Mancuso v. Canada (National Health and Welfare)

Mancuso v. Canada (National Health and Welfare)
Court (s) Database
Federal Court Decisions
Date
2014-07-16
Neutral citation
2014 FC 708
File numbers
T-1754-12
Decision Content
Date: 20140716
Docket: T-1754-12
Citation: 2014 FC 708
Ottawa, Ontario, July 16, 2014
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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
and
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
JUDGMENT AND REASONS
INTRODUCTION [1] The Plaintiffs have brought an action challenging certain provisions of the Food and Drugs Act, RSC, 1985, c F-27 [Act] on constitutional grounds, challenging the Natural Health Products Regulations, SOR/2003-196 [Regulations] on constitutional grounds and as exceeding the authority delegated by the Act, and claiming damages based on alleged Charter breaches and tortious conduct in the implementation and enforcement of the Act and the Regulations. This judgment relates to two motions brought in the context of that action. The Defendants have brought a motion to strike the Statement of Claim [Claim] in its entirety, or in the alternative to strike certain paragraphs that amount to the bulk of the Claim (paragraphs 1(a), 1(b), 1(c), 1(e), 2 – 29, 34, 36 and 37-100). They also seek to amend the Claim to remove all of the Defendants except Her Majesty the Queen in Right of Canada. The Plaintiffs have brought a cross-motion seeking to stay the enforcement of s. 3(1) and (2) of the Act and large portions of the Regulations pending the outcome of the action.
BACKGROUND [2] The Plaintiffs are present or past users, manufacturers or distributors of products that fall within the definition of “natural health product” as set out in the Regulations [natural health products], which they describe as naturally occurring dietary food supplements, nutritional food supplements and vitamins. They challenge the validity and the enforcement of the Regulations and certain sections of the Act on a number of grounds, including that:
the federal government does not have the constitutional authority to regulate natural health substances under the division of powers set out in the Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3, reprinted in RSC 1985, App II, No 5 [Constitution Act 1867]; Parliament never intended the definition of “drug” in the Act to apply to natural health products and therefore the Regulations exceed the authority delegated by the Act; and the enactment and enforcement of the Regulations and the application of certain sections of the Act to natural health products have infringed their rights under ss. 2(a), 2(b), 7, 8, 9 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 [Charter].
[3] The Plaintiffs also allege that they have suffered damages as a result of these alleged Charter breaches as well as heavy-handed and tortious conduct by government officials and the Royal Canadian Mounted Police [RCMP] in enforcing the Act and the Regulations.
[4] With respect to the constitutional division of powers, the Claim states that Parliament has the jurisdiction to regulate any product that has a potential health risk, but Parliament cannot extend this jurisdiction to products which pose no or a de minimis health risk, so that the Regulations are therefore ultra vires the jurisdiction of Parliament (Claim, at para 16(h)).
[5] The Plaintiff Nick Mancuso [Mancuso] is a Canadian actor who says that he has, throughout his life, relied heavily on dietary food supplements and vitamins as a conscious, informed choice regarding his health. He views the free choice to use these products as part of his belief system in terms of how to maintain good health and “in general, with respect to his bodily and psychological integrity.” He resists the notion that the state can “arbitrarily and selectively dictate” what dietary supplements or vitamins can be sold to him, and alleges that restrictions on the sale of natural food products and the communication of health claims about them violate his rights under ss. 2(a), 2(b), 7 and 15 of the Charter and have caused him mental distress.
[6] The Plaintiff David Rowland [Rowland] is an advocate of “alternative” medicine who says that he has been involved for many years with the development of natural health products. A line of dietary supplements developed by Rowland – the Vitamost® line – are or were distributed by The Results Company Inc [the Results Company], another Plaintiff described as “a small family owned business.” Rowland and the Results Company allege that the product and site licensing regime imposed by the Regulations – the National Products Number [NPN] licensing scheme – has severely restricted the sale of these supplements. They say the NPN regime is “oppressive and totally unnecessary” because the products are safe, and that the Regulations are “unconstitutional and ultra vires the Act.”
[7] Rowland and the Results Company allege that Health Canada has refused licences for some of their products and has withheld approval for others, causing a steep decline in their business. They allege that the NPN regime is a form of censorship that prohibits the sale of natural health products and decides which health claims can be made about them, prohibiting “all other true claims.” They say that “[i]n no other industry are suppliers prevented from telling their customers the truth about what their products do.” They also allege that the enforcement of the Regulations has been “excessive and abusive,” employing “para-military methods of enforcement.” They allege that they have suffered damage to reputation and economic losses, and Rowland alleges breaches of his rights under ss. 2, 7 and 15 of the Charter “as claimed and articulated with respect to Nick Mancuso.”
