Mancuso et al. v. Canada (Minister of National Health) et al., (2014) 460 F.T.R. 25 (FC)

JudgeRussell, J.
CourtFederal Court (Canada)
Case DateJanuary 21, 2014
JurisdictionCanada (Federal)
Citations(2014), 460 F.T.R. 25 (FC);2014 FC 708

Mancuso v. Can. (2014), 460 F.T.R. 25 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. JL.041

Nick Mancuso, the Results Company Inc., David Rowland, Life Choice Ltd. (amalgamated from, rolled into, and continuing on business for and from, E.D. Modern Design Ltd. and E.G.D. Modern Design Ltd.) and Dr. Eldon Dahl and Agnesa Dahl (plaintiffs) v. Minister of National Health and Welfare, Attorney General of Canada, Minister of Public Safety and Emergency Preparedness, Royal Canadian Mounted Police, and Her Majesty the Queen in Right of Canada (defendants)

(T-1754-12; 2014 FC 708; 2014 CF 708)

Indexed As: Mancuso et al. v. Canada (Minister of National Health) et al.

Federal Court

Russell, J.

July 16, 2014.

Summary:

The plaintiffs brought an action challenging provisions of the Food and Drugs Act on constitutional grounds, and challenging the Natural Health Products Regulations on constitutional grounds and as exceeding the authority delegated by the Act. They claimed damages based on alleged Charter breaches and tortious conduct in the implementation and enforcement of the Act and the Regulations. The defendants moved to strike the entire Statement of Claim or the bulk of it, relying on Federal Courts Rules 221(1)(a), (c), (d) and (f). They also sought to remove all of the defendants except Her Majesty the Queen in Right of Canada. The plaintiffs brought a cross-motion seeking to stay the enforcement of ss. 3(1) and 3(2) of the Act and large portions of the Regulations pending the outcome of the action.

The Federal Court struck a portion of the Claim in accordance with its reasons. The plaintiffs were granted leave to amend within 30 days. All defendants were struck from the style of cause except Her Majesty the Queen in Right of Canada. The plaintiffs' motion for a stay was dismissed.

Civil Rights - Topic 8587

Canadian Charter of Rights and Freedoms - Practice - Stay of proceedings or injunction pending litigation of Charter issue - [See Injunctions - Topic 1617.2 ].

Constitutional Law - Topic 2986

Determination of validity of statutes or acts - Practice - Parties - [See Practice - Topic 864 ].

Constitutional Law - Topic 5676

Federal jurisdiction (s. 91) - Regulation of trade and commerce - Food and drug legislation - [See Constitutional Law - Topic 9952 ].

Constitutional Law - Topic 9952

Practice - Pleadings - The plaintiffs brought an action challenging provisions of the Food and Drugs Act on constitutional grounds, and challenging the Natural Health Products Regulations on constitutional grounds and as exceeding the authority delegated by the Act - They claimed damages based on alleged Charter breaches and tortious conduct in the implementation and enforcement of the Act and the Regulations - The defendants moved to strike the entire Statement of Claim or the bulk of it, relying on Federal Courts Rules 221(1)(a), (c), (d) and (f) - They also sought to remove all of the defendants except Her Majesty the Queen in Right of Canada - The plaintiffs brought a cross-motion seeking to stay the enforcement of ss. 3(1) and 3(2) of the Act and large portions of the Regulations pending the outcome of the action - The Federal Court struck a portion of the Claim in accordance with its reasons, with leave to amend - All defendants were struck from the style of cause except Her Majesty the Queen in Right of Canada - The plaintiffs' motion for a stay was dismissed.

Crown - Topic 4157

Actions by and against Crown in right of Canada - Practice - Proper Crown party - [See Practice - Topic 864 ].

Food and Drug Control - Topic 1002

Drugs - General - What constitutes - [See Constitutional Law - Topic 9952 ].

