to make an order under

section 90 of CEPA to add PMI to the List of Toxic Substances in

Schedule 1. The preliminary RIAS provided a 60-day public comment period. [ 20 ] From November 2020 to January 2021, the Ministers engaged in consultations regarding the proposal and solicited feedback from stakeholders. During the consultation process, 17 civil society organizations, one territorial government, two local governments, and one organization representing municipalities indicated support for the proposed order. However, 123 industry associations or companies, two provincial governments, and one foreign government indicated opposition to the proposed order.

Several industry stakeholders argued that CEPA was not the appropriate tool to manage plastic waste, suggesting instead that new legislation should be created, or that the federal government should let provincial and territorial governments manage the issue. [ 21 ] During November and December 2020, 60 Notices of Objection were filed under

section 134 of CEPA , and 52 requests were made for a Board of Review [BOR] to be established pursuant to

section 333 of CEPA . [ 22 ] On April 21, 2021, the Ministers denied all requests for a BOR. The Order was subsequently registered on April 23, 2021, and published in the Canada Gazette ,

Part II, on May 12, 2021. [ 23 ] The RIAS identified the objective of the Order as enabling " “the ministers to propose risk management measures under CEPA on certain [PMI] to manage the potential ecological risks associated with those items becoming plastic pollution.” " The RIAS referred to " “macroplastic pollution as pos[ing] an ecological hazard, including physical harm, to some animals and their habitat” " and stated that " “all plastic manufactured items” " had the potential to become plastic pollution. [ 24 ] The RIAS referred to data from the Deloitte Study on the plastic market sectors, the percentage of end-use plastic in 2016 by sector and the corresponding amount of plastic waste generated by sector.

The RIAS also referred to the state of the science with respect to the effects of plastic pollution on the environment and human health as reported in the Science Assessment and the recommendations made in the Science Assessment. [ 25 ] The RIAS acknowledged the opposition to the Order and outlined the departments’ response to recurrent criticism from stakeholders, including with respect to the processes followed and screening assessments conducted, stating that: …while the typical processes under the Chemicals Management Plan do provide a risk-based approach to managing chemicals, the ministers are not limited to those processes to better understand threats to the environment or human health so that they can determine whether action is justified to prevent pollution that can cause environmental harm.

In addition, while screening assessments are required for substances assessed under

section 74 of the Act, plastic manufactured items were not reviewed under this authority. The ministers are satisfied that the science assessment shows that plastic pollution has an immediate and long-term effect on the environment, in particular to wildlife and their habitat, and that it provides the evidence to add plastic manufactured items to

Schedule 1 to CEPA . III. Preliminary Issues [ 26 ] There are two preliminary issues raised by the Respondents on the Application: the first is an assertion of mootness arising from changes that were made to CEPA after the Application was heard, and the second relates to the evidence that should be considered by the Court on the Application. A. Amendments to CEPA [ 27 ] Shortly after the Application was heard, Bill S-5 received Royal Assent. As a result of Bill S-5, CEPA was amended and

Schedule 1 of the List of Toxic Substances was repealed and re-enacted. The new

Schedule 1 now has two parts:

Part 1 and

Part 2. All of the substances that were listed on

Schedule 1 of the List of Toxic Substances are on the new

Schedule 1 in one of the two parts. PMI is listed under

Part 2 of the re-enacted

Schedule 1. [ 28 ] Upon Royal Assent of Bill S-5, the parties indicated by letter their agreement that the Court could and should continue to decide the Application, either because it was not moot (the Applicants’ submission) or because the Court may exercise its discretion to do so (the Respondents’ submission). However, in view of the re-enactment of

Schedule 1, the parties requested that they be given the opportunity to provide further submissions as to the impact of Bill S-5 on the Court’s pending decision. The parties proposed a

schedule which allowed for further submissions to be provided in writing. The

schedule provided for initial representations from the Respondents, followed by representations from the Applicants and interveners Alberta and Saskatchewan, which would then be followed by further reply submissions from the Respondents. A further hearing in respect of the submissions was also scheduled and took place on September 15, 2023. [ 29 ] In the submissions, the Respondents maintained that the Application was moot, but that this was one of the rare and exceptional

circumstances where the Court could nonetheless exercise its discretion to decide the pending issues. The Applicants, Alberta andSaskatchewan submitted that the Application was not moot and that the only issue arising from Bill S-5 was one of remedy. [30] A proceeding is moot where there is no longer any live controversy between the parties: Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 [Borowski] at p 353.

While the general policy is that the Court will decline to decide a casethat is moot, the Court maintains discretion to depart from this policy where other factors are satisfied; such as, where collateralconsequences result in an adversarial context that prevails, where judicial economy favours a decision and resolution of an issue is in thepublic interest, and where rendering a decision does not depart from the Court’s traditional role: Borowski at pp 358-363. [31] The parties disagree as to whether a live controversy remains.

The Respondents assert that the controversy in this application centersaround the Order and listing of PMI on

Schedule 1 to the List of Toxic Substances, which is now repealed. Thus, even if the Order isfound invalid or unconstitutional it will not affect the listing of PMI on the new

Schedule 1 as Bill S-5 is now the enabling legislation forthe listing. The Applicants argue that a finding that the Order was invalid and/or unconstitutional on the date it was made couldnonetheless impact the listing of PMI as PMI would not be listed on the new

Schedule 1 if it had not been listed on

Schedule 1 of theList of Toxic Substances. They assert that the underlying constitutional question remains unchanged by the manner of enactment − thatis, whether the listing is a valid exercise of the CLP. Thus, a finding that the Order (and its listing on

Schedule 1 of the List of ToxicSubstances) was ultra vires has practical utility on the retention of PMI on the current

Schedule 1. Similarly, a finding that the Order wasvoid as of the day it was made on administrative law grounds, will impact whether PMI should be retained on

Schedule 1 or whether itshould be deleted pursuant to the transitional provisions of Bill S-5 or under the GIC’s authority. [32] I agree that the challenges to the Order raised in this Application remain relevant to the listing of PMI on the new

