Meet Our Speakers - Laura Bowman

Name: Laura Bowman

Title: Lawyer at Ecojustice

Education: Juris Doctor, University of Toronto; Masters in Law, Osgoode Hall Law School

Q: Prior to joining Ecojustice, you held several different positions and worked in various provinces – can you share a bit about your career trajectory and those early experiences?

I articled with Lake Ontario Waterkeeper, a local organization in Toronto that took on pollution cases, as well as nuclear matters centering around the disposal of radioactive waste. That’s how I got my start in environmental law.

I then went on to Ecojustice in Vancouver, on a 6-month contract. When that funding ran out, I went to Nunavut to work for the territorial government. While there, I worked across many different practice areas, but almost everything we touched overlapped with the Nunavut Land Claims Agreement (the “Agreement”). Any legislative proposals had to be consistent with the Agreement, which meant that it essentially functioned like the Constitution. This created challenging interpretative issues because federal and territorial laws were often inconsistent with the Agreement. When inconsistencies arose, we were tasked with figuring out which law prevailed.

I eventually decided I wanted to leave Nunavut, hoping for a return to a landscape with trees.  I began looking for work with environmental organizations further South. I ended up at the Environmental Law Centre in Alberta, where I worked on projects related to tar sands, and oil and gas. I studied the cumulative effects of these industries on waterways and handled a lot of contaminated sites matters. There are an overwhelming number of orphaned wells in Alberta, and unfortunately, I saw first-hand how ineffective the province’s contaminated sites legislation is for remediating these areas. If the legislation is going to work, we must start requiring adequate financial security up front. If a company cannot pledge sufficient funds to cover the risk of a leak and/or to dismantle their operation, it shouldn’t be permitted to break ground on the project.

Eventually, I began to miss litigation, and found my way back to Ontario. I worked for a firm called Iler Campbell, where I focused on environmental cases, and various other matters for non-profits. Some years later, when the opportunity arose for me to return to Ecojustice, I took it, and have been there ever since.

Q: What projects are you currently working on at Ecojustice?

Right now, I’m trying to stick to land use planning and pesticide use. Traditionally, I did a lot of environmental assessment and species-at-risk work. I’ve also done a lot of electricity and energy work, and have taken part in many nuclear hearings.

With respect to my work in land use planning, I have advanced several different matters. I sought to have the Bradford bypass and Highway 413 reviewed under the federal Impact Assessment Act. I also worked on the Bill 197 case, when changes to the Ontario Environmental Assessment Act came out. More recently, I took part in litigation against the Ministry of Municipal Affairs and a developer with respect to a project that was proposed in a provincially significant wetland.

We currently have litigation against the Ministry of Municipal Affairs in relation to its expansion plans for Hamilton. Despite the city’s vote against it, the Minister went ahead and approved changes to Hamilton’s boundary. We’ve therefore applied for judicial review, arguing that the expansion is inconsistent with the growth plan and provincial policy statement. More generally, we are tracking and doing advocacy work around other official plan and greenbelt amendments.

Q: In theory, Ontario’s environmental assessments process is there to ensure that environmental concerns are addressed before a large-scale infrastructure project breaks ground. In practice, what are some key issues with the process, specifically as they relate to public participation?

The Ontario Environmental Assessment Act[i]  (the “EAA”) has been broken for years. It has only ever applied to government projects, not to private sector projects unless they are specifically designated. Mines, for example, must be specifically designated to fall under the EAA’s purview. In addition, there are class assessment exemptions for municipal projects, which allow municipalities to self-approve their projects, foregoing the EAA’s process entirely. The self-approvals used to be appealable to the Minister, but Bill 197 removed that process. We therefore have many proponents who can self-approve with no oversight or accountability. As can be expected, the quality of their assessments has declined.

The appeal mechanism does remain for First Nations. However, the decreased quality of the assessments has proven to be a significant barrier. To know whether a given project is going to affect their treaty rights, a certain threshold of information is required. For example, if data on aquatic effects is not included in the assessment, the affected First Nation cannot know whether the project will impede their right to fish. It is also very difficult to compel better information, and even if the matter is escalated to the courts, proponents often drown out a failure to conduct further research in a problematic area by piling on “positive” data for trivial impacts. Ultimately, adequate consultation cannot occur where there is insufficient information, and this remains a live issue under the current environmental assessment process.  

Q: Turning to your other area of focus, can you tell us about your work in pesticide regulation? Can you explain the current framework for pesticide approval and the role of the Pest Management Regulatory Agency (or PMRA)?

My pesticide file has been very busy. I work with a coalition of groups, and we meet regularly to discuss active pesticide ingredients of concern, as well as the inadequacies of Health Canada’s approval process.

This area of law is guided by the Pest Control Products Act[ii] (the “PCPA”), which I believe to be a good piece of legislation. It sets a very high standard for the registration of new pesticides, requiring reasonable certainty that no harm will occur to human health and the environment. However, it is not being rigorously applied, and unfortunately there are many loopholes that allow harmful actives to remain in circulation.

The issues begin at the onset of the registration process. When a company goes to register an active ingredient, they are asked to provide classes of scientific data. However, as these classes are quite broad, companies can easily game the system. If a company knows there is a link between its product and Non-Hodgkin’s Lymphoma, they may simply omit that study when applying. In addition, most lab data is generated by the individual registrants, and not independently verified. The result is that the PMRA is often not reviewing complete data and published literature when deciding whether to register an active.

There is an avenue for statutory appeal post-approval by filing a notice of objection, following which an independent panel may be established to review Health Canada’s decision. However, this process is generally ineffective. If we are concerned that there has been non-compliance with the PCPA, we may file a judicial review with the courts. If we miss the window of appeal for the initial registration, we have to wait 5 years until the product comes up for renewal to challenge it again. Actives also undergo re-evaluation every 15 years, but we’ve learned that once commenced, a re-evaluation can take up to 20 years to complete. There are a lot of transparency issues and issues with regulatory capture at Health Canada.

