Docket: A-167-16
Citation:
2017 FCA 149
|
CORAM:
|
STRATAS J.A.
RENNIE J.A.
WOODS J.A.
|
|
BETWEEN:
|
|
GOODYEAR CANADA
INC.
|
|
Appellant
|
|
and
|
|
THE MINISTER OF
THE ENVIRONMENT
|
|
THE MINISTER OF
HEALTH
|
|
Respondents
|
REASONS
FOR JUDGMENT
RENNIE J.A.
[1]
On October 15, 2011, the Ministers of the
Environment and Health published an order in the Canada Gazette, Part I,
proposing the addition by the Governor in Council of BENPAT, an antioxidant
compound used in the production of tires, to the List of Toxic Substances under
Schedule 1 of the Canadian Environmental Protection Act, 1999, S.C.
1999, c. 33 (the Act). As permitted by subsection 332(2), the appellant, Goodyear
Canada Inc., filed a notice of objection and requested that a board of review be
established under section 333. The mandate of a board of review is to inquire
into the nature and extent of the danger posed by a substance which, in this
case, the Ministers recommend and the Governor in Council proposes to add to
the List of Toxic Substances in Schedule 1 of the Act.
[2]
The Minister of the Environment refused to
convene a board of review on the basis that Goodyear’s notice of objection “did not bring forth any new scientific data or information
that would support a change in the conclusion of the assessment.” The
Minister also noted that Goodyear had had numerous opportunities to present
evidence supporting its position and to challenge the data on which the
screening assessment was based, all of which had previously been considered
during the consultation process.
[3]
Goodyear commenced an application for judicial
review, contending that the Minister’s decision not to convene a board of
review was unreasonable and that the manner in which it was reached breached a duty
of procedural fairness owed to Goodyear. With respect to procedural fairness,
Goodyear asserted that relevant information was not before the Minister at the
time the decision was made and was, in any event, never disclosed to it.
[4]
The application for judicial review was dismissed
by the Federal Court (2016 FC 466), per Justice O’Reilly. Goodyear now
appeals.
[5]
For the reasons that follow, I would dismiss the
appeal with costs.
[6]
The applicable standard of review is that
outlined in Agraira v. Canada (Public Safety and Emergency Preparedness),
2013 SCC 36, [2013] 2 S.C.R. 559. This Court must consider whether the Federal
Court selected the correct standard of review and applied it correctly. In
other words, this Court steps into the shoes of the first instance court in
reviewing a tribunal’s decision. The Federal Court correctly determined that
the Minister’s decision is subject to review on the standard of reasonableness,
and that the Federal Court’s determinations on procedural fairness are subject
to correctness review.
I.
The legislation
[7]
The Act gives the Ministers a mandate to prevent
and control the use of toxic substances, which include those which may have a harmful
effect on the environment or which constitute a danger to human life or health.
The supporting statutory mechanisms are complex, establishing procedures for
scientific review and public consultation. As all pertinent decisions in this
case were taken by the Minister of the Environment, references to the Minister
will be to that minister.
[8]
Subsection 90(1) of the Act authorizes the Governor
in Council to make an order, on the recommendation of the Ministers, adding a
substance to the List of Toxic Substances, if he or she is satisfied that the
substance is toxic. Any use of substances on this list may be controlled or
completely prohibited. Section 64 of the Act provides that a substance is
considered toxic if it is entering or may enter the environment in a quantity
or concentration or under conditions that are or may be harmful to the
environment or its biological diversity, or that constitute or may constitute a
danger to human life or health or the environment on which life depends.
[9]
A determination of toxicity originates, for
present purposes, with the mandate under section 66 of the Act requiring the
Minister to maintain a Domestic Substances List identifying substances which
were in Canadian commerce, used in commercial manufacturing, or manufactured or
imported into Canada in an amount not less than 100kg in any year from January
1, 1984 to December 31, 1986. Many of these substances had not previously been
assessed to determine whether or not they were toxic. Prior to adding a
substance to the List of Toxic Substances, section 74 of the Act requires that
a screening assessment be conducted of a substance already listed on the
Domestic Substances List that, inter alia, was categorized as persistent
or bioaccumulative and “inherently toxic”, or
that may present the greatest potential for exposure (section 73).
