OVERVIEW
1.
This case is about a risk assessment of genetically engineered salmon conducted
without public input or notice. The Applicants allege it was conducted without adhering
to mandatory public notice requirements that obligate the Minister of the Environment
to inform the public when risk assessment information requirements are waived. As a
result of this assessment, the Minister has purported to permit this genetically
engineered organism to be manufactured and used in ways and at locations not
contemplated in the risk assessment.
2.
New animate products of biotechnology must be evaluated pursuant to the
Canadian Environmental Protection Act, 1999 (“CEPA”) before their manufacture,
import or use can lawfully proceed in Canada. Part 6 of CEPA sets out the specific
framework for the toxicity assessment of biotechnology products. An organism is toxic
if it is entering or may enter the environment in a quantity or concentration or under
conditions that, inter alia, have or may have an immediate or long-term harmful effect
on the environment or its biological diversity.
Canadian Environmental Protection Act, 1999, SC 1999, c 33, ss. 64, 104-115 [“CEPA”]
3.
The living organism at issue in this case is genetically engineered Atlantic
salmon (Salmo salar) containing a single copy of the opAFP-GHc2 transgene at the
EO-1α locus (known as “AquAdvantage salmon” and hereinafter referred to as
“AAS”). The position of the Applicants, Living Oceans Society (“LOS”) and Ecology
Action Centre (“EAC”), is that: i) the Minister of the Environment failed to comply
with the mandatory requirements of CEPA when it published in the Canada Gazette on
November 23, 2013 a Significant New Activity Notice (“SNAc Notice”) in respect of
AAS; and ii) the Minister of the Environment and Minister of Health (“the Ministers”)
failed to obtain and assess legally required information for their s. 108 toxicity
assessment, which was intended to determine whether AAS is toxic or capable of
becoming toxic.
PART I – STATEMENT OF FACTS
A. The Parties
4.
EAC is a registered non-profit society incorporated in Nova Scotia. Established
in 1971, the EAC is one of Nova Scotia’s oldest and largest environmental
organizations. LOS is a registered non-profit society incorporated in the province of
British Columbia in 1998. It is a research and public education organization committed
to conserving marine biological diversity.
Applicants’ Record [“AR”], Vol 2, Tab B: Affidavit of Mark Butler, paras 711; Exhibit 2 [“Butler Affidavit”]; AR, Vol 3, Tab C: Affidavit of Karen
Wristen, paras 4-5; Exhibit A [“Wristen Affidavit”]
5.
Both Applicants are committed to the public interest in marine environment
protection, and are motivated to bring the within case to ensure CEPA compliance
given the risks of AAS to wild salmon populations and their ecosystems. The
Department of Fisheries and Oceans’ (“DFO”) risk assessment characterized the
environmental hazard of AAS as being “high with reasonable uncertainty”. Although
AAS are engineered to be “triploid”, or sterile, there is up to a 5% chance of failure in
the sterilization process and the potential for reproduction in the wild.
AR, Vol 2, Tab B: Butler Affidavit, paras 11-36; AR, Vol 3, Tab C: Wristen Affidavit,
paras 5-17; AR, Vol 2, Tab B: Butler Affidavit, paras 83-84; Exhibit 11
6. The government Respondents, the Ministers, are jointly responsible, under s.108 of
CEPA, for assessing required information in respect of a living organism in order to
determine whether it is toxic or capable of becoming toxic. As set out below, the
Minister of the Environment has additional powers and duties under Part 6 of CEPA
with respect to (a) waiving information requirements for toxicity assessments
(ss.106(8)-(9)), and (b) publication of notice indicating that living organisms cannot be
2
used for significant new activities without further assessment (ss.106(4) and 110).
CEPA, ss. 106(4), (8), (9), 108, 110
7.
The Respondent AquaBounty Canada Inc. (“AquaBounty”) is a biotechnology
company operating an aquaculture facility in Prince Edward Island (“PEI”) where AAS
have been used as research and development organisms. Pursuant to the decisions at
issue in this consolidated application, AquaBounty (and possibly others) will be able
expand beyond this very limited operation into commercial manufacture and use.
AR, Vol 2, Tab B: Butler Affidavit, Exhibits 4, 11
B. AquAdvantage Salmon
8.
AAS is a genetically engineered variety of salmon purported to grow to market
size faster than either wild or farmed salmon. AquaBounty has stated it intends to
commercially produce and use AAS eggs at its facility in PEI for export and grow-out
at a facility in Panama, and for subsequent export to the United States for consumption
as a food product, pending the necessary approvals.
AR, Vol 2, Tab B: Butler Affidavit, para 79; Exhibit 11
9.
Until the SNAc Notice was published, it was not a matter of public record that
AquaBounty’s notification regarding an intention to manufacture AAS in Canada had
been submitted under s. 106(1) to the respondent Ministers or that an assessment of
AAS under s.108 of CEPA (a “s. 108 toxicity assessment”) had commenced. This
secrecy persisted despite the efforts of stakeholders to determine the status of any
CEPA assessments of AAS that may have been taking place.
AR, Vol 2, Tab B: Butler Affidavit, paras 41-43, 73; AR, Vol 3, Tab C: Wristen
Affidavit, para 18
10.
For instance, on September 19, 2013, the Canadian Biotechnology Action
Network (“CBAN”), a project with which the Applicants collaborate to promote
democratic decision-making on science and technology issues – and in which the
Applicant EAC is a member – submitted an Environmental Petition to the
3
Commissioner of the Environment and Sustainable Development. This Petition sought
to confirm whether permission had been requested by AquaBounty to commercially
produce its AAS eggs, and/or to grow out AAS in Canada. No response was received
until January 2014 – after the publication of the SNAc Notice on November 23, 2013.
AR, Vol 2, Tab B: Butler Affidavit, paras 44-46; Exhibits 7-9
11.
CBAN also sent a letter to the Minister of the Environment dated November
14, 2013 asking the following question: “Is Environment Canada currently assessing a
request
to
approve
the
genetically
engineered…Atlantic
salmon
called
“AquAdvantage”, either for commercial production of fish eggs and/or for growing out
of the fish?” This letter also states, “Both Environment Canada and the company
AquaBounty have refused to answer this question”. No response to this letter was
received prior to the publication of the SNAc Notice.
AR, Vol 2, Tab B: Butler Affidavit, para 47; Exhibit 10
C. The SNAc Notice
12.
On November 23, 2013, the Minister of the Environment published in the
Canada Gazette a SNAc Notice in respect of AAS under s. 110 of CEPA. In doing so,
the Minister of the Environment indicated that s. 106(4) applies to specified new
activities involving AAS. This Notice also disclosed that the respondent Ministers had
already conducted a s. 108 toxicity assessment of AAS.
AR, Vol 2, Tab B: Butler Affidavit, para 37; Exhibit 4
13.
