TO: SAFE FOOD MATTERS INC. AND TO: COUNSEL FOR THE Andrea Gonsalves (LSN: 52532E) INTERVENER ECOJUSTICE per the STOCKWOODS LLP Barristers David Suzuki Foundation, Toronto-Dominion Centre TD North Tower, Laura Bowman (LSN: 53645K) Box 140, 77 King St. W, Suite 4130 [email protected] and Toronto ON M5K lHl Ian Miron (LSN: 63445O) Tel: 416-593-3497 Fax: 416-593-9345 [email protected] [email protected] 1910-777 Bay St, Box 106, TO, ON M5G 2C8 Counsel for the Appellant T: 416-368-7533 (exts. 522 and 540) AND TO: A.G. CANADA (for the Minister FROM: Bill Jeffery, BA, LLB (LSN: 37605S) of Health & Pest Mgmt Regulatory Agency), Executive Director and General Counsel Dept. of Justice Canada, ON Reg’l Office Telephone No. (613) 565-2140 400-120 Adelaide St West, TO, ON M5H lT1 Counsel for the Proposed Intervener Per: Andrea Bourke (LSN: 45892K), Tel: Centre for Health Science and Law (CHSL) 647-256-7471, [email protected] PO Box 4880, Station E Elizabeth Koudys (LSN: 74644Q), Tel: 647- Ottawa, ON K1S 5J1 Canada 256-7530, [email protected] Address for service: Counsel for the Respondent [email protected]
Re: Federal Court of Appeal Court File No. A-85-20, in the matter between Safe Food Matters Inc. v. Attorney General of Canada per the Minister of Health/Pest Management Regulatory Agency) concerning the 2017 decision to re-approve glyphosate for use as a pesticide in Canada following its initial approval in 1976
I am writing on behalf of the Centre for Health Science and Law (CHSL) which seeks leave to intervene in the above-note appeal. Its application materials are available at:
• Motion for leave to intervene pursuant to ss. 109 and 346 of the Federal Rules of Court; • Draft memorandum of fact and law proposed to be filed if intervener status is granted by the Court; • Draft Motion for leave to admit new evidence pursuant to s. 351 of the Federal Rules of Court; and • Notice of consent to electronic service, form 141A commencing December 14, 2020.
Please confirm whether you consent to electronic service of these and future materials by email notification. If you do not consent, please advise how you wish to be served.
Sincerely,
Bill Jeffery, BA, LLB (LSN: 37605S), Executive Director and General Counsel Counsel for the Proposed Intervener, Centre for Health Science and Law (CHSL) Court File No. A-85-20 FEDERAL COURT OF APPEAL
BETWEEN
SAFE FOOD MATTERS INC. Appellant AND
ATTORNEY GENERAL OF CANADA Respondent APPLICATION UNDER s. 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
MOTION RECORD of the CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) for leave to intervene (Pursuant to Rules 109)
PROPOSED INTERVENER CENTRE TO: ATTORNEY GENERAL OF CANADA FOR HEALTH SCIENCE AND LAW (on behalf of the Minister of Health and the Pest (CHSL) Mgmt. Regulatory Agency), Dept. of Justice P.O. BOX 4880, Station E Canada, Ont. Reg’l Office Ottawa, ON, K1S 5J1 400 - 120 Adelaide St. W, Toronto ON M5H lT1 Bill Jeffery (LSN: 37605S) Andrea Bourke (LSN: 45892K) Executive Director and General Counsel Tel: 647-256-7471 Tel. (613) 565-2140 [email protected] Correspondence by email to Elizabeth Koudys (LSN: 74644Q) [email protected] Tel: 647-256-7530; Counsel for the proposed Intervener CHSL [email protected] Counsel for the Respondent AND TO: SAFE FOOD MATTERS INC. AND TO: COUNSEL FOR THE Andrea Gonsalves (LSN: 52532E) INTERVENER ECOJUSITCE STOCKWOODS LLP Barristers Laura Bowman (LSN: 53645K) Toronto-Dominion Centre TD North Tower, [email protected] and Box 140, 77 King St. W, Suite 4130 Ian Miron (LSN: 63445O) Toronto ON M5K lHl [email protected] Tel: 416-593-3497 Fax: 416-593-9345 1910-777 Bay St, Box 106, TO, ON M5G 2C8 [email protected] T: 416-368-7533 (exts. 522 and 540, Counsel for the Appellant respectively
1 TO: The Administrator Federal Court of Appeal AND TO: ATTORNEY GENERAL OF CANADA AND TO: SAFE FOOD MATTERS INC AND TO: ECOJUSITCE
TABLE OF CONTENTS
TAB DESCRIPTION PG 1. Letter to parties 2. Motion Record for leave to intervene 1 Table of Contents 2 Notice of Consent to Electronic Service, Form 141A pursuant to 7 Rule 141, dated December 14, 2020 A. Notice of Motion of the Centre for Health Science and Law (CHSL) 9 for leave to intervene (Pursuant to Rules 109) dated December 14, 2020 B. Draft Order granting CHSL leave to intervene 21 3. Affidavit of Bill Jeffery, Executive Director and General Counsel of the 23 Centre for Health Science and Law attesting to the experience, expertise, intentions concerning its proposed intervention, affirmed December 14, 2020 A. Exhibit A: Certificate of Incorporation of CHSL 39 B. Exhibit B: PDF copy of the Issue #6 of Food for Life Report 44 4. Memorandum of Fact and Law on the application for leave to intervene 74 Part I: Facts 74 Part II: Points in Issue 79 Part III: Memorandum of Fact and Law 79 Part IV: Order Sought 91 Part V: Authorities 95 A. Appendix A: Statutes and Regulations 95 A1 Federal Courts Rules, SOR/98-106 97 A2 Review Panel Regulations, SOR/2008-22 102 A3 Pest Control Products Act, SC 2002 c 28 111 Canadian Charter of Rights and Freedoms, being Part I of the 133 A4 Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)](excerpt) B. Appendix B: Authorities re leave to intervene 138 B1 Bauer Hockey Corp. v. Easton Sports Canada Inc., 2016 FCA 44. 138 B2 Rothmans, Benson & Hedges Inc. v Canada (AG) (CA), [1990] 1 168 FC 90 B3 Rothmans, Benson & Hedges Inc v Canada (AG) (FCTD), [1990] 1 173 FC 74
2 B4 Teksavvy Solutions Inc v Bell Media Inc, 2020 FCA 108 184 Canada (Attorney General) v. Kattenburg, 2020 FCA 164 201 B5 (CanLII),
3 H. Peer-reviewed report entitled: Charles M. Benbrook, “Trends in tbc glyphosate herbicide use in the United States and globally,” Environmental Science Europe (2016) 28:3 DOI 10.1186/s12302-016-0070-0 I. Minister of Health’s 2019 mandate letter from the Prime Minister tbc J. Incident reports of scientific studies available at https://pesticide- tbc registry.canada.ca/en/incident-report-search.html mandated by the Pest Product Control Act and Pest Control Products Incident Reporting Regulations, SOR/2006-260 K. Health Canada January 16, 2020 “Health Canada Statement on tbc Glyphosate” published two weeks before the Federal Court hearing on the subject: https://www.canada.ca/en/health- canada/news/2019/01/statement-from-health-canada-on- glyphosate.html L. Report of the United Nations Special Rapporteur on the Right to tbc Food (excerpt) M. Charles Benbrook, “Shining a Light on Glyphosate-Based tbc Herbicide Hazard, Exposures and Risk: Role of Non-Hodgkin Lymphoma Litigation in the USA,” European Journal of Risk Regulation, Vol. 11:3, 503. N. Biography of lead author Christopher J Portier and 93 other tbc scientists and published in a peer-reviewed speciality journal of the British Medical Journal distinguishing the approach to seller sponsored studies used by World Health Organization’s International Agency for Research on Cancer compared to the European Food Safety Agency, PMRA’s:: Differences in the carcinogenic evaluation of glyphosate between the International Agency for Research on Cancer (IARC) and the European Food Safety Authority (EFSA), Christopher J Portier and 93 other scientists, Differences in the carcinogenic evaluation of glyphosate between the International Agency for Research on Cancer (IARC) and the European Food Safety Authority (EFSA). J Epidemiol Community Health 2016;70:741-745. Available at: https://jech.bmj.com/content/70/8/741 O. Three official summaries of glyphosate’s regulatory status in the tbc European Union “Summary report of the appeal Committee, Commission Health and Food Safety Directorate-General”, “Status Report on Glyphosate in the EU”, and MEPs demand glyphosate phase-out, with full ban by end 2022” from the European Commission and the European Parliament; P. Document: PMRA enforcement bulletin for 2016-2020: tbc https://www.canada.ca/en/health-canada/services/consumer- product-safety/pesticides-pest-management/public/protecting-your- health-environment/compliance-enforcement/enforcement- bulletins.html
4 Q. Statistics Canada, Canadian Community Health Survey - Nutrition tbc (CCHS) Detailed information for 2015, large nationally; and representative survey of food consumption patters.
10. Book of authorities concerning new evidence on appeal tbc L R Vivian Associates Ltd. v. The Queen, 2001 FCA 234 (CanLII), tbc
12. DRAFT MEMORANDUM OF FACT AND LAW ON THE MAIN tbc APPEAL BOOK OF AUTHORITIES RELATED TO THE MAIN APPEAL ON tbc THE JUDICIAL REVIEW CONCERNING GLYPHOSATE Part I: Facts tbc Part II: Points in Issue tbc Part III: Memorandum of Fact and Law tbc Part IV: Order Sought tbc Part V: Authorities tbc
5 13. Appendix A: Statutes and Regulations tbc Pest Control Products Act, S.C. 2002, c. 28. tbc Review Panel Regulations, (excerpt) Canada Gazette Part II, Vol. 140, No. 23, November 15, 2006, SOR/DORS/2006-260 at p. 1670. Canada Gazette Part II, Vol. 140, No. 23, November 15, 2006, SOR/DORS/2006-261 at p. 1679 and 1684-5 14. Appendix B: Authorities tbc R. v. Mian, 2014 SCC 54 (CanLII), [2014] 2 SCR 689, tbc
6 Court File No. A-85-20 FEDERAL COURT OF APPEAL
SAFE FOOD MATTERS INC. (Appellant)
AND
ATTORNEY GENERAL OF CANADA Respondent
APPLICATION UNDER subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
Notice of Consent to Electronic Service, Form 141A pursuant to Rule 141
Proposed Intervener CENTRE FOR HEALTH SCIENCE AND LAW (CHSL)
TO: SAFE FOOD MATTERS INC. AND TO: CONSEL FOR THE Andrea Gonsalves (LSN: 52532E) INTERVENER ECOJUSICE STOCKWOODS LLP Barristers Laura Bowman (LSN: 53645K) Toronto-Dominion Cntr North Twr, [email protected] and Box 140, 77 King St. W, Suite 4130 Ian Miron (LSN: 63445O) Toronto ON M5K lHl [email protected] Tel: 416-593-3497 1910-777 Bay St, Box 106, [email protected] TO, ON M5G 2C8 Counsel for the Appellant T: 416-368-7533 (exts. 522 and 540, respectively) AND TO: ATTORNEY GENERAL OF CANADA (for the Minister of Health & Pest Management Regulatory Agency), Dept. of Justice Cda, ON Reg. Office 400-120 Adelaide St W, TO ON M5H lT1 Per: Andrea Bourke (LSN: 45892K) Tel: 647-256-7471, [email protected] Elizabeth Koudys (LSN: 74644Q) Tel: 647-256-7530, [email protected] Counsel for the Respondent
7 Court File No. A-85-20
FEDERAL COURT OF APPEAL
SAFE FOOD MATTERS INC. (Appellant)
AND
ATTORNEY GENERAL OF CANADA Respondent
APPLICATION UNDER subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
Notice of Consent to Electronic Service Form 141A pursuant to Rule 141
The Proposed Intervener Centre for Health Science and law consents to the electronic service of all documents in this appeal that are not required to be served personally.
Electronic service of the documents may be made to the following electronic address: [email protected]
December 14, 2020
Bill Jeffery, BA, LLB (LSN: 37605S) Executive Director and General Counsel Telephone No. (613) 565-2140 Counsel for the Proposed Intervener Centre for Health Science and Law (CHSL) PO Box 4880, Station E Ottawa, ON K1S 5J1 Canada Address for service: [email protected]
8 Court File No. A-85-20
FEDERAL COURT OF APPEAL
BETWEEN
SAFE FOOD MATTERS INC. Appellant AND
ATTORNEY GENERAL OF CANADA Respondent
APPLICATION UNDER subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
MOTION RECORD of the CENTRE FOR HEALTH SCIENCE AND LAW (CHSL)
Motion of the Centre for Health Science and Law (CHSL) for leave to intervene (Pursuant to Rules 109)
TAKE NOTICE THAT the Centre for Health Science and Law (CHSL) will make a motion to the Court in writing under Rules 109 of the Federal Courts Rules.
Section 109 of the Rules states:
Leave to intervene 109 (1) The Court may, on motion, grant leave to any person to intervene in a proceeding.
Contents of notice of motion (2) Notice of a motion under subsection (1) shall (a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposed intervener; and
9 (b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding.
Directions (3) In granting a motion under subsection (1), the Court shall give directions regarding (a) the service of documents; and (b) the role of the intervener, including costs, rights of appeal and any other matters relating to the procedure to be followed by the intervener.
THE MOTION IS FOR an Order:
1. Granting the Centre for Health Science and Law status to intervene in this appeal on the following terms:
2. CHSL will confine itself to offering a fresh perspective through submissions that will assist the court in determining the Appellant’s issues before it, namely:
a) Appellant issue 7(b): Transparency, justification, and intelligibility; b) Appellant issue 7(a)(v) The Federal Court accepted the PMRA's undue and unreasonable reliance on glyphosate labels as a basis for dismissing the information presented in the Notice of Objection; c) Appellant issue at 7(a)(iii) iii. The Federal Court failed to adequately consider the information presented in the Notice of Objection regarding (b) increases in dietary consumption of chickpeas and other indeterminate crops that likely increases Canadians' exposure to glyphosate; d) offer a perspective on the constitutionality of the decade-long delay in initiating the re-evaluation of glyphosate (a draft of which is attached
10 here) so that this court can decide whether to raise the issue and invite submissions from the parties, in particular whether the delay infringed the rights of Canadians to health and security of person as protected by section 7 of the Charter of Rights and Freedoms; and e) offer guidance on terms that this Court of Appeal might attach to the remedy sought by the Appellant, the appointment of an expert scientific Review Panel to ensure that the errors warranting the relief are not repeated,
3. More particularly, CHSL will share with the court analysis based on the evidence on the Certified Trial Record that the PMRA did and the reviewing trial court accepted the following particular decision-making failures related to the issues set out above:
a. LAPSES OF TRANSPARENCY, JUSTIFICATION AND INTELLIGIBILITY IN THE RESPONSE? TO HELP PMRA DECISION FLY UNDER THE RADAR AND FRUSTRATE JUDICIAL REVIEW: The PMRA exhibited multiple failures of transparency that deprive the public and the reviewing court of crucial facts that appear, whether by accident or design, to make the administrative decision fly under the radar. If these facts were revealed, they would put the PMRA glyphosate Re-evaluation
Decision – RVD2017-01 and formal Objections to it in a starkly different light and would certainly have led to different reasons at trial and would reasonably have led to an order for a Review Panel. These failures include PMRA’s failure to report in the PMRA glyphosate Re- evaluation Decision – RVD2017-01:
i. the amount of glyphosate used in Canada per year and in relation to other countries despite its annual practice of preparing such
11 reports and disclosing them on-request, albeit not publishing them in the traditional or modern sense of the word; ii. the number of published peer-reviewed studies PMRA considered, dismissed, and ignored and the reasons for relying on studies provided by the pesticide manufacturer; iii. measures taken to address the risk of bias and conflicts of interest in seller-sponsored studies; iv. that the 2002 European Union regulatory status of glyphosate where most OECD counties are located was due to expire in 2016 and was reformed significant in 2017; v. the size of the total glyphosate re-evaluation package including in relation to the average application package for new pesticide applications which was accumulated over decades or and as many as 39 years by the Respondent Pest Management Regulatory Agency and its precursor federal government regulators and to which the Applicant was offered less than 60 days to peruse in preparing its Notice of Objection; vi. whether and why label-use failures is the dominant reason for imposing enforcement penalties by the PMRA and whether, why and to what extent issuing warning letters is the preferred means of addressing violations of the Pest Control Products Act, which are essential elements of a response to issues raised by the Appellant in its Notice of Objection (at paragraphs 5-8), and ignored by the Respondent PMRA; vii. the large volume of litigation involving glyphosate internationally and in Canada related to cancer risk; and viii. the use of out-dated foreign food consumption data instead of contemporary Canadian food consumption data to estimate the exposure of Canadians to glyphosate pesticide residues.
12 b. USEFULNESS OF SCIENTIFIC REVIEW FOR ADDRESSING GLYPHOSATE LABELLING: PMRA and lower court failed to acknowledge that demonstrably 100-page long glyphosate labels (as illustrated from the Certified Tribunal Record) might present complex health and environment risk information and usage instructions in ways that contribute to harm and that labelling is properly the subject of scientific review; c. MISLEADING OR INCORRECT CHARACTERIZATION OF REGULATORY STATUS IN OECD COUNTRIES: Though not raised in the Notice of Objection, the lower court decision cited the regulatory status of glyphosate in OECD countries, apparently to buttress the PMRA decision. The PMRA failed to reveal the source of its conclusion that no OECD authority had banned glyphosate in its 2017 decision, acknowledge that an EU decision cited in its 2015 consultation had expired long before the 2020 trial or reconcile PMRA’s reliance on the European Food Safety Authority report on glyphosate with its implication that individual countries made decisions not to ban glyphosate. The PMRA conspicuously failed to particularize the conditions or dates of most recent approval or re- approval of glyphosate in OECD countries. The lower court accepted, relied on and cited with approval the assertion that no OECD country has banned glyphosate. d. SEVERE DELAY OF RE-EVALUATION: The PMRA initiated its review of glyphosate one decade after an express statutory deadline, April 1, 2005, which was 13 years after the PMRA was put on notice of this deadline and 39 years after glyphosate was initially registered for use in Canada, a delay that, CHSL submits, amounts to a breach of section 7 of the Charter of Rights and Freedoms protections for life and security of person.
13 e. BIAS OF PMRA’s APPROACH TO SCIENTIFIC REVIEW AND OBJECTIONS: The PMRA admitted in the evidence before this Court of Appeal that it has a bias against scientific research on glyphosate that is published in peer-reviewed journals and in favour of seller-sponsored studies on glyphosate which, together, is contrary to the “scientifically based approach” mandated by the Pest Control Products Act, but PMRA did not concede the full extent of this bias. If permitted to adduce new evidence, CHSL will quantify and particularize this failure. This is, at best, a hugely consequential mis- application of the weight-of-evidence approach that the Respondent asserts PMRA applied in its regulatory decision and the purported rigour of which it relies upon in summarily dismissing all Notices of Objection, including the Applicant’s.
f. SUBMISSIONS CONCERNING THE REMEDY: CHSL proposes to offer the Court of Appeal perspectives on terms that it might attach to the remedy of appointing a Review Panel to ensure that the Minister fulfills the objectives of the Pest Control Products Act; and
g. Such other issues as this court may permit.
4. In addition, if this Court grants CHSL leave to adduce new evidence to shed sunlight on multiple failures of transparency (see the draft Rule 351 Motion, attached), CHSL will assist the court to particularize and quantify several transparency deficiencies and the consequential decision-making flaws they mask, including: a) quantifying that, rather than applying a “scientifically based approach” as expressly required by the Pest Control Products Act, PMRA ignore or dismissed 96% of 8,000 studies considering glyphosate that were published in peer-reviewed scientific journals and, instead, relied heavily on seller-sponsored studies;
14 b) reporting that 56 million KG of glyphosate was used in Canada in 2017, (double the amount used in 2007) as reported in a 2020 Access to Information Act disclosure which is higher than the amounts used in all of Europe combined (where glyphosate is the most widely used pesticide) and approximately half as much as is used in the Unites States; c) providing three official summaries of the regulatory status of glyphosate in the European Union where most OECD countries are situated (which countries’ regulations are given special status in in the Pest Control Products Act) indicating that the re-approval period was shorted from 15 years to five year and many governments wanted shorter or immediate bans on glyphosate; d) quantifying the considerable extent to which glyphosate registrant companies either refrained from publishing studies with negative results or failed to report them to the Minister of Health pursuant to their statutory duty to do so, further indicating the bias of the information that was PMRA’s chief source of information to make its re-evaluation decision; e) providing multiple sources of authoritative and expert sources of information characterizing the volume of the worldwide litigation concerning the safety of glyphosate; f) describing two large national databases of food consumption patterns from Canada’s Canadian Community Health Survey collected in 2004 and 2015 that were available to the PMRA but which it ignored in favour of US food consumption data form the 1990s to estimate Canadians’ contemporary exposure to glyphosate residues; and g) particularizing the number of failures to follow labelling regulations that were penalized by the PMRA and the extensive use of non-fine warning letters suggesting the possibility that labelling regulations cause systemic and widespread risks and that Appellant’s Objections about warning labels were unjustifiably ignored by the PMRA.
15 5. CHSL will be served by electronic mail with all materials of the parties;
6. The style of cause shall be changed to add the Centre for Health Science and Law (CHSL) as an intervener and thereafter that all documents shall be filed under the amended style of cause;
7. CHSL will file its memorandum of fact and law (draft attached) not exceeding 20 pages (plus ten page of submissions on the Charter of Rights and Freedoms issues) within 21 days of the later date of which leave to intervene is granted and this court rules on the Intervener’s motion (draft attached) to adduce new evidence;
8. If granted leave to intervene, CHSL will file its motion to adduce new evidence within 15 days of the date that it is notified of its acceptance as an intervener by the Court;
9. If granted leave to intervene, CHSL will continue its review of the proposed arguments of any Interveners so as not to duplicate arguments and materials before the Court and has already taken steps to this end;
10. CHSL will be consulted on hearing dates for the oral hearing of this matter and will prepare itself to do so by virtually by Zoom or Microsoft Teams or whatever communication tool the Court specifies;
11. CHSL will have the right to make oral submissions before the panel of the Court hearing the appeal for approximately 30 minutes or such additional time as the court may authorize;
12. If granted leave to intervene, CHSL will reserve its decision on whether to seek costs but asks that, owing to the public interest nature of its submissions that the vastly more secure and abundant resources of the Attorney General,
16 Pest Management Regulatory Agency, and Minister of Health that CHSL be insulated from adverse cost awards; and
13. Allowing this motion to be decided on the basis of written representations.
THE GROUNDS FOR THE MOTION ARE:
14. The appeal raises justiciable issues of public interest.
15. The appeal raises important issues about the interpretation of s. 7 of the Charter of Rights and Freedoms.
16. This appeal raises important issues about the special duty of the Minister of Health and its agents to ensure that regulatory decisions with foreseeable impacts on the health of Canadians are made with a conscientious and thorough consideration of all available scientific, not primarily relying on evidence sponsored, selected and delivered by the sellers of the regulated products to the substantial exclusion of research published in peer-reviewed published scientific journals. Its decision to reject an expert, independent Review Panel review of its regulatory decision and to summarily dismiss all of the Appellant’s objections is a failure of its statutory duty.
17. CHSL has a unique and important perspective and expertise in the application of scientific research to legislative and regulatory decisions involving food, health and conflict of interest safeguards that will assist the Court in the resolution of the issues raised by the appeal that will not be fully addressed by the other parties.
18. Through its perspective, CHSL can assist the court in recognizing the extent to which scientific evidence was systematically ignored, overlooked, or disqualified from consideration for reasons that are not disclosed on the record. CHSL will also help the court situate this regulatory decision in the
17 context of a large volume of on-going class actions and other litigation in Canada and internationally.
19. CHSL has a unique and important perspective and expertise in the application of scientific research to law reform and enforcement considerations.
20. CHSL has familiarized itself with the scope of evidence available in the published scientific literature.
21. CHSL examined Charter of Rights and Freedoms section 7 considerations that were not considered by the parties at trial and have not been expressly advanced by the appellant, but are nonetheless important for the Court of Appeal to consider in its curial review of the decision of the trial court and PMRA.
22. CHSL examined Justice Simpson’s conclusions about labels—which appear to have been made without evidence from the record or to be have been based on a mistaken that such conclusions are adequately informed by common knowledge—through the lens of CHSL’s accumulated staff experience in studying and advocating changes to partly analogous food labels since 1997 and by reviewing two 100-page Canadian agricultural-use glyphosate product labels that are available on Certified Tribunal Record that is already before this Federal Court of Appeal.
23. Granting CHSL leave to intervene is a reasonable and efficient means to ensure full argument on the issues raised in the appeal before the Court and the remedy provided by the Court of Appeal, if any, contemplates all foreseeable consequences.
24. If granted leave to appeal, this Court will accept and consider the Solicitor’s Affidavits of Bill Jeffery in this leave to intervene, a motion to adduce new
18 evidence, and any further procedural motions where doing so is practicable, efficient, economical, and in the interests of justice.
25. CHSL’s intervention in this appeal will not prejudice any party or unduly complicate this appeal.
26. CHSL and the solicitor of record is new to litigation, but will endeavour to be conscientious about procedure and parsimonious in its submission as the seriousness of the issues and cooperativeness of the parties will allow.
27. If granted leave to intervene, it will perfect its written submissions on new evidence and the factum in the main appeal—drafts of which are attached— according to the schedule set by the Court.
28. Rules 109 of the Federal Courts Rules, SOR/98-106, and such further and other grounds as this Honourable Court permits.
THE FOLLOWING DOCUMENTARY EVIDENCE will be relied upon in argument for granting the motion:
29. The Affidavit of Bill Jeffery in relation to the Motion for leave to intervene affirmed December 14, 2020 along with the attached exhibits: a. a copy of the federal Certificate of Incorporation of the Centre for Health Science and Law (CHSL), and b. a sample PDF-format copy of CHSL’s 32-page print-magazine, Food for Life Report. c. a memorandum of fact and law of the Proposed Intervener Centre for Health Science and Law on the matter of granting CHSL leave to intervene; d. the record before the court below and Certified Appeal Record;
19 e. Notice of Motion and Memorandum of Fact and Law for leave to adduce new evidence on appeal pursuant to Section 351 of the Federal Courts Rules (draft attached); f. Memorandum of Fact and Law in the main appeal; and g. such further and other evidence as this Honourable Court may permit.
______Bill Jeffery (LSN: 37605S), Executive Director and General Counsel and Solicitor of Record for the proposed intervener CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) Telephone No. (613) 565-2140 All Correspondence by email to [email protected]
PROPOSED INTERVENER CENTRE TO: ATTORNEY GENERAL OF CANADA FOR HEALTH SCIENCE AND LAW (on behalf of the Minister of Health and the Pest (CHSL) Mgmt. Regulatory Agency, Dept. of Justice P.O. BOX 4880, Station E Canada, ON Reg’l Off. Ottawa, ON, K1S 5J1 400-120 Adelaide St. W., Toronto, ON M5H lT1 Bill Jeffery (LSN: 37605S) Per: Andrea Bourke (LSN: 45892K) Executive Director and General Counsel Tel: 647-256-7471; Telephone No. (613) 565-2140 [email protected] All Correspondence by email to Elizabeth Koudys (LSN: 74644Q) [email protected] Tel: 647-256-7530 Counsel for the proposed intervener CHSL [email protected] Counsel for the Respondent AND TO: SAFE FOOD MATTERS INC. AND TO: COUNSEL FOR THE Andrea Gonsalves (LSN: 52532E) INTEVENER ECOJUSTICE STOCKWOODS LLP Barristers Laura Bowman (LSN: 53645K) Toronto-Dominion Centre TD North Tower, [email protected] and Box 140, 77 King St. W, Suite 4130 Ian Miron (LSN: 63445O) Toronto ON M5K lHl [email protected] Tel: 416-593-3497 Fax: 416-593-9345 1910-777 Bay St, Box 106, TO, ON M5G 2C8 [email protected] T: 416-368-7533 (exts. 522 and 540, Counsel for the Appellant respectively)
20 Court File No. A-85-20 FEDERAL COURT OF APPEAL BETWEEN: SAFE FOOD MATTERS INC. Appellant - and - ATTORNEY GENERAL OF CANADA Respondent DRAFT ORDER
UPON MOTION by the proposed intervener Centre for the Centre for Health since and Law (CHSL) for an order pursuant to Rules 109 of the Federal Courts Rules;
CONSIDERING the motion materials filed by the Proposed Intervener, Centre for Health Science and Law (CHSL) [and the consent or submissions of parties as the as the case may be];
THIS COURT ORDERS that:
1. The Proposed Intervener Centre for Health Science and Law (CHSL) is granted leave to intervene in the appeal subject to the terms of this order.
2. The Solicitor’s affidavit of Bill Jeffery, in-house counsel to the Centre for Health Science and Law, is accepted for this Motion.
3. All parties to this appeal shall serve the proposed intervener CHSL with any documents that are required to be served on another party.
4. CHSL will apply to lead fresh evidence only in accord with the Federal Courts Rules and with the leave of the court to particularize important deficiencies in
21 the record, failures of transparency and about the scope of evidence that has been ignored by the PMRA in making its determination that the Appellant Safe Food Matters did not raise a scientifically founded doubt about the validity of the re-evaluation of glyphosate conducted by PMRA.
5. CHSL shall file its Motion for leave to introduce new evidence 15 days after the date of this Order.
6. CHSL may serve and file a memorandum of fact and law up to 30 pages (including submissions on the Charter of Rights and Freedoms issues) within 15 days after them latter of its rulings on whether to grant CHSL leave to intervene, and whether and what new evidence can be admitted for consideration by the appeal panel.
7. Should the hearing of the main appeal proceed orally, CHSL may make oral submissions on the issues addressed in its memorandum of fact and law for a period not to exceed 30 minutes.
8. CHSL will accept service by way of electronic mail to the address [email protected] if such emails are confirmed by an email confirmation receipt.
9. CHSL, a small non-profit public interest litigant, shall not have costs awarded against it, but may make submissions about seeking costs later in the proceedings at its discretion.
22 Court File No. A-85-20
FEDERAL COURT OF APPEAL
SAFE FOOD MATTERS INC. (Appellant)
AND
ATTORNEY GENERAL OF CANADA Respondent
APPLICATION UNDER subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
MOTION RECORD of the CENTRE FOR HEALTH SCIENCE AND LAW (CHSL)
Motion of the Centre for Health Science and Law (CHSL) for leave to intervene (Pursuant to Rule 109)
AFFIDAVIT OF BILL JEFFERY
Affirmed December 14, 2020
I, William Andrew (Bill) Jeffery, of the City of Ottawa, in the Province of Ontario,
AFFIRM THAT:
1. I am the Executive Director and General Counsel of the Centre for Health Science and Law (CHS), a federally incorporated non-profit organization (hereinafter “CHSL”), and solicitor of record in this application. As such, I have personal knowledge of the matters set out herein, except where stated to be based on information and belief, in which cases I believe such information to be true.
2. I have been a member of the Ontario bar since 1996 and am counsel of record in this application and, if this Honourable Court consents, counsel of record in the intervention in the appeal case at bar.
23 3. I am mindful of my professional responsibilities in relation to the practice of submitting an affidavit in a matter in which I am also the solicitor of record, have consulted with the Law Society of Ontario practice management advisory service, and consulted the Rules of Professional Conduct, which state, in part:
5.2-1 A lawyer who appears as advocate shall not testify or submit their own affidavit evidence before the tribunal unless (a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or (b) the matter is purely formal or uncontroverted. Commentary [1] A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the advocate's right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status.
4. Understanding that I also hope to seek leave of the court to adduce new documentary evidence by way of a solicitor’s affidavit, I do not believe that I need to put my credibility in issue except on matters related to when the evidence came to CHSL’s attention. Because I only became aware of the judicial review approximately two weeks before trial, long after the pleadings had been exchanged, I do not believe those precise dates will be contentious based on my understanding of the relevant law.
24 5. Having considered this, I am satisfied that, in describing the suitability of my organization to intervene, I am attesting to uncontroversial matters that are mainly readily ascertainable from the public record and not in dispute.
6. I am further satisfied that my statement on these matters is the best available evidence for the Court of Appeal, that in the unlikely event that another party or intervener wishes to cross-examine me on this affidavit, I will be in a far better position to give informative answers than anyone else involved with CHSL.
7. Furthermore, if I were compelled to find a more suitable affiant, CHSL would almost certainly have to refrain from continuing as an Intervener.
8. The Centre for Health Science and Law (CHSL, hereinafter, CHSL) is a federally incorporated non-profit organization (Federal Incorporation Number 938964-4) based in Ottawa, Ontario since 2015.
-EXHIBIT A-Certificate and Articles of Incorporation for the Centre for Health Science and Law (CHSL), Tab XX
9. CHSL accepts no funding from industry or government beyond trivial amounts for a small number of subscriptions to its magazine and registration fees to attend its biennial conferences from those sources.
10. However, during the COVID-19 pandemic, CHSL accepted some federal government funding that is provided to small and medium-sized Canadian magazines on the basis of circulation numbers. It intends to repay those funds in 2021, revenue permitting.
11. I do not recall being aware of the 2017 PMRA re-evaluation decision on glyphosate at the time that it was published, and could not find any notification of it in my email records.
25 12. I first learned about the Appellant’s application for judicial review two weeks prior to the Federal Court hearing date following a telephone call from the Appellant Safe Food Matters Inc.’s President Mary Lou McDonald, whom I had never met, though our organizations are both members of a large national school food coalition the Coalition for Healthy School Food.
13. I began to familiarize myself with all of the Notices of Objection to the Pest Management Regulatory Agency’s decision and conducted some preliminary scoping research on the human health risks of glyphosate described in the peer reviewed scientific literature and the regulatory context, including the PMRA’s glyphosate Re-evaluation Decision – RVD2017-01.
14. On January 30, 2020 I attended the half-day Federal Court hearing Toronto that was presided over by Justice Simpson.
15. On behalf of the Centre for Health Science and Law, I have subscribed to Health Canada’s CSIMS database, the Consultation and Stakeholder Information Management System, since April 3, 2017 to be notified of Health Canada consultations by email.
16. On September 24, 2020, I performed a keyword search on the CSIMS database which revealed that the only glyphosate consultation notified through that mechanism in recent years was one conducted from April 13, 2015 to June 12, 2015.
17. I infer from that search that no such consultation notice was provided in relation to PMRA’s glyphosate Re-evaluation Decision – RVD2017-01 which was open to Notice of Objections—one of which gave rise to the judicial review that is under consideration in this appeal—and was published by PMRA on April 28, 2017. --EXHIBIT C: Search result for glyphosate in the Consultation and Stakeholder Information Management System
26 18. Since attending the hearing in January 2020, I read the 2018-2019 Report to Parliament by the Pest Management Regulatory Agency which states at page 2 that the Agency employs approximately 328 scientists, which I presume to include persons with master’s and doctorate level training in sciences from accredited academic institutions as well as people with undergraduate degrees or college diplomas in technical subjects. -EXHIBIT B: 2018-2019 Report to Parliament of the Pest Management Regulatory Agency
19. In the same report to Parliament, I learned that the full re-evaluation decision record contains 89,000 pages of data and reports.
20. I also know that the Certified Tribunal Record on glyphosate that is already before this Federal Court of Appeal comprises 1,739 pages of information.
21. Upon reviewing the trial decision declining the Appellant Safe Food Matters’ request for an order for the appointment of an independent expert Review Panel, I conducted further research on the scientific and regulatory context of the approval of glyphosate, and reviewed recent scientific evidence related to glyphosate and death sufficiently to ensure that my efforts to intervene in this appeal would be prudent, worthwhile, and not wasteful of my small NGO’s resources or the Court of Appeal’s time.
22. Accordingly, I began discussions with Ecojustice and Safe Food Matters about the possibility of CHSL intervening in a possible intervention.
23. CHSL seeks leave to intervene in the appeal, with an emphasis on issues that arise related to transparency, bias, and conflict of interest in the application of the “scientifically based approach” to regulatory decision-making about which CHSL has extensive expertise, particularly in relation to food and public health in the Canadian federal context and international standard-setting context (particularly
27 ones that are accorded specific significance in the Pest Control Product Act and the lower court ruling).
24. I believe that CHSL would provide unique assistance to the Court in the resolution and remediation of these issues.
25. I am also concerned that an adverse ruling in the main appeal could put the health of Canadians at risk and set a damaging precedent about the integrity of the transparent, “scientifically based approaches” to government decision- making (which is mandated by statute in this context), meaningful accountability, and the importance of conflict-of-interest safeguards in government decision-making.
NATURE AND EXTENT OF CHSL’S EXPERTISE
26. CHSL is a small national, federally incorporated, non-profit organization founded in October 2015 to help make Canadians more savvy eaters and industry and government more accountable.
27. CHSL has been involved in the study and advocacy for reform of food-related health legislation and regulation since its inception in 2015.
28. Prior to the incorporation of CHSL, I was the Canadian National Coordinator of the U.S.-based Center for Science in the Public Interest (CSPI) from 1997 to March 2016, an NGO with similar mandate to CHSL.
29. During my time with CPSI, I accumulated nearly two decades of public health, food and science-based experience related to the regulation of food and human nutrition, especially related to laws administered by Health Canada, but also international standards and, to some extent, provincial and municipal law and policy.
28 30. CHSL publishes a consumer magazine, Food for Life Report, the main source of its income, that is sold to the general public for approximately $39 for a six-issue subscription. The magazine translates complex food-related science and regulatory issues into relatable news and human-interest articles for a general readership. Food for Life Report does not carry advertisements. --EXHIBIT B: sample PDF of issue of Food for Life Report
31. CHSL obtains a modest amount of additional income from holding biennial conferences which generally run on a revenue-neutral basis, and consulting fees from UNICEF for providing law reform and law enforcement advice concerning food-related public health regulations to governments and intergovernmental organizations in Sub Saharan Africa.
32. Since 2002, I have appeared 17 times as a food law and policy expert witness in legislative committees in the Canadian House of Commons and Senate, and the U.S. Senate. I have also appeared nearly a dozen times before provincial and municipal legislative committees.
33. I was a member of the federal Minister of Health’s external expert advisory Trans Fat Task Force (2004-2006) and Sodium Working Group (2008-2010).
34. In 2018, I was awarded a Sesquicentennial Medal by the Speaker of the Senate of Canada, The Honourable George Furey, QC, on the nomination of Senator and former Mayor of Toronto and federal Minister of International Trade, The Honourable Senator Art Eggleton, PC, in recognition of "improving the living conditions of all Canadians in a significant manner."
35. Since 1998, I have represented four independent international health coalitions at annual standard-setting negotiations at three committees of the Codex Alimentarius Commission, a joint commission of the United Nations World
29 Health Organization and the Food and Agriculture Organization that sets standards for international trade in food that are recognized as authoritative for resolving trade disputes by the World Trade Organization and have important implications for national laws and domestic food marketing.
36. I made oral and written interventions on behalf of three consumer and health organizations—sometimes representing dozens of additional organizations —at seven United Nations General Assembly High-Level Meetings on the prevention and control of non-communicable diseases (six) and universal health care (two), in which cases the interventions emphasized recommendations for conflict of interest safeguards, the importance of disease prevention, and the need to make public policy and law reform decisions on the basis of the totality of the best available evidence.
37. In 2019, CHSL was granted Special Consultative Status with the United Nations Economic and Social Council, one of the six main policy organs of the United Nations to which the World Health Organization and 13 other specialized agencies report and, in that capacity, is participating in the negotiation of an “international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” through a working group of the United Nations Human Rights Council because the success of this committee may help ensure the accountability of food and alcohol companies.
38. I have spent the equivalent of nearly a decade of my career advocating for mandatory nutrition labelling regulations in Canada and internationally, including:
a. Nutrition Facts on prepackaged foods that were mandated by federal regulations promulgated in 2002,
30 b. calorie labelling on restaurant menus that were mandated by provincial regulations promulgated in Ontario in 2016, c. front-of-pack nutrition labelling guidelines that CHSL proposed on behalf of the International Association of Consumer Food Organizations (IACFO) in 2016 and have been under formal consideration and negotiations at the Codex Committee on Food Labelling since 2016, and d. front-of-pack nutrition labelling that are under formal consideration federally in draft, regulations that were published in 2018.
39. If granted leave to intervene, CHSL proposes to file a brief with this Court of Appeal to help situate the Court’s analysis of the appellant’s challenge to the trial court’s judicial review of the PMRA decision in the broader parameters imposed on it by the Pest Control Products Act, regulations, the Charter of Right and Freedoms, and the implications of the Court of approving PMRA’s wholesale rejection of most published scientific research in favour of seller-provided studies, the opaqueness of PMRA’s record.
40. A draft of this brief has been attached to this Application.
41. In the main, CHSL’s federal and public health work involves: a. public health focussed law reform, b. promoting conflict of interest safeguards in law- and policy-making, and c. educating our members and the public using the best available evidence concerning food and health.
However, in the case of glyphosate, our focus is on law enforcement, statutory interpretation, and constitutional interpretation.
42. CHSL has communicated with counsel for the intervener Ecojustice and the Appellant and is satisfied that CHSL’s approach brings a different perspective and will not duplicate their submissions.
31 CHSL's INTEREST IN THIS APPEAL
43. This appeal raises important questions that are central to the mandate and experience of CHSL especially, public health, evidence-based law-making related to food, transparency in regulation-making, and conflict of interest safeguards law-reform and program administration.
CHSL's INITENDED ARGUMENTS ON FAILURES OF TRANSPARENCY, UNCONSISTUTIONAL DELAY, AND BIAS IN THE RE-EVALUATION OF GLYPHOSATE, AND SUMMARILY DISMISSING SAFE FOOD MATTERS OBJECTIONS
44. I confirm that if granted leave to intervene, CHSL proposes to make the arguments generally as set out in the draft memorandum of fact and law filed in support of this motion, other such arguments that are indicated in reply to any responses and will endeavor to ensure that CHSL does not duplicate the arguments of other interveners or parties. 45. These arguments will help the court understand that lower court’s and PMRA’s insistence that the Appellant failed to meet a narrow and strict standard “scientifically founded doubt” needed to trigger the appointment of a Review Panel cannot be squared with the PMRA’s loose and low threshold for the “scientifically based approach” that it contends authorized it to, among other things, ignore or dismiss the vast majority of scientific research published in peer-reviewed journals and rely so heavily on seller-sponsored studies.
46. In summary, CHSL will argue that the PMRA made important failures of transparency that were inherently problematic and also masked further unlawful failures of justification and intelligibility in administrative decision-making. For instance, Re-evaluation Decision – RVD2017-01, Glyphosate failed to report and the Respondent failed to admit on the record in the spirit of candour and through
32 proactive disclosure prior to, during or following the judicial review in the lower court:
A) The amount of glyphosate sold in Canada per year—despite the Minister’s statutory duty to collect this information and its promise in the Canada Gazette to report this non-financial information to the public annually—and to characterize those amounts in relation to other comparable jurisdictions, such as the European Union and United States despite the obvious and statute-stipulated relevance of their laws; B) The source of information of PMRA’s claims (which the Federal Court accepted) that no OECD country had banned the use of glyphosate by the time of the 2017 decision and failure to acknowledge major, foreseeable changes to the regulatory status of glyphosate in the European Union 2015-2017; C) How many published, peer-reviewed journal articles about glyphosate were published since glyphosate’s previous evaluation by the federal governing in 1976 and how many were ignored or accorded little weight by PMRA, which would have helped particularize the extent of PMRA’s stated bias in favour of seller-provided studies; D) The extremely low extent to which registrants report unfavourable published studies to the PMRA pursuant to their statutory duty; E) The size of the re-evaluation dossier upon which the Re-evaluation decision was based, including in relation to the typical new pesticide application package; F) The terms under which members of the public are able to see the complete re-evaluation dossier for glyphosate; G) The measures, if any, taken to address the risk of bias or conflicts of interest in evaluating seller-sponsored studies; H) How pesticide label-use failures are addressed by enforcement actions under the Pest Control Products Act;
33 I) The extent to which Canadian and U.S. class actions and many more American lawsuits that are more procedurally advanced than in Canada have alleged harm caused by glyphosate, especially in related to Non- Hodgkin’s Lymphoma; J) Why decades-old U.S. food consumption data was used instead of contemporary Canadian food consumption data to estimate the exposure of Canadians to glyphosate pesticide residues; and K) That the PMRA re-evaluation of glyphosate was initiated a decade after a statute-mandated deadline or, at best, completed with all the procedural failures described herein: • 12 years after a statute-imposed deadline to begin the evaluation, • 15 years after the law entrenching the 2005 commencement deadline received Royal Assent, and • 39 years after its first and only prior safety approval which, though not mandated by statute, it may have had a duty of care to verify earlier.
47. This may be the first occasion that the Federal Court has been asked to examine the Agency’s statutory remit.
CHSL's Unique Perspective
48. CHSL will provide the Court with a unique perspective and particular expertise on the issues raised in this appeal because CHSL:
a) is rare in Canada as a science-based public health organization that accepts no funding from the three levels of government or industry, and routinely applies legal analysis to its public education and food law- reform work;
34 b) has particular expertise and experience concerning the application of scientific principles, and scientific research findings to law reform and the administration of law in relation to human health and food; and c) CHSL is unique among the known applicants for intervener status in having a focus and expertise on human health, international standard- setting, food, and conflict of interest issues that are at the heart of the dispute.
49. As an organization that actively participates in law reform to ensure that the Canadian law provides optimum public health protection, CHSL represents the public interest in ensuring that existing law gives the full protection that Parliament intended, and has an interest in this appeal and the Charter issues it raises for reasons of public importance.
50. To best assist the court is fulfilling its constitutionally authorized curial oversight role, CHSL would be greatly assisted by supplementing the record with approximately 100 pages of excerpts and reports from PMRA publications (including cover pages) and notices as well as published scientific studies to particularize the relevant lapses in transparency that are outside the four corners of the tribunal reasons. Looking beyond the decision-maker’s reasons is, in my view, recognized as a valid approach by the (more deferential) concurring minority decision of the Supreme Court of Canada in Vavilov in December 2019 and is a sensible and important prerequisite for resolving a dispute where so many failures of transparency are evident. Failure to admit fresh evidence in these circumstances could reward administrative decision-makers for flying under the radar.
Proposed Terms for Intervention
51. I do not believe that an intervention by CHSL will cause prejudice to other parties, especially in light of the terms upon which CHSL proposes to participate. In particular, the respondent is represented by the Attorney General of Canada
35 which must be presumed to have broad expertise in the law and represents the Pest Management Regulatory Agency of Health Canada which claims to have unrivalled Canadian expertise in the relevant science.
52. I confirm that CHSL seeks leave to intervene on the following terms:
(a) CHSL will rely on the evidence adduced by the parties and on the documents referred to in the lower court decision. (b) CHSL will seek leave to introduce documents into evidence to help cure the defects of transparency in the tribunal decision Re-evaluation Decision – RVD2017-01 and the ruling of the court below which will reveal a consistent and relevant pattern of the PMRA summarily dismissing and ignoring contrary views in a manner of which its response to the Appellant’s Objection to is merely one example. This approach begs the appointment of an independent expert Review Panel. (c) CHSL will be served with all materials of the parties and other interveners. (d) CHSL consents to service by email and, to this effect, has included a Notice of Consent to Electronic Service, Form 141A pursuant to Rule 141. (e) CHSL will file and serve its memorandum of fact and law of no more than 20 pages (pus 10 pages of submission on the Charter of Rights and Freedoms issues, if applicable) within 21 days of the filing of the Respondents' memorandum of fact and law. (f) CHSL will be consulted on dates for the hearing of the appeal. (g) CHSL will have the right to make oral submissions before the Court; and (h) CHSL If granted leave to intervene, CHSL will reserve its decision to seek costs until the end of oral arguments on the main appeal or such earlier occasion and consider the approach and answers provided by the Respondent Attorney General. -Bill Jeffery Affidavit in support of the Motion to Intervene
36 53. CHSL has taken steps to move forward in a timely manner by bringing this motion before Appeal Books are filed despite the challenges to understand the reasons for the decision given the numerous lapses in transparency.
54. I provide this affidavit in support of this motion for leave to intervene, and for no improper purpose.
I SOLEMNY AFFIRM that this Affidavit in support of CHSL's motion for leave to intervene, to file written submissions, and to present oral argument in Safe Food Matters Inc. v. Attorney General of Canada and for no other purpose.
AFFIRMED REMOTELY** by
- Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, SwornOntario.(orAffirmedorDeclared)remotelybyBillJeffrey statedasbeinglocatedinattheCityofOttawa,ONbeforeme attheTownshipofTinyintheCountyofSimcoe,ON onDecember14th,2020,inaccordancewithO.Reg431/20, AdministeringOathorDeclarationRemotely.
______- Affirmed Before me in Ottawa via electronic video conference while the Affiant was located in the City of Ottawa in the in the Regional Municipality of Ottawa- Carleton, in the Province of Ontario on December 14, 2020, in accordance with O. Reg. 431/20.
) ) ) ______) Bill Jeffery Commissioner for Taking Affidavits ) )
______AFFIRMED BEFORE ME at
MonikaMarieKlingler OntarioParalegal,NotaryPublic&CommissionerofOaths LawSocietyofOntarioLicensee#P16018
ExecutedinaccordancewithO.Reg431/20,AdministeringOathor
DeclarationRemotelysecurelyonlineviavideoonDecember12th,2020.
Thisvideoconferencewasnecessarybecauseitwasimpossible,orunsafe, formedicalreasonstomeetduetoCOVID-19 PleasecontactNotaryProCanadaforanyquestionsaboutthisdocumentat 37 1-888-313-0909 Safe Food Matters Inc. v. Attorney General of Canada Court File No. A-85-20
FEDERAL COURT OF APPEAL
AFFIDAVIT OF BILL JEFFERY affirmed December 14, 2020
CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) PROPOSED INTERVENER CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) P.O. BOX 4880, Station E Ottawa, ON, K1S 5J1 Bill Jeffery (LSN: 37605S) Executive Director and General Counsel Telephone No. (613) 565-2140 All Correspondence by email to [email protected] Counsel for the proposed intervener Centre for Health Science and Law (CHSL) Court File No. A-85-20
38 TAB 3A, Exhibit B Certificate of incorporation of the Centre for Health Science and Law (CHSL)
This is Exhibit "B" referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this 14th day of December 2020
Sworn/AffirmedelectronicallybeforemeonDecember14,2020 inaccordancewithO.Reg431/20,AdministeringOathorDeclarationRemotely.
------Commissioner for Taking Affidavits
MonikaM.KlinglerLSO #P16018LicensedParalegal&NotaryPublic inandfortheProvinceofOntario. Mycommissionisofunlimitedduration. Nolegaladvicegiven.
39 Certificate of Incorporation Certificat de constitution Canada Not-for-profit Corporations Act Loi canadienne sur les organisations à but non lucratif
CENTRE FOR HEALTH SCIENCE AND LAW (CHSL)
Corporate name / Dénomination de l'organisation
938964-4 Corporation number / Numéro de l'organisation
I HEREBY CERTIFY that the above-named JE CERTIFIE que l'organisation susmentionnée, corporation, the articles of incorporation of which dont les statuts constitutifs sont joints, est are attached, is incorporated under the Canada constituée en vertu de la Loi canadienne sur les Not-for-profit Corporations Act. organisations à but non lucratif.
Virginie Ethier Director / Directeur 2015-11-13 Date of Incorporation (YYYY-MM-DD) Date de constitution (AAAA-MM-JJ)
40 TAB 3B Exhibit B to the Affidavit of Bill Jeffery: Sample PDF of CHSL 's magazine, Food for Life Report, Issue 4, 2019
This is Exhibit B referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this 14th day of December 2020
Sworn/AffirmedelectronicallybeforemeonDecember14,2020 inaccordancewithO.Reg431/20,AdministeringOathorDeclarationRemotely.
------Commissioner for Taking Affidavits
MonikaM.KlinglerLSO #P16018LicensedParalegal&NotaryPublic inandfortheProvinceofOntario. Mycommissionisofunlimitedduration. Nolegaladvicegiven.
41 FEEDING THE FUTURE, SUMMER SCHOOL ISSUE
42 Dear subscriber, August 2019
As I write, we are sending to print the final issue in the first publication cycle of Food for Life Report.
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PO Box 4880, Station E, Ottawa,43 ON K1S 5J1 CANADA FEEDING THE FUTURE, SUMMER SCHOOL ISSUE
ISSUE No. 6-2019 $8.00 SINGLE ISSUE PRICE
IN THIS ISSUE:
EDITORIAL: THE KIDS AREN’T ALRIGHT OR AMUSED (CHILD IMPACT ASSESSMENTS), p. 2 ZEROING IN ON WHOLE GRAINS, p. 4 SERVING ALCOHOL MARKETING TO MINORS p. 10 COULD A SCHOOL FOOD PROGRAM FEED ROSIE THE RIVETER’S SLOW CANADIAN COMEBACK? p. 12 COOKING FOR KIDS, BIG-FOOD STYLE, p. 14 EATING THE PLANET, p. 18 FOOD BY NUMB3RS, p. 21 SCHOOL FOOD NUTRITION UNDER THE MICROSCOPE, p. 22 UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD, p. 24 NOT QUITE DOWN THE HATCH: CHOKING ON FOOD, p. 26 FAST FOOD FACE-OFF, back cover
44 PUBLICATION MAIL 4324-3513 PUBLICATION Issue #6 THE KIDS AREN’T ALRIGHT OR AMUSED: It’s time for Child Impact Assessments of government policies
decisions. This means that, at any given time, there are seven million electorally disenfranchised citizens and nine mil- lion politically under-powered parents who have a higher than average vested interest in the more distant future. That is nearly half of Canadians, hamstrung. EXPERT ADVISORY BOARD Taking care of children is job one. A Mary L’Abbé, PhD nurturing environment in childhood If the electoral power of children and University of Toronto helps create healthy, engaged, product- parents matched their numbers, gov- Kevin Banks, SJD, LLB, BA ive, confident, resilient, ambitious, car- ernments might have already nipped Centre for Law in the Contemporary Workplace ing, independent (and cooperative), climate change in the bud. And, we Queen’s University curious, happy adults. Important stuff. mightn’t have seen the kowtowing to Jennifer Black, PhD, MS, RD industry and procedural tomfoolery University of British Columbia Some laws, social norms, and profes- that so egregiously watered down then Norm Campbell, CM, MD, FRCPC sional codes of conduct promote good (probably) killed retired Senator Nancy University of Calgary parenting and nurturing schools. Greene Raine’s proposal to ban junk Charlene Elliott, PhD food advertising to young chil- University of Calgary But, not enough rules dren. With more kids pulling Amandine Garde, PhD prevent food and other strings, Canada might not be University of Liverpool Law School companies from exploiting one of the last countries on United Kingdom the vulnerability of children. the planet to have a national Sara F. L. Kirk, PhD Some big companies get rich school meal program. The Dalhousie University by pandering to the taste buds tyranny of the minority pre- Catherine L. Mah, MD, PhD of children, conscripting chil- vails too often. Dalhousie University dren to pester their parents Kid-friendly nutri- tion laws and policies Mary McKenna, PhD to buy, and capitalizing on require more than wishful Politicians and other adults University of New Brunswick the emotional vulnerabil- thinking to germinate. (including ones without ities of parents, so many of whom children under 18) have moral duties Andrew Pipe, CM, MD University of Ottawa Heart Institute need to work outside the home to pay and hard-to-see self-interest in pro- the bills and parent without extended tecting kids from the appetites of the Kim Raine, PhD, RD University of Alberta family nearby to help out. Parents and food-and-drug industrial complex. teachers will always be the last lines of Poor diet in childhood promote life-long Mike Rayner, BA, DPhil defence, but shouldn’t be the only ones. health-eroding habits and pharmaceut- University of Oxford, United Kingdom ical drugs help make nutrition-related Big Food lobbies government bureau- diseases manageable later in life. It’s SUBSCRIPTIONS crats and elected officials on these vicious symbiosis. Subscribe to Food for Life Report for one year issues far more than (human) voters do. (6 issues) for $39 (plus shipping) online at: Senior bureaucrats at Health Canada For years, UNICEF has been urging www.FoodForLifeReport.ca and elected officials with responsibil- governments to implement child-rights Subscribe by mail for $45 (including ship- ities for food, health, industry, and impact assessments before spending ping and handling) by writing to: finance tend to be overwhelmed by food money and changing policies, much like FOOD FOR LIFE REPORT industry lobbyists so much that they the feds already routinely do to check CENTRE FOR HEALTH SCIENCE AND LAW even occasionally lament the failure of for business, environmental , and (now) PO BOX 4880 STATION E (mostly cash-strapped) public interest gender impacts. If not now, then when? OTTAWA ON K1S 5J1 groups to lobby enough even, ironically, The future depends on it. Your mailing label displays the expiry date as the Canada Revenue agency (still) of your subscription. tells charities to refrain. Bill Jeffery, BA, LLB, Editor Return undeliverable mail to this address. For bulk subscriptions or volume electronic sub- scriptions for professional counselling settings Kids can’t vote and their parents can’t or workplace wellness programs, please contact: cast extra votes on their behalf. Parents [email protected] have less time than most to press their Publication Mail Agreement No. 4324-3513 case with law-makers or protest bad Library of Canada ISSN: 2371-5995 45 2 Food for Life Report CONTRIBUTORS TO THIS ISSUE
The Centre for Health Science and Law acknowledges Canada Post and the printing services of TriCo Evolution Group.
L a u r e n c e Bill Jeffery, BA, Natalee Rubec, Blanchard, RD, LLB is a food and BSc is a graduate of MPH is a Montreal public health law- Carleton University’s native and lecturer yer, Editor of Food Graduate Diploma at the University of for Life Report, and in Health Science, Hertfordshire in the Executive Director Technology and United Kingdom. of the Centre for Policy. She was a Health Science and project manager at Law. the Centre for Science in the Public Interest, 2008–2016.
Dr. Catherine Chau Yo, BSc Natalie Walsh, Paradis is a Senior (Nutrition & Food MSc, RD is a Research & Policy Science) is a Master Registered Dietitian Analyst at the of Public Health stu- in private practice in Canadian Centre on dent at the University Toronto. She holds Substance Use and of Victoria. an MSc in Physiology Addiction. from the University of Toronto. We would also like to acknowledge: • NL Auditor General Julia Mullaney whose data collection exposed weakness in school nutrition standards, • the Eat Lancet Commission for helping to reveal and quantify food’s contribution to climate change, • Athena Gervais whose tragic death compelled us to think about alcohol marketing practices of governments and companies, • Dave Dahl for striving to make nutritious bread and disclosing amounts of whole grains when most companies don’t, and • U.S. Professor Jennifer Geist Rutledge for trying to understand why Canada doesn’t have a national school food program.
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46 Food for Life Report 3 Issue #6 Zeroing-in on whole grains (and seeds) A key take-home message from Food for Sugar and salt level calculated by the Global Burden of Life Report issue #4 (the Bread & Butter Disease project. We computed the role Issue) is that a path to better health likely The Global Burden of Disease database of detrimental nutrients/ingredients should include finding a more nutritious estimates the adverse health impact of (like sodium) as the number of deaths tasty whole grain bread (if you eat bread). sugary carbonated beverages, but not now caused by suboptimal intake if sugar in solid foods like bread. We we all ate two slices daily (near Health Refined-grain bread is usually white. assumed that all other added sugars Canada’s 75-g “reference amount”). But, don’t be tricked by the brown-col- (59.5 grams in the average diet, accord- oured bread also made with refined ing to Statistics Canada) cause the same Amounts of whole grains, sodium, and grains, or by claims that bread is “multi- damage as sugar in beverages. This seeds matter a whole lot to healthful- grain” or “made with [some] whole could be over-cautious. Researchers ness of bread. But, no labels volun- grains.” Nutrition Facts labels and believe that sugar consumed in bever- teered the amounts of seeds, only five Health Canada’s proposed warnings for ages is perceived by the body as water volunteered amounts of whole grains, foods that are high in sodium, saturated and does not inhibit calorie-seeking and only nine provided the grams of fat, and sugar won’t help much either. behaviour like solid food does, thus whole grains when we asked repeat- contributing more to obesity. But, edly. We estimated levels, if needed. because the amount of sugar added to Usually, amounts of sugar, polyunsatur- Fibre is an unreliable bread is usually low, even this high-end ated fat, saturated fat, and calcium were measure of bread nutrition. estimate of harm is much smaller than too small to matter much, nutritionally. the negative impact of sodium in bread. The Overall Nutrition Score tallies Amounts of fibre reported on labels can (Health Canada says bread is a major contributor of sodium.) the contributions of key nutrients and help shoppers avoid products with under ingredients divided by 100 to make a 4 grams per 75 grams of bread (about two more intuitive score ranging from 14-57. slices). But, high food-label numbers for Dave’s Killer Bread 21 Whole Grains fibre can mislead in three ways. Our survey and Seeds Organic Loaf took top spot. Three Food for Life freezer breads (no 1. The label Daily Value might For decades, Saskatchewan has been be too low. Health Canada says that relation to this magazine), scored in the known as “breadbasket to the world” top 10, but its Cinnamon Raisin came in men need 38 grams of fibre per day, and for growing so much wheat. So, we women need only 25. But, the DV for dead last. Generally, the baker’s name reviewed 197 breads for sale at a is a weak predictor of nutrition. fibre used on Nutrition Facts labels is Saskatoon Real Canadian Superstore, only 25 grams. By selecting the lower part of a 2,000-store chain of grocers We highlighted in green the breads that target, Health Canada ensures that fibre owned by Canada’s largest food com- deliver a meal’s worth of whole grains %DV numbers are systematically over- pany, Weston Foods. Weston also in two slices: 42+ grams or one-third stated for men, potentially increasing owns Loblaws, No Frills and other of the 125-g optimum estimated by the their risk of colorectal cancer. retailers that operate in nearly every Global Burden of Disease. 2. Fake fibre: According to the Harvard Canadian city and town, and a slew of bread bakery brands, including A bowl of unsweetened oatmeal scored School of Public Health, some food com- a top-10 45, helped by low sodium. The panies pump-up fibre numbers with Wonder, D’Italiano, Country Harvest, President’s Choice, and ACE. vast majority of refined-flour breads highly processed fibres like inulin and would have negative scores. cellulose that lack the nutritional benefits (phytochemicals, minerals, vitamins) of Bottom line: Health Canada should intact fibre found in whole grains, fruits, Our findings on whole develop a mandatory front-of-pack vegetables, legumes, and nuts. Health grains, sodium, and seeds nutrition rating system that integrates Canada and the 6,000 inspectors at the all of this information and persist Canadian Food Inspection Agency look Only 26 of 197 breads sold are 100% with its, much-ignored, 2010 Sodium the other way. whole grain. Eyeballing ingredient lists Reduction Strategy for Canada. showed how unreliable colour and label 3. Serving size skulduggery: Health claims are to ID whole grain breads. In 2018, Health Canada proposed Canada set a 75-gram standard serving requiring high-sodium warning labels for bread to steer companies toward We computed the contribution of each on applicable foods. But its approach comparable Nutrition Facts statements, beneficial ingredient/nutrient (like would require flags on just three of but the new rules don’t become binding whole grains) as the share of deaths that the 26 whole grain breads we sur- until 2022. In the meantime, companies would be avoided in Canada if every- veyed, even though 21 contain more still base Nutrition Facts on one slice, one consumed a serving of the bread than the target the baking industry two slices, or half an English muffin. daily as a part of the optimum intake agreed to in 2012. 47 4 Food for Life Report Brand Name qualifies for RED
of Bread meets reduction target)
GREEN
Overall(based on two Nutrition slices and low estimates Score of ingredients) Stated servingPrice Size (g) per twoWhole slicesshown Grains or equiv. in per bold; Sodiumstated(¢) estimates serving contributionSodium shown (g,health labelled(mg) in per shadowed warning,perEst. stated amounts stated health serving boxes) Lowserving impact estimate ( of seeds of Nuts/Seeds (g) Deaths attributable to sub-optimal consumption 11,735 -12,191 9711 Optimum consumption range (according to the Global Burden of Disease project) 100-150 <3,400 16-25 Target intake of beneficial nutrients or current intake of armfulh nutrients 125.0 2,800 21 Dave's Killer Bread 21 WGs and Seeds Organic Loaf 57 45 65 21 -784 180 1421 3 Silver Hills Squirrelly 53 40 44 22 -784 180 474 1 Food for Life Organic Ezekiel 4:9 Flax Sprouted WG 34 80 12 -305 70 947 2 Food 53 Dimpflmeier 100% Rye Bread with Flaxseeds 53 51 107 25 -958 220 474 1
Country Harvest Ancient Grains for 49 40 44 23 -522 120 474 1
48 Country Harvest 14 Grains Bread 40 44 -588 135 474 1 Life 48 23 Food for Life Sprouted WG English Muffins (nutrients per 1/2 muffin; score per whole) 47 38 117 22 -348 80
Report For comparison: a bowl of unsweetened oatmeal (40 grams dry, one cup prepared) 45 39 46 39 -4 1 Silver Hills Sprouted Organic Ancient Grains Big Red's 44 34 53 17 -588 135 474 1 Food for Life Ezekiel 4:9 100% Sprouted WG Loaf 41 34 80 19 -327 75 Dimpflmeier Spelt Bread with Wild Rice 38 46 97 23 -914 210 Country Harvest Grains and Fibre with Chia 38 38 43 15 -501 115 Oroweat Multigrain Bread 35 38 61 16 -610 140 474 1 Ace Bakery Bread Organic Granary Loaf (label reports per 2 ices)sl 33 70 74 35 -871 200 474 1 PC Ancient Grains Multigrain (label reports per 2 slices) 31 60 50 30 -958 220 474 1 Weston Texas Toast Bread 100% Whole Wheat (label reports per 2 slices) 28 82 29 41 -1437 330 Wasa Crisp Multigrain (score and price based on 30 gram serving of dried bread) 27 30 32 25 -653 150 Dave's Killer Thin-Sliced 21 WGs and Seeds Organic Loaf 26 28 48 12 -435 100 474 1 Deli World Sandwich Bread 100% Whole Wheat 26 67 28 33 -1132 260 PC Blue Menu Tortillas WG Whole Wheat (label and score based on one tortilla) 26 65 105 34 -1567 360 Silver Hills Little Big Bread (label reports per 2 slices) 25 43 40 26 -784 180 Weston Wonder Bread 100% Whole Wheat Plus Fibre (label reports per 2 slices) 23 63 22 32 -1088 250 Weston 100% Whole Wheat Wonder Bread (label reports per 2 slices) 23 63 22 32 -1088 250 Casa Mendosa 10" Large Whole Wheat (label and score based onne o tortilla) 21 64 55 32 -1611 370 PC Blue Menu 100% Whole Wheat Loaf 17 21 37 10 -327 75 Weston Wonder Sandwich Whole Wheat Thin 100% 16 27 19 13 -479 110 Food for Life Ezekiel 4:9 100% Sprouted WG Loaf Cinnamon Raisin 5 14 34 80 15 -327 75 Issue #6 Dave’s Killer Bread
Embrace ironic names for food. If you According to Wikipedia, Dave himself have a life-wish, Dave’s Killer Bread 21 has struggled with mental health, addic- Whole Grains and Seeds Organic Loaf tion, and the law for much of his adult is for you. life and has been incarcerated for a total of 15 years, and counting. His bread is so much more nutritious (and life sav- The baker, Dave’s Killer Bread, has the ing) than most of the alternatives, you decency to report the number of grams might wonder who the real villain is. of whole grains, not just the amounts of fibre, sodium, and a dozen—in this Bread-making machines costing $80- case, mostly irrelevant—nutrients that Since Dave’s Killer Bread was launched $200 could help cut costs of bread. Health Canada requires to be disclosed at the Portland, Oregon farmer’s market on labels. in 2005, it has grown enough to hire more than 300 employees. This is still Bake-It-Yourself-Bread a tiny outfit compared to the Mexican- According to the Global Burden of owned “Canada Bread” (with 14,000 Bread-making machines de-skill the bak- Disease, if Canadians met the daily tar- employees in 17 Canadian bakeries) ing process a bit (no need for kneading, get intake of 100-150 grams of whole and Weston Foods Limited (Canada’s finessing the rising process, clean-up, grains per day (e.g., from some breads, biggest food company, with nearly $46 etc.), but make baking lightning fast. breakfast cereals, whole grain rice and billion in annual revenue and 140,000 Active prep time is less than 10 minutes. pasta, etc) it would prevent 11,735 employees, some of which bake bread The actual baking time is 2-4 hours deaths per year. sold under the brand names Wonder, depending on density preferences. And D’Italiano, Country Harvest, and ACE). there is no substitute for a house filled Despite the widely recognized ben- with the aroma of homemade bread. efits of whole grains, labels don’t tell But, if buying from a relatively small us about how much is in a product. If business is important to you, consider Finding (and adapting) one or more tightened up, recently proposed regula- that Weston is now the exclusive distrib- whole grain recipes that the family likes tory changes may require some quan- utor of Dave’s Killer Breads in Canada gives the baker (you) far more control titative declarations...by 2026. (For through its 2,000 grocery stores. over the amounts of whole grains, salt, years, the “policy” of the Canadian Food and seeds than choosing store options. Inspection Agency has been that any emphasis on the presence of ingredi- If for you, big is not beautiful, suss out ents triggers a duty to report the actual your local bakery or farmer’s market. Canadian Tire, Home Hardware, and amount of that ingredient. The trouble Some might need persuading to make Amazon sell bread machines for as lit- is that companies rarely do it and, if a great whole grain bread. tle as $80, a modest price considering the CFIA makes a fuss, companies feel how much can be saved by home-baking. confident ignoring the regulator.) The cost of flour and small amounts of oil, yeast, and other ingredients make it possible to bake a one-kilo loaf for The company (recently purchased less than $1.50 (double the weight of a by Oregon-based Flowers Foods) was typical store-bought loaf), especially if founded by baker Dave Dahl. It is a the flour is purchased in 10-kg or big- remarkable social enterprise with a mis- ger bags. That’s about one-fifth of the sion to pay decent wages to employees typical price per 100 grams of a regu- with criminal records, a Second Chance lar loaf of bread. (If price conscious, Employer. Criminal conviction is often beware specialty flour which can cost a major life-long barrier to employment as much as 10-fold more than regular in the United States where governments whole wheat flour.) incarcerate their citizens at six times the rate of Canada and more than any other country in the world. (Though data are Getting a proper serrated bread-cutting not as reliable for North Korea, Russia, Dave’s Killer Bread is almost alone knife for as little as $6 will help with the and China.) in revealing how much whole grains slicing. Buying a bread-making machine it contains. makes sense anyway you slice it. 49 6 Food for Life Report Centre for Health Science and Law Early 2019 Highlights
Jan The "Snapshot" of the forthcoming 2019 update to to Canada's Food Guide was released. CHSL attended the Health Minister's news conference in Montreal, announced its preliminary response to an embargoed draft of the Snapshot, and held the presses on issue #5 of Food for Life Report to include a more quantitative bench-marking of the Snapshot's advice. Most other responses from industry reflected commercial interests and many health groups offered only gushing praise.
Mar The respected medical journal The Lancet begins publishing its "Eat Lancet" series of research reports to reveal the impact of human diets on the environmental health of the planet, including projections of the capacity of the planet's natural environment to sustain the appetite of a human population that is expected to double in the coming four decades. CHSL provided technical assistance for UNICEF's important work in Southern Africa to help protect, support, and promote infant nutrition. The Federal Budget was published announcing plans of the Minister of Finance and cabinet colleagues to begin negotiating the development of a national school food program. The 72-group Coalition for Healthy School Food received more than usual invitations to join the budget lock-up this time. Some of us have been calling for this for 15 years, following false starts by our forebearers in the 1940s and 1990s. Food for Life report dedicated issue #6 to child nutrition.
CHSL participated in the NGO Interactive Session in New York in preparation for the United April Nations' first ever High-Level Meeting on Universal Health Coverage with heads of state in September with messages about the importance of prevention and safeguards against undue influence of the food, alcohol, and pharmaceutical industries. This is only the fourth such series of High-Level Meetings dedicated to a health issue since the UN's founding after World War II. We played a key advocacy role in the series on the prevention and control of non-communicable diseases since 2011.
CHSL participated in Health Canada's Health Protection and Food Branch's "Nutrition Stakeholder" May consultation in Ottawa, notable for the heavy dominance of industry lobbyists in the agenda, speakers, and audience. We sent a technical brief to follow-up comments that we made during the all-day meeting.
CHSL joined a panel of university professors and public health dietitians in an exploratory study on food literacy by the Standing Senate Committee on Agriculture and Forestry. Bill Jeffery submitted a technical brief, gave an oral statement and answered questions from Senators. The hearing was designed to help the Committee decide whether to conduct a full study and report after the 2019 election. Senate study reports sometimes have major influences on government policies.
CHSL represented the UK-based World Obesity Federation and co-wrote a joint statement with Mexican consumer group El Poder del Consumidor to urge the United Nations Codex Committee on Food Labelling to adopt strong guidance to national government to enact effect regulations requiring front-of-pack nutrition labelling. In recent years governments—especially the U.S.A., the European Union and Canada (prior to the 2015 election)—tried to pressure some countries to abandon nutrient warning systems. The joint-statement was supported by Consumers International, the World Obesity Federation, the World Federation of Public Health Associations, the World Public Health Nutrition Association, and the International Baby Food Action Network.
50 Food for Life Report 7 Issue #6 The Canadian alcopop tragedy should tr sions of federal alcohol r Catherine Paradis PhD, Senior Research and Policy Analyst,1 Nicole April MD, MPH, FRCPC,2 Medical Consultant, Claude Cyr M 1 Canadian Centre on Substance Use and Addiction, Ottawa, 2 Institut National de Santé Publique du Québec, 3 Pediatrician Centre Hospitalier Universitaire de Sherbrooke, 4 Vice-Présidence aux Affaires Scientifiques Institut National de Santé Publique du Québec, and 5 Department of Information and Communication, Université Laval.
comprehensive response to the report. Abstract-Summary On 28 March 2018, Health Canada The Canadian alcopop tragedy issued a ‘Notice of intent to amend should trigger evidence informed re- the Food and Drug Regulations to re- visions of federal alcohol regulations. strict the amount of alcohol in single Drug Alcohol Rev 2019;38:198–200. serve highly sweetened alcoholic bev- Key words: Canada, government regu- erages to reduce the health and safety lation, alcoholic intoxication, alcohol- risks of these products [2]. [Editor’s ic beverages. On 1 March 2018, in the note: Regulations prohibiting certain Canadian town of Laval, a 14-year- flavoured alcoholic beverages were Athena Gervais, the 14-year-old Laval, old girl was found lifeless in a stream finalized in May; see pp. 10-11.] The Quebec girl, died in 2018 from alcohol-in- toxication related injuries or drowning. behind her high school, after having notice announced that Health Canada consumed FCKDUP—a beverage con- was consulting on the mechanism by taining 11.9% alcohol, guarana (a nat- which to restrict the amount of alco- The sugary alcoholic bever- ural stimulant that contains caffeine), hol in a single-serve container and on ages, FCKDUP were volun- tarily pulled from the market a large amount of sugar and sold in the sweetness threshold that would after the death was reported 568 mL cans for approximately $3.33 trigger the restrictions. It further an- in the media. Narrow regu- CAD—during her lunch hour. Sadly, nounced it would convene a meeting lations implemented by the with provincial and territorial repre- Quebec and federal govern- the death occurred in the midst of a ments to limit large servings series of media and scientific reports sentatives and key stakeholders on 8 of certain single-serving, all pointing to the danger of highly June 2018, to discuss collective meas- alcohol-dense products were sweetened alcoholic beverages, other- ures for reducing the risks of alco- passed in the ensuring year. wise referred to as ‘alcopops’. Follow- pops. Consultations gave experts the ing the young girl’s death, the Can- opportunity to highlight a worrying adian government took actions at the trend toward an increasing number of container, that is, 13.6 g of pure alco- ministerial and parliamentary levels. young Canadians being hospitalised hol, introducing labelling requirements for acute alcohol poisoning. The In- and rotating warning labels for alcohol- This article was originally published stitut national de santé publique du (without the photos) in Drug and Alcohol ic beverages and addressing taxation Québec shared a report showing that and pricing incentives with a priority Review, a peer-reviewed scientific journal the rate of acute alcohol poisoning in published by the Australasian Profession- on setting a minimum price for all alco- the province of Quebec was 365 cases al Society on Alcohol and other Drugs holic beverages, adjusted according to (APSAD). The journal is a member of the per 100 000 among people at ages 18– alcohol content [6,7]. Communication International Society of Addiction Journal 19 years [3]. Others noted that 55% experts detailed the extent to which al- Editors. The article is available online of undergraduate students report copop companies use social media strat- at: https://onlinelibrary.wiley.com/doi/ harm when they drink alcohol [4]. In egies that appeal specifically to young epdf/10.1111/dar.12896 one Canadian campus town, at least people and argued that it is necessary On 19 March 2018, the House of three youths were taken to the local to place new restrictions on the market- Commons Standing Committee on hospital emergency department every ing of these products [3]. Overall, the Health (HESA) adopted a motion to week for an alcohol-related medic- experts put forward the World Health undertake an urgent study ‘to develop al emergency and among that group Organization’s ‘best-buys’ for reducing recommendations on actions that the 25% of them had their lives in danger the harmful use of alcohol [8]. At the federal government could take, in part- upon arrival [5]. same time that Health Canada was col- nership with the provinces and ter- Throughout consultations at both lecting evidence to make recommenda- ritories, to better regulate pre-mixed the ministerial and parliamentary tions about the Food and Drug Act, the drinks combining high alcohol, caf- levels, experts identified ways of re- alcohol industry was actively lobbying feine and sugar content’ [1]. HESA ducing the health and safety risks the government. Public records from announced it would report its findings posed by alcoholic beverages in gener- the Office of the Commissioner of Lob- and recommendations to the House no al and alcopops in particular. Experts bying show that between 11 April and later than June 2018, and that it would recommended limiting alcopops to 26 September 2018, registered lobbyists request that the government table a one standard serving of alcohol per working on behalf of the Geloso Group, 51 8 Food for Life Report should trigger evidence-informed revi- al alcohol regulations r MD, MSc, FRCPC, Pediatrician,3 Réal Morin MD, MBA, FRCPC, Medical Consultant,4 Manon Niquette PhD, Professor5, 1 Canadian Centre on Substance Use and Addiction, Ottawa, 2 Institut National de Santé Publique du Québec, 3 Pediatrician Centre Hospitalier Universitaire de Sherbrooke, 4 Vice-Présidence aux Affaires Scientifiques Institut National de Santé Publique du Québec, and 5 Department of Information and Communication, Université Laval.
maker of FCKDUP, communicated ada uses the work surrounding the 5 Paradis, C, Cyr, L‐O, Cyr, C. Alcohol‐related emergency department visits among adolescents 18 times with 60 government repre- alcopop tragedy as an opportunity to and young adults in Sherbrooke, Canada. Can J sentatives, including the Minister of make significant amendments and re- Addict 2018; 9: 25– 31. Health, the Minister of Finance, the visions to all federal alcohol-related 6 Canadian Centre on Substance Use and Addic- Minister of Public Safety Canada, the regulations, including labelling and tion. Beverages with a combination of high alcohol Minister of Transport, members of packaging regulations, excise tax poli- content, caffeine and sugar. Available at: https:// parliament and Senior Advisors to the cies and advertising control policies. www.ourcommons.ca/Content/Committee/421/ HESA/Brief/BR9815398/br-external/Canadian- Prime Minister’s Office [9]. Records It is encouraging that on 5 September CentreOnSubstanceUseAndAddiction-e.pdf (ac- indicate that the government was lob- 2018, Health Canada announced its cessed December 2018). bied to ‘update highly sweetened alco- decision to consult Canadians on how 7 Stockwell TS, A. Inquiry into high alcohol, high holic beverages regulation by encour- to strengthen the federal government’s sugar pre-mixed alcoholic beverages (May 2018). aging the federal government to find health-focused approach to substance Available at: https://www.ourcommons.ca/Con- tent/Committee/421/HESA/Brief/BR9824547/ a comprehensive solution to the risks use issues and its wish to update the br-external/StockwellTim-e.pdf (accessed Decem- associated with alcohol consumption Canadian Drugs and Substances Strat- ber 2018). among minors and to restrict minors’ egy to more effectively and compas- 8 World Health Organization. Global Action access to these products’. Yet, the brief sionately address the use of psycho- Plan for the Prevention and Control of NCDs submitted by the Geloso Group to active substances, including alcohol, 2013‐2020. Geneva: WHO, 2017. the HESA committee was rather de- in Canada [15]. However, the real test 9 Office of the Commissioner of Lobbying of Can- signed to emphasize that the Group, will be to see how Health Canada will ada. 12‐month lobbying summary—consultant: ‘of its own initiative and even before turn the results of all these consulta- Geloso group/Groupe Geloso/Alexandre Meter- issian, consultant ( 2018). Available at: https:// Quebec and Canada’s governments tions into action. With an overall view lobbycanada.gc.ca/app/secure/ocl/lrs/do/cl- intervened, ordered the withdrawal of to avoid another tragedy and reduce ntSmmry?clientOrgCorpNumber=361861&sMd- its product’ [10]. Because of this pre- alcohol-related harm, we strongly en- Ky=1539633030883 (accessed December 2018). emptive action, many outside com- courage Health Canada to prioritise al- 10 Le Groupe Geloso. Submission in relation to mentators, including the authors of cohol policy in general and implement the notice of intent to amend the Food and Drug this commentary, wonder if the Gelo- the most cost-effective interventions. Regulations to restrict the amount of Alcohol in single‐serve highly sweetened alcoholic bever- so Group’s real intentions were never ages ( 2018). Available at: https://www.ourcom- to encourage the federal government mons.ca/Content/Committee/421/HESA/Brief/ to find a comprehensive solution, but BR10594620/br-external/GroupGeloso-e.pdf (ac- References cessed December 2018). rather to convince the government that amendments to the Food and 1 House of Commons Standing Committee on 11 Martino, FP, Miller, PG, Coomber, K, Hancock, Drug Act are not necessary. Health. Minutes of Proceedings, 1st Session, 42nd L, Kypri, K. Analysis of alcohol industry submis- Parliament, 19 March 2018 (March 2018). Avail- sions against marketing regulation. PLoS One The alcohol industry has in the past able at: https://www.ourcommons.ca/Document- 2017; 12: e0170366. Viewer/en/42-1/HESA/meeting-95/minutes (ac- opposed regulation by emphasising cessed December 2018). 12 Savell, E, Fooks, G, Gilmore, AB. How does the industry responsibility and the effect- alcohol industry attempt to influence marketing iveness of self-regulation [11–14]. At 2 Government of Canada. Notice of intent to regulations? A systematic review. Addiction 2016; amend the Food and Drug Regulations to restrict 111: 18– 32. the time of the writing, a few weeks the amount of alcohol in single‐serve highly sweet- away from Health Canada releasing ened alcoholic beverages (March 2018). Available 13 Noel, J, Lazzarini, Z, Robaina, K, Vendrame, A. at: https://www.canada.ca/en/health-canada/ser- Alcohol industry self‐regulation: who is it really its proposed regulations, there are vices/food-nutrition/public-involvement-partner- protecting? Addiction 2017; 112: 57– 63. concerns that there will not be sig- ships/restrict-amount-alcohol-single-serve-high- nificant amendments to the Food and ly-sweetened-alcoholic-beverages.html (accessed 14 McCambridge, J, Hawkins, B, Holden, C. In- December 2018). dustry use of evidence to influence alcohol policy: Drug Regulations. However, for those a case study of submissions to the 2008 Scottish of us who have been following this 3 April, N, Paradis, C, Maurice, A, Niquette, M, government consultation. PLoS Med 2013; 10: case, it will be difficult to forget what Cyr, C, Morin, R. Acute alcohol poisoning and e1001431. sweetened alcoholic beverages, Québec (2018). the ministerial and the parliamentary Google Scholar 15 Government of Canada. Strengthening Can- consultations have clearly brought ada’s Approach to Substance Use Issues Ottawa to light: Athena Gervais died after 4 American College Health Association. Amer- ( 2018). Available at: https://www.canada.ca/ ican College Health Association‐National College en/health-canada/services/substance-use/can- consuming a drink that was readily Health Assessment II: Canadian Reference Group adian-drugs-substances-strategy/strengthening- available, cheap and marketed toward Executive Summary Spring 2016. Hanover: Amer- canada-approach-substance-use-issue.html (ac- cessed December 2018). youth. We suggest that Health Can- ican College Health Association, 2016. 52 Food for Life Report 9 Issue #6 Serving Alcohol Marketing to Kids: not just a pint-sized problem for adults should not be at the expense of making them appealing to children. 4. Urge companies to package In 2014, 14,827 Canadians died from even single-serving containers alcohol-related injuries, liver diseases, with resealable lids. Beverages cancers, stroke, suicide, and other alco- sold in re-sealable containers can be hol-related causes. The financial cost of consumed over longer periods of time. 2010 federal regulations banning fruit- and harm—$14.6 billion in 2013-14—exceeds candy-flavoured cigarettes under 1.4 grams were net private sales because most of the $22.5 thwarted by tobacco companies by increasing 5. Set minimum prices/taxes for the weight of tobacco. The epic fail was fixed flavoured alcohol. High prices will billion in total sales revenue in 2017 was years later by more carefully written rules. turned over to governments in taxes and save lives of price-sensitive children. other payments. Governments have huge 6. conflicting interests in alcohol profits. The alcohol consumed by children is a Help experts and provincial dangerous bonanza for alcohol compan- education ministries develop It is illegal to sell alcohol to children. Yet, ies and government tax collectors. They school curriculum about alcohol. according to Statistics Canada, 65,000 make their money from heavy users and School children should learn about the boys and girls consume more than 4 recruiting young drinkers to be life-long harms of alcohol and coping strategies drinks per week. Heavy drinking is customers. But, because kids often try for trauma and stress. nearly nine times as common among to conceal drinking from parents and 7. Track statistics on deaths and young adults aged 18-34 compared to caregivers, they avoid drinking in the hospitalizations related to alco- 12-17-year-olds, but the alcohol-related safety of their homes, compounding the hol to tailor the strategy for death rate is only two-and-a-half times risk that comes with alcohol-impaired optimum impact. Measuring the higher. Plainly, kids are more vulnerable. judgement and physical incapacity. problem is a vital tool for achieving The death of Athena Gervais prompted success. Health Canada to restrict the amount of alcohol in flavoured non-wine-, non-spir- How to better protect children? Opportunity Knocking: In October it-based beverages to 1.5 standard drinks 2020, Health Canada will co-host a (25.6 mL of pure alcohol) in containers Health Canada is expected to announce global forum on alcohol labelling and smaller than 1 litre. The May 2019 a broader national substance use strat- advertising in Ottawa with the World regulations place no limits on flavoured egy this summer. Children will bene- Health Organization, governments of beverages made from spirits or wines, or fit from myriad policies to help reduce Russia, India and the European Union malt/beer-based beverages sold in slightly alcohol consumption by adults, such as and 60 governments in the United larger glass bottles. These loopholes seem policies on minimum prices, taxation, Nations Codex Committee on Food big enough to drive a beer truck through hours and place of sale, impaired driving, Labelling. Canada’s influence to help for companies eager to make up the $50 legal drinking age, advertising controls, reduce 3 million annual alcohol deaths million in lost sales. (In 2010, in a col- and health warnings on labels and ads. worldwide will depend on whether ossal failure to anticipate the resolve of But, kids need special measures, such as: it is able to create a robust national strategy and show progress in reducing the Big Tobacco, Health Canada banned 1. Close the loopholes for flavoured candy-flavoured tobacco in cigars weigh- the estimated 14,827 annual deaths beverages. Limit the alcoholic content in Canada. ing less than 1.4 grams. While the ink of ready-to-drink flavoured or sweetened dried on the law, companies began sell- drinks made from wine or spirits or sold References ing cigars with more than 1.4 grams of in glass bottles over 750 mL. 1. Drewnoswki, et al. 2012. Sweetness and tobacco until stricter rules were passed.) Food Preference. The Journal of Nutrition, 2. Stigmatize and penalize mar- 142(6):1142S-1148S And, according to the Institute for Health keting to kids (and adults). When 2. Hoffman, et al. 2016. Flavour preferences in Metrics and Evaluation, in 2017, 101 public health officials fail to report mar- youth versus adults: a review. Tobacco Control, 25:ii32-ii39 deaths of Canadian 12-17-year-olds were keting alcoholic beverages to children, caused by consuming alcohol of all types, vendors and the public assume it is okay. 3. Centre for Addiction and Mental Health. indicating that Health Canada’s regula- Strategies to Reduce Alcohol-Related Harms and Consider banning advertising to adults, Costs in Canada. (Toronto: CAMH, 2019). tions overlooked too much. Likewise, too, as the World Health Organization a Sherbrooke, Quebec study found that 4. Canada Gazette, Part II. SOR/2019-147. p. recommends, the federal government 2115-57. May 29, 2019. only 17% of alcohol-related emergency did for tobacco for causing only triple room visits by 12-24-year-olds involved 5. Sheryl Spithoff. Addressing rising alcohol-re- the deaths, and liquor companies did lated harms in Canada. Canadian Medical Assn consuming such flavoured drinks. The voluntarily for years. Journal. July 22, 2019 191 (29) E802-E803; DOI: candy flavoured nicotine vaping industry https://doi.org/10.1503/cmaj.190818 wooed regulators by emphasizing their 3. Forbid the retail refrigeration of 6. Statistics Canada. https://www150.statcan. use for smoke-cessation. Since then, gc.ca/t1/tbl1/en/tv.action?pid=1010001201 and flavoured or sweetened alcoholic https://www150.statcan.gc.ca/n1/daily-quo- teen usage skyrocketed and, surprise: beverages. Adults can refrigerate at tidien/180510/dq180510a-eng.htm the active ingredient is called vape juice. home. Making cold drinks convenient 53 10 Food for Life Report Berry sweet: Flavouring with berries, fruit, and sugar is a surefire way to drown- out the taste of alcohol and appeal to children’s palates.
alcopop: Alcopop used to be considered a slight over-reach to characterize sweet, fizzy alcoholic coolers. Now, alcohol companies are not shy about adding liquor to any kind of pop which surely makes it more appealing to children. According to Statistics Canada, in 2015, children aged 9-18 consumed 34 grams of sugar from non-alcoholic sugary drinks, compared to 21 grams by adults.
Invoking childhood in labels: Children’s themes abound in alcohol label- ling, especially in the refrigerated products.
Risky drinking: As teenagers’ brains mature, their judgement is not fully de veloped. Some are attracted to risk, and many have immature capacitie s to weigh risks. Marketers tap into this impulse.
54 Food for Life Report 11 Issue #6 A National Healthy School Food Program?
Bill Jeffery, BA, LLB, Executive The United Nations World Food Pro- mothers were socially condemned and Director of the Centre for Health gram found that even very poor coun- nuclear households with a working fa- Science and Law, a member of tries running school food programs ther and unpaid mother who provided the 72-organization Coalition for Healthy School Food with financial assistance from rich all the childcare was the ideal...[M]oth- countries or United Nations programs ers’ allowances worked to keep women take over funding themselves when out of the workforce…”(pp. 75-6) Sometimes, ideas get so embedded in their gross domestic product rise to our ways of thinking that we can’t imag- a paltry US$10 per person per day, a The Family Allowance Act of 1944, ine anything different. small fraction of Canada’s. paid working class and rural fami- lies 10%-30% of their incomes in the Canada’s poorly fed schools Many countries’ programs are un- late 1940s, although those percentag- are nearly alone among der-funded and have rules that we es were eroded over time by inflation. the world’s rich and poor. would be wise not to follow. Notably, They were designed to nudge-home Canadian elementary school students the U.S. program singles out poor kids married women who had been called typically bring packed lunches of what- for benefits in a shaming ritual that into the paid workforce during World ever can last a few hours in a backpack. stigmatizes children and turns teach- War II “by providing cash instead of Many high school kids have the option ers into bill collectors. More Canadi- food at school…[and] increase the du- of buying nutritionally poor cafeteria ans believe that vital social programs ties for women at home as they [were] and vending machine foods instead. like health care, education (K-12, at expected to use that cash to purchase Provincial governments provide enough least), and maybe soon pharmacare and prepare food for their families.” funds to feed a simple meal to about 4% are entitlements as fundamental as of students which school staff and vol- free speech, equality, and voting. She found Canada’s policies to keep unteers supplement with community married women out of the workplace and corporate donations to feed 20% Weak school food programs were “more draconian” than in the or more students. Applicable nutrition helped force women out of the U.S., including: standards are typically weak, outdated, workforce after World War II. over-complicated, and not enforced. Professor Geist Rutledge explains • removing federal daycare subsidies, her theory about Canada in her 2016 • job guarantees for war veterans, The City of Toronto funds school food book, Feeding the Future: School Lunch • reducing married women’s tax cred- more than other cities, maybe giving Programs as Global Social Policy. She its, the news-media-hub a distorted impres- ruled out the political orientation of • a federal law restricting the hiring of sion of the Canada-wide situation. the implementing governments as a married women until 1955, and cause. Instead, she traced opposition • advertising campaigns emphasizing A fully funded program would cost less to school meals to post-WWII employ- women’s roles at home. than 2% of what Canadian provinces ment policies: “a male-breadwinner currently spend on public school educa- model in Canada was enforced though Are Canadian family supports tion. In the long run, serving nutritious moral ideology that held that the role still nudging women out of the food at school could help create life-long of women was in the home…working workforce 75 years later? healthy eating patterns that would save Much has the health care system a heap of money. changed Change in Employment Rates among Men and since 1945. Women in two-parent families with and without Canada is the only G-7 countries with- Canadians out a national program and, according 100 children under 16 living at home, 1976-2014 Married fathers with children 16 at home elected a to City University of New York profes- vocally fem- 75 Married mother with children <16 sor, Dr. Jennifer Geist Rutledge, one of inist Prime Married father w/o children < 16 only 34 countries worldwide to refrain. Minister 50 Married mother w/o children < 16 She found that at least 151 of 193 Unit- and policies ed Nations member states run national 25 that direct- programs. (She couldn’t obtain reliable ly obstruct information for nine countries). Some 0 women’s of the 34 hold-outs structure their half- 1976 2014 access to day elementary instruction to end be- Source: Statistics Canada, Labour Force Survey, 1976 and 2014. Catalogue no. 75- 006-X ISSN 2291-0840 Employment patterns of families with children. the labour fore lunchtime. market 55 12 Food for Life Report gender equality prevailed,
men and women would Trends in average daily time spent on cooking & ? spend equal amounts of cleaning by Canadian men and women over age 15 time on paid work and un- 80 paid work. The difference in the hours spent on each provides a measure of the 60 Women gender gap.” The labour force trend for parents with 40 kids at home from 1975-
2014 illustrates families’ 20 Men battles to make ends meet, not an end to the battle of 0 the sexes. The rate of fa- 1986 1998 2005 2010
thers with jobs declined Statistics Canada, General Social Survey, 1986, 1998, 2005, and 2010. only slightly, while moth- ers’ participation in paid ernments never used farm surpluses work rose steeply. Same for all male this way. Making student nutrition Could a school food program help Rosie and female workers 1950-2014. hinge on farm over-production makes student-health a hit-and-miss priority. the Riveter’s slow Canadian comeback? Among women aged 25-54 (when Conservative Party Leader Andrew would likely be struck down by courts families tend to have children living Scheer revealed that the political im- at home), only half work full-time, as violations of the Charter of Rights pulse to favour agri-food industry in- something that hasn’t changed much and Freedoms equality provisions. terests over children’s health is still a since the 1990s. Nor have women risk when he promised dairy farmers But, 74 years is not so long in the arch spent much less than an hour per day he would add nutritionally mediocre of major public policy change. Vocal on cooking and clean-up, double the chocolate milk to Canada’s Food Guide. calls for publicly funded healthcare be- time spent by men. Much of this time gan before The Great Depression, but difference might be spent preparing But political leadership with integrity were not crystallized into national law school lunches, especially for younger requires defending the well-being of until 1966 and, obviously, pharmacare children. These little inequalities in children, even though they can’t vote. is still being debated nearly a centu- the sharing of household duties limit ry later. The post-WWII baby bonus women’s participation in paid work. Provincial government funding, how- (now called the Canada Child Benefit) ever anemic, is administered by gov- is the signature social policy of the cur- Professor Geist Rutledge flagged the ernments of all political stripes (pres- rent federal government, drawing 10% role of governments buying farm ently mostly conservative). We can and of all federal government spending. surpluses to supply school meal pro- should do better, and that is precisely grams since a time when one-third what the federal government proposed Statistics Canada analyst Judith Fred- of North Americans farmed. Today, in its recent budget plan. According erick observed 50 years after WWII, “If less than 3% do. But, Canadian gov- to Professor Geist Rutledge “The cre- ation of school lunch programs can be regarded as a boon for women’s incor- poration in full citizenship.”
A school food program, foremost, a good way to improve the health of Ca- nadian children (and adults). It could help make life a bit more affordable for parents with children living at home when family life is expensive and par- ents’ pay is just beginning to rise. And, it could help ensure that there is a bit more gender equity in participation in the paid workforce.
Look for commitments to a na- tional school food program in all parties’ election platforms. 56 Food for Life Report 13 Issue #6 COOKING FOR KIDS, B BREAKFASTS’ OF CHAMPIONS Descend INTO CANDY-LAND
The scientific literature and Health Canada’s own analysis found that food advertized to children tends to be higher in saturated fat, sugar, and salt than food recommended in Kellogg’s Fun Pack Cereal is sold in Canada’s Food Guide and even single-servings in their own bowls and higher in those undesirables If kids won’t eat whole grain breakfast cer- eal, it is better to quit cereal altogether and festooned with cartoon characters, so than food advertised to adults. plainly intended to be eaten at school Not good! switch to whole grains that go with fruit. This Walmart aisle sign eliminates any doubt that by plenty of kids. They’re packed with But, of course, low levels of manufacturers and retailers target children sugar, not whole grains. Health Canada added salt, sugar, and saturated with sugary cereal without remorse. Industry tweaked its high-sugar warning rules fat do not make foods nutri- opposed (now retired) Senator Nancy Greene to ensure that small-serving-foods, like tious. There has to be some Raine’s modest proposal to block some of this breakfast cereal have to include a high- good stuff, too. advertising to pre-teens on TV, the Internet, sugar warning on the fronts of packages and packages, but precious few would have containing more than 9 gram of sugar Most independent dietitians to carry high-sugar warnings under Health per 30-gram serving. But, a 28-gram maintain that kids should eat Canada’s front-of-package labelling proposal. serving of Froot Loops contains only the same food that adults do 10 grams of sugar. The Canadian Food and, often, “kids’ food” is short- Inspection Agency lets companies be hand for junk food designed to 20% wrong on label amounts without pander to children’s taste buds, penalty. So, Kellogg could reduce sugar and to coax younger ones to by a single gram per bowl or even just pester their parents and older change its labels to say so. Proposed ones to spend their allowance ingredient label rules would not force and part-time-job money. boxes to label amounts of whole grains.
Nutrition standards for food sold and otherwise distrib- uted at school are, at best, unevenly strict, largely vol- untary, and rarely enforced. Hopefully, that will change soon now that four federal cabinet ministers have been assigned roles for addressing it: Ministers of Finance, Health, Choco Chimps’s 9 grams of sugar (Kellogg’s Agriculture and Agri-food, and Froot Loops has 10) and a paltry 2 grams of Family, Children and Social fibre (same as Froot Loops) makes the “organic” Development. boast seem like a distraction. Bipeds wouldn’t Chocolate Shredded wheat? Say it last long in the wild while eating Choco Chimps isn’t so, Post! Shredded Wheat and Meanwhile, Big Food offers without help from dentists and insulin. Because candy? Is breakfast losing a war waged some nutritionally grim live chimps are notorious for flinging their own by dessert? Oh Shredded Wheat, you options for bagged and fast feces, chocolate seems a risky choice of flavours beacon of all things whole grain, simple, food lunch in hopes that Mom and a possible pivot point for a parent helping a low sodium, Canadian and nutritious or Dad will toss them in the kid shake this particular habit. Lots of cereals pulled into a forced marriage with, of grocery cart on the week-end offer more, nutritionally. Really nutritious bran all things, chocolate. Will anything (then the back-packs) or Junior flakes and oatmeal can become kid-friendly by stop candy’s gradual takeover of the will line-up for all week. flavouring with real berries. first meal of the day? 57 14 Food for Life Report , BIG-FOOD-STYLE l’il to show for LUNCH
It is a big responsibility to design full meals for children. Kids deserve the protection of everyone that serves them, not the least that adults can get away with. Lunch could and should start with lots of fruits and vegetables, whole grains, and plant-based proteins . Lots of elementary schools are nut-free zones, but legumes—unlike meat—can help prevent common Canadian diseases with little risk of allergic response. Health Canada’s proposed regulations give these nutri- tionally weak meals a helping hand by not requiring them to include vegetables or whole grains in order to qualify for an exemption from high-sodium warning limits. Oops.
Maple Leaf’s Simply Lunch seems like an epic failure to meet Lunch Mates’ manufacturer’s slogan is “Crafted with- even the fuzzy rules in Canada’s Food Guide Snapshot: It out compromise.” Presumably, in this case, this means contains no fruits or vegetables, no whole grains, only salty that Schneiders is not bowing to children’s nutritional meat, white-flour crackers, and saturated-fat-laden cheese. The well-being. Maple Leaf owns Schneiders so, like lots of labels—food’s report card—won’t help parents spot these failings. foods in the marketplace, they are not competitors on With only 230 calories, this meal is conspicuously low in energy, price or product quality. Again, with no fruits, veggies, even for a kid’s meal. The Ontario Government tells Ontario or whole grains, this hardly qualifies as lunch for a kid. diners that a child aged 4-9 needs up to 1,500 calories per day. Processed salty meat on a white bun with french fries But, by making these meals so small, they narrowly qualify for should be sent to the principal’s office. But, with 4 grams exemptions from proposed warnings for high saturated fat (5g, of saturated fat and 700 mg of sodium, this nutritionally under the 6 g limit) and high sodium (450 mg, under the 690 mg despicable excuse for lunch is a rounding-error away threshold) for meals. Turkey is marginally more nutritious than from qualifying for the 690 mg exemption from Health red meat, but all salty processed meat is worse than fresh beef, Canada’s much ballyhooed warnings for high in sodium. nutritionally. Health Canada’s proposed front-of-pack labelling As for the Simply Lunch packages, this Lunch Mate should consider beneficial ingredients, not just warnings when delivers only 300 calories. At the very least, adding a food has too much sodium, sugar, and saturated fat. little more energy from a fruit and vegetable would have made it a more complete and nutritious meal.
58 Food for Life Report 15 Issue #6 copied & pasted
Alpha-getti is a sorry excuse for MR. NOODLES is an ironic name for a pasta and a shameless attempt to mar- product so popular with adolescents. It ket junk food to kids just learning to is cheap and easy to cook for systematic- read and parents eager to teach them ally de-skilled Canadian teenagers. Mr. how. Heinz strangely dropped the “h” KD excels in brevity and yellowness. Noodles’ penchant for embellishing the in its own product name. So much for Schneiders’ Like the vast majority of pastas on the truth is displayed by his reporting the spelling. It consists largely of white market, it is made from refined white amount of sodium levels in an 85-gram refined flour and salt: more than half flour so offers nothing healthful to package of noodles per half-package. the target daily intake for sodium for someone not facing imminent starva- What teen eats a half-package of noo- most elementary-school-aged kids (620 tion. Considering teens need 15-20 dles.? Respect your elders, eat half a mg of 1,200 mg per day). For kids who servings of food per day and a target of package. Much better still, buy a bag get enough calcium and vitamin D from 1,500 mg (or less) of sodium, packing of whole grain noodles and experiment (slightly salty) milk, everything else 580 mg of sodium into a single serving with the vegetables and the spice rack they eat would have to be salt-free to seems like a lunch break habit to break. to make your own salt-free flavouring. avoid jacking up their blood pressure. FAKE FRUIT
Fruit juice is at the end of its dec- GoGo squeeze is the produce section’s ade-long fall from grace. The newish equivalent of chocolate milk: laced with scientific consensus is that juices are sugar. Gogo Squeez has double the sugar water, little different from pop and sugar of an equivalent amount of blue- Betty Crocker makes fruit more like fruit punch, nutritionally. They can’t berries and quadruple the sugar of fresh dessert while health and children’s advo- hold a candle to the whole fruits they or frozen raspberries. It is not quite cates are calling on schools and food come from. Its disappearance from the two-thirds of a serving of fruit (not companies to make dessert more like Canada’s Food Guide Snapshot makes including the added sugar.) Seems an fruit. The first three ingredients, for it official. By the end of elementary irresponsible ingredient to cut-corners anyone sceptical enough about the name school, a student switching from juice on. The excess packaging isn’t doing the and claim to read, are: corn syrup, sugar, boxes to tap water can help entrench a planet any favours either. Since when and corn starch. A 23-gram serving healthy life-long drinking habit, save does fruit need to be packaged securely couldn’t have much less fruit if it were thousands of dollars, and spare the land- enough for inter-planetary travel? Try painted on. A single serving of fruit is fill of nearly half of a student’s body- real berries in a reusable container. about 125 grams. weight in empty packages. 59 16 Food for Life Report Tricky Treats Picking the healthiest snack is like picking the most environmentally friendly car; the best car is a bicycle and the best snack is a fruit or vegetable. But, if your kid must have a sugary (or floury) snack, make it a small or make it yourself with whole grains, fruits, and vegetables. (Cars with lower “curb weight” need less energy to move.) Manufacturers of school lunch snacks have no compunctions about making them with filler ingredients and portraying them as nutritional stars.