Schedule 1. WhileParliament could have chosen to add PMI to

Schedule 1 for different reasons, the logical inference from the transposition of the completeList 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 newSchedule 1 if it were not listed on

Schedule 1 of the List of Toxic Substances. A challenge to the legal foundation for listing PMI onSchedule 1 of the List of Toxic Substances therefore may be relevant to its listing on the new

Schedule 1. The Application is not moot. [33] However, even if I were to move on to the second stage of the Borowski analysis, there is no dispute between the parties that theissue in this Application should be determined as a decision here may have a consequential impact on the ongoing challenge in this Courtto the Single Use Plastics Regulations, SOR/2022-138 [SUP Regulations]. The SUP Regulations prohibit the manufacture, import andsale of six categories of single use plastics. The adoption of the SUP Regulations was enabled by the listing of PMI on

Schedule 1 of theList of Toxic Substances and the GIC’s regulation-making power under

section 93 of CEPA. RPUC is also an Applicant in the SUPchallenge (Petro Plastics Corporation Ltd et al v Canada (Attorney General), Court File No. T-1468-22 [Petro Plastics]). In PetroPlastics, the applicants challenge the SUP Regulations on administrative and constitutional grounds. As agreed by the parties, theoutcome of this application may have direct practical implications on the Petro Plastics proceeding.

The impact on Petro Plastics alongwith the time and expense already expended on this application justifies a decision being rendered on the pending issues. [34] Accordingly, I will go on to consider the issues as argued before me and the analysis that follows relates to CEPA and its Schedule1 as it existed prior to the amendments imposed by Bill S-5 unless stated otherwise. B.

The Evidence and Record before the Court [35] As a further preliminary matter, the Respondents question whether certain evidence submitted by the parties on the Application canbe considered by the Court. [36] As the Order in issue is an order of the GIC, the record is subject to Cabinet privilege and the Certified Tribunal Record [CTR]before the court is what was before the Ministers.

In addition to the CTR, each side also filed additional fact and expert evidence. [37] The Applicants filed three fact affidavits: 1)An affidavit from a law clerk within the solicitors for the Applicants’ law firm that attached correspondence between the parties,the external expert reviews and the peer reviewed articles received from counsel for the Respondents to the Science Assessment; 2)An affidavit from a paralegal of the law firm, attaching copies of provincial legislation relating to waste management andrecycling, municipal by-laws, proposed by-laws and articles relating to plastic waste and the regulation of plastic products; and 3)An affidavit from Randi Rahamim, the Executive Director of the RPUC and the Managing Director of Teneo, an organizationthat provides strategic communications and management consulting services to clients on topics of corporate interest, such asenvironmental, social and corporate governance matters.

The Rahamim affidavit summarizes the concerns that were raised byRPUC in response to the Order and the views and concerns of its members to the Order based on interviews that she conducted. [38] The Respondents do not appear to dispute that this background evidence is properly before the Court. [39] The Applicants also provided two expert affidavits: 1)The Affidavit of Dr. Frank Gobas, who is a professor at Simon Fraser University in the Faculty of the Environment, with across-appointment as a faculty member in the Biological Sciences Department within the Faculty of Science. Dr.

Gobas is anexpert in the fields of environmental fate, toxicology and risk assessment of pollutants. Dr. Gobas was asked to "“provide scientificinformation”" to assist the Court in its review of the Order and the Science Assessment. His affidavit opines on the scientific riskassessment a toxicologist would engage in to determine whether a substance was toxic. 2)The Affidavit of Geoff Granville, who is a biochemist and toxicologist working with the federal regulation of toxic substances inCanada. Mr.

Granville is described as an expert in biochemistry, toxicology and the environmental risk assessment of chemicalsand substances in Canada. He was active as a lead representative and was involved in the development, implementation and reform

of CEPA 1988 and CEPA 1999. Mr. Granville reviews and opines on "“the risk assessment process that Canada relied upon inrelation to each of the substances that Canada added to

Schedule 1 pursuant to CEPA 1988 or CEPA 1999.”" [40] The Respondents provided three affidavits, including a fact affidavit from a paralegal with the Department of Justice who attachedinformation relating to RPUC from its website and information transmitted by its members. The Respondents also provided thefollowing additional evidence: 1)The Affidavit of Thomas Kruidenier, the Acting Executive Director of the Program Development and Engagement Division,Environment and Climate Change Canada.Mr.

Kruidenier was involved in overseeing the preparation of the draft ScienceAssessment, the internal and external expert review process, the review of public commentary and the preparation of the finalversion of the Science Assessment. He was also involved in reviewing objections to the proposed Order. Mr. Kruidenier’s affidavitreviews these steps and responds to the Applicants’ "“criticisms”" of the Science Assessment and the comments of the Applicants’experts on the Science Assessment. 2)The Affidavit of Dr.

Chelsea Rochman, a professor of Ecology at the University of Toronto and a scientific advisor to the OceanConservancy. Dr. Rochman is described as an expert in ecotoxicology, environmental chemistry and aquatic and marine ecology.Dr. Rochman was asked to review and comment on the affidavits of Dr. Gobas and Mr.

Granville by responding to specificquestions relating to the scientific value of the Science Assessment and studies like it, and the manner of assessing environmentalimpacts and risks of plastic pollution, including quantitative methodologies. [41] The evidence record was the subject of two lengthy motions to strike that resulted in the removal of those portions of the Gobas andGranville affidavits that provided legal opinions regarding the

interpretation and application of the relevant provisions of CEPA, andremoval of portions of the Kruidenier and Rochman affidavits that were not relevant or were found to be aimed at improperly advancingor bolstering the decisions under review. The Order and Reasons relating to the Gobas and Granville affidavits provided the followingdirections relating to their amendments (Responsible Plastic Use Coalition v Canada (Environment and Climate Change), 2022 FC 377): [71] … the Granville Affidavit is struck but with leave to amend to rectify or remove the offending passages. ...

