David Suzuki Foundation v. Canada (Health)

David Suzuki Foundation v. Canada (Health)
Court (s) Database
Federal Court Decisions
Date
2018-04-10
Neutral citation
2018 FC 380
File numbers
T-1070-16, T-1071-16
Decision Content
Date: 20180410
Dockets: T-1070-16
T-1071-16
Citation: 2018 FC 380
Ottawa, Ontario, April 10, 2018
PRESENT: The Honourable Madam Justice Kane
Docket: T-1070-16
BETWEEN:
DAVID SUZUKI FOUNDATION, FRIENDS OF THE EARTH CANADA, ONTARIO NATURE, and WILDERNESS COMMITTEE
Applicants
and
MINISTER OF HEALTH, SUMITOMO CHEMICAL COMPANY LIMITED, BAYER CROPSCIENCE and VALENT CANADA
Respondents
Docket: T-1071-16
AND BETWEEN:
DAVID SUZUKI FOUNDATION, FRIENDS OF THE EARTH CANADA, ONTARIO NATURE, AND WILDERNESS COMMITTEE
Applicants
and
ATTORNEY GENERAL OF CANADA, MINISTER OF HEALTH AND SYNGENTA CANADA INC.
Respondents
ORDER AND REASONS Table of contents
I. Overview 4
II. The Motion to Admit New Evidence 8
III. The Background 9
IV. The Decision of the Prothonotary 11
V. The Respondents’ (Appellants’) Overall Position 14
A. The Respondent, The Attorney General of Canada’s, Submissions 15
(1) Overview 15
(2) Mischaracterization of the Notices of Application 16
(3) Course of Conduct – Subsection 18.1(2) and Rule 302 18
(4) Adequate Alternative Remedy 19
B. The Respondent, Bayer’s, Submissions 20
(1) Mischaracterization of the Notices of Application 20
(2) Course of Conduct – Subsection 18.1(2) and Rule 302 22
(3) Adequate Alternative Remedy 25
C. The Respondent, Sumitomo/Valent’s, Submissions 26
(1) Mischaracterization of the Notices of Application 26
(2) Course of Conduct – Subsection 18.1(2) and Rule 302 27
(3) Adequate Alternative Remedy 28
D. The Respondent, Syngenta’s, Submissions 29
(1) Mischaracterization of the Notices of Application 29
(2) Course of Conduct – Subsection 18.1(2) and Rule 302 31
(3) Adequate Alternative Remedy 32
VI. The Applicants’ Submissions 32
(1) Overview 32
(2) No Mischaracterization of the Notices of Application 36
(3) Course of Conduct – Subsection 18.1(2) and Rule 302 38
(4) Adequate Alternative Remedy 39
VII. The Issues 42
VIII. The Standard of Review 43
IX. Did the Prothonotary err in her understanding and application of the test to strike an Application for Judicial Review? 46
X. Did the Prothonotary err in her understanding of the statutory regime and did she confuse the purpose and effect of section 8 and section 12? 48
XI. Did the Prothonotary err by mischaracterizing the Applicants’ claims? 50
XII. Did the Prothonotary err in her understanding of the jurisprudence governing subsection 18.1(2) and Rule 302 and in her determination that it was debatable whether the Notices of Application allege a course of conduct? 54
A. The Relevant Statutory Provisions 55
B. The Principles from the Jurisprudence 56
(1) Subsection 18.1(2) 56
(2) Rule 302 60
(3) Rule 302 and subsection 18.1(2) 62
(4) Summary 64
C. The Prothonotary did not err by conflating Rule 302 and subsection 18.1(2) or in her determination that whether there was a course of conduct was debatable. 65
(1) The Prothonotary did not conflate the analysis for subsection 18.1(2) and Rule 302 65
(2) The Prothonotary did not err by conducting only part of the Rule 302 analysis; she conducted the full analysis 69
(3) The Prothonotary did not err in other ways 70
XIII. Did the Prothonotary err in finding that it was debatable whether there was an adequate alternative remedy for the Applicants? 77
A. Principles from the Jurisprudence 77
B. The Prothonotary did not err in finding that it was debatable whether there was an adequate alternative remedy 80
XIV. Conclusion 87
I. Overview
[1] The Respondents appeal the Order of Prothonotary Mandy Aylen [the Prothonotary], dated July 13, 2017, which dismissed their motions to strike the Applicants’ Applications for Judicial Review (reported at David Suzuki Foundation v Canada (Health), 2017 FC 682).