School Safe’s name alone makes par- Birthday Cake Bear Paws don’t ents seem irresponsible for not buying put their best paw forward by palate it. Many elementary and junior high -pandering with cookies flavoured schools ban nuts and other food aller- like cake. Made from 90%-95% white gens from packed lunches to avoid acci- President’s Choice Oatmeal Raisin flour, sugar and fat (not the good dentally causing life-threatening allergic Cookies package shows images of whole kind), they claim to be “made better,” reactions in classmates. Scouring labels grain wheat stalks and oats on all six without artificial flavours and colours, for allergens can be daunting for any sides. But, the cookies are at least half and with yogurt (though only 1-2 g per parent. The “school safe” claim can sugar, fat (not the good kind), and refined serving). They insinuate themselves help, but white flour and sugar cake sets wheat flour not( whole grain). No pic- into kids lunches with peanut-free the nutritional bar too low. tures of the undesirables are shown. claims and cartoons. How dare Dare?
Cheesstrings are nutritionally diluted milk. To get the same amount of calcium as a glass of milk or fortified nut or soy drink, an elementary school kid would have to eat three Black Diamond cheese strings, including nearly 40% of the daily target sodium intake for most kids that age and none of the vitamin D. (Cheese is made with unfortified milk.) Cheese strings sound like more fun than getting a head start on cardiovascular disease and a late start on building healthy bones. Not so fast, fast Food. There are about 17,000 elementary and secondary schools in Canada and nearly 40,000 fast food restaurants. Kids don’t have the time to eat lunch at a table-service restaurant, and elementary school kids (thankfully) can’t leave the school grounds at all. Rural and suburban schools are usually too far from even a fast food restaurant during a short lunch break. But, there are thousands of outlets of Tim Hortons, McDonald’s, and Subway across the country, and they often set-up new urban stores near schools.
Subway Kid Pak nominally includes Happy Meals are enough to make a bottled water, but they make more dietitians and parents McGrumpy: no money from fountain drinks so likely whole grains, no vegetables and so many subtly promote those and don’t charge sugary drink, and fried meat and potato Timmies Minis Kids’ Packs were claimed more for them. The mini-sub contains options. Even the apple slices option is to be “kids’ meals parents AND kids can as much as 550 mg of sodium, without only a half Food Guide serving and the get excited about.” Excruciated maybe. condiments, and nearly 1,000 mg with water is sold in an unsustainable plastic Without whole grains or vegetables, the deli mustard or buffalo sauce. Not a sin- bottle. McDonald’s website claims “You excitement is not mutual. Chocolate gle exclusively whole grain bun is among want the best for your family. So do we.” milk, juice, “Fun Bytes,” cheese strings, 14 on offer. The Apple Strawberry Fruit Either improve the food or downsize and fried potatoes are some of Tim’s bids Buddy is as sweet as apple juice even if the rhetoric. for nutritionally mediocrity. it has a few more grams of fruit in it. 60 Food for Life Report 17 Issue #6 Eating the Planet: What do we know? What now?
(a plentiful and accessible resource, Likewise, evidence shows that fish, Bill Jeffery, LLB, BA, Editor, but the biggest threat to human health seafood and omega-3 fish oils provide of any food additive) and promoted disease protective effects, but getting Food for Life Report potatoes and cassava more than public 14 billion people enough to eat from health nutritionists do. Tubers do not seas, lakes, and rivers that can barely In March, the respected British med- seem to have the cancer-fighting chops sustain 7 billion is a bridge too far. ical journal, The Lancet, began pub- that lots of other fruits and vegetables lishing a series on the environmental do, so are precluded from making The Eat Lancet Commission’s equivo- impact of human diets researched by health claims to that effect by Health cates on palm oil, animal fat and leg- the Eat Lancet Commission, a cadre Canada regulations. Potatoes are also umes. Why not urge minimizing of global experts on food and environ- high in the Glycemic Index and are those oils and replacing meat with ment. In June, the Swiss-based sci- low in protein, fibre and (if peeled) legumes where human health and en- entific journalNutrients published a most other beneficial nutrients. But, vironmental sustainability converge. study by Italian researchers asserting the United Nations Food and Agri- If any recommendations are being the environmental benefits of follow- culture Organization has long pro- diluted to appease industry interests ing the Mediterranean diet which, claimed their praises for providing (or pre-emptively deflate the charge notably, quantified the amounts to be more calories per hectare than every that The Lancet supports a vegetarian consumed of various foods. other major staple crop (and using agenda), those should be made explicit. water more efficiently)—two formid- While plenty of piecemeal efforts have able advantages for a planet that must Reconciling the eco-diet with good hinted before at the environmental feed a soon-to-be doubling human nutrition needs some fine-tuning and benefits of reducing consumption of population. some guidance, especially on whole palm oil, beef, and coffee, these were grains. And other nudges are too the first comprehensive attempts to imprecise to be actionable. Recom- quantify advice for consumers. mending a range of grains that in- cludes zero seems to counsel abstain- The authors themselves and media ing from a the most impactful disease commentators were quick to see the preventer. similarities between eating for a healthy planet and eating for human In the coming decades, hard choices health. They are similar, but not iden- will need to be made, and harder tical and don’t take into consideration choices if so many farming resources the distance travelled, mode of trans- are devoted to producing meat. If so portation of food to the end consumer, much water and viable farmland is and the amount and type of packaging sacrificed and greenhouse gas emis- materials, but label advice should also sions generated to produce meat, it ballpark these based on sound evi- could become too expensive or even dence and methodologies. impossible to plant enough health-pro- GODZILLA, Fictional planet-eater. tecting fruits, vegetables, and grains. Distance matters, but Canada doesn’t produce enough fruits and vegetables Some meat-lovers characterize pro- to satisfy Canadians’ dietary needs plant policies as infringing human and has only one growing season. liberty. But, what could be more liber- ating than living healthier longer? In We compared (on the opposite page) Canada (and other places), raising ani- the dietary advice from: mals for human consumption is still the most heavily subsidized kind of • the Eat Lancet Commission; farming. Those subsidies will, even- • the Nutrient analysis of the Medi- tually, have to disappear to make way terranean Diet for more sustainable production prac- • the Institute for Health Metrics twin stars KRONOS AND KRIOS, tices and full-cost pricing. and Evaluation based on its Global Astrophysical planet eaters, but Burden of Disease (and the num- 350 million light years FROM EARTH The most useful guidance still comes ber of Canadian deaths attribut- AND little risk to life HERE in the from the Global Burden of Disease able to poor nutrition); and FORESEEABLE lifetime of humanity. project, so we will continue to use it • Health Canada (based on the 2019 for product comparisons. Snapshot of Canada’s Food Guide and other supporting evidence. References (The full Food Guide has not yet been published.) Institute for Health Metrics and Evaluation, Global Burden of Disease database. 2017. http://ghdx. All four authorities agree on the im- healthdata.org/gbd-results-tool portance of stressing vegetables, and plant-based sources of protein, if dif- Eat Lancet Commission. The Lancet. 2019 fering a bit on the quantities advised. real planet eaters. Obesity and the Mediterranean Diet. Nutrients. 2019. 11:1306. The Eat Lancet team was silent on salt 61 18 Food for Life Report Range of Optimum Daily Intake (most actionable guidance highlight in red) Whole foods/ingredients Eat Lancet Commission Canada's Food # of deaths avoidable Global Burden & nutrients sorted by based on a (high) 2,500- Guide "Snapshot" if all Canadians Canada's Food Guide Mediterranean Diet of Disease calorie diet is obesogenic and other Health followed the GBD Snapshot "group" and (GBD) amount of avoidable risk for many Canada guidance advice Whole grains Est. 0-360 g (Whole 0-232 g (Range is too Estimated 45-500 g Whole Grains grain not mentioned & 100-150 g 11,735 vague.) (Range is too vague.) range is too vague.) 25 g (women); 38 g (men), no quantitative Fibre no quantitative guidance 19-28 g 4,520 but 25 g on labels. guidance Fruits & Vegetables 375-625 g 300 g (200-600 g) (Wide Vegetables (Wide range is high, 750+ g 290-430 g 6,265 range is high, but vague.) but vague.) 200 g (100-300 g) Range 375-625 g 375-750 g Fruit seems low and confusingly (Wide range is high, (Wide range is high, 200-300 g 6,094 wide. but vague.) but vague.) These tubers are not Potatoes no quantitative no quantitative nutrition-dense, but are 50 g (0-100 g) ≤ 54 g or cassava guidance guidance more eco-sustainable than other staple crops.* Protein foods 50 g (25-100 g) Higher 20-60 g (Health Canada no quantitative Nuts & Seeds intake should be offset by does not promote daily 16-25 g 9,711 guidance lower beef, etc. consumption.) Processed no quantitative guidance no quantitative guidance (presumably avoid due to ≤ 11 g 0-4 g 2,949 Meat (but presumably avoid) sodium) no quantitative Calcium no quantitative guidance 1-1.2 g 1-1.3 g 1,834 guidance 250 g (0-500 g) milk no quantitative 500 mL (Non-specific form Milk equiv., but aim for 0 g could include high-fat, high- 350-520 g 1,098 guidance dairy fat. (Wide range is sodium cheese.) 75 g (0-150 g). Wide range no quantitative Legumes 36+ g 50-70 g 901 seems confusing. guidance no quantitative Red Meat 7 g (0-28 g) ≤ 21 g 18-27 g 364 guidance 28 g (0-100). (Wide range is Benefits of replacing confusing, but higher end might no quantitative no quantitative saturated fat with Fish help achieve fish omega-3 fatty 21+ g acid targets, but strain the guidance guidance polyunsaturated fat environment.) included above. no quantitative no quantitative Health benefits, if Eggs no quantitative guidance 1/3 to 1/2 egg per day guidance guidance any, not quantified. 29 g (0-58 g) (Poultry may be as Chicken and bad for blood cholesterol as red no quantitative no quantitative Health benefits, if 21 g other poultry meat ─in addition to saturated guidance guidance any, not quantified. fat ─compared to plant protein.) Nutrients 1,300-1,500 mg (Blood pressure rises "less sodium" (Not Sodium no quantitative guidance <3,000 mg 12,191 with sodium intake about quantified.) 1,500 mg.) Fats & Oils Polyunsaturated No quantitative no quantitative no quantitative guidance 20-29 mL 4,484 Fat guidance. guidance Fish No quantitative no quantitative no quantitative guidance 200-300 mg 3,970 Omega-3 Fat guidance. guidance Saturated Fat No quantitative no quantitative guidance < 20 g guidance 2,242 (1/2 poly. rise) (likely < 20g). 0-2 g (Regulatory ban no quantitative Trans Fat no quantitative guidance makes choice research guidance (but 0-2 g 1,000 unnecessary.) presumably none) No quantitative guidance no quantitative Benefits of replacing sat- (but likely advise avoid No quantitative Tallow or lard 5 g (0-5 g) guidance, but fat with polyunsat. fat due to high sat-fat guidance. levels.) presumably none are included above. 40-65 g (Ignores 90-120 mL of olive oil Benefits are not evidence of optimum (So much oil adds more No quantitative quantified. Polyunsat. Unsaturated oils 40 g (20-80 g) than 1,000 calories. 1.6 replacement of sat. fat is more healthful billion litres are exported by guidance. with polyunsat. fat.) Spain & Italy, yearly.) than monounsat. Malaysia/Indonesia clear No quantitative guidance; no quantitative rain forests to produce Palm Oil no quantitative guidance likely avoid due to high guidance, but 7 g (0-7 g) 85% of global supply of saturated fat levels. presumably none palm oil. Sugar Presumably included in Sugary Beverages no quantitative guidance 0 g. 0-5 g. 2,255 advice about sweets. 31 g (0-31 g) < 100 g of sugar from all ≤ 36 g sweets (so even No quantitative o recognized All sweeteners (World Health Org. to keep sources (incl. milk, fruit, less sugars than WHO N guidance. quantitative estimates free sugars under 25 g/day.) vegetables). recommends) . * The UN Food and Agriculture Organization found the potato to be an efficient source of calories per hectare of farmland and efficient user of water. 62 Food for Life Report 19 Issue #6 RE-THINKING FOOD TAXES by Bill Jeffery, LLB, BA, Editor of Food for Life Report
THE DAY AFTER HEALTH MINISTER Ginette Petipas Taylor declared that her government would not consider adding a tax to sugar-sweetened beverages, the Maple bacon donuts are tax-free Fresh vegetable tray, tax- BBC reported that British (Conservative) in packages of 6 or more. able, typically at 13%-15%. Health Secretary Matt Hancock ordered his Chief Medical Officer to prepare a foods that would be taxable so it wouldn’t Sugar-free Club Soda, taxable Sugary pop, taxable now, report on taxing junk food by September lose too much revenue after ditching the now, typically at 13%-15% typically at 13%-15% 2019. manufacturer’s tax.
The Canadian government’s decision to In those days, governments didn’t think a sugar-sweetened beverage tax would rule out a tax on sugar-sweetened bev- much about nutrition, let alone the health reduce sugar intake but might marginally erages seems like an impulsive move to impact of taxing. Current rules apply tax increase sodium consumption by causing parry criticism from hyper-partisan pol- at a typical rate of 13%, to sugary drinks, consumers to hyper-focus on only one itical adversaries and hyper-focussed and candy, and restaurant foods—that are aspect of the diet. Tax reforms have to well-heeled pop and juice manufacturers. mostly devoid of whole grains, fruits, and be designed in a way that is mindful of vegetables, and packed with salt, satur- what consumers choose as replacements. But, federal and most provincial gov- ated fat sugar, and meat. Current rules ernments already tax lots of foods also unwisely tax nutritious restaurant People trying to eat a healthy diet should based on rules brought in by the former foods and plenty of healthy foods sold be able to avoid food taxes altogether (Conservative) Prime Minister Mulroney in grocery stores including unsweetened and restaurants should have financial in the late 1980s when we switched from club soda, small bottles of water, and incentives to include menu items that a job-killing manufacturer’s tax to the fresh fruit and vegetable salads. are nutritious enough to be exempt (or GST (now HST in most provinces). reveal their unwillingness to do so). The rules reflect haste and carelessness GST/HST-style taxes are designed to about the impact of taxes on nutrition Billions of health care and public and treat domestic and imported products and health. Governments shouldn’t private social safety net dollars are spent the same and to avoid compound tax- make foods that improve health more to help people suffering from diet-re- ation (tax on tax on tax), which (for expensive by taxing them. Plenty of lated disease and their surviving families. instance) could happen when one com- foods that have a negative impact on Billions more are lost in productivity of a pany cleans and cuts vegetables, then health like salty ham and sugary break- workforce hamstrung by preventable dia- sells them to another that turns them fast cereal are exempt. (The Canada betes, cardiovascular disease and cancer. into a casserole for sale to a restaurant Revenue Agency calls them zero-rated). What we really need is a health impact for end-consumers. Probably too much exclusive attention assessment on Canada’s current approach Nearly every country in the world has been focused on taxing sugary drinks: to taxing food and estimating the impact applies so-called value added taxes like an idea that sprouted from U.S. health of shifting taxes from nutritious foods to the GST/HST to food in some way. We advocates who were eager to narrowly ones that worsen people’s health. estimate that Canadian federal and prov- define a food tax to make it palatable in incial governments collect at least $7 a country that is almost unique in the billion in revenue every year from taxing world for not having a national sales tax. References food, so critics of the sugary beverage tax Jeffery B. Food Taxes, chapter in World Encyclopedia shouldn’t be too precious about oppos- An Oxford University modelling study of Food Policy. 2015. Sage. Los Angeles. ing changes to food tax rules without predicted that modifying the GST rules accepting responsibility for their role in in New Zealand to shift taxes from Ernst and Young. Worldwide Value Added Tax. 2019: https://www.ey.com/gl/en/services/tax/ current food tax rules. healthy foods to junk foods would pre- worldwide-vat-gst-sales-tax-guide---country-list vent thousands of deaths per year. It Mr. Mulroney’s government originally found that the sodium-reduction impact NiMhurchu C, Eyles H, et al. Effects of Health- proposed a 9% GST that exempted all Related Food Taxes and Subsidies on Mortality from would be much bigger than the sugar-re- Diet-Related Disease in New Zealand. Public Library foods but lowered it to 7% to dampen duction impact. And, an international of Science. 2015. public opposition and made a hasty list of study published this year predicted that 63 20 Food for Life Report According to the online industry Environment Canada’s estimate Approximate share of each meal newsletter Engineering 360, the of farming’s share of total green- that should consist of fruits and number of U.S. states that are house gas emissions (not includ- vegetables (excluding juice), home to 2 or fewer food additive ing fertilizer manufacturing and according to Canada’s Food companies: farm machinery operation): Guide Snapshot: 25. 10.3%. 50%.
2013 ratio of Canadian farming share of contributions to greenhouse gas emis- Number of daily servings of veg- Number of companies supplying sions to farming’s share of economic food additives that are based in activity (not incl. fertilizer manufacturing etables and fruit recommended the tiny U.S. state of New Jersey and farm machinery operation): for adolescents and adults and its nearest rival, massive (depending on age and gender) California, respectively: 10. in the 2007 Canada’s Food Guide
46 & 35. According to Environment 7-10. Canada, the share of agricul- tural greenhouse gas emissions Position on the Fortune 500 in 2015 coming from livestock Number of choices in list that the annual revenue of digestion (enteric fermentation): Tim Hortons menu that provide a Canadian bread and grocery full serving of fruits or vegetables company, Weston Foods Ltd, 42%. (not including plain water and would put it if it were a list-eli- french fries): gible U.S. company: According to Statistics Canada, the approximate current annual 46. production of legumes/pulses and peanuts+tree nuts in Canada in kilograms, respectively: 3 of 114 Amount invested by a German company to research the man- 4,000,000,000 and (chili and two salads). ufacture of tires from dandelion rubber and proportion of the 200,000. plant that Health Canada says is # of menu items at McDonald’s edible for people without a long that provide a full serving of fruits list of health conditions: Number of deaths attributable or vegetables (not including juice, 35,000,000 Euros & 100%. to sub-optimal consumption of french fries, or poutine): legumes and nuts, respectively:
According to the Global Burden 901 and 9,711. 4 of 329. of Disease, the number of deaths attributable to excess consump- tion of processed and red meat in Canada in 2017, respectively: Amount the federal government Number of half cup servings granted to Protein Industry of fruits and vegetables in a Canada Ltd. to promote canola, McDonald’s serving of apple 2,949 wheat, pulses, and plant-based slices or side salads: meat over 2018-2023: & 364. $152,843,759. 1/2 serving (1/4 cup). 64 Food for Life Report 21 Issue #6 School Food Nutrition Under the Microscope ...at Last
NOBEL PRIZE WINNING POET Accounts recommended that the attempt to harmonize those provincial AND SONG WRITER, Bob Dylan, Ministry of Education work with standards—the 58-page “Provincial wrote: “Money doesn’t talk it swears.” school boards to ensure that school and Territorial Guidance Document for If so, there must be a hellava lot of staff were adequately trained to ensure the Development of Nutrient Criteria cussing going on in Canadian public the nutrition standards are being for Foods and Beverages” (adopted in schools. followed. 2014)—focus too much on complex and slippery menu-choice nutrition rules. It has been more than a decade since Fast forward to this summer, In a commercial food environment, Canadian provinces adopted the cur- Newfoundland Auditor General Julia offering healthy choices doesn’t mean rent patchwork of mostly voluntary Mullaney, CPA, CA deserves kudos for that healthy choices will be selected by nutrition standards for foods sold in actually collecting and reporting some paying customers at the same rate as schools. The extent to which schools original data about school food offer- junk foods. And it is what children eat, actually follow those rules—or ensure ings and sales. The Ontario Auditor not what choices are given to them, that catering companies they hire do—has General just requested schools to pro- improves their health. been the subject of speculation fuelled vide data and criticized them twice (to by mostly discouraging anecdotes no significant effect in six years) when The Newfoundland and Labrador and a few well-told success stories. it was not made available. Auditor General recommended that: Sometimes schools and school boards so vigorously defended the privacy The Newfoundland audit found low • food provided to children in schools interests of children, they kept away adherence to the 2009 School Food meet the applicable nutrition guidelines, Guidelines advice to serve most food university nutrition researchers to • the nutrition policy apply to all and beverage choices from the policy’s track food sales. schools (school boards have recently “Serve Most” category. Instead, sur- been amalgamated in NL), In 2013, Ontario Auditor General veyed schools offered “Serve Most” Bonnie Lysyk’s first report on the foods: • menu nutrition information be pro- implementation of mandatory nutrition vided to parents and students to facili- * on the lunch and canteen menus standards in the province observed that tate healthy choices, for only 27% and 30% of choices, “Neither the Ministry nor the school • information be collected and pro- respectively, boards visited had an effective monitor- vided to the school district to inform ing strategy in place to ensure that food * never (0% of choices) in food vending compliance monitoring, and and beverages sold in schools comply machines, • nutrition standards be updated. with the nutrition standards in the Ministry’s School Food and Beverage * 92% of choices in beverages vending Policy.” machines, but only so high because the Her full report is available at: htt ps:// now-outdated 2007 edition of Canada’s www.ag.gov.nl.ca/ag/2019.htm Often, damning Auditor General Food Guide promoted juice. reports spur government program officials to click their heels together, More importantly (and more worry- Health ministers, education ing) only 8% of items actually sold salute, and fix the problems. Not so ministers, and auditors general in this case. were in the “Serve Most” category and fully 36% of items sold were on take note. A national publicly In 2015, the Ontario Auditor General’s the list of foods “Not Allowed” to be funded school food program follow-up report found little or no prog- sold in schools. These purchase fig- could and should do better. ress on her recommendations. The ures are more indicative of what kids following year, a further follow-up actually eat than the choices being inquiry by the Ontario Legislature’s offered to them. But provincial school Standing Committee on Public nutrition standards and a national 65 22 Food for Life Report ition oscope ...at Last
To her credit, the Newfoundland and Labrador Auditor General collected her own evidence and found that adherence to even out-dated district, provincial, and national nutrition guidelines was very low.
Legislative Assemblée Assembly of législative de Ontario l'Ontario 2013 Annual Report STANDING COMMITTEE ON PUBLIC ACCOUNTS
HEALTHY SCHOOLS STRATEGY (Section 4.03, 2015 Annual Report of the Office of the Auditor General of Ontario)
Office of the Auditor General of Ontario
2nd Session, 41st Parliament 65 Elizabeth II The Ontario Auditor General’s 2013 report found that ministry, school board, and school authorities did not collect data to determine whether school nutrition standards were being followed, a situation that remained unchanged in AG and Legislative reviews in 2015 and 2016. 66 Food for Life Report 23 Issue #6
Committee on the Rights of the Child August 20, 2019 United Nations High Commissioner for Human Rights 1211 Geneva 10, Switzerland By email to: [email protected]
Re: Canada’s fulfillment of key health obligations under the U.N. Convention on the Rights of the Child
Dear Chairman Luis Ernesto Pedernera Reyn:
Canada has not systematically implemented the U.N. Convention on the Rights of the Child1 (“the Convention”), nearly three decades after ratifying the most widely supported treaty in UN history.2 Mindful of the Committee’s 2012 report on Canada and the Government of Canada’s 2019 report, we alert the Committee to Canada’s progress concerning Convention Articles 1, 3(1), 4, 24 (c & e), and 363 on: (1) nutrition at school, (2) commercial advertising to children, (3) advertising and promotion of breast-milk substitutes, and (4) governance concerning children and the marketplace.
1. Child nutrition in Canadian schools Canadian children are all eligible for public healthcare and elementary and secondary education when attendance is mainly required by law. Paragraph 120 of the government’s report does not acknowledge that adherence to nutrition standards is voluntary, weakly monitored, and not enforced or that government funding is only enough to feed 4% of students. So, programs court community and food industry donations of cash and food with the attendant governance risks. The Coalition for Healthy School Food estimates that a fully funded program would cost approximately 2% of the public expenditures on elementary and secondary education. Numerous experts have stressed the importance and viability of a national program.4 The former U.N. Special Rapporteur on the Right to Food recommended that Canada: “Formulate a comprehensive rights-based national food strategy…as part of this strategy, create a nationally funded children and food strategy (including school-feeding food literacy and school garden programmes) to ensure that all children, at all times, have access to healthy and nutritious food;5” In its March 2019 Federal Budget Plan, the federal government stated: “Critically important for a child’s education is ensuring they have healthy meals before and during school. Currently, Canada has a mix of different school breakfast and lunch programs, but much more could be done. Budget 2019 announces the Government’s intention to work with provinces and territories towardof a National the creation School Food Program.” [emphasis in original] REMEDY: Launch a national universal, publicly funded, environmentally sustainable, healthy school food program with commercial conflict of interest safeguards and cost-shared with other levels of government. 2. Advertising and promotion of food to children is still weakly regulated outside Quebec. Since the Committee’s 2012 report,6 the federal government has still not restricted advertising to children outside Quebec. It supported a Senator’s bill to restrict advertising nutrient-poor foods, but weakened the protections (from age 16 to age 12) and was unable or unwilling to ensure the bill proceeded to a final vote before the summer recess preceding the 2019 election.7 Advertising nutrient-poor foods to children (especially soft drinks and restaurant foods) and sedentary leisure activities (e.g., video games, television and social media) contribute to life-long unhealthy dietary and activity patterns of which obesity is only one stigmatizing and easily measured consequence. Nutrient-based advertising restrictions are vulnerable to legal challenge and cannot block restaurant place, mascot, logo, or generic meal ads. 8 The province of Quebec uses a different approach. Since 1981, the Quebec Consumer Protection Act has prohibited commercial advertising to children under age 13 of all products, services, and companies, not just certain foods, based on the premise that children are uniquely vulnerable to marketing and deserve protection from manipulation by commercial actors.9 The Supreme Court of Canada rejected a constitutional challenge to the Quebec advertising ban in 1989 brought by an aggrieved toy company, by concluding that all advertising to children is:
“…per se manipulative. Such advertising aims to promote products by convincing those who will always believe.”10
PO Box 4880 Station E Ottawa, Ontario, K1S 5J1 CANADA
67 24 Food for Life Report Both the federal Competition Act and Food and Drugs Act prohibit misleading advertising which, we believe, includes all advertising to children. Provincial age of majority statutes stipulate that childhood ends at age 18 (like the Convention) or 19. And section 9 of the federal Competition Act states that only persons 18 years or older may officially complain about misleading ads. REMEDY: Urge the federal government to promptly promulgate strict regulations on the advertising and promotion modelled on the Quebec approach, but raise the age of protection to all minors up to age 18 or 19 as applicable age-of- majority laws specify and to intervene to ensure that any judicial or administrative decisions respecting the statutory limits on misleading adverting are interpreted in the spirit of the Supreme Court Irwin Toy decision on the matter and in full consideration of the Convention on the Rights of the Child, Canadian age of majority laws, and the principle of the best interests of the child (Article 3).
3. Advertising and promotion of breast-milk substitutes is still weakly regulated. The advertising and promotion of breast-milk substitutes and related products contributes to low breastfeeding rates which evidence shows undermines babies’ immune systems and has other negative health effects. The Government of Canada endorsed the World Health Organization’s International Code of Marketing of Breast-milk Substitutes in 1981 and supported more than two dozen subsequent relevant resolutions adopted by the World Health Assembly in its Geneva meetings.11 In 2012, this Committee urge Canada to implement the Code.12 However, in 2018, UNICEF reported that Canada is one of only a handful of 36 OECD (rich) countries designated as having “no legal measures in place” to curb the advertising and promotion abuses that the International Code aims to prevent.13 The rate of exclusive breastfeeding babies from birth to age six months remains low in Canada, 26%, despite high rates of initiation (89%).14 Canadian law allows powdered baby formula—which can be intrinsically contaminated with dangerous bacteria because powder cannot be manufactured under sterile conditions—to be sold without warnings of this risk and even allows them to carry preparation instructions that specifically expose infants to this risk.15 REMEDY: Promulgate regulations to restrict the advertising and promotion of breast-milk substitutes in Canada pursuant Canada’s unwavering support for the global consensus at the World Health Organization since 1981, including supporting resolutions to reinforce and extend the scope of the Code to address baby food marketing innovations.
4. Governance safeguards do not ensure protection of most children from economic exploitation. The government report often cites only illustrations of provincial policies providing Convention protections instead of comprehensive reports of where gaps might leave millions of Canadian children unprotected. Also, the government report failed to note that the Prime Minister himself assumed the responsibility of Minister Responsible for Youth16; this unprecedented role raises the possibility that the Prime Minister could leverage transformative change where inter- departmental and federal-provincial cooperation and leadership are needed (e.g., paras. 9 and 11).
As the government noted (at para. 58), governments generally do not require the interpretive concept “the best interests of the child” (Article 3(1)) and child impact assessments do not apply comprehensively for 98% of Canadian children,17 though environmental and gender image analysis has become routine and rigorous.18 Canadian governments often give generous access to government health, education and other services, but tolerate commercial practices that are exploitative, unfair and injurious to the health of children contrary to the Convention Article 36 commitment to “protect the child against all other forms of exploitation prejudicial to any aspects of the child 's welfare.” The effect is illustrated by the 2018 UNICEF report which ranked Canada 37th out of 41 “rich” countries on its food security index19 citing high childhood obesity and low food security as contributing factors.
REMEDY: Urge Canada to (a) prepare future reports as full child rights impact audits of its implementation of the Convention and quantify the number of Canadian children protected by each measure, (b) enshrine the protective principle of the “best interests of the child” into the federal Interpretation Act and counterpart provincial guidance, (c) institute robust commercial conflict of interest safeguards in government advisory committees, such as the proposed Canadian Food Policy Advisory Council, and (d) optimize the impact of the appointment of the Prime Minister as the child-advocate-in-chief.
Respectfully submitted,
Bill Jeffery, BA, LLB Centre for Health Science and Law, Ottawa, Canada
2 | Page
For full references, visit: www.healthscienceandlaw.ca 68 Food for Life Report 25 Issue #6 Not Quite Down the Hatch:
THERE’S NOTHING LIKE seeing approximately 600 met their untimely box aren’t much use after the box someone choking on food to make demise from choking in Canada then. is gone or if young children get everyone hold their breath until the their hands (and mouths) on toys situation resolves. Many first-time parents and risk-averse given to older siblings. Foods almost veteran parents are primed to slice never carry choking hazard warn- Usually, it does. Not always. grapes, carrots, and hot dogs into shapes ings and some toys, like those found less like wind-pipe corks. Some parents Statistics Canada doesn’t report num- in cheap and widely available and become more cavalier with kids number popular “Kinder Surprises” have bers for choking deaths, but 5,051 2-plus. people died from choking in 2015 been banned in the United States, south of the border Presumably, U.S. data show that, for the under-three but not Canada. set, choking is the fourth leading cause (I will never forget the sight of a of accidental death. Giving kids’ neighbourhood dad plying his son toys a close look before hand- with a steady stream of baby carrots ing them over is wise at while he talked absentmindedly on that age, especially a mobile phone as his second born if the gift-giver bounced precariously on a trampo- is a dare-devil line at a gymnastics club birthday with minimal party.) childcare experience. Choking is a concern for as many people closer to the (metaphorical) The fed- harp as to the ukulele. eral govern- According to U.S. Statistics, 56% of ment’s choking deaths occur in people older T o y than 74, owing partly to a general decrease in salivation at that age.
In January 2002, 55-year-old former U.S. President George W. Bush fam- ously lost consciousness temporar- ily while choking on a pretzel as he watched a football game on TV with his decidedly unhelpful dogs. In his Regulations case, the obstruction cleared and set safety he regained consciousness without standards pro- any help. (And Vice President Dick hibiting the sale of Cheney did not get a promotion.) toys with detachable But, choking in seniors also correl- pieces small enough to ates with advanced dementias, like obstruct a child’s airway. Alzheimer’s Disease. Health Canada’s 3 cm-wide “Small Parts Cylinder” is a little wider It is not always obvious to others that than a toddler’s windpipe. It helps toy someone is choking. The obstacle manufacturers know how small is too to breathing impedes talking, too. small. Kids under three put stuff in their mouths. But, warnings on the But, wheezing (or decreased breath 69 26 Food for Life Report : h k ng n f d ...& other small things
sounds), drooling, and coughing are audible and visual signs. If the air passage doesn’t clear quickly, all of this can trigger a heart attack.
While balloons caused more deaths than any other single object between 1972 and 1992 (29% of all accidental choking deaths), food posed the big- gest danger, hot dogs alone accounting for 17% of food-related choking deaths, rivalled in numbers by all forms of candy and gum.
What to do, instead of holding your own breath?
Reduce risk by cutting food for younger and older eaters seems like a good idea. So does eye-balling children’s gifts and child-proofing living space gen- erally and regularly. Don’t let vulnerable people eat alone.
Cheering enthusiastically while eating cork-shaped bites of food is probably a bad idea, especially if there is nobody else in the room with first aid training and a commitment to your continued welfare. Generally, minimize chaos and horseplay at mealtime.
When prevention fails, there may not be enough time to conscript a professional. 9-1-1 operators might be trained to walk you through the Heimlich Manoeuvre, but some prep might turn guilt-ridden bystanders into heroes, and victims into existentially grateful survivors.
Carry this magazine with you everywhere forever or, much better, learn first aid from a course or self-study.
Reference
Duckett SA and Roten RA, Choking. StatPearls. (Washington, DC: National Institutes of Health, NCBI Publishing, 2018). 70 Food for Life Report 27 Issue #6 FAST FOOD FACE-OFF
GUACAMOLE WITHOUT 95% AVOCADO AVOCADO ESTA NO BUENO! OR BUST AVOCADO-RICH MEXICO SENDING CANADA CANADIANS NEED NOT SETTLE FOR FAKE AVOCADO-FREE GUACAMOLE dip seems like a role GUACAMOLE. At least one product on the market is reversal. To be abundantly fair, avocado is the 12th nearly as avocado-dense as avocados themselves: Yucatan. ingredient named in the fine-print ingredient list. Don’t be too dissuaded by the ultra-processed food phob- ics; even with 95% avocados, Yucatan’s guacamole has 11 ingredients (six more than five some say should be avoided).
But, eating some means importing. Growing fruit -bearing avocado trees in Canada is a tough slog. You could also try to reverse-engineering your favourite store-bought one from the ingredient list (minus the preservatives). Making guacamole is a 5-10-minute no-brainer peeling, cutting, and mixing job if you have fresh, ripe avocados, onions, garlic, lemon juice, and spices. But, added salt is number 5, so it is no exaggeration to say that this guacamole contains trace amounts of But, we needn’t believe the gushing praise that avocado avocado. aficionados sing to appreciate the value of eating them. We need lots of fruits and vegetables to obtain their full health People who eat this would be deprived of vegetables benefits. Avocados tend to be a bit more calorie-dense (or berries, for the botanical purists among you). That than most fruits and vegetables. Two tablespoons contain means a shorter sicker life, no matter how you slice it. nearly 5 grams of (mostly unsaturated) fat. A half-cup Losses would, of course, be bigger for regular purchasers. serving (as for most other fruits), would deliver about 125 calories. (A full avocado: approximately 300 calories, and Ask your abogado if it is such a good idea to sell guaca- only 4-6 grams of saturated fat, depending on the size.) mole made without avocado. No bueno! Even though they have some saturated fat and the unsatur- This is the worst kind of ultra-processed food and decep- ated fat is mostly mono-unsaturated (a low-leverage tive labelling, but the real disappointment is that it con- replacement for other saturated fat in the diet), avocados tains few nutritious ingredients. Flavoured, textured, are packed with vitamins, minerals, carotenoids, and coloured corn starch doesn’t cut the mustard, whether phenolics. A great meat replacement (or accompaniment) it is made in a big company or Grandma’s kitchen. for meat in a whole grain sandwich or dipping sauce for veggies. Subscribe to Food for Life Report for one year(6 issues) for $45 (includes shipping and handling) by visiting www.FoodForLifeReport.ca or writing to: Food for Life Report c/o Centre for Health Science and Law PO BOX 4880 STATION E OTTAWA ON K1S 5J1 CANADA
71 28 Food for Life Report 72 73 Court File No. A-85-20 FEDERAL COURT OF APPEAL
BETWEEN SAFE FOOD MATTERS INC. Appellant AND ATTORNEY GENERAL OF CANADA Respondent APPLICATION UNDER s. 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7
MEMORANDUM OF FACT AND LAW of the Proposed Intervenor CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) (Pursuant to Rules 109)
PART I: FACTS
1. The [proposed] Intervenor Centre for Health Science and Law (CHSL) brings this motion in writing for leave to present new evidence in this appeal from a decision of the Federal Court dismissing the Appellant’s application for judicial review.
2. In the alternative, the Court should permit the Appellant to include the documents in the appeal book and defer to the appeal panel the decision on whether to admit the documents in evidence. The appeal panel can rule on the fresh evidence motion informed by the full record and submissions on the merits of the appeal.
74 3. In the alternative to both options 1 and 2, the Court could admit the proposed evidence for the sole purpose of informing the remedy granted by the Appeal Panel, and not on whether a remedy should be granted.
4. Subsection 35(3) of the Pest Control Products Act provides that:
“After receiving a notice of objection, the Minister may, in accordance with the regulations, if any, establish a panel of one or more individuals to review the decision and to recommend whether the decision should be confirmed, reversed or varied.”
5. In 1976, the federal government registered glyphosate for sale and agricultural use in Canada under the nine-page, since repealed, Pest Control Products Act, RSC 1985, c P-9. -page 53 of the PMRA glyphosate Re-evaluation Decision – RVD2017-01
6. In 2002, Parliament enacted the successor statute by the same name, the 81- page Pest Control Products Act, S.C. 2002, c. 28 which, among other things, expressly required the Minister of Health to initiate a re-evaluation of glyphosate by April 1, 2005 because it had been first approved prior to April 1, 1990, and to follow a “scientifically based approach” and a “precautionary principle” in doing so. -TAB XX: Section sections 7, 19, and 20 as well as 16(2)(b), Pest Control Products Act, S.C. 2002, c. 28.
7. In 2015, the PMRA initiated its re-evaluation of glyphosate by publishing its Proposed Re-evaluation Decision PRVD2015-01 Glyphosate, a decade after the statutory deadline and 39 years after glyphosate’s initial registration. - TAB XX: : Proposed Re-evaluation Decision PRVD2015-01 Glyphosate (title page) and - Pest Control Products Act, S.C. 2002, c. 28, Paragraph 16(2)(b)
75 8. In the PMRA’s final decision approving the continue used of glyphosate in Re- evaluation Decision – RVD2017-01, the PMRA signalled a general bias against scientific studies on pesticides that are published in peer-reviewed journals and, as such, falls short of a valid “scientifically based approach” to conducting the re-evaluation. The low weight PMRA attaches to studies published in peer- reviewed journals and high reliance on sell-sponsored studies with no discernable conflict of interest safeguards compounds concerns about PMRA applying a narrow construction of “scientifically founded doubt” to the Appellant’s Objection. Pages 31-32 of Re-evaluation Decision – RVD2017-01 state, in part:
1.1.14 Use of Independent Scientific Studies Comment A number of comments stated that the PMRA, in its review of glyphosate, appeared to consider only “seller sponsored science”….Overall, these comments emphasized support for the use of “third party” data in assessing the health effects and making the final re-evaluation decision for glyphosate, in lieu of manufacturer-supplied data. PMRA Response [After explaining the basis for PMRA’s belief in the trustworthiness of company-applicant-provided studies, PMRA added:]…Studies conducted by academic laboratories often have lower statistical power due to the use of fewer animals, investigate far fewer toxicological endpoints, and lack sufficient detail in their published form. These limitations prevent regulatory authorities from performing an in-depth analysis of study results. -pages 31-32 of the PMRA glyphosate Re-evaluation Decision – RVD2017-01
9. Furthermore, the decision continued at page 53:
Some commenters believe that the environmental risk assessment for glyphosate was conducted using only studies provided by the registrants and
76 that there has not been enough long-term testing of glyphosate done by independent scientists. Reviewing studies conducted and provided by the company that is seeking registration of the product is perceived as a conflict of interest and highly biased as these studies are not peer reviewed by the scientific community. Reference was provided to a number of published scientific studies that link glyphosate to environmental and agronomic effects. PMRA Response The environmental risk assessment of glyphosate was conducted using a science-based approach and included consideration of a large volume of literature. In addition to registrant supplied data, more than 1500 scientific articles related to glyphosate were examined, with approximately 250 of these studies being deemed relevant and useful for consideration in the environmental risk assessment. -pages 31-32 of the PMRA glyphosate Re-evaluation Decision – RVD2017-01
10. The Re-evaluation Decision – RVD2017-01 did not reveal or failed to justify concealing the following fundamental facts about glyphosate:
A) The amount of glyphosate used in Canada per year—despite the PMRA’s statutory duty to collect this information and its promise in the Canada Gazette to publish this information annually—and to characterize those amounts in relation to other comparable jurisdictions, such as the European Union and United States despite their statute-stipulated significance as regulators; B) The source of information for PMRA’s claim—on which the reviewing court relied—that no OECD country had banned the use of glyphosate and that glyphosate’s regulatory status changed substantially and foreseeably in European Union OECD countries between 2015 and 2017; C) How many published, peer-reviewed journal articles about glyphosate were published since glyphosate’s previous evaluation by the federal
77 government in 1976 and how many were ignored or dismissed by PMRA, which would have helped particularize the extent of PMRA’s stated bias in favour of seller-provided studies; D) The extent to which registrants report unfavourable published studies disclosing incidents to the PMRA pursuant to their statutory duty and whether that extent appears to be consistent with its statutory duty of candour; E) The size of the dossier upon which the Re-evaluation decision was based, including in relation to the typical pesticide application package; F) The physical and contractual barriers obstructing the public’s access to the complete re-evaluation dossier for glyphosate on which the PMRA’s regulatory decision was based; G) The measures, if any, taken to address the risk of bias or conflicts of interest in evaluating seller-sponsored studies; H) How pesticide label-use failures are addressed by enforcement actions under the Pest Control Products Act; I) The extent to which Canadian and U.S. class actions and many more American lawsuits have alleged and, in some cases, proved to the satisfaction of courts the harm caused by glyphosate, especially in relation to the risk of Non-Hodgkin’s Lymphoma; J) Why decades-old U.S. food consumption data was used as a proxy to estimate Canadian pesticide residue exposure instead of contemporary Canadian food consumption data; and K) That the PMRA re-evaluation of glyphosate was initiated a decade after a statute-mandated deadline.
11. The Centre for Health Science and Law became aware of Re-evaluation Decision RVD2017-01 and the consultation that led to it, approximately two weeks prior to the Federal Court trial hearing in January 2020.
78 Part II: ISSUES
12. The sole issues in this motion are whether and on what terms the Centre of Health Science and Law (CHSL) should be granted leave to intervene in the appeal of the Federal Court’s order declining to order the appointment of an independent scientific Review Panel to re-consider the Appellant’s objection to Re-evaluation Decision – RVD2017-01.
PART III: MEMORANDUM OF FACT AND LAW
13. This Court should grant CHSL's motion for leave to intervene. The Court will benefit from hearing CHSL’s arguments, which are rooted in its unique perspective on the issues in the appeal and its expertise in the intersection of science, food regulation, public health, international standard-setting, conflict of interest safeguards, and acquired over two decades of accumulated and received experience on these issues.
The legal test for granting leave to intervene
14. Section 109 of the Federal Court Rules set the parameters for interventions by non-parties:
109. (1) The Court may, on motion, grant leave to any person to intervene in a proceeding.
Contents of notice of motion (2) Notice of a motion under subsection (1) shall a. set out the full name and address of the proposed intervener and of any solicitor acting for the proposed intervener; and b. describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding. [emphasis added]
79 Directions (3) In granting a motion under subsection (1), the Court shall give directions regarding (a) the service of documents; and (b) the role of the intervener, including costs, rights of appeal and any other matters relating to the procedure to be followed by the intervener.
15. Relying on the arguments of fact and law including the proposal set out above and the facts affirmed by Bill Jeffery, Executive Director of CHSL and proposed Solicitor of Record in this appeal, CHSL submits that it meets the test for being granted leave to intervene. -Bill Jeffery Affidavit [CHSL Record, Tab B, at para. 16]
16. A panel of the Federal Court of Appeal in Bauer Hockey Corp. v. Easton Sports Canada Inc., 2016 FCA 44 Available at: https://www.canlii.org/en/ca/fca/doc/2016/2016fca44/2016fca44.pdf) confirmed that the criteria from Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 90, [1989] F.C.J. No. 707 & [1990] 1 F.C. 74, [1989] F.C.J. No. 446 are still applicable (though the court neglected to state the fifth factor). The factors set out by the Trial Court were stated as follows:
(1) Is the proposed intervenor directly affected by the outcome? (2) Does there exist a justiciable issue and a veritable public interest? (3) Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court? (4) Is the position of the proposed intervenor adequately defended by one of the parties to the case? (5) Are the interests of justice better served by the intervention of the proposed third party?
80 (6) Can the Court hear and decide the cause on its merits without the proposed intervenor? --Bauer Hockey Corp. v. Easton Sports Canada Inc., 2016 FCA 44 Available at: https://www.canlii.org/en/ca/fca/doc/2016/2016fca44/2016fca44.pdf) --Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 90, [1989] F.C.J. No. 707 Or Rothmans, Benson & Hedges Inc v Canada (Attorney General), [1990] 1 FC 74, 29 FTR 267.
17. Applying the Rothmans factors to the proposed interventions of the Centre for Health Science and Law:
(1) Is the proposed intervenor directly affected by the outcome? Yes. CHSL is a non-profit public interest organization specializing in food, health, food labelling, conflict of interest safeguards, and the evaluation of scientific research used in the policy-making process. Its principal mission is to improve public health and urge the use of conflict-of-interest safeguards in evaluating scientific research. While this appeal concerns private interests of pesticide sellers and users, it also concerns the public interests related to the health of consumers (particularly vegetarians who rely on legumes for protein and people who follow Health Canada’s dietary guidance as articulated in the most recent, 2019 edition of Canada’s Food Guide) and workers, as well as the broader natural environment.
(2) Does there exist a justiciable issue and a veritable public interest? Yes to both. CHSL wishes to complement submissions of the Appellant and Ecojustice, but bring its unique perspective and experience to help the court appreciate the implications of ignoring the serious decision-making errors of the PMRA that were overlooked or validated in the lower court’s decision. These errors include numerous failures of transparency, justifiability and intelligibility, which, together appear to be a negligent or intentional effort to
81 help the regulatory decision fly under the radar and avoid adverse public comment or curial oversight, including the failure to report:
the total amount of glyphosate used in Canada per year since its prior approval in 1976, especially in comparison to the United States and the European Union; the actual size of the re-evaluation dossier; the volume and key findings of class action and other litigation in Canada and the United States; the use of
o physical distance (the reading room is physically located in Ottawa and may not have been accessible until after the Notice of Objection period had lapsed),
o do-not-disclose agreements, and o the threat of criminal prosecution to conceal 98% of the re- evaluation dossier.
Furthermore, some failures of transparency mask further unlawful defects in the decision, including:
The extent of a bias and, at least, a misapplication of the weight-of- evidence approach and a demonstrated practice of dismissing all contrary viewpoints received during the 2015 glyphosate consultation in the final decision, and summarily dismissing all Objections to the final 2017 decision in favour of seller-sponsored studies and against studies published in peer-reviewed journals which, CHSL submits, rises to the level of general questions of law that are of “fundamental importance and broad applicability,” with significant legal consequences for the justice system as a whole that, itself, attracts the correctness standard of review; The failure to use contemporary Canadian data to estimate the exposure of Canadians to glyphosate residues in food instead of decades old American data;
82 Failure to use contemporary information about the Canadian-statute- recognized regulatory status of glyphosate in OECD countries instead of, for instance, a 2002 regulatory decision that was due to expire in 2016 and was significantly amended in 2017 long before the trial hearing; and The failure to respond to the Appellant’s Objection regarding labelling and enforcement by, for instance, explaining the enforcement actions related to glyphosate especially in relation to labelling.
Furthermore, CHSL submits that the record discloses a severe, decade-long delay in the commencement of the re-evaluation that amounts to breach of the section 7 right to life and security of person under the Charter of Right and Freedoms. There is no security of the person or health if there is no reasonable certainty of no harm to health, the environment or future generations from what we grow and eat.
All of these broader issues, except the delay and the specifics of the OECD regulatory status, have been raised by the Appellant, will be uniquely and helpfully particularized by CHSL. CHSL has a public interest and public health mandate and is dedicated to the use of science to make public policy decisions. CSHL wishes to offer its tightly relevant, cross-cutting perspective to the court in its deliberations about the approval and scientific re-evaluation of a widely used pesticide with foreseeable public health impacts on all Canadians.
(3) Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court? Yes. Glyphosate was first approved for use in Canada in 1976 (noted on page 48 of glyphosate’s Re-evaluation Decision – RVD2017-01). Its first re-evaluation was commenced 39 years later in 2015, despite an express statutory deadline to commence this review by April 1, 2005 that was, presumably, communicated to PMRA long before the Pest Control Products Act received royal assent in 2002. This is an
83 important decision-making juncture that compels the court to decide whether the PMRA’s bias in favour of seller-sponsored studies and against studies published in peer-review journals is acceptable and whether the government wishes to defend that prejudice for the regulation of pesticides or for the formation of government policy more generally. The Court of Appeal is presently seized with a review of the decision by the lower court to deny the relief sought there: the appointment of an independent scientific Review Panel. CSHL proposes to bring to the attention of the Court of Appeal the bias explanation to help illuminate how the lower court’s decision was deprived information to inform its review of the Appellant’s formal objections to the PMRA decision. Bringing a separate action—such as an application for declaration of constitutional invalidity of the PMRA decision or request an extension of time and ask for judicial review of RVD 2017-01—is theoretically possible (and the door was left open for this by the lower court judge), it would be needlessly duplicative, would tax the resources of this and other courts and the Attorney General, and would be prohibitively expensive for the CHSL to mount alone. Presumably, joinder of an originating motion and an appeal would likely lead to unworkable complexities, despite the closely over- lapping issues and evidence. Access to justice favours CHSL intervening at the Federal Court of Appeal.
(4) Is the position of the proposed intervenor adequately defended by one of the parties to the case? No. While CHSL’s proposed contributions fall within the parameters of the issues raised by the appellant, CHSL has an important cross-cutting institutional expertise in public health, conflict of interest safeguards, product labelling, and international standard-setting that can help it offer insights into the implications of the Court of Appeal’s decision in the main appeal and in crafting its remedy if it decides to grant a corrective remedy.
84 (5) Are the interests of justice better served by the intervention of the proposed third party? Yes. CHSL proposes to assist the court in understanding the PMRA’s decision-making procedure respecting glyphosate in light of the standards set by Vavilov, the constitutional significance of the delay in initiating the review, the PMRA’s systemic bias in favour of seller- provided studies and against published peer-reviewed studies that amounts to a rejection of the scientifically based approach mandated by the Pest Control Products Act, and to situate and correct the record of the trial below about the relevance of scientific advice to product labelling and the regulatory status of glyphosate in OECD countries.
(6) Can the Court hear and decide the cause on its merits without the proposed intervenor? No. While CHSL’s has had the benefit of reading the draft appeal pleadings of the Appellant and Intervener Ecojustice, and lower court pleadings of the Respondent, and much of the Certified Tribunal Record. CHSL proposes to alert the Court to major failures of transparency in the PRMA’s decision-making beginning with its wholesale dismissal of respondents to its 2015 consultation on the re-evaluation of glyphosate in 2017 Glyphosate Re-Evaluation Decision, its failure to consider the vast majority of scientific research published in peer-reviewed journals, and continuing with its summary dismissal of all of the objections of all of all eight Objectors, including Safe Food Matters Inc. With the leave of this Court of Appeal, CSHL will adduce new evidence to particularize the scope and relevance of those failures that reveal a systematic effort, whether intentional or coincidental, for the glyphosate decision to fly under the radar and avoid curial review and public criticism.
18. Justice Stratas reflected on the test for intervention in 2019, stating in part, at paragraphs 8-11 of Atlas Tube Canada ULC v. Minister of National Revenue:
85 …we abhor policy advocacy of the sort practised by some Parliament Hill lobbyists and some interveners—submissions with unproven, contentious facts improperly smuggled amongst the rhetoric, pushing what they want the legislation to mean rather that what it authentically means…It also follows that we have no interest in made-up legislative purposes or purposes alien to the legislation. This is so even if we happen to like the purposes…There is another aspect to the interpretation and application of legislation on which good interveners can play a useful role….A frequently used tool in the interpretive process is to assess the likely effects or results of rival interpretations to see which accords most harmoniously with text, context and purpose. This is appropriate…This paves the way for another important role for some interveners: they may be well-placed to help us assess the likely effects or results of rival interpretations of a legislative provision because of their experience analyzing and working with it…. --Atlas Tube Canada ULC v. Minister of National Revenue, 2019 FCA 120 Available at: https://www.canlii.org/en/ca/fca/doc/2019/2019fca120/2019fca120.pdf
19. If granted leave to intervene, CHSL assures the Court of Appeal that its arguments in this appeal will advocate a law enforcement perspective, chiefly that the actions of the PMRA were contrary to its mandate from Parliament and that its administrative decision-making procedure and the analysis it provided to the Applicant fell short of the standards set-out by the Supreme Court of Canada in Vavilov and the Supreme Court precedents that informed it. Here, CHSL’s sole law-reform objective aims to urge the court to declare and particularize a constitutional standard for timely administrative decisions and assist the court in fashioning a remedy to mandate unbiased decision- making or pronounce that Parliament has accepted scientific reviews that are biased in favour of seller-applicants.
86 20. Likewise, Justice Stratus added:
[12] Finally, in granting interventions, we strive not to cause a marked numerical imbalance in favour of one side in the debate before the Court. Fairness is paramount. And so is the appearance of fairness. After the Court decides the motions for leave to intervene, the appeal should not look like a court-authorized gang-up against one side… -Atlas Tube Canada ULC v. Minister of National Revenue, 2019 FCA 120 Available at: https://www.canlii.org/en/ca/fca/doc/2019/2019fca120/2019fca120.pdf
21. CHSL submits that, in this case, it would be beyond the pale to conclude that two small non-profit organizations would pose an intimidating or otherwise prejudicial threat to Canada’s largest law firm, the Attorney General, in defence of the actions of a client agency that boasted 328 scientists in its report to Parliament. -PMRA 2018-2019 Report to Parliament excerpt at page 2
22. In his 2019 review of the law and practise of adjudicating applications for leave to intervene, Dr. Barry Bussey, General Counsel to the Canadian Council of Christian Charities, noted that most Canadian appeal courts (Ontario courts excepted) generously accept offers of intervention and that the Supreme Court of Canada admits 90% of applicants for intervener status, usually only denying those who apply late or offered analysis that is duplicative of parties or other interveners. Barry Bussey, “The Law of Intervention After the TWU Law School Case: Is Justice Seen to Be Done?” (2019) 90 Supreme Court Law Review 265-296 at 268 and 284-291. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3381257
87 23. While the possibility of CHSL successfully seeking leave to intervene at the Supreme Court of Canada may be high if the Appellant is not successful in the Court of Appeal and if the Appellant has the resources to persist to the next level, CHSL’s efforts to help this Court of Appeal widen its gaze to the implications of its decision can help ensure that Supreme Court of Canada review will not be necessary.
24. In summary, CHSL requests that it be granted leave to intervene because:
(a) The appeal raises justiciable issues of public interest. (b) CHSL can alert the Federal Court of Appeal to the risk that declining a meaningful remedy could be seen as condoning the PMRA’s biased consideration of seller- sponsored studies instead of scientific research studies published in peer-reviewed journals. (c) The PMRA displayed a cavalier disregard for a Parliamentary deadline for conducting its re-scientific re-evaluation of health and environmental risks of glyphosate all of which elevate these failure to the level of infringing the Charter section 7 right to life and security of persons. (d) The section 7 Charter issues are not yet represented by the parties and were not addressed at trial but could be raised by the Federal Court of Appeal on the basis of case law detailed below in the draft memorandum of fact and law. (e) CHSL'S proposed mode of intervention will not cause any unjustified delay or prejudice to the parties. (f) Any delay caused by the deliberations instigated by CHSL’s intervention will be justified to help answer important questions pertinent to public health, the rule of law, and conflict of interest safeguards in interpreting scientific research for public decision-making. (g) CHSL's perspective on and expertise in public health and the application of scientific principles and scientific research findings to law making, especially pertaining to public health and food, is unique and potentially helpful to the court in arriving at a just interpretation of what a scientifically based approach is, and whether PMRA met that interpretation the responsibilities and actions of the government in the approval of glyphosate for use as a pesticide in Canada.
88 (h) In light of the above, the interests of justice will be better served by granting CHSL leave to intervene. CHSL's participation will help ensure the Court has the benefit of full argument on the issues before it.
AN ADDITIONAL OR DIFFERENT TEST FOR LEAVE TO INTERVENE?
25. While the Rothmans/Bauer test for seeking leave to intervene in the Federal Court of Appeal were not mentioned in the Justice Stratas’s October 2020 decision in Canada (Attorney General) v. Kattenburg, 2020 FCA 164 (CanLII),
26. However, CHSL submits that it meets the additional (or new) four-part test namely:
a) What issues are live before the panel determining the proceeding? CHSL’s submissions are, with one exception, directly related to issues raised by the Appellant (transparency, labelling of glyphosate products, and dietary exposure to glyphosate) and the lower court on its own initiative (the regulatory status of glyphosate in OECD countries), though even this is an example of a failure of transparency because the source of the conclusions were either omitted or outdated. The one exception is a request for the Federal Court of Appeal panel to consider the constitutionality of the PMRA’s decade-long failure to meet a statute-impose deadline to initiate its scientific re-evaluation of glyphosate. CHSL does not intend to comment on other issues raised by the Appellant.
b) What does the moving party intend to submit in the proceeding? The moving party intends to alert the court to indicia of the PMRA’s fundamental
89 decision-making failures noted in response to question (a) above that are indicated in the certified appeal record but, are corroborated and particularized by fresh evidence. With the exception of the constitutional question, these issues were raised in the Appellant’s Objections and application for judicial review, but the Appellants’ concerns were summarily dismissed by the PMRA’s response, and dismissed or ignored again in the trial court.
c) Are the moving party’s submissions doomed to fail? When considering an intervention motion, the Court should not venture too deeply into the merits of issues that are for the panel…Issues that require new evidence and new evidence itself are also not admissible…: CHSL’s submissions bear on issues raised by the Appellant and advance important points about transparency of administrative decision-making that is required by the Supreme Court of Canada (in Vavilov) and the scientifically based approach that Parliament requires of PMRA. CHSL urges the motions justice to be circumspect about summarily dismissing interventions that alleged excessive secrecy of the administrative decision record and that PMRA’s summarily dismissed all of the Appellant’s Objections was merely a continuation of its summary dismissal of virtually all of the comments made during the 2015 consultation. While there is value in an Appeal Court motion’s judge insisting on the finality of lower court rulings and deferring to lower court determinations on the facts, CHSL submits that the trial court reviewed less that 2% of the record considered by the PMRA and the PMRA displayed a bias against peer-reviewed published scientific research, dismissing as much as 96% of it in favour of seller-sponsored studies. The Appeal court should be wary about strictly excluding evidence in a case where the vast majority has not been published or reviewed by any court lest the Court of Appeal become a rubber stamp on a largely secret administrative decision. It must be recalled that “success” in this case, is an expert review of a largely secret government decision record by an independent expert Review Panel to help
90 ensure that Canadians’ health is not put at risk in circumstances where there are copious indications of such a risk in the scientific literature and in U.S. jurisprudence.
d) Will the moving party’s arguable submissions advance the determination of the panel determining the appeal? The Court should exclude submissions that duplicate those of others. It should also exclude those that make political points without law, pronounce freestanding policy positions untethered to law, or offer submissions irrelevant to the legal task the Court must perform. CHSL has taken steps to avoid duplication and its success in doing so is obvious on the face of the pleadings. CHSL’s submissions flow directly from the application statutes, regulations, Charter of Rights and Freedoms, and caselaw. CHSL makes no attempt to champion adherents in the Federal Court of Appeal to any policy ideas that are not firmly rooted in the black letter of the law.
COSTS
27. If granted leave to intervene, CHSL will reserve its decision on whether to seek costs but asks that, owing to the public interest nature of its submissions and the vastly more secure and abundant resources of the Attorney General, Pest Management Regulatory Agency, and Minister of Health, that CHSL be insulated from adverse cost awards.
PART IV – ORDER SOUGHT
28. In summary, CHSL requests that it be granted leave to intervene because it is a public interest organization with a mandate and institutional expertise central to many of the issues raised in this appeal, there is no other reasonable or efficient way to bring its concerns to the attention of the court without prohibitively expensive and
91 duplicative proceedings, no other parties are addressing these aspects of the central issues, and that CHSL’s intervention will help the Federal Court of Appeal make a cogent and thoughtful decision with respect to the issues in front of the Court.
29. CHSL respectfully requests an order granting them leave to intervene in this appeal, pursuant to Rule 109 of the Federal Court Rules and any other status necessary to empower it to meaningfully request the Court of Appeal to adduce new evidence to help cure the extensive errors of transparency to date.
30. The Proposed Intervener Centre for Health Science and Law (CHSL) is granted leave to intervene in the appeal subject to the following terms:
a. The Solicitor’s affidavit of Bill Jeffery, in-house counsel to the Centre for Health Science and Law is accepted for this Motion. b. The Intervener Centre for Health Science and Law (CHSL) may serve and file a memorandum of fact and law up to 30 pages (including submissions on the Charter of Rights and Freedoms issues) within 21 days of the filing of the Appellant’s memorandum of fact and law or 21 days after the Federal Court of Appeal issues an order on the Intervenor’s Motion to admit new evidence, whichever is later. c. CHSL will a Motion for leave to admit new evidence on appeal in accord with the Federal Court Rules and with the leave of the court to particularize important deficiencies in the record, errors in the characterization of foreign law and failures of transparency, and, about the scope of evidence that has been ignored by the PMRA in making its decision. d. CHSL Law shall file its motion for leave to introduce new evidence 15 days after CHSL is granted leave to intervene. e. Should the hearing of the appeal proceed orally, the proposed intervener CHSL may make oral submissions on the issues for up to 30 minutes or such other amount of time as the Court may stipulate.
92 f. All parties to this appeal shall serve the Intervener Centre for Health Science and Law (CHSL) with any documents that are required to be served on parties. g. CHSL will accept service by way of electronic mail to the address [email protected] if such emails are confirmed by an email confirmation receipt. h. This Court allows this motion to be decided on the basis of written representations. i. CHSL, a small non-profit public interest litigant, shall not have costs awarded against, but may make submissions about seeking costs later in the proceedings at its own discretion.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 8th day of October 2020.
PROPOSED INTERVENER CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) P.O. BOX 4880, Station E Ottawa, ON, K1S 5J1 Bill Jeffery (LSN: 37605S) Executive Director and General Counsel Telephone No. (613) 565-2140 All Correspondence by email to [email protected] Counsel for the proposed intervener Centre for Health Science and Law (CHSL)
LIST OF AUTHORITIES:
Bauer Hockey Corp. v. Easton Sports Canada Inc., 2016 FCA 44.
Canada (Attorney General) v. Kattenburg, 2020 FCA 164 (CanLII),
93 Rothmans, Benson & Hedges Inc v Canada (AG) (TD), [1990] 1 FC 74.
Rothmans, Benson & Hedges Inc. v Canada (AG) (CA), [1990] 1 FC 90.
Teksavvy Solutions Inc v Bell Media Inc, 2020 FCA 108.
Barry Bussey, “The Law of Intervention After the TWU Law School Case: Is Justice Seen to Be Done?” (2019) 90 Supreme Court Law Review 2at 280. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3381257
94 Court File No. A-85-20 FEDERAL COURT OF APPEAL
BETWEEN SAFE FOOD MATTERS INC. Appellant AND ATTORNEY GENERAL OF CANADA Respondent APPLICATION UNDER s. 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
BOOK OF AUTHORITIES of the CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) in the Motion for leave to intervene (Pursuant to Rule 369)
PROPOSED INTERVENER CENTRE TO: ATTORNEY GENERAL OF CANADA FOR HEALTH SCIENCE AND LAW (on behalf of the Minister of Health and the Pest (CHSL) Mgmt. Regulatory Agency) P.O. BOX 4880, Station E Department of Justice Canada, ON Reg’l Off. Ottawa, ON, K1S 5J1 Department of Justice Canada Bill Jeffery (LSN: 37605S) 400-120 Adelaide St. W., Toronto, ON M5H lT1 Executive Director and General Counsel Per: Andrea Bourke (LSN: 45892K) Telephone No. (613) 565-2140 Tel: 647-256-7471; [email protected] All Correspondence by email to Elizabeth Koudys (LSN: 746444Q) [email protected] Tel: 647-256-7530 Counsel for the proposed intervener [email protected] Centre for Health Science and Law (CHSL) Counsel for the Respondent AND TO: SAFE FOOD MATTERS INC. AND TO: COUNSEL FOR THE Andrea Gonsalves (LSN: 52532E) INTERVENER ECOJUSITCE STOCKWOODS LLP Barristers Laura Bowman (LSN: 53645K) Toronto-Dominion Centre TD North Tower, [email protected] and Box 140, 77 King St. W, Suite 4130 Ian Miron (LSN: 63445O) Toronto ON M5K lHl [email protected] Tel: 416-593-3497 Fax: 416-593-9345 1910-777 Bay St, Box 106, TO, ON M5G 2C8 [email protected] T: 416-368-7533 (exts. 522 and 540, respectively Counsel for the Appellant
95 TAB XX AUTHORITES Federal Rules of Court, SOR 98-106 (excerpt)
96
This is Exhibit B referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits CANADA
CONSOLIDATION CODIFICATION
Federal Courts Rules Règles des Cours fédérales
SOR/98-106 DORS/98-106
Current to June 28, 2020 À jour au 28 juin 2020
Last amended on June 17, 2019 Dernière modification le 17 juin 2019
Published by the Minister of Justice at the following address: Publié par le ministre de la Justice à l’adresse suivante : http://laws-lois.justice.gc.ca http://lois-laws.justice.gc.ca 97 Federal Courts Rules Règles des Cours fédérales PART 3 Rules Applicable to All Proceedings PARTIE 3 Règles applicables à toutes les instances Court Documents Documents de la Cour Form Forme Sections 69-70 Articles 69-70
Notice of constitutional question Avis d’une question constitutionnelle 69 A notice of a constitutional question referred to in 69 L’avis d’une question constitutionnelle visé à l’article section 57 of the Act shall be in Form 69. 57 de la Loi est rédigé selon la formule 69.
Memorandum of fact and law Mémoire des faits et du droit 70 (1) A memorandum of fact and law shall contain, in 70 (1) Le mémoire exposant les faits et le droit est consecutively numbered paragraphs, constitué des parties suivantes et comporte des para- graphes numérotés consécutivement : (a) a concise statement of fact, as Part I of the memo- randum; a) partie I : un exposé concis des faits;
(b) a statement of the points in issue, as Part II of the b) partie II : les points en litige; memorandum; c) partie III : un exposé concis des propositions; (c) a concise statement of submissions, as Part III of the memorandum; d) partie IV : un énoncé concis de l’ordonnance de- mandée, y compris toute demande visant les dépens; (d) a concise statement of the order sought, including any order concerning costs, as Part IV of the memo- e) partie V : la liste de la jurisprudence et de la doc- randum; trine qui seront invoquées;
(e) a list of the authorities to be referred to, as Part V f) sauf dans le cas d’un appel, annexe A : les extraits of the memorandum; pertinents des lois ou règlements invoqués, à moins qu’ils ne figurent déjà dans le mémoire d’une autre (f) in a proceeding other than an appeal, the provi- partie; sions of any statutes or regulations cited or relied on that have not been reproduced in another party’s g) sauf dans le cas d’un appel, annexe B : le cahier de memorandum, as Appendix A to the memorandum; la jurisprudence et la doctrine qui seront invoquées, à and moins qu’ils ne figurent déjà dans le cahier d’une autre partie. (g) in a proceeding other than an appeal, a book of the authorities to be referred to that have not been includ- ed in another party’s book of authorities, as Appendix B to the memorandum.
Enactments in both official languages Reproduction dans les langues officielles (2) Extracts of federal statutes and regulations in Ap- (2) Les extraits des lois et règlements fédéraux qui sont pendix A to a memorandum of fact and law shall be re- reproduits dans l’annexe A du mémoire sont dans les produced in both official languages. deux langues officielles.
Appendices Annexes (3) If a memorandum of fact and law is filed in paper (3) Les annexes d’un mémoire déposé en copie papier copy, the appendices may be bound separately from the peuvent être reliées séparément de celui-ci. memorandum.
Length Longueur du mémoire (4) Unless otherwise ordered by the Court, a memoran- (4) Sauf ordonnance contraire de la Cour, le mémoire ne dum of fact and law, exclusive of Part V and appendices, peut contenir plus de trente pages, abstraction faite de sa shall not exceed 30 pages in length. partie V et des annexes. SOR/2002-417, s. 9; SOR/2015-21, s. 10. DORS/2002-417, art. 9; DORS/2015-21, art. 10.
Current to June 28, 2020 9828 À jour au 28 juin 2020 Last amended on June 17, 2019 Dernière modification le 17 juin 2019 Federal Courts Rules Règles des Cours fédérales PART 3 Rules Applicable to All Proceedings PARTIE 3 Règles applicables à toutes les instances Affidavit Evidence and Examinations Preuve par affidavit et interrogatoires Affidavits Affidavits Sections 81-87 Articles 81-87
Affidavits on belief Poids de l’affidavit (2) Where an affidavit is made on belief, an adverse in- (2) Lorsqu’un affidavit contient des déclarations fondées ference may be drawn from the failure of a party to pro- sur ce que croit le déclarant, le fait de ne pas offrir le té- vide evidence of persons having personal knowledge of moignage de personnes ayant une connaissance person- material facts. nelle des faits substantiels peut donner lieu à des conclu- SOR/2009-331, s. 2. sions défavorables. DORS/2009-331, art. 2.
Use of solicitor’s affidavit Utilisation de l’affidavit d’un avocat 82 Except with leave of the Court, a solicitor shall not 82 Sauf avec l’autorisation de la Cour, un avocat ne peut both depose to an affidavit and present argument to the à la fois être l’auteur d’un affidavit et présenter à la Cour Court based on that affidavit. des arguments fondés sur cet affidavit.
Cross-examination on affidavits Droit au contre-interrogatoire 83 A party to a motion or application may cross-exam- 83 Une partie peut contre-interroger l’auteur d’un affi- ine the deponent of an affidavit served by an adverse par- davit qui a été signifié par une partie adverse dans le ty to the motion or application. cadre d’une requête ou d’une demande.
When cross-examination may be made Contre-interrogatoire de l’auteur d’un affidavit 84 (1) A party seeking to cross-examine the deponent of 84 (1) Une partie ne peut contre-interroger l’auteur an affidavit filed in a motion or application shall not do d’un affidavit déposé dans le cadre d’une requête ou so until the party has served on all other parties every af- d’une demande à moins d’avoir signifié aux autres parties fidavit on which the party intends to rely in the motion or chaque affidavit qu’elle entend invoquer dans le cadre de application, except with the consent of all other parties or celle-ci, sauf avec le consentement des autres parties ou with leave of the Court. l’autorisation de la Cour.
Filing of affidavit after cross-examination Dépôt d’un affidavit après le contre-interrogatoire (2) A party who has cross-examined the deponent of an (2) La partie qui a contre-interrogé l’auteur d’un affida- affidavit filed in a motion or application may not subse- vit déposé dans le cadre d’une requête ou d’une demande quently file an affidavit in that motion or application, ex- ne peut par la suite déposer un affidavit dans le cadre de cept with the consent of all other parties or with leave of celle-ci, sauf avec le consentement des autres parties ou the Court. l’autorisation de la Cour.
Due diligence Diligence raisonnable 85 A party who intends to cross-examine the deponent 85 Le contre-interrogatoire de l’auteur d’un affidavit est of an affidavit shall do so with due diligence. effectué avec diligence raisonnable.
Transcript of cross-examination on affidavit Transcription d’un contre-interrogatoire 86 Unless the Court orders otherwise, a party who con- 86 Sauf ordonnance contraire de la Cour, la partie qui ducts a cross-examination on an affidavit shall order and effectue un contre-interrogatoire concernant un affidavit pay for a transcript thereof and send a copy to each other doit en demander la transcription, en payer les frais et en party. transmettre une copie aux autres parties. Examinations out of Court Interrogatoires hors cour
General Dispositions générales
Definition of examination Définition de interrogatoire 87 In rules 88 to 100, examination means 87 Dans les règles 88 à 100, interrogatoire s’entend, se- lon le cas : (a) an examination for discovery; a) d’un interrogatoire préalable; (b) the taking of evidence out of court for use at trial;
Current to June 28, 2020 9934 À jour au 28 juin 2020 Last amended on June 17, 2019 Dernière modification le 17 juin 2019 Federal Courts Rules Règles des Cours fédérales PART 3 Rules Applicable to All Proceedings PARTIE 3 Règles applicables à toutes les instances Joinder, Intervention and Parties Réunion de causes d’action, jonction de parties, interventions et parties Joinder Réunion de causes d’action et jonction de parties Sections 107-109 Articles 107-109
Separate determination of issues Instruction distincte des questions en litige 107 (1) The Court may, at any time, order the trial of an 107 (1) La Cour peut, à tout moment, ordonner l’ins- issue or that issues in a proceeding be determined sepa- truction d’une question soulevée ou ordonner que les rately. questions en litige dans une instance soient jugées sépa- rément.
Court may stipulate procedure Ordonnance de la Cour (2) In an order under subsection (1), the Court may give (2) La Cour peut assortir l’ordonnance visée au para- directions regarding the procedures to be followed, in- graphe (1) de directives concernant les procédures à cluding those applicable to examinations for discovery suivre, notamment pour la tenue d’un interrogatoire and the discovery of documents. préalable et la communication de documents. Interpleader Interplaidoirie
Interpleader Interplaidoirie 108 (1) Where two or more persons make conflicting 108 (1) Lorsque deux ou plusieurs personnes font valoir claims against another person in respect of property in des réclamations contradictoires contre une autre per- the possession of that person and that person sonne à l’égard de biens qui sont en la possession de celle-ci, cette dernière peut, par voie de requête ex parte, (a) claims no interest in the property, and demander des directives sur la façon de trancher ces ré- clamations, si : (b) is willing to deposit the property with the Court or dispose of it as the Court directs, a) d’une part, elle ne revendique aucun droit sur ces that person may bring an ex parte motion for directions biens; as to how the claims are to be decided. b) d’autre part, elle accepte de remettre les biens à la Cour ou d’en disposer selon les directives de celle-ci.
Directions Directives (2) On a motion under subsection (1), the Court shall (2) Sur réception de la requête visée au paragraphe (1), give directions regarding la Cour donne des directives concernant :
(a) notice to be given to possible claimants and adver- a) l’avis à donner aux réclamants éventuels et la pu- tising for claimants; blicité pertinente;
(b) the time within which claimants shall be required b) le délai de dépôt des réclamations; to file their claims; and c) la procédure à suivre pour décider des droits des (c) the procedure to be followed in determining the réclamants. rights of the claimants. Intervention Interventions
Leave to intervene Autorisation d’intervenir 109 (1) The Court may, on motion, grant leave to any 109 (1) La Cour peut, sur requête, autoriser toute per- person to intervene in a proceeding. sonne à intervenir dans une instance.
Contents of notice of motion Avis de requête (2) Notice of a motion under subsection (1) shall (2) L’avis d’une requête présentée pour obtenir l’autori- sation d’intervenir : (a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposed a) précise les nom et adresse de la personne qui désire intervener; and intervenir et ceux de son avocat, le cas échéant;
Current to June 28, 2020 10042 À jour au 28 juin 2020 Last amended on June 17, 2019 Dernière modification le 17 juin 2019 Federal Courts Rules Règles des Cours fédérales PART 3 Rules Applicable to All Proceedings PARTIE 3 Règles applicables à toutes les instances Joinder, Intervention and Parties Réunion de causes d’action, jonction de parties, interventions et parties Intervention Interventions Sections 109-111.2 Articles 109-111.2
(b) describe how the proposed intervener wishes to b) explique de quelle manière la personne désire par- participate in the proceeding and how that participa- ticiper à l’instance et en quoi sa participation aidera à tion will assist the determination of a factual or legal la prise d’une décision sur toute question de fait et de issue related to the proceeding. droit se rapportant à l’instance.
Directions Directives de la Cour (3) In granting a motion under subsection (1), the Court (3) La Cour assortit l’autorisation d’intervenir de direc- shall give directions regarding tives concernant :
(a) the service of documents; and a) la signification de documents;
(b) the role of the intervener, including costs, rights of b) le rôle de l’intervenant, notamment en ce qui appeal and any other matters relating to the procedure concerne les dépens, les droits d’appel et toute autre to be followed by the intervener. question relative à la procédure à suivre. Questions of General Importance Question d’importance générale
Notice to Attorney General Signification au procureur général 110 Where a question of general importance is raised in 110 Lorsqu’une question d’importance générale, autre a proceeding, other than a question referred to in section qu’une question visée à l’article 57 de la Loi, est soulevée 57 of the Act, dans une instance :
(a) any party may serve notice of the question on the a) toute partie peut signifier un avis de la question au Attorney General of Canada and any attorney general procureur général du Canada et au procureur général of a province who may be interested; de toute province qui peut être intéressé;
(b) the Court may direct the Administrator to bring b) la Cour peut ordonner à l’administrateur de porter the proceeding to the attention of the Attorney Gener- l’instance à l’attention du procureur général du al of Canada and any attorney general of a province Canada et du procureur général de toute province qui who may be interested; and peut être intéressé;
(c) the Attorney General of Canada and the attorney c) le procureur général du Canada et le procureur gé- general of a province may apply for leave to intervene. néral de toute province peuvent demander l’autorisa- tion d’intervenir. Parties Parties
Unincorporated associations Associations sans personnalité morale 111 A proceeding may be brought by or against an unin- 111 Une instance peut être introduite par ou contre une corporated association in the name of the association. association sans personnalité morale, en son nom.
Partnerships Société de personnes 111.1 A proceeding by or against two or more persons 111.1 Une instance introduite par ou contre deux ou as partners may be brought in the name of the partner- plusieurs personnes en qualité d’associées peut l’être au ship. nom de la société de personnes. SOR/2002-417, s. 11. DORS/2002-417, art. 11.
Sole proprietorships Entreprise non dotée de la personnalité morale 111.2 A proceeding by or against a person carrying on 111.2 Une instance introduite par ou contre une per- business as a sole proprietor may be brought in the name sonne qui exploite une entreprise à propriétaire unique of the sole proprietorship. non dotée de la personnalité morale peut l’être au nom SOR/2002-417, s. 11. de l’entreprise. DORS/2002-417, art. 11.
Current to June 28, 2020 10143 À jour au 28 juin 2020 Last amended on June 17, 2019 Dernière modification le 17 juin 2019 TAB XX AUTHORITES Review Panel Regulations, SOR 2008-22.
102 CANADA
CONSOLIDATION CODIFICATION
Review Panel Regulations Règlement sur les commissions d’examen
SOR/2008-22 DORS/2008-22
Current to February 26, 2020 À jour au 26 février 2020
Published by the Minister of Justice at the following address: Publié par le ministre de la Justice à l’adresse suivante : http://laws-lois.justice.gc.ca http://lois-laws.justice.gc.ca
103 OFFICIAL STATUS CARACTÈRE OFFICIEL OF CONSOLIDATIONS DES CODIFICATIONS
Subsections 31(1) and (3) of the Legislation Revision and Les paragraphes 31(1) et (3) de la Loi sur la révision et la Consolidation Act, in force on June 1, 2009, provide as codification des textes législatifs, en vigueur le 1er juin follows: 2009, prévoient ce qui suit :
Published consolidation is evidence Codifications comme élément de preuve 31 (1) Every copy of a consolidated statute or consolidated 31 (1) Tout exemplaire d'une loi codifiée ou d'un règlement regulation published by the Minister under this Act in either codifié, publié par le ministre en vertu de la présente loi sur print or electronic form is evidence of that statute or regula- support papier ou sur support électronique, fait foi de cette tion and of its contents and every copy purporting to be pub- loi ou de ce règlement et de son contenu. Tout exemplaire lished by the Minister is deemed to be so published, unless donné comme publié par le ministre est réputé avoir été ainsi the contrary is shown. publié, sauf preuve contraire.
... [...]
Inconsistencies in regulations Incompatibilité — règlements (3) In the event of an inconsistency between a consolidated (3) Les dispositions du règlement d'origine avec ses modifica- regulation published by the Minister under this Act and the tions subséquentes enregistrées par le greffier du Conseil pri- original regulation or a subsequent amendment as registered vé en vertu de la Loi sur les textes réglementaires l'emportent by the Clerk of the Privy Council under the Statutory Instru- sur les dispositions incompatibles du règlement codifié publié ments Act, the original regulation or amendment prevails to par le ministre en vertu de la présente loi. the extent of the inconsistency.
LAYOUT MISE EN PAGE
The notes that appeared in the left or right margins are Les notes apparaissant auparavant dans les marges de now in boldface text directly above the provisions to droite ou de gauche se retrouvent maintenant en carac- which they relate. They form no part of the enactment, tères gras juste au-dessus de la disposition à laquelle but are inserted for convenience of reference only. elles se rattachent. Elles ne font pas partie du texte, n’y figurant qu’à titre de repère ou d’information.
NOTE NOTE
This consolidation is current to February 26, 2020. Any Cette codification est à jour au 26 février 2020. Toutes amendments that were not in force as of February 26, modifications qui n'étaient pas en vigueur au 26 février 2020 are set out at the end of this document under the 2020 sont énoncées à la fin de ce document sous le titre heading “Amendments Not in Force”. « Modifications non en vigueur ».
Current to February 26, 2020104 À jour au 26 février 2020 TABLE OF PROVISIONS TABLE ANALYTIQUE
Review Panel Regulations Règlement sur les commissions d’examen
1 Interpretation 1 Définitions
2 Notice of Objection 2 Avis d’opposition
3 Establishing Review Panels 3 Constitution des commissions d’examen
4 Review Panel Composition 4 Composition des commissions d’examen
7 Removal of Member 7 Révocation d’un membre
9 Expenses 9 Frais
10 Security Measures 10 Consignes de sécurité
11 Coming into Force 11 Entrée en vigueur
Current to February 26, 2020 105iii À jour au 26 février 2020 Registration Enregistrement SOR/2008-22 January 31, 2008 DORS/2008-22 Le 31 janvier 2008
PEST CONTROL PRODUCTS ACT LOI SUR LES PRODUITS ANTIPARASITAIRES
Review Panel Regulations Règlement sur les commissions d’examen
P.C. 2008-178 January 31, 2008 C.P. 2008-178 Le 31 janvier 2008
Her Excellency the Governor General in Council, on Sur recommandation du ministre de la Santé et en the recommendation of the Minister of Health, pur- vertu du paragraphe 67(1) de la Loi sur les produits suant to subsection 67(1) of the Pest Control Products antiparasitairesa, Son Excellence la Gouverneure gé- Acta, hereby makes the annexed Review Panel Regu- nérale en conseil prend le Règlement sur les commis- lations. sions d’examen, ci-après.
a a S.C. 2002, c. 28 L.C. 2002, ch. 28
Current to February 26, 2020106 À jour au 26 février 2020 Review Panel Regulations Règlement sur les commissions d’examen
Interpretation Définitions
1 The following definitions apply in these Regulations. 1 Les définitions qui suivent s’appliquent au présent rè- glement. Act means the Pest Control Products Act. (Loi) Loi La Loi sur les produits antiparasitaires. (Act) objector means a person who objects to a decision re- ferred to in paragraph 28(1)(a) or (b) of the Act and who mandat À l’égard d’une commission d’examen, mandat files a notice of objection under section 35 of the Act. fixé en vertu du paragraphe 35(6) de la Loi. (terms of (opposant) reference) participant means, in the context of a review panel hear- opposant Personne qui s’oppose à la décision visée aux ing, an objector or a person who makes representations alinéas 28(1)a) ou b) de la Loi et qui dépose un avis d’op- under subsection 35(7) of the Act. (participant) position conformément à l’article35 de la Loi. objector( ) terms of reference means, with regard to a review pan- participant Dans le cadre d’une audience devant la com- el, the terms of reference determined under subsection mission d’examen, opposant ou personne qui présente 35(6) of the Act. (mandat) ses observations aux termes du paragraphe35 (7) de la Loi. (participant) Notice of Objection Avis d’opposition
2 A notice of objection referred to in subsection 35(1) of 2 L’avis d’opposition visé au paragraphe 35(1) de la Loi the Act shall include comporte les éléments suivants :
(a) the name and address of the objector or, if the ob- a) les nom et adresse de l’opposant ou, s’il s’agit d’une jector is a corporation, its corporate name and any personne morale, sa dénomination sociale ou tout other name registered with a province by which the autre nom enregistré dans une province sous lequel il objector identifies itself; s’identifie;
(b) the decision to which the notice relates and the b) la décision contestée par l’avis d’opposition et la date on which the decision was made; date où celle-ci a été prise;
(c) the scientific basis for the objection to the evalua- c) les fondements scientifiques de l’opposition aux tions, on which the decision was based, of the health évaluations qui ont été faites de la valeur du produit and environmental risks and the value of the pest con- antiparasitaire etou des risques sanitaires et environ- trol product; and nementaux qu’il présente et qui ont mené à la décision contestée; (d) the evidence to support the objection, including scientific reports or test data. d) les preuves à l’appui de l’opposition, notamment des rapports scientifiques et des données d’essai. Establishing Review Panels Constitution des commissions d’examen
3 The Minister shall take the following factors into ac- 3 Le ministre prend en compte les facteurs ci-après pour count in determining whether it is necessary to establish déterminer s’il y a lieu de constituer une commission a review panel: d’examen :
Current to February 26, 2020 1071 À jour au 26 février 2020 Review Panel Regulations Règlement sur les commissions d’examen Establishing Review Panels Constitution des commissions d’examen Sections 3-6 Articles 3-6
(a) whether the information in the notice of objection a) l’avis d’opposition soulève un doute, sur la base de raises scientifically founded doubt as to the validity of renseignements fondés scientifiquement, quant à la the evaluations, on which the decision was based, of validité des évaluations qui ont été faites de la valeur the health and environmental risks and the value of du produit antiparasitaire et des risques sanitaires et the pest control product; and environnementaux qu’il présente et qui ont mené à la décision contestée; (b) whether the advice of expert scientists would as- sist in addressing the subject matter of the objection. b) l’obtention de l’avis de scientifiques serait suscep- tible de favoriser le règlement de l’objet de l’opposi- tion. Review Panel Composition Composition des commissions d’examen
4 If the Minister determines that it is necessary to estab- 4 Si le ministre décide de constituer une commission lish a review panel of one or more persons, each person d’examen composée d’une ou de plusieurs personnes, il selected by the Minister shall choisit chacune d’elles en fonction des critères suivants :
(a) possess scientific knowledge that allows them to a) elle possède des connaissances scientifiques de na- evaluate the subject matter of the objection; ture à lui permettre d’évaluer l’objet de l’opposition;
(b) not have been employed in any department, in any b) elle n’a, dans l’année précédant sa nomination division or branch of the federal public administra- comme membre de la commission d’examen, été em- tion, in any corporation or in any parent Crown corpo- ployée dans aucun ministère ou secteur de l’adminis- ration as set out, respectively, in Schedules I, I.1, II tration publique ni au sein d’aucune personne morale and III to the Financial Administration Act, within ou société d’État mère respectivement visés aux an- one year before the day on which they are appointed nexes I, I.1, II ou III de la Loi sur la gestion des fi- to the review panel; nances publiques;
(c) have provided the Minister with a written state- c) elle a fourni au ministre une déclaration écrite por- ment indicating that they are free from any actual or tant qu’elle n’est pas en conflit d’intérêts réel ou po- potential conflict of interest that relates to the decision tentiel par rapport à la décision contestée ; under review; and d) elle s’est engagée par écrit à signaler sans délai au (d) have undertaken in writing to disclose to the Min- ministre, également par écrit , tout conflit d’intérêts ister in writing, without delay, any actual or potential réel ou potentiel susceptible de survenir dans le cadre conflict of interest that may arise and affect their du- de ses fonctions à titre de membre de la commission. ties as a member of the review panel.
5 (1) If the review panel is made up of one member, that 5 (1) Si la commission d’examen est composée d’un seul member is the chairperson and if it is made up of more membre, celui-ci en est d’office le président; si elle en than one member, the chairperson is the member desig- compte plusieurs, le ministre désigne l’un d’eux à ce titre. nated by the Minister.
(2) The chairperson shall preside at review panel hear- (2) Le président préside les audiences de la commission ings and shall direct and manage the activities of the re- d’examen, dirige et gère les activités de celle-ci, dans les view panel within the terms of reference and in accor- limites du mandat fixé et conformément à la procédure dance with any procedure determined under subsection d’examen prévue en vertu du paragraphe 35(6) de la Loi. 35(6) of the Act.
6 The Minister shall designate another member of the 6 En cas d’absence ou d’empêchement du président, le review panel to act in the place of the chairperson if the ministre désigne un autre membre de la commission chairperson is absent or unable to act. d’examen pour exercer cette charge.
Current to February 26, 2020 1082 À jour au 26 février 2020 Review Panel Regulations Règlement sur les commissions d’examen Removal of Member Révocation d’un membre Sections 7-10 Articles 7-10
Removal of Member Révocation d’un membre
7 The Minister shall remove a review panel member at 7 Le ministre retire un membre de la commission d’exa- the member’s request or if men à la demande de celui-ci ou le révoque si, selon le cas : (a) the member does not satisfy the criteria in section 4; a) le membre ne satisfait pas aux critères prévus à l’article 4; (b) the member refuses or is unable to carry out their responsibilities within a reasonable time; b) le membre refuse de s’acquitter de ses responsabi- lités ou ne peut le faire dans un délai raisonnable; (c) there are reasonable grounds to believe that the removal is necessary to ensure the objectivity of the c) le ministre a des motifs raisonnables de croire que review panel; or le retrait ou la révocation est nécessaire pour assurer l’objectivité de la commission; (d) the member is employed in a department, in a di- vision or branch of the federal public administration, d) le membre est employé dans un ministère, un sec- in a corporation or in a parent Crown corporation as teur de l’administration publique, au sein d’une per- set out, respectively, in Schedules I, I.1, II and III to sonne morale ou au sein d’une société d’État mère res- the Financial Administration Act. pectivement visés aux annexes I, I.1, II ou III de la Loi sur la gestion des finances publiques.
8 If a person is removed from the review panel, the Min- 8 En cas de retrait ou de révocation d’un membre de la ister shall select as a replacement another person who commission d’examen, le ministre choisit une autre per- satisfies the criteria in section 4 unless the Minister has sonne en fonction des critères prévus à l’article 4 , à reasonable grounds to believe that the review may be moins qu’il ait des motifs raisonnables de croire que les completed by the remaining members. membres restants soient en mesure de terminer l’exa- men. Expenses Frais
9 Each member of a review panel shall, in accordance 9 Les membres de la commission d’examen ont droit, with any applicable Treasury Board directives, be paid conformément aux lignes directrices du Conseil du Tré- reasonable travel and living expenses that are incurred sor, à des indemnités de déplacement et de séjour pour by them while performing their functions away from les frais engagés par eux dans l’exercice de leurs fonc- their ordinary place of residence. tions hors de leur lieu de résidence habituelle. Security Measures Consignes de sécurité
10 (1) As a security measure under subsection 44(6) of 10 (1) À titre de consigne de sécurité aux termes du pa- the Act, only participants in a review panel hearing are ragraphe 44(6) de la Loi, seuls les participants à une au- permitted to be present while information referred to in dience devant la commission d’examen ont le droit d’être that subsection to which the public may not have access présents lorsque sont considérés les renseignements vi- under subsection 42(4) of the Act and may not inspect sés au paragraphe 44(6) de la Loi, auxquels le public ne under section 43 of the Act is being considered at the peut avoir accès aux termes du paragraphe 42(4) de la Loi hearing. et qui ne peuvent être consultés aux termes de l’article 43 de la Loi.
(2) A participant in a hearing shall submit to the review (2) Tout participant à l’audience soumet à la commission panel an affidavit made under oath or a statutory decla- un affidavit — ou une déclaration solennelle faite aux ration under the Canada Evidence Act made before a termes de la Loi sur la preuve au Canada — reçu devant commissioner for oaths or for taking affidavits stating tout commissaire compétent dans lequel il atteste qu’il that the person undertakes s’engage :
Current to February 26, 2020 1093 À jour au 26 février 2020 Review Panel Regulations Règlement sur les commissions d’examen Security Measures Consignes de sécurité Sections 10-11 Articles 10-11
(a) not to disclose the information referred to in sub- a) à ne pas communiquer les renseignements visés au section (1) to any other person; and paragraphe (1) à un tiers;
(b) not to use it for any purpose other than for partici- b) à n’utiliser les renseignements que pour les besoins pation in the hearing. de sa participation à l’audience. Coming into Force Entrée en vigueur
11 These Regulations come into force on the day on 11 Le présent règlement entre en vigueur à la date de which they are registered. son enregistrement.
Current to February 26, 2020 1104 À jour au 26 février 2020 TAB XX AUTHORITES Pest Control Products Act, S.C. 2002, c. 28 (excerpt)
111 CANADA
CONSOLIDATION CODIFICATION
Pest Control Products Act Loi sur les produits antiparasitaires
S.C. 2002, c. 28 L.C. 2002, ch. 28
Current to February 26, 2020 À jour au 26 février 2020
Last amended on July 12, 2019 Dernière modification le 12 juillet 2019
Published by the Minister of Justice at the following address: Publié par le ministre de la Justice à l’adresse suivante : http://laws-lois.justice.gc.ca http://lois-laws.justice.gc.ca 112 Pest Control Products Produits antiparasitaires Interpretation Définitions et interprétation Section 2 Article 2
environmental risk, in respect of a pest control product, étiquette Sont assimilés aux étiquettes les textes écrits means the possibility of harm to the environment, in- ou imprimés ou représentations graphiques : cluding its biological diversity, resulting from exposure to or use of the product, taking into account its conditions a) qui sont placés ou à placer sur ou dans un embal- or proposed conditions of registration. (risque environ- lage ou sur un produit antiparasitaire, qui les accom- nemental) pagnent ou sont destinés à les accompagner;
formulant means any component of a pest control prod- b) qui font partie d’un produit antiparasitaire et qui uct that is added intentionally to the product and that is sont transmis électroniquement, en conformité avec not an active ingredient. (formulant) les règlements. (label)
government policy means the Toxic Substances Man- fabrication Sont assimilés à la fabrication la production, agement Policy issued by the Government of Canada in la formulation, l’emballage, l’étiquetage et la préparation June, 1995, as long as it remains in effect, and any other aux fins de distribution ou d’utilisation. (manufacture) policies of the Government of Canada that are pre- scribed. (politique gouvernementale) formulant Composant d’un produit antiparasitaire qui y est ajouté intentionnellement et qui n’est pas un principe health risk, in respect of a pest control product, means actif. (formulant) the possibility of harm to human health resulting from exposure to or use of the product, taking into account its inspecteur Individu nommé ou désigné à ce titre en ap- conditions or proposed conditions of registration. plication de l’article 45. (inspector) (risque sanitaire) lieu Y est assimilé tout moyen de transport. (place) inspector means an individual who is appointed or des- lieu de travail ignated as an inspector under section 45. (inspecteur) Tout lieu où un individu travaille contre rémunération. (workplace) label includes any written, printed or graphic matter ministre Le ministre de la Santé. Minister ( ) (a) that is or is to be applied or attached to or includ- parasite ed in, or that accompanies or is to accompany, a pest Animal, plante ou autre organisme qui est, di- control product or a package; or rectement ou non, nuisible, nocif ou gênant, ainsi que toute fonction organique ou condition nuisible, nocive ou (b) that belongs to a pest control product and is trans- gênante d’un animal, d’une plante ou d’un autre orga- mitted electronically, in accordance with the regula- nisme. (pest) tions. (étiquette) pénalité Sanction administrative pécuniaire infligée manufacture includes produce, formulate, package, la- pour une violation au titre de laLoi sur les sanctions ad- bel and prepare for distribution or use. (fabrication) ministratives pécuniaires en matière d’agriculture et d’agroalimentaire. (penalty) Minister means the Minister of Health. (ministre) personne Sa Majesté, un individu ou uneorganisation package includes a container, wrapping, covering or au sens de l’article 2 du Code criminel. Ces notions sont holder in which a pest control product is wholly or partly visées dans des formulations générales, impersonnelles contained, placed or packed. (emballage) ou comportant des pronoms ou adjectifs indéfinis. per- ( son) penalty means an administrative monetary penalty im- posed under the Agriculture and Agri-Food Administra- politique gouvernementale La Politique de gestion des tive Monetary Penalties Act for a violation. (pénalité) substances toxiques, publiée par le gouvernement du Canada en juin 1995, aussi longtemps qu’elle demeure en person means Her Majesty, an individual or an organi- vigueur, et les autres politiques du gouvernement du zation as defined in section 2 of the Criminal Code. (per- Canada prévues par règlement. (government policy) sonne) principe actif Composant d’un produit antiparasitaire pest means an animal, a plant or other organism that is auquel les effets recherchés sont attribués, y compris un injurious, noxious or troublesome, whether directly or in- synergiste. Ne sont pas visés par la présente définition les directly, and an injurious, noxious or troublesome solvants, diluants, émulsifiants ou autres composants qui
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(a) any contravention of any provision of this Act or of c) des conséquences de son utilisation sur l’économie a regulation made under this Act; and et la société de même que de ses avantages pour la santé, la sécurité et l’environnement. (value) (b) any refusal or neglect to perform any duty im- posed by or under this Act. (violation) violation Toute contravention à une disposition de la présente loi ou des règlements, ou tout refus ou omission workplace means a place where an individual works for d’accomplir une obligation imposée sous le régime de la remuneration. (lieu de travail) présente loi, punissables au titre de la Loi sur les sanc- tions administratives pécuniaires en matière d’agricul- ture et d’agroalimentaire. (violation)
Acceptable risks Risques acceptables (2) For the purposes of this Act, the health or environ- (2) Pour l’application de la présente loi, les risques sani- mental risks of a pest control product are acceptable if taires ou environnementaux d’un produit antiparasitaire there is reasonable certainty that no harm to human sont acceptables s’il existe une certitude raisonnable health, future generations or the environment will result qu’aucun dommage à la santé humaine, aux générations from exposure to or use of the product, taking into ac- futures ou à l’environnement ne résultera de l’exposition count its conditions or proposed conditions of registra- au produit ou de l’utilisation de celui-ci, compte tenu des tion. conditions d’homologation proposées ou fixées. 2002, c. 28, s. 2; 2016, c. 9, s. 33. 2002, ch. 28, art. 2; 2016, ch. 9, art. 33. Her Majesty Sa Majesté
Binding on Her Majesty Obligation de Sa Majesté 3 This Act is binding on Her Majesty in right of Canada 3 La présente loi lie Sa Majesté du chef du Canada ou or a province. d’une province. Mandate Mission
Primary objective Objectif premier 4 (1) In the administration of this Act, the Minister’s 4 (1) Pour l’application de la présente loi, le ministre a primary objective is to prevent unacceptable risks to indi- comme objectif premier de prévenir les risques inaccep- viduals and the environment from the use of pest control tables pour les individus et l’environnement que présente products. l’utilisation des produits antiparasitaires.
Ancillary objectives Objectifs connexes (2) Consistent with, and in furtherance of, the primary (2) À cet égard, le ministre doit : objective, the Minister shall a) promouvoir le développement durable, soit un dé- (a) support sustainable development designed to en- veloppement qui permet de répondre aux besoins du able the needs of the present to be met without com- présent sans compromettre la possibilité pour les gé- promising the ability of future generations to meet nérations futures de satisfaire les leurs; their own needs; b) tenter de réduire au minimum les risques sani- (b) seek to minimize health and environmental risks taires et environnementaux que présentent les pro- posed by pest control products and encourage the de- duits antiparasitaires et d’encourager le développe- velopment and implementation of innovative, sustain- ment et la mise en œuvre de stratégies de lutte able pest management strategies by facilitating access antiparasitaire durables et innovatrices — en facilitant to pest control products that pose lower risks and by l’accès à des produits antiparasitaires à risque réduit other appropriate measures; — et d’autres mesures indiquées;
(c) encourage public awareness in relation to pest c) sensibiliser le public aux produits antiparasitaires control products by informing the public, facilitating en l’informant, en favorisant son accès aux
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public access to relevant information and public par- renseignements pertinents et en encourageant sa par- ticipation in the decision-making process; and ticipation au processus de prise de décision;
(d) ensure that only those pest control products that d) veiller à ce que seuls les produits antiparasitaires are determined to be of acceptable value are approved dont la valeur a été déterminée comme acceptable for use in Canada. soient approuvés pour utilisation au Canada. 2002, c. 28, s. 4; 2016, c. 9, s. 34. 2002, ch. 28, art. 4; 2016, ch. 9, art. 34.
Protection of future generations Protection des générations futures 4.1 For greater certainty, protection and consideration 4.1 Il est entendu que la protection et la considération afforded to children in this Act shall also extend to future que la présente loi accorde aux enfants s’étendent aux gé- generations. nérations futures. Advisory Council Comité consultatif
Establishment Constitution 5 (1) In carrying out duties under this Act, the Minister 5 (1) Pour l’accomplissement de la mission qui lui est may establish an advisory council of persons whose inter- confiée par la présente loi, le ministre peut constituer un ests and concerns are affected by this Act, and may speci- comité consultatif dont la composition reflète les intérêts fy the functions of the council and the means by which it et les préoccupations en jeu, et préciser le mandat du co- is to perform those functions. mité ainsi que les modalités de son exercice.
Report to Minister Rapport au ministre (2) The advisory council shall give any report that it (2) Le rapport du comité, notamment ses recommanda- makes, including its recommendations and the reasons tions et ses motifs, est remis au ministre, qui le verse au for them, to the Minister, who shall place it in the Regis- Registre. ter. Prohibitions Interdictions
Unregistered pest control products Produits antiparasitaires non homologués 6 (1) No person shall manufacture, possess, handle, 6 (1) Sauf dans les cas autorisés par les paragraphes store, transport, import, distribute or use a pest control 21(5) et 41(1), les articles 48 et 51 et 53 à 59 et les règle- product that is not registered under this Act, except as ments, il est interdit de fabriquer, de posséder, de mani- otherwise authorized under subsection 21(5) or 41(1), puler, de stocker, de transporter, d’importer, de distri- section 48 or 51, any of sections 53 to 59 or the regula- buer ou d’utiliser un produit antiparasitaire non tions. homologué en vertu de la présente loi.
Conditions of registration Conditions d’homologation (2) Except as otherwise authorized under section 53.3 or (2) Sauf dans les cas autorisés par les articles 53.3 et 54, 54, no person shall manufacture, import, export or dis- il est interdit de fabriquer, d’importer, d’exporter ou de tribute a registered pest control product unless it con- distribuer un produit antiparasitaire homologué s’il n’est forms to the conditions of registration respecting its pas conforme aux conditions d’homologation relatives à composition and the person complies with the other con- la composition du produit et si les autres conditions d’ho- ditions of registration. mologation ne sont pas respectées.
Packaging and labelling Emballage et étiquetage (3) Except as otherwise authorized under section 53, 53.3 (3) Sauf dans les cas autorisés par les articles 53, 53.3 et or 54, no person shall store, import, export or distribute a 54, il est interdit de stocker, d’importer, d’exporter ou de pest control product that is not packaged and labelled in distribuer un produit antiparasitaire s’il n’est pas emballé accordance with the regulations and, if it is registered, et étiqueté conformément aux règlements et, dans le cas the conditions of registration. où il est homologué, aux conditions d’homologation.
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Offence and punishment Infraction et peine (9) A person who contravenes any provision of this sec- (9) Quiconque contrevient à toute disposition du présent tion is guilty of an offence and liable article commet une infraction et encourt, sur déclaration de culpabilité : (a) on summary conviction, to a fine of not more than $200,000 or to imprisonment for a term of not a) par procédure sommaire, une amende maximale de more than six months, or to both; or 200 000 $ et un emprisonnement maximal de six mois, ou l’une de ces peines; (b) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not b) par mise en accusation, une amende maximale de more than three years, or to both. 500 000 $ et un emprisonnement maximal de trois ans, 2002, c. 28, s. 6; 2016, c. 9, s. 35. ou l’une de ces peines. 2002, ch. 28, art. 6; 2016, ch. 9, art. 35. Registration of Pest Control Homologation des produits Products antiparasitaires Applications for Registration or Demande d’homologation ou de Amendment modification d’homologation
Application to Minister Demande au ministre 7 (1) An application to register a pest control product or 7 (1) Les demandes d’homologation ou de modification to amend the product’s registration must be made to the d’homologation d’un produit antiparasitaire sont présen- Minister in the form and manner directed by the Minis- tées au ministre, selon les modalités qu’il précise, et ter and must include any information or other thing that doivent être accompagnées des renseignements et autres is required by the regulations to accompany the applica- éléments prévus par règlement. tion.
Use of information provided by registrants Utilisation des renseignements fournis par des titulaires (2) If the Minister determines that the active ingredient (2) S’il conclut que le principe actif du produit antipara- of the applicant’s pest control product is equivalent to the sitaire du demandeur est équivalent au principe actif active ingredient of a registered pest control product, the d’un produit antiparasitaire homologué, le ministre per- Minister shall, subject to and in accordance with the reg- met au demandeur, sous réserve des règlements et en ulations, permit the applicant to use or rely on any infor- conformité avec ceux-ci, d’utiliser tout renseignement vi- mation referred to in subsection (1) that has been provid- sé au paragraphe (1) fourni par un titulaire, ou de se fier ed by any registrant if the Minister is satisfied that the à un tel renseignement, s’il est convaincu que ce rensei- information gnement :
(a) is relevant to the registered pest control product a) d’une part, se rapporte au produit antiparasitaire that contains the equivalent active ingredient; and homologué contenant le principe actif équivalent;
(b) is necessary to support the application. b) d’autre part, est nécessaire à l’appui de la de- mande.
