Safe Food Matters Inc. v. Canada (Attorney General)

Safe Food Matters Inc. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-11-06
Neutral citation
2023 FC 1471
File numbers
T-121-22
Decision Content
Date: 20231106
Docket: T-121-22
Citation: 2023 FC 1471
Ottawa, Ontario, November 6, 2023
PRESENT: The Honourable Mr. Justice Henry S. Brown
BETWEEN:
SAFE FOOD MATTERS INC. AND PREVENT CANCER NOW
Applicants
and
ATTORNEY GENERAL OF CANADA AND MINISTER OF HEALTH
Respondents
and
JUSTICE FOR MIGRANT WORKERS CROPLIFE CANADA
Interveners
JUDGMENT AND REASONS
I. Introduction
[1] This case concerns two applications for judicial review of two decisions by the Pest Management Regulatory Agency [PMRA] that were adopted by the Minister of Health [Minister]. The first application concerns a decision dated May 13, 2021 [First Decision] [judicial review sought in T-956-21]. The second decision is dated December 21, 2021 [Second Decision] [judicial review sought in T-121-22]. Both Decisions cancelled all registrations of a pest control product called chlorpyrifos. However, and to deplete stocks, both decisions allowed the continued use of chlorpyrifos products during a phase-out period.
[2] Cancellations followed by use during phased-out are specifically authorized by paragraph 21(5)(a) of the Pest Control Products Act, S.C. 2002, c. 28 [Act].
[3] The last permitted use of chlorpyrifos is December 10, 2023 under this phase-out.
[4] The two proceedings were consolidated in this single style of cause by Associate Judge Horne who case managed these matters leading to their hearing. The Court is grateful for his work in this regard.
[5] The hearing took place over three days in Toronto, and considered a record of 17 volumes of evidence and authorities. The memorandum of the Applicants was literally crammed with very numerous references to the very large record, including hundreds of footnotes (172 in the Applicants’ Memorandum). Indeed the Applicants had so many footnotes and citations to the record they had no room for their Order Sought: the Applicants referred the Court to their record.
[6] For the most part, the Applicants challenged either the approach taken by this expert decision-maker (the PMRA) to construing and applying its home statute to the record, or invited the Court to review and reweigh the scientific and other data considered by the PMRA, or both.
[7] The Applicants faces two challenges in this respect. In my view these challenges proved unsurmountable.
[8] First, expert decision-makers such as the PMRA are entitled to deference on judicial review in the manner in which they construe and apply their home statutes. Numerous decisions of the Supreme Court of Canada establish the law in this regard.
[9] Second, and with respect, reweighing and reassessing evidence is generally not the role of courts on judicial review. Our job is not to decide whether administrative decisions are “right or wrong”, although that is a popular misconception. Instead, on judicial review the Federal Court is required to determine if the decision is reasonable. Many of the errors argued by the Applicants involve factual issues allegedly not considered: I found not merit in them. Perfection is not the standard for administrative reasons which are to be considered holistically and in context. Failure to deal with every evidentiary and other issue arising in a 15 volume record does not constitute reviewable error.
[10] What constitutes a reasonable decision on a reasonableness review has received a great deal of attention from the Supreme Court of Canada and the Federal Court of Appeal. A reasonable decision is defined as one that meets the tests of justification, transparency and intelligibility set out by these appellate courts. And for the purposes of this judgment, they instruct this Court generally that it must not engage in reweighing and reassessing the evidence, and that it must defer to the manner in which this expert decision maker construes and applies its home statute (the Act) to the record before it.
[11] In this connection, the PMRA is an expert decision-maker when acting in relation both to its decision to cancel all uses of chlorpyrifos (which was generally accepted and was not the focus of this proceeding) and its determination respecting the phase-out period given cancellation (the focus of this case).
[12] I should note the Minister or their delegate made both Decisions, but they did so on the advice and recommendation of the PMRA. Therefore the terms Minister, PRMA, Health Canada and Respondent are used interchangeably in these Reasons.
II. Background
[13] For the last almost quarter century, Health Canada has been phasing out chlorpyrifos containing pest control products. This process has been going on elsewhere around the globe as well.