The SNAc Notice sets out by exclusion those activities related to AAS that
would be permitted without further information being provided for assessment by the
respondent Ministers. The effect of the SNAc Notice is that any person (not just
AquaBounty) may use AAS without notifying the Minister of the Environment unless
that use falls under a significant new activity itemized in the SNAc Notice. Permitted
activities are indicated in paragraph 1 of the Annex to the SNAc Notice, and include:
use of non-sterile AAS organisms for production of all female, triploid organisms,
4
grow-out of all female, triploid organisms in contained facilities, and export of all
female, triploid organisms at the eyed-egg stage.
AR, Vol 2, Tab B: Butler Affidavit, para 38; Exhibit 4
14.
In November of 2013, the DFO published a document titled Summary of the
environmental and indirect human health risk assessment of AquAdvantage® Salmon
(the “DFO Summary Risk Assessment”). The purpose of the DFO Summary Risk
Assessment was to contribute to the Ministers’ s. 108 toxicity assessment. However,
neither of the Ministers conducted the DFO Summary Risk Assessment.
AR, Vol 2, Tab B: Butler Affidavit, paras 48, 95-96; Exhibits 11, 36-37
15.
As indicated in the DFO Summary Risk Assessment, AquaBounty submitted
information set out under the New Substances Notification Regulations (Organisms)
(“NSN Regulations”) in respect of AAS to a delegate of the Minister of the
Environment for a s. 108 toxicity assessment on April 30, 2013.
AR, Vol 2, Tab B: Butler Affidavit, Exhibit 11; New Substances Notification Regulations
(Organisms), SOR/2005-248, s. 4, Sch 5
D. Waivers:
16.
As noted above, the Minister of the Environment has authority under s. 106(8)
of CEPA to waive information required for a s. 108 toxicity assessment. Pursuant to s.
106(9), the Minister must publish in the Canada Gazette a notice of any such waiver.
CEPA ss.106(8)-(9)
17.
Based on the DFO Summary Risk Assessment, the Applicants reasonably
believed that a waiver of the information requirement under paragraph 5(a) of Schedule
5 of the NSN Regulations respecting the data from a test conducted to determine the
pathogenicity, toxicity or invasiveness of AAS had been requested but could not
confirm that one had been issued.
AR, Vol 2, Tab B: Butler Affidavit, Exhibit 11
5
18.
As of the commencement date of the Applications, the Minister of the
Environment had not published Notice of a waiver for any prescribed information or
data required under Schedule 5 of the NSN Regulations in relation to AAS for the s.
108 toxicity assessment.
AR, Vol 2, Tab B: Butler Affidavit, paras 49-53; Exhibits 12-14
19.
The Applicants wrote the respondent Ministers on December 5, 2013 to inquire
as to whether the waiver had in fact been granted. The Applicants did not receive
confirmation from the Minister of Environment prior to the December 23, 2014
deadline for issuing the Notices of Application, and only on January 24, 2014 did they
discover through correspondence with counsel for the Ministers that a waiver was
purportedly granted in August 2013 despite the fact that Notice was not yet published.
AR, Vol 2, Tab B: Butler Affidavit, paras 50-52; Exhibits 12-14
E. The Applications for Judicial Review
20.
This consolidated application for judicial review is in respect of two
unlawful decisions made by the Ministers and their abrogation of duties under
sections 2, 106, 108, and 110 of the CEPA: i) the Ministers’ failure to obtain and
assess legally required information for their s. 108 toxicity assessment; and ii) the
Minister of the Environment’s unlawful publication of SNAc Notice No. 16528 in
the Canada Gazette.
AR, Vol 1, Tab A: Notices of Application dated December 23, 2013
F. Publication of the Waiver Notices
21.
On February 8, 2014, the Department of the Environment published a notice in
the Canada Gazette titled Waiver of information requirements for substances and
living organisms (ss. 81(9) and 106(9) of the Canadian Environmental Protection Act,
1999) (“Waiver Notice”). The Waiver Notice contains an Annex, which indicates that
6
a waiver “is” granted to AquaBounty Technologies Inc. in relation to “data from a test
conducted to determine its pathogenicity, toxicity or invasiveness”.
AR, Vol 2, Tab B: Butler Affidavit, para 55; Exhibit 16
22.
In this same edition of the Canada Gazette, another notice was published also
titled Waiver of information requirements for substances and living organisms
(subsections 81(9) and 106(9) of the Canadian Environmental Protection Act, 1999)
(“the Second Waiver Notice”). The Second Waiver Notice also included an Annex
listing persons to whom a waiver “is” granted and the information in relation to which
a waiver is granted. The two Notices list over 600 waivers of information requirements
going back approximately six years. Prior to the publication of these Notices, it appears
that no notices of waivers granted under ss. 106(8) or 81(8) (the equivalent provision
for chemical substances) had been published since March 29, 2008.
AR, Vol 2, Tab B: Butler Affidavit, paras 63-64; Exhibit 22
23.
On February 24, 2014, the respondent Ministers served a responding motion
record in relation to the Applicants’ motion seeking consolidation of the two
Applications. At paragraph 25 of the respondent Ministers’ written representations,
they indicate that the notice of a waiver of information requirements granted to
AquaBounty contained in the Waiver Notice pertains to AAS. As the Waiver Notice
does not list the organism to which waivers relate, this was the first confirmation that
the Waiver Notice pertained to AAS.
AR, Vol 2, Tab B: Butler Affidavit, para 57; Exhibit 18
PART II – STATEMENT OF ISSUES
24.
The Applicants submit that there are eight separate but interrelated questions at
issue:
1: What is the standard of review?
7
2: Did the Ministers err in purporting to conclude a s. 108 assessment of AAS
by failing to collect and assess information regarding potential uses of the
organism and potential locations of introduction?
3: Did the Ministers unlawfully conclude a s. 108 assessment of AAS prior to
granting a waiver of information requirements for toxicity and invasiveness
data and publishing notice of such a waiver in the Gazette?
4: Did the Minister err in publishing the SNAc Notice prior to the expiry of the
assessment period?
5: Did the Minister, through the publication of the SNAc Notice, unlawfully
permit uses of AAS contrary to s. 106(10)?
6: Did the Minister, through the publication of the SNAc Notice, unreasonably
permit uses of AAS that were not considered as part of the s. 108 assessment?
7: Do the Applicants have standing to bring this application?
8: What is the appropriate remedy?
PART III – STATEMENT OF SUBMISSIONS
A. CEPA Regulation of Biotechnology
1. The Purpose of CEPA as a Whole
25.
CEPA is the principal law that imposes duties on the government to improve
and protect Canada’s environment. One can discern the overall purpose of CEPA from
the Preamble and the Declaration contained in the Act. The Declaration states:
It is hereby declared that the protection of the environment is essential to the
well-being of Canadians and that the primary purpose of this Act is to
contribute to sustainable development through pollution prevention.
[emphasis added]
Great Lakes United v. Canada (Minister of the Environment), 2009 FC 408 para
35 [“Great Lakes United”]
8
26.