[10]
The screening assessment under section 74 is
conducted to determine whether a substance is “toxic”
within section 64 of the Act. Where a screening assessment has been conducted,
the Act provides that the Ministers shall publish in the Canada Gazette,
Part I (the Gazette) the proposed measure they intend to take with
respect to the substance and a summary of the scientific bases for the measure
proposed (subsection 77(1)). Publication triggers a 60-day statutory public
comment period (subsection 77(5)), following which a final decision on the
proposed measure is published in the Gazette (subsection 77(6)).
[11]
If, after taking into consideration the comments
filed during the statutory public comment period, the Ministers are of the view
that the substance should be added to the List of Toxic Substances, the Act
mandates that the Ministers shall make a recommendation to the Governor in
Council for an order that the substance be added (subsections 77(6) and 77(9)).
[12]
The publication of a proposed order triggers a
further 60 day period for public comment. Any person may also file a notice of objection
requesting that the Minister convene a board of review to inquire into the “nature and extent of the danger posed by
the substance” in respect of which the order has
been proposed (subsections 332(2) and 333(1)).
[13]
If the Minister establishes a board of review, the
Minister has the discretion to make rules regarding the board’s proceedings,
including for example, regulating the conduct of hearings or fixing the
remuneration of board members (section 341). The board shall allow any person
or government to have “a
reasonable opportunity, consistent with the rules of procedural fairness and
natural justice, of appearing before it, presenting evidence and making
representations” (section 335). Following its
inquiry, the board of review submits to the Minister a report, along with its
recommendations and the evidence presented to it, that is then made public
(section 340).
[14]
Concurrent with the screening process, the Act
requires the identification of measures to prevent and control the risks
associated with the substance. If the Minister’s final decision regarding the
measure it proposes to take is to recommend that the Governor in Council add
the substance to the List of Toxic Substances, the Minister is also required to
issue a statement indicating the manner in which she or he intends to “develop a proposed regulation or instrument respecting
preventive or control actions in relation to the substance” (paragraph 77(6)(c)).
[15]
This element of the Minister’s responsibilities
is supported by a non-statutory risk management process. It unfolds parallel
to, and at times intersecting with, the screening assessment process, and engages
a further set of consultations. It culminates with publication, and eventual
finalization, of a proposed regulation or instrument in the Gazette. The
proposed regulation or instrument respecting preventive or control actions must
be published within two years of the Minister’s final decision to recommend
that the substance be added to the List of Toxic Substances; however, where a
board of review is established, that two year period is suspended until the
Minister receives the board’s report (subsections 91(1) and 91(7)). As we will
see, the conflation of these two procedures – the statutory assessment process
and the risk management process – underlies the procedural fairness argument
before this Court.
II.
Consideration of BENPAT as a toxic substance
[16]
In 2006, the Ministers published a notice under
paragraphs 71(1)(a) and (b) of the Act which required certain
persons to provide information for the purpose of assessing whether BENPAT,
among other substances, was toxic or capable of becoming toxic. In December of
that same year, the Ministers published an additional notice of their plan for
the assessment and management of certain substances on the Domestic Substances
List, including BENPAT, which had been categorized as, inter alia,
persistent and/or bioaccumulative. The notice indicated that the categorized
substances would be subject to a screening assessment, and if found to meet the
definition of toxicity under section 64 of the Act, “may
be subject to risk management measures”.
[17]
A summary of the draft screening assessment was
published in the Gazette on October 2, 2010 (the draft assessment). The draft
assessment concluded that BENPAT met one or more of the criteria for toxicity
set out in section 64 of the Act and met the criteria for persistence and
bioaccumulation potential. The same day, a risk management report was released
by Environment Canada. The risk management report outlined the nature of the
regulatory controls under consideration. The statutory 60-day period for public
comment on the screening report was triggered, as was a period for public
comment on the risk management report. Goodyear provided technical information and
met with Environment Canada.