[14] In 2000, Health Canada prohibited nearly all residential uses of products containing chlorpyrifos, restricted some agricultural uses, and required new safety labelling.
[15] In 2003, additional agricultural uses chlorpyrifos were made subject to further restrictions.
[16] In 2007, Health Canada implemented a number of further mitigation measures in relation to both agricultural and forestry uses to address environmental and occupational concerns.
[17] For the purpose of background, I accept the Respondent’s outline of the various assessments of chlorpyrifos conducted by the PMRA beginning in 2000:
a)Following a review in 2000, PMRA phased out nearly all commercial and domestic residential uses of products containing chlorpyrifos;
b)While the 2000 review did not focus on agricultural uses, PMRA discontinued use on tomatoes, lowered the maximum residue levels for imported apples and grapes (chlorpyrifos is not registered for use on those crops in Canada) and added a label requirement to address the safety of agricultural workers;
c)In 2003, PMRA conducted a review of the agricultural uses of chlorpyrifos. While PMRA did not find any unacceptable risk to human health, PMRA proposed additional measures to address worker safety and the environment, including a reduction in crop uses and number of applications per season and increased buffer zones;
d)In 2007, PMRA implemented mitigation measures following consultations it undertook on the 2003 proposed decision. PMRA discontinued, reduced or modified several uses to address environmental and occupational concerns; and,
e)In 2019, PMRA published an update to its risk assessments undertaken (and related mitigation measures implemented) in 2003 and 2007, focusing on environmental risks. PMRA issued a final decision in 2020. As a result, […] many remaining uses of chlorpyrifos were cancelled as PMRA was not satisfied that risks to the environment were acceptable.
[18] By virtue of the Second Decision dated December 21, 2021, Health Canada prohibited all Canadian manufacturing and importation of chlorpyrifos, effective that day namely December 21, 2021.
[19] Also by virtue of the Second Decision, all chlorpyrifos registrations were cancelled, all chlorpyrifos product was ordered phased out, and the last permitted use in Canada of all chlorpyrifos products was set at December 10, 2023.
[20] Central to the Second Decision - which is the focus of these Reasons - are the following findings by the PMRA addressing risk during the two-year phase-out period:
a)Food surveillance data from Canada and the United States shows a very low frequency of chlorpyrifos detection and never over the maximum residue limit;
b)Dietary exposure is expected to decrease given declining sales of chlorpyrifos products in Canada and decreasing use internationally;
c)The recent assessment by the United States Environmental Protection Agency [USEPA] reached the same conclusion as PMRA’s 2000 dietary risk assessment, based on more recent health information and a broader use pattern in the United States;
d)The human health reference values for sensitive sub-populations utilized by Health Canada in 2000 are either aligned with or more protective than those used in the most recent assessments of the Australian Pesticide and Veterinary Medicine Authority [APVMA] and USEPA, both of which are based on more recent health information and published scientific literature; and
e)There are no reports of deaths or serious injuries in relation to chlorpyrifos reported in Canada.
[21] In my respectful view, the Second Decision is reasonable in that it is justified, transparent and intelligible as required by jurisprudence from the Supreme Court of Canada and Federal Court of Appeal. This Court respectfully defers to the PMRA in its interpretation and application to the record of its home statute, namely the Act.
[22] The First Decision will not be considered because it is moot: it is an administrative matter that was intentionally superseded by the Second Decision that doesn’t warrant further consideration given principles of mootness and judicial economy.
[23] Therefore as set out herein, the applications for judicial review in respect of both the First and Second Decisions will be dismissed.
III. Additional facts
A. Chlorpyrifos
[24] Chlorpyrifos is a useful but toxic organophosphate pesticide first registered for agricultural use in Canada in 1969. Chlorpyrifos has been used successfully to control insects in various settings and is currently applied to a wide variety of crops including canola, flax, lentil, corn, strawberry, celery, cucumber, green peppers and others. Its application may result in human exposure to chlorpyrifos in food and drinking water, and skin contact with agricultural workers (migrant and domestic) particularly those who handle and apply it.