TheGranville Affidavit should be revised in such a way to allow for a discussion of past risk assessment processes of substancesadded to

Schedule 1 of CEPA 1988 or CEPA 1999. The discussion should not include argument regarding the statutoryrequirements of CEPA 1999 nor offer any views on the merits of the impugned decisions. [72] With respect to the Gobas Affidavit, it is struck in its entirety. However, leave is granted to serve a revised affidavitidentifying Dr. Gobas and allowing for identification of exhibits C through S.

The revised Gobas Affidavit may onlyprovide neutral non-argumentative commentary and contextual information relating to these exhibits. [42] At the hearing of the Application, the Respondents argued that the Applicants’ expert evidence should not be used by the Court as itis not evidence that was before the decision-makers and was proffered to have the Court second-guess the scientific methodologies thatwere used to support the decisions. [43] The general rule on judicial review is that absent limited exceptions, the evidentiary record is restricted to the material that wasbefore the decision-maker.

Evidence that was not before the decision-maker, or that could have been placed before the decision-maker,that goes to the merits of the matter is not admissible: Association of Universities and Colleges of Canada v Canadian CopyrightLicensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at para 19; Bernard v Canada (Revenue Agency), 2015 FCA 263[Bernard] at para 13; Delios v Canada (Attorney General), 2015 FCA 117 [Delios] at para 42; Galderma Canada Inc v Canada(Attorney General), 2022 FC 19 at para 12.

The rationale behind the general rule is to promote judicial efficiency and to recognize thediffering roles of administrative decision-makers and reviewing courts: Bernard at paras 15-16. [44] As one of the recognized exceptions, general background information that will assist the Court in understanding the issues in thejudicial review may be permissible as long as it does not include additional evidence, argument, or comments on the evidence before thedecision-maker: Access Copyright at para 20a; Delios at paras 44-48; Bernard at paras 20-23.

A second exception allows for evidencehighlighting the complete absence of evidence on a conclusion reached by the decision-maker: Access Copyright at para 20c; Bernard atpara 24; Re Keeprite Workers’ Independent Union et al and Keeprite Products Ltd (1980), (ON CA), 29 OR (2d) 513(CA). [45] The Applicants assert that the Granville and Gobas affidavits provide useful background information about toxicology, plastics, andpast practice relating to the assessment of substances listed on

Schedule 1. I agree; however, in my view, this presents a fine line. Asstated in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paragraph 83 (and recently repeated inMason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason] at para 62), opinions that ask the court to conduct a de novoanalysis using a different yardstick extend beyond the bounds of reasonableness review: [83] It follows that the focus of reasonableness review must be on the decision actually made by the decision maker,including both the decision maker’s reasoning process and the outcome.

The role of courts in these circumstances is toreview, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applyingthe reasonableness standard does not ask what decision it would have made in place of that of the administrative decisionmaker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct ade novo analysis or seek to determine the “correct” solution to the problem.

The Federal Court of Appeal noted in Delios v.Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstickand then use that yardstick to measure what the administrator did”: para. 28; see also Ryan, at paras. 50-51.

Instead, thereviewing court must consider only whether the decision made by the administrative decision maker − including both therationale for the decision and the outcome to which it led − was unreasonable. [46] As set out further below, to the extent I rely on the Granville and Gobas affidavits, I do so only to refer to its factual backgroundcontent, including the government documents and background regarding the substances listed on

Schedule 1 and evaluated under

Part 5of CEPA. This is rather than for any opinions that may lend to creating a new yardstick for independent evaluation of whether PMI is

properly listed or whether a Board of Review should have been constructed. I have approached the Kruidenier and Rochman affidavitswith these same principles in mind. IV.

Issues and Standard of Review [47] The following issues are raised by this Application: 1)Is the Order unreasonable? 2)Was the decision to refuse a Board of Review unreasonable? 3)Is the Order unconstitutional as being outside the federal CLP? 4)Can the Court consider POGG and if so, is the Order unconstitutional for being contrary to POGG? [48] The parties do not dispute that the decisions are to be reviewed on the reasonableness standard as considered within the particularcontext in which the decisions were made.

As explained in Vavilov at paragraph 89: "....reasonableness remains a single standard, and elements of a decision’s context do not modulate the standard or thedegree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable foran administrative decision maker to decide in a given case." [49] In this case, the Ministers and GIC are constrained by the statutory scheme of CEPA. The role of the Court is to ask if the enablinglegislation construed reasonably allows for the particular decision.

This requires looking at the text, context and purpose of thelegislation. As set out at paragraphs 108 to 110 of Vavilov: [108] Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to bethe most salient aspect of the legal context relevant to a particular decision.

That administrative decision makers play a role,along with courts, in elaborating the precise content of the administrative schemes they administer should not be taken tomean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and theprovincial legislatures. Thus, for example, while an administrative body may have considerable discretion in making aparticular decision, that decision must ultimately comply “with the rationale and purview of the statutory scheme underwhich it is adopted”: Catalyst, at paras. 15 and 25-28; see also Green, at para. 44.

As Rand J. noted in Roncarelli v.Duplessis, (SCC), [1959] S.C.R. 121, at p. 140, “there is no such thing as absolute and untrammelled‘discretion’”, and any exercise of discretion must accord with the purposes for which it was given: see also Congrégationdes témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 7; Montréal (City) v. Montreal Port Authority, 2010 SCC 14,[2010] 1 S.C.R. 427, at paras. 32-33; Nor-Man Regional Health Authority, at para. 6. Likewise, a decision must comportwith any more specific constraints imposed by the governing legislative scheme, such as the statutory

definitions, principlesor formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (AttorneyGeneral) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203, at paras. 38-40.

