Simply the Pest Management Regulatory Agency... and its Duty to Initiate Special Reviews

In Environmental Interest Groups Challenge Registrations of Neonicotinoid Products in Federal Court, we discussed a recent judicial review initiated by the David Suzuki Foundation and others with respect to conditional registrations of neonicotinoid products. On May 17, 2016, the Federal Court released its decision in another judicial review brought by the David Suzuki Foundation, among others, in Équiterre and David Suzuki Foundation v Minister of Health (Canada). This case concerns whether section 17 of the Pest Control Products Act (PCPA) imposes a mandatory or discretionary duty upon the Minister of Health and the Pest Management Regulatory Agency (PMRA) to initiate special reviews of pest control products and active ingredients following the occurrence of certain prescribed events.

The Applicants were particularly concerned with subsection 17(2), which states that the Minister must initiate a special review of an active ingredient if a member country of the Organisation for Economic Co-operation and Development has banned all uses of that active ingredient. In this case, the Applicants argued that the Minister had, among other things, erred in law by declining to initiate a special review upon becoming aware of the fact that Norway, an CD member country, had banned all uses of the active ingredient difenoconazole. The Minister did not concede at the Hearing that subsection 17(2) imposed a mandatory obligation to initiate a special review.

The court found that the PCPA does impose a mandatory duty on the Minister under that section to initiate a special review of an active ingredient when the Minister becomes aware of an CD ban, regardless of the Minister's belief in the health or environmental risks of the product. The court held that, though the Minister retained the discretion to verify that the active ingredient was actually banned, once that ban was confirmed, he or she did not have the discretion to decline to initiate the review. However, the court also ruled that the Minister's obligation had terminated as soon as Norway had lifted its ban on some uses of the active, even where a special review had already been initiated by that time, as subsection 17(2) requires that all uses of an active ingredient be banned.

The court issued a declaration that the Minister should have initiated a special review under subsection 17(2) upon becoming aware that Norway had prohibited all uses of the active ingredient. While the decision confirms the duty to initiate a special review in such circumstances, it leaves open question about the timing and scope, including:

• Will the PMRA now take active steps to seek out information about CD bans?
• What effect, if any, will this decision have on the speed of special reviews?
• Will we see further litigation with respect to the scope of special reviews under section 17?

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