[25] Organophosphate pesticides were originally developed as nerve agents during World War II. Chlorpyrifos as already noted is toxic; in particular it has the potential to inhibit acetylcholinesterase, an enzyme necessary for the proper functioning of the nervous system. It has the potential to affect brain development by altering several cellular processes. In occupational settings, exposure to chlorpyrifos may occur during handling prior to, during and after its application. Exposure occurs through oral, inhalation or derma (skin contact) routes.
B. Re-evaluation process: section 16 of the Act
[26] As per section 16 of the Act, the PMRA must initiate a re-evaluation of every registered pesticide product no later than 16 years from the most recent major decision affecting that product’s registration. Re-evaluations reassess the available scientific information and consider whether the product continues to pose an acceptable risk.
[27] Following a re-evaluation, the PMRA must confirm the registration of the product if it deems the health and environmental risks acceptable. If not, PMRA must amend the registration to bring permitted matters relating to the product within acceptable risk, or cancel the registration.
[28] If the PMRA cancels the registration of a pesticide product (as it did here), it is specifically authorized by paragraph 21(5)(a) to allow continued possession, handling, storage, distribution, and use of stocks during a phase-out period, subject to conditions the PMRA deems necessary to carry out the purpose of the Act.
[29] This is what happened in this case. The re-evaluation of chlorpyrifos started some time before the Decisions were made. Indeed, in a decision dated December 10, 2020, the PMRA reported that re-evaluation of chlorpyrifos in Canada was “ongoing.” It appears re-evaluations of chlorpyrifos started at least before or around January 2016, according to meeting notes: A.E. vol. 13, CTR 400, p. 121.
[30] As set out in more detail below, in December 2020, the PMRA released a re-evaluation decision based on an updated scientific environmental risk assessment. This led the PMRA to cancel some chlorpyrifos registrations. The PMRA also prohibited almost all agricultural uses due to environmental risks of concern.
[31] PMRA’s further ongoing re-evaluation resulted in both the First and Second Decisions: each resulted from the registrants’ failure to supply data requested in the re-evaluations. The Second Decision cancelled the registrations for all chlorpyrifos. In addition, and to deplete remaining stockpiles and minimize potential risks associated with disposing of existing products all at once, the PMRA authorized a phase-out period during which the continued use, possession, handling, storage, and distribution of chlorpyrifos products could continue until December 10, 2023.
[32] The PMRA’s policy titled Cancellations and Amendments Following Re-evaluation and Special Review [Cancellation Policy], contemplates a three-year timeline to phase out pesticide products.
IV. Decisions under reviews
[33] On May 13, 2021, the PMRA released a decision entitled “Update on the Re-evaluation of Chlorpyrifos” [First Decision]. The First Decision cancelled all remaining registrations of pest control products containing chlorpyrifos, and pursuant to paragraph 21(5)(a) of the Act, ordered all existing stocks of chlorpyrifos products to be phased out within the following timelines:
Last date of sale by registrant: 10 December 2021;
Last date of sale by retailers: 10 December 2022; and
Last date of use for all chlorpyrifos uses/products: 10 December 2023.
[34] The First Decision provided that the registrations were cancelled because of the registrants’ failure to fulfill mandatory data requirements under the Act. That is, data was requested by the PMRA but not provided, contrary to paragraph 19(1)(a) of the Act.
[35] This Applicants disagreed with the First Decision taking the position it was unreasonable because of inadequate reasons. The Applicants filed an application for judicial review dated June 14, 2021, in Court file T-956-21.
[36] In October 2021, the Respondent proposed to set aside both the cancellation and phase-out decisions in the First Decisions by motion to the Court. The Applicants declined to consent.
[37] On December 21, 2021, the PMRA released a new decision, “Cancellation of remaining chlorpyrifos registrations under paragraph 20(1)(a) of the Pest Control Products Act” [Second Decision].
[38] The Second Decision was expressly designed to replace the First Decision.
[39] The Second Decision cancelled all remaining registrations for chlorpyrifos pest control products effective December 21, 2021, and established a phase-out period terminating all use by December 10, 2023.