The statutory scheme alsoinforms the acceptable approaches to decision making: for example, where a decision maker is given wide discretion, itwould be unreasonable for it to fetter that discretion: see Delta Air Lines, at para. 18. [109] As stated above, a proper application of the reasonableness standard is capable of allaying the concern that anadministrative decision maker might interpret the scope of its own authority beyond what the legislature intended. As aresult, there is no need to maintain a category of “truly” jurisdictional questions that are subject to correctness review.Although a decision maker’s

interpretation of its statutory grant of authority is generally entitled to deference, the decisionmaker must nonetheless properly justify that

interpretation. Reasonableness review does not allow administrative decisionmakers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exerciseauthority which was not delegated to it. Contrary to our colleagues’ concern (at para. 285), this does not reintroduce theconcept of “jurisdictional error” into judicial review, but merely identifies one of the obvious and necessary constraintsimposed on administrative decision makers." " "[110] Whether an

interpretation is justified will depend on the context, including the language chosen by the legislature indescribing the limits and contours of the decision maker’s authority. If a legislature wishes to precisely circumscribe anadministrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineatingthe power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision.

Conversely, wherethe legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — itclearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. Otherlanguage will fall in the middle of this spectrum. All of this is to say that certain questions relating to the scope of a decisionmaker’s authority may support more than one

interpretation, while other questions may support only one, depending uponthe text by which the statutory grant of authority is made. What matters is whether, in the eyes of the reviewing court, thedecision maker has properly justified its

interpretation of the statute in light of the surrounding context. It will, of course, beimpossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutorylanguage it is interpreting". [50] The approach set out in Vavilov was applied in Portnov v Canada (Attorney General), 2021 FCA 171 and Innovative MedicinesCanada v Canada (Attorney General), 2022 FCA 210 [Innovative Medicines], both of which involved challenges to decisions of the GICto make regulations as a species of administrative decision-making.

In Innovative Medicines, the Federal Court of Appeal emphasized atparagraphs 39 and 40 the importance of looking at the limiting statutory language when considering the regulation-making power of theGIC:

[39] I sympathize somewhat with the underlying motivation of the Supreme Court in Katz and the Alberta Court of Appeal’s application of Katz in the two recent cases: for good reasons based on the separation of powers between the judiciary and the executive, courts should not lightly interfere with decision-making by the Governor in Council, especially when its policy content is high. But the Supreme Court in the later case of Vavilov , sensitive to context, says the same thing.

Under Vavilov , the broader the regulation-making power in a statute, particularly in matters of policy that are quintessentially the preserve of the executive, the less constrained the regulation-maker will be in enacting the regulation: Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada , 2020 FCA 100 , [2021] 1 F.C.R. 374 at para. 28 (applying Vavilov and earlier cases consistent with it), aff’d 2022 SCC 30 . [40] This is especially so for the Governor in Council.

The Governor in Council is “at the apex of the executive” , serves as “the grand co-ordinating body for the divergent provincial, sectional, religious, racial and other interests throughout the nation” , and represents “different geographic, linguistic, religious, and ethnic groups ”: Canada (Citizenship and Immigration) v. Canadian Council for Refugees , 2021 FCA 72 , 458 D.L.R. (4th) 125 at paras. 36-38 . Thus, subject to limiting statutory language passed by our elected representatives, the Governor in Council’s regulation-making power is often relatively unconstrained.

The key is the limiting statutory language. Vavilov goes straight to that key, focusing on what meanings the language of the regulation-making power can reasonably bear. Katz doesn’t. It focuses on matters of form, namely, the nature of the instrument being enacted, a regulation, and the maker of the instrument, the Governor in Council.

Then it asks only one thing: whether the regulation, presumed to be valid, is so “irrelevant”, “extraneous” or “completely unrelated” to the “statutory purpose” that it must be struck. [ 51 ] For constitutional challenges and questions relating to the division of powers, the parties agree that an exception to reasonableness review applies and the standard of review is correctness: Vavilov at paras 17, 55 ; Mason at paras 41-42 . V. Analysis A. Is the Order unreasonable?

(1) What is the appropriate context for the Court’s review of the Order? [ 52 ] As a preliminary matter, the Respondents note that the parties do not agree as to what constitutes the appropriate context for reasonableness review of the Order. [ 53 ] The Respondents assert that the Order was a policy decision made by the GIC on behalf of the government, after consultation and by weighing the interests of stakeholders, and in furtherance of its overall objectives to address plastic pollution. They refer to the " “Instrument choice” "

section of the RIAS, which states that: The Government of Canada has initiated a comprehensive agenda to achieve zero plastic waste and eliminate plastic pollution by 2030, which will require implementing a range of risk management measures. The departments determined that non-regulatory measures (e.g. voluntary agreements, guidelines, codes of practice) alone would not be sufficient to implement this agenda, and that regulatory measures would also be required. The addition of a substance to

Schedule 1 to CEPA enables the ministers to propose risk management measures. ... [...] Based on the information provided in the science assessment, the ministers are satisfied that “plastic manufactured items” meet the criteria set out in paragraph 64(

a) of the Act. Accordingly, the ministers recommended that plastic manufactured items be added to

Schedule 1 to CEPA , which enables the ministers to propose risk management measures under CEPA on certain plastic manufactured items to manage the potential ecological risks associated with those items becoming plastic pollution. Any risk management measures developed under CEPA will be guided by the precautionary principle as set out in paragraph 2(1)(

a) of the Act. The use of CEPA over other existing acts of Parliament would enable to Ministers to access the full range of authorities needed to manage plastic manufactured items among their entire life cycle. Therefore, adding “plastic manufactured items” to

Schedule 1 to CEPA is the preferred option. [ 54 ] The Respondents argue that taking away the GIC’s authority to make such an order limits the options open to government. They contend that the Court is not free to decide that the Order is unreasonable because it disagrees with the policy choice it embodies.

Rather, the role of the Court in this context is limited to assessing whether there was authority within the governing statute for the GIC to make the Order it made. [ 55 ] The Applicants assert that the Order was not discretionary in the ordinary sense nor is the policy content of the Order itself so great as to justify any higher level of deference. [ 56 ] While the RIAS sets out certain policy goals of the government in instituting the Order, the authority of the GIC arises from CEPA itself and its statutory scheme.