Foreign review or evaluation Examen ou évaluation d’un pays étranger (2.1) For the purposes of subsection (1), the applicant (2.1) Pour l’application du paragraphe (1), le demandeur may include information that is available from a review peut inclure des renseignements obtenus de l’examen ou or evaluation of a pest control product conducted by the de l’évaluation d’un produit antiparasitaire effectué par government of another member country of the Organisa- le gouvernement d’un autre pays membre de l’Organisa- tion for Economic Co-operation and Development if the tion de coopération et de développement économiques, si proposed use of the pest control product in Canada les conditions de l’utilisation proposée du produit
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would be under conditions similar to those under which antiparasitaire au Canada sont semblables aux condi- the foreign review or evaluation was conducted. tions dans lesquelles l’examen ou l’évaluation a été effec- tué dans cet autre pays.
Evaluation of pest control product Évaluation du produit (3) If the Minister is satisfied that the application has (3) Si le ministre est convaincu que la demande a été been made in accordance with subsection (1), (2) or (2.1), faite conformément aux paragraphes (1), (2) ou (2.1), il the Minister shall procède :
(a) in accordance with the regulations, if any, conduct a) en conformité avec les éventuels règlements, aux any evaluations that the Minister considers necessary évaluations qu’il juge nécessaires en ce qui concerne la with respect to the health or environmental risks or valeur du produit ou les risques sanitaires ou environ- the value of the pest control product; nementaux qu’il présente;
(b) expedite evaluations with respect to a pest control b) à l’exécution rapide des évaluations qui concernent product that may reasonably be expected to pose low- un produit antiparasitaire dont il peut raisonnable- er health or environmental risks; and ment prévoir des risques sanitaires ou environnemen- taux réduits; (c) carry out any consultation required by section 28. c) s’il y a lieu, aux consultations exigées par l’article 28.
Other information Renseignements supplémentaires (4) The Minister may, by delivering a notice in writing, (4) Le ministre peut, dans un avis écrit, exiger du de- request an applicant to provide the Minister with other mandeur qu’il lui communique tout autre renseignement information in support of the application within the time à l’appui de sa demande en la forme et dans le délai qu’il and in the form specified in the notice. précise dans l’avis.
Denial of application Refus de donner suite (5) The Minister shall deny an application if the appli- (5) Le ministre rejette la demande si le demandeur ne se cant does not comply with a notice under subsection (4). conforme pas à l’avis.
Burden of persuasion and consideration of Charge de la preuve et renseignements pris en information compte (6) During an evaluation, (6) Lors des évaluations :
(a) the applicant has the burden of persuading the a) il incombe au demandeur de convaincre le ministre Minister that the health and environmental risks and que la valeur du produit et les risques sanitaires et en- the value of the pest control product are acceptable; vironnementaux qu’il présente sont acceptables; and b) le ministre prend en compte tout renseignement (b) the Minister shall consider the information pro- fourni par le demandeur à l’appui de sa demande et vided by the applicant in support of the application peut prendre en compte tout autre renseignement à and may consider additional information, but the condition, dans ce cas, de donner au demandeur, Minister shall give the applicant a reasonable opportu- avant la fin des évaluations, la possibilité de présenter nity to make representations in respect of the addi- ses observations. tional information before completing the evaluation.
Scientific approach Approche scientifique (7) In evaluating the health and environmental risks of a (7) Lorsqu’il évalue les risques sanitaires et environne- pest control product and in determining whether those mentaux d’un produit antiparasitaire et détermine s’ils risks are acceptable, the Minister shall sont acceptables, le ministre :
(a) apply a scientifically based approach; and a) adopte une approche qui s’appuie sur une base scientifique;
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(b) in relation to health risks, if a decision referred to b) à l’égard des risques sanitaires, dans le cas où une in paragraph 28(1)(a) or (b) is being made or has been décision visée aux alinéas 28(1)a) ou b) est sur le point made in relation to a pest control product, d’être prise ou a été prise relativement au produit anti- parasitaire : (i) among other relevant factors, consider available information on aggregate exposure to the pest con- (i) prend notamment en considération les rensei- trol product, namely dietary exposure and exposure gnements disponibles sur l’exposition globale au from other non-occupational sources, including produit antiparasitaire, soit l’exposition alimentaire drinking water and use in and around homes and et l’exposition d’autres sources ne provenant pas du schools, and cumulative effects of the pest control milieu de travail, notamment l’eau potable et l’utili- product and other pest control products that have a sation du produit dans les maisons et les écoles et common mechanism of toxicity, autour de celles-ci, ainsi que les effets cumulatifs du produit antiparasitaire et d’autres produits anti- (ii) apply appropriate margins of safety to take into parasitaires ayant un mécanisme de toxicité com- account, among other relevant factors, the use of mun, animal experimentation data and the different sen- sitivities to pest control products of major identifi- (ii) applique des marges de sécurité appropriées able subgroups, including pregnant women, in- pour prendre notamment en compte l’utilisation de fants, children, women and seniors, and données d’expérimentation sur les animaux et les différentes sensibilités aux produits antiparasitaires (iii) in the case of a threshold effect, if the product des principaux sous-groupes identifiables, notam- is proposed for use in or around homes or schools, ment les femmes enceintes, les nourrissons, les en- apply a margin of safety that is ten times greater fants, les femmes et les personnes âgées, than the margin of safety that would otherwise be applicable under subparagraph (ii) in respect of (iii) dans le cas d’un effet de seuil et si le produit that threshold effect, to take into account potential est destiné à une utilisation dans les maisons ou les pre- and post-natal toxicity and completeness of the écoles ou autour de celles-ci, applique une marge de data with respect to the exposure of, and toxicity to, sécurité supérieure de dix fois à celle qui serait au- infants and children unless, on the basis of reliable trement applicable en vertu du sous-alinéa (ii) rela- scientific data, the Minister has determined that a tivement à cet effet de seuil pour tenir compte de la different margin of safety would be appropriate. toxicité prénatale et postnatale potentielle et du de- gré de complétude des données d’exposition et de toxicité relatives aux nourrissons et aux enfants, à moins que, sur la base de données scientifiques fiables, il ait jugé qu’une marge de sécurité diffé- rente conviendrait mieux.
Government policy to be given effect in evaluation Politique gouvernementale (8) In evaluating the health and environmental risks and (8) Lorsqu’il évalue la valeur du produit antiparasitaire the value of a pest control product, the Minister shall give et les risques sanitaires et environnementaux qu’il pré- effect to government policy. sente, le ministre donne effet à la politique gouverne- mentale.
Comparative risk and value assessment Évaluation comparative des risques et de la valeur (9) In determining whether the health and environmen- (9) Lorsqu’il détermine si la valeur d’un produit antipa- tal risks and the value of a pest control product are ac- rasitaire et les risques sanitaires et environnementaux ceptable, the Minister may, in accordance with the regu- qu’il présente sont acceptables, le ministre peut, en lations, if any, take into account information regarding conformité avec les éventuels règlements, prendre en the risks and value of other pest control products that are compte les renseignements sur la valeur et les risques registered for the same use. d’autres produits homologués pour la même utilisation.
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(b) to report the additional information to the Minis- b) qu’il lui communique les renseignements en la ter within the time and in the form specified in the no- forme et dans le délai qu’il y précise. tice.
Condition of registration Condition d’homologation (2) A requirement under subsection (1) is a condition of (2) L’exécution de l’obligation visée au paragraphe (1) registration. constitue une condition d’homologation.
Mandatory reporting Obligation de communiquer 13 An applicant for registration of a pest control prod- 13 Le demandeur de l’homologation d’un produit anti- uct, a person who makes an application under subsection parasitaire, le demandeur en vertu du paragraphe 10(2) 10(2) or a registrant shall report any prescribed informa- et le titulaire sont tenus de communiquer au ministre, tion that relates to the health or environmental risks or dans le délai réglementaire et selon les modalités que ce the value of the pest control product to the Minister with- dernier prévoit, tout renseignement prévu par règlement in the prescribed time and in the form and manner di- qui touche à la valeur du produit antiparasitaire ou aux rected by the Minister. risques sanitaires ou environnementaux qu’il présente.
Determination by Minister Décision 14 After considering any information reported under 14 À la suite de l’étude des renseignements qui lui ont section 12 or 13, the Minister shall determine whether a été communiqués en application des articles 12 et 13, le special review of the registration of the pest control prod- ministre décide s’il procède ou non à l’examen spécial de uct should be initiated. l’homologation du produit antiparasitaire.
Public availability Accessibilité 15 After considering any information reported under 15 À la suite de l’étude des renseignements qui lui ont section 13, the Minister shall place his or her conclusions été communiqués en application de l’article 13, le mi- in the Register and shall make public those conclusions nistre verse au Registre ses conclusions et rend publiques if, in the Minister’s opinion, ses conclusions s’il estime que le produit antiparasitaire présente des risques sanitaires ou environnementaux im- (a) the pest control product poses a significant health portants ou qu’il est dans l’intérêt public de le faire. or environmental risk; or
(b) it is in the public interest to do so. Re-evaluation and Special Review Réévaluation et examen spécial
Minister’s discretion to initiate re-evaluation Réévaluation 16 (1) The Minister may initiate the re-evaluation of a 16 (1) Le ministre peut procéder à la réévaluation d’un registered pest control product if the Minister considers produit antiparasitaire homologué s’il estime que, depuis that, since the product was registered, there has been a son homologation, il y a eu un changement en ce qui change in the information required, or the procedures touche les renseignements exigés ou la procédure à used, for the evaluation of the health or environmental suivre pour l’évaluation de la valeur des produits de risks or the value of pest control products of the same même catégorie ou de même nature ou des risques sani- class or kind. taires ou environnementaux qu’ils présentent.
Minister required to initiate re-evaluation Réévaluation exigée (2) Without limiting the generality of subsection (1), (2) Sans que soit limitée la portée générale du para- graphe (1) : (a) if a decision of a type referred to in paragraph 28(1)(a) or (b) was made in relation to a pest control a) lorsqu’une décision sur l’homologation d’un pro- product on or after April 1, 1995, the Minister shall ini- duit antiparasitaire, du même type que celle visée aux tiate a re-evaluation of that product no later than one alinéas 28(1)a) ou b), est prise le 1er avril 1995 ou après year after 15 years have elapsed since the most recent cette date, le ministre procède à une réévaluation du decision of that type; and
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(b) if the most recent decision of a type referred to in produit au plus tard un an après la période de quinze paragraph 28(1)(a) or (b) was made in relation to a ans écoulée depuis la plus récente décision de ce type; pest control product before April 1, 1995, the Minister shall initiate a re-evaluation of that product no later b) lorsque la plus récente décision sur l’homologation than April 1, 2005 or the date that is one year after 15 d’un produit antiparasitaire, du même type que celle years have elapsed since that decision, whichever date visée aux alinéas 28(1)a) ou b), a été prise avant le 1er is later. avril 1995, le ministre procède à une réévaluation du produit au plus tard le 1er avril 2005 ou, si cette date est postérieure, la date qui suit d’un an la période de quinze ans écoulée depuis la décision.
Notice requesting information Demande de renseignements (3) Re-evaluation of a pest control product is initiated by (3) Le processus de réévaluation est enclenché par re- the Minister delivering a notice in writing to the regis- mise au titulaire, par le ministre, d’un avis écrit lui en ex- trant explaining the reasons for initiating the re-evalua- pliquant les motifs et exigeant de lui, si le ministre l’es- tion and, if considered necessary by the Minister, requir- time nécessaire, qu’il fournisse des renseignements, en la ing the registrant to provide information in the form and forme et dans le délai qui y sont prévus. within the period specified in the notice.
Request for information from departments and Demande de renseignements — ministères et provinces provinces (4) After the re-evaluation is initiated, the Minister shall (4) Une fois le processus de réévaluation enclenché, le deliver a notice to federal and provincial government de- ministre remet aux ministères et aux organismes publics partments and agencies whose interests and concerns are fédéraux et provinciaux dont les intérêts et préoccupa- affected by the federal regulatory system requesting them tions sont en jeu un avis leur demandant de fournir, en la to provide, in the form and within the period specified in forme et dans le délai qui y sont prévus, les renseigne- the notice, information in respect of the health and envi- ments relatifs aux risques sanitaires et environnemen- ronmental risks and the value of the product that is un- taux et à la valeur du produit visé. der re-evaluation.
Provision of information if more than one registrant Fourniture de renseignements si plus d’un titulaire (5) If there is more than one registrant whose registered (5) Lorsque le ministre a conclu que les principes actifs pest control products have active ingredients that the de produits homologués sont équivalents, les titulaires de Minister has determined to be equivalent, ces produits peuvent fournir conjointement les rensei- gnements exigés au paragraphe (3) ou à l’alinéa (a) two or more registrants may provide the informa- 19(1)a); s’il est convaincu que ces renseignements ont été tion required under subsection (3) or paragraph fournis par l’un ou plusieurs de ces titulaires, le ministre 19(1)(a) jointly; and permet, sous réserve des règlements et en conformité avec ceux-ci, à un autre de ces titulaires d’utiliser ces ren- (b) if the Minister is satisfied that the information re- seignements, ou de s’y fier, pour se conformer aux exi- quired under subsection (3) or paragraph 19(1)(a) has gences prévues à ce paragraphe ou à cet alinéa. been provided by one or more registrants, the Minis- ter shall, subject to and in accordance with the regula- tions, permit another registrant to use or rely on that information to meet the requirements under that sub- section or paragraph.
If active ingredients not equivalent Principes actifs non équivalents (5.1) If the active ingredients of the registered pest con- (5.1) Si les principes actifs d’un produit antiparasitaire trol product that is subject to the re-evaluation are not homologué sujet à la réévaluation ne sont pas équivalents equivalent to the active ingredients in another regis- aux principes actifs d’un autre produit antiparasitaire ho- trant’s registered pest control product, the Minister shall, mologué, le ministre permet, sous réserve des règlements subject to and in accordance with the regulations, permit et en conformité avec ceux-ci, au titulaire du produit su- the registrant whose product is subject to the re-evalua- jet à la réévaluation d’utiliser les renseignements fournis tion to use or rely on information provided by the other par le titulaire de l’autre produit antiparasitaire
Current to February 26, 2020 12017 À jour au 26 février 2020 Last amended on July 12, 2019 Dernière modification le 12 juillet 2019 Pest Control Products Produits antiparasitaires Registration of Pest Control Products Homologation des produits antiparasitaires Re-evaluation and Special Review Réévaluation et examen spécial Sections 16-17 Articles 16-17
registrant if the Minister is satisfied that the information homologué, ou de se fier à ces renseignements, s’il est is necessary for the re-evaluation. convaincu que ces renseignements sont nécessaires à la réévaluation.
Evaluation of pest control product Évaluation du produit (6) After the re-evaluation is initiated, the Minister shall, (6) Une fois le processus de réévaluation enclenché, le in accordance with the regulations, if any, conduct any ministre procède, en conformité avec les éventuels règle- evaluations that the Minister considers necessary with ments, aux évaluations qu’il juge nécessaires en ce qui respect to the health or environmental risks or the value concerne la valeur du produit ou les risques sanitaires ou of the pest control product and shall carry out the consul- environnementaux qu’il présente et procède aux consul- tations required by section 28. tations exigées par l’article 28. 2002, c. 28, s. 16; 2017, c. 6, s. 110. 2002, ch. 28, art. 16; 2017, ch. 6, art. 110.
Initiation of special review by Minister Examen spécial 17 (1) The Minister shall initiate a special review of the 17 (1) Le ministre procède à l’examen spécial de l’ho- registration of a pest control product if the Minister has mologation du produit antiparasitaire lorsqu’il a des mo- reasonable grounds to believe that the health or environ- tifs raisonnables de croire que la valeur du produit ou les mental risks of the product are, or its value is, unaccept- risques sanitaires ou environnementaux qu’il présente able. sont inacceptables.
Special review where OECD ban Examen spécial — interdiction de l’OCDE (2) Without limiting the generality of subsection (1), (2) Sans que soit limitée la portée générale du para- when a member country of the Organisation for Econom- graphe (1), lorsqu’un pays membre de l’Organisation de ic Co-operation and Development prohibits all uses of an coopération et de développement économiques interdit active ingredient for health or environmental reasons, l’utilisation d’un principe actif pour des raisons sanitaires the Minister shall initiate a special review of registered ou environnementales, le ministre procède à l’examen pest control products containing that active ingredient. spécial des produits antiparasitaires homologués conte- nant ce principe actif.
Special review where information from department or Examen spécial — renseignements des ministères ou province provinces (3) Without limiting the generality of subsection (1), the (3) Sans que soit limitée la portée générale du para- Minister shall initiate a special review of the registration graphe (1), le ministre procède à l’examen spécial de l’ho- of a pest control product if a federal or provincial govern- mologation du produit antiparasitaire lorsqu’un minis- ment department or agency has provided information to tère ou organisme public fédéral ou provincial lui fournit the Minister that relates to the health or environmental les renseignements relatifs aux risques sanitaires ou en- risks or the value of the product and if, after considering vironnementaux ou à la valeur du produit visé et, à la the information provided, the Minister has reasonable suite de l’étude de ces renseignements, le ministre a des grounds to believe that the health or environmental risks motifs raisonnables de croire que la valeur du produit ou of the product are, or its value is, unacceptable. les risques sanitaires ou environnementaux qu’il présente sont inacceptables.
Request for special review Demande (4) Any person may request a special review of the regis- (4) Toute personne peut faire une demande d’examen tration of a pest control product by making a request to spécial au ministre, en la forme et de la façon qu’il pré- the Minister in the form and manner directed by the cise. Minister.
Decision Décision (5) Within a reasonable time after receiving a request, (5) Dans un délai raisonnable suivant la réception de la the Minister shall decide whether to initiate a special re- demande, le ministre décide s’il procède ou non à l’exa- view and shall respond to the request with written rea- men et communique à son auteur sa décision en la moti- sons for the decision. vant par écrit.
Current to February 26, 2020 12118 À jour au 26 février 2020 Last amended on July 12, 2019 Dernière modification le 12 juillet 2019 Pest Control Products Produits antiparasitaires Registration of Pest Control Products Homologation des produits antiparasitaires Re-evaluation and Special Review Réévaluation et examen spécial Sections 18-19 Articles 18-19
equivalent to the active ingredients in another regis- équivalents aux principes actifs d’un autre produit anti- trant’s registered pest control product, the Minister shall, parasitaire homologué, le ministre permet, sous réserve subject to and in accordance with the regulations, permit des règlements et en conformité avec ceux-ci, au titulaire the registrant whose product is subject to the special re- du produit sujet à l’examen spécial d’utiliser les rensei- view to use or rely on information provided by the other gnements fournis par le titulaire de l’autre produit anti- registrant if the Minister is satisfied that the information parasitaire homologué, ou de se fier à ces renseigne- is necessary for the special review. ments, s’il est convaincu que ces renseignements sont nécessaires à l’examen spécial.
Evaluation of pest control product Évaluation du produit (4) After the special review is initiated, the Minister (4) Une fois le processus d’examen spécial enclenché, le shall, in accordance with the regulations, if any, evaluate ministre, en conformité avec les éventuels règlements, only the aspects of the pest control product that are with- évalue uniquement les aspects du produit visés par l’exa- in the scope of the special review and shall carry out the men spécial et procède aux consultations exigées par l’ar- consultations required by section 28. ticle 28. 2002, c. 28, s. 18; 2017, c. 6, s. 111; 2019, c. 29, s. 219. 2002, ch. 28, art. 18; 2017, ch. 6, art. 111; 2019, ch. 29, art. 219.
Burden of persuasion and consideration of Charge de la preuve et renseignements pris en information compte 19 (1) During an evaluation that is done in the course of 19 (1) Lors de l’évaluation du produit antiparasitaire a re-evaluation or special review, dans le cadre d’une réévaluation ou d’un examen spécial :
(a) the Minister may, by delivering a notice in writing, a) le ministre peut, par avis écrit, exiger du titulaire require the registrant to provide, in the form and with- qu’il lui fournisse, en la forme et dans le délai qui y in the period specified in the notice, additional infor- sont prévus, les renseignements supplémentaires qu’il mation that the Minister considers necessary for the juge nécessaires pour l’évaluation; evaluation; b) il incombe au titulaire de convaincre le ministre (b) the registrant has the burden of persuading the que la valeur du produit et les risques sanitaires et en- Minister that the health and environmental risks and vironnementaux qu’il présente sont acceptables; the value of the pest control product are acceptable; and c) le ministre prend en compte tout renseignement fourni par le titulaire à l’égard du produit et peut (c) the Minister shall consider the information pro- prendre en compte tout autre renseignement à condi- vided by the registrant in support of the product and tion, dans ce cas, de donner au titulaire, avant de ter- may consider any additional information, but the Min- miner ses évaluations, la possibilité de présenter ses ister shall give the registrant a reasonable opportunity observations. to make representations in respect of the additional information before completing the evaluation.
Scientific approach Approche scientifique (2) In evaluating the health and environmental risks of a (2) Lorsqu’il évalue les risques sanitaires et environne- pest control product and in determining whether those mentaux d’un produit antiparasitaire et détermine s’ils risks are acceptable, the Minister shall sont acceptables, le ministre :
(a) apply a scientifically based approach; and a) adopte une approche qui s’appuie sur une base scientifique; (b) in relation to health risks, b) à l’égard des risques sanitaires : (i) among other relevant factors, consider available information on aggregate exposure to the pest con- (i) prend notamment en considération les rensei- trol product, namely dietary exposure and exposure gnements disponibles sur l’exposition globale au from other non-occupational sources, including produit antiparasitaire, soit l’exposition alimentaire drinking water and use in and around homes and et l’exposition d’autres sources ne provenant pas du schools, and cumulative effects of the pest control milieu de travail, notamment l’eau potable et l’utili- sation du produit dans les maisons et les écoles et
Current to February 26, 2020 12221 À jour au 26 février 2020 Last amended on July 12, 2019 Dernière modification le 12 juillet 2019 Pest Control Products Produits antiparasitaires Registration of Pest Control Products Homologation des produits antiparasitaires Re-evaluation and Special Review Réévaluation et examen spécial Sections 20-21 Articles 20-21
(b) in the course of a re-evaluation or special review, b) le ministre a des motifs raisonnables de croire que the Minister has reasonable grounds to believe that ces mesures sont nécessaires, dans le cadre du proces- the cancellation or amendment is necessary to deal sus de réévaluation ou d’examen spécial, pour régler with a situation that endangers human health or safety une situation qui présente un danger pour la santé ou or the environment, taking into account the precau- la sécurité humaines ou pour l’environnement, en pre- tionary principle set out in subsection (2). nant en compte le principe de prudence.
Precautionary principle Principe de prudence (2) Where there are threats of serious or irreversible (2) En cas de risques de dommages graves ou irréver- damage, lack of full scientific certainty shall not be used sibles, l’absence de certitude scientifique absolue ne doit as a reason for postponing cost-effective measures to pre- pas servir de prétexte pour remettre à plus tard la prise vent adverse health impact or environmental degrada- de mesures rentables visant à prévenir toute consé- tion. quence néfaste pour la santé ou la dégradation de l’envi- ronnement.
Rescission of action Cessation des mesures imposées (3) The Minister may rescind any action taken under (3) Le ministre peut annuler les mesures prises au titre subsection (1) if the circumstances that prompted it du paragraphe (1) dès que les circonstances ne les justi- cease to exist. fient plus.
Refusal to consider applications Rejet de nouvelles demandes (4) If the registration of a pest control product is can- (4) S’il y a révocation ou modification de l’homologation celled or amended under paragraph (1)(a), the Minister d’un produit antiparasitaire dans le cas visé à l’alinéa may, for a prescribed period, refuse to consider any ap- (1)a), le ministre peut, pendant une période prévue par plication made in respect of that product by the regis- règlement, refuser d’examiner toute demande du titulaire trant. relativement à ce produit.
Confirmation Confirmation 21 (1) If the Minister considers that the health and en- 21 (1) Si, au terme des évaluations et des consultations vironmental risks and the value of a pest control product requises, il conclut que la valeur du produit antiparasi- are acceptable after any required evaluations and consul- taire et les risques sanitaires et environnementaux qu’il tations have been completed, the Minister shall confirm présente sont acceptables, le ministre confirme l’homolo- the registration. gation.
Amendment or cancellation Modification ou révocation (2) If the Minister does not consider that the health or (2) Dans le cas où il n’arrive pas à cette conclusion, le environmental risks or value of a pest control product are ministre modifie l’homologation s’il estime qu’à la suite acceptable, the Minister shall de la modification la valeur du produit et les risques sani- taires et environnementaux qu’il présente seraient accep- (a) amend the registration if the Minister considers tables, ou il la révoque. that the health and environmental risks and value of the product would be acceptable after the amendment; or
(b) cancel the registration.
Delay of effective date Report de la modification ou de la révocation (3) The Minister may delay the effective date of the (3) Le ministre peut différer la modification ou la révoca- amendment or cancellation if tion de l’homologation lorsqu’il n’existe aucune solution de rechange satisfaisante à l’utilisation du produit anti- (a) no suitable alternative to the use of the pest con- parasitaire et qu’il juge que la valeur du produit et les trol product is available; and risques sanitaires et environnementaux qu’il présente sont, jusqu’à la date de modification ou de révocation, ac- ceptables.
Current to February 26, 2020 12323 À jour au 26 février 2020 Last amended on July 12, 2019 Dernière modification le 12 juillet 2019 Pest Control Products Produits antiparasitaires Registration of Pest Control Products Homologation des produits antiparasitaires Other Grounds for Cancellation or Amendment Autres motifs de révocation ou de modification Sections 27-28 Articles 27-28
class of pest control products if the Governor in Council ou d’une catégorie de produits antiparasitaires, lorsqu’il considers it necessary to do so to implement an interna- estime que ces mesures sont nécessaires pour mettre en tional agreement. œuvre une convention internationale. Public Consultation Consultation publique
Minister to consult Consultation publique 28 (1) The Minister shall consult the public and federal 28 (1) Le ministre consulte le public et les ministères et and provincial government departments and agencies organismes publics fédéraux et provinciaux dont les inté- whose interests and concerns are affected by the federal rêts et préoccupations sont en jeu avant de prendre une regulatory system before making a decision décision concernant :
(a) to grant or deny an application a) l’acceptation ou le rejet :
(i) to register a pest control product that is or con- (i) d’une demande d’homologation d’un produit an- tains an unregistered active ingredient, or tiparasitaire qui est ou contient un principe actif non homologué, (ii) to register, or amend the registration of, a pest control product if the Minister considers that regis- (ii) d’une demande d’homologation ou de modifica- tration or amendment of the registration may result tion de l’homologation d’un produit antiparasitaire, in significantly increased health or environmental s’il est d’avis que l’homologation ou sa modification risks; risque d’augmenter sensiblement les risques sani- taires ou environnementaux; (b) about the registration of a pest control product on completion of a re-evaluation or special review; or b) l’homologation d’un produit après une réévalua- tion ou un examen spécial; (c) about any other matter if the Minister considers it in the public interest to do so. c) toute autre question, s’il juge qu’il est dans l’intérêt public de tenir une telle consultation.
Public notice Avis public (2) To initiate a consultation under subsection (1), the (2) Pour déclencher une consultation en vertu du para- Minister shall make public a consultation statement and graphe (1), le ministre rend public un énoncé de consul- shall invite any person to send written comments on the tation et invite les intéressés à faire part de leurs observa- proposed decision within the period specified in the tions au sujet du projet de décision dans le délai précisé statement. dans l’énoncé.
Consultation statement Énoncé de consultation (3) The consultation statement shall include (3) L’énoncé de consultation doit contenir les éléments suivants : (a) a summary of any reports of the evaluation of the health and environmental risks and the value of the a) le sommaire des rapports d’évaluation de la valeur pest control product prepared or considered by the et des risques du produit antiparasitaire, établis ou Minister; pris en compte par le ministre;
(b) the proposed decision and the reasons for it; and b) le projet de décision motivé;
(c) any other information that the Minister considers c) tout autre renseignement que le ministre estime necessary in the public interest. nécessaire dans l’intérêt public.
Consideration of comments Examen des observations (4) The Minister shall consider any comments received (4) Avant de prendre une décision, le ministre examine pursuant to subsection (2) before making a decision. toute observation reçue conformément au paragraphe (2).
Current to February 26, 2020 12426 À jour au 26 février 2020 Last amended on July 12, 2019 Dernière modification le 12 juillet 2019 Pest Control Products Produits antiparasitaires Registration of Pest Control Products Homologation des produits antiparasitaires Public Consultation Consultation publique Sections 28-31 Articles 28-31
Decision statement Énoncé de décision (5) After making a decision, the Minister shall make (5) Après avoir pris une décision, le ministre rend public public a decision statement that shall include the deci- un énoncé de décision qui doit contenir la décision, les sion, the reasons for it and a summary of any comments motifs de celle-ci et un sommaire des observations re- that the Minister received on the proposed decision. çues, le cas échéant.
Confidential test data Données d’essai confidentielles (6) A consultation statement referred to in subsection (2) (6) L’énoncé de consultation et l’énoncé de décision and a decision statement referred to in subsection (5) doivent contenir les données d’essai confidentielles que shall contain any confidential test data that the Minister le ministre estime être d’intérêt public. considers to be in the public interest. Offences Infractions
Failure to report information Omission de communiquer 29 (1) Every person who does not comply with section 29 (1) Commet une infraction quiconque ne respecte 13 is guilty of an offence. pas l’article 13.
Non-compliance with requirement Non-respect des avis (2) A registrant who does not comply with a requirement (2) Commet une infraction le titulaire qui ne se in a notice referred to in subsection 16(3) or 18(1), para- conforme pas aux exigences prévues aux paragraphes graph 19(1)(a) or subsection 22(2) is guilty of an offence. 16(3) ou 18(1), à l’alinéa 19(1)a) ou au paragraphe 22(2).
False or misleading information Renseignements faux ou trompeurs 30 (1) Every person is guilty of an offence if they know- 30 (1) Commet une infraction quiconque fournit sciem- ingly provide the Minister with false or misleading infor- ment au ministre des renseignements faux ou trom- mation peurs :
(a) about the health or environmental risks or the val- a) soit relativement à la valeur d’un produit antipara- ue of a pest control product; or sitaire ou aux risques sanitaires ou environnementaux qu’il présente; (b) in response to a notice delivered under this Act. b) soit en réponse à un avis remis en application de la présente loi.
False or misleading tests Essais frauduleux (2) Every person is guilty of an offence if they falsely (2) Commet une infraction quiconque prétend fausse- claim to have conducted a test relating to the health or ment avoir effectué des essais relatifs à la valeur d’un environmental risks or the value of a pest control prod- produit antiparasitaire ou aux risques sanitaires ou envi- uct, knowingly conduct such a test that is misleading or ronnementaux qu’il présente, fait sciemment de tels es- knowingly provide false or misleading information about sais qui sont trompeurs ou fournit sciemment des rensei- such a test. gnements faux ou trompeurs relativement à de tels essais.
Non-compliance with conditions of registration Non-respect des conditions d’homologation 31 (1) A registrant who does not comply with the condi- 31 (1) Commet une infraction le titulaire qui ne res- tions of registration is guilty of an offence. pecte pas les conditions d’homologation.
Current to February 26, 2020 12527 À jour au 26 février 2020 Last amended on July 12, 2019 Dernière modification le 12 juillet 2019 Pest Control Products Produits antiparasitaires Export Controls Contrôle de l’exportation Sections 34-35 Articles 34-35
Decision Décision (3) After considering any representations that may be (3) Après examen des observations de la personne auto- made by the authorized person, the Minister shall rein- risée, le cas échéant, le ministre rétablit, modifie ou ré- state, amend or cancel the authorization. voque l’autorisation.
Public notice Avis public (4) The Minister shall give public notice of the amend- (4) Le ministre publie un avis de la modification ou de la ment or cancellation of an authorization. révocation de l’autorisation. Reconsideration of Decisions Examen des décisions
Notice of objection to registration decisions Avis d’opposition — homologation 35 (1) Any person may file with the Minister, in the 35 (1) Dans les soixante jours suivant celui où l’énoncé form and manner directed by the Minister, a notice of de décision visé au paragraphe 28(5) est rendu public, objection to a decision referred to in paragraph 28(1)(a) toute personne peut déposer auprès du ministre, selon or (b) within 60 days after the decision statement re- les modalités que celui-ci fixe, un avis d’opposition à la ferred to in subsection 28(5) is made public. décision visée aux alinéas 28(1)a) ou b).
Notice of objection to authorization decisions Avis d’opposition — autorisation d’exportation (2) Any person may file with the Minister, in the form (2) Dans les soixante jours suivant celui où l’avis visé aux and manner directed by the Minister, a notice of objec- paragraphes 33(6) ou 34(4) est rendu public, toute per- tion to a decision to authorize the export of a pest control sonne peut déposer auprès du ministre, selon les modali- product or to amend or cancel an authorization within 60 tés qu’il fixe, un avis d’opposition à la décision d’autori- days after a notice referred to in subsection 33(6) or 34(4) ser l’exportation d’un produit antiparasitaire ou de is made public. modifier ou de révoquer l’autorisation d’exportation.
Establishment of review panel Constitution d’une commission d’examen (3) After receiving a notice of objection, the Minister (3) Le ministre peut, après réception de l’avis d’opposi- may, in accordance with the regulations, if any, establish tion, constituer, en conformité avec les éventuels règle- a panel of one or more individuals to review the decision ments, une commission d’examen, composée d’un ou de and to recommend whether the decision should be con- plusieurs individus, chargée d’examiner la décision prise firmed, reversed or varied. et de recommander soit sa confirmation, soit son annula- tion, soit encore sa modification.
Notice of review panel Avis — commission d’examen (4) The Minister shall give public notice of the establish- (4) Le ministre publie un avis de la constitution de la ment of a review panel. commission d’examen.
Reasons to be provided if panel not established Non-constitution motivée (5) If the Minister does not establish a panel, the Minis- (5) Si le ministre décide de ne pas constituer de commis- ter shall provide written reasons without delay to the per- sion d’examen, il communique sans délai ses motifs son who filed the notice of objection. écrits à la personne qui a déposé l’avis.
Terms of reference and procedure Mandat et procédure (6) The Minister may determine the terms of reference of (6) Le ministre peut fixer le mandat de la commission et a review panel and the procedure for the review, and may prévoir la procédure d’examen et, à tout moment, les mo- at any time change them. difier.
Current to February 26, 2020 12630 À jour au 26 février 2020 Last amended on July 12, 2019 Dernière modification le 12 juillet 2019 Pest Control Products Produits antiparasitaires Access to Information Accès à l’information Section 42 Article 42
Contents of Register Contenu du Registre (2) The Register shall contain the following information: (2) Figurent dans le Registre :
(a) for each application to register or amend the regis- a) pour chaque demande d’homologation d’un pro- tration of a pest control product, duit antiparasitaire ou de modification d’une telle ho- mologation : (i) the active ingredient of the product, proposed new uses for it or any uses proposed to be with- (i) le principe actif du produit, les utilisations nou- drawn, and velles proposées et celles dont le retrait est proposé,
(ii) how the application was disposed of or whether (ii) la décision finale prise quant à la demande ou le it was withdrawn; fait que celle-ci a été retirée;
(b) the conditions of registration, registration number b) les conditions, le numéro et la durée de chaque ho- and registration validity period for each registered mologation; pest control product; c) les renseignements relatifs à chaque produit homo- (c) information, in respect of each registered pest con- logué fournis par le demandeur ou le titulaire à l’appui trol product, that is provided by applicants and regis- d’une demande d’homologation ou de modification de trants l’homologation ou lors d’une réévaluation ou d’un exa- men spécial; (i) in support of an application for registration or for the amendment of a registration, or d) les renseignements fournis par le demandeur ou le titulaire et utilisés pour fixer les limites maximales de (ii) for the purposes of a re-evaluation or special re- résidus; view; e) les renseignements relatifs à chaque produit homo- (d) information provided by applicants and regis- logué et examinés par le ministre en application des trants that is used to specify maximum residue limits; alinéas 7(6)b) et 19(1)c);
(e) information, in respect of each registered pest con- f) les rapports d’évaluation établis par le ministre trol product, that is considered by the Minister under quant à la valeur d’un produit antiparasitaire homolo- paragraphs 7(6)(b) and 19(1)(c); gué et aux risques sanitaires et environnementaux qu’il présente; (f) any reports of the evaluation of the health and en- vironmental risks and the value of registered pest con- g) tout avis donné par une personne ou un organisme trol products prepared by the Minister; visé à l’alinéa 44(1)f), sauf si sa communication peut être refusée en vertu des articles 23 ou 23.1 de la Loi (g) any advice from a person or body referred to in sur l’accès à l’information; paragraph 44(1)(f), unless disclosure of the advice may be refused under section 23 or 23.1 of the Access to In- h) l’état des homologations, notamment leur révoca- formation Act; tion, auxquelles la présente loi s’applique;
(h) the status, including cancelled status, of all regis- i) les renseignements fournis au ministre au titre du trations to which this Act applies; paragraphe 8(5);
(i) information provided to the Minister pursuant to j) les avis remis en vertu des paragraphes 12(1), 16(3) subsection 8(5); et 18(1) et de l’alinéa 19(1)a);
(j) notices delivered under subsections 12(1), 16(3) k) les conclusions du ministre rendues publiques aux and 18(1) and paragraph 19(1)(a); termes de l’article 15;
(k) conclusions of the Minister that were made public l) les énoncés de consultation et les énoncés de déci- under section 15; sion rendus publics aux termes des paragraphes 28(2) ou (5) respectivement;
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(l) consultation statements and decision statements m) les avis d’opposition déposés en vertu des para- made public under subsections 28(2) and (5), graphes 35(1) et (2), les avis publiés en vertu du para- respectively; graphe 35(4), les décisions du ministre et les motifs de celui-ci communiqués ou rendus publics en vertu des (m) notices of objection filed under subsections 35(1) paragraphes 35(5) et 39(2); and (2), public notices given under subsection 35(4) and the Minister’s decisions and reasons under sub- n) les autorisations accordées en vertu des articles 33 sections 35(5) and 39(2); et 41 et celles modifiées ou révoquées en vertu des ar- ticles 34 ou 41; (n) authorizations under sections 33 and 41 and amendments and cancellations under sections 34 and o) tout autre renseignement à verser au Registre en 41; and application d’une disposition de la présente loi ou des règlements. (o) any other information required by this Act or the regulations to be included in the Register.
Evaluation reports Rapports d’évaluation du ministre (3) An evaluation report referred to in paragraph (2)(f) (3) Les rapports d’évaluation visés à l’alinéa (2)f) com- shall contain a summary of the information considered portent un résumé des renseignements pris en compte; and shall contain any confidential test data and confiden- ils comportent aussi les données d’essai confidentielles et tial business information that the Minister considers ap- les renseignements commerciaux confidentiels que le mi- propriate. nistre estime indiqués.
Public access to information in the Register Accès aux renseignements du Registre (4) The Minister shall allow the public to have access to, (4) Le ministre permet au public d’avoir accès aux ren- and copies of, any information in the Register that seignements contenus dans le Registre et d’en obtenir co- pie si ceux-ci répondent à l’un des critères suivants : (a) is not confidential test data or confidential busi- ness information; or a) il ne s’agit pas de données d’essai confidentielles ni de renseignements commerciaux confidentiels; (b) is confidential test data that has been made sub- ject to public disclosure in accordance with the regula- b) il s’agit de données d’essai confidentielles qui font tions made under paragraph 67(1)(m). l’objet d’une divulgation en conformité avec les règle- ments pris en vertu de l’alinéa 67(1)m).
Access to evaluation reports Accès aux rapports d’évaluation (5) The Minister shall allow the public to obtain a copy of (5) Le ministre permet toutefois au public d’obtenir co- any evaluation report in the Register, except for any con- pie des rapports d’évaluation qui figurent dans le Re- fidential business information that it contains. gistre, à l’exclusion des renseignements commerciaux confidentiels qui font partie de ces rapports.
Means of access to information in Register Moyens de communiquer les renseignements du Registre (6) Information in the Register that the public may ob- (6) Les renseignements contenus dans le Registre et tain a copy of under this Act or the regulations shall be dont le public peut obtenir copie en vertu de la présente made available to the public in as convenient a manner loi ou des règlements sont mis à la disposition du public as practicable. de la manière la plus convenable possible.
Electronic public registry Registre public sous forme électronique — contenu (7) The Minister shall establish an electronic public reg- (7) Le ministre établit un registre public sous forme élec- istry, which shall include tronique qui inclut :
(a) the information referred to in subsection (6), as a) les renseignements visés au paragraphe (6), dès soon as reasonably practicable; qu’il est possible en pratique de le faire;
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(b) memoranda of understanding among federal gov- b) les protocoles d’entente entre ministères fédéraux ernment departments relating to the regulation of pest visant la réglementation des produits antiparasitaires; control products; c) les rapports des activités d’harmonisation interna- (c) reports of international harmonization activities tionale visant la réglementation des produits antipara- relating to the regulation of pest control products; sitaires;
(d) regulations and proposed regulations under this d) les règlements et projets de règlement émanant de Act when published in the Canada Gazette; and la présente loi et publiés dans la Gazette du Canada;
(e) policies, guidelines and codes of practice relating e) les politiques, lignes directrices et codes de pra- to the regulation of pest control products when pro- tique visant la réglementation des produits antiparasi- posed for public consultation, and their final texts taires, lorsqu’ils sont proposés pour consultation pu- when adopted. blique, et leur texte définitif une fois adoptés. 2002, c. 28, s. 42; 2018, c. 27, s. 275. 2002, ch. 28, art. 42; 2018, ch. 27, art. 275.
Consultation with public Consultation publique 42.1 The public shall be consulted as to policies, guide- 42.1 La tenue d’une consultation publique est obliga- lines and codes of practice relating to the regulation of toire pour les politiques, lignes directrices et codes de pest control products. pratique visant la réglementation des produits antipara- sitaires.
Confidential test data Données d’essai confidentielles 43 (1) A person who wishes to inspect confidential test 43 (1) Quiconque souhaite consulter des données d’es- data in the Register must submit to the Minister sai confidentielles contenues dans le Registre présente au ministre, en la forme et de la façon que celui-ci précise, (a) an application in the form and manner directed by une demande accompagnée d’un affidavit ou d’une décla- the Minister; and ration solennelle — faits aux termes de la Loi sur la preuve au Canada — reçus devant tout commissaire (b) an affidavit made under oath or a statutory decla- compétent et faisant état, à la fois : ration under the Canada Evidence Act made before a commissioner for oaths or for taking affidavits, stating a) de l’objet de cette consultation;
(i) the purpose of the inspection, and b) du fait que le demandeur n’a pas l’intention d’utili- ser les données d’essai confidentielles pour obtenir ou (ii) that the person does not intend to use the test modifier l’homologation d’un produit antiparasitaire data, or make the test data available to others, in au Canada ou à l’étranger ni de mettre ces données à order to register a pest control product in Canada la disposition d’un tiers à cette fin. or elsewhere or to amend a registration.
Right to inspection Droit de consultation (2) The Minister shall permit the person to inspect confi- (2) Le ministre permet à une personne de consulter des dential test data in the Register if the Minister is satisfied données d’essai confidentielles contenues dans le Re- that the person does not intend to gistre s’il est convaincu qu’elle n’a l’intention :
(a) use the test data in order to register a pest control a) ni de les utiliser pour obtenir ou modifier l’homolo- product in Canada or elsewhere, or to amend a regis- gation d’un produit antiparasitaire au Canada ou à tration; or l’étranger;
(b) make the test data available to others for the pur- b) ni de les mettre à la disposition d’un tiers pour ob- pose of registering a pest control product in Canada or tenir ou modifier l’homologation d’un produit antipa- elsewhere, or of amending a registration. rasitaire au Canada ou à l’étranger.
Notice to registrant Avis au titulaire (2.1) If the Minister permits a person to inspect confi- (2.1) Si le ministre permet à une personne de consulter dential test data in the Register, the Minister shall make des données d’essai confidentielles contenues dans le
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a reasonable effort to immediately notify any registrant Registre, il est tenu de faire tout effort raisonnable pour who provided the data that the Minister has permitted a en aviser sans délai les titulaires qui ont fourni ces don- person to inspect the data. nées.
Denial of application Rejet de la demande (3) The Minister shall deny an application if the Minister (3) Le ministre est tenu de rejeter la demande s’il est is satisfied that convaincu qu’elle est faite à l’une des fins mentionnées au paragraphe (2) ou que le demandeur a déjà utilisé à (a) the applicant intends to use the test data for a pur- l’une de ces fins des données d’essai qu’il avait consultées pose referred to in subsection (2); or avant.
(b) the applicant has used test data obtained from a prior inspection for a purpose referred to in subsec- tion (2).
Confidential business information Renseignements commerciaux confidentiels (4) Subject to subsections (5) and (6), confidential busi- (4) Sous réserve des paragraphes (5) et (6), les rensei- ness information is information provided under this Act gnements commerciaux confidentiels sont des renseigne- that is designated as confidential business information by ments qui sont fournis sous le régime de la présente loi et the person who provided it, or information provided un- désignés comme tels par la personne qui les fournit ou der the Pest Control Products Act, chapter P-9 of the Re- sous le régime de la Loi sur les produits antiparasitaires, vised Statutes of Canada, 1985, and that concerns chapitre P-9 des Lois révisées du Canada (1985), et qui portent sur : (a) manufacturing or quality control processes relat- ing to a pest control product; a) soit les procédés de fabrication ou les méthodes de contrôle de la qualité d’un produit antiparasitaire; (b) methods for determining the composition of a pest control product; or b) soit les méthodes qui déterminent la composition d’un produit antiparasitaire; (c) the monetary value of sales of pest control prod- ucts provided to the Minister pursuant to subsection c) soit la valeur pécuniaire des ventes de produits an- 8(5) and other financial or commercial information tiparasitaires, fournie au ministre en conformité avec provided to the Minister pursuant to this Act or the le paragraphe 8(5), et d’autres renseignements de na- regulations. ture financière ou commerciale fournis au ministre en vertu de la présente loi.
Formulants and contaminants Formulants et contaminants (5) Unless otherwise excluded by the regulations, if any, (5) Sauf s’ils sont exclus dans un règlement éventuel pris made under paragraph 67(1)(n), confidential business in- en vertu de l’alinéa 67(1)n), sont assimilés aux renseigne- formation also includes information that ments commerciaux confidentiels les renseignements qui : (a) is provided under this Act and is designated as confidential business information by the person who a) d’une part, sont fournis sous le régime de la pré- provided it or was provided under the Pest Control sente loi et désignés comme tels par la personne qui Products Act, chapter P-9 of the Revised Statutes of les fournit ou ont été fournis sous le régime de la Loi Canada, 1985; and sur les produits antiparasitaires, chapitre P-9 des Lois révisées du Canada (1985); (b) contains the identity and concentration of the for- mulants and contaminants in a pest control product, b) d’autre part, font état de l’identité et de la concen- other than those that the Minister considers to be of tration des formulants et des contaminants d’un pro- health or environmental concern and are identified on duit antiparasitaire, sauf ceux qui, d’après le ministre, a list to be established and maintained by the Minister soulèvent des questions particulières en matière de and made available to the public. santé ou d’environnement et figurent sur une liste éta- blie et modifiée au besoin par lui et mise à la disposi- tion du public.
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Designation not satisfactory Désignation non fondée (6) If the Minister decides that information designated (6) Ne sont pas des renseignements commerciaux confi- under subsection (4) or (5) does not meet the require- dentiels ceux dont la désignation, de l’avis du ministre, ments of that subsection, the information is not confi- ne satisfait pas aux exigences des paragraphes (4) ou (5). dential business information for the purposes of this Act.
Notice Avis (7) If the Minister decides that designated information is (7) Si le ministre décide que la désignation est non fon- not confidential business information, the Minister shall dée, il en avise par écrit, motifs à l’appui, la personne qui give written notice to the person who provided the infor- a fourni les renseignements. mation of the decision and the reasons for it.
Interpretation Application (8) Nothing in this Act shall be construed as (8) La présente loi n’a pas pour effet :
(a) preventing the Minister from refusing to disclose a) d’empêcher le ministre de refuser — au titre de la confidential test data or confidential business infor- Loi sur l’accès à l’information — de communiquer des mation under the Access to Information Act; or données d’essai confidentielles ou des renseignements commerciaux confidentiels; (b) entitling a person to make or obtain a copy of con- fidential test data, other than confidential test data to b) de permettre de faire ou d’obtenir une copie de which the public has access données d’essai confidentielles autres que les sui- vantes : (i) in documents referred to in subsections 28(6), 39(2) and 42(3), or (i) celles contenues dans un document auquel le public a accès en vertu des paragraphes 28(6), 39(2) (ii) under the authority of the regulations made un- et 42(3), der paragraph 67(1)(m). (ii) celles dont les règlements pris en vertu de l’ali- néa 67(1)m) autorisent la divulgation.
Offence and punishment Infraction et peine (9) Every person who makes a false statement in an affi- (9) Quiconque fait une fausse déclaration dans un affida- davit or a statutory declaration referred to in subsection vit ou une déclaration solennelle visés au paragraphe (1) (1) is guilty of an offence and liable commet une infraction et encourt, sur déclaration de culpabilité : (a) on summary conviction, to a fine of not more than $200,000 or to imprisonment for a term of not a) par procédure sommaire, une amende maximale de more than six months, or to both; or 200 000 $ et un emprisonnement maximal de six mois, ou l’une de ces peines; (b) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not b) par mise en accusation, une amende maximale de more than three years, or to both. 500 000 $ et un emprisonnement maximal de trois ans, ou l’une de ces peines.
Permitted disclosure Communication de renseignements confidentiels 44 (1) The Minister may, in accordance with the regula- 44 (1) Le ministre peut, en conformité avec les éven- tions, if any, disclose confidential test data or confiden- tuels règlements, communiquer les données d’essai tial business information that has been provided under confidentielles ou les renseignements commerciaux this Act or is in the Register to confidentiels qui lui ont été transmis sous le régime de la présente loi ou qui sont dans le Registre : (a) any person who provides services to Her Majesty in right of Canada for the purpose of protecting hu- a) à quiconque fournit des services à Sa Majesté du man health or safety or the environment; chef du Canada dans le cadre de la protection de la
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(b) an international organization or the government santé ou de la sécurité humaines ou de of a province or a country that is a party to an agree- l’environnement; ment with Her Majesty in right of Canada or an agent of Her Majesty, relating to the exchange of informa- b) à une organisation internationale, au gouverne- tion about pest control products; ment d’une province ou à un gouvernement étranger signataire d’un accord avec Sa Majesté du chef du (c) a medical professional who requests the informa- Canada ou avec un de ses mandataires portant sur tion for the purpose of making a medical diagnosis or l’échange de renseignements en matière de produits giving medical treatment to an individual; antiparasitaires;
(d) a department or an agency of the federal or a c) à un professionnel de la santé qui demande les ren- provincial government that requests the information seignements pour faire un diagnostic ou prodiguer des in order to respond to a situation that endangers hu- soins médicaux à un individu; man health or safety or the environment; d) à un ministère ou organisme fédéral ou provincial (e) a review panel established by the Minister under qui demande les renseignements pour faire face à une subsection 35(3); or situation qui présente un danger pour la santé ou la sécurité humaines ou pour l’environnement; (f) any other person or body, including an advisory council established under subsection 5(1), from whom e) à une commission d’examen constituée par lui en the Minister requests advice for the purposes of this vertu du paragraphe 35(3); Act. f) à toute autre personne ou à tout autre organisme, notamment un comité consultatif constitué par lui en vertu du paragraphe 5(1), auxquels il demande un avis lié à l’application de la présente loi.
Protection of disclosed information Vérification préalable (2) Before disclosing information under paragraph (2) Avant de communiquer des renseignements en vertu (1)(b), the Minister must be satisfied that the party to the de l’alinéa (1)b), le ministre est tenu de s’assurer que la agreement, other than Her Majesty in right of Canada or partie, autre que Sa Majesté du chef du Canada ou un de an agent of Her Majesty, can provide protection from un- ses mandataires, est en mesure de fournir une protection fair commercial use or disclosure of the information that contre l’usage commercial déloyal ou la communication is consistent with the protection provided under this Act. des renseignements en cause, de manière compatible avec la protection fournie par la présente loi.
Prohibition against disclosure Interdiction de communication (3) No person shall disclose information obtained under (3) Il est interdit de communiquer des renseignements subsection (1) unless authorized by the person who pro- obtenus en vertu du paragraphe (1) sans y être autorisé vided the information to the Minister or unless autho- soit par la personne qui a fourni les renseignements au rized under the Access to Information Act, this Act or the ministre, soit par la Loi sur l’accès à l’information, soit regulations. par la présente loi ou les règlements.
Prohibition against use Interdiction d’utilisation (4) No person shall use information obtained under sub- (4) La personne qui obtient des renseignements en vertu section (1) for any purpose other than the purpose for du paragraphe (1) ne peut les utiliser, sans l’autorisation which it was obtained, unless authorized by the person de la personne qui les a fournis au ministre, à une fin who provided the information to the Minister. autre que celle à laquelle elle les a obtenus.
Offence and punishment Infraction et peine (5) Every person who contravenes subsection (3) or (4) is (5) Quiconque contrevient aux paragraphes (3) ou (4) guilty of an offence and liable commet une infraction et encourt, sur déclaration de culpabilité :
Current to February 26, 2020 13239 À jour au 26 février 2020 Last amended on July 12, 2019 Dernière modification le 12 juillet 2019 TAB XX AUTHORITES Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] (excerpt)
133 CANADA
A Consolidation of
THE CONSTITUTION ACTS 1867 to 1982
DEPARTMENT OF JUSTICE CANADA
Consolidated as of January 1, 2013
134 CONSTITUTION ACT, 1982 (80)
PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:
GUARANTEE OF RIGHTS AND FREEDOMS
Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms guarantees the rights and free- doms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
FUNDAMENTAL FREEDOMS
Fundamental freedoms 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.
(80) Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), which came into force on April 17, 1982. The Canada Act 1982, other than Schedules A and B thereto, reads as follows: An Act to give effect to a request by the Senate and House of Commons of Canada Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United King- dom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that purpose. Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. The Constitution Act, 1982 set out in Schedule B to this Act is hereby enacted for and shall have the force of law in Canada and shall come into force as provided in that Act. 2. No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law. 3. So far as it is not contained in Schedule B, the French version of this Act is set out in Schedule A to this Act and has the same authority in Canada as the English version thereof. 4. This Act may be cited as the Canada Act 1982.
53 135 Constitution Act, 1982
Limitation (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
Affirmative action programs (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
LEGAL RIGHTS
Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment 9. Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Proceedings in criminal and penal matters 11. Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time;
55 136 Constitution Act, 1982 all their children receive primary and secondary school instruction in the same lan- guage.
Application where numbers warrant (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.
ENFORCEMENT
Enforcement of guaranteed rights and freedoms 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Exclusion of evidence bringing administration of justice into disrepute (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the ad- ministration of justice into disrepute.
60 137 TAB XX AUTHORITIES
Bauer Hockey Corp. v. Easton Sports Canada Inc., 2016 FCA 44
138 Date: 20160209
Docket: A-402-14
Citation: 2016 FCA 44
CORAM: NADON J.A. PELLETIER J.A. GAUTHIER J.A. 2016 FCA 44 (CanLII) BETWEEN:
SPORT MASKA INC. dba REEBOK-CCM HOCKEY
Appellant
and
BAUER HOCKEY CORP.
Respondent
and
EASTON SPORTS CANADA INC.
Respondent
Heard at Montreal, on September 15, 2015.
Judgment delivered at Ottawa, Ontario, on February 9, 2016.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: PELLETIER J.A. GAUTHIER J.A.
139 Date: 20160209
Docket: A-402-14
Citation: 2016 FCA 44
CORAM: NADON J.A. PELLETIER J.A. GAUTHIER J.A. 2016 FCA 44 (CanLII)
BETWEEN:
SPORT MASKA INC. dba REEBOK-CCM HOCKEY
Appellant
and
BAUER HOCKEY CORP.
Respondent
and
EASTON SPORTS CANADA INC.
Respondent
REASONS FOR JUDGMENT
NADON J.A.
I. Introduction
[1] In this appeal, Sports Maska Inc. dba Reebok-CCM Hockey (“CCM”) challenges the judgment (2014 FC 853) of Harrington J. (the “Judge”) of the Federal Court dated September 8,
2014 pursuant to which he dismissed CCM’s motion which sought to overturn the June 20, 2014
140 Page: 2 order (2014 FC 594) of Prothonotary Morneau (the “Prothonotary”) denying CCM’s motion for leave to intervene in proceedings commenced by the respondent Bauer Hockey Corp. (“Bauer”) in Federal Court File T-1036-13.
[2] For the reasons that follow, I would dismiss the appeal.
II. Facts 2016 FCA 44 (CanLII) [3] CCM, Bauer and Easton Sports Canada Inc. (“Easton”) are competitors in the hockey equipment industry. Bauer is the current owner of the trade-mark referred to as the “SKATES
EYESTAY Design” registered under number TMA361,722 (the “ ‘722 registration”, the “trade- mark” or the “mark”).
[4] On January 11, 2010, pursuant to a request made by Easton, the Registrar of Trade-marks
(the "Registrar") issued a notice under section 45 of the Trade-marks Act, R.S.C. 1985 c. T-13
(the “Act”) requiring Bauer to furnish evidence of use of the SKATES EYESTAY Design during the three year period preceding the date of the notice.
141 Page: 3
[5] On January 12, 2011, Bauer brought an action against Easton, inter alia, for infringement of the ‘722 registration (in Federal Court File: T-51-11). On December 21, 2012, Bauer launched a similar action against CCM (in Federal Court File: T-311-12).
[6] On April 5, 2013, the Registrar ordered that the ‘722 registration be expunged from the
Register because of her finding that the mark had not been used, as registered, in the relevant time frame. On June 11, 2013, Bauer filed, pursuant to section 56 of the Act, a notice of 2016 FCA 44 (CanLII) application appealing the Registrar’s decision in which Easton was named as a respondent (in
Federal Court File: T-1036-13) (“Bauer’s application”).
[7] On February 13, 2014, Bauer and Easton reached an agreement pursuant to which Bauer agreed to discontinue its infringement action against Easton and the latter agreed to abandon its contestation of Bauer’s application of the Registrar’s decision.
[8] On April 7, 2014, CCM filed a motion in the Federal Court seeking leave to intervene in
Bauer’s application.
[9] On April 9, 2014, CCM filed its statement of defence and counterclaim in Federal Court
File: T-311-12.
[10] On April 30, 2014, Bauer filed its reply and defence to CCM’s counterclaim arguing, inter alia, that CCM was barred from attacking its trade-mark by reason of an agreement concluded on February 21, 1989 between CCM and Bauer’s predecessors in title. More
142 Page: 4 particularly, CCM and Canstar Sports Group and Canstar Sports Inc. (“Canstar”), predecessors in title to Bauer, reached an agreement pursuant to which CCM undertook to withdraw its opposition to trade-mark application 548,351, filed on September 9, 1985 by Warrington Inc. (to whom Canstar succeeded in title), which led to the ‘722 registration on November 3, 1989. In a letter dated February 24, 1989, counsel for CCM wrote to the Registrar to advise that its client, the opponent, would not object to the use and registration of the trade-mark in association with the wares identified in the trade-mark application. 2016 FCA 44 (CanLII)
III. Decisions Below
A. The Prothonotary’s Decision
[11] In his decision of June 20, 2014, the Prothonotary, who was the case management judge assigned to Bauer's application and the related actions brought by Bauer against Easton and
CCM for infringement of the trade-mark, dismissed CCM's motion, brought under Rule 109 of the Federal Courts Rules, SOR/98-106 (the “Rules”), for leave to intervene in Bauer’s application.
[12] The Prothonotary began his analysis by pointing out that the effect of granting leave to
CCM would be to substitute CCM as a respondent for the absent Easton. This was not, according to the Prothonotary, how Rule 109 should be used. In so saying, the Prothonotary referred to this
Court’s decision in Canada (Attorney General) v. Siemens Enterprises Communications Inc.,
2011 FCA 250, 423 N.R. 248 (“Siemens”) where, in his view, this Court held that Rule 109 was not meant to be used so as to allow an intervener to substitute itself as a respondent.
143 Page: 5
[13] The Prothonotary then addressed CCM’s argument that the interests of justice militated in favour of granting it leave to intervene so as to provide the Court with a different view of the case. The Prothonotary dealt with CCM’s argument by referring, with approval, to Madam
Prothonotary Tabib’s decision in Genencor International Inc. v. Canada (Commissioner of
Patents), 2007 FC 376, 55 C.P.R. (4th) 395 (“Genencor”) where she made the point that even if it was useful for the Court to have an opponent in a patent proceeding, the Court could nevertheless carry out its duties without an opposing side. 2016 FCA 44 (CanLII)
[14] The Prothonotary then turned to Bauer’s argument that its agreement with Easton should be respected, and that it not be jeopardized by allowing CCM to substitute itself as a respondent in lieu of Easton. The Prothonotary indicated that he fully agreed with that argument.
[15] The Prothonotary then addressed CCM’s argument that there was a public interest component in section 45 proceedings. He rejected this argument and again referred to
Prothonotary Tabib’s decision in Genencor where the learned Prothonotary, albeit on a question of registration of intellectual property and not section 45 proceedings, held that there was no public interest involved in allowing an intervention so as to ensure that untenable or invalid intellectual property registrations not be maintained.
[16] Finally, the Prothonotary turned to Bauer’s submission that because CCM in its counterclaim to the infringement action in Federal Court File T-311-12 had raised the invalidity of the ‘722 registration on the same grounds as those relied on by the Registrar in expunging the mark at issue, it had raised in its defence to CCM’s counterclaim the fact that CCM was barred,
144 Page: 6 by reason of its 1989 agreement with Bauer, from attacking the ‘722 registration. This led the
Prothonotary to make the comment that “[i]t would appear that said argument by Bauer would not be possible to make against CCM in the Appeal should the latter be granted intervener status” (paragraph 13 of the Prothonotary’s decision).
[17] The Prothonotary then referred to my colleague Stratas J.A.’s reasons in Canada
(Attorney General) v. Pictou Landing First Nation, 2014 FCA 21, [2015] 2 F.C.R. 253 (“Pictou 2016 FCA 44 (CanLII) Landing”) where, at paragraph 11, he sets forth those factors which he considers relevant in determining whether intervention should be granted to a proposed intervener. In light of the factors set out in Pictou Landing, the Prothonotary concluded that by reason of what he referred to as the “full debate already ongoing in File T-311-12”, the first two factors were met but that factors III, IV and V were not met.
[18] This led the Prothonotary to opine that, on balance, CCM should not be allowed to intervene in the section 45 proceedings which were “well under way” (paragraph 16 of the
Prothonotary’s reasons). Consequently, he dismissed CCM’s motion to intervene with costs.
B. The Federal Court’s Decision
[19] The Judge began by addressing the standard of review which should be applied in reviewing the Prothonotary’s decision. In his view, because the questions on a motion to intervene were not vital to the final issue of the case, the Prothonotary’s decision should be reviewed in accordance with the principles set out by this Court in Merck & Co. v. Apotex Inc.,
2003 FCA 488, 2 F.C.R. 459, at paragraph 19. Thus, it was his task to determine whether the
145 Page: 7
Prothonotary had exercised his discretion based upon a wrong principle or upon a misapprehension of the facts.
[20] The Judge then briefly reviewed the facts and turned to the factors which were to guide him in determining whether leave should be granted. In that regard, he referred to this Court’s decision in Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 90,
[1989] F.C.J. No. 707 (“Rothmans, Benson & Hedges”) where the Court, in allowing the appeals 2016 FCA 44 (CanLII) before it, affirmed the correctness of the factors, i.e. six factors relevant to the determination of a leave to intervene application, enunciated by the trial judge, Rouleau J. of the Federal Court
([1990] 1 F.C. 74, 29 F.T.R. 267, at paragraph 12).
[21] After setting out Rouleau J.’s six factors, the Judge turned to Stratas J.A.’s reasons in
Pictou Landing and cited paragraph 11 thereof where my colleague sets forth the factors which, in his view, are relevant to present day litigation. The Judge then remarked that the relevant factors, as set out in Rothmans, Benson & Hedges and in Pictou Landing, were not to be taken, in his words, au pied de la lettre. He also indicated that this Court’s decision in Siemens was not to be taken as an absolute bar to a motion to intervene, adding that he did not feel that it was necessary to carry out a detailed analysis based on the factors of Rothmans, Benson & Hedges and Pictou Landing. He then pointed out that Stratas J.A.’s reasons in Pictou Landing were those of a single motions judge and thus not binding on this Court, adding that this Court was reluctant to reverse itself, citing for that proposition our decision in Miller v. Canada (Attorney General),
2002 FCA 370, [2002] F.C.J. No. 1375 (“Miller”), at paragraph 8.
146 Page: 8
[22] The Judge then turned to the merits of the motion before him. In his view, there could be no doubt that CCM had an interest in Bauer’s application for judicial review of the Registrar’s decision and that CCM’s intervention would be useful to the Court in that no one was opposing
Bauer in the proceedings. He then stated that the Prothonotary was clearly wrong in considering the settlement agreement between Bauer and Easton.
[23] He then turned his attention to the question of whether the Prothonotary had downplayed 2016 FCA 44 (CanLII) the public interest aspect of the Register. He pointed to a number of decisions, both of this Court and of the Federal Court, to make the point that there was a public interest aspect in proceedings arising under section 45 of the Act. However, in his view, the public interest aspect of these proceedings did not rank as high as the public interest aspect of cases, for example, where constitutional issues were raised. On this point, the Judge concluded that the Court “might well benefit from CCM’s intervention as it would give a different perspective, in the sense that Easton is giving no perspective at all” (paragraph 29 of the Judge’s reasons).
[24] All of this led the Judge to conclude that although the Prothonotary had been wrong to consider the agreement between Bauer and Easton, that error was not fatal as he was satisfied that the Prothonotary would, in any event, have come to the same conclusion. The Judge then made the point that the better forum in which CCM could advance its arguments was in the action for infringement between it and Bauer. Thus, in the Judge’s view, the Prothonotary had not wrongly exercised his discretion upon a wrong principle or upon a misapprehension of facts.
Hence, he dismissed CCM’s appeal.
147 Page: 9
IV. Issues and Standard of Review
[25] In my opinion, there are two issues raised in this appeal:
(1) What are the applicable criteria to decide whether to grant intervener status to CCM?
(2) Was the Judge wrong in not interfering with the Prothonotary's decision?
[26] There is no dispute between the parties that a prothonotary’s decision ought to be 2016 FCA 44 (CanLII) disturbed by a judge only where it is clearly wrong, in the sense that the exercise of discretion was based upon a wrong principle or a misapprehension of the facts. Consequently, in the present matter, we should not interfere with the Judge’s decision unless there were grounds justifying his intervention, or if he arrived at his decision on a wrong basis or was plainly wrong
(Z.I. Pompey Industrie v. Ecu-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450, at paragraph 18).
V. Parties Submissions
A. CCM’s Submissions
[27] CCM argues that the Prothonotary's decision was based upon wrong principles and a misapprehension of the facts thus constituting grounds for the Judge to set his order aside. CCM finds numerous errors in the Prothonotary's decision that can be divided into the following three categories:
(1) Misapplying this Court’s decision in Siemens
[28] In applying the Pictou Landing criteria, the Prothonotary concluded that criteria III, IV and V had not been met. Criteria III relates to the different and valuable perspective that an
148 Page: 10 intervener should advance. The Prothonotary held that CCM would only be replacing Easton as a respondent and for that finding, relied on this Court’s decision in Siemens. CCM argues, however, that the rule put forward in Siemens was only "directed to the particular mischief of duplication" (CCM’s memorandum of fact and law, paragraph 32). In CCM’s view, there would be no duplication in this case given that Easton undertook not to participate in the judicial review. 2016 FCA 44 (CanLII) (2) Finding no public interest in section 45 proceedings / Failing to appreciate that it is in the interests of justice that the Court hear both sides of the issue / Finding intervention inconsistent with Rule 3
[29] The Pictou Landing criteria IV and V purport to ensure that the intervention is in the interests of justice and that it would advance the imperatives set forth in Rule 3 which provides that the Rules are to be interpreted and applied so as to secure “the just, most expeditious and least expensive determination of every proceeding on its merits”. CCM argues that there is a public interest in ensuring the accuracy of the Register as a public record of trade-marks: “[t]he fact that an applicant under s. 45 is not even required to have an interest in the matter (…) speaks eloquently to the public nature of the concerns the section is designed to protect” (CCM’s memorandum of fact and law, paragraph 39, quoting Meredith & Finlayson v. Canada (Registrar of Trade-marks), [1991] F.C.J. No. 1318, 40 C.P.R. (3d) 409 (F.C.A.) (“Meredith”)).
[30] CCM asserts that it was an error on the part of the Prothonotary to refuse to grant it leave to intervene on the basis that there was a "full debate already ongoing" between itself and Bauer because of the different questions at issue in the section 45 proceedings and in the infringement
149 Page: 11 action. Moreover, the existence of another efficient means to submit a question to the Court was held to be irrelevant in Pictou Landing.
(3) Giving credence to Bauer's settlement with Easton
[31] This private agreement plays no role in considering whether CCM should be given the right to intervene. The Judge agreed with CCM on this point and found that the Prothonotary was clearly wrong in taking the settlement into account. 2016 FCA 44 (CanLII)
[32] CCM submits that the Judge identified a number of "errors" in the Prothonotary's decision: the settlement should not have been taken into account, there is a public aspect to the
Trade-marks Register, Siemens is not an absolute bar to intervention and the Court would be better served if someone were present to defend the expungement decision (CCM’s memorandum of fact and law, paragraph 21). In addition, CCM says that the Judge "erred in implying that the decision in Pictou Landing reverses the Federal Court of Appeal decision in
Rothmans" (CCM’s memorandum of fact and law, paragraph 71). CCM says that Pictou Landing simply updates and evolves the Rothmans, Benson & Hedges factors. Accordingly, the Judge's decision was plainly wrong.
B. Respondent's Submissions
[33] Bauer argues that the Judge's decision not to intervene is not fundamentally wrong given that the Prothonotary turned his mind to the applicable factors and did not misapprehend the facts. The sole error found by the Judge was the effect to be given to the settlement between it and Easton, and he was not satisfied that "without referring to that settlement, [the Prothonotary]
150 Page: 12 would have come to a different conclusion" (Bauer’s memorandum of fact and law, paragraph
48, quoting the Judge’s decision at paragraph 30).
[34] Contrary to what is suggested by CCM, the Judge’s decision was not based upon a finding that the infringement action would be a forum more appropriate for CCM's case, but rather on a rightful application of the standard of review. Bauer further argues that even greater deference should be given to the Prothonotary's decision for he was the Case Management Judge 2016 FCA 44 (CanLII) and was "intimately familiar" with the history and details of the matter. In Bauer’s view, "CCM must demonstrate that the Judge ‘erred in a fundamental way’ in refusing to disturb the
Prothonotary's decision, in that the latter was the ‘clearest case of misuse of judicial discretion’"
(Bauer’s memorandum of fact and law, paragraph 42).
[35] Bauer further says that the list of factors to consider in a motion for intervention were
"originally developed in Rothmans some 25 years ago and has since then been reiterated on several occasions" (Bauer’s memorandum of fact and law, paragraph 53). Bauer argues that the new test set out in Pictou Landing must not be applied to this case because it was created by a judge alone and is therefore not binding. Bauer points out that the "traditional" Rothmans,
Benson & Hedges factors were applied by the Federal Court in a trade-mark expungement case posterior to Pictou Landing (Coors Brewing Co. v. Anheuser-Busch, LLC, 2014 FC 318, 123
C.P.R. (4th) 340).
[36] Bauer also stresses that the motion to intervene is late (CCM only launched it after it learned that Bauer and Easton had reached an agreement), that there is no public interest in a
151 Page: 13 section 45 proceeding, that unopposed cases of this kind are commonplace in the Federal Court, and that CCM is already attacking the validity of the ‘722 registration in the infringement action.
Finally, Bauer argues that CCM undertook, in an agreement signed in 1989, not to object to the use or registration of the ‘722 registration. It is thus arguably breaching this agreement.
VI. Analysis
A. What are the applicable criteria to decide whether to grant CCM leave to intervene? 2016 FCA 44 (CanLII) [37] I begin by noting that there appears to be a certain amount of confusion as to the governing jurisprudence on the question of motions for leave to intervene since the decision of my colleague Stratas J.A. in Pictou Landing. It is my view, which I do not believe is contentious, that the decision of a panel of this Court has precedence over that of a single judge of the Court sitting as a motions judge. My colleague recognized as much in his reasons: see Pictou Landing at paragraph 8. This means that the governing case is Rothmans, Benson & Hedges.
[38] That said, I wish to make it clear that this panel, or for that matter any other panel of the
Court, cannot prevent a single motions judge from expressing his view of the law if he is so inclined. In my view, parties may use a single motions judge’s reasoning, if they wish, and make it part of their argument in order to convince the Court that it should change or modify its case law. But all should be aware that a single judge’s opinion does not change the law until it is adopted by a panel of the Court.
[39] A comparison of Rothmans, Benson & Hedges factors and Pictou Landing shows that the main differences between the two are the removal of the “lack of any other reasonable means”
152 Page: 14 factor (Rothmans, Benson & Hedges third factor) and of the “ability of the Court to hear the case without the intervener” factor (Rothmans, Benson & Hedges sixth factor), as well as the addition of the “compliance with procedural requirements” factor (Pictou Landing first factor), and the
“consistency with Rule 3” factor (Pictou Landing fifth factor). These differences are not, in my respectful view, of any substance. In effect, “compliance with procedural requirements” will generally always be a relevant consideration and the “consistency with Rule 3” factor can always be considered under the “interests of justice” factor (Rothmans, Benson & Hedges fifth factor). 2016 FCA 44 (CanLII)
[40] I do not disagree with Stratas J.A.’s comments in Pictou Landing that the existence of another appropriate forum is not necessarily a reason to refuse a proposed intervention that can be helpful to the Court. It obviously depends on the relevant circumstances. It is also undeniable that the Court, in most cases, is able to hear and decide a case without an intervener and that the
“more salient question is whether the intervener will bring further, different and valuable insights and perspectives that will assist the Court in determining the matter” (Pictou Landing, paragraph
9, last bullet). This requirement is, in essence, what Rule 109(2)(b) requires. In any event, as
Stratas J.A. recognized at paragraph 7 of his reasons, he could have reached the same result by applying the Rothmans, Benson & Hedges factors and ascribing little weight to the factors which he did not find relevant.
[41] In my opinion, the minor differences between the Rothmans, Benson & Hedges factors and those of Pictou Landing do not warrant that we change or modify the factors held to be relevant in Rothmans, Benson & Hedges. As the Rothmans, Benson & Hedges factors are not
153 Page: 15 meant to be exhaustive, they allow the Court, in any given case, to ascribe the weight that the
Court wishes to give to any individual factor.
[42] The criteria for allowing or not allowing an intervention must remain flexible because every intervention application is different, i.e. different facts, different legal issues and different contexts. In other words, flexibility is the operative word in dealing with motions to intervene. In the end, we must decide if, in a given case, the interests of justice require that we grant or refuse 2016 FCA 44 (CanLII) intervention. Nothing is gained by adding factors to respond to every novel situation which motions to intervene bring forward. In my view, the Rothmans, Benson & Hedges factors are well tailored for the task at hand. More particularly, the fifth factor, i.e. “[a]re the interests of justice better served by the intervention of the proposed third party?” is such that it allows the
Court to address the particular facts and circumstances of the case in respect of which intervention is sought. In my view, the Pictou Landing factors are simply an example of the flexibility which the Rothmans, Benson & Hedges factors give to a judge in determining whether or not, in a given case, a proposed intervention should be allowed.
[43] To conclude on this point, I would say that the concept of the “interests of justice” is a broad concept which not only allows the Court to consider the interests of the Court but also those of the parties involved in the litigation.
B. Was the Judge wrong in not interfering with the Prothonotary's decision?
[44] In determining the second question before us, it must be kept in mind that our task is not to decide whether we believe that CCM meets the relevant factors for intervention and thus that
154 Page: 16 leave should have been granted, but whether the Judge was wrong in refusing to interfere with the Prothonotary’s decision. To that task I now turn.
[45] So the question is: should the Judge have interfered with the Prothonotary’s order? CCM says that the Prothonotary made a number of errors which should have justified his intervention.
First, it says that the Prothonotary misapplied Siemens. 2016 FCA 44 (CanLII) [46] I begin by saying that CCM’s motion is not, in reality, a motion for leave to intervene. It is, in effect, a motion which seeks to allow CCM to become the respondent, in lieu of Easton, in
Bauer’s application. In that respect, CCM’s motion is similar to that made by West Atlantic
Systems (“WAS”) in Siemens where WAS sought to intervene in an application for judicial review filed by the Attorney General following a decision of the Canadian International Trade
Tribunal (the “CITT”) which was unfavourable to the Department of Public Works and
Government Services. More particularly, the CITT determined that the procurements at issue were deficient and failed to comply with Article 1007(1) of the North American Free Trade
Agreement.
[47] Siemens Enterprises Communications Inc. (“Siemens”), which had filed a number of complaints with the CITT and which had fully participated in the proceedings before that tribunal, chose not to participate in the Attorney General’s judicial review application. WAS, which had unsuccessfully attempted to participate in the proceedings before the CITT, sought to obtain leave from this Court to intervene in the judicial review proceedings. In denying WAS’
155 Page: 17 motion, Mainville J.A., writing for the Court, made the following comments at paragraph 4 of his reasons.
By its motion, WAS is attempting to substitute itself for Siemens as the respondent in this judicial review application. WAS seeks to challenge the application under a proposed order of the Court which would, for all intents and purposes, grant it a status equivalent to that of a respondent in these proceedings. The rules permitting interventions are intended to provide a means by which persons who are not parties to the proceedings may nevertheless assist the Court in the determination of a factual or legal issue related to the proceedings (Rule 109(2)b) of the Federal Courts Rules). These rules are not to be used in order to replace a respondent by an intervener, nor are they a mechanism which allows a
person to correct its failure to protect its own position in a timely basis. 2016 FCA 44 (CanLII)
[emphasis added]
[48] CCM argues that the Prothonotary erred in relying on Siemens because our decision in that case “should be understood to be directed to the particular mischief of duplication”
(paragraph 32 of CCM’s memorandum of fact and law). In my respectful view, this argument is without merit as there was no question of duplication in Siemens since there was no respondent in the judicial review proceedings as Siemens had decided not to participate.
[49] Considering that our Court in Siemens held that Rule 109 should not be used to substitute a new respondent in the proceedings, it cannot be said, in my view, that the Prothonotary was wrong to consider, as a relevant factor, that the purpose of CCM’s motion was to substitute itself as a respondent in lieu of Easton. However, I agree with the Judge that Siemens does not, per se, constitute an absolute bar to a motion to intervene.
[50] Second, CCM says that the Prothonotary was in error in holding that there was no public interest in section 45 proceedings sufficient to support its intervention in Bauer’s application.
156 Page: 18
More particularly, it says that the Prothonotary was wrong to rely on Prothonotary Tabib’s decision in Genencor which dealt with an entirely different matter, adding that “[t]here is a public interest in ensuring the accuracy of the Register as a public record of trade-marks”
(CCM’s memorandum of fact and law, paragraph 41).
[51] CCM also says that the Prothonotary erred in holding that Bauer’s judicial review proceedings could be disposed of without its participation, adding that the Prothonotary again 2016 FCA 44 (CanLII) erred in relying on Genencor. CCM says that both the Rules and section 45 of the Act envisage the participation of the requesting party in section 45 proceedings and any appeal taken therefrom. In CCM’s view, it can be said that there is an expectation that in any appeal from a section 45 decision, the Court will have the benefit of an appellant and a respondent. Thus, CCM says that the Judge ought to have intervened in that the Prothonotary was wrong to find that there was no public interest in section 45 proceedings and that the matter could be heard without its participation.
[52] Before determining whether the Prothonotary erred, as argued by CCM, it is important to have a brief look at section 45 and the proceedings which arise from it. Pursuant to section 45, the Registrar may at any time and at the written request of any person, give notice to the registered owner of a trade-mark requiring it to show, by way of an affidavit or a statutory declaration, that the mark was used in Canada during the three years preceding the notice.
[53] In making a determination as to whether or not the mark was used in the time frame provided by section 45, the only evidence admissible before the Registrar is the aforementioned
157 Page: 19 affidavit or statutory declaration. It is on the basis of that evidence and the parties’ representations that the Registrar must decide whether or not there has been use of the mark as required by section 45.
[54] Following the Registrar’s decision, an appeal may be taken before the Federal Court pursuant to section 56 of the Act and new evidence may be submitted to the Court in addition to the evidence already adduced before the Registrar. If the new evidence could have materially 2016 FCA 44 (CanLII) affected the Registrar’s decision, then the Court must consider the matter de novo and reach its own conclusion on the issues to which the new evidence pertains.
[55] The purpose of section 45 proceedings is to remove registrations which have fallen into disuse. The burden of proof on the registered owner is not a heavy one. In Locke v. Osler, Hoskin
& Harcourt LLP, 2011 FC 1390, 98 C.P.R. (4th) 357, O’Keefe J. stated at paragraph 23 that
“[t]he threshold to establish use is relatively low and it is sufficient if the applicant establishes a prima facie case of use”. It has also been said that the purpose of section 45 of the Act is to remove deadwood from the Register (see Eclipse International Fashions Canada Inc. v. Shapiro
Cohen, 2005 FCA 64, 348 N.R. 86, at paragraph 6). In Dart Industries Inc. v. Baker & Mckenzie
LLP, 2013 FC 97, 426 F.T.R. 98, at paragraph 13, O’Keefe J. commented that “[p]roceedings under section 45 of the Act are summary and administrative in nature”. Finally, in Meredith,
Huguessen J.A., writing for this Court, made these comments, at page 412, regarding section 45 proceedings:
Section 45 provides a simple and expeditious method of removing from the register marks which have fallen into disuse. It is not intended to provide an alternative to the usual inter partes attack on a trade mark envisaged by s. 57. The fact that an applicant under s. 45 is not even required to have an interest in the
158 Page: 20
matter (the respondent herein is a law firm) speaks eloquently to the public nature of the concerns the section is designed to protect.
Subsection 45(2) is clear: the Registrar may only receive evidence tendered by or on behalf of the registered owner. Clearly it is not intended that there should be any trial of a contested issue of fact, but simply an opportunity for the registered owner to show, if he can, that his mark is in use or if not, why not.
An appeal to the Court, under s. 56 does not have the effect of enlarging the scope of the inquiry or, consequentially, of the evidence relevant thereto. We cannot improve on the words of Thurlow C.J., speaking for this Court, in Plough (Canada) Ltd. v. Aerosol Fillers Inc. (1980), 53 C.P.R. (2d) 62 at p. 69, [1981], 1 F.C. 679, 34 N.R. 39, quoting with approval the words of Jackett P. in Broderick & Bascom Rope Co. v. Registrar of Trade Marks, (1970), 62 C.P.R. 268.: 2016 FCA 44 (CanLII)
In my view, evidence submitted by the party at whose instance the s-s. 44(1) [now 45(1)] notice was sent is not receivable on the appeal from the Registrar any more than it would have been receivable before the Registrar. On this point, I would adopt the view expressed by Jackett P. in Broderick Bascom Rope Co. v. Registrar of Trade Marks, supra, when he said at p. 279:…
[emphasis added]
[56] In my view, the Prothonotary ought to have considered that there was a public interest component in section 45 proceedings. In concluding as he did, the Prothonotary relied on
Genencor for support. However, I note from paragraphs 3 and 7 of Genencor that Prothonotary
Tabib made a clear distinction between the nature of the proceedings before her and those which arise under section 45 of the Act. More particularly, in refusing to grant intervener status to the proposed intervener, she pointed out that the provisions at issue before her, namely sections 48.1 to 48.5 of the Patent Act, R.S.C., 1985, c. P-4 were not similar to those arising under section 45 in that they did not give third parties the right to challenge patents by way of a summary process in the way that section 45 allowed third parties to challenge trade-marks.
159 Page: 21
[57] Section 45 proceedings contemplate the participation of persons with no interest whatsoever in the existence of a given trade-mark. The provision allows anyone to initiate a section 45 notice, to submit representations to the Registrar and in the case of an appeal, to either launch the appeal or to participate as a respondent in that appeal. As this Court said at page 412 in Meredith, this “speaks eloquently to the public nature of the concerns the section is designed to protect”, i.e. removing from the Registrar marks which have fallen into disuse. Thus, it necessarily follows, in my view, that the nature of the proceedings under section 45 is a relevant 2016 FCA 44 (CanLII) consideration in determining whether or not intervener status should be given to a third party, such as CCM in the present matter.
[58] In coming to that view, I am mindful of the arguments put forward by Bauer in response to CCM’s arguments on this issue. In particular, I am mindful of Bauer’s arguments that
Genencor is relevant, that Meredith had to be understood in its proper context, i.e. that the public nature of section 45 had to do with the fact that any member of the public could initiate a section
45 notice, that, as in Genencor, there is no overriding public interest in ensuring that invalid trade-marks are not maintained on the public register, that proceedings arising under section 45 do not usually involve complicated legal questions but, to the contrary, usually pertain to simple well known legal principles resulting from an extensive body of jurisprudence and that proceedings under section 45 are commonplace in the Federal Court.
[59] However, the fact that there is a public aspect to section 45 proceedings does not elevate these proceedings to a level comparable to cases that, in the words of the Judge at paragraph 26 of his reasons, “affect large segments of the population or raise constitutional issues”. Thus, the
160 Page: 22 public nature of section 45 proceedings must be balanced against other relevant considerations which, in my respectful view, must be considered in the present matter. As I will explain shortly, the existence of a public interest component in section 45 does not, in the present matter, outweigh other considerations which militate against granting intervention. In my view, when all of the relevant factors are considered, the public nature of section 45 proceedings does not tip the scale in CCM’s favour. In other words, a proper balancing of all the relevant factors leads me to conclude that the Prothonotary did not err in refusing to allow CCM to intervene. 2016 FCA 44 (CanLII)
[60] I now turn to these other considerations.
[61] The first consideration is the agreement entered into between Bauer and CCM wherein
CCM undertook and agreed not to object to Bauer’s use or registration of the trade-mark at issue.
On the basis of this agreement, Bauer asserts that CCM is contractually barred from attacking the validity of its trade-mark. It says that this argument can be put forward in its defence against
CCM’s counterclaim in Federal Court File T-311-12 and will constitute one of the issues to be determined by the Federal Court in that file. However, Bauer says that if intervener status is given to CCM, it will be unable to raise the issue in the context of section 45 proceedings in that the Federal Court “will merely be reviewing the decision of the Registrar to expunge Bauer’s
Trademark registration applying the appropriate standard of review” (Bauer’s memorandum of fact and law, paragraph 113).
[62] I should point out that the aforesaid agreement between CCM and Bauer was considered by our Court in Bauer Hockey Corp. v. Sports Maska, 2014 FCA 158 where it held that the judge
161 Page: 23 below had erred in striking certain portions of Bauer’s amended statement of claim. More particularly, our Court was of the view that Bauer’s amended allegations, which relied in part on the aforesaid agreement, were such that it could not be said that its claim for punitive damages had no reasonable prospect of success. In other words, it was not plain and obvious, in the
Court’s view, that the amended statement of claim disclosed no reasonable cause of action with respect to punitive damages. 2016 FCA 44 (CanLII) [63] The Prothonotary, at paragraph 13 of his reasons, considered this point concluding that
“it would appear that said argument by Bauer would not be possible to make against CCM in the appeal should the latter be granted intervener status”. It is clear, in my view, that this is one of the considerations which led the learned Prothonotary to conclude that intervention should not be granted to CCM. In considering Bauer’s contractual arrangements with CCM as relevant in the determination of whether intervener status should be granted, the Prothonotary did not err. I would go further and say that it would have been an error on his part not to give consideration to this matter.
[64] The other consideration which, in my view, militates against granting intervener status to
CCM is the existence of litigation between Bauer and CCM in Federal Court File T-311-12. In that file, Bauer has instituted proceedings against CCM claiming that CCM has infringed its trade-mark and CCM has counter-claimed seeking a declaration that the trade-mark is invalid. In seeking the invalidity of the trade-mark, CCM says at paragraph 25 of its Statement of Defence and Counterclaim:
25 […] Bauer does not use the [Trademark] as a trade-mark; rather, the [Trademark] is merely a decorative border or surround on the skate to highlight
162 Page: 24
the BAUER word mark. To the extent that the [Trademark] or the Floating Skate’s Eyestay Design have ever appeared on Bauer’s skates, they have always been in combination with the BAUER word mark. […]
[65] The above assertion by CCM is similar to paragraph 13 of the Registrar’s decision where she said:
[13] I find that the addition of the word element “BAUER” IS A DOMINANT ELEMENT OF THE [Trademark] as used. As such, the [Trademark] as used is no longer simply a design mark but is clearly composed of two elements – an eyestay
design and the word BAUER. As for the use of BAUER within the design mark, I 2016 FCA 44 (CanLII) am not convinced that the public would likely perceive it as a separate trade-mark from the [Trademark] at issue. Such additional matter would detract from the public’s perception of the use of the trade-mark “SKATES’S EYESTAY DESIGN” per se
[66] Bauer says that its use of the trade-mark at the time that Easton requested that the
Registrar send a section 45 notice is the same as that when it reached its agreement with CCM approximately 30 years ago. In its reply and defence to CCM’s counterclaim, Bauer also says, as
I have just indicated , that CCM is contractually barred from challenging its trade-mark.
[67] The Prothonotary was of the view that the litigation in Court File T-311-12 was a factor which had to be considered in determining whether intervener status should be given to CCM. At paragraph 15 of his reasons, the Prothonotary referred to those proceedings by saying that there was a “full debate already ongoing in File T-311-12 - a dynamic not present in Pictou Landing”.
The Judge shared the Prothonotary’s view and said at paragraph 31 of his reasons that “[t]he validity of the trade-mark is in issue in the litigation between Bauer and CCM in docket T-311-
12. That is the forum in which CCM should make its case”.
163 Page: 25
[68] In my view, there was no error in so concluding on the part of the Prothonotary and the
Judge. I agree with Bauer’s assertion that allowing CCM to intervene would not, in any event, necessarily simplify and expedite the ongoing dispute over Bauer’s trade-mark. However, I need not go into this in greater detail since both the Prothonotary and the Judge, exercising their respective discretions, were of the view that litigation in File T-311-12 was a relevant consideration in determining whether CCM should be allowed to intervene. I can see no basis on which I could conclude that it was wrong on their part to take the ongoing litigation between the 2016 FCA 44 (CanLII) parties as a relevant factor. Again, I am of the view that it would have been an error not to take such litigation into consideration.
[69] CCM further submits, as it did before the Judge, that the Prothonotary erred in considering Bauer’s settlement with Easton. As I indicated earlier, the Judge agreed with CCM but was satisfied that the Prothonotary’s error was inconsequential. I am also of that view. In any event, it is my opinion that Bauer’s agreement with CCM and the existence of litigation in
Federal Court File T-311-12 clearly outweigh all other considerations in this file.
[70] Although I believe that this is sufficient to dispose of the appeal, I will nonetheless briefly examine the specific factors enunciated in Rothmans, Benson & Hedges in the light of the evidence before us.
[71] First, is CCM directly affected by the outcome of the section 45 proceedings? The answer is that it is affected, in a certain way. More particularly, if the Registrar’s decision is upheld,
Bauer’s trade-mark will be expunged and that conclusion will be helpful to CCM in Bauer’s
164 Page: 26 infringement action. However, it is clear to me, in the circumstances of this case, that the purpose of CCM’s attempt to intervene is to gain a tactical advantage. In so saying I do not intend to criticize CCM. I am simply making what I believe to be a realistic observation of what is going on in the file.
[72] As to the second factor, i.e. whether there exists a justiciable issue and a veritable public interest, I have already dealt with this in addressing CCM’s arguments concerning the public 2016 FCA 44 (CanLII) nature of section 45 proceedings.
[73] As to the third factor, i.e. whether there is a lack of any other reasonable or efficient means to submit the question at issue before the Court, the answer is no. The question raised in the section 45 proceedings is, albeit in a different setting, also raised in the litigation conducted by the parties in Federal Court File: T-311-12. Preventing CCM from intervening in the section
45 proceedings will not cause it any prejudice other than the loss of a tactical advantage. In any event, CCM can and could have requested the Registrar to give Bauer a section 45 notice at any time. It chose not to do so for reasons which are of no concern to us. Whether it did not request the Registrar to give such a notice because of its agreement with Bauer not to object to Bauer’s use or registration of the trade-mark is a question which I need not address.
[74] With regard to the fourth factor, i.e. whether the position of the proposed intervener can be adequately defended by one of the parties, the answer is no in that there is no party to the case other than Bauer. The position which CCM wishes to advance is that which Easton put forward,
165 Page: 27 with success, before the Registrar and which it would have defended in the appeal before the
Federal Court.
[75] As to the sixth factor, i.e. can the Court hear and decide the case on its merits without the proposed intervener, the answer is yes. The fact that there would be no respondent does not prevent the Federal Court from performing its task in the circumstances. There can be no doubt that a respondent would be helpful to the Court but, in the circumstances, this factor does not tip 2016 FCA 44 (CanLII) the scale in favour of CCM. In any event, that was the conclusion arrived at by the Prothonotary and I can see no basis to disturb it.
[76] To repeat myself, I am satisfied that when all of the relevant considerations are taken in, the interests of justice are better served by not allowing CCM to intervene.
VII. Conclusion
[77] For these reasons, I conclude that the Judge made no error in refusing to interfere with the Prothonotary’s decision. Consequently, I would dismiss the appeal but, in the circumstances, without costs.
"M Nadon" J.A. “I agree. J.D. Denis Pelletier J.A.”
“I agree. Johanne Gauthier J.A.”
166 FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-402-14
(APPEAL FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE HARRINGTON DATED SEPTEMBER 8, 2014, DOCKET NUMBER T-1036-13)
STYLE OF CAUSE: SPORT MASKA INC. dba REEBOK-CCM HOCKEY v. BAUER HOCKEY CORP. and EASTON SPORTS CANADA INC. 2016 FCA 44 (CanLII) PLACE OF HEARING: MONTREAL
DATE OF HEARING: SEPTEMBER 15, 2015
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: PELLETIER J.A. GAUTHIER J.A.
DATED: FEBRUARY 9, 2016
APPEARANCES:
Christopher Van Barr FOR THE APPELLANT
François Guay FOR THE RESPONDENT Jean-Sébastien Dupont
SOLICITORS OF RECORD:
Gowling Lafleur Henderson LLP FOR THE APPELLANT Ottawa, Ontario
Smart & Biggar FOR THE RESPONDENT Montreal, Québec
167 TAB B2 AUTHORITIES
Rothmans, Benson & Hedges Inc v Canada (AG) (TD), [1990] 1 FC 74.
168 A-277-89 Rothmans, Benson & Hedges Inc. (Plaintiff) (Appellant) v. Attorney General of Canada (Defendant) (Respondent) and Canadian Cancer Society (Intervenor) A-301-89 Rothmans, Benson & Hedges Inc. (Plaintiff) v. Attorney General of Canada (Defendant)
INDEXED AS: ROTHMANS, BENSON & HEDGES INC. V. CANADA (ATTORNEY GENERAL) (CA.) Court of Appeal, Hugessen, MacGuigan and Des- jardins JJ.A.—Ottawa, August 17, 1989. Practice — Parties — Intervention — Appeals from orders granting Canadian Cancer Society (CCS), and denying Insti- tute of Canadian Advertising (ICA), leave to intervene in action attacking constitutionality of Tobacco Products Control Act — Interventions at trial not to be unduly restricted where Charter s. I defence to attack on public statute only serious issue — Interest required to intervene in public interest litiga- tion recognized by courts in organization genuinely interested in, and possessing special knowledge and expertise related to, issues — No error in finding CCS meeting test, but interven- tion should be restricted to s. 1 issues — ICA's application granted — Position extending beyond question of advertising of tobacco products to more general questions relating to commercial free speech — May contribute to balancing pro- cess in s. 1 assessment of justification of limits imposed upon Charter-guaranteed freedom.
Constitutional law — Charter of Rights — Limitation clause — Appeals from orders granting one organization and denying another leave to intervene in action attacking constitu- tionality of Tobacco Products Control Act — Interventions at trial not subject to traditional restrictions where Charter s. I defence to attack on public statute only serious issue — Interest required to intervene recognized in organization genu-
169 inely interested in, and possessing special knowledge and exp- ertise related to, issues.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2(b). Tobacco Products Control Act, S.C. 1988, c. 20.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Re Canadian Labour Congress and Bhindi et al. (1985), 17 D.L.R. (4th) 193 (B.C.C.A.). COUNSEL: Edward P. Belobaba and Barbara L. Ruther- ford for appellant. Gerry N. Sparrow for respondent. Karl Delwaide and Andre T. Mecs for intervenor. Claude R. Thomson, Q.C. for Institute of Canadian Advertising.
SOLICITORS: Gowling, Strathy & Henderson, Toronto, for appellant. Deputy Attorney General of Canada for respondent. Martineau, Walker, Montréal, for intervenor.
Campbell, Godfrey & Lewtas, Toronto, for Institute of Canadian Advertising.
The following are the reasons for judgment of the Court delivered orally in English by
HUG ESSEN J.A.: These two appeals, which were heard together, are from orders made by Rouleau J. granting, in the case of the Canadian Cancer Society (CCS) [ [ 1990] 1 F.C. 74], and denying, in the case of the Institute of Canadian Advertising (ICA) [[1990] 1 F.C. 84], leave to intervene in an action brought by Rothmans, Benson & Hedges Inc. (Rothmans) against the Attorney General of Canada attacking the constitutionality of the Tobacco Products Control Act (TPCA) (S.C. 1988, c. 20).
170 It is common ground that the plaintiff's attack is primarily Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] based, invoking the guarantee of freedom of expression in paragraph 2(b). There can also be no doubt, given the prohibitions con- tained in the TPCA, that such attack is best met by a section 1 defence and that it is on the success or failure of the latter that the outcome of the action will depend.
We are all of the view that Rouleau J. correctly enunciated the criteria which should be applicable in determining whether or not to allow the request- ed interventions. This is an area in which the law is rapidly developing and in a case such as this, where the principal and perhaps the only serious issue is a section 1 defence to an attack on a public statute, there are no good reasons to unduly restrict interventions at the trial level in the way that courts have traditionally and properly done for other sorts of litigation. A section 1 question normally requires evidence for the Court to make a proper determination and such evidence should be adduced at trial (see Re Canadian Labour Congress and Bhindi et al. (1985), 17 D.L.R. (4th) 193 (B.C.C.A.)). Accordingly we think that, in any event for the purpose of this case, Rouleau J. was right when he said [at page 79] "the interest required to intervene in public interest litigation has been recognized by the courts in an organization which is genuinely interested in the issues raised by the action and which possesses special knowledge and expertise related to the issues raised".
As far as the intervention by the CCS is con- cerned we have not been persuaded that Rouleau J. committed any reviewable error in finding that it met the test thus enunciated. It is our view, however, that the intervention by the CCS should be restricted to section 1 issues, that it be required to deliver a pleading or statement of intervention within ten days and permitted to call evidence and
171 to present argument in support thereof at trial. Any questions relating to discovery or otherwise to matters of procedure prior to trial should be deter- mined either by agreement between the parties or on application to the Motions Judge in the Trial Division. The appeal by Rothmans will therefore be allowed for the limited purpose only of varying the order as aforesaid.
As far as concerns the requested intervention by ICA we are of the view that justice requires that this application be granted as well. The Motions Judge recognized that ICA has an interest in the litigation but seemed to feel that its position and expertise were no different from that of the plain- tiff Rothmans. With respect we disagree. The ICA's position in this litigation extends beyond the narrow question of advertising of tobacco products to more general questions relating to commercial free speech. In a section 1 assessment of the justification and reasonableness of limits imposed upon a Charter-guaranteed freedom that position may contribute importantly to the weighing and balancing process. Its appeal will therefore be allowed and leave to intervene granted on the same terms as those indicated above for the CCS.
In our view this is not a case for costs in either Division.
172 TAB XX AUTHORITIES
Rothmans, Benson & Hedges Inc v. Canada (AG) (TD), [1990] 1 FC 74.
173 T-1416-88 Rothmans, Benson & Hedges Inc. (Plaintiff) v. Attorney General of Canada (Defendant)
INDEXED AS: ROTHMANS, BENSON & HEDGES INC. V. CANADA (ATTORNEY GENERAL) (T.D.)
Trial Division, Rouleau J.—Toronto, April 7; Ottawa, May 19, 1989.
Practice — Parties — Intervention — Canadian Cancer Society seeking to intervene in action attacking constitutional- ity of legislation prohibiting advertising of tobacco products — As no express provision in Federal Court Rules for interven- tion, necessary to look to practice in provincial courts — Ontario Rules permitting intervention of nonparty claiming interest in subject-matter of proceeding, provided no delay or prejudice — 'Interest" broadly interpreted in constitutional matters — Criteria justifying intervention — Objection that addition of party lengthening proceeding rejected — Interven- tion of party with special knowledge and expertise permitted to give courts different perspective on issue, particularly where first-time Charter arguments involved — Nature of issue and likelihood of useful contribution by applicant to resolution of action without prejudice to parties key considerations — Application allowed.
This was an application by the Canadian Cancer Society to intervene in an action attacking the constitutionality of the Tobacco Products Control Act, which prohibits the advertising of tobacco products in Canada. The Society's primary object is cancer research and education of the public. It contended that it had special knowledge and expertise relating cancer to the consumption of tobacco products and that it had sources of information which may not have been available to the other parties. It also argued that it had a special interest with respect to the issues, and that its overall capacity to collect, comment upon and analyze all the data related to cancer, tobacco products and the advertising of those products would be helpful to the Court. The plaintiff opposed the application on the grounds that extensive hearings had been held prior to passage of the legislation, and that any information which the Society may have is in the public domain. Finally, it was argued that the applicant would be putting forward the same evidence and arguments as the Attorney General, thus unnecessarily pro- tracting the proceedings.
Held, the application should be allowed.
174 As there is no Federal Court Rule expressly permitting intervention, Rule 5 allows the Court to determine its practice and procedure by analogy to other provisions of the Federal Court Rules or to the practice and procedure for similar proceedings in provincial courts. The Ontario Rules of Civil Procedure permit the intervention of a nonparty who claims an interest in the subject-matter of the proceeding, provided this will not delay or prejudice the proceedings. The "interest" required has been widely interpreted, particularly where Chart- er and other constitutional issues have been raised. Recent cases have outlined several criteria to be considered in an application for intervention, but generally the interest required to intervene in public interest litigation has been recognized in an organization which is genuinely interested in, and possesses special knowledge and expertise related to, the issues. The objection that the addition of a party would lengthen the proceedings was rejected in that courts are familiar with lengthy and complex litigation including a multiplicity of par- ties. Also, even though one of the parties may be able to adequately defend a certain public interest, the intervention of parties with special knowledge and expertise has been permit- ted to place the issue in a slightly different perspective which would assist the court, particularly when first-time Charter arguments are involved. Interventions by persons or groups having no direct interest in the outcome, but who possess an interest in the public law issues have also been allowed. The key considerations are the nature of the issue, and the likelihood of the applicant being able to make a useful contribution to the resolution of the action without causing injustice to the immediate parties.
Applying the above principles, the applicant should be allowed to intervene as it has a genuine interest in the issues and could assist the Court by putting the issues in a different perspective as it has special knowledge and expertise relating to the public interest questions. The application should also be allowed to offset any public perception that the interests of justice are not being served because of possible political influ- ence being asserted by the tobacco industry.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.). Criminal Code, R.S.C. 1970, c. C-34, ss. 246.6 (as enacted by S.C. 1980-81-82-83, c. 125, s. 19), 246.7 (as enacted idem). Federal Court Rules, C.R.C., c. 663, R. 5. Rules of Civil Procedure, O. Reg. 560/84, RR. 13.01,
175 13.02 (as am. by O. Reg. 221/86, s. 1). Tobacco Products Control Act, S.C. 1988, c. 20.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Seaboyer (1986), 50 C.R. (3d) 395 (Ont. C.A.); Re Schofield and Minister of Consumer and Commercial Relations (1980), 112 D.L.R. (3d) 132; 28 O.R. (2d) 764; 19 C.P.C. 245 (C.A.); G.T.V. Limousine Inc. v. Service de Limousine Murray Hill Ltée, [1988] R.J.Q. 1615 (C.A.). COUNSEL: Edward P. Belobaba and P. Lukasiewicz for plaintiff. Karl Delwaide and Andre T. Mecs for pro- posed intervenor. Paul J. Evraire, Q.C. for defendant.
