Federal Court of Appeal Upholds Canada's Single-Use Plastics Ban, Overturning Lower Court Ruling

Ottawa's Environmental Policy Vindicated in Court

In a major decision for Canadian environmental law, the Federal Court of Appeal has upheld the federal government's ban on six categories of single-use plastic items. The ruling, delivered by a three-judge panel, reverses a November 2023 Federal Court decision that had struck down the regulations as overly broad and unconstitutional. This legal victory restores the government's authority to regulate items such as plastic checkout bags, straws, stir sticks, cutlery, six-pack rings, and certain takeout containers, which were listed as "toxic" substances under Schedule 1 of the Canadian Environmental Protection Act (CEPA).

Background: The Path to Regulation

The journey to this decision began in May 2021, when the Liberal government officially added "plastic manufactured items" to the list of toxic substances under CEPA. This classification was the critical legal step that empowered the government to introduce regulations aimed at managing their life cycle, including outright bans. The subsequent Single-use Plastics Prohibition Regulations, which began phasing in prohibitions in December 2022, were designed to curb plastic pollution in Canada's landfills and waterways.

However, the move was immediately challenged by a coalition of plastics and chemical companies, including Dow Chemical Canada, Imperial Oil, and Nova Chemicals Corp., operating under the banner of the Responsible Plastic Use Coalition. They argued that the "toxic" designation was scientifically unfounded and that the federal government had overstepped its constitutional authority by regulating waste management, an area typically under provincial jurisdiction.

The Lower Court's Reversal

In November 2023, Justice Angela Furlanetto of the Federal Court sided with the industry coalition. She ruled that the government's order was unreasonable and unconstitutional because it was too broad. Her decision stated that the government failed to provide sufficient evidence that all items captured under the sweeping category of "plastic manufactured items" were harmful to the environment or human health. This ruling effectively invalidated the ban and sent the federal government back to the drawing board, creating significant policy uncertainty.

The Appeal: A Question of 'Reasonable Apprehension'

The federal government promptly appealed Justice Furlanetto's decision, leading to the current ruling. The central legal question before the Court of Appeal was the threshold of evidence required for the government to list a substance as toxic under CEPA. The appeal court judges concluded that the lower court had erred in its analysis. They found that the government does not need to prove with absolute certainty that every single item in a broad category is harmful. Instead, the legal standard is one of "reasonable apprehension of harm."

The court determined that the federal government had met this standard, citing extensive scientific evidence on the pervasiveness and persistence of plastic pollution. The ruling states that the government's decision to regulate these items was a valid exercise of its criminal law power to protect the environment. This outcome is a significant affirmation of federal jurisdiction in environmental matters and reinforces the preventative principles embedded within CEPA. The Federal Court of Appeal reinstates Canada's single-use plastics ban, marking a pivotal moment in the country's environmental policy.

Industry and Environmental Reactions

The decision was met with praise from Environment Minister Steven Guilbeault and numerous environmental organizations. They hailed it as a common-sense ruling that allows the government to take necessary action against the plastic pollution crisis. Groups like Environmental Defence and Oceana Canada emphasized that the decision clears the way for the government to continue its work on reducing plastic waste and potentially expand regulations to include other harmful products.

Conversely, the Responsible Plastic Use Coalition expressed its disappointment. The coalition maintains that plastics are valuable materials when managed properly and that the "toxic" label is inaccurate and harmful to the industry. They are currently reviewing the decision and have indicated that an appeal to the Supreme Court of Canada is a strong possibility. Such an appeal would prolong the legal battle and the associated uncertainty for businesses.

Business Impact and Economic Shifts

The reinstatement of the ban has immediate consequences for a wide range of Canadian businesses. Petrochemical companies that produce the raw materials for plastics face a confirmed reduction in domestic demand for certain products. Manufacturers of the banned items must now accelerate their pivot to alternatives or cease production. The most visible impact is on the food service and retail sectors, including restaurants, grocery stores, and cafes, which must ensure they are in full compliance with the prohibitions on plastic bags, cutlery, and containers.

This regulatory landscape is forcing innovation and investment in alternative materials, such as paper, wood, and reusable products. While some businesses face costly transitions, others see opportunity in the growing market for sustainable goods. While traditional manufacturing sectors grapple with these environmental regulations, other parts of the Canadian economy are experiencing rapid evolution, such as the booming business and culture of esports in Canada, which presents its own unique set of economic and regulatory questions.

Insights

Why It Matters

This ruling is a landmark for federal environmental authority. It confirms that the government can use CEPA's precautionary principle to regulate entire classes of substances based on a reasonable risk of harm, rather than being forced to prove the specific harm of every individual item. This sets a powerful precedent for future regulations on other pollutants and chemicals of concern.

Impact on Canada

For Canadians, the decision means the phase-out of certain single-use plastics will continue, impacting daily consumer habits. For businesses, it provides regulatory clarity for now, but the looming threat of a Supreme Court appeal means uncertainty remains. The decision also strengthens Canada's position internationally as a country taking concrete steps to combat plastic pollution, aligning with its commitments under global agreements.

What to Watch

The primary focus will be on the industry coalition's next move. They have 60 days to seek leave to appeal to the Supreme Court of Canada. If the top court agrees to hear the case, the legal battle will continue. If not, this appeal court ruling will stand as the final word. Meanwhile, the federal government may feel emboldened to proceed with the next phases of its plastics agenda, which could include new regulations on labelling and recycled content requirements.