Thus, to address this issue, I will start with a review of the scheme and relevant provisions of CEPA . [ 57 ] The full title of CEPA is " “An Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development.” " The Declaration of CEPA states that its primary purpose is " “to contribute to sustainable development through pollution prevention.” "

[ 58 ] CEPA was amended in 1999 to include, inter alia , the following

preamble clauses which emphasize the Government of Canada’s commitment to pollution prevention and operating under the precautionary principle, and its recognition of the importance of the ecosystem: " […] " " […] " " Whereas the Government of Canada is committed to implementing pollution prevention as a national goal and as the priority approach to environmental protection; " " qu’il s’engage à privilégier, à l’échelle nationale, la prévention de la pollution dans le cadre de la protection de l’environnement; " " Whereas the Government of Canada acknowledges the need to virtually eliminate the most persistent and bioaccumulative toxic substances and the need to control and manage pollutants and wastes if their release into the environment cannot be prevented; " " qu’il reconnaît la nécessité de procéder à la quasi-élimination des substances toxiques les plus persistantes et bioaccumulables et de limiter et gérer les polluants et déchets dont le rejet dans l’environnement ne peut être évité; " " Whereas the Government of Canada recognizes the importance of an ecosystem approach; " " qu’il reconnaît l’importance d’adopter une approche basée sur les écosystèmes; " " […] " " […] " " Whereas the Government of Canada is committed to implementing the precautionary principle that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation; " " qu’il s’engage à adopter le principe de la prudence, si bien qu’en cas de risques de dommages graves ou irréversibles, l’absence de certitude scientifique absolue ne doit pas servir de prétexte pour remettre à plus tard l’adoption de mesures effectives visant à prévenir la dégradation de l’environnement; " " […] " " […] " [ 59 ]

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

a) exercise its powers in a manner that protects the environment and human health, applies the precautionary principle that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation, and promotes and reinforces enforceable pollution prevention approaches; " "

a) exercer ses pouvoirs de manière à protéger l’environnement et la santé humaine, notamment celle des populations vulnérables, à appliquer le principe de la prudence, si bien qu’en cas de risques de dommages graves ou irréversibles à l’environnement, l’absence de certitude scientifique absolue ne doit pas servir de prétexte pour remettre à plus tard l’adoption de mesures effectives visant à prévenir la dégradation de l’environnement, ainsi qu’à promouvoir et affermir les méthodes applicables de prévention de la pollution; " " […] " " […] " " (

c) implement an ecosystem approach that considers the unique and fundamental characteristics of ecosystems; " "

c) adopter une approche qui respecte les caractéristiques uniques et fondamentales des écosystèmes; " " […] " " […] " " (

j) protect the environment, including its biological diversity, and human health, from the risk of any adverse effects of the use and release of toxic substances, pollutants and wastes; " "

j) préserver l’environnement — notamment la diversité biologique — et la santé humaine des risques d’effets nocifs de l’utilisation et du rejet de substances toxiques, de polluants et de déchets; " " […] " " […] " " (

k) endeavour to act expeditiously and diligently to assess whether existing substances or those new to Canada are toxic or capable of becoming toxic and assess the risk that such substances pose to the environment and human life and health; " "

k) s’efforcer d’agir avec diligence pour déterminer si des substances présentes ou nouvelles au Canada sont toxiques ou susceptibles de le devenir et pour évaluer le risque qu’elles présentent pour l’environnement et la vie et la santé humaines; " " […] " " […] " [ 60 ] CEPA is organized into twelve different parts:

Part 4 deals with " “Pollution Prevention” " ,

Part 7 deals with " “Controlling Pollution and Managing Wastes” " , and as relevant to this Application,

Part 5 deals with " “Controlling Toxic Substances” " , which includes maintaining

Schedule 1. [ 61 ] Through

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

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

Schedule 1” " [ emphasis added ]. A substance had to comply with subsection 90(1) to be included on the List of Toxic Substances in

Schedule 1. [ 63 ] Once a substance was listed on the List of Toxic Substances in

Schedule 1,

section 93 allowed the GIC, on recommendation of the Ministers, to broadly make regulations with respect to the substance, including (as this

section read at the time of the Application): " (

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 la substance que peut contenir ou rejeter dans l’environnement 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 to the Minister; " "

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

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 " " (

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 " "

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; " " (

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. " [ 64 ] The scheme under CEPA is thus binary. First, the GIC must determine whether a substance is toxic such that it can be listed on

Schedule 1; second, and only after a substance is listed, does the GIC have broad authority to regulate the substance. [ 65 ] To add something to

Schedule 1 of CEPA , therefore, the GIC must be satisfied that it is a substance or class of substances that is toxic, within the meanings prescribed by CEPA .

Subsection 90(1) provides no discretionary language with respect to these requirements. [ 66 ] The Order, which was made pursuant to subsection 90(1) , cannot be described as " “quintessentially executive in nature” " , nor as being grounded on " “polycentric, subjective or indistinct criteria” " that are based on " “the administrative decision makers’ view of economics, cultural considerations and the broader public interest” " : Entertainment Software v Society of Composers, Authors, and Music Publishers of Canada , 2020 FCA 100 at para 28 .

I agree with the Applicants, the fact that the Order is aligned with the government’s policy motivations does not mean that it justifies a higher level of deference. [ 67 ] The Applicants argue that PMI as a broad category meets neither of the requirements of subsection 90(1) of CEPA . As such, the Order is unreasonable because it does not comply with the statutory scheme under CEPA and was not a proper use of the GIC’s authority. The Respondents argue that it was within the GIC’s authority to add PMI to

Schedule 1 and that the choice to list PMI as a toxic substance was reasonable when considered within the text, context and purpose of CEPA and the provisions at issue.