SOLICITORS: Gowling & Henderson, Toronto, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for order ren- dered in English by
ROULEAU J.: This is an application brought by the Canadian Cancer Society ("Society") seeking an order allowing it to intervene and participate in the action. The issue relates to an attack by the plaintiff on the constitutional validity of the Tobacco Products Control Act, S.C. 1988, c. 20 which prohibits the advertising of tobacco products in Canada. The plaintiff, Rothmans, Benson & Hedges Inc., initiated this action by way of statement of claim filed on July 20, 1988 and amended on October 24, 1988. The Canadian Cancer Society is described as the largest charitable organization dedicated to public health in Canada. As recently as 1987 it was made up of approximately 350,000 active volunteer members who were responsible for the raising of some $50,000,000 annually, which money was primarily directed to health and relat- ed fields. The Society's primary object is cancer research; it is also involved in the distribution of
176 scientific papers as well as pamphlets for the pur- pose of enlightening the general public of the dangers of the disease. For more than 50 years this organization has been the driving force investigat- ing causes as well as cures. In the pursuit of its objectives, and, with the endorsement of the medi- cal scientific community, it has been instrumental in establishing a correlation between the use of tobacco products and the incidence of cancer; its persistence has been the vehicle that generated public awareness of the danger of tobacco prod- ucts. As a result of the Society's leadership and inspiration, the research results and the assembling of scientific data gathered from throughout the world, it has provided the authorities and its public health officials with the necessary or required evidence to press the government into adopting the legislation which is complained of in this action.
The applicant maintains that the constitutional facts underlying the plaintiff's amended statement of claim that will be adduced in evidence, analyzed and discussed before the Court are essentially related to health issues. It has special knowledge and expertise relating cancer to the consumption of tobacco products. It further contends that it has sources of information in this matter to which the other parties in the litigation may not have access.
The Canadian Cancer Society urges upon this Court that it has a "special interest" with respect to the issues raised in the litigation. That knowl- edge and expertise and the overall capacity of the applicant to collect, comment upon and analyze all the data related to cancer, tobacco products and the advertising of those products, would be helpful to this Court in the resolution of the litigation now before it. It is their opinion that it meets all the criteria set out in the jurisprudence which apply in cases where parties seek to be allowed to intervene.
The plaintiff, Rothmans, Benson & Hedges Inc., opposes the application for standing. It argues that prior to the promulgation of the Tobacco Products Control Act, the Legislative Committee of the
177 House of Commons and the Standing Senate Committee on Social Affairs and Technology held extensive hearings into all aspects of the proposed legislation. In the course of those hearings, the committees received written representations and heard evidence from numerous groups both in favour of and opposed to the legislation, including the applicant; that studies commissioned by the Cancer Society relevant to the advertising of tobacco products are all in the public domain; that no new studies relating directly to tobacco con- sumption and advertising have been initiated nor is it in possession of any document, report or study relating to the alleged relationship between the consumption of tobacco products and advertising that is not either in the public domain or accessible to anyone who might require it.
Finally, the plaintiff argues that the applicant's motion should be denied on the grounds that it is seeking to uphold the constitutionality of the Tobacco Products Control Act by means of the same evidence and arguments as those which will be put forward by the defendant, the Attorney General of Canada. Their intervention would unnecessarily lengthen the proceeding and it is open to the applicant to cooperate fully with the defendant by providing viva voce as well as docu- mentary evidence in order to assist in providing the courts with full disclosure of all facts which may be necessary to decide the ultimate issue. There is no Federal Court Rule explicitly per- mitting intervention in proceedings in the Trial Division. In the absence of a rule or provision providing for a particular matter, Rule 5 allows the Court to determine its practice and procedure by analogy to other provisions of the Federal Court Rules [C.R.C., c. 663] or to the practice and procedure for similar proceedings in the courts of "that province to which the subject matter of the proceedings most particularly relates".
Rule 13.01 of the Ontario Rules of Civil Proce- dure [O. Reg. 560/84] permits a person not a party to the proceedings who claims "an interest in
178 the subject matter of the proceeding" to move for leave to intervene as an added party. The rule requires of the Court to consider "whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding". Rule 13.02 [as am. by O. Reg. 221/86, s. 1] permits the Court to grant leave to a person to intervene as a friend of the Court with- out becoming a party to the proceeding. Such intervention is only permitted "for the purpose of rendering assistance to the court by way of argument".
In addition to the gap rule, one must be cogni- zant of the principles of law which have been established by the jurisprudence in applications of this nature. In constitutional matters, and more particularly, in Charter [Canadian Charter of Rights and Freedoms, being Part I of the Consti- tution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] issues, the "interest" required of a third party in order to be granted intervenor status has been widely interpreted in order to permit interventions on public interest issues. Gen- erally speaking, the interest required to intervene in public interest litigation has been recognized by the courts in an organization which is genuinely interested in the issues raised by the action and which possesses special knowledge and expertise related to the issues raised.
There can be no doubt as to the evolution of the jurisprudence in "public interest litigation" in this country since the advent of the Charter. The Supreme Court appears to be requiring somewhat less by way of connection to consider "public interest" intervention once they have been per- suaded as to the seriousness of the question.
In order for the Court to grant standing and to justify the full participation of an intervenor in a "public interest" debate, certain criteria must be met and gathering from the more recent decisions the following is contemplated:
(1) Is the proposed intervenor directly affected by the outcome?
179 (2) Does there exist a justiciable issue and a veritable public interest?
(3) Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court? (4) Is the position of the proposed intervenor adequately defended by one of the parties to the case? (5) Are the interests of justice better served by the intervention of the proposed third party? (6) Can the Court hear and decide the cause on its merits without the proposed intervenor? The plaintiff has argued that adding a party would lengthen the proceedings and burden the courts unnecessarily, perhaps in some instances leading to chaos. In G.T.V. Limousine Inc. v. Service de Limousine Murray Hill Ltée, [1988] R.J.Q. 1615 (C.A.), the Court noted that it was quite familiar with lengthy and complex litigation including a multiplicity of parties. This did not lead to injustice and would certainly provide the presiding judge with additional points of view which may assist in enlightening it to determine the ultimate issue. Such an objection is really of very little merit.
I do not choose at this time to discuss in detail each of the criteria that I have outlined since they have all been thoroughly analyzed either individu- ally or collectively in recent jurisprudence.
The courts have been satisfied that though a certain "public interest" may be adequately defended by one of the parties, because of special knowledge and expertise, they nevertheless allowed the intervention.
As an example, in R. v. Seaboyer (1986), 50 C.R. (3d) 395 (Ont. C.A.), the Legal Education and Action Fund ("LEAF") applied to intervene in the appeal from a decision quashing the committal for trial on a charge of sexual assault on the grounds that sections 246.6 and 246.7 of the Criminal Code [R.S.C. 1970, c. C-34 (as enacted by S.C. 1980-81-82-83, c. 125, s. 19)] were inoper- ative because they infringed section 7 and para- graph 11(d) of the Charter. LEAF is a federally
180 incorporated body with an objective to secure women's rights to equal protection and equal ben- efit of the law as guaranteed in the Charter through litigation, education and research. The respondents opposed the application on the grounds that the interests represented by LEAF were the same as those represented by the Attor- ney General for Ontario, namely, the rights of victims of sexual assault, and that the intervention of LEAF would place a further and unnecessary burden on the respondents. The Court concluded that it should exercise its discretion and grant LEAF the right of intervention. In giving the Court's reasons for that decision, Howland C.J.O. stated as follows, at pages 397-398:
Counsel for LEAF contended that women were most fre- quently the victims of sexual assault and that LEAF had a special knowledge and perspective of their rights and of the adverse effect women would suffer if the sections were held to be unconstitutional.
The right to intervene in criminal proceedings where the liberty of the subject is involved is one which should be granted sparingly. Here no new issue will be raised if intervention is permitted. It is a question of granting the applicant a right to intervene to illuminate a pending issue before the court. While counsel for LEAF may be supporting the same position as counsel for the Attorney General for Ontario, counsel for LEAF, by reason of its special knowledge and expertise, may be able to place the issue in a slightly different perspective which will be of assistance to the court.
Other courts have been even more emphatic in pointing out that when it comes to first-time Charter arguments, the Court should be willing to allow intervenors in order to avail itself of their assistance. This is especially true where those pro- posed intervenors are in a position to put certain aspects of an action into a new perspective which might not otherwise be considered by the Court or which might not receive the attention they deserve. In Re Schofield and Minister of Consumer and Commercial Relations (1980), 112 D.L.R. (3d) 132; 28 O.R. (2d) 764; 19 C.P.C. 245 (C.A.), Thorson J.A. made the following comments in this regard, at pages 141 D.L.R.; 773 O.R.; 255-256 C.P.C.:
181 It seems to me that there are circumstances in which an applicant can properly be granted leave to intervene in an appeal between other parties, without his necessarily having any interest in that appeal which may be prejudicially affected in any "direct sense", within the meaning of that expression as used by LeDain, J., in Rothmans of Pall Mall et al. v. Minister of National Revenue et al. (1976), 67 D.L.R. (3d) 505, [1976] 2 F.C. 500, [ 1976] C.T.C. 339, and repeated with approval by Heald, J., in the passage in the Solosky case [infra] quoted by my colleague. As an example of one such situation, one can envisage an applicant with no interest in the outcome of an appeal in any such direct sense but with an interest, because of the particular concerns which the applicant has or represents, such that the applicant is in an especially advantageous and perhaps even unique position to illuminate some aspect or facet of the appeal which ought to be considered by the Court in reaching its decision but which, but for the applicant's interven- tion, might not receive any attention or prominence, given the quite different interests of the immediate parties to the appeal. The fact that such situations may not arise with any great frequency or that, when they do, the Court's discretion may have to be exercised on terms and conditions such as to confine the intervener to certain defined issues so as to avoid getting into the merits of the lis inter partes, does not persuade me that the door should be closed on them by a test which insists on the demonstration of an interest which is affected in the "direct sense" earlier discussed, to the exclusion of any interest which is not affected in that sense.
Certainly, not every application for intervenor status by a private or public interest group which can bring different perspective to the issue before the Court should be allowed. However, other courts, and notably the Supreme Court of Canada, have permitted interventions by persons or groups having no direct interest in the outcome, but who possess an interest in the public law issues. In some cases, the ability of a proposed intervenor to assist the court in a unique way in making its decision will overcome the absence of a direct interest in the outcome. What the Court must consider in applications such as the one now before it is the nature of the issue involved and the likelihood of the applicant being able to make a useful contribu- tion to the resolution of the action, with no injus- tice being imposed on the immediate parties.
Applying these principles to the case now before me, I am of the opinion that the applicant should be granted intervenor status. Certainly, the Canadian Cancer Society has a genuine interest in the issues before the Court. Furthermore, the applicant has the capacity to assist the Court in its decision making in that it possesses special knowl-
182 edge and expertise relating to the public interest questions raised, and in my view it is in an excel- lent position to put some of these issues in a different perspective from that taken by the Attor- ney General. The applicant has, after all, invested significant time and money researching the issue of advertising and its effects on tobacco consump- tion and I am of the opinion that it will be a most useful intervenor from the Court's point of view.
The jurisprudence has clearly established that in public interest litigation, the Attorney General does not have a monopoly to represent all aspects of public interest. In this particular case, I think it is important that the applicant be allowed to inter- vene in order to offset any perception held by the public that the interests of justice are not being served because of possible political influence being asserted on the Government by those involved in the tobacco industry. Finally, allowing the application by the Canadi- an Cancer Society will not unduly lengthen or delay the action nor will it impose an injustice or excessive burden on the parties involved. The par- ticipation by the applicant may well expand the evidence before the Court which could be of invaluable assistance.
Referring back to my criteria, I am convinced that the Canadian Cancer Society possesses special knowledge and expertise and has general interest in the issues before the Court. It represents a certain aspect of various interests in society which will be of assistance. It is a question of extreme importance to certain segments of the population which can be best represented in this debate.
For the foregoing reasons, the application by the Canadian Cancer Society for leave to be joined in the action by way of intervention as a defendant is granted. Costs to the applicant.
183 TAB XX AUTHORITIES
Teksavvy Solutions Inc v Bell Media Inc, 2020 FCA 108.
184 Date: 20200624
Docket: A-440-19
Citation: 2020 FCA 108
Present: STRATAS J.A.
BETWEEN:
TEKSAVVY SOLUTIONS INC.
Appellant
and
BELL MEDIA INC. GROUPE TVA INC., ROGERS MEDIA INC., JOHN DOE 1 dba GOLDTV.BIZ, JOHN DOE 2 dba GOLDTV.CA, BELL CANADA, BRAGG COMMUNICATIONS INC. dba EASTLINK, COGECO CONNEXION INC., DISTRIBUTEL COMMUNICATIONS LIMITED, FIDO SOLUTIONS INC., ROGERS COMMUNICATIONS CANADA INC., SASKATCHEWAN TELECOMMUNICATIONS HOLDING CORPORATION, SHAW COMMUNICATIONS INC., TELUS COMMUNICATIONS INC. and VIDEOTRON LTD.
Respondents
and
CANADIAN INTERNET REGISTRATION AUTHORITY, THE SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY & PUBLIC INTEREST CLINIC, FÉDÉRATION INTERNATIONALE DES ASSOCIATIONS DE PRODUCTEURS DE FILMS-FIAPF, CANADIAN MUSIC PUBLISHERS ASSOCIATION, INTERNATIONAL CONFEDERATION OF MUSIC PUBLISHERS, MUSIC CANADA, INTERNATIONAL FEDERATION OF THE PHONOGRAPHIC INDUSTRY, INTERNATIONAL PUBLISHERS ASSOCIATION, INTERNATIONAL ASSOCIATION OF SCIENTIFIC, TECHNICAL AND MEDICAL PUBLISHERS, AMERICAN ASSOCIATION OF PUBLISHERS, THE PUBLISHERS ASSOCIATION LIMITED, CANADIAN
185 Page: 2
PUBLISHERS’ COUNCIL, ASSOCIATION OF CANADIAN PUBLISHERS, THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, DAZN LIMITED and THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Interveners
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on June 24, 2020.
REASONS FOR ORDER BY: STRATAS J.A.
186 Date: 20200624
Docket: A-440-19
Citation: 2020 FCA 108
Present: STRATAS J.A.
BETWEEN:
TEKSAVVY SOLUTIONS INC.
Appellant
and
BELL MEDIA INC. GROUPE TVA INC., ROGERS MEDIA INC., JOHN DOE 1 dba GOLDTV.BIZ, JOHN DOE 2 dba GOLDTV.CA, BELL CANADA, BRAGG COMMUNICATIONS INC. dba EASTLINK, COGECO CONNEXION INC., DISTRIBUTEL COMMUNICATIONS LIMITED, FIDO SOLUTIONS INC., ROGERS COMMUNICATIONS CANADA INC., SASKATCHEWAN TELECOMMUNICATIONS HOLDING CORPORATION, SHAW COMMUNICATIONS INC., TELUS COMMUNICATIONS INC. and VIDEOTRON LTD.
Respondents
and
CANADIAN INTERNET REGISTRATION AUTHORITY, THE SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY & PUBLIC INTEREST CLINIC, FÉDÉRATION INTERNATIONALE DES ASSOCIATIONS DE PRODUCTEURS DE FILMS-FIAPF, CANADIAN MUSIC PUBLISHERS ASSOCIATION, INTERNATIONAL CONFEDERATION OF MUSIC PUBLISHERS, MUSIC CANADA, INTERNATIONAL FEDERATION OF THE PHONOGRAPHIC INDUSTRY, INTERNATIONAL PUBLISHERS ASSOCIATION, INTERNATIONAL ASSOCIATION OF SCIENTIFIC, TECHNICAL AND MEDICAL PUBLISHERS, AMERICAN ASSOCIATION OF PUBLISHERS, THE PUBLISHERS ASSOCIATION LIMITED, CANADIAN PUBLISHERS’ COUNCIL, ASSOCIATION OF CANADIAN
187 Page: 2
PUBLISHERS, THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, DAZN LIMITED and THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Interveners
REASONS FOR ORDER
STRATAS J.A.
[1] Six groups of parties have moved to intervene in this appeal. The motions will be granted on a slightly modified version of the usual terms.
[2] Certain procedures were followed by this Court for these motions. Far from being radical, they represent a continuation of the often innovative approaches this Court adopts in order to serve the public interest.
[3] These days, many courts have been challenged by the COVID-19 pandemic. In response, they have had to find new ways of doing old things. For the first time, some courts are receiving electronic documents, are hearing cases through online video-conference, and are determining disputes on the basis of written materials alone.
[4] These things are largely old hat for the Federal Courts. For us, the pandemic has merely accelerated the pace of reforms we have been working on. For several years, we have been increasingly open to receiving and working with electronic documents. For even longer, we have offered video-conference hearings instead of in-person hearings. For even longer still, we have
188 Page: 3 determined most motions on the basis of written materials alone. That often allows us to provide informal advice and guidance, particularly to unrepresented litigants, on how to progress their cases to hearing.
[5] Six years ago, the Supreme Court urged all participants in the justice system—but most particularly courts—to fashion new procedures and adopt culture change to make the justice system more efficient, faster and less expensive: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1
S.C.R. 87. Although we had already done much to improve our procedures, we responded to that cue and quickened the pace of reform. So in uncontroversial matters where facts are not in dispute, we now often allow informal letters requesting relief rather than bulky formal motion records: see, e.g., Forestethics Advocacy Association v. Canada (Attorney General), 2014 FCA
182 at para. 9. We have honed our ability to dismiss proceedings at an early stage that are doomed to fail, allowing us to devote our resources only to arguable matters: see, e.g., Rock-St
Laurent v. Canada (Citizenship and Immigration), 2012 FCA 192, 434 N.R. 144 and Lee v.
Canada (Correctional Service), 2017 FCA 228 (Rule 74); Canada (National Revenue) v. JP
Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 (interlocutory motions to strike). We have fashioned a broad array of new, innovative tools to curb and prevent abuses: see the list in Fabrikant v. Canada, 2018 FCA 224 at para. 26 and Fabrikant itself. We have regulated abusive litigants more closely and have liberalized the test for declaring litigants vexatious, freeing up scarce resources for others: Canada v. Olumide, 2017 FCA 42, [2018] 2
F.C.R. 328.
189 Page: 4
[6] In these motions, another recent innovation was on display: the use of brief and pointed case management directions to focus and improve the quality of submissions.
[7] Traditionally, a court faced with a dispute is expected to be sphinx-like and silent, expressing no views until all submissions are in. Long ago that approach worked and litigants did not need to labour long to bring their dispute to a hearing. On any legal point, there were at most only a few leading cases, chosen by learned editors and published in law reports.
[8] But today, the law has become more accessible but less ascertainable. After just a couple of keystrokes, a litigant can find over a hundred cases on intervention, uncurated by an editor.
They must be reviewed and sifted. Time runs and costs mount. And for what purpose? Just to tell the court about the law of intervention—law the court already knows well.
[9] In certain well-trodden areas of law, the Court does know the law. So why shouldn’t it just announce the law at the outset, inviting the parties to correct or supplement it if necessary?
There are many ways this can be done. One way is to issue a written direction at the outset of a dispute setting out preliminary views of the law. That is how this Court proceeded in these motions.
[10] At an early stage in this appeal, three parties filed motions to intervene. The Registry acted swiftly, bringing the motions to the attention of the Court before all submissions were received and before other intervention motions were brought. In response, this Court issued a written direction to assist the three who had already moved and others who were thinking of
190 Page: 5 moving. The direction informed the parties about certain key features of this Court’s law on intervention. Those who had already filed their motions could revise or supplement their submissions by informal letter in light of the direction.
[11] The direction warned potential interveners that our approach differs from that of some other courts. We have strict criteria governing leave to intervene in Rule 109 and we insist they be fulfilled. Unlike some other courts, for reasons of judicial economy we do not admit all who apply to intervene. This is especially so if most favour one side of the debate. We do not want to create the appearance or the reality of a court-sanctioned gang-up: Tsleil-Waututh Nation v.
Canada (Attorney General), 2017 FCA 174, 414 D.L.R. (4th) 373; Zaric v. Canada (Public
Safety and Emergency Preparedness), 2016 FCA 36 at para. 12; Atlas Tube Canada ULC v.
Canada (National Revenue), 2019 FCA 120 at para. 12. We also warned potential interveners that, if admitted, they will have to take the issues set by the appellant and as disclosed in the reasons of the Federal Court and neither add to them nor add to the evidentiary record: Rule 109;
Tsleil-Waututh Nation at paras. 54-56; Canada (Attorney General) v. Canadian Doctors for
Refugee Care, 2015 FCA 34, 470 N.R. 167. We reminded them that we are running a court of law, not a court of policy, and, still less, a legislature, and so those who want to make freestanding policy submissions should wander down the street to lobby a politician for legislation: Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 151, 474 N.R. 268; Atlas
Tube at paras. 4-12.
[12] By announcing the law in this case in advance without closing our ears to correction and supplementation, we received not a dry recital of law already known to the Court but rather
191 Page: 6 focused submissions on the real issue: how the moving parties’ submissions would further the
Court’s practical consideration of the issues. By telling them in advance what we want, we probably ended up with better interveners.
[13] Having reviewed the moving parties’ submissions, the Court finds that they meet the criteria in Rule 109, the above authorities, and authorities such as Sport Maska Inc. v. Bauer
Hockey Corp., 2016 FCA 44, [2016] 4 F.C.R. 3, Prophet River First Nation v. Canada (Attorney
General), 2016 FCA 120, 99 C.E.L.R. (3d) 78 and Canada (Attorney General) v. Pictou Landing
First Nation, 2014 FCA 21, [2015] 2 F.C.R. 253. The Court does not agree with the respondents,
Bell Media Inc. et al., that certain interveners do not offer a useful perspective on the issues in this appeal.
[14] However, certain terms must be imposed in addition to the terms usually imposed on interveners to ensure that the requirements of Rule 109 are actually met, to maximize the usefulness of the interventions to the Court and to further judicial economy.
[15] Six separately represented groups of parties move to intervene:
(1) The Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic;
(2) Canadian Internet Registration Authority;
(3) Fédération Internationale des Associations de Producteurs de Films--FIAPF;
192 Page: 7
(4) Canadian Music Publishers Association, International Confederation of Music
Publishers, Music Canada and International Federation of the Phonographic
Industry;
(5) International Publishers Association, International Association of Scientific,
Technical and Medical Publishers, American Association of Publishers, The
Publishers Association Limited, Canadian Publishers’ Council, Association of
Canadian Publishers, The Football Association Premier League Limited and Dazn
Limited; and
(6) The British Columbia Civil Liberties Association.
[16] A number of these parties are making broadly similar submissions. They can be collected into three groups: moving parties (1) and (2); moving parties (3), (4) and (5); and moving party
(6).
[17] Allowing all six to intervene separately with separate counsel would result in lack of economy and duplication. As well, choosing what appears to be the best intervener in each group and rejecting the others would be arbitrary; perhaps in the end a rejected intervener might have been more useful.
[18] In these circumstances, the best solution is to permit one memorandum of fact and law from each of the three groups. The collaboration of the related parties in each group is likely to
193 Page: 8 create useful synergies and a more compact submission, which invariably happens to be a more persuasive submission: see the comments of this Court in McKesson Canada Corporation v.
Canada, 2014 FCA 290, 466 N.R. 185 at para. 24. To the extent that the related parties disagree with each other or have a different take on a particular issue, they can express that in their memorandum. The parties’ related nature and the similarity of their positions suggest that major conflict is unlikely.
[19] Counsel for parties grouped with other parties will have to work out who does what. But in large, sophisticated files, counsel are used to collaborating. These particular counsel, who happen to be known to the Court, can be trusted to work together well. Multiple counsel may sign the group memorandum of fact and law to evidence and authenticate their contribution.
[20] The motion of the British Columbia Civil Liberties Association is the most problematic one of the six. The submissions it plans to make in this appeal are rather vague, particularly its submissions on international law. All too often interveners assert or imply, without demonstration, analysis or particulars, that Charter protections are automatically coextensive with whatever is found in some international instrument and that a relevant provision of domestic law, regardless of its authentic meaning, must automatically conform with that instrument. Both propositions are wrong. The Charter is not “an empty vessel to be filled with whatever meaning we might wish from time to time”, including whatever meanings can be plucked from international law in support of a cause: Reference Re Public Service Employee Relations Act
(Alta.), [1987] 1 S.C.R. 313, 38 D.L.R. (4th) 161 at 394 S.C.R.; see also Erasmo v. Canada
(Attorney General), 2015 FCA 129, 473 N.R. 245 at para. 45 and Galati v. Harper, 2016 FCA
194 Page: 9
39, 394 D.L.R. (4th) 555 at para. 43. And this Court has recently reaffirmed the relationship between international law and domestic law—in particular, the primacy of domestic law:
Entertainment Software Assoc. v. Society Composers, 2020 FCA 100.
[21] In the end, the Court knows that the Association, mindful of maintaining its good reputation and its future ability to intervene in this Court, will understand and comply with these constraints on the use of international law. As well, it can be expected to make a useful contribution given its expertise in issues concerning freedom of expression. The Association’s involvement will benefit this Court in determining the issues in this appeal.
[22] All interveners must take the record as they find it. They cannot add to the evidentiary record either directly by stating evidence not in the record or indirectly by making propositions of mixed fact and law when there is no evidentiary support. We enforce this strictly and for good reason. We have seen some try to dupe us by smuggling academic articles containing untested social science evidence into a book of authorities: see the criticism of this in Public School
Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44. We have seen others try to slide submissions of mixed fact and law past us without any supporting facts in the evidentiary record. Recently, we have even seen some false and unsupported factual spin and speculation about the procedural flexibility, innovative capability and remedial effectiveness of the Federal Courts make their way into reasons for judgment elsewhere: see, e.g., Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, 433 D.L.R.
(4th) 381 at para. 66; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 at paras. 57-61.
195 Page: 10
[23] All interveners have asked to make oral submissions at the hearing of the appeal. This request is deferred to the consideration of the panel hearing the appeal. The panel will consider the interveners’ memoranda alongside the other memoranda and will assess whether submissions from them at the hearing will be useful and necessary. Its direction or order will follow. It is hoped this will incentivize the interveners to meet or surpass the promises they have made in their motions.
[24] The appellant requests the right to file a memorandum of fact and law replying to the interveners. This is not necessary. At the hearing of the appeal, the appellant will have two opportunities to reply fully to the interveners: first, it can reply to the interveners’ memoranda of fact and law in its submissions in chief and second it can reply to the interveners’ oral submissions in its reply submissions.
[25] This Court’s order will provide for the foregoing. It will also set the page limits and the timing for the interveners’ memoranda of fact and law and the respondents’ memorandum of fact and law. The page limits are tight but they will be adequate if the interveners go directly to what they can uniquely contribute to this appeal without duplicating others. I thank the parties for their helpful, prompt and focused submissions.
“David Stratas” J.A.
196 FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: A-440-19
STYLE OF CAUSE: TEKSAVVY SOLUTIONS INC. v. BELL MEDIA INC. ET AL.
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: STRATAS J.A.
DATED: JUNE 24, 2020
WRITTEN REPRESENTATIONS BY:
Jeremy de Beer FOR THE INTERVENER, Bram Abramson CANADIAN INTERNET REGISTRATION AUTHORITY
Alyssa Tomkins FOR THE INTERVENER, THE James Plotkin SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY & PUBLIC INTEREST CLINIC
Emily Lapper FOR THE INTERVENER, Gib van Ert BRITISH COLUMBIA CIVIL LIBERTIES ASSOCATION
Gavin MacKenzie FOR THE INTERVENER, Brooke MacKenzie FÉDÉRATION INTERNATIONALE DES ASSOCIATIONS DE PRODUCTEURS DE FILMS- FIAPF
197 Page: 2
Casey Chisick FOR THE INTERVENERS, Eric Mayzel CANADIAN MUSIC PUBLISHERS ASSOCIATION, INTERNATIONAL CONFEDERATION OF MUSIC PUBLISHERS, MUSIC CANADA AND INTERNATIONAL FEDERATION OF THE PHONOGRAPHIC INDUSTRY
Barry Sookman FOR THE INTERVENERS, Steven Mason INTERNATIONAL PUBLISHERS Dan Glover ASSOCIATION, Bruna Kalinoski INTERNATIONAL ASSOCIATION OF SCIENTIFIC, TECHNICAL AND MEDICAL PUBLISHERS, AMERICAN ASSOCIATION OF PUBLISHERS, THE PUBLISHERS ASSOCIATION LIMITED, CANADIAN PUBLISHERS’ COUNCIL, ASSOCIATION OF CANADIAN PUBLISHERS, THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED AND DAZN LIMITED
Colin Baxter FOR THE APPELLANT, Julie Mouris TEKSAVVY SOLUTIONS INC.
Francois Guay FOR THE RESPONDENTS, BELL Ryan T. Evans MEDIA INC., GROUPE TVA INC. Guillaume Lavoie Ste-Marie AND ROGERS MEDIA INC. Olivier Jean-Levesque
SOLICITORS OF RECORD:
Jeremy de Beer Professional Corporation FOR THE INTERVENER, Ottawa, Ontario CANADIAN INTERNET REGISTRATION AUTHORITY
198 Page: 3
Caza Saikaley SRL/LLP FOR THE INTERVENER, THE Ottawa, Ontario SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY Samuelson-Glushko Canadian Internet Policy & Public & PUBLIC INTEREST CLINIC Interest Clinic Ottawa, Ontario
British Columbia Civil Liberties Association FOR THE INTERVENER, Vancouver, B.C. BRITISH COLUMBIA CIVIL LIBERTIES ASSOCATION Gib van Ert Law Ottawa, Ontario
MacKenzie Barristers P.C. FOR THE INTERVENER, Toronto, Ontario FÉDÉRATION INTERNATIONALE DES ASSOCIATIONS DE PRODUCTEURS DE FILMS- FIAPF
Cassels Brock & Blackwell LLP FOR THE INTERVENERS, Toronto, Ontario CANADIAN MUSIC PUBLISHERS ASSOCIATION, INTERNATIONAL CONFEDERATION OF MUSIC PUBLISHERS, MUSIC CANADA AND INTERNATIONAL FEDERATION OF THE PHONOGRAPHIC INDUSTRY
199 Page: 4
McCarthy Tétrault LLP FOR THE INTERVENERS, Toronto, Ontario INTERNATIONAL PUBLISHERS ASSOCIATION, INTERNATIONAL ASSOCIATION OF SCIENTIFIC, TECHNICAL AND MEDICAL PUBLISHERS, AMERICAN ASSOCIATION OF PUBLISHERS, THE PUBLISHERS ASSOCIATION LIMITED, CANADIAN PUBLISHERS’ COUNCIL, ASSOCIATION OF CANADIAN PUBLISHERS, THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED AND DAZN LIMITED
Conway Baxter Wilson LLP FOR THE APPELLANT, Ottawa, Ontario TEKSAVVY SOLUTIONS INC.
Smart & Biggar LLP FOR THE RESPONDENTS, BELL Montreal, Quebec MEDIA INC., GROUPE TVA INC. AND ROGERS MEDIA INC.
200 TAB B5 AUTHORITIES
A.G. Canada v. Kattenburg and Pasagot Winery Ltd., 2020 FCA 164, Startas J.A. Docket: A-312-19
201 Date: 202001006
Docket: A-312-19
Citation: 2020 FCA 164
Present: STRATAS J.A.
BETWEEN: 2020 FCA 164 (CanLII)
ATTORNEY GENERAL OF CANADA
Appellant
and
DR. DAVID KATTENBURG and PSAGOT WINERY LTD.
Respondents
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on October 6, 2020.
REASONS FOR ORDER BY: STRATAS J.A.
202 Date: 20201006
Docket: A-312-19
Citation: 2020 FCA 164
Present: STRATAS J.A.
BETWEEN: 2020 FCA 164 (CanLII)
ATTORNEY GENERAL OF CANADA
Appellant
and
DR. DAVID KATTENBURG and PSAGOT WINERY LTD.
Respondents
REASONS FOR ORDER
STRATAS J.A.
[1] An appeal has been brought from a judicial review in the Federal Court: 2019 FC 1003
(per Mactavish J. as she then was). The appeal is pending in this Court.
[2] Before the Court are multiple motions for leave to intervene under Rule 109 and one motion by Psagot Winery Ltd. to be added as a party respondent.
203 Page: 2
A. The intervention motions
[3] The underlying judicial review is a review of whether an administrative decision-maker, here the Canadian Food Inspection Agency, interpreted and applied certain legislative requirements concerning the labelling of a food product, here wine, in a defensible and acceptable way, i.e., within the constraints discussed in Canada (Minister of Citizenship and
Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1. There is nothing more to it. It 2020 FCA 164 (CanLII) appears to be a standard judicial review of a regulatory decision.
[4] But twelve separate parties now line up to intervene: League for Human Rights of B’Nai
Brith Canada, Independent Jewish Voices, Centre for Israel and Jewish Affairs, Centre for Free
Expression, Amnesty International Canada, Professor Eugene Kontorovich, Professor Michael
Lynk (U.N. Special Rapporteur for the Situation of Human Rights in the Palestinian Territory
Occupied Since 1967), The Arab Canadian Lawyers Association, the Transnational Law and
Justice Network, Canadian Lawyers for International Human Rights, Al-Haq, and Psagot Winery
Ltd. Many of them say this judicial review is something more than standard: the label described the wine as a “product of Israel” and it was made in the West Bank.
[5] As a result, a number of these moving parties seek to intervene to speak to the issue of
Israel’s occupation of the West Bank, including the status of the West Bank, the territorial sovereignty of Israel, human rights and humanitarian concerns, issues of international law, and other related issues. Many of them appear to want this Court to rule on the merits of these issues.
204 Page: 3
[6] But there is one basic problem. This appeal does not raise the merits of these issues. As I shall explain, it is narrower.
[7] That is not all. Some of the moving parties seek to intervene on other issues, such as the international trade law dimensions lying behind the labelling requirements and issues arising under section 2(b) of the Charter. 2020 FCA 164 (CanLII) [8] Under Rule 109, the Federal Courts’ rule governing intervention, the central part of the test for intervention is whether a moving party’s submissions will be useful to the panel determining the appeal.
[9] This requires four questions to be asked. In some intervention motions, such as the ones presently before the Court, it is useful to consider them separately. The four questions are as follows:
(1) What issues are live before the panel determining the proceeding? The issues are
set by the originating document, here the notice of appeal, as explained by any
memoranda of fact and law that have been filed: Tsleil-Waututh Nation v. Canada
(Attorney General), 2017 FCA 174, 414 D.L.R. (4th) 373 at paras. 54-56. Here,
the Court must determine the “real essence” and “essential character” of the
proceeding and disregard those matters that are doomed to fail: Canada (National
Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014]
2 F.C.R. 557 at paras. 49-50. In doing so it must understand its role in the
205 Page: 4
proceeding. For example, in the context of judicial review, often the Court is only
in a reviewing role of the administrative decision-maker’s decision on the merits
and the administrative decision-maker is the only one entitled to decide on the
merits: Association of Universities and Colleges of Canada v. Canadian
Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297;
Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189; Robbins v.
Canada (Attorney General), 2017 FCA 24; Sharif v. Canada (Attorney General), 2020 FCA 164 (CanLII) 2018 FCA 205, 50 C.R. (7th) 1 at paras. 26-28; Tsleil-Waututh Nation v. Canada
(Attorney General), 2017 FCA 128 at paras. 87 and 97. And to avoid disguised
correctness review, the Court must not consider the merits itself: Vavilov at para.
83; Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171 at para.
28.
(2) What does the moving party intend to submit in the proceeding? The Court must
not be taken in by tricky drafting by skilful pleaders. Instead, it must determine
the “real essence” and “essential character” of what the prospective intervener
intends to say. It does this by reading the motion materials “holistically and
practically without fastening onto matters of form”. See JP Morgan Asset
Management, above at paras. 49-50.
(3) Are the moving party’s submissions doomed to fail? When considering an
intervention motion, the Court should not venture too deeply into the merits of
issues that are for the panel. That being said, the panel should not have to deal
206 Page: 5
with submissions of an intervener that are doomed to fail or that are inadmissible.
This includes submissions that are indisputably wrong in law or irrelevant to the
live issues before the Court. Issues that require new evidence and new evidence
itself are also not admissible: Canada (Citizenship and Immigration) v. Ishaq,
2015 FCA 151, 474 N.R. 268 at paras. 17 and 36; Canada (Attorney General) v.
Canadian Doctors for Refugee Care, 2015 FCA 34, 470 N.R. 167 at para. 19;
Zaric v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 36 at 2020 FCA 164 (CanLII) para. 14; Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 at para. 11.
Similarly submissions and academic articles that, in reality, contain new evidence
intertwined with the legal discussion are prohibited: Public School Boards’ Assn.
of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44; Forest
Ethics Advocacy Association v. National Energy Board, 2014 FCA 88 at para. 14;
Zaric at para. 14.
(4) Will the moving party’s arguable submissions advance the determination of the
panel determining the appeal? The Court should exclude submissions that
duplicate those of others. It should also exclude those that make political points
without law, pronounce freestanding policy positions untethered to law, or offer
submissions irrelevant to the legal task the Court must perform.
[10] I will now consider these questions.
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(1) What issues are live before the panel determining the proceeding?
[11] Before us is an appeal from an application for judicial review. The appeal panel’s job will be to consider whether the decision of the Agency about two particular wine labels is acceptable and defensible, i.e., within the constraints discussed in Vavilov. Nothing more.
[12] In particular, the panel will focus on the administrative decision-maker’s interpretation 2020 FCA 164 (CanLII) and application of the legislation that governs it. The administrative decision-maker in this case, the Agency, had to interpret and apply a country of origin labelling requirement under the Food and Drug Regulations, C.R.C., c. 870, s. B.02.108 to two particular wines produced in the West
Bank and decide whether their labels were false or misleading under subsection 5(1) of the Food and Drugs Act, R.S.C. 1985, c. F-27 and subsection 7(1) of the Consumer Packaging and
Labelling Act, R.S.C., 1985, c. C-38.
[13] What do country of origin and misleading mean in the legislation? To answer that question, the Agency had to examine, explicitly or implicitly, the text, context and purpose of the provisions in which those terms appear: Vavilov at paras. 115-124; and see Re Rizzo & Rizzo
Shoes Ltd., [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193; Bell ExpressVu Limited Partnership v.
Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Canada Trustco Mortgage Co. v. Canada, 2005 SCC
54, [2005] 2 S.C.R. 601.
[14] In reviewing the legislative interpretation reached by the Agency, the panel hearing this appeal will be engaging in reasonableness review. I acknowledge that the respondent intends to
208 Page: 7 argue that the standard of review for the administrative decision-maker’s interpretation of the relevant legislation is correctness on the ground that the issue is of public significance. But on the authority of Vavilov at paras. 53-72, this is doomed to fail and so I do not consider it a live issue. The panel hearing this appeal will be conducting reasonableness review on the issue of legislative interpretation, not correctness review.
[15] When conducting reasonableness review, the panel will not be allowed to reach its own 2020 FCA 164 (CanLII) interpretation of the legislation and impose it on the Agency: see Vavilov at para. 83; Delios at para. 28.
[16] The panel will also determine whether the Agency’s decision was reasonable in the sense that it engaged in an adequate investigation or inquiry in light of its governing legislation and whether it offered sufficient justification in support of its decision: see, generally, Vavilov.
[17] Another issue for the panel will be whether the Federal Court was correct in law in holding that the Agency should have considered issues under section 2(b) of the Charter. This is a live issue. Note, however, that it is not for this Court to decide how section 2(b) might affect the interpretation and application of the legislative provisions. That will be for the Agency if this matter is sent back to it for redetermination.
209 Page: 8
(2) What do the moving parties intend to submit in the proceeding?
[18] The true essence or essential character of the submissions of the interveners are three- fold:
Many of the interveners intend to submit that Israel’s occupation of the West
Bank is illegal. They rely on plenty of international instruments. Further, some 2020 FCA 164 (CanLII) interveners wish to make submissions about human rights and humanitarian
concerns of those in the West Bank.
Some of the interveners, in particular Independent Jewish Voices, the Centre for
Free Expression, B’nai Brith, the Centre for Israel and Jewish Affairs and
Amnesty International, intend to argue that section 2(b) is engaged in this case.
Some intend to address the substantive content of section 2(b), including how
international law might inform its interpretation and application.
Professor Kontorovich intends to submit mainly that there are international law
understandings under the GATT and the WTO, including the importance of non-
tariff barriers such as labelling rules. He submits that these bear upon the
interpretation of the legislation in this case.
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(3) Are the moving parties’ submissions doomed to fail?
[19] The submissions on Israel’s occupation of the West Bank are doomed to fail on the legislative interpretation issue.
[20] Quite properly, none of the moving parties contend that the provisions of the Food and
Drugs Act, the Food and Drug Regulations and the Consumer Packaging and Labelling Act are 2020 FCA 164 (CanLII) aimed at furthering or implementing Canada’s international obligations or dealing with the
Israel/West Bank issue. There is nothing to suggest that these provisions were enacted to address state occupation of territories and, in particular, Israel’s occupation of the West Bank.
[21] Rather, these provisions are of general application, appearing amongst similar provisions, aimed at regulating, often in exacting detail, food products and the public’s interaction with those products through, among other things, labels on containers. The purpose seems to be, at a broad level of generality, consumer protection, quality assurance and safety. The exact purpose will be for the appeal panel to consider.
[22] In support of their submissions, the moving parties offer many international instruments, opinions and understandings. Their submissions assume they enter the process of legislative interpretation automatically, almost as if they are some sort of super-Charter that can be used to supplement, amend or displace the provisions of domestic law. They do not.
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[23] Certain authorities of this Court concerning the use of international law, heavily based on authorities from the Supreme Court, will bind the panel hearing the appeal. The moving parties’ proposed use of international law is contrary to these authorities. It is doomed to fail.
[24] International law enters into the interpretation of domestic law such as, in this case, the
Food and Drugs Act, the Food and Drug Regulations and the Consumer Packaging and
Labelling Act, only in certain limited ways: see Entertainment Software Assoc. v. Society 2020 FCA 164 (CanLII) Composers, 2020 FCA 100 at paras. 69-92 and the many Supreme Court authorities cited therein
(including the most recent Supreme Court authority, Nevsun Resources Ltd. v. Araya, 2020 SCC
5, 443 D.L.R. (4th) 183); see also Brown v. Canada (Citizenship and Immigration), 2020 FCA
130 at paras. 54-59. None of these limited ways are available here. The requirement that domestic law be interpreted in accordance with international obligations cannot be used to amend domestic legislation: Entertainment Software Association at paras. 89-91; B010 v.
Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704.
[25] International law is irrelevant to the discernment of legislative purpose in a case like this:
Gitxaala Nation v. Canada, 2015 FCA 73 at paras. 11-18; Ishaq at para. 27. Legislative purpose is discovered from the words of the provision, related provisions, and, with some caution, legislative history and regulatory impact or official explanatory statements: Hillier v. Canada
(Attorney General), 2019 FCA 44, 431 D.L.R. (4th) 556 at paras. 25-27 and 35; Williams v.
Canada (Public Safety and Emergency Preparedness), 2017 FCA 252, [2018] 4 F.C.R. 174 at paras. 50-51. Sometimes it is clear from these things that the purpose of a legislative provision is to implement some or all of an international instrument: Entertainment Software Association at
212 Page: 11 paras. 73-74 and 82. Sometimes international law can be used to resolve ambiguities:
Entertainment Software Association at paras. 83-84.
[26] But aside from those instances, as far as the discernment of legislative purpose is concerned, international law is not like a series of tasty plates on a buffet table from which we can take whatever we like and eat whatever we please. Legislative purpose is the authentic aim of the legislation passed by the legislators, not what international authorities, judges, parties and 2020 FCA 164 (CanLII) interveners think is “best for Canadians” or what they consider to be “just”, “right” or “fair”: see
Hillier, Williams and Ishaq; and see also TELUS Communications Inc. v. Wellman, 2019 SCC
19, [2019] 2 S.C.R. 144, R. v. Rafilovich, 2019 SCC 51, 442 D.L.R. (4th) 539 and Michel v.
Graydon, 2020 SCC 24 and, in particular, the rejection of the dissents in these cases; and see also
M. Mancini, “The ‘Return’ of ‘Textualism’ at the SCC[?]” (9 April 2019), online (blog): Double
Aspect
Court’s discernment of legislative purpose: Atlas Tube Canada ULC v. Canada (National
Revenue), 2019 FCA 120 at paras. 5-9.
[27] The detailed consumer-oriented and product-oriented provisions at issue in this case were enacted without regard to issues concerning Israel’s occupation of the West Bank. Specifically, they were enacted without regard to the specific international instruments the moving parties wish to insert into this appeal. These include the United Nations advisory opinions entitled Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South-west
Africa) Notwithstanding Security Council Resolution 276 and Legal Consequences of the
213 Page: 12
Construction of a Wall in the Occupied Palestinian Territory; United Nations General Assembly resolutions entitled The Right of the Palestinian People to Self-Determination, Permanent
Sovereignty of the Palestinian People in the Occupied Palestinian Territory, including East
Jerusalem, and of the Arab population in the Occupied Syrian Golan over their Natural
Resources, Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and the occupied Syrian Golan, Peaceful Settlement of the Question of Palestine and resolutions numbered 2435, 2649, 3236, 43/177, 48/94 and 73/158; United Nations Security Council 2020 FCA 164 (CanLII) Resolutions entitled The Situation in the Middle East, including the Palestinian Question,
Territories Occupied by Israel and resolutions numbered 446, 465, 476 and 2334 and other U.N. documents such as Territories Occupied By Israel, Israeli Settlements in the Occupied
Palestinian Territory, including East Jerusalem, and of the Arab Population in the Occupied
Syrian Golan Over Their Natural Resources, Peaceful Settlement of the Question of Palestine,
Settlements and Creeping Annexation, the Agreement on the Gaza Strip and the Jericho Area, and various U.N. resolutions affirming the Palestinian peoples’ right to self-determination. The same can be said for more general documents such as the Charter of the United Nations, the
Articles on Responsibility for States for Internationally Wrongful Acts, the Vienna Convention on the Law of Treaties, the Declaration of Principles on Interim Self Government Arrangements, the
Regulations Annexed to the Hague Convention No. IV respecting the Laws and Customs of War on Land, the International Covenant on Economic, Social and Cultural Rights, the International
Covenant on Civil and Political Rights, the Rome Statute of the International Criminal Court, the
2019 Concluding Observations of the United Nations Committee on Economic, Social, and
Cultural Rights, the 2019 Concluding Observations of the United Nations Committee on the
Elimination of Racial Discrimination, the League of Nations, Covenant of the League of Nations,
214 Page: 13 the Israeli-Palestinian Agreement on the West Bank and the Gaza Strip (Oslo III) and the
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth
Geneva Convention).
[28] Quite apart from interpreting the Food and Drugs Act, the Food and Drug Regulations and the Consumer Packaging and Labelling Act, many of the moving parties suggest that international law is part of the process of applying this legislation to the facts of this case. They 2020 FCA 164 (CanLII) say that this legislation must be applied in a way that implements the obligations and requirements found in international instruments.
[29] This too is doomed to fail.
[30] First, this misconceives this Court’s task in the appeal. This Court will not be applying the legislative provisions to the facts of this case. Rather, it is only conducting reasonableness review of the Agency’s decision to examine whether it is acceptable and defensible and supplies adequate justification under Vavilov. Under reasonableness review, it is for the administrative decision-maker, here the Agency, to apply the authentic meaning of the legislation to the facts of the case, not this Court: see Association of Universities and related authorities in paragraph 9(1) above.
[31] As well, the moving parties are again using international law improperly in a manner that is doomed to fail. Once a court or administrative decision-maker arrives at a definitive legal interpretation of a provision—including, where proper, the content of international law—its job
215 Page: 14 is to apply the provision’s authentic meaning dispassionately and objectively to the facts of the case. To decide a case, a court or administrative decision-maker cannot reach out to other standards, such as those in international law, to supplement, modify or oust the authentic meaning of domestic law; international law is not a directly binding source of substantive law that supplements, modifies or ousts the authentic meaning of domestic law: see Entertainment
Software Association at paras. 78-79 and the numerous authorities cited therein, including many from the Supreme Court. The meaning of domestic law is not to be amended by international 2020 FCA 164 (CanLII) law: see Entertainment Software Association, above at para. 85; see also Németh v. Canada
(Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 at para. 35; R. v. Hape, 2007 SCC 26, [2007] 2
S.C.R. 292 at para. 54; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R.
269 at para. 50; Tapambwa v. Minister of Citizenship and Immigration, 2019 FCA 34, 69 Imm.
L.R. (4th) 297; Gitxaala Nation at para. 16.
[32] Many of the moving parties’ proposed submissions are doomed to fail for another reason.
Many rely on evidence that is not before the Court. Some of the moving parties supply us with hyperlinks to find reports, opinions, news articles and informal articles to buttress their claims about the content of international law and the illegality of Israel’s occupation of the West Bank.
But as far as facts are concerned, judges can act only on evidence, matters of judicial notice or statutory deeming provisions: Canada v. Kabul Farms, 2016 FCA 143, 13 Admin L.R. (6th) 11 at para. 38; Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161, 483 N.R. 275 at paras.
79-80. They cannot act on the basis of personal assumptions: Kahkewistahaw First Nation v.
Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548. As well, the normal rule in judicial reviews is that evidence is to be adduced before the administrative decision-maker, not in reviewing courts:
216 Page: 15
Association of Universities, above. Finally, at no time do we supplement the proper evidentiary record with whatever we can scrounge from the Internet.
[33] I do not doubt for a moment that international law, when properly used, can play an important role in the interpretation of legislation and the discernment of the authentic meaning of legislation: see, e.g., Entertainment Software Association at para. 92. But this is not one of those cases. 2020 FCA 164 (CanLII)
[34] Some moving parties ask this Court to award a remedy that the applicant for judicial review does not seek. This is doomed to fail. The case remains that of the applicant for judicial review; others cannot commandeer it and ask for remedies the applicant does not seek: Tsleil-
Waututh Nation v. Canada (Attorney General), 2017 FCA 174, 414 D.L.R. (4th) 373 at paras.
55-56; Teksavvy Solutions at para. 11; Reference re subsection 18.3(1) of the Federal Courts Act,
R.S.C. 1985, c. F-7, 2019 FC 261 at para. 50. In any event, on these facts, the relief sought by some interveners—non-remittal to the Agency and a positive pronouncement on the merits by this Court—is not available: D'Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R.
167 and Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency), 2017 FCA 45, 411
D.L.R. (4th) 175 at paras. 51-56 and 84, as discussed in Vavilov at para. 142.
[35] Some of the prospective interveners appear to want to argue that the labels on the wines violate the section 2(b) rights of some of those who read them. The panel hearing this appeal will not be considering that issue. Rather, it will be considering whether the Federal Court was correct in law in holding that the Agency should have considered issues under section 2(b) of the
217 Page: 16
Charter. That issue, a purely legal one, is already before the Court and the interveners have nothing to add that will help the Court determine it.
[36] If this Court agrees with the Federal Court that the Agency should have considered section 2(b) of the Charter, it will be for the Agency to consider and determine it, not this Court.
Thus, this Court does not need to receive submissions on the content of section 2(b) of the
Charter. 2020 FCA 164 (CanLII)
(4) Will the moving parties’ arguable submissions advance the determination of the panel determining the appeal?
[37] I note that a number of the submissions the moving parties propose to make in this appeal are already made by the respondent, Dr. Kattenburg. Thus, their involvement is not necessary.
The panel hearing the appeal will determine for itself the relevance and effect of the submissions of Dr. Kattenburg.
[38] The panel hearing this appeal may have to consider whether the Agency’s decision was reasonable in the sense that it engaged in an adequate investigation or inquiry in light of its governing legislation. The panel will identify what the Agency considered in making its decision. It will know that the Agency received and relied upon advice from Global Affairs
Canada. Whether the Agency was mindful of and considered other advice is for the panel to decide. But the panel will know, as the Federal Court did (at para. 125), that the Israel/West
Bank issue is a controversial one, with many differing views and deeply-felt opinions on all
218 Page: 17 sides. To consider these points, it is not useful for the panel to receive the submissions of the moving parties.
[39] In many respects, the submissions of the moving party, Professor Kontorovich, are different from those of most of the other interveners. They are closer to the mark. He proposes to make submissions on international trade understandings of country of origin as well as Canada’s international trade obligations. But the Court is not persuaded that these submissions are useful 2020 FCA 164 (CanLII) or necessary. To a large extent, the submissions of the respondent, Dr. Kattenburg, address these issues: see Dr. Kattenburg’s memorandum of fact and law on the merits of the appeal at paras.
77-83. As well, this Court will have the reasons of the Agency before it. It will be able to assess whether the Agency should have considered these issues and, if not, whether its decision is unreasonable for not doing so. If it is unreasonable for that reason, it will be for the Agency to reinterpret the legislation and consider these issues on their merits.
[40] This appeal turns on how the Agency applied domestic labelling requirements in legislation to specific imported food products, namely wine. Yet many of the moving parties seek to advocate for a specific foreign policy to be adopted by the Government of Canada.
Rather than helping us in our task of conducting reasonableness review of the Agency’s decision, they want us to make findings that further their causes.
[41] We are only a court of law, not a policy forum, and still less a department of foreign affairs pronouncing on controversial international issues. We are suited to law, not free-standing policy or ideology. We are just lawyers who happen to hold a judicial commission: Canada v.
219 Page: 18
Cheema, 2018 FCA 45, [2018] 4 F.C.R. 328 at para. 79 and Schmidt v. Canada (Attorney
General), 2018 FCA 55, [2019] 2 F.C.R. 376 at para. 30. We are not a roving commission of inquiry able to investigate whatever we wish. We are not policymakers empowered by huge budgets to decide what is best for millions. Nor are we high priests who can arbitrate values, judge what is “just”, “right” and “fair” and give benediction to our personal beliefs.
(5) Concluding observations concerning the intervention motions 2020 FCA 164 (CanLII)
[42] I do not want to be too hard on the moving parties. I suspect that some of them have been lured to this appeal by torqued-up press reports distorting what the Federal Court decided. And once one group applies to intervene on a controversial issue like this, others feel they also have to apply.
[43] But many of these intervention motions illustrate a growing, regrettable tendency in public law cases in Canada: the tendency of those seeking political and social reform to see courts as unfettered decision-making bodies of a political or ideological sort that can give them what they want. What accounts for this? Alas, I fear that in part some courts and some judges may be to blame.
[44] Some courts admit into an appeal just about anyone who wants to offer any views, even political or ideological ones oblivious to the legal doctrine that binds the Court: see observations in Teksavvy Solutions at para. 11; Ishaq at paras. 25-27; Atlas Tube at paras. 4-12. And sometimes upwards of twenty or more special interest or political advocacy groups are allowed
220 Page: 19 to pile in, giving appeals the appearance of a sprawling Parliamentary committee hearing or an open-line radio show, and often a one-sided one at that: Gitxaala Nation at paras. 21-24; Zaric at para. 12; Teksavvy Solutions at para. 11; Atlas Tube at para. 12. So much of their loose policy talk, untethered to proven facts and settled doctrine, can seep into reasons for judgment, leading to inaccuracies with real-life consequences: see examples provided in Brown v. Canada
(Citizenship and Immigration), 2020 FCA 130 at paras. 156-159, citing Teksavvy Solutions at para. 22, both referring to R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 and Canada (Public 2020 FCA 164 (CanLII) Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, 433 D.L.R. (4th) 381.
[45] As for judges, some give the impression that they decide cases based on their own personal preferences, politics and ideologies, whether they be liberal, conservative or whatever.
Increasingly, they wander into the public square and give virtue signalling and populism a go.
They write op-eds, deliver speeches and give interviews, extolling constitutional rights as absolutes that can never be outweighed by pressing public interest concerns and embracing people, groups and causes that line up with their personal view of what is “just”, “right” and
“fair”. They do these things even though cases are under reserve and other cases are coming to them.
[46] They should not act in this way. They should stay in their proper place. Their place is not in the public square amongst the partisans and the politicians, participating in the fray. Instead, their place is inside their courthouses, hearing each side, weighing and assessing the admissible evidence and discerning and applying the relevant legal doctrine, all in a rational, open-minded and neutral way, both in appearance and actual fact.
221 Page: 20
B. The motion by Psagot Winery Ltd. to be added as a party respondent
[47] Psagot Winery has moved to intervene or to be added as a party respondent. It should be a party respondent. But, for the following reasons, its participation must be limited.
[48] Psagot Winery produced one of the two wines at issue before the Agency but was never invited to participate in its proceedings. It says that the Agency should have brought the issue to 2020 FCA 164 (CanLII) its attention and invited it to participate. It says it first learned of the Agency’s proceedings after the media attention surrounding the Federal Court’s decision.
[49] The proper way for Psagot Winery to attack the Agency’s alleged omission was to bring its own application for judicial review. It did not and the time to do so has expired. Through this motion, it cannot bring a disguised judicial review.
[50] However, there is another dimension to Psagot Winery’s motion. It can be taken to be arguing that the Federal Court should have notified it and invited it to participate in Dr.
Kattenburg’s judicial review. This is an arguable position and supports Psagot Winery’s addition to these proceedings as a party respondent. It is entitled to file evidence to support this procedural fairness position in the Federal Court and to file a short memorandum on that issue alone: Mediatube Corp. v. Bell Canada, 2018 FCA 127, 156 C.P.R. (4th) 289 at para. 58 and authorities cited therein. The other parties should be given an opportunity to respond and, if necessary, cross-examine on that evidence and file responding submissions.
222 Page: 21
C. Another procedural issue
[51] The appellant filed its memorandum of fact and law on the merits of the appeal, including submissions concerning the standard of review, before the Supreme Court’s decision in Vavilov.
The respondent, Dr. Kattenburg, filed his memorandum after Vavilov. By direction, the Court asked the parties whether the appellant should be given the opportunity to make submissions on
Vavilov. The parties agreed that the appellant should be given that opportunity and Dr. 2020 FCA 164 (CanLII) Kattenburg should be permitted to respond. These parties should also have the opportunity to respond to Psagot Winery’s evidence and memorandum.
D. Disposition
[52] Therefore, for the foregoing reasons, the motions for intervention will be dismissed.
Psagot Winery’s motion to be added as a party respondent will be granted. The style of cause will be amended to reflect this and will appear as it does on these reasons. An order will issue giving effect to all of these things and related procedural matters.
[53] The Attorney General of Canada was largely successful on the motions. But it did not seek costs and so none will be awarded.
“David Stratas” J.A.
223 FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-312-19
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. DR. DAVID KATTENBURG et al.
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES 2020 FCA 164 (CanLII)
REASONS FOR ORDER BY: STRATAS J.A.
DATED: OCTOBER 6, 2020
WRITTEN REPRESENTATIONS BY:
Gail Sinclair FOR THE APPELLANT Negar Hashemi
A. Dimitri Lascaris FOR THE RESPONDENT, DR. DAVID KATTENBURG
David Matas FOR THE PROPOSED INTERVENER, LEAGUE FOR HUMAN RIGHTS OF B’NAI BRITH CANADA
Barbara Jackman FOR THE PROPOSED INTERVENER, INDEPENDENT JEWISH VOICES
Mark J. Freiman FOR THE PROPOSED INTERVENER, CENTRE FOR ISRAEL AND JEWISH AFFAIRS
David Elmaleh FOR THE PROPOSED Aaron Rosenberg INTERVENER/RESPONDENT, PSAGOT WINERY LTD.
224 Page: 2
Faisal Bhabha FOR THE PROPOSED Madison Pearlman INTERVENER, CENTRE FOR FREE EXPRESSION
Paul Champ FOR THE PROPOSED Bijon Roy INTERVENER, AMNESTY INTERNATIONAL CANADA
Asher G. Honickman FOR THE PROPOSED INTERVENER, PROFESSOR EUGENE KONTOROVICH
Matthew R. Gourlay FOR THE PROPOSED INTERVENER, PROFESSOR 2020 FCA 164 (CanLII) MICHAEL LYNK, U.N. SPECIAL RAPPORTEUR FOR THE SITUATION OF HUMAN RIGHTS IN THE PALESTINIAN TERRITORY OCCUPIED SINCE 1967
Sujith Xavier FOR THE PROPOSED INTERVENER, THE ARAB CANADIAN LAWYERS ASSOCIATION AND THE TRANSNATIONAL LAW AND JUSTICE NETWORK
Ceyda Turan FOR THE PROPOSED James Yap INTERVENER, CANADIAN LAWYERS FOR INTERNATIONAL HUMAN RIGHTS AND AL-HAQ
SOLICITORS OF RECORD:
Nathalie G. Drouin FOR THE APPELLANT Deputy Attorney General of Canada
A. Dimitri Lascaris FOR THE RESPONDENT, DR. Montreal, Quebec DAVID KATTENBURG
225 Page: 3
David Matas FOR THE PROPOSED Winnipeg, Manitoba INTERVENER, LEAGUE FOR HUMAN RIGHTS OF B’NAI BRITH CANADA
Jackman & Associates FOR THE PROPOSED Toronto, Ontario INTERVENER, INDEPENDENT JEWISH VOICES
Rosen & Company FOR THE PROPOSED Toronto, Ontario INTERVENER, CENTRE FOR ISRAEL AND JEWISH AFFAIRS
Re-Law LLP FOR THE PROPOSED 2020 FCA 164 (CanLII) Toronto, Ontario INTERVENER/RESPONDENT, PSAGOT WINERY LTD.
Pooranlaw Professional Corporation FOR THE PROPOSED Toronto, Ontario INTERVENER, CENTRE FOR FREE EXPRESSION
Champ & Associates FOR THE PROPOSED Ottawa, Ontario INTERVENER, AMNESTY INTERNATIONAL CANADA
Matthews Abogado LLP FOR THE PROPOSED Toronto, Ontario INTERVENER, PROFESSOR EUGENE KONTOROVICH
Henein Hutchison FOR THE PROPOSED Toronto, Ontario INTERVENER, PROFESSOR MICHAEL LYNK, UN SPECIAL RAPPORTEUR FOR THE SITUATION OF HUMAN RIGHTS IN THE PALESTINIAN TERRITORY OCCUPIED SINCE 1967
Sujith Xavier FOR THE PROPOSED Windsor, Ontario INTERVENER, THE ARAB CANADIAN LAWYERS ASSOCIATION AND THE TRANSNATIONAL LAW AND JUSTICE NETWORK
226 Page: 4
Canadian Lawyers for International Human Rights FOR THE PROPOSED Toronto, Ontario INTERVENER, CANADIAN LAWYERS FOR Al-Haq INTERNATIONAL HUMAN Ramallah, West Bank RIGHTS AND AL-HAQ 2020 FCA 164 (CanLII)
227 TAB B6 AUTHORITES
Barry Bussey, “The Law of Intervention After the TWU Law School Case: Is Justice Seen to Be Done?” (2019) 90 Supreme Court Law Review 265-296 at 268 and 284-291. Available at: https://papers.ssrn.com/sol3/papers.cfm? abstract_id=3381257
228 The Law of Intervention After the TWU Law School Case: Is Justice Seen to Be Done?
Barry W. Bussey* 2019 CanLIIDocs 408
I. INTRODUCTION It was a cold Friday morning on December 1, 2017, when the Supreme Court of Canada’s Chief Justice Beverley McLachlin began the second day of hearings in the Trinity Western University (“TWU”) Law School Case.1 As per protocol, she read the counsel names of the interveners who were soon to address the Court. Upon each name being read, counsel stood and gave a slight bow in acknowledgment to the Court. The list had an unusual 27 interventions; some included more than one group and each intervention had more than one counsel at the bar. According to the transcript2 it took four minutes for the Chief Justice to get through the list — a long time in such a setting. Upon finishing, McLachlin C.J.C. stated to the amusement of the listeners, “And I will stop there.” “Laughter”, reads the transcript. Eugene Meehan, Q.C., was already at the lectern to speak for the intervener, the National Coalition of Catholic School Trustees Association. He picked up on the moment and quipped, “Time to take the morning recess?”
* Barry W. Bussey (Ph.D. candidate, University of Leiden, Promotor Professor Paul Cliteur) is Director of Legal Affairs, Canadian Council of Christian Charities and Adjunct Associate Professor at University of Notre Dame Australia (Sydney). I want to thank the outstanding assistance I received from Amy Ross for her very helpful suggestions to improve the quality of this paper as well as my colleague Philip Milley. A special thanks to Eugene Meehan, Q.C., who has always been willing to assist me over the years and whose help with this paper has exhibited yet again his admirable legal professionalism. 1 By the time it reached the Supreme Court of Canada [hereinafter “SCC”] it was composed of two actions: Law Society of British Columbia v. Trinity Western University, [2018] S.C.J. No. 32, 2018 SCC 32 (S.C.C.); and Trinity Western University v. Law Society of Upper Canada, [2018] S.C.J. No. 33, 2018 SCC 33 [hereinafter “TWU 2018”]. 2 TWU 2018, Transcript, Friday, December 1, 2017, Vol. 2, at 216-17.
229 266 SUPREME COURT LAW REVIEW (2019) 90 S.C.L.R. (2d)
Chief Justice McLachlin went further in response: “Time for lunch,” she suggested. Again, chuckles filled the usually stoic room. “You are all very welcome,” McLachlin C.J.C. added, “and we await your words of wisdom.” There was an ever so slight pause as she capped it, “within five minutes each”. “Laughter”, reads the transcript. The incident, though amusing, is nevertheless telling about the perceived role of interveners in constitutional litigation by the Court. One could infer that the Chief Justice’s comments were an attempt to build momentum to “get through” all those five-minute oral arguments. 2019 CanLIIDocs 408 Perhaps she was implicitly suggesting that there was not much more “wisdom” the interveners could add to the case by way of oral argument, given that each intervener had filed up to a 10-page brief, not to mention that this case had already wound its way through three provincial judiciaries.3 In addition, this case was the subject of significant political, social, and academic commentary. What more could be said? Or, was the Chief Justice exercising her role as the top judicial officer in the country to ensure that not only was justice done by hearing the many variant groups, but it was also seen to be done by the public and by the interveners? Finally, the Chief Justice may have been expressing some mild annoyance at the criticism that was levelled at the Court in how it handled the intervention process for this case. The Chief Justice’s remark has a peculiar context. I know of no other situation where the Court came under such public scrutiny for the way it handled the intervention application process. The Court was uncharacteristically sensitive to public criticism over its initial decision to refuse most of the intervention applications. So much so, that it decided over the course of one weekend to “vary” that decision. The variance was not so much a tweak as it was an overturning of the original decision on who would be allowed to intervene. On July 27, 2017, in an initial decision4 that surprised many lawyers, Wagner J. denied 17 applications (comprising 23 groups) for intervener status. The LGBTQ5 group applicants were denied. Several religious groups were also denied. Justice Wagner did not provide written reasons for his undoubtedly principled decision, which is the normal course for
3 Though the case in Nova Scotia was not on appeal at the SCC, nevertheless, the decisions of the Nova Scotia courts are part of the public record that could have bearing on the SCC deliberations. 4 TWU 2018; online:
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the Supreme Court on interventions. Intervention has always been understood as being within the complete discretion of the Court. However, one could infer that Wagner J. was motivated by a desire to save time and avoid duplicate arguments and not some nefarious or misguided position against any particular group. After only four days, on July 31, 2017, McLachlin C.J.C. “varied”6 Wagner J.’s order following a weekend of objections.7 All 27 groups (counting the Attorney General of Ontario) were granted intervention and permitted to file up to a 10-page brief and make a five-minute oral 2019 CanLIIDocs 408 argument at the hearing. To accommodate the variance, an extra day of hearing was opened up. While there was some confusion as to the first decision, from a legal standpoint it was even more perplexing as to why the Court changed its mind.8 Press reports pointed out that a social media uprising from the LGBTQ community was responsible. Jacques Gallant of The Toronto Star wrote, “Wagner’s order Friday faced backlash throughout the weekend on social media, with lawyers and LGBTQ activists expressing outrage over the exclusion of LGBTQ groups”.9 To see the Supreme Court respond so quickly to public pressure is a first.10 Therefore, when McLachlin C.J.C. proclaimed, “we await your words of wisdom within five minutes each”, her comment had a slight ring of sarcasm given the grief she and her Court were put through in first refusing and then admitting the many interveners to the bar. The intervener experience at the Supreme Court was not the first time intervener applications were denied in the TWU Law School Case. In Ontario, several groups were denied at the Divisional Court11 and at the
6 TWU 2018, supra, note 1. 7 Paula Kulig, “Chief justice’s rare order in Trinity Western case ensures ‘all voices could be heard’”, (2017) Lawyers Daily; online:
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Court of Appeal.12 Indeed, Ontario has the dubious distinction of being the most aggressive jurisdiction in denying intervener applications in the case. Nova Scotia had one intervener application denied. British Columbia allowed all intervener applications. The TWU Law School Case is unique because it involved three separate actions featuring virtually the same facts. It provides an unparalleled opportunity to revisit the role of interveners in constitutional litigation; to observe the differences between the provincial superior courts and the Supreme Court of Canada’s reception of interveners in this 2019 CanLIIDocs 408 one case; and to contemplate what lessons might be learnt from those experiences to establish best practices for future cases. This paper argues that while a court’s decision to allow an intervener participation in a case is discretionary, how that discretion is exercised needs to be carefully weighed to ensure that the symbolic imperative that justice is seen to be done in Charter litigation is carried out. The criteria used by the Ontario Divisional Court and the Ontario Court of Appeal signals a restriction on intervener participation on grounds that raise serious questions about the intervener’s role. An intervener is thought not to have any role in supporting one litigator as against the other but to share its concerns with the court about the potential impacts the litigation will have on those who are not parties. The Ontario courts in the TWU Law School Case appear to have unduly restricted their discretion beyond the already-established test for intervention. Interveners can and should play a vital role in constitutional litigation while ensuring that their participation does not unduly interfere with the efficacy of the litigation process. This paper also argues that the well-known and well-defined criteria in the rules of procedure and/or the case law are sufficient in eliminating superfluous interveners. Further, that the court would do well in protecting its concern about maintaining an efficient use of its time by not requiring a viva voce hearing for intervention application when written submissions would do. Court time can also be economized by limiting oral argument, during the court hearing on the substantive matter, to those interveners that the court will want to ask questions for
[hereinafter “TWU 2014”]; and the lost appeal of his decision at Trinity Western University v. Law Society of Upper Canada, [2014] O.J. No. 5041, 2014 ONSC 6220 (Ont. S.C.J.). 12 See Associate Chief Justice Hoy’s December 16, 2015, decision in Trinity Western University and Brayden Volkenant v. The Law Society of Upper Canada, docket nos.: M45789, M45791, M45800, M45803, M45814, M45818, M45819, M45820, M45821, M45822, M45823, M45824, M45825, M45826, M45831 (C61116).
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clarification on the written submissions filed by the intervenants. The concern for efficiency has been long-standing and can be addressed with these simple modifications. Former Justice Bastarache was quoted in 2000 as saying that because the Supreme Court had obtained “a lot of experience in interpreting the Charter”, there is no longer “the same need [as] there was in 1982 to obtain help from intervenors”.13 However, because Charter litigation impacts the day-to-day life of Canadians, along with the continued interest of civic groups to being involved to share their concerns, it is 2019 CanLIIDocs 408 vital that the judiciary have the necessary tools to understand and appreciate the far-reaching ramifications of their decisions. The intervention process forms part of that toolkit that allows Canadians to see that justice is being done.
II. LAW OF INTERVENTION Historically, courts have been cautious about allowing non-party submissions in litigation. The wisdom behind such hesitancy is the fear that allowing those without immediate personal or property rights in the case would open the floodgates “of unnecessary litigation that would politicize the judicial process”.14 Further, the courts refused to hear “moot” cases — those cases where the immediate conflict no longer exists “even though the underlying legal or constitutional issue remains unresolved”.15 Finally, there was a fear that interveners would cause prejudice to the parties by delaying their case and increasing costs as legal counsel and courts have to deal with the intervener submissions. These concerns and underlying assumptions fit well within the traditional “dispute-resolution model” of adjudication. That former model has the courts settling disputes, not making law. Therefore, the right of the disputants to have their conflict settled by the courts should not be unduly interfered with by an interloper that has no part in the struggle. However, that has changed in the Charter era where we see
13 Luiza Chwialkowska, “Rein in lobby groups, senior judges suggest: ‘We’ve opened the door probably too widely,’ Supreme Court justice tells Post” (April 6, 2000) National Post, online:
233 270 SUPREME COURT LAW REVIEW (2019) 90 S.C.L.R. (2d) courts make law and do so without hesitation.16 No longer are legislatures presumed to be the sole originators of law — courts are taking a prominent role.17 The place of intervention in constitutional litigation has come a long way since the Supreme Court of Canada Rule, which gave the Court discretion to allow interveners, was first proclaimed in 1878.18 The practice was, until the Charter era, that any federal or provincial government had an unquestioned right to intervene in constitutional litigation, but no one else did. Therefore, the notion of public interest 2019 CanLIIDocs 408 group intervention, for the most part, was a foreign concept to Canadian constitutional litigation.19 Its origin is closely associated with the trial practice that developed in the United States rather than what was normal procedure in English20 and Canadian law. It was Chief Justice Bora Laskin who opened up the Supreme Court to interveners throughout his tenure during the 1970s and it was particularly pronounced in the Morgentaler cases21 on abortion.22 Chief Justice Laskin’s willingness to give the practice of intervention more exposure north of the border was to have a profound impact on Charter litigation. As Philip Girard noted, “Laskin often resorted to American authority when he wanted to introduce an innovation”.23 Chief Justice Laskin’s perceived enthusiasm was not equally shared by his colleagues. Justice Wishart Spence scowled when he allowed24 the
16 A number of examples were described in an article by Professor Peter W. Hogg. Though the article is dated, it clearly makes the point, see, “The Law-making Role of the Supreme Court of Canada – Rapporteur’s Synthesis” (2001) 80:1/2 Can. Bar Rev. 171. 17 A considerable debate has raged over this development. See F.L. Morton & Rainer Knopff, The Charter Revolution and the Court Party (Toronto: University of Toronto Press, 2000); and countered by Robin Elliot, “‘The Charter Revolution and the Court Party’: Sound Critical Analysis or Blinkered Political Polemic?” (2002) 35 U. Brit. Colum. L. Rev. 271. 18 Sharpe, supra, note 14, at 383. That rule is now Rule 55 in the Rules of the Supreme Court of Canada, SOR/2002-156, last amended January 1, 2017, online:
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Canadian Civil Liberties Association (“CCLA”) intervener status in one 1977 case, saying, “I am strongly of the opinion that the hearing of an appeal in this Court should never be distorted into a public forum for the advancement of political views. This appeal is an appeal between the parties and the rights of those parties are the paramount and well nigh exclusive concern of the Court”.25 Justice Beetz in May 1983 complained that groups like the CCLA would become a permanent fixture in the Court and “that a restrictive intervention policy was required to save the Court’s time and to protect its image being ‘perceived by the public as 2019 CanLIIDocs 408 some sort of royal commission’”.26 When the Charter was proclaimed in 1982, there seemed to be a new openness in the Supreme Court toward interveners. The rules of the Court were amended to allow interveners in lower courts to have automatic right at the Supreme Court. That change came into effect in January 1983. For the first time, the Court’s discretion was limited. However, this easing lasted less than a year before the Court backtracked and repealed the automatic right. Even Laskin C.J.C. was growing weary of the number of interveners, saying at one point, “I am not going to let this kind of thing get out of hand”.27 The Court’s return to a more restrictive approach received considerable criticism.28 In 1984, Dickson C.J.C. refused the intervener application of the Seventh-day Adventist Church in the Big M Drug Mart29 case. However, when the next Sunday closing law case came in 1985, Edwards Books,30 Wilson J. allowed the Seventh-day Adventist Church’s intervention. The memo to her colleagues is indicative of the struggle that was going on internally. “Yesterday morning”, she wrote, “I broke all the rules and granted a motion for intervenor status”.31
25 Sharpe, supra, note 14, at 383, quoting Chambers Decision, n.d., vol. 17, file 13. 26 Sharpe, id., at 383, quoting Beetz J. to the Court, May 10, 1983, vol. 144, file 8, regarding his decision to refuse the CCLA leave to intervene in R. v. Marlene Moore, [1983] S.C.B. 439 (S.C.C.). 27 Brodie, “Intervenors and the Charter”, supra, note 19, at 226. 28 See for example, Jillian Welch, “No Room at the Top: Interest Group Intervenors and Charter Litigation in the Supreme Court of Canada” (1985) 43 U.T. Fac. L. Rev. 204. Sharpe and Roach tell the story of a number of groups including the CCLA, Women’s Legal Education and Action Fund, as well as law professor James MacPherson (now Ontario Court of Appeal judge), and Katherine Swinton (Dickson J.’s former law clerk), who all wrote letters and briefs to the Court that it ought to liberalize its intervention rule to allow more interveners. 29 R. v. Big M Drug Mart Ltd., [1985] S.C.J. No. 17, [1985] 1 S.C.R. 295 (S.C.C.). 30 R. v. Edwards Books and Art Ltd., [1986] S.C.J. No. 70, [1986] 2 S.C.R. 713 (S.C.C.). 31 Sharpe, supra, note 14, at 385, quoting “Wilson to the Court, November 21, 1985, vol. 132, file 1”.
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Only a few days later she gave a speech to the University of Toronto and acknowledged that the Court’s critics were correct to challenge the Court’s insistence on the old ways. She maintained that the Court’s legitimacy in this new era required a more liberalized, open and accessible Court process.32 She favoured a “generous interpretation to the Court’s rules governing interventions. If constitutional decisions have ramifications for a broad range of interests and involve distinct choices between conflicting social policies, then we must devise some way of bringing those interests before the Court”.33 She recognized that, while 2019 CanLIIDocs 408 many of her judicial colleagues would “shy away from this solution on the basis that it will add considerably to the time expended on hearings when time has become our rarest commodity, it seems to me that it is the most direct and immediate way to respond to what the commentators refer to as the polycentricity of Charter issues”.34 In her view, such burdens could “be minimized by a more rigid control on the oral presentations of intervenors by the presiding judge or by limiting the participation of intervenors to submissions in writing”.35 After much debate back and forth between the pro and con factions at the Supreme Court, as described by Sharpe and Roach,36 and Ian Brodie,37 the Court did open the process since 1987 to allow for more interventions.38 The Court was mindful of public opinion and criticism. Sharpe and Roach describe in detail the changing views of Chief Justice Brian Dickson who was “always sensitive to public criticism of the Court”. He seized upon a Globe and Mail article by Kirk Makin who was critical of the Court’s lack of response to the calls for change on the intervention policy.39 Chief Justice Dickson sent a memo to his colleagues attaching Makin’s article and another memo attaching a critical law review article by Jillian Welch, all in an effort to “getting the intervention issue resolved”.
32 Bertha Wilson, “Decision-Making in the Supreme Court” (1986) 36 U.T.L.J. 227, at 243. 33 Wilson, id., at 242. 34 Id. 35 Id. 36 Sharpe, supra, note 14, at 383-89. 37 Ian Brodie, Friends of the Court: The Privileging of Interest Group Litigants in Canada (New York: State Univ of New York Press, 2002) [hereinafter “Brodie, Friends of the Court”]. 38 Rules of the Supreme Court of Canada, supra, note 18, Part 11, Particular Motions, Motions for Intervention, Rules 55-59. See online:
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The Rules of the Supreme Court of Canada now state that “[a]ny person interested in an application for leave to appeal, an appeal or a reference may make a motion for intervention to a judge.” The intervener is required to describe their interest in the proceeding and what prejudice they would suffer if the intervention were denied. There is a requirement to outline the position they will take in the proceeding, how it is relevant and why the submission will be useful to the Court. The judge has the discretion to impose terms and conditions and any rights and privileges including the right to make oral argument. In March 2017, the Court 2019 CanLIIDocs 408 limited oral argument to five minutes and reminded interveners that “the purpose of an intervention is to provide relevant submissions that will be useful to the Court”.40 An intervener is not permitted to raise new issues unless otherwise ordered by a judge or to make any statement in its factum regarding the outcome of the proceeding.41 Courts throughout Canada have built upon the Supreme Court’s rulings and practice and developed their own approaches — though they continue with the same general themes.42 From this short synopsis of the Supreme Court of Canada’s struggle with allowing more interventions, some common themes emerge. First, the Court has wrestled with trying to understand and deal with the growing political role of the Court since the Charter. Second, the Court is concerned that its heavy workload not be unduly burdened with interventions. Third, that the Court is sensitive to the criticism that “[p]ublic respect for both the Charter and the Court will require a more inclusive process.”43 And fourth, from the very beginning of the Charter era is the suggestion that the Court can alleviate its concerns on efficient use of time by imposing strict boundaries on oral argument but allowing written submissions from the interveners. On that last point, it is the assertion of this paper, given the experience in the TWU Law School Case litigation, that this is still the best way forward.
40 “March 2017 ‒ Allotting Time for Oral Argument”, Notices to the Profession, Supreme Court of Canada, online:
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III. THE TWU LAW SCHOOL CASE INTERVENTION I served as legal counsel for the Canadian Council of Christian Charities (“CCCC”) throughout the entire intervention process in the TWU Law School Case. Naturally, the views and arguments expressed in this paper have been informed, at least in part, by that experience. However, the purpose of this paper is not to present a biased account of the outstanding questions and concerns raised by the intervention process in this case, but to reflectively consider the broad implications of future interventions in Charter 2019 CanLIIDocs 408 litigation. It is hoped that CCCC’s experience will be of benefit to others.
1. The Ontario Courts Given the fact that “Courts are generally open to new perspectives from interested individuals, associations and organizations”,44 in intervening in Charter litigation, it was rather surprising to come up against the level of resistance found in the Ontario courts. This will now be reviewed.
(a) Divisional Court45 At the Ontario Divisional Court there were 14 applicants for intervener status. Ten46 were determined to support the case of Trinity Western University (“TWU”) and four47 supported the Law Society of Upper Canada (“LSUC”). The court denied four48 of the 10 applicants that supported TWU and denied one49 of the applicants that supported LSUC. The court appears to have been motivated by two concerns. First, the court was of the view that there should be a “balance” in the number of interveners on either side of the case. Justice Nordheimer stated:
44 “Getting In, Getting Heard, Getting Practical”, supra, note 42, at 264. 45 TWU 2014, supra, note 11. 46 Canadian Council of Christian Charities, Christian Legal Fellowship, Justice Centre for Constitutional Freedoms, Association for Reformed Political Action Canada, Evangelical Fellowship of Canada and Christian Higher Education Canada, Catholic Civil Rights League, Faith and Freedom Alliance, Gerard P. Charette, Attorney General of Canada. 47 Out on Bay Street and Outlaws, Canadian Association of Labour Lawyers, Criminal Lawyers Association, The Advocates’ Society. 48 Canadian Council of Christian Charities, Association for Reformed Political Action Canada, Catholic Civil Rights League & Faith and Freedom Alliance, Gerard P. Charette. 49 Canadian Association of Labour Lawyers.
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It seems to me that when there are multiple applicants for leave to intervene, some of which favour the position of the applicant/appellant while others favour the position of the respondent, the Court should take into account the general desire that there should, in the end result, be some balance between the positions to be advocated when granting intervener status.50 These are new criteria, and the court does not provide any background as to why this is such an important factor to consider when granting intervener status. As noted above, one of the main reasons that intervener 2019 CanLIIDocs 408 status is granted is to assist the court in understanding the ramifications of its decision on the broader community. It is rather unique to be concerned about the number of arguments or the side they support. The court’s expressed observation suggests that Nordheimer J. was bothered by the fact that a disproportionate number of the proposed interveners supported TWU compared to the LSUC.
(b) Concerns with Divisional Court Approach on Intervention If the Divisional Court’s ruling were to gain traction in other legal jurisdictions, then proposed interveners will be saddled with trying to establish a “balance between the positions to be advocated” in addition to articulating their concern about the implications of the decision at hand. This will be an undue burden that has the potential to deny justice. That is because a proposed intervener may be refused the opportunity to argue its relevant Charter concern of the case because the court emphasizes a superficial “balance” of arguments. The use of “balance” in the court’s evaluation of determining intervener status suggests a philosophical shift from what has been, until now, the general Canadian practice. It assumes that an intervener will be arguing for or against a party, which they cannot do in Canada. It would mean a departure from the principle that interveners are admitted because of what they contribute to the court in helping it understand the broader implications of its decision. Instead, the emphasis would be on public perception. For example, it might be feared that if the public saw more interveners “supporting” one side of the case as opposed to the other, then the public might view a win for the side with the most “supporting” interveners with suspicion.
50 TWU 2014, supra, note 11, at para. 10.
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However, there is no evidence of which I am aware in the literature, that would suggest either that having more interveners on a certain side makes a win more likely, or that the public will be suspicious if the sides aren’t balanced. And, if the public were of that view, it still would not mean that the court ought to be persuaded by such a misconception of the role of interveners. Rather, it would mean that the court has an obligation to explain why that misperception, if acted upon, could lead to a greater injustice — the failure of the court to be fully informed about the broader ramifications of the case. 2019 CanLIIDocs 408 However, the literature does suggest that interveners do provide legitimacy.51 Professor Omari Simmons argues “that the Court’s institutional legitimacy is enhanced by broad amicus participation— especially in politically-charged cases”.52 The term “legitimacy” is difficult to pin down,53 yet there is an understanding that, though courts are not directly responsible to the electorate, they have to be concerned about public perception. The role of interveners “heightens” judicial legitimacy “through allowing the participation of interested third parties and providing a dotted-line link to the electorate”.54 The central contribution of the discussion on legitimacy, as noted by Professor David A. Strauss, “is to question whether [the law] is entitled to obedience”.55 Thanks to intervention, obedience can be expected even from those adversely affected by a court’s decision because they have a real sense of participation in the process.56
51 Omari Scott Simmons, “Picking Friends from the Crowd: Amicus Participation as Political Symbolism” (2009) 42 Conn. L. Rev. 185 [hereinafter “Simmons”]. 52 Id., at 200. 53 Professor Richard H. Fallon, Jr. argues that the term “legitimacy” appeals to three criteria that “support three concepts of legitimacy: legal, sociological, and moral”. The legal concept suggests “legitimacy and illegitimacy are gauged by legal norms”. The sociological concept means the “legal authority is legitimate insofar as it is accepted (as a matter of fact) as deserving of respect or obedience”. And, finally, there is the moral justification “for claims of authority asserted in the name of the law”. See, Richard H. Jr. Fallon, “Legitimacy and the Constitution” (2005) 118 Harv. L. Rev. 1787, at 1790-91. 54 Simmons, supra, note 51, at 201. 55 David A. Strauss, “Reply: Legitimacy and Obedience” (2005) 118 Harv. L. Rev. 1854, at 1866. 56 “Everyone knows that judicial decisions create winners and losers. And nobody likes to lose. At the same time we have a strong sense that losing is not quite so bad if we have had a fair chance at playing the game. Sir Robert Megarry has observed that the most important person in a courtroom is the litigant who is about to lose, and it is the primary duty of the court to convince that person that his or her point of view has been heard and understood, even if the court has found it necessary to reject it”. See Philip L. Bryden, “Public Interest Intervention in the Courts” (1987) 66 Can. Bar Rev. 490, at 508.
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The test for intervention, up until this Divisional Court decision, has not been to weigh the number of arguments for one side vis-à-vis the other side; rather, it has been to consider the extent to which the proposed argument will assist or not assist the court, or the extent to which the proposed intervener has a legitimate interest in the dispute. This was picked up by Hinkson C.J. of the British Columbia Supreme Court, as noted below, when he declined to follow the Ontario Divisional Court’s approach. In litigation generally, and Charter litigation in particular, it has been 2019 CanLIIDocs 408 a long-understood principle that justice must not only be done but be seen to be done.57 To prevent a proposed intervener from presenting to the court matters that directly affect its interests is a failure of justice. Justice is inhibited when a court denies a proposed intervener merely because the court is trying to ensure that there are equal numbers of interveners to create a “balance between the positions to be advocated”. At the very least, that position is difficult to maintain because the court has no control over the number of interveners that will apply in any given case. Experience has shown that in cases with a high profile, such as TWU, there are bound to be more interveners than in a case that is deemed low profile or not as significant. Even though Nordheimer J. stated that it is “a secondary consideration to the main considerations established by the decision in Peel”, he affirmed that balance “is nonetheless a factor that should be considered in the overall mix”.58 One must question whether it ever should be a consideration. The concern about balance has nothing to do with the merits of the case being argued by the parties nor of the interveners. To be fair, Nordheimer J. is not the first judge to raise concerns about balancing the number of interveners. However, he is the first to specifically state that one of the reasons for declining an intervention application was because of balance. In a media interview in 2000, Iacobucci J. observed that balance needed to be looked into “particularly in criminal cases — that you have one person representing the accused and a battery of intervenors supporting the Crown, or vice versa. So, they
57 Dagenais v. Canadian Broadcasting Corp., [1994] S.C.J. No. 104, [1994] 3 S.C.R. 835, at 879 (S.C.C.): “Similarly, the Courts had an interest in ensuring that justice was done, and an interest in safeguarding the repute of the administration of justice by ensuring that justice was seen to be done.” 58 TWU 2014, supra, note 11, at para. 10.
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say you get this kind of imbalance. I think we have to look at that”.59 Justice Iacobucci’s concern was regarding criminal cases. That is not the case here. Arguably, in the criminal law context, someone accused of a heinous crime does not typically garner much public support, especially when victim rights groups are anxious to have their voices heard and governments, with the automatic right to intervene, are supporting the Criminal Code. However, even then, the former justice did not provide a substantive reason why having an imbalance of interveners is problematic, particularly since interveners cannot simply duplicate any 2019 CanLIIDocs 408 party’s arguments in their submissions. That is not their role. The concern about balance seems to stem from a fear that justice may be distorted if a given side has more interveners than another, since the court may give undue consideration to their position(s). However, it should go without saying that the number of parties who support a position, or the number of positions argued, should never be criteria that determines law. The courts are well adept at ensuring that the rule of law prevails. Hearing from as many intervener voices as possible (provided they meet the test for standing) in a case of such importance as the TWU case should actually bolster the perception of justice, since such “participation can often increase the quality and legitimacy of the Court’s decisions”.60 Indeed, as Professor Kent Roach points out, while speaking about the Supreme Court, which remains applicable here, “It is better for the Court to hear from affected interests in an even-handed manner that is subject to adversarial challenge than simply to rely on the Court’s own impressions or research or pretend that the cases affect only the immediate parties to the dispute”.61 Otherwise, the court risks giving the impression that it is prejudicial by denying certain interveners simply because there is a preponderance of support on a particular side. Justice Nordheimer’s well-intentioned attempt to create a perception of balance could be construed as a pre-judgment against TWU or an attempt to give the LSUC a “better footing” even though a disparity of numbers should not determine the outcome of a case. Moreover, limiting interveners on a numerical basis suggests the courts are unwilling to confront the full
59 Kirk Makin, “Intervenors: how many are too many?” (March 10, 2000) The Globe and Mail, online:
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complexities of a case if they refuse to take into account the various interests of the multiple interveners who want to have their voices heard. All of this to say that, while Nordheimer J. was attempting to be “even-handed” in ensuring that there was a balance of interveners, for the reasons stated above, the emphasis on balance is misguided, especially given the purpose of an intervention. Nothing rides on the number(s) on either side. Instead, the court may actually increase the calibre and legitimacy of its decisions by listening to more, not fewer, of those who apply to intervene. 2019 CanLIIDocs 408 Another concern raised by the Divisional Court was that the interveners not overlap perspectives with each other. Said the court: I would add to [the requirement that interveners offer a viewpoint distinct from the parties,] something that I believe is implicit in the requirement itself and that is that the perspective must not only be distinct from the immediate parties but it must also be different from the other proposed interveners. There is no benefit to the Court in hearing and determining complex issues, of the type that are raised in this judicial review application, to have the same central points repeated by multiple interveners.62 This concern is, at least on the surface, well placed. Given the backlog of cases and the strain on the legal system, courts are justifiably anxious about efficient use of time. Having to listen to the same argument multiple times does appear nonsensical. However, there is a logistical problem with this requirement: proposed interveners will not fully be able to articulate their arguments until after they receive intervener status. That has been the normal practice. They have general ideas about what their concerns are, but it is not until the actual parties in the case articulate their positions, which occurs when they file their factums, that the interveners have a full appreciation of the issues in play. This is particularly so at the lower courts where the issues have not been clearly defined as they are at the Supreme Court of Canada. Therefore, there is no practical way for the court to definitively know whether the proposed interveners are or will be duplicating the arguments of the other interveners until both the parties and the proposed interveners have filed their factums. It is a classic chicken and egg conundrum. Only after the parties file their factums will the proposed interveners be able to appreciate and respond to the consequences to their interests raised by the parties’ legal arguments. Further, even if arguments appear
62 TWU 2014, supra, note 11, at para. 42 (emphasis added).
243 280 SUPREME COURT LAW REVIEW (2019) 90 S.C.L.R. (2d) initially to be overlapping at the application stage, they may still be nuanced and drive to different outcomes. These are exactly the things that need to be considered when complex issues are at hand. Another point is this — an intervener will usually not know who the other potential interveners will be until the applications are filed with the court. By then, they will have filed their own proposed arguments. These have then been set in stone for the application hearing to sort out. Therefore, there is often a significant logistical hurdle to coordinate among the intervener applicants to ensure that none of the arguments 2019 CanLIIDocs 408 overlap. Further, it is common practice to make the proposed arguments in the application to intervene broad to leave room for articulation once the intervener status has been granted. Given that the parties have not filed their arguments at this stage, the Divisional Court’s decision would require prematurely narrow arguments from potential interveners. This puts the interveners at a disadvantage and it limits their ability to be the most helpful they can be to the court. The Divisional Court overlooked these practical concerns by stating that while it did not know “precisely what issues the parties will address and in what manner” it was prepared to forego waiting because the scheduling requirements “did not allow for these motions to await all of that being done without greatly delaying the hearing of the application for judicial review itself”.63 When engaged in a Charter case that has a profound impact on the rights of religious communities across this country, it does seem that the court ought to be more concerned about ensuring that justice is seen to be done by allowing more, not fewer, interveners. If that means a delay of some weeks to allow the parties to file their arguments, that would be worth it. The public nature of the TWU case and its wide potential impact was evidenced by the fact that on July 8, 2014, Nordheimer J., when setting the schedule of the proceedings, ordered the parties to publicly post information on their respective websites to allow notice to potential interveners. This move by the court required the proposed interveners to make application before August 15, 2014, only five weeks. This short time frame made it rather difficult for the interveners to fully flesh out the specific nature of their arguments when the parties had not yet filed their arguments.
63 Id., at 44.
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Among others, the CCCC was one of the interveners not granted intervener status by Nordheimer J. It seems baffling to not allow the CCCC, the largest charitable umbrella organization in the country, to be present to make arguments on the impact of the case on some 3,400 religious communities and charities across Canada. Many of these were not represented by the interveners granted status, so their interests were not addressed, simply because the court was worried about intervener arguments overlapping. Yet, not one of the interveners granted status specifically indicated that it was going to address the communal right of 2019 CanLIIDocs 408 religious freedom — which is what the CCCC intended to argue. The CCCC was denied that opportunity because of the court’s concerns over efficiency. This, of course, was well within the court’s discretion. The Catholic Civil Rights League, speaking on behalf of Roman Catholic interests, was not granted status either. Given the large Catholic presence in education their inadmissibility was likewise perplexing. The court was also concerned that, without these new restrictions regarding balance and overlap, the court would have to consider “every permutation and combination of views to be expounded upon”. Justice Nordheimer elaborated: If it were otherwise, there would be no need for a threshold determination of standing for interveners to be made. We would simply open up the process to all interested persons. Such a result would greatly encumber the core adjudicative process, however. Consequently, there must be some limits placed on the intervention process. Those limits may seem to some to be arbitrary or unfair but it is a necessary part of deciding such matters.64 The court was willing to overlook the fact that the law’s principles, as noted above, have already narrowed the scope of who can and cannot intervene. There is no horde of interveners knocking down the doors of the court. The court’s statement that it was not “a public consultative process where every conceivable difference of opinion or view is to be gathered and digested”65 suggests the courts may be irritated by the participation of interveners in Charter litigation. The lower courts have normally not seen much intervention in constitutional litigation and they appear to be going through a similar process of initiation that the Supreme Court of Canada justices struggled with in the early days of the Charter. However, from my perspective, having participated in a number
64 Id., at para. 43. 65 Id.
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of interventions, it does appear that interveners are coming to the conclusion that intervening early in the litigation process has long term benefit if and when the case reaches the Supreme Court of Canada. One of those benefits is that multiple courts have an opportunity to appreciate the interveners’ concerns throughout the litigation process, so that by the time a case reaches Ottawa, the court is very much attuned to the broad implications. Therefore, the lower courts are now being called upon more and more to allow interveners. While Ontario courts have expressed a tightening of the process, it was the only province to have done so in the 2019 CanLIIDocs 408 TWU litigation. That may be due to the increased workload of being in a larger population base. However, that is speculative. It is suggested that increased Charter litigation is naturally going to involve more, not less, intervention that the lower courts need to prepare for. Already the law has limited those who can apply for intervener status — the principles are stringent and up until now they have been coherent and effective. Justice Nordheimer’s additional requirements, if broadly applied, will have a deleterious effect on future interveners in Charter litigation. An intervener will now be forced into a position where they may not have the ability to effectively inform the court about the unique characteristics of their group and the consequences they will face in the subject litigation. These are a few of the outstanding questions that need to be resolved: how will interveners know who else is seeking intervener status and with whom to discuss their arguments to avoid duplication? What happens, for example, if proposed interveners, for whatever reason, refuse to share with other potential interveners their arguments prior to the motion for intervener status? How does a court decide among the various interveners with similar arguments but grounded in different perspectives and experiences? The reality is that each intervener will be representing different groups which will result in different perspectives, even though on the surface their initial arguments may appear similar. In conclusion, the Divisional Court’s decision appears to question the overall effectiveness of the current law’s ability to limit an unwieldly number of potential interveners that will not assist the court. The discussion above and the experience of interveners in the provinces of Nova Scotia and British Columbia in the TWU litigation suggest that the Divisional Court’s concerns are not as dire as they first appear. The law on intervention has the institutional capacity to ensure the court maintains efficiency and legitimacy.
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(c) Appeal to Three-Member Panel of Divisional Court The CCCC, the Catholic Civil Rights League with the Faith and Freedom Alliance, and Gerard P. Charette66 appealed Nordheimer J.’s decision to a three-member panel of the Divisional Court on October 24, 2014. From the outset the panel was concerned about the interveners’ use of court time. The preoccupation with time is noteworthy because it was not shared, at least to the same degree, by the courts in B.C. or Nova Scotia. One may reasonably speculate as to the cause of this sensitivity, 2019 CanLIIDocs 408 such as a larger population base with more demands on court time in Ontario. However, the sensitivity concerning time remains one of the key concerns that all interveners will need to be mindful of going forward in future litigation and it will vary from one jurisdiction to the other. The Divisional Court panel gave the appeal very little credence and held that “[t]he decision whether to grant intervenor status is discretionary”.67 In their view Nordheimer J. “applied the correct legal principles”. He “considered the nature of the case, the extent to which the proposed intervenors could assist the Court, the impact on the process if all the applicants were granted intervenor status, the expertise of the applicants and their membership base, the sincerity of their interests, and their proposed contributions”.68 In the end, the panel ruled that “there was no error made by the motions judge when, in exercising his discretion, he took into consideration the commonality of the perspectives of the proposed intervenors”.69 Unlike what the Supreme Court was to do when interveners caused a social media disturbance over their rejection at the country’s top court, the Divisional Court panel saw no need to “vary” the previous court order. It certainly was not contemplated by the rejected interveners to engage in a robust social media discussion about not being accepted as an intervener. One does wonder if, in light of the Supreme Court intervener experience, social media has or will become the new village green for the townsfolk to express consternation about an unfavourable Court decision. Of course, there is a fundamental difference in that there is no right of appeal from a SCC decision. However, we are still left with a host of ethical and best practice issues to ensure that the administration of justice is not, by such
66 Association for Reformed Political Action Canada chose not to appeal. 67 Trinity Western University v. Law Society of Upper Canada (motion to vary), supra, note 11, at para. 2. 68 Id. 69 Id., at para. 4.
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social media activity, brought into disrepute. Nevertheless, the failure of the rejected interveners in Ontario compared with the ultimate success of the rejected interveners at the Supreme Court of Canada in this case is an interesting issue to be pursued at some point.
(d) Court of Appeal Like Nordheimer J., Hoy A.C.J., of the Ontario Court of Appeal, 2019 CanLIIDocs 408 decided that the CCCC, along with the Catholic Civil Rights League and the Faith and Freedom Alliance, would not be given intervener status. There were 15 proposed interveners at the Court of Appeal. Eight supported TWU and seven supported the LSUC. Associate Chief Justice Hoy was of the view that all of the proposed interveners met the test for intervention.70 It is the argument of this paper that this fact alone ought to have been persuasive to grant the applications of all the interveners. Any concern over time could be settled by limiting the interveners to filing factums of their arguments and granting oral argument at the hearing only as the court felt necessary. Indeed, the CCCC proposed to Hoy A.C.J.O. during the application hearing that the best practice to date was that of the Supreme Court of Canada, which did not require hearings for intervention applications, and decided applications based on affidavit evidence, granting status to those who met the test and allowing oral argument only as necessary. Associate Chief Justice Hoy went a certain degree toward that proposal but not all the way. The court was still concerned that Nordheimer J.’s decision be given some deference. Associate Chief Justice Hoy explained that “[t]he real issue — given the number of groups seeking to intervene — is whether each of the proposed intervener’s submissions will be useful and different from the other parties”.71 In arriving at her decision, she noted that she had reviewed Nordheimer J.’s decision on the interveners, the factum of TWU and the intervener factums and oral submissions. Associate Chief Justice Hoy dismissed the CCCC’s application with two sentences: “In essence, the CCCC submits that the LSUC gave insufficient weight to freedom of religion in balancing the Charter rights that were engaged. This argument is made by CCF.”72 It seemed that she
70 Trinity Western University v. Law Society of Upper Canada (Ont. C.A.), December 16, 2015, docket nos. M45789, M45791, M45800, M45803, M45814, M45818, M45819, M45820, M45821, M45822, M45823, M45824, M45825, M45826, M45831 (C61116), Hoy A.C.J.O., at 4, para. 6. 71 Id., at 4, para. 7. 72 Id., at 9, para. 12 (number 1).
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was of the view that the CCCC’s submissions would not be of any assistance as its arguments would be duplicative of the arguments put forward by the Canadian Constitution Foundation (“CCF”). The CCF proposed to argue “that the Divisional Court gave insufficient weight to the historical importance of religion in Canada balancing the competing Charter rights at play”.73 Unfortunately, Hoy A.C.J.O. did not understand that there was significant difference between the arguments of the CCF and the CCCC. The CCCC was again raising the issue of institutional religious freedom but that was not recognized by the court. 2019 CanLIIDocs 408 It was telling that she also made mention of the fact “Nordheimer J. also declined to grant leave to intervene to CCCC”.74 It appears that Nordheimer J.’s decision that the CCCC was duplicative in the Divisional Court was influential at the Court of Appeal. This became a matter of some concern. First, the CCCC’s argument was not the same as the CCF’s. During oral argument, as the CCCC’s counsel, I explained to the court that the CCCC wanted to emphasize the importance of institutional religious freedom under section 2(a) of the Charter. The CCCC was going to make an important contribution about the ability of such institutions to operate within the ongoing debate about the “private” and “public” spheres. When asked about how that was different from TWU’s position, I noted that as an organization of some 3,30075 Christian charities across Canada, the CCCC was well placed to share with the court the implications its decision would have not only on universities but on the entire institutional Christian community, as they too have codes of conduct based on their religious beliefs. The position of institutional religious freedom runs to the core of what the CCCC is all about. Whether drilling wells in underdeveloped countries or running TV programming, its members are engaged in a wide swath of endeavours. The outcome of this case against TWU was not, in the CCCC’s view, going to be limited to universities and educational institutions. Instead, the ramifications were much more widespread. Second, in the end the CCF, though granted the right to be an intervener, withdrew from the case and did not intervene. The CCCC’s argument was de facto no longer duplicative. Yet, it was not heard.
73 Id., at 8, para. 11 (number 6). 74 Id., at 9, para. 13. 75 At that time, the CCCC’s current membership is now over 3,400.
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During oral argument for intervention, CCCC shared its experience in the B.C. and the Nova Scotia courts. When those courts granted intervener status they maintained the discretion to grant oral argument after the factums were filed. This provided the courts flexibility to determine whether it was necessary to hear oral argument from the interveners. It also provided the interveners the opportunity to meet and discuss among themselves their various positions to ensure that they eliminated as much overlap as possible when preparing their factums. Indeed, Hoy A.C.J.O. encouraged the interveners in this case to consult 2019 CanLIIDocs 408 with each other to avoid any duplication in their argument. She also retained the discretion of granting oral argument to a panel of judges that would hear the case, explaining, “[o]nce the panel has reviewed all factums filed and heard oral submissions from TWU and the LSUC, it will be in a position to determine to what extent oral submissions from the interveners would be of assistance to it”.76 That is a positive move forward and it will hopefully assist in future cases of this nature in Ontario.
2. British Columbia (a) Supreme Court Chief Justice Hinkson noted that an “issue of this nature should be entitled to wide-ranging debate”.77 Nevertheless, he had “some reservations about how much duplication” he was going to receive from the seven proposed interveners who supported TWU. However, he took “comfort … that that group of proposed interveners has gotten together to try and reduce the potential for duplication. I am also cognizant of the fact that most of the proposed interveners have already received intervener standing in companion proceedings in Nova Scotia and Ontario”.78 These interveners, learning from the experience in Ontario, recognized that there had to be some coming together beforehand to ensure that the same concerns of the Divisional Court did not find a place in British Columbia. There was a scramble to call everyone who had expressed an interest in intervening in the B.C. case. Even so, it would
76 Id., at 11, at para. 19. 77 Trinity Western University v. The Law Society of British Columbia, May 14, 2015, docket no. S149837 (B.C.S.C.), before: The Honourable Chief Justice Hinkson, Oral Reasons for Judgment, para. 2 [hereinafter “Oral Reasons”]. 78 Id.