[2] The Applicants (who were the Respondents on the Motion and are the Respondents on this Appeal) are a group of non-governmental organizations engaged in environmental advocacy. In their Applications for Judicial Review, they allege that the Pest Management Regulatory Agency [PMRA], a branch of Health Canada which administers the Pest Control Products Act, SC 2002, c 28 [the Act or the PCPA] as well as the Pest Control Products Regulations, SOR/2006-124 [the Regulations] and makes decisions as the delegated authority of the Minister of Health, has engaged in an unlawful course of conduct over several years by successively registering or amending the registration of certain pest-control products [PCPs] in the absence of necessary information regarding the environmental risks posed, in particular regarding the long‑term toxicity risks to pollinators, primarily bees.
[3] The Prothonotary captured the Applicants’ allegations in the first paragraph or her Order as follows:
According to the Applicants, bees in Canada may be at risk from exposure to the pesticides Clothianidin and Thiamethoxam. In these applications, the Applicants assert that the Pest Management Regulatory Agency [PMRA] has engaged in an unlawful course of conduct of improperly successively registering or amending the registration for these pesticides and their end-use products notwithstanding that the corporate Respondents have failed to provide the scientific information required, as a condition of their registrations, to demonstrate that the products’ environmental risks are acceptable to pollinators.
[4] Two Applications have been joined as they raise the same issues. T-1070-16 pertains to the product Clothianidin. The Respondents are: the Attorney General of Canada [AGC], Bayer Cropscience Inc. [Bayer], Sumitomo Chemical Company Limited and Valent Canada Inc. [Sumitomo]. Sumitomo is the registrant of Clothianidin Active. Valent is Sumitomo’s Canadian agent for the purpose of managing its registration of Clothianidin Active, and is itself a registrant of five Clothianidin-based “end use” products. Bayer is also a registrant of Clothianidin end-use products.
[5] T-1071-16 pertains to the product Thiamethoxam [TMX]. The Respondents are the AGC and Syngenta Canada Inc. [Syngenta]. Syngenta is the registrant for all TMX products.
[6] The Applicants allege that the PMRA has consistently misused its statutory powers. The PMRA is required by law to collect certain information before registering PCPs, in order to ensure that the risks posed by the products are acceptable, in accordance with section 8 of the PCPA. The Applicants submit, however, that the PMRA’s consistent practice has been to register the products and request, through the use of a notice issued pursuant to section 12 of the PCPA, that information about the risks be provided after registration. According to the Applicants, this has resulted in the continued registration of PCPs in the absence of necessary studies regarding the long-term risks those PCPs pose to pollinators.
[7] On the motion to strike before the Prothonotary, as Case Management Judge, the Respondents argued that the Applications for Judicial Review did not target a course of conduct, but were instead an attempt to review 79 discrete registration decisions. The Respondents argued that this violated both Rule 302 of the Federal Courts Rules, SOR/98-106 [Federal Court Rules] which provides that an application for judicial review is limited to a single decision unless the Court orders otherwise, and subsection 18.1(2) of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act], which prescribes a 30-day limitation period to bring a Notice of Application for Judicial Review. They also argued that there was an adequate alternative remedy for the Applicants, which were the ongoing review processes launched by the PMRA in 2012.
[8] In response, the Applicants argued that they were not seeking to review discrete registration decisions, but rather the PMRA’s consistent practice of using section 12 of the Act to register PCPs as conditional registrations while deferring the receipt and review of necessary studies on their risks to bees, which should have been reviewed before the PCP was registered pursuant to section 8. They argued that this was a challenge to a course of conduct, rather than individual decisions, and was, therefore, not subject to Rule 302 or the limitation period in subsection 18.1(2). The Applicants also submitted that the PMRA’s review processes would not provide an adequate alternative remedy because, among other things, they would not examine the lawfulness of the PMRA’s conduct to date, and would not be expeditious.