The extensive Preamble to CEPA incorporates: i) a commitment to pollution
prevention nationally; ii) a commitment to implement the precautionary principle; iii)
recognition of the environmental risks posed by toxic substances and that once
introduced into the environment, toxic substances cannot always be contained within
geographic boundaries; and iv) recognition of the need to protect the environment and
biological diversity by ensuring the safe use of biotechnology. These preambulatory
commitments are given legislative rigour throughout the various parts of CEPA.
27.
Another core feature of CEPA is an assurance that the public has a role in
protecting the environment from toxic substances. Rights of participation and notice
are weaved throughout CEPA as a result. CEPA was re-enacted in 1999 to provide
greater protection for the environment generally and to provide greater information to
Canadians on pollution specifically. During Parliamentary debates in 1998 prior to the
re-enactment of CEPA in 1999, the Honourable Christine Stewart, then Minister of the
Environment, outlined the intent of amendments as follows:
Greater public participation is key to protecting the environment. Canadians
want to be part of the solution. They want more power to influence
environmental decisions and stronger measures to ensure a legacy of clean air
and clean water…
One of the ways that we will do this is through the environmental registry.
The registry will provide comprehensive information on regulations and
decisions made under the legislation.
Canada. Parliament. House of Commons. Debates, 36 th Parl., 1st sess., vol. 135 no. 093
(April 27, 1998) at pp. 6124-6125
28.
In order to implement Parliament’s intent under CEPA, section 2, in part,
mandates that government:
(a) exercise its powers in a manner that protects the environment and human
health [and] applies the precautionary principle;
(e) encourage the participation of the people of Canada in the making of
decisions that affect the environment;
9
(f) facilitate the protection of the environment by the people of Canada;
(j.1) protect the environment, including its biological diversity, and human
health, by ensuring the safe and effective use of biotechnology;
(n) endeavour to exercise its powers to require the provision of information in
a coordinated manner; and
(o) apply and enforce this Act in a fair, predictable and consistent manner.
CEPA s. 2(1); Great Lakes United, supra para 224
29.
Parliament has recognized and affirmed the fundamental value of
environmental protection and public participation in environmental decision-making
by enacting legislation in the form of CEPA that imposes duties on government to
protect Canada’s environment. The Minister of Environment’s obligations under
CEPA must be interpreted in a manner consistent with his duty to:
…make decisions in a context in which the need for the long-term
management of environmental problems plays a prominent role, and in which
he must ensure that the fundamental legislative policy on which the
interpretation and application of environment quality legislation are based
is implemented.
Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58 para 34; Great
Lakes United, supra paras 32, 34
30.
Finally, it is worth noting that the Department of the Environment Act requires
that in exercising his powers, the Minister of the Environment must “initiate,
recommend and undertake programs…of the Government of Canada that are
designed…to provide Canadians environmental information in the public interest”. The
Minister’s role in evaluating new products of biotechnology under CEPA must be
interpreted consistently with his duty to provide information to Canadians.
Department of the Environment Act, RSC 1985 c E-10 s. 5; Great Lakes United, supra
paras 19, 34
2. Part 6 of CEPA and Products of Biotechnology
31.
Under CEPA, the Minister of Environment maintains a list of substances
manufactured, imported into or used in Canada, known as the Domestic Substances
10
List. Pursuant to s. 106(1) of CEPA, a person shall not manufacture or import a living
organism that is not on the Domestic Substances List, unless the person has provided
the prescribed information to the Minister of the Environment and the prescribed period
for assessing that information under s. 108 has expired
CEPA ss. 66, 105 and 106(1)
32.
Schedule 5 of the NSN Regulations lists the prescribed information that must
be provided in respect of organisms such as AAS. A person must provide this
information to the Minister of the Environment at least 120 days prior to the
manufacture or import of the organism. The Ministers must jointly, within the
prescribed assessment period, assess information provided under CEPA and the NSN
Regulations, or that is otherwise available to them in respect of a living organism, to
determine whether it is toxic or capable of becoming toxic.
NSN Regulations s. 5(d) and Schedule 5; CEPA ss. 106(1), 108(1), 109(1)
33.
AAS was not specified on the Domestic Substances List and as such, pursuant
to s. 106(1), prescribed information was required to be submitted to the Minister for
assessment prior to the manufacture or import of AAS in Canada. This prescribed
information included information on the intended and potential uses and the potential
locations of introduction and “the data from a test conducted to determine its
pathogenicity, toxicity or invasiveness.”
AR, Vol 2, Tab B: Butler Affidavit, Exhibit 4; NSN Regulations (Organisms), Schedule 5,
paras. 3(b) and 5(a)
34.
Pursuant to s.106(8)(b), the Minister of Environment can grant a waiver of
information requirements if, inter alia:
(b) a living organism is to be used for a prescribed purpose or manufactured at
a location where, in the opinion of the Ministers, the person requesting the
waiver is able to contain the living organism so as to satisfactorily protect the
environment and human health…
11
When a waiver of information requirements is granted, s. 106(9) requires that Notice
be posted in the Canada Gazette.
CEPA, s. 106(8)-(9)
B. The Standard of Review is Correctness
35.
The Supreme Court of Canada in Dunsmuir established that the first step in
determining the appropriate standard for review of an administrative tribunal decision
is for the reviewing court to ascertain whether the jurisprudence has already determined
the degree of deference to be accorded to the decision-maker in question. Although
there is no jurisprudence under ss.106(8) and (9), 108, or 110 of CEPA, post-Dunsmuir
case law that applies the standard of review analysis does establish that the discharge
of mandatory Ministerial obligations under CEPA is reviewable on standard of
correctness. The Applicants submit that this case law is determinative of the standard
of review in this case.
Pfizer Canada Inc. v. Canada (Minister of Health) 2014 FC 1243 paras 99-101
36.
In Great Lakes United, the Minister of Environment misinterpreted sections 46
and 48 of CEPA, which state, inter alia, that “[t]he Minister shall establish a national
inventory of releases of pollutants.” The Court confirmed that “[a] failure to comply
with a statutory requirement is an error of law subject to a standard of correctness.”
Compliance with CEPA raises a serious and justiciable question of law.
Great Lakes United, supra paras 237-240; CEPA ss. 46 and 48
37.
Failure to comply with the mandatory requirement to publish Notice of a waiver
as mandated by s. 106(9) of CEPA is an error of law reviewable on a correctness
standard. Failure to comply with the mandatory requirement that the Ministers “shall”
assess the prescribed information set out in Schedule 5 of the NSN Regulations is also
an error of law reviewable on a correctness standard. This is consistent with the recent
Federal Court of Appeal decision in Kandola, where the Court held that with respect
12
to pure questions of “statutory construction embodying no discretionary element” the
Minister “cannot claim to have any expertise over and above” that of the Court.
Great Lakes United paras 237-240; Canada (Citizenship and Immigration) v.
