Case information

Constitutional law — Division of powers — Agriculture — Administrative law — Judicial review — Standard of review — Reasonableness — Provisions of federal statute and regulations prohibiting manufacture, sale, importation or exportation of fertilizers or supplements presenting risk of harm to human, animal or plant health or environment — Products of soil and compost producer seized by reason of excessive concentrations of potentially harmful substances — Scope of decisions of this Court and of Judicial Committee of Privy Council dealing with jurisdiction in relation to agriculture provided for in s. 95 of Constitution Act, 1867 and their value as precedents — Whether concurrent jurisdiction in relation to agriculture provided for in s. 95 of Constitution Act, 1867 permits making of laws in relation to matters that do not concern only farmers — Meaning of expression “from time to time” in s. 95 — Whether Court of Appeal’s decision constitutes misapplication of standard of reasonableness — Constitution Act, 1867, s. 95 — Fertilizers Act, R.S.C. 1985, c. F-10, s. 3.1 — Fertilizers Regulations, C.R.C., c. 666, s. 2.1.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The respondent, the Canadian Food Inspection Agency, is responsible for the administration of the Fertilizers Act, R.S.C. 1985, c. F-10. Section 3.1 of the Act prohibits, in particular, the manufacture and sale of a fertilizer or supplement that “presents a risk of harm to human, animal or plant health or the environment”. Section 5 of the Act confers on the Governor in Council the power to make regulations. Thus, in 2020, the Governor in Council added s. 2.1 to the Fertilizers Regulations, C.R.C., c. 666, prohibiting, in particular, the manufacture and sale of a fertilizer or supplement containing “any substance or mixture of substances in quantities that present a risk of harm to human, animal or plant health or the environment”. The Agency made this prohibition operational through memorandum T-4-93. This memorandum established the thresholds and the calculation method applicable to s. 2.1 of the Regulations with respect to the maximum concentration of certain elements in a fertilizer.

The applicant, Biogénie Canada Inc., produces compost and soils from various raw materials. In May 2021, the Agency took samples of two soils produced by Biogénie. An analysis of these samples revealed concentrations of nickel, molybdenum and selenium greater than the maximum concentrations specified in memorandum T-4-93. Two months later, the Agency sent Biogénie notices of detention, thus seizing the soils in question. In March 2022, Biogénie sent a demand letter to the Agency, demanding the lifting of the detention of the soils.

In April 2022, Biogénie filed an application for judicial review of the seizure and detention of the soils. The Federal Court dismissed that application, and then the Federal Court of Appeal unanimously dismissed Biogénie’s appeal.