Responsible Plastic Use Coalition v. Canada (Environment and Climate Change)

Responsible Plastic Use Coalition v. Canada (Environment and Climate Change)
Court (s) Database
Federal Court Decisions
Date
2023-11-16
Neutral citation
2023 FC 1511
File numbers
T-824-21
Decision Content
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 Subsequent to the initial hearing of this application, Schedule 1 was repealed and re‑enacted with all of its same listed substances, pursuant to Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act, SC 2023, c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 to make orders adding substances to Schedule 1. The MECC and the Minister of Health [collectively, the Ministers] jointly administer CEPA.
[7] The Respondents assert that the Order was reasonable. They argue that the only administrative constraint on the GIC’s ability to make the Order was the statutory scheme of CEPA and that the GIC acted in accordance with their power under CEPA and its overarching purpose. The Respondents assert that Canada’s trade agreements are irrelevant and outside the jurisdiction of the Federal Court on this Application.
[8] The Respondents further argue that the BOR Refusal was reasonable, as the objections made did not cast doubt on the core scientific findings supporting the recommendation for the Order. The Respondents contend that the Order is a valid exercise of Parliament’s CLP and that the Applicants’ constitutional arguments are premature.
[9] Environmental Defence Canada Inc. and Oceana Canada [EDCOC] and Animal Justice are also interveners in the Application who oppose the Applicants’ arguments. EDCOC additionally argues that the Order is constitutional under the national concern doctrine, otherwise known as the Peace Order and Good Government [POGG] principle. The Applicants, Saskatchewan, and Alberta assert that EDCOC cannot raise POGG through its intervention, as the Respondents did not pursue this issue in argument.
[10] As set out further below, PMI was too broad to be listed on the List of Toxic Substances in Schedule 1 and this breadth renders the Order both unreasonable and unconstitutional. The GIC acted outside of their authority and the scheme of the relevant provisions of CEPA in listing the broad category of PMI on Schedule 1. Similarly, the Order exceeded beyond the CLP as there is no reasonable apprehension that all listed PMI are harmful. The Order extends beyond the guardrails established in R v Hydro-Quebec, [1997] 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 that include final products, as well as components of products that are found in every facet of everyday life and in industry sectors as diverse as packaging, construction, automotive, electronic equipment, textiles, white goods, and agriculture.
[12] Plastic waste management (the disposal and recycling of plastics) and plastic pollution (plastics that remain in the environment and are not disposed of through a waste management system) have been the subject of growing environmental concern and government focus since at least 2016.
[13] In 2018, the Canadian Council of Ministers of the Environment from all federal, provincial and territorial governments developed a Canada-wide Strategy on Zero Plastic Waste, which recognized plastic pollution as a serious and “exponentially increasing global environmental problem”. It sought to put a scheme in place to achieve its goals by 2030.
[14] Environment and Climate Change Canada [ECCC] commissioned Deloitte and Cheminfo Services Inc to conduct an economic study on the quantities, uses, and end-of-life management of plastics in the Canadian economy, which was published in 2019 as the “Economic Study of the Canadian Plastic Industry, Markets and Waste” [Deloitte Study]. The Deloitte Study opined that a zero plastic waste economy would deliver significant benefits to Canada, but could not be achieved without concurrent, strategic intervention by government, industry stakeholders, and the public across each stage of the plastic lifecycle. The Deloitte Study estimated that 29 kilotonnes of plastic waste (which represented 1% of all plastic waste generated) was released into the environment in Canada in 2016, while 86% was maintained in landfills.
[15] In February 2020, the Ministers published a draft report titled “Science Assessment of Plastic Pollution” in the Canada Gazette, Part I for public comment, which was published in final version on October 7, 2020 [Science Assessment]. The executive summary of the Science Assessment outlined its objective as:
The purpose of this report is to summarize the current state of the science regarding the potential impacts of plastic pollution on the environment and human health, as well as to guide future research and inform decision-making on plastic pollution in Canada. It provides a review of the available information on plastic pollution, including its sources, occurrence, and fate, as well as on the potential effects of plastic pollution on the environment and human health. This report is not intended to quantify the risks of plastic pollution on the environment or human health, but rather to survey the existing state of science in 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 human health.