Kandola, 2014 FCA 85 paras 42-43; Save Halkett Bay Marine Park Society v.
Minister of the Environment et al., 2015 FC 302 at paras 53-54
38.
As with Kandola and Great Lakes United, there is no discretionary element to
the Minister of the Environment’s obligation under s. 106(9) which states that the
Minister “shall publish in the Canada Gazette” a notice of any waiver granted under s.
106(8). Similarly, there is no discretionary element to the requirement that, absent any
waiver of information requirements, the Ministers “shall” assess all information
prescribed in Schedule 5 of the NSN Regulations.
39.
In the event that this Honourable Court finds that existing jurisprudence does
not resolve the question of the appropriate standard of review, the second step in the
Dunsmuir analysis is to conduct a contextual examination of factors including: (i)
presence or absence of a privative clause, (ii) the overall purpose of the legislation
granting powers to the decision-makers, (iii) the nature of the question at issue, and (iv)
the expertise of the decision-maker. Although Ministerial decisions are increasingly
presumed reviewable on a standard of reasonableness, that presumption is “quickly
rebutted” where, as here, there is no privative clause and the impugned decision is “a
pure question of statutory construction embodying no discretionary element.”
Dunsmuir v. New Brunswick, 2008 SCC 9 at paras 51-56 [“Dunsmuir”]; Pfizer,
supra at paras 78-104; Kandola paras 35-43, 86-87 (Mainville J. in dissent)
40.
The Ministers have no expertise in statutory construction over and above that
of the Court. Indeed, the breadth of topics covered under CEPA and its 56 associated
regulations does not favour deference in that the Ministers are not specifically
knowledgeable with respect to the broad range of technical and environmental matters
covered. Although the Minister of the Environment has some familiarity with CEPA,
the important public interest objectives of which are described above, it is most
13
certainly not the home statute of the Minister of Health, nor is it closely connected to
the Minister of Health’s main functions.
Takeda Canada Inc. v. Canada (Health), 2013 FCA 13 paras 28-29; Canada
(Minister of the Environment) v. Custom Environmental Services Ltd., 2008 FC
615 paras 17, 22; Save Halkett Bay Marine Park Society, supra para 54
41.
A primary legal question in this case – i.e. “Did the Ministers collect all legally
required information or issue a legally valid waiver of information requirements before
conducting their s. 108 toxicity assessment?” – does not involve the application of
policy or discretion by the Ministers, but asks whether the Ministers correctly
interpreted their mandatory duties under CEPA. The factual context of the risk
assessment and scientific basis for granting the waiver are not at issue. The question is
one of pure law. Accordingly, the Applicants submit that the Ministers’ non-compliance
with CEPA in this case is reviewable on a standard of correctness. The Ministers’ failure
to conduct a lawful s. 108 toxicity assessment due to non-compliance with the mandatory
and non-discretionary wording of s. 106(9) left the Minister of Environment without
jurisdiction to issue a SNAc Notice under s. 110.
Custom Environmental Services, supra para 25
42.
In the alternative, if this Honourable Court finds that the standard of review is
reasonableness, then these decisions fall at the less deferential end of the
reasonableness spectrum because they are questions of law, and not science- or policybased. The mandatory language used in CEPA, as described above, means that there
was only one way to interpret the Minister’s duties so the Ministers’ interpretation of
those duties does not fall within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.”
Attaran v. Canada (Attorney General), 2015 FCA 37 at paras 47-50, per Stratas J.A.
concurring; McLean v. British Columbia (Securities Commission), 2013 SCC 67 para 38
43.
Similarly, although the Minister clearly has discretion as to whether or not a
SNAc Notice is necessary, the Minister does not have the discretion to use a SNAc
14
Notice to approve uses that were not subject to any toxicity assessment or to allow AAS
to be used at locations other than those proposed by AquaBounty. Toxicity and
invasiveness information requirements under paragraph 5(a) of Schedule 5 of the NSN
Regulations were purportedly waived under s. 106(8)(b) solely on the basis of
Aquabounty’s intended use of AAS only at its existing facilities in PEI and Panama.
Grow out in Canada was simply not included in the s. 108 toxicity assessment and thus
cannot lawfully be approved by the Minister.
44.
Dunsmuir makes it necessary to consider whether the Ministers’ decision(s) fit
“comfortably” within the principles of justification, transparency and intelligibility.
There were no articulated reasons showing justification, transparency and
intelligibility. In fact, attempts to determine whether a toxicity assessment was being
undertaken were unsuccessful and the only notice requirement that would alert the
public that an assessment was occurring – publication in the Gazette of a waiver notice
– was not met. This overwhelming secrecy – and the resulting lack of justification,
transparency, and intelligibility – as well as the clear non-compliance with CEPA
requirements render this decision unreasonable.
Dunsmuir, at para 47; AR, Vol 2, Tab B: Butler Affidavit, paras 44-47; Exhibits 7-10
C. The s. 108 toxicity assessment did not include information regarding
potential uses
45.
Because s. 108(1) states that the Ministers shall assess information received
under s. 106(1), some consideration of each prescribed information requirement is
mandatory. As noted above, this includes information about intended and potential uses
and the potential locations of introduction of AAS. No waiver of the requirement to
15
provide this information was requested or granted.
Interpretation Act, RSC 1985 c I-21 s.11; Friends of the West Country Assn. v. Canada
(Minister of Fisheries and Oceans), [2000] 2 FCR 263 paras 25 and 26; NSN Regulations
Schedule 5 para 3(b)
46.
The Ministers do not have the authority to exclude prescribed information from
an assessment except where a waiver of information requirements is granted pursuant
to s. 106(8). Put differently, the Ministers cannot receive prescribed information in
relation to an organism and then decline to assess that information by scoping the
assessment parameters.
CEPA s. 106(8)
47.
Potential uses and locations of introductions are relevant to the determination
of whether an organism is toxic or “capable of becoming toxic”. Such information is
appropriately required for the s. 108 toxicity assessment. Assessment of potential uses
and locations of introduction, and not just intended uses, furthers CEPA’s goals of
pollution prevention and implementation of the precautionary principle as once a
substance or organism is introduced into Canada, its use may expand beyond the
original intended use scenario.
48.
The evidentiary record demonstrates that the Ministers did not assess
information about potential uses or locations of introduction of AAS as required by
paragraph 3(b) of Schedule 5 of the NSN Regulations but rather only assessed the
intended use scenario defined by AquaBounty. The DFO Risk Assessment only
assesses the toxicity of AAS in relation to AquaBounty’s intended use scenario at
identified facilities. In that regard, the DFO Summary Risk Assessment states: “The
risk assessment is conducted on AquaBounty’s proposed use scenario to grow AAS
under the containment conditions specified in the regulatory submission for the PEI
and Panamanian facilities”.
AR, Vol 2, Tab B: Butler Affidavit paras 80-81; Exhibit 11
16
49.
