2021, a year of uncertainty, adaptation, and increased focus on climate change following COP26, also marked a year of significant developments in the area of Extended Producer Responsibility (EPR) across Canada. This insight provides a look at some significant developments in EPR in Canada in 2021 and forecasts trends to watch for in 2022.

What are EPR schemes?

EPR is a waste management model that makes parties further up the supply chain responsible for managing the waste created by the goods they produce or import. EPR schemes aim to divert certain types of products from landfills by making “producers” responsible for the collection and disposal or recycling of the products at the end of their life cycle. This producer responsibility can be through financial contribution to the waste systems, obligations to manage and operate collection and recycling programs themselves or through stewardship organizations, and providing information-based services to consumers regarding the products and their end-of-life responsibilities. As an environmental policy approach, EPR programs incentivize producers to incorporate environmental considerations into the design, manufacturing and management of their products, with the ultimate goal of reducing waste in landfills and maintaining a sustainable life cycle for products.

EPR schemes are established under provincial legislation, so there is no standardized system across Canada, although the federal government is continuing with its policy to reduce plastic waste via regulations under the Canadian Environmental Protection Act. The provinces have taken individual approaches to implementing their own EPR regimes. While the varying EPR systems operating across Canada represent a positive step towards sustainable waste management, this patchwork approach complicates compliance with these growing responsibilities for producers that supply goods across the country, with particular challenges arising for e-commerce. Keeping up with the evolving landscape will be crucial for producers to manage responsibilities across jurisdictions.

Ontario’s Blue Box Regulation and definition of ‘producer’

In June 2021, Ontario published its final Blue Box Regulation, transitioning to full EPR over the next five years for materials like paper, glass, cardboard, plastics, and more. Ontario included a hierarchical definition of “producer” which is intended to include parties in the supply chain who may not have physical locations in the province. What this means is that the first producer captured under this regulation is the “brand holder”. If there is no brand holder in Canada, the obligation moves down the supply chain, to importers, distributors and retailers. The hierarchical system and broad scope of the definition of producer is especially important for parties who sell products via the internet and e-commerce, as they may have responsibility. Looking forward to 2022, as other provinces continue to develop their EPR programs, it is likely that the definition of producer will borrow from, or be the same as, the definition set by the Government of Ontario.

Growth of battery EPR in Canada – Considerations for electric vehicles

Provincial legislation concerning the collection, processing, recycling and disposal of used batteries varies across Canada. In October 2021, Québec announced its intention to impose minimum rates for recovery and recycling on the producers of, among other things, electric vehicle batteries, small batteries and lead-acid batteries. This would make Québec the first jurisdiction in North America to impose such regulations on the recycling of electric vehicle batteries – a prospect of significant importance as the use of these batteries will increase significantly in the coming years as electric vehicles become more prevalent. Québec’s enhanced battery EPR is part of the province’s plan to promote electrification while protecting the environment and resources by increasing recovery and enhancement of these products at the end of life stage. Public consultation on the proposed regulation ended in November 2021, and in 2022, stakeholders, particularly those who produce electric vehicle batteries, will be very interested in seeing the practical effects that this EPR program will have on the electric vehicle industry.

Implementation of EPR in Alberta

In December 2021, Bill 83 came into force in Alberta, enabling the provincial government to introduce EPR programs in the province. Earlier in the year, results of stakeholder engagement were released discussing the implementation of EPR systems for packaging and paper products, single-use plastics, and hazardous and special products. What these programs will actually look like upon implementation is still up in the air. What was proposed, and what likely will be seen, is a hybrid system consisting of possibly novel details as well as aspects of other provinces’ EPR systems – e.g., using Ontario’s definition of “producer”, while borrowing from British Columbia’s definition for packaging and paper products. As Bill 83 did not introduce any substantive details about the EPR systems, companies potentially subject to these schemes will want to monitor developments in 2022 until regulations containing the details of these programs, and the extent of producer responsibilities, are published.

Other developments

• March 2021 – Bill 65 comes into force in Québec, modernizing its Packaging and Printed Paper collection curbside recycling system. Full implementation of this reform is expected in 2025.
• September 2021 – British Columbia announces the EPR Five-Year Action Plan for the province, looking to expand the recyclable products subject to EPR, including, but not limited to, electric-vehicle batteries, solar panels, electric-vehicle chargers and e-cigarettes. Changes under the EPR Action Plan will be phased in from 2021 to 2026.
• October 2021 – New Brunswick approves amendments to the Designated Materials Regulation establishing a Packaging and Paper Products EPR program for the province. This program is expected to be up and running by 2023.
• November 2021 – Saskatchewan publishes a discussion paper on possible changes to the province’s EPR system to adapt to evolving waste streams, global market changes, and the government’s commitments to provincial and federal waste reduction strategies. Draft regulatory amendments are expected in 2022.
• December 2021 – Ontario proposes amendments to the producer responsibility regulations for tires, batteries and electronics to reduce unnecessary administrative requirements.
• December 2021 – Nova Scotia Department of Environment and Climate Change announces it is working with municipalities and other stakeholders to expand the province’s EPR program to include packaging, single-use plastics and paper.

Conclusion

Overall, 2021 was a year of substantial expansion of EPR programs across Canada and the same can be expected for 2022. Trends include additional types of materials being added to provincial EPR systems, as well as increased responsibility for parties higher up the supply chain. As these developments continue, producers should stay up-to-date to ensure compliance with the various responsibilities being imposed across Canada. Dentons Canada will continue to track these developments and provide updates. Stay on top of these developments with all insights and guidance from our Regulatory team by visiting our Canada Regulatory Review blog here and signing up for future alerts here.

To read other articles in the Dentons’ Pick of Canadian Regulatory Trends to Watch in 2022 series, click here.