Date:
20080611
Docket:
A-366-07
Citation:
2008 FCA 207
CORAM: SEXTON
J.A.
BLAIS J.A.
EVANS
J.A.
BETWEEN:
CANWEST
MEDIAWORKS INC.
Appellant
and
THE MINISTER OF HEALTH and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
This is an
appeal from a decision of the Federal Court in which Justice Snider granted a
motion by the Attorney General of Canada and the Minister of Health (“the
respondents”) to dismiss for lack of standing an application for judicial
review brought by CanWest Media Works Inc. (“CanWest”): CanWest Media Works
Inc. v. Canada (Minister of Health), 2007 FC 752.
[2]
CanWest is
a Canadian corporation which derives income from advertising placed in media in
which it has an interest, including newspapers and magazines, television, and
publications available online. In its application for judicial review CanWest
requests an order of mandamus to require the respondents to investigate
and prosecute American media corporations which, it alleges, distribute in
Canada, in magazines, cable television, and the internet, advertisements for
prescription drugs which contravene the Food and Drugs Act, R.S.C. 1985,
c. F-27, (“FDA”) and the Food and Drug Regulations, C.R.C., c. 870 (“FDR”).
[3]
This
legislation prevents “Direct to Customer Advertising” (“DTCA”) in Canada of
prescribed drugs by prohibiting advertisements which claim that a drug treats,
prevents, or cures listed medical conditions and diseases (FDA, subsection
3(1)), and restricts representations about listed drugs to a very few facts:
their names, price and quantity (FDR, section C.01.044). United States’ law is more permissive on DTCA.
[4]
CanWest
argues in this appeal that Justice Snider erred in the exercise of her
discretion to grant the respondents’ motion to dismiss the application for
judicial review for lack of standing in two respects. First, she failed to
consider whether there was a sufficiently full evidentiary record to enable her
to decide the standing question as a preliminary matter on a motion to dismiss.
Second, she denied CanWest public interest standing by finding that CanWest had
no genuine interest in the subject matter of the application for judicial
review, and by concluding that CanWest should not be afforded public interest
standing because there were more appropriate litigants to challenge the
respondents’ failure to enforce the law.
[5]
In
oral argument, counsel abandoned the argument that Justice Snider had also erred
in concluding
that CanWest was not “directly affected” within the meaning of the Federal
Courts Act, R.S.C. 1985, c. F-7, subsection 18.1(1) by the respondents’
alleged breach of their duty to enforce the statutory prohibition of DTCA against
United States’ media corporations whose publications are available in Canada.
B. ISSUES AND ANALYSIS
(i) Was the motion to dismiss
premature?
[6]
Counsel
for CanWest submitted that only in the clearest of cases should a court dismiss
an application for judicial review on a motion to strike. Where, as here, it is
not obvious that the applicant lacks standing, the application should be permitted
to proceed so that standing can be determined on the basis of a full
evidentiary record. He argued that, in this case, some aspects of the standing
issue require further exploration in the context of the application itself, and
that it is premature to decide standing as a preliminary question on a motion
to strike.
[7]
Counsel
relied on Apotex Inc. v. Canada (Governor in Council), 2007 FCA 374,
where, writing for the Court, Sexton J.A. said (at para. 14) that a judge
should not decide a motion to strike an application for judicial review without
first explicitly exercising her or his discretion as to whether the standing
question could properly be decided on the motion. In the present case, counsel
said, Justice Snider did not address this issue, but seemed simply to assume
(at para. 10) that it was appropriate to decide the motion on its merits
because standing is one of the two exceptions to the general rule that a court
should only exercise its jurisdiction to strike when the application is so
clearly improper as to be bereft of any possibility of success.
[8]
I
agree that Justice Snider did not explicitly acknowledge that, even when a
motion to strike is based on the applicant’s lack of standing, the court must still
consider whether the standing issue is appropriately decided on the motion to
strike and meets the stringent test for striking out. I should point out that
this Court rendered its decision in the Apotex case cited above after
Justice Snider rendered hers; she relied on the decision of the Federal Court
(2007 FC 232), which this Court reversed.
[9]
If
the Motions Judge erred in this respect, this Court on an appeal may decide for
itself whether, on the basis of the motion record and counsel’s oral
submissions, CanWest’s alleged lack of standing can properly be determined on the
motion. In my view, it can.
[10]
At
the time of the motion to strike, CanWest had filed its affidavits in the
application for judicial review and has not indicated that it wishes to adduce
more evidence on the main application or on the standing issue. The Court has
all the material it needs to determine if CanWest has standing. For the reasons
given below, CanWest clearly lacks standing on the only basis now advanced,
that is, as a public interest applicant, and the application must therefore fail.