[9] The Prothonotary found that both issues were debatable and, therefore, should be determined by the judge on the Applications for Judicial Review, rather than on a preliminary motion.
[10] The Prothonotary was presented with a voluminous record, which is not the norm on a motion to strike an application for judicial review. The Applicants presented evidence about the similarities of the registration histories of the PCPs at issue, highlighting what they allege is a consistent, ongoing practice (i.e. a course of conduct) of misusing section 12 of the Act. In turn, the Respondents submitted evidence about the various differences in the registrations at issue, which they submit highlights that there is no course of conduct, but rather that the Applicants are seeking to review a number of highly discrete decisions which were made by the PMRA at different times, in different contexts, and based on different information.
[11] The starting point is that the facts pleaded are true. It is not the role of the Court on a motion to strike or on this Appeal to delve into this record more fully to determine which narrative reflects reality.
[12] On this Appeal, the Respondents argue that the Prothonotary erred in several ways and, as a result of these errors, the Prothonotary erred in ultimately finding that it was debatable whether there was a course of conduct and whether there was an adequate alternative remedy. The Respondents reiterate that clearly there was no course of conduct and clearly there is an adequate alternative remedy.
[13] The Respondents submit, among other things, that the Prothonotary failed to address specific arguments, certain cases cited, and elements of various tests. However, the jurisprudence has established that it is not necessary for a decision-maker to refer to each argument and each case cited by a party and that the reasons must be read in context (Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157 at paras 68-69, [2017] FCJ No 728 [Mahjoub]). In my view, the Prothonotary succinctly captured the key principles from the jurisprudence, key issues and key facts. The present decision, in comparison, will be criticized as unnecessarily long in its attempt to cover all the nuanced arguments of five Respondents and the collective Applicants.
[14] For the reasons that follow, I find that the Prothonotary did not err in concluding that the issues raised on the motion were debatable, and, therefore, in refusing to strike the Applications for Judicial Review.
II. The Motion to Admit New Evidence
[15] Following the hearing of this Appeal and while this decision was under reserve, the Respondents sought Directions with respect to their intention to bring a motion to seek leave to admit new evidence. The proposed new evidence is comprised of proposed registration decisions arising from applications by the Respondents to convert conditional registrations to full registrations, referred to as the PRDs, and the preliminary decision on the PMRA’s re-evaluation of neonicotinoids, launched in 2012, referred to as the PRVD, both of which were issued on December 19, 2017. The Respondents argued that this evidence supports their claim that these processes present an adequate alternative remedy to these Applications, as well as their claim that these Applications do not target a course of conduct. As a result, the determination of this Appeal and the issuance of this decision were held in abeyance pending the scheduling and determination of the Respondents’ motion.
[16] The Respondents’ motion to admit new evidence was heard on February 7, 2018 and dismissed. The Order and Reasons have been issued separately as David Suzuki Foundation et al. v Minister of Health et al., 2018 FC 379 [Suzuki 1].
[17] In Suzuki 1, the Court found that the new evidence did not meet the test established in the jurisprudence for the admission of new evidence as it would not have an impact on the determination of the Appeal. The new evidence does not provide certainty that the alternative remedy would be adequate, nor does it provide certainty that the Applicants’ allegations do not relate to a course of conduct. However, as noted in the Order, the Court was required to consider the new evidence to determine if it could be admitted. Despite that the new evidence was not admitted, there are references to its content in this decision.
III. The Background
[18] The parties are in general agreement about the plain wording of the Act and its Regulations. They acknowledge that there is no jurisprudence on the interpretation of the provisions at issue. However, the Applicants argue that the way in which the Act is supposed to operate differs from how it actually operates in practice.
[19] A more detailed overview of the Act and the Regulations is provided in Annex A for context. In a nutshell, in order to register a PCP pursuant to section 8 of the PCPA, the PMRA requires reasonable certainty that the PCP poses no safety risks, including to the environment. At the same time of registration pursuant to section 8, the PMRA can request additional data from the registrant by issuing a notice pursuant to section 12. If a section 12 notice is issued, the registration of the PCP is deemed to be conditional, in accordance with the Regulations, on the receipt of the information requested.