The DFO Risk Assessment clearly states that uses other than the proposed use
scenario could result in a different risk assessment conclusion. For example, the
Assessment states that:
Changes to the proposed use scenario or to the proposed containment measures
may result in the entry or release of AAS into the environment in a quantity,
manner or circumstances significantly different to the potential exposure of
AAS assessed in the current risk assessment. Given the potential hazard of AAS
to the environment and associated uncertainty, including potential invasiveness,
any significant new activity may result in an altered exposure and consequently
in a different risk assessment conclusion than provided in this report.
AR, Vol 2, Tab B: Butler Affidavit para 84; Exhibit 11
50.
The Certified Tribunal Record demonstrates that the DFO Risk Assessment
document was provided to staff at Environment Canada and Health Canada. However,
no further assessment of AAS was conducted by the Ministers or their delegates beyond
the review of the DFO Risk Assessment. Because there was no information before the
Ministers on potential uses or locations of introduction beyond the use scenario
identified by AquaBounty, they could not have fulfilled their statutory duty to give
consideration to such information.
AR, Vol 2, Tab B: Butler Affidavit paras 86-88
51.
Potential uses and locations of introduction are particularly relevant here as the
SNAc Notice would allow uses beyond AquaBounty’s stated intended use scenario,
including grow-out of AAS in Canada for purposes other than egg production, and use
at locations other than AquaBounty’s PEI facility.
AR, Vol 2, Tab B: Butler Affidavit, Exhibit 4
52.
The Applicants submit that the Ministers’ failure to assess potential uses and
locations of introduction constitutes a violation of their mandatory duties to conduct a
lawful s. 108 toxicity assessment, thereby depriving the Minister of Environment of
jurisdiction to issue a SNAc Notice under s. 110.
17
D. Waiver of Information Requirements Were Not Met
53.
Pursuant to paragraph 5(a) of Schedule 5 of the NSN Regulations, AquaBounty
was required to provide the Minister of the Environment, in respect of the ecological
effects of AAS, data from a test conducted to determine its pathogenicity, toxicity or
invasiveness. In other words, information regarding what could happen if this fish
escapes into the wild.
NSN Regulations Schedule 5 para 5(a)
54.
However, AquaBounty requested that it be granted a waiver of the requirement
to provide this prescribed information on the basis that AAS organisms are to be
manufactured at a location where they can be contained “satisfactorily” to protect the
environment and human health. As noted above, s. 106(8) of CEPA sets out the
circumstances in which the Minister of the Environment may waive specific
information for a s. 108 toxicity assessment. In this case, paragraph 5(a) information
requirements were waived based on the Minister’s belief that the organism would “be
used for a prescribed purpose or manufactured at a location where it can be contained
so as to protect the environment and human health.”
AR, Vol 2, Tab B: Butler Affidavit, para 77; Exhibits 11, 31
55.
Subsection 106(9) provides that the Minister of the Environment “shall
publish” a notice in the Canada Gazette of any waivers of information requirements
granted under s. 106(8). Parliament intentionally chose to use the mandatory “shall”
and not to use the permissive expression “may”.
CEPA s. 106(9); Interpretation Act, supra s. 11
56.
During clause-by-clause consideration of CEPA by the Standing Committee on
Environment and Sustainable Development, in response to calls for increased
opportunity for public input in respect of waivers of information requirements, the
Parliamentary Secretary to the Minister of the Environment stated that the provision
18
which became s. 106(9) would, as drafted, provide for both publication and
accountability:
…subclause 106(11) would in fact ensure that there is publication, that
information is available, and that ministers of the crown remain accountable to
the public through the House and other mechanisms. So to suggest that without
this paragraph somehow things are going to be done in obscurity is not accurate.
House of Commons Debates (Standing Committee) (March 16, 1999) at 10:40
57.
Parliament did not intend that the fact of waiving information requirements
could be obscured from the public by failing to publish legally required notice months
or years after a decision has been made. This would clearly frustrate Crown
accountability.
58.
A waiver of information requirements is legally granted when notice is
published in the Canada Gazette. This conclusion is drawn from an examination of the
words in s. 106(9), read in their entire context, in their grammatical and ordinary sense,
harmoniously with the scheme of the Act, the object of the Act, and the intention of
Parliament.
Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para 26
59.
The Minister must publish notice of a waiver in the Canada Gazette and the use
of the word “is” prior to “granted”, both in CEPA and in the Waiver Notice, confirms
that a waiver is granted upon publication of said notice. Neither s. 106(9) nor the
Waiver Notice use the past tense or words such as “was” or “has been” to suggest that
a waiver can be legally granted at some point prior to publication of notice.
60.
The purpose of the Canada Gazette is to provide official notice to Canadians
when publication of certain types of information is legally required. This enables the
public’s democratic participatory rights in relation to decision-making under CEPA.
Similarly, waiver notices under s. 106(9) and all other orders under CEPA are posted
19
on the CEPA Registry, the purpose of which is to provide access to current information
to facilitate public participation in decision-making under the Act.
Kennedy, Carole. “A Glance at the Canada Gazette: Past, Present and Future” Library
and Archives Canada, 2008, online: http://www.collectionscanada.gc.ca/canadagazette/035001-2000-e.html; Environment Canada website, online:
http://www.ec.gc.ca/lcpe-cepa/default.asp?lang=En&n=D44ED61E-1; Doelle, Meinhard.
Canadian Environmental Protection Act and Commentary (Markham, Ont.: LexisNexis
Canada Inc., 2005) pp 10-11 [“Doelle”]
61.
This interpretation is also consistent with the leading text on CEPA, which
characterizes the process by which biotechnology products are regulated under the Act
as requiring that notification and information gathering requirements are met before
the Ministers decide whether to place an organism on the Domestic Substances List.
Doelle, supra at p. 31
62.
In this instance, a waiver for invasiveness test data was not published until
February 8, 2014, after litigation had been commenced and despite the fact that
evidence indicates a decision to grant a waiver was made on August 19, 2013.
AR, Vol 2, Tab B: Butler Affidavit, paras 55, 75 and 76; Exhibits 16, 29 and 30
63.
Pursuant to s. 6(d) of the NSN Regulations, the assessment period for the s. 108
toxicity assessment of AAS is “120 days after receiving the information referred to in
Schedule 5”. If the Minister has yet to receive all of the information required by
Schedule 5, the assessment period cannot begin. Where a waiver has been requested,
the information requirement remains and the assessment period cannot begin until a
waiver is legally granted and all other prescribed information is provided.
NSN Regulations s. 6(d)
64.
Should this Honourable Court find that a waiver is lawful prior to publication
of notice in the Canada Gazette, the Applicants submit that nonetheless, the Minister
failed to provide the public with notice of the waiver of information regarding
invasiveness within a reasonable timeframe. Failure to act in accordance with a
20
statutory duty within a reasonable amount of time has been found to be an error subject
to judicial review. As Professor William Wade states, “a statutory duty must be
performed without reasonable delay and this may be enforced by mandamus”.