[18]
On September 10, 2011 the Ministers issued a
final decision after screening assessment, giving notice that they proposed to
recommend that the Governor in Council add BENPAT to the List of Toxic
Substances as a toxic substance. The screening assessment concluded that BENPAT
was toxic within the ambit of section 64. At the same time, the Ministers gave
notice that they were releasing a proposed risk management document for BENPAT
to facilitate further stakeholder discussions related to proposed regulatory
action in the future.
[19]
On October 15, 2011, the Minister published a
proposed order of the Governor in Council under subsections 90(1) and 332(1) of
the Act to the same effect. I note that the question whether BENPAT is, or is
not, properly listed as a toxic substance is not before this Court at this
time. As of the hearing of this matter, no final order had been made under subsection
90(1) of the Act.
[20]
On December 14, 2011, in response to the
proposed order, Goodyear filed a notice of objection pursuant to subsection
332(2) of the Act, requesting that the Minister establish a board of review and
providing reasons for its objection (the Notice). In September of 2013, the
Minister wrote to Goodyear stating that its Notice “did
not bring forth any new scientific data or information that would support a
change in the conclusion of the assessment,” and that she had decided
not to establish a board of review.
[21]
Two days following the Minister’s refusal to
convene a board of review, Environment Canada released after a Risk Management
Update with respect to BENPAT. The Risk Management Update stated that “[t]he industrial releases of BENPAT…in Canada are expected
to be lower than estimated in the screening assessment as indicated by a
technical study on rubber conducted in 2012 and information obtained from
stakeholders”. I will refer to this technical study as the 2012 Study.
[22]
At the risk of disrupting the chronology of
events, I note that it is uncontested that the 2012 Study referred to in the
Risk Management Update was not before the Minister at the time of her decision
not to convene a board of review. It is also uncontested that the 2012 Study
had not been disclosed to Goodyear.
[23]
After reviewing Goodyear’s Notice and
representations, officials in Environment Canada prepared a document that would
form the basis of advice to the Minister as to whether or not a board should be
convened (the Technical Analysis). Amongst other sources and data, the
Technical Analysis incorporated emissions data that had been included in the
2012 Study, although it did not reference it directly. The Technical Analysis
was not produced to Goodyear.
[24]
The Minister asserts that the 2012 Study relied
on data from a study by ChemRisk LLC prepared in 2010 for the European Tyre and
Rubber Manufacturers’ Association (the 2010 Study). The Minister submits on
that basis that the 2010 Study was also the source of the statement in the Risk
Management Update that emissions would not be as high as anticipated in the
screening assessment. However, rather than citing the 2010 Study as the source,
the Risk Management Update cited the 2012 Study and other information obtained
from stakeholders.
[25]
The 2012 Study had not been produced to
Goodyear, and was not before the Minister when she made her decision to refuse
to convene a board of review. The 2010 Study however, was known to Goodyear. In
fact, Goodyear had drawn it to the Minister’s attention during the screening
assessment consultation process and again in its Notice.
III.
Goodyear’s position
[26]
Two legal consequences are said to flow from
this chain of events. First, the fact that the 2012 Study was not produced to Goodyear
underlies its arguments that procedural fairness was breached. Second, the fact
that the Risk Management Update states that emissions levels were lower than
anticipated in 2010 underscores Goodyear’s argument that the decision of the
Minister not to convene a board was unreasonable.
[27]
Goodyear also contends that, in rejecting the
request to appoint a board of review on the ground that it did not supply new
evidence that would support a change in the conclusion, the Minister imposed a
test that was both unreasonable and constituted a fettering of discretion.
IV.
Analysis
[28]
Goodyear contends that it was owed a duty of
fairness and that this duty was breached when the 2012 Study was not provided
to Goodyear. Goodyear also argues that it should have been entitled to
challenge or verify whether the 2012 Study would have affected the advice in
the Technical Analysis which recommended against convening a board of review.
