Federal Court of Appeal sets hearing for case tackling issue of whether plastic is toxic

Federal court matters this week relate to patents, human rights, infrastructure fees

Federal Court of Appeal sets hearing for case tackling issue of whether plastic is toxic

This week, hearings scheduled before the federal courts involved issues in connection with the Canadian Environmental Protection Act, the Single-use Plastics Prohibition Regulations, the Canadian Human Rights Act, and the Patented Medicines (Notice of Compliance) Regulations.

Federal Court of Appeal

The court set Attorney General of Canada et al v. Responsible Plastic Use Coalition et al, A-337-23 on June 25, Tuesday. This involved a challenge against an order adding plastic manufactured items to the List of Toxic Substances in Schedule 1 to the Canadian Environmental Protection Act, 1999. The Federal Court quashed the order and declared it retroactively invalid and unlawful.

The appellants moved to stay the Federal Court’s judgment until 60 days after the disposition of their appeal. Last Jan. 25, in Canada (Attorney General) v. Responsible Plastic Use Coalition, 2024 FCA 18, the Federal Court of Appeal stayed the judgment.

The court ruled that the notice of appeal raised issues that were serious and not frivolous. The court also held that, if it would refuse to stay the judgment, there would be irreparable harm to the orderly roll-out of the Single-use Plastics Prohibition Regulations, SOR/2022-138, and considerable confusion would arise for the many businesses that moved to comply with their provisions.

Federal Court

The court scheduled Shelley Whitelaw v. AGC et al., T-1910-22 on June 24, Monday. The applicant’s complaint alleged that the Royal Canadian Mounted Police retaliated against her under s. 14.1 of the Canadian Human Rights Act, 1985 for filing a previous human rights complaint. The Canadian Human Rights Commission dismissed the retaliation complaint.

The applicant brought a judicial review application questioning the commission’s decision. The applicant then moved for an order to require the commission to produce documents and moved for an extension of time to file the application record.

Last Oct. 24, in Whitelaw v. Canada (Attorney General), 2023 FC 1410, the Federal Court partly allowed the motion for production and granted the requested extension of time for the applicant to file the application record.

The court set Parkdale Community Legal Services et al. v. His Majesty the King, T-2016-22 on June 24, Monday. The plaintiff argued that the statutory limits on monetary damages in ss. 53(2)(e) and 53(3) of the Canadian Human Rights Act should have no force and effect since they were inconsistent with s. 15 of the Canadian Charter of Rights and Freedoms.

The South Asian Bar Association of Toronto and the Don Valley Community Legal Services moved for leave to intervene in these proceedings. Last Mar. 12, in Parkdale Community Legal Services (DVCLS) v. Canada, 2024 CanLII 28277 (FC), the Federal Court dismissed the motion for leave to intervene.

The court found that it did not need to consider the other components of the test for leave to intervene in Le-Vel Brands, LLC v. Canada (Attorney General), 2023 FCA 66, given that the proposed interveners’ submissions would not be helpful.

The court scheduled Pacific Coast Terminals Co. Ltd. et al. v. Vancouver Fraser Port Authority, T-765-24 on June 25, Tuesday. The applicants filed judicial review applications challenging the respondent’s establishment of the Gateway Infrastructure Fee 2 (GIF2) and its later decision under ss. 49–51 of the Canada Marine Act, 1998 to revise the existing fees payable under the GIF2.

The court set the cases of Boehringer Ingelheim (Canada) Ltd et al. v. Sandoz Canada Inc., T-1831-22 and Boehringer Ingelheim (Canada) Ltd et al. v. Sun Pharma Canada Inc., T-1842-22 on June 25, Tuesday. This case arose from statements of claim under. 6(1) of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 relating to two Canadian patents.

The defendants moved for leave to amend their statements of defence and counterclaims in an identical manner in these proceedings. Last Jan. 23, in Boehringer Ingelheim (Canada) Ltd. v. Sandoz Canada Inc., 2024 CanLII 5392, the Federal Court granted the motion.

The proposed amendments were timely disclosed, would not delay an expeditious hearing, would not radically change the pleadings, could potentially facilitate a consideration of the dispute’s true substance on its merits, and would serve the interests of justice, the court said.

The court scheduled EMD Serono, a Division of EMD Inc., Canada et al. v. Apotex Inc., T-1039-23 on June 26, Wednesday. This action arose under the Patented Medicines (Notice of Compliance) Regulations.

The plaintiffs alleged that certain date-related information in the redacted version of the acknowledgement and certification of information received in relation to one of the defendant’s submissions was not confidential under a protection order.

Last May 29, in EMD Serono v. Apotex Inc., 2024 FC 820, the Federal Court agreed that the redacted version was not confidential under the protection order. The court directed the defendant to pay the plaintiffs costs of $1,500.

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