[17] The Science Assessment recognized a lack of “standardized methods for monitoring microplastics and characterizing the environmental and human health effects of plastic pollution, as well as inconsistencies in the reporting of occurrence and effects data in the scientific literature.” It found that macroplastics had been demonstrated “to cause physical harm to environmental receptors on an individual level and to have the potential to adversely affect habitat integrity” and that “organisms had been shown to ingest macroplastics and to become entangled in macroplastics.” The report “anticipated that the frequency of occurrence of physical effects on individual environmental receptors [would] continue to increase if current trends continue[d] without mitigation measures”, and recommended action “to reduce macroplastics and microplastics that end[ed] up in the environment.”
[18] At the same time that the Science Assessment was published, the MECC also published a discussion paper entitled “A Proposed Integrated Management Approach to Plastic Products to Prevent Waste and Pollution” [Discussion Paper]. The purpose of the Discussion Paper was to seek input on an integrated management approach to plastics, including their regulation under CEPA. The Discussion Paper outlined a proposed framework for managing single-use plastics [SUP], which involved grouping SUP items into categories and identifying those that were either environmentally problematic or problematic from a “value recovery” perspective (i.e. low recycling rate), and which performed essential functions or lacked viable alternatives. The Discussion Paper recognized the Government of Canada’s commitment to ban or restrict harmful SUP items “where warranted and supported by science” and identified six plastic items that met the requirements of a ban or a restriction (plastic checkout bags, stir sticks, six-pack rings, cutlery, straws, and food service ware made from problematic plastics).
[19] In further conjunction with the publication of the Science Assessment, on October 10, 2020, the Government of Canada published a proposed order and preliminary regulatory impact analysis statement [RIAS] in the Canada Gazette, Part I, giving notice of the GIC’s intention to make an order under section 90 of CEPA to add PMI to the List of Toxic Substances in Schedule 1. The preliminary RIAS provided a 60-day public comment period.
[20] From November 2020 to January 2021, the Ministers engaged in consultations regarding the proposal and solicited feedback from stakeholders. During the consultation process, 17 civil society organizations, one territorial government, two local governments, and one organization representing municipalities indicated support for the proposed order. However, 123 industry associations or companies, two provincial governments, and one foreign government indicated opposition to the proposed order. Several industry stakeholders argued that CEPA was not the appropriate tool to manage plastic waste, suggesting instead that new legislation should be created, or that the federal government should let provincial and territorial governments manage the issue.
[21] During November and December 2020, 60 Notices of Objection were filed under section 134 of CEPA, and 52 requests were made for a Board of Review [BOR] to be established pursuant to section 333 of CEPA.
[22] On April 21, 2021, the Ministers denied all requests for a BOR. The Order was subsequently registered on April 23, 2021, and published in the Canada Gazette, Part II, on May 12, 2021.
[23] The RIAS identified the objective of the Order as enabling “the ministers to propose risk management measures under CEPA on certain [PMI] to manage the potential ecological risks associated with those items becoming plastic pollution.” The RIAS referred to “macroplastic pollution as pos[ing] an ecological hazard, including physical harm, to some animals and their habitat” and stated that “all plastic manufactured items” had the potential to become plastic pollution.
[24] The RIAS referred to data from the Deloitte Study on the plastic market sectors, the percentage of end-use plastic in 2016 by sector and the corresponding amount of plastic waste generated by sector. The RIAS also referred to the state of the science with respect to the effects of plastic pollution on the environment and human health as reported in the Science Assessment and the recommendations made in the Science Assessment.
[25] The RIAS acknowledged the opposition to the Order and outlined the departments’ response to recurrent criticism from stakeholders, including with respect to the processes followed and screening assessments conducted, stating that:
…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 and Saskatchewan submitted that the Application was not moot and that the only issue arising from Bill S-5 was one of remedy.
[30] A proceeding is moot where there is no longer any live controversy between the parties: Borowski v Canada (Attorney General), [1989] 1 SCR 342 [Borowski] at p 353. While the general policy is that the Court will decline to decide a case that is moot, the Court maintains discretion to depart from this policy where other factors are satisfied; such as, where collateral consequences result in an adversarial context that prevails, where judicial economy favours a decision and resolution of an issue is in the public interest, and where rendering a decision does not depart from the Court’s traditional role: Borowski at pp 358-363.