(2) Substance or class of substances [ 68 ] Subsection 90(1) of CEPA permits the addition of a " “substance” " to

Schedule 1, and by virtue of subsection 3(3), a class of substances. " “Substance” " and " “class of substances” " are defined in subsection 3(1) of CEPA (as it read at the time of the Application) as follows: " substance means any distinguishable kind of organic or inorganic matter, whether animate or inanimate, and includes " " substance " " Toute matière organique ou inorganique, animée ou inanimée, distinguable. La présente définition vise notamment : " " (

a) any matter that is capable of being dispersed in the environment or of being transformed in the environment into matter that is capable of being so dispersed or that is capable of causing such transformations in the environment, " "

a) les matières susceptibles soit de se disperser dans l’environnement, soit de s’y transformer en matières dispersables, ainsi que les matières susceptibles de provoquer de telles transformations dans l’environnement; " " (

b) any element or free radical, " "

b) les radicaux libres ou les éléments; " " (

c) any combination of elements of a particular molecular identity that occurs in nature or as a result of a chemical reaction, and " "

c) les combinaisons d’éléments à l’identité moléculaire précise soit naturelles, soit consécutives à une réaction chimique; "

"(

d) complex combinations of differentmolecules that originate in nature or are theresult of chemical reactions but that could notpracticably be formed by simply combiningindividual constituents, " "

d) des combinaisons complexes demolécules différentes, d’origine naturelle ourésultant de réactions chimiques, mais qui nepourraient se former dans la pratique par lasimple combinaison de leurs composantsindividuels. ""and, except for the purposes of sections 66,80 to 89 and 104 to 115, includes " "Elle vise aussi, sauf pour l’application desarticles 66, 80 à 89 et 104 à 115 : ""(

e) any mixture that is a combination ofsubstances and does not itself produce asubstance that is different from the substancesthat were combined, " "

e) les mélanges combinant des substances etne produisant pas eux-mêmes une substancedifférente de celles qui ont été combinées; " "(

f) any manufactured item that is formedinto a specific physical shape or designduring manufacture and has, for its final use,a function or functions dependent in whole orin part on its shape or design, and " "

f) les articles manufacturés dotés d’uneforme ou de caractéristiques matériellesprécises pendant leur fabrication et qui ont,pour leur utilisation finale, une ou plusieursfonctions en dépendant en tout ou en partie; ""(

g) any animate matter that is, or anycomplex mixtures of different molecules thatare, contained in effluents, emissions orwastes that result from any work, undertakingor activity. " "

g) les matières animées ou les mélangescomplexes de molécules différentes qui sontcontenus dans les effluents, les émissions oules déchets attribuables à des travaux, desentreprises ou des activités. ""class of substances means any two or moresubstances that " "catégorie de substances"" Groupe d’aumoins deux substances ayant : ""(

a) contain the same portion of chemicalstructure; " "

a) soit la même portion de structurechimique; ""(

b) have similar physico-chemical ortoxicological properties; or " "

b) soit des propriétés physico-chimiques outoxicologiques semblables; ""(

c) for the purposes of sections 68, 70 and71, have similar types of use " "

c) soit, pour l’application des articles 68, 70et 71, des utilisations similaires " [69] The RIAS uses the language of paragraph 3(1)(

f) to define PMI as "“any items made of plastic formed into a specific physical shapeor design during manufacture, and have, for their intended use, a function or functions dependent in whole or in part on their shape ordesign. They can include final products, as well as components of products.”" [70] The Applicants argue that PMI are neither a substance nor a class of substances for the purposes of CEPA, but rather a broadcategory containing thousands of disparate items. They assert that the definition of substance in paragraph 3(1)(

f) of CEPA is in thesingular; thus, it only contemplates single specific items − i.e., fishing nets or six-pack rings. [71] They further assert that PMI do not have the requisite connection to form a class of substances as the properties and attributes of PMIvary widely. They point to, inter alia, statements made by Dr.

Rochman that plastics are "“made from many, many different polymersand they have different chemical additives”", that they have different shapes, designs, functions, chemical structures, and toxicologicalor hazard profiles (Rochman cross examination at pp 81, 87-88), and that plastic pollution is "“a complex mixture of plastic materialsranging in product type, polymer type, size, chemical additive mixtures, shape, and color”" (Rochman affidavit at para 22). [72] The Respondents concede that they are not asserting that PMI is a class of substances.

They accept that PMI can vary in their formand shape, chemical composition, chemical structure and physico-chemical properties and are used for a variety of purposes. [73] Rather, they contend that PMI satisfies the definition of a "“substance”" as "“substance”" is intended to be in the plural. TheRespondents refer to subsection 33(2) of the

Interpretation Act, RSC 1095, c I-21, which states that: "“[w]ords in the singular includethe plural, and words in the plural include the singular”" and to the French text of paragraph 3(1)(f), which they assert indicates that thisparagraph was intended to apply in the plural. [74] The Applicants take issue with each of these arguments. They assert that subsection 33(2) of the

Interpretation Act must be readtogether with its subsection 3(1), which states that "“[e]very provision of the Act applies, unless a contrary intention appears, to everyenactment”". In this case, the Applicants assert, and I agree, CEPA uses plural and singular

definitions intentionally, including within thedefinition of subsection 3(1) of CEPA. [75] Further, even if paragraph 3(1)(

f) is read in the plural, as consistent with the use of the

article "“les”" in the French languageversion, it does not take away from the singular use of the word "“substance”" in the

preamble of the definition, which is consistent inboth languages and must be read together with paragraph 3(1)(f). In either case, it is my view that the intended reading of paragraph3(1)(

f) is that any manufactured item comprised of organic or inorganic material that is formed into a specific physical shape or designduring manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design, can be includedin the definition of a substance. [76] The Applicants argue that to read "“substance”" as including a broad category ignores the statutory context and purpose of thelanguage of CEPA. The scheme of CEPA is clear: an individual item is a substance, whereas multiple items can only be added wherethey are a class of substances and share similar properties. If otherwise, these

definitions would be redundant, and/or inconsistent, whichruns contrary to principles of statutory

interpretation: Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at para 37, citing Québec(Attorney General) v Carrières Ste-Thérèse Ltée, (SCC), [1985] 1 SCR 831 at p 838. [77] They assert that an

interpretation of substance that would include PMI is contrary to the scheme of

Part 5, which requires that thesubstances and classes of substances listed on

Schedule 1 be identified with precision to enable an assessment of toxicity and risk

assessment. As contended by the Applicants " “[i]t is not possible to conduct a single risk assessment for thousands of disparate products ranging from bottle caps to railway cars.” " Such assessments can only be done if substances are listed one at a time, or if there is a class of substances that share similar chemical, physico-chemical or toxicological properties, or similar types of use. They point to the existing list of substances on

Schedule 1, which they assert follow this scheme. [ 78 ] The Respondents argue that the Applicants’ view is overly technical and at odds with the purpose of CEPA , and its aim to provide the government with robust and efficient tools to prevent pollution.

