[2016] 4 F.C.R. D-5
Hazardous Products
Judicial review of various decisions of Pest Management Regulatory Agency (Agency), respondent’s delegate, regarding whether to initiate “special reviews” of certain pest control products pursuant to Pest Control Products Act, S.C. 2002, c. 28, ss. 17(2),(5) — Whether issues moot; when must respondent, through Agency, initiate special review of registered product; whether review mandatory or discretionary; what constituting “reasonable time” for decision on whether to initiate special review; whether decision regarding product arguably banned in Norway lawful or whether Agency functus — Act, s.17(1) requiring respondent to initiate special review where having reasonable grounds to believe health or environmental risks of a product unacceptable — Act, s. 17(2) also requiring respondent to initiate special review when OECD (Organisation for Economic Co-operation and Development) member country prohibiting all uses of an active ingredient for health or environmental reasons — In 2012, applicant submitting request under Act, s. 17(4) for respondent to initiate, pursuant to ss. 17(1),(2), 30 special reviews covering 30 active ingredients alleged to have been prohibited for all uses by OECD country for reasons of health or environmental concerns — Several months later, Agency issuing four decisions denying special reviews concerning four active ingredients — Applicants challenging by judicial review refusals to initiate special reviews under s. 17(2) respecting trifluralin, chlorthal-dimethy, trichlorfon but not raising Ministerial-initiated review under Act, s. 17(1) — Also challenging in further judicial review unreasonable delay under Act, s. 17(5) regarding other 26 outstanding active ingredients — In 2013, respondent initiating special reviews for 23 active ingredients including trifluralin, chlorthal-dimethyl previously denied — Following initiation of judicial, special reviews, Canadian company (Syngenta Canada Inc.) advising Agency that seeds treated with specific active ingredient (difenoconazole) for sowing granted import authorization by Norwegian Food Safety Authority in 2013, arguing that active ingredient should not be subject to s. 17(2) special review since one use now permitted in Norway — Respondent then issuing decision that special review for all pest control products containing difenoconazole not required by Act, s. 17(2) but applicants then filing application for judicial review of respondent’s decision — Respondent claiming matter moot since special reviews already undertaken; not prepared to concede as matter of law having mandatory obligation to initiate special review under Act, s. 17(2) — Live issues existing between parties, adversarial context existing herein — Case primarily dealing with statutory interpretation not government policy; consistent with a court’s adjudicative function to determine matter — Therefore, Court exercising discretion to determine judicial review — Act, s. 17(2) containing mandatory language – “shall” – when addressing respondent’s duty to initiate special review in face of OECD ban — Existence of particular state of affairs (existence of OECD ban) pre-condition to respondent’s obligation — Once state of affairs existing, respondent having no alternative but to initiate special review — While open to respondent to ensure pre-condition existing, once existence of pre-condition evident, respondent cannot refuse to initiate special review — Request for review under Act, s. 17(5) not pre-condition of respondent’s obligation under s. 17(2) — How respondent learning of OECD ban irrelevant; respondent must act; inconsistent with purpose of provision for respondent to know of OECD ban but not act until person filing request for special review — Therefore, applicants entitled to commencement of special review when respondent becoming aware of OECD ban no later than filing of request under s. 17(4) — As for reasonable delay, significant delay in present circumstances in deciding whether to initiate special review stemming from Agency’s misinterpretation of Act, s. 17(2) — Unreasonable interpretation thereof leading to unreasonable delay — Common law, implied statutory duty to initiate special review required under Act, s. 17(2) in reasonable time — Given Agency’s erroneous view of respondent’s right to decide if review required, delay occurring because of view unreasonable — Regarding issue of whether respondent functus officio, Act, s. 17(2) must be read as containing continuing requirement that OECD ban existing — If circumstance changing, ban lifted, no longer mandatory duty on respondent — Situation regarding Norway complicated since Norway taking contradictory views of difenoconazole — While applicants claiming ban in place, fact being no complete ban existing in Norway — Act, s. 17(2) phrased in absolute terms “… prohibits all uses of … active ingredient” — Facts establishing at least one permitted use of active ingredient in question — Based on evidence, Norway permitting some uses of difenoconazole — Therefore, respondent having authority to terminate special review of difenoconazole — Application allowed in part.
Équiterre v. Canada (Health) (T-1422-13, 2016 FC 554, Phelan J., judgment dated May 17, 2016, 21 pp.)