[40] The phase-out allowed users and registrants to deplete existing stocks of chlorpyrifos products.
[41] The Second Decision acknowledged the First Decision did not contain reasons for applying the specific phase-out period, i.e., the PMRA essentially acknowledged submissions of the Applicants in their first application (T-956-21).
[42] The Second Decision relied upon paragraph 21(5)(a) of the Act which allows Health Canada to permit the continued use of cancelled products during a phase-out period. This meant they remain authorized for continued use, possession, handling, storage, and distribution, during the phase-out period, subject to necessary conditions for carrying out the purpose of the Act.
[43] No one doubts a phase-out is what paragraph 21(5)(a) authorizes when a registration is cancelled, as in this case.
[44] Specifically, in terms of a decision to cancel a registration, Parliament gave the Minister three options: a phase–out under paragraph 21(5)(a), a recall under paragraph 21(5)(b) or a seizure under paragraph 21(5)(b). Paragraph 21(5)(a) of the Act in context provides:
Continued possession, etc., of existing stocks
Produits existant à la date de révocation
21(5) When cancelling the registration of a pest control product under this section or any other provision of this Act, the Minister may
21 (5) Lorsqu’il révoque l’homologation, en application du présent article ou de toute autre disposition de la présente loi, le ministre peut :
(a) allow the continued possession, handling, storage, distribution and use of stocks of the product in Canada at the time of cancellation, subject to any conditions, including disposal procedures, that the Minister considers necessary for carrying out the purposes of this Act;
a) soit, aux conditions qu’il estime nécessaires pour l’application de la présente loi — notamment quant à la façon d’éliminer le produit — autoriser que se poursuivent la possession, la manipulation, le stockage, la distribution ou l’utilisation des stocks du produit se trouvant au Canada à la date de la révocation;
(b) require the registrant to recall and dispose of the product in a manner specified by the Minister; or
b) soit obliger le titulaire à faire le rappel du produit et à procéder à sa disposition de la manière qu’il précise;
(c) seize and dispose of the product.
c) soit confisquer le produit et procéder à sa disposition.
[45] The Second Decision expressly relies on paragraph 21(5)(a). It also imposes conditions the Minister considers necessary for carrying out the purposes of the Act. The Second Decision provides the rationale for this phase-out period: it “allows existing stocks of chlorpyrifos to be exhausted in an orderly manner, to minimize potential risks associated with disposing of existing product all at once, and to minimize potential confusion for the users.”
[46] In its reasons, the Second Decision provides what I consider detailed and adequate reasons based on the record as to why the expert decision maker decided to advise the Minister as it did. The PMRA found risks posed by continued use of chlorpyrifos during the cancellation and phase-out are not imminent and serious – the statutory test.
[47] Specifically, the PMRA determined the risks entailed in continuing use were not imminent and serious taking into account the following nine factors based on its assessment of the evidence before it:
Since 2000, there is no residential use by homeowners in Canada;
Since 2007, mitigation measures were put in place for workers;
The product was seldom detected in food;
There was low health concern from food;
There is low health concern from drinking water;
Health Canada assessments continue to protect the Canadian public;
Declining sales with the cancellation of all registrations;
Decreasing use internationally; and
Between 2007-2021 there were no serious incident reports in Canada.
[48] With regard to the length of the phase-out period, the Second Decision reasoned the timeline allowed “existing stocks of chlorpyrifos products in Canada to be exhausted in an orderly manner, to minimize potential risks associated with disposing of existing product all at once, and to minimize potential confusion for the users.”
[49] Notably also, the Second Decision included consideration of both the Canadian and international status of chlorpyrifos, citing to the European Union, Australia, and the United States in comparison to Canada.
[50] To note also is that Health Canada’s current human health reference values - otherwise known as acceptable level of exposure- were aligned with those of the APVMA and USEPA for sensitive subpopulations such as women of childbearing age, infants, and children.
[51] The Second Decision concludes by re-iterating that “all remaining registrations of pest control products containing chlorpyrifos are cancelled immediately due to failure to fulfill the mandatory data requirements to update the human health risk assessment for the final phase of the re-evaluation.” It concluded that uses of chlorpyrifos during the phase-out period will not pose imminent and serious risks.
