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The Supreme Court of Canada will hear an appeal over Ottawa’s ban on single-use plastics, reopening a legal fight over the federal government’s power to regulate plastic products.
The decision, announced Thursday, puts the dispute before the country’s highest court while the federal ban remains in force. Europe Says reported that Environment Minister Julie Dabrusin’s office says the ban will stay in place until the Supreme Court rules.
The federal toxic designation
Ottawa’s ban rests on its decision to list “plastic manufactured items” as toxic under the Canadian Environmental Protection Act. That designation provided the basis for federal rules targeting six types of single-use plastic items.
The federal designation has already been tested in court, with The Canada Report’s coverage of the Federal Court ruling upholding Ottawa’s toxic plastics ban underscoring the broader industry implications now before the Supreme Court. That backdrop helps frame the government’s argument that the targeted items are among the most common sources of litter and can be replaced with readily available alternatives.
The government has said the targeted products, including straws, stir sticks and the plastic rings used to hold together six-packs of soda or beer cans, are commonly found in litter and have known, accessible alternatives.
At the centre of the coming appeal is a broad question: whether the federal government could designate plastic manufactured items as toxic in the first place, then regulate particular products under that listing.
Two courts, opposite conclusions
The Federal Court struck down the toxic listing in 2023, finding it overly broad. The court concluded the government had not demonstrated that all plastic items harm human health or the environment, and found the move trespassed on provincial jurisdiction.
That decision did not stand.
In January, the Federal Court of Appeal unanimously upheld the listing as reasonable. The appeal court said the lower court had begun from an incorrect premise by treating the designation and the regulation of individual plastic products as a single step.
Instead, the appeal court viewed them as distinct actions: first, the federal listing of plastic manufactured items as toxic; then, regulations directed at particular items.
The judges offered a vivid description of the issue in their decision: “To put the matter bluntly … the chemical content of (plastics) is irrelevant to the sea otter choking on a plastic straw. The problem is the plastic item itself, not its chemistry.”
CBC reported that the appeal court also found the ban does not infringe on provincial or territorial jurisdiction.
Industry challenge heads higher
The plastics industry challenged Ottawa’s toxic designation, arguing that the federal approach was too broad. Its challenge will now be tested at the Supreme Court.
The industry had argued that a lack of testing to determine which plastics are harmful made Ottawa’s decision unreasonable. The Federal Court of Appeal dismissed that argument in January.
A group representing plastics companies said in a statement that it welcomed the opportunity to bring the case before the Supreme Court.
For environmental advocates, the court’s decision to take the case creates uncertainty but also a chance for a clearer ruling on the federal listing.
“It is rare for appeals to be granted so we were not particularly expecting it,” said Karen Wirsig, senior program manager for plastics at Environmental Defence. “However, it does open the opportunity for a stronger precedent for the listing from the Supreme Court of Canada.”
Ban remains in place
Environmental Defence has urged Ottawa to maintain the ban while the case proceeds. Dabrusin’s office has said it will do so.
“Canadians understand the importance of reducing pollution and waste,” Dabrusin’s press secretary Amy Falkner said in a statement. “The government will continue to work with all partners to reduce plastic waste and pollution.”
The Supreme Court appeal will now decide whether Ottawa’s ban can remain in place, and how far the federal government can go in using the toxic designation to regulate plastic products.
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