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not be foolproof as the potential interveners could not be certain who would show up at the last minute. Early in the applications hearing it was clear that Hinkson C.J. was not convinced of the merits of Nordheimer J.’s approach. During oral argument, Ms. K. Brooks, representing four proposed interveners,79 quoted Nordheimer J.’s assertion that a court “should take into account the general desire that there should, in the end result, be some balance between the positions to be advocated when granting intervener status”.80 Chief Justice Hinkson interrupted Brooks, explaining: 2019 CanLIIDocs 408 Well, I have some difficulty with that approach that was articulated by Mr. Justice Nordheimer. If interveners are going to assist the Court, why would I care how many are on one side and how many are on the other? My concern is, are they going to assist me and if they are, why would I favour one group as opposed to another?81 Chief Justice Hinkson clearly recognized the flaw in Nordheimer J.’s position. The law of intervention has never been concerned about the number of interveners on one side as compared to another. The main issue has been whether they are going to assist the court in making a just decision not only for the parties but for the greater good of society in light of the Charter. There have been many instances in Charter litigation where the numbers have not been equal on either side. For example, in the Loyola High School case82 there were 15 interveners and only one was not supportive of Loyola High School. Surely, it would be an insult to the Supreme Court to suggest it was unduly influenced by the sheer number of interveners who supported the school. Likewise, in the recently decided Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall83 case, there were 12 interveners who supported the view that the decision of the Jehovah’s Witnesses’ congregation to expel Mr. Wall for violating their religious practices was not subject to judicial review. Not one intervener supported Mr. Wall’s position that a civil court has the authority to review
79 Outlaws UBC, Outlaws UVIC, Outlaws TRU, and Qmunity. 80 Ms. Brooks quoting Nordheimer J.’s September 24, 2014 decision, at para. 10; Proceedings in Chambers, Supreme Court of British Columbia, before Hinkson C.J., Trinity Western University v. The Law Society of British Columbia, May 14, 2015 (J.C. WordAssist Ltd. (Vancouver)), Ms. Brooks, at 27, lines 8-12 [hereinafter “Proceedings”]. 81 Proceedings, supra, note 80, at 27, lines 17-24. 82 Loyola High School v. Quebec (Attorney General), [2015] S.C.J. No. 12, [2015] 1 S.C.R. 613 (S.C.C.). 83 [2018] S.C.J. No. 26, 2018 SCC 26 (S.C.C.) [hereinafter “Wall”].
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membership decisions of a private religious body. The Supreme Court ruled, in a 9-0 decision, that “religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute”.84 There was no “balance” as understood in the TWU case at the Divisional Court; nor was there any attempt, by the Supreme Court, to limit the number of interveners as the Divisional Court did in the TWU case. This is but another significant decision by the Court that supports the argument of this paper that the Ontario courts in the TWU case were too restrictive in 2019 CanLIIDocs 408 their approach to interveners. In contrast to the Ontario approach, Hinkson C.J.’s recognition of the need for a wide-ranging debate allowed all of the applicants a place at the bar to make their concerns known to the court. All were given an opportunity to file written submissions. Interestingly, most of the interveners were permitted 10-page submissions but QMUNITY and the three Outlaw groups were given 20 pages. The issue of how long the submissions were to be was an issue of contention. The interveners were initially asking for 20 pages but Hinkson C.J. was concerned about that extra burden.85 Chief Justice Hinkson’s discussion with Geoffrey Cowper, Q.C., lawyer for the Evangelical Fellowship of Canada and Christian Higher Education Canada, is revealing in that the Chief Justice was aware that interveners need to know what arguments the parties are making in order to properly articulate their submissions.86 However, he was also concerned that interveners not “hijack” the process by taking up arguments that the parties “should have said differently and here is our pitch”.87 Yet, it was important according to the Chief Justice, that the interveners know the arguments so that their submissions would be of benefit to the Court, “Or alternatively I won’t look at it because its not an issue the parties have chosen to argue”.88 However, it must be observed that while Hinkson C.J. did not agree with Nordheimer J., he was persuaded by the QMUNITY that because there were more interveners supporting TWU, the interveners supporting the Law Society were allowed to file longer legal briefs — 20 pages as
84 Id., at para. 39. 85 Proceedings, supra, note 80, at 8, lines 35-36. 86 Id., at 9-11. 87 Id., at 10, lines 40-41. 88 Id., at 11, lines 8-10.
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opposed to 10.89 Obviously, the Ontario Divisional Court continued to have some influence. As to oral submissions, Hinkson C.J. held that he was not going to make any decision until he read the written submissions.90 In the end, he allowed oral submissions from four groups, only one of which supported the Law Society.
(b) Court of Appeal 2019 CanLIIDocs 408 Justice Peter M. Willcock, of the British Columbia Court of Appeal, granted leave to all applicants.91 Justice Willcock referenced Nordheimer J.’s decision when granting leave to those interveners who were denied in Ontario. He was satisfied that they had “identified positions that are sufficiently distinct to justify the granting of the leave”.92 He noted further: In making these orders I am recognizing the importance of a liberal approach to granting leave in Charter cases, but in this case in particular, I am placing some weight upon the fact that there is some reasonable prospect the Supreme Court of Canada will consider appeals from the decisions here, in Ontario and in Nova Scotia, and in my view, it is in the public interest that our Court has the benefit of the contribution of the intervenors who will make submissions in other appellate Courts.93 Justice Willcock has provided a very enlightened view of the need that communities affected by Charter litigation be given the opportunity to have their day in court. In other words, justice is to be done and seen to be done.
3. Nova Scotia The experience for interveners in Nova Scotia was relatively uneventful. Only one applicant was denied through the whole court process. The Nova Scotia Court of Appeal denied the application of the CCF. The CCF had applied so late in the process that the court was of the view that “CCF has failed to convince me that they acted in a timely
89 Id., at 26-29. See also, Oral Reasons, supra, note 77, at para. 5. 90 Id., at 26, lines 7-9. 91 Trinity Western University v. The Law Society of British Columbia, docket no. CA43367 (B.C.C.A.), Oral Reasons for Judgment, Willcock J., March 30, 2016. 92 Id., at 8, para. 23. 93 Id., at 10-11, para. 34.
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manner to extend the time to intervene once it missed the deadline. Second even if I had extended the time to apply for intervention, CCF has failed to convince me that they bring a new perspective to the appeal and their application for intervention would have been denied”.94 In all other situations the Nova Scotia courts required no appearances for an oral hearing. It simply ensured the proposed interveners met the legal test and granted the status accordingly. 2019 CanLIIDocs 408 4. Supreme Court of Canada (a) First Decision — By Justice Wagner — July 27, 201795 As discussed above, in a decision that surprised many lawyers, the Supreme Court of Canada denied 17 out of 26 applications (comprising 23 out of 32 groups, since a number of groups filed jointly) for intervener status. The CCCC was among the applications denied. With only one day set for the hearing, Wagner J. evidently decided the Court did not have the time to hear all 26 applications. It was likely the case, as can be gleaned from the news release of the Court,96 that Wagner J. was told that there would be one full-day hearing. Two appeals plus 26 intervener applications simply cannot be crammed into a single day. Justice Wagner’s selection could be viewed as giving priority to those interveners who were more education-oriented and less advocacy-oriented. In the end, the Court granted intervener status to only nine groups. Seven of the groups were related to the legal profession in some capacity, such as the Christian Legal Fellowship and the Canadian Bar Association. Only two of the nine, the Association for Reformed Political Action (“ARPA”) and the National Coalition of Catholic School Trustees, were not associated with the legal profession. The ARPA addressed its arguments on the relationship between the equality rights (section 15 of the Charter) and religious freedom rights (section 2(a) of
94 Nova Scotia Barristers’ Society v. Trinity Western University, [2015] N.S.J. No. 558, 2015 NSCA 113, at para. 24 (N.S.C.A.). The court emphasized its discretion, noting at para. 18: There is nothing automatic about allowing non-parties to have a voice in an appeal. Each intervention is a drain on the resources of the parties and the Court. A party seeking to gain a seat at the table must be able to convince the Court that it brings with it a relevant perspective, the existing parties or other interveners will not supply. 95 Supra, note 4, online:
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the Charter). The National Coalition of Catholic School Trustees argued that there needed to be a proper balance with competing rights; there is no hierarchy of rights and not privileging one right over another respects all rights. None of the various LGBTQ groups that applied were granted intervener status at the Court. The Court may have concluded that the two law societies were adequately advancing the LGBTQ groups’ arguments. Indeed, it was the opposition from the LGBTQ advocates that successfully persuaded the British Columbia, Ontario, and Nova Scotia 2019 CanLIIDocs 408 law societies to reject the approval of TWU by the Federation of Law Societies Canada. All three accepted the LGBTQ arguments that TWU’s admissions policy was discriminatory and, though TWU would provide competent legal education to its students, that policy was sufficient reason to deny TWU’s Law School accreditation. In addition, the Evangelical Fellowship of Canada, the Seventh- day Adventist Church in Canada, the CCCC, the Canadian Conference of Catholic Bishops and the Roman Catholic Archdiocese of Vancouver were among the religious communities that were denied intervener status. Given the positions of TWU, and the religious interveners in the lower courts, perhaps the Supreme Court was of the view that there was enough on the record for the judges to mull over, and that the various arguments and counter-arguments were sufficient for justice to be served in this matter. Whatever the rationale, to grant only nine out of 26 applications is significant for two reasons. First, this was a very high profile case that garnered a lot of media attention; and second, “the Court typically grants more than 90 per cent of the requests to intervene”.97 In fact, Professors Alarie and Green concluded upon an empirical study of interventions at the Supreme Court that the Court “appears to be using the interventions to better understand the impacts of its decisions”.98 From their perspective “[t]he increase in the number of interveners” at the Court “seems to be a positive development”.99 One has to conclude that the restriction was unusual. It was quickly reversed.
97 Benjamin R.D. Alarie & Andrew J. Green, “Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance” (2010) 48 Osgoode Hall L.J. 381, at 383. 98 Id., at 410. 99 Id.
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(b) Second Decision — Chief Justice McLachlin — July 31, 2017100 Chief Justice McLachlin “varied” Wagner J.’s order after only four days, following a weekend of protests by upset members of the LGBTQ community.101 All 27 groups were allowed to file a 10-page factum and make a five-minute oral argument at the hearing. Because some of the groups filed jointly, the total number of intervener briefs was to be 26 (27 counting the Attorney General of Ontario). Given that the number of participants at the hearing tripled, the Court extended 2019 CanLIIDocs 408 the hearing to two days. Many were perplexed as to why the Supreme Court changed its mind. Unlike what we saw in the lower courts of this case, the Court initially did not issue reasons for its decisions on intervention. The Court’s statement to explain what occurred emphasized that it “does not give reasons for decision in motions for intervention. To do so would disproportionately burden the Court’s workload. In this instance, however, the concerns raised by some LGBTQ+ groups and others call for a response. … [S]cheduling issues informed Justice Wagner’s decision not to grant all applicants the right to intervene”.102 By the Court’s own admission, it was the “concerns raised by some LGBTQ+ groups” that moved the Court to action. Sean Fine of the Globe and Mail noted that Wagner J. “chose nine [interveners], among which he believed the views of LGBTQ advocates were well represented. But when he was made aware of concerns on social media, he sought out Chief Justice McLachlin to see what could be done”.103 This entire event appears to be an anomaly. It was a historical reversal of fortunes for interveners in Charter litigation. The Court was not prepared, as were the courts in B.C. (and Nova Scotia), to adopt a “liberal approach” at first instance. After all, the Court had plenty of notice for those applications to enable it to have made an extra day available long before it faced its embarrassing weekend of regret. It is reasonable to assume that had there been no outcry from the LGBTQ community the Court would have gone on with the one-day
100 Supra, note 4, online:
256 (2019) 90 S.C.L.R. (2d) THE LAW OF INTERVENTION 293
hearing as planned. No one would have thought more of it. But the indignation of the activists and the reaction of the Court to that criticism requires us to contemplate its meaning. The Court’s response was to open the doors for all interveners without exception and allow all to file up to a 10-page brief and have a five-minute oral presentation. There appeared to be no considered thought on who should or should not be given the privilege. This could have long-term implications for the Court as it will have a hard time squaring future restrictions, if the Court so chooses, with the open policy it followed in the TWU case after public complaints 2019 CanLIIDocs 408 elicited such a complete reversal. We have seen that the role of interveners is, at least partially, to bolster public faith in the legal system. One could argue that in this case, the Court took public perception into serious consideration and acted immediately to correct it. That may be beneficial to the Court’s image. Eugene Meehan observes that, “having let every intervener in, the Court is now free to do whatever it wants, and no one can complain they were not heard”.104 There were, no doubt, unambiguous lines of reasoning that went into Wagner J.’s first decision, as noted above. However, because the Court, as a general practice, does not give reasons for its decisions on interventions, we are left in the dark as to what those deliberations were. This incident may give the Court some reason to pause about the effectiveness of its current policy in not providing reasons. Perhaps, given time and reflection, this policy may evolve to the point that a future Court will give reasons for its use of discretion in granting or not granting interventions.
IV. CONCLUSION The twists and turns of the TWU Law School Case have provided much to consider about the law of intervention in Charter litigation. Justice must be done but also be seen to be done. When interested third parties meet the intervener test as established by the jurisprudence, courts ought to be loathe to deny intervener status since such a denial limits the public’s view of seeing justice being done. It is noteworthy that the Ontario courts were hypersensitive to the amount of time that interveners would take in the litigation. It seemed to me that a significant amount of time was given in the application
104 Interview with Eugene Meehan, June 5, 2018.
257 294 SUPREME COURT LAW REVIEW (2019) 90 S.C.L.R. (2d)
hearing for intervener status that equalled, or closely aligned with, the amount of time that the interveners were given at the hearings themselves. The debate over time was, in essence, an unnecessary use of the court’s time. Further, Ontario courts, especially the Divisional Court, were concerned over the issue of balance — having equal numbers of interveners supporting each side of the case. This was unusual and was not a concern in British Columbia or Nova Scotia. Historically, it was not a concern at the Supreme Court of Canada either, but that appeared to change. 2019 CanLIIDocs 408 However, the Supreme Court of Canada also made a dramatic decision in this case. It made one ruling, only to change it after a public display of anger by the LGBTQ community. This is unprecedented. It raises questions as to how the Court will deal with future litigation if or when affected communities raise public objections over a decision on intervener status that they find unpalatable. In British Columbia, the lower court held an oral hearing for the motion to intervene but was not concerned, as were the courts in Ontario, with the concepts of “balance” and “time”. At least, not to the same degree, as the “balance” was met by allowing more written pages for the legal briefs. Instead, Hinkson C.J. was concerned, and rightly so, about whether the proposed intervener would assist the Court in dealing with the implications of its decision. A far better approach, in this respect, was shown in the Nova Scotia courts where the interveners were not required to attend an oral hearing to establish intervener status. Instead, motions were filed, and the court addressed those motions without oral submissions from the interveners. It should be noted that the parties did not oppose the interventions save for the CCF’s intervention at the Nova Scotia Court of Appeal.105 This meant that as long as the proposed interveners met the legal test, based on the evidence of the motion record, and the parties did not oppose, the applicant was granted intervener status and given the right to file a factum and present oral argument. The Nova Scotia experience was similar to the long-used approach of the Supreme Court of Canada. Except for this case, there really has not been much concern about the Supreme Court’s approach since the early days of the Charter when the Court struggled over its intervention policy.
105 At the N.S.C.A. the Nova Scotia Barristers’ Society opposed the CCF’s motion on the grounds that it would not add anything new to the appeal. See Nova Scotia Barristers’ Society v. Trinity Western University, supra, note 94, at para. 5.
258 (2019) 90 S.C.L.R. (2d) THE LAW OF INTERVENTION 295
However, the Court had to learn, yet again, the sensitive nature of intervention. In his 2002 book, Friends of the Court, Ian Brodie warned, “As long as the Court faces no pressures in the direction of limiting its links to interest groups, it is hard to imagine why the Court might risk another outburst of criticism by throttling back on intervention or the law of standing”.106 He continues, “The Court will only limit its accessibility to interest groups when it faces a price for not doing so”.107 That is nowhere on the horizon if the TWU case is any indication. Going forward, all courts, the parties and the proposed interveners 2019 CanLIIDocs 408 would be better served if the intervention process in Charter litigation were streamlined. The streamlined approach would have the following: (1) Motions in writing only wherein the court would review the evidence on file and make its decision as to interests of the parties and proposed interveners. (2) The focus of the court’s analysis would remain on the helpfulness of the intervener to the court rather than on the notions of “balance” and “time”, thereby recognizing the importance of allowing proposed interveners, and the Canadian public, to see that justice is done when these interveners, who meet the established test, have an opportunity to express their concerns about the litigation to the court. (3) The court would retain its discretion to decide how much time, if any, each intervener would receive to make oral argument and how long their factum would be. By allowing all interested third parties that meet the test of intervention to participate in Charter litigation, the law will gain greater legitimacy and goodwill in the eyes of all Canadians. Professor McCormick points out, “[i]f you pave a road, you get more traffic. In Charter terms, if you ceremoniously unlock a door, more people will knock on it.”108 This is certainly the case with interveners coming to the court doors for entrance. In theory, a court’s decision to allow an intervener participation in a case is discretionary. However, as can be discerned from the Supreme Court’s experience in this case, how that discretion is exercised needs to be carefully weighed. Public interest groups are willing to take their protests beyond the courtroom to the greater public in making their
106 Brodie, Friends of the Court, supra, note 37, at 127. 107 Id. 108 Peter J. McCormick, The End of the Charter Revolution: Looking Back from the New Normal (Toronto: University of Toronto Press, 2015), at 140.
259 296 SUPREME COURT LAW REVIEW (2019) 90 S.C.L.R. (2d) case that their voices should be heard at the court. While there will continue to be arguments about the overall effectiveness of interventions, it seems that there is a general agreement that the practice continues to bring some benefit to the court. At the very least it must still be maintained, if for no other reason, so the public may have a guarantee that the symbolic message remains: justice is seen to be done in Charter litigation by the courts listening to the diverse voices that have a stake in the outcome of the legal principles being set. 2019 CanLIIDocs 408
260 TAB B7: AUTHORITES
Notice of Appeal in Mary Lou McDonald and Safe Food Matters Inc. v. AG Canada (Pest Management Regulatory Authority/ Minister of Health), Court File: A-85-20
261 K ç-J-è Court File No. A-
FEDERAL COURT OF APPEAL
SAFE FOOD MATTERS INC. *pel¡*nt (Appellant)
and
ATTORNEY GENERAL OF CANADA
Respondent @
APPLICATION UNDER subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
NOTICE OF APPEAL
TO THE RESPONDENT:
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU bY the appellant. The relief claimed by the appellant appears on the following page.
THIS APPEAL will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court directs otherwise, the place ofhearing will be as requested by the appellant. The appellant requests that this appeal be heard at the Federal Court of Appeal in Toronto.
IF YOU WISH TO OPPOSE THIS APPEAL, to receive notice of any step in the appeal or to be served with any documents in the appeal, you or a solicitor acting for you must prepare a notice of appearance in Form 341 prescribed by the Federal Courts Rules and serve it on the appellant's solicitor, or where the appellant is self-represented, on the appellant, WITHIN 10 DAYS of being served with this notice ofappeal.
IF YOU INTEND TO SEEK A DIFFERENT DISPOSITION of the oTdeT appealed from, you must serve and file a notice of cross-appeal in Form 341 prescribed by the Federal Courts Rules instead of serving and filing a notice of appearance.
262 -2-
Copies of the Federal Courts Rules information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.
IF YOU FAIL TO OPPOSE THIS APPEAL, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.
Date Issued by (Registry Officer) Address of local office: 180 Queen Street West Suite 200 Toronto, Ontario M5V 3L6
TO: ATTORNEY GENERAL OF CANADA Department of Justice Canada Ontario Regional Office Department of Justice Canada 400 - 120 Adelaide Street'West Toronto ON M5H lT1 Fax: 416-973-5004
Per: Andrea Bourke Tel: 647-256-7471 Andrea. Bourke@justice. gc. ca
Elizabeth Koudys Tel: 647-256-7530 Elizabeth.Koudys@justice. gc.ca
Solicitors for the Respondent
263 -3-
APPEAL
THE APPELLANT, Safe Food Matters Inc., appeals to the Federal Court of
Appeal from the Judgment of Justice Simpson dated February 13,2020 (in Federal
Court file no. T-217-19) dismissing the Appellant's application for judicial review of a decision of the Minister of Health, through her delegate the Pest Management
Regulatory Authority ("PMRA"¡, refusing to establish a Review Panel to consider the matters raised in the Appellant's Notice of Objection to the PMRA's re-evaluation of glyphosate products (the "NOO Decision").
THE APPELLANT ASKS for an order:
1. Setting aside paragraph i of the Judgment;
2. Granting the application for judicial review and quashing the NOO Decision;
J Directing the Minister to establish a panel of one or more individuals to review
the decision to continue the registration of glyphosate;
4 In the alternative to paragraph 3, remitting the matter to the Minister for
reconsideration in accordance with any direction or guidance of the Court; and
5. Such other relief as counsel may advise and the Court deerns just
THE GROUNDS OF APPEAL are as follows
Glyphosate is an herbicide and crop management product. Glyphosate is the
key ingredient in a vartety of products registered by the PMRA for use in
Canada. Glyphosate was first registered for use in Canada in 197 6.ln 2009, tlie
264 -4-
PMRA announced its intention to re-evaluate glyphosate and its registration.
On April 73,2015, the PMRA issued a Proposed Re-Evaluation Decision and
on April 28, 2017, the PMRA issued a Re-Evaluation Decision (the "RVD")
setting out PMRA's decision to grant continued registration of products
containing glyphosate for sale and use in Canada.
2. The Appellant Safe Food Matters Inc. is a non-profit corporation dedicated to
promoting health and protecting the environment through education, awareness
and the engagement of Canadians about the safety of food production
technologies. Mary Lou McDonald is the President of Safe Food Matters Inc.
J Upon release of the RVD, Safe Food Matters Inc. and Mary Lou McDonald,
acting in her personal capacity, filed a Notice of Objection to the RVD. The
Notice of Objection was filed under the provisions of the Pest Control Products
Act, SC 2002, c 28 and raised scientifically founded doubt as to the validity of
the evaluation of the health risks (the "Risk Evaluation"), oo which the RVD
was based. The Notice of Objection asked the PMRA to establish a review
panel to consider the subject matter of the objection. Under the PCP Act, the
role of the panel is to review the RVD and recornmend whether the RVD
should be confinned, reversed or varied.
4 The Notice of Objection set out nine objections to the RVD and provided
support for those objections based on science, rationality and evidence. The
Notice of Objection presented scientific basis for certain of the objections as
well as evidence in the forms of scientific studies published in peer-reviewed
265 -5-
academic joumals, government publications, articles and policy documents of
the PMRA and Health Canada. Among other grounds, one scientific basis set
out in the Notice of Objection was that the RVD did not take into account
scientific studies providing evidence that when glyphosate is applied as a
harvest management tool (i.e. as a desiccant) to certain crops that are not
physiologically mature, glyphosate residues accumulate at high levels in the
seeds because glyphosate moves preferentially to growing points (the seeds)
through a process called translocation. Such early application of glyphosate
may result in glyphosate levels in certain foods that are of concern to human
health, especially considering the evidence of increased consumption of these
foods.
5 The NOO Decision rejected the grounds advanced in the Notice of Objection
without properly appreciating or applying the standard of "scientifically
founded doubt as to the validity of the evaluation of the health risks" necessary
to appoint a review panel under the Review Panel Regulations, SOR/2008-22.
The NOO Decision did not meet the standard of reasonableness. It was not
transparent, justifìed or intelligible and did not address key arguments in the
Notice of Objection. The NOO Decision did not properly understand or
consider the evidence on which the Notice of Objection was based.
6 The Appellant and Ms. McDonald brought an application in the Federal Court
for judicial review of the NOO Decision. The Federal Court disrnissed the
application in its entirety by way of Judgment and Reasons issued on February
73,2020.
266 -6-
1. The Federal Court made effors of law and errors of mixed fact and law, as
particularised below
a. The Federal Court erred in finding that the NOO Decision was
reasonable and erred its approach to substantive review of the NOO
Decision. The Federal Court failed to consider adequately or at all: the
legal and factual constraints that bear on the decision including the
relevant statutory provisions and the interpretations they can reasonably
bear; the evidence before the PMRA; the submissions set out in the
Notice of Objection; and the impact of the NOO Decision on Canadians
having regard for the potential unacceptable risks to human health and
future generations that could result from exposure to or use of
glyphosate; and including the following:
i. The Federal Court failed to properly appreciate the scientific
studies relied on in the Notice of Objection and the scientific
bases for the position that translocation has an impact on
glyphosate residues in cerlain crops.
ii. The Federal Court failed to take into account the PMRA's
mischaracterisation of or failure to consider the arguments and
evidence in the Notice of Objection, and the impact of that
mischaracterisation and failure on the reasonableness of the
NOO Decision. In parlicular:
267 -7-
1. the Notice of Objection presented infonnation and
advanced arguments, based on science, that application
of glyphosate by desiccation to certain plants that are not
physiologically mature results in glyphosate
translocating to seeds and increases glyphosate residues
in seeds, and also provided scientific studies that
supported these arguments, and the RVD did not
consider that information. In the NOO Decision, the
PMRA did not speak to translocation or physiological
maturity, but spoke only to the issue of applying
glyphosate when the moisture content of the crop is
morethan30%o; iii. The Federal Court failed to adequately consider the information
presented in the Notice of Objection regarding (a) the specific
characteristics of indeterminate crops like chickpeas that make
them always susceptible to increased glyphosate residues when
desiccated; (b) increases in dietary consumption of chickpeas
ancl other indetenninate crops that likely increases Canadians'
exposure to glyphosate; (c) the lack of any studies on
glyphosate residues in chickpeas; (d) the lack of a specific
examination of the health risks arising from desiccation on the
individual chickpea crop; (e) the fact that weather can affect
moisture content and that the determination of moisture content
268 -8-
by visual indicators is subjective and subject to error; and the
relevance of that information to the review of the PMRA's
conclusion that the Notice of Objection did not raise
scientifically founded doubt regarding the validity of the Risk
Evaluation.
iv. The Federal Court misapprehended the submissions and
information in the Notice of Objection in finding that "the NOO
narrative did not raise the question of whether moisture content
is a reliable indication of crop maturity" (para32).
v. The Federal Court accepted the PMRA's undue and
unreasonable reliance on glyphosate labels as a basis for
dismissing the information presented in the Notice of Objection
that showed there may be unacceptable risks to human health.
vi. The Federal Court accepted the PMRA's mischaracterization
that there is no problem with grouping chickpeas in a crop group
with white beans and failed to understand the problems with the
1992 Study that was the basis for setting MRLs for beans.
b The Federal Court erred in failing to find that the NOO Decision does
not meet the standard of transparency, justification and intelligibility, as
the NOO Decision did not address adequately or at all the grounds
raised in the Notice of Objection and the infonnation it contained.
269 -9-
c. The Federal Court erred in its interpretation of s. 3 of the Review Panel
Regulations. In particular:
i. The Federal Court erred in setting out the meaning of and test
for "scientifically founded doubt as to the validity of the
evaluation of health risks of glyphosate" raised by information
in a Notice of Objection to support the establishment of a review
panel. The Federal Court set an unduly high threshold for
"scientifically founded doubt", holding that it must "challenge
the science relied upon by the PMRA in the Evaluations which
support the decision to continue the registration of glyphosate"
and "must be demonstrated by at least one controlled peer
reviewed study published in a reputable joumal that contradicts
or raises reasonable doubt" about the conclusions of the
Proposed RVD or the RVD, and rejecting the possibility that a
demonstrated absence of evidence is not adequate for a
scientifically based approach and can raise a scientifically
founded doubt as to the validity of the Risk Evaluation;
ii. in requiring that the information in the Notice of Objection
raised a scientifically founded doubt as to the conclusíons of the
Risk Evaluation rather than the validity of the Risk Evaluation. d. The Federal Courl erred in its consideration of the application of s. 3 of
the Review Panel Regulations to the NOO Decision and to the issue of
270 -10-
whether the PMRA reasonably concluded that the Notice of Objection
did not raise scientifically founded doubt as to the validity of the
evaluation of the health risks of glyphosate that formed the basis for the
RVD.
8 The provisions of the Federal Courts Act, the Federal Courts Rules, the Pest
Control Products Act andthe Review Panel Regulations.
9. Such further and other grounds as counsel may advise.
March 13,2020 Andrea Gonsalves STOCK\ryOODS LLP Barristers Toronto-Dominion Centre TD North Tower, Box 140 77 King Street'West, Suite 4130 Toronto ON M5K lHl
Andrea Gonsalves (525328) Tel: 416-593-3497 Fax: 416-593-9345 andreag@stockwoods. ca
Solicitors for the Appellant
271 is a true copy ol ttt" I f iiRt;iJY Cl--Ri ii:'/ that the ailovt document original iss.rcd out of / filed in the Court on the l'ilAR 1 3 2020 rlay of 0,20 l',lAR 13 20- Dated this- daY of -
PRODAN GIL TRY OFFICER 272 AGENT DU GREFFE TAB B8: AUTHORITES
-Judgement and Reasons of Madam Justice Simpson, in Mary Lou McDonald and Safe Food Matters Inc. v. AG Canada (Pest Management Regulatory Authority/Minister of Health), Docket: T-277-1920 FC 242, February 13, 2020
273 Date: 20200213
Docket: T-277-19
Citation: 2020 FC 242
Ottawa, Ontario, February 13, 2020
PRESENT: Madam Justice Simpson
BETWEEN:
MARY LOU MCDONALD AND SAFE FOOD MATTERS INC.
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] This application is for judicial review of a decision of the Pest Management Regulatory
Agency dated January 11, 2019 [the Decision], in which it decided not to establish a panel of scientists to review its earlier decision, made in 2017, to permit the continued registration of glyphosate products in Canada. This application was brought pursuant to subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. The Applicants request an order quashing the
Decision, and directing the PMRA to establish a review panel or in the alternative, remitting the
274 question of whether to establish a review panel back to the PMRA for reconsideration in accordance with any direction given by the Court.
I. The Parties
[2] The Applicants are Mary Lou McDonald and Safe Food Matters. Safe Food Matters is a non-profit corporation dedicated to promoting health and protecting the environment through education, awareness and the engagement of Canadians about the safety of food production technologies. Mary Lou McDonald is the President of Safe Food Matters.
[3] In practice, the Respondent is the Pest Management Regulatory Agency [PMRA]. It is the branch of Health Canada responsible for regulating the use of pest control products in
Canada in a manner that protects the health and safety of Canadians. The PMRA acts on behalf of the Minister of Health with respect to the regulation of pesticides in Canada under the Pest
Control Products Act, S.C. 2002, c. 28 [the PCP Act].
II. The Standard of Review
[4] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court of Canada states at paragraph 16 that for all administrative decisions, there is a presumption that the standard of review is reasonableness. At paragraphs 17 and 70, the Court indicates that the standard of review will only be correctness if legislation prescribes it, or if the matter falls into one of the following categories: it raises a Constitutional question; it raises a question of central importance to the legal system as a whole; it raises a question about the jurisdictional lines to be drawn between tribunals; or where a failure to apply correctness review would undermine the rule of law and jeopardize the proper function of the justice system in a manner analogous to one of the above three categories.
275 [5] Here, the PCP Act does not prescribe the correctness standard, and the matter does not fall into any of the correctness categories. Accordingly, reasonableness is the standard of review and both parties agree with this conclusion.
III. The Procedural Background
[6] There is no dispute that glyphosate is a pest control product governed by the PCP Act. In addition to being a weed-killer, glyphosate is a desiccant. It is used to facilitate harvesting by killing crops just before harvest so that they dry quickly and evenly in the field.
[7] Glyphosate was first registered for use in Canada in 1976. In 2005, the PMRA gave approval to a label expansion which allowed it to be used as a pre-harvest desiccant on a variety of crops including chickpeas.
[8] In 2009, the PMRA gave notice of its intention to re-evaluate glyphosate. On April 13,
2015, the PMRA issued a Proposed Re-Evaluation Decision [the Proposed Re-Evaluation] and the subsequent Re-Evaluation Decision was dated April 28, 2017 [the Re-Evaluation]. These two documents will be described collectively as the “Evaluations”. The Evaluations were the basis for the decision to permit the continued registration of glyphosate.
[9] The Proposed Re-Evaluation is described as follows in passages which are found under the heading “Overview”:
An evaluation of available scientific information found that products containing glyphosate do not present unacceptable risks to human health or the environment when used according to the proposed label directions. As a condition of the continued registration of glyphosate uses, new risk reduction measures are proposed for the end-use products registered in Canada. No additional data are being requested at this time.
. . .
276 This Proposed Re-evaluation Decision is a consultation document that summarizes the science evaluation for glyphosate and presents the reasons for the proposed re-evaluation decision. It also proposes new risk reduction measures to further protect human health and the environment.
The information is presented in two parts. The Overview describes the regulatory process and key points of the evaluation, while the Science Evaluation provides detailed technical information on the assessment of glyphosate.
The PMRA will accept written comments on this proposal up to 60 days from the date of publication of this document. Please forward all comments to Publications (please see contact information indicated on the cover page of this document).
. . .
[Footnote omitted]
The Applicants provided written comments and participated in the public consultation process based on the Proposed Re-Evaluation.
[10] In due course, the Re-Evaluation was published. Its Executive Summary reads in part as follows:
During this re-examination, the PMRA assessed the potential human health risk of glyphosate from drinking water, food, occupational and bystander exposure, as well as the environmental risk to non-target organisms. Both the active ingredient and formulated products were included in the re-evaluation. The assessment was carried out based on available information provided by the manufacturer of the pesticide, as well as a large volume of published scientific literature, monitoring information (for example, ground water and surface water) and reviews conducted by other regulatory authorities.
The overall finding from the re-examination of glyphosate is highlighted as follows:
• Glyphosate is not genotoxic and is unlikely to pose a human cancer risk.
277 • Dietary (food and drinking water) exposure associated with the use of glyphosate is not expected to pose a risk of concern to human health.
• Occupational and residential risks associated with the use of glyphosate are not of concern, provided that updated label instructions are followed.
• The environmental assessment concluded that spray buffer zones are necessary to mitigate potential risks to non-target species (for example, vegetation near treated areas, aquatic invertebrates and fish) from spray drift.
• When used according to revised label directions, glyphosate products are not expected to pose risks of concern to the environment.
• All registered glyphosate uses have value for weed control in agriculture and non-agricultural land management.
[11] The Re-Evaluation also commented on the study and use of glyphosate in other jurisdictions. In this regard, the PMRA stated at pages 8 and 9:
The PMRA routinely works collaboratively with other member countries within the Organisation for Economic Co-operation and Development (OECD) on the regulation of pesticides. As part of the re-evaluation of an active ingredient, the PMRA takes into consideration recent developments and new information on the status of a pesticide in other jurisdictions. Glyphosate is currently acceptable for use in other OECD countries, including the United States, Australia and the European Union. As of 8 March 2017, no decision by an OECD member country to prohibit all uses of glyphosate for health or environmental reasons has been identified.
In March, 2015, the World Health Organization’s (WHO) International Agency for Research on Cancer (IARC) published a summary of results of their hazard classification of five pesticides, including glyphosate. IARC classified glyphosate as probably carcinogenic to humans. It is important to note that the IARC classification is a hazard classification and not a health risk assessment. This means that the level of human exposure, which determines actual risk, was not taken into account by IARC.
In November, 2015, the European Food Safety Authority (EFSA) finalized their re-assessment of glyphosate, concluding that
278 glyphosate is unlikely to pose a carcinogenic hazard to humans. The EU also set an acute reference dose, which is the same as that set by the PMRA (PRVD2015-01). In May 2016, the Joint FAO/WHO Meeting on Pesticide Residues (JMPR) concluded that glyphosate is unlikely to be genotoxic at anticipated dietary exposures and that it is unlikely to pose a carcinogenic risk to humans from exposure through the diet. In March, 2017, the European Chemical Agency (ECHA) and the Australian Pesticides and Veterinary Medicines Authority (APVMA) released their determination that glyphosate is not a carcinogen. Currently, no pesticide regulatory authority, including Health Canada, considers glyphosate to be a carcinogenic risk of concern to humans.
[My Emphasis]
The Re-Evaluation invited the public to file Notices of Objection.
[12] Section 35 of the PCP Act permits the filing of a Notice of Objection [NOO]. It reads as follows:
Reconsideration of Decisions Examen des décisions Notice of objection to Avis d’opposition — registration decisions homologation 35 (1) Any person may file 35 (1) Dans les soixante jours with the Minister, in the form suivant celui où l’énoncé de and manner directed by the décision visé au paragraphe Minister, a notice of objection 28(5) est rendu public, toute to a decision referred to in personne peut déposer auprès paragraph 28(1)(a) or (b) du ministre, selon les within 60 days after the modalités que celui-ci fixe, un decision statement referred to avis d’opposition à la décision in subsection 28(5) is made visée aux alinéas 28(1)a) ou b) public. Notice of objection to Avis d’opposition — authorization decisions autorisation d’exportation (2) Any person may file with (2) Dans les soixante jours the Minister, in the form and suivant celui où l’avis visé aux manner directed by the paragraphes 33(6) ou 34(4) est Minister, a notice of objection rendu public, toute personne to a decision to authorize the peut déposer auprès du export of a pest control product ministre, selon les modalités or to amend or cancel an qu’il fixe, un avis d’opposition
279 authorization within 60 days à la décision d’autoriser after a notice referred to in l’exportation d’un produit subsection 33(6) or 34(4) is antiparasitaire ou de modifier made public. ou de révoquer l’autorisation d’exportation. Establishment of review Constitution d’une panel commission d’examen (3) After receiving a notice of (3) Le ministre peut, après objection, the Minister may, in réception de l’avis accordance with the d’opposition, constituer, en regulations, if any, establish a conformité avec les éventuels panel of one or more règlements, une commission individuals to review the d’examen, composée d’un ou decision and to recommend de plusieurs individus, chargée whether the decision should be d’examiner la décision prise et confirmed, reversed or varied. de recommander soit sa confirmation, soit son annulation, soit encore sa modification. Notice of review panel Avis — commission d’examen (4) The Minister shall give (4) Le ministre publie un avis public notice of the de la constitution de la establishment of a review commission d’examen. panel. Reasons to be provided if Non-constitution motivée panel not established (5) If the Minister does not (5) Si le ministre décide de ne establish a panel, the Minister pas constituer de commission shall provide written reasons d’examen, il communique sans without delay to the person délai ses motifs écrits à la who filed the notice of personne qui a déposé l’avis. objection. Terms of reference and Mandat et procédure procedure (6) The Minister may (6) Le ministre peut fixer le determine the terms of mandat de la commission et reference of a review panel and prévoir la procédure d’examen the procedure for the review, et, à tout moment, les modifier. and may at any time change them.
280 Representations Observations (7) A review panel shall give (7) La commission est tenue, any person a reasonable en conformité avec son opportunity to make mandat, de donner à toute representations in respect of personne la possibilité de the decision under review, in présenter ses observations sur accordance with the terms of la décision faisant l’objet de reference. l’examen. Public access Accessibilité (8) Subject to subsections (8) Sous réserve des 44(3) and (6), the hearings of a paragraphes 44(3) et (6), les review panel shall be open to audiences de la commission the public. sont publiques. Information to be placed in Inscription au Registre Register (9) A review panel shall give (9) Les renseignements fournis the information submitted to it à la commission sont remis au to the Minister, who shall ministre, qui les verse au place it in the Register. Registre.
[13] The Applicants filed an NOO asking that a review panel be established to review the decision to continue glyphosate’s registration. The NOO raises concerns about the use of glyphosate as a pre-harvest crop desiccant, not as a weed killer, and the focus of the concerns expressed is harm to humans, not harm to the environment.
[14] Section 3 of the Review Panel Regulations (SOR/2008-22) to the PCP Act [the RP
Regulations] states:
3 The Minister shall take the 3 Le ministre prend en following factors into account compte les facteurs ci-après in determining whether it is pour déterminer s’il y a lieu de necessary to establish a review constituer une commission panel: d’examen : (a) whether the information a) l’avis d’opposition in the notice of objection soulève un doute, sur la raises scientifically base de renseignements founded doubt as to the fondés scientifiquement, validity of the evaluations, quant à la validité des
281 on which the decision was évaluations qui ont été based, of the health and faites de la valeur du environmental risks and the produit antiparasitaire et value of the pest control des risques sanitaires et product; and environnementaux qu’il présente et qui ont mené à la décision contestée; (b) whether the advice of b) l’obtention de l’avis de expert scientists would scientifiques serait assist in addressing the susceptible de favoriser le subject matter of the règlement de l’objet de objection. l’opposition. [My Emphasis] [Non souligné dans l’original]
[15] Section 4 of the RP Regulations provides that a review panel must be composed of independent scientists who have the expertise necessary to evaluate the subject matter of the objection in the NOO:
Review Panel Composition Composition des commissions d’examen 4 If the Minister determines 4 Si le ministre décide de that it is necessary to establish constituer une commission a review panel of one or more d’examen composée d’une ou persons, each person selected de plusieurs personnes, il by the Minister shall choisit chacune d’elles en fonction des critères suivants : (a) possess scientific a) elle possède des knowledge that allows connaissances scientifiques them to evaluate the de nature à lui permettre subject matter of the d’évaluer l’objet de objection; l’opposition; (b) not have been b) elle n’a, dans l’année employed in any précédant sa nomination department, in any division comme membre de la or branch of the federal commission d’examen, été public administration, in employée dans aucun any corporation or in any ministère ou secteur de parent Crown corporation l’administration publique as set out, respectively, in ni au sein d’aucune Schedules I, I.1, II and III personne morale ou société to the Financial d’État mère respectivement Administration Act, within visés aux annexes I, I.1, II
282 one year before the day on ou III de la Loi sur la which they are appointed gestion des finances to the review panel; publiques; (c) have provided the c) elle a fourni au ministre Minister with a written une déclaration écrite statement indicating that portant qu’elle n’est pas en they are free from any conflit d’intérêts réel ou actual or potential conflict potentiel par rapport à la of interest that relates to décision contestée ; the decision under review; and (d) have undertaken in d) elle s’est engagée par writing to disclose to the écrit à signaler sans délai Minister in writing, au ministre, également par without delay, any actual écrit , tout conflit d’intérêts or potential conflict of réel ou potentiel interest that may arise and susceptible de survenir affect their duties as a dans le cadre de ses member of the review fonctions à titre de membre panel. de la commission.
IV. The Decision
[16] In its Decision not to establish a review panel, the PMRA found that the Applicants’
NOO did not meet either of the criteria set out in Section 3 of the RP Regulations. In other words, the NOO did not raise scientifically founded doubt about the validity of the Evaluations and expert scientists would not be able to assist in addressing the topics raised in the NOO. As part of the Decision the PMRA provided a response to the issues raised in the NOO [the
Response]. The Response will be described below when the issues are discussed.
V. Scientifically Founded Doubt
[17] There are no cases which consider the meaning of this concept. However, in opening submissions, the Applicants acknowledged and I agree that decisions under the PCP Act are to be based on rigorous science. In my view the NOO process under the Act is also to be underpinned by rigorous science. Moreover, sections 3 and 4 of the RP Regulations, which are
283 set out above, make it clear that the purpose of the NOO in this case is to challenge the science relied on by the PMRA in the Evaluations which support the decision to continue the registration of glyphosate. In my view, the NOO is not a vehicle for challenging the Evaluations for reasons that have no scientific basis.
[18] The context signals to me that this is the correct approach. The challenge to the science in the NOO, if accepted, would result in the appointment of a panel of independent scientists.
Based on scientific principles, the panel would provide the PMRA with recommendations which would either confirm or question the PMRA’s decision about the continued registration of glyphosate.
[19] Given this context, the Decision not to appoint a review panel will be unreasonable only if the Applicants’ NOO shows a well founded scientific doubt about a conclusion in the
Evaluations. It is also my view that scientifically founded doubt about the validity of the
Evaluations must be demonstrated by at least one controlled peer reviewed study published in a reputable journal that contradicts or raises a reasonable doubt about the Evaluations’ conclusions.
[20] Contrary to the Applicants’ submissions, I am not prepared to find that a scientifically founded doubt can arise based on a newspaper article or because there is an absence of studies on a topic or because scientists have written articles expressing their opinions. Articles of this kind are part of the literature on a topic and are significant because they raise interest in an issue and may lead to the funding of a study. However, neither an absence of studies nor published opinions create a scientifically founded doubt in the world of rigorous science.
284 [21] The Applicants were not required to use the NOO procedure. The decision to continue the registration of glyphosate could have been challenged on judicial review for being unreasonable. In such a challenge there would have been no requirement to show scientifically founded doubt.
VI. Background Information
A. Translocation
[22] When applied to a crop in which seeds and fruits are still growing, glyphosate will move to and build up as residue in those parts of the plant. The PMRA establishes maximum residue limits (MRLs) for glyphosate in many crops. At page 4 of the Response, PMRA states that
MRLs are set well below levels that would present a human health concern.
B. Crop Moisture content and Maturity
[23] The PMRA has directed that glyphosate is only to be applied when the moisture content of the plants in a crop is below 30%. Farmers are directed to visually inspect the crop to determine if certain indicia of maturity and moisture content which are described on a label (such as brown stems or seeds) are present.
C. Exceedances
[24] If a crop is tested and levels above MRLs are detected, such levels are called
Exceedances. Exceedances may not be problematic because the residue levels, while above the
MRLs, may nevertheless be well below levels that pose a health risk.
285 D. Indeterminate Crops
[25] Crops in which the entire plant matures at the same time are called determinate crops.
Other crops may be indeterminate in that they grow continually. This means that, even at harvest time, parts of the plant may be immature. Accordingly when glyphosate is applied as a preharvest desiccant, residue levels may be present due to translocation. Chickpeas and lentils are indeterminate crops.
E. Crop Groups
[26] PMRA does not assign MRLs to all crops. Instead similar crops are grouped together and a representative crop is selected. Its MRL is applied to all the crops in the group. As a result of a field trial study conducted in 1992 [the 1992 Study], white beans are the representative crop for the group that includes chickpeas.
[27] In the Affidavit of Isabelle Pilote, affirmed on June 27, 2019 [the Pilote Affidavit] at paragraphs 58 and 59, the PMRA explains crop grouping as follows:
Crop groupings are used in many countries around the world and allow for crop field data on a “representative” crop to be extended or used as a proxy for other crops within the same crop group.
A crop group or subgroup is comprised of crops that are similar in terms of crop morphology (physical characteristics of the crop); growth habits; and what part of the crop is edible (e.g. the beans inside the bean pods of bean plants). From the crops listed in a crop group, between two and seven crops are chosen to be representative of the entire group. A representative crop is most likely to contain the highest pesticide residues, is based on both professional expertise and supporting data, and is also likely to be a major crop in terms of production and/or consumption.
286 VII. The Issues
[28] In the NOO, the Applicants raised the following issues:
1) Regarding Residue Levels and Exceedances: information from the Canadian Food Inspection Agency and other sources regarding translocation and the impact of crop immaturity on residue levels raises scientifically founded doubt about the validity of the Evaluations’ conclusion that glyphosate is not expected to pose a risk to human health;
2) Regarding the Dietary Consumption Data: the PMRA relied on US data from 1998 and did not meaningfully consider more recent 2010 dietary consumption data;
3) Regarding the Margin of Exposure: the application rate variable in a study of glyphosate exposure in rats was inappropriately reduced by the PMRA from twice to once in a seven day period; and
4) Regarding the Safety or PCPA Factor: the safety factor in a study of rabbits was inappropriately reduced from 10-fold to 3-fold.
A. Issue I – Residue Levels and Exceedances
[29] In the Response the PMRA rephrased the concerns the Applicants had expressed in the
NOO and described them as comments. It then provided responses. On this issue, the four comments were as follows:
Comment 2: A comment was received which indicated that the early application of glyphosate as a desiccant or the application of glyphosate when moisture content is too high resulted in exceedances of the Maximum Residue Limits (MRLs) for some crops. It also referenced data obtained from the Canadian Food Inspection Agency (CFIA), which showed exceedances in a cereal and legume. Safe Food Matters Inc. states that since food containing a pesticide residue that does not exceed the established MRL does not pose a health risk concern; foods that do exceed the established MRL do pose a health risk and thus endanger human health.
Comment 3: A comment was received which stated that it would appear that an examination of the risks arising from dietary exposure to crops that have been desiccated with glyphosate was not part of the re-evaluation, and maintained that such an examination is necessary, particularly given that mechanisms by
287 which MRLs can be exceeded in desiccated crops, [sic] and that data from the CFIA indicates that exceedances are occurring.
Comment 5: A comment was received which referenced the 2017 Guide to Crop Protection published by the Saskatchewan Ministry of Agriculture, which stated that the use of glyphosate for the use of “Crop Staging for Preharvest Applications” on the crops canary seed, mustard, chickpea, lupin and faba bean is registered under the URMULE program, and because of this “the manufacturer assumes no responsibility for herbicide performance. Those who apply glyphosate to chickpea, lupin, faba bean, canary seed, camelina or mustard do so at their own risk.”
Safe Food Matters Inc. claimed that there was no indication in the re-evaluation of glyphosate that the use of desiccation/pre-harvest management on these additional crops has been assessed for health risks or that MRLs have been established for these crops subject to this use.
Comment 6: A comment was received which states that the risk to human health from consuming crops that have been desiccated with glyphosate when moisture content is high is not mitigated by the proposed label amendments from the re-evaluation. It argues that there is no reasonable certainty that no harm to human health or future generations will result from dietary exposure to glyphosate, given that
1) no label statements were proposed that would mitigate risk to human health from desiccation, and
2) any such label statements would not with reasonable certainty be effective because of the subjective content of any label and the unpredictability of the weather which can affect moisture content
[30] The Applicants say that in writing these comments, PMRA understated their concerns.
They say that a concern about the application of glyphosate to plants with a moisture content above 30% is not the only issue they expressed in the NOO. They state that, in the NOO, they also expressed concern that moisture levels do not necessarily indicate crop maturity. They further state that the PMRA failed to address the relevant study in the Response.
288 [31] A review of the NOO shows that the only reference to crop maturity is found in the paragraph below and, in my view, it was simply a description of translocation in immature plants.
The literature indicates when glyphosate is applied to crops that have already emerged, it translocates to seeds of the plant. Moreover, the earlier glyphosate is applied as a desiccant, or the more moisture content there is in the plant, the higher the residue levels in the plant. This is because glyphosate moves preferentially to growing points, which are largely the seed. If glyphosate is applied to a crop that is not physiologically mature, it accumulates more in the seed.
[My Emphasis]
[32] Accordingly, I have found that the NOO narrative did not raise the question of whether moisture content is a reliable indication of crop maturity.
[33] However, in footnote 4 to the NOO, the Applicants submitted the Cessna Canola Study
[the Canola Study]. It does suggest that moisture content alone is not a reliable indicator of crop maturity. However, it concludes that a moisture content below 30% plus a visual assessment of the crop is reliable methodology and, since that is what is directed on the glyphosate labels in the record, there is no scientifically founded doubt raised by this study about the adequacy of the current directions for the use of glyphosate. In my view given that the Response indicates at page 4 that the PMRA assessed the scientific literature submitted with the NOO and given that the Canola Study did not contradict the Evaluations, there was no need to discuss it in detail in the Response.
[34] I turn now to the 2016 CFIA data mentioned in Comment 2 [the CFIA Data] and note that chickpeas are the crop which concerns the Applicants in this context.
289 [35] The Re-Evaluation provides background on this issue at page 9. It reads:
Health Canada’s PMRA sets Maximum Residue Limits (MRLs) for pesticide residues on food, which is the maximum amount of residue that is expected to remain on food products when a pesticide is used according to label directions. These are set at levels well below the amount that could pose a health concern. In 2015, the Canadian Food Inspection Agency (CFIA) tested approximately 700 samples consisting of a variety of juice and juice blends, grains and grain products, beans, lentils, and a variety of fruit and vegetables. The CFIA also initiated a targeted survey of approximately 2,500 samples, looking at levels of glyphosate in bean, pea, lentil, chickpea and soy products, as well as less commonly consumed grains such as barley, buckwheat and quinoa. The results show a high degree of compliance with the MRLs established by the PMRA for glyphosate. The CFIA anticipates having the full analysis completed by Spring 2017.
[36] The CFIA eventually concluded that glyphosate residues above MRLs were found in only
1.3% of 3,188 samples and that no human health concerns were present. The samples included chickpeas.
[37] The CFIA Data were provided to the Applicants with an email dated January 16, 2019.
They show that the CFIA identified 2 Exceedances in 93 observations of chickpeas and concluded that neither posed a risk to human health. Accordingly, there is no scientifically founded doubt about the safety of glyphosate in chickpeas.
[38] The Applicants also expressed concern about white beans as the representative crop for chickpeas. They submit that the PMRA failed to consider the risk that chickpeas will contain unacceptable glyphosate residues due to translocation. The Applicants submit that chickpeas are particularly susceptible to glyphosate MRL exceedances because as an indeterminate crop, they will always have immature seeds. The Applicants state that chickpeas should not be in a crop
290 group with white beans as the representative crop, because white beans, unlike chickpeas, are determinate.
[39] The Respondent submits that there is no scientific basis for saying that there is a problem with grouping chickpeas in a crop group with white beans. The Respondent cites the CFIA Data described in paragraph 36 above that showed that the percentage of MRL exceedances was low and that the non-compliant data did not pose a health risk. It is noteworthy that, according to the
Pilote Affidavit at paragraph 40, the MRL used for chickpeas in the CFIA Data was the MRL assigned to white beans and that no problems were identified. This means that the MRL for white beans is appropriate for chickpeas and the fact that there may be new growth on a chickpea plant at harvest which attracts glyphosate is not a significant concern.
[40] The Applicants also submit that the 1992 Study is out of date. However, the Applicants have submitted no studies which demonstrate a scientifically founded doubt about the use of white beans as the representative crop for chickpeas.
[41] The Applicants are also concerned that farmers will ignore the directions on the labels and will apply glyphosate to crops too early or when the plants are physiologically immature.
However, they have not provided evidence that farmers have any motivation to apply glyphosate at an early stage in a crop’s development.
[42] The study by Kristen McNaughton which the Applicants included in the NOO at page 4 under the heading “Dry Beans”, observes that a farmer will not use glyphosate if the yield and quality of his or her crop will be compromised. Farmers have no incentive to apply glyphosate in a way that destroys their crops or risks residues at levels that prohibit export. In my view, the
291 author of the Applicants’ own study negates their concerns. Further, the Applicants have not produced any evidence to show that farmers have actually applied glyphosate early to immature crops.
[43] Lastly, the PCP Act imposes penalties when a farmer fails to follow directions on labels.
See sections 6(5)(b) and 6(9) of the PCP Act. However, the Applicants suggest that enforcement by the CFIA will not be effective.
[44] In my view, farmers’ behaviour and enforcement issues are not topics for a panel of expert scientists.
[45] The Applicants raised six scientific studies about glyphosate in their NOO. Three studies deal with moisture but do not conclude that there is a problem when glyphosate is applied when moisture levels are below 30%. These studies are: the Cessna wheat seed study and the two
Zhang lentil studies listed on page 3 of the NOO. Two of the studies, the Cessna canola study listed in the NOO on page 3, footnote 4, and the McNaughton dry beans study on page 4 of the
NOO, both of which were discussed earlier in these reasons, deal with the effects of moisture and maturity but do not identify any problems with the directions for glyphosate application found on the current labels. The Cessna field pea, barley and flax seed study on page 4 of the NOO may indicate a concern with flax seed and glyphosate residues, but this concern was not raised by the
Applicants, and the study does not conclude that using glyphosate on flax poses a health concern.
[46] The NOO introduces the findings of these six scientific studies by saying that:
The scientific literature indicates that the early application of glyphosate as a desiccant or the application of glyphosate when moisture content is too high has resulted in exceedances of the Maximum Residue Limits (“MRLs”) for some crops
292 . . .
In conclusion, the literature shows that MRLs for some crops, in particular cereals and legumes, can be exceeded when glyphosate is used as a desiccant and the crop has high moisture content, . . .
[47] There is no issue that if glyphosate is applied as a desiccant to immature crops or to crops with a moisture content above 30%, or in large quantities, the residue levels will be unacceptable. Accordingly, these studies do not deal with contentious issues.
[48] For this reason and given that the Response shows that the PMRA did consider these studies, it was not obliged to deal with them in detail in the Response.
[49] Dealing with the other comments on this issue, I note that the Applicants’ concerns were addressed in that:
i. The Response showed that a dietary risk assessment was conducted for chickpeas; and
ii. The Response also indicated that the CFIA Data recorded the impact of desiccation on chickpeas and no health risks of concern were identified.
[50] Lastly, the NOO was critical of the PMRA for not setting an MRL for chickpeas given the dramatic increase in chickpea consumption. However, sections 9 and 10(1) of the PCP Act state that setting an MRL for crops such as chickpeas is a matter of discretion and there is no statutory obligation to do so. Further, there was no well-founded scientific evidence presented which supported a need for an MRL for chickpeas.
[51] To conclude on this issue, I am not persuaded that there were any studies which raised a scientifically well founded doubt which would justify the appointment of a review panel.
293 B. Issue II – Dietary Consumption Data
[52] The Applicants’ concern was that outdated data were used. The Comment reads as follows:
Comment 4: A comment was received which expressed concern regarding PMRA’s use of CSFII – 1994-1995, 1998 Continuing Survey of food Intakes by Individuals and United States WWEIA consumption data to assess dietary risk in the re-evaluation of glyphosate. Safe Food Matters argued that a dietary risk assessment using these data is inadequate because of the evidence that current levels of consumption and production of desiccated legumes like chickpeas and lentils has increased dramatically. Accurate information showing the increase in consumption would increase the numbers for the calculations of glyphosate exposure through diet.
[53] By way of background, CSFII 1994-1996, 1998 refers to the 1998 dietary consumption data, and DEEM 2.14 refers to the 2009 software used to model this data. NHANES/WWEIA refers to the 2010 dietary consumption data, and “a new version of DEEM-FCID” refers to the
2013 modelling software for the 2010 data.
[54] The Pilote Affidavit deals with this issue at paragraph 54. There she states:
. . . As explained in the January 11, 2019 decision letter to Ms. McDonald, the PMRA had conducted a dietary exposure analysis relating to all pesticides (not specifically glyphosate) using DEEM-FCID™ with NHANES/WWEIA for the purpose of comparing the results with the analysis under DEEM 2.14, and determined that there was consistency in the food intake pattern and no significant differences in overall dietary exposure.
[55] There are no studies mentioned in the NOO which contradict the PMRA’s conclusion that the 2010 data which became available in 2013, are not materially different from the earlier data PMRA used which was from 1994-96 and 1998.
294 [56] There are two newspaper articles about increases in chickpea consumption which are described in footnotes 6 and 7 of the NOO and at page 8 of the NOO there is a chart prepared by
Statistics Canada which shows increased pulse production. This chart is relevant because chickpeas are a pulse. However, there is no indication that there is any dietary consumption data of the sort relied on by PMRA which takes this increased consumption into account. Therefore, I cannot identify a scientifically founded doubt which would justify the appointment of a review panel.
[57] In their Memorandum of Argument, the Applicants raised for the first time a concern that the Re-Evaluation at page 4 found that the exposure estimates for children 1-2 years old met 70% of the Acceptable Daily Intake [ADI]. The Applicants submit that this is contrary to the protection demanded by the PCP Act for vulnerable groups. The Respondent said in oral submissions that the exposure estimate of 70% is not of concern because the ADI is set at a level that would pose no significant harmful effects. However, since this issue of whether 70% of the
ADI is unsafe was not raised in the NOO and was not mentioned in the Pilote Affidavit or the
Respondent’s Memorandum of Argument, it was not properly before me and will not be considered.
C. Issue III – The Margin of Exposure
[58] The Response recorded the Applicants’ concerns as follows:
Comment 7: A comment was received which referenced the aggregate risk assessment in PRVD2015-01 conducted for children 1 to less than 2 years old, examining post-application dermal exposure of glyphosate and incidental oral exposure (hand-to- mouth) from performing postapplication activities in treated lawns/turf + chronic dietary (food and drinking water). This aggregate exposure scenario initially assumed a glyphosate application rate of two applications with a seven day interval. At
295 that application rate, the aggregate margin of exposure for children (1 to < 2 years old) did not reach the target of 100. Therefore, refinements to the risk assessment were required.
Safe Food Matters Inc. claimed that in response to this finding the PMRA changed the aggregate assessment without a reliable scientific rationale, to one application of glyphosate with a seven- day time-weighted turf transferable residue average for the entire aggregate assessment for all populations. The average residues of glyphosate were calculated over a seven-day span, rather than assuming exposure to residues immediately after application. In addition, Safe Food Matters Inc. stated that this refinement of the aggregate risk assessment in effect reduced the 10-fold safety factor by changing the application rates, since the 10-fold factor would have been exceeded had the application rates stayed the same.
[59] In this context, the Margin of Exposure (MOE) is a factor used to assess the safe exposure to glyphosate from all sources including diet, drinking water and the environment.
Since 100 was determined to be the safe factor, an MOE of 100 or more was the target. An
MOE below 100 indicates unsafe exposure.
[60] It is noteworthy that the PCP Act does not require the PMRA to have reliable scientific data to support a decision to reduce the number of times children are expected to be exposed to glyphosate in a given period. This means that logic and common sense can be used in appropriate circumstances to justify such a change.
[61] The results of the study of exposure in rats were modelled to extrapolate the impact on humans of all ages. In that exercise, it was assumed that two exposures would occur 7 days apart at the maximum application rate. In these circumstances, the target of 100 was not reached for children aged one to less than two years.
296 [62] However, the PMRA noted at page 28 of the Proposed Re-Evaluation that its assumptions had been unreasonable and that it had adjusted them because:
they had used US MRLs for barley wheat and oats even though 99% of these crops studied were produced in Canada; and
one application at the maximum rate made more sense than two exposures given the short 7 day timeframe.
[63] In the result, the factor of 100 was achieved for all age groups.
[64] In my view, the Applicants have not demonstrated that there is a scientifically well- founded doubt about the appropriateness of the PMRA’s revision of its assumptions.
D. Issue IV – The Safety or PCPA Factor
[65] The Response recites the Applicants’ concern as follows:
Comment 1: A comment was received which objected to reductions of the safety factor without scientific rationale with regards to the serious endpoint of cardiovascular malformations in the rabbit developmental toxicity study. The objector indicates that the tempering of the concern surrounding the “serious endpoint” based on the presence of maternal toxicity does not appear to be permitted, based on the approach outlined in SPN2008-01.
[66] If glyphosate is applied around homes or schools, the PCPA factor requires the PMRA to apply a margin of safety which is 10 times the margin that would otherwise apply.
[67] It is important to note that in an ordinary calculation, there are already two factors that build in caution – a factor of 10 for interspecies variability, and another factor of 10 for intraspecies variability – to a base uncertainty factor of 100. The PCPA factor adds a further safeguard to assume further uncertainty where children are concerned, i.e. a 10-fold PCPA factor would increase the overall uncertainty factor to 1000.
297 [68] As well, in this situation, the PMRA is required by section 19(2)(b)(iii) of the PCP Act to have a basis in reliable scientific data for changing the 10 fold standard.
[69] The PMRA relied on the fact that, in the study of glyphosate toxicity in maternal and fetal rabbits the end points were clear. This meant that the data showed a clear demarcation between doses of glyphosate which did and did not show negative health effects.
[70] The PMRA says that because there was maternal toxicity the impact of the glyphosate on the fetus could be reduced because some of the negative health effects in the fetus could be attributed to the fact that the mother’s ill health itself negatively affected the fetus. This reasoning led the PMRA to reduce the safety factor from 10-3 for females ages 13-49 and from
10-1 for other populations. This means that women of child bearing age receive extra protection.
[71] The Applicants say that the PCPA factor cannot be reduced here and rely on Science
Policy Note [SPN] 2008-01 at section 4.3. It reads:
If toxicity data indicate no prenatal or postnatal toxicity or the level of concern is low (and the data is considered complete), then the presumption for use of the 10-fold PCPA factor will be obviated with respect to the potential for prenatal and postnatal toxicity (i.e. the PCPA factor would be reduced to one-fold). If the level of concern is high, the 10-fold PCPA factor will be retained.
[72] However, the PMRA says that it is entitled to reduce the factor here under the first paragraph of section 4.1 of SPN 2008-01. It reads:
Under the new Pest Control Products Act (PCPA), the PMRA must apply a default 10-fold factor (the PCPA factor) unless the PMRA concludes, based on reliable data, that a different factor is appropriate for the protection of infants and children. Determination of the magnitude of the factor involves evaluation the completeness of the data with respect to exposure of and toxicity to infants and children as well as potential for prenatal or postnatal toxicity (see Figure 2). Incomplete toxicology databases
298 are not equally incomplete and all prenatal and postnatal toxicities are not of equal concern. For these reasons, the PMRA makes specific case-by-case determinations as to the size of the PCPA factor if reliable data permit. An integrative approach is taken to optimize use of all available information. A PCPA factor less than or equal to 10-fold or, in very rare circumstances, greater than 10- fold, may be employed in an assessment. Given the extensive data typically available for a given pesticide, the PMRA believes that in most instances, there will be sufficient reliable data to conduct an individualized assessment of the factor necessary to assure the safety of infants and children.
[Footnote omitted]
[73] In my view, the Applicants have not shown a well founded scientific doubt concerning the PMRA’s decision to reduce the PCPA Factor. This issue raised concerns about the interpretation of SPN 2008-01 and whether the PMRA’s interpretation was reasonable. Statutory interpretation is not the purview of a panel of expert scientists.
VIII. Overall Conclusion
[74] It is my conclusion that the Applicants have not shown in their NOO that there exists scientifically founded doubt about the validity of the Evaluations. For this reason, this application for judicial review of the Decision not to appoint a review panel will be dismissed.
299 JUDGMENT IN T-277-19
THIS COURT’S JUDGMENT is that
i. This application for judicial review is hereby dismissed; and
ii. Each party is to bear its own costs as a result of an agreement reached
between the parties.
"Sandra J. Simpson" Judge
300 FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-277-19
STYLE OF CAUSE: MARY LOU MCDONALD AND SAFE FOOD MATTERS INC. v ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 30, 2020
JUDGMENT AND REASONS: SIMPSON J.
DATED: FEBRUARY 13, 2020
APPEARANCES:
Andrea Gonsalves FOR THE APPLICANTS Emily Quail
Andrea Bourke FOR THE RESPONDENT Elizabeth Koudys
SOLICITORS OF RECORD:
Stockwoods FOR THE APPLICANTS Barristers and Solicitors Toronto, Ontario
Attorney General of Canada FOR THE RESPONDENT Toronto, Ontario
301 Court File No. A-85-20 FEDERAL COURT OF APPEAL BETWEEN
SAFE FOOD MATTERS INC. Appellant AND ATTORNEY GENERAL OF CANADA Respondent
APPLICATION UNDER s. 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7
[DRAFT] MOTION FOR LEAVE TO ADMIT NEW EVIDENCE PURSUANT TO RULE 351 BY THE [PROPOSED] INTERVENOR CENTRE FOR HEALTH SCIENCE AND LAW (CHSL)
PROPOSED INTERVENER CENTRE TO: ATTORNEY GENERAL OF CANADA FOR HEALTH SCIENCE AND LAW (on behalf of the Minister of Health and the Pest (CHSL) Mgmt. Regulatory Agency) P.O. BOX 4880, Station E Department of Justice Canada, ON Reg’l Off. Ottawa, ON, K1S 5J1 Department of Justice Canada Bill Jeffery (LSN: 37605S) 400-120 Adelaide St. W., Toronto, ON M5H lT1 Executive Director and General Counsel Per: Andrea Bourke (LSN: 45892K) Telephone No. (613) 565-2140 Tel: 647-256-7471; [email protected] All Correspondence by email to Elizabeth Koudys (LSN: 74644Q) [email protected] Tel: 647-256-7530 Counsel for the proposed intervener [email protected] Centre for Health Science and Law (CHSL) Counsel for the Respondent AND TO: SAFE FOOD MATTERS INC. AND TO: COUNSEL FOR THE Andrea Gonsalves (LSN: 52532E) INTEVENER ECOJUSTICE STOCKWOODS LLP Barristers Laura Bowman (LSN: 53645K) Toronto-Dominion Centre TD North Tower, [email protected] and Box 140, 77 King St. W, Suite 4130 Ian Miron (LSN: 63445O) Toronto ON M5K lHl [email protected] Tel: 416-593-3497 Fax: 416-593-9345 1910-777 Bay St, Box 106, TO, ON M5G 2C8 [email protected] T: 416-368-7533 (exts. 522 and 540, Counsel for the Appellant respectively)
302 Court File No. A-85-20
FEDERAL COURT OF APPEAL
B E T W E E N:
SAFE FOOD MATTERS INC. Appellant and
ATTORNEY GENERAL OF CANADA Respondent
APPLICATION UNDER subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
DRAFT MOTION RECORD
(Rule 369 Motion for Leave to Present New Evidence on Appeal)
[PROPOSED] INTERVENER CENTRE FOR HEALTH SCIENCE AND LAW
DECEMBER 21, 2020
PROPOSED INTERVENER CENTRE TO: ATTORNEY GENERAL OF CANADA FOR HEALTH SCIENCE AND LAW (on behalf of the Minister of Health and the Pest (CHSL) Mgmt. Regulatory Agency) P.O. BOX 4880, Station E Department of Justice Canada, ON Reg’l Off. Ottawa, ON, K1S 5J1 Department of Justice Canada Bill Jeffery (LSN: 37605S) 400-120 Adelaide St. W., Toronto, ON M5H lT1 Executive Director and General Counsel Per: Andrea Bourke (LSN: 45892K) Telephone No. (613) 565-2140 Tel: 647-256-7471; [email protected] All Correspondence by email to Elizabeth Koudys (LSN: 74644Q) [email protected] Tel: 647-256-7530 Counsel for the proposed intervener [email protected] Centre for Health Science and Law (CHSL) Counsel for the Respondent AND TO: SAFE FOOD MATTERS INC. AND TO: COUNSEL FOR THE Andrea Gonsalves (LSN: 52532E) INTEVENER ECOJUSTICE STOCKWOODS LLP Barristers Laura Bowman (LSN: 53645K) Toronto-Dominion Centre TD North Tower, [email protected] and Box 140, 77 King St. W, Suite 4130 Ian Miron (LSN: 63445O) Toronto ON M5K lHl [email protected] Tel: 416-593-3497 Fax: 416-593-9345 1910-777 Bay St, Box 106, TO, ON M5G 2C8 [email protected] T: 416-368-7533 (exts. 522 and 540, Counsel for the Appellant respectively)
303 Court File No. A-85-20 FEDERAL COURT OF APPEAL B E T W E N: SAFE FOOD MATTERS INC. Appellant and ATTORNEY GENERAL OF CANADA Respondent
APPLICATION UNDER subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
NOTICE OF MOTION (Rule 369 Motion to present new evidence on appeal)
TAKE NOTICE THAT the Appellant will make a motion to the Court in writing under Rule 369 of the Federal Courts Rules.
THE MOTION IS FOR:
1. An order permitting the [proposed] Intervener Centre for Health Science and Law to admit into evidence on appeal and add to the Appeal Book the documents described in the attached draft order and described in detail in the table to this Notice of Motion (marked as Exhibits “A” through “Q” to the affidavit of Bill Jeffery);
2. In the alternative to 1, an order deferring to the Appeal Panel the determination of whether to grant leave to the [proposed] Intervener Centre for Health Science and Law to admit as new evidence in this appeal and add to the Appeal Book
304 the documents described in the attached draft order and described in detail in the table to this Notice of Motion (marked as Exhibits “A” through “Q” to the affidavit of Bill Jeffery enclosed in this Motion Record);
3. In the alternative to orders 1 and 2, an order permitting the [proposed] Intervener Centre for Health Science and Law to present as new evidence in this appeal and add to the Appeal Book the documents described in the attached draft order and described in detail in the table to this Notice of Motion (marked as Exhibits “A” through “Q” to the affidavit of Bill Jeffery enclosed in this Motion Record) for the sole purpose of informing the Federal Court of Appeal’s consideration of the remedy;
4. That the Federal Court of Appeal accepts the solicitor’s affidavit of Bill Jeffery, in-house counsel to the Centre for Health Science and Law is accepted for this Motion; and
5. Such further and other relief as to this Honourable Court may see just.
THE GROUNDS FOR THE MOTION ARE
6. On September March 13, 2020, the Appellant, Safe Food Matters, filed a Notice of Appeal to the Federal Court of Appeal in this matter, shortly before non-emergency court proceedings were suspended due to COVID-19.
7. The appeal concerns the legality of the lower reviewing court’s dismissal of the Appellant’s request for an order directing the Minister to appoint a scientific Review Panel to reconsider the scientific basis for the Pest Management Regulation Agency’s (the “PMRA’s”) decision to re-new the registration of the pesticide glyphosate after its, in CHSL’s submission, flawed re-evaluation process.
305 8. The Federal Rules of Court stipulate that this Court of Appeal can order any documents to be included in the appeal book, by stating as follows:
344 (1) An appeal book shall contain, on consecutively numbered pages and in the following order,… (f) any order made in respect of the conduct of the appeal; (g) any other document relevant to the appeal;…
9. Furthermore, section 351 of the Federal Rules of Court states:
351 In special circumstances, the Court may grant leave to a party to present evidence on a question of fact.
10. The four-part common law test to admit new evidence on appeal that has been prescribed by the Federal Court of Appeal and the similar test applied by the Supreme Court of Canada are met in this case.
11. This is the first time the Federal Court of Appeal will be considering a decision of the PMRA under s. 35 of the Pest Control Products Act and the PMRA’s mandate under that Act, generally. Accordingly, the Federal Court of Appeal should avail itself of reliable information about the decision-making approach and scope of evidence considered by the decision-makers below and CHSL will make its best efforts to provide its unique perspective about these issues.
THE FOLLOWING DOCUMENTARY EVIDENCE will be relied up on in support of this motion:
12. an Affidavit of Bill Jeffery in relation to the Motion for leave to introduce new evidence on appeal affirmed December 21, 2020 along with the attached exhibits,
306 13. the 18-documents, excerpts or sets of related documents sought to be introduced consisting of approximately 100 pages of new evidence;
14. the Motion and written representations, including a chart describing how each piece of evidence meets the common law test for admissibility as new evidence on appeal;
15. Such further and other evidence as this Honourable Court may order or permit;
16. Federal Courts Rules, section 351.
December 21, 2020
Bill Jeffery (LSN: 37605S) Executive Director and General Counsel and Solicitor of Record for the PROPOSED INTERVENER Centre for Health Science and Law (CHSL) P.O. BOX 4880, Station E Ottawa, ON, K1S 5J1 Telephone No. (613) 565-2140 All Correspondence by email to [email protected] Counsel for the proposed intervener Centre for Health Science and Law (CHSL) (Moving Party)
TO: The Administrator AND TO: ATTORNEY GENERAL OF Federal Court of Appeal CANADA Dept. of Justice Canada, Ont. Reg’l Off. 400-120 Adelaide Street W. Toronto ON M5H 1T1 Per: Andrea Bourke Tel: 647-256-7471 [email protected] Elizabeth Koudys Tel: 647-256-7530 [email protected] Tel: 416-973-0942
307 Solicitors for the Respondent (Responding Party)
AND TO: STOCKWOODS LLP AND TO: COUNSEL FOR THE COUNSEL FOR THE INTERVENER ECOJUSTICE APPELLANT Laura Bowman (LSN: 53645K) Barristers, Toronto-Dominion [email protected] and Centre Ian Miron (LSN: 63445O) TD North Tower, Box 140 [email protected] 77 King Street West, Suite 4130 1910-777 Bay St, Box 106, TO, ON M5G Toronto ON M5K 1H1 2C8 Andrea Gonsalves (52532E) T: 416-368-7533 (exts. 522 and 540, Tel: 416-593-3497 respectively) Fax: 416-593-9345 [email protected] Solicitors for the Appellant
308 Court File No. A-85-20 FEDERAL COURT OF APPEAL
BETWEEN:
SAFE FOOD MATTERS INC. Appellant - and -
ATTORNEY GENERAL OF CANADA Respondent
DRAFT ORDER
UPON MOTION by the proposed intervener Centre for the Centre for Health since and Law (CHSL) for an order to introduce new evidence pursuant to Rule 351 of the Federal Courts Rules;
CONSIDERING the motion materials filed by the [Proposed] Intervener Centre for Health Science and Law (CHSL);
CONSIDERING the consent/submissions of parties and Proposed Interveners, as the case may be]
THIS COURT ORDERS that:
1. The intervener Centre for Health Science and Law (CHSL) is granted leave to introduce the following documents into evidence subject to the corresponding conditions:
309 A. a screen-shot from the publicly accessible Admitted, www.sciencedirect.com, a widely used scientific research included in tool that catalogues scientific articles from around the world appeal record on all topics, the vast majority of which is published in English (excerpt) B. a screen-shot of the outcome of a search for glyphosate on Admitted, Health Canada’s “Consultation and Stakeholder Information included in Management System” appeal record C. an email response from PMRA to CHSL on October 5-6, Admitted, 2020 describing the legal and physical barriers between the included in public and the Reading Room documents concerning the re- appeal record evaluation of glyphosate, including the attached Form 7000 and PMRA’s proposed Affidavit D. an excerpt from the PMRA’s Report to Parliament Admitted, included in appeal record E. testimony of a Director General of the PMRA and a witness Admitted, from the Canadian Environmental Law Association before included in the Standing Senate Committee on Agriculture and Forestry appeal record F. an Access to Information Act disclosure of the amount of Admitted, glyphosate sold in Canada 2007-2017 included in appeal record G. a report prepared by academic experts using government Admitted, data cataloguing the amount of glyphosate used in the included in European Union appeal record H. Peer-reviewed report entitled: Charles M. Benbrook, Admitted, “Trends in glyphosate herbicide use in the United States and included in globally,” Environmental Science Europe (2016) 28:3 DOI appeal record 10.1186/s12302-016-0070-0 I. Minister of Health’s 2019 mandate letter from the Prime Admitted, Minister included in appeal record J. Incident reports of scientific studies available at Admitted, https://pesticide-registry.canada.ca/en/incident-report- included in search.html mandated by the Pest Product Control Act and appeal record Pest Control Products Incident Reporting Regulations, SOR/2006-260 K. Health Canada January 16, 2020 “Health Canada Statement Admitted, on Glyphosate” published two weeks before the Federal included in Court hearing on the subject: appeal record https://www.canada.ca/en/health- canada/news/2019/01/statement-from-health-canada-on- glyphosate.html L. Report of the United Nations Special Rapporteur on the Admitted, Right to Food (excerpt) included in appeal record
310 M. Charles Benbrook, “Shining a Light on Glyphosate-Based Admitted, Herbicide Hazard, Exposures and Risk: Role of Non- included in Hodgkin Lymphoma Litigation in the USA,” European appeal record Journal of Risk Regulation, Vol. 11:3, 503. N. Biography of lead author Christopher J Portier and 93 other Admitted, scientists and published in a peer-reviewed speciality journal included in of the British Medical Journal distinguishing the approach to appeal record seller-sponsored studies used by World Health Organization’s International Agency for Research on Cancer compared to the European Food Safety Agency, PMRA’s:: Differences in the carcinogenic evaluation of glyphosate between the International Agency for Research on Cancer (IARC) and the European Food Safety Authority (EFSA). O. Three official summaries of glyphosate’s regulatory status in Admitted, the European Union “Summary report of the appeal included in Committee, Commission Health and Food Safety appeal record Directorate-General”, “Status Report on Glyphosate in the EU”, and MEPs demand glyphosate phase-out, with full ban by end 2022” from the European Commission and the European Parliament P. Document: PMRA enforcement bulletin for 2016-2020: Admitted, https://www.canada.ca/en/health-canada/services/consumer- included in product-safety/pesticides-pest- appeal record management/public/protecting-your-health- environment/compliance-enforcement/enforcement- bulletins.html Q. Statistics Canada, Canadian Community Health Survey - Admitted, Nutrition (CCHS) Detailed information for 2015, large included in nationally; and representative survey of food consumption appeal record patters.
2. The Solicitor’s affidavit of Bill Jeffery, in-house counsel to the Centre for Health Science and Law, is accepted for this Motion.
3. The court varies its order granting leave to CHSL to intervene by allowing 15 days after [the date of this Order or the date that the Appellant files its memorandum of fact and law, whichever is later] to file its memorandum of fact and law in the main appeal.
311 4. Should this motion be opposed by any party, CHSL may file Reply argument of up to one page for each document that is opposed for admission to a maximum of 8 pages.
5. If this motion is opposed in oral proceedings, CHSL may make oral submissions for a period not to exceed 30 minutes or such longer amount of time as the resisting party may be granted.
312 Court File No. A-85-20
FEDERAL COURT OF APPEAL
B E T W E E N:
SAFE FOOD MATTERS INC. Appellant and
ATTORNEY GENERAL OF CANADA Respondent
APPLICATION UNDER subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
AFFIDAVIT OF BILL JEFFERY in support of a motion to admit new evidence on appeal
Affirmed December 21, 2020
I, Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa- Carleton, Ontario, SOLEMNLY AFFIRM THAT:
1. I am the Executive Director and General Counsel of the Centre for Health Science and Law (CHSL) and solicitor of record in this application. I have been a member of the Ontario bar since 1996, though not as a litigator. As such, I have personal knowledge of the matters set out herein except where stated to be based on information and belief, in which case I believe such information to be true.
313 2. My knowledge about the institutional experience and expertise of CHSL is the best available evidence and serves the interests of justice by being a speedy and inexpensive method of so-declaring. I am prepared to be cross-examined on my affidavit and am mindful of the consequences of doing so.
3. I am mindful of my professional responsibilities in relation to the practice of submitting a affidavit in a matter in which I am the solicitor of record, have consulted with the Law Society of Ontario practice management advisory service and consulted the Rules of Professional Conduct, which states, in part: 5.2-1 A lawyer who appears as advocate shall not testify or submit their own affidavit evidence before the tribunal unless (a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or (b) the matter is purely formal or uncontroverted. Commentary [1] A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the advocate's right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status.
4. Having considered this, I am satisfied that in merely proposing documentary evidence to be added to the Certified Appeal Record—all of which is in the public domain and already in the Pest Management Regulatory Agency’s glyphosate application package or would be if all relevant evidence were
314 considered as the PMRA maintains—I am not attesting to controversial facts or opinions. I accept the facts in the documents as they are stated.
5. Furthermore, if the documents are admitted into evidence, my submissions in the main appeal will be in the nature of legal arguments, not testimony.
6. I am further satisfied that my statement on these matters is the best available evidence for the Court of Appeal, that in the unlikely event that another party or intervener wishes to cross-examine me on this affidavit, I will be in a far better position to give informative answers than anyone else involved in the organization I direct and, furthermore, if I were compelled to find a more suitable affiant, I may have to refrain from proposing this vital new evidence.
7. I first became aware of the judicial review that is the subject of this appeal in mid-January 2020 when the Appellant contacted me by phone to discuss her application for judicial review before the Federal Court.
8. In preparation for the that conversation and following it, I began to research the decisions-making, scientific and regulatory basis for the judicial review and I continued communications with the Appellant Mary Lou MacDonald including having an in-person meeting with her in Ottawa approximately one week pre- trial.
9. I travelled to Toronto to observe the Federal Court hearing on January 30, 2020.
10. The vast majority of the proposed documents came to my attention after the trial through my preparation to write an article about the outcome of the trial decision or to participate in a possible intervention in the Federal Court of Appeal.
315 11. Many of the documents proposed as new evidence were published following the lower court hearing or on the eve of trial and, in any event, CHSL had no standing to share these documents then.
12. The publication date of each document proposed to be introduced is indicated in the chart included in the Notice of Motion and on the face of each document. The www.sciencedirect.com is an evergreen document, updated daily.
13. On February 13, 2020, Justice Simpson released her judgment and reasons for dismissing the application for judicial review. A true copy of the Federal Court’s judgment and reasons is attached as Exhibit “S” to this affidavit.
14. On December 14, 2020, CHSL applied for leave to intervene in this this appeal of the Federal Court order declining a request by the applicant to order the Minister of Health to appoint an independent Review Panel in Federal Court file number T-277-19.
15. The documentary evidence in issue is described by the following list and attached as exhibits “A” through “Q”:
A. a screen-shot from the publicly accessible www.sciencedirect.com, a widely used scientific research tool that catalogues scientific articles from around the world on all topics, the vast majority of which is published in English (excerpt) B. a screen-shot of the outcome of a search for glyphosate on Health Canada’s “Consultation and Stakeholder Information Management System” C. an email exchange between PMRA and CHSL October 5-6, 2020 concerning the public’s legal and physical barriers to Reading Room documents concerning the re-evaluation of glyphosate, including the attached Form 7000 and PMRA’s proposed Affidavit D. an excerpt from the PMRA’s report to Parliament; E. testimony of a Director General of the PMRA and a witness from the Canadian Environmental Law Association before the Standing Senate Committee on Agriculture and Forestry;
316 F. an Access to Information Act disclosure of the amounts of glyphosate sold in Canada 2007-2017; G. a report prepared by academic experts using government data cataloguing the amount of glyphosate used in the European Union; H. a peer-reviewed report entitled: Charles M. Benbrook, “Trends in glyphosate herbicide use in the United States and globally,” Environmental Science Europe (2016) 28:3 DOI 10.1186/s12302-016-0070-0 I. Minister of Health’s 2019 mandate letter from the Prime Minister J. Incident reports of published scientific studies available at https://pesticide-registry.canada.ca/en/incident-report-search.html mandated by the Pest Product Control Act and Pest Control Products Incident Reporting Regulations, SOR/2006-260 K. Health Canada January 16, 2020 “Health Canada Statement on Glyphosate” published two weeks before the Federal Court hearing on the subject: https://www.canada.ca/en/health- canada/news/2019/01/statement-from-health-canada-on-glyphosate.html L. Report of the United Nations Special Rapporteur on the Right to Food (excerpt) M. Charles Benbrook, “Shining a Light on Glyphosate-Based Herbicide Hazard, Exposures and Risk: Role of Non-Hodgkin Lymphoma Litigation in the USA,” European Journal of Risk Regulation, Vol. 11:3, 503. N. Biography of lead author Christopher J Portier and 93 other scientists published in a peer-reviewed speciality journal of the British Medical Journal distinguishing the approach to seller-sponsored studies used by World Health Organization’s International Agency for Research on Cancer compared to the European Food Safety Agency, PMRA’s counterpart: Differences in the carcinogenic evaluation of glyphosate between the International Agency for Research on Cancer (IARC) and the European Food Safety Authority (EFSA). O. Three official summaries of glyphosate’s regulatory status in the European Union “Summary report of the appeal Committee, Commission Health and Food Safety Directorate-General”, “Status Report on Glyphosate in the EU”, and “MEPs demand glyphosate phase-out, with full ban by end 2022” from the European Commission and the European Parliament; P. Document: PMRA enforcement bulletin for 2016-2020: https://www.canada.ca/en/health-canada/services/consumer-product- safety/pesticides-pest-management/public/protecting-your-health- environment/compliance-enforcement/enforcement-bulletins.html Q. Statistics Canada, Canadian Community Health Survey - Nutrition (CCHS) Detailed information for 2015, large nationally; and representative survey of food consumption patters.
317 AFFIRMED REMOTELY** by - Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario. SOLEMNLY AFFIRM THAT:
- Affirmed Before me in Ottawa via electronic video conference while the Affiant was located in the City of Ottawa in the in the Regional Municipality of Ottawa- Carleton, in the Province of Ontario on December ___, 2020, in accordance with O. Reg. 431/20.
) ______) ) Commissioner for Taking Affidavits ) Bill Jeffery ) ) AFFIRMED BEFORE ME at
318 Safe Food Matters Inc. v. Attorney General of Canada Court File No. A-85-20
FEDERAL COURT OF APPEAL
AFFIDAVIT OF BILL JEFFERY affirmed December __, 2020
CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) PROPOSED INTERVENER CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) P.O. BOX 4880, Station E Ottawa, ON, K1S 5J1 Bill Jeffery (LSN: 37605S) Executive Director and General Counsel Telephone No. (613) 565-2140 All Correspondence by email to [email protected] Counsel for the proposed intervener Centre for Health Science and Law (CHSL) Court File No. A-85-20
319 TAB 1, EXHIBIT A screen-shot from the publicly accessible www.sciencedirect.com
This is Exhibit A referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___14 day of December 2020 Sworn/AffirmedelectronicallybeforemeonDecember14,2020 inaccordancewithO.Reg431/20,AdministeringOathorDeclarationRemotely.
------Commissioner for Taking Affidavits
MonikaM.KlinglerLSO #P16018LicensedParalegal&NotaryPublic inandfortheProvinceofOntario. Mycommissionisofunlimitedduration. Nolegaladvicegiven.
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Review article Applications of carbon dots in environmental pollution control: A review Chemical Engineering Journal, 15 February 2021, ... First available on 1 September 2020 Caicheng Long, Zixin Jiang, Jingfang Shangguan, Taiping Qing, … Bo Feng
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Research article Cover crop biomass and species composition affect soil microbial community structure and enzyme activities in semiarid cropping systems Applied Soil Ecology, January 2021, ... First available on 31 August 2020 Vesh R. Thapa, Rajan Ghimire, Verónica Acosta-Martínez, Mark A. Marsalis, Meagan E. Schipanski
Feedback 322 https://www.sciencedirect.com/search?qs=glyphosate&offset=100&show=100&sortBy=date 2/15 TAB 2, EXHIBIT B a screen-shot of the outcome of a search for glyphosate on Health Canada’s “Consultation and Stakeholder Information Management System”
This is Exhibit B referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
323 Health Canada
Home > About Health Canada > Public Involvement > Consultations About Health Canada Print Print | Change Text Size Need Larger Text? | Share
June 2015 Go to
S M T W T F S
1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30
Consultations
1. E-consultation - Consultation on Glyphosate, Proposed Re evaluation Decision PRVD2015-01 (Consumer Product Safety)
2015-04-13 to 2015-06-12
The Pest Management Regulatory Agency (PMRA) invites the public to submit written comments on the proposed re-evaluation decision for glyphosate. Proposed Re-evaluation Decision PRVD2015-01 is a consultation document that summarizes the science evaluation for glyphosate and presents the reasons for the proposed decision. The PMRA will consider all the comments received. A scientifically-based approach will be applied in making a final decision on glyphosate.
Version 2.1.B4
324 TAB 3, EXHIBIT C an email response from PMRA to CHSL on October 5-6, 2020 describing the legal and physical barriers between the public and the Reading Room documents concerning the re-evaluation of glyphosate, including the attached Form 7000 and PMRA’s proposed Affidavit
This is Exhibit C referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
325 326 327 328 329 330 331 332 Date received – Date reçue
Application Form for the Inspection of Confidential Test Formulaire de demande de consultation de données Submission No. - No de la demande Data d’essai confidentielles
1. Applicant Information – Renseignements concernant le demandeur Name – Nom*
Postal Delivery Address – Adresse de livraison postale*
City / Town – Ville* Prov / State – Province / État* Country – Pays* Postal Code / ZIP – Code postal / ZIP*
Phone – Téléphone* Fax – Télécopieur E-mail – Courriel
2. Affiliation – Appartenance* Pesticide manufacturer – Fabricant de pesticides : Media – Média : Other organization - Autre organisme : Public – Membre de la population
3. Representation – Représentation* I wish to inspect data for my own use only. - Je souhaite consulter les données pour mon usage personnel. I wish to inspect data at the request of to whom I will be reporting. Je souhaite consulter les données à la demande de dont je relève. 4. Purpose of Inspection – Objet de la consultation* Possibility of filing a notice of objection, within 60 days of a final regulatory decision - Possibilité de présenter un avis d’opposition dans les 60 jours suivant la date de décision finale relative à la réglementation. Other – Autre raison :
5. Confidential Test Data to be Inspected – Données d’essai confidentielles à consulter* A. Product information – Renseignements concernant un produit : Active ingredient name and/or Registration Number – Nom du principe actif et/ou no d’homologation : End-use product name and/or Registration Number – Nom de la préparation commerciale et/ou no d’homologation : B. Study information – Renseignements concernant une étude : PMRA document number – No de document de ARLA : Study title – Titre de l’étude : Data code (DACO) – Code de données (CODO) : Study type – Type d’étude : Chemistry (not designated as Confidential Business Information) – Chimie (n'est pas identifié comme étant un renseignement commercial confidentiel) Human health (toxicology, food residue, occupational exposure) – Santé humaine (toxicologie, résidus dans les aliments, exposition professionnelle) Environment (environmental chemistry, environmental toxicology, environmental fate) – Environnement (chimie de l’environnement, effets écotoxicologiques, devenir dans l’environnement) Efficacy (crop tolerance data, value) – Efficacité (données sur la tolérance des cultures, valeur) Unable to identify – Pas en mesure d’identifier If unable to identify the test data according to criteria listed above, provide a description in your own words. – Si vous n’êtes pas en mesure d’identifier les données selon les critères susmentionnés, veuillez les décrire dans vos propres mots :
6. Statement of Applicant – Déclaration du demandeur* Included with this application is my affidavit or statutory declaration that is made in compliance with subsection 43(1)(b) of the Pest Control Products Act. I understand that the making of a false statement in the affidavit or statutory declaration is an offence under the Pest Control Products Act and under the Criminal Code of Canada. – Ma déclaration solennelle ou mon affidavit, joint à la présente demande, est conforme à l’alinéa 43(1)b) de la Loi sur les produits antiparasitaires. Je suis conscient que présenter une fausse déclaration dans un affidavit ou une déclaration solennelle constitue une violation de la Loi sur les produits antiparasitaires et du Code criminel du Canada.
I understand that if I wish to take notes while inspecting the confidential test data I must consent to having those notes photocopied and retained on file for administrative and compliance purposes. – Je comprends que si je souhaite prendre des notes lors de la consultation des données d’essai confidentielles, je dois permettre que ces notes soient photocopiées et conservées dans un dossier à des fins administratives ou légales.
I undertake to present any such notes for copying and retention, to which I hereby consent. – Par la présente, je m’engage à présenter toute note prise aux fins de copie et de conservation et je l’autorise. Applicant Signature – Signature du demandeur Date
7. Internal use – À usage interne
Pursuant to the above application and the affidavit or statutory declaration, the requested data/information is in the Public Registry, and the applicant is eligible to view said data in the Reading Room. An index of the data to be inspected is attached. – Pour faire suite à la demande ci-dessus et à l’affidavit ou à la déclaration solennelle, les données ou les renseignements demandés apparaissent dans le Registre public et le demandeur a le droit de les consulter dans la Salle de lecture. Un index des données qui seront consultées est joint à la présente.
PMRA signature – Signature d’un représentant de l’ARLA Date
PMRA/ARLA 7000 (06/2012) 333 Statutory Declaration
Full name: ………………………………………………………………………
Address: ………………………………………………………………………
………………………………………………………………………
………………………………………………………………………
Telephone number: ………………………………………………………………………
E-mail address: ………………………………………………………………………
I, ………………….…………………. of ………………………………………………... name in full address/city/province do solemnly affirm:
1 The purpose of inspecting the confidential test data is:
......
......
......
2 I will not use the test data in order to register a pest control product in Canada or elsewhere or to amend a registration; or make the test data available to others for the purpose of registering a pest control product in Canada or elsewhere, or of amending a registration.
I am aware that it is a criminal offence to make false statements in a statutory declaration and I am aware of the offence and punishment. This statutory declaration is made pursuant to paragraph 43(1)(b) of the Pest Control Products Act.
Sworn before me at the City of …………………………………………………………. in the Judicial District of ……………………………………………………………….. in the Province of …………………………………………………………………… this …… day of month …………………. , 20….
……………………………………… . …………………………………… name of official title of office
…………………………………...... name of person making declaration
334 TAB 1, EXHIBIT D an excerpt from the PMRA’s report to Parliament
This is Exhibit D referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
335 Pest 2018–2019 Management Reg ula tory Annua l Ag e nc y Re p o rt
Protecting the health and Protéger la santé des Canadiens environment of Canadians et l'environnement
336 pestic ides c ame into effec t. New sc ienc e was inc o rpo rate d into p o llina to r p rote c tio n, a nd he a lth Me ssa g e from a nd e nvironme nta l risk a sse ssme nts.
C o llab o ratio n with o ur inte rna tio na l c o unte r- the Exe c utive parts is an o ngo ing and inc reasing ne c e ssity. In 2018–2019, PMRA c o ntinue d its strong e mphasis on joint scientific reviews with the United States Direc to r Environmental Protec tion Agenc y and o ther g lo b a l p a rtne rs, a nd inc rea se d its o utrea c h with Health Canada’s Pest Management Regulatory inte rna tio na l reg ulato rs. Agenc y (PMRA) is pleased to present the 2018–2019 Annual Re po rt to Parliame nt, whic h In addition to jo int reviews, Canada partic ipated d e ta ils PMRA’ s a c c o mp lishme nts a nd a c tivitie s in inte rna tio na l a c tivitie s a ime d a t a lig ning p o li- over the last fiscal year. c ies and approac hes where appropriate. These a c tivitie s invo lve d wo rk with C o d e x Alime nta rius, PMRA’ s missio n is to p rote c t the he a lth a nd the Organisation for Economic Co-operation and e nvironme nt o f Canadians by using c urrent, Development and the Canada-United States evidence-based, scientific approaches to Re g ulato ry C o o p e ratio n C o unc il, a s we ll a s trilat- pestic ide regulation, in an o pen and transparent e ral Unite d Sta te s/ Me xic o / C a na d a me e ting s. ma nne r. I wo uld like to ta ke this o p p o rtunity to tha nk Dr. As the fo rme r C hie f Re g istrar a nd ne w Exe c utive Ric hard Auc o in fo r mo re than 20 years o f servic e at Direc to r, I a m c o mmitte d to se e ing tha t PMRA PMRA, inc lud ing 12 ye a rs a s Exe c utive Direc to r. Dr. c ontinues to adapt to c onstantly evolving pres- Auc o in’ s c o ntributio n to p e stic ide reg ulatio n ha s sures and opportunities suc h as new sc ienc e, new been significant, not only in Canada but also glob- tec hnologies, and a growing global marketplac e. ally through strong advoc ac y for Canadian partic i- This requires a workforce that is flexible, capable p a tio n in inte rna tio na l fo ra suc h a s the O rga nisa tio n and innovative. for Economic Co-operation and Codex.
PMRA’ s re-e va lua tio n o f o lde r p e stic ide s p rog ram The a c c o mp lishme nts hig hlig hte d in this rep o rt continues to be a significant and increasing reflect the strength of Dr. Aucoin’s leadership, and pressure. PMRA update d the re-e valuation the dedic ation o f o ur highly trained wo rkfo rc e, wo rkplan fo r 2018–2023, and the need fo r a new who se fo c us remains upho lding the highest approac h to this key ac tivity bec ame c lear. We standards of health and environmental protec tion have established a team dedic ated to examining for Canadians. va rio us p o te ntial reg ulato ry, reso urc e a nd p roc e ss options to develop a more sustainable re-evalua - . tio n p rog ram. This inc lud e s a c o mp a rative a na lysis of international approac hes to re-evaluation, Pete r Brande r broad stakeholder c onsultation, and development of rec ommendations for the antic ipated 2020 Exe c utive sta tuto ry revie w o f the Pe st Co ntrol Produc ts Ac t. Direc to r
In 2018–2019, PMRA c o ntinued to develop new Pe st sc ienc e and business approac hes to improve Management efficiency, transparency, and health and envi- Re g ulato ry ronmental protec tion. New proc edures were implemented for emergenc y registrations, and a Ag e nc y new polic y on c anc ellation and phasing out of
Pest Management Regulatory Agency 1 2018–2019 Annual Re po rt 337 About the Pest Management Regulatory Agenc y
The Pest Management Regulatory Agenc y (PMRA) VISION is the branc h of Health Canada responsible fo r reg ulating p e stic ide s und e r the a utho rity o f Canadians are confident that Canada’s the Pe st Co ntrol Produc ts Ac t. PMRA’ s p rima ry p e stic ide reg ulato ry syste m p rote c ts the ir he a lth mandate is to prevent unac c eptable risks to and the environment. Canadians and the environment from the use of the se p rod uc ts. MISSION PMRA applies current, evidence-based scientific approac hes to assess whether the health and To protec t the health and environment of e nvironme nta l risks o f p e stic ide s p rop o se d fo r Canadians by using modern, evidenc e-based, reg istratio n a re a c c e p ta b le , a nd if the p rod uc ts scientific approaches to pesticide regulation, have value. in an open and transparent manner.
This same approac h is use d to regularly and sys- te ma tic a lly revie w whe the r p e stic ide s a lrea d y o n O UR PEOPLE the Canadian market c ontinue to meet modern scientific standards. Effe c tive p e stic ide reg ulatio n req uires a n e xp e rie nc e d wo rkfo rc e with a d ive rsity o f In c o llab o ratio n with He a lth C a na d a ’ s Re g ulato ry e xpe rtise . Of the 450 e mploye e s at PMRA, Ope rations and Enfo rc e me nt Branc h (ROEB), 73% a re sc ie ntists, inc lud ing b io lo g ists, PMRA a lso p romo te s, mo nito rs a nd e nfo rc e s to xic o lo g ists, e p ide mio lo g ists a nd c he mists. c omplianc e with the Pe st Co ntrol Produc ts Ac t PMRA has a highly diverse and experienc ed ac ross Canada. PMRA is c o mmitted to do ing this workforc e; 80% of PMRA employees have in a c ollaborative, open and transparent manner. more than 10 years of federal government experienc e. This wo rk is c a rrie d o ut b y a hig hly skille d wo rkfo rc e , the ma jo rity o f who m a re sc ie ntists, with a d d i- tio na l e xp e rtise in a rea s suc h a s reg ulato ry a nd polic y development, stakeholder engagement a nd inte rna tio na l c o llab o ratio n a nd info rma tio n management.
Pest Management Regulatory Agency 2 2018–2019 Annual Re po rt 338 In advance of the final decisions, PMRA contin- PEST C O NTROL PRODUCT ues to analyze an extensive body of additional info rmatio n rec e ive d in the fall o f 2018, inc luding SALES INFORMATION a q ua tic to xic ity stud ie s a nd mo nito ring d a ta o n imidac loprid, c lothianidin and thiame tho xam in REPO RTING water bodies ac ross Canada. Sinc e 2007, PMRA’ s Pe st C o ntrol Prod uc t Sale s Pollina tor Asse ssme nts Info rma tio n Re p o rting Prog ram ha s b e e n c o lle c t- ing sa le s info rma tio n, in the fo rm o f to ta l q ua ntity (b y vo lume o r ma ss), fo r a ll reg iste red p rod uc ts PMRA publishe d propo se d po llinato r re-e valua - available for sale. These data are reported by tion de c isions in 2017 and 2018 fo r imidac loprid c alendar year (January 1 to Dec ember 31). (Propo se d Re -e valuation De c ision PRVD2018-12), The p urpo se o f the p rog ram is to c o lle c t sa le s c lothianidin (PRVD2017-13) and thiame tho xam data to be used by PMRA to better understand (PRVD2017-14). The risk a sse ssme nts we re pestic ide use in Canada. updated based on c omments rec eived during the c o nsulta tio n p e rio d s. Fina l p o llina to r re-e va l- Sale s d a ta a re c o nside red in risk a sse ssme nts uation de c isions we re publishe d o n April 11, o f p e stic ide s, in p o lic y d e c isio ns, in ide ntifying 2019, fo r the three ne o nic o tino ids: imidac loprid trends in pe stic ide use , and in providing guid- (Re -e valuation De c ision RVD2019-06), c lothianidin a nc e fo r risk-red uc tio n strate g ie s. For e xa mp le , (RVD2019-05) and thiame tho xam (RVD2019-04). sales data are used in the re-evaluation o f o lder To p rote c t b e e s a nd o the r p o llina to rs, so me use s pestic ides to help understand the presenc e and of these pestic ides will be c anc elled, and other sc ale of use of the pestic ide in the Canadian uses will have c hanges to the c o nditions o f use, ma rke tp lac e , a s we ll a s the p o te ntial imp a c ts if suc h a s restric ting the timing o f a p p lic a tio n. c ha ng e s a re ma d e to the reg istratio n sta tus o f the p e stic ide .
G LYPHOSATE
Glypho sate is a wide ly use d he rbic ide that has attrac ted c onsiderable public interest around the wo rld. PMRA has respo nde d to hundreds o f lette rs, p e titio ns, c a lls, a nd inte rvie w req ue sts a b o ut glypho sate in rec ent years.
In 2017, PMRA c o mplete d an e xte nsive re-e valuation o f all available info rmation and data, no t only from manufacturers, but also from a large body of published independent scientific studies, a nd from o the r inte rna tio na lly rec o g nize d reg ulato ry agenc ies. Over 1300 studies were reviewed, totalling more than 89 000 pages. This re-evaluation confirmed that, under the conditions of use specified on the label, glyphosate did not pose unacceptable risks to humans or the environment.
Following the publication of the final decision in 2017, PMRA received a number of objections to this decision. A full scientific review was undertaken by a new team of scientists, who had access to a ll rele va nt d a ta a nd info rma tio n from fe d e ral a nd provinc ial go ve rnme nts, inte rnational regu- latory agencies, published scientific reports and multiple pesticide manufacturers. After a thorough scientific review, it was concluded that the concerns raised by the objectors could not be scien- tifically supported when considering the entire body of relevant data. Therefore, in January 2019, PMRA re-affirmed its decision that the original decision of 2017 was valid.
