In Environmental Interest Groups Challenge Registrations of
Neonicotinoid Products in Federal Court, we discussed
a recent judicial review initiated by the David Suzuki Foundation
and others with respect to conditional registrations of
neonicotinoid products. On May 17, 2016, the Federal Court released
its decision in another judicial review brought by the David Suzuki
Foundation, among others, in Équiterre and David Suzuki
Foundation v Minister of Health (Canada). This case concerns
whether section 17 of the Pest Control Products Act (PCPA)
imposes a mandatory or discretionary duty upon the Minister of
Health and the Pest Management Regulatory Agency (PMRA) to initiate
special reviews of pest control products and active ingredients
following the occurrence of certain prescribed events.
The Applicants were particularly concerned with subsection
17(2), which states that the Minister must initiate a special
review of an active ingredient if a member country of the
Organisation for Economic Co-operation and Development has banned
all uses of that active ingredient. In this case, the
Applicants argued that the Minister had, among other things, erred
in law by declining to initiate a special review upon becoming
aware of the fact that Norway, an OECD member country, had banned
all uses of the active ingredient difenoconazole. The Minister did
not concede at the Hearing that subsection 17(2) imposed a
mandatory obligation to initiate a special review.
The court found that the PCPA does impose a mandatory
duty on the Minister under that section to initiate a special
review of an active ingredient when the Minister becomes aware of
an OECD ban, regardless of the Minister's belief in the health
or environmental risks of the product. The court held that, though
the Minister retained the discretion to verify that the active
ingredient was actually banned, once that ban was confirmed, he or
she did not have the discretion to decline to initiate the review.
However, the court also ruled that the Minister's obligation
had terminated as soon as Norway had lifted its ban on some uses of
the active, even where a special review had already been initiated
by that time, as subsection 17(2) requires that all uses
of an active ingredient be banned.
The court issued a declaration that the Minister should have
initiated a special review under subsection 17(2) upon becoming
aware that Norway had prohibited all uses of the active ingredient.
While the decision confirms the duty to initiate a special review
in such circumstances, it leaves open question about the timing and
Will the PMRA now take active steps
to seek out information about OECD bans?
What effect, if any, will this
decision have on the speed of special reviews?
Will we see further litigation with
respect to the scope of special reviews under section 17?
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