[31] The parties disagree as to whether a live controversy remains. The Respondents assert that the controversy in this application centers around the Order and listing of PMI on Schedule 1 to the List of Toxic Substances, which is now repealed. Thus, even if the Order is found invalid or unconstitutional it will not affect the listing of PMI on the new Schedule 1 as Bill S-5 is now the enabling legislation for the listing. The Applicants argue that a finding that the Order was invalid and/or unconstitutional on the date it was made could nonetheless impact the listing of PMI as PMI would not be listed on the new Schedule 1 if it had not been listed on Schedule 1 of the List of Toxic Substances. They assert that the underlying constitutional question remains unchanged by the manner of enactment - that is, whether the listing is a valid exercise of the CLP. Thus, a finding that the Order (and its listing on Schedule 1 of the List of Toxic Substances) was ultra vires has practical utility on the retention of PMI on the current Schedule 1. Similarly, a finding that the Order was void as of the day it was made on administrative law grounds, will impact whether PMI should be retained on Schedule 1 or whether it should be deleted pursuant to the transitional provisions of Bill S-5 or under the GIC’s authority.
[32] I agree that the challenges to the Order raised in this Application remain relevant to the listing of PMI on the new Schedule 1. While Parliament could have chosen to add PMI to Schedule 1 for different reasons, the logical inference from the transposition of the complete List of Toxic Substances from Schedule 1 under CEPA to Schedule 1 enacted by Bill S-5 is that PMI would not be listed on the new Schedule 1 if it were not listed on Schedule 1 of the List of Toxic Substances. A challenge to the legal foundation for listing PMI on Schedule 1 of the List of Toxic Substances therefore may be relevant to its listing on the new Schedule 1. The Application is not moot.
[33] However, even if I were to move on to the second stage of the Borowski analysis, there is no dispute between the parties that the issue in this Application should be determined as a decision here may have a consequential impact on the ongoing challenge in this Court to the Single Use Plastics Regulations, SOR/2022-138 [SUP Regulations]. The SUP Regulations prohibit the manufacture, import and sale of six categories of single use plastics. The adoption of the SUP Regulations was enabled by the listing of PMI on Schedule 1 of the List of Toxic Substances and the GIC’s regulation-making power under section 93 of CEPA. RPUC is also an Applicant in the SUP challenge (Petro Plastics Corporation Ltd et al v Canada (Attorney General), Court File No. T-1468-22 [Petro Plastics]). In Petro Plastics, the applicants challenge the SUP Regulations on administrative and constitutional grounds. As agreed by the parties, the outcome of this application may have direct practical implications on the Petro Plastics proceeding. The impact on Petro Plastics along with the time and expense already expended on this application justifies a decision being rendered on the pending issues.
[34] Accordingly, I will go on to consider the issues as argued before me and the analysis that follows relates to CEPA and its Schedule 1 as it existed prior to the amendments imposed by Bill S-5 unless stated otherwise.
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 can be considered by the Court.
[36] As the Order in issue is an order of the GIC, the record is subject to Cabinet privilege and the Certified Tribunal Record [CTR] before the court is what was before the Ministers. In addition to the CTR, each side also filed additional fact and expert evidence.
[37] The Applicants filed three fact affidavits:
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 and recycling, 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 organization that provides strategic communications and management consulting services to clients on topics of corporate interest, such as environmental, social and corporate governance matters. The Rahamim affidavit summarizes the concerns that were raised by RPUC 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 a cross-appointment as a faculty member in the Biological Sciences Department within the Faculty of Science. Dr. Gobas is an expert in the fields of environmental fate, toxicology and risk assessment of pollutants. Dr. Gobas was asked to “provide scientific information” to assist the Court in its review of the Order and the Science Assessment. His affidavit opines on the scientific risk assessment 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 in Canada. Mr. Granville is described as an expert in biochemistry, toxicology and the environmental risk assessment of chemicals and 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 in relation 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 attached information relating to RPUC from its website and information transmitted by its members. The Respondents also provided the following 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 Science Assessment, the internal and external expert review process, the review of public commentary and the preparation of the final version of the Science Assessment. He was also involved in reviewing objections to the proposed Order. Mr. Kruidenier’s affidavit reviews 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 Ocean Conservancy. 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 specific questions relating to the scientific value of the Science Assessment and studies like it, and the manner of assessing environmental impacts 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 and Granville affidavits that provided legal opinions regarding the interpretation and application of the relevant provisions of CEPA, and removal of portions of the Kruidenier and Rochman affidavits that were not relevant or were found to be aimed at improperly advancing or bolstering the decisions under review. The Order and Reasons relating to the Gobas and Granville affidavits provided the following directions relating to their amendments (Responsible Plastic Use Coalition v Canada (Environment and Climate Change), 2022 FC 377):
[71] … the Granville Affidavit is struck but with leave to amend to rectify or remove the offending passages. ... The Granville Affidavit should be revised in such a way to allow for a discussion of past risk assessment processes of substances added to Schedule 1 of CEPA 1988 or CEPA 1999. The discussion should not include argument regarding the statutory requirements 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 affidavit identifying Dr. Gobas and allowing for identification of exhibits C through S. The revised Gobas Affidavit may only provide 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 it is not evidence that was before the decision‑makers and was proffered to have the Court second-guess the scientific methodologies that were used to support the decisions.
