Syngenta Canada successfully opposes judicial review application
April 05, 2019
On April 5, 2019, Syngenta Canada Inc. won a multi-year battle against David Suzuki Foundation and other environmental groups who were represented by Ecojustice. These environmental groups sought to cancel the federal registrations of a number of Syngenta’s neonicotinoid pesticide products by judicially reviewing almost two decades of decisions by the Pest Management Regulatory Agency (PMRA), alleging that the PMRA had registered products without having sufficient scientific basis to assess that neonicotinoids did not pose an unacceptable risk to pollinators.
The PMRA began granting registrations of Syngenta’ products in early 2010, using criteria that reflected current global scientific standards. At the same time, the PMRA, together with registrants like Syngenta, and the international community, began working together to develop a new framework for testing and assessing chronic risks to pollinators. These efforts were the basis for a comprehensive re-evaluation of neonicotinoid products generally that formally commenced in 2012. Ecojustice alleged that notwithstanding these international efforts and the developing science, the PMRA had engaged in an unlawful course of conduct since initially registering Syngenta’s products in 2010 because it lacked proper information about the effects of neonicotinoids on pollinators. Syngenta maintained throughout that the PMRA had engaged in no such course of conduct, and that the allegations were designed primarily for the purposes of overcoming the stringent procedural requirements that a judicial review be only a review of one decision, within 30 days of that decision.
The judicial review application was heard on the merits over the course of a week in November 2018. Syngenta advanced a number of defences, one of which was that the entire application was moot in light of the PMRA’s ongoing efforts in the course of the pollinator re-evaluation. Ultimately, Syngenta’s mootness arguments prevailed, and Justice McVeigh of the Federal Court held that the relief sought in the original Ecojustice application had effectively been achieved through the evolution of the registration system and the results of the re-evaluation. The applicants had made a number of efforts to reframe their case, and this was held to be “an ever-evolving target, which is not the nature of a judicial review”. Justice McVeigh held that the applicant’s approach, and the relief sought, “highlights the difficulty of an application not seeking review of a specific decision or a specific policy on judicial review”.
McCarthy Tétrault advised Syngenta with a team led by John Brown that included Brandon Kain, Kara Smyth and Stephanie Sugar.