V. Issues
[52] The Applicants submit the following issues:
What is the “decision” of the Minister?
Did the Minister comply with his duties under the Act?
Did the Minister unreasonably fail to consider the criteria in s. 21(5)?
Did the Minister unreasonably interpret s. 21(5) and the Policy as limiting his discretion?
Was the Minister’s decision unreasonable in light of the constraints in ss.19 and 20 of the Act?
Did the Minister fail to consult the public and provide reasons under s.28 of the Act?
Did the Minister misapprehend or ignore the evidence before him that chlorpyrifos posed potential unacceptable risks during the phase-out?
[53] The Respondent submit the following issues:
Is the Applicants’ challenge to the Cancellation Update moot?
Was the Minister functus officio after the Cancellation Update?
Is the Cancellation Decision reasonable?
If the Cancellation Decision is not reasonable, what is the appropriate remedy?
[54] The Intervener, CropLife Canada, submits:
PMRA’s application of the Cancellation Policy to the cancellation was lawful and consistent with the appropriate interpretation of the relationship between subsections 20(1) and 21(5) of the Act;
Subsection 21(5) gives the Minister broad discretion in determining which conditions should be imposed on a cancellation, which is essential to registrants and users, consistent with the Act and the proper interpretation of subsections 20(1) and 21(5) of the Act and aligned with the correct application of the precautionary principle in the Act; and
The Applicants’ interpretation of the Act, which unduly restricts the PMRA’s discretion, has important practical issues and illogical results.
[55] The Intervener, Justice for Migrant Workers, submits the following issues:
Was the PMRA’s decision made without regard to the purposes of the Act or without regard to relevant legal constraints in the Act which apply to cancellations of registrations?
Was the PMRA’s decision to allow the sale and use of Chlorpyrifos over a three-year period unreasonable?
[56] Respectfully, the main issue is whether the Second Decision is reasonable in terms of its findings in respect of the record and the construction and application of the PMRA’s home statute, namely the Act.
[57] I wish at this point to acknowledge the contributions by both interveners, Justice for Migrant Workers and Crop Life Canada. Counsel brought the additional and useful perspectives not only of foreign but domestic agricultural workers, and the pest control product industry as a whole.
VI. Standard of Review
[58] The applicable standard of review for the Second Decision is reasonableness. In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued at the same time as the Supreme Court of Canada’s decision in Vavilov, the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[59] Very recently, in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason], per Justice Jamal, the Supreme Court of Canada reiterates the “reasons first” approach when conducting judicial review on reasonableness:
[61] Under Vavilov’s “reasons first” approach, the reviewing court should remember that “the written reasons given by an administrative body must not be assessed against a standard of perfection”, and need not “include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” (para. 91). The reviewing judge must read the administrator’s reasons “holistically and contextually” (para. 97), “in light of the history and context of the proceedings in which they were rendered”, including “the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body” (para. 94). Reasons must be read “in light of the record and with due sensitivity to the administrative regime in which they were given” (para. 103). Such factors may “explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency” (para. 94).
[62] A reviewing court should also avoid engaging in “disguised correctness review”, or correctness in the guise of reasonableness (para. 294, per Abella and Karakatsanis JJ., concurring in the result; see also Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, at para. 27, citing D. Mullan, “Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action — The Top Fifteen!” (2013), 42 Adv. Q. 1, at pp. 76‑81). Because “[t]he role of courts in these circumstances is to review”, they should, as a general rule, “refrain from deciding the issue themselves” (Vavilov, at para. 83 (emphasis in original)). A reviewing court should not create its “own yardstick and then use [it] to measure what the administrator did” (para. 83, and Canada Post, at para. 40, both citing Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin. L.R. (5th) 301, at para. 28). Nor should a reviewing court 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” (Vavilov, at para. 83; see also Canada Post, at para. 40). Rather, a “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” (Vavilov, at para. 83).
[60] Vavilov also instructs reviewing courts that reasons must not be assessed against a standard of perfection. At paragraph 91, the Supreme Court of Canada states “that the reasons given for a decision do ‘not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred,’ is not on its own a basis to set the decision aside: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16”.