It notes further that the Risk Management Update referred to ongoing
experiments being conducted by Environment Canada, the results of which would
not be available until 2015, well after the September 2013 decision of the
Minister to decline to convene a board of review. Goodyear says that this “black box” of non-disclosure offends procedural
fairness.
[29]
These arguments fail from both an evidentiary
and legal standpoint.
[30]
While Goodyear is correct in stating that the
2012 Study was not before the Minister when the decision was made not to
convene a board of review, the Federal Court found that “the 2012 tire study was based on data contained in an
earlier 2010 study that was provided to Goodyear and taken into account by the
Minister.” I agree with this finding.
[31]
Goodyear was aware of the data in the 2010 Study
and had the opportunity to make comments on it. Indeed, Goodyear drew the 2010
Study to the attention of the Minister during the screening assessment. Further,
the recommendation in the Technical Analysis not to convene a board of review
included a review of the final screening assessment, in which Goodyear had
participated. Goodyear was thus aware of the 2010 emissions data relied upon in
the advice to the Minister. Therefore, it cannot be argued that Goodyear’s
interests had been prejudiced or compromised by the fact that the 2012 Study
was not produced.
[32]
Goodyear argues that the decision to decline to
convene a board of review “amounts to a decision to add
BENPAT to the List of Toxic Substances,” a final decision which directly
affects its rights and commercial interest as the primary user of BENPAT in
Canada (Goodyear’s Memorandum of Fact and Law, at para. 58). Goodyear also
contends that the Minister made a decision not to convene a board of review
without giving it an opportunity to make submissions and be heard. In response,
the Minister argues on the basis of Syncrude Canada Ltd. v. Canada (Attorney
General), 2014 FC 776 [Syncrude], that the decision not to convene a
board of review is part of a legislative process, and therefore immune from
review. Goodyear maintains that the Federal Court “erred
in not recognizing that a ‘legislative’ step has not yet occurred,” as
BENPAT has not been added to the List of Toxic Substances and asks this Court
to distinguish Syncrude on that basis (Goodyear’s Memorandum of
Fact and Law, at para. 63).
[33]
The decision not to convene a board of inquiry
and the decision to add a substance to the List of Toxic Substances are
separate and discrete. While both are reviewable and subject to the
requirements of procedural fairness appropriate to their context, at issue in
this appeal is the decision not to convene a board of review, which is a
decision about whether further scientific inquiry is warranted. This is a
decision which, in some circumstances can affect rights and interests and
trigger procedural fairness obligations: Minister of National Revenue v.
Coopers and Lybrand, [1979] 1 S.C.R. 495, 92 D.L.R. (3d) 1; Martineau v.
Matsqui Disciplinary Bd., [1980] 1 S.C.R. 602, 106 D.L.R. (3d) 385; Cardinal
v. Director of Kent Institution, [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44.
[34]
Parliament recognized, in section 335, that the
full sweep of procedural fairness obligations applied to a board once
established. In contrast, the Minister’s argument that there is no right to
procedural fairness when considering whether to establish a board does not mesh
with Parliament’s recognition of the importance of the issues at play before
boards of inquiry. Nor does the Minister’s argument fit with the fact that
Goodyear’s specific rights and interests are potentially affected by the order.
However, on the facts of this case, Goodyear had available to it all the
information it needed to make submissions on the matter.
[35]
I do not think, given the extensive statutory
and non-statutory consultation which occurred prior to the publication in the Gazette,
that the failure to produce the 2012 Study, or to give Goodyear an opportunity
to respond to the Technical Analysis, breached any entitlement to procedural
fairness that it might otherwise have been owed. Further, Goodyear has not
argued any basis for additional procedural fairness outside of the statement
that its rights and interests will be affected by the ultimate decision to List
of Toxic Substances, a decision which is not before this Court.
