February 2, 2026 14:30

The saga that began in 2021 over the listing of plastic manufactured items as toxic substances under the Canadian Environmental Protection Act (CEPA) continues.

Section 64 of the Canadian Environmental Protection Act defines as “toxic” substances that, in fact or potentially, harm the environment or biological diversity. This provision allows the Governor in Council (GIC) to identify and add toxic substances to Schedule 1 of the Act. Once listed, they may be regulated under section 93 of the Act.

Following approval of the measure, the GIC issued an order adding plastic manufactured items to the Schedule. At that point, associations representing the plastics industry, together with two provincial Attorneys General, challenged the GIC’s order before the Federal Court, as well as the Minister’s decision not to establish a board of review.

In a decision issued in November 2023, the Federal Court found the GIC order to be unreasonable and unconstitutional, on the grounds that it exceeded the federal criminal law power. The Court also ruled that it was unreasonable for the Minister to reject requests to establish a board of review. As a result, the Federal Court quashed the GIC order.

In recent days, the Federal Court of Appeal overturned that decision, holding that the Governor in Council acted reasonably in classifying plastic products as a “toxic substance” under the Canadian Environmental Protection Act, 1999 (CEPA), and setting aside the first-instance judgment.

According to the Court of Appeal, CEPA does not require scientific certainty, only that a substance may enter the environment and cause harm. The assessment concerns the potential for harm, not proof that every individual plastic item is harmful in every circumstance.
The judges also emphasised the distinction between “listing” and “regulation,” noting that listing plastics does not automatically entail bans or penalties, but simply enables the government to consider future measures.

The argument that “toxic” refers only to chemical poison was also rejected. Harm may include choking, strangulation, habitat destruction or ingestion. The issue addressed is plastic pollution as a physical phenomenon, rather than the chemical composition of plastics.

For more information: Federal Court of Appeal judgment

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