[61] Furthermore, at paragraph 97 of Vavilov:
[97] Indeed, Newfoundland Nurses is far from holding that a decision maker’s grounds or rationale for a decision is irrelevant. It instead tells us that close attention must be paid to a decision maker’s written reasons and that they must be read holistically and contextually, for the very purpose of understanding the basis on which a decision was made. We agree with the observations of Rennie J. in Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267, at para. 11:
Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn.
[62] Vavilov makes clear that administrative decision makers are not required to respond to every argument of line of possible analysis although they should meaningfully grapple with key issues: failure to do so may call into question whether the decision maker was alert and alive to the matter before it, at paragraph 128:
[128] Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para. 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39.
[63] The Supreme Court of Canada in Vavilov instructs that the role of this Court is not to reweigh and reassess the evidence unless there are “exceptional circumstances”. There are no such circumstances in the case at bar. The Supreme Court of Canada instructs:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[Emphasis added]
[64] To the same effect is the judgment of the Federal Court of Appeal in Doyle v Canada (Attorney General), 2021 FCA 237 [Doyle] which teaches the role of this Court is not to reweigh or second guess the evidence:
[3] In doing that, the Federal Court was quite right. Under this legislative scheme, the administrative decision-maker, here the Director, alone considers the evidence, decides on issues of admissibility and weight, assesses whether inferences should be drawn, and makes a decision. In conducting reasonableness review of the Director’s decision, the reviewing court, here the Federal Court, can interfere only where the Director has committed fundamental errors in fact-finding that undermine the acceptability of the decision. Reweighing and second-guessing the evidence is no part of its role. Sticking to its role, the Federal Court did not find any fundamental errors.
[4] On appeal, in essence, the appellant invites us in his written and oral submissions to reweigh and second-guess the evidence. We decline the invitation.
[Emphasis added]
VII. Relevant legislation
[65] Subsection 2(2) of the Act outlines environmental and health risks that are acceptable:
Acceptable risks
Risques acceptables
2(2) For the purposes of this Act, the health or environmental risks of a pest control product are acceptable if there is reasonable certainty that no harm to human health, future generations or the environment will result from exposure to or use of the product, taking into account its conditions or proposed conditions of registration.
(2) Pour l’application de la présente loi, les risques sanitaires ou environnementaux d’un produit antiparasitaire sont acceptables s’il existe une certitude raisonnable qu’aucun dommage à la santé humaine, aux générations futures ou à l’environnement ne résultera de l’exposition au produit ou de l’utilisation de celui-ci, compte tenu des conditions d’homologation proposées ou fixées.
[66] Subsection 4(1) provides the primary objective of the legislation is to prevent unacceptable risks:
Primary objective
Objectif premier
4 (1) In the administration of this Act, the Minister’s primary objective is to prevent unacceptable risks to individuals and the environment from the use of pest control products.
4 (1) Pour l’application de la présente loi, le ministre a comme objectif premier de prévenir les risques inacceptables pour les individus et l’environnement que présente l’utilisation des produits antiparasitaires.
[Emphasis added]
[Je souligne]
[67] Subsection 4(2) sets out ancillary objectives:
Ancillary objectives
Objectifs connexes
4 (2) Consistent with, and in furtherance of, the primary objective, the Minister shall
4 (2) À cet égard, le ministre doit
(a) support sustainable development designed to enable the needs of the present to be met without compromising the ability of future generations to meet their own needs;
a) promouvoir le développement durable, soit un développement qui permet de répondre aux besoins du présent sans compromettre la possibilité pour les générations futures de satisfaire les leurs;
(b) seek to minimize health and environmental risks posed by pest control products and encourage the development and implementation of innovative, sustainable pest management strategies by facilitating access to pest control products that pose lower risks and by other appropriate measures;
b) tenter de réduire au minimum les risques sanitaires et environnementaux que présentent les produits antiparasitaires et d’encourager le développement et la mise en oeuvre de stratégies de lutte antiparasitaire durables et innovatrices — en facilitant l’accès à des produits antiparasitaires à risque réduit — et d’autres mesures indiquées;
(c) encourage public awareness in relation to pest control products by informing the public, facilitating public access to relevant information and public participation in the decision-making process; and
c) sensibiliser le public aux produits antiparasitaires en l’informant, en favorisant son accès aux renseignements pertinents et en encourageant sa participation au processus de prise de décision;
(d) ensure that only those pest control products that are determined to be of acceptable value are approved for use in Canada.
d) veiller à ce que seuls les produits antiparasitaires dont la valeur a été déterminée comme acceptable soient approuvés pour utilisation au Canada.