[20] The Applicants allege that the PMRA has consistently misused section 12 notices to defer the receipt and review of studies which are necessary in order to be reasonably certain that the PCPs at issue do not pose an unacceptable risk. The Applicants allege that the PMRA has maintained the conditional registrations of the PCPs at issue in the absence of this necessary data since at least 2006 by issuing section 12 notices.
[21] The Respondents deny that the PMRA has misused section 12 notices. The Respondents submit that all registrations were made pursuant to section 8 and that the PMRA was satisfied that the PCPs did not pose an unacceptable risk.
IV. The Decision of the Prothonotary
[22] As noted above, the Prothonotary dismissed the Respondents’ motion to strike the Applications for Judicial Review based on finding that it was debatable whether the Applications seek to review a course of conduct and that it was debatable whether the Applicants have an adequate alternative remedy. She found that both issues should be determined by the judge on the Application for Judicial Review.
[23] The Prothonotary summarized the statutory scheme, the submissions of the parties and the principles from the jurisprudence. More detail of the Prothonotary’s decision is provided below with reference to the issues raised on this Appeal.
[24] The Prothonotary referred to the governing principles in the jurisprudence. She noted that, in order to grant the motion to strike, an application must be “so clearly improper as to be bereft of any possibility of success” (David Bull Laboratories (Canada) v Pharmacia Inc., [1994] FCJ No 1629 at para 15, [1995] 1 FCR 588(CA) [David Bull]). The Prothonotary also noted that there must be a “show stopper”, i.e. an obvious, fatal flaw (JP Morgan Assert Management (Canada) Inc. v Minister of National Revenue, 2013 FCA 250 at para 47, [2014] 2 FCR 557 [JP Morgan]). The Prothonotary added that if an issue is debatable it should be determined by the judge at the application stage (David Bull at paras 12-13).
[25] The Prothonotary acknowledged the need to read a notice of application with a view to understanding its essence and to “gain a realistic appreciation of the application’s essential character by reading it holistically and practically without fastening onto matters of form” (at para 6, citing JP Morgan at paras 49-50).
[26] The Prothonotary rejected the Respondents’ preliminary argument, that the Applicants had re-characterized their pleadings in attempt to survive the motion to strike. The Respondents had argued that the Notices of Application clearly sought to challenge 79 individual registration decisions under section 8, and that the alleged course of conduct regarding the use of section 12 notices had not been pleaded. The Prothonotary disagreed, finding that the Applicants’ response to the motion accurately characterized their pleadings. She found that a course of conduct was being challenged and described it at paragraph 20 of her decision:
[20] As such, I find that what is being challenged in these applications, and what has been characterized by the Applicants as a course of conduct, is the PMRA’s alleged unlawful practice of issuing section 12 notices that had the effect of deferring the receipt and review of necessary studies on the chronic toxicity risk of Clothianidin, Thiamethoxam and their end-use products to pollinators, thereby maintaining for over a decade the resulting conditional registrations of these pesticides and their end-use products without valid or sufficient studies.
[27] The Prothonotary then addressed the Respondents’ main arguments. The Respondents had argued that – regardless of how the pleadings were characterized - the Applicants were really seeking to review 79 distinct decisions of the PMRA, beyond the 30-day limitation period, which violated both Rule 302 of the Federal Courts Rules and subsection 18.1(2) of the Federal Courts Act. The Respondents also argued that the PMRA’s re-evaluation of the PCPs pursuant to section 16 of the Act (now referred to as the PRVD) and outstanding conversion applications respecting the PCPs at issue (now referred to as the PRD), provided an adequate alternative remedy to judicial review.
[28] The Prothonotary noted that pursuant to Rule 302, applications for judicial review must be limited to a review of a single decision, unless it can be shown that the decisions at issue form part of a continuous course of conduct. The Prothonotary also noted that pursuant to subsection 18.1(2), reviews of a decision or order were subject to a 30-day limitation period, but that this rule did not apply where the subject matter of the judicial review is a matter that forms a continuous course of conduct. The Prothonotary referred to the relevant considerations set out in the jurisprudence, noting that the determination of whether a course of conduct is at issue, as opposed to multiple, discrete decisions, is a largely fact-based determination.
