ENVIRONMENTAL LEGISLATION - Environmental protection - Pollution control legislation - Toxic substances

Appeal by Goodyear Canada Inc. (Goodyear) from the dismissal of its application for judicial review of a decision by the Minister of the Environment, refusing to convene a board of review to consider Goodyear’s objection to the proposed addition of BENPAT to the List of Toxic Substances under Schedule 1 to the Canadian Environmental Protection Act. BENPAT was an antioxidant compound used in the production of tires. The government followed the appropriate procedure for providing notice of the screening assessment of BENPAT as a Toxic Substance and Goodyear participated in the process. After BENPAT was identified as a potential Toxic Substance in September 2011, Goodyear objected. Two days after the Minister decided not to convene a board of review because Goodyear failed to bring forth new scientific data or information that would change the assessment, Environment Canada released a Risk Management Update (Update) with respect to BENPAT. The Update stated it was based on a 2012 technical study on rubber, the conclusion of which was that toxic emissions from tires would not be as high as anticipated. On appeal, Goodyear submitted that procedural fairness was breached by the fact that the 2012 study was not produced to it. Goodyear also asserted that since the Updates stated that emissions levels were lower than anticipated in 2010, the decision of the Minister not to convene a board was unreasonable. Goodyear also contended that, in rejecting the request to appoint a board of review on the ground that it did not supply new evidence that would support a change in the conclusion, the Minister imposed a test that was both unreasonable and constituted a fettering of discretion. The Minister claimed that the Update was actually based on a 2010 study, which was known to Goodyear and drawn to the Minister’s attention during the screening process.

HELD: Appeal dismissed. The Federal Court was entitled to find that Goodyear was not denied procedural fairness by the Minister’s failure to disclose and refusal to consider the 2012 study new scientific information, given that the 2012 study was based on a 2010 study of which Goodyear was aware. Goodyear had an adequate opportunity to participate in the screening process and to make submissions about the toxicity of BENPAT. The statement in the Update that emissions from BENPAT might not be as high as believed did not undermine the Minister’s decision not to convene a board of inquiry. The fact that the risk was not as extensive as originally thought did not mean that BENPAT was not toxic. It could not be said that the science was so uncertain that the decision not to convene a board of inquiry was unreasonable. If a final order to add BENPAT to the List was made, Goodyear was not without recourse.

Goodyear Canada Inc. v. Canada (Minister of the Environment), [2017] F.C.J. No. 691, Federal Court of Appeal, D.W. Stratas, D.J. Rennie and J.M. Woods JJ.A., July 18, 2017. Digest No. TLD-August212017012