(ii) Public interest standing
[11]
CanWest
argues that Justice Snider erred in two respects in applying the test in Borowski
v. Canada (Minister of Justice), [1981] 2 S.C.R. 575. First, it
is said, she committed an error of law in finding that CanWest had no “genuine interest”
in the non-discriminatory enforcement of the statutory prohibition of DTCA because
it was already pursuing an action in the Superior Court of Justice for a
declaration that the legislation was invalid as an unconstitutional abridgement
of the right to freedom of expression guaranteed by section 2(b) of the Canadian
Charter of Rights and Freedoms.
[12]
Counsel submitted
that the Motions Judge’s conclusion was illogical. It was, he said, perfectly coherent
for CanWest to claim that the legislation is invalid, but also to insist that it
must be enforced meanwhile in an even handed manner against Canadian and
American corporations alike. If CanWest had carried DTCA in its publications,
the respondents were likely to have instituted proceedings against it, in which
it would have had standing to raise the invalidity of the legislation as a
defence. Having decided, as a good corporate citizen, to obey the law, counsel
argued that it should not now be precluded for lack of standing from
challenging the legality of the respondents’ failure to enforce the law, a
failure which goes to the heart of the rule of law.
[13]
Despite
the attractive argument ably made by counsel, I cannot agree. In considering
whether the appellants in Canadian Council of Churches v. Canada (Minister
of Employment and Immigration), [1992] 1 S.C.R. 236, (“Canadian Council”)
should be given public interest standing, Cory J. stated (at p. 254) that they
had “demonstrated a real and continuing interest” in the general subject matter
of the litigation, namely, the problems faced by immigrants and refugees. In
contrast, CanWest’s interest in the enforcement of the law is merely temporary
and contingent on the outcome of its action in the Superior Court of Justice
for a declaration that the statutory prohibition of DTCA is invalid. This action
is scheduled to be tried approximately four months from now. CanWest’s principal
objective is to have the legislation struck down; in the ten years that DTCA has
proliferated, it has brought no proceedings, before this, to challenge the
alleged failure by the respondents to enforce the law.
[14]
The fact
that CanWest’s interest in the enforcement of the DTCA prohibition is
commercial also indicates that it does not have “a real and continuing
interest” for the purpose of being afforded public interest standing. Private
interests are primarily relevant to determining whether persons are “directly
affected” by the impugned administrative action and therefore have standing as
of right.
[15]
In this
case, the Motions Judge concluded that CanWest was not “directly affected”
because the harm that it alleged that the respondents’ failure to enforce the
law has caused to its commercial interests was too speculative and indirect. CanWest
surely cannot rely on the same interest that did not qualify it for “private
interest standing” to establish that it has a “genuine interest” for the
purpose of public interest standing.
[16]
The grant
of public interest standing to the appellant in Harris v. Canada (Minister of National
Revenue),
[2000] 4 F.C. 37 (C.A.) does not assist CanWest because, in that case, unlike
this, the Attorney General virtually conceded that the appellant had a genuine
interest in the issue.
[17]
Having
concluded that CanWest has no “genuine interest” in the subject matter of its
application I need not deal with the submission that Justice Snider also erred
in concluding that there
was another reasonable and effective way to bring the issue before the Court.
CanWest says that she did not consider whether “on a balance of probabilities”
(Canadian Council at p. 252) any of the interveners opposing CanWest’s
action in the Superior Court of Justice would challenge the respondents’
alleged failure to enforce the DTCA prohibition against American corporations.
[18]
In my
opinion, these interveners (members of a coalition of organizations
representing, among others, the interests of consumers of pharmaceuticals
products, patients, a trade union, and those who rely on employer-provided
health benefit plans) are more appropriate representatives of the public
interest in the due enforcement of the law than CanWest. Their intervention in
the Superior Court of Justice demonstrates a willingness and an ability to
resort to the law when, in their view, the public interest in upholding the statutory
ban in Canada on DTCA is in jeopardy. If
CanWest’s action fails and the legislation prohibiting DTCA is upheld, it is not
unreasonable to think that those who were willing to intervene in the action
may also be willing to challenge the under enforcement of the law, even though
they have not done so previously.
C. CONCLUSIONS
[19]
For these
reasons, I would dismiss the appeal with costs.
“John M. Evans”
“I agree
J. Edgar Sexton J.A.”
“I agree
Pierre Blais J.A.”
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