Great Lakes United, supra para 56; North Vancouver (District) v. Canada (National
Harbours Board), [1978] FCJ No. 619 paras 30, 39 (TD); Sir William Wade and
Christopher Forsyth, Administrative Law, 11th ed. (Oxford University Press, 2014) at
pp. 523-524
65.
The Minister does not have “unfettered” discretion in his decision-making
capacity, but must exercise his or her discretion so as to promote the policy and objects
of CEPA. Courts properly intervene where statutory authority is exercised in a manner
not consistent with the objects of the enabling statute which, in this case, include
environmental protection and public participation in environmental decision-making.
This is in keeping with the purpose of judicial review: constraining the use of
government authority within its proper bounds and ensuring consistency and
transparency in decision-making under CEPA.
Rubin v. Canada (Canada Mortgage and Housing Corp.) [1988] FCJ No. 610 at para 20
(CA) citing Padfield v. Minister of Agriculture, Fisheries & Food, [1968] AC 997 at p.
1030 (H.L., per Lord Reid; Multi-Malls Inc. v. Minister of Transportation and
Communications (1977), 14 O.R. (2d) 49 (CA); Great Lakes United, supra paras 39-40;
198-201; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 SCR 77 at para 128
66.
If this Honourable Court were to find that a waiver was legally granted on
August 19, 2013, prior to notice in the Canada Gazette, the 120 day assessment period
would have started on that date and concluded on December 17, 2013 prior to the date
the Minister ultimately published the Waiver Notice. At the conclusion of an
assessment period, where no action is taken under s. 109(1), the manufacture or import
of the new organism can proceed in Canada.
67.
As mentioned above, the notice of a waiver in relation to AAS was published
six months after the waiver was granted, and amongst approximately 600 other waiver
notices dating back over a period of six years. The form of the Waiver Notice and the
Second Waiver Notice makes it impossible to discern what substances or organisms
21
they relate to or how long they may have been present in Canada. The notices are
essentially a laundry list of past, undated decisions to grant waivers and are of no utility
in advancing goals of accountability or public participation.
68.
To paraphrase Justice Russell, at some point delay becomes stasis, which
clearly favours those to whom waivers of information are granted but are not made
public. “The Canadian public is the loser and, without such information being readily
accessible, cannot participate in the debate or gauge fully the environmental and health
concerns that arise from” the substance or product of biotechnology. Providing the
Minister of Environment with unfettered discretion to publish notice at any point in the
future renders that notice meaningless and immune from judicial scrutiny, contrary to
the presumption of legislative intent. Parliament surely did not intend to enact a
mandatory notice requirement but allow that notice to be posted years after waiver
decisions are made, such that they are effectively irrelevant.
Great Lakes United, supra para 145; Sullivan, Ruth. Sullivan on the Construction of
Statutes, 5th ed (Canada: LexisNexis Canada Inc., 2008) pp. 183-185.; AR Vol. 2, Tab B:
Butler Affidavit, para 63
69.
Although an overarching goal of CEPA is to facilitate public participation in
environmental protection, there are few specific mechanisms for public notification
under Part 6 of CEPA relating to biotechnology. As such, publication of waiver notices,
absent voluntary disclosure by the Ministers or a manufacturer or importer, is the only
way the initiation of an assessment period would come to the attention of members of
the public. In cases where a waiver of an information requirement has been granted,
interested parties may seek to challenge that decision by way of judicial review or
decide to provide information to the Ministers to consider as part of their s. 108 toxicity
assessment. As noted above, the Ministers are required to consider in their s. 108
toxicity assessment information “otherwise available” to them which could include, for
example, information brought to their attention by interested parties.
CEPA s. 108
22
70.
In conclusion, the Applicants do not dispute that the Minister has the discretion
to grant waivers of information requirements. However, where waivers are granted
(including in respect of paragraph 5(a) data) the public must be notified. It would be
inconsistent with the scheme and purpose of CEPA to find that a waiver can be legally
granted prior to publication of notice in the Canada Gazette. In the alternative, if this
Honourable Court finds that a waiver is lawful prior to notice being published, it would
nonetheless render the notice requirement meaningless if the Minister can simply defer
publication to some future unknown date when an assessment has already been
completed and the organism has already been introduced into Canada. In such a
scenario, interested persons would have missed the opportunity to use the information
presented in the notice to challenge decisions related to the waiver or assessment, or to
contribute information for consideration as part of the assessment process.
E. Expiry of the Assessment Period is a Statutory Prerequisite to a Valid SNAc
Notice
71.
The clear wording of s. 110(1) of CEPA indicates that the Minister of the
Environment may only publish a SNAc Notice within 90 days after the expiry of the
120 day assessment period under s. 108. As no waiver had been legally granted as of
November 23, 2013 in relation to information required under paragraph 5(a), for the
reasons outlined above, the assessment period had not lawfully commenced and
therefore could not have expired.
CEPA, s. 110(1).
72.
During clause-by-clause consideration of Bill C-32, the Committee of
Environment and Sustainable Development recommended an amendment to the
provision that became s. 110(1) of CEPA to specify that SNAc Notices would be
published after the expiry of the assessment period, instead of before as the Bill had
previously required. This amendment was adopted in the final version of Bill C-32,
23
which became CEPA. The Legislature intended that SNAc Notices would be published
only after the expiry of the s. 108 toxicity assessment period.
Canada, House of Commons, Fourth Report, (Standing Committee on Environment and
Sustainable Development), 1st Sess., 36th Parl., (25 March 1999) at clause 110.
F. The SNAc Notice Purports to Allow the Uses Contrary to s. 106(10)
73.
Subsection 106(10) imposes a limitation on the use of organisms for which a
waiver of information requirements has been granted on the basis of its containment as
follows:
Compliance with waiver
106(10) Where the Minister waives any of the requirements for information
under paragraph (8)(b), the person to whom the waiver is granted shall not use,
manufacture or import the living organism unless it is for the purpose
prescribed by regulations made under paragraph 114(1)(f) or at the location
specified in the request for the waiver, as the case may be. [emphasis added]
CEPA s. 106(10)
74.
The SNAc Notice permits uses without further notification or assessment in a
“contained facility”. The term “contained facility” is defined in paragraph 3 of the
Annex of the SNAc Notice. The definition specifies a set of criteria but does not specify
that a contained facility must be the location specified in the request for a waiver – i.e.
AquaBounty’s existing PEI facility.
AR, Vol 2, Tab B: Butler Affidavit, Exhibit 4
75.