It submits that if each item or type of plastic was its own substance it would be subject to its own assessment causing significant delay to controlling plastic pollution in contradiction of the precautionary principle and the observation in the RIAS that " “[a]ll plastic manufactured items have the potential to become plastic pollution.” " [ 79 ] EDCOC makes similar submissions.

It asserts that given the centrality of the precautionary principle, the Court should interpret CEPA in a " “large and liberal manner that most fully protects the environment and human health.” " It notes that this is consistent with the Supreme Court’s recognition that environmental legislation is entitled to a generous

interpretation as it is remedial legislation that is intended to respond to a wide variety of dangerous scenarios: Castonguay Blasting Ltd v Ontario (Environment) , 2013 SCC 52 at para 9 . [ 80 ] In my view, these arguments are intimately linked to the further issue of whether the GIC acted outside their authority because the second requirement of subsection 90(1) had not been satisfied, in that it cannot be demonstrated, and was not demonstrated, that all PMI were toxic. While I agree that PMI as a category appears broader than the definition of substance in paragraph 3(1) (

f) and the existing substances that appear on

Schedule 1, on its own this is insufficient, in my view, to render the Order unreasonable. Rather, in my view, the second requirement of subsection 90(1) must be considered before any determination can be made as to whether the Order is contrary to subsection 90(1) and to the scheme of CEPA .

(3) Do PMI satisfy the requirement of being a toxic substance? [ 81 ]

Section 64 of CEPA outlines when a substance will be considered toxic for the purpose of

Part 5 of CEPA : " Toxic substances " " Substance toxique " " 64 For the purposes of this Part and

Part 6, except where the expression “inherently toxic” appears, a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that " " 64 Pour l’application de la présente

partie et de la

partie 6, mais non dans le contexte de l’expression « toxicité intrinsèque », est toxique toute substance qui pénètre ou peut pénétrer dans l’environnement en une quantité ou concentration ou dans des conditions de nature à : " " (

a) have or may have an immediate or long- term harmful effect on the environment or its biological diversity; " "

a) avoir, immédiatement ou à long terme, un effet nocif sur l’environnement ou sur la diversité biologique; " " (

b) constitute or may constitute a danger to the environment on which life depends; or " "

b) mettre en danger l’environnement essentiel pour la vie; " " (

c) constitute or may constitute a danger in Canada to human life or health. " "

c) constituer un danger au Canada pour la vie ou la santé humaines. " [ 82 ] As provided in the RIAS, in listing PMI on the List of Toxic Substances, the Ministers were satisfied that PMI met the ecological criterion for a toxic substance set out in paragraph 64 (a).

The RIAS refers to the current science evidence as confirming that " “plastic pollution was ubiquitous in the environment” " and that " “macroplastic pollution pose[d] an ecological hazard, including physical harm, to some animals and their habitat.” " The RIAS premises its findings on the background that " “all plastic manufactured items have the potential to become plastic pollution.” " [ 83 ] For the purpose of assessing whether a substance is toxic or is capable of becoming toxic,

section 68 of CEPA as it read at the time of the Application provided that either Minister may: " (

a) collect or generate data and conduct investigations respecting any matter in relation to a substance including, without limiting the generality of the foregoing, " " (

a) recueillir ou produire des données sur les questions se rapportant à cette substance et mener des enquêtes sur ces questions, notamment sur : " " (

i) whether short-term exposure to the substance causes significant effects, " " (

i) le fait que l’exposition à court terme à la substance entraîne ou non des effets sensibles, " " (ii) the potential of organisms in the environment to be widely exposed to the substance, " " (ii) la possibilité que des organismes se trouvant dans l’environnement soient exposés de façon généralisée à la substance, " " (iii) whether organisms are exposed to the substance via multiple pathways, " " (iii) le fait que des organismes soient exposés ou non à la substance par de multiples voies, " " (iv) the ability of the substance to cause a reduction in metabolic functions of an organism, " " (iv) la capacité de la substance d’entraîner une réduction des fonctions métaboliques d’un organisme, " " (

v) the ability of the substance to cause delayed or latent effects over the lifetime of an organism, " " (

v) sa capacité d’entraîner des effets latents ou tardifs pendant la durée de vie d’un organisme, " " (vi) the ability of the substance to cause reproductive or survival impairment of an organism, " " (vi) sa capacité de causer des anomalies dans les mécanismes de reproduction ou de survie d’un organisme, "

" (vii) whether exposure to the substance has the potential to contribute to population failure of a species, " " (vii) le fait que l’exposition à la substance puisse contribuer ou non au déclin de la population d’une espèce, " " (viii) the ability of the substance to cause transgenerational effects, " " (viii) la capacité de la substance d’avoir des effets se transmettant d’une génération à l’autre, " " (ix) quantities, uses and disposal of the substance, " " (ix) ses quantités, ses utilisations et son élimination, " " (

x) the manner in which the substance is released into the environment, " " (

x) la façon dont elle est rejetée dans l’environnement, " " (xi) the extent to which the substance can be dispersed and will persist in the environment, " " (xi) la mesure dans laquelle elle peut se disperser et persister dans l’environnement, " " (xii) the development and use of alternatives to the substance, " " (xii) la mise au point et l’utilisation de substituts, " " (xiii) methods of controlling the presence of the substance in the environment, and " " (xiii) les méthodes permettant de limiter sa présence dans l’environnement, " " (xiv) methods of reducing the quantity of the substance used or produced or the quantities or concentration of the substance released into the environment; " " (xiv) les méthodes permettant de réduire la quantité de la substance utilisée ou produite ou la quantité ou la concentration de celle-ci rejetée dans l’environnement; " " (