[29] The Prothonotary considered the relevant jurisprudence, addressed the Respondents’ arguments and, among other things, noted the various differences in the registration decisions as identified by the Respondents and the similarities identified by the Applicants. The Prothonotary concluded that whether the Applicants were seeking to challenge a course of conduct was debatable and should be left for the judge to determine on the Applications for Judicial Review.
[30] The Prothonotary also addressed the Respondents’ argument that the ongoing re‑evaluation initiated by the PMRA (PRVD) and existing applications to convert conditional registrations to full registrations (PRD) provided an adequate alternative remedy.
[31] The Respondents had argued that if the Applicants’ primary goal is to fill the data gap respecting the PCPs risks to pollinators, these processes would be an adequate remedy. They also noted that these processes could result in the denial of registration to the PCPs. The Respondent, AGC, had also argued that it would be a waste of judicial resources to consider the Applications for Judicial Review because, even if successful, the likely remedy would be for the Court to remit the matter to the PMRA for redetermination, which is what the re-evaluations would accomplish. The Prothonotary disagreed, noting that the Applicants were not requesting a redetermination of the decisions. The Prothonotary was not convinced that the likely outcome of the Applications, if successful, would be to remit them to the PMRA for redetermination.
[32] The Prothonotary noted that there were several factors to consider to determine whether the alternative remedy was adequate, citing Strickland v Canada (Attorney General), 2015 SCC 37, [2015] 2 SCR 713 [Strickland]. She expressed a particular concern that the other proceedings would not afford the Applicants the central remedy that they seek, which was a declaration of unlawful conduct by the PMRA, and that they would not be expeditious, given that public consultation would not begin until after the PMRA’s final decision, which was anticipated to be December 31, 2018. She also noted that the public consultation and objection processes had not been shown to be expeditious for the Applicants in the past. The Prothonotary concluded that it was debatable whether the re-evaluations would afford adequate and effective relief, when compared to the Applications for Judicial Review.
V. The Respondents’ (Appellants’) Overall Position
[33] It appears that the arguments made to the Prothonotary were again made to the Court on this Appeal. The Respondents argue that due to the Prothonotary’s errors ‒ which they submit are palpable and overriding and include extricable errors of law ‒ no deference is owed and the Court should make the Order that the Prothonotary should have made and dismiss the Applications.
[34] All of the Respondents make similar arguments with some individual variations. The Respondents’ position is generally that the Prothonotary: misunderstood the statutory regime for the registration of PCPs; misunderstood and mischaracterized the nature of the Applicants’ claims, which properly construed, cannot be characterized as targeting a course of conduct; confused and misapplied the jurisprudence governing subsection 18.1(2) and Rule 302 and, as a result, erred in finding that it was debatable whether there was a course of conduct that was not subject to Rule 302 or subsection 18.1(2); and, erred in applying the legal test to determine whether there was an adequate alternative remedy. Each Respondent provided the Court with a detailed history of the registration status of the PCPs at issue. The Respondents again emphasize that these Applications implicate a number of highly discrete decisions made by the PMRA at different times, in different contexts, and based upon different information, which cannot form a course of conduct.
A. The Respondent, The Attorney General of Canada’s, Submissions
(1) Overview
[35] The AGC provided an overview of the PCPA and Regulations, and elaborated on the history of the registrations of Clothianidin and TMX. The AGC described the history of Clothianidin and TMX registration decisions and highlighted various differences, including that some PCPs were first registered under the previous Act and that PCPs have different proposed uses and different data requirements.
[36] The AGC explained that the current re-evaluation process regarding neonicotinoids (which include Clothianidin and TMX) and the risks they pose to pollinators, which is being conducted pursuant to section 16 of the Act, was commenced in 2012 and is anticipated to be finalized by December 2018. The AGC explained that such evaluations usually take several years.
(2) Mischaracterization of the Notices of Application
[37] The AGC argues that the Prothonotary both erred in law and made palpable and overriding errors in her characterization of the Notices of Application as a continuing course of conduct. In particular, the AGC argues that the Prothonotary failed to gain a realistic appreciation of the essential character of the claims; and, that she did not understand the difference between section 8 and section 12. Pointing to the evidence of its affiant, Ms. Sterkenburg, the AGC explains that the PMRA will only register a PCP where there is no unacceptable risk, and that the issuance of a section 12 notice occurs after the finding that there is no unacceptable risk. The AGC stated that the section 12 notice is intended to provide additional information to confirm the results of the risk assessment.
