‘Turn off the tap on plastic pollution’: Canada wins court battle on single-use plastics as lobbying continues

“If your bathtub is leaking and water is everywhere, do you start mopping the floor or do you first turn off the tap?”

That’s the question Toronto-born “artivist” Benjamin Von Wong poses through his towering three-storey installation Turn Off The Plastic Tap. 

Welcoming observers at Arcadia Earth inside The Well, the giant faucet suspended mid-air, pouring a torrent of plastic waste instead of water, is impossible to ignore.

It’s unsettling. But it floods the mind with reality.

Every year, Canadians discard more than five million tonnes of plastic (130 kilograms per person). 

Plastic packaging accounts for nearly half of all plastic waste. Only about 9% is recycled, the remaining 91% is sent to landfills, incinerated or leaks into the environment as pollution. 

In 2021 (the most recent data), 40,262 tonnes of plastic leaked into the environment, according to Statistics Canada.

“We need to turn off the tap on plastic pollution,” Von Wong told The Pointer.

Before landing in Toronto, his artwork was displayed at the fourth session of the Intergovernmental Negotiating Committee (INC-4) in Ottawa in April 2024, where countries gathered to hammer out a global treaty to end plastic pollution. 

In 2022, the United Nations Environment Assembly unanimously adopted a historic resolution to develop a new, legally binding agreement on plastic pollution by the end of 2024.

The negotiations continued in Geneva, Switzerland, until August last year. Despite 10 days of intense negotiations and pressure from 183 countries, it ended without an agreement, as nations remained divided over limits on plastic production and toxic chemicals.

But the sun might be coming out of the clouds here in Canada.

In a unanimous ruling on January 30, the Federal Court of Appeal upheld Ottawa’s decision to list plastic-manufactured items as “toxic” under the Canadian Environmental Protection Act (CEPA), clearing the way for bans on certain single-use plastics after over two years of battle.

“Canadians are concerned about the health and environmental impacts of plastics, and they expect governments to take action to address plastic pollution,” environment minister Julie Dabrusin said in a statement.

“Improving how plastics are made, used and managed is important to prevent plastic pollution and waste.”

READ: CPMA responds to Federal Court ruling on plastic packaging

In October 2020, under former environment minister Steven Guilbeault, Environment and Climate Change Canada and Health Canada released a report that found plastic pollution poses a significant threat to the environment, particularly to wildlife and ecosystems. 

It revealed macroplastics (plastics greater than five millimetres in size) such as plastic bags and packaging can cause physical harm to animals through entanglement and ingestion while microplastics (plastics less than or equal to five mm in size) are pervasive in water, soil and air.

While the report noted uncertainty around direct human health impacts due to limited data, it determined that plastic pollution meets CEPA’s criteria for toxicity because it is entering the environment in quantities or under conditions that may have immediate or long-term harmful effects.

Following the report, the federal government listed plastic-manufactured items as toxic under Schedule 1 of CEPA in 2021. 

The listing was a precursor to enable the federal environment minister to proceed with regulations to ban single-use plastic items nationally on plastic checkout bags, cutlery, styrofoam containers, stir sticks and plastic straws. 

In 2023, Federal Court Justice Angela Furlanetto struck down that ban. 

In her ruling, the judge noted Ottawa's decision to classify all plastic-manufactured items (PMI) as toxic was “too broad”.  

While acknowledging evidence that macroplastic pollution can cause environmental harm, the Court held that the Regulatory Impact Analysis Statement (RIAS) failed to bridge the gap between evidence of harm from specific plastic waste and the sweeping listing of all plastic-manufactured items.

The judgment emphasized that most plastic waste in Canada remains within managed waste streams such as landfills and recycling systems. 

The government had also not demonstrated that every PMI met the toxicity threshold under Section 64 of CEPA, which states that a substance is considered toxic if it is entering or may enter the environment in quantities or under conditions that have, or may have, immediate or “long-term harmful effects on the environment or its biological diversity”; pose a “danger to the environment on which life depends”; or pose a “danger to human life or health in Canada”.

Justice Furlanetto also found the Order exceeded Parliament’s criminal law power, stating there was no reasonable apprehension that every item captured by the broad PMI category posed a risk of harm. 

It was concluded that the federal government did not demonstrate all plastics cause harm to humans and the environment, and that it was trespassing on provincial jurisdiction. 

The April 2021 ban was retroactively quashed and declared “invalid” and “unconstitutional."

READ: Federal Court kills order underlying Ottawa's single-use plastics ban

Ottawa appealed the decision immediately and received a stay from the Federal Court of Appeal, allowing the ban to continue.

The recent ruling of the three-judge panel rejected the lower court’s reasoning and clarified that CEPA operates as a two-stage scheme. 

First, a substance may be listed if it has the potential to cause harm. Second, specific regulations can target particular products. The Court found the Federal Court had effectively collapsed those two steps into one by requiring item-by-item precision at the listing stage.

The Appeal Court also held that “plastic manufactured items” fall within CEPA’s definition of “substance”, rejecting the argument that the plural wording rendered the listing invalid. It emphasized that CEPA is preventative and risk-based. And the government needs to establish only potential harm, not prove that every plastic product is toxic in all circumstances.

“As stated in the Science Assessment, ‘[s]ince plastics degrade very slowly and are persistent in the environment, the frequency of occurrence of plastic pollution in the environment is expected to increase.’,” the ruling outlined. 

“They assert that the projected rise in plastic pollution needs to be considered. Environmental policies must anticipate and prevent environmental degradation and allow government to act in a preventative manner.”

With the victory, Dabrusin said Canada’s Single-use Plastics Prohibition Regulations remain in force. 

One of the interveners in the case, Environmental Defence’s senior program manager for plastics, Karen Wirsig, said it is “excellent news for a planet awash in plastic pollution”. 

Wirsig said the federal government must now “move quickly” to build on the court victory by strengthening and expanding regulations to curb plastics pollution. 

What does that look like? Broadening bans on harmful and unnecessary single-use items, requiring accurate labelling so consumers know whether products are truly recyclable or compostable in practice, mandating recycled content in non-food packaging while working with food producers and retailers to reduce single-use plastic packaging in grocery stores.

“Every month of delay means another 3,400 tonnes of plastic dumped directly into the environment in Canada, on top of all of the other health and environmental harm that comes from its production, use and disposal,” she added.

A 2024 poll commissioned by Environmental Defence and conducted by Abacus Data found that 84% of Canadians want fewer single-use plastics in grocery stores and over 80% support additional federal measures to tackle plastic waste and pollution.

READ: Ontario proposes to weaken impending new recycling rules over costs to producers

Knowing that food and beverage packaging can be a source of microplastics, more than six in 10 Canadians said they would prefer purchasing and consuming products in glass packaging. 

Wirsig stressed the latest decision creates an opportunity for federal, provincial and territorial governments to listen to Canadians and work together to eliminate unnecessary and harmful plastics from the economy.