b) correlate and evaluate any data collected or generated under paragraph (

a) and publish results of any investigations carried out under that paragraph; and " "

b) corréler et analyser les données recueillies ou produites et publier le résultat des enquêtes effectuées; " " (

c) provide information and make recommendations respecting any matter in relation to a substance, including, without limiting the generality of the foregoing, measures to control the presence of the substance in the environment. " "

c) fournir des renseignements et faire des recommandations concernant toute question liée à une substance, notamment en ce qui touche les mesures à prendre pour limiter la présence de celle-ci dans l’environnement. " [ 84 ] There is no dispute that the Science Assessment serves as the foundation for the Ministers’ recommendation that PMI met the ecological criterion for a toxic substance under paragraph 64 (

a) of CEPA . The RIAS refers to the Science Assessment as being made in accordance with

section 68 of CEPA for the purpose of " “summariz[ing] the current state of the science regarding the potential impacts of plastic pollution on the environment and human health, as well as to inform future research and decision-making on plastic pollution...” " The RIAS provides the following

summary of the state of the science with respect to the environment from the Science Assessment: The degradation of plastic pollution in the environment can be a slow chemical and physical process, influenced by factors such as exposure to sunlight, oxidants, physical stress, and the chemical composition of the specific plastic manufactured item. Many plastic manufactured items identified as "biodegradable" only break down when exposed to high temperatures for prolonged periods that are only achievable in industrial composting facilities.

Studies have confirmed the widespread occurrence of plastic pollution in many aquatic environments around the globe, including surface waters, sediments, and shore-lines, as well as in terrestrial environments. For example, in Canada, studies have found an abundance of plastic pollution in surface waters and sediments within the Great Lakes. Plastic pollution has also been detected in several international study locations, including the Adriatic Sea, the Arctic Sea, the South Pacific, the North Pacific, the North Atlantic, the South Atlantic, the Indian Ocean, and in the waters surrounding Australia.

In 2018, the Great Canadian Shoreline Cleanup removed over 100 tonnes of litter from Canadian shorelines, with 7 out of the top 10 most commonly collected items being either plastics or containing plastics (i.e. cigarette butts, tiny plastics or foam, bottle caps, plastic bags, plastic bottles, straws, and food wrappers). Certain types of macroplastic pollution (e.g. ropes, nets, cable ties, plastic bags, packaging rings) have been widely reported in the scientific literature to exhibit adverse effects on some animals as a result of entanglement or ingestion.

Entanglement can lead to suffocation, strangulation, or smothering, and can even result in mortality. Ingestion can also cause direct harm to organisms by blocking airways or intestinal systems, which can lead to suffocation or starvation. Macroplastic pollution can also impact the integrity of habitats, for example, by transporting invasive species into well-established ecosystems, disrupting their structures and dynamics, or by transporting diseases that can alter the genetic diversity in the ecosystem.

In contrast to macroplastic pollution, the potential impact of microplastic pollution on animals is less clear in the scientific literature. [ 85 ] The Applicants assert that the text, context and purpose of CEPA indicate that Parliament did not intend to confer on the GIC the power to extrapolate potential harm and to label items toxic unless they met the requirements of

section 64 . They argue that the Government had no evidentiary foundation for concluding that all PMI are toxic. Simply stated, they say that what was listed was not studied and what was studied was not listed. They assert that only twelve items and certain types of litter were identified in the Science

Assessment as causing environmental harm, namely " “lost and abandoned fishing gear (rope, line, nets), bags, straws, cable ties, packaging bands (i.e., six-pack rings), bottle caps, balloons, sheets/films (for corals, sponges and plants), and one large plastic bowl.” " However, the Order impermissibly extrapolates this evidence to cover the entire category of PMI. They argue that the Government failed to characterize exposure levels and to conduct a risk assessment to evaluate toxicity of all PMI.

They assert that exposure levels need to be evaluated as a measure of the population; otherwise, environmental harm cannot be established. [ 86 ] The Granville affidavit attaches ECCC’s guidance document entitled “ Overview of the Ecological Assessment of Substances under the Canadian Environmental Protection Act, 1999 ” [ EA Guide ], which states that " “[a] substance is considered toxic if, after rigorous scientific assessment and based on decisions taken under federal programs, it either conforms or is equivalent to “toxic” as defined in the Canadian Environmental Protection Act ( CEPA ).” " [ 87 ] The EA Guide outlines the steps in an ecological risk assessment as including both an exposure characterization – i.e ., " “[t]he ways in which a substance may enter the environment, what happens to the substance in the environment, and how non-human organisms may be exposed to the substance,” " and a hazard characterization of " “the potential effects of the substance on the environment or its biological diversity.” " An ecological risk characterization is then conducted " “integrating information on its effects and the potential for exposure in Canada” " along with an uncertainty analysis. [ 88 ] The EA Guide states that the main objective of quantifying exposure is to " “determine the concentrations of the substance in the media in which it is expected to reside following release to the environment.” " The EA Guide outlines different procedures that may be used to quantify exposure, depending on the information available for the substance, including when available, measured data from monitoring studies in Canada, or other countries, or calculations made " “at the local scale using models based on generic environments to which site-specific information may be incorporated.” " [ 89 ] The EA Guide explains that the lines of evidence explored are considered using a weight-of-evidence approach that considers multiple sources of information and lines of evidence.

The EA Guide states that " “the ecological assessment and its conclusions regarding the ecological risks posed by the substance provide the scientific foundation for recommending whether or not the substance meets the criteria set out in

Section 64 of CEPA 1999 .” " [ 90 ] Mr. Granville reviews the approach taken to risk assessments for the substances that were listed on

Schedule 1 when PMI was listed. He explains that the list at that time included 152 entries (two of which were blank). This included nine substances that were formerly regulated by the Environmental Contaminants Act , RSC 1985, c E-12 and the Clean Air Act , RSC 1985, c C-32 that were rolled onto

Schedule 1 when CEPA 198

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