[38] The AGC submits that the course of conduct found by the Prothonotary is inconsistent with the Notices of Application. The AGC submits that neither of the Notices of Application seek relief in relation to the PMRA’s issuance of section 12 notices, nor do they limit the challenge to the impact on pollinators. The AGC argues that even a successful judicial review of the PMRA’s issuance of section 12 notices and the setting aside of the section 12 notices would not invalidate the underlying PCPs’ registrations, which were registered in accordance with section 8 and based on a determination that there was no unacceptable risk.
[39] The AGC also notes that in their Notices of Application, the Applicants seek a declaration of invalidity of the registrations under section 8. The AGC submits that this would require the review of 79 discrete decisions made pursuant to section 8 all the way back to 2006, which cannot be reviewed as a course of conduct. The AGC argues that the Prothonotary ignored relevant evidence which showed the differences in the various decisions and in the section 12 notices and, therefore, erred in presuming commonality between the decisions.
[40] The AGC points to the information provided by its affiant, Ms. Sterkenburg, which notes the differences between the registration decisions. Ms. Sterkenburg explains that the decisions implicate different PCPs in different contexts. The data necessary to be reasonably certain that the PCPs pose no risk varies widely depending on these differences. The AGC adds that registration decisions involved different active ingredients (Clothianidin and TMX) and 31 separate end-use products (33 PCPs in total). According to the AGC, each of these individual decisions involved a determination under section 8 by the PMRA, based on separate records, that the registration, renewal, continuation or reinstatement of the product (as the case may be) did not present an unacceptable risk to human health or the environment.
[41] The AGC adds that section 12 notices were not issued for all decisions, rather for 55 of the 79 decisions. However, the AGC acknowledges that the other 24 decisions were linked to registrations which did have such a notice due to the operation of section 15 of the Regulations (as explained in the Annex) and were, therefore, also conditional registrations.
[42] With respect to the Court’s observation that throughout the entire registration history of the PCPs at issue there was always an outstanding request via a section 12 notice for a study on the toxicity risks to bees, the AGC responded that the same section 12 notice was not issued in each case; the section 12 notices are specific to each decision, which reflects that the science evolves over time as do the protocols for the evaluation of the risks posed to pollinators.
(3) Course of Conduct – Subsection 18.1(2) and Rule 302
[43] The AGC argues that the Notices of Application must be struck because they violate subsection 18.1(2), and no extension of time was requested, nor would such an extension be justified as it would hinder the principle of finality.
[44] The AGC further argues that the Notices of Application challenge more than one decision, contrary to Rule 302 and its purpose of efficiency. The AGC again notes no exemption was requested nor would it be justified.
[45] The AGC submits that the allegations do not constitute a course of conduct because they do not challenge any policy, but rather seek to invalidate a number of individual registrations which, among other differences, were made at different times and on different records, and all of which could have been the subject of judicial review in a timely manner. In addition, the Prothonotary failed to consider whether it was difficult to pinpoint a single decision, which is a relevant indicia of a course of conduct.
[46] The AGC further submits that, unlike the present circumstances, in the cases where the Federal Courts have allowed challenges to courses to conduct, the applications were about a discrete challenge to the legality of decision-making, the factual distinctions between the decisions were insignificant, the relief sought was forward looking, and the reasonableness of individual decisions was not in issue.
(4) Adequate Alternative Remedy
[47] The AGC argues that the Prothonotary erred in her application of the legal test to determine the adequateness of the alternative remedy. The Prothonotary based her finding on her conclusion that the PMRA re-evaluation and the conversion application would not afford the “central remedy” sought by the Applicants, namely declarations of unlawful conduct. The AGC submits that the Prothonotary’s reference to the “central remedy” is synonymous with a “preferred” remedy. However, whether an alternative remedy is an applicant’s preferred remedy is not determinative of its adequateness (Strickland at para 59). The AGC further submits that the Prothonotary also erred by: focussing exclusively on expeditiousness and the remedial capacity of the alternative; failing to apply all of the relevant elements of the test, such as consideration of the expertise of the PMRA, which is in a better position to determine whether the impugned decisions were made with insufficient scientific information; and, failing to consider that allowing the Applications to proceed would be an inefficient use of judicial resources.