Pest Management Regulatory Agency 12 2018–2019 Annual Re po rt 339 2018–2019 KEY STATISTICS • The most c ommon violation types (Figure 5) no te d fo r a ll insp e c tio ns we re imp o rt (35%), po sse ssio n (26%) and use (22%). This inc lude s • 217 c omplianc e outreac h ac tivities were vio latio ns no te d d uring p lanne d a c tivitie s c onduc ted to promote c omplianc e with the Pe st Co ntrol Produc ts Ac t. The se ac tiv- (955) and compliance verifications (550). itie s inc lud e d p rese nta tio ns, e xhibit b o o ths • 990 enforcement responses were issued to at trade sho ws, and o the r ac tivities suc h as no n-c o mpliant parties: 463 from planned attending meetings, providing public ations insp e c tio ns, 100 a s a result o f c o mp laints a nd fo r ma il-o uts a nd c o ntributing to a sso c iatio n 427 d e c isio ns reg a rding the a d missibility into ne wsle tte rs. Canada of imported produc ts. Enforc ement respo nse s inc lude d warning lette rs (989) and • 780 inspections were conducted as part of Complianc e Orders (1). p lanne d NPC P a c tivitie s. • 6 No tic e s o f Vio latio n (NO V) with p e na lty • 404 samples were analyzed by Health Can- and 1 NOV with warning we re issue d unde r ada’s pestic ide labo rato ry: 300 in suppo rt o f the Ag ric ulture a nd Ag ri-Foo d Administrative NPCP activities and 104 compliance verifica- Mo ne ta ry Pe na ltie s Ac t. tio n sa mp le s in resp o nse to c o mp laints.
• The rate of c omplianc e varied by subsec tor, rang ing from 8% (se e imp o rte d p e stic ide s example above) to 100%.
Figure 5. Violations by type (as a percentage of to ta l violations) fo r 2018–2019 NPCP a c tivities
Sale 11 %
Use 22 % Adve rtising 2 %
Posse ssion 26 % Import 35 %
Ma nufa c turing 2 % Labe l 2 %
Pest Management Regulatory Agency 17 2018–2019 Annual Re po rt 340 TAB 5, EXHIBIT E testimony of a Director General of the PMRA and a witness from the Canadian Environmental Law Association before the Senate Standing Committee on Agriculture and Forestry
This is Exhibit E referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
341 AGFO
Proceedings of the Standing Senate Committee on Agriculture and Forestry Issue No. 67 - Evidence - Meeting of May 28, 2019
OTTAWA, Tuesday, May 28, 2019
The Standing Senate Committee on Agriculture and Forestry met this day at 5:52 p.m. to study the subject matter of those elements contained in Subdivision C of Division 9 of Part 4, insofar as it relates to food, and in Subdivision J of Division 9 of Part 4 of Bill C-97, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019 and other measures.
Senator Diane F. Griffin (Chair) in the chair.
[English]
The Chair: Welcome. I’m Senator Diane Griffin from Prince Edward Island and chair of the committee. This evening, the committee is going to begin its pre-study of the subject matter of those elements contained in Subdivision C of Division 9 of Part 4, insofar as it relates to food, and in the Subdivision J of Division 9 of Part 4 of Bill C-97, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019 and other measures.
For this meeting, we will be concentrating on Subdivision J of Division 9 of Part 4. That is, amendments to the Pest Control Products Act. Before we hear from the witnesses, I would like to start by asking the senators to introduce themselves.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator Bernard: Wanda Thomas Bernard, Nova Scotia.
Senator Kutcher: Stan Kutcher, Nova Scotia.
Senator Moodie: Rosemary Moodie, Ontario.
Senator R. Black: Rob Black, Ontario.
Senator C. Deacon: Colin Deacon, Nova Scotia.
The Chair: As you know, we were late because of a vote and we may be shortening up in terms of the questions people will ask, but hopefully it doesn’t shorten your presentations on you.
From the Grain Growers of Canada, we have Jeff Nielsen, President; from the Canadian Federation of Agriculture, Frank Annau, Environment and Science Policy Advisor; and from CropLife Canada we have Dennis Prouse, Vice- President, Government Affairs.
Thank you for accepting our invitation to be here. We will start with Mr. Nielsen.
Jeff Nielsen, President, Grain Growers of Canada: Thank you for allowing me to share with you the views of the members of the Grain Growers of Canada. As you mentioned, it’s a long version of what we’re studying tonight.
I’m Jeff Nielsen, chair of the Grain Growers of Canada. I have a farm north of Olds, Alberta. Grain Growers of Canada is a national grain and oilseed organization representing 65,000 grain, pulse and oilseed farmers from every province. What the majority of members grow is sold to customers around the world. Ensuring that we 342 / Only one of those seven sector-supported recommendations has been addressed since the Canada Grains Council submission in 2018. Grain Growers of Canada remains hopeful that the balance will be addressed as part of the Agri-Food and Aquaculture Roadmap, a commitment the federal government outlined in the 2019 budget. Grain Growers look forward to participating in the related process that seeks to develop proposals for legislative and regulatory amendments, novel regulatory approaches to accommodate emerging technologies, including the use of regulatory sandboxes and pilot projects.
Grain Growers Canada supports a rigorous, evidence-based regulatory approach that protects human health and the environment, enables access to crop protection and products and supports our competitiveness as grain farmers. Our members are in favour of this amendment being proposed under Division 9 because it is a step in the right direction to ensuring that PMRA’s limited resources are focused on where they most need to be: protecting the health and well-being of consumers as well as the farmers like me who use the products.
Once again, thank you for the opportunity to speak with you today.
The Chair: Thank you. Mr. Annau, please go ahead.
Frank Annau, Environment and Science Policy Advisor, Canadian Federation of Agriculture: Madam Chair and committee members, thank you for the opportunity to present the Canadian Federation of Agriculture’s perspectives on Bill C-97.
CFA is Canada’s largest general farm organization, and our members include provincial farm organizations and national commodity groups across Canada. Through our members, we represent over 200,000 farmers and farm families nationwide.
CFA welcomes amendments to the Pest Control Products Act under Subdivision J of Division 9 of Part 4 of Bill C-97. These amendments will allow the Minister of Health to expand the scope of re-evaluation or special review of the pest control product rather than initiate a new special review. The amendments would also allow the minister to decide not to initiate a special review if a product is under re-evaluation or special review. These amendments would help address agricultural stakeholders’ concern over duplication in the re-evaluation and the special review processes. As the act currently stands, the minister must initiate a special review when an OECD country prohibits the use of a pest control product’s active ingredients, even if that product is already under re-evaluation in Canada.
There is concern that this duplication is taking up valuable resources within the Pest Management Regulatory Agency, or PMRA, at a time when PMRA is taking effort to modernize their review process. As such, allowing the minister this discretion has the potential to free up critical capacity within the PMRA and help realize their goal of carrying out a more efficient regulatory regime.
This also presents a fantastic opportunity for PMRA to reallocate the resources needed to fully engage with Canadian agriculture on improving pest control products review processes. Our recommended improvements include ensuring that actual information on a product’s social and economic impacts is provided to the minister upon initiation of a review, as required under the Pest Control Products Act, and most critically, that PMRA may finally address farmers’ long-standing requests that field data showing reduced risks from use of pesticides be allowed to be submitted during a review’s scientific assessment phase. Currently, only data showing increased can be submitted during this phase, and farmers are eager to provide PMRA with the up-to-date scientific information out in the field.
In closing, an efficient regulatory regime is needed to preventing unacceptable risks to the environments and individuals from the use of pest control products. We believe that Bill C-97’s proposed amendments will facilitate this efficiency by reducing duplication in pest product reviews.
CFA would like to thank this committee for receiving our request to review these amendments proposed for Bill C- 97. We would also like to thank PMRA for including us on consultations on the re-evaluation program review. We are confident that their work will be greatly bolstered by the proposed amendments to the Pest Control Products Act under Subdivision J of Division 9 of Part 4 of Bill C-97. As such, these amendments have our support. Thank you for listening today. If you have any questions, I’m happy to answer them.
The Chair: Thank you. Mr. Prouse, please go ahead.
Dennis Prouse, Vice-President, Government Affairs, CropLife Canada: Thank you, Madam Chair and honourable senators. CropLife Canada represents the Canadian manufacturers, developers and distributors of pest control and modern plant-breeding products. Our organization’s343 primary focus is on providing tools to help farmers / Kathleen Cooper, Senior Researcher, Canadian Environmental Law Association: Thank you very much for the opportunity. I would like to raise some concerns with the amendments in Bill C-97, recognizing that they are intended to improve efficiencies under the Pest Control Products Act, but as drafted, the changes could limit public participation and reduce transparency.
The problem is easily fixed with amendments to ensure that existing legislative guarantees of consultation and accountability are maintained, preventing further eroding of public confidence in the federal pesticide regulation. That summarizes what I have to say. I will provide some background and context to start.
Pesticides are toxic substances intended to kill living organisms, whether it’s weeds, insects, rodents, what have you. As such, they need to be carefully regulated, and there must be a public trust in the regulator. For many reasons, that public trust is not always present, and it is in nobody’s interest for there to be a lack of public trust in the regulator, not the public, not pesticide manufacturers, farmers, beekeepers, pest control companies, the government or anyone. It wastes time. It wastes money. It causes a lot of stress and anxiety, and when it leads to poor regulatory decisions, it creates environmental and human health risks and harm.
People are aware of different regulatory decisions about pesticides elsewhere, particularly in Europe. You were just speaking to some of them. Some EU countries have banned pesticides that we still allow. The International Agency for Research on Cancer concludes that glyphosate is a probable human carcinogen. The key underlying difference here has to do with basing decisions on hazard assessment versus risk assessment. In the risk assessment framework, information is combined about hazards and exposure.
The EU approach might be seen as stronger and our approach more lenient, while risk assessment proponents will see it as a more realistic approach that accounts for actual exposure. It arose in the early 1980s, and it is considered science-based. It is science-based. It has many complex scientific inputs and calculations. The Pest Control Products Act requires it, and the public is implicitly asked to trust the outcome.
But scientific information about environmental and human health risk is always complex and incomplete. Many mistakes have been made. In the 1980s and 1990s, many countries restricted and banned the organochlorine pesticides, including Canada, such as DDT, aldrin, toxaphene, chlordane, a range of them, very nasty chemicals that cause cancer, reproductive toxicity and many other health effects and are highly persistent in the environment.
The organochlorines were largely replaced by the organophosphates and carbamates, also very toxic, most often on the developing brain as well as having other health and environmental effects, and we’ve had to progressively get rid of most of them too. They were widely replaced with the neonicotinoid pesticides, now implicated in the worldwide decline in pollinator species. They are also being phased out.
As the glyphosate trials are working their way through the U.S. courts, juries are hearing about Monsanto’s manipulation of the scientific record with ghostwritten studies, collusion with regulators and other shady tactics. Juries are agreeing that glyphosate caused cancer in the plaintiffs and are awarding multimillion-dollar settlements.
Very recently, scientists have reported on a worldwide decline in insects, with extinction of 40 per cent of the world’s insect species possible over the next few decades and for which pesticides are partially responsible, alongside habitat loss from intensive agriculture, urban development as well as climate change.
Against that backdrop, it doesn’t require much more than healthy skepticism for trust in the pesticide regulator to be shaken.
Turning to special reviews and re-evaluation, as we noted in our letter to your committee and in our letter to the Commons Finance Committee reviewing Bill C-97, the main purpose of the PCPA is to prevent unacceptable harm and environmental and human health risks from pesticide use. It arose from a multi-year effort to modernize pesticide regulation in this country and ensure public confidence.
It requires pre-market assessment of pesticides and their periodic re-evaluation on a 15-year cycle, as you’ve discussed. It also allows for special reviews between re-evaluations if new scientific information comes to light or a pesticide is banned in another OECD country.
A recent example is naled, an organophosphate pesticide that was banned in the EU. Section 17(2) prompted that automatic special review. The PMRA also did another special review under section 17(1) to address other evidence of concern, which is another tool that they have. Those two reviews conclude that the risks are unacceptable and they propose the cancellation of all uses. Those two special reviews advanced regulatory action on a dangerous pesticide probably by about five years, and I think that’s344 a good thing. / this pesticide be banned.
Senator Moodie: What is the lens that the PMRA is using that applies science to their decision, and is that published openly?
Ms. Cooper: Absolutely. It’s risk assessment. It’s a combination. You multiply the hazard times the exposure. You put those two together. There are all kinds of complicated science behind both of those.
Senator Moodie: Without any understanding of water level, without any understanding of —
Ms. Cooper: They do modelling, and it’s not good enough.
Senator Moodie: We have an imperfect system and we draw conclusions from that, but we want to get rid of our backup alert or trigger.
Ms. Cooper: Yes. And that’s why we have re-evaluation and special reviews. That’s why we don’t describe pesticides as safe. They are of acceptable risk. It’s a very important difference, acceptable according to the information available at the time.
Senator Moodie: And emerging science has not explained to us what our risk really is for some of these exposures we are currently having. That will come down the line after the fact.
Ms. Cooper: We’re especially not going to know about them if we’re not measuring exposure. That’s half the risk assessment calculation. If they want trust in risk assessment, then do proper data collection for exposure. But that means more money.
The Chair: Thank you, senators, for your questions. I’d like to thank our panellist for her presentation.
And on behalf of the committee, I sincerely thank our next panellist for appearing with us today. From Health Canada, we have Mr. Jason Flint, Director General, Policy, Communications and Regulatory Affairs Directorate, Pest Management Regulatory Agency.
We’ll ask Mr. Flint to now make his presentation.
Jason Flint, Director General, Policy, Communications and Regulatory Affairs Directorate, Pest Management Regulatory Agency, Health Canada: Thank you, Madam Chair. I’ll keep my opening remarks fairly short. I was invited here today to speak about the changes to the Pest Control Products Act that are being proposed in Bill C-97. These changes are part of a commitment the government made in the Fall Economic Statement to introduce an annual modernization bill to remove outdated or redundant regulatory requirements and to allow the updating of legislation.
This annual exercise is intended to help keep legislation current to better reflect public policy and business realities, challenges and opportunities.
These changes to the Pest Control Products Act were identified during consultations held last summer as part of the targeted reviews of regulatory requirements and practices coordinated by the Treasury Board of Canada Secretariat. The reviews were designed to identify and address bottlenecks to economic growth and innovation as part of a larger regulatory reform agenda focusing on supporting innovation and business investment.
The Agri-Food and Aquaculture Sector Regulatory Review Roadmap, which will be published in the near future, includes the proposed amendments to section 17 of the Pest Control Products Act that we are discussing here today.
As background for the committee, pesticides are regulated by Health Canada with the primary objective of protecting health and the environment. All new products undergo a scientific risk assessment before they can be authorized for use in Canada. Once registered, products are subject to re-evaluations to verify that they continue to meet modern standards for health and environmental protection. These pesticides are also subject to special reviews where information becomes known about an aspect of the product that raises a health or an environmental concern.
The issue that these amendments were designed to address was associated with subsection 17(2) of the Pest Control Products Act, which requires Health Canada to initiative a special review of a pesticide whenever a member country of the Organisation for Economic Cooperation and Development, the OECD, prohibits all uses of an active 345 / Senator C. Deacon: So you’re very comfortable with where this is heading. One area where you didn’t identify there was a problem was the two to four years to complete a review. Let’s look at the 48 special reviews that you talked about. We now could eliminate those, potentially.
Mr. Flint: Some of them, yes, but not all of them.
Senator C. Deacon: How much capacity is going to be freed up to start to shorten timelines on reviews? Does it take two to four years to complete a review or is it simply backlogged? Where are we with that? This is an environmental and health and safety issue and it’s a competitiveness issue.
Mr. Flint: There will be some resource savings. It will not be enough to fully address the backlog in re-evaluations but it will particularly prevent some of the new special review concerns that we have coming forward.
Senator C. Deacon: You still have a big workload coming at you?
Mr. Flint: There is a significant workload coming at us, as one of the other speakers mentioned. Over the next five years we’re going to see a significant increase and even more so in the five years after that.
The timeline is based on our new approach. As the previous speaker mentioned when this new legislation came in it gave us an obligation to redo these re-evaluations. We started in 2000 with the first round of re-evaluations. Pesticides have been registered in Canada since 1927. That’s when the first legislation came in. In 2000, we started down the road of saying we’re going to need to re-evaluate everything, then in 2002 when the legislation came in, it created a requirement for us to do these so that pesticides should not go more than 15 years without us initiating a re-evaluation to see whether it continues to meet modern standards.
During that first round of re-evaluation, I think we were averaging about eight years to try and do a review. In the cyclical approach we’re now getting re-evaluations down to two to four years, but in order to do that there are some costs. Some of that is reflected in less opportunity for consultation, for example, with some of the stakeholders. Providing more consultation requires more time and that also extends the time it would take to do these reviews.
There’s always a balance as a regulator. You’re balancing the time it takes to do the work with how much engagement and how much new information is being introduced into the process.
Senator C. Deacon: It takes two to four years to do a review. How much of it is due to a backlog? Let’s say we’ll cut it in half so there is a three-year review happening. How much of that time is backlogged and it’s getting into the system and waiting for its number to come up? And once that happens, how much of it is reviewing the science or completing a scientific review and consultation? How does that generally play out? Just give us a day in the three years of a review.
Mr. Flint: I guess the process plays out where, initially, we will do some work even in advance of that starting. We’ll start to scope out and see what information we have.
When a new pesticide is registered or a new active ingredient is registered, a typical submission comes to us with about 30,000 pages of scientific studies. It covers everything from basic toxicology, exposure scenarios, environmental fate, environmental toxicology, efficacy of the product so that it works and the chemistry of the product. You have this very large scientific package that comes in.
When it comes around to re-evaluation, you then have to find out what else is out there. What submissions may have come in the last 15 years from the original registrant? What’s available in the public literature and the scientific literature? What decisions may have been made by foreign jurisdictions that may be of interest to us?
There’s a scoping period that happens even before we start to initiate to see how much work is out there and what’s going to be involved with this. Then we initiate. We have to contact the registrant and the manufacturers of the pesticides, and we also post that we’re doing this. We contact the provinces to ask if they have any particular data that we need to be considering, such as monitoring data. We also look at our own. We have an instant reporting requirement, so if companies are aware of any incidents involving their products, they are required to report those to us. We analyze that data.
There’s a period of time at the beginning where we also ask for what additional data a registrant has that we might not have but that we might want access to. We have requirements to provide to us any data that would show that the risks are increasing. They already provide that immediately, but we can also ask if there’s other data they may have submitted to other jurisdictions that might be of interest346 to us. We can add that. / TAB 6, EXHIBIT F an Access to Information Act disclosure of the amount of Glyphosate sold in Canada 2007-2017
This is Exhibit F referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
347 348 Glyphosate sales data
The 2007 data did not go through a thorough quality assurance process due to the quantity of errors found. The numbers provided here are not to be considered accurate.
Year Kilograms of active ingredients sold 2007 37100782.06 2008 27774711.56 2009 28133097.24 2010 34342279.52 2011 34674229.42 2012 40514947.17 2013 44200607.66 2014 39232741.39 2015 35457721.95 2016 46491786.55 2017 56007308.14 349 Pest Control Products Sales Report for 2016
350 Appendix I Ranking of all active ingredients sold in Canada in 2016
Kilograms of active Active name ingredients Glyphosate > 25 000 000 Available chlorine, present as sodium hypochlorite > 10 000 000 Surfactant blend > 5 000 000 Creosote 2,4-D Glufosinate-ammonium MCPA Mineral oil Borates Corn gluten meal > 1 000 000 Mancozeb Copper as elemental Chlorothalonil Hydrogen peroxide S-metolachlor and R-enantiomer Bromoxynil Ethalfluralin Available chlorine, present as trichloro-s-triazinetrione Glutaraldehyde Metam-sodium Trifluralin Available bromine present as 1-bromo-3-chloro-5,5- dimethylhydantoin and related hydantoins Chromic acid Available chlorine, present as calcium hypochlorite Bentazon (present as sodium salt) Diquat > 500 000 Triallate Chloropicrin Paraffin based petroleum oil Atrazine (plus related active triazines) Mono- and dipotassium phosphite Arsenic pentoxide Polyoxyalkylated alkyl phosphate ester Fluroxypyr (present as 1-methylheptyl ester) Captan Diazinon Tetrakis (hydroxymethyl) phosphonium sulfate (THPS)
351 TAB 7, EXHIBIT G a report prepared by academic experts using government data cataloguing the amount of glyphosate used in the European Union
This is Exhibit G referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
352 A survey on the uses of glyphosate in European countries
Photo credit: Nadège Petit
353 Authors
Antier C.a, Andersson R.b, Auskalnienė O.c, Barić K.d, Baret P.a, Besenhofer G.e, Calha I.f, Carrola Dos Santos S.a, De Cauwer B.g, Chachalis D.h, Dorner Z.i, Follak S.e, Forristal D.j, Gaskov S.k, Gonzalez Andujar J. L.l, Hull R.m, Jalli H.n, Kierzek R.o, Kiss J.i, Kudsk P.p, Leonhardt C.e, Leskovšek R.q, Mennan H.r, Messéan A.s, Ņečajeva J.t , Mullins E.j, Neve P.m, Pedraza V.l, Pintar A.d, Reboud X.s, Redl M.u, Riemens M.v, Ringselle B.w, Ruuttunen P.n, Sattin M.x, Simić M. y, Soukup J.z, Stefanic E.d, Steinkellner S.u, Storkey J.m, Ulber L.1, Weickmans B.2, Wirth J.3.
This report and the related survey were coordinated by Antier C. a, Baret P.a, Kudsk P.c, Reboud X.b, Ulber L.d and Messéan A.b. Quoting this report
Antier, C., Andersson, R., Auskalnienė, O., Barić, K., Baret, P., Besenhofer, G., Calha, I., Carrola Dos Santos, S., De Cauwer, B., Chachalis, D., Dorner, Z., Follak, S., Forristal, D., Gaskov, S., Gonzalez Andujar, J. L., Hull, R., Jalli, H., Kierzek, R., & al. (2020). A survey on the uses of glyphosate in European countries. INRAE. https://doi.org/10.15454/A30K-D531
aUniversité catholique de Louvain; bJordbruksverket; cLAMMC; dAGR; eAGES, fINIAV; gGhent University; hBenaki Phytopathological lnstitute; iSZIE; jTeagasc; kEstonian Agricultural Board; lCSIC; mRothamsted Research; nLuke; oIORPIB; pAarhus University; qKIS; rOMU; sINRAE; tInstitute of Plant Protection Research; uBOKU; vWUR; wNIBIO; xCNR; yMaize Research Institute, MRIZP; zCZU; 1JKI; 2CRA-W; 3Agroscope.
2
354 Summary
In 2019, the ENDURE network3 launched a survey on the agricultural use of glyphosate in European countries. This report presents the results obtained through the survey and proposes a framework for understanding and monitoring glyphosate uses. The share of herbicides among all pesticide sales varies from one country to another. It is particularly high in Sweden (where herbicides represented 85% of the total volume of pesticides sold in 2017), Norway (83%), Denmark (82%), Estonia (76%), Ireland (73%), Latvia (73%), Lithuania (63%), United Kingdom (62%) and Poland (61%) and is particularly low in Malta (2%), Cyprus (13%) and Italy (17%). When reported by hectare of agricultural area, the countries with the highest average use of herbicides are Belgium, Netherlands, Cyprus, France, Germany, Denmark and Poland. The average use of herbicides in the agricultural sector at the EU 28+3 level can be estimated at 0.62 kg of a.i. per hectare. The total volume of herbicides sold in all EU 28+3 countries remained rather stable from 2011 to 2017, while at the national level, herbicide sales numbers showed a high degree of fluctuation. The ENDURE survey made it possible to collect data on glyphosate sales in 25 countries. In addition, an estimation was calculated for the other seven countries for which no data could be obtained. The total sales of glyphosate are estimated at 46,527 tonnes of a.i. in 2017 across the EU 28+3 (47,452 tonnes of a.i. across the EU 28+4). Overall, sales of glyphosate represent 33% of total herbicide sales in the EU 28+3. Therefore, glyphosate is one of the most widely used herbicides in European agriculture. Similar to overall herbicide sales, glyphosate sales (in volume of active ingredients) appear to be the highest in France (20% of the EU 28+4 total glyphosate sales volume in 2017), Poland (14%), Germany (10%), Italy (8%) and Spain (8%). Glyphosate represents 15% to 78% of total herbicide active ingredient sales in the countries surveyed. According to the survey, glyphosate is mainly used in the agricultural sector. Across the 13 countries for which the share of glyphosate sales to the agricultural sector was available, the agricultural sector consumes on average 90% of total national glyphosate sales (by volume). When reported by hectare of agricultural area, the average use of glyphosate at the EU 28+3 level is 0.20 kg a.i. per hectare. The five countries with the highest use of glyphosate in 2017 were Denmark, Poland, Netherlands, Portugal and France (≥0.32 kg of a.i. per ha). The five countries with the lowest use of glyphosate were Turkey, Lithuania, Latvia, UK and Switzerland (≤0.12 kg of a.i. per ha)4. This report offers a framework for understanding and monitoring glyphosate uses in the agricultural sector, based on the identification of the cropping systems in which glyphosate is used, the agronomic purposes for which it is used and the nature of this use (from occasional to systematic). Glyphosate is widely used in annual cropping systems, perennial crops and grasslands. In annual cropping systems, it is mostly used prior to sowing, shortly after sowing of the crop (at the pre-emergence stage) or at the post-harvest stage for controlling weeds and volunteers. Annual cropping systems in which glyphosate
3 ENDURE is a network of organisations focusing on Integrated Pest Management (IPM): www.endure-network.eu/what_is_endure/endure_partner_organisations
4 Only countries for which glyphosate sales data were obtained through the survey are listed here. 8
355 is used include a large variety of crops (such as maize, oilseed rape, cereals, legume crops, sugar and fodder beet etc.). It is also used for the destruction of cover crops, and for ensuring the desiccation of certain annual crops at the pre-harvest stage. In perennial crops (such as vineyards, fruit orchards, olives groves etc.), glyphosate is used for controlling weeds within or between crop rows. Finally, glyphosate is used for the destruction of temporary grassland, for local control of perennial weeds in permanent grassland and for grassland renewal. Overall, the survey shows that the herbicide is used for at least eight agronomic purposes. Statistical data regarding glyphosate use in annual cropping systems is limited. In addition, the allocation of glyphosate treatments that are applied in the intercropping period may vary across countries. Four different allocation rules were identified through the survey: allocation from harvest to harvest, allocation from field preparation to post-harvest treatments, allocation to the intercrop period and allocation to the cropping system. In some countries, several allocation rules may apply depending on the statistical dataset. As a consequence, comparisons of glyphosate uses in annual cropping systems between countries or crops must be considered as a preliminary indication. Within the scope for which data could be obtained through the survey, 32% of the wheat acreage, 25% of the maize acreage and 52% of the oilseed rape acreage were treated with glyphosate in any single year. The treated acreage varies greatly from one country to another: the use of glyphosate in maize fields was almost inexistent in some countries, while it reached up to 40% of the crop area in other countries. In oilseed rape fields, the share of the crop area treated with glyphosate varied from less than 10% to more than 70%. Similarly, in winter wheat fields, the share of the crop area on which glyphosate is used varied from less than 10% to 90%. Those percentages include: treatments for controlling weeds applied before cultivation (at the pre-sowing or pre-emergence stage) that may occur for each new sowing in the crop rotation; treatments for controlling weeds that are applied only once in the crop rotation (at a post-harvest stage or during an intercropping period); and desiccation/harvest aid for some of the crops (in countries in which this is allowed). As the percentages are for any single year, the area treated with glyphosate in any region over a full crop rotation period may be greater. Additional research is needed for assessing the total uses of glyphosate throughout the crop rotations in EU countries. In perennial systems, within the scope for which data was available in the EU 28+4, 39% of the fruit orchard acreage, 32% of the vineyard acreage and 45% of the olive grove acreage were treated with glyphosate. Across countries, the use of glyphosate ranged from 13% to 95% of the national vineyard acreage, from 20% to 92% of the fruit orchard acreage and from 13% to 80% of the olive grove acreage. Finally, 19% of the temporary grassland acreage was treated with glyphosate annually. A diversity of non-chemical alternatives to glyphosate treatments can be identified. Their effectiveness, cost and adoption implications for crops and the environment can vary widely, or may not be quantified. They include both preventive measures and curative control measures, such as mechanical and biological control. In annual cropping systems, these practices include: use of cover crops and of a roller-crimper for their destruction, mulching, crop rotation diversification, delaying crop sowing dates, higher seed rates, increasing crop competitiveness, inter-row cultivation, tillage for controlling weeds at the post-harvest and pre-sowing stages, use of early-ripening varieties and weed seed removal during
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356 harvest. In perennial crops, the following alternatives were identified: greening, grazing, mowing, mulching, cover crops, tillage, mechanical weeding and the use of bioherbicides for weed control. Different approaches to using glyphosate were identified through the survey. Occasional uses are related to exceptional contexts, such as meteorological conditions or specific farm constraints. Recurrent uses are widespread practices that are already embedded in farming systems. Other agronomic solutions may exist but are not mobilised; instead farmers plan to, and recurrently do, use glyphosate. Two types of recurrent uses can be distinguished: uses related to structural conditions and systematic uses that are not related to structural conditions. First, uses related to structural conditions appear when equipment or infrastructure are not compatible with alternative practices. Examples of such structural conditions include irrigation systems that are located above ground in fruit orchards and narrow rows in orchards or vineyards which prevent weed management using mechanical methods. For replacing glyphosate with non-chemical alternatives, a change in these structural aspects is required, which may involve significant investments. Second, systematic uses not related to structural conditions result from the evolution of farming systems generally characterised by reduced tillage systems, large- scale farms and the availability of highly efficient, low-priced herbicides such as glyphosate. Examples of systematic uses include the use of glyphosate for crop desiccation, for the destruction of cover crops and temporary grasslands, and for weed management in annual and perennial crop systems. In the case of systematic uses, multiple inter-related factors may hinder the shift to non-chemical alternatives. These include: limited, and in some cases no, availability of and access to alternative inputs and adapted machinery; constraints and opportunities due to regulations and subsidies; lack of advice, knowledge and references regarding alternative practices; uncertainties, risks and variability in agronomic performance and profitability of alternative practices; constraints in farm resources; commercial context; challenges in terms of labour organisation; and cultural and cognitive aspects. Further research is needed to assess the conditions, including the economic and technical aspects as well as systemic contexts, that are required for enhancing the adoption of non-chemical alternatives to glyphosate.
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357 Introduction
Glyphosate is known as the most widely used herbicide in the world. Intense controversies have arisen in Europe (as well as in the USA, Latin America and Asia) regarding the direct and indirect effects of glyphosate on the environment and human health. Studies assessing the impact of the active ingredient and its commercial formulations have been challenged. Debates have taken place in multiple arenas (social networks, public policy decision arenas etc.) and have led, for example, to a European Citizens’ Initiative (Ban glyphosate and protect people and the environment from toxic pesticides)5 as well as the decision by the Austrian parliament to ban glyphosate6 and to a statement by the German government that glyphosate use should be significantly reduced by 20237. Although glyphosate use is being widely discussed in terms of its impact, little information is available on its quantitative aspects, such as the extent to which it is used in EU countries. This is why, in 2019, the ENDURE network8 launched a survey on the uses of glyphosate and the existing alternatives in European countries. This report presents an analysis of the data collected with a focus on the following aspects: What is the relative importance of glyphosate compared to other pesticides in Europe? (Chapter 2); where in Europe is glyphosate used the most? (Chapter 3); in which cropping systems is glyphosate used, and for which agronomic purposes? (Chapter 4); and what are the lock-in factors that hinder the substitution of glyphosate with alternative practices? (Chapter 5).
5 Citizens’ Initiative ECI(2017)000002 registered on 25/01/2017: https://ec.europa.eu/citizens-initiative/public/initiatives/successful/details/2017/000002 6 https://www.reuters.com/article/us-austria-glyphosate/austrian-parliament-backs-eus-first-total-ban-of-weedkiller-glyphosate- idUSKCN1TX1JR 7 https://www.dw.com/en/germany-set-to-ban-glyphosate-from-end-of-2023/a-50282891 8 ENDURE is a network of organisations focusing on Integrated Pest Management (IPM): http://www.endure-network.eu/what_is_endure/endure_partner_organisations 11
358 1. Methodology
1.a. Data collection
This report is based on a survey undertaken and led by the ENDURE network in 2019 that was rolled out in 32 countries: the EU-28 countries plus Norway, Serbia, Switzerland and Turkey (EU 28+4) (Table 1). For this survey, more than 40 points of contact in research and public policy institutions in these countries were asked to provide national data, in three successive data collection steps, regarding the volume and uses of glyphosate in their country. This report provides data for the year 2017 and, as much as possible, the historical background and future perspectives. The ENDURE survey made it possible to collect data on glyphosate sales in 25 countries (Table 2), covering 88% of the agricultural area in conventional agriculture in the EU 28+4. For the other seven countries for which no sales data could be obtained, an estimation was calculated. This estimation is based on the total volume of herbicides sold in the country and the average share that glyphosate represents among herbicides in EU countries for which data was available (see Chapter 3). The estimated figures were reviewed by national points of contact to ensure consistency with local knowledge. In addition to survey data, national pesticide and herbicide sales and agricultural acreages were obtained from the Eurostat database. At the EU level, pesticide active substances are classified according to their purpose (herbicide, insecticide, fungicide etc.) and composition9. Sales volumes are recorded in Eurostat annually, with the most recent data available for 2017. An overview of these data is provided in Chapter 1. Eurostat provides total pesticide sales but the data are not reported by sector (agriculture, forestry, railways and infrastructures, industrial uses, non-professional uses etc.). Data on the share of the use of pesticides in the agricultural sector versus other sectors were collected during the survey.
9 See Commission Regulation 2017/269 of 16 February 2017: eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32017R0269&from=FR 12
359 Table 9: Estimation of average glyphosate use in the agricultural sector per hectare of UAA in EU 28+4 countries in 2017
Herbicide Glyphosate Data Proportion of Estimated UAA in Average use sales in sales in source of glyphosate share of conventional of glyphosate 2017a 2017b glyphosate compared to glyphosate agriculturea in the b (tonnes of (tonnes of sales all herbicides sales used by (1,000 ha) agriculture in 2017 the agriculture sector a.i.) a.i.) c (%) sector (kg of a.i./ha) Austria 1,297 329 S 25% 98% 2,035 0.16 Belgium 2,334 619 S 27% 60% 1,246 0.30 Bulgaria 1,699 649 E 38% 90% 4,893 0.12 Croatia 669 217 S 32% 85% 1,400 0.13 Cyprus 139 53 E 38% 90% 116 0.40 Czech Rep. 2,562 751 S 29% 90% 3,025 0.22 Denmark 2,485 1,241 S 50% 99% 2,405 0.51 Estonia 463 253 S 55% 90% 806 0.28 Finland 1,006 660 S 66% 95% 2,014 0.31 France 30,230 9,324 S 31% 95% 27,357 0.32 Germany 16,706 4,694 S 28% 90% 15,549 0.27 Greece 1,674 1,300 S 78% 90% 4,742 0.25 Hungary 4,270 1,647 S 39% 97% 5,153 0.31 Ireland 1,820 695 E 38% 90% 4,415 0.14 Italy 7,114 3,699 S 52% 90% 10,935 0.30 Latvia 801 168 S 21% 90% 1,663 0.09 Lithuania 1,252 253 S 20% 90% 2,701 0.08 Luxembourg 61 232 E 38% 90% 126 0.16 Malta 2 1 E 38% 90% 12 0.07 Netherlands 2,902 742 S 26% 90% 1,734 0.39 Norway 467 1 299 S 64% 95% 935 0.30 Poland 13,655 6,665 S 49% 90% 14,003 0.43 Portugal 1,899 1,3072 S 69% 90% 3,349 0.35 Romania 5,486 2,095 E 38% 90% 13,119 0.14 Serbia nd 924 S nd 90% 3,425 0.24 Slovakia 1,105 422 E 38% 90% 1,722 0.21 Slovenia 235 86 S 36% 90% 435 0.18 Spain 16,077 3,633 S 23% 90% 21,759 0.15 Sweden 1,731 485 S 28% 97% 2,435 0.19 Switzerland 599 189 S 32% 90% 1,368 0.12 Turkey 11,825 1,789 S 15% 85% 37,760 0.04 UK 9,682 2,2402 S 23% 80% 16,974 0.11
Total EU 28 129,359 44,250 S, E 34% 91% 166,120 0.24 Total EU 28+3 142,251 46,527 S, E 33% 91% 206,184 0.20
Sources: aEurostat: Where no data were available for 2017, the gaps were filled using data from the closest year, with preference given to the previous year, when available: the herbicide sales volume in Luxembourg is from 2016 and in Norway is from 2015. bENDURE survey (S, in black) or estimate (E, in grey) (see Table 7 and Table 8). Total sales, all sectors included. cCountries for which data were obtained though the ENDURE survey: Austria, Belgium, Croatia, Denmark, Finland, France, Hungary, Lithuania, Netherlands, Norway, Sweden, Turkey, UK. See Table 16 in appendix. For other countries (in italics), an average ratio is used: 90%. Notes: 1Data 2015; 2Data 2016 instead of 2017.
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360 INPUTS AVAILABILITY REGULATIONS AND AND ACCESSIBILITY SUBSIDIES
ADVICE, KNOWLEDGE, REFERENCES FARM RESOURCES SHIFT IN PRACTICES
CULTURAL AND COGNITIVE ASPECTS
PERFORMANCE OF COMMERCIAL ALTERNATIVE CONTEXT PRACTICES
Figure 14: Aspects that hinder or facilitate the shift to alternative practices
Based on the grid of lock-in factors from (Morel 2018).
Lock-in factors to the adoption of alternative methods in perennial crops In perennial crops (vineyards, fruit orchards and olive groves), the major lock-in factors quoted by local experts included: the complexity of alternative practices; challenges in terms of labour organisation; the lack of knowledge and references on the impact of chemical and non-chemical practices; the investment required to purchase adapted machinery if alternative practices are to be implemented; the uncertainties, risks and variability of agronomic performance and profitability of alternative practices.
Conclusion
The objectives of this ENDURE survey were to get a better understanding of where in Europe glyphosate is mostly used, to what extent and in which cropping systems it is used, and for which purposes. This report provides data regarding glyphosate use in the agricultural sector in 32 countries and offers an overview at the EU 28+4 level. In addition, the report provides examples of alternative practices and highlights the lock-in factors that may hinder the transition to alternative practices at the farm level. The total sales of glyphosate were an estimated 46,527 tonnes of a.i. in 2017 at the EU 28+3 level (47,452 tonnes of a.i. at the EU 28+4 level). Overall, sales of glyphosate represented 33% of total herbicide sales in the EU 28+3. This hides significant differences among countries, where glyphosate represented between 15% and 78% of herbicide active ingredient sales. Glyphosate sales (by volume of active ingredient) appear to be highest in France, Poland, Germany, Italy and Spain. According to the survey, glyphosate is mainly consumed by the agricultural sector. Across the 13 countries for which the share of glyphosate sales to the agricultural sector was available, the agricultural sector consumes on average 90% of total national glyphosate sales. When reporting by hectare of agricultural area, the average use of glyphosate at the EU 28+3 level was 0.20 kg of glyphosate per hectare. The five 42
361 countries with the highest use of glyphosate in 2017 compared to their agricultural area were Denmark, Poland, Netherlands, Portugal and France. Glyphosate is widely used in annual cropping systems and perennial tree crops. Within the scope for which data was available, 32% of the wheat acreage, 25% of the maize, 52% of the oilseed rape acreage, 39% of the fruit orchard acreage, 32% of the vineyard acreage, 45% of the olive grove acreage and 19% of the temporary grassland acreage were treated with glyphosate in any single year. Closer examination reveals that the application of glyphosate varies greatly from one country to another. Regarding annual cropping systems, the recording of glyphosate treatments in statistical databases varies across countries. Four different allocation rules were identified: allocation from harvest to harvest, allocation from field preparation to post-harvest, allocation to the intercrop, and allocation to the cropping system. As a consequence, comparisons of glyphosate uses in annual cropping systems between countries or crops must be considered as a preliminary indication. In addition, as the percentages provided are for any single year, the area treated with glyphosate in any region over a full crop rotation period may therefore be greater. Additional research is needed for assessing the total uses of glyphosate throughout the crop rotations in EU countries. The survey shows that glyphosate is largely used for at least eight agronomic purposes, including weed management, eliminating cover crops, as a harvest aid, and for the termination of grassland. In addition, different approaches to glyphosate use were identified: occasional uses, recurrent uses related to structural conditions and systematic uses that are not related to structural conditions. These different uses, as well as the different agronomic purposes for which glyphosate is used, can serve as a framework for further monitoring of glyphosate use in the agricultural sector. In the case of systematic uses, multiple inter-related factors may hinder the shift to non-chemical alternatives, such as: limited, and in some case no, availability of and access to effective alternative inputs and adapted machinery; constraints and opportunities due to regulations and subsidies; lack of advice, knowledge and references regarding alternative practices; uncertainties, risks and variability of agronomic performance and profitability of alternative practices; constraints in farm resources; commercial context; challenges in terms of labour organisation; and cultural and cognitive aspects. Further research is needed to assess the conditions, including the economic and technical aspects as well as systemic contexts, that are required for enhancing the adoption of non-chemical alternatives to glyphosate.
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362 TAB 8, EXHIBIT H Peer-reviewed report entitled: Charles M. Benbrook, “Trends in glyphosate herbicide use in the United States and globally,” Environmental Science Europe (2016) 28:3 DOI 10.1186/s12302-016-0070-0
This is Exhibit H referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
363 Benbrook Environ Sci Eur (2016) 28:3 DOI 10.1186/s12302-016-0070-0
RESEARCH Open Access Trends in glyphosate herbicide use in the United States and globally Charles M. Benbrook*
Abstract Background: Accurate pesticide use data are essential when studying the environmental and public health impacts of pesticide use. Since the mid•1990s, significant changes have occurred in when and how glyphosate herbicides are applied, and there has been a dramatic increase in the total volume applied. Methods: Data on glyphosate applications were collected from multiple sources and integrated into a dataset spanning agricultural, non•agricultural, and total glyphosate use from 1974–2014 in the United States, and from 1994–2014 globally. Results: Since 1974 in the U.S., over 1.6 billion kilograms of glyphosate active ingredient have been applied, or 19 % of estimated global use of glyphosate (8.6 billion kilograms). Globally, glyphosate use has risen almost 15•fold since so•called “Roundup Ready,” genetically engineered glyphosate•tolerant crops were introduced in 1996. Two•thirds of the total volume of glyphosate applied in the U.S. from 1974 to 2014 has been sprayed in just the last 10 years. The corresponding share globally is 72 %. In 2014, farmers sprayed enough glyphosate to apply ~1.0 kg/ha (0.8 pound/ acre) on every hectare of U.S.•cultivated cropland and nearly 0.53 kg/ha (0.47 pounds/acre) on all cropland worldwide. Conclusions: Genetically engineered herbicide•tolerant crops now account for about 56 % of global glyphosate use. In the U.S., no pesticide has come remotely close to such intensive and widespread use. This is likely the case globally, but published global pesticide use data are sparse. Glyphosate will likely remain the most widely applied pesticide worldwide for years to come, and interest will grow in quantifying ecological and human health impacts. Accurate, accessible time•series data on glyphosate use will accelerate research progress. Keywords: Glyphosate, Herbicide use, Genetic engineering, Herbicide•tolerant crops, Roundup, Pesticide use
Background volume sold was limited because glyphosate could only A Swiss chemist working for a pharmaceutical com• be sprayed where land managers wanted to kill all vegeta• pany, Dr. Henri Martin, discovered glyphosate tion (e.g., between the rows in orchards and viticulture; [N•(phosphonomethyl) glycine] in 1950 [1]. Because no industrial yards; and, train, pipeline, and powerline rights pharmaceutical applications were identified, the mol• of way). Some applications were, and still are made after ecule was sold to a series of other companies and samples a crop is harvested, to control late•season weeds that were tested for a number of possible end uses. A Mon• escaped other control measures. In some regions, des• santo chemist, Dr. John Franz, identified the herbicidal iccant applications are made late in the growing season activity of glyphosate in 1970, and a formulated end•use to speed up harvest operations, especially in small grain product called Roundup was first sold commercially by crops. Monsanto in 1974 [2]. In 1996, so•called “Roundup Ready” (RR), genetically For two decades, the number and diversity of agri• engineered (GE) herbicide•tolerant (HT) soybean, maize, cultural and non•farm uses grew steadily, but the and cotton varieties were approved for planting in the U.S. This technological breakthrough made it possible *Correspondence: [email protected] to utilize glyphosate as a broadcast, post•emergence her• Benbrook Consulting Services, 90063 Troy Road, Enterprise, OR 97828, bicide, thereby dramatically extending the time period USA
© 2016 Benbrook. This article is distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made.
364 Benbrook Environ Sci Eur (2016) 28:3 Page 5 of 15
Glyphosate use on herbicide‑tolerant hectares but not dramatically, through 1995, to 12.5 million kg (28 Global soybean production in 2014 was 315.4 million million pounds). metric tons (11.6 million bushels), with the U.S. (108 The 12.5 million kg applied in 1995, prior to the GE era, million metric tons), Brazil (94.5 mill. metric tons), and made glyphosate the seventh most heavily applied pes• Argentina (56 mill. metric tons) accounting for 82 % of ticide in U.S. agriculture that year, according to the EPA the global harvest [34]. The International Service for ([27], Additional file 1: Table S19). The top•six pesticides the Acquisition of Agri•Biotech Applications (ISAAA) applied by U.S. farmers and ranchers in 1995 included compiles annual, global data by country, continent, and two herbicides mostly used on corn (#1 atrazine, and #2 worldwide on hectares planted to various GE crop vari• metolachlor), three soil fumigants primarily applied on eties ([14–17], [27], Additional file 1: Table S20). Data fruit and vegetable crops (#3•5, metam•sodium, methyl• from these briefs were combined with estimates of aver• bromide, dichloropropene), and one broad•leaf herbicide age glyphosate rates of application ([27], Additional relied on in multiple cropping systems (#6, 2,4•D). file 1: Table S21), yielding estimates of total glyphosate As GE•HT crops gained market share in 1996–2000, use from 1996 to 2014 on GE, herbicide•tolerant cotton, agricultural applications of glyphosate in the U.S. rose maize, soybeans, and canola, and globally for all crops rapidly, reaching 36 million kg (79 million pounds) by ([27], Additional file 1: Table S23). 2000 (Table 1). That year, agricultural uses of glyphosate Use in Argentina and Brazil. GE•HT soybeans accounted for 80 % of total national use (in 1974, the agri• accounted for 100 and 93 % of the soybean hectares cultural share of total glyphosate use was about 60 %). A planted in Argentina and Brazil in 2014 [34]. Sistema decade later in 2010, agriculture’s share had risen to 90 %. Integrado de Información Agropecuaria (Ministerio de From 1974–2014, a total of 1.37 billion kg of glyphosate Agricultura Ganadaria y Pesca) reports data on hec• (3.0 billion pounds) was applied in the U.S. agricultural tares planted to soybeans in Argentina [35], and the sector (Table 1). Instituto Brasileiro de Geografia e Estatística (IBGE) Glyphosate use in the agricultural sector rose 300•fold provides the same data for Brazil [36]. For Argen• from 1974 to 2014 (0.36–113.4 million kg; 0.8–250 mil• tina and Brazil, Soystats [34] provides percent of area lion pounds). Non•agricultural uses rose less dramati• planted to GE•HT soybeans for 2000–2014. Benbrook cally, by 43•fold in the same time period, because there [37] and Meyer and Cederberg [38] provide informa• were far fewer new, non•agricultural uses registered. tion on glyphosate use rates per crop year, which are Glyphosate has been on the market as a herbicide for substantially higher than those in the U.S. Ferraro and 42 years. In the first 31 of these years (1974–2004), U.S., Ghersa [39] also document applications to soybeans in farmers applied only ~27 % of the total volume (weight) Argentina that can range up to seven per year, substan• of glyphosate applied since 1974. Nearly 67 % of total tially more than in the U.S. agricultural glyphosate use in the U.S. since 1974 has occurred in just the last 10 years (Table 2). Results Glyphosate use in the U.S Use by crop in the U.S Farmers and ranchers in the U.S. applied an estimated Table 3 provides an overview of trends since 1990 in 0.36 million kg of active ingredient (0.8 million pounds) glyphosate applications on 12 major crops in the U.S. in 1974 (Table 1). The volume applied increased steadily, surveyed by NASS, as well as an estimate of use on all
Table 1 Glyphosate active ingredient use in the United States: 1974–2014
1974 1982 1990 1995 2000 2005 2010 2012 2014
Glyphosate Use (1000 kg) 635 3538 5761 18,144 44,679 81,506 118,298 118,753 125,384 Agricultural 363 2268 3357 12,474 35,720 71,441 106,963 107,192 113,356 Non•agricultural 272 1270 2404 5670 8958 10,065 11,335 11,562 12,029 Glyphosate use (1000 lb) 1400 7800 12,700 40,000 98,500 179,690 260,804 261,807 276,425 Agricultural 800 5000 7400 27,500 78,750 157,500 235,814 236,318 249,906 Non•agricultural 600 2800 5300 12,500 19,750 22,190 24,989 25,489 26,519 Share agricultural (%) 57.1 64.1 58.3 68.8 79.9 87.7 90.4 90.3 90.4 Share non•agricultural (%) 42.9 35.9 41.7 31.3 20.1 12.3 9.6 9.7 9.6 Data in thousands of kilograms or pounds of glyphosate active ingredient. From the National Agriculture Statistical Service pesticide use data and the Environmental Protection Agency pesticide industry and use reports (1995, 1997, 1999, 2001, 2007). See Additional file 1: Table S18 for details
365 Benbrook Environ Sci Eur (2016) 28:3 Page 13 of 15
average herbicide use per hectare on land planted to for compiling and making available information on pesticide use in the U.S., GE•HT varieties has, on average, escalated steadily since and to the EPA for its helpful periodic reports on pesticide use. the mid•1990s [8, 11, 88, 13]. Competing interests The upward trend in glyphosate use has, and will likely The author is a member of the U.S. Department of Agriculture’s AC21 Agri• cultural Biotechnology Advisory Committee. From June 2012–May 2015, he continue to contribute to incremental increases in envi• served as a Research Professor at Washington State University. Dr. Benbrook’s ronmental loadings and human exposures to glypho• program at WSU received funding from foundations, organic food companies, sate, its major metabolite aminomethylphosphonic acid and coops. He currently serves as an expert witness in litigation focused on (AMPA), and various surfactants and adjuvants used in the labeling of foods containing genetically engineered ingredients. formulating end•use glyphosate•based herbicides. Received: 11 October 2015 Accepted: 11 January 2016 Given that glyphosate is moderately persistent and mobile, levels in surface and groundwater will likely rise in step with use, and this will increase the diversity of potential routes of animal and human exposure. References Human exposures from around the home and urban 1. Dill GM, Sammons RD, Feng PCC, Kohn F, Kretzmer K, Mehrsheikh uses of glyphosate also warrant closer attention. Most A, Bleeke M, Honegger JL, Farmer D, Wright D, Haupfear EA (2010) end•use, glyphosate products sold for home and urban Glyphosate: discovery, development, applications, and properties. Chapter 1. In: Nandula VK (ed) Glyphosate resistance in crops and weeds: use in developed countries contain relatively low con• history, development, and management. Wiley, New York, pp 1–33. ISBN centrations of glyphosate, so the risk of experiencing 978•0470410318 an acutely toxic exposure is minimal. But in develop• 2. Duke SO, Powles SB (2008) Glyphosate: a once•in•a•century herbicide. Pest Manag Sci 64:319–325 ing countries, risks stemming from applications of more 3. Monsanto Company. “Genuity Roundup Ready Sugarbeets,”. 2015. http:// concentrated glyphosate products and/or applications of www.monsanto.com/newsviews/pages/genuity•roundup•ready•sugar• “home•mixed” products should not be ignored. beets.aspx. Accessed 9 Aug 2015 4. Monsanto Company. “Lawsuit Involving Roundup Ready Alfalfa,”. 2015. The frequency and levels of glyphosate and residues in http://www.monsanto.com/newsviews/pages/roundup•ready•alfalfa• a variety of foods are increasing, and more refined die• supreme•court.aspx. Accessed 9 Aug 2015 tary•risk assessments should be carried out. Reasonably 5. Heap IM (2014) Global perspective of herbicide•resistant weeds. Pest Manag Sci 70:1306–1315 accurate estimates of glyphosate residues and dietary 6. Mortensen DA, Egan JF, Maxwell BD, Ryan MR (2012) Navigating a critical exposures in areas lacking residue data can be made juncture for sustainable weed management. Bioscience 62:75–84 drawing on insights gained from risk assessments con• 7. Owen MD, Beckie HJ, Leeson JY, Norsworthy JK, Steckel LE (2014) Inte• grated pest management and weed management in the United States ducted in areas with accurate glyphosate use and residue and Canada. Pest Manag Sci 71(3):357–376. doi:10.1002/ps.3928 data. 8. Cerdeira AL, Gazziero DLP, Duke SO, Matallo MB (2011) Agricultural impacts of glyphosate•resistant soybean cultivation in South America. J Additional file Agric Food Chem 59:5799–5807 9. Duke SO (2014) Perspectives on transgenic, herbicide•resistant crops in the USA almost 20 years after introduction. Pest Manag Sci 71(5):652–657. Additional file 1. List of supplemental tables. doi:10.1002/ps.3863 10. Powles SB (2008) Evolved glyphosate•resistant weeds around the world: lessons to be learnt. Pest Manag Sci 64:360–365. doi:10.1002/ps.1525 Abbreviations 11. United States Department of Agriculture. National Agricultural Statis• AMPA: aminomethylphosphonic acid; Bt: Bacillus thuringiensis; EPA: Environ• tics Service. Agricultural chemical usage—field crops and potatoes. mental Protection Agency; GBH: glyphosate•based herbicide; GE: genetically http://usda.mannlib.cornell.edu/MannUsda/viewDocumentInfo. = engineered; GE•HT: genetically engineered herbicide•tolerant [crop]; GMO: do?documentID 1560. Accessed 17 Dec 2014 genetically engineered organism; HT: herbicide tolerant; Kg: kilogram; NASS: 12. Blewett TC (2011) Supplemental information for petition for determina• National Agricultural Statistics Service (a USDA agency); RR: Roundup Ready; tion of non regulated status for herbicide tolerant DAS•40278•9 corn— USDA: United States Department of Agriculture; USGS: United States Geologi• economic and agronomic impacts of DAS 40278•9 corn on glyphosate cal Service. resistant weeds in the US cropping system. United States Environ Prot Agency Authors’ information 13. National Agricultural Statitistics Service (2014) U.S. soybean industy: The author (CMB) conducted the research and wrote the paper while serv• glyphosate effectiveness declines, NASS highlights No. 2014•1. http:// ing as a Research Professor at Washington State University (position ended www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Ag_Resource_ 5/15/15). CMB ran the “Measure to Manage” program within the Center for Management/ARMS_Soybeans_Factsheet/index.asp Sustaining Agriculture and Natural Resources, and has worked for years com• 14. James C. Global status of Commercialized biotech/GM Crops: 2011. 2011. piling data on pesticide use in the U.S. and globally. ISAAA Briefs 43 15. James C. Global status of Commercialized biotech/GM Crops: 2012. Acknowledgements ISAAA Briefs 44. 2012. doi:10.1017/S0014479706343797 The author thanks his colleagues at Washington State University’s Measure to 16. James C. Global status of Commercialized biotech/GM Crops: 2013. Manage Program for assistance in developing the datasets and carrying out ISAAA Briefs. 2013 the analysis. Karie Knoke compiled the glyphosate use dataset and produced 17. James C. Global status of Commercialized biotech/GM Crops: 2014. the figures. Nicholas Potter helped develop the tables and refine the analysis. ISAAA Briefs. 2014 Reviewers provided helpful suggestions for improvement. Also, thanks to the 18. United States Department of Agriculture. National agricultural statistics U.S. Department of Agriculture’s National Agricultural Statistics Service (NASS) service. Agricultural chemical use program. http://www.nass.usda.gov/ Surveys/Guide_to_NASS_Surveys/Chemical_Use/index.asp
366 TAB 9, EXHIBIT I Minister of Health’s 2019 mandate letter from the Prime Minister
This is Exhibit I referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa- Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
367 7/15/2020 Minister of Health Mandate Letter | Prime Minister of Canada Minister of Health Mandate Letter December 13, 2019
Dear Ms. Hajdu:
Thank you for agreeing to serve Canadians as Minister of Health.
On Election Day, Canadians chose to continue moving forward. From coast to coast to coast, people chose to invest in their families and communities, create good middle class jobs and ght climate change while keeping our economy strong and growing. Canadians sent the message that they want us to work together to make progress on the issues that matter most, from making their lives more a ordable and strengthening the healthcare system, to protecting the environment, keeping our communities safe and moving forward on reconciliation with Indigenous Peoples. People expect Parliamentarians to work together to deliver these results, and that’s exactly what this team will do.
It is more important than ever for Canadians to unite and build a stronger, more inclusive and more resilient country. The Government of Canada is the central institution to promote that unity of purpose and, as a Minister in that Government, you have a personal duty and responsibility to ful ll that objective.
That starts with a commitment to govern in a positive, open and collaborative way. Our platform, Forward: A Real Plan for the Middle Class, is the starting point for our Government. I expect us to work with Parliament to deliver on our commitments. Other issues and ideas will arise or will come from Canadians, Parliament, stakeholders and the public service. It is my expectation that you will engage constructively and thoughtfully and add priorities to the Government’s agenda when appropriate. Where legislation is required, you will need to work with the Leader of the Government in the House of Commons and the Cabinet Committee on Operations to prioritize within the minority Parliament.
We will continue to deliver real results and e ective government to Canadians. This includes: tracking and publicly reporting on the progress of our commitments; assessing the e ectiveness of our work; aligning our resources with priorities; and adapting to events as they unfold, in order to get the results Canadians rightly demand of us.
Many of our most important commitments require partnership with provincial, territorial and municipal governments and Indigenous partners, communities and governments.Even where disagreements may occur, we will remember 368that our mandate comes from citizens who are https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-health-mandate-letter 1/6 7/15/2020 Minister of Health Mandate Letter | Prime Minister of Canada served by all orders of government and it is in everyone’s interest that we work together to nd common ground. The Deputy Prime Minister and Minister of Intergovernmental A airs is the Government-wide lead on all relations with the provinces and territories.
There remains no more important relationship to me and to Canada than the one with Indigenous Peoples. We made signi cant progress in our last mandate on supporting self- determination, improving service delivery and advancing reconciliation. I am directing every single Minister to determine what they can do in their speci c portfolio to accelerate and build on the progress we have made with First Nations, Inuit and Métis Peoples.
I also expect us to continue to raise the bar on openness, e ectiveness and transparency in government. This means a government that is open by default. It means better digital capacity and services for Canadians. It means a strong and resilient public service. It also means humility and continuing to acknowledge mistakes when we make them.Canadians do not expect us to be perfect; they expect us to be diligent, honest, open and sincere in our e orts to serve the public interest.
As Minister, you are accountable for your style of leadership and your ability to work constructively in Parliament. I expect that you will collaborate closely with your Cabinet and Caucus colleagues. You will also meaningfully engage with the Government Caucus and Opposition Members of Parliament, the increasingly non-partisan Senate, and Parliamentary Committees.
It is also your responsibility to substantively engage with Canadians, civil society and stakeholders, including businesses of all sizes, organized labour, the broader public sector and the not-for-pro t and charitable sectors. You must be proactive in ensuring that a broad array of voices provides you with advice, in both o cial languages, from every region of the country.
We are committed to evidence-based decision-making that takes into consideration the impacts of policies on all Canadians and fully defends the Canadian Charter of Rights and Freedoms. You will apply Gender-based Analysis Plus (GBA+) in the decisions that you make.
Canada’s media and your engagement with them in a professional and timely manner are essential. The Parliamentary Press Gallery, indeed all journalists in Canada and abroad, ask necessary questions and contribute in an important way to the democratic process.
You will do your part to continue our Government’s commitment to transparent, merit-based appointments, to help ensure that people of all gender identities, Indigenous Peoples, racialized people, persons with disabilities and minority groups are re ected in positions of leadership.
As Minister of Health, you will lead the Government’s work to strengthen public health care, an anchor of Canadians’ social and economic security. This work will include ensuring greater access to doctors or primary health teams, setting national standards for mental health access, 369 https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-health-mandate-letter 2/6 7/15/2020 Minister of Health Mandate Letter | Prime Minister of Canada supporting home care and palliative care, and implementing national universal pharmacare.
I will expect you to work with your colleagues and through established legislative, regulatory and Cabinet processes to deliver on your top priorities. In particular, you will:
Lead work, with the support of the Deputy Prime Minister and Minister of Intergovernmental A airs, the Minister of Finance and the Minister of Seniors, to strengthen Medicare and renew our health agreements with the provinces and territories in four priority areas: Ensure that every Canadian has access to a family doctor or primary health care team;
Set national standards for access to mental health services so Canadians can get fast access to the support they need, when they need it;
Continue to make home care and palliative care more available across the country; and
Continue to implement national universal pharmacare, including the establishment of the Canada Drug Agency, and implementing a national formulary and a rare disease drug strategy to help Canadian families save money on high-cost drugs.
Consider amendments to the Canada Health Act to achieve progress on these priorities, including new accountability standards so that Canadians can know what to expect from the public health system when they need it.
Continue to ensure compliance with the Canada Health Act on matters of private delivery and extra billing.
Work closely with other orders of government, as well as substance use experts, service providers, rst responders, law enforcement and people with lived and living experience in order to ensure Canada’s response to the current opioid crisis is robust, well-coordinated and e ective: Work with the provinces and territories on new investments that expand community- based services, build more in-patient rehabilitation beds, and scale up the most e ective programs such as extending hours for safe consumption sites.
Ensure that Canadians have access to the medicines they need by taking action with manufacturers, provinces and territories and other stakeholders to address drug shortages.
Promote healthy eating, including continuing work to introduce new restrictions on the commercial marketing of food and beverages to children and establishing new front-of- package labelling.
In cooperation with other orders of government and key stakeholders, address the rapid rise in youth vaping. This should start with regulations to reduce the promotion and appeal of vaping products to young people and public education to create awareness of health risks. You are encouraged to explore additional measures. 370 https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-health-mandate-letter 3/6 7/15/2020 Minister of Health Mandate Letter | Prime Minister of Canada Work collaboratively with provinces, territories, families and stakeholders toward the creation of a national autism strategy.
Make new investments in pediatric cancer research and develop a long-term plan to ensure sustainable funding.
Work with Parliament to study and analyze the possibility of national dental care.
Work with the Canadian Institutes of Health Research to integrate sex- and gender-based analyses, as well as diversity analyses, to ensure research takes diversity factors into account to improve women’s health care.
Provide additional funding to the Canadian Institutes of Health Research so that it can create academic research grants for studies on race, diversity and gender.
Create a National Institute for Women’s Health Research, with the support of the Minister for Women and Gender Equality and Rural Economic Development, that will bring together experts in women’s health from across the country to tackle persistent gaps in research and care using an intersectional approach.
In order to realize and protect women’s sexual and reproductive health rights, ensure that Canadians have access to the full suite of reproductive services and medications across the country.
Work with the Minister of Public Safety and Emergency Preparedness to continue to implement the strict regulation of cannabis across Canada. Your key priorities are public safety, responsible usage and keeping cannabis away from children.
Work with the Minister of Canadian Heritage to implement a pan-Canadian Concussion Strategy and raise awareness for parents, coaches and athletes on concussion treatment.
Work with the Minister of Diversity and Inclusion and Youth, and in partnership with Canadian Blood Services and Héma-Québec, to build on existing progress to implement a behaviour-based model of donation that eliminates the blood ban for men who have sex with other men.
Support the Minister of Justice and Attorney General of Canada in working with provinces and territories to respond to the recent court ruling regarding the medical assistance in dying framework.
With the support of the Minister of Agriculture and Agri-Food and the Minister of Environment and Climate Change, work to ensure that the Pest Management Regulatory Agency makes timely science-based decisions to support the safe and sustainable use of e ective pesticide products in Canada.
Work with the Minister of Environment and Climate Change to better protect people and the environment from toxins and other pollution, including by strengthening the Canadian 371 https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-health-mandate-letter 4/6 7/15/2020 Minister of Health Mandate Letter | Prime Minister of Canada Environmental Protection Act, 1999.
Working with the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Agriculture and Agri-Food, in your role as the Minister responsible for the Canadian Food Inspection Agency, develop a boat-to-plate traceability program to help Canadian shers to better market their high-quality products.
With the support of the Minister of Innovation, Science and Industry, the Minister of Agriculture and Agri-Food and the Minister of Environment and Climate Change, address the serious and growing public health threat of antimicrobial resistance by developing and implementing actions with partners to preserve the e ectiveness of the antimicrobials that Canadians rely on every day.
These priorities draw heavily from our election platform commitments. As mentioned, you are encouraged to seek opportunities to work across Parliament in the ful llment of these commitments and to identify additional priorities.
I expect you to work closely with your Deputy Minister and their senior o cials to ensure that the ongoing work of your department is undertaken in a professional manner and that decisions are made in the public interest. Your Deputy Minister will brief you on the many daily decisions necessary to ensure the achievement of your priorities, the e ective running of the government and better services for Canadians. It is my expectation that you will apply our values and principles to these decisions so that they are dealt with in a timely and responsible manner and in a way that is consistent with the overall direction of our Government.
Our ability, as a government, to implement our priorities depends on consideration of the professional, non-partisan advice of public servants. Each and every time a government employee comes to work, they do so in service to Canada, with a goal of improving our country and the lives of all Canadians. I expect you to establish a collaborative working relationship with your Deputy Minister, whose role, and the role of public servants under their direction, is to support you in the performance of your responsibilities.
We have committed to an open, honest government that is accountable to Canadians, lives up to the highest ethical standards and applies the utmost care and prudence in the handling of public funds. I expect you to embody these values in your work and observe the highest ethical standards in everything you do. I want Canadians to look on their own government with pride and trust.
As Minister, you must ensure that you are aware of and fully compliant with the Con ict of Interest Act and Treasury Board policies and guidelines. You will be provided with a copy of Open and Accountable Government to assist you as you undertake your responsibilities. I ask that you carefully read it, including elements that have been added to strengthen it, and
372 https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-health-mandate-letter 5/6 7/15/2020 Minister of Health Mandate Letter | Prime Minister of Canada ensure that your sta does so as well. I expect that in sta ng your o ces you will hire people who re ect the diversity of Canada, and that you will uphold principles of gender equality, disability equality, pay equity and inclusion.
Give particular attention to the Ethical Guidelines set out in Annex A of that document, which apply to you and your sta . As noted in the Guidelines, you must uphold the highest standards of honesty and impartiality, and both the performance of your o cial duties and the arrangement of your private a airs should bear the closest public scrutiny. This is an obligation that is not fully discharged by simply acting within the law.
I will note that you are responsible for ensuring that your Minister’s O ce meets the highest standards of professionalism and that it is a safe, respectful, rewarding and welcoming place for your sta to work.
I know I can count on you to ful ll the important responsibilities entrusted in you. It is incumbent on you to turn to me and the Deputy Prime Minister early and often to support you in your role as Minister.
Sincerely,
Rt. Hon. Justin Trudeau, P.C., M.P. Prime Minister of Canada
373 https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-health-mandate-letter 6/6 TAB 10, EXHIBIT J Incident reports of scientific studies available at https://pesticide-registry.canada.ca/en/incident- report-search.html mandated by the Pest Product Control Act and Pest Control Products Incident Reporting Regulations, SOR/2006-260
This is Exhibit J referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
374 9/10/2020 Incident Report Search Results Incident Report Search Results
Date received Date Application - received Incident Product name Product name number registrant - PMRA types Ingredients - English Ingredients - French - English - French
2007-7268 2007-10- Scientific DICAMBA (PRESENT AS ACID, DICAMBA (PRÉSENT SOUS FORM D'ACIDE, Rustler Rustler 04 study ESTER, SALTS)GLYPHOSATE D'ESTER, DES SELS)GLYPHOSATE Herbicide Herbicide (PRESENT AS ISOPROPYLAMINE (PRÉSENT SOUS FORME DESEL SALT OR ETHANOLAMINE SALT) D. ISOPROPYLAMINE OU DE SEL D'ETHANOLAMINE)
2008-4595 2008-10- Scientific GLYPHOSATE GLYPHOSATE Glyphosate Glyphosate 17 study Technical Technical (Wetcake) (Wetcake)
2011-0735 2011-01- Scientific GLYPHOSATE GLYPHOSATE TOUCHDOWN HERBICIDE 31 study TECHNICAL TECHNIQUE HERBICIDE TOUCHDOWN
2011-1836 2011-04- Scientific GLYPHOSATE GLYPHOSATE 26 study
2011-5827 2011-12- Scientific GLYPHOSATE (PRESENT AS GLYPHOSATE (PRÉSENT SOUS FORME MON 2139 MON 2139 05 study ISOPROPYLAMINE SALT OR DESEL D. ISOPROPYLAMINE OU DE SEL ETHANOLAMINE SALT) D'ETHANOLAMINE)
2011-5828 2011-12- Scientific GLYPHOSATE (PRESENT AS GLYPHOSATE (PRÉSENT SOUS FORME MON 2139 MON 2139 05 study ISOPROPYLAMINE SALT OR DESEL D. ISOPROPYLAMINE OU DE SEL ETHANOLAMINE SALT) D'ETHANOLAMINE)
2012-0718 2012-02- Scientific GLYPHOSATE (PRESENT AS GLYPHOSATE (PRÉSENT SOUS FORME MON 2139 MON 2139 15 study ISOPROPYLAMINE SALT OR DESEL DISOPROPYLAMINE OU DE SEL ETHANOLAMINE SALT) D'ETHANOLAMINE)
2012-0720 2012-02- Scientific GLYPHOSATE (PRESENT AS GLYPHOSATE (PRÉSENT SOUS FORME MON 2139 MON 2139 15 study ISOPROPYLAMINE SALT OR DESEL DISOPROPYLAMINE OU DE SEL ETHANOLAMINE SALT) D'ETHANOLAMINE)
2012-1439 2012-04- Scientific GLYPHOSATE GLYPHOSATE 11 study
2012-2839 2012-07- Scientific GLYPHOSATE (PRESENT AS GLYPHOSATE (PRÉSENT SOUS FORME TRAXION HERBICIDE 31 study POTASSIUM SALT) DESEL POTASSIUM) HERBICIDE TRAXION
2012-2840 2012-07- Scientific GLYPHOSATE (PRESENT AS GLYPHOSATE (PRÉSENT SOUS FORME TRAXION HERBICIDE 31 study POTASSIUM SALT) DESEL POTASSIUM) HERBICIDE TRAXION
375 1/1 TAB 11, EXHIBIT K Health Canada January 16, 2020 “Health Canada Statement on Glyphosate” published two weeks before the Federal Court hearing on the subject: https://www.canada.ca/en/health-canada/ news/2019/01/statement-from-health-canada-on- glyphosate.html
This is Exhibit K referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
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376 8/25/2020 Statement from Health Canada on Glyphosate - Canada.ca
Canada.ca > Departments and agencies > Health Canada Statement from Health Canada on Glyphosate
From: Health Canada
Statement
January 11, 2019 - Ottawa, ON - Health Canada
OTTAWA – Health Canada’s primary objective in regulating pesticides is to protect Canadians’ health and the environment. That is why the Department regularly reviews all pesticides to make sure that they continue to meet modern health and safety standards.
Following the release of the Department’s final re-evaluation decision on glyphosate in 2017, Health Canada received eight notices of objection. There have also been concerns raised publicly about the validity of some of the science around glyphosate in what is being referred to as the Monsanto Papers.
Health Canada scientists reviewed the information provided in these notices, and assessed the validity of any studies in question, to determine whether any of the issues raised would influence the results of the assessment and the associated regulatory decision.
After a thorough scientific review, we have concluded that the concerns raised by the objectors could not be scientifically supported when considering the entire body of relevant data. The objections raised did not create doubt or concern regarding the scientific basis for the 2017 re-evaluation decision for glyphosate. Therefore, the Department’s final decision will stand.
Health Canada follows a transparent and rigorous science-based regulatory process when making decisions about the safety of pesticides. As part of this process, Health Canada will publish its response to each notice of objection in the Pest Management 377 https://www.canada.ca/en/health-canada/news/2019/01/statement-from-health-canada-on-glyphosate.html 1/2 8/25/2020 Statement from Health Canada on Glyphosate - Canada.ca Regulatory Agency’s Public Registry on January 14.
Our scientists left no stone unturned in conducting this review. They had access to all relevant data and information from federal and provincial governments, international regulatory agencies, published scientific reports and multiple pesticide manufacturers. This includes the reviews referred to in the Monsanto Papers. Health Canada also had access to numerous individual studies and raw scientific data during its assessment of glyphosate, including additional cancer and genotoxicity studies. To help ensure an unbiased assessment of the information, Health Canada selected a group of 20 of its own scientists who were not involved in the 2017 re-evaluation to evaluate the notices of objection.
No pesticide regulatory authority in the world currently considers glyphosate to be a cancer risk to humans at the levels at which humans are currently exposed. We continue to monitor for new information related to glyphosate, including regulatory actions from other governments, and will take appropriate action if risks of concern to human health or the environment are identified.
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Date modified: 2019-01-11
378 https://www.canada.ca/en/health-canada/news/2019/01/statement-from-health-canada-on-glyphosate.html 2/2 TAB 12, EXHIBIT L Report of the United Nations Special Rapporteur on the Right to Food (excerpt)
This is Exhibit L referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa- Carleton, Ontario, this ___ day of December 2020
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379 United Nations A/HRC/43/44 General Assembly Distr.: General 21 January 2020
Original: English
Human Rights Council Forty-third session 24 February–20 March 2020 Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
Critical perspective on food systems, food crises and the future of the right to food
Report of the Special Rapporteur on the right to food*
Summary The present report marks the close of the Special Rapporteur’s mandate and serves as her final presentation to the Human Rights Council in her official capacity. Over the past six years, Hilal Elver has gained a unique insight into the global state of the right to food. Such knowledge has led her to conclude that, despite the Sustainable Development Goal of “zero hunger” and malnutrition by 2030, the realization of the right to food remains a distant, if not impossible, reality for far too many. In the present report, the Special Rapporteur offers a critical perspective on the trends that have led to this reality and a review of new developments that have the potential to change the status quo. She also looks to the future, highlighting the roles and responsibilities of key players in advancing the right to food. The recommendations set forth in the report are intended to facilitate the work of subsequent Special Rapporteurs and contribute to the mandate’s institutional memory. The Special Rapporteur therefore intends for the report to provide a foundation for those who wish to guarantee a world free from hunger and malnutrition for the next generation.
* Agreement was reached to publish the present report after the standard publication date owing to circumstances beyond the submitter’s control.
380 Contents Page I. Introduction ...... 3 II. Critical perspective: globalization and commodification of food systems ...... 4 A. Trade agreements, subsidies and neoliberalism ...... 4 B. Marginalization of smallholder farmers and peasants ...... 5 C. Rush to land ...... 6 D. Worker exploitation and exposure to dangerous pesticides ...... 7 E. “Supermarketization” of food and rising rates of malnutrition ...... 8 F. Loss of biodiversity and environmental degradation ...... 10 III. Severe food insecurity: hunger, starvation and famine ...... 11 A. Conflict and food crises ...... 11 B. Climate change and natural disasters ...... 13 IV. Looking to the future: recommendations for key actors to support the realization of the right to food ...... 14 A. Formally recognize economic, social and cultural rights in times of peace and conflict ...... 14 B. Implement a human rights-based approach ...... 15 C. Monitor rights and guarantee access to justice for extraterritorial violations ...... 15 D. Finance human rights institutions and remove the silos separating international organizations ...... 16 E. Adopt economic reform to address the poverty and inequality of marginalized populations ...... 17 F. Empower women and girls and promote gender diversity ...... 17 G. Promote youth in farming ...... 18 H. Invest responsibly in technology and regulate innovation ...... 18 I. Invest in agroecology and traditional knowledge ...... 19 J. Protect scientific integrity ...... 19 K. Enhance the role of civil society and protect human rights defenders against violence ...... 19 L. Promote food citizenship in times of urbanization ...... 20 V. Conclusion ...... 20
381 New developments 27. Efforts to change the status quo are under way at the international level, as a draft legally binding agreement on business activities and human rights is currently under negotiation.18 It is intended to prevent violations and abuses, ensure access to justice and remedies for victims, and promote and strengthen international cooperation. More than 400 civil society organizations support this initiative, but the developed countries have so far declined to do so. The European Union recently engaged more positively in response to pressure from civil society.19 28. Generally, States have been slow to adopt appropriate legal protections for workers. A recent wave of litigation focused on glyphosate, the active ingredient in the popular Roundup weed killer, finally catalysed State-implemented protection in the form of bans, restrictions and even monetary compensation for harm caused.20 Nearly 20 countries have adopted or announced future safeguards since the International Agency for Research on Cancer reported that the chemical was “probably carcinogenic” in 2015.21 Despite this, glyphosate bans continue to be globally controversial.22 29. FAO recently conducted a legislative study to identify problems in the agriculture, forestry and fisheries sectors and to offer guidance to States on applicable standards.23 However, violations remain particularly severe: reports have exposed illegal wage deductions on Sri Lankan tea estates that had been certified as slavery-free by Rainforest Alliance and Fairtrade;24 human rights violations on plantations certified as sustainable by the Roundtable on Sustainable Palm Oil;25 and slave labour, trafficking, and human rights abuses that continue throughout the fisheries industry as well (A/HRC/40/56).
E. “Supermarketization” of food and rising rates of malnutrition
30. All forms of malnutrition continue to threaten the lives and livelihoods of populations around the world. Children remain the most vulnerable to malnutrition, as their right to food remains unrealized, despite added protections set forth in the Convention on the Rights of the Child and in national legal frameworks. According to the World Health Organization (WHO), malnutrition is the underlying contributing factor in approximately 45 per cent of all child deaths (A/71/282, para. 13). 31. As State policies promote commodity foods for export, local markets are flooded by subsidized, processed foods that contribute to the explosion of non-communicable diseases and malnutrition. Countries that embrace market deregulation experience a faster increase in unhealthy food consumption (A/71/282, para. 29), as unhealthy foods are more readily
18 See open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, “Revised draft of a legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” (16 July 2019). 19 Lúcia Ortiz and Anne van Schaik, “Why does the European Union fear a binding human rights treaty on transnational corporations?”, Friends of the Earth International (11 July 2018). 20 See Reuters, “Bayer expects significant surge in number of U.S. glyphosate cases” (16 October 2019). 21 See Sustainable Pulse, “Glyphosate herbicides now banned or restricted in 20 countries worldwide” (28 May 2019); and The Guardian, “Germany to ban use of glyphosate weedkiller by end of 2023” (4 September 2019). 22 Glyphosate is not currently banned in the European Union or by the United States Environmental Protection Agency and Roundup and other glyphosate-based herbicides are available throughout the United States. 23 See Sisay Yeshanew, Regulating Labour and Safety Standards in the Agriculture, Forestry and Fisheries Sectors (Rome, FAO, 2018). 24 See Lisa Fuller, “Exclusive: tea label giants vow probe after Sri Lanka labor abuse exposé”, Reuters (27 March 2019). 25 See Rainforest Action Network, “Palm oil giant Indofood sanctioned over labor rights violations” (5 Nov. 2018).
382 TAB13, EXHIBIT M
Charles Benbrook, “Shining a Light on Glyphosate-Based Herbicide Hazard, Exposures and Risk: Role of Non-Hodgkin Lymphoma Litigation in the USA,” European Journal of Risk Regulation, Vol. 11:3, 503.
This is Exhibit M referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
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383 https://doi.org/10.1017/err.2020.16
. Shining a Light on Glyphosate-Based Herbicide Hazard, Exposures and Risk: Role of Non-Hodgkin Lymphoma Litigation in the USA
Charles BENBROOK* https://www.cambridge.org/core/terms
Roundup, and other glyphosate-based herbicides, are the most heavily used pesticides in the history of the USA and globally. In March 2015, the International Agency for Research on Cancer (IARC) classified glyphosate as a “probable human carcinogen”. A portion of the 695,000 Americans then living in 2015 with non-Hodgkin lymphoma (NHL) became aware of IARC’s decision. Several thousand Roundup–NHL lawsuits had been filed by the end of 2017, rising to 18,400 by July 2019 and 42,000 by November 2019. Three cases have gone to trial, each won by the plaintiffs. The author has served as an expert witness for the plaintiffs in this litigation and has been compensated for his time spent. The impact of the litigation on the independent assessment of the science useful in determining whether glyphosate and glyphosate-based herbicide exposures are linked to NHL is reviewed, as is why the US Environmental Protection Agency (EPA) and IARC reached such different judgements regarding glyphosate human cancer hazard and risk. Two important “lessons learned” regarding the EPA versus IARC assessment of glyphosate cancer hazard and risk are highlighted. The first arises from differences in the magnitude of applicator risks from mostly dermal exposures to formulated glyphosate-based herbicides compared to just dietary exposures to technical glyphosate. The second relates to missed opportunities to markedly lower applicator exposures and risks with little or no impact on sales via reformulation, added warnings and worker safety provisions, company-driven stewardship programmes and greater determination by the EPA in the 1980s to compel Monsanto to add common-sense worker protection provisions onto Roundup labels (eg “wear gloves when applying this product”). Policy reforms designed to alleviate systemic problems with how pesticide hazards, exposures and risks are analysed, regulated and mitigated are described.
* Project Coordinator, The Heartland Study and Benbrook Consulting Services, Port Orchard, WA, USA;
. IP address: 216.209.191.52, on 08 Oct 2020 at 16:00:21, subject to the Cambridge Core terms of use , available email: [email protected]. Thanks to Yogi Hendin and Alessandra Arcuri for organising the 6 June 2019 symposium in Rotterdam “The Science and Politics of Glyphosate” (
European Journal of Risk Regulation, 11 (2020), pp. 498–519 doi:10.1017/err.2020.16 © The Author(s) 2020. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.384 Downloaded from 504 European Journal of Risk Regulation Vol. 11:3 https://doi.org/10.1017/err.2020.16 . https://www.cambridge.org/core/terms
Figure 1: Non-Hodgkin lymphoma lawsuits, milestones and trends.
trial was completed and the case went to the jury. Their verdict and award were announced by Judge Chhabria on 27 March 2018. The jury awarded Mr Hardeman US$5.1 million in compensatory damages and US$75 million in punitive damages. In response to a post-verdict motion by Bayer/ Monsanto attorneys, Judge Chhabria modestly altered the compensatory damages award and reduced the punitive damages to US$20 million, for a total award to Mr Hardeman of US$25.3 million. In allowing US$20 million in punitive damages to stand, Judge Chhabria noted Monsanto’s efforts to shield the EPA from data raising new questions about Roundup’s safety and the company’s aggressive efforts to influence scientific discourse and the glyphosate-focused content of peer-reviewed journals. Post-Hardeman, potential plaintiffs and law firms became more confident of the scientific merits of the litigation. As a result of the Johnson and Hardeman verdicts and awards, the number of cases filed rose steadily in 2018 and 2019 from a few thousand in 2017, to around 4500 at the time of the Johnson verdict in mid-2018, to over 42,000 in November 2019, as shown in Figure 1.
c. Pilliod v. Monsanto Just weeks after the conclusion of the Hardeman federal MDL trial, a third case in
. IP address: 216.209.191.52, on 08 Oct 2020 at 16:00:21, subject to the Cambridge Core terms of use , available California State Court began. Alva and Alberta Pilliod had both been diagnosed with the same form of NHL.21 This married couple had sprayed Roundup several days per year on their rural California properties for over two decades. They often walked together, each with a handheld sprayer, spot-spraying berry bushes and other weeds and vegetation choking the trails they had created and maintained. On some occasions, they wore shorts and flip-flops as they sprayed Roundup on encroaching weeds along trails. https://www.cambridge.org/core
21 Access all Pilliod case and trial documents at
385 Downloaded from 2020 Shining a Light on Glyphosate-Based Herbicide Hazard, Exposures and Risk 505
Judge Winifred Smith presided over the Pilliod trial. The plaintiff attorneys presented their case in about one month, beginning on 28 March 2019. The defence attorneys presented their case in about one week. Jury deliberations began on 5 May 2018, and https://doi.org/10.1017/err.2020.16 . the verdict and monetary awards were announced on 13 May. The Pilliods received a stunning punitive damage award of US$2 billion dollars. In response to post-trial motions, Judge Smith reduced the combined (Alva and Alberta) punitive damage award to US$69 million, citing Supreme Court guidance that classifies any punitive damage award greater than seven times the corresponding compensatory damages award as excessive and likely in need of judicial review and adjustment.
2. Why such large awards? https://www.cambridge.org/core/terms In her post-trial order, Judge Smith set forth what she regarded as part of the justification for a still significant US$69 million punitive damage award:
In this case there was clear and convincing evidence that Monsanto made efforts to impede, discourage, or distort scientific inquiry and the resulting science.22
Comparable sentiments had been voiced earlier by Judge Curtis Karnow of the Superior Court of San Francisco County, California. He presided over several pre-trial motions setting forth the ground rules governing the Johnson trial. In his 17 May 2018 order in response to multiple pre-trial motions, Judge Karnow wrote:
The internal correspondence noted by Johnson could support a jury finding that Monsanto had long been aware of the risk that its glyphosate-based herbicides are carcinogenic, and more dangerous than glyphosate in isolation, but has continuously sought to influence the scientific literature to prevent its internal concerns from reaching the public sphere and to bolster its defenses in products liability actions.23
Table 1 provides an overview of the compensatory and punitive damage awards in the above three trials as initially awarded by the jury, and later adjusted by the trial judges. The bottom two lines in Table 1 provide average compensatory, punitive and total damage awards per plaintiff, highlighting the sizable reduction in the punitive damage awards from an average of US$581 million per plaintiff by juries to US$32.2 million after adjustments by the three judges. . IP address: 216.209.191.52, on 08 Oct 2020 at 16:00:21, subject to the Cambridge Core terms of use , available On average, across the first four plaintiffs whose cases have gone to trial, the total awards have been US$47.6 million per person. After reductions by the three judges, the average ratio of punitive-to-compensatory damage awards is about 2:1, well below the threshold of 7:1 set by the Supreme Court for review of punitive damage awards.
22 Judge Winifred Smith, Assistant Presiding Judge for the Superior Court of Alameda County, California, 25 July 2019 Post-trial Order, Pilliod v. Monsanto Company:
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Table 1. Overview of compensatory and punitive damages in non-Hodgkin lymphoma–glyphosate cases
Compensatory Punitive
https://doi.org/10.1017/err.2020.16 Case Award damages damages Total award . Dewayne Jury award US$39.25 million US$250 US$289 million Johnson million v. Monsanto Court-adjusted US$39.25 million US$39.25 US$78.5 million Company award million Edwin Jury award US$5.1 million US$75 US$80.1 million Hardeman million v. Monsanto Court-adjusted US$5.27 million US$20 US$25.27 million Company award million Pilliod v. Albert Jury award US$18.05 million US$1 billion US$1,018,500,000 https://www.cambridge.org/core/terms Monsanto Pilliod Court-adjusted US$6.1 million US$24.6 US$30.7 million Company award million Alva Jury award US$37.2 million US$1 billion US$1,037,200,000 Pilliod Court-adjusted US$11.25 million US$44.8 US$56 million award million Average Jury award US$24.9 million US$581 US$606.2 million per plaintiff million Court-adjusted award US$15.5 million US$32.2 US$47.6 million million
II. IMPACT OF ROUNDUP–NHL LITIGATION ON GBH RISK ASSESSMENT SCIENCE From the mid-1970s through early 2015, few scientists, doctors, pesticide users, regulators and environmentalists were concerned about Roundup use, exposures and risks to the general public. It was widely stated by industry experts that Roundup breaks down in the environment naturally to harmless, ubiquitous elements. Despite very limited testing of food for glyphosate residues by the US government,24 there was no reason to expect the presence of glyphosate in food above very low, rarely detectable levels mostly from drift (except for raw soybeans). This is because the herbicide could only be applied before crop germination – and hence months before the edible portion of a crop is formed and ready for harvest. The frequency and levels of glyphosate residues in certain foods changed with the registration of pre-harvest crop desiccation uses of GBHs in the 1980s and 1990s and genetically engineered Roundup Ready (RR) crops in the second half of the 1990s. Since the mid-2000s, glyphosate dietary exposures have been common, and levels have been rising in the . IP address: 216.209.191.52, on 08 Oct 2020 at 16:00:21, subject to the Cambridge Core terms of use , available urine of Americans.25 In addition, in the early 1980s, the EPA set a very high chronic reference dose (cRfD; also known as an “acceptable daily intake” (ADI) in much of the rest of the world) of
24 In 2011, the US Department of Agriculture’s Pesticide Data Program tested 300 samples of soybeans, the majority of which were genetically engineered to resist post-emergent applications of GBHs. Glyphosate was found in 90.3% of samples at an average level of 1.9 ppm, and glyphosate’s major metabolite aminomethylphosphonic acid (AMPA) was present in 95.7% of the samples at an average level of 2.3 ppm. https://www.cambridge.org/core 25 S Mills et al, “Excretion of the Herbicide Glyphosate in Older Adults between 1993 and 2016” (2017) 318 JAMA 1610.
387 Downloaded from 2020 Shining a Light on Glyphosate-Based Herbicide Hazard, Exposures and Risk 515
The most important reason why the POEA-based surfactants in US Roundup products are more toxic than technical glyphosate is the proclivity of the POEA in Roundup to increase dermal (and weed leaf) absorption rates. Once through the human epidermis, https://doi.org/10.1017/err.2020.16 . POEA-based GBHs also promote the movement of glyphosate through cell membranes, where it can then damage DNA via oxidative stress or some form of chromosomal or genetic aberration, including possibly epigenetic changes.48 Regarding Factor 2, the EPA’s assessment of the genotoxicity of Roundup and other GBHs was limited predominately to unpublished, registrant-submitted studies. Some 94 of the 95 registrant-submitted glyphosate and GBH genotoxicity assays were negative.49 Nearly half were reverse bacterial mutation studies (ie Ames tests) unlikely to produce positive results because bacteria lack mitochondria, and hence are not subject to oxidative
https://www.cambridge.org/core/terms stress caused by alterations in mitochondrial function, as is the case within mammalian cells.50 The IARC, however, focused on a much larger and more diverse body of published genotoxicity assays. Nearly 76% of the 191 assays reviewed by the IARC reported one or more positive genotoxicity response. The dramatic differences in the genotoxicity databases relied on by the EPA and IARC are summarised in Figures 2 and 3,andthey explain in large part why the EPA and IARC reached such different conclusions in the case of glyphosate and GBH genotoxicity. Incidentally, over two dozen genotoxicity studies conducted with glyphosate, GBHs or both have been published since the EPA and IARC conducted their reviews; all but one reported one or more positive assay.51 Regarding Factor 3, the absence of high-quality mixer-loader and applicator exposure studies that compare various types of application equipment and varying combinations of PPE is one of the most glaring deficiencies in the overall glyphosate and GBH database. Exposure estimates cited or made by experts during the first three trials relied predominantly on the predictive operator exposure model (POEM)52 and a Monsanto- commissioned UK field study that partially relied on POEM simulations. The UK study estimated exposures to different parts of the body per hour of spraying by application method and type of equipment, by rate of application and conditions during the spray application, and in the presence/absence of PPE. It compared estimated exposures following six hours of spraying relative to levels of exposure regarded by UK regulators as acceptable. Multiple scenarios resulted in applicator exposures well over acceptable limits, especially when applications were made without gloves.
48 D Kubsad et al, “Assessment of Glyphosate Induced Epigenetic Transgenerational Inheritance of Pathologies and ” . IP address: 216.209.191.52, on 08 Oct 2020 at 16:00:21, subject to the Cambridge Core terms of use , available Sperm Epimutations: Generational Toxicology (2019) 9 Scientific Reports 6372. 49 This and other comparisons of the EPA’s and IARC’s assessments of glyphosate and GBH genotoxicity are from C Benbrook “How Did the U.S. EPA and IARC Reach Diametrically Opposed Conclusions on the Genotoxicity of Glyphosate-Based Herbicides?”, supra, note 38. 50 Bailey et al, “Chronic Exposure to a Glyphosate-Containing Pesticide Leads to Mitochondrial Dysfunction and Increased Reactive Oxygen Species Production in Caenorhabditis elegans” (2018) 57 Environmental Toxicology & Pharmacology 46. 51 See table 4 in C Benbrook “How Did the U.S. EPA and IARC Reach Diametrically Opposed Conclusions on the Genotoxicity of Glyphosate-Based Herbicides?”, supra, note 38, for the list of 27 genotoxicity assays published after the release of the EPA and IARC reviews and through late 2018. https://www.cambridge.org/core 52 Access documentation and the POEM at
388 Downloaded from 516 European Journal of Risk Regulation Vol. 11:3 https://doi.org/10.1017/err.2020.16 .
Figure 2: Number and type of assays cited by the US Environmental Protection Agency (EPA) and the International Agency for Research on Cancer (IARC). https://www.cambridge.org/core/terms
Figure 3: Number of regulatory versus public literature assays cited by the US Environmental Protection Agency or the International Agency for Research on Cancer with one or more positive result for genotoxicity.
The exposure assessment branch of the EPA’s Office of Pesticide Programs has developed detailed surrogate reference values for worker exposures based on type of application, methods of application and PPE.53 While it is an imperfect basis for quantifying mixer-loader and applicator exposures, crude approximations of exposures to glyphosate following a workday across several common application scenarios can be calculated. Figure 4 compares simulated occupational exposures based on different application equipment and scenarios, noting as well the EPA’s most recent estimate of adult dietary exposures to glyphosate and acceptable daily exposures (glyphosate’s cRfD).54 . IP address: 216.209.191.52, on 08 Oct 2020 at 16:00:21, subject to the Cambridge Core terms of use , available Some insights are clear: handheld and backpack sprayers result in far higher exposures than in the case of tractors or spray rigs with glass–steel cabs and air filtration systems. On days when something goes wrong while applying a GBH through a handheld wand (a leaky valve, gusts of wind, pinhole leaks in a hose, excessive application rate) exposures can be vastly higher.
53 Accessible at
389 Downloaded from TAB 14, EXHIBIT N Biography of lead author Christopher J Portier and 93 other scientists and published in a peer-reviewed specialty journal of the British Medical Journal distinguishing the approach to seller-sponsored studies used by World Health Organization’s International Agency for Research on Cancer compared to the European Food Safety Agency, PMRA’s:: Differences in the carcinogenic evaluation of glyphosate between the International Agency for Research on Cancer (IARC) and the European Food Safety Authority (EFSA).