Injunctions - Topic 1617.2

Interlocutory or interim injunctions - Preventing statute enforcement or implementation - The plaintiffs brought an action challenging provisions of the Food and Drugs Act and the Natural Health Products Regulations - They claimed damages based on alleged Charter breaches and tortious conduct in the implementation and enforcement of the Act and the Regulations, and moved to stay the enforcement of ss. 3(1) and 3(2) of the Act and stipulated sections of the Regulations pending the outcome of the action - The Federal Court dismissed the motion - The plaintiffs had yet to disclose a serious issue to be tried - In any event, there was no convincing evidence of irreversible harm established on a balance or probabilities, and the evidence presented by the plaintiffs did not overcome the presumption that the Act and the Regulations served the public good, so that the balance of convenience favoured the plaintiffs - "[E]ven a prima facie Charter breach leaves it open to the Crown to justify that breach under s. 1 of the Charter (and it is difficult to see how the Court could assess this issue at an interlocutory stage such as the present), and even a temporary staying of the legislative and regulatory provision in question could impact the well-being of Canadians in general in serious ways and in advance of any finding of constitutionality. The evidentiary record before me provides little to support such a serious interference with the wording of the Act and the Regulations." - See paragraphs 183 and 184.

Practice - Topic 864

Parties - Striking out parties - Party not necessary and proper - The plaintiffs brought an action challenging certain provisions of the Food and Drugs Act and the Natural Health Products Regulations on constitutional grounds, and claiming damages based on alleged Charter breaches and tortious conduct in the implementation and enforcement of the Act and the Regulations - The defendants argued that the only proper defendant was Her Majesty the Queen in Right of Canada, because the claim disclosed no material facts alleging any wrongdoing on the part of the three named Ministers, the Minister of National Health and Welfare did not exist, the naming of the Attorney General of Canada was redundant, and the RCMP was not a suable entity - The Federal Court held that Her Majesty the Queen in Right of Canada was the only proper defendant - There was nothing in the claim that involved the Minister of Public Safety and Emergency Preparedness, "or which explained how the Minister of National Health and Welfare (who does not exist) and the RCMP (who cannot be sued) can have any relevance or standing in a constitutional challenge, or why it is necessary to name the Attorney General of Canada in addition to the Crown in order to obtain relief under s. 24 of the Constitution Act, 1982. Ministers cannot be sued in their representative capacity, and there is no indication that they are being sued in their personal capacity" - See paragraphs 177 to 182.

Practice - Topic 1300

Pleadings - General principles - Stating material facts - [See Practice - Topic 1466 ].

Practice - Topic 1302

Pleadings - General principles - Purpose of pleadings - [See Practice - Topic 1461 ].

Practice - Topic 1311

Pleadings - Questions of law - Pleading the Charter - The plaintiffs brought an action challenging certain provisions of the Food and Drugs Act and the Natural Health Products Regulations on constitutional grounds, and claiming damages based on alleged Charter breaches - A portion of the claim related to allegations of Charter breaches by the corporate plaintiffs, including breach of "the procedural safeguards of s. 7 of the Charter in the context of (quasi) criminal prosecution and regulatory scheme" - The Federal Court struck that portion of the claim - The question of whether a corporation could bring a proactive challenge to a law on s. 7 grounds had been settled by Dywidag Systems (1990) (S.C.C.) - In any event, the corporate plaintiffs appeared to be claiming procedural protections under s. 7 in complete abstraction from the question of whether anyone's s. 7 rights were violated - It was clear that such an argument had no chance of success, as the procedural protections under s. 7 came into play only where an infringement of life, liberty or security of the person had been established - See paragraphs 171 to 173.

Practice - Topic 1311

Pleadings - Questions of law - Pleading the Charter - The plaintiffs brought an action challenging certain provisions of the Food and Drugs Act and the Natural Health Products Regulations on constitutional grounds, and claiming damages based on alleged Charter breaches - The corporate plaintiffs claimed that their "right to freedom of expression and communication as guaranteed under s. 2 of the Charter" had been breached - The Federal Court struck that claim given the absence of a factual foundation - "How exactly have the rights of the corporate Plaintiffs to freedom of expression been infringed? There are glimmers of this earlier in the Claim ... but in my view, the alleged breaches of the corporate Plaintiffs' s. 2(b) Charter rights have not been pleaded with sufficient detail to allow the Court to adjudicate the matter. ... [T]he presentation of a factual foundation is essential to the proper adjudication of Charter issues." - See paragraphs 174 and 176.

