by Joseph Castrilli, Counsel, Canadian Environmental Law Association
At the end of January 2026, a three-judge panel of the Federal Court of Appeal (FCA) held that the federal government’s 2021 order designating plastic manufactured items (PMI) as “toxic” under the Canadian Environmental Protection Act (CEPA) was administratively reasonable and constitutionally permissible (Canada (Attorney General) v. Responsible Plastic Use Coalition, 2026 FCA 17).
The FCA judgment breathes new life into efforts by the federal government to address plastic pollution by reversing a 2023 decision of a single Federal Court judge that had found the listing order both unreasonable and unconstitutional. Though the case may yet end up before the Supreme Court of Canada, had the decision of the Federal Court been upheld, federal efforts to control plastic pollution in Canada might have been stalled for years.
Why the Order was Reasonable
In reversing the Federal Court and allowing the federal government’s appeal, the FCA found that the principles set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 guided the analysis and, when applied, lead to the conclusion that the decisions of the federal government were reasonable. In this case, an order listing a substance under section 90(1) does not have to require that the substance: (1) enter the environment; or (2) be harmful in all its manifestations. The federal cabinet simply must be satisfied that the section 64 criteria for “toxicity” are “satisfied”, and that the substance “may” enter the environment, and “may” cause harm. The FCA further noted that a listing order under section 90(1) is only the first of two steps that may lead to regulation as required by the scheme of the Act. The second step is the decision under section 93(1) whether to regulate and, if so, how. Only the listing decision was the subject of the judicial review application in this case.
The Federal Court’s conclusion that the listing order was too broad was based on an incorrect premise, according to the FCA, and that premise was inconsistent with the express language of CEPA. In the view of the FCA, by requiring precision in the description of the individual plastic items at the listing stage, the Federal Court effectively collapsed the legislative process into a single step and rendered section 93(1) superfluous. The Federal Court’s misunderstanding of the legislative scheme led it to reason that because not all plastics enter the environment, not all plastics cause harm. Therefore, the Federal Court required the specific identification of the particular plastics that enter the environment, and that only those particular plastics be listed in the order. The FCA noted that this is not the test that Parliament set out in CEPA. All that the listing stage, based on sections 64 and 90(1), requires is the potential for harm.
In the context of the harm to which the listing order was directed, namely the harm and potential harm of plastic pollution, the FCA found irrelevant a requirement for quantitative testing that the industry urged be adopted to determine the chemical composition of a particular plastic. The problem, according to the FCA, is the plastic itself, not its chemistry. There was overwhelming scientific evidence before the federal cabinet that supported a finding that PMI were ubiquitous in the environment and may be present in such conditions and concentrations that they were, or could be, harmful to the environment, or its biological diversity. The scientific assessments available to the federal cabinet showed that the problem to be targeted was plastic pollution, with the universal consensus being that microplastic pollution (i.e., less than 5 millimeters) is an environmental hazard. In the case of PMI, harm may occur to terrestrial or marine animals through ingestion, suffocation, strangulation, internal hemorrhaging, or disease transmission. On this point, the FCA noted the evidence was substantial and unequivocal.
According to the FCA, the legal error committed by the Federal Court in concluding that the order listing PMI was unreasonable, was focusing on “toxicity” per se based on the lack of an assessment of dose or concentration in determining a harmful effect. Toxicity, according to the FCA, is not the test. Rather it is the consequence of a finding of harm or prospective harm under section 64.
The FCA also rejected the Federal Court’s characterization of the decision as unreasonable because only one percent of plastic products enters the environment each year. The FCA noted that one percent represented 29 kilotonnes per year, cumulatively entering the environment as plastic pollution. The FCA noted that a court should not redefine the problem before the decision-maker and then determine whether it is reasonable for the government to act in respect of that redefined problem.
Why the Criminal Law Power Was Not Engaged
The FCA noted that it agreed with the Federal Court’s characterization of the dominant purpose of the listing order as preventing harm to the terrestrial and marine environment. The FCA noted that the Federal Court conclusion that the order was unconstitutional flowed from its conclusion that it was an unreasonable exercise of a delegated authority.
However, the FCA viewed the listing order as simply an enabling provision imposing neither a prohibition nor a sanction/penalty. That is; there were no consequences for any person. As such, the order was not an exercise of the criminal law power. The order was found to open the door for ministers to consider potential regulation. Once such regulation occurs, that would trigger the obligation to meet criminal law power requirements of: (1) establishing a criminal law purpose; coupled with (2) a prohibition; and (3) a penalty. At the stage of the listing order, the second and third requirements were not engaged because there were no such consequences for any person.
What Comes Next
Subject to whether the FCA judgment on the listing of PMI in CEPA is appealed to the Supreme Court of Canada, the rubber will otherwise meet the road when the first regulation relying on the PMI listing, Single-use Plastics Prohibition Regulations, SOR/2022-138, is interpreted by the courts, expected in the coming months. The federal government has already been sued by industry arguing that the regulation is unreasonable and / or unconstitutional. With the release of the FCA judgment, it should not be long before we have a more definitive answer to the future of the federal government’s attempt to regulate plastic pollution.