B. The Respondent, Bayer’s, Submissions
[48] Bayer argues that the Prothonotary made three key errors. First, the Prothonotary confused sections 8 and 12 of the Act, which led her to mischaracterize the nature of the Applicants’ claims and the course of conduct alleged. This led her to err in finding that the registration decisions were implicated. Second, the Prothonotary erred by conflating the analysis for a course of conduct under subsection 18.1(2) and Rule 302, and by only conducting the Rule 302 analysis and, then, only in part. Third, the Prothonotary erred in applying the test for an adequate alternative remedy, including by focussing only on the alternative remedy and not on the appropriateness of judicial review as sought.
(1) Mischaracterization of the Notices of Application
[49] Bayer argues that the construction of the pleadings is a legal determination and the Prothonotary’s error is, therefore, an error of law. Bayer submits that the Notices of Application clearly focus on the registration decisions made under section 8, and not the issuance of the section 12 notices.
[50] Bayer points to the Notice of Application with respect to Clothianidin, which seeks judicial review of the PMRA’s course of conduct in “successively registering” PCPs without the necessary scientific information to be reasonably certain of the environmental risks and by “unlawfully extending the validity periods” of PCPs. Bayer argues that both these allegations are about registration decisions made pursuant to section 8. In addition, the relief sought in the Notice of Application is to declare the course of conduct of successively registering and of extending the validity of the Clothianidin products unlawful, which also focuses on the section 8 decisions. Bayer adds that the requested declaration of invalidity would also only target section 8 decisions.
[51] Bayer submits that the Notice of Application seeks to declare every aspect of Clothianidin Active and its end-use products’ registrations unlawful, not just the risks the PCPs cause to pollinators. Bayer adds that both Notices of Application contain almost no reference to section 12 notices, adding that section 12 is not even referred to under the sub-heading “PMRA’s course of conduct is unlawful”. Bayer points to other parts of the Notices of Application and submits that all the allegations relate to the decision-making power under section 8, without any mention of unlawfully issuing or improperly using section 12 notices. Bayer argues that the relief now sought and the course of conduct now asserted is not the same as pleaded in the Notices of Application.
[52] Bayer submits that the Applicants re-characterized their Notices of Application in response to the Respondents’ motion to strike and then focussed on the PMRA’s unlawful practice of issuing section 12 notices to maintain conditional registrations without sufficient studies.
[53] Bayer submits that the Applicants’ allegations regarding a critical data gap target the decisions made pursuant to section 8. However, contrary to the Applicants’ allegations, the available evidence shows that for each registration decision, the PMRA had sufficient data to determine that the risks were acceptable. In cases where section 12 notices were issued, the Respondents complied and provided the requested chronic toxicity studies, which were assessed by the PMRA. Bayer emphasizes that as the products were registered, or where requests were made to convert conditional registrations to full registrations, new and different section 12 notices were issued by the PMRA seeking additional information.
[54] Bayer argues that if the Court finds that there is a misuse of section 12 notices, any resulting declaration would only invalidate those section 12 notices; the PCP’s registration would continue, but would no longer be conditional on providing the additional information requested in the section 12 notice.
(2) Course of Conduct – Subsection 18.1(2) and Rule 302
[55] Bayer submits that although the jurisprudence under subsection 18.1(2) and Rule 302 both use the term “course of conduct”, the analysis of what constitutes a course of conduct differs because the purpose of the two provisions differs. Bayer argues that the Prothonotary conflated the legal tests applicable to subsection 18.1(2) and Rule 302, and only conducted the analysis with respect to Rule 302.
[56] With respect to subsection 18.1(2), Bayer argues that there is no course of conduct and no policy of general application at issue. Bayer submits that the Applicants’ assertion that they seek to review a practice is an after-the-fact attempt to connect 35 disparate decisions based on the issuance of section 12 notices, which is an attempt to “plead around” subsection 18.1(2). Rather, there are 35 discrete decisions regarding Clothianidin at issue, of which 21 were made between 2 and 10 years beyond the 30-day limitation period, and no extension of time was requested by the Applicants.
