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Agriculture - Fertilizers Act. Biogenie Canada Inc. c. Canada (Food Inspection Agency)
In Biogenie Canada Inc. c. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from an order "dismissing the appellant’s application for judicial review of the seizure and detention of two soil products (Englobe Environment Inc. v. Canada (Canadian Food Inspection Agency)".
Here the court reviews some of the Fertilizers Act:I. Legal framework of this litigation
[4] As the trial judge noted, the Act was originally enacted in 1885. Section 3 of the Act provided that no person could sell fertilizer or supplements in Canada or import them to Canada unless the products were registered, compliant with certain standards, and packaged and labelled as prescribed by law. It appears from the debates surrounding the statute’s enactment that the objective sought was to ensure that fertilizers produced in and imported to Canada were properly analyzed and to prevent fraud by verifying their nutrient contents.
[5] In its most recent amendments to the Act in 2015, Parliament removed the requirement for prior registration of low-risk fertilizers and supplements, with a view to making pre-marketing regulatory oversight better correspond to the product’s risk profile and to facilitate access to the market for safe fertilizers and supplements. However, Parliament recognized the use of new technology in fertilizer manufacturing and the increasing interest in recycling nutrients and organic materials from industrial and organic waste, taking pains to guard against the potential safety risks associated with these materials. In this context, it enacted section 3.1, which is at the heart of this litigation. It reads as follows:"Fertilizers and supplements presenting risk of harm"
"Engrais et suppléments nocifs"
3.1 No person shall manufacture, sell, import or export in contravention of the regulations any fertilizer or supplement that presents a risk of harm to human, animal or plant health or the environment.
3.1 Il est interdit à toute personne de fabriquer, de vendre, d’importer ou d’exporter, en contravention avec les règlements, tout engrais ou supplément qui présentent un risque de préjudice à la santé humaine, animale ou végétale ou à l’environnement. [6] Section 5 of the Act, which confers on the Governor in Council the power to enact supporting regulations, was also amended to authorize the Governor in Council to regulate the approval of fertilizers and supplements, the duration and cancellation of their approval, the manufacturing, sale, importation or exportation of any fertilizer or supplement that presents a risk of harm to human, animal or plant health or the environment, and the evaluation of fertilizers and supplements, including their potential impact on, and the risk of harm they pose to, human, animal or plant health or to the environment.
[7] Exercising that power, the Governor in Council added section 2.1 to the Fertilizers Regulations, C.R.C. c. 666 (the Regulations), which reads as follows:"General Prohibition"
Interdiction générale
"2.1"" A person shall not manufacture, sell, import or export any fertilizer or supplement that contains any substance or mixture of substances in quantities that present a risk of harm to human, animal or plant health or the environment, except pests, if the fertilizer or supplement is used according to its directions for use, or in amounts not in excess of the amount that is necessary to achieve its intended purposes."
2.1 Il est interdit de fabriquer, de vendre, d’importer ou d’exporter tout engrais ou supplément qui contient une substance ou un mélange de substances en des quantités qui présentent un risque de préjudice à la santé humaine, animale ou végétale ou à l’environnement, à l’exception des parasites, si l’engrais ou le supplément est utilisé selon son mode d’emploi ou appliqué en une quantité qui ne dépasse pas la quantité nécessaire pour atteindre l’objectif visé. [8] The Regulations themselves do not specify the thresholds beyond which a substance in a fertilizer or supplement presents a risk of harm to human, animal or plant health or the environment. To make the prohibition operational and its application more foreseeable and consistent, the CFIA, which has primary responsibility for administering the Act, issued about 20 memoranda for use by parties subject to the Act and the Regulations. The one at issue here and that concerns us in particular is Memorandum T-4-93 (the Memorandum), "“Safety standards for fertilizers and supplements”". It states that a fertilizer or supplement must not contain metals of concern such as nickel, molybdenum and selenium, and sets out the maximum quantities that a hectare of soil can receive over a period of 45 years. It also establishes a method to calculate the maximum concentration of these substances in a fertilizer or supplement according to the quantity and frequency of application indicated by the manufacturer.
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