Issues to "Bee" Determined: Federal Court Dismisses Preliminary Motions

Written By Venetia E.K. Whiting, Julia E. Schatz, and Katrina E. Crocker

Whether or not the decisions by the Pest Management Regulatory Agency (PMRA) to successively register neonicotinoid products on a conditional basis constitute a "continuous course of conduct", and whether or not the PMRA offers adequate alternative remedies to the judicial review applications, are two debatable issues for the application judge to decide.

This was the conclusion reached on July 13 by Judge Aylen of the Federal Court in David Suzuki Foundation et al v Minister of Health et al. Judge Aylen dismissed motions brought by Bayer, Syngenta, Sumitomo and Valent (as registrants of the active ingredients clothianidin and thiamethoxam) and the Minister of Health (the "Respondents"), to dismiss two judicial review applications of the David Suzuki Foundation, Friends of the Earth Canada, Ontario Nature, and Wilderness Committee (the "Applicants").

Background

The background to the judicial review applications can be found in our previous blog on this matter at Environmental Interest Groups Challenge Registrations of Neonicotinoid Products in Federal Court. While the two applications seek slightly different forms of relief, together they assert that the PMRA has engaged in an unlawful course of conduct by repeatedly (and improperly) issuing section 12 notices under the Pest Control Products Act ("PCPA"). The Applicants challenged the resulting conditional registrations, which were maintained for over a decade, despite the Respondents' failure to submit valid chronic toxicity hive studies for honey bees as requested.

The Respondents' motions to dismiss the judicial review applications had two bases, namely:

• the applications sought a review of 79 distinct decisions of the PMRA that did not fall within the meaning of "continuous course of conduct", contrary to Rule 302 of the Federal Courts Rules ("FCR") and the time limitation set out in section 18.1(2) of the Federal Courts Act ("FCA") and
• the Applicants had adequate alternative remedies to the applications through the PMRA's ongoing re-evaluations, special reviews, and conversion application assessments under the PCPA.

In order for an application to be dismissed on a preliminary motion, a high threshold must be met. The Respondents must show that there is an "obvious, fatal flaw striking at the root of the court's power to entertain the application" or that the claim is "so clearly improper as to be bereft of any possibility of success." Where the moving party's issue in support of the application is "debatable", they should be left to be determined by the application judge.

Continuous Course of Conduct

Rule 302 of the FCR states that "an application for judicial review shall be limited to a single order", unless the Court orders otherwise or the Applicants can show that the decisions form part of a "continuous course of conduct." Section 18.1(2) of the FCA states that an application for judicial review should be made within 30 days of the decision, but this limitation period only applies to discrete decisions, and not to those that constitute a continuous course of action.

Whether or not the judicial review applications are directed to a continuous course of conduct or to multiple, discrete decisions is a fact-based determination. The Respondents submitted that the 79 discrete registration decisions could not be considered a "continuous course of conduct" because the decisions were made over a period of 11 years and involved 4 different companies, separate evaluations of scientific evidence, and 31 different end-use products. As such, the Applicants should have already reviewed each decision when they were made. In addition, the Respondents argued that because conditional registrations will no longer be granted after November 30, 2017, the conduct is not "ongoing".

The Applicants noted that the similarities of the 79 decisions outweighed the differences, as each decision involved the same statutory framework, the same 2 active ingredients, the same regulator (the PMRA), a conditional registration requiring more data pursuant to a section 12 notice, and a data gap related to the chronic toxicity risk of the pesticides.

After weighing the similarities and differences between the decisions, Judge Aylen deemed the issue "debatable" and held that discernable decisions made by the PMRA, underlying the alleged course of conduct, should not be a basis for rejecting the contention that there is an unlawful course of conduct.

Adequate Alternative Remedy

A review application cannot be brought "in the face of adequate, effective recourse elsewhere."  The Respondents argued that the Applicants have adequate alternative remedies in ongoing PMRA re-evaluations initiated in June 2012 under section 16(1) and in November 2016 under section 16(2) of the PCPA. The re-evaluation processes will provide the Applicants with an opportunity to participate in public consultations, to file a notice of objection under section 35 of the PCPA, and if they remain dissatisfied, to file an application for judicial review. The Applicants denied that the re-evaluations would provide an adequate remedy, as the proceedings do not address the PMRA's unlawful conduct, they are not expeditious, the notice of objection procedure is ineffective, and there may be no remedy at all if the PMRA concludes that the environmental risks are acceptable.

To strike an application for judicial review on this ground, the court must be certain that there is:

• recourse elsewhere;
• the recourse is adequate and effective; and
• the circumstances pleaded are not the sort of unusual or exceptional circumstances recognized by case law. 

Judge Aylen found that it was debatable "as to whether the PMRA's ongoing proceedings provide an adequate alternative remedy.” She was particularly concerned that these other proceedings would not afford the Applicants the central remedy sought—a declaration of unlawful conduct by the PMRA.

Conclusion

In light of the judge's decision, the applications will proceed to a hearing where the questions of ongoing course of conduct and adequate remedies will be fully adjudicated. 

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