Practice - Topic 1311

Pleadings - Questions of law - Pleading the Charter - The plaintiffs brought an action challenging certain provisions of the Food and Drugs Act and the Natural Health Products Regulations on constitutional grounds, and claiming damages based on alleged Charter breaches - A portion of the claim related to allegations of Charter breaches by the corporate plaintiffs - With respect to the s. 15 claim, the plaintiffs pled "the right to equality, as a structural imperative of the underlying principle of the Constitution Act, 1867" - The Federal Court struck the claim, given the absence of a factual foundation - The claim "amounts to an appeal to unwritten constitutional principles, which have been discussed by the Supreme Court in a number of cases. It is not entirely clear whether the Plaintiffs are advancing 'equality' as an independent principle or as a component of the rule of law. ... Whether and in what circumstances such unwritten principles can be used as a basis for invalidating legislation on constitutional grounds remains a debatable point ... [I]t is not clear whether this is the position the Plaintiffs are advancing. They say they are entitled to equality, as a structural imperative of the underlying principle of the Constitution Act, 1867, but they do not tell the Court or the Defendants how that right has been breached, or what remedies should flow." - See paragraph 175.

Practice - Topic 1461

Pleadings - Statement of claim - General - Pleading multiple claims - The plaintiffs' claim constituted a challenge to the Food and Drugs Act and the Natural Health Products Regulations - They claimed damages as a result of alleged Charter breaches as well as heavy-handed and tortious conduct by government officials and the RCMP in enforcing the Act and the Regulations - The defendants moved to strike the claim in its entirety - The Federal Court highlighted a general challenge in evaluating the pleadings - "In effect, we have two separate claims: a) Claims for relief based upon individual experience; and b) A general attack on the scheme of the Act and the Regulations. In some cases, the same facts may go toward both. This is not prohibited. In general, it is sufficient for a party to plead the material facts and counsel is then at liberty to present in argument any legal consequences which the facts support ... . Still, the Plaintiffs bear the responsibility of pleading the material facts in a manner that discloses a cause of action recognized in law ... . The pleadings play an important role in providing notice and defining the issues to be tried, and the Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action ... . Rather, '[e]ach constituent element of each cause of action must be pleaded with sufficient particularity'" - See paragraph 103.

Practice - Topic 1462

Pleadings - Statement of claim - General - Requirement of stating basis for claim - The Federal Court struck the pleadings that methods of enforcement of the Food and Drugs Act and the Natural Health Products Regulations were in excess and an abuse of authority, as well as the allegations of malicious intent and improper purpose or bad faith in relation to enforcement actions against the plaintiffs - If the plaintiffs wished to maintain an action for damages arising from the enforcement of the portions of the Act and the Regulations which they claimed were ultra vires and unconstitutional, "they will need to plead, in a manner that conforms to the rules of pleading, state conduct under those provisions that was 'clearly wrong, in bad faith or an abuse of power.'" - See paragraphs 78 to 83.

Practice - Topic 1463

Pleadings - Statement of claim - General - Requirement of disclosing cause of action - [See Practice - Topic 1461 ].

Practice - Topic 1466

Pleadings - Statement of claim - General - Omission of essential facts - Effect of - The plaintiffs claimed damages based on alleged Charter breaches and tortious conduct in the implementation and enforcement of the Food and Drugs Act and the Natural Health Products Regulations - The defendants objected to certain paragraphs of the claim as being bare general assertions without supporting facts - Those paragraphs amounted to a pleading that the defendants' enforcement actions were an abuse of authority and/or conducted in bad faith - The Federal Court struck the paragraphs - The paragraphs were drafted "though the enforcement methods complained of are the same in every case of enforcement and are always an excess or abuse of authority carried out for the same purpose in each case. The Plaintiffs cannot possibly know this ... A claim that does not plead sufficient material facts for the defendant to know how to answer is a vexatious pleading ... [N]or can an action be brought on speculation hoping that sufficient facts will be obtained during discovery" - In addition, one of the paragraphs alleged that Health Canada officials repeatedly engaged in a practice of misleading the RCMP, which was a serious allegation of bad faith that would need to be pleaded with much greater particularity to avoid being vexatious - See paragraphs 104 to 107.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - The plaintiffs' claim constituted a challenge to the Food and Drugs Act and the Natural Health Products Regulations - The defendants objected to certain paragraphs of the claim on the grounds that the plaintiff Rowland (an advocate of "alternative" medicine who developed a line of dietary supplements) was attempting to use the doctrine of reasonable expectations as a sword in a context where, even if the facts pleaded were true, all he was saying was that his personal expectations were not met - The Federal Court agreed that the doctrine of reasonable/legitimate expectations could not be used in that way and that no valid basis was pleaded and no reasonable cause of action was set out in those paragraphs - None of the plaintiffs could have any legitimate expectation that the Government of Canada would change the Regulations or take any other action based on a public announcement by a Minister of the Crown that he intended to follow the recommendations of a Parliamentary Committee - In the result, the Court struck those paragraphs - See paragraph 108.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - The plaintiffs brought an action challenging certain provisions of the Food and Drugs Act and the Natural Health Products Regulations on constitutional grounds, and claiming damages based on alleged Charter breaches - The plaintiff Mancuso pleaded that the entirety of the "current scheme" violated his rights under ss. 2, 7 and 15 of the Charter - The defendants objected to Mancuso's Charter claims as presenting no reasonable prospect for success - The claims were composed of bald assertions of Charter infringements unsupported by materials facts - Mancuso failed to specify the health product(s) that were not made available to him as a result of the Act or the Regulations, or that he had unsuccessfully taken steps to obtain any such products - He also failed to plead the constituent elements of the Charter violations he asserted - The Federal Court agreed with the defendants and struck the Charter right claims - See paragraphs 109 and 110.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - The plaintiffs brought an action challenging certain provisions of the Food and Drugs Act and the Natural Health Products Regulations on constitutional grounds, and claiming damages based on alleged Charter breaches - Two of the plaintiffs (the Dahls) alleged unlawful detention "contrary to ss. 7, 8 and 9 of the Charter" during the prolonged search of their home by Health Canada agents - They also alleged that Health Canada refused to remove from its website two warnings that the Dahls' products were contaminated with bacteria and unsafe, even though the products were later licensed as "proven safe" - The Federal Court struck those allegations - "The Dahls have not demonstrated in their pleadings that there is anything about the challenged Act and Regulations that is essential to the disposition of their claims of unlawful detention or negligence in warning the public about their products. These are distinct tort (and perhaps Charter in the former case) claims that have nothing to do with a federally enacted law, and nothing to do with the broader challenge the Plaintiffs are trying to make to the Act and Regulations in their Claim. If the Dahls' wish to pursue those allegations, they must do so in a provincial superior court." - See paragraphs 162 to 165.

Practice - Topic 2230.3

Pleadings - Striking out pleadings - Grounds - Failure to plead material facts - [See Practice - Topic 1466 ].

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - [See Practice - Topic 1466 ].

Practice - Topic 2239.1

Pleadings - Striking out pleadings - Grounds - Abuse of process - Hopeless suit - The plaintiffs' claim constituted a challenge to the Food and Drugs Act and the Natural Health Products Regulations - The defendants objected to the claims of three of the plaintiffs (Dr. Dahl, his wife, and their company) as an abuse of process and as a collateral attack upon judicial decisions made in previous proceedings - The defendants alleged that paragraphs 40 to 101 of the statement of claim were premised on the assertion that, contrary to the findings of two trial judges and their own pleas of guilt, those plaintiffs were subject to unlawful searches and had been wrongly convicted under the Food and Drugs Act and the Controlled Drugs and Substances Act - Dr. Dahl asserted that he now had a criminal record "due to the ultra vires, unconstitutional Regulations and their excessive and abusive enforcement by the Defendants' officials" - The Federal Court struck paragraphs 56 to 93, and any references to wrongful conviction, malicious prosecution, false advisories, or unlawful searches appearing elsewhere in the claim in reference to the allegations in those paragraphs - Paragraphs 40 to 55 (background information about the Dahls, their business endeavours and encounters with Health Canada) seemed inoffensive, but they did not disclose any cause of action either on their own or in connection with any other remaining portions of the Claim, and were struck on that basis - See paragraphs 136 to 167.

Practice - Topic 2240.1

Pleadings - Striking out pleadings - Grounds - Claim based on statute alleged to be ultra vires - [See Practice - Topic 1461 ].

Practice - Topic 5777

Judgments and orders - Interlocutory or interim orders or judgments - When available - [See Injunctions - Topic 1617.2 ].

Statutes - Topic 4513

Operation and effect - General principles - Suspension of operation - [See Injunctions - Topic 1617.2 ].

Cases Noticed:

Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887, refd to. [para. 11].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 16].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 16].

Sivak et al. v. Canada (Minister of Citizenship and Immigration) (2012), 406 F.T.R. 115; 2012 FC 272, refd to. [para. 19].

George Estate v. Harris et al., [2000] O.T.C. Uned. 404; 97 A.C.W.S.(3d) 225 (Sup. Ct.), refd to. [para. 19].

Carten et al. v. Canada et al. (2009), 358 F.T.R. 118; 2009 FC 1233 (Protho.), affd. [2010] F.T.R. Uned. 785; 2010 FC 857, refd to. [para. 20].

Simon v. Canada (2011), 410 N.R. 374; 2011 FCA 6, refd to. [para. 20].

Merchant Law Group et al. v. Canada Revenue Agency et al. (2010), 405 N.R. 160; 2010 FCA 184, refd to. [para. 20].

Johnson v. Royal Canadian Mounted Police (R.C.M.P.) et al., [2002] F.T.R. Uned. 618; 2002 FCT 917, refd to. [para. 20].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [para. 23].

Chaudhary v. Canada (Attorney General) et al., [2010] O.T.C. Uned. 6092; 2010 ONSC 6092, refd to. [para. 28].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 29].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 29].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 29].

Zündel v. Canada, [2005] F.T.R. Uned. C11; 2005 FC 1612, affd. (2006), 358 N.R. 161; 2006 FCA 356, refd to. [para. 29].

Perron v. Canada (Attorney General), [2003] O.T.C. 275; [2003] 3 C.N.L.R. 198 (Sup. Ct.), refd to. [para. 29].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 31].

Demeter v. British Pacific Life Insurance Co. et al. (1984), 7 O.A.C. 143; 13 D.L.R.(4th) 318 (C.A.), refd to. [para. 31].

Wolf v. Ontario (Attorney General) et al., [2012] O.T.C. Uned. 72; 2012 ONSC 72, refd to. [para. 31].

Sauve v. Royal Canadian Mounted Police et al., [2010] F.T.R. Uned. 165; 2010 FC 217, affd. in part (2011), 420 N.R. 79; 2011 FCA 141, refd to. [para. 31].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 33].

Burton v. Canada (1996), 65 A.C.W.S.(3d) 20 (F.C.T.D.), refd to. [para. 34].

Mandate Erectors and Welding Ltd. et al. v. Canada (1996), 118 F.T.R. 290 (T.D.), refd to. [para. 35].

Cairns et al. v. Farm Credit Corp. et al., [1992] 2 F.C. 115; 49 F.T.R. 308 (T.D.), refd to. [para. 35].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 37].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609, refd to. [para. 37].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 37].

Dumont et al. v. Canada (Attorney General) and Manitoba (Attorney General), [1990] 1 S.C.R. 279; 105 N.R. 228; 65 Man.R.(2d) 182, refd to. [para. 37].

Trendsetter Developments Ltd. et al. v. Ottawa Financial Corp. (1989), 32 O.A.C. 327 (C.A.), refd to. [para. 37].

Nash v. Ontario (1995), 27 O.R.(3d) 1 (C.A.), refd to. [para. 37].

Arsenault et al. v. Canada (2009), 395 N.R. 377; 2009 FCA 242, refd to. [para. 37].

Hanson v. Bank of Nova Scotia et al. (1994), 74 O.A.C. 145; 19 O.R.(3d) 142 (C.A.), refd to. [para. 37].

Adams-Smith v. Christian Horizons, [1997] O.T.C. Uned. 431; 14 C.P.C.(4th) 78 (Gen. Div.), refd to. [para. 37].

Miller v. Wiwchairyk et al. (1997), 34 O.T.C. 87; 34 O.R.(3d) 640 (Gen. Div.), refd to. [para. 37].

Belanger (R.D.) & Associates Ltd. et al. v. Stadium Corp. of Ontario Ltd. and Bitove Corp. (1991), 57 O.A.C. 81; 5 O.R.(3d) 778 (C.A.), refd to. [para. 37].

Dalex Co. v. Schwartz Levitsky Feldman (1994), 19 O.R.(3d) 463 (Gen. Div.), refd to. [para. 37].

S.G. v. J.C.-G. et al. (2001), 150 O.A.C. 305; 56 O.R.(3d) 215 (C.A.), refd to. [para. 37].

Toronto-Dominion Bank v. Deloitte, Haskins & Sells (1991), 5 O.R.(3d) 417 (Gen. Div.), refd to. [para. 37].

Liebmann v. Canada (Minister of National Defence), [1994] 2 F.C. 3; 69 F.T.R. 81 (T.D.), refd to. [para. 38].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 40].

Singh (Yadwinder) v. Canada (Minister of Citizenship and Immigration) et al. (2010), 372 F.T.R. 40; 2010 FC 757, refd to. [para. 40].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 40].

Manitoba Métis Federation Inc. v. Canada (Attorney General) (2013), 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 40].

Edwards v. Canada (2000), 181 F.T.R. 219; 94 A.C.W.S.(3d) 922 (T.D.), refd to. [para. 40].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 40].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 40].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 42].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 42].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 42].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25, refd to. [para. 42].

TeleZone Inc. v. Canada (Attorney General) (2010), 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 46].

McArthur v. Canada (Attorney General) (2010), 410 N.R. 55; 273 O.A.C. 55; 2010 SCC 63, refd to. [para. 46].

Parrish & Heimbecker Ltd. v. Canada (Minister of Agriculture and Agri-Food) et al. (2010), 410 N.R. 72; 2010 SCC 64, refd to. [para. 46].

Nu-Pharm Inc. v. Canada (Attorney General) et al. (2010), 410 N.R. 82; 2010 SCC 65, refd to. [para. 46].

Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada et al. (2010), 410 N.R. 94; 2010 SCC 66, refd to. [para. 46].

Manuge v. Canada (2010), 410 N.R. 113; 2010 SCC 67, refd to. [para. 46].

Sivak et al. v. Canada (Minister of Citizenship and Immigration) (2011), 387 F.T.R. 265; 2011 FC 402, refd to. [para. 46].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 47].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 47].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 47].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 47].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 47].

Bolling v. Sharpe (1954), 347 U.S. 497, refd to. [para. 48].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 48].

Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302; 6 Imm. L.R.(2d) 123 (F.C.A.), refd to. [para. 49].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 49].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 49].

Apotex Inc. v. Governor-in-Council et al. (2007), 370 N.R. 336; 2007 FCA 374, refd to. [para. 50].

Canada (Attorney General) et al. v. Information Commissioner (Can.) (2001), 268 N.R. 328; 2001 FCA 25, refd to. [para. 57].

International Longshore and Warehouse Union, Canada et al. v. Canada (Attorney General) et al. (2008), 371 N.R. 357; 2008 FCA 3, refd to. [para. 57].

Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764; 262 N.R. 201; 271 A.R. 201; 234 W.A.C. 201; 2000 SCC 57, refd to. [para. 58].

Evangelical Fellowship of Canada et al. v. Canadian Musical Reproduction Rights Agency et al., [2000] 1 F.C. 586; 246 N.R. 356 (C.A.), refd to. [para. 60].

Friends of the Earth v. Canada (Governor-in-Council) et al., [2009] 3 F.C.R. 201; 336 F.T.R. 117 (F.C.), affd. (2009), 397 N.R. 293; 2009 FCA 297, refd to. [para. 72].

Canadian Union of Public Employees et al. v. Canada (Minister of Health) (2004), 261 F.T.R. 237; 2004 FC 1334, refd to. [para. 72].

Ward et al. v. Samson Cree Nation No. 444 et al. (1999), 247 N.R. 254 (F.C.A.), refd to. [para. 74].

Hinton v. Canada (Minister of Citizenship and Immigration) (2008), 379 N.R. 336; 2008 FCA 215, refd to. [para. 74].

Conohan et al. v. Cooperators, [2002] 3 F.C. 421; 286 N.R. 364; 2002 FCA 60, refd to. [para. 103].

Kisikawpimootewin v. Canada, [2004] F.T.R. Uned. 818; 2004 FC 1426, refd to. [para. 105].

Murray v. Public Service Commission et al. (1978), 21 N.R. 230 (F.C.A.), refd to. [para. 105].

AstraZeneca Canada Inc. et al. v. Novopharm Ltd. (2009), 359 F.T.R. 279; 2009 FC 1209, affd. (2010), 402 N.R. 95; 2010 FCA 112, refd to. [para. 105].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 108].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 108].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 108].

Reference Re Canada Assistance Plan Act (B.C.) - see Reference Re Constitutional Question Act (B.C.).

Welbridge Holdings Ltd. v. Winnipeg, [1971] S.C.R. 957, refd to. [para. 131].

Mahoney v. Canada (1986), 4 F.T.R. 259 (T.D.), refd to. [para. 131].

Kwong Estate v. Alberta et al. (1979), 14 A.R. 120; 96 D.L.R.(3d) 214 (C.A.), refd to. [para. 131].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 149].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 149].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201, refd to. [para. 149].

R. v. Douglas (C.S.) (2012), 410 Sask.R. 19; 2012 SKQB 250, refd to. [para. 162].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241; 28 D.L.R.(4th) 641, refd to. [para. 164].

Dywidag Systems International Canada Ltd. v. Zutphen Brothers Construction Ltd., [1990] 1 S.C.R. 705; 106 N.R. 11; 97 N.S.R.(2d) 181; 258 A.P.R. 181, refd to. [para. 172].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 172].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, refd to. [para. 172].

Main Rehabilitation Co. v. Minister of National Revenue (2004), 329 N.R. 248; 2004 FCA 403, refd to. [para. 173].

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 174].

Ford v. Québec (Procureur général) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

JTI-Macdonald Corp. et al. v. Canada (Attorney General), [2007] 2 S.C.R. 610; 364 N.R. 89, refd to. [para. 174].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 175].

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. l; 95 A.P.R. 1, refd to. [para. 175].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1, refd to. [para. 175].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 176].

Statutes Noticed:

Federal Courts Rules, SOR/98-106, rule 221(1) [para. 16].

Food and Drugs Act, R.S.C. 1985, c. F-27, generally [para. 1].

Food and Drugs Act Regulations (Can.), Natural Health Products Regulations, SOR/2003-196, generally [para. 1].

Food and Drug Regulations - see Food and Drugs Act Regulations (Can.).

Authors and Works Noticed:

Hogg, Peter, Constitutional Law of Canada (5th Ed. 2007), pp. 15-53 [para. 175]; 47-5 [para. 172]; 59-12 [para. 33].

Klar, Lewis N., Tort Law (5th Ed. 2012), p. 67 [para. 158].

MacIntosh, Donald A., Fundamentals of the Criminal Justice System (1989), generally [para. 48]; p. 7 [para. 175].

Counsel:

Rocco Galati, for the plaintiffs;

Sean Gaudet and Andrew Law, for the defendants.

Solicitors of Record:

Rocco Galati Law Firm Professional Corporation, Toronto, Ontario, for the plaintiffs;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the defendants.

These motions were heard at Toronto, Ontario, on January 21, 2014, before Russell, J., of the Federal Court, who delivered the following judgment and reasons, dated July 16, 2014.

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