[57] Bayer submits that labelling the decisions at issue as a policy cannot avoid subsection 18.1(2). The only evidence before the Court is the affidavit of Ms. Sterkenburg who answered on cross-examination that there is no policy or guidelines regarding the use of section 12 notices. Bayer submits that the case law relied on by the Applicants (discussed below) does not assist them, because those cases deal with a formal policy or its implementation, which are not present here.
[58] Bayer argues that the Prothonotary really only conducted the analysis to determine whether an exemption from Rule 302 should apply, but erred by focussing only on the similarities and differences in the decisions and by failing to consider whether reviewing all 35 Clothianidin decisions would advance judicial efficiency. Bayer submits that the test in Truehope Nutritional Support Ltd v Canada (Attorney General), 2004 FC 658, 251 FTR 155 [Truehope] governs, which considers whether the similarities between the decisions outweigh the differences such that requiring two or more applications would be a waste of time and effort, or whether the time and effort of the parties and Court would be conserved by a single application.
[59] Bayer submits that the exceptions to Rule 302 in the case law are few and have generally been limited to no more than four decisions which were not spread out over years, but a much shorter period.
[60] Bayer argues that it would not be efficient to review 35 discrete decisions together. Bayer points to the registration history of one product as an example. For this product, a section 12 notice was issued after registration requesting a full study on toxicity to honey bees, a protocol was developed for the study, it was conducted and submitted. The product was again registered and a new section 12 notice was issued requesting a new hive study. Bayer submits that in each case, the risks were found to be acceptable. Bayer submits that if these Applications were to proceed, each decision would have to be reviewed on the record before the PMRA at the time; each record would be different and likely voluminous; and the review would be long and resource intensive, contrary to the purpose of Rule 302 and the requirement that judicial reviews be heard without delay.
[61] Bayer further argues that, even if a course of conduct is found pursuant to the Rule 302 analysis, this does not exempt an applicant from subsection 18.1(2) because a separate analysis and determination under subsection 18.1(2) is required. Bayer relies on James Richardson International Ltd v Canada, 2004 FC 1577 at para 22, [2005] 2 FCR 534 [James Richardson] to assert that the test for a continuing course of conduct pursuant to Rule 302 cannot be used to allow an applicant to overcome the 30-day limitation period in subsection 18.1(2) and states that “yet this is what occurred here”.
[62] Bayer adds that an application to judicially review multiple orders could comply with subsection 18.1(2) (i.e. as a course of conduct or policy) yet still breach Rule 302, again because a separate analysis is required. Bayer also notes that a party could be granted leave to challenge more than one decision under Rule 302 (i.e. because the decisions were all very similar) but still not be granted an extension of time under subsection 18.1(2) (relying on Whitehead v Pelican Lake First Nation, 2009 FC 1270 at para 54, 360 FTR 274 [Whitehead]).
[63] Bayer acknowledges that the test on a motion to strike is high but submits that the “knock-out punch” in this case is that the Notices of Application seek to review 79 decisions beyond the 30-day limitation period, without an extension of time being granted, and, therefore, in contravention of subsection 18.1(2). Similarly, they seek to review more than one decision contrary to Rule 302; the decisions differ and it would be contrary to judicial efficiency for the decisions to be reviewed together.
(3) Adequate Alternative Remedy
[64] Bayer argues that the Prothonotary erred in focussing only on whether the re-evaluation launched by the PMRA in 2012 will provide the Applicants with the declaratory relief they seek and whether it will be expeditious. According to Bayer, the alternative remedy need not be identical to that sought by the Applicants and need not be equally expeditious.
[65] Bayer also argues that the Prothonotary further erred by not considering whether the Applications for Judicial Review would be suitable and appropriate as required by Strickland, and erred in not assessing the balance of convenience between the proposed alternative and the Applications for Judicial Review. Bayer submits that judicial review is not appropriate because it duplicates the PMRA’s ongoing re-evaluations and raises the possibility of conflicting decisions.
C. The Respondent, Sumitomo/Valent’s, Submissions
[66] Sumitomo also provided an overview of the PCPA, emphasizing that all registration decisions are made pursuant to section 8