Canada's Supreme Court will hear the plastics toxic listing appeal. The six-item ban rests on the outcome

How the toxic listing holds up Canada's plastics ban

Canada has no stand-alone plastics statute. Ottawa regulates plastic through the Canadian Environmental Protection Act, 1999 (CEPA), which lets the federal cabinet make prohibition regulations only for substances on Schedule 1, the List of Toxic Substances. The Order of 23 April 2021, registered as SOR/2021-86 under subsection 90(1), added item 163, “Plastic manufactured items”, and came into force on registration⁴.

The listing is deliberately broad. It names a category of articles, not a resin, so the six bans in SOR/2022-138, tracked as PR-CA-001, could follow without a separate listing for each format. The order’s impact statement cited a 2016 study finding 3,268 kilotonnes of plastic waste in Canada, of which 305 kilotonnes (9%) was recycled and 29 kilotonnes (1%) entered the environment as pollution.

Newer federal data shows the scale has grown. Statistics Canada’s physical flow account, released on 26 March 2026, counts 5,152 kilotonnes of plastic discarded in 2022, of which 98.6% was collected and 1,098 kilotonnes went to material recovery rather than disposal, as summarised in SPI’s Canada market record. The two studies use different methods, so their totals are not compared.

Industry objected from the start. The same statement records 60 notices of objection, 52 of which asked for a board of review, which the Minister declined to set up. The applicants then went to the Federal Court, which quashed the order on 16 November 2023 in 2023 FC 1511 and declared it invalid and unlawful, according to the Supreme Court docket¹. That ruling was stayed pending appeal, so the bans never lapsed.

The Federal Court of Appeal reversed it. In unanimous reasons for a three-judge panel, the court held that plastic manufactured items are a “substance” under CEPA, that cabinet had enough evidence to conclude they may cause harm, and that the listing itself is not an exercise of the criminal law power.

“I would allow the appeal and dismiss the application for judicial review with costs in this Court and below.” Federal Court of Appeal, 2026 FCA 17, paragraph 208, 30 January 2026

What changed between January and 15 October

30 January: the appeal ruling. The Federal Court of Appeal’s reasons in 2026 FCA 17 answered the constitutional question in the negative and restored the listing³. Eleven interveners took part, including the American Chemistry Council and the Plastics Industry Association on one side, and Environmental Defence, Oceana Canada, the David Suzuki Foundation and Greenpeace Canada on the other. The reasons note that SOR/2022-138 itself was not challenged in these proceedings.

31 March: the leave application. The Responsible Plastic Use Coalition, Dow Chemical Canada ULC, Imperial Oil and Nova Chemicals Corporation filed for leave to appeal, the Supreme Court docket shows. The respondents are the Attorney General of Canada, the federal environment and health ministers, and the Attorneys General of Alberta, Saskatchewan and British Columbia¹.

30 April to 15 May: responses and reply. Alberta and Saskatchewan filed responses on 30 April and Canada on 1 May, and the applicants filed their reply and a motion to extend time on 14 May.

14 September: to the judges. All leave materials, and the motion to extend time, went to the judges on 14 September, 31 days before the decision, by SPI’s calculation. The docket, last modified on 8 October, shows no decision entry yet.

15 October: leave granted. The Supreme Court’s What’s new notice of 15 October says that “Today, the Supreme Court decided the following leave applications” and links to its decisions list². The docket for case 42277 records that leave was granted with costs in the cause, and the Registrar’s letter of the same day sets the filing schedule. The Canadian Press reported on 15 October that the Court agreed to hear the appeal, and Environmental Defence said the same in a release that day.

What did not change. ECCC’s overview of the regulations still states that the Federal Court of Appeal upholds the listing and that the regulations remain in force⁶. A separate proposal of 20 December 2025 to repeal the export ban is still marked proposed on ECCC’s registry, after a consultation that closed on 28 February 2026.

“The Single-use Plastics Prohibition Regulations remain in force.” Environment and Climate Change Canada, regulations overview, modified 2 March 2026

What the order and the regulations require

The order is one line in a schedule; the regulations carry the duties. SOR/2022-138, registered on 20 June 2022, bans manufacture and import first and sale a year later, then extended both to items made for export from 20 December 2025⁵. Each item is defined by format and a technical test: cutlery and straws are caught if they contain polystyrene or polyethylene, or change physically after 100 dishwasher cycles.

Foodservice ware is narrower than the word suggests. Only clamshells, lidded containers, boxes, cups, plates and bowls made from or containing expanded or extruded polystyrene foam, PVC, certain black pigments or oxo-degradable plastic are banned, so clear PET containers are outside. Flexible straws stay available on request, in packages of 20 or more kept off self-service display, and in care settings.

Breaches carry minimum fines. The prohibitions are designated provisions under CEPA, so a large corporation convicted on indictment faces CAD 500,000 to CAD 6,000,000 for a first offence under section 272(3), as SPI’s tracker record for PR-CA-001 sets out. A small revenue corporation faces CAD 75,000 to CAD 4,000,000 on indictment, and an individual CAD 15,000 to CAD 1,000,000 or up to three years in prison. ECCC’s pages list no conviction under the regulations.

The export ban is the one moving part. ECCC’s proposal of 20 December 2025 would lift it while keeping domestic bans and the five-year record duty, and says “The prohibition on export will not fulfil an environmental objective commensurate to its economic impact”⁷. ECCC’s registry still lists it as proposed.

The Federal Plastics Registry, tracked as PR-CA-002, rests on a different power. It is a notice under CEPA subsection 46(1), which lets the Minister collect information, and it applies to producers placing 1,000 kilograms or more of plastic packaging, electronic equipment or single-use products on the market each year⁸. Phases 2 and 3 are postponed; Phase 1 reports continue for 2024, 2025 and 2026 data.

Who gains and who pays as the appeal runs

The applicants. Dow Chemical Canada ULC, Imperial Oil and Nova Chemicals Corporation are resin producers, not makers of straws or bags, so their stake is the precedent. Imperial’s fourth quarter 2025 results show chemical segment net income of CAD 82 million for 2025, down 52.0% from CAD 171 million in 2024 by SPI’s calculation, on 683 thousand tonnes of petrochemical sales. Dow’s group results put Packaging & Specialty Plastics net sales at USD 19,970 million for 2025, a worldwide figure, not a Canadian one¹⁵. SPI has not yet confirmed a public 2025 figure for Nova Chemicals.

Converters that made the six items. The December 2025 proposal says 112 businesses were identified as manufacturers in 2021. Up to 49 of them (44%) may still make at least one item, 54 (48%) have shifted away and 9 (8%) appear to have been acquired or shut down; 82% of the 49 are small businesses. ECCC’s 2022 analysis put forgone profit for manufacturers from the export ban at CAD 69 million, in 2021 dollars.

Exporters. The same proposal puts the plastic product manufacturing sector at about CAD 35 billion of revenue and 85,000 jobs in 2023, and says about 94% of CAD 14.9 billion of plastics exports that year went to the United States. That is the market the export ban closed to Canadian makers of the six items, and the one the repeal would reopen.

Importers and retailers. The 2021 analysis counted 128 importers. Retailers carry the sale bans and the flexible straw conditions, and the 2022 impact statement put the ban’s total cost at a present value of CAD 2 billion over 2023 to 2032, mostly substitution costs of about CAD 5 per person a year.

Substitute suppliers. Substitution costs make up most of that CAD 2 billion, the impact statement says, and that spending goes to makers of the alternatives. The 2019 market the ban removed was 29,654 million units sold for CAD 760 million in 2021 dollars, and checkout bags were 52.6% of the units, by SPI’s calculation.

Recyclers and municipalities. The impact statement credits the ban with monetised benefits of CAD 616 million, from avoided litter clean-up and marine pollution, and a 22,000 tonne cut in plastic pollution over ten years⁵.

The pinch point: one listing carries every future federal plastics rule

The case is narrow on paper and wide in effect. The Federal Court of Appeal held that the listing is only an enabling step, so the regulations are where Ottawa’s choices are tested. If the Supreme Court disagrees with that framing, the question moves from six items to whether any listing of a class of articles can stand.

Timing is the second constraint. Under section 58(1)(b) of the Supreme Court Act, the notice of appeal must be served and filed within 30 days of the judgment granting leave⁹. The Registrar’s schedule on the docket sets the notice of appeal for 16 November 2026, the appellants’ factum, record and book of authorities for 18 January 2027 and the respondents’ for 8 March 2027. Motions for leave to intervene are due by 15 February 2027, and the hearing date will be set by the Court.

The litigation has already shown how courts handle the gap between a ruling and its effect. When the Federal Court quashed the order in November 2023, its decision was stayed pending appeal, so the sale bans took effect on 20 December 2023 regardless, as ECCC’s overview and the tracker history for PR-CA-001 show. Any Supreme Court remedy would be set in its own judgment.

How Canada's legal basis compares with the EU, England and US states

Canada is unusual in hanging its bans on a toxic substance listing. The EU acts under environment policy: Directive (EU) 2019/904, tracked as PR-EU-014, is based on Article 192(1) of the Treaty on the Functioning of the European Union and required Member States to bar nine product types from the market from 3 July 2021¹⁶. Penalties are set nationally and must be “effective, proportionate and dissuasive”.

England uses a pollution-prevention supply power. SI 2023/982, tracked as PR-GB-006, was made under section 140 of the Environmental Protection Act 1990 and bans supply to end users of single-use plastic plates, trays, bowls, cutlery and balloon sticks, and polystyrene food and drink containers and cups, from 1 October 2023¹⁷. The fixed penalty is GBP 200, reduced to GBP 100 if paid within 28 days.

US states act product by product. California’s ban on expanded polystyrene food service ware, PR-US-005, applies because producers did not show a 25% statewide recycling rate by 1 January 2025. Washington’s RCW 70A.245.070, PR-US-012, banned EPS food service products from 1 June 2024, and Oregon’s SB 543, PR-US-013, banned foam containers from 1 January 2025.

Wales legislated in primary law. The Environmental Protection (Single-use Plastic Products) (Wales) Act 2023, tracked as PR-GB-007, received Royal Assent on 6 June 2023, its first prohibitions took effect on 30 October 2023, and a ban on plastic wet wipes follows on 18 December 2026. Its Schedule can be extended by regulations, without a new Act.

Scope differs as much as legal basis. The EU list covers cotton bud sticks, plates and balloon sticks that Canada does not ban, while Canada’s checkout bags and ring carriers are not on the EU Article 5 list. England bans supply to end users only, so an English converter may still make listed items for export; Canada has barred export production since 20 December 2025, pending the repeal proposal.