[36]
Goodyear argues that the Minister’s decision not
to convene a board of review should be treated as the final decision to add
BENPAT to the List of Toxic Substances. Further, Goodyear argues that it was an
error for the Federal Court to fail to recognize that a “legislative” step has not yet occurred. It appears to
argue both that the decision to decline to convene a board of review is
effectively the decision to amend Schedule 1 of the Act to add BENPAT to the List
of Toxic Substances, and at the same time, asks this Court to find that,
because no order has been made adding BENPAT to the List of Toxic Substances,
the decision under review is not legislative in nature. Goodyear cannot have it
both ways.
[37]
At the very least, Goodyear appears to concede
that its rights and interests, should they be sufficient to engage procedural
fairness concerns, would not be engaged until there is a final decision to add
BENPAT to the List of Toxic Substances. Thus, even if any additional procedural
fairness is owed to Goodyear in the process, on its own reasoning the issue
does not yet arise.
[38]
To conclude, given the evidence that the
emissions data in the 2012 Study and the Technical Analysis originated in other
materials to which Goodyear had access, and the lengthy history of
consultation, Goodyear was not deprived of any disclosure or opportunity to
make submissions as alleged. Goodyear, as the largest user of BENPAT in Canada,
participated throughout the screening assessment process and was not prejudiced
by the non-disclosure of the 2012 Study.
[39]
I turn to the challenge of the decision not
convene a board of review.
[40]
Goodyear’s argument is
premised on its contention that the decision not to convene a board of review
is unreasonable given the statement in the Risk Management Update that
emissions of BENPAT are now projected to be less than those stated in the
screening assessment.
[41]
This argument conflates the screening assessment
process and the risk management process. As discussed earlier, they are discrete.
The former is statutory, the latter is not. The screening assessment under section
74 of the Act is a statutorily mandated scientific evaluation of a chemical
substance to determine whether it is toxic or capable of becoming toxic. Once a
decision has been made to add a substance to Schedule 1, section 91 of the Act
requires the Minister to publish, within twenty four months of the proposal,
either the proposed regulation, or another instrument describing the “preventive or control actions” for managing the
substance.
[42]
The statement in the Risk Management Update that
the levels of emissions may be less than anticipated relates to the risk
management measures, and not to toxicity. The determination of the appropriate
preventive or control actions to manage the risk posed by a substance is a
separate and distinct function from the assessment of whether a substance is
toxic as defined in section 64.
[43]
The statement in the Risk Management Update that
emissions of BENPAT will be lower than anticipated does not necessarily
undermine the reasonableness of the decision not to convene a board of review.
The fact that the extent of the risk may not be as great as contemplated does
not mean that an inquiry “into the nature and extent of
the danger posed by the substance” is required. The statutory process is
directed to determining whether a substance is a danger. The risk management
process is directed to the management of that danger. That said, I agree with
Goodyear that if a substance were listed as toxic, and there were no regulatory
response whatsoever, the decision to list a substance as toxic might be
challenged. This however, is not the case here.
[44]
Goodyear also contends that in rejecting the
request to convene a board of review on the basis that it had not brought forth
any scientific data or information that would support a change in the screening
assessment, the Minister adopted a test not contemplated by the language of
section 333 and fettered her discretion.
[45]
The purpose of establishing a board of review
under section 333 is to inquire into the “nature and
extent” of a danger posed by a substance. It is the Minister’s
discretion to determine whether there is sufficient uncertainty or doubt in the
underlying science that a board of review is warranted. Based on the record
before this Court, it cannot be said that the science was so uncertain or that
deficiencies in the underlying analysis rendered the Minister’s decision not to
convene a board unreasonable. Indeed, the contrary would appear to be the case.
The question of BENPAT’s toxicity and effect on the environment has been the
subject of considerable study over the four years prior to notice of the
proposed order being published in the Gazette.
[46]
Section 333 of the Act is discretionary, and the
“test” to which Goodyear refers - the existence
of new information - is just one factor the Minister may consider in deciding
whether or not to exercise her discretion to establish a board. The Act does
not set any criteria by which the Minister may decide whether or not to
establish a board. In fact, there are provisions in the Act which address
circumstances in which the Minister must establish a board, such as when
the Minister decides not to list a substance as toxic in the face of a
recommendation to list in the final screening assessment. Outside of those
mandatory circumstances, Parliament intended to give the Minister a discretion
to determine whether or not to establish a board of review.
