Lawyer hopeful decision will lead to more independent scientific oversight of pesticide use

In a decision clarifying the constraints on the Pest Management Regulatory Agency’s (PMRA) discretion to dismiss an objection to a pesticide registration, the Federal Court of Appeal has sided with a number of environmental groups which had challenged an authorization for a method of glyphosate use.

Safe Food Matters Inc. v. Canada (Attorney General) was the first time the Federal Court of Appeal had reviewed a PMRA decision. The appellant, Safe Food Matters Inc., a non-profit focussed on public health and education on safe food-production, had filed a notice of objection to the pesticide-use authorization, but the PMRA had rebuffed their concerns. After the Federal Court dismissed its application for judicial review, Safe Food Matters appealed.

Applying the standard of review from Vavilov, the Federal Court of Appeal found the decision unreasonable. The PMRA had failed to interpret the relevant provisions in the Pest Control Products Act, as well as factors under the regulations it was mandated to consider.

“It's a strong piece of legislation – if it is followed,” says Laura Bowman, a staff lawyer for Ecojustice Canada. “Holding the PMRA very clearly and tightly to the legislative intention of the Pest Control Products Act is something that our clients and other non-governmental organizations have been trying to do through litigation for a number of years.”

Bowman acted for the intervenors, the David Suzuki Foundation, Environmental Defence Canada and Friends of the Earth, which had also filed notice of objections to this particular glyphosate-use authorization.

“We hope that because of this decision that we may see more independent panel reviews,” she says. “Or that at least the PMRA will take more seriously, this idea of the review panel assisting the PMRA to transparently justify or explain its decisions, even if they aren’t ultimately reversed, which is another step in the process.”

“This is really about improving public access to independent scientific oversight of pesticides.”

The decision highlights the importance – for lawyers, lower courts and for the administrative decision-makers – to understand they cannot just focus on pro forma reasons, says Andrea Gonsalves, a Stockwoods LLP partner who acted for Safe Food Matters. They must demonstrate to the affected person or organization that the statutory scheme, constraints and arguments have been considered and grappled with, she says.

“It demonstrates, really, the heightened responsibility that administrative decision-makers have to justify their reasons, in the wake of the Vavilov decision.”

The court also laid out some guidance for the PMRA on how to proceed with its reconsideration of the matter and what, under the law, the court will require it to show in its decision-making, says Gonsalves.

“And to me, that's pretty remarkable,” she says. “I interpret it a bit as a court recognizing that we're in a period of change still, brought by Vavilov, from the extreme deference before, to an area now where courts are going to scrutinize administrative decisions, or the reasons for them, more carefully.”

“I welcome that, and I hope that agencies welcome that sort of help from a court.”

The 2002 Pest Control Products Act revamped pesticide regulation and created a comprehensive regulatory scheme for pesticide registration. Glyphosate, the pest-control product and active ingredient in Roundup, has been registered for use in Canada since 1976. The PMRA expanded its approval for use as a pre-harvest drying agent on a variety of crops, including chickpeas, in 2005. A few years later, the PMRA re-evaluated whether it should remain registered, resulting in a “proposed re-evaluation decision” in 2015.

Safe Food Matters participated in the public consultation process and submitted comments in response to the proposed re-evaluation decision. But the PMRA did not agree with the group’s input, and in 2017, officially permitted the continued registration. Subsection 35(1) of the Pest Control Products Act provides the right for any person to object to a re-evaluation decision with reasons. Safe Food Matters raised nine objections, based on its “scientifically founded doubt” about the evaluations’ validity. The PMRA chose not to appoint a review panel, its statutory discretion under subsection 35(3), and dismissed Safe Food Matters’ objections in written reasons on Jan. 11, 2019.

Review panels are the only process under the Act through which independent scientists review PMRA evaluations in a public forum, says Bowman.

“A lot of the PMRA evaluations are very opaque,” she says. “They produce public-facing documents summarizing their conclusions, but the actual trade-offs and weighing of evidence… are not always available to the public and are frequently not included in those reports.”

Safe Food Matters sought judicial review at the Federal Court, but its application was dismissed. Then, in a decision released Feb. 2, Federal Court of Appeal Justices David Stratas, Marianne Rivoalen and Anne Mactavish allowed the appeal, quashed the PMRA decision and sent the matter back to the agency for reconsideration.

The court’s job was to evaluate whether the Federal Court had chosen the appropriate standard of review and applied it properly. The Federal Court had ruled – and all parties agreed on appeal – this standard was reasonableness, as established by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov. As long as its legislative and regulatory interpretation were reasonable and its reasons “justifiable, clear and intelligible,” the court was owed deference, said Justice Rivoalen, who wrote for the panel.

The Federal Court had decided that the term in Safe Food Matters’ notice of objection (NOO), “scientifically founded doubt,” required demonstration. Safe Food Matters needed to contradict or raise a reasonable doubt about the PMRA’s conclusions in at least one controlled peer-reviewed study in a reputable journal. The court determined in its own analysis the NOO had raised no scientifically founded doubt and found the PMRA decision reasonable.

The Federal Court’s ruling on the peer-reviewed-study requirement was troubling to the intervenors, says Bowman. There is a 60-day objection period and the process for accessing the PMRA’s existing evaluations would take “many months.” Seeing these evaluations was necessary to determine whether a particular study was relevant and had not already been considered by the PMRA. And a new peer-reviewed study cannot be conducted in 60 days, she says.

“Without very good access to information that was essentially an impossible standard to meet.”

A spokesperson from Health Canada says the ministry is currently reviewing the Federal Court of Appeal decision.

“When used according to the label instructions, products containing glyphosate are not a risk to human health or the environment, including dietary exposure to glyphosate,” the spokesperson says.

“Health Canada’s primary objective in regulating pesticides is to help protect the health of Canadians and the environment. All pesticides must undergo a rigorous science-based review before being approved for sale in Canada.”