2026 FCA 17

Ottawa, January 30, 2026 – The Federal Court of Appeal has allowed the appeal in Canada v. Responsible Plastics Use Coalition et al., 2026 FCA 17. This is a plain-language summary of the Court’s reasons for judgment.

Background

Section 64 of the Canadian Environmental Protection Act (the “Act”) defines as “toxic” substances which, in fact, or may, harm the environment or biological diversity. Subsection 90(1) allows the Governor in Council (“GIC”) to identify and add toxic substances to Schedule 1 of the Act. Once a substance is added to Schedule 1, it may then be regulated under section 93 of the Act.

On April 23, 2021, the GIC made an order that added “plastic manufactured items” (“PMI”) to Schedule 1.

Under section 333 of the Act, the Minister of Environment and Climate Change has the authority to establish a board of review “to inquire into the nature and extent of the danger posed by a substance,” in this case “plastic manufactured items.” Following submissions, the Minister declined to establish a Board of Review because, in his opinion, none of the objections challenged the fundamental scientific findings of the science assessment.

The decision of the Federal Court

The plastics industry and two provincial Attorney Generals challenged the GIC Order and the Minister’s decision not to establish a board of review by bringing an application for judicial review in the Federal Court.

In its November 2023 decision (2023 FC 1511), the Federal Court found that the GIC Order was unreasonable, that the GIC Order was unconstitutional because it exceeded the federal criminal law power, and that it was unreasonable for the Minister to decline requests to establish a board of review. The Federal Court quashed the GIC Order and declared it “invalid and unlawful” as of April 23, 2021. The Court of Appeal stayed the Federal Court decision pending the hearing and disposition of the appeal.

The Attorney General of Canada appealed the Federal Court’s decision to the Federal Court of Appeal. This is the appeal from that decision.

The Federal Court of Appeal’s Decision

The FCA allowed the appeal and dismissed the application for judicial review. It answered the constitutional question in the negative.

The legal questions and how the FCA decided them

What is the standard of review for subordinate legislation? Applying Auer v. Auer, 2024 36 SCC, the court’s role in reviewing subordinate legislation is to ensure that the exercise of authority falls within a reasonable interpretation of the enabling statute.

Are “plastic manufactured items” a “substance” within the meaning of paragraph 3(1)(f) of CEPA? They are.

Was there sufficient evidence before the GIC to allow it to reasonably conclude that PMI caused, or had the potential to cause, harm within the meaning of subsection 64(a) of CEPA? There was sufficient evidence.

Whether subsection 90(1) requires that the Order list individual plastics that are the source of potential harm, and the closely related question of whether there is a requirement for quantitative testing before a conclusion can be reached with respect to harm. There were no such requirements.

Was the GIC Order unconstitutional because it exceeded the federal criminal law power? There was no substantive constitutional question. The GIC Order under subsection 90(1) is simply an enabling authority. It was not itself an exercise of the federal criminal law power.

Was the Minister’s refusal to establish a board of review reasonable? It was reasonable.

Was the appeal moot given new legislation that came into force in March 2023? The Federal Court erred in finding that the application for judicial review was not moot and in failing to consider whether it ought to hear the application. Nonetheless, the error was of no consequence in that there were reasons justifying the determination of the appeal on its merits.

Next steps

A party might choose to ask the Supreme Court of Canada to review the decision (called “seeking leave to appeal”) within 60 days. The Supreme Court of Canada needs to grant permission (called “granting leave”) before it will hear a full appeal.

Find out more: read the decision

You may read the full reasons for decision here:

English: https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521771/index.do
French: https://decisions.fca-caf.gc.ca/fca-caf/decisions/fr/item/521771/index.do