This is Exhibit N referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
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390 Commentary J Epidemiol Community Health: first published as 10.1136/jech-2015-207005 on 3 March 2016. Downloaded from
supports that substance’s potential to Differences in the carcinogenic cause or not cause cancer in humans. For Monograph 112,2 17 expert scien- evaluation of glyphosate between the tists evaluated the carcinogenic hazard for four insecticides and the herbicide glypho- International Agency for Research on sate.3 The WG concluded that the data for glyphosate meet the criteria for classi- Cancer (IARC) and the European Food fication as a probable human carcinogen. The European Food Safety Authority Safety Authority (EFSA) (EFSA) is the primary agency of the European Union for risk assessments 1 2 3 Christopher J Portier, Bruce K Armstrong, Bruce C Baguley, regarding food safety. In October 2015, 4 5 6 7 EFSA reported4 on their evaluation of the Xaver Baur, Igor Belyaev, Robert Bellé, Fiorella Belpoggi, 5 8 9 10 Renewal Assessment Report (RAR) for Annibale Biggeri, Maarten C Bosland, Paolo Bruzzi, glyphosate that was prepared by the Lygia Therese Budnik,11 Merete D Bugge,12 Kathleen Burns,13 Rapporteur Member State, the German 14 15 16 Federal Institute for Risk Assessment Gloria M Calaf, David O Carpenter, Hillary M Carpenter, ‘ 17 18 19 (BfR). EFSA concluded that glyphosate is Lizbeth López-Carrillo, Richard Clapp, Pierluigi Cocco, unlikely to pose a carcinogenic hazard to Dario Consonni,20 Pietro Comba,21 Elena Craft,22 humans and the evidence does not 23 24 25 support classification with regard to its Mohamed Aqiel Dalvie, Devra Davis, Paul A Demers, carcinogenic potential’. Addendum 1 (the 26 27 28 Anneclaire J De Roos, Jamie DeWitt, Francesco Forastiere, BfR Addendum) of the RAR5 discusses the Jonathan H Freedman,29 Lin Fritschi,30 Caroline Gaus,31 scientific rationale for differing from the 32 33 34 IARC WG conclusion. Julia M Gohlke, Marcel Goldberg, Eberhard Greiser, Serious flaws in the scientific evaluation 35 36 37 Johnni Hansen, Lennart Hardell, Michael Hauptmann, in the RAR incorrectly characterise the Wei Huang,38 James Huff,39 Margaret O James,40 C W Jameson,41 potential for a carcinogenic hazard from 42 43 44 exposure to glyphosate. Since the RAR is Andreas Kortenkamp, Annette Kopp-Schneider, Hans Kromhout, the basis for the European Food Safety Marcelo L Larramendy,45 Philip J Landrigan,46 Lawrence H Lash,47 Agency (EFSA) conclusion,4 it is critical Dariusz Leszczynski,48 Charles F Lynch,49 Corrado Magnani,50 that these shortcomings are corrected. 51 52 53 Daniele Mandrioli, Francis L Martin, Enzo Merler, THE HUMAN EVIDENCE Paola Michelozzi,54 Lucia Miligi,55 Anthony B Miller,56 EFSA concluded ‘that there is very limited 57 58 59 evidence for an association between Dario Mirabelli, Franklin E Mirer, Saloshni Naidoo, glyphosate-based formulations and 60 61 62 Melissa J Perry, Maria Grazia Petronio, Roberta Pirastu, non-Hodgkin lymphoma (NHL), overall 63 64 65 inconclusive for a causal or clear associa-
Ralph J Portier, Kenneth S Ramos, Larry W Robertson, http://jech.bmj.com/ 66 67 68 69 tive relationship between glyphosate and Theresa Rodriguez, Martin Röösli, Matt K Ross, Deodutta Roy, cancer in human studies’. The BfR 70 71 72 73 Ivan Rusyn, Paulo Saldiva, Jennifer Sass, Kai Savolainen, Addendum (p. ii) to the EFSA report 74 75 76 explains that ‘no consistent positive asso- Paul T J Scheepers, Consolato Sergi, Ellen K Silbergeld, ’ ‘ 77 78 79 ciation was observed and the most Martyn T Smith, Bernard W Stewart, Patrice Sutton, powerful study showed no effect’. The Fabio Tateo,80 Benedetto Terracini,81 Heinz W Thielmann,82 IARC WG concluded there is limited evi- 83 84 85 86 dence of carcinogenicity in humans which on March 16, 2020 by guest. Protected copyright. David B Thomas, Harri Vainio, John E Vena, Paolo Vineis, “ 87 88 means A positive association has been Elisabete Weiderpass, Dennis D Weisenburger, observed between exposure to the agent Tracey J Woodruff,89 Takashi Yorifuji,90 Il Je Yu,91 Paola Zambon,92 and cancer for which a causal interpret- 93 94 ation is considered by the Working Group Hajo Zeeb, Shu-Feng Zhou to be credible, but chance, bias or con- founding could not be ruled out with rea- The International Agency for Research on agents that cause cancer in humans and sonable confidence.”1 Cancer (IARC) Monographs Programme has evaluated about 1000 agents since The finding of limited evidence by the identifies chemicals, drugs, mixtures, 1971. Monographs are written by ad hoc IARC WG was for NHL, based on high- occupational exposures, lifestyles and per- Working Groups (WGs) of international quality case–control studies, which are sonal habits, and physical and biological scientific experts over a period of about particularly valuable for determining the 12 months ending in an eight-day carcinogenicity of an agent because their meeting. The WG evaluates all of the design facilitates exposure assessment and fi For numbered af liations see end of article. publicly available scientific information on reduces the potential for certain biases. each substance and, through a transparent The Agricultural Health Study6 (AHS) Correspondence to Dr Christopher J Portier, 1 Environmental Health Consultant, Thun, CH-3600, and rigorous process, decides on the was the only cohort study available pro- Switzerland; [email protected] degree to which the scientific evidence viding information on the carcinogenicity Portier CJ, et al. J Epidemiol Community391 Health August 2016 Vol 70 No 8 741 Commentary J Epidemiol Community Health: first published as 10.1136/jech-2015-207005 on 3 March 2016. Downloaded from of glyphosate. The study had a null or above the limit dose/maximum toler- EC regulations cited in the RAR18 (see finding for NHL (RR 1.1, 0.7–1.9) with ated dose (MTD), lack of preneoplastic p.375). Trend tests are more powerful no apparent exposure–response relation- lesions and/or being within historical than pairwise comparisons, particularly ship in the results. Despite potential control range’. The IARC WG review for rare tumours where data are sparse. advantages of cohort versus case–control found a significant positive trend for renal Historical control data should be from studies, the AHS had only 92 NHL cases tumours in male CD-1 mice,12 a rare studies in the same time frame, for the in the unadjusted analysis as compared to tumour, although no comparisons of any same animal strain, preferably from the 650 cases in a pooled case–control ana- individual exposure group to the control same laboratory or the same supplier and lysis from the USA.7 In addition, the group were statistically significant. The preferably reviewed by the same patholo- median follow-up time in the AHS was WG also identified a significant positive gist.17 18 While the EFSA final peer 6.7 years, which is unlikely to be long trend for hemangiosarcoma in male CD-1 review4 mentions the use of historical enough to account for cancer latency.8 mice,13 again with no individual exposure control data from the original laboratory, The RAR classified all of the case– group significantly different from con- no specifics are provided and the only control studies as ‘not reliable,’ because, trols. Finally, the WG also saw a signifi- referenced historical control data24 are in for example, information on glyphosate cant increase in the incidence of the BfR addendum.5 One of the mouse exposure, smoking status and/or previous pancreatic islet cell adenomas in two studies12 was clearly done before this his- – diseases had not been assessed. In most studies in male Sprague-Dawley rats.14 16 torical control database was developed, cases, this is contrary to what is actually In one of these rat studies, thyroid gland one study (Sugimoto. Unpublished, 1997) described in the publications. adenomas in females and liver adenomas used Crj:CD-1 mice rather than Crl:CD-1 Well-designed case–control studies are in males were also increased. By the IARC mice, and one study13 did not specify the recognised as strong evidence and rou- review criteria,1 this constitutes sufficient substrain and was reported in 1993 (prob- tinely relied on for hazard evaluations.910 evidence in animals. ably started prior to 1988). Hence, only a The IARC WG carefully and thoroughly The IARC WG reached this conclusion single study (Unknown. Unpublished, evaluated all available epidemiology data, using data that were publicly available in 2009) used the same mouse strain as the considering the strengths and weaknesses sufficient detail for independent scientific cited historical controls, but was reported of each study. This is key to determining evaluation (a requirement of the IARC more than 10 years after the historical that the positive associations seen in the Preamble1). On the basis of the BfR control data set was developed. case–control studies are a reliable indica- Addendum, it seems there were three add- The RAR dismissed the slightly tion of an association and not simply due itional mouse studies and two additional increased tumour incidences in the studies to chance or methodological flaws. To rat studies that were unpublished and considered because they occurred “only at provide a reasonable interpretation of the available to EFSA. Two of the additional dose levels at or above the limit dose/ findings, an evaluation needs to properly studies were reported to have a significant maximum tolerated dose (MTD)”, and weight studies according to quality rather trend for renal tumours, one in CD-1 mice because there was a lack of preneoplastic than simply count the number of positives (Sugimoto. 18-Month Oral Oncogenicity lesions. Exceeding the MTD is demon- and negatives. The two meta-analyses Study in Mice. Unpublished, designated strated by an increase in mortality or cited in the IARC Monograph11 are excel- ASB2012–11493 in RAR. 1997), and one other serious toxicological findings at the lent examples of objective evaluations and in Swiss-Webster mice (Unknown. A highest dose, not by a slight reduction in show a consistent positive association chronic feeding study of glyphosate body weight. No serious toxicological between glyphosate and NHL. (roundup technical) in mice. Unpublished, findings were reported at the highest The final conclusion5 (Addendum 1, designated ABS2012–11491 in RAR. doses for the mouse studies in the RAR. http://jech.bmj.com/ p.21) that “there was no unequivocal evi- 2001). One of these studies (Sugimoto. While some would argue that these high dence for a clear and strong association of Unpublished, 1997) also reported a signifi- doses could cause cellular disruption (eg, NHL with glyphosate” is misleading. cant trend for hemangiosarcoma. The regenerative hyperplasia) leading to IARC, like many other groups, uses three RAR also reported two studies in CD-1 cancer, no evidence of this was reported levels of evidence for human cancer data.1 mice showing significant trends for malig- in any study. Finally, a lack of preneoplas- Sufficient evidence means ‘that a causal nant lymphoma (Sugimoto. Unpublished, tic lesions for a significant neoplastic relationship has been established’ between 1997; Unknown. Glyphosate Technical: finding is insufficient reason to discard the on March 16, 2020 by guest. Protected copyright. glyphosate and NHL. BfR’s conclusion is Dietary Carcinogencity Study in finding. equivalent to deciding that there is not the Mouse. Unpublished, designated sufficient evidence. Legitimate public ABS2012–11492 in RAR. 2009). MECHANISTIC INFORMATION health concerns arise when ‘causality is The RAR dismissed the observed trends The BfR Addendum dismisses the IARC credible’, that is, when there is limited evi- in tumour incidence because there are no WG finding that ‘there is strong evidence dence of carcinogenicity. individual treatment groups that are sig- that glyphosate causes genotoxicity’ by nificantly different from controls and suggesting that unpublished evidence not EVIDENCE FROM ANIMAL because the maximum observed response seen by the IARC WG was overwhelm- CARCINOGENICITY STUDIES is reportedly within the range of the his- ingly negative and that, since the reviewed EFSA concluded ‘No evidence of carcino- torical control data (Table 5.3–1, p.90). studies were not done under guideline genicity was confirmed by the majority of Care must be taken in using historical principles, they should get less weight. To the experts (with the exception of one control data to evaluate animal carcino- maintain transparency, IARC reviews only minority view) in either rats or mice due genicity data. In virtually all guide- publicly available data. The use of confi- to a lack of statistical significance in pair- lines,11718scientific reports19 and dential data submitted to the BfR makes it – wise comparison tests, lack of consistency publications20 23 on this issue, the recom- impossible for any scientist not associated in multiple animal studies and slightly mended first choice is the use of concur- with BfR to review this conclusion. increased incidences only at dose levels at rent controls and trend tests, even in the Further weakening their interpretation, 742392 Portier CJ, et al. J Epidemiol Community Health August 2016 Vol 70 No 8 Commentary J Epidemiol Community Health: first published as 10.1136/jech-2015-207005 on 3 March 2016. Downloaded from
the BfR did not include evidence of where financial support, conflicts of inter- studies, hemangiosarcoma in two chromosomal damage from exposed est and affiliations of authors are fully dis- mouse studies and malignant lymph- humans or human cells that were high- closed. This is in direct contrast to the oma in two mouse studies. Thus, EFSA lighted in Tables 4.1 and 4.2 of the IARC IARC WG evaluation listing all authors, incorrectly discarded all findings of Monograph 3 all publications and public disclosure of glyphosate-induced cancer in animals The BfR confirms (p.79) that the pertinent conflicts of interest prior to the as chance occurrences. studies evaluated by the IARC WG on WG meeting.27 ▸ EFSA ignored important laboratory oxidative stress were predominantly posi- Several guidelines have been devised for and human mechanistic evidence of tive but does not agree that this is strong conducting careful evaluation and analysis genotoxicity. support for an oxidative stress mechan- of carcinogenicity data, most after con- ▸ EFSA confirmed that glyphosate ism. They minimise the significance of sultation with scientists from around the induces oxidative stress but then, these findings predominantly because of a world. Two of the most widely used having dismissed all other findings of lack of positive controls in some studies guidelines in Europe are the OECD guid- possible carcinogenicity, dismissed this and because many of the studies used gly- ance on the conduct and design of finding on the grounds that oxidative phosate formulations and not pure gly- chronic toxicity and carcinogenicity stress alone is not sufficient for car- phosate. In contrast, the WG concluded studies17 and the European Chemicals cinogen labelling. that (p.77) ‘Strong evidence exists that Agency Guidance on Commission The most appropriate and scientifically glyphosate, AMPA and glyphosate-based Regulation (EU) No 286/2011;18 both are based evaluation of the cancers reported formulations can induce oxidative stress’. cited in the RAR. The methods used for in humans and laboratory animals as well From a scientific perspective, these types historical controls and trend analysis are as supportive mechanistic data is that gly- of mechanistic studies play a key role in inconsistent with these guidelines. phosate is a probable human carcinogen. distinguishing between the effects of mix- Owing to the potential public health On the basis of this conclusion and in the tures, pure substances and metabolites. impact of glyphosate, which is an exten- absence of evidence to the contrary, it is Finally, we strongly disagree that data sively used pesticide, it is essential that all reasonable to conclude that glyphosate from studies published in the peer- scientific evidence relating to its possible formulations should also be considered reviewed literature should automatically carcinogenicity is publicly accessible and likely human carcinogens. The CLP receive less weight than guideline studies. reviewed transparently in accordance with Criteria18 (Table 3.6.1, p.371) allow for a Compliance with guidelines and Good established scientific criteria. similar classification of Category 1B when Laboratory Practice does not guarantee there are ‘studies showing limited evi- validity and relevance of the study design, SUMMARY dence of carcinogenicity in humans statistical rigour and attention to sources The IARC WG concluded that glyphosate together with limited evidence of carcino- of bias.25 26 The majority of research after is a ‘probable human carcinogen’, putting genicity in experimental animals’. the initial marketing approval, including it into IARC category 2A due to sufficient In the RAR, almost no weight is given epidemiology studies, will be conducted evidence of carcinogenicity in animals, to studies from the published literature in research laboratories using various limited evidence of carcinogenicity in and there is an over-reliance on non- models to address specific issues related to humans and strong evidence for two car- publicly available industry-provided toxicity, often with no testing guidelines cinogenic mechanisms. studies using a limited set of assays that available. Peer-reviewed and published ▸ The IARC WG found an association define the minimum data necessary for findings have great value in understanding between NHL and glyphosate based the marketing of a pesticide. The IARC mechanisms of carcinogenicity and should on the available human evidence. WG evaluation of probably carcinogenic http://jech.bmj.com/ be given appropriate weight in an evalu- ▸ The IARC WG found significant car- to humans accurately reflects the results of ation based on study quality, not just on cinogenic effects in laboratory animals published scientific literature on glypho- compliance with guideline rules. for rare kidney tumours and heman- sate and, on the face of it, unpublished giosarcoma in two mouse studies and studies to which EFSA refers. GENERAL COMMENTS benign tumours in two rat studies. Most of the authors of this commentary Science moves forward on careful evalua- ▸ The IARC WG concluded that there previously expressed their concerns to
tions of data and a rigorous review of was strong evidence of genotoxicity EFSA and others regarding their review of on March 16, 2020 by guest. Protected copyright. findings, interpretations and conclusions. and oxidative stress for glyphosate, glyphosate28 to which EFSA has published An important aspect of this process is entirely from publicly available a reply.29 This commentary responds to transparency and the ability to question or research, including findings of DNA the EFSA reply. debate the findings of others. This ensures damage in the peripheral blood of The views expressed in this editorial are the validity of the results and provides a exposed humans. the opinion of the authors and do not strong basis for decisions. Many of the The RAR concluded5 (Vol. 1, p.160) imply an endorsement or support for elements of transparency do not exist for that ‘classification and labelling for car- these opinions by any organisations to the RAR.5 For example, citations for cinogenesis is not warranted’ and ‘glypho- which they are affiliated. almost all references, even those from the sate is devoid of genotoxic potential’. fi ▸ 4 fi open scienti c literature, have been EFSA classi ed the human evidence fi ‘ ’ Author af liations redacted. The ability to objectively evalu- as very limited and then dismissed 1Environmental Health Consultant, Thun, Switzerland ate the findings of a scientific report any association of glyphosate with 2The University of Sydney, Sydney, New South Wales, requires a complete list of cited support- cancer without clear explanation or Australia fi 3The University of Auckland, Auckland, New Zealand ing evidence. As another example, there justi cation. 4 ▸ Charité University Medicine Berlin, Berlin, Germany are no authors or contributors listed for Ignoring established guidelines cited in 5Cancer Research Institute, Bratislava, Slovak Republic either document, a requirement for publi- their report, EFSA dismissed evidence 6Sorbonne Universités, UPMC Univ Paris 06, cation in virtually all scientific journals of renal tumours in three mouse UMR8227, Roscoff, France Portier CJ, et al. J Epidemiol Community Health August 2016 Vol 70 No 8393 743 Commentary J Epidemiol Community Health: first published as 10.1136/jech-2015-207005 on 3 March 2016. Downloaded from
7CesareMaltoni Cancer Research Center, Bentivoglio 48Department of Biosciences, University of Helsinki, 82German Cancer Research Center, Heidelberg and (Bologna), Italy Helsinki, Finland Faculty of Pharmacy, Heidelberg University, Germany 8Institute for Cancer Prevention and Research, 49Department of Epidemiology, University of Iowa, Iowa 83Fred Hutchinson Cancer Research Center, University University of Florence, Italy City, Iowa, USA of Washington, Seattle, Washington, USA 9University of Illinois at Chicago, Chicago, Illinois, USA 50Cancer Epidemiology Unit, University of Eastern 84Faculty of Public Health, Kuwait University, Kuwait 10National Cancer Research Institute, San Martino—IST Piedmont, Novara, Italy City, Kuwait Hospital, Genoa, Italy 51Cesare Maltoni Cancer Research Center, Bentivoglio 85Department of Public Health Sciences, Medical 11University of Hamburg, Hamburg, Germany (Bologna), Italy University of South Carolina, Charleston, South 12STAMI, National Institute of Occupational Health, 52Centre for Biophotonics, Lancaster University, UK Carolina, USA Oslo, Norway 53Department of Prevention, Occupational Health Unit, 86Department of Environmental Epidemiology, Imperial 13Sciencecorps, Lexington, Massachusetts, USA National Health Service, Padua, Italy College London, London, UK 14Instituto de Alta Investigación, Universidad de 54Department of Epidemiology Lazio Region, Rome, 87Department of Research, Cancer Registry of Norway, Tarapacá, Arica, Chile Italy Institute of Population-Based Cancer Research, Oslo, 15Institute for Health and the Environment, University at 55Occupational and Environmental Epidemiology Unit, Norway; Department of Community Medicine, Faculty Albany, Rensselaer, New York, USA ISPO-Cancer Prevention and Research Institute, of Health Sciences, University of Tromsø, The Arctic 16Toxicologist, Maplewood, Minnesota, USA Florence, Italy University of Norway, Tromsø, Norway; Department of 17National Institute of Public Health, Cuernavaca, 56Dalla Lana School of Public Health, University of Medical Epidemiology and Biostatistics, Karolinska Morelos, Mexico Toronto, Canada Institutet, Stockholm, Sweden; and Genetic 18Boston University School of Public Health, Boston, 57Unit of Cancer Epidemiology, University of Turin and Epidemiology Group, Folkhälsan Research Center, Massachusetts, USA CPO-Piemonte, Torino, Italy Helsinki, Finland. 19Department of Public Health, Clinical and Molecular 58Department of Environmental and Occupational 88Department of Pathology, City of Hope Medical Medicine, University of Cagliari, Cagliari, Italy Health Sciences, City University of New York School of Center, Duarte, California, USA 20Department of Preventive Medicine, Fondazione Public Health, USA 89Program on Reproductive Health and the IRCCS Ca’ Granda Ospedale Maggiore Policlinico, 59School of Nursing and Public Health, University of Environment, University of California, San Francisco, Milan, Italy KwaZulu-Natal, Durban, South Africa USA 21Department of Environment and Primary Prevention, 60Department of Environmental and Occupational 90Okayama University, Okayama, Japan IstitutoSuperiore di Sanità, Rome, Italy Health, Milken Institute School of Public Health, 91Institute of Nanoproduct Safety Research, Hoseo 22Environmental Defense Fund, Austin, Texas, USA The George Washington University, Washington DC, University, Asan, The Republic of Korea 23Center for Environmental and Occupational Health, USA 92University of Padua, Padova, Italy University of Cape Town, Cape Town, South Africa 61Health and Environment-Department of Prevention, 93Department of Prevention and Evaluation, Leibniz- 24Environmental Health Trust, Jackson Hole, Wyoming, Local Health Authority-Empoli, Florence, Italy Institute for Prevention Research and Epidemiology, USA and The Hebrew University Hadassah School of 62Department of Biology and Biotechnology “Charles Bremen, Germany Medicine, Jerusalem, Israel. Darwin”, Sapienza Rome University, Italy 94College of Pharmacy, University of South Florida, 25Dalla Lana School of Public Health, University of 63Department of Environmental Sciences, School of the Tampa, Florida, USA Toronto, Canada Coast & Environment, Louisiana State University, Baton 26Department of Environmental and Occupational Rouge, Los Angeles, USA Contributors All authors to this commentary have Health, Drexel University, Philadelphia, Pennsylvania, 64Center for Applied Genetics and Genomic Medicine, participated in its development and approve the USA University of Arizona Health Sciences, Tucson, Arizona, content. MCB, FF, LF, CWJ, HK, TR, MKR, IR and CS 27Brody School of Medicine, East Carolina University, USA were all participants in the IARC WG. CJP was an Greenville, North Carolina, USA 65Iowa Superfund Research Program and the Invited Specialist in the IARC WG. Many of the 28Department of Epidemiology, Lazio Regional Health Interdisciplinary Graduate Program in Human remaining authors have also served on IARC Working Service, Rome, Italy Toxicology, University of Iowa, Iowa City, Iowa, USA Groups that did not pertain to glyphosate. 29 66 University of Louisville School of Medicine, Louisville, Center for Research in Health, Work and Environment Competing interests CJP, MTS and DDW are Kentucky, USA (CISTA), National Autonomous University of Nicaragua providing advice to a US law firm involved in 30School of Public Health, Curtin University, Perth, (UNAN-León), León, Nicaragua glyphosate litigation. CJP also works part-time for the Western Australia, Australia 67Swiss Tropical and Public Health Institute, Associated 31 Environmental Defense Fund on issues not related to Department of Environmental Toxicology, The Institute of the University of Basel, Basel, Switzerland pesticides. University of Queensland, Brisbane, Australia 68College of Veterinary Medicine, Mississippi State http://jech.bmj.com/ 32Department of Population Health Sciences, Virginia University, Mississippi State, USA Provenance and peer review Commissioned; Tech, Blacksburg, Virginia, USA 69Department of Environmental and Occupational externally peer reviewed. 33Paris Descartes University, France Health, Florida International University, Miami, Florida, 34Epi.Consult GmbH, Musweiler, Germany USA 35Danish Cancer Society Research Center, Copenhagen, 70Department of Veterinary Integrative Biosciences, Denmark Texas A&M University, College Station, Texas, USA 36University Hospital, Orebra, Sweden 71Faculty of Medicine, University of São Paulo, São 37Biostatistics Branch, Netherlands Cancer Institute, Paulo, Brazil 72 Amsterdam, The Netherlands Natural Resources Defense Council and George on March 16, 2020 by guest. Protected copyright. 38Faculty of Department of Occupational and Washington University, Washington DC, USA 73 Open Access This is an Open Access article distributed Environmental Health, Peking Univ School of Public Nanosafety Research Centre, Finnish Institute of in accordance with the Creative Commons Attribution Health, Beijing, China Occupational Health, Helsinki, Finland 39 74 Non Commercial (CC BY-NC 4.0) license, which permits National Institute for Environmental Health Sciences, Radboud Institute for Health Sciences, Radboud others to distribute, remix, adapt, build upon this work Research Triangle Park, North Carolina, USA University Medical Center, Nijmegen, The Netherlands 40 75 non-commercially, and license their derivative works on University of Florida, Gainesville, Florida, USA Department of Pathology, University of Alberta, 41 different terms, provided the original work is properly CWJ Consulting, LLC, Cape Coral, Florida, USA Edmonton, Alberta, Canada 42 76 cited and the use is non-commercial. See: http:// Institute of Environment, Health and Societies, Brunel Department of Environmental Health Sciences, Johns creativecommons.org/licenses/by-nc/4.0/ University London, London, UK Hopkins Bloomberg School of Public Health, Baltimore, 43Division of Biostatistics, German Cancer Research Maryland, USA Center, Heidelberg, Germany 77School of Public Health, University of California, 44Institute for Risk Assessment Sciences, Utrecht Berkeley, California, USA University, Utrecht, The Netherlands 78Faculty of Medicine, University of New South Wales, 45National Council of Scientific and Technological Randwick, New South Wales Australia Research, National University of La Plata, 79Program on Reproductive Health and the To cite Portier CJ, Armstrong BK, Baguley BC, et al. Argentina Environment, University of California, San Francisco, J Epidemiol Community Health 2016;70:741–745. 46 Arnhold Institute for Global Health, Icahn School of California, USA Published Online First 3 March 2016 Medicine at Mount Sinai, New York, USA 80Istituto di Geosceinze e Georisorse (CNR), Padova, 47Department of Pharmacology, Wayne State University Italy J Epidemiol Community Health 2016;70:741–745. School of Medicine, Detroit, Michigan, USA 81University of Torino, Torino, Italy doi:10.1136/jech-2015-207005
744394 Portier CJ, et al. J Epidemiol Community Health August 2016 Vol 70 No 8 Commentary J Epidemiol Community Health: first published as 10.1136/jech-2015-207005 on 3 March 2016. Downloaded from
REFERENCES chemical groups and active ingredients: a systematic 20 Keenan C, Elmore S, Francke-Carroll S, et al. Best 1 IARC. Preamble to the IARC Monographs. 2006. review and meta-analysis. Int J Environ Res Public practices for use of historical control data of http://monographs.iarc.fr/ENG/Preamble/ Health 2014;11:4449–527. proliferative rodent lesions. Toxicol Pathol CurrentPreamble.pdf 12 EPA. Glyphosate; EPA Reg. # 524–308; mouse 2009;37:679–93. 2 Guyton KZ, Loomis D, Grosse Y, et al. Carcinogenicity oncogenicity study. 1985. V. Accession No. 251007– 21 Haseman JK, Boorman GA, Huff J. Value of of tetrachlorvinphos, parathion, malathion, diazinon, 014. Tox review 004370. p. historical control data and other issues related and glyphosate. Lancet Oncol 2015;16:490–1. 13 JMPR. FAO plant production and protection paper, to the evaluation of long-term rodent 3 IARC Working Group. Glyphosate. In: Some 178, 2004—pesticide residues in food—2004. Report carcinogenicity studies. Toxicol Pathol 1997;25: organophosphate insecticides and herbicides: diazinon, of the Joint Meeting of the FAO Panel of Experts on 524–7. glyphosate, malathion, parathion, and tetrachlorvinphos. Pesticide Residues in Food and the Environment and 22 Greim H, Gelbke HP, Reuter U, et al. Evaluation of Vol 112. IARC Monogr Prog, 2015:1–92. WHO the Core Assessment Group; Vol 178. Geneva, historical control data in carcinogenicity studies. Hum 4 European Food Safety Authority. Conclusion on the Switzerland: World Health Organization/Food and Exp Toxicol 2003;22:541–9. peer review of the pesticide risk assessment of the Agriculture Organization, 2004:95–169. 23 Haseman JK, Huff J, Boorman GA. Use of historical active substance glyphosate. EFSA J 2015;13:4302. 14 EPA. Second peer review of Glyphosate. 19911–19. control data in carcinogenicity studies in rodents. 5 European Food Safety Authority. Final Addendum to 15 EPA. Glyphosate—EPA Registration No. 524–308– Toxicol Pathol 1984;12:126–35. the Renewal Assessment Report. 2015. http:// 2-Year Chronic Feeding/Oncogenicity Study in Rats 24 Giknis M, Clifford C. Spontaneous Neoplastic Lesions registerofquestions.efsa.europa.eu/roqFrontend/ with Technical Glyphosate, I. William Dykstra. in the CrI:CD-1(ICR)BR Mouse. Charles River outputLoader?output=ON-4302 Toxicology Branch, Editor. 1991. V. MRID 416438– Laboratories; 2000. 6 De Roos AJ, Blair A, Rusiecki JA, et al. Cancer 01 Tox review 008897. p. 25 Myers JP, vom Saal FS, Akingbemi BT, et al. Why incidence among glyphosate-exposed pesticide 16 EPA. Glyphosate; 2-Year Combined Chronic Toxicity/ public health agencies cannot depend on good applicators in the Agricultural Health Study. Environ Carcinogenicity Study in Sprague-Dawley Rats—List laboratory practices as a criterion for selecting data: Health Perspect 2005;113:49–54. A Pesticide for Reregistration, B. William Dykstra. the case of bisphenol A. Environ Health Perspect 7 De Roos AJ, Zahm SH, Cantor KP, et al. Integrative Toxicology, Editor. 1991. V. MRID 416438–01. Tox 2009;117:309–15. assessment of multiple pesticides as risk factors for review 008390. 1–29. 26 Buonsante VA, Muilerman H, Santos T, et al. Risk non-Hodgkin’s lymphoma among men. Occup 17 OECD. Guidance Document 116 on the Conduct and assessment’s insensitive toxicity testing may cause it Environ Med 2003;60:E11. Design of Chronic Toxicity and Carcinogenicity Studies, to fail. Environ Res 2014;135:139–47. 8 Weisenburger DD. Pathological classification of H.a.S.P. Environment, Editor. Paris: OECD, 2012. 27 IARC Monograph 112. List of Working Group non-Hodgkin’s lymphoma for epidemiological studies. 18 European Chemicals Agency. Guidance on the Participants. IARC Monogr Eval Carcinog Risks Hum Cancer Res 1992;52(19 Suppl):5456s–62s; Application of the CLP Criteria: Guidance to 2015 26 March, 2015 [cited 2015 24 November]. discussion 5462s-5464s. Regulation (EC) No 1272/2008 on classification, http://monographs.iarc.fr/ENG/Meetings/ 9 Checkoway H, Pearce N, Kriebel D. Research labelling and packaging (CLP) of substances and vol112-participants.pdf methods in occupational epidemiology. 2nd edn. mixtures. Helsinki, Finland: European Chemicals 28 Portier CJ, et al. Open Letter: Review of the Monographs in epidemiology and biostatistics. Agency, 2015. Carcinogenicity of Glyphosate by EFSA and BfR. New York: Oxford University Press, 2004:xiv, 372 p. 19 NRC Committee to Review the Styrene Assessment in 2015 [cited 2016 1/18/2016]. http://www.efsa. 10 Rothman KJ, Greenland S, Lash TL. Modern The National Toxicology Program 12th Report on europa.eu/sites/default/files/Prof_Portier_letter.pdf epidemiology. 3rd edn. Philadelphia: Wolters Kluwer Carcinogens. Review of the Styrene Assessment in 29 Url B. Response to Open Letter: Review of the Health/Lippincott Williams & Wilkins, 2008:x, 758 p. the National Toxicology Program 12th Report on Carcinogenicity of Glyphosate by EFSA and BfR. 11 Schinasi L, Leon ME. Non-Hodgkin lymphoma and Carcinogens: Workshop Summary; Washington DC: 2016. 1/13/2016. http://www.efsa.europa.eu/sites/ occupational exposure to agricultural pesticide National Academies Press, 2014. default/files/EFSA_response_Prof_Portier.pdf http://jech.bmj.com/ on March 16, 2020 by guest. Protected copyright.
Portier CJ, et al. J Epidemiol Community Health August 2016 Vol 70 No 8395 745 TAB 15, EXHIBIT O Three official summaries of glyphosate’s regulatory status in the European Union “Summary report of the appeal Committee, Commission Health and Food Safety Directorate-General”, “Status Report on Glyphosate in the EU”, and MEPs demand glyphosate phase-out, with full ban by end 2022” European Union form the European Commission and the European Parliament
This is Exhibit O referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
396 7/20/2020 Glyphosate | Food Safety
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Status of glyphosateEN) in the EU
Glyphosate is currently approved (https://eur- lex.europa.eu/legal-content/AUTO/?uri=CELEX:32017R2324) in the EU until 15 December 2022.
Therefore, glyphosate can be used as an active substance in Plant Protection Products (PPPs), until that date, subject to each PPP being authorised by national authorities following an evaluation of its safety.
On 10 May 2019, the Commission appointed (https://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32019R0724) four Member States (France, Hungary, the Netherlands and Sweden) acting jointly as 'rapporteurs' for the next assessment of glyphosate – this group of Member States is known as the Assessment Group on Glyphosate (https://ec.europa.eu/food/plant/pesticides/glyphosate/assess ment-group_en) (AGG).
On 12 December 2019, the Glyphosate Renewal Group (https://glyphosate.eu/) (a group of companies seeking the renewal of approval of glyphosate in the EU), sent an application for the renewal of approval of glyphosate post- 2022 to the AGG, the other Member States, the European Food Safety Authority (EFSA) and the European Commission. This application formally initiates the renewal process in the EU as provided for by Regulation (EC) No 1107/2009.
Renewal process 397 https://ec.europa.eu/food/plant/pesticides/glyphosate_en 1/4 7/20/2020 Glyphosate | Food Safety An application has been sent by the Glyphosate Renewal Group and has been checked by the AGG to ensure it fulfils the requirements of the relevant EU legislation (Commission Implementing Regulation (EU) No 844/2012 on the renewal procedure for active substances (https://eur- lex.europa.eu/legal-content/AUTO/?uri=CELEX:32012R0844)).
The application is published on EFSA’s website.
The supplementary dossiers containing the required set of scientific studies and literature data were submitted by the Glyphosate Renewal Group on 8 June 2020 (before the deadline of 15 June 2020).
The AGG will carry out an admissibility check of the supplementary dossiers followed by an assessment of all available information which, once completed, will be transmitted to EFSA to initiate the peer review process.
Questions and answers
Why a group of RMS and not a single RMS?
In general, the European Commission appoints rapporteur Member States in a consensual way (i.e. with the agreement of the Member State concerned) and for each substance, one Rapporteur Member State and one co-rapporteur Member State are nominated.
In the case of glyphosate, because of the expected very large application dossier and the related high workload, no single Member State volunteered to become rapporteur Member State or co-rapporteur Member State.
Following discussions with the Member States, a group of EU countries have accepted to act jointly as rapporteur.
Does the EU legislation allow multiple Member States to act as RMS?
Commission Implementing Regulation (EU) No 844/2012 lays down the provisions necessary for the implementation of the renewal procedure. An amendment to this Regulation to enable in exceptional cases a group of Member States to work jointly as rapporteur Member States, was adopted (https://eur-lex.europa.eu/legal-content/EN/TXT/? uri=CELEX:32019R0724) by Member States on 10 May 2019.
Which Member States are part of the AGG?
The following Member States have agreed to be part of the AGG: France, Hungary, the Netherlands and Sweden.
The scientific work will be carried out by their respective national agencies. 398 https://ec.europa.eu/food/plant/pesticides/glyphosate_en 2/4 7/20/2020 Glyphosate | Food Safety The AGG will assess the application dossier submitted by interested companies and will prepare a single draft renewal assessment report to the European Food Safety Authority (EFSA) in 2021.
Some facts about glyphosate
Glyphosate is an active substance used in PPPs (https://ec.europa.eu/food/plant/pesticides_en) to control plants, which means it's a herbicide Glyphosate is the most frequently used herbicide both worldwide and in the EU and it has been used for several decades Glyphosate has been thoroughly assessed by Member States, the European Chemicals Agency (https://echa.europa.eu/-/glyphosate-not-classified-as- a-carcinogen-by-echa) (ECHA) and the European Food Safety Authority (http://www.efsa.europa.eu/en/topics/topic/glyphosate) (EFSA) in recent years Glyphosate-based pesticides are used as herbicides in agriculture, horticulture and in some non-cultivated areas They are used primarily to combat weeds that compete with cultivated crops or present problems for other reasons (e.g. on railway tracks) They are typically applied before crops are sown to control weeds and therefore facilitate better growth of crops by eliminating competing plants This eliminates or minimises the need to use ploughing machines ("zero tillage" farming), thereby reducing soil erosion and carbon emissions Glyphosate is also used to a lesser extent as a pre- harvest treatment to facilitate better harvesting by regulating plant growth and ripening
RELATED LINKS
Press Relase: Commission responds to European Citizens' Initiative (https://ec.europa.eu/commission/presscorner/detail/en/IP_ 17_5191)
Q&A: Commission replies to European Citizens' Initiative on Glyphosate (https://ec.europa.eu/commission/presscorner/detail/en/ME MO_17_5192)
'Ban Glyphosate' European Citizens' Initiative (https://ec.europa.eu/commission/presscorner/detail/en/IP_ 17_28) 399 https://ec.europa.eu/food/plant/pesticides/glyphosate_en 3/4 7/20/2020 Glyphosate | Food Safety
EFSA page on Glyphosate (http://www.efsa.europa.eu/en/topics/topic/glyphosate)
ECHA page on Glyphosate (https://echa.europa.eu/substance- information/-/substanceinfo/100.012.726)
QUICK LINKS
GMO register (https://webgate.ec.europa.eu/dyna/gm_register/index _en.cfm)
EU Pesticides database (http://ec.europa.eu/food/plant/pesticides/eu- pesticides-database/public/? event=homepage&language=EN)
Procedure to apply for authorisation of a PPP (https://ec.europa.eu/food/plant/pesticides/authorisatio n_of_ppp/application_procedure_en)
Plant variety database (https://ec.europa.eu/food/plant/plant_propagation_ma terial/plant_variety_catalogues_databases/search/public /index.cfm)
Community Plant Variety Office (CPVO) (https://cpvo.europa.eu/)
Health and food audits and analysis (https://ec.europa.eu/food/audits_analysis_en)
Access to documents project (https://webgate.ec.europa.eu/dyna/extdoc/)
European Food Safety Authority (EFSA) (http://www.efsa.europa.eu/)
E-news (https://ec.europa.eu/food/see-the/enews- newsletters_en)
Press Releases (https://ec.europa.eu/commission/presscorner/advance dsearch/en?parea=1006)
Infographics and factsheets (https://ec.europa.eu/food/see-the/infographics- factsheets_en)
Food Fraud (https://ec.europa.eu/food/safety/food- fraud_en)
400 https://ec.europa.eu/food/plant/pesticides/glyphosate_en 4/4
EUROPEAN COMMISSION
HEALTH AND FOOD SAFETY DIRECTORATE-GENERAL
sante.ddg2.g.5(2017)
Summary report of the Appeal Committee Phytopharmaceuticals - Plant Protection Products - Legislation 27 NOVEMBER 2017
SUMMARY
Section B Draft(s) presented for an opinion
B.01 Exchange of views and possible opinion of the Committee on a draft Commission Implementing Regulation renewing the approval of the active substance glyphosate in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Implementing Regulation (EU) No 540/2011
Legal Base: Article 20(1) of Regulation (EC) No 1107/2009 Procedure: Opinion of the Committee via the examination procedure
The Chair recalled the pertinent aspects relevant to the Commission's proposal to renew the approval of glyphosate, including the reasons why the Commission proposed to set the period for renewal of approval at 5 years and why a renewal was the correct measure to take rather than an extension of approval, as proposed by some Member States previously.
The Chair then introduced the draft Commission Implementing Regulation concerning the renewal of the approval of glyphosate for use as an active substance in plant protection products, which was the same as that voted on at the Standing Committee on Plants, Animals, Food and Feed (PAFF) on 9 November 2017.
As the PAFF Committee had not delivered an opinion at that meeting the draft had been referred to the appeal committee pursuant to Article 5(4) of Regulation (EU) No 182/2011 of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers.
The Chair informed the Committee that the Commission acknowledges that transparency is essential to maintain trust in the regulatory system and is taking into account the requests related to transparency in the ongoing European Citizens' Initiative (ECI) "Ban glyphosate and protect people and the environment from toxic pesticides". He informed that the Commission is examining options on
401 how to clarify and optimise the transparency rules applicable to scientific studies which are the basis of scientific assessments and will come up with proposals in due course. This will be further explained in the Communication that the Commission will adopt in response to the Citizens' Initiative.
In addition, the Chair informed the Committee that the Commission will ask the World Health Organisation (WHO) to clarify whether differences remain between the assessment of glyphosate carried out by the International Agency for Research on Cancer (IARC) and the Joint FAO/WHO Meeting on Pesticide Residues (JMPR).
In line with the rules of procedure of the Appeal Committee which require the Chair to endeavour to find solutions that command the widest possible support, the Chair asked Member States if they had any suggestions for modifications of the draft Implementing Regulation as tabled that would allow those that had not supported the Commission's proposal at the last meeting of the PAFF to do so now.
One Member State supported the Commission's commitments on transparency and on asking the WHO for clarification with regards to the assessment of glyphosate. In addition they requested to amend the Annexes to the draft Implementing Regulation to include references to the need for Member States to pay particular attention to the protection of amateur users and to the impact of glyphosate on biodiversity when carrying out assessments for plant protection products containing glyphosate.
One Member State continued to support the draft Commission Implementing Regulation but also requested to launch an in-depth study into the impacts of glyphosate on ecosystems to be carried out in the EU by 2020.
Three Member States that had abstained during the vote at the PAFF Committee on 9 November 2017 - as they considered that a longer period of renewed approval was justified – changed their position to support the proposal for a 5- year renewal in a spirit of compromise.
In reaction to the requests from the first Member State, the Chair presented a revised version of the Annexes to the draft Implementing Regulation to the Member States.
The Chair then proceeded to the formal vote with the following outcome: 18 Member States voted in favour (representing 65.71% of the EU population) 9 Member States voted against (representing 32.26 % of the EU population) 1 Member State abstained (representing 2.02 % of the EU population)
Result of the vote: Qualified Majority in favour.
2
402
Two Member States voted against as they wanted a renewal or extension of approval for a maximum period of 3 years.
One Member State voted against as it could only support a 3-year extension of the current approval, followed by a phase-out period of two years.
Three Member States voted against due to political and societal sensitivity and environmental concerns.
One Member State voted against without any explicit reason.
One Member State voted against as it considered a 5-year renewal period as too long.
One Member State voted against as its national parliament had adopted a formal position against any period of renewal or extension of approval.
One Member State abstained without giving any explicit reason.
3
403 News European Parliament
MEPs demand glyphosate phase-out, with full ban by end 2022 Press Releases PLENARY SESSION ENVI 24-10-2017 - 13:21
Ban household use now, agricultural use by end 2022
Risk assessments by the EU Commission must be made public
EU countries to vote on renewing glyphosate licence on Wednesday
Parliament backed a full ban on glyphosate-based herbicides by December 2022 and immediate restrictions on the use of the substance, on Tuesday.
Parliament opposes the European Commission’s proposal to renew the controversial herbicide licence for 10 years. Instead, MEPs say the EU should draw up plans to phase out the substance, starting with a complete ban on household use and a ban in use for farming when biological alternatives (i.e. “integrated pest management systems”) work well for weed control.
Glyphosate should be completely banned in the EU by 15 December 2022, with the necessary intermediate steps, MEPs say.
Concerns over scientific assessments of the substance
The EU risk assessment process before renewing the substance’s licence was mired in controversy, as the UN cancer agency and EU food safety and chemicals agencies came to different conclusions regarding its safety.
Moreover, the release of the so-called “Monsanto Papers”, internal documents from the company which owns and produces Roundup®, of which glyphosate is the main active substance, shed doubt on the credibility of some studies used in the EU evaluation on glyphosate safety, say MEPs.
The EU’s authorisation procedure, including the scientific evaluation of substances, should be based only on published, peer-reviewed and independent studies commissioned by competent public authorities, MEPs say. EU agencies should be beefed up in order to allow them to work in this way.
Next steps
The non-binding resolution was adopted by 355 votes to 204, with 111 abstentions. EU member states will vote on a Commission proposal to renew the marketing authorisation of glyphosate on Wednesday.
A European Citizen’s initiative calling for a ban on the herbicide reached more than a million signatures in less than a year and will trigger a public hearing in Parliament in November.
Contacts: 404 / Baptiste CHATAIN Press Officer
(+32) 2 28 40992 (BXL)
(+33) 3 881 74151 (STR) (+32) 498 98 13 37 [email protected] [email protected] @EP_Environment
Further information
Adopted text will be available here (click on 24.10.2017)
EP research: Renewing the approval for glyphosate
Political groups
Press release by the EPP group
Press release by the S&D group
News pages of the ECR group
News pages of the ALDE group
News pages of the GUE/NGL group
Press release by the Greens/EFA group
News pages of the EFDD group
News pages of the ENF group
Ref.: 20171020IPR86572
405 / 406 News European Parliament
MEPs demand glyphosate phase-out, with full ban by end 2022 Press Releases PLENARY SESSION ENVI 24-10-2017 - 13:21
Ban household use now, agricultural use by end 2022
Risk assessments by the EU Commission must be made public
EU countries to vote on renewing glyphosate licence on Wednesday
Parliament backed a full ban on glyphosate-based herbicides by December 2022 and immediate restrictions on the use of the substance, on Tuesday.
Parliament opposes the European Commission’s proposal to renew the controversial herbicide licence for 10 years. Instead, MEPs say the EU should draw up plans to phase out the substance, starting with a complete ban on household use and a ban in use for farming when biological alternatives (i.e. “integrated pest management systems”) work well for weed control.
Glyphosate should be completely banned in the EU by 15 December 2022, with the necessary intermediate steps, MEPs say.
Concerns over scientific assessments of the substance
The EU risk assessment process before renewing the substance’s licence was mired in controversy, as the UN cancer agency and EU food safety and chemicals agencies came to different conclusions regarding its safety.
Moreover, the release of the so-called “Monsanto Papers”, internal documents from the company which owns and produces Roundup®, of which glyphosate is the main active substance, shed doubt on the credibility of some studies used in the EU evaluation on glyphosate safety, say MEPs.
The EU’s authorisation procedure, including the scientific evaluation of substances, should be based only on published, peer-reviewed and independent studies commissioned by competent public authorities, MEPs say. EU agencies should be beefed up in order to allow them to work in this way.
Next steps
The non-binding resolution was adopted by 355 votes to 204, with 111 abstentions. EU member states will vote on a Commission proposal to renew the marketing authorisation of glyphosate on Wednesday.
A European Citizen’s initiative calling for a ban on the herbicide reached more than a million signatures in less than a year and will trigger a public hearing in Parliament in November.
Contacts: 407 / Baptiste CHATAIN Press Officer
(+32) 2 28 40992 (BXL)
(+33) 3 881 74151 (STR) (+32) 498 98 13 37 [email protected] [email protected] @EP_Environment
Further information
Adopted text will be available here (click on 24.10.2017)
EP research: Renewing the approval for glyphosate
Political groups
Press release by the EPP group
Press release by the S&D group
News pages of the ECR group
News pages of the ALDE group
News pages of the GUE/NGL group
Press release by the Greens/EFA group
News pages of the EFDD group
News pages of the ENF group
Ref.: 20171020IPR86572
408 / TAB 16, EXHIBIT P Document: PMRA enforcement bulletin for 2016-2020: https://www.canada.ca/en/health-canada/ services/consumer-product-safety/pesticides-pest- management/public/protecting-your-health- environment/compliance-enforcement/ enforcement-bulletins.html
This is Exhibit P referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
409 3/14/2020 Enforcement Bulletins - Canada.ca
> > > > Home Health Product safety Consumer Product Safety Pesticides and Pest Management > > > Pesticides in Canada Protecting Your Health and the Environment Pesticides Compliance and Enforcement Enforcement Bulletins
This section provides information on violations of the Pest Control Products Act and its Regulations that have resulted in warnings, penalties, and/or convictions.
The Agriculture and Agri-Food Administrative Monetary Penalties (AMPS) Act provides a system of penalties and warnings for violations of several federal Acts including the Pest Control Products Act, which regulates pesticides. The AMPS Act allows Canadian pesticide regulatory officials to impose penalties without having to pursue formal prosecution.
Health Canada is responsible for the regulation of pesticides in Canada under the Pest Control Products Act. Each pesticide proposed for use in Canada is evaluated to determine if it meets Health Canada's standards for the protection of health and the environment, and whether the product is effective for its intended use. Pesticides that meet Health Canada's standards are registered for use.
The import, sale or use of unregistered pesticides in Canada is a violation of the Pest Control Products Act, as is using a pesticide in a manner other than directed on the product label. Health Canada verifies reports of illegal pesticides or misuse through its network of regional officers.
When purchasing a pesticide, consumers should verify that a pest control product number (PCP number) appears on the label. This number indicates that the pesticide has been registered by Health Canada. Consumers should carefully read, understand and follow label directions when using any pesticide, and pesticides must not be used for purposes other than indicated on the label.
To report a suspected violation, pesticide incident, or obtain further information regarding specific enforcement bulletins, contact the Pest Management Information Service. Media inquiries should be directed to Health Canada Media Relations at 613-957-2983.
Health Canada invites you to subscribe to the Really Simple Syndication (RSS) feed and obtain links to new enforcement bulletins as soon as they are posted online.
2020
9276-1634 Québec Inc. (doing as Les Immeubles Leigh) was fined $12,000 for importing three pesticides not registered in Canada
2019 410 https://www.canada.ca/en/health-canada/services/consumer-product-safety/pesticides-pest-management/public/protecting-your-health-environment/co… 1/6 3/14/2020 Enforcement Bulletins - Canada.ca
Canmae Holdings Ltd. (previously doing business as Aqua-Gro Hydroponics Supplies) was fined $8,000 for manufacturing and distributing pest control products not registered in Canada
Lawrason’s Inc. was fined $4,000 for distributing a pest control product not registered in Canada
Michel Montminy Inc. (doing business as Les Arrosages Montminy) was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Groupe Essa Inc. was fined $8,000 for using a pest control product in a way that is inconsistent with the label directions
3090-3678 Québec Inc. (doing business as Les Arrosages Ultra-Vert) was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
9291-1130 Québec Inc. (doing business as Astro Extermination) was fined $8,000 for using two pest control products in a way that is inconsistent with their label directions
Country Bloom Greenhouse Supplies Ltd. was fined $20,000 for manufacturing four pest control products not registered in Canada, and for failing to comply with an order
Extermination Lessard was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
RMB Extermination Inc. was fined $12,000 for using a pest control product in a way that is inconsistent with the label directions
Pro-Sol Simmar Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Louis Frigon Traitement de Gazon Inc. was fined $8,000 for using a pest control product in a way that is inconsistent with its label directions, and for possessing a pest control product not registered in Canada
Traitement de Pelouse Gauvreau was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Paysagistes JEMS Nature Enr. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Allaire et Fils Enr. was fined $10,400 for using a pest control product in a way that is inconsistent with the label directions, and for making a false statement to an inspector
411 https://www.canada.ca/en/health-canada/services/consumer-product-safety/pesticides-pest-management/public/protecting-your-health-environment/co… 2/6 3/14/2020 Enforcement Bulletins - Canada.ca
9277-5535 Québec Inc. (doing business as Extermination Vincent Massey Inc.) was fined $8,000 for using two pest control products in a way that is inconsistent with their label directions
9299-4425 Québec Inc. (doing business as Vecta Extermination) was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
2018
Andrian Makowsky (doing business as Makowsky Brothers Holdings) was issued a warning for using a pest control product in a way that is inconsistent with the label directions
Extermination Ultra Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
3093-2479 Québec Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Apko Nurseries Ltd. was fined $4,000 for importing a pesticide not registered in Canada
Kenneth Bates (doing business as Tecarte Farms) was fined $4,000 for importing a pesticide not registered in Canada
Contrôle Moustiques Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
645358 N.B. Inc. DBA Lawton's Lawn Care was fined $12,000 for importing pesticides not registered in Canada
Eliminex 3000 Inc. was fined $12,000 for using two pest control products in a way that is inconsistent with their label directions
Extermination Pest-Tech was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
2017
Crop Production Services (Canada) Inc. was fined $16,000 for distributing a pest control product not registered in Canada
Chinatown Dollar Plus Mart Ltd. was fined $8000 for distributing pest control products not registered in Canada 412 https://www.canada.ca/en/health-canada/services/consumer-product-safety/pesticides-pest-management/public/protecting-your-health-environment/co… 3/6 3/14/2020 Enforcement Bulletins - Canada.ca
Extermination Lasalle Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Exterminateurs associés MG Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Richmond Country Farms Ltd. was issued a warning for using a pest control product in a way that is inconsistent with the label directions
Big Bazaar Canada Inc. was issued a warning for distributing a pest control product not registered in Canada
Entretien Rémi Fortier was fined $8,000 for using two pest control products in a way that is inconsistent with their label directions
Entretien de Pelouses Plus Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Pelouse Santé Inc. was fined $8,000 for using two pest control products in a way that is inconsistent with their label directions
Fertilisation du Nord Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Extermination et Fertilisation Poirier Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Weedman Laurentides-Lanaudière was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Les Entreprises M. Marion Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Allaire et Fils Enr. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Serge Jodoin (doing business as Serge Jodoin Paysagiste) was fined $8,000 for using two pest control products in a way that is inconsistent with their label directions
Entreprises Demers 4 Saisons Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Les Associés DM Gestion Antiparasitaire Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
413 https://www.canada.ca/en/health-canada/services/consumer-product-safety/pesticides-pest-management/public/protecting-your-health-environment/co… 4/6 3/14/2020 Enforcement Bulletins - Canada.ca
Mayfair Colony Farms Ltd. was fined $4,000 for disposing a pest control product in a way that is inconsistent with the label directions
François Girard was fined $12,000 for distributing pest control products not registered in Canada
2016
Andrea Usworth (doing business as Natural Wisdom) was fined $2,000 for distributing a pest control product not registered in Canada
Protex Extermination 2010 Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
NOD Apiary Products Ltd. was fined $6,000 for not filing complete and accurate pesticide incident reports
L'Ex-Terminateur J.M. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Extermination Monarck Horticulture Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Orkin Canada Corporation Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Les Entreprises Spray & Green Inc. was fined $8,000 for using pest control products in a way that is inconsistent with the label directions
Gray Aqua Group Ltd. was fined $8,000 for using a pest control product not registered in Canada
Service d'Extermination Le Vert Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Kirpal Singh Boparai (operating as Ajay Boparai Enterprises Ltd.) was fined $4,000 for using a pest control product not registered in Canada
Jonathan Carrière (operating as PelousExpert) was fined $24,000 for manufacturing and distributing pest control products not registered in Canada, and for manufacturing and distributing a pest control product endangering human health
Laurence Harvey (operating as PelousExpert) was fined $4,800 for possessing and using a pest control product not registered in Canada 414 https://www.canada.ca/en/health-canada/services/consumer-product-safety/pesticides-pest-management/public/protecting-your-health-environment/co… 5/6 3/14/2020 Enforcement Bulletins - Canada.ca
Extermination Monarck Horticulture Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Extermination Monarck Horticulture Inc. was fined $2,000 for refusing to provide documents requested by an inspector
2015
Orkin Canada Corporation was fined $8,000 by Health Canada for using a pest control product in a way that is inconsistent with the label directions
Abell Pest Control Inc. was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
AKM Services International Limited was issued a warning for distributing a pest control product that was not packaged in accordance with the regulations and the conditions of registration
Orkin Canada Corporation was fined $4,000 for using a pest control product in a way that is inconsistent with the label directions
Allaire S. Enr. was fined $8,000 for using a pest control product in a way that is inconsistent with the label directions
Protex Extermination (2010) Inc. was fined $12,000 for using three pest control products in a way that is inconsistent with the label directions
Herbert Kempf was issued a warning for using a pest control product in a way that is inconsistent with the directions on the label
Date modified: 2019-11-07
415 https://www.canada.ca/en/health-canada/services/consumer-product-safety/pesticides-pest-management/public/protecting-your-health-environment/co… 6/6 TAB 17, EXHIBIT Q Statistics Canada, Canadian Community Health Survey - Nutrition (CCHS) Detailed information for 2015, large nationally; and representative survey of food consumption patters.
This is Exhibit A referred to in the affidavit of Bill Jeffery AFFIRMED REMOTELY** by Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
------Commissioner for Taking Affidavits
416 9/9/2020 Surveys and statistical programs - Canadian Community Health Survey - Nutrition (CCHS)
Home > Definitions, data sources and methods > Surveys and statistical programs
> Canadian Community Health Survey - Nutrition (CCHS) Canadian Community Health Survey - Nutrition (CCHS)
Detailed information for 2015
Status:
Active
Frequency:
Occasional
Record number:
5049
The Canadian Community Health Survey - Nutrition is a national health survey that collected information from Canadians about their eating habits and use of nutritional supplements, as well as other health factors.
Data release - June 20, 2017
Questionnaire(s) and reporting guide(s) Description Data sources and methodology Data accuracy Description
This survey will give a detailed and up-to-date picture of not only what people are eating and what vitamins and minerals they take, but the impact this has on health and well-being. It will also evaluate changes in food consumption, nutrition and health since this survey was last done in 2004.
The objectives of the Canadian Community Health Survey - Nutrition are:
(1) To collect detailed data on the consumption of foods and dietary supplements among a representative sample of Canadians at national and provincial levels;
(2) To estimate the distribution of usual dietary intake in terms of nutrients from foods, food groups, dietary supplements and eating patterns;
(3) To gather anthropometric (physical) measurements for accurate body weight and height assessment to interpret dietary intake;
(4) To support the interpretation and417 analysis of dietary intake data by https://www23.statcan.gc.ca/imdb/p2SV.pl?Function=getSurvey&Id=201486 1/8 9/9/2020 Surveys and statistical programs - Canadian Community Health Survey - Nutrition (CCHS)
collecting data on selected health conditions and socio-economic and demographic characteristics; and
(5) To evaluate changes in dietary intake from the 2004 CCHS - Nutrition.
The data collected from the survey will be used by Statistics Canada, Health Canada and the Public Health Agency of Canada, provincial and territorial ministries of health, as well as federal and provincial health planners across the country, industry and researchers and health professionals. Results from our surveys are used extensively for policy- making and program development that affect Canadian communities. Subjects
Diseases and health conditions Health Lifestyle and social conditions Data sources and methodology Target population
The target population in 2015 covers the population 1 year of age and over living in the ten provinces. Excluded from the survey's coverage are: persons living on reserves and other Aboriginal settlements, full- time members of the Canadian Forces and the institutionalized population. Instrument design
The Canadian Community Health Survey - Nutrition questionnaire was developed by Statistics Canada in collaboration with stakeholders from Health Canada and the Public Health Agency of Canada, the Provincial Health Ministries, and an expert advisory group consisting of specialists from Health Canada, the Public Health Agency of Canada and academic experts. Content was chosen using the following set of criteria:
- Comparability with previous cycle of CCHS Nutrition survey - Issues identified as priority for the support/development of programs and policy, surveillance requirements and/or research - Significant number of people affected by the targeted issue - Significant impact on family, community, and health care costs - Data has potential for health improvement with policy intervention - Issues identified as data gaps from the stakeholder consultations
Nutrition questions are designed for computer-assisted interviewing (CAI), meaning that, as the questions were developed, the associated logical flow into and out of the questions was programmed. This includes specifying the type of answer required, the minimum and maximum values, on-line edits associated with the question and what to do in case of item non-response.
In collaboration with Statistics Canada's Questionnaire Design Resource Centre, the questionnaire was subjected to qualitative testing in May 418 https://www23.statcan.gc.ca/imdb/p2SV.pl?Function=getSurvey&Id=201486 2/8 9/9/2020 Surveys and statistical programs - Canadian Community Health Survey - Nutrition (CCHS)
2013, which consisted of one-on-one interviews. The objective was to evaluate respondent reactions to and understanding of the survey, as well as their willingness to respond to the questions. The qualitative testing was also used to obtain estimates for the various section times. Sampling
This is a sample survey with a cross-sectional design.
A stratified three-stage sample of one person from each dwelling in each geographic area (cluster) in 10 provinces.
FRAME The frame was created using Census Dissemination Areas (DAs) as building blocks for clusters. Neighbouring DAs were combined in such a way as to ensure as much as possible that clusters contain a minimum of 200 dwellings and not span too large a land area. Information from the Labour Force Survey (LFS) frame was used to identify areas of exclusion and remote areas, as well as to aid in decision-making when clusters did have a large land area.
SAMPLING UNIT To select the sample of respondents for the 2015 CCHS - Nutrition Survey, a stratified three-stage design was used in each province except Prince Edward Island. In the first stage, geographical areas called clusters were selected. A list frame of all households in the selected clusters was used to draw a sample of households. In the third stage a person was selected within the household from the household roster created at the start of the interview. In Prince Edward Island, a two-stage design was used, where the households are selected from a list frame in the first stage and persons from the roster in the second stage. For operational reasons, the island was still divided up into areas however each of these areas appears in the sample.
STRATIFICATION METHOD In all provinces except PEI, clusters were selected by province with systematic probability proportional to size sampling. In PEI, no sampling of clusters was done (every cluster appears with certainty). To ensure that seasonality was taken into account, the selected clusters were allocated to collection periods to ensure an even distribution of sample and an even distribution of urban and rural clusters throughout the year. Households were then selected in each cluster. Upon visiting a selected dwelling, a roster of members in the household was created and a person was randomly selected among eligible members. The probability of selection of persons varied in order to attain the targeted sample sizes in each domain. Finally, each respondent was given a probability of selection for a 2nd dietary recall, which also varied according to the respondent's DRI group.
SAMPLING AND SUB-SAMPLING A sample of 24,000 respondents was desired at the national level. A 419 https://www23.statcan.gc.ca/imdb/p2SV.pl?Function=getSurvey&Id=201486 3/8 9/9/2020 Surveys and statistical programs - Canadian Community Health Survey - Nutrition (CCHS)
minimum sample size in each province for each of twelve age-sex groups corresponding to Dietary Reference Intake (DRI) groups, was also targeted. These DRI groups are: ages 1-3, 4-8, 9-13 M, 9-13 F, 14-18 M, 14-18 F, 19-50 M, 19-50 F, 51-70 M, 51-70 F, 71+ M, and 71+ F.
A two-step strategy was used to allocate the sample to the provinces. First, 80 sample units were allocated to each DRI group in each province, accounting for 9600 units. The remaining 14,400 units were allocated to the provinces using a power allocation method with power q=0.7, based on the estimated population in each province. The total sample size of any given province was found by adding the sizes obtained in the two steps. The provincial sample was then allocated to the DRI groups based on a power allocation using q=0.5, to attain the targeted sample size in each DRI group in each province.
Sample sizes were enlarged to account for out-of-scope dwellings and anticipated non-response, for a total of 37,694 selected dwellings. Data sources
Data collection for this reference period: 2015-01-02 to 2015-12-31
Responding to this survey is voluntary.
Data are collected directly from survey respondents.
Before the start of each collection period, introductory letters and brochures explaining the purpose of the survey were sent to the sampled households.
Respondents were interviewed using a computer assisted personal interview (CAPI). Approximately 37% of respondents did a second dietary recall using a computer assisted telephone interview (CATI).
The format of the interview was determined by the age of the selected respondent:
- Selected respondent ages 1 to 5: Proxy only (The parent or guardian was asked to provide the child's information.)
- Selected respondent ages 6 to 11: Parent-assisted (The child was asked to provide his/her information with the help of his/her parent or guardian.)
- Selected respondent ages 12 and up: Non-proxy (The respondent was asked to provide his/her own information.)
It should be noted that proxy interviews for respondents aged 6 and older were to occur only if the mental or physical health of the selected member makes it impossible to complete the interview during the collection period.
The Licensed Natural Health Products420 Database (LNHPD) was used to https://www23.statcan.gc.ca/imdb/p2SV.pl?Function=getSurvey&Id=201486 4/8 9/9/2020 Surveys and statistical programs - Canadian Community Health Survey - Nutrition (CCHS)
code the nutritional supplements collected and to determine their nutrient strengths. This administrative database was downloaded from Health Canada's (HC) website. Although this a publicly available database, Statistics Canada did extensive processing to transform text fields into data fields usable for calculations. With the collaboration of HC nutrition experts, the version from December 31st 2015 was used to produce the nutrient profile per dosage unit of every nutritional supplement coded to a Natural Product Number (NPN).
View the Questionnaire(s) and reporting guide(s). Error detection
A number of edits were built into the CAI application used to collect the 2015 data. Incorrect entries were minimized due to the automated routing of questions and other logical consistency checks. Edits were also performed during processing. Inconsistencies were usually corrected by setting one or both of the variables in question to "Not stated". The percentage of records corrected is quite low: for example, for measured height and weight, less than 0.5% of records required edit corrections. Imputation
If household income was missing, this variable was imputed on the 2015 CCHS - Nutrition. Missing values due to either respondent refusal or respondent's lack of knowledge of household income were completed using statistical techniques. Approximately 25% of the values were imputed.
If a respondent's postal code is missing or invalid, it was imputed through a donor imputation process. Postal codes are used to derive the geographical variables on the 2015 CCHS - Nutrition data files. Approximately 3% of postal codes were imputed. Estimation
In order for estimates produced from survey data to be representative of the covered population, and not just the sample itself, users must incorporate the survey weights in their calculations. A survey weight is given to each respondent included in the final sample. This weight corresponds to the number of persons in the entire population that are represented by the respondent.
As described above, the CCHS - Nutrition uses the Household Survey Frame to select dwellings to be contacted for an interview.
The weighting strategy comes up with a person-level weight. The adjustments applied to the initial weights are based on modeling probabilities of response (at the household level and person level). Variables derived from the collection paradata as well as characteristics of the units are used to create the models. Then these probabilities are used to create groups of respondents and nonrespondents in which to transfer the weights of the nonrespondents to the respondents. The 421 https://www23.statcan.gc.ca/imdb/p2SV.pl?Function=getSurvey&Id=201486 5/8 9/9/2020 Surveys and statistical programs - Canadian Community Health Survey - Nutrition (CCHS)
person-level weights then undergo two more adjustments (Winsorization and Calibration to known population totals such as by geography and age and sex), and become the final person-level weights.
Bootstrap weights are created through resampling the original sample and applying similar adjustments to the bootstrap weights as to the sample weights.
The steps for weighting are described in chapter 8 of the CCHS - Nutrition User Guide.
The sample design used for this survey was not self-weighting. That is to say, the sampling weights are not identical for all individuals in the sample. When producing simple estimates, including the production of ordinary statistical tables, users must apply the proper sampling weight.
Estimates of the number of people with a certain characteristic are obtained from the data file by summing the final weights of all records possessing the characteristic of interest.
Proportions and ratios are obtained by summing the final weights of records having the characteristic of the numerator and the denominator, and then dividing the first estimate by the second. Quality evaluation
After the 2015 data were compiled, the data were reviewed in terms of the accuracy, coherence and overall reasonableness. A variety of summary indicators were calculated from the 2015 data and compared with the 2004 Nutrition data, 2015 CCHS-Annual data or other surveys such as the American National Health and Nutrition Examination Survey (NHANES), as appropriate. Any statistical differences were reviewed for reasonableness with respect to changes in the survey collection methodology, trends in food availability, supply, and consumption; and demographic and health trends. Disclosure control
Statistics Canada is prohibited by law from releasing any information it collects that could identify any person, business, or organization, unless consent has been given by the respondent or as permitted by the Statistics Act. Various confidentiality rules are applied to all data that are released or published to prevent the publication or disclosure of any information deemed confidential. If necessary, data are suppressed to prevent direct or residual disclosure of identifiable data.
For all CCHS data files, variables that directly identify a respondent have been removed from the master data files. For tabular data, small cells have been suppressed. Revisions and seasonal adjustment
Not applicable Data accuracy 422 https://www23.statcan.gc.ca/imdb/p2SV.pl?Function=getSurvey&Id=201486 6/8 9/9/2020 Surveys andy statistical programs - Canadian Community Health Survey - Nutrition (CCHS)
The quality of estimates produced with CCHS data is measured with the coefficient of variation (CV), produced using bootstrap weights. The CV magnitude will depend on the domain of interest and the prevalence of the characteristic.
In 2015, a high prevalence characteristic 'Very good or excellent self- perceived health' had a CV of 1.3% at the Canada level and no higher than 4.6% at the provincial level. A low prevalence characteristic 'Excludes gluten from diet' had a CV of 9.1% at the Canada level and up to 29.5% in some provinces. Disaggregating estimates further by age group or sex will increase the coefficient of variation.
In 2015, around 25% of respondents were imputed for total household income.
RESPONSE RATES The overall estimation response rate at the Canada level is 62%. Response rates by province are provided in Chapter 9 of the 2015 CCHS- Nutrition User Guide.
NON-SAMPLING ERROR Much time and effort was devoted to reducing non-sampling errors in the survey. Quality assurance measures were applied at each stage of the data collection and processing cycle to control the quality of the data. For example, within the computer-assisted questionnaire, there were edits that prompted the interviewer to confirm with the respondent any values of high amounts of food consumed.
The effect of non-response on survey results is a major source of non- sampling error in surveys. The scope of non-response varies from partial non-response (where the respondent does not respond to one or more questions) to total non-response.
Partial nonresponse to the income and postal code questions were treated by imputation, as described above. Partial nonresponse to all other variables is given as its own value in the data file, enabling users to tailor the treatment of partial nonresponse in their particular analysis.
There was total non-response when the person selected to participate in the survey refused to do so or could not be contacted by the interviewer. Cases of total non-response were taken into account during weighting by correcting the weights of persons who responded to the survey in order to compensate for those who did not respond.
NON-RESPONSE BIAS In addition to increasing variance (accuracy), non-response can result in biased estimates if non-respondents have different characteristics from respondents. To reduce the number of non-response cases and to 423 https://www23.statcan.gc.ca/imdb/p2SV.pl?Function=getSurvey&Id=201486 7/8 9/9/2020 Surveys and statistical programs - Canadian Community Health Survey - Nutrition (CCHS)
ensure that procedures are followed consistently, the interviewers were all extensively trained by Statistics Canada and provided with detailed interviewer manuals. Refusals are followed up by an interviewer manager to encourage respondents to participate in the survey. Total non-response is handled by adjusting the weight of households that responded to the survey to compensate for those who do not respond.
COVERAGE ERROR The target population of the 2015 CCHS-Nutrition covers the population 1 year of age and over living in private dwellings in the ten provinces. Excluded from the survey's coverage are: persons living on reserves and other Aboriginal settlements, full-time members of the Canadian forces and the institutionalized population. Altogether these exclusions represent less than 10% of the target population.
Date modified: 2017-06-19
424 https://www23.statcan.gc.ca/imdb/p2SV.pl?Function=getSurvey&Id=201486 8/8 Court File No. A-85-20
FEDERAL COURT OF APPEAL
BETWEEN SAFE FOOD MATTERS INC. Appellant AND ATTORNEY GENERAL OF CANADA Respondent APPLICATION UNDER s. 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
DRAFT MEMORANDUM OF FACT AND LAW of the CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) in the SECTION 351 MOTION TO INTRODUCE NEW EVIDENCE
PROPOSED INTERVENER CENTRE TO: ATTORNEY GENERAL OF CANADA FOR HEALTH SCIENCE AND LAW (on behalf of the Minister of Health and the Pest (CHSL) Mgmt. Regulatory Agency) P.O. BOX 4880, Station E Department of Justice Canada, ON Reg’l Off. Ottawa, ON, K1S 5J1 Department of Justice Canada Bill Jeffery (LSN: 37605S) 400-120 Adelaide St. W., Toronto, ON M5H lT1 Executive Director and General Counsel Per: Andrea Bourke (LSN: 45892K) Telephone No. (613) 565-2140 Tel: 647-256-7471; [email protected] All Correspondence by email to Elizabeth Koudys (LSN: 74644Q) [email protected] Tel: 647-256-7530 Counsel for the proposed intervener [email protected] Centre for Health Science and Law (CHSL) Counsel for the Respondent AND TO: SAFE FOOD MATTERS INC. AND TO: COUNSEL FOR THE Andrea Gonsalves (LSN: 52532E) INTEVENER ECOJUSTICE STOCKWOODS LLP Barristers Laura Bowman (LSN: 53645K) Toronto-Dominion Centre TD North Tower, [email protected] and Box 140, 77 King St. W, Suite 4130 Ian Miron (LSN: 63445O) Toronto ON M5K lHl [email protected] Tel: 416-593-3497 Fax: 416-593-9345 1910-777 Bay St, Box 106, TO, ON M5G 2C8 [email protected] T: 416-368-7533 (exts. 522 and 540, Counsel for the Appellant respectively)
425
FEDERAL COURT OF APPEAL B E T W E E N: SAFE FOOD MATTERS INC. Appellant and ATTORNEY GENERAL OF CANADA Respondent
APPLICATION UNDER subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
[DRAFT] MEMORANDUM OF FACT AND LAW OF THE [PROPOSED] INTERVENOR CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) (Rule 369 Motion to present new evidence on appeal)
PART I: FACTS
1. In 1976, the federal government registered glyphosate for sale and agricultural use in Canada under the nine-page, since repealed, Pest Control Products Act, RSC 1985, c P-9. -page 53 of the PMRA glyphosate Re-evaluation Decision – RVD2017-01
2. In 2002, Parliament enacted the successor statute by the same name, the 81-page Pest Control Products Act, S.C. 2002, c. 28 which, among other things, required the Minister of Health to initiate a re-evaluation of glyphosate by April 1, 2005 because it had been first approved prior to April 1, 1990, and to follow a scientifically based approach and apply the precautionary principle in doing so. -Sections 16(2)(b), 19 and 20, Pest Control Products Act, S.C. 2002, c. 28. .
426
3. In 2015, the PMRA initiated its re-evaluation of glyphosate by publishing its Proposed Re-evaluation Decision PRVD2015-01 Glyphosate, a decade after the statutory deadline and 39 years after glyphosate’s initial registration. -Proposed Re-evaluation Decision PRVD2015-01 Glyphosate (title page)
4. Subsection 35(3) of the Pest Control Products Act provides that
“After receiving a notice of objection, the Minister may, in accordance with the regulations, if any, establish a panel of one or more individuals to review the decision and to recommend whether the decision should be confirmed, reversed or varied.” -Section 35(3), Pest Control Products Act, S.C. 2002, c. 28.
5. In the PMRA’s final decision approving the continue used of glyphosate in Re- evaluation Decision – RVD2017-01, the PMRA admitted a general bias against scientific studies on pesticides published in peer-reviewed journals. For instance, pages 31-32 state, in part:
1.1.14 Use of Independent Scientific Studies Comment A number of comments stated that the PMRA, in its review of glyphosate, appeared to consider only “seller sponsored science”….Overall, these comments emphasized support for the use of “third party” data in assessing the health effects and making the final re-evaluation decision for glyphosate, in lieu of manufacturer-supplied data. PMRA Response [After explaining the basis for PMRA’s belief in the trustworthiness of company-applicant-provided studies, PMRA added:]…Studies conducted by academic laboratories often have lower statistical power due to the use of fewer animals, investigate far fewer toxicological endpoints, and lack
427 sufficient detail in their published form. These limitations prevent regulatory authorities from performing an in-depth analysis of study results.
6. The Re-evaluation Decision – RVD2017-01 did not include numerous facts that are relevant to the decision to re-authorize glyphosate for use in Canada nor did the respondent bring these facts to the attention of the lower, reviewing court, including:
ii. the amount of glyphosate used in Canada per year and in relation to other countries despite the Minister’s statutory duty to collect this information and its promise in the Canada Gazette to report this non-financial information to the public annually annual practice of preparing such reports and disclosing them on-request (not publishing them in the traditional or modern sense of the word); -Canada Gazette Part II, Vol. 140, No. 23, 2006-11-15 SOR/DORS/2006-261 at p. 1679 and 1684-5 iii. the number of published peer-reviewed studies PMRA considered; dismissed, and ignored and the reasons for dismissing an estimated 96% of them, tantamount to rejecting science altogether; -screen shot from publicly accessible open-access database search results on “glyphosate” from www.sciencedirect.com (excerpt) iv. measures taken to address the risk of bias in conflicts of interest in seller- sponsored studies; v. the fact that the European Union regulatory status of glyphosate where most OECD countries are situated was initially authorized in 2002, due to expire in 2016, and was radically changed in 2017; - “Summary report of the appeal Committee, Commission Health and Food Safety Directorate-General,” “Status Report on Glyphosate in the EU”, and MEPs demand glyphosate phase-out, with full ban by end 2022” from the European Commission and the European Parliament vi. the size of the total glyphosate re-evaluation package including in relation to the average application package for new pesticide applications;
428 vii. explain whether and why label-use failures is the dominant reason for imposing enforcement penalties by the PMRA and whether, why and to what extent issuing warning letters is the preferred means of addressing violations of the Pest Control Products Act; viii. acknowledge the large volume of litigation involving glyphosate internationally and in Canada related to cancer risk; and -Proceedings of the Standing Senate Committee on Agriculture and Forestry Issue No. 67 - Evidence - Meeting of May 28, 2019. Available at: https://sencanada.ca/en/Content/Sen/Committee/421/AGFO/67ev-54822-e -January 21, 2020 United Nations Special Rapporteur on the Right to Food’s 2020 report to the United Nations General Assembly Available at: https://undocs.org/A/HRC/43/44 -Charles Benbrook, “Shining a Light on Glyphosate-Based Herbicide Hazard, Exposures and Risk: Role of Non-Hodgkin Lymphoma Litigation in the USA,” European Journal of Risk Regulation, Vol. 11:3, 503.
ix. explain the use of out-dated foreign food consumption data instead of contemporary Canadian food consumption data to estimate the exposure of Canadians to glyphosate pesticide residues.
7. On November 15, 2018, PMRA’s Science Management Committee summarily dismissed all eight notices of objection, eight of which were summarized in previous meetings. The human health-related science assessments included the following explanation for rejecting all nine objections:
I. SCIENCE ASSESSMENT… Heath Risk Assessment Toxicology: • A review of the objections has been performed. • Following careful independent examination of the Notices of Objection, the HED as concluded that the authors have failed to provide sufficient scientific justification to support their concerns for the toxicology components of the risk assessment of glyphosate. Thus, a Review Panel is not warranted based on this information….
429 Exposure: • A review of the objections has been performed. • Following careful independent examination of the Notices of Objection, HED has concluded that the authors have failed to provide sufficient scientific justification to support their concerns for the exposure components of the risk assessment of glyphosate. Thus, a Review Panel is not warranted based on this information.
8. The Centre for Health Science and Law became aware of Re-evaluation Decision – RVD2017-01, the consultation that led to it, approximately two weeks prior to the Federal Court trial hearing in January 2020. -Affidavit of Bill Jeffery in support of the motion to adduce new evidence, dated December 14, 2020 Certified Tribunal Record, Volume 1, pages 347-351.
9. The [proposed] Intervenor Centre for Health Science and Law (CHSL) brings this motion in writing for leave to present new evidence in this appeal from a decision of the Federal Court dismissing the Appellant’s application for judicial review.
10. In the alternative, the Court should permit the Intervenor to include these documents in the appeal book and defer to the appeal panel the decision on whether to admit them into evidence, or
11. In the second alternative, admit these facts into evidence but only for the purposes of defining terms for the appointment of a Review Panel after the Court of Appeal has made a determination that the appointment of a Review Panel should be appointed.
430 Part II: Issues
13. The issue in this motion is whether the Federal Court of Appeal should grant leave to the Intervenor to introduce new evidence to particularize, quantify and characterize the numerous and important failures of transparency that should not be condoned by this Federal Court of Appeal and some of which mask serious further unlawful errors in decision-making.
14. The sole issue on this motion is whether the Court should exercise its discretion to permit the below-noted documents and excerpts to be admitted as new evidence in the appeal or order that such evidence be put before the Court of Appeal panel to ensure that its review does not repeat the errors and omissions of the PMRA and reviewing court below in exercising its curial function. The moving party, the [proposed] Intervener CHSL, submits that these documents should be included in the evidence on the appeal on any of four alternative grounds: (a) They meet the four-prong test for admitting fresh evidence on appeal under rule 351; (b) The Court should exercise its overriding discretion to admit the new evidence to ensure a complete record before the Court of Appeal and because it is in the interests of justice to do so; (c) Motions judge should include the documents in the appeal book and defer the decision to admit the evidence to the Federal Court of Appeal panel who may be in a better position to assess its relevance to the main appeal; (d) this Honourable Federal Court of Appeal should include this new evidence in the record and admitted as evidence for the sole purpose of assisting the Court of Appeal panel in fashioning its remedial order to direct the appointment of the independent scientific Review Panel.
Part III: Memorandum of Fact and Law
15. The Proposed Re-evaluation Decision PRVD2015-01 Glyphosate reference list indicated that approximately 181 journal articles were considered and the Re-
431 evaluation Decision – RVD2017-01 listed an additional 169 studies published in peer-reviewed journals for a total of approximately 350 peer-reviewed journal articles.- Proposed Re-evaluation Decision PRVD2015-01 Glyphosate, at pages 250-323 -Re-evaluation Decision – RVD2017-01, Additional References at pages 81-103
16. By December 31, 2016, at least 8,179 scientific studies on glyphosate were published in peer-reviewed journals. -screen shot from publicly accessible open-access database search results on “glyphosate” from www.sciencedirect.com (excerpt)
17. CHSL proposes that this honourable Court of Appeal admit into evidence 17 documents described in the following table and include them in the certified appeal record pursuant to section 351 of the Federal Courts Rules or the Court’s general discretion to admit new evidence.
18. Section 351 of the Federal Rules of Court states: 351 In special circumstances, the Court may grant leave to a party to present evidence on a question of fact.
19. CHSL submits that there are “special circumstances” in this case that militate strongly in favour of admitting this evidence, namely:
a. TRANSPARENCY & BIAS: Important reasons for CHSL seeking leave to intervene concerns the PMRA’s multiple failures of transparency, especially its admitted bias in favour of seller-sponsored studies and against studies published in peer-reviewed journals. The extent and consequences of this bias cannot be properly assessed and particularized by relying only on records volunteered by the tribunal itself. We urge the Court of Appeal to be flexible about admitting this evidence to avoid
432 leaving the perception that the Federal Court of Appeal approves of administrative decision-makers flying under the radar to avoid accountability. This is especially so considering that the fresh evidence, if believed by the Court of Appeal panel, strongly suggests a palpable and overriding error by the court and an unreasonable decision by the PMRA. Moreover, if the Court of Appeal implicitly approves such a distorted approach to considering scientific research, it could lower the bar in any forum where scientific evidence is to be considered in formulating and applying Canadian law. The potential ramifications go beyond glyphosate regulation, to all pesticide regulations, and potentially other areas of public health and beyond which would likely trigger a correctness review, rather than a reasonableness one. b. LONG-TERM PUBLIC HEALTH IMPLICATIONS: Even if the consequences of an ill-informed glyphosate decision were limited to glyphosate alone (i.e., without ramifications for other pesticides or other federal and provincial application of science to decision-making), the result could be that PMRA’s 2017 decision will leave a potentially unsafe pesticide on the market until the year 2032, or if prior practice of the PMRA is indicative of future behaviour, until 2042, or 2058. The scientific Review Panel remedy sought by the Appellant, of course, does not remove glyphosate from the market, only double-checks the evidence analysis that purports to keep it there. c. THE AMOUNT OF PROPOSED NEW EVIDENCE IS TINY COMPARED TO THE CERTIFIED TRIBUNAL RECORD AND MINISCULE COMPARED TO THE RE-EVALUATION RECORD: CHSL proposes that the 1,739-page certified appeal record, which is presumable excerpted from the 89,000-page re-evaluation record, be supplemented with approximately 100 pages of new evidence all of which was:
433 i. created by the PMRA, ii. already considered by the PMRA in the re-evaluation, but not disclosed, or iii. should have been considered by the PMRA if the agency had followed a scientifically based approach in its work.
The supplementary documents comprise 6% of the current appeal record and 0.1% of the reading room re-evaluation package. The PMRA asks the public and the courts to trust its decision without seeing the vast majority of the evidence upon which it is based. Because the PMRA claims to have discharged its duty to “leave no stone unturned,” these documents should pose no prejudice or inconvenience to the Attorney General or Minister of Health and CHSL submits that their consideration is vital to the decision’s legitimacy.
-Health Canada January 16, 2020 “Health Canada Statement on Glyphosate”
- 2018-2019 Report to Parliament of the Pest Management Regulatory Agency
d. BROAD IMPLICATIONS FOR THE RULE OF LAW AND THE USE OF SCIENTIFIC EVIDENCE: This matter is not a dispute between private parties with narrow personal interests. Instead, it has immediate and potentially wide-ranging implications for how the federal government considers seller-sponsored and peer-reviewed published scientific research. e. THE INTERESTS OF JUSTICE WEIGH IN FAVOUR OF ADMITTING THIS EVIDENCE: A cautious, better-informed judicial review of this decision is in the public interest and the interests of justice. Unless this Federal Court of Appeal orders otherwise, the PMRA’s administrative decision is not stayed and the sellers of Canada’s most
434 widely sold pesticide will continue to be able to sell it while the appeal is being considered and the Review Panel, if any, deliberates. f. PREJUDICE TO THE PUBLIC, NOT THE RESPONDENT: Because the proposed evidence was or should have already come to the attention of the PMRA during its review, it should already be part of the application record and revealing it at this stage will cause it no prejudice to the government. The PMRA’s failure to include them in the PMRA glyphosate Re-evaluation Decision – RVD2017-01 appears to be a result of a lack of transparency, lack of due diligence, bias, or an intentional or unintentional practice to make decisions fly under the radar. g. PROPOSED FRESH EVIDENCE PERTAINS TO THE ACCOUNTABILITY OF ADMINISTRATIVE DECISION- MAKING, NOT THE SCIENTIFIC CONCLUSIONS ABOUT GLYPHOSATE RISK PER SE: None of the evidence is offered to persuade the Court of Appeal to formulate an opinion about a biological mechanism or disease causality question. Such questions are properly in the scope of judgement of independent experts following a scientifically based approach in pursuit of the health and environmental protection mandate of the Pest Control Products Act. All of the proposed documents are probative of the scope of evidence ignored, systemic bias, and palpable and overriding errors made by the judge and/or administrative tribunal. h. THIS IS THE FIRST TIME THE COURT HAS CONSIDERED THE MANDATE OF THE PRMA: This is the first time the Federal Court of Appeal will be considering a decision of the PMRA under s. 35 of the Pest Control Products Act and the PMRA’s mandate under that Act, generally. Accordingly, the Federal Court of Appeal should avail itself of reliable information about the decision-making approach and
435 scope of evidence considered by the decision-makers below and CHSL will make its best efforts to provide its unique perspective about these issues.
The Court of Appeal should be careful to avoid narrowing the scope of relief under Rule 351 to a faint hope.
20. The Federal Courts Rules, including the current Rule 351 on the criteria for admitting new evidence on appeal, were promulgated by the Governor-in-Council in 1998 on the recommendation of the Federal Courts Rules Committee empowered by section 45.1 of the Federal Courts Act, following three consultations of the legal profession led by the Court (in 1995, 1997 and 1998) and another by the Governor-in-Council through the Canada Gazette (in 1997). -Canada Gazette, Part I, Vol 131 (38) September 20, 1997 at pages 2844, 2929, and 3052.
21. According to a search of cases published on https://www.canlii.org/en/, only seven cases led to the admission of new evidence on appeal pursuant to section 351 of the Rules, however, only one Federal Court of Appeal motions judge or panel so-admitted evidence since 2005. -Sawridge Band v. Canada, 2005 FCA 259,
22. This may signify that the Federal Court of Appeal has raised the threshold from “special circumstances” to “virtually unattainable circumstances,” turning its back on the will of the Rules Committee and the Governor-in-Council. Some decisions declining to admit evidence variously refer to the standard not as “special circumstances,” but as rare or exceptional circumstances.2
436 The Federal Court and Supreme Court of Canada have both made recent, complementary rulings on the test for admitting new evidence on appeal.
23. The most recent articulation in this Court of Appeal of the test for admitting such evidence is the 2019 decision in Canada (Judicial Council) v. Girouard—which refused to admit the proffered evidence for lack of credibility—set out the test as follows at paragraph 24:
The appellant argues that that evidence meets the criteria applicable to the admissibility of new evidence under Rule 351, as set out in Brace v. Canada, 2014 FCA 92 at para. 11:
(1) The evidence should not be admitted if, by due diligence, it could have been adduced at trial. . . . (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. . . . (3) The evidence must be credible in the sense that it is reasonably capable of belief. . . . (4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. . . -Canada (Judicial Council) v. Girouard, 2019 FCA 148 [2019] 3 FCR 503;
24. This test is virtually identical to the test used by the Supreme Court of Canada in its September 2020 judgement, Bent v. Platnick, 2020 SCC 23, affirming and applying the test from Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775 obliging the court to “consider” the following factors (at paragraph 50):
“For fresh evidence to be admitted, the Palmer test requires consideration of the following four factors:
437 (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases . . . . (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [p. 775]”
25. In that case, the majority in the Supreme Court ruled that three letters be admitted into evidence on appeal in a private dispute. The minority reasons also applied the Palmer criteria, but appeared to have a different understanding of the relevant timeline from the majority, and explained their refusal to admit new evidence by indicating that if the letters had been entered less than 18 months following their discovery and if the appeal record had been less than 15 volumes, they would have been more sympathetic to admission.
26. In the present case concerning the glyphosate re-evaluation, the timeline, the size of the trial record (especially in relation to the PMRA decision record), transparency concerns, and the potentially serious public health implications weigh more heavily in favour of admitting new evidence.
27. Furthermore, in 2019, the majority in the Supreme Courts decision in R. v. Calnen 2019 SCC 6—citing Supreme Court precedent and the, dissenting in part, reasons of Justice Martin—emphasized the Supreme Court’s longstanding opinion that a rigid application of the criteria to admit new evidence on appeal should not lead to a miscarriage of justice. The decision explains the link between the objective of finality and due diligence of the moving party with the interests of justice, at paragraph 70:
438 This Court has stated that the principle of finality is “essential to the integrity of the criminal process”…It has also stated, as my colleague rightly points out, that the due diligence criterion for the admission of fresh evidence on appeal, which exists to ensure finality, “must yield where its rigid application might lead to a miscarriage of justice”:
28. Justice Martin’s comment, to which the majority referred, underscores the objective of ensuring the interests of justice and trial fairness are ensured:
“In R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, Major J. tempered his discussion of the importance of finality and order in the context of the due diligence criterion respecting fresh evidence by stating, “[t]hat criterion must yield where its rigid application might lead to a miscarriage of justice…Indeed, this Court has rarely adopted a rigid approach to the principle of finality. Rather, the criminal justice system is predicated on two equally important principles that must be counter balanced: the principle of finality and the principle of trial fairness…” -R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. at paragraphs 216-217. Available at: https://www.canlii.org/en/ca/scc/doc/2019/2019scc6/2019scc6.pdf
29. CHSL submits that the Federal Court of Appeal’s should not let strict pursuit of finality and due diligence of public interest litigants to perfect the pre-trial evidentiary record operate to forgive the PMRA for concealing 98% of its decision-making record and delaying its review a decade past an express statute-mandated deadline.
30. Rigidly opposing the admission of new evidence on appeal in cases where there are marked problems with transparency amounts to bias in favour of the motion-resisting party (assuming that the Respondent Federal Government will resist this motion) and, as such, is inconsistent with the Court’s curial duties and the interests of justice.
439 31. For the convenience of the Court of Appeal, we will apply the four criteria set out in Girouard/Brace to the proposed evidence in a table format that follows. However, some general points bear consideration.
a) Could the evidence have been admitted at trial with due diligence: CHSL did not become aware of this regulatory decision until the eve of trial and uncovered all of these documents on its own initiative prompted only by reading and fact-checking the slim volume of materials that were available on the Internet and, eventually, by the Certified Tribunal Record. As such, there is no issue of a failure of diligence or a deliberate holding back of evidence to explore new arguments on appeal. Initially, CHSL’s investigation was in aide of an effort to determine whether devoting scarce institutional resources to an issue at the periphery of its mandate was merited for litigation or journalism. Furthermore, much of this information was published after the trial decision. CHSL further submits that too forcefully guarding against the hypothetical mischief of Interveners concealing evidence at trial for a surprise on appeal unjustly favours respondents that makes administrative decisions by concealing much of the relevant information. The PMRA asks the public and Parliament to accepts that its decisions should be taken on faith based on a highly selective recounting of the evidence. As such, it fails a fundamental test of transparency and should not be aided in that effort by appeal courts concerned too much with protecting the finality of trial court decisions.
b) Is the evidence relevant to a potentially decisive issue in the trial? CHSL’s perspective of the PMRA decision is this it was written in a way that understated, dismissed or ignored pertinent information (some masking further defects and biases in the decision-making process), including:
440 i. the vast body of published scientific research on glyphosate including a key World Health Organization report; ii. that so few published scientific studies brought were brought to the attention of the PMRA by seller-registrants despite a lawful duty to do so; iii. information about conflict of interest safeguards, if any, used by PMRA when considering seller-provided studies to the near- exclusion of published studies; iv. the fact that the opportunity to file a formal objection to the PMRA 2017 decision was not notified through the usual Health Canada consultation channel; v. a description of 2004 and 2015 Statistics Canada food consumption surveys that were passed over as a tool for estimating the exposure of Canadians to glyphosate residues in food in favour of a 1990s American food consumption survey; vi. the physical and legal barriers used to impede public access to PMRA’s decision-making record; vii. information about the PMRA’s regulatory response to label-usage failures despite the court’s and PMRA’s reliance on them as safety measure and the lower court’s assumption that scientist have no role in reviewing them; viii. proof that the PMRA was reminded of its Charter of Rights and Freedoms responsibilities by the Prime Minister prior to the lower court hearing; ix. the failure to acknowledge the volume of litigation alleging harm caused by glyphosate; x. the correct, up-to-date regulatory status in the European Union where most OECD countries are located (which have statute-stipulated significance in the Canadian pesticide regulation process) and the source of such information; and
441 xi. the amount of glyphosate used in Canada, including in relation to amounts used in the United States and the European Union. c) Is the evidence reasonably capable of belief: CHSL petitions the Federal Court of Appeal to admit a set of reliable, authoritative documents and excerpts comprising approximately 100 pages of material including official government reports and expert reports published in peer-reviewed scientific journals, including: A. a screen-shot from the publicly accessible www.sciencedirect.com, a widely used scientific research tool that catalogues scientific articles from around the world on all topics, the vast majority of which is published in English; B. a screen-shot of the outcome of a search for “glyphosate” on Health Canada’s “Consultation and Stakeholder Information Management System;” C. an email response from the PMRA to CHSL concerning the public’s legal and physical barrier to Reading Room documents concerning the re-evaluation of glyphosate; D. an excerpt from the PMRA’s Report to Parliament; E. testimony of a Director General of the PMRA and a witness from the Canadian Environmental Law Association before the Standing Senate Committee on Agriculture and Forestry; F. an Access to Information Act disclosure from PMRA of the precise amount of glyphosate sold in Canada in each year from 2007 to 2017; G. a report prepared by academic experts using government data cataloguing the amount of glyphosate used in the European Union; H. an article published in a peer-reviewed scientific journal cataloging the amount of glyphosate used in the United States; I. the 2019 mandate letter to the Minister of Health from the Prime Minister of Canada;
442 J. incident reports of published scientific studies about glyphosate reported to PMRA pursuant to a statutory of registrants and published on PMRA’s website; K. a media statement on glyphosate published by Health Canada two weeks before the hearing in the Federal Court; L. a report by the United Nations Special Rapporteur on the Right to Food concerning glyphosate; M. an article published in a peer-reviewed law journal cataloging the amount of litigation claiming harm caused by glyphosate; N. an article authored by 94 academic experts and published in a peer- reviewed speciality journal of the British Medical Journal distinguishing the approach to seller-sponsored studies used by World Health Organization’s International Agency for Research on Cancer from the approach used by the European Food Safety Agency, PMRA’s counterpart; O. three concise official summaries of the regulatory status of glyphosate in the European Union from the European Commission and the European Parliament; P. PMRA’s enforcement statistics; and Q. a description by Statistics Canada of a large nationally representative survey of food consumption patterns conducted in 2004 and 2015. d) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result: If believed by this Court of Appeal, the new evidence would reveal that: i. the PMRA ignored or dismissed without reasons 96% of 8,179 studies on glyphosate published in peer-reviewed scientific journals by the year before it announced its final decision on
443 glyphosate while relying mostly on 89,000 pages of seller- provided studies. ii. the PMRA took multiple steps to conceal the evidentiary basis for its decision, including: a) failing to notify all stakeholders of the publication of its 2017 decision and the opportunity to file a formal objection, b) physical distance to the reading room in Ottawa, c) non-disclosure agreements, and d) the threat of criminal prosecution for disclosure of information in the record; iii. Canada was and remains a heavy user of glyphosate compared to the United States and Europe, but shared information about Canadian sales in a way that lacked specificity and transparency; iv. an estimated 40,000 law suits have been filed in the United States and at least nine class action in Canada (of which the Federal Court of Appeal can take judicial notice from the Canadian Bar Association class action database http://cbaapp.org/ClassAction/Search.aspx) that claim physical harm caused by glyphosate; v. the complexities of the typically 100-page-long glyphosate product labels warrant this Court of Appeal to be more circumspect than the reviewing court in considering the advice of scientists in fashioning a remedy; vi. the European Union regulatory status of glyphosate changed in 2016 and dramatically again in 2017, which facts were not brought to the reviewing court’s attention by the Respondent or PMRA at the 2020 judicial review hearing, leaving the lower court to rely on the out-dated and incorrect information in the 2017 PMRA decision; and
444 vii. Health Canada had access to a massive 2015 and 2004 Canadian survey of food consumption patterns at the time when it relied on 1990s U.S. data as a proxy to estimate Canadians’ exposure to glyphosate pesticide residues. All of this exhibits a pattern of failures in transparency indicative of bias and akin to flying under the radar to reduce the likelihood of judicial review and public scrutiny.
32. While the Court of Appeal also retains a discretion to admit evidence even if the conditions of section 351 are not met, the relief promised by that section has been dispensed much less frequently even as the stringency of the relevance criterion has been relaxed from “practically conclusive of an issue on the appeal” to “bears upon a potentially decisive issue in the trial.” We urge the Court of Appeal to admit evidence not available at trial on several issues to ensure that the Federal Court of Appeal panel is not kept in the dark in several important ways in which the reviewing trial court was.
Doubt about the relevance of new evidence and the need for a properly informed Court of Appeal militate in favour of admission of fresh evidence in these special circumstances.
33. The concurring minority reasons in Vavilov delivered by Justices Abella and Karakatsanis, also called for a robust, informed review even though they advocated a more deferential approach to government decisions than the majority. Abella and Karakatsanis, at paragraph 201 and 242, stated:
…The majority’s reasons are an encomium for correctness and a eulogy for deference…Moreover, central to any definition of the rule of law is access to a fair and efficient dispute resolution process, capable of dispensing timely justice…For this reason, access to justice is at the heart of the legislative choice to establish a robust system of administrative law…3
445 34. Furthermore, the concurring majority decision states: …a reviewing court is not restricted to the four corners of the written reasons delivered by the decision-maker…We support a flexible approach to supplementing reasons…Some materials that may help bridge gaps in a reviewing court’s understanding of an administrative decision include: the record of any formal proceedings as well as the materials before the decision- maker, past decisions of the administrative body, and policies or guidelines developed to guide the type of decision under review…(paragraphs 301-303, emphasis added)
35. Contrary to this approach, the PMRA asks the Court and the Appellant to rely on the 2015 Decision, the 2017 supplementary reasons and conclusion, and a small assortment of additional documents that it chose to include in the Certified Tribunal Record from an 89,000-page re-evaluation package that few Canadians have seen apart from pesticide sellers and staff of the PMRA.
36. In Sawridge Band v. Canada this Federal Court of Appeal admitted into evidence under Rule 351 “to avoid further delay and expense” even though a formal motion had not been advanced by the Appellants. It took a modest approach to assessing relevance by deferring to the appeal panel’s judgement on the relevance and weight at paragraph 6:
…it can be difficult for a judge to decide the relevance of an item at the stage of determining the contents of the appeal book. Accordingly, the cautionary principle suggests that, even though the party seeking to have material included in the appeal book has the burden of establishing that it is admissible, a judge, if doubtful of its relevance, should not exclude it on a motion to determine the contents of the appeal book…The panel hearing the appeal will be better placed to determine the relevance and weight of the disputed items.4 -Sawridge Band v. Canada, 2005 FCA 259 (CanLII),
446 37. Similarly, this Federal Court of Appeal noted in BC Tel v. Seabird Island Indian Band, at paragraph 29:
… It is impossible to say for certain whether this would have changed the outcome of the case, but I have no doubt that, on the correct legal analysis, this evidence would have been valuable and influential, and "could reasonably be expected to affect the result of the trial" (Chippewas, supra, at paragraph 20). -BC Tel v. Seabird Island Indian Band, 2002 FCA 288 (CanLII), [2003] 1 FC 475,
38. Furthermore, this Court of Appeal in that case continued at paragraph 30:
Moreover, even if the appellant had failed to satisfy the three-prong test set out above, it is well settled that this Court retains an overriding discretion to admit new evidence nevertheless. This discretion may be exercised to avoid an undue burden on scarce judicial resources and "permit a complete record on the appeal so as not to leave the Court in any doubt as to the surrounding circumstances"…
39. The remedy for any prejudice to the government of admitting its own publications and ones that it must be presumed to have reviewed in “leaving no stone unturned” is allowing it to proffer further evidence or argument by reply. For instance, the Federal Court of Appeal in Humanist Assn. of Toronto v. Canada ruled that the remedy for any prejudice to the federal government is better achieved by allowing it to offer reply evidence. This Court of Appeal wrote, in part, in paragraphs 8 and 12:
In my view, if the Minister is somehow prejudiced by the failure of the appellant to present him earlier with evidence of those comparative organizations, the cure is not to deny the appellant's motion, but to permit the Minister to adduce reply evidence if he wishes to do so….This appears to me to be a case where,
447 despite the existence of some doubt about whether the formal tests for the admission of new evidence of appeal have been met, the interests of justice would best be served by permitting the new evidence to be presented on appeal. For that reason, the motion will be granted, with leave to the Minister to adduce an affidavit in reply if he wishes to do so, subject to a deadline that will be stipulated in the order. -Humanist Assn. of Toronto v. Canada, 2002 FCA 322 (CanLII),
Proposed evidence indicates fundamental concerns for the entire legal system which could impact the choice of the standard of review (correctness instead of reasonableness)
40. CHSL submits that the defects in the decision-making process are so serious, they reveal that the PMRA decision was unreasonable, and the reviewing court’s reliance on it was a palpable and overriding error. However, the category and quantity of such errors are so fundamental to administrative decision-making that they attract the stricter correctness standard. The majority concurring opinion in Vavilov affirmed that: …certain general questions of law “require uniform and consistent answers” as a result of “their impact on the administration of justice as a whole”…In these cases, correctness review is necessary to resolve general questions of law that are of “fundamental importance and broad applicability”, with significant legal consequences for the justice system as a whole or for other institutions of government…(paragraph 59)
41. While this category of questions should not be interpreted liberally, this Court of Appeal’s decision to decline the relief sought (or to provide it with insufficiently prescriptive terms) could cheapen the meaning of the scientifically based approach (including bias in favour of seller-sponsored studies and against studies published in peer-reviewed journals), the precautionary principle, conflict of interest safeguards, Parliamentary deadlines,
448 transparency, and condone an injudiciously narrow scope of the rights to health and security of person under section 7 of the Charter of Rights and Freedoms.
42. In particular, the Prime Minister, Parliament, and the Governor-in-Council have stipulated the that the scientifically based approach, variously described in statutes, regulations and government policy, should be used to inform government action. If this court condones a government agency’s decision to interpret this to mean mainly industry-provided science can be relied upon, it could lower to standards for federal government decision-making especially in regulation of chemicals, food, tobacco, alcohol, children’s toys, bedding and textile, etc. and diminish the value of the chief pursuit of the advancement of scientific knowledge: publications in peer-reviewed journals.
43. Furthermore, if not remediated by the courts, governments in Canada will be sent a message that taking a statute-mandated “scientifically based approach” and “precautionary principle,” in a regulatory scheme that expressly recognizes the importance of conflict of interest safeguards can be pursued by considering all seller-sponsored studies and dismissing 96% of articles considering glyphosate published in peer-reviewed scientific journals.
44. Because the PMRA exhibited numerous failures of transparency, CHSL seeks to admit new evidence to verify, particularize and quantify the scope of those omissions and alert the Court of Appeal to the fact that those gaps in the record mask deeper problems with the decision justification, far more than formalistic idiosyncrasies. These broader failures help put the disappointment of the Objectors—some of which are joined in this appeal—in a new light.
45. Even if the consequences of an ill-informed glyphosate decision were limited to glyphosate alone (i.e., without ramifications for other pesticides or other federal and provincial application of science to decision-making), the result could be that PMRA’s 2017 decision will leave a potentially unsafe pesticide
449 on the market until the year 2032, or if prior practice of the PMRA is indicative of future behaviour, until 2042, or 2058. The scientific Review Panel remedy sought by the Appellant, of course, does not remove glyphosate from the market, it only mandates double-check the evidence analysis that purports to keep it there.
46. Courts cannot overlook evidence or admissions of bias in the pursuit of finality in the appeal process or deference to government.
47. If defects in transparency are not analyzed by the courts with the benefit of new evidence exposing those gaps, governments and regulated industries will be sent the message that administrators of delegated authority can fly under the radar and insulate their decisions from review by carefully curating the published reasons to conceal vulnerabilities and limiting circulation of information using over-broad non-disclosure agreements enforced with the threat of criminal prosecution.
48. If this Federal Court of Appeal narrows its attention in this appeal so much that it overlooks the decade-long delay in meeting Parliament’s express deadline to initiate a scientific re-evaluation of the world’s and Canada’s most widely pesticide, the rule of law and the primacy of Parliament may suffer in ways that are difficult to repair.
49. If this Federal Court of Appeal relieves the PMRA, Minister of Health, and Attorney General from any duty to display candour in its decision-making and holds the Appellant, a small NGO, to a high burden of spotting all issues arising from a massive, largely invisible decision-making record, administrative decision makers may learn that the expense and complexity of litigation is usually enough to avoid scrutiny and judicial supervision. 50. While it is not for this or any other reviewing court to serve as an academy of public health science, Vavilov5 stands for the proposition that a robust review of
450 the administrative decision is required, namely that the reasonableness review: “is not a “rubberstamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.” (paragraph 13).
51. In particular, the reviewing lower court fell short of the Vavilov standard in at least four respects connected with issues raised by the Appellant but not elaborated in its notice of Appeal.
FOUR DECISION-MAKING FAILURES OF GENERAL CONCERN FOR THE LEGAL SYSTEM THAT NEW EVIDENCE CAN HELP ILLUMINATE
ONE: Failures of Transparency
52. Vavilov held that “…reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent…It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party.” (paragraph 95)
TWO: Bootstrapping Tribunal Decisions is inappropriate
53. Vavilov held that:
“it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome…” (paragraph 96);
54. However, the lower court’s judicial review judge bootstrapped the tribunal decision by offering an, at best, grossly misleading characterization of the
451 regulatory status of glyphosate in Organization of Economic Cooperation and Development (OECD) countries by offering an explanation in the PMRA glyphosate Re-evaluation Decision – RVD2017-01 about which she heard and invited no evidence or argument from counsel.
55. Moreover, the citation for the source of this characterization, a 2002 European Union decision that was scheduled to expire in 2016, was omitted from the PMRA’s 2017 final decision and no mention was made of the vastly different regulatory situation that was percolating in 2017 or the result, even in the 2018-2020 lower court pleadings and oral argument in the hearing.
56. The lower court judicial review also dismissed the value of a Review Panel to advise on the label warnings based on no evidence on the record, without appearing to recognize that glyphosate labels (including two examples in the Certified Tribunal Record) are sometimes 100 pages long, and that failure to follow label instructions is the reason for 72% of enforcement penalties (which is revealed in the proposed new evidence).
THREE: The court failed to recognize bias in favour of seller-provided science and against published scientific research which is indicative of a deficiency recognized in Vavilov.
57. The failure of the Federal Court to recognize the bias of the PMRA against research published in peer-reviewed journals constitutes an error that Vavilov described as follows: “…The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias…(paragraph 126)
452 58. However, the Certified Tribunal Record reveals that the PMRA regarded scientific studies published in peer-reviewed journals as generally not very useful for evaluating pesticides.
“1.1.14 Use of Independent Scientific Studies Comment A number of comments stated that the PMRA, in its review of glyphosate, appeared to consider only “seller sponsored science”. The comments referred the PMRA to a number of published studies that link glyphosate to health effects. Overall, these comments emphasized support for the use of “third party” data in assessing the health effects and making the final re-evaluation decision for glyphosate, in lieu of manufacturer-supplied data. PMRA Response [After explaining the basis for PMRA’s belief in the trustworthiness of company-applicant-provided studies, PMRA added:] Studies conducted by academic laboratories often have lower statistical power due to the use of fewer animals, investigate far fewer toxicological endpoints, and lack sufficient detail in their published form. These limitations prevent regulatory authorities from performing an in-depth analysis of study results… In addition to registrant supplied data, more than 1500 scientific articles related to glyphosate were examined, with approximately 250 of these studies being deemed relevant and useful for consideration in the environmental risk assessment.” -pages 31-32 of the PMRA glyphosate Re-evaluation Decision – RVD2017-01 ,
59. While the Pest Control Products Act puts the onus on the applicant to establish that health and environment risks are acceptable, the Review Panel Regulations show that the legislative scheme recognizes that safeguarding against financial self-interest
453 should be a concern of PMRA. For instance, section 4 of the Review Panel Regulation states, in part:
4 If the Minister determines that it is necessary to establish a review panel of one or more persons, each person selected by the Minister shall… (c) have provided the Minister with a written statement indicating that they are free from any actual or potential conflict of interest that relates to the decision under review; and (d) have undertaken in writing to disclose to the Minister in writing, without delay, any actual or potential conflict of interest that may arise and affect their duties as a member of the review panel. [emphasis added]
FOUR: Common law rules governing the administration of justice should not have the effect of reversing the onus of proof mandated by the Pest Products Control Act
60. This is the first time the Federal Court of Appeal will be considering a decision of the PMRA under s. 35 of the Pest Control Products Act and the PMRA’s mandate under that Act, generally. Accordingly, the Federal Court of Appeal should avail itself of reliable information about the decision-making approach and scope of evidence considered by the decision-makers below and CHSL will make its best efforts to provide its unique perspective about these issues.
61. Section 19 of the Pest Control Products Act places the burden on the registrant to prove the safety of pesticides during re-evaluations:
Burden of persuasion and consideration of information 19 (1) During an evaluation that is done in the course of a re-evaluation or special review,…
454 (b) the registrant has the burden of persuading the Minister that the health and environmental risks and the value of the pest control product are acceptable;
62. It would be a contrary to the interests of justice and the public health purposes of the Pest Products Control Act to rigidly apply rules protecting the finality of lower court or deference to administrative decision-making in a way that has the effect of creating an innocent-until-proven-guilty approach to pesticide regulation, especially when the statute expressly requires the PMRA to apply the precautionary principle.
63. The Supreme Court of Canada in Vavilov stressed the heighten duty of administrative decision-makers to justify decisions that impact the health and liberty of individuals. It opined:
“The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood.” (paragraph 133).
64. In addition, the concurring minority opinion in Vavilov which as noted above, advocated a more deferential approach to government, held that:
“...a reviewing court is not restricted to the four corners of the written reasons delivered by the decision-maker… We support a flexible approach to supplementing reasons…Some materials that may help bridge gaps in a reviewing court’s understanding of an administrative decision include: the record of any formal proceedings as well as the materials before the decision- maker, past decisions of the administrative body, and policies or guidelines developed to guide the type of decision under review. (paragraphs 301-303)
65. Vavilov reminded the judiciary that:
455 [24] …because judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely: …
65. Unlike a civil trial, in which both parties are entitled to discovery of all relevant documents, or a criminal trial in which defendants (usually individuals) are entitled to disclosure from the state, public interest advocates in the PMRA glyphosate decision (and possibly other pesticide decisions) are deprived of the vast majority of the facts and evidence upon which the decision-making record is based.
66. To use an criminal law analogy, it would be a mistake to, essentially, allow the government to employ an “innocent-until-proven-guilty” approach to govern the review of pesticide safety while failing to disclose the evidence dossier to public health advocates and blinding itself to “incriminating” evidence of harm (by ignoring most published peer-reviewed research).
67. As professors Hendlin, Arcuri, Lepenies, and Hüesker noted in their analysis of the impact of glyphosate on aquatic environments and the application of the precautionary principle to regulation:
It would be a mistake, however, to take an “innocent until proven guilty” approach with regards to harms, especially in light of the lack of well- established monitoring mechanisms. - Yogi Hale Hendlin, Alessandra Arcuri, Robert Lepenies, and Frank Hüesker, “Like Oil and Water: The Politics of (Not) Assessing Glyphosate Concentrations in Aquatic Ecosystems,” European Journal of Risk Regulation, 11 (2020), pp. 539–564 doi:10.1017/err.2020.65
SUMMARY AND CONCLUSION
68. Had the new evidence described above (and particularized in the chart below and the Exhibits “A” to “Q”) been before the Federal Court, the Judicial Review Application Judge would have concluded that:
456 • there was scientifically founded doubt about the PMRA decision in consideration of the enormous volume of published scientific evidence that was dismissed without explanation and the extensive and persistent barriers between the public and the 89,000-page documentary record available only at a reading room in Ottawa; • the PMRA exhibited an institutional bias against published scientific research and preference for seller-provided evidence that reveals a fundamental failure of the regulator to follow a scientifically based approach as mandated by the Pest Control Products Act and exhibits a low esteem for an important foundation of validation of expertise, university-based academic training in science; • the regulatory status of glyphosate in OECD countries was incorrect or, as best, grossly misleading in relation to the regulatory status of glyphosate in the European Union; • the capacity and effectiveness of glyphosate product labels to mitigate the risks to health and the environment is a complex matter that is better left to scientists and about which she heard too little from both parties; and • generally that the PMRA decision fell short of the standard of transparency and candour summarized most recently by the Supreme Court of Canada in Vavilov.
PART IV - ORDER REQUESTED For the foregoing reasons, the Appellant respectfully requests:
69. The [proposed] Intervenor Centre for Health Science and Law (CHSL) brings this motion in writing for leave to present new evidence in this appeal from a decision of the Federal Court to dismiss the Appellant’s application for judicial review.
457 70. In the alternative, the Court should permit the Appellant to include the documents in the appeal book and defer to the appeal panel the decision on whether to admit them into evidence. The appeal panel can determine the fresh evidence motion informed by the full record and submissions on the merits of the appeal.
71. In the alternative to both options 1 and 2, the Court could admit the proposed evidence for the sole purpose of informing the terms of the remedy granted by the Appeal Panel, after its decision to order the appointment of a Review Panel, but not on the threshold question of whether a Review Panel should be appointed in the first place.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this ___ day of December 2020.