Blog: An Anti-Plastic Fantastic Decision from the Federal Court of Appeal
by Joseph Castrilli, Counsel, Canadian Environmental Law Association
At the end of January 2026, a three-judge panel of the Federal Court of Appeal (FCA) held that the federal government’s 2021 order designating plastic manufactured items (PMI) as “toxic” under the Canadian Environmental Protection Act (CEPA) was administratively reasonable and constitutionally permissible (Canada (Attorney General) v. Responsible Plastic Use Coalition, 2026 FCA 17).
The FCA judgment breathes new life into efforts by the federal government to address plastic pollution by reversing a 2023 decision of a single Federal Court judge that had found the listing order both unreasonable and unconstitutional. Though the case may yet end up before the Supreme Court of Canada, had the decision of the Federal Court been upheld, federal efforts to control plastic pollution in Canada might have been stalled for years.
Why the Order was Reasonable
In reversing the Federal Court and allowing the federal government’s appeal, the FCA found that the principles set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 guided the analysis and, when applied, lead to the conclusion that the decisions of the federal government were reasonable. In this case, an order listing a substance under section 90(1) does not have to require that the substance: (1) enter the environment; or (2) be harmful in all its manifestations. The federal cabinet simply must be satisfied that the section 64 criteria for “toxicity” are “satisfied”, and that the substance “may” enter the environment, and “may” cause harm. The FCA further noted that a listing order under section 90(1) is only the first of two steps that may lead to regulation as required by the scheme of the Act. The second step is the decision under section 93(1) whether to regulate and, if so, how. Only the listing decision was the subject of the judicial review application in this case.
The Federal Court’s conclusion that the listing order was too broad was based on an incorrect premise, according to the FCA, and that premise was inconsistent with the express language of CEPA. In the view of the FCA, by requiring precision in the description of the individual plastic items at the listing stage, the Federal Court effectively collapsed the legislative process into a single step and rendered section 93(1) superfluous. The Federal Court’s misunderstanding of the legislative scheme led it to reason that because not all plastics enter the environment, not all plastics cause harm. Therefore, the Federal Court required the specific identification of the particular plastics that enter the environment, and that only those particular plastics be listed in the order. The FCA noted that this is not the test that Parliament set out in CEPA. All that the listing stage, based on sections 64 and 90(1), requires is the potential for harm.
In the context of the harm to which the listing order was directed, namely the harm and potential harm of plastic pollution, the FCA found irrelevant a requirement for quantitative testing that the industry urged be adopted to determine the chemical composition of a particular plastic. The problem, according to the FCA, is the plastic itself, not its chemistry. There was overwhelming scientific evidence before the federal cabinet that supported a finding that PMI were ubiquitous in the environment and may be present in such conditions and concentrations that they were, or could be, harmful to the environment, or its biological diversity. The scientific assessments available to the federal cabinet showed that the problem to be targeted was plastic pollution, with the universal consensus being that microplastic pollution (i.e., less than 5 millimeters) is an environmental hazard. In the case of PMI, harm may occur to terrestrial or marine animals through ingestion, suffocation, strangulation, internal hemorrhaging, or disease transmission. On this point, the FCA noted the evidence was substantial and unequivocal.
According to the FCA, the legal error committed by the Federal Court in concluding that the order listing PMI was unreasonable, was focusing on “toxicity” per se based on the lack of an assessment of dose or concentration in determining a harmful effect. Toxicity, according to the FCA, is not the test. Rather it is the consequence of a finding of harm or prospective harm under section 64.
The FCA also rejected the Federal Court’s characterization of the decision as unreasonable because only one percent of plastic products enters the environment each year. The FCA noted that one percent represented 29 kilotonnes per year, cumulatively entering the environment as plastic pollution. The FCA noted that a court should not redefine the problem before the decision-maker and then determine whether it is reasonable for the government to act in respect of that redefined problem.
Why the Criminal Law Power Was Not Engaged
The FCA noted that it agreed with the Federal Court’s characterization of the dominant purpose of the listing order as preventing harm to the terrestrial and marine environment. The FCA noted that the Federal Court conclusion that the order was unconstitutional flowed from its conclusion that it was an unreasonable exercise of a delegated authority.
However, the FCA viewed the listing order as simply an enabling provision imposing neither a prohibition nor a sanction/penalty. That is; there were no consequences for any person. As such, the order was not an exercise of the criminal law power. The order was found to open the door for ministers to consider potential regulation. Once such regulation occurs, that would trigger the obligation to meet criminal law power requirements of: (1) establishing a criminal law purpose; coupled with (2) a prohibition; and (3) a penalty. At the stage of the listing order, the second and third requirements were not engaged because there were no such consequences for any person.
What Comes Next
Subject to whether the FCA judgment on the listing of PMI in CEPA is appealed to the Supreme Court of Canada, the rubber will otherwise meet the road when the first regulation relying on the PMI listing, Single-use Plastics Prohibition Regulations, SOR/2022-138, is interpreted by the courts, expected in the coming months. The federal government has already been sued by industry arguing that the regulation is unreasonable and / or unconstitutional. With the release of the FCA judgment, it should not be long before we have a more definitive answer to the future of the federal government’s attempt to regulate plastic pollution.
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