recent decision out of the Federal Court has confirmed the
federal Pest Management Regulatory Agency's ("PMRA")
duty to conduct special reviews. More specifically, the PMRA must
conduct special reviews of any pest control product containing a
special ingredient banned for environmental or human health reasons
in another member country of the Organisation for Economic
Co-operation and Development ("OECD").
Subsection 17(2) of the Pest Control Products Act
("PCPA") provides that
Without limiting the generality of subsection (1), when a member
country of the Organisation for Economic Co-operation and
Development prohibits all uses of an active ingredient for health
or environmental reasons, the Minister shall initiate a special
review of registered pest control products containing that active
Special reviews are a mechanism within the PCPA that are
designed to, depending on the circumstance, alternately empower or
require the PMRA to review its registration of products it has
approved for the Canadian market. Importantly, special reviews
provide the opportunity for the public to weigh in on the
PMRA's registration decisions.
The lawsuit was launched by two environment groups, David
Suzuki Foundation and Equiterre (the "Applicants"), back
in August of 2013 (note: we appeared, with co-counsel, on behalf of
the Applicants at the hearing in federal court earlier this year).
At the time, despite the clear wording of s 17(2), the PMRA was
refusing to perform special reviews, or was significantly delaying
initiation of special reviews, pertaining to products containing a
number of active ingredients that had been banned in OECD
countries—mostly the European Union, Switzerland, and
Norway—for human health and/or environmental reasons.
The PMRA relented after the litigation against it had been
commenced, and eventually
announced the initiation of special reviews of products
containing 23 of the active ingredients that were the focus of the
However, when the PMRA purported to reverse one of its special
review decisions—specifically, its decision to conduct
special reviews of products containing the fungicide
difenoconazole—the Applicants brought the matter before the
The PMRA argued that difenoconazole had not, in fact, been
banned for all uses in an OECD country. Although Norway had banned
the use of difenoconazole, it permitted the importation of seeds
treated with it for certain restricted purposes. The Applicants
argued that the evidence established difenoconazole had been banned
in Norway and that the PMRA was prohibited from reversing its
decision to initiate a special review by the administrative law
doctrine of functus officio.
Among additional further relief, the Applicants sought a
declaration that the PMRA had unreasonably delayed in fulfilling
its mandatory duty under s 17(2) to conduct special reviews
pertaining to several active ingredients featured in the
In its decision, the federal court agreed that the PMRA had, in
fact, violated the PCPA when it refused to conduct special reviews
of products containing a number of active ingredients.
It declined, however, to find the PMRA functus officio
in relation to its defenoconazole decision.
It also left somewhat unaddressed the issue of whether there had
been an unreasonable delay.
The PMRA has recently been making changes to how it exercises
its mandate under the PCPA in regulating pest control products.
This appears to be in response to increasing pressure to do so from
the public at large, environmental groups and, recently, the
Federal Commissioner for the Environment, who recently found that
the PMRA was
failing to fulfill key aspects of its statutory
mandate—including in relation to special reviews.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
In June, 2016, Justice Faieta of the Ontario Superior Court of Justice awarded damages of $57,712.31 plus interest against legal counsel who failed to file a claim within the required limitation period.
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