Outside of the renewal and re-evaluation processes, there is one additional avenue we can pursue to have an active reviewed, and that is through a special review. Special reviews are triggered when another OECD nation bans the active in question, but they can also be requested if there are reasonable grounds to believe a product’s risks may not be acceptable at any time post-registration. Unfortunately, we’ve had big problems using any of the long-term review mechanisms under the PCPA. For example, we do not receive a timely response to various requests for special reviews. We’ve found the same to be true for notices of objection. Sometimes the PMRA simply fails to respond.

This internal delay is exacerbated, as the science on many actives is rapidly evolving. We presently have ongoing litigation in relation to glyphosate, for which the science has been evolving at lightning speed. There are hundreds of peer-reviewed articles published every year, pointing to new risks. However, as the PMRA finished their most recent re-evaluation in 2017, they won’t be starting another until the 2030s. It may be decades before they even begin reviewing the new science. To address that delay, we’ve challenged the renewal of a product containing glyphosate, and will continue to participate in the next round of the Safe Food Matters litigation[iii].

I note that once an active is registered for one use, it is very easy to have it registered for another. For example, if a product has been permitted for use on potatoes, and someone then applies to use it on carrots, the PMRA will simply review the evaluation they did for potatoes, regardless of how old it is, and adjust. The PMRA will not go back and ensure there was a toxicity assessment for humans or other biota when the approval was first issued for potatoes. They don’t ensure there was a full comprehensive review at first instance. They simple recycle the potato analysis, no matter how outdated and incomplete it may be. This is the case until there is a re-evaluation (every 15 years+). This is a significant issue, as many approvals are incomplete, having preceded the 2007 enactment, which imposed much higher standards on the PMRA. Many approved actives are very old, and first originated in the 1950s or 1960s. Nobody knew anything about them when they were first registered. There are therefore large gaps in occupational and other health data for certain actives, but they remain in circulation and are consistently registered for new uses.   

Q: In addition to litigation, and intervening, what other forms of advocacy does Ecojustice engage in?

As an organization, Ecojustice’s role is legal representation of other organizations. Ecojustice typically acts on behalf of other environmental or health organizations. We don’t really advance primary litigation in our own name. However, we have intervened in matters such as Vavilov in our own right. Our work engages with local community and environmental groups.

In my pesticide work, I have also begun doing some outreach with migrant workers, and organizations that represent their interests. In the course of reviewing Health Canada risk assessments, I’ve become quite concerned about their exposure to harmful substances and Health Canada’s unrealistic mitigation conditions. For example, we see cases in which the PMRA only agreed to re-register a product after the company agreed to impose a weeks or months long re-entry interval. This meant that it would not be safe to go back into the field for weeks or even months after spraying the active. We know from experience that this does not align with reality, and that workers are being sent back in before it’s safe. In addition, during re-entry, workers are not being given protective equipment. In some cases, they are not even told what they are spraying, and they are not trained on how to use it safely.

Q: As an administrative law nerd, I have to ask about your participation in Minister of Citizenship and Immigration v Alexander Vavilov, intervening for Ecojustice. Your submissions centred on the importance of robust statutory interpretation on judicial review. Can you share your reactions to the decision and what it means for organizations such as Ecojustice?

Vavilov[iv] helped a lot, I want to start by saying that. I believe that the intention of the court was to make Vavilov helpful for a number of organizations like ours. We had been concerned that reasonableness was too deferential, and the court made a very concerted effort to fix that and make it more robust. It’s not that I am still pining for the good old days of correctness, but I think there are still some real challenges being worked out around administrative accountability to the statutory framework, especially in environmental law cases.

The Court in Vavilov attempted to set up a framework, which I think is sensible on its face. That framework requires a reviewing court to look at the administrator’s reasons. If he or she has used their policy expertise to interpret their own statute, which is explained in the reasons, then that analysis must be given weight. If the analysis is reasonable, the decision should be upheld.

However, issues arise because administrative law has advanced largely from the perspective of tribunals. The reality is that most administrative decisions are not made in that setting. Tribunals engage in an adjudicative process, with parties providing submissions on both sides of the issue. They must contend with the arguments that are raised, as well as the relevant statutory provisions. This reality leads to a deliberative exercise, which can be reviewed for reasonableness. Many environmental decisions are made by administrators, and this may be with or without submissions on the facts or the law.  Without submissions and reasons, it becomes difficult to determine whether the decision maker even considered their governing statute, let alone whether their application of it was reasonable. Surely those administrators also need to be accountable to their statute, regardless of whether people make submissions about it. This issue is the struggle I have with the case law post-Vavilov. All administrative decision-makers should be confined by statutes, regardless of whether someone has had an opportunity to make submissions about that statute.

Ultimately, the Supreme Court hasn’t really resolved what happens when there aren’t any submissions and the decision maker does not actively interpret their statute. For us to live in a functional democracy, administrators have to be held accountable, and they must explain why they’ve made a given decision. I agree with the Supreme Court when it says that administrators do not have to carry out statutory interpretation to the same degree expected of a judge, but they do have to show some policy expertise, and demonstrate how they have thought about the question, including the policy behind their statute, and how they arrived at their decision.

[i] Environmental Assessment Act, R.S.O. 1990, c. E.18 [EAA].

[ii] Pest Controls Product Act, SC 2002, c. 28 [PCPA].

[iii] See Safe Food Matters Inc. v Attorney General of Canada, 2022 FCA 19.

[iv] Minister of Citizenship and Immigration v Alexander Vavilov, 2019 SCC 65 [Vavilov].