The DFO Risk Assessment recommended that a significant new activity include
any uses in Canada at facilities other than the identified facility in PEI. A memorandum
in the Certified Tribunal Record however, demonstrates that staff at Environment
Canada and Health Canada did not agree with this approach, stating:
There is a variance between what Environment Canada (EC) and Health
Canada (HG) evaluators believe should be written in a draft SNAc and what
DFO has recommended in their science response. DFO's proposal has a
potential to create many SNANs (become transactional). DFO proposes that
24
the SNAc in part defines the activity based on the location where it takes
place, i.e. specific location of production at the current PEI facility... EC and
HG evaluators believe that, in line with previous SNAc notices, the existing
activity is not defined by its location but rather by the containment measures
put in place in Canada to prevent any release of the live fish into the Canadian
environment.
AR, Vol 2, Tab B: Butler Affidavit, paras 85, 89; Exhibits 11, 33
76.
Black’s Law Dictionary defines “location” as the “specific place or position of
a person or thing”, while Oxford Dictionaries defines it as a “particular place or
position”. Oxford Dictionaries provides the following definition of “specify”, “[With
object] Identify clearly and definitely; [With clause] State a fact or requirement clearly
and precisely”.
Black’s Law Dictionary, 10th ed, sub verbo “location”.
“Location”. Oxford Dictionaries. Oxford University Press.
http://www.oxforddictionaries.com/us/definition/american_english/location (accessed April
14, 2015); “Specify”. Oxford Dictionaries. Oxford University Press.
http://www.oxforddictionaries.com/definition/english/specify (accessed April 14, 2015).
77.
Read in its entire context, in the grammatical and ordinary sense, harmoniously
with the scheme of the Act, the object of the Act, and the intention of Parliament, it is
clear that s. 106(10) restricts use to the specific location identified in a waiver request
as opposed to unidentified locations meeting a set of criteria. The fact that “location”
is singular, not plural, and is preceded by the word “the” indicates that s. 106(10) refers
to a single, identified location.
78.
The evidence demonstrates that the decision to grant a waiver in relation to
AAS was made on the basis of its anticipated containment at AquaBounty’s PEI facility
and pursuant to s. 106(8)(b). There are no regulations prescribing uses for paragraph
114(1)(f). Therefore, based on the provision under which AquaBounty obtained its
waiver and the clear language in s. 106(10), AAS cannot be used at locations other than
the location specified in the waiver request. Because it purports to allow activities
25
prohibited by s. 106(10) – that is, uses at locations not identified in AquaBounty’s
waiver request – the SNAc Notice is unlawful.
AR, Vol 2, Tab B: Butler Affidavit, paras 75-77; Exhibits 29 and 30
G. The SNAc Notice Unreasonably Allows Uses Not Included in Section 108
Assessment
79.
The SNAc Notice as drafted would permit, without further notification or
assessment, uses which were not assessed and clearly increase the environmental risks
posed by AAS. In particular, the commercial grow-out of AAS in Canada was not
assessed as part of the DFO Risk Assessment as AquaBounty’s intended use scenario
provided only egg production would occur in Canada, followed by export of no more
than 100,000 eggs annually for commercial grow-out in Panama. As noted above,
potential uses outside of the intended use scenario were not assessed by DFO, the
Ministers, Environment Canada, or Health Canada.
AR, Vol 2, Tab B: Butler Affidavit, paras 81, 86-88, 92; Exhibits 11, 32-34
80.
In fact, DFO clearly indicated that other uses outside of the intended use
scenario could alter the risk assessment conclusions and recommended that, given the
uncertainty of the potential invasiveness of AAS, any such use be subject to a
significant new activity notification which would subject such uses to assessment.
AR, Vol 2, Tab B: Butler Affidavit, paras 84, 93; Exhibits 11, 32
81.
Although the Minister was not bound to accept the recommendations of the
DFO with respect to the scope of a SNAc Notice, the Minister must have a basis for
her decision to diverge from them. Here, there was none. The Court must consider all
of the material available to the Minister and determine whether it can perceive any
rational basis for the Minister’s decision. There is no documentation in the Certified
Tribunal Record providing any rationale for diverging from the DFO’s
recommendation in order to allow, without further assessment, the use of AAS that
was: a) not proposed b) not assessed and c) would increase the environmental risk.
26
Simply put, the Minister cannot purport to assess one relatively limited use and, having
concluded that that limited use does not render the organism “toxic”, go on to permit
far more extensive uses without any indication as to whether the organism had the
potential to be toxic under such circumstances. In essence, this represents a bait and
switch.
Inverhuron & District Ratepayers' Assn. v. Canada (Minister of the Environment) 2001 FCA
203 paras 38 and 40; Athabasca Chipewyan First Nation v. British Columbia Hydro &
Power Authority 2001 FCA 62 paras 25-27; Friends of the Island Inc. v. Canada (Minister
of Public Works), [1993] 2 FCR 229 pp. 27, 28, and 55
82.
Given the objectives of CEPA in relation to pollution prevention,
implementation of the precautionary principle, and the safe use of biotechnology, the
Applicants submit that the decision to allow unassessed uses of AAS like commercial
grow-out in Canada and unlimited egg production for export, contrary to the advice of
the DFO, was unlawful. In fact, it represents the antithesis of the precautionary
principle.
H. The Applicants have standing to seek judicial review
83.
The Applicants have no pecuniary or proprietary interest in this proceeding.
Instead, they have brought this consolidated application as public interest litigants. The
Court must consider three factors in deciding whether to grant public interest standing:
(a) whether the case raises a serious justiciable issue; (b) whether the Applicants have
a real stake or genuine interest in the issue; and (c) whether, in all the circumstances,
the proposed suit is a reasonable and effective way to bring the issue before the court.
These factors are to be applied in a purposive, flexible and generous manner.
Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence
Society, 2012 SCC 45 (CanLII) at para 37 [“DESWUAVS”]; Manitoba Metis Federation
Inc v. Canada (Attorney General), 2013 SCC 14 (CanLII) at para 43
84.
This application raises serious and justiciable questions of law relating to the
Ministers’ interpretation of, and compliance with, Part 6 of CEPA. These are issues of
27
public importance that transcend the interests of those directly affected in this case, as
they are important for future cases in which the Ministers conduct toxicity assessments
under ss. 81 and 108 and publish SNAc Notices under s. 110 of CEPA. The Applicants
are environmental organizations with long-standing reputations and real and ongoing
interests in the conservation of salmon and other fish, as well as the marine
environment on which they depend, and in the regulation of AAS and other fish. The
Applicants were unable to participate in or monitor the toxicity assessment because of
the secrecy of the process. This inability to participate should not be used against the
Applicants as a basis to deny them public interest standing.
AR, Vol 2, Tab B: Butler Affidavit, paras 12-36, 44-47, 49-54, 56, 58, 61-62, 72-73; AR,
Vol 3, Tab C: Wristen Affidavit, paras 9-18; MiningWatch Canada v. Canada (Minister of
Fisheries and Oceans), 2007 FC 955 paras 179, 181; Sierra Club of Canada v. Canada
(Minister of Finance), [1999] 2 FCR 211 para 68
85.
