Federal Plastic Ban Appeal Advances - Retail Council of Canada
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Federal Plastic Ban Appeal Advances

July 2, 2024

On June 25th Canada’s Federal Appeals Court was in session to hear the Federal Government’s appeal on the November 2023 ruling against their listing of all plastic manufactured items (PMI) as “toxic” under schedule 1 of the Canadian Environmental Protection Act (CEPA). This listing is the basis that supports actions such as Canada’s Single Use Plastic Ban (SOR/2022-138).

The November ruling stated that the Federal Government’s decision to list all PMI as toxic was too overly broad and lacked sufficient evidence, concluding that the government did not demonstrate that all plastics cause harm. The ruling also noted that the Federal Government was overreaching on provincial jurisdiction. A decision on the Federal Government’s appeal is expected to be issued in the fall. In January a stay was ruled on this case pending the appeal which upholds the listing of all PMI as toxic and maintains the government’s single use plastic ban.

At the Federal Appeals Court the government argued that listing all PMI as “toxic” was not overly broad and that precedent exists to do so, citing that of the 150+ substances listed as toxic in Canada’s Environmental legislation today, some are also broad categories, with the example of Volatile Organic Compounds (VOCs) being provided. The government also argued that the original form of the plastic is irrelevant to its ability to cause harm once it enters the environment, using physical examples such as plastic smothering coral reefs and choking animals.

The Federal Government had support in their case from the Provincial Government of British Columbia which bolstered the government’s argument that its actions are on solid constitutional grounds. Support for the appeal was also provided by NGOs including: the Canadian Association of Physicians for the Environment, David Suzuki Foundation, Environmental Defense Canada, Greenpeace Canada, and Oceana Canada with lawyers from Ecojustice.

Counter arguments from the lawyer representing the plastics manufacturers argued that the Federal Government has not provided enough scientific evidence to demonstrate that all PMI was entering the environment and causing harm. They called on the court to uphold the lower court’s ruling in their favour. This position was supported by the Government of Alberta who view the Federal Government’s decision to undergo this appeal as an “overreach [of] their jurisdiction and impair[s] investor confidence in the petrochemical sector”.

Regardless of the decision made by the Federal Appeals Court this fall, it is expected that this case will be raised to the Supreme Court of Canada for a final decision. RCC will be monitoring the appeal process closely and will be keeping members informed.

Contact Harrison Brook, Manager Sustainability at hbrook@retailcouncil.org for questions or more information on: