Jamieson (C.E.) & Co. (Dominion) Ltd. et al. v. Canada (Attorney General), (1987) 12 F.T.R. 167 (TD)

• Judge: Muldoon, J.
• Court: Federal Court (Canada)
• Case Date: September 17, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 12 F.T.R. 167 (TD)

Jamieson & Co. Ltd. v. Can. (A.G.) (1987), 12 F.T.R. 167 (TD)

MLB headnote and full text

C.E. Jamieson & Co. (Dominion) Ltd. (plaintiff) v. Attorney General of Canada, The Director and Assistant Deputy Minister, Health Protection Branch of the Department of National Health and Welfare (defendants)

T-2853-84

C.E. Jamieson & Co. (Dominion) Ltd., Pharmetics Ltd. and Swiss Herbal Remedies Ltd. (plaintiffs) v. Attorney General of Canada, The Director and Assistant Deputy Minister, Health Protection Branch of the Department of National Health and Welfare (defendants)

T-2968-84

Indexed As: Jamieson (C.E.) & Co. (Dominion) Ltd. et al. v. Canada (Attorney General)

Federal Court of Canada

Trial Division

Muldoon, J.

September 17, 1987.

Summary:

The Food and Drugs Act, R.S.C. 1970, c. F-27, s. 25(1)(o)(ii), permitted the Governor General-in-Council to make Regulations respecting "the sale or the conditions of sale of any new drug, and defining for the purpose of this Act the expression 'new drug'". The Governor General-in-Council enacted Regulations under the section providing a regulatory scheme for the marketing of "new drugs" and a "drug identification number" (DIN) scheme. (Food and Drug Regulations, C.R.C. 1978, c. 870, C.01.014 to C.01.014.4, and C.08.001 to C.08.011). The plaintiffs wished to market certain amino acid products. The Director of the Health Protection Branch of the Department of National Health and Welfare categorized the products as "new drugs". Inspectors conducted a warrantless search and seizure of Jamieson's premises and seized amino acid products. The Director alleged that the amino acid products, being "new drugs" could not be marketed until the plaintiffs complied with the "new drug" Regulations.

In this combined litigation the plaintiffs applied for a declaration that s. 25(1)(o)(ii) and the Regulations thereunder were ultra vires the Federal Parliament. If the court found the Regulations to be valid, the plaintiffs alternatively sought a declaration that the amino acid products were not "new drugs" within the meaning of the Act or the Regulations and therefore the Regulations would not apply to the plaintiffs. The plaintiffs also argued that the Regulations were applied to them in an unfair, unreasonable or a discriminatory manner. Jamieson also applied for a declaration that the search and seizure respecting its premises was contrary to s. 8 of the Canadian Charter of Rights and Freedoms.

The Federal Court of Canada, Trial Division, dismissed the action for a declaration that s. 25(1)(o)(ii) and the Regulations thereunder were ultra vires. The court held that the amino acid products were "new drugs" within the meaning of the Act and the Regulations and therefore the Regulations applied to the plaintiff. The court also held that the Regulations were applied to the plaintiffs in a fair, reasonable and nondiscriminatory manner. The court however granted a declaration that the warrantless seizure of the amino acid products conducted under s. 22 of the Food and Drugs Act, contravened the Charter and was therefore null and void. The court ordered therefore that the articles seized be returned to the plaintiffs.

Civil Rights - Topic 1643

Property - Search and seizure - Extent of protection - The Federal Court of Canada, Trial Division, contrasted the constitutional requirements under s. 8 of the Charter (search and seizure provision) respecting searches and seizures in the administrative law context (i.e. by inspectors or auditors under a regulatory provision), as opposed to the criminal law context - See paragraphs 175 to 196.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The Food and Drugs Act, R.S.C. 1970, c. F-27, s. 22(1)(d), authorized warrantless seizures of articles where an inspector believed there was a violation of the Act - Inspectors searched the plaintiffs' premises without a warrant and seized certain amino acid products on the basis that these were "new drugs" which could not be marketed until the "new drugs" Regulations were complied with - The Federal Court of Canada, Trial Division, held that the seizure was unreasonable and contrary to s. 8 of the Charter, where, inter alia, it was not impractical to obtain a warrant and there was no emergency - The court declared s. 22(1)(d) to be of no force and effect to the extent that it authorized warrantless seizures where prior authorization was feasible - The court pointed out that only the seizure was unconstitutional because the warrantless search which was authorized by ss. 21(1)(a), (b) and (c) of the Act carried no constitutional requirement of prior authorization - See paragraphs 161 to 196.

Constitutional Law - Topic 4663

Peace, order and good government clause - The national concern power - Scope of - Drug legislation - The Food and Drugs Act, R.S.C. 1970, c. F-27, s. 25(1)(o)(ii), permitted the Governor General-in-Council to make Regulations respecting the sale of any "new drug" and for defining the expression "new drug" - The Federal Court of Canada, Trial Division, held that s. 25(1)(o)(ii) and the Regulations thereunder were validly enacted under the criminal law power of the Federal Parliament (Constitution Act, 1867, s. 91(2)) and under the power of the Federal Parliament to enact laws for the peace, order and good government of Canada, s. 91 - The court stated that the "new drug" laws were matters of natural interest and concern - See paragraphs 55 to 75.

Constitutional Law - Topic 5676

Federal jurisdiction - Constitution Act, 1867, s. 91(2) - Regulation of trade and commerce - Food and drug legislation - The Food and Drugs Act, R.S.C. 1970, c. F-27, s. 25(1)(o)(ii), permitted the Governor General-in-Council to make Regulations respecting the sale of any "new drugs" and defining the expression "new drug" - The Federal Court of Canada, Trial Division, held that s. 25(1)(o)(ii) and the Regulations enacted thereunder could not be sustained by Parliament's authority to legislate with respect to the regulation of trade and commerce under s. 91(2) of the Constitution Act, 1867 - See paragraphs 27 to 31.

Constitutional Law - Topic 6509

Federal jurisdiction - Constitution Act, 1867, s. 91(27) - Criminal law - Drug legislation - The Food and Drugs Act, R.S.C. 1970, c. F-27, s. 25(1)(o)(ii), permitted the Governor General-in-Council to make regulations respecting the sale of any "new drug" and defining the expression "new drug" - The Federal Court of Canada, Trial Division, held that s. 25(1)(o)(ii) and the Regulations made thereunder and were validly enacted by the Federal Parliament under s. 91(27) of the Constitution Act, 1867, notwithstanding that the provisions created a national regulatory scheme to ensure compliance - See paragraphs 32 to 54.

Food and Drug Control - Topic 1102

Drugs - New drugs - Legislation re - Validity - Illegal subdelegation of power - The Food and Drugs Act, R.S.C. 1970, c. F-27, s. 25(1), permitted the Governor General-in-Council to make Regulations respecting drug identification numbers (DIN's) and new drugs - The Federal Court of Canada, Trial Division, examined in detail the Regulations made by the Governor General-in-Council under s. 25(1) which empowered the Assistant Deputy Minister of National Health and Welfare (Director under the Food and Drugs Act) to carry out certain functions and held that there was no illegal subdelegation of authority - See paragraphs 110 to 119.

Food and Drug Control - Topic 1102

Drugs - New drugs - Legislation re - Regulations - Whether applied fairly - The Food and Drugs Act, R.S.C. 1970, c. F-27, s. 25(1), and the Regulations thereunder set out a regulatory scheme respecting "new drugs" and drug identification numbers (DIN's) - The Director under the Act refused to issue DIN's for certain of the plaintiffs' amino acid products on the ground that they were "new drugs" which could not be marketed until the plaintiffs complied with the Regulations governing new drugs - The Federal Court of Canada, Trial Division, examined the decision of the Director and held that the Regulations were applied in a fair, reasonable and nondiscriminatory manner - See paragraphs 145 to 160.

Food and Drug Control - Topic 1102

Drugs - New drugs - Legislation re - Validity - The Governor General-in-Council made Regulations under the Food and Drugs Act, R.S.C. 1970, c. F-27, s. 25(1)(o)(ii), governing the sale of "new drugs" (Food and Drug Regulations, C.R.C. 1978, c. 870, Regulations C.01.014 to C.01.014.4 and C.08.001 to C.08.011) - The Federal Court of Canada, Trial Division, held that the section and Regulations were intra vires the Federal Parliament under the criminal law power (Constitution Act, 1867, s. 91(27)) and the peace, order and good government clause (s. 91) - See paragraphs 1 to 160.

Food and Drug Control - Topic 1102

Drugs - New drugs - Legislation re - Regulations - Validity - Vagueness - The Food and Drugs Act, R.S.C. 1970, c. F-27, s. 25(1), permitted the Governor General-in-Council to make Regulations respecting drug identification numbers (DIN's) and new drugs - The Federal Court of Canada, Trial Division, examined in detail the Regulations made by the Governor General-in-Council under s. 25(1) and held that they were intra vires the regulatory powers of the Governor General-in-Council and were not void due to vagueness - See paragraphs 78 to 109.

Food and Drug Control - Topic 1103

Drugs - New drugs - What constitute - Amino acid products - The Food and Drugs Act, R.S.C. 1970, c. F-27, s. 25(1)(o), permitted the Governor General-in-Council to make Regulations respecting, inter alia, what constituted "new drugs" - The definition of "new drugs" was hence set out by regulation C.08.001 (Food and Drug Regulations, R.S.C. 1978, c. 870) - The Federal Court of Canada, Trial Division, examined the regulation and held that certain "isolated amino acids and amino acid products" were "new drugs" within the meaning of the Act and Regulations - See paragraphs 121 to 144.

Food and Drug Control - Topic 1225

Drugs - Search and seizure - Warrantless searches and seizures - [See Civil Rights - Topic 1646 above].

Statutes - Topic 5362

Delegated legislation - Regulations - Validity of - General principles - The Federal Court of Canada, Trial Division, stated that "a regulation made by the executive branch pursuant to a validly enacted statute, either federal or provincial, however, enjoys a greater security against judicial invalidation than does the bylaw of a municipal corporation" - The court made the statement when considering whether Regulations enacted under the Food and Drugs Act were ultra vires on the ground of vagueness - See paragraphs 90 to 97.

Cases Noticed:

Citizens' Insurance Co. v. Parsons, (1881-82) 7 App. Cas. 96, refd to. [para. 28].

Insurance Act, 1910, In re (1913), 48 S.C.R. 260, refd to. [para. 28].

Board of Commerce Act, 1919, In re the, [1922] 1 A.C. 191, refd to. [para. 28].

Vapor Canada Ltd. et al. v. MacDonald, [1977] 2 S.C.R. 134; 7 N.R. 477, refd to. [para. 28].

Canadian National Transportation Limited and Canadian National Railway Company v. Attorney General of Canada, [1983] 2 S.C.R. 206; 49 N.R. 241, consd. [paras. 30, 46, 57, 72].

Rocois Construction Inc. v. Quebec Ready Mix et al., [1985] 2 F.C. 40; 64 N.R. 209 (F.C.A.), refd to. [para. 30].

Proprietary Articles Trade Association et al. v. Attorney General for Canada et al., [1931] A.C. 310, refd to. [para. 34].

Canadian Federation of Agriculture v. Attorney General for Quebec [Margarine Reference], [1951] A.C. 179, refd to. [para. 34].

Combines Investigation Act, Re, [1922] 2 D.L.R. 802, refd to. [para. 34].

Standard Sausage Co. v. Lee, [1933] 4 D.L.R. 501, addendum [1934] 1 D.L.R. 706 (B.C.C.A.), appld. [paras. 38, 41, 51].

Berryland Canning Co. Ltd. v. R., [1974] 1 F.C. 91, consd. [para. 41].

Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914; 30 N.R. 496, consd. [paras. 43, 45, 53, 59].

R. v. Wetmore, Kripps Pharmacy Ltd. and Kripps et al., [1983] 2 S.C.R. 284; 49 N.R. 286, appld. [paras. 46, 47, 51].

R. v. Morgentaler, 4 N.R. 277, refd to. [para. 49].

Jas. Richardson & Sons Ltd. v. M.N.R., [1983] 1 F.C. 3 (T.D.), refd to. [para. 52].

Canadian Indemnity Company et al. v. Attorney General of British Columbia, [1977] 2 S.C.R. 504; 11 N.R. 466, refd to. [para. 57].

Attorney General of British Columbia v. Attorney General of Canada, [1924] A.C. 222, refd to. [para. 57].

Alberta Natural Gas Tax Reference, [1982] 1 S.C.R. 1004; 42 N.R. 361; 37 A.R. 541, refd to. [para. 57].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, consd. [para. 59].

R. v. Hauser, [1979] 1 S.C.R. 984; 26 N.R. 541, consd. [para. 66].

R. v. Aziz, [1981] 1 S.C.R. 188; 23 N.R. 383, consd. [para. 68].

Schneider v. British Columbia, Province of and Attorney General of Canada et al., [1982] 2 S.C.R. 112; 43 N.R. 91, consd. [para. 68].

Johanneson v. West St. Paul, [1952] 1 S.C.R. 292, refd to. [para. 71].

Munro v. National Capital Commission, [1966] S.C.R. 663, refd to. [para. 71].

Imperial Oil Limited and The City of Kingston, Re, [1955] O.W.N. 767, consd. [paras. 87, 88].

Compagnie Miron Ltee v. La Reine, [1979] C.A. 36, refd to. [para. 91].

R. v. Sandler (1972), 21 D.L.R.(3d) 286 (Ont. C.A.), refd to. [para. 91].

Montreal Gazette Limited v. La Ville de Montreal, [1975] C.S. 686, refd to. [para. 91].

Corporation Municipale du Village de Rimouski Est v. Corporation Municipale de la Cite de Rimouski et Procureur General de la Province de Quebec, [1976] C.S. 485, refd to. [para. 91].

Campeau Corporation and City of Ottawa, Re (1978), 22 O.R.(2d) 40 (Div. Ct.), refd to. [para. 91].

City of Dartmouth v. S.S. Kresge Co. Ltd. (1966), 5 N.S.R. 1965-69 423; 58 D.L.R.(2d) 229 (S.C.T.D.), refd to. [para. 91].

Kruse v. Johnson, [1898] 2 Q.B. 91 (C.A.), refd to. [para. 91].

Aerlinte Eireann Teoranta et al. v. Canada (1987), 9 F.T.R. 29, refd to. [para. 94].

Bacon v. Ont. Flue-Cured Tobacco Growers Marketing Board, [1959] O.W.N. 256 (H.C.), refd to. [para. 96].

Remis v. Fontaine, [1951] 2 D.L.R. 461 (Man. C.A.), refd to. [para. 96].

Sparks v. Edward Ash Ltd., [1943] K.B. 223 (C.A.), refd to. [para. 96].

Taylor v. Brighton Borough Council, [1947] K.B. 736 (C.A.), refd to. [para. 96].

Carltona Ltd. v. Commissioners of Works et al., [1943] 2 All E.R. 560 (C.A.), consd. [para. 113].

R. v. Harrison, [1977] 1 S.C.R. 238; 8 N.R. 47, consd. [paras. 114, 120].

Brant Dairy Co. Ltd. et al. v. Milk Commission of Ontario and Ontario Milk Marketing Board, [1973] S.C.R. 131, dist. [paras. 115, 120].

H.T.V. Ltd. v. Price Commission, [1976] 1 C.R. 170 (C.A.), refd to. [para. 157].

R. v. Barnsley Metro. Borough Council, ex parte Hook, [1976] 3 All E.R. 452 (C.A.), refd to. [para. 157].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, appld. [paras. 173, 188, 192].

R. v. Rao (1984), 4 O.A.C. 162; 12 C.C.C.(3d) 97 (C.A.), leave to appeal refused [1984] 2 S.C.R. ix; 57 N.R. 238, consd. [paras. 175, 176, 192].

Belgoma Transportation Ltd. v. Director of Employment Standards (1985), 10 O.A.C. 11; 51 O.R.(2d) 509 (C.A.), consd. [paras. 175, 177].

R. v. Quesnel (1985), 12 O.A.C. 165; 24 C.C.C.(3d) 78 (C.A.), leave to appeal refused, [1986] 1 S.C.R. xiii; 68 N.R. 160, consd. [paras. 175, 178].

Bertram S. Miller Ltd. v. Canada, [1986] 3 F.C. 291; 69 N.R. 1 (C.A.), leave to appeal refused, [1986] 2 S.C.R. v; 75 N.R. 159, consd. [paras. 175, 180].

R. v. Bichel (1986), 4 B.C.L.R.(2d) 132 (C.A.), consd. [paras. 175, 179].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 8 [paras. 161 to 200].

Constitution Act, 1867, sect. 91 [paras. 54 to 75]; sect. 91(2) [paras. 28 to 31]; sect. 91(27) [paras. 32 to 53]; sect. 121 [para. 73].

Food and Drugs Act, R.S.C. 1970, c. F-27, sect. 2 [paras. 58, 105, 110]; sect. 3 [para. 18]; sect. 8, sect. 9, sect. 10, sect. 11, sect. 12, sect. 13 [paras. 19, 23]; sect. 14, sect. 15 [para. 19]; sect. 22 [paras. 162 to 200]; sect. 25(1) [para. 1 et seq.]; sect. 25(1)(b) [paras. 23 et seq.]; sect. 25(1)(o)(i) [para. 78]; sect. 25(1)(o)(ii) [para. 1 et seq.]; sect. 25(1)(e), sect. 25(1)(m), sect. 25(1)(o) [para. 23]; sect. 26 [paras. 18, 23, 35]; sect. 27, sect. 28, sect. 29 [para. 23]; sect. 32 [paras. 20, 22].

Food and Drug Regulations, C.R.C. 1978, c. 870, reg. C.01.014, reg. C.01.014(1), reg. C.01.014.2, reg. C.01.014.3, reg. C.01.014.4, reg. C.08.001, reg. C.08.002, reg. C.08.003, reg. C.08.004, reg. C.08.005, reg. C.08. 006, reg. C.08.007, reg. C.08.008, reg. C.08.009, reg. C.08.010, reg. C.08.011 [para. 1 et seq.].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 11, sect. 14, sect. 15 [para. 133].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 12 [para. 67].

Authors and Works Noticed:

Bennion, Statutory Interpretation (1984), pp. 144 [paras. 95, 97]; 204 [para. 97].

de Smith, S.A., Judicial Review of Administrative Action (4th Ed. 1980), pp. 354, 355 [para. 93].

Driedger, Subordinate Legislation (1960), 38 Can. Bar. Rev. 1, p. 2 [para. 94].

Dussault, R. and L. Borgeat, Administrative Law: A Treatise (1985), p. 422 [para. 95].

Garant, Patrice, Droit Administratif, p. 319 [paras. 92, 93].

Hogg, Peter W., Constitutional Law of Canada (2nd Ed. 1985), generally [para. 69]; pp. 379 [paras. 71, 72]; 417 [para. 52].

Law Reform Commission (Canada), Our Criminal Law [para. 33].

Pigeon, L.P., Redaction et Interpretation des Lois, pp. 25, 26 [para. 90].

Counsel:

P.W. Gauthier and C. Carron, for the plaintiffs;

J.M. Mabbutt and J.M. Aubry, for the defendants.

Solicitors of Record:

Ogilvy, Renault, Montreal, Quebec, for the plaintiffs;

F. Iacobucci, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the defendants.

This case was heard in Montréal, Quebec, on December 16, 17 and 18, 1986, before Muldoon, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on September 17, 1987: