A Small Group of Thoughtful, Committed Citizens Can Change the Law

Safe Food Matters logs key win on glyphosate case in Canada

The Federal Court of Appeal handed Safe Food Matters a major win on February 2, 2022 when it ordered Health Canada’s Pest Management Regulatory Agency (PMRA) to take another look at the group’s notice of objection to PMRA’s 2017 decision to re-register glyphosate in Canada.

The case, Safe Food Matters Inc. v. Canada (Attorney General), is the first decision of the Federal Court of Appeal on PMRA and on glyphosate, the most used and by-far most controversial pesticide in the world.  It comes at a time when Europe is debating registration, and US legal cases on re-registration are in the works.

What is remarkable is the case (SFM Case) was taken and won by a tiny group with no financial backing, a lawyer with a conscience, GoFund Me supporters and others. Here’s the story of this small group.

THE STORY

In 2015, PMRA published a statement proposing to renew glyphosate for another 15 plus years.  Mary Lou McDonald, corporate lawyer, is the first person in the story.  She recalls the exact moment when she heard about Proposed Re-evaluation Decision PRVD 2015-01:

“Ive always had a desire to “right what’s wrong”, like many people. I’d worked on petitions and that type of thing before, but they weren’t very effective. As a lawyer I believed in the law, and believed it could be used to make change.

When I read that PMRA was going to just “rubber-stamp” glyphosate, I thought of my young nieces and our 3 boys, and decided right then and there to use the law to make change. So we got organized.”

Mary Lou McDonald, LL.B, President Safe Food Matters Inc.

Mary Lou reached out to 3 people and together they founded a board of directors and created the non-profit Safe Food Matters Inc. (SFM). The 3 come from diverse backgrounds: a professor, a retired executive and a marketing communications/events professional.These were key people to the story. The board figured out its mission statement, kept to the plan, and guided the steps throughout.

Submitting the Notice of Objection

In April 2017, PMRA issued their final decision to re-register glyphosate for another 15 plus years, known as RVD2017-01.  The board agreed to submit a notice of objection, as permitted under the Pest Control Products Act (the Act). The PMRA allows 60 days to submit, and Mary Lou scrambled to get it done:

There was a lot to read and understand. I had to research the issues, find science, and write. I also wanted to figure out why high levels were accumulating in beans and oats, as had been reported by Tony Mitra on data he obtained from the Canada Food Inspection Agency.

PMRA didn’t tell us we needed to raise a ‘scientifically founded doubt” or justify a review panel; we found that out later. Nor did they tell us a special form was needed. At the last minute when I received an email suggesting I use the form, I was freaking out, and just then my husband walked into the room. Poor guy!

Mary Lou McDonald

The notice of objection (NOO) to RVD2017-01 was filed on June 27, 2017 by Mary Lou, on behalf of herself, and SFM. Mary Lou filed in her personal capacity because she is a vegetarian who eats legumes for protein, and so felt directly affected by the decision. The content of the NOO is explained in greater detail below.

A year and a half later, on January 11, 2019, PMRA provided a response to the NOO (the Response) . It was a 2 page form-letter with an appendix attached.  Eight other groups/ people had also filed objections, and they each received the same form letter, with particularized appendices.  

At the end of January some of these groups got together (at an event hosting the famous lawyers who’d won the Monsanto Cases) and discussed what to do. Safe Food Matters thought a legal case could be successful, and the groups considered the idea; but in the first week of February it became clear SFM was on its own.

Filing the Case for Judicial Review

The Federal Court filing was due February 11, 2019 and time was short for finding the right kind of lawyer, one with experience in judicial reviews who would take on a small non-profit. Then the idea came: perhaps Mary Lou the “solicitor” could draft and file the claim based on a precedent, and get a “litigator” later.  

It was Thursday, the filing was due Monday, and Mary Lou was flying from Toronto to Calgary to visit her Mom for an extended weekend.  Late Thursday morning litigator Andrea Gonsalves called; Mary Lou had reached out because she had read one of Andrea’s articles.  Andrea would provide Mary Lou with a precedent, but didn’t think she could take the case in such a short time frame.

Corporate lawyer Mary Lou spent that weekend in the basement of her Mom’s house in Calgary, reaching back to her law school training to write the application. Her Mom drove her to the station to take the C-train down to the Federal Court building in minus 30 degree Celsius weather and file. It was done.

Andrea Gonsalves and her law firm Stockwoods, LLP are part of the small group who made a huge difference in this story.  Shortly after the filing, conflicts were cleared and Andrea took the case for judicial review in Federal Court McDonald v. Attorney General (Canada) (the McDonald case). She took it because she believed in the cause, and her law firm backed her. The firm agreed to a financial arrangement with SFM that allowed SFM to understand and limit what financial exposure they faced, and plan how to manage it. Mary Lou also put in a lot of hours to save on costs. Andrea says:

This case presented to me as an important example of the need for court oversight of decisions by administrative agencies through the mechanism of judicial review. Agencies like PMRA have powers that can have significant effects on the lives of Canadians. It is the role of the courts to ensure they are exercising those powers properly and to grant a remedy if they are not.

Andrea Gonsalves, LL.B., Stockwoods LLP

Enter crowdfunding and GoFund Me.  It plus other individual contributions provided sufficient funds to ultimately cover the fees. The donations came from all across Canada, in all amounts, and from all types of people.  The generosity was overwhelming and heartening to the board of SFM. These funders are part of the “small group” of committed citizens who have made a huge difference.

Another person who made a difference was a person named Vavilov, who fought all the way to the Supreme Court of Canada to protect his citizenship status. The SCC decision in Vavilov provided ground-breaking guidance on the application of the “reasonableness” standard in judicial reviews. The Vavilov decision was pronounced on December 19, 2019, and Andrea argued the McDonald case just over a month later, on January 30, 2020. At that time the implications of the Vavilov case in judicial reviews were still very uncertain.

On Friday, February 13, 2020 the Federal Court came down with its judgement in the McDonald case.  It held PMRA had reasonably concluded that SFM and Mary Lou had not raised a “scientifically founded doubt” concerning the validity of the evaluations of health risks in RVD 2017-01.

Filing the Appeal

The SFM board had 30 days to decide whether to appeal. Mary Lou had just started a month in Spain, having retired from her career in corporate law the previous summer (while staying on as counsel for SFM), and communication was sketchy. There were many considerations:  a win would need an attentive Court because the issues are complicated; it would require more money and time; and a loss might expose SFM to costs. 

But the board had a larger strategic vision, as voiced by a director (quoting Gandhi): “The probability that we may fail in the struggle ought not deter us from the support of a cause we believe to be just”. Plus the lawyers in the group thought the Vavilov case gave them a fighting chance.

Enter the last character in the story, Lady Luck.  The decision had been taken (via e-mail) to appeal, the notice of application was ready, and Andrea, out of pure instinct, suggested that Mary Lou hustle down to the small Spanish village near her and get it signed and transmitted on Friday the 13th, rather than Monday the 16th. The Courts shut down because of the COVID pandemic that next week, so the filings were made in just the nick of time.

THE NOTICE OF OBJECTION

The initial Notice of Objection set out 9 objections, many of which focused on “pre-harvest use”. This is when glyphosate is sprayed just before harvest time on crops like legumes and cereals to kill them.  SFM and Mary Lou argued that this use was causing high levels of glyphosate to accumulate in such crops because of the way the crops grow – they are pushing or “translocating”  glyphosate to the seed – and PMRA had not looked at the associated risk. Evidence of high levels was that “maximum residue limits” were being exceeded.

The NOO argued the application labels (which set out the timing for spraying) can’t mitigate this risk, because some crops (indeterminate crops) are always pushing glyphosate to seeds, so there will always be glyphosate present.  Plus labels are subjective, hard to enforce, and stats showed high non-compliance.

The NOO also objected that the dietary consumption data PMRA relied on was based on what Americans ate in the mid 1990s, not on current consumption of Canadians. It provided evidence that the consumption of legumes like chickpeas (in hummus) has increased markedly since then.

Finally, the NOO argued that PMRA had, without scientific justification, reduced a safety/extrapolation factor(s), which factor(s) were put in place to protect the young. The NOO concluded that a review panel should be struck to review these issues.

THE SFM DECISION AND THE IMPORTANCE OF THE CASE

Justice Rivolean for the Federal Court of Appeal held in the SFM decision  that the Response of PMRA to the NOO was unreasonable, overturned the Federal Court McDonald decision, and directed the PMRA to revisit the NOO. The PMRA Response was unreasonable because PMRA had failed to interpret the governing legislation in its Response, and the court could not discern PMRA’s reasoning from the record.

The Court underlined the point that public participation is one of the pillars of the Pest Control Products Act (the Act). The notice of objection process, by which “any person” can file an objection to a registration decision within 60 days of the decision, is an integral part of public participation.

Importantly, the Court provided “Guidance” to the regulator, and this Guidance should inform future decision making by regulators across the board.  The Vavilov case said that even when a decision-maker like the PMRA has discretion, that discretion is constrained by the text, context and purpose of the statute and regulations. The Guidance of the SFM Case tells regulators in general, and the PMRA in particular, how they can show that that their decisions are within these legislative constraints.

The Court said that when PMRA decides on the NOO of SFM for the second time, it should have regard to, and explain how it has regard to, these factors:

• The specific text, context and purpose of the Act
• Relevant definitions (of “health risk” and “acceptable risk”)
• Consideration of the primary objective of the Act (which is to prevent unacceptable risks to individuals and the environment from the use of pest control products)
• What the “scientifically based approach” of PMRA (when it re-evaluates a pest control product) actually means;
• The role and tasks of PMRA when it reviews a notice of objection
• The role and purpose of a review panel when it receives a notice of objection (referred to it by PMRA) and how this contrasts with the role and purpose of the PMRA
• When an objector tries to show a “scientifically founded doubt” about the validity of the evaluation, what is the threshold for that standard
• The criteria that would determine whether the advice of an expert review panel would assist in addressing the subjection matter of the NoO under s. 3 of the Review Panel Regulations

CHANGE ON THE HORIZON

Safe Food Matters is happy about this Guidance and expects positive changes will come from the SFM Case.  When PMRA first looked at the NOO, it did not provide any explanation on what it was supposed to be doing, nor did it explain why the objections did not raise a scientifically founded doubt about PMRA’s risk assessment. Instead, PMRA just provided justifications that allowed it to reject the objections. The agency will likely change its approach, and provide more complete explanations in the future.

PMRA will also likely find the resources to fully consider the objections and provide more thoughtful responses to them. Safe Food Matters’ view is PMRA fell far short of “leaving no stone unturned” and engaging “twenty scientists” to review the objections, as PMRA stated in its January 11, 2019 release. It appears from the record that only one scientist read and responded to the substance of SFM’s objections (but for one objection), and this scientist, apparently not an agronomist, misread the studies provided.

The PMRA is currently working on a “Transformation Agenda”, and wants to improve independent science and increase transparency. Consideration of the Guidance would fit well within this agenda, and will likely be considered.

The PMRA has also, in PMRL 2021-10, proposed increases of two to three-fold to the maximum residue limits of glyphosate on the crop groups legumes, peas and beans, which increases very much rely on the science in the health risk assessment set out in RVD2017-01. Given that SFM’s objections to RVD2017-01 are still outstanding and a review panel could still be struck, any increases based on RVD2017-01 are premature. PMRA will likely, or should, delay an such increases until it has made a determination on the objections.

The Guidance should also prove useful for other regulators, who can apply the Guidance to their own circumstance to provide appropriate responses, especially when reasons are required.

Finally, the SFM Case should provide a good legal precedent by which courts can judge decision-making and reasoning of regulators across the board. 

It’s amazing what a small group of thoughtful, committed citizens can do.