[8] The Plaintiff Eldon Dahl [Dr. Dahl] has been involved in importing, exporting, preparing and distributing natural health products since purchasing an existing health food store in West Vancouver in 1984. He says he is qualified as a Naturopathic Physician. The Plaintiff Agnesa Dahl [Mrs. Dahl] is his wife, and the Plaintiff Life Choice Ltd [Life Choice] is their company, which was formed from the amalgamation of companies they previously owned or controlled (E.D. Modern Design Ltd and E.G.D. Modern Design Ltd). The Dahls and the predecessor companies of Life Choice have been subject to enforcement action under the Act and the Regulations on a number of occasions, including searches and seizures dating back to 2001. In 2004, Dr. Dahl and his then company (E.D. Internal Health) were charged with 42 counts of violating the Customs Act, RSC, 1985, c 1 (2nd Supp.) [Customs Act] and the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA]. Dr. Dahl and E.D. Internal Health were found guilty on 33 counts and received a conditional sentence and fines: R v Dahl, 120998, March 26th 2004 (BC Prov Ct) [R v Dahl #1]; R v Dahl, 120998-C3, May 26, 2004 (BC Prov Ct) [R v Dahl #2]. In early 2010, the Dahls and their company, E.G.D. Modern Design Ltd, were charged with 33 counts of violating the Act and the CDSA. The charges against the Dahls were stayed due to delay in January 2013, while E.G.D. Modern Design pleaded guilty on 11 counts (including 8 under the Act) and was sentenced to pay fines totalling $125,250: R v Dahl, 2013 ABQB 54 [R v Dahl #6]; trial excerpt from R v Eldon Garth Dahl, Agnesa Dahl and EDG Modern Design Ltd, 100237221Q3 (Alta QB) [R v Dahl #7] at pp. 52-104 (Defendant’s Motion Record, at 559-611).
[9] The Dahls allege violations of their rights under ss. 7, 8 and 9 of the Charter in connection with the searches and seizures preceding the charges outlined above, which they characterize as excessive and abusive, including a “heavily armed raid” resulting in the seizure of products and a search of their home in which they allege they were unlawfully detained and a gun was pointed at Mrs. Dahl’s chest. They allege that Dr. Dahl was “falsely convicted” in 2004, and that they were “falsely and maliciously charged […] and prosecuted” beginning in 2010 “for the possession and sale of perfectly safe, natural products… [which] are arbitrarily, vaguely, and overly-broadly treated as ‘drugs’ and falsely and maliciously enforced as such.” They say that Dr. Dahl has an unwarranted criminal record “for not only something he was not responsible for, but also due to the ultra vires, unconstitutional Regulations and their excessive and abusive enforcement by the Defendants’ officials” (emphasis in original). The Dahls and Life Choice also allege that Health Canada issued unfounded Health Warning Bulletins on its website regarding safety concerns with Dr. Dahl’s and E.G.D. Modern Design’s products, without notifying them, and has refused to remove these warnings even after the products were proven to be safe.
[10] The Dahls state that they have suffered loss of reputation, mental distress, and financial losses as a result of these events. In addition to the alleged breaches of ss. 7, 8 and 9 of the Charter, the Dahls claim that they “have also had their Charter rights, as consumers, manufacturers, and distributors, personally breached under ss. 2, 7 and 15 of the Charter for the same reasons and rationale as set out with respect to Nick Mancuso and David Rowland.”
[11] Finally, the Claim states that in addition to the various constitutional breaches alleged by the “biological” Plaintiffs, the corporate Plaintiffs claim breaches of the following Charter and constitutional rights:
a) the right to freedom of expression and communication as guaranteed under s. 2 of the Charter;
b) the procedural safeguards of s. 7 of the Charter in the context of (quasi) criminal prosecution and regulatory scheme;
c) the right to equality, as a structural imperative of the underlying principle of the Constitution Act, 1867 as enunciated by the Supreme Court of Canada in Winner v SMT (Eastern) Ltd, [1951] SCR 887 [Winner] , which right, above and beyond s. 15 of the Charter, is also involved by the biological Plaintiffs.
[12] The Defendants argue that the Claim should be struck in its entirety without leave to amend. Should any portion of it proceed, they say that the only proper Defendant is Her Majesty the Queen in Right of Canada. The Plaintiffs argue that not only should the Claim proceed but, in addition, the Court should stay the enforcement of s. 3(1) and (2) of the Act and ss. 44, 63-83, 87, 91, 93, 94, 98 and 108-115 of the Regulations pending the outcome of the action.
ISSUES [13] The issues that arise in this proceeding are:
1. Should the Claim, or any portion of it, be struck?
2. If the Claim is struck, should the Court grant leave to amend it?
3. If any portion of the Claim is permitted to proceed, who are the proper defendants?
4. Should the Court stay the enforcement of s. 3(1) and (2) of the Act and ss. 44, 63-83, 87, 91, 93, 94, 98 and 108-115 of the Regulations pending the outcome of the action?
ARGUMENTS Defendants’ Motion to Strike the Claim Arguments of the Defendants [14] The Defendants argue that the Claim should be struck in its entirety without leave to amend. They say it is in fact three separate claims combined together into one unduly complex, prolix and convoluted pleading that is so undefined and broad in scope as to be judicially unmanageable. They also argue that it does not meet the basic rules of pleading in that it fails to set out a concise statement of the material facts relied upon, is replete with bald allegations and colourful rhetoric, and pleads evidence instead of material facts in many instances. The Defendants say it is not possible for them to answer the allegations contained in the pleading by preparing a statement of defence.
[15] The Defendants also argue that the Plaintiffs are asking the Court to make findings inconsistent with previous findings made by other courts in different proceedings, and are attempting to re-litigate matters that were, or ought to have been, raised in earlier proceedings. As such, they say the Claim is an abuse of process. In addition, the Defendants argue that the corporate Plaintiffs are asserting violations of Charter provisions they are not entitled to invoke, all of the Plaintiffs are seeking prerogative relief (specifically orders in the nature of prohibition) that cannot be obtained in an action, and the Claim names improper and unnecessary parties.
[16] The Defendants acknowledge that, for the purposes of this motion, the allegations set out in the Claim are deemed to be proven unless they are incapable of proof. They state that the test for striking out pleadings under Rule 221(1)(a) of the Federal Court Rules, SOR/98-106 [Rules] is whether it is plain and obvious, assuming the facts pleaded to be true, that the claim discloses no reasonable cause of action – that is, it has no reasonable prospect for success: Hunt v Carey Canada Inc, [1990] 2 SCR 959 at para 18 [Hunt]; R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17 [Imperial Tobacco]. They also point out that Rule 221 states a number of other grounds upon which a pleading in an action may be struck:
221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it
(a) discloses no reasonable cause of action or defence, as the case may be,
(b) is immaterial or redundant,
(c) is scandalous, frivolous or vexatious,
(d) may prejudice or delay the fair trial of the action,
(e) constitutes a departure from a previous pleading, or
(f) is otherwise an abuse of the process of the Court,
and may order the action be dismissed or judgment entered accordingly.
[17] The Defendants state that the present motion relies upon subrules 221(a), (c), (d), and (f).
[18] With respect to the argument that the Claim is scandalous, frivolous and vexatious (Rule 221(c)) and will delay the fair trial of the action (Rule 221(d)), the Defendants say that the Claim fails to meet the basic rules of pleading, is based upon bald assertions that are unsupported by any material facts and, taken as a whole, is a lengthy and disorganized diatribe in favour of de-regulation of the production, distribution, sale and consumption of natural health products.
[19] The purpose of pleadings, the Defendants argue, is to clearly define the issues in dispute and give fair notice of the case to be met by the other side. Pleadings establish a landmark by which the parties and the court can determine the relevancy of evidence, both on discovery and at trial: Sivak v Canada, 2012 FC 272 at para 11 [Sivak #2]. Pleadings that are irrelevant, immaterial, redundant, argumentative and/or inserted for colour should be struck pursuant to Rule 221(c), and a pleading should also be struck as scandalous where it contains unfounded and inflammatory attacks on the integrity of a party: Sivak #2, above, at para 89; George v Harris, [2000] OJ No 1762 at para 18, 97 ACWS (3d) 225 [George].
[20] The Defendants note that there are four basic requirements of pleading. Every pleading must: (a) state facts and not merely conclusions of law; (b) include material facts; (c) state facts and not the evidence by which they are to be proven; and (d) state facts concisely in a summary form: Carten v Canada, 2009 FC 1233 at para 36, aff’d by 2010 FC 857. A plaintiff is required to plead with sufficient particularity the constituent elements of every cause of action raised, and cannot plead bare assertions without supporting facts, as this may prejudice the trial of the action: Simon v Canada, 2011 FCA 6 at para 18 [Simon]; Merchant Law Group v Canada (Revenue Agency), 2010 FCA 184 at para 34 [Merchant Law]; Johnson v Canada (Royal Canadian Mounted Police), 2002 FCT 917 at paras 24-25 [Johnson].
[21] The Defendants point to examples of what they characterize as bald assertions unsupported by any material facts in paragraphs 6, 7, 16(t), 16(y), 35 and 36 of the Claim. They state that these are “merely examples” and that it is impossible for them to respond to “bald, vague, over-generalized, bombastic assertions.” They argue that the Claim does not set out concise statements of material facts in support of recognizable causes of action in law, and is therefore not a proper pleading.
[22] With respect to the allegations of Mancuso (paragraphs 24-30 of the Claim), the Defendants say that while he claims that the regulatory schemes enforced by Health Canada officials have curtailed and eliminated the availability of “many” of the “safe products” that he seeks to consume, he has not identified any specific dietary food supplements and vitamins to which he has been denied access. In addition, while he alleges that the current regulatory scheme violates his rights under ss. 2(a), 2(b), 7 and 15 of the Charter, he has failed to plead the constituent elements of the Charter violations he asserts.
[23] With respect to the claim of a s. 2(a) violation, the Defendants say that Mancuso has failed to plead the prohibition of any practice or line of conduct with a nexus to a religious belief or morality to which he subscribes, which is required to establish a breach of s. 2(a) of the Charter: Syndicat Northcrest v Amselem, 2004 SCC 47 at para 56. Rather, he simply asserts a preference for certain dietary food supplements and vitamins. Without more, the Defendants argue, Mancuso’s s. 2(a) claim presents no reasonable prospect of success.
[24] The Defendants say Mancuso’s allegations regarding freedom of expression under s. 2(b) of the Charter are similarly deficient. Although the Supreme Court of Canada has adopted a wide definition of “expression,” Mancuso has not pleaded any personal attempts to make or receive prohibited expressive activity.
[25] The Defendants say that Mancuso has also failed to properly plead a violation of s. 7 of the Charter. He must show that there is a deprivation of life, liberty or security of the person that is inconsistent with a principle of fundamental justice. He has failed to indicate any health product necessary to his bodily and/or psychological integrity that is made unavailable to him by effect of the legislation he seeks to invalidate. As such, there is no basis upon which to find a deprivation of life, liberty or personal security. Furthermore, Mancuso does not assert any discordance with a principle of fundamental justice.
[26] Finally, the Defendants say that Mancuso’s allegation of a breach of s. 15 of the Charter presents no reasonable prospect of success as he has not pleaded disadvantage based on a prohibited or analogous ground. Mancuso alleges discrimination based on choice of food, dietary supplements and vitamins. This is not a prohibited ground under s. 15 and has not been recognized or pleaded as an analogous ground of discrimination.
[27] With respect to the breaches of ss. 2, 7 and 15 alleged by Rowland and Dr. and Mrs. Dahl, the Defendants argue that since these Plaintiffs rely entirely upon Mancuso’s facts in support of these allegations, they have pleaded no material facts upon which it might be found that their rights have been violated. In addition, their claims suffer from the same deficiencies present in Mancuso’s.
[28] The Defendants also argue that the declarations sought by the Plaintiffs are so broad and undefined in scope as to be judicially unmanageable, which is reason alone to conclude that these portions of the Claim have no chance of success: Chaudhary v Canada (Attorney General), 2010 ONSC 6092 at para 17. The Plaintiffs seek sweeping declarations invalidating “the entire scheme and enforcement” of the Regulations. This request is so sweeping and imprecise as to be entirely unworkable. The Plaintiffs also ask that the Court read down the definition of “drug” in s. 2 of the Act to exclude natural health products, but the requested declaration is so vague and imprecise that the Court would be unable to define with precision the scope of any constitutional invalidity or to provide meaningful guidance to the parties. The Defendants say that the Court should not issue sweeping declarations within a factual vacuum.
[29] The Defendants also argue that the Plaintiffs’ action for damages has no reasonable prospect of success. An action for damages brought under s. 24(1) of the Charter cannot be combined with an action for a declaration of invalidity based on s. 52 of the Constitution Act, 1982: Mackin v New Brunswick (Minister of Finance), 2002 SCC 13 at para 81 [Mackin]; see also Vancouver (City) v Ward, 2010 SCC 27 at para 39 [Ward]; Schachter v Canada, [1992] 2 SCR 679 at para 89 [Schachter]. Canadian courts, including the Federal Court, have relied upon Mackin to strike statements of claim where s. 24(1) damages are sought for the enforcement of legislation that was constitutionally valid at the time of enforcement: Zündel v Canada, 2005 FC 1612, aff’d 2006 FCA 356 [Zündel]; see also Perron v Canada (Attorney General), [2003] 3 CNLR 198, [2003] OJ No 1348 at paras 55-56.
[30] Furthermore, the Defendants say that damages are not available for the application of a law that was constitutionally valid at the time of enforcement. Absent conduct that is in bad faith or an abuse of power, public officials are entitled to a sphere of civil immunity in respect of the acts that give effect to valid grants of statutory authority, and this immunity applies even where that grant of authority is subsequently declared unconstitutional. There are no retroactive remedies under s. 24(1) of the Charter: Mackin, above, at para 78; Schachter, above, at para 89. Since the Plaintiffs have not pleaded with any particularity any allegations of bad faith or abuse of power, even assuming the extensive constitutional invalidities they allege, the Plaintiffs would not be entitled to any damages. The Crown’s actions fall squarely within the immunity.
[31] The Defendants argue that the claims of Dr. Dahl, Mrs. Dahl and Life Choice should be struck in their entirety because they are an abuse of process. The rule against collateral attack protects against attempts to challenge judicial decisions in previous proceedings. This is complemented by the doctrine of abuse of process in situations where a plaintiff accepts the legal force of a judicial order, but contests the correctness of that order and/or the factual findings underlying it for the purposes of a different proceeding with different legal consequences: Toronto (City) v Canadian Union of Public Employees (CUPE), Local 79, 2003 SCC 63 [CUPE] at paras 33-34. Canadian courts have routinely struck out civil actions where a plaintiff seeks a judicial finding different from a finding made by a trial judge in a prior criminal proceeding: Demeter v British Pacific Life Insurance Co (1985), 13 DLR (4th) 318, 7 OAC 143 at paras 6-7 (CA); Wolf v Ontario (Attorney General), 2012 ONSC 72 at paras 56-7 [Wolf]; Sauvé v Canada, 2010 FC 217 [Sauvé], aff’d in part by 2011 FCA 141.
[32] The Plaintiffs are asking the Court to revisit the legality of the searches conducted by authorities on March 31, 2004 and January 15, 2009, the correctness of the 2004 and 2013 convictions, and the factual findings underlying those convictions. Dr. Dahl and E.D. Internal Health unsuccessfully challenged the validity of three search warrants under s. 8 of the Charter in the 2004 criminal proceeding (R v Dahl #1, at para 10), and the Plaintiffs also unsuccessfully challenged the legality of the January 15, 2009 searches in the Alberta Court of Queen’s Bench: trial excerpt from R v Eldon Garth Dahl, Agnesa Dahl and EDG Modern Design Ltd, 100237221Q3 (Alta QB) [R v Dahl #5], March 20, 2012 cross-examination on Voir Dire at pp. 40-41 (Defendant’s Motion Record, at pp. 345-346). They now seek to re-litigate the constitutional validity of these same searches. In addition, they allege that they were “falsely and maliciously charged” in the latter proceeding, despite the guilty plea of E.G.D. Modern Design Ltd, with Dr. Dahl acting as principal. The Defendants argue that the entirety of paragraphs 40-41 of the Claim is premised on the assertion that, contrary to the findings of two trial judges and a plea of guilty, these Plaintiffs were subject to unlawful searches and have been wrongfully convicted. This Court would be unable to grant the remedies sought without first making findings on criminal liability, the constitutionality of police searches and/or the admissibility of evidence in a criminal proceeding that are inconsistent with prior findings made in the Plaintiffs’ criminal trials. This would undermine the principles of consistency, finality and integrity in the administration of justice, and this portion of the Claim should therefore be struck out in its entirety as a collateral attack and abuse of process.
[33] The Defendants argue further that the case law clearly establishes that corporations do not possess rights under s. 7 or s. 15 of the Charter. While corporations can rely on s. 2(a) of the Charter in defence to a criminal charge, that provision cannot be used as a sword by a corporate plaintiff in civil proceedings: Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326 at para 101; Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters Canada Ltd., 2007) at 59-12.
[34] The Defendants also argue that the Plaintiffs are not entitled to seek an injunction and prohibition by way of an action, as these remedies can only be obtained on application for judicial review: Federal Courts Act, RSC 1985, c F-7, s. 18(3) and Burton v Canada, [1996] FCJ No 1059 at para 22, 65 ACWS (3d) 20 (FCTD).
[35] Should any portion of the Claim proceed, the Defendants argue that it should only continue against Her Majesty the Queen. The three named Ministers and the RCMP are not proper or necessary parties. The Claim discloses no material facts alleging any wrongdoing on the part of the named Ministers, the Minister of National Health and Welfare does not exist, naming the Attorney General of Canada is redundant, and the RCMP is not a suable entity: Mandate Erectors and Welding Ltd v Canada, [1996] FCJ No 1130, 118 FTR 290 at paras 19-21 (TD) [Mandate Erectors]; Cairns v Farm Credit Corp, [1992] 2 FC 115 (TD) at para 6 [Cairns]; Sauvé, above, at para 44.
Arguments of the Plaintiffs [36] The Plaintiffs respond that the Claim should not be struck, and that the named Defendants are all proper parties to the action.
[37] The Plaintiffs note that the facts pleaded in the Claim must be taken as proven for the purposes of this motion: Canada (Attorney General) v Inuit Tapirisat of Canada, [1980] 2 SCR 735; Nelles v Ontario (1989), 60 DLR (4th) 609 (SCC) [Nelles]; Operation Dismantle Inc v Canada, [1985] 1 SCR 441; Hunt, above; Dumont v Canada (Attorney General), [1990] 1 SCR 279 [Dumont]; Trendsetter Ltd v Ottawa Financial Corp (1989), 32 OAC 327 (CA) [Trendsetter]; Nash v Ontario (1995), 27 OR (3d) 1 (Ont CA) [Nash]; Arsenault v Canada, 2009 FCA 242 [Arsenault]. A claim should be struck “only in plain and obvious cases where the pleading is bad beyond argument” (Nelles, above, at 627), or where it is “‘plain and obvious’ or ‘beyond doubt’” that the claim will not succeed (Dumont, above, at 280; Trendsetter, above). The fact that a claim is novel or raises a difficult point of law is not a justification for striking it: Hunt, above, at 990-91); Nash, above; Hanson v Bank of Nova Scotia (1994), 19 OR (3d) 142 (CA); Adams-Smith v Christian Horizons (1997), 14 CPC (4th) 78 (Ont Gen Div); Miller (Litigation Guardian of) v Wiwchairyk (1997), 34 OR (3d) 640 (Ont Gen Div). Matters not fully settled by the jurisprudence should not be decided on a motion to strike: RD Belanger & Associates Ltd v Stadium Corp of Ontario Ltd (1991), 5 OR (3d) 778 (CA). Indeed, the Plaintiffs say that, in order to succeed in striking a claim, the Defendants must produce a “decided case directly on point from the same jurisdiction demonstrating that the very same issue has been squarely dealt with and rejected”: Dalex Co v Schwartz Levitsky Feldman (1994), 19 OR (3d) 463 (Gen Div). Finally, the Court should be generous with respect to the drafting of the pleadings, permitting amendment before striking: Grant v Cormier – Grant (2001), 56 OR (3d) 215, [2001] OJ No 3851 (CA); Toronto-Dominion Bank v Deloitte Haskins & Sells (1991), 5 OR (3d) 417, [1991] OJ No 1618 (Gen Div).
[38] The Plaintiffs argue that the Defendants improperly teeter-totter between asserting that certain facts are not “facts” because they are bald conclusions without evidentiary foundation on the one hand, and on the other hand that facts pleaded are not properly “facts” because they constitute “evidence.” This is an attempt to selectively excise facts from the Claim, contrary to this Court’s guidance: Liebmann v Canada (Minister of National Defence), [1994] 2 FC 3 (TD) at para 20 [Liebmann].
[39] The Plaintiffs also argue that the Defendants confuse the declaratory relief sought with the tort damages portion of the Claim, and ignore the fact that, in the main, the Claim seeks declaratory relief. The Plaintiffs say that they are seeking: 1) in the main, declaratory relief as to the various provisions of the Regulations (Claim, at paras 1(a)(i) – (xi), 1(b)(i)-(v), 1(c) and 1(d)); 2) injunctive relief or relief in the nature of prohibition (Claim, at paras 1(e)(i) – (iv)); and 3) monetary compensation by way of damages (Claim, at paras 2(a) – (d)).
[40] The Plaintiffs say that declaratory relief goes to the crux of the constitutional right to judicial review: Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at paras 27-31; Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 757; Canada v Solosky, [1980] 1 SCR 821 at 830; Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 at paras 134, 140, 143 [Manitoba Metis Federation]. Under Rule 64, declaratory relief may be sought in the Federal Court “whether or not any consequential relief is or can be claimed.” It has been held that declaratory relief can be sought in an action under s. 17 of the Federal Courts Act: Edwards v Canada (2000), 181 FTR 219, 94 ACWS (3d) 922; see also Canada (Prime Minister) v Khadr, [2010] 1 SCR 44. Furthermore, “[t]he constitutionality of legislation has always been a justiciable issue”: Thorson v Canada (Attorney General), [1975] 1 SCR 138 at 151; Manitoba Metis Federation, above, at para 134.
[41] The Plaintiffs do not dispute the rules of pleading asserted by the Defendants, but argue that the Claim does not suffer from the deficiencies alleged. They say that the Defendants take various assertions of fact out of context as examples of improper pleading, and seek to improperly colour the factual pleadings in their entirety on that basis. In so doing, the Defendants are not taking the Claim as pleaded, but are re-configuring it to suit their own ends, contrary to the clear direction of the Federal Court of Appeal in Arsenault, above, at para 10. The facts alleged must be read in their context and taken as proven.
[42] With respect to the claims of Mancuso, the Plaintiffs say that, contrary to the Defendants’ assertions, the Claim sets out (at paragraphs 28, 29 and 30(a) and (b)) that Mancuso has been deprived of products and published information on those products by virtue of the Regulations and their enforcement, thereby infringing his rights under ss. 2, 7 and 15 of the Charter. The Defendants’ complaints do not rise above a request for particulars, which the Plaintiffs say are provided in Mancuso’s affidavit in the present motion record. The Plaintiffs argue that Mancuso’s s. 7 claims are supported by the jurisprudence (Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177; R v Morgentaler, [1988] 1 SCR 30; Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519; Chaoulli v Quebec (Attorney General), [2005] 1 SCR 791, and that while his s. 15 claim is arguably novel, it cannot be said that it is “plain and obvious” that it cannot succeed: Dumont, above, at p. 280.
[43] The Plaintiffs say that the same arguments apply with respect to the Charter claims of Rowland, Dr. Dahl and Mrs. Dahl, and that the Dahls have additional claims under ss. 2, 7 and 15 of the Charter arising out of the manner in which the search warrants were executed, the fact that out-dated health advisories concerning their products have not been removed, and other facts alleged in the Claim.
[44] With respect to the argument that the declarations sought are “unmanageable and imprecise,” the Plaintiffs argue that each declaration sought is, in and by itself, precise, clear and discreet. The only “broad-sweeping” declaration sought, they say, is that dietary food supplements and vitamins cannot to be treated as “drugs” under the Act, which relief is well-founded and backed by facts as to the essential differences between a “food” and a “drug.”
[45] As to the purported inability to claim damages in an action that also seeks relief under s. 52 of the Constitution Act, 1982, the Plaintiffs argue that Mackin, above, is not as absolute as the Defendants suggest when it comes to damages arising from unconstitutional subordinate Regulations, and the Defendants’ position has been bluntly rejected by the Supreme Court in Manitoba Metis Federation, above, at para 134. Furthermore, the notion that damages under s. 24(1) are not available for the application of a law that was constitutionally valid at the time of enforcement does not cover enforcement that was in excess of, and an abuse of, authority, and bad faith and abuse of authority have been pleaded.
[46] The Plaintiffs argue that the Dahls’ claims are not collateral attacks, and that the doctrines of res judicata and abuse of process do not apply because the judicial forum is different and the issues are different. Specifically, the criminal proceedings did not deal with the declaratory relief sought and the claim of damages for abusive and excess enforcement methods. Dealing with the Defendants’ assertions about the relief sought and evidence led at the criminal trials is the purview of the trial judge in the present action and should not be dealt with on a motion to strike. The Plaintiffs argue that the present situation involves different judicial proceedings with different jurisdictions dealing with different grounds and remedies, not a collateral attack, and that recent Supreme Court jurisprudence rejects the Defendants’ position on this issue: Dunsmuir, above; Canada (Attorney General) v TeleZone Inc, 2010 SCC 62 [TeleZone]; Canada (Attorney General) v McArthur, 2010 SCC 63; Parrish & Heimbecker Ltd v Canada (Agriculture and Agri-Food), 2010 SCC 64 [Parrish & Heimbecker]; Nu-Pharm Inc v Canada (Attorney General), 2010 SCC 65 [Nu-Pharm]; Canadian Food Inspection Agency v Professional Institute of the Public Service of Canada, 2010 SCC 66; Manuge v Canada, 2010 SCC 67 [Manuge]; Sivak v Canada (Minister of Citizenship and Immigration), 2011 FC 402 [Sivak #1].
[47] With respect to the Charter claims of the corporate Plaintiffs, the Plaintiffs argue that while corporations do not have the same rights afforded to biological persons under ss. 7 and 15, they can invoke s. 2 Charter rights, s. 7 procedural rights in the context of a (quasi) criminal scheme, and s. 7 fundamental justice rights against overbroad or impermissibly vague legislation: R v Heywood, [1994] 3 SCR 761 [Heywood]; R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606 [Nova Scotia Pharmaceutical]. They say that the only Charter relief claimed by the corporate Plaintiffs here is: 1) the void for vagueness and over-breadth doctrines under s. 7, which a corporation has the right to invoke since corporations are subject to the criminal provisions set up by the Regulations (Nova Scotia Pharmaceutical, above); and 2) the right to “commercial speech” under s. 2(a) and (b) of the Charter (RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199 [RJR-MacDonald (1995)]; Irwin Toy Ltd v Québec (Attorney General), [1989] 1 SCR 927 [Irwin Toy]; Rocket v Royal College of Dental Surgeons of Ontario, [1990] 2 SCR 232 [Rocket]). They argue that corporations have a right to seek declaratory relief and obtain constitutional remedies with respect to the application and enforcement of statutes governing them: Winner v SMT (Eastern) Ltd, [1951] SCR 887 [Winner]; RJR-MacDonald (1995), above.
[48] Furthermore, while the corporate Plaintiffs are not entitled to invoke the equality provisions of s. 15 of the Charter, they argue that they are entitled to invoke “the equality provisions of the underlying constitutional imperative [of] equality of treatment”: Donald A MacIntosh, Fundamentals of the Criminal Justice System, (Agincourt: Carswell, 1989); Winner, above; Bolling v Sharpe, 347 U.S. 497 (1954); Canada v Schmidt, [1987] 1 SCR 500.
[49] With respect to the Defendants’ argument that they are not entitled to the injunctive relief claimed, the Plaintiffs argue that nothing prevents the Court from granting injunctive relief in the course of, and ancillary to, an action (Toth v Canada (Minister of Employment and Immigration) (1988), 6 Imm LR (2d) 123 (FCA) [Toth]; Manitoba (Attorney General) v Metropolitan Stores (MTS) Ltd, [1987] 1 SCR 110 [Metropolitan Stores]; RJR-MacDonald v Canada (Attorney General), [1994] 1 SCR 311 [RJR-MacDonald (1994)]), and that nothing prevents the Court from granting relief “in the nature” of prohibition and/or injunction under s. 24(1) of the Charter.
[50] With respect to the proper parties to the action, the Plaintiffs argue that while Her Majesty the Queen is normally the only Defendant in claims against the government, in cases dealing with constitutional issues this Court has determined that others can be personally named: Liebmann, above, at paras 51-52. Furthermore, the determination of the standing of parties is not best done at the stage of a motion to strike: Apotex Inc v Canada (Governor in Council), 2007 FCA 374 at para 13 [Apotex].
Plaintiffs’ Motion for an Interim Injunction [51] As noted above, the Plaintiffs have filed a cross-motion seeking to stay the enforcement of s. 3(1) and (2) of the Act and ss. 44, 63-83, 87, 91, 93, 94, 98 and 108-115 of the Regulations pending the outcome of the action. The parties agree that the test on such a motion is that set out in Toth, above (see also RJR-MacDonald (1994), above, at pp. 333-334; Metropolitan Stores, above). That is, the Plaintiffs must establish that:
a) They have raised a serious issue for trial;
b) They would suffer irreparable harm if the provisions are not stayed; and
c) The balance of convenience favours the granting of a stay.
[52] The parties disagree on whether that test is met in the present circumstances.
Arguments of the Plaintiffs [53] The Plaintiffs say they have raised serious issues for trial in their claim. They argue that the threshold for this element of the test is low (RJR-MacDonald (1994)), above, at para 50), and that such a stay is obtainable as against regulatory provisions as well as executive action: Toth, above; Metropolitan Stores, above; RJR-MacDonald (1994), above. They argue that the action presents the following serious issues, among others:
(a) That the definition of “drug” in s. 2 of the Act is overly-broad and thus violates s. 7 of the Charter (citing Heywood, above, at paras 48-51);
(b) That the doctrine of overbreadth and others apply under s. 7, as tenets of fundamental justice, to all legi