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On November 16, a federal court quashed Canada’s ‘plastics ban’ in a lawsuit filed on behalf of several Big Plastic industry members, including Dow Chemical, Nova Chemicals Corporation, and Imperial Oil.

In the judgment, Justice Angela Furlanetto ruled that a federal regulatory order, which added plastic manufactured items (PMI) to the Canadian Environmental Protection Act’s (CEPA) list of toxic substances, was “both unreasonable and unconstitutional”. The Justice further stated that there was insufficient evidence to conclude all PMI are toxic, and by including PMI in the list, the Administrator-in-Council/Governor-in-Council (GIC) “acted outside of their authority.”

Justice Furlanetto acknowledged in her ruling that “it is undisputed that plastics are ubiquitous” and that “plastic waste management…and plastic pollution…have been the subject of growing environmental concern and government focus since at least 2016.” However, she regarded the evidence relied upon by the GIC in classifying PMI as a toxic substance as only demonstrating that PMI can become plastic pollution, rather than proving all PMI are toxic. 

In June of 2022, the GIC relied on PMI’s classification as a toxic substance to make the Single-use Plastic Prohibition Regulations (Regulations). The Regulations place limitations — and in the case of some items, outright bans — on the manufacture, import, and sale of several single-use plastic items, including plastic straws, takeout containers, grocery bags, and disposable cutlery. 

For somewhat technical reasons, notwithstanding the court’s decision, the Regulations remain in effect at this time. However, the long-term impact of the decision for plastic regulation in Canada remains to be determined. 

Immediately after the judgment’s issuance, Alberta Premier Danielle Smith and Environment Minister Rebecca Schulz released a statement urging the federal government not to appeal the decision, but rather, to reverse its plastic regulation policies.

At a press conference on November 20, Environment Minister Steven Guilbeault stated the federal government intends to appeal the decision.

In the meantime, several provinces, including British Columbia, Prince Edward Island, Newfoundland and Labrador, and Nova Scotia have already enacted their own legislation to ban or restrict the sale of certain single-use plastic items.

Please contact our firm at 647-725-4308 or info@greeneconomylaw.com for legal assistance in connection with Canadian environment and waste policy matters.