This application is a reasonable and effective means to bring the case to court.
The Applicants have demonstrated considerable expertise on the issues of transparency
and environmental protection raised in this case, assembled a well-developed factual
record. The Applicants have the capacity, resources, and ability to present the issues in
a concrete and well-developed factual setting.
AR, Vol 2, Tab B: Butler Affidavit, paras 12-22, 25-29, 33-34; AR, Vol 3, Tab C: Wristen
Affidavit, paras 9-17; DESWUAVS, supra paras 50-51; Canadian Doctors for Refugee Care
v. Canada (Attorney General), 2014 FC 651 para 347
86.
Accordingly, the Applicants respectfully request that this Honourable Court
recognize their standing to bring this judicial review application as public interest
litigants.
I. The Ministers’ toxicity assessment and the SNAc Notice should be quashed and
set aside
87.
The Applicants respectfully submit that the Ministers’ s. 108 toxicity
assessment and the SNAc Notice should, in addition to being declared invalid for the
28
reasons set out above, also be quashed and set aside, and . There are no factual, legal
or equitable reasons which disentitle the applicants to these and the other prerogative
remedies claimed in this application for judicial review pursuant to section 18.1 of the
Federal Courts Act.
Federal Courts Act, RSC 1985, c F-7, s. 18.1(3)
88.
Where an applicant is otherwise entitled to a remedy, a court should only decline
to grant relief with the greatest care, as the exercise of this discretion may weaken the
rule of law. The Court should also have regard to balance of convenience considerations
when deciding whether to deny discretionary relief, including disproportionate impact
on the parties, the public interest, or the interests of third parties.
Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 SCR 326 at paras 81-83; Evans,
JM and Brown. Judicial Review of Administrative Action in Canada (looseleaf)
(Toronto: Thomson Reuters Canada Limited, 2014) at pp. 3-89 - 3-90
89.
The balance of convenience favours granting the relief sought by the Applicants
because the evidentiary record shows that AquaBounty lacks all of the approvals
necessary to implement its proposed use scenario and there is no evidence that it will
suffer prejudice if the relief sought is granted. This is particularly so since it would be
open to the Ministers to re-post a SNAc Notice following a lawful toxicity assessment.
On the other hand, (a) the Applicants were denied the opportunity to present
information for consideration during the toxicity assessment, and (b) given that the
assessment was not done in accordance with the requirements of CEPA there are also
serious environmental concerns at play. There is up to a 5% chance of failure in the
sterilization process such that AAS have the potential for reproduction in the wild if
they were to escape and uses were allowed which were not subject to a toxicity
assessment. The environmental hazard of AAS is “high with reasonable uncertainty.”
Neither the environmental risk nor public participation considerations will be
addressed by declaratory relief alone.
AR, Vol 2, Tab B: Butler Affidavit at paras 73, and 83-84; Exhibits 11 and 33; AR, Vol 3,
Tab C: Wristen Affidavit at para 18
29
PART IV- ORDER SOUGHT
For the foregoing reasons, the Applicants respectfully request that this Honourable
Court allow the application with costs, and to grant the declaratory, prohibitory, and
certiorari orders requested in the Applicants’ Notices of Application.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
April 16, 2015
Tanya Nayler
Kaitlyn Mitchell
William Amos
Counsel for the Applicants
30
PART V- LIST OF AUTHORITIES
Statutes, Regulations and Bills
Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 (“CEPA”), ss 64, 66, 105, 106
(1), 106 (10), 106(4), (8), (9), 108, 108(1), 109(1), 110, 110(1), 104-115,
New Substances Notification Regulations (Organisms) (SOR/2005-248), s 4, 5(d), Sch 5, paras.
3(b) and 5(a).
Canada. Parliament. House of Commons. Debates, 36th Parl., 1st sess., vol. 135 no. 093 (April
27, 1998), at pp.6124-6125
Department of the Environment Act, R.S.C. 1985, c. E-10, s 5
Interpretation Act, R.S.C. 1985, c. I-21, s.12, s.11
House of Commons Debates (Standing Committee) (March 16, 1999) at 10:40
Canada, House of Commons, Fourth Report, (Standing Committee on Environment and
Sustainable Development), 1st Sess., 36th Parl., (25 March 1999) at clause 110.
Federal Courts Act, R.S.C. 1985, c. F-7, , s 18.1(3)
Case Law
Great Lakes United v. Canada (Minister of the Environment), 2009 FC 408,
31
Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58 (CanLII), [2003] 2
S.C.R. 624
Pfizer Canada Inc. v. Canada (Minister of Health) 2014 FC 1243
Canada (Citizenship and Immigration) v. Kandola, 2014 FCA 85
Save Halkett Bay Marine Park Society v. Minister of the Environment et al., 2015 FC 302
Dunsmuir v. New Brunswick, 2008 SCC 9
Takeda Canada Inc. v. Canada (Health), 2013 FCA 13
Canada (Minister of the Environment) v. Custom Environmental Services Ltd., 2008 FC 615,
Attaran v. Canada (Attorney General), 2015 FCA 37
McLean v. British Columbia (Securities Commission), 2013 SCC 67
Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 FCR
263
Bell ExpressVu Limited Partnership v. Rex [2002] 2 S.C.R. 559, 2002 SCC 42
North Vancouver (District) v. Canada (National Harbours Board), [1978] F.C.J. No. 619 (T.D.)
Rubin v. Canada (Canada Mortgage and Housing Corp.) [1988] F.C.J. No. 610 (Fed. C.A.)
Multi-Malls Inc. v. Minister of Transportation and Communications (1977), 14 O.R. (2d) 49
Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77
Inverhuron & District Ratepayers' Assn. v. Canada (Minister of the Environment) 2001 CAF
203, 2001 FCA 203, at paras. 38 and 40
Athabasca Chipewyan First Nation v. British Columbia Hydro & Power Authority 2001 FCA
62, 2001
32
Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 FCR 229
Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society,
2012 SCC 45
Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14
MiningWatch Canada v Canada (Minister of Fisheries and Oceans), 2007 FC 955
Sierra Club of Canada v Canada (Minister of Finance), [1999] 2 FCR 211
Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651
Immeubles Port Louis Ltée v Lafontaine (Village), [1991] 1 SCR 326
Secondary Authorities
Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (LexisNexis Canada: 2014)
“A Glance at the Canada Gazette: Past, Present and Future” Library and Archives Canada, 2008.
by Carol Kennedy
Sir William Wade and Christopher Forsyth, Administrative Law, 11th ed. (Oxford University
Press, 2005)
Meinhard Doelle, Canadian Environmental Protection Act and Commentary Markham, Ont. :
(LexisNexis Butterworths: 2005)
Black’s Law Dictionary, 10th ed, sub verbo, “location”
“Location”. Oxford Dictionaries. Oxford University Press AND “Specify”. Oxford
Dictionaries. Oxford University Press
33
J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada (loose leaf)
pp3-89 - 3-90.
34