On January 30, 2026, the Federal Court of Appeal (Court of Appeal) released its unanimous decision in Canada (Attorney General) v. Responsible Plastic Use Coalition, overturning the Federal Court’s November 2023 ruling (2023 FC 1511) that had struck down the federal government’s Order-in-Council (Order) adding “plastic manufactured items” (PMIs) to the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA).
As a result, the federal designation of PMIs as a toxic substance remains in force, as do Canada’s Single-use Plastics Prohibition Regulations. The decision represents a significant development in the federal government’s approach to regulating plastics and environmental harms more broadly.
Background
In April 2021, following a federal science assessment identifying potential environmental harm from plastic pollution, cabinet issued the Order adding PMIs to Schedule 1 of CEPA. This provided the government the ability to make a variety of regulations under CEPA regulating the use, release, manufacture, import, export and sale of those substances in Canada. Several industry stakeholders challenged the Order and sought judicial review. In November 2023, the Federal Court held that the listing Order was overly broad, unsupported by evidence and outside the scope of federal jurisdiction. See our previous Blakes Bulletin on the Federal Court’s decision: Federal Court Strikes Down Order Designating Plastics as Toxic Substances.
The Attorney General of Canada subsequently appealed the decision to strike down the Order, and obtained a stay of the lower court’s decision, resulting in the Order remaining in effect pending the appeal.
Court of Appeal Decision
The Court of Appeal overturned the decision of the Federal Court and upheld the Order adding PMIs to the List of Toxic Substances.
The first key question before the Court of Appeal was whether PMIs are a “substance” under CEPA and whether cabinet had sufficient evidence to allow it to reasonably conclude that PMIs caused or had the potential to cause harm. The Court of Appeal rejected the lower court’s narrow interpretation of “substance,” finding that CEPA’s definition is intentionally broad and encompasses PMIs. The Court of Appeal found there was sufficient evidence before cabinet to reasonably conclude that PMIs caused or had the potential to cause harm. The decision underscored that listing a substance under CEPA requires only that cabinet be satisfied that a substance may enter the environment and may cause harm, rather than requiring proof that every item is harmful.
The second key question before the Court of Appeal was whether the Order was reasonable. The lower court had found that the Order was unreasonable because PMIs were too broad a category to be on the List of Toxic Substances and that the government failed to show a reasonable apprehension that all listed plastic items are harmful. The Court of Appeal rejected these arguments and found the Order was reasonable. The Court of Appeal noted that CEPA does not require proof that every manifestation of the substance is toxic in all circumstances in order for a substance to be added to the List of Toxic Substances and pointed to the Single-use Plastics Prohibition Regulation as an example of how a subset of PMIs may be regulated.
The Court of Appeal also overturned the lower court’s finding that the Order was unconstitutional and held there was no substantive constitutional question in play. Rather, the Order fell squarely within the federal government’s authority to address environmental harm. The Court emphasized that listing a substance in Schedule 1 is an enabling step rather than a regulatory prohibition; therefore, listing is not by itself an exercise of the federal government’s criminal law power. The Court of Appeal cautioned that courts must presume that statutory discretion will be exercised in a constitutional manner, and they should not invalidate legislation based on speculative future misuse.
Finally, the Court of Appeal confirmed that the federal government may legislate based on a reasoned apprehension of environmental harm, particularly where pollution is well documented.
Key Takeaways
The parties have 60 days to seek leave to appeal to the Supreme Court of Canada. For now, the Court of Appeal’s ruling upholding the federal government’s authority to list PMIs as toxic has strengthened the legal foundation for the federal government’s existing and future efforts to address plastic pollution, increasing regulatory certainty for existing plastics regulations.
The Court of Appeal’s findings with respect to the government’s power to add substances to the List of Toxic Substances are of particular interest. Notably, the Court of Appeal found there was no requirement for quantitative testing before reaching a conclusion regarding harm and the Minister of Environment and Climate Change has broad discretion to collect and assess scientific information when deciding whether to list a substance in Schedule 1. The Court of Appeal noted there was ample scientific evidence before cabinet showing that PMIs were ubiquitous in the environment and may be present in conditions and concentrations that are, or could be, harmful to the environment or biological diversity.
More broadly, the decision contributes to the evolving constitutional landscape defining the federal government’s environmental powers, following recent Supreme Court of Canada decisions addressing the federal-provincial balance in environmental regulation. Industry stakeholders should therefore anticipate that CEPA will remain a central tool in the federal government’s environmental regulatory strategy, and courts are likely to show deference to federal decision-making, particularly where environmental risks are well-established.
For more information, please contact the authors or any other member of our Environmental group.
