Following
the lead of their American counterparts, Canadian class-action lawyers have
been busy commencing lawsuits in Canada against Monsanto and Bayer over
allegations that glyphosate (the active ingredient in the herbicide Roundup)
has caused cancer in individuals exposed to the chemical. A quick Google search brings up references to
at least seven different actions commenced across Canada in 2019 by various
representative plaintiffs on behalf of proposed classes of people exposed to
glyphosate. Damages claimed are in the
hundreds of millions of dollars, and include “exemplary, punitive, and
aggravated damages” intended to address the Defendants’ alleged callous and
reckless disregard for the health and safety of users of glyphosate.
On
another front, objections have been raised against the continued registration
of glyphosate for use in Canada. In
April, 2017, the Pest Management Regulatory Agency (“PMRA”) of Health Canada
released a Re-evaluation Decision by which it granted continued registration of
products containing glyphosate for sale and use in Canada. Health Canada evaluated available scientific
information and found that:
… products containing glyphosate do not
present risks of concern to human health or the environment when used according
to the revised label directions. As a
requirement for the continued registration of glyphosate uses, new risk
reduction measures are required for the end-use products registered in Canada. No additional data are being requested at
this time.
Health
Canada summarized its overall findings from the re-examination of glyphosate as
follows:
- Glyphosate is not genotoxic and is unlikely to pose a human cancer risk.
- Dietary (food and drinking water) exposure associated with the use of glyphosate is not expected to pose a risk of concern to human health.
- Occupational and residential risks associated with the use of glyphosate are not of concern, provided that updated label instructions are followed
- The environmental assessment concluded that spray buffer zones are necessary to mitigate potential risks to non-target species (for example, vegetation near treated areas, aquatic invertebrates and fish) from spray drift.
- When used according to revised label directions, glyphosate products are not expected to pose risks of concern to the environment.
- All registered glyphosate uses have value for weed control in agriculture and non-agricultural land management.
A
number of Notices of Objection were filed pursuant to the federal Pest
Control Products Act requesting that a review panel of scientists be
established to review Health Canada’s decision to continue glyphosate’s
registration. The PMRA of Health Canada
decided not to establish a review panel on the basis that the “objections
raised did not create doubt or concern regarding the scientific basis for the
2017 re-evaluation decision for glyphosate.”
In
January, 2020, the Federal Court of Canada heard an application for judicial
review of the PMRA’s decision not to establish a review panel. The Applicants were Safe Food Matters, a
non-profit corporation dedicated to the safety of food production technologies,
and its President. They requested an
order “quashing” or voiding the decision and directing the PMRA to establish a
review panel. The Applicants’ Notice of
Objection raised concerns about using glyphosate as a pre-harvest dessicant for
crops, rather than as a weed killer, and focused on harm to humans rather than
harm to the environment. The PMRA found
that the objection did not raise “scientifically founded doubt” about the
validity of Health Canada’s Re-evaluation Decision on glyphosate, and that
expert scientists would not be able to assist in addressing the topics raised
in the objection.
In
a decision dated February 13, 2020, Madam Justice Simpson dismissed the
application for judicial review on the basis that the Applicants failed to show
in their Notice of Objection that “there exists scientifically founded doubt”
about the validity of Health Canada’s Re-evaluation Decision on glyphosate. She applied the standard of review of “reasonableness”,
meaning that the PMRA’s decision would stand as long as it was both logical and
rational, and fell within relevant factual and legal constraints (such as rules
imposed by the law governing the PMRA, principles of statutory interpretation,
past practices and decisions, etc.). Justice
Simpson’s view was that the decision would only be unreasonable if the
Applicants’ Notice of Objection showed a “well founded scientific doubt about a
conclusion” in Health Canada’s Re-evaluation Decision, and that “scientifically
founded doubt … must be demonstrated by at least one controlled peer reviewed
study published in a reputable journal that contradicts or raises a reasonable
doubt about the Evaluations’ conclusions.”
She concluded the Applicants failed to show that the PMRA’s decision was
unreasonable based upon those criteria.
Read the Federal Court decision at: M. v. Canada (Attorney General).