[43] The general rule on judicial review is that absent limited exceptions, the evidentiary record is restricted to the material that was before the decision-maker. Evidence that was not before the decision-maker, or that could have been placed before the decision-maker, that goes to the merits of the matter is not admissible: Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at para 19; Bernard v Canada (Revenue Agency), 2015 FCA 263 [Bernard] at para 13; Delios v Canada (Attorney General), 2015 FCA 117 [Delios] at para 42; Galderma Canada Inc v Canada (Attorney General), 2022 FC 19 at para 12. The rationale behind the general rule is to promote judicial efficiency and to recognize the differing roles of administrative decision-makers and reviewing courts: Bernard at paras 15-16.
[44] As one of the recognized exceptions, general background information that will assist the Court in understanding the issues in the judicial review may be permissible as long as it does not include additional evidence, argument, or comments on the evidence before the decision‑maker: Access Copyright at para 20a; Delios at paras 44-48; Bernard at paras 20-23. A second exception allows for evidence highlighting the complete absence of evidence on a conclusion reached by the decision-maker: Access Copyright at para 20c; Bernard at para 24; Re Keeprite Workers’ Independent Union et al and Keeprite Products Ltd (1980), 29 OR (2d) 513 (CA).
[45] The Applicants assert that the Granville and Gobas affidavits provide useful background information about toxicology, plastics, and past practice relating to the assessment of substances listed on Schedule 1. I agree; however, in my view, this presents a fine line. As stated in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paragraph 83 (and recently repeated in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason] at para 62), opinions that ask the court to conduct a de novo analysis using a different yardstick extend beyond the bounds of reasonableness review:
[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 to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de 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 yardstick and then use that yardstick to measure what the administrator did”: para. 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker - including both the rationale 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 background content, including the government documents and background regarding the substances listed on Schedule 1 and evaluated under Part 5 of CEPA. This is rather than for any opinions that may lend to creating a new yardstick for independent evaluation of whether PMI is properly listed or whether a Board of Review should have been constructed. I have approached the Kruidenier and Rochman affidavits with these same principles in mind.
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 particular context 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 the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an 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 enabling legislation construed reasonably allows for the particular decision. This requires looking at the text, context and purpose of the legislation. As set out at paragraphs 108 to 110 of Vavilov:
[108] Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the 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 to mean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures. Thus, for example, while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply “with the rationale and purview of the statutory scheme under which it is adopted”: Catalyst, at paras. 15 and 25-28; see also Green, at para. 44. As Rand J. noted in Roncarelli v. Duplessis, [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 Congrégation des 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 comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40‑41; Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203, at paras. 38-40. The statutory scheme also informs the acceptable approaches to decision making: for example, where a decision maker is given wide discretion, it would 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 an administrative decision maker might interpret the scope of its own authority beyond what the legislature intended. As a result, 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 decision maker must nonetheless properly justify that interpretation. Reasonableness review does not allow administrative decision makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it. Contrary to our colleagues’ concern (at para. 285), this does not reintroduce the concept of “jurisdictional error” into judicial review, but merely identifies one of the obvious and necessary constraints imposed on administrative decision makers.
[110] Whether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority. If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. Other language will fall in the middle of this spectrum. All of this is to say that certain questions relating to the scope of a decision maker’s authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting.
[50] The approach set out in Vavilov was applied in Portnov v Canada (Attorney General), 2021 FCA 171 and Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 [Innovative Medicines], both of which involved challenges to decisions of the GIC to make regulations as a species of administrative decision-making. In Innovative Medicines, the Federal Court of Appeal emphasized at paragraphs 39 and 40 the importance of looking at the limiting statutory language when considering the regulation-making power of the GIC:
[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