[47]
Even if there was evidence that was “new”, it is for the Minister to decide whether it is
contradictory to the conclusions in its assessment and, if so, the weight to be
given to it. Similarly, the fact that the Risk Management Update referred to ongoing
experiments, the results of which would not be available until after the
decision was taken not to convene a board of review, does not render the
decision unreasonable. It is reasonable to assume that, as a matter of course,
monitoring, evaluation and experimentation may take place subsequent to a
decision to list a substance as toxic. A commitment to further inquiry does not
negate the decision not to convene a board of review.
[48]
Goodyear also points to the affidavit evidence
questioning the validity of the analytical methods used in the screening
assessment, raising the criticisms of the Siloxane D5 board of review related
to an analytical model relied upon by the Minister in the screening assessment.
The Minister counters by pointing to the many articles and publications relied
on by Environment Canada in the screening assessment, and notes that Goodyear
only brought four new articles to the table. This argument requires comment.
[49]
The reasonableness of a Ministerial decision is
not determined by the number of academic papers cited or relied upon. The Court
is concerned about other criteria – transparency, justification,
intelligibility, acceptability and defensibility. The essence of a decision not
to convene a board under section 333 is the Minister’s assessment as to the
sufficiency of the science in support of the proposed order. Consistent with standard
of review principles, the Court is reluctant to second-guess decisions of this
nature. Suffice to say at this stage that the decision not to convene a board
was one which was reasonably open to the Minister.
[50]
Goodyear contends that, if this Court does not
intervene at this stage, the decision not to convene a board of review, the
regulatory action will effectively be immunized from review. To accept that the
cloak of legislative immunity covers all steps preceding the publication of the
proposed order or regulation in Part I of the Gazette would leave parties
like Goodyear with no recourse in the light of a measure which will have direct
impact or bearing on its interests.
[51]
I do not agree. It is a well-established tenet
of administrative law that subordinate legislation may be challenged on several
grounds. Subordinate legislation must be within the boundary of the legislative
grant, both as to the content and purpose: Canada (Attorney General) v.
Canadian Wheat Board, 2009 FCA 214, [2010] 3 F.C.R. 374, at para. 37 per
Noel J.A. (as he then was). The short-hand label for this type of challenge is
the “ultra vires” ground of review.
Subordinate legislation may also be challenged on judicial review where the
Governor in Council did not comply with statutory pre-conditions to
promulgation; Attorney General of Canada v. Inuit Tapirisat et al., [1980]
2 S.C.R 735, at p. 752, 115 D.L.R. (3d) 1.
[52]
Even decisions of broad social and economic
public policy may be subject to a limited review on the basis of bad faith, no
reasonable basis in fact or that the regulation was motivated by or directed to
ulterior or collateral purposes: Thorne’s Hardware Ltd. v. The Queen,
[1983] 1 S.C.R. 106, p. 111, 143 D.L.R. (3d) 577. Subordinate legislation may
be attacked for reasonableness, albeit according to the decision-maker a broad
margin of appreciation: Green v. Law Society of Manitoba, 2017 SCC 20, 407
D.L.R. (4th) 573; Catalyst Paper Corp. v. North Cowichan (District),
2012 SCC 2, [2012] 1 S.C.R. 5. As noted by this Court in Hupacasath First
Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA
4, 379 D.L.R. (4th) 737, at paragraph 67, per Stratas J.A., the fact
that the subordinate legislation may reflect a broader policy or economic
decision goes to the degree of deference, not to the question whether the
regulation is subject to review.
[53]
In light of these principles, should a final
order to add BENPAT to the List of Toxic Substances be made, Goodyear is not
without recourse. In making this point, I am of course, passing no comment on
the merits.
[54]
I would dismiss the appeal with costs.
“Donald J. Rennie”
|
“I agree
|
|
David Stratas J.A.”
|
|
“I agree
|
|
J. Woods
J.A.”
|
Email this Content