[68] Subsection 19(1) sets out the requirement on a registrant “during an evaluation that is done in the course of a re-evaluation” (as taking place at material times) to provide date requested:
Burden of persuasion and consideration of information
Charge de la preuve et renseignements pris en compte
19 (1) During an evaluation that is done in the course of a re-evaluation or special review,
19 (1) Lors de l’évaluation du produit antiparasitaire dans le cadre d’une réévaluation ou d’un examen spécial :
(a) the Minister may, by delivering a notice in writing, require the registrant to provide, in the form and within the period specified in the notice, additional information that the Minister considers necessary for the evaluation;
a) le ministre peut, par avis écrit, exiger du titulaire qu’il lui fournisse, en la forme et dans le délai qui y sont prévus, les renseignements supplémentaires qu’il juge nécessaires pour l’évaluation;
(b) the registrant has the burden of persuading the Minister that the health and environmental risks and the value of the pest control product are acceptable; and
b) il incombe au titulaire de convaincre le ministre que la valeur du produit et les risques sanitaires et environnementaux qu’il présente sont acceptables;
(c) the Minister shall consider the information provided by the registrant in support of the product and may consider any additional information, but the Minister shall give the registrant a reasonable opportunity to make representations in respect of the additional information before completing the evaluation.
c) le ministre prend en compte tout renseignement fourni par le titulaire à l’égard du produit et peut prendre en compte tout autre renseignement à condition, dans ce cas, de donner au titulaire, avant de terminer ses évaluations, la possibilité de présenter ses observations.
[Emphasis added]
[Je souligne]
[69] Subsection 19(2) requires the PMRA to apply a scientifically based approach when “evaluating” risks:
Scientific approach
Approche scientifique
19 (2) In evaluating the health and environmental risks of a pest control product and in determining whether those risks are acceptable, the Minister shall
19 (2) Lorsqu’il évalue les risques sanitaires et environnementaux d’un produit antiparasitaire et détermine s’ils sont acceptables, le ministre :
(a) apply a scientifically based approach; and
a) adopte une approche qui s’appuie sur une base scientifique;
(b) in relation to health risks,
b) à l’égard des risques sanitaires :
(i) among other relevant factors, consider available information on aggregate exposure to the pest control product, namely dietary exposure and exposure from other non-occupational sources, including drinking water and use in and around homes and schools, and cumulative effects of the pest control product and other pest control products that have a common mechanism of toxicity,
(i) prend notamment en considération les renseignements disponibles sur l’exposition globale au produit antiparasitaire, soit l’exposition alimentaire et l’exposition d’autres sources ne provenant pas du milieu de travail, notamment l’eau potable et l’utilisation du produit dans les maisons et les écoles et autour de celles-ci, ainsi que les effets cumulatifs du produit antiparasitaire et d’autres produits antiparasitaires ayant un mécanisme de toxicité commun,
(ii) apply appropriate margins of safety to take into account, among other relevant factors, the use of animal experimentation data and the different sensitivities to pest control products of major identifiable subgroups, including pregnant women, infants, children, women and seniors, and
(ii) applique des marges de sécurité appropriées pour prendre notamment en compte l’utilisation de données d’expérimentation sur les animaux et les différentes sensibilités aux produits antiparasitaires des principaux sous-groupes identifiables, notamment les femmes enceintes, les nourrissons, les enfants, les femmes et les personnes âgées,
(iii) in the case of a threshold effect, if the product is used in or around homes or schools, apply a margin of safety that is ten times greater than the m