Bill Jeffery Counsel for the [proposed] Intervener Centre for Health Science and Law Lawyers for the Appellant (Moving Party)
SCHEDULE “A” LIST OF AUTHORITIES 1. Bent v. Platnick, 2020 SCC 23 2. Palmer v. The Queen, [1980] 1 S.C.R. 759 3. Humane Society of Canada for the Protection of Animals and the Environment v. Canada (National Revenue), 2013 FCA 154 (CanLII),
458 8. R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. at paragraphs 216-217 available at: https://www.canlii.org/en/ca/scc/doc/2019/2019scc6/2019scc6.pdf 9. Sawridge Band v. Canada, 2005 FCA 259 (CanLII),
SCHEDULE “B” STATUTES, REGULATIONS and BY-LAWS 1. Federal Courts Rules, SOR/98-106, rr 317, 318, 344(1), 351 2. Pest Control Products Act, SC 2002 c 28, s. 35 3. Review Panel Regulations, SOR/2008-22, ss 2, 3 and 4 4. Canada Gazette, Part I, Vol 131 (38)
This is Exhibit "A" referred to in the affidavit of BILL JEFFERY AFFIRMED REMOTELY** by - Bill Jeffery, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Ontario, this ___ day of December 2020
459 Could not have Issue/Documents Relevant to a Reasonably If believed it could reasonably, when taken EX been admitted at (approx. 100 pages in potentially decisive capable of with the other evidence adduced at trial, be trial with due total) issue in the trial belief expected to have affected the result. diligence A. Appellant issue 7(b): CHSL was not aware Appellant issue 7(b): This database is www.sciencedirect.com reveals that 12,007 Transparency, of lis or regulatory Transparency, a widely peer-reviewed research articles had been justification, and decision until two justification, and accepted, published on glyphosate by Setemeber 28, intelligibility: weeks pre-trial. intelligibility. publicly 2020. By December 31, 2016, the year prior accessible to the publication of the PMRA glyphosate screen shot from Furthermore, This search output database of Re-evaluation Decision – RVD2017-01, 8,179 publicly accessible CHSL’s mandate is illustrates the number of peer-reviewed, studies had been published in peer-reviewed open-access database usually restricted to studies on glyphosate published journals. Accordingly, because only 350 search results on human health issues, that were published in scientific published peer-review studies were cited in “glyphosate,” so relies on the peer-reviewed journals research papers. the PMRA glyphosate Re-evaluation Decision www.sciencedirect.com https://pubmed.ncbi. 1975-2020 and 1975- – RVD2017-01) only 4% (350 of 8,179) of nlm.nih.gov/ 2016 which is a reliable published per reviewed studies were scientific database. estimate of the total demonstrably even considered by the PMRA. universe of published Accordingly, 96% of published, peer- research the PMRA reviewed studies were dismissed by the should have considered PMRA without explanation except a stated in its re-evaluation of preference for seller-sponsored studies and glyphosate. The Federal bias against studies published in peer- Court of Appeal can take reviewed scientific journals stated in Re- judicial notice of the fact evaluation Decision – RVD2017-01 at pages that publishing scientific 31-32 and elsewhere. PMRA admits that, at research is a central most, 1,500 peer-reviewed studies were even
460 defining feature of the considered, and most were provided by the “scientifically based registrants. This is indicative of a nearly approach” though this is wholesale rejection of science by the PMRA. also described in the Unlike legal jurisprudence, scientific Portier article (also evidence has no prescribed hierarchy of proposed as new importance; the merits of each study must be evidence). weighed using criteria of scientific study features. EX Issue/Document Available at trial Issue/Document Credibility If believed, could have affected result B. Appellant issue 7(b): CHSL was not aware Appellant issue 7(b): This is a tool The failure to include the PMRA glyphosate Transparency, of lis or regulatory Transparency, developed and Re-evaluation Decision – RVD2017-01 in the justification, and decision until two justification, and used by the CSIMS notification indicates that Health intelligibility: weeks pre-trial. intelligibility and Respondent Canada considered it to be a final decision Health Canada. that was no longer subject to consultation or Screen-shot of Health Though this This evidence is It must be that it sought to restrict the number of Canada’s information was indicative of failure of presumed to be stakeholders that were aware of the decision Consultation and technically available transparency. Though an accurate and the opportunity to object and, Stakeholder at trial, the Appellant the appellant did learn account of its importantly, the 60-day deadline. Information could not reasonably about the opportunity to efforts to notify Management System be expected to have file a notice of objection stakeholders of This omission may explain why no major (CSIMS) database anticipated that the by participating in the its proposals and health and cancer groups participated in the search on glyphosate PMRA might have 2015 consultation, it decisions that Notice of Objection procedure following the on September 24, 2020 deprived other could not reasonably be are subject to publication of the decision. According to the stakeholders expected to recognize a public PMRA, the following groups filed Objections knowledge about a practice that deprived participation, withing the 60-day limitation period:
461 consultation it was others of knowledge such as filing a • individual citizens; following. about the PMRA notice of • Friends of the Earth; glyphosate Re-evaluation objection. • Safe Food Matters Inc.; and Decision – RVD2017-01. • a joint Notice of Objection from Équiterre, the David Suzuki Foundation, the Canadian Association
of Physicians for the Environment, Environmental; and Defence and Prevent Cancer Now. -Certified Tribunal Record, volume 3, p. 491 EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result C. Appellant issue 7(b): CHSL was not aware The conditions of access The documents These documents confirm that the PMRA Transparency, of lis or regulatory to 98% of the tribunal’s were created by physically limited access to 98% (the 89,000- justification, and decision until two decision-making the PMRA and, page dossier, less the 1,739-page Certified intelligibility: weeks pre-trial. evidence is central to a essentially, Tribunal Record) of the decision-making determination of whether constitute evidence in the Re-evaluation of glyphosate October 5-6, 2020 CHSL became the PMRA made its admissions. If to: email exchange concerned from decision in a transparent the PMRA • Canadians willing to travel to Ottawa, between CHSL and reading the manner as required by wishes to • Who were also willing to sign two PMRA respecting Intervener law and articulated most dispute them, documents (one notarized) accepting access to the Ecojustice’s recently by the Supreme they can do so in that they could be criminally glyphosate Reading pleadings that access Court in Vavilov. argument or by prosecuted for publicizing any Room documents, to the full record was applying to information learned in the Reading including the attached effectively adduce further Room, and Form 7000 and prohibited by evidence.
462 PMRA’s proposed overbroad PMRA • Accepting that either 100% of the Affidavit access rules that, documents are considered confidential without this or co-mingled with public-access evidence, would not documents and confidential ones. come the court’s attention. All of this suggests that restrictions on access to the application record are over-broad and indicative of an opaque decision-making process that has the effect of insulating decisions from outside review. EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result D. Appellant issue 7(b): CHSL was not aware This Report indicates The PMRA’s Without this document in evidence, the trial Transparency, of lis or regulatory that: report to court would not have been aware of the justification, and decision until • the PMRA application Parliament must enormity of the 89,000-page application intelligibility and January 16, 2020, record included 89,000 be presumed to record that is available in an Ottawa reading two weeks pre-trial. pages of mostly be reliable at room by appointment only and that it rivals Issue 7(a)(v) The unpublished seller- least to the the total amount of published peer reviewed Federal Court accepted This report was provided studies; extent that the studies (8,179 multipage studies published by the PMRA's undue and tabled in Parliament • 99% of enforcement Respondent the end of 2016, that were discoverable at unreasonable reliance on December 8, actions (983 of 990 in would be www.sciencedirect.com), that were mostly on glyphosate labels as 2019, long after 2018-2019) were unlikely to ignored by the PMRA and that this dossier is a basis for dismissing written materials warning letters only, dispute the facts triple the size of the typical new pesticide the information were filed in the not fines, which might contained application package. presented in the trial. indicate widespread therein. Appellant’s Objection label-related violations
463 (the most common The Certified Tribunal record indicates that PMRA 2018-2019 reason for fines); the risk and usage directions on glyphosate Report to Parliament • makes a misleadingly labels typically run 100 pages long. The indicating the full neutral claim about the strong preference for warning letters as application record international public enforcement actions (99%), coupled with this includes 89,000 pages concern: “Glyphosate Federal Court of Appeal taking judicial notice of documents, that the is a widely used that all farmers are not inspected at all times, PMRA understated the herbicide that has suggests that preponderance of failures to global controversy bout attracted considerable follow label instructions (47 out 65 its use, and understate public interest around enforcement penalties over five reporting the problem withs the World.”; and years) indicates that failures to follow label following label • makes a claim about directions could be two hundreds or instructions. the scope of the thousands of times more commons than the scientific review “when fines suggest. If so, such failures to follow considering the entire label directions could indicate systemic body of relevant problems with labels about which data…in January 2019, independent scientific advice could be PMRA re-affirmed its valuable to remedy. decision that the original decision of The Report to Parliament, when taken with 2017 was valid.” the other evidence, indicates that adhering to [emphasis added] label instructions is a major problem and that PMRA understates the global health concern all of which when about glyphosate. considered with other
464 evidence are indicative of bias and the systemic defects in the labels. EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result E. Appellant issue 7(b): CHSL was not aware This report helps indicate The PMRA’s This fact indicates, when read with the PMRA Transparency, of lis or regulatory that a typical application Director General Report to Parliament, that the glyphosate justification, and decision until for a new pesticide is can be presumed application package is approximately triple intelligibility: January 16, 2020, 30,000 pages long, which to be the size of a typical application for a new two weeks pre-trial. is indicative of the scope knowledgeable pesticide. Testimony of the of the application record about the typical Director General, The Standing Senate for glyphosate, one-third size of pesticide This corroborates evidence from the European Policy, Committee hearing of the size of the application Union that the review proposal the issues are Communications and was held on May 28, glyphosate record. packages. As complex and the workload of reviewing it Regulatory Affairs of 2019, but CHSL had testimony to the should be assigned to a multi-person Review the PMRA to the no notice of this Standing Senate Panel. Standing Senate meeting. The Committee on Committee on transcript was Agriculture and Agriculture and published on the Forestry, its Forestry Committees website solemnity is without notice to amplified. CHSL on July 24, 2019. CHSL discovered this by due diligence
465 research in July 2020. EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result F. Appellant issue 7(b): CHSL was not aware This information is This information The actual information reveals the amount of Transparency, of lis or regulatory indicative of a is reported by glyphosate sold in Canada doubled during the justification, and decision until fundamental failure of the PMRA. period. intelligibility: January 16, 2020, transparency by PMRA. While we have two weeks pre-trial. The Pest Control no independent The amount of glyphosate sold in Canada is Transparency—PMRA Products Act requires basis for required to be published annually, but PMRA access to information This actual sales registrants to annually verifying these has reported it only in threshold disclosure of the information was not report to PMRA the numbers, the approximation, namely “>25 million kg” each amount of glyphosate available until CHSL amount of glyphosate Respondent year 2007-2016, then “>50 million kg” in sold in Canada & obtained on they use in Canada and presumably 2017. excerpt of Health February 26, 2020 the PMRA promised in would not Canada’s pursuant to an the Canada Gazette to dispute them. Furthermore, the annual “Pest Control Pest Control Products Access to report this non-financial Products Sales Reports” that are mandated to Sales Report for 2016 Information Act information to the public be published by the Pest Control Products request filed after the annually. However, the Act, are not actually published in the trial. practice of preparing conventional and modern sense of the word. such reports and They are not printed, or posted on the disclosing them on- Internet, but made available in PDF format on request (not publishing a case-by-case basis upon request. This them in the traditional or means, for instance, that their contents do not modern sense of the appear in Google searches or among official
466 word) is also weakly government reports on the Internet or in transparent. public libraries. -Canada Gazette Part II, Vol. 140, No. 23, 2006- While protection of commercially sensitive 11-15, information may be important especially SOR/DORS/2006- 261 at p. 1679 and before patent rights expire, these measures 1684-5 seem like steps by PMRA to hoard information and guard it jealously, rather than be proactive transparency and are contrary to the commitment to published such information that was indicated in the Canada Gazette at the time the regulations were published. EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result G. Appellant issue 7(b): CHSL was the not A 2019 report of A 10-page If the PMRA glyphosate Re-evaluation Transparency, aware of lis or European scientists excerpt of this Decision – RVD2017-01 revealed that justification, and regulatory decision indicates the report indicates Canadian usage of glyphosate exceeds all of intelligibility: until January 16, contemporary sales of the amounts of Europe combined, the court below, the public, 2020, two weeks glyphosate for the entire glyphosate used and objectors might reasonably have Transparency—expert pre-trial. continent in 2018 were per country, in questioned whether the residues and concern report, A survey on the lower than in Canada in total for Europe, about risk might be commensurately higher. uses of glyphosate in The paper was 2017. and global European countries published in May controversies Under the circumstances, this is a question 2020, after the trial. not revealed in better addressed by a scientific Review Panel. Canada’s Re-
467 evaluation, as well as a summary, methodology, and conclusions. H. Appellant issue 7(b): CHSL was not aware The failure to report or This report was If the trier of fact or public readers of the Transparency, of the PMRA contextualize the amount published in a PMRA glyphosate Re-evaluation Decision – justification, and regulatory decision of glyphosate used in peer-reviewed RVD2017-01 were aware that Canadian usage intelligibility: until January 16, Canada indicates a lack journal by an of glyphosate is approximately half of the 2020, two weeks of transparency in the issue expert U.S. despite the vastly larger farmland and Transparency—peer- pre-trial. Re-Evaluation Decision. using data population might have raised questions about reviewed report This amount is a critical provided by and why this information was omitted from the entitled: Charles M. The report was piece of the risk with the advice PMRA decision in 2017. It may have also Benbrook, “Trends in published in 2016, assessment puzzle. The of the U.S. raised questions about whether Canadian food glyphosate herbicide but its pertinence did amount of glyphosate Department of and the environment, properly assessed, might use in the United not become evident used in Canada since Agriculture’s have many-fold higher residues that the States and until the precise 2007 is not reported in National United States. globally,” Environmen amount of the Re-Evaluation Agricultural tal Science Europe glyphosate sold in Decision, however, the Statistics (2016) 28:3 DOI Canada became amount used in the Service (NASS) 10.1186/s12302-016- available by Access United States helps 0070-0 to Information Act contextualize the request on February Canadian usage amount. 26, 2020. EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result
468 I. Appellant issue 7(b): CHSL was not aware The mandate letter states, Arguably, there While not specifically relevant to the mandate Transparency, of lis or regulatory in part: “We are can be no better of the Minister at the time of the PMRA justification, and decision until two committed to evidence- evidence of the glyphosate Re-evaluation Decision – intelligibility: weeks pre-trial. based decision-making Minister’s RVD2017-01, it should be relevant to the that takes into mandate than a position the Attorney General takes on behalf The Minister of This was not consideration the published job of the Minister in this appeal, particularly in Health’s 2019 available until impacts of policies on all description from relation to honouring the Charter of Rights mandate letter from December 13, 2019, Canadians and fully the Prime and Freedoms and making timely science- the Prime Minister a few weeks before defends the Canadian Minister. based decisions. trial and long after Charter of Rights and written materials Freedoms …[and] work were exchanged. to ensure that the [PMRA] makes timely science-based decisions to support the safe and sustainable use of effective pesticide products in Canada.” EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result J. Appellant issue 7(b): CHSL was not aware The relevance of these This report of The one-page display of publicly searchable Transparency, of lis or regulatory studies did not become the PMRA’s online PMRA database displaying records of justification, and decision until evident until the trial database of all scientific studies reported to the PMRA by intelligibility: January 16, 2020, Judge ruled: “It is also incident reports registrants 2007-2020 reveals that only 11 two weeks pre-trial. my view that is being offered such reports of published studies on scientifically founded for proof that glyphosate were made over a 12-year period
469 Incident reports of While available at doubt about the validity industry during which approximately 8,369 studies published scientific the time of trial, of the Evaluations must systematically were published (according to studies available at CHSL did not be demonstrated by at refrained from www.sciencedirect.com), indicating that https://pesticide- discover it until least one controlled peer sponsoring either registrants grossly under-report registry.canada.ca/en/in August 2020 while reviewed study published studies that scientific publications describing evidence of cident-report- conducting its due in a reputable journal that report negative harm or ineffectiveness, or that they rarely search.html mandated diligence in contradicts or raises a findings or sponsor studies that detect adverse incidents. by the Pest Product preparation to reasonable doubt about systematically The document reveals that no such studies Control Act and Pest intervene. The the Evaluations’ under-reported have been reported since 2012. Fewer than Control Products relevance of incident conclusions.” negative one in 750 published studies were judged by Incident reporting was findings to the registrants to be required to be reported to the Reporting Regulations, significantly PMRA. regulatory agency. If the PMRA is relying on SOR/2006-260 heightened when Incident reports these industry reports to alert it to health and Justice Simpson of scientific environmental risks or deficient value, it may concluded that the studies are be getting a grossly distorted view of Appellant was important glyphosate risks. If glyphosate registrants are unable cite a single because, unlike concealing unfavourable studies contrary to study raising the number of the regulations, or failure to fund studies that scientific doubt. unpublished report negative results, the PMRA should use reports of its enforcement powers to change company incidents, the behaviour and reflective about possible denominator of industry bias. published studies is easier to quantify.
470 EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result K. Appellant issue 7(b): CHSL was not aware The media statement that CHSL seeks to This statement is evidence that Health Canada Transparency, of lis or regulatory “Our scientists left no admit this not is furnishing different accounts the scope of justification, and decision until two stone unturned in for the truth of its review of the evidence. The truth of this intelligibility: weeks pre-trial. conducting this review.” its content, but statement is most clearly contradicted by the appears contrary to as proof that the www.ScienceDirect.com which indicates with Health Canada The Document was PMRA’s admission in statement was other admissions on the public record that January 16, 2020 created on the eve of the PMRA glyphosate made. The approximately 4% of all published peer- “Health Canada trial (January 11, Re-evaluation Decision – statement was reviewed journal article were considered Statement on 2020) after all RVD2017-01 that PMRA published on relevant by the PMRA. Glyphosate” exhibits and written generally dismisses Health Canada’s materials were published scientific website. exchanged. research in favour of seller-sponsored studies. L. Appellant issue 7(b): CHSL was not aware While class actions in The United This United Nations report provides Transparency, of lis or regulatory Canada were not filed Nations Special information that indicates that the PMRA justification, and decision until until 2018, class actions Rapporteur on breached a duty of transparency and candour intelligibility: January 16, 2020, and other civil suits in the Right to when it dismissed the relevance of U.S. class two weeks pre-trial. the United States and Food is an issue actions, understated to Parliament worldwide Report of the United Europe were well expert with a concern, and overstated the scope of its Nations Special The Report was underway and many global mandate. review of evidence. Rapporteur on the finalized nine days courts had approved Right to Food pre-trial, tabled at a multi-million dollar This document The PMRA’s Scientific Management (excerpt) reported to Human Rights settlements and jury is offered as a Committee rejected the relevance of US class the United Nations Council meeting awards. “A recent wave concise action outright without explanation on
471 commenting on the beginning on of litigation focused on articulation of November 18, 2018: “The Glyphosate Re- global volume of February 24, 2020 glyphosate…finally information evaluation Decision Document (RVD2017- litigation and nascent after the trial and catalysed State- about the 01) published by Health Canada April 28, regulatory restrictions discovered by CHSL implemented protection widespread 2017, is unrelated to legal events occurring in respecting glyphosate by research on in the form of bans, judicially the US.” August 18, 2020. restrictions and even considered monetary compensation concerns about for harm caused. Nearly the adverse 20 countries have health impact of adopted or announced glyphosate, future safeguards since worldwide that the International Agency is widely know for Research on Cancer in the food reported that the safety chemical was probably community. carcinogenic in 2015.” EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result M. Appellant issue 7(b): CHSL was not aware The quantity of court This evidence While news of the U.S. litigation involving Transparency, of lis or regulatory actions is relevant to the particularizes glyphosate was growing and a U.S. Right to justification, and decision until questions of whether is a the number of Know website was brought to the attention of intelligibility: January 16, 2020, risk that triggers the legal actions that the PMRA in 2018, this article indicates the two weeks pre-trial. precautionary principle is generally sheer volume of U.S. litigation to assist this Charles Benbrook, and whether there the corroborated by Court of Appeal in determining whether the “Shining a Light on This law journal Objections raised a the report of the PMRA’s decision that U.S. litigation is Glyphosate-Based article was published scientific doubt. United Nations irrelevant for reasons that were not stated and
472 Herbicide Hazard, in September/ Special cannot be presumed to be within the expertise Exposures and Risk: October 2020 citing Rapporteur on of the PMRA. The excerpt of the article also Role of Non-Hodgkin a Los Angeles Times the Right to indicates that two judges found that industry- Lymphoma tabulation published Food. It was provided safety evidence was problematic. Litigation in the on August 9, 2019. published first in USA,” European a major The PMRA’s Scientific Management Journal of Risk While the PMRA newspaper, then Committee rejected the relevance of US class Regulation, Vol. 11:3, might be expected to in a peer- action outright without explanation on 503. be aware of these reviewed November 18, 2018: “The Glyphosate Re- documents, the speciality legal evaluation Decision Document (RVD2017- Court of Appeal journal. 01) published by Health Canada April 28, would impose a truly 2017, is unrelated to legal events occurring in heavy burden of due the US.” diligence on the Appellant and intervenors to find and file the LA Times report pre- trial.
EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result N. Appellant issue 7(b): CHSL was not aware This article explains that This study was Justice Simpson quoted and appeared to rely Transparency, of lis or regulatory the difference in published in a upon the PMRA’s dismissal of the World justification, and decision until two approach and specialized Health Organization’s glyphosate monograph intelligibility: weeks pre-trial. conclusions about safety journal of the and acceptance of the European Food Safety
473 of glyphosate between respected British Authority’s assessment of the safety of Biography of lead Document obtained the World Health Medical Journal glyphosate. author and peer- in March 2020 Organization and the and authored by reviewed scientific during due diligence European Food Safety 94 scientists. This expert report casts considerable doubt on article by Christopher review of decision Authority may be The biography the claim that glyphosate is safe. J Portier and 93 other after notice of appeal attributable to the extent of the lead scientists: Differences filed by appellant. to which both bodies author indicates in the carcinogenic consider published that he served evaluation of glyphosate scientific research, for 32 years at between the treated conflicts of the United International Agency intertest, and observed States Centers for Research on Cancer transparency about the for Disease (IARC) and the authors of scientific Control, and European Food Safety research reports. was the Director Authority (EFSA), J of the Agency Epidemiol Community for Toxic Health 2016;70:741-745. Substances and Available at: Disease https://jech.bmj.com/con Registry. tent/70/8/741 EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result O. Appellant issue 7(b): CHSL was not aware The trial judge and These are These documents reveal that, contrary to the Transparency, of this lis or PMRA put the regulatory official status PMRA and trial court’s conclusion: justification, and regulatory decision status of glyphosate in reports available intelligibility: until January 16, OECD countries at issue on the European
474 2020, two weeks by furnishing a, at best, Commission • the E.U. (which includes 23 OECD Three official pre-trial. misleading and glaringly website. PMRA countries) conducts Union-wide safety summaries of incomplete must be evaluations, not individual national ones; glyphosate’s The first of these characterization of the presumed to be • that the EU reduced its recent re-approval regulatory status in three documents was status of glyphosate in, aware of this for glyphosate from 15 to five years the European Union: obtained January 27, especially, European status in the EU. expiring in 2022; 2020 during CHSL’s OECD countries. • that several member states preferred an even 1. “Summary report due diligence review (The Court of shorter reapproval period or immediate ban; of the appeal while deciding These documents also Appeal can take • that the large size of the glyphosate Committee, whether to attend the include valuable judicial notice of application record prompted the EU to Commission Health trial hearing. information pertinent to the OECD assign the review task to several countries, and Food Safety the Court of Appeal’s countries that not the usual one (relevant to the remedy in Directorate-General,” considerations of a are also this case); and 2. “Status Report on remedy. members of the • that the European Parliament voted Glyphosate in the EU or accept the overwhelmingly in favour of a ban in a non- EU,” and CHSL’s binding resolution in a vote of 355 votes to 3. “ MEPs demand concordance 204, in favour of the ban with 111 glyphosate phase-out, chart for its abstentions. with full ban by end convenience.) 2022” EX Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result P. Appellant issue 7(b): CHSL was not aware Justice Simpson The PMRA’s enforcement bulletin for 2015-2019 Transparency, of this dispute or concluded: enforcement indicates that 72% (47 of 65) monetary justification, and regulatory decision reports are penalties were for failure to follow label intelligibility and until January 16, published on instructions. The Certified Tribunal Record
475 2020, two weeks “[43] Lastly, the PCP PMRA’s (Volume I, at pages 15-114 and 206-305) Issue 7(a)(v) The pre-trial. Act imposes penalties website and reveals that glyphosate labels can contain 100 Federal Court accepted when a farmer fails to must be pages of detailed risk information and the PMRA's undue and While the PMRA’s follow directions on presumed to be instructions for use. The PMRA Report to unreasonable reliance enforcement labels.... accurate. Parliament indicates that 99% of enforcement on glyphosate labels as statistics were actions (983 of 990 in 2018-2019) were a basis for dismissing available pre-trial, [44] In my view, farmers’ warning letters, suggesting the possibility that the information their relevance did behaviour and failures to follow label-instruction may be presented in the Notice not become evident enforcement issues are widespread, especially recognizing that not all of Objection until the trial judge not topics for a panel of farms were inspected all the times. Together made an arbitrary expert scientists.” these facts indicate that scientific advice on PMRA enforcement finding of fact about label design may be necessary and poor labels bulletin for 2016-2020: the simplicity of may contribute to systemic risks of harm. https://www.canada.ca/ en/health- product labels that canada/services/consum was not supported by er-product- safety/pesticides-pest- the record. management/public/pro
tecting-your-health- environment/complianc e- enforcement/enforceme nt-bulletins.html Issue/Document Available at trial Bears on decisive issue Credibility If believed, could have affected result Q. Appellant issue at CHSL was not aware This description of This data was The Minister is obliged to use evidence of 7(a)(iii) iii. The Federal of lis or regulatory Health Canada’s survey collected by dietary exposure to pesticide risks under Court failed to decision until of food consumption Statistics sections 7, 11, and 19 of the Pest Control patterns of 24,000 Canada Products Act. This document reveals that
476 adequately consider the January 16, 2020, Canadians is relevant to following a contemporary Canadian food consumption information two weeks pre-trial. the adequacy of PMRA’s methodology data was available at the time that the PMRA presented in the Notice assessment of health developed with relied on two-decades-old U.S. food of Objection regarding The dietary survey risks of pesticide residues Health Canada. consumption data to assess Canada (b) increases in dietary was widely known in on food. It is the best glyphosate food residue risk. CHSL submits consumption of the nutrition available that a reviewing court judge might have chickpeas community but evidence on concluded that the PMRA made a and other indeterminate likely not in the Canadian fundamental error in using decades old crops that likely environmental dietary pattern. American food consumption data when increases Canadians' circles; however, At least, PMRA contemporary (or even 11-year-old Canadian exposure to glyphosate: Health Canada’s had a duty to data) data were available at Health Canada. failure to explain why it Failing to acknowledge the existence of such Statistics Canada, acknowledge its was using old, data displays a failure of transparency and a Canadian Community existence in the foreign data failure to take a scientifically based approach. Health Survey - decision reflects a instead. Though omitted in the 2017 decision, Nutrition (CCHS) fundamental failure PMRA’s 2015 PMRA consultation document Detailed information of candour and described the approach to assessing exposure for 2015 evidence-based risk to glyphosate in the Canadian food supply as analysis. if there were no Canadian data: “Acute and chronic exposure and risk assessments were conducted using… consumption data from the United States Department of Agriculture (USDA) Continuing Surveys of Food Intakes by Individuals (CSFII) from 1994 to 1996 and 1998.”
477 Court File No. A-85-20
FEDERAL COURT OF APPEAL
BETWEEN SAFE FOOD MATTERS INC. Appellant AND ATTORNEY GENERAL OF CANADA Respondent APPLICATION UNDER s. 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended
DRAFT MEMORANDUM OF FACT AND LAW of the CENTRE FOR HEALTH SCIENCE AND LAW (CHSL) in the MAIN APPEAL
PROPOSED INTERVENER CENTRE TO: ATTORNEY GENERAL OF CANADA FOR HEALTH SCIENCE AND LAW (on behalf of the Minister of Health and the Pest (CHSL) Mgmt. Regulatory Agency) P.O. BOX 4880, Station E Department of Justice Canada, ON Reg’l Off. Ottawa, ON, K1S 5J1 Department of Justice Canada Bill Jeffery (LSN: 37605S) 400-120 Adelaide St. W., Toronto, ON M5H lT1 Executive Director and General Counsel Per: Andrea Bourke (LSN: 45892K) Telephone No. (613) 565-2140 Tel: 647-256-7471; [email protected] All Correspondence by email to Elizabeth Koudys (LSN: 74644Q) [email protected] Tel: 647-256-7530 Counsel for the proposed intervener [email protected] Centre for Health Science and Law (CHSL) Counsel for the Respondent AND TO: SAFE FOOD MATTERS INC. AND TO: COUNSEL FOR THE Andrea Gonsalves (LSN: 52532E) INTEVENER ECOJUSTICE STOCKWOODS LLP Barristers Laura Bowman (LSN: 53645K) Toronto-Dominion Centre TD North Tower, [email protected] and Box 140, 77 King St. W, Suite 4130 Ian Miron (LSN: 63445O) Toronto ON M5K lHl [email protected] Tel: 416-593-3497 Fax: 416-593-9345 1910-777 Bay St, Box 106, TO, ON M5G 2C8 [email protected] T: 416-368-7533 (exts. 522 and 540, Counsel for the Appellant respectively)
478
PART I: FACTS
1. In 1976, the federal government registered glyphosate for sale and use in Canada under the nine-page, since repealed, Pest Control Products Act, RSC 1985, c P-9 (the old Act).
-page 53 of the PMRA glyphosate Re-evaluation Decision – RVD2017-01
2. In 2002, Parliament enacted the successor statute by the same name, the 81-page Pest Control Products Act, S.C. 2002, c. 28 which, among other things required the Minister of Health to initiate a re-evaluation of glyphosate by April 1, 2005—because it had been initially and most recently approved prior to April 1, 1990—and to follow a scientifically based approach and apply the precautionary principle in doing so, then re- evaluate it again at least every 15 years. -Section 16(2)(b), Pest Control Products Act, S.C. 2002, c. 28.
3. In 2015, the PMRA initiated its re-evaluation of glyphosate by publishing its Proposed Re-evaluation Decision PRVD2015-01 Glyphosate, a decade after the statutory deadline and 39 years after glyphosate’s initial registration.
4. This is the first time the Federal Court of Appeal will be considering a decision of the PMRA under s. 35 of the Pest Control Products Act and the PMRA’s mandate under that Act, generally. Accordingly, the Federal Court of Appeal should avail itself of reliable information about the decision-making approach and scope of evidence considered by the decision-makers below, including the Appellant’s formal Objection. CHSL will make its best efforts to provide its unique perspective about these issues.
5. In the PMRA’s final decision approving the continue used of glyphosate in Re- evaluation Decision – RVD2017-01, Health Canada exhibited a general bias against research that is published in peer-reviewed scientific journals. For example, pages 31- 32 state, in part:
479 1.1.14 Use of Independent Scientific Studies Comment A number of comments stated that the PMRA, in its review of glyphosate, appeared to consider only “seller sponsored science”….Overall, these comments emphasized support for the use of “third party” data in assessing the health effects and making the final re-evaluation decision for glyphosate, in lieu of manufacturer-supplied data. PMRA Response [After explaining the basis for PMRA’s belief in the trustworthiness of company- applicant-provided studies, PMRA added:]…Studies conducted by academic laboratories often have lower statistical power due to the use of fewer animals, investigate far fewer toxicological endpoints, and lack sufficient detail in their published form. These limitations prevent regulatory authorities from performing an in-depth analysis of study results. -PMRA glyphosate Re-evaluation Decision – RVD2017-01 at pages 31-32.
6. The judicial review of PMRA glyphosate Re-evaluation Decision – RVD2017-01 is also a case about failures of transparency, many of which mask further unlawful errors in decision-making.
7. In particular, the PMRA did not reveal or justify concealing the following fundamental facts about glyphosate and its re-evaluation process in ways that will be [if this Court of Appeal grants leave to admit new evidence] particularized, quantified, and verified to be so important they would have produced a different result in the lower court:
(a) The amount of glyphosate used in Canada per year was 56 million KG in 2017 which was learned by CHSL in 2020 by filing an Access to Information Act request and was established (from published evidence) to be approximately half of the amount used in the United States and more than the total amount used in all of Europe where is it also the most widely used pesticide, despite PMRA’s statutory
480 duty to collect these amounts from registrants and its promise in the Canada Gazette to report amounts that do not disclose the dollar value of sales; (b) That 8,179 peer review studies on glyphosate were published 1975-2016; (c) That only 4% (350) of studies considering glyphosate that were published in peer- reviewed scientific journals were cited in Proposed Re-evaluation Decision PRVD2015-01 and Re-evaluation Decision – RVD2017-01 were ignored or dismissed as irrelevant by the PMRA. (d) That the PMRA considered more than 1,000 seller-provided studies (evident from counting the number of studies listed in the reference lists of the proposed and final Decisions) comprising 89,000 pages of documents that were: • only available to the public in an Ottawa reading room, and • that were concealed from public scrutiny by a non-disclosure agreement enforced by the threat of criminal prosecution. (e) That the 1,739-page certified tribunal record comprises only 2% of the 89,000- page re-evaluation package for glyphosate which, itself, was triple the size of the typical application package for a new pesticide; (f) That the 2017 60-day opportunity for filing notices of objection to Re-evaluation Decision – RVD2017-01 was not included in Health Canada’s Consultation and Stakeholder Management Information System (CSIMS) consultation alerts; (g) What measures, if any, were taken to address the risk of bias or conflicts of interest in seller-sponsored studies; (h) The source of information to support the PMRA’s claim that no OECD countries banned the use of glyphosate or any important provisos to that claim, including the European Union decision cited in the 2015 Consultation Proposal had expired in 2016 and was vastly altered by new decisions in the EU in 2017, long before the trial hearing and decision; (i) How label-use failures are addressed by enforcement actions under the Pest Control Products Act, including that: • Label-use failures comprise 72% of the reasons for levying monetary penalties in 2015-2019;
481 • 99% of regulatory offenses are “enforced” by warning letters and that inspectors cannot observe all registrants all the time indicating the label- observance could be a widespread problem; and • Label-use failures comprise only 2% of violations detected and officially acknowledged by the PMRA. (j) That nine or more Canadian class actions and, by the time of trial, approximately 40,000 American legal claims had been filed alleging physical injury and death caused by glyphosate, especially its contribution to Non-Hodgkin’s Lymphoma, a form of cancer; and (k) That decades-old, U.S. food consumption data were used instead of contemporary Canadian food consumption data to estimate the exposure of Canadians to glyphosate pesticide residues.
8. These facts help put the disappointment of the Objectors, some of which are joined in this appeal, in a new and dramatically different light from the one cast by the lower court.
9. The 108-page 2017 PMRA glyphosate Re-evaluation Decision was not a thoughtful consideration of the consultation input, but a categorical rejection of all of the public input; the eight-page decision (pages 2-9) was followed by a 50-page point-by-point dismissal of 49 sets of criticisms of the 2015 proposed decision (and 45 pages of new references and appendices).
10. Although contrary to the plain meaning of the document title, the 108-page Re- evaluation Decision – RVD2017-01 appears not to be a final decision, but rather supplementary reasons for its 330-page Proposed Re-evaluation Decision PRVD2015- 01.
11. On November 15, 2018, the PMRA’s Science Management Committee summarily dismissed all eight notice of objection which had been summarized in previous meetings. The human health-related science assessments included the following explanation for rejecting all eight objections:
482 I. SCIENCE ASSESSMENT… Heath Risk Assessment Toxicology: • A review of the objections has been performed. • Following careful independent examination of the Notices of Objection, the HED has concluded that the authors have failed to provide sufficient scientific justification to support their concerns for the toxicology components of the risk assessment of glyphosate. Thus, a Review Panel is not warranted based on this information….
Exposure: • A review of the objections has been performed. • Following careful independent examination of the Notices of Objection, HED has concluded that the authors have failed to provide sufficient scientific justification to support their concerns for the exposure components of the risk assessment of glyphosate. Thus, a Review Panel is not warranted based on this information. -Certified Tribunal Record, Volume 1, pages 347-352
12. The Centre for Health Science and Law became aware of Re-evaluation Decision – RVD2017-01 and the consultation that led to it, approximately two weeks prior to the Federal Court trial hearing in January 2020.
PART II: ISSUES
13. CHSL intends to bring its unique perspective to three issues raised by the appellant in its Notice of Appeal, namely:
• Issue 7(b): Transparency, justification, and intelligibility;
483 • Issue 7(a)(v) The Federal Court accepted the PMRA's undue and unreasonable reliance on glyphosate labels as a basis for dismissing the information presented in the Notice of Objection; and • Issue at 7(a)(iii) iii. The Federal Court failed to adequately consider the information presented in the Notice of Objection regarding (b) increases in dietary consumption of chickpeas and other indeterminate crops that likely increases Canadians' exposure to glyphosate.
In addition, we also intend to alert this Court of Appeal to the decade-long delay past the statutory deadline set by Parliament for commencing the scientific re-evaluation of glyphosate, which failure of government action is compounded by the PMRA’s bias in favour of seller-sponsored studies and against peer-reviewed published scientific research studies.
14. CHSL has reviewed pertinent jurisprudence of the Supreme Court of Canada on the Charter of Rights and Freedoms which, in CHSL’s submission, indicates that this delay contravenes the collective rights of Canadians to health and security of person as protected by section 7 of the Charter of Rights and Freedoms. In so doing, we urge this Court of Appeal to raise this issue with the parties, particularly the Respondent Attorney General of Canada on behalf of the Minister of Health and the Pest Management Regulatory Agency.
15. CHSL also wishes to offer the Court of Appeal some its perspective on considerations in crafting a remedy if it decides to order the Minister of Health to appoint an independent expert scientific Review Panel as requested by the Appellant.
PART III: MEMORANDUM OF FACT AND LAW
SUMMARY
484 16. CHSL submits that the defects in the decision-making process as so serious that they reveal that the PMRA decision was unreasonable and that the reviewing court’s reliance on that decision amounted to a palpable and overriding error.
17. Furthermore, the class and quantity of such errors are so fundamental to administrative decision-making that they establish that the decision of PMRA and, by extension, the order by the reviewing Federal Court should attract the stricter correctness standard of judicial review.
18. CHSL will then address the issues of transparency/justification/intelligibility, labelling, dietary exposure, and the Charter of Rights and Freedoms section 7 issues in turn.
19. CHSL will make addition submissions in relation to the remedy under the heading of “Section V Considerations regarding the Order Sought by the Appellant.”
A. STANDARD OF REVIEW
20. The majority concurring opinion in Vavilov affirmed that:
…certain general questions of law “require uniform and consistent answers” as a result of “their impact on the administration of justice as a whole”…In these cases, correctness review is necessary to resolve general questions of law that are of “fundamental importance and broad applicability”, with significant legal consequences for the justice system as a whole or for other institutions of government…(paragraph 59)
21. While this category of questions should not be interpreted liberally, this Court of Appeal’s decision to decline the relief sought, the appointment of a Review Panel (or to provide it with insufficiently prescriptive terms) could cheapen the meaning of the scientifically based approach (including bias in favour of seller-sponsored studies and against published peer-reviewed studies), the precautionary principle, conflict of interest safeguards,
485 Parliamentary deadlines, transparency, and condone the narrow the scope of the rights to health and security of person under section 7 of the Charter of Rights and Freedoms.
22. A great deal is at stake and must be addressed, not least of which could expose Canadians to the risk of an unsafe pesticide for decades more than would have been permitted under a proper, timely scientific review and consultation.
23. If not remediated by the courts, governments in Canada will be sent a message that taking a statute-mandated “scientifically based approach” and applying the “precautionary principle” in a regulatory scheme that expressly recognizes the importance of conflict of interest safeguards can be pursued by considering all seller-sponsored studies provided and by dismissing the vast majority of studies published in peer-reviewed scientific journals.
24. CHSL submits that courts cannot overlook bias.
25. If defects in transparency are not analyzed by the courts with the benefit of new evidence exposing those gaps, governments and regulated industries will be sent the message that they can insulate administrative decisions by carefully curating the published reasons to conceal contrary research by limiting circulation of evidence and using over-broad do- not-disclose agreements enforced with the threat of criminal prosecution.
26. Courts should not and should not be seen as approving practices that help administrative decisions fly under the radar.
27. If this Federal Court of Appeal narrows its gaze in this appeal so much that it overlooks the decade-long delay in Parliament’s express deadline to initiate a scientific re-evaluation of the world’s and Canada’s most widely used pesticide, the rule of law and the primacy of Parliament may suffer in ways that are difficult to repair and could implicitly loosen the 15-year statutory re-evaluation schedule to 25 years or more for a chemical that saw a 41-year gap between its first and second approvals in 1976 and 2017.
486 28. If this Federal Court of Appeal relieves the PMRA, Minister of Health, and Attorney General from any duty to display candour in its decision-making and holds the Appellant, a small NGO, to a high standard of due diligence for spotting all issues arising from a massive largely invisible decision-making record, administrative decision makers may learn that the expense and complexity of litigation is usually enough to avoid scrutiny when large corporate registrants are satisfied.
29. The Pest Control Products Act obliges the PMRA to: a. apply a scientifically based approach and the precautionary principle; b. hold protection of health as its primary objective, and c. in pursuing its scientifically based approach, take steps to reduce the risks of bias that financial self-interest can pose, as expressly recognized by the Review Panel Regulations promulgated pursuant to the Act.
30. Furthermore, the Pest Management Regulatory Agency has a common law duty to follow fundamental rules of delegated decision-making, especially transparency, justification and intelligibility as articulated most recently by the Supreme Court of Canada in Vavilov, including in the Agency’s decision to re-evaluate glyphosate in Canada.
31. In 2002, Parliament enacted the successor statute by the same name, the 81-page Pest Control Products Act, S.C. 2002, c. 28 which, among other things, establishes a legislative framework that required the PMRA to initiate a re-evaluation of glyphosate by April 1, 2005, a decade earlier than it did, which amounts to an infringement of section 7 of the Charter of Rights and Freedoms rights to health and security of person.
32. It is not for this or any other reviewing court to serve as an academy of public health science but, in this case, the Federal Court of Appeal is relieved of that burden by the remedy sought by the Applicant: the appointment of an independent expert Review Panel.
33. The Supreme Court of Canada’s landmark consolidation and refinement of the standards for judicial review in Vavilov6 make it plain that a robust review of PMRA’s approach to administrative decision-making is required.
487
34. In particular, the Supreme Court made the following observations with special resonance to the glyphosate decisions below that are under appeal: • … [judicial review] is not a “rubberstamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. (paragraph 13) • because judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely… (paragraph 24) • …reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent…It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party. (paragraph 95) • …it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome… (paragraph 96). • …The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias… (paragraph 126) • …The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood… (paragraph 133). (emphasis added)
35. Furthermore, in addition to the egregious delay in the commencement of the re- evaluation under review and the evidence indicating that the PMRA may have taken a biased approach in favour of industry science and against peer-reviewed published
488 scientific evidence, the standard of review may be correctness, not reasonableness, both of which may have elevated its errors to a breach of Charter rights.
B. TRANSPARENCY
36. In December 2019, shortly before the lower court hearing, the Supreme Court of Canada set a new standard for judicial review in its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65
[125]…Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18;
[126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable
489 on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.
[127] The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.
37. CHSL submits that the regulator made eight fundamental failures to achieve the transparency intended by Parliament and required by the Supreme Court as articulated most recently by Vavilov and mask further decision-making defects, including that PMRA:
i. Restricted access to the full re-evaluation record; ii. Failed to consider or acknowledged and provide reasons for not considering the vast majority of published scientific research in making its decision; iii. Failed to acknowledge the volume of litigation asserting harm by glyphosate; iv. Failed to disclose and explain the surprisingly small number of published scientific studies reported to the PMRA incident reporting system by glyphosate registrants in comparison to the high number of published studies; v. Failed to report and contextualize the amount of glyphosate sold in Canada; vi. Failed to particularize and update the source of conclusions about the regulatory status of glyphosate in OECD countries; vii. Failed to furnish evidence about the use and effectiveness of labelling as a regulatory tool (addressed under “Labelling”); and
490 viii. Failed to use contemporary Canadian food consumption surveys to estimate exposure to glyphosate pesticide residues instead of outdated U.S. food consumption data (addressed under “Dietary Exposure”).
38. CHSL submits that all of these failures of transparency in the decision record should not be condoned by this Court of Appeal.
i. Transparency Failure: Restricting access to an 89,000-page re-evaluation dossier 39. The PMRA physically limited access to 98% of the full application record (all but 1,739 pages in the Certified Tribunal Record of the 89,000-page application dossier) by: o Limiting access to Canadians willing to travel to Ottawa, o Characterizing all 89,000 pages as confidential or indiscriminately co-mingling confidential and public-access documents, and o Requiring reading room visitors to sign two documents (one notarized) accepting that they could be criminally prosecuted for publicizing any information learned there. -October 5-6, 2020 email exchange between CHSL and PMRA respecting access to the glyphosate Reading Room documents, including the attached Form 7000 and PMRA’s proposed Affidavit.7
40. The full 89,000-page re-evaluation package is triple the size of the typical application for an approval of a new pesticide.8 Jason Flint, Director General, Policy, Communications and Regulatory Affairs Directorate, Pest Management Regulatory Agency, Health Canada. Testimony. Standing Senate Committee on Agriculture and Forestry. Issue No. 67 - Evidence - Meeting of May 28, 2019 (Available at: https://sencanada.ca/en/Content/Sen/Committee/421/AGFO/67ev-54822-e )
41. All of this suggests that restrictions on access to the application record were over-broad and indicative of an opaque decision-making process that has the effect of insulating decisions from outside review by the courts or the public.
491 42. CHSL submits that the very large application package and PMRA’s statutory and common law duties (pursuant to Vavilov) on the PMRA to give a conscientious summary of the relevant considerations which, at a minimum should have included an analysis of the total amount of glyphosate sold and enforcement statistics for violations of the Act and Regulations.
ii. Transparency failure: Ignoring 96% of published scientific research on glyphosate in favour of seller-sponsored studies, reflects a bias and failure to follow the
statute-mandated scientifically based approach and precautionary principle.
43. However, the PMRA failed to acknowledge the volume of evidence that had accumulated in the scientific literature in the 41 years since glyphosate’s first and only
prior evaluation in Canada in 1976.
44. The Minister of Health and her delegate, the Pest Management Regulatory Authority, failed to apply the statute-mandated scientifically based approach, precautionary principle, and sufficient transparency mandated by the Supreme Court in Vavilov, and the Minister’s published mandate letter from the Prime Minister, in particular by ignoring the vast majority of research considering glyphosate published in peer-
reviewed journals.9
45. The Pest Control Products Act requires PMRA to pursue a scientifically based approach and apply the precautionary principle in re-evaluating glyphosate. In particular, the Act
states, in part:
4(7) In evaluating the health and environmental risks of a pest control product and in determining whether those risks are acceptable, the Minister shall apply a scientifically based approach; and…
(b) in relation to health risks, if a decision referred to in paragraph 28(1)(a) or (b) is being made or has been made in relation to a pest control product,
492 (i) among other relevant factors, consider available information on aggregate exposure to the pest control product, namely dietary exposure…
19 (2) In evaluating the health and environmental risks of a pest control product and in determining whether those risks are acceptable, the Minister shall (a) apply a scientifically based approach; and (b) in relation to health risks, (i) among other relevant factors, consider available information on aggregate exposure to the pest control product, namely dietary exposure and exposure from other non-occupational sources, including drinking water and use in and around homes and schools, and cumulative effects of the pest control…
20 (2) 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 or environmental degradation.
46. The 330-page Proposed Re-evaluation Decision PRVD2015-01 cited 1,125 studies of which approximately 181 appeared to be published in peer-reviewed scientific journals (the rest being industry studies or government reports).
47. The PMRA published its final glyphosate Re-evaluation Decision – RVD2017-01 two years later, citing 268 more studies, of which 169 were more peer-reviewed studies (for a total of approximately 350 journal articles).
48. The PMRA reported to Parliament in 2019, that it had considered 1,300 studies. - 2018-2019 Report to Parliament of the Pest Management Regulatory Agency
49. However, according to www.sciencedirect.com approximately 8,179 peer-reviewed scientific articles were published by December 31, 2016, the year before the final PMRA
493 glyphosate decision was published, indicating that as many as 96% of published, peer- reviewed studies considering glyphosate were ignored or dismissed by the PMRA.
50. The PMRA acknowledged and provided the following explanation for its bias in favour of “seller-sponsored studies” in its 2017 decision at pages 31-32:
“1.1.14 Use of Independent Scientific Studies Comment A number of comments stated that the PMRA, in its review of glyphosate, appeared to consider only “seller sponsored science”. The comments referred the PMRA to a number of published studies that link glyphosate to health effects. Overall, these comments emphasized support for the use of “third party” data in assessing the health effects and making the final re-evaluation decision for glyphosate, in lieu of manufacturer-supplied data. PMRA Response [After explaining the basis for PMRA’s belief in the trustworthiness of company- applicant-provided studies, PMRA added:] Studies conducted by academic laboratories often have lower statistical power due to the use of fewer animals, investigate far fewer toxicological endpoints, and lack sufficient detail in their published form. These limitations prevent regulatory authorities from performing an in-depth analysis of study results. As discussed in PRVD2015-01, the re- evaluation took into account all relevant sources of toxicity data in order to evaluate the potential health effects of glyphosate acid. This included an independent review of registrant-supplied data, which are required for the pesticide review and approval process in Canada, as well as consideration of scientific publications and information from other regulatory authorities…” -pages 31-32 of the PMRA glyphosate Re-evaluation Decision – RVD2017-01
494 51. Furthermore, the PMRA decision continued at page 53:
Some commenters believe that the environmental risk assessment for glyphosate was conducted using only studies provided by the registrants and that there has not been enough long-term testing of glyphosate done by independent scientists. Reviewing studies conducted and provided by the company that is seeking registration of the product is perceived as a conflict of interest and highly biased as these studies are not peer reviewed by the scientific community. Reference was provided to a number of published scientific studies that link glyphosate to environmental and agronomic effects. PMRA Response The environmental risk assessment of glyphosate was conducted using a science- based approach and included consideration of a large volume of literature. In addition to registrant supplied data, more than 1500 scientific articles related to glyphosate were examined, with approximately 250 of these studies being deemed relevant and useful for consideration in the environmental risk assessment. [emphasis added] -page 53 of the PMRA glyphosate Re-evaluation Decision – RVD2017-01
52. The decision returned to point again at page 54:
PMRA Response …Unfortunately, many published scientific studies lack sufficient detail, reducing confidence in the conclusion reached by the author(s). As a result, some published scientific papers are rejected when reviewed by the PMRA during the re- evaluation process. [emphasis added]
53. However, taken together, glyphosate Proposed Re-evaluation Decision PRVD2015-01 and Re-evaluation Decision – RVD2017-01 referenced approximately 1,400 studies in total (including industry provided data and studies).
495 54. A 2016 article, authored by 94 scientists (including three Canadians), described differences in the carcinogenic evaluation of glyphosate between the World Health Organization’s International Agency for Research on Cancer (IARC) (finding glyphosate to be a ‘probable human carcinogen’) and the European Food Safety Authority (EFSA) (finding the evidence of cancer risk to be “inconclusive”).
55. The analysis reported that the EFSA, on which the PMRA relied, ignored recognized OECD protocols for evaluating cancer research and exhibited a preference for unpublished industry research over peer-reviewed studies published in journals that name investigators and provide sufficient details about methodology to permit replication, vital aspects of the scientific method.10 Christopher J Portier and 93 other scientists, Differences in the carcinogenic evaluation of glyphosate between the International Agency for Research on Cancer (IARC) and the European Food Safety Authority (EFSA). J Epidemiol Community Health 2016;70:741-745. Available at: https://jech.bmj.com/content/70/8/741 56. The authors opined: Science moves forward on careful evaluations of data and a rigorous review of findings, interpretations and conclusions. An important aspect of this process is transparency and the ability to question or debate the findings of others…[In the European Food Safety Agency evaluation]… there are no authors or contributors listed…a requirement for publication in virtually all scientific journals where financial support, conflicts of interest and affiliations of authors are fully disclosed. This is in direct contrast to the [World Health Organization’s International Agency on Cancer Research Working Group] evaluation listing all authors, all publications and public disclosure of pertinent conflicts of interest prior to the WG meeting… Owing to the potential public health impact of glyphosate, which is an extensively used pesticide, it is essential that all scientific evidence relating to its possible carcinogenicity is publicly accessible and reviewed transparently in accordance with established scientific criteria…In the RAR, almost no weight is given to studies from the published literature and there is an over-reliance on nonpublicly available industry-provided studies using a
496 limited set of assays that define the minimum data necessary for the marketing of a pesticide. 11 iii. Transparency: Failure to acknowledge the extent of class action lawsuits in Canada and litigation alleging physical harm of glyphosate in the United States
57. The Minister of Health, its delegate the Pest Management Regulatory Authority, and its representative the Attorney General failed to situate for the court the health risks of glyphosate as illustrated by at least nine class action filed (but not yet certified) in Canadian provincial superior courts between November 2018 to November 2019 according to the Canadian Bar Association’s National Class Action Database of which this Court can take judicial notice.12
58. Instead, the PMRA’s Scientific Management Committee rejected as irrelevant without explanation the relevance of US litigation in a November 18, 2018 meeting report:
“The Glyphosate Re-evaluation Decision Document (RVD2017-01) published by Health Canada April 28, 2017, is unrelated to legal events occurring in the US.” -The Certified Tribunal Record (Volume I, at page 350).
59. The risks flagged by U.S. litigation was brought to the attention of a Standing Senate Committee shortly before last year’s summer recess by a witness from the Canadian Environmental Law Association in the presence of a representative from Croplife Canada. The witness stated:
As the glyphosate trials are working their way through the U.S. courts, juries are hearing about Monsanto’s manipulation of the scientific record with ghostwritten studies, collusion with regulators and other shady tactics. Juries are agreeing that glyphosate caused cancer in the plaintiffs and are awarding multimillion-dollar settlements….
497 -Proceedings of the Standing Senate Committee on Agriculture and Forestry Issue No. 67 - Evidence - Meeting of May 28, 2019. Available at: https://sencanada.ca/en/Content/Sen/Committee/421/AGFO/67ev-54822-e
60. Likewise, United Nations Special Rapporteur on the Right to Food’s 2020 report to the United Nations General Assembly states, in part:
A recent wave of litigation focused on glyphosate, the active ingredient in the popular Roundup weed killer, finally catalysed State-implemented protection in the form of bans, restrictions and even monetary compensation for harm caused. Nearly 20 countries have adopted or announced future safeguards since the International Agency for Research on Cancer reported that the chemical was “probably carcinogenic” in 2015. Despite this, glyphosate bans continue to be globally controversial. --January 21, 2020 United Nations Special Rapporteur on the Right to Food’s 2020 report to the United Nations General Assembly Available at: https://undocs.org/A/HRC/43/44
61. Likewise, an article published in the peer-reviewed European Journal of Risk Regulation cited an estimate of 40,000 glyphosate-related legal actions by August 2019.
Charles Benbrook, “Shining a Light on Glyphosate-Based Herbicide Hazard, Exposures and Risk: Role of Non-Hodgkin Lymphoma Litigation in the USA,” European Journal of Risk Regulation, Vol. 11:3, 503. iv. Failure of Transparency: Incident reports of scientific studies
62. The Pest Control Products Incident Reporting Regulations (SOR/2006-260)13 promulgated pursuant to the Pest Control Products Act, 200214 obliges registrants to report risks to human health, domestic animal health, the environment and other issues of concern.
498 63. A special category of mandated reports includes “an incident whose effects are identified in a scientific study…and the study or investigation is sponsored by the registrant.”
64. During the period 2007-2020, only 11 incidents were reported in the form of scientific studies15 mostly coming from United States sources which is an extremely small number considering the approximately 10,000 studies on glyphosate that were published in the scientific literature during this period and at 350 published studies referenced in the PMRA proposed and final re-evaluation decisions on glyphosate.
65. This strongly suggests that registrants have been failing their statutory duty to alert Health Canada to possible risks or have a very low likelihood of sponsoring studies that yield unfavourable results.
66. This further suggests that the alerts to the minister contemplated by the adverse reaction reporting system may not be functioning as expected and the PMRA has failed to explore remedial action.
67. Furthermore, the Regulatory Impact Assessment published in the Canada Gazette at the time that the regulations were published in 2006 addressed a proposal that registrants be required to report “all scientific studies,” instead of only the industry sponsored ones as follows:
Scientific Literature In response to comments, the requirement to report information from the referenced published scientific literature was not included since literature searches are routinely conducted by PMRA staff. a. Canada Gazette Part II, Vol. 140, No. 23, 2006-11-15 SOR/DORS/2006-260 at p. 1670.
68. If studies are routinely conducted by PMRA, the findings of these reviews and the reasons for ignoring so many studies do not appear to be included in the decision record.
499 v. Failure of Transparency: Amount of glyphosate used in Canada per year not disclosed.
69. The PMRA failed to transparently disclose in its Proposed Re-evaluation Decision PRVD2015-01 Glyphosate or Re-evaluation Decision – RVD2017-01, Glyphosate even the precise amount of glyphosate sold in Canada as required by the Pest Control Products Act.
70. The PMRA has not been transparent, even about the amount of Glyphosate sold in Canada per year pursuant to a specific statutory mandate to do so, its total being reported only as “>25 million kilograms” or “>50 million kilograms in its reports published since 2007, beginning five years after such information was required to be published by the Act in a manner prescribed by regulations that were ultimately published in 2006.
71. Furthermore, the information in the annual “Pest Control Products Sales Reports” are not actually published in the conventional or modern sense of the word. They are not printed, or posted on the Internet, but made available in a PDF format shared on a case- by-case basis upon request to the PMRA. This means, for instance, that their contents do not appear in Google searches or among official government reports on the Internet or in public libraries.
72. This appears to be contrary to the stated purpose of the regulations at the time that they were promulgated:
Reporting of pesticide sales information is a critical piece of an integrated system for obtaining comprehensive information on the extent of pesticide use in Canada…. Disclosure of pesticide sales information In comments on the Part I pre-publication and in previous comments, industry associations and registrants expressed concern about the public disclosure of sales information both because the information could be used to calculate the monetary value of sales and because the information could create an erroneous perception about the extent of pesticide use. PMRA must ensure that the public is
500 allowed access to information in the Register, such as sales information, while at the same time preventing the monetary value of sales from being disclosed.
-Canada Gazette Part II, Vol. 140, No. 23, 2006-11-15 SOR/DORS/2006-261 at p. 1679 and 1684-5
72. While protection of commercially sensitive information may be important especially before patent rights expire, these measures seem like steps to hoard information and guard it jealously, than pursue proactive transparency.
-- PMRA access to information disclosure of the amount of glyphosate sold in Canada & excerpt of Health Canada’s Pest Control Products Sales Report for 2016
73. To its credit, Health Canada did provide more precise annual sales records for the period 2007-2017 pursuant to an Access to Information Act request filed by CHSL in 2020. Furthermore, glyphosate sales per capita is approximately four times higher in Canada than in the US (56 million KG in Canada in 2017, compared to 125 million KG in the US in 2014: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5044953/pdf/12302_2016_Articl e_70.pdf ) and approximately 20% more than in all 28 European Union countries combined according to a consortium of European research institutes.16
vi. Failure of Transparency: Source of conclusion about the regulatory status of glyphosate in OECD countries not particularized and updated.
74. The Pest Control Products Act expressly signifies the importance of pesticide regulations in other OECD countries by using their regulatory status changes to trigger mandatory special reviews of active ingredients in Canada. Section 17(2) of the Act states:
501 (2) Without limiting the generality of subsection (1), when a member country of the Organisation for Economic Co-operation and Development prohibits all uses of an active ingredient for health or environmental reasons, the Minister shall initiate a special review of registered pest control products containing that active ingredient.
75. The PMRA glyphosate Re-evaluation Decision – RVD2017-01 states at page 8: “no decision by an OECD member country to prohibit all uses of glyphosate for health or environmental reasons has been identified.” However, no source for this conclusion was referenced.
76. The Federal Court Trial Division appeared to rely on this conclusion in its 2020 ruling at paragraph 11 of its decision:
“Glyphosate is currently acceptable for use in other OECD countries, including the United States, Australia and the European Union. As of 8 March 2017, no decision by an OECD member country to prohibit all uses of glyphosate for health or environmental reasons has been identified…Currently, no pesticide regulatory authority, including Health Canada, considers glyphosate to be a carcinogenic risk of concern to humans.”
77. In the 2015 Consultation Summary (at page 103), the PMRA cited a 2002 European Union source decision to support its claim that:
“EU – Glyphosate…has been approved for use in EU countries (in other words, is included in Annex I to Council Directive 91/414/EEC) until 12/31/15.” [emphasis on the date added].
78. In the PMRA’s 2017 final decision on glyphosate did not included this reference or explain what happened after the expiry date for the EU status.
502 79. New evidence that was not made available to the reviewing lower court at trial, but must be presumed to have been in the knowledge of the respondent PMRA makes it clear that the PMRA characterization was no longer truthful or, at best, was grossly misleading and incomplete.
80. Three official reports on the regulatory status of glyphosate in the European Union tell a starkly different story that is contrary to the PMRA and trial court’s conclusion, including:
o In 2017, the European Parliament voted overwhelmingly in favour of a ban in a non-binding resolution in a vote of 355 votes to 204, in favour of the ban with 111 abstentions.17 o In 2017, the E.U. reduced its recent re-approval for glyphosate from 15 to five years expiring in 2022. o At least eight of 28 members of the European Commission’s Health and Food Commissioner Directorate-General’s Appeal Committee favoured a renewal period of even less than five years or immediate ban. o Six governments of the EU voted for an immediate ban.18 o The complexity and large size of the application record prompted the EU to assign the review task to several countries, not the usual one (re: remedy in this case).19 o The E.U. (which includes 23 OECD countries) conducts Union-wide safety evaluations, not individual national ones.
- “Summary report of the appeal Committee, Commission Health and Food Safety Directorate-General”, - “Status Report on Glyphosate in the EU”, and an official communique entitled - “MEPs demand glyphosate phase-out, with full ban by end 2022.”
503 C. PRODUCT LABELLING
81. The Trial Court’s reviewing judge, Justice Simpson, arbitrarily inserted her personal opinion—without any support from the record—that labelling and farmers’ capacity to follow labelling instructions are not an appropriate subjects for scientific advice by a Review Panel. Justice Simpson wrote:
[43] Lastly, the PCP Act imposes penalties when a farmer fails to follow directions on labels. See sections 6(5)(b) and 6(9) of the PCP Act. However, the Applicants suggest that enforcement by the CFIA will not be effective. [44] In my view, farmers’ behaviour and enforcement issues are not topics for a panel of expert scientists. --Judgement and Reasons of Madam Justice Simpson, in Mary Lou McDonald and Safe Food Matters Inc. v. AG Canada (Pest Management Regulatory Authority/ Minister of Health), Docket: T-277-1920 FC 242, February 13, 2020
82. Quite the contrary, according to PMRA enforcement statistics, between 2015 and 2019, 72% (47 of 65) occasions on which a fine was imposed for violations of the Act and regulations were for failures to follow label directions.
83. Furthermore, two labels of agricultural-use glyphosate that are reproduced in the Certified Tribunal Record (Volume I, at pages 15-114 and 206-305) illustrate that glyphosate labels can contain 100 pages of complex and vitally important risk information and instructions for use.
84. For greater clarity, the label is not restricted to the wrapper on the surface the of product container as is generally the case for food or other consumer products as the lower court may have assumed. The Pest Control Products Act defines label to include
“any written, printed or graphic matter…to accompany, a pest control product or a package; or…that belongs to a pest control product and is transmitted electronically;
504
85. Furthermore, the 2018-2019 PMRA Report to Parliament indicates that more than 99% of enforcement actions (983 of 990 in 2018-2019) were warning letters, suggesting the possibility that failures to follow label-instruction for pesticides like glyphosate may be two orders of magnitude higher. 86. Furthermore, recognizing that inspectors are not able to monitor practices on all farms all the time, problems following label instructions may be even higher.
87. Also, seemingly incongruously, only 2% of violations of the Act and regulations involved label usage violations, according to the PMRA 2018-2019 Report to Parliament.
88. Together, these facts suggest the possibility that independent expert scientific advice on label design may be necessary and valuable to PMRA and label design shortcomings may presently contribute to systemic risk of harm or at least that the value of advice from a scientific Review Panel may not be evident until the advice is provided.
89. CSHL submits that it is arbitrary to decide a priori that scientists have irrelevant opinions.
D. DIETARY EXPOSURE 90. Though omitted in the 2017 decision, PMRA’s 2015 PMRA consultation document described the approach to assessing exposure to glyphosate in the Canadian food supply as if there were no Canadian data:
“Acute and chronic exposure and risk assessments were conducted using… consumption data from the United States Department of Agriculture (USDA) Continuing Surveys of Food Intakes by Individuals (CSFII) from 1994 to 1996 and 1998.”
505 91. However, a 2015 survey of 24,000 Canadians conducted by Health Canada and Statistics Canada made detailed estimates of Canadian food consumption patterns, updating a prior survey from 2004. -Statistics Canada, Canadian Community Health Survey - Nutrition (CCHS), Detailed information for 2015
92. This document reveals that contemporary Canadian food consumption data was available at the time that the PMRA relied on two-decades old U.S. food consumption data to assess Canada glyphosate food residue exposure. CHSL submits that a reviewing court judge might have concluded that the PMRA made a fundamental error in using decades old American food consumption data when contemporary (or even 11-years-old Canadian data) was available at Health Canada. Failing to acknowledge the existence of this data displays a failure of transparency.
E. CHARTER RIGHT TO HEALTH & SECURITY OF PERSON
i. The authority for the Federal Court of Appeal to raise a new issue that has not been raised by the parties
93. CHSL is mindful of its limited scope as an Intervener to raise issues that have not been raised previously by the parties, so it urges the Federal Court of Appeal to raise the issue of the delay in initiating the re-evaluation of glyphosate as a breach of Canadians’ Charter section 7 rights to health and security of person.
94. According to the Supreme Court of Canada, the Federal Court of Appeal may have the broad authority to decide an issue like this without notice to the parties because it is an issue that forms the backdrop of litigation. The Supreme Court held in R. v. Mian at paragraph 34:
506 Finally, issues that form the backdrop of appellate litigation, such as jurisdiction, whether a given error requires a remedy and what the appropriate remedy is, or as discussed below, the standard of review, are not new issues and parties should not require notice to address them. -R. v. Mian, 2014 SCC 54 (CanLII), [2014] 2 SCR 689,
95. In addition, paragraphs 37-59 of the decision indicate that any court can raise a new issue that has not been raised by the parties, provided that: • it gives the parties adequate notice to make submissions, • there is enough evidence on the record to dispose of the issue, and • the court balances its competing roles of being a neutral arbiter and ensuring that justice is done.
96. In Guindon v. Canada, 2015 SCC 41 (CanLII), [2015] 3 SCR 3,
[22] The test for whether new issues should be considered is a stringent one. As Binnie J. put it in Sylvan Lake, “The Court is free to consider a new issue of law on the appeal where it is able to do so without procedural prejudice to the opposing party and where the refusal to do so would risk an injustice”: para. 33. While this Court can hear and decide new issues, this discretion is not exercised routinely or lightly.
[33] Beyond new constitutional questions proposed by parties, this Court has occasionally asked parties, prior to hearing an appeal, to address new constitutional issues. R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, is an example…After leave was granted but before factums were filed, this Court asked that ss. 15(1), 15(2), and 25 be “fully canvassed” in written and oral submissions…The Court ultimately found that s. 15(2) of the Charter protected the impugned communal fishing license program…this case demonstrates that this
507 Court has taken the opportunity to raise constitutional issues notwithstanding that they were not raised in the courts below. [emphasis added]
97. This Federal Court of Appeal recognized the Supreme Court reasoning in Canada (Public Sector Integrity Commissioner) v. Canada (Attorney General), 2014 FCA 270 (CanLII),
[12] In a very recent decision (R. v. Mian, 2014 SCC 54, [2014] S.C.J. No. 54 [Mian]), the Supreme Court of Canada reminds us how and in what context a court of appeal may raise new grounds of appeal or other issues on its own initiative…It is enough to reiterate that when a court of appeal exercises its discretion to raise a new issue and decide the matter on that basis, it must inform the parties of this in a timely manner to allow them to make all their submissions (Mian, paragraphs 54 to 59). The court of appeal must also be satisfied that there is a sufficient basis in the record on which to resolve the issue (Mian, paragraph 51) and that there would not be any procedural prejudice to either party (Mian, paragraph 52).
98. This flexibility is consistent with the reasoning Vavilov and clearly indicates that an even stricter standard of review is warranted to consider constitutional issues and important general questions of law. The majority in Vavilov wrote, in part, at paragraphs 13-15:
Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review…administrative decision makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be “justified to citizens in terms of
508 rationality and fairness…to ensure that the decision as a whole is transparent, intelligible and justified….rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. [emphasis added]
99. And the Supreme Court reminded the judiciary in Vavilov (citing three Supreme Court precedents) that:
[24] However, because judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely....
100. In sum, these authorities establish the discretion of this Federal Court of Appeal to raise the issue of whether the PMRA infringed a constitutionally protected right to health and security of person. ii. The decade-long delay in commencing the re-evaluation amounts to a breach of section 7 Charter protected right to health and security of person is indicative of a failure of regulatory oversight and breach of statutory duty.
101. CHSL submits that the Minister of Health and her delegate, the Pest Management Regulatory Authority, initiated its re-evaluation of glyphosate 39 years after its initial evaluation by the Government of Canada in 1976, 10 years after the statutory deadline lapsed on April 1, 2005, the result of which was completing the PMRA glyphosate Re- evaluation Decision 41 years after its prior and only approval in a statutory regime that now mandates re-evaluation every 15 years.
509 102. Section 16(2) of the Pest Control Products Act mandates that re-evaluations of pesticides registered prior to 1990 (such as glyphosate) be initiated no later than April 1, 2005. Section 16(2)(b) states:
16 (1) The Minister may initiate the re-evaluation of a registered pest control product if the Minister considers that, since the product was registered, there has been a change in the information required, or the procedures used, for the evaluation of the health or environmental risks or the value of pest control products of the same class or kind…. Minister required to initiate re-evaluation (a) Without limiting the generality of subsection (1), …
(b) if the most recent decision of a type referred to in paragraph 28(1)(a) or (b) was made in relation to a pest control product before April 1, 1995, the Minister shall initiate a re-evaluation of that product no later than April 1, 2005 or the date that is one year after 15 years have elapsed since that decision, whichever date is later. [emphasis added]
103. And the relevant provisions of section 28 of the Act state: Minister to consult Consultation 28 (1) The Minister shall consult the public…before making a decision (b) about the registration of a pest control product on completion of a re- evaluation or special review;
104. Even assuming that the PMRA did not read the Pest Control Products Act until it received royal assent and had no hand in drafting it in the preceding years, it initiated its Re-evaluation of glyphosate 13 years after it was put on notice that it had a three-year deadline to initiate the re-evaluation.
105. This delay amounts to a failure to apply the amount of health protection that Parliament intended. Section 4 of the Pest Control Products Act states, in part:
510 4 (1) In the administration of this Act, the Minister’s primary objective is to prevent unacceptable risks to individuals and the environment from the use of pest control products.” … 4(2) Consistent with, and in furtherance of, the primary objective, the Minister shall…(b) seek to minimize health and environmental risks posed by pest control products…20
106. CHSL submits that this delay is so excessive that it constitutes a fundamental failure to obey an unequivocal express mandate from Parliament which failure is so severe that it rises to the level of a constitutional breach of duty for which there must be consequences of curial oversight even if this eventuality was not expressly foreseen by the drafters of the Pest Control Products Act sufficiently clearly to include a tailor-made penalty.
107. Justice Simpson, herself, acknowledged the possibility, in general, that a finding of unconstitutionality would tighten the standards of review. In paragraph 4 of her reasons, she wrote:
In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court of Canada states at paragraph 16 that for all administrative decisions, there is a presumption that the standard of review is reasonableness. At paragraphs 17 and 70, the Court indicates that the standard of review will only be correctness if legislation prescribes it, or if the matter falls into one of the following categories: it raises a Constitutional question; it raises a question of central importance to the legal system as a whole; it raises a question about the jurisdictional lines to be drawn between tribunals; or where a failure to apply correctness review would undermine the rule of law and jeopardize the proper function of the justice system in a manner analogous to one of the above three categories.
511 108. Section 7 of the Charter of Rights and Freedoms states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
109. The federal Department of Justice summarized the applicability of section 7 to circumstances similar to the case at bar in an on-line Justice Canada briefing on the Charter at https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art7.html which states: The guarantees under section 7 typically arise in connection with the administration of justice, which has in turn been defined as “the state’s conduct in the course of enforcing and securing compliance with the law”… however, the Court has recognized that section 7 may apply to legislation or government action “entirely unrelated to adjudicative or administrative proceedings”, provided that it impacts on the right to life, liberty and security of the person…To date, section 7 has not been interpreted as imposing a positive obligation on the state to ensure the enjoyment of life, liberty and security of the person, but the Court has not foreclosed this possibility…A claimant must establish a “sufficient causal connection” between the impugned government action or law and the limit on life and security of the person…. there must be a real, as opposed to a speculative, link. This standard is satisfied by a reasonable inference, drawn on a balance of probabilities. The right to life is engaged where the law or state action imposes death or an increased risk of death, either directly or indirectly…. [case references omitted]
110. The Minister of Health and its agent PMRA followed an approach that demonstrated a bias against published scientific research and in favour of seller-provided data leading to decision-making process that ignored or dismissed as much as 96% of published peer- reviewed studies on glyphosate with no apparent regard for conflict of interest safeguards, a practice by:
512 a. Acting contrary to its statutory duty to follow a scientifically based approach mandated in sections 14(7) and 19(2) of the Pest Control Products Act, S.C. 2002, c. 28. b. Acting inconsistent with its analogous express duty in the Review Panel Regulations, SOR/2008-22 to appoint only panelists that are “free from any actual or potential conflict of interest,” c. Acting contrary to a mandate given to the Minister of Health from the Prime Minister of Canada that was published after the PMRA glyphosate Re- evaluation Decision – RVD2017-01 was made, but before the trial and, accordingly is germane to the approach the Attorney General brings to this appeal and to any remedy the courts may order and which stated, in part: “We are committed to evidence-based decision-making that takes into consideration the impacts of policies on all Canadians and fully defends the Canadian Charter of Rights and Freedoms …[and] work to ensure that the [PMRA] makes timely science-based decisions to support the safe and sustainable use of effective pesticide products in Canada.” d. Basing its assessment of the risk of exposure to glyphosate residues in food by using decades-old American food consumption data instead of contemporary Canadian data collected by Statistics Canada in 2015.
111. In sum, CHSL submits that the PMRA glyphosate Re-evaluation Decision – RVD2017- 01 was conducted in a way that is contrary to the section 7 Charter right to health and security of persons and urges this Honourable Court of Appeal to raise this as a new issue on appeal and invite submissions from the parties. iii. The jurisprudential foundation for a temporally delimited claim of unconstitutional delay
112. By analogy, the Supreme Court of Canada quantified a time boundary to the principled right to be tried within a reasonable time under section 11(b) of the Charter of Rights and Freedoms. R. v. Jordan particularized that time in months: 18 months for cases
513 going to trial in the provincial court, and 30 months for cases going to trial in the superior court. -R. v. Jordan, 2016 SCC 27 [2016] 1 SCR 631;
113. The opening paragraphs of R. v. Jordan set out the problem as follows:
[1] Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons “to be tried within a reasonable time”. [2] Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs… [4] Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative…a delay of over four years in bringing a drug case of modest complexity to trial… [5] A change of direction is therefore required….
114. The Supreme Court of Canada went on to characterize the dignitary and psychological burdens of a lengthy delay and the potential for delay to impair an accused person’s ability to mount a successful defence against his or her loss of liberty.
[20] … Security of the person is impacted because a long-delayed trial means pro- longing the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.
514
115. Although the constitutional authority for the federal government to enact public health laws such as the Pest Control Products Act derives from the federal criminal powers, it is not a traditional criminal law in that it mostly governs actions of commercial actors and enforcement measures rarely (if ever) involve imprisonment of corporate defendants.
116. However, it does prohibit such conduct to protect the public and the environment from dangerous and potentially dangerous substances and draws its constitutional authority from the federal criminal head of power under section 91 of the Constitution Act, 1867.
-Reference re Genetic Non-Discrimination Act, 2020 SCC 17, File No.: 38478., 2019: October 10; 2020. Available at: https://www.canlii.org/en/ca/scc/doc/2020/2020scc17/2020scc17.pdf
117. Accordingly, the statutory regime requiring substances to be re-evaluated every 15—not 25 years or more—helps protect Canadians from that risk.
118. When the government agency entrusted with the administering the Pest Control Products Act ignores the statutory deadline for re-evaluating the most widely used pesticide in Canada and the world for an entire decade without corrective action and engages in a pattern of conduct that appears to summarily dismiss, ignore, and conceal evidence of risk, it may expose Canadians to a very real risk of harm.
119. CHSL submits that exposing Canadians to a higher health and environment risk from the harms of pesticides than was considered acceptable by Parliament infringes section 7 rights to life and security of person. CHSL submits that risks posed to physical health and security of the person and the commensurate psychological harms—especially potentially life-threatening risks—are at least as worrisome as infringements to liberty.
515 120. The majority of the Supreme Court held at paragraph 43 of Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35
Canadian jurisprudence shows support for interpreting the right to security of the person generously in relation to delays…
121. Section 7 right to life and security of person does not expressly include a time element or clarify whether the risk of death and illness both can both attract the protection of the Charter and trigger the state’s obligations.
122. However, section 7 was found to import meaning on both aspects when the Supreme Court of Canada held that section 7 was triggered when the Quebec government prohibited privately funded health insurance while failing to adequately shorten waiting lists for treatment and diagnostic tests.
123. The concurring reasons of McLachlin CJ and Major J in Chaoulli found, at paragraph 114:
…95 percent of patients in Canada wait well over a year, and many two years, for knee replacements. While a knee replacement may seem trivial compared to the risk of death for wait-listed coronary surgery patients, which increases by 0.5 percent per month (A.R., at p. 450), the harm suffered by patients awaiting replacement knees and hips is significant.
iv. Section 7 Charter of Rights and Freedoms and Standard of Review of PMRA
124. Accordingly, CHSL urges this Court of Appeal to raise the issue of unconstitutional delay with the Attorney General and invite submissions on this question from the parties and interveners.
516 125. CHSL submits that failing to address this issue would send a message to governments that flouting statutory deadlines and conducting risk analysis in a biased and opaque manner is permissible.
126. In sum, CHSL submits that PMRA unjustifiably breached Canadians collective constitutional rights to life and security of person under section 7 of the Charter of Rights and Freedoms in:
a) allowing a product to be sold for 39 years before initiating a re-evaluation, despite the high and growing volume of published scientific research raising concerns for a full decade after an express statutory deadline to commence a re-evaluation in a regime that requires re-evaluation every 15 years;
b) failing to recognize and take steps to manage commercial conflict of interest as a factor to be taken into consideration in the re-evaluation—a factor that is expressly mandated as a consideration in the appointment of Review Panels by section 4 of the Act’s Review Panel Regulations, SOR/2008-22—in considering a re-evaluation that is chiefly supported by seller-provided data;
c) renewing the registration of a pesticide without considering the full scientific record and ignoring nearly the entirety of published scientific research;
d) making numerous failures of transparency, and by failing to respect the rule of law in enforcing the duty of registrants to report incidents pursuant to regulations; and
e) mischaracterizing the regulatory status of glyphosate in OECD countries to bootstrap its approval.
v. The delay, especially combined with the biased approach to considering the evidence, cannot be demonstrably justified in a free and democratic society
127. If this Federal Court of Appeal accepts the proposition that the PMRA’s action contravenes section 7 of the Charter, then applying the Oakes test appears to be straightforward, if even necessary at all. Because the failure to meet the statutory
517 deadline for the re-evaluation was not prescribed by law, it may be automatically unjustified according to early and settled Supreme Court of Canada jurisprudence.
128. The section 1 analysis prescribed in R. v. Oakes, [1986] 1 S.C.R. 103 requires that the court determine whether the means chosen to attain this legislative end are reasonable and demonstrably justifiable in a free and democratic society. For this second part of the analysis, three tests must be met:
(1) the existence of a rational connection between the measure and the aim of the legislation; (2) minimal impairment of the protected right by the measure; and (3) proportionality between the effect of the measure and its objective 129. As the Supreme Court of Canada noted in its section 1 analysis concerning Charter section 7 in Carter, a modified articulation of minimal impairments is appropriate in this case: [102] At this stage of the analysis, the question is whether the limit on the right is reasonably tailored to the objective. The inquiry into minimal impairment asks “whether there are less harmful means of achieving the legislative goal” (Hutterian Brethren, at para. 53).
130. While CHSL is not aware of any explanation for the delay in the Certified Tribunal Record, none can be found in the PMRA’s annual report to Parliament which suggest that it has not made Parliament aware.
131. Since the conduct of the PMRA is contrary to the legislation, it is difficult to fathom how it might have justifiably delayed until 2015 to begin a re-evaluation of a product that had been on the market in Canada then for more than four decades.
132. The thinly justified bias admitted on the record of the PMRA against published scientific research, and its failure to exhibit that it had taken precautionary measures to manage the risk of bias in seller-sponsored research seems to put the PMRA on a collision-course with any explanation it might offer to explain the delay in a free and democratic society.
518 133. Supreme Court of Canada Justice Deschamps, in concurring reasons in Chaoulli v. Quebec (Attorney General) 2005 SCC 35, described the constitutional duty of the provincial government to curb waiting lists for medical care at paragraph 97 as follows:
…While the government has the power to decide what measures to adopt, it cannot choose to do nothing in the face of the violation of Quebeckers’ right to security. The government has not given reasons for its failure to act. Inertia cannot be used as an argument to justify deference.
134. The late Justice John Sopinka, speaking for the majority at paragraphs 594 and 608 in Rodriguez v. British Columbia (AG), [1993] 3 SCR 519
“Where the deprivation of the right in question does little or nothing to enhance the state's interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individual's rights will have been deprived for no valid purpose… To the extent that there is a consensus, it is that human life must be respected and we must be careful not to undermine the institutions that protect it.”
135. CHSL submits that a decade-long delay in re-evaluating a pesticides, especially when doing so involved applying a bias in favour of seller-sponsored science and against published, peer-reviewed studies following a non-transparent methodology offers little for a court to approve. While the dissenting reasons in Rodriguez comport more closely with federal law respecting assisted suicide as it has since been reformed by Parliament (and partly by implementing safeguards that the majority found lacking in 1993), former Justice McLachlin (as she then was) opined at page 617:
519 Since the advent of the Charter, this Court has been called upon to decide many issues which formerly lay fallow. If a law offends the Charter, this Court has no choice but to so declare.
136. The Supreme Court of Canada re-visited the section 7 protections related to the right to life in Carter v. Canada (Attorney General) 2015 SCC 5 in which it reached a unanimous conclusion that the prohibition on physician-assisted dying breached the section 7 right to life and that: [72] Section 7 does not catalogue the principles of fundamental justice to which it refers. Over the course of 32 years of Charter adjudication, this Court has worked to define the minimum constitutional requirements that a law that trenches on life, liberty or security of the person must meet…laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object.
137. Government action, such a delay that is not authorized by Parliament, cannot not be said to be authorized by law and, as such, cannot reasonable be said to have been in accord with fundamental justice or be justified (or justifiable) under section 1 of the Charter of Rights and Freedoms. The Supreme Court in Carter held that:
[95] It is difficult to justify a s. 7 violation: see Motor Vehicle Reference, at p. 518; G. (J.), at para. 99. The rights protected by s. 7 are fundamental, and “not easily overridden by competing social interests” (Charkaoui, at para. 66). And it is hard to justify a law that runs afoul of the principles of fundamental justice and is thus inherently flawed
Next steps, procedurally
138. While it may not be necessary, given the broad scope of curial review on important questions, CHSL urges the Federal Court of Appeal to consider raising the issue of whether there is a Charter section 7 breach and invite parties to submit full argument on
520 the question of whether the PMRA failed its constitutional duty to begin its Re- evaluation of glyphosate one decade after the express statutory deadline especially while exhibiting a bias in favour of seller-sponsored studies, and against research published in peer-reviewed scientific journals and Canadian government dietary exposure data.
139. If asked by the Court of Appeal, CHSL is prepared to provide notice to the provincial and territory AGs for provincial governments who wish to defend or expand discretion to ignore legislative deadlines by a decade or more or to pursue a bias against published scientific evidence in favour of seller-sponsored research wish to apply to the court for leave to intervene in this case.
140. Because CHSL is relying on constitutionally compliant laws, but imputes the actions of an administrative tribunal and its decision, notice of a constitutional question pursuant to section 57 of the Federal Courts Rules is not mandatory. Section 110 of the rules states:
Notice to Attorney General 110 Where a question of general importance is raised in a proceeding, other than a question referred to in section 57 of the Act, (a) any party may serve notice of the question on the Attorney General of Canada and any attorney general of a province who may be interested; (b) the Court may direct the Administrator to bring the proceeding to the attention of the Attorney General of Canada and any attorney general of a province who may be interested; and (c) the Attorney General of Canada and the attorney general of a province may apply for leave to intervene.
521 PART V: CONSIDERATIONS FOR THE FEDERAL COURT OF APPEAL IN RELATION TO THE ORDER SOUGHT
141. While CHSL takes no position many of the issues raised by the Appellant about which CHSL lacks expertise or experience to assess, it invites the Court of Appeal to be mindful of the following considerations in crafting its remedy.
142. The Review Panel Regulations, SOR/2008-22 stipulate that review panel members must be qualified experts, free of conflicts of interest and at least one-year removed from federal government service. Sections 3-4 of the Regulations state:
3 The Minister shall take the following factors into account in determining whether it is necessary to establish a review panel:
(a) whether the information in the notice of objection raises scientifically founded doubt as to the validity of the evaluations, on which the decision was based, of the health and environmental risks and the value of the pest control product; and
(b) whether the advice of expert scientists would assist in addressing the subject matter of the objection.
4 If the Minister determines that it is necessary to establish a review panel of one or more persons, each person selected by the Minister shall
(a) possess scientific knowledge that allows them to evaluate the subject matter of the objection; (b) not have been employed in any department, in any division or branch of the federal public administration, in any corporation or in any parent Crown corporation as set out, respectively, in Schedules I, I.1, II and III to the Financial Administration Act, within one year before the day on which they are appointed to the review panel;
522 (c) have provided the Minister with a written statement indicating that they are free from any actual or potential conflict of interest that relates to the decision under review; and (d) have undertaken in writing to disclose to the Minister in writing, without delay, any actual or potential conflict of interest that may arise and affect their duties as a member of the review panel. [emphasis added]
143. The Court of Appeal should consider prudent conditions for the appointment of the scientific review panel:
a) A multi-member review panel is essential to consider the extensive and diverse body of evidence. Though the Review Panel Regulations permit the Minister to appoint as few as one external adviser, a larger number of panellists with sufficiently diverse expertise and respect for peer-reviewed research from diverse disciplines is warranted, including, but not limited to, oncology, toxicology, epidemiology, consumer or health protection law, food science, nutrition, agricultural science, ecology, label design, and systematic reviews.
By close analogy, an official EU status Report on glyphosate notes: “On 10 May 2019, the Commission appointed four Member States (France, Hungary, the Netherlands and Sweden) acting jointly as 'rapporteurs' for the next assessment of glyphosate – this group of Member States is known as the Assessment Group on Glyphosate (AGG)…In general, the European Commission appoints rapporteur Member States in a consensual way (i.e. with the agreement of the Member State concerned) and for each substance, one Rapporteur Member State and one co-rapporteur Member State are nominated. In the case of glyphosate, because of the expected very large application dossier and the related high workload, no single Member State volunteered to become rapporteur Member State or co-rapporteur Member State.”21
523 b) The entire non-confidential portion of the 89,000-page glyphosate application record should be published on-line with only essential redactions and the confidential portion should also be available to the Review Panel on terms that do not undermine their ability to publish an expert appraisal of that evidence. The Court could direct that the entire 89,000-page application record be proactively disclosed, subject only to redactions mandated by the Access to Information Act and the Pest Control Products Act applying the principle that when there is doubt about whether to disclose that the precautionary principle and the principle of transparency militate in favour of disclosure.
c) The court should stipulate an adequate, finite time for conducting the scientific review. Adequate time must be allocated to recruit independent, expert Review Panel members and ensure they able to carefully consider the 12,000-study and growing body of peer-reviewed published evidence and the 89,000-page application record. However, so long as these activities continue, glyphosate will still be sold and used in Canada unless the Minister orders otherwise. The Court of Appeal should make clear that the PMRA’s approach to deadlines set by Parliament will not be tolerated by the Court of Appeal.
d) The court should direct the Review Panel to conduct a systematic review of published and seller-sponsored studies to facilitate transparency, accountability, and reproducibility of PMRA’s decision and confidence that its decision reflects science and not arbitrary decisions. Systematic reviews of scientific research involves study-by-study cataloguing of research on the basis of a priori agreed-upon study design qualities. This is an increasingly commonly used technique in physical and social sciences to assess important complex questions that have been addressed by many studies.
e) There should be a transparent, expertise-based panel recruitment process. The selection of the independent, expert Review Panel must be conducted in an
524 “open, transparent, and merit-based appointment process” employing a respected instrument for assessing conflicts of interest of possible measures. There may be strong pressure from government sources and global and national commercial sources to validate and consolidate the 2017 decision made by the PMRA and only diffuse, sporadic counter-veiling pressure from the public, public interest NGOs, and the media. If, for instance, the two Canadian members of the WHO International Agency for Research on Cancer panel on glyphosate were passed over in favour of recent retirees from the PMRA or agrochemical industry consultants, the purpose of a bona fides review could be undermined. f) Health Canada should proactively disclose to the Review Panel and the public record any notes from meetings between PMRA and glyphosate-regulated parties, or their intermediaries. This Court of Appeal could order or signal the benefits of the PMRA proactively publishing to a publicly accessible website all notes and other records of meetings whether in person or by telecommunication held with glyphosate registrants and applicant commencing one year prior to the statute-mandated re-evaluation period (i.e., from April 1, 2004 to 90 days before the date that the records are released), and in any case, no later than six months after the date of the Court Order provided that such disclosure is consistent with the Pest Control Products Act and the Access to Information Act. g) The Court of Appeal should mandate the Review Panel to formulate advice about a protocol for ensuring continuous scientific review of glyphosate. In the short time since PMRA ceased its review of the science, more than 4,000 new studies on glyphosate have been published. Prior to its initial registration in Canada in 1976, only one study had been published. The reference list in the PMRA’s Re-evaluation Decision – RVD2017-01 on glyphosate indicated that more than 1,000 studies has been considered in its decision; though these studies were predominantly seller-sponsored studies and, in CHSL’s submission, likely to give a biased perspective, their publication dates ranged from 1975 to March 2017, with no formal sentinel system for ensuring that research studies would trigger a review
525 beyond the unfettered discretion of the Minister. The Review Panel could be mandated to advise on a process to ensure continuous review of the science regarding glyphosate considering the rapid recent proliferation in published studies and an early warning system. The U.S. Federal Court of Appeals process has already produced some thoughtful guidance, including the need for an effective way to ensure a continuous review of the scientific evidence rather than a method that etches in stone a scientific conclusion for 15 years in a July 6, 2020 ruling 22 related to settlement negotiation. h) Advice on measures to prevent cherry-picking studies for applications under the Pest Control Products Act. The Court of Appeal should consider mandating the Review Panel to advise on whether a requirement for registrants to rely only on studies registered in advance would effectively prevent cherry-picking studies with favourable outcomes. i) The Court of Appeal should remain seized with the review until after its completion and offer parties an opportunity to make submissions on the extent to which its order was implemented in this complex public health dispute. The Review Panel report should be deposited with the Federal Court of Appeal and the Court should remain seized with the matter until such time as it shall determine is in the interests of justice. This oversight could be administered by a single justice or prothonotary. j) The Court of Appeal should direct the independent scientific Review Panel to monitor developments in the Canadian class action litigation. Evidence that is considered probative of health risk or bias of scientific research should be considered by scientific advisers to government. CHSL will endeavor to assist the court in crafting a remedy that will be restricted to the general powers of the Court, the specific authority of the Court pursuant to the Act and Regulations that will further the purposes and objectives of Parliament. The Canadian Bar Association maintains a website of progress reports on Canadian class actions that is searchable
526 by keyword: http://cbaapp.org/ClassAction/Search.aspx Pertinent developments in similar, but more procedurally advanced, U.S. litigation may be described there through the lens of Canadian law.
k) The Court of Appeal should not permit a superficial appearance of mootness to permit the PMRA to evade curial oversight. Even if the Attorney General and Minister of Health demurs to the request to appoint a Review Panel prior to a verdict, we urge the Court of Appeal to invite submissions on the adequacy of the remedy offered and issue an order attaching terms to ensure that the mandate and capacity of the Review Panel is adequate to achieve the main principles of the Pest Control Products Act:
“strengthening health and environmental protection, making the registration
system more transparent and strengthening post-registration control.”
The chances for court rulings with precedential force on such matters would be higher if the multi-billion-dollar agro-chemical company were aggrieved by a PMRA refusal to continue the registration of glyphosate. PMRA should not be permitted to escape curial oversight simply by granting the Appellant a paper victory in the form of a Review Panel that would foreseeably rubber-stamp the government’s 2017 decision.
144. The Federal Court of Appeal should consider formally declaring the PMRA’s actions resulting in a decade-long delay beyond the statutory deadline and applying an interpretation of the scientifically based approach that is unlawfully biased in favour of seller-sponsored studies and against published, peer-reviewed scientific research to constitute an unconstitutional infringement of the Canadians’ Charter of Rights and Freedoms section 7 right to life and security of person.
All of which is respectfully submitted by,
527 REFERENCES
1 Humane Society of Canada for the Protection of Animals and the Environment v. Canada (National Revenue), 2013 FCA 154 (CanLII),
Migneault v. Charbonneau, 2003 FCA 287 (CanLII),
HB Lynch Investments Inc. v. Canada (Minister of Public Works), 2004 FCA 334 (CanLII),
Generally, new evidence will not be admitted on appeal unless (1) the evidence was not discoverable with reasonable diligence before the end of the hearing in the court below, (2) the evidence is credible, and (3) the evidence is practically conclusive of an issue on the appeal: Frank Brunkhorst Co. v. Gainers Inc. [1993] F.C.J. No. 874 (F.C.A.). The Court retains a residual discretion to evidence on appeal, even if one or more of the Brunkhorst tests is not met: see the decision of Sopinka J. in Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.) (1992), 192 N.R. 390, and Brown v. Gentleman, 1971 CanLII 126 (SCC), [1971] S.C.R. 501. 2 Humane Society of Canada for the Protection of Animals and the Environment v. Canada (National Revenue), 2013 FCA 154 (CanLII),
Migneault v. Charbonneau, 2003 FCA 287 (CanLII),
HB Lynch Investments Inc. v. Canada (Minister of Public Works), 2004 FCA 334 (CanLII),
Generally, new evidence will not be admitted on appeal unless (1) the evidence was not discoverable with reasonable diligence before the end of the hearing in the court below, (2) the evidence is credible, and (3) the evidence is practically conclusive of an issue on the appeal: Frank Brunkhorst Co. v. Gainers Inc. [1993] F.C.J. No. 874 (F.C.A.). The Court retains a residual discretion to evidence on, even if one or more of the Brunkhorst tests is not met: see the decision of Sopinka J. in Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.) (1992), 192 N.R. 390, and Brown v. Gentleman, 1971 CanLII 126 (SCC), [1971] S.C.R. 501.
3 The joint concurring reasons of Justices Abella and Karakatsanis, who exhibited a more deferential approach to administrative decisions and forcefully criticized the reasons of the majority (which they described, at paragraph 201, as “a eulogy for deference [to the government]”, a characterization that the majority rejected as a “gross exaggeration” at paragraph 14Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 Available at: https://www.canlii.org/en/ca/scc/doc/2019/2019scc65/2019scc65.pdf
4 Sawridge Band v. Canada, 2005 FCA 259 (CanLII),
[6] The tests for the admission of new evidence are relatively strict because the focus of an appeal is to determine if the judge erred on the basis of the material before her or him. However, it can be difficult for a judge to decide the relevance of an item at the stage of determining the contents of the appeal book. Accordingly, the cautionary principle suggests that, even though the party seeking to have material included in the appeal book has the burden of establishing that it is admissible, a judge, if doubtful of its relevance, should not exclude it on a motion to determine the contents of the appeal book: Canada (Information Commissioner) v. Canada (Minister of the Environment) (2001), 2001 FCA 221 (CanLII), 14 C.P.R. (4th) 574 (F.C.A.) at 576. The panel hearing the appeal will be better placed to determine the relevance and weight of the disputed items.
528 5 Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65
6
7 Health Canada. Pest Management Regulatory Agency. 2018–2019 Annual Report to Parliament at page 12. Available at: https://www.canada.ca/content/dam/hc-sc/documents/services/consumer-product-safety/reports- publications/pesticides-pest-management/corporate-plans-reports/annual-report-2018-2019/PMRA-Annualreport- 2018-2019-Eng.pdf
8 Jason Flint, Director General, Policy, Communications and Regulatory Affairs Directorate, Pest Management Regulatory Agency, Health Canada testified “When a new pesticide is registered or a new active ingredient is registered, a typical submission comes to us with about 30,000 pages of scientific studies.” in a public hearing convened by the Canadian Proceedings of the Standing Senate Committee on Agriculture and Forestry. Issue No. 67 - Evidence - Meeting of May 28, 2019 (Available at: https://sencanada.ca/en/Content/Sen/Committee/421/AGFO/67ev-54822-e ) including the Vice President of Government Affairs for Bayer Croplife Canada, a representative of an industry association representing many of the world’s largest manufacturers of glyphosate.
9 See pages 31-32 which state:
“1.1.14 Use of Independent Scientific Studies Comment A number of comments stated that the PMRA, in its review of glyphosate, appeared to consider only “seller sponsored science”. The comments referred the PMRA to a number of published studies that link glyphosate to health effects. Overall, these comments emphasized support for the use of “third party” data in assessing the health effects and making the final re-evaluation decision for glyphosate, in lieu of manufacturer- supplied data. PMRA Response [After explaining the basis for PMRA’s belief in the trustworthiness of company-applicant-provided studies, PMRA added:] Studies conducted by academic laboratories often have lower statistical power due to the use of fewer animals, investigate far fewer toxicological endpoints, and lack sufficient detail in their published form. These limitations prevent regulatory authorities from performing an in-depth analysis of study results.”
10 The review stated: “In the RAR [the European Food Safety Authority renewal Assessment Report], almost no weight is given to studies from the published literature and there is an over-reliance on nonpublicly available industry-provided studies using a limited set of assays that define the minimum data necessary for the marketing of a pesticide. The IARC WG evaluation of probably carcinogenic to humans accurately reflects the results of published scientific literature on glyphosate and, on the face of it, unpublished studies to which EFSA refers.” Portier CJ and 93 colleagues. Differences in the carcinogenic evaluation of glyphosate between the International Agency for Research on Cancer (IARC) and the European Food Safety Authority (EFSA). Epidemiology and Community Health August 2016 Vol 70 No 8 (available at: https://jech.bmj.com/content/70/8/741 )
11 The review stated: “In the RAR [the European Food Safety Authority renewal Assessment Report], almost no weight is given to studies from the published literature and there is an over-reliance on nonpublicly available industry-provided studies using a limited set of assays that define the minimum data necessary for the marketing of a pesticide. The IARC WG evaluation of probably carcinogenic to humans accurately reflects the results of published scientific literature on glyphosate and, on the face of it, unpublished studies to which EFSA refers.” Portier CJ and 93 colleagues. Differences in the carcinogenic evaluation of glyphosate between the International Agency for Research on Cancer (IARC) and the European Food Safety Authority (EFSA). Epidemiol Community Health August 2016 Vol 70 No 8 (available at: https://jech.bmj.com/content/70/8/741 )
529 12 According to the Canadian Bar Association, National Class Action Database. Available at: http://cbaapp.org/ClassAction/Search.aspx
13 See: https://laws.justice.gc.ca/PDF/SOR-2006-260.pdf
14 See: https://laws.justice.gc.ca/PDF/P-9.01.pdf
15 See: https://pesticide-registry.canada.ca/en/incident-report-search.html
16 Antier, C., Andersson, R., Auskalnienė, O., Barić, K., Baret, P., Besenhofer, G., Calha, I., Carrola Dos Santos, S., De Cauwer, B., Chachalis, D., Dorner, Z., Follak, S., Forristal, D., Gaskov, S., Gonzalez Andujar, J. L., Hull, R., Jalli, H., Kierzek, R., & al. (2020). A survey on the uses of glyphosate in European countries. INRAE. https://doi.org/10.15454/A30K-D531
17 News European Parliament. MEPs demand glyphosate phase-out, with full ban by end 2022. Press Releases October 24, 2017. Available at: https://www.europarl.europa.eu/news/en/press- room/20171020IPR86572/meps-demand-glyphosate-phase-out-with-full-ban-by-end-2022 And the resolution to extend its approval for five more year was opposed by 9 EU members (six of which are also OECD members), even though it was an approval far less than the 10 years the industry requested, according to the EU Observer: https://euobserver.com/environment/140042 & https://ec.europa.eu/ireland/news/glyphosate- member-states-agree-5-year-renewal_en
• OECD members: Austria, Belgium, France, Greece, Italy, and Luxembourg • Non-OECD members: Croatia, Cyprus, and Malta. Subnational governments in two OECD countries, Canada and the UK also implemented bans on the some uses (e.g., Canadian and UK bans on so-called cosmetic uses). The non-binding EU resolution to ban glyphosate is indicative of intention by approximately 20 OECD countries to ban non-commercial uses immediately and end commercial uses by 2022 by a vote of 355-204 (with 111 abstentions): https://www.europarl.europa.eu/news/en/press-room/20171020IPR86572/meps-demand- glyphosate-phase-out-with-full-ban-by-end-2022 and see https://www.europarl.europa.eu/doceo/document/TA-8- 2017-0395_EN.pdf A US law firm lists the regulatory status of Glyphosate in many countries around the world (see: https://www.baumhedlundlaw.com/toxic-tort-law/monsanto-roundup-lawsuit/where-is-glyphosate- banned/ ), including the following summaries re EU/OECD countries:
• France: French authorities banned the sale, distribution and use of Roundup 360 in early 2019. In May of 2019, French Agriculture Minister Didier Guillaume announced that France would eliminate the use of glyphosate by 2021 with limited exceptions. Some 20 mayors throughout the country have banned glyphosate in their municipalities. • Germany: Environment Minister Svenja Schulze announced in September 2019 that Germany will ban glyphosate by 2023. The ban, agreed to by the Cabinet, includes a “systemic reduction strategy” that will prohibit glyphosate spraying in domestic gardens and at the edges of farmland. Certain retail stores in Germany have already pulled glyphosate-based herbicides like Roundup from shelves. • Greece: Greece was one of nine EU countries to vote against relicensing glyphosate in November of 2017. The country was also one of six EU member states to sign a 2018 letter to the European Commission calling for “an exit plan for glyphosate…” According to Greek Minister of Agricultural Development Evangelos Apostolou, “[i]t is our duty to push in the direction of risk management, in the interests of consumers, producers and the environment.” In March of 2018, the Greek government approved a five-year license for Monsanto’s Roundup against the wishes of Greek environmentalists. • Italy: Italy’s Ministry of Health placed a number of restrictions on glyphosate use. Italian legislators have also raised concerns about glyphosate safety, and have come out against relicensing the herbicide in the European Union. In 2016, the Italian government banned the use of glyphosate as a pre-harvest treatment and placed restrictions on glyphosate use in areas frequented by the public. In November of 2017, Italy was one of seven EU nations to vote against relicensing glyphosate.
530 19 European Commission. Status of glyphosate in the EU. Available at: https://ec.europa.eu/food/plant/pesticides/glyphosate_en 20 According to a report by the Library of Parliament published in 2002, one of the six “notable” priorities of 77 recommendations of the 200-page report in the May 2000 House of Commons Standing Committee on Health report Pesticides: Making the right choice for the protection of health and the environment was to re-evaluate “older pesticides by 2006, together with a mandatory re-evaluation every 15 years”—a requirement that was codified in the 2002 statute. The re-evaluation of one of those older pesticides, Glyphosate, was completed 41 years after its original approval which, by no standard, let alone the present statutory regime, would be considered a timely re-evaluation. https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/37-2/c8- e.pdf
21 See: https://ec.europa.eu/food/plant/pesticides/glyphosate_en
22 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA. MDL No. 2741 Case No. 16-md-02741-VC This document relates to: Ramirez, et al. v. Monsanto Co., Case No. 3:19- cv-02224 PRETRIAL ORDER NO. 214: DENYING MOTIONS TO ALTER SCHEDULE ON MOTION FOR PRELIMINARY APPROVAL. United States District Judge VINCE CHHABRIA Order of July 6, 2020. Available at: https://usrtk.org/wp-content/uploads/bsk-pdf-manager/2020/07/Judge-Chhabria-order-on-class- action-settlement-hearing.pdf
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