In the recent case of Josette Wier v. the Minister of Health, the Federal Court considered a judicial review application regarding the decision of the Minister of Health (the “Minister”) to deny a “special review” request under s.17 of the Pest Control Products Act, S.C. 2002, c. 28 (the “Act”). The Act permits any person to make a request for a “special review” of the health or environmental risks of a registered pesticide, which the Minister “shall” perform unless there is reasonable certainty that no harm will result from exposure to the pesticide (see para 2). The pesticide for which a special review was requested in this case is a herbicide (glyphosate herbicides containing POEA), a weed killer (see paras. 4 – 5).
The Minister delegates the responsibility of evaluating requests for “special review” to the Regulatory Agency at Health Canada (the “Regulatory Agency”). The Regulatory Agency undertakes the following process to review and respond to requests: (1) risk assessments by teams of scientists; (2) review by the “Science Operations Committee” of the Regulatory Agency, and (3) review and final decision by the “Science Management Committee” of the Regulatory Agency. Based on this process, the Regulatory Agency declined the applicant’s request to initiate a special review.
The court allowed the application for judicial review. In doing so, the Court provided the following analysis of the issues raised by the application.
Issue 1: Did the Minister err by only considering “new evidence” and failing to consider the entire body of evidence […]
- 1. The Minister has an obligation to consider all evidence in determining whether there are reasonable grounds for finding unacceptable risk as the Act does not specify that the evidence presented in the request for a special review be significant or new (see para 87). To this end, however, the Court agreed that the Minister had fulfilled this duty.
Issue 2: Did the Minister err by concluding that a mandatory special review under section 17 is not required if she intends to engage in a re-evaluation under section 16 of the Act at some point in the future?
- 2. The Court indicated that a determination on whether or not to conduct a special review under s.17 is independent of any re-evaluation that may be planned or underway under s.16 of the Act. The Court found that the Minister’s decision to reject the “special review” focused on the re-evaluation that was underway under section 16, without explicitly addressing the alleged risk of the pesticide (see para. 92). The Court noted that the “respondent fettered her discretion under section 17 because a section 16 re-evaluation of the same environmental risks was planned.” (para. 92) As such, the Court concluded that “the Minister erred in law by misinterpreting the mandatory wording of section 7 which requires that a ‘special review’ be conducted regardless of whether a section 16 re-evaluation is planned or is underway.” (see para. 92)
Issue 3: Did the Minister err in interpreting the evidentiary threshold required to initiate a special review under section 17?
- 3. The Court provided guidance on the interpretation of the test the Minister must use to make a determination under s.17(1) of the Act, which calls for “reasonable grounds to believe that the health or environmental risks of the product are, or its value is, unacceptable”. The Court says this means that the “Minister has compelling and credible evidence that gives rise to a serious possibility that the pesticide may cause an unacceptable health or environmental risk.” (para 97) The interpretation of “reasonable grounds” is guided by the SCC decision of Mugesera v. Canada (Minister of Citizenship and Immigration), which provides that “in essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information.” (para 97) In this case, the court finds that the Minister did not meet this threshold for one aspect of the request.
Issue 4: Did the Minister err in his interpretation of his statutory obligation to apply the precautionary principle?
- 4. The Court acknowledged the application of the “precautionary principle” under section 20(2) of the Act, which states: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent adverse health impact on environmental degradation.” The Court finds that “with opinions within the Regulatory Agency on both sides of the question as to whether the pesticides presents an unacceptable environmental risk to amphibians in ephemeral wetlands, the precautionary principle would require that the Minister initiate a special review into that issue.” (paras 100-101)
Issue 5: Was the Minister’s finding that glyphosate herbicides containing POEA do not present an unacceptable risk, unreasonable?
- 5. The Court takes the view that the Minister’s decision was not reasonable because it did not expressly address the narrow environmental risk at issue in the case (ie. the environmental risk to amphibians in ephemeral wetlands), and because the evidence with respect to that narrow risk is not properly documented in the record.
Relief
- 6. In granting relief, the Court finds that a special review can co-exist with a section 16 re-evaluation of the pesticide, and as such refers the matter back to the Minister.
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Josette Wier v. the Minister of Health 2011 FC 1322
Yadira is an associate in Fogler Rubinoff’s Environmental law department. She joined the firm as a summer student in 2009, and articled with the firm in 2010-2011. Her practice is focused on advice and litigation relating to environmental approvals, including approvals regarding renewable energy, resource extraction and land use. She can be contacted at yflores@foglers.com
