Date: 20080502
Docket: A-345-07
Citation: 2008 FCA 170
CORAM: NOËL
J.A.
NADON
J.A.
RYER
J.A.
BETWEEN:
JASON WATKIN
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1]
This is an appeal from a decision of Justice Tremblay-Lamer of the
Federal Court (the “applications judge”) holding that the Canadian Human Rights
Commission (the “Commission”) did not have jurisdiction to deal with the
complaint filed by Mr. Watkin (the “appellant”) and associated complainants and
that these individuals did not have the standing to institute the complaint in
issue.
[2]
According to this complaint, Health Canada acted
contrary to section 5 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the
“Act”) by regulating herbal products in a discriminatory way, according to
ethnic origin. The applications judge held that the Commission
improperly assumed jurisdiction since the complaint relates to actions directed
against a corporation, Biomedica
Laboratories Inc. (“Biomedica”), and not individuals.
[3]
The appellant argues that given his close relationship to Biomedica, he
suffered financial loss as a result of Health Canada’s
discriminatory practices and therefore should qualify as a victim, with
standing to bring the complaint, for purposes of the Act. To the extent that
the appellant is a victim of a discriminatory practice, he has standing to
bring the complaint forward and the Commission has jurisdiction to dispose of
it.
[4]
The issue in this appeal is whether, according to the complaint as
filed, the impugned actions of Health Canada are directed
against him and the other complainants or whether they are directed against
Biomedica, a corporate body which can claim no protection under the Act. A
further issue – which was not addressed by the applications judge given her
conclusion on the first issue – is whether the actions complained of are
“services” within the meaning of section 5 of the Act.
RELEVANT FACTS
[5]
The appellant
is the President and CEO of Biomedica. Biomedica is owned by the Nutraceutical
Medicine Company Inc. (“Nutraceutical”), a corporate entity owned by the appellant
and three members of his immediate family.
[6]
Biomedica
sells and markets products under the name “Recovery” destined for both human
and animal consumption. In February 2002, Health Canada requested that Biomedica cease and desist
advertising in relation to this product as it found this advertising to be in
contravention of section 3 of the Food and Drugs Act, R.S.C. 1985, c.
F-27 (the “Food and Drugs Act”). After a series of events relating to
continued advertising, and in the absence of a “New Drug Submission” being
filed by Biomedica for its “Recovery” product, Health Canada conducted a Health Hazard
Evaluation. As a result, Health Canada classified both the human and animal versions of “Recovery” as a
“Class II Health Hazard” and a “new drug” under the Food and Drugs Act,
and associated regulations. This finding was communicated to Biomedica in
November 2002. At that time, Health Canada asked Biomedica to recall and cease the sale of
its “Recovery” product.
[7]
Subsequent
to a full-page advertisement for “Recovery” in a national newspaper on December
7, 2002 and letters from Health Canada reiterating its recall request, Health Canada proceeded to seize a
quantity of “Recovery” on December 20, 2002. It secured the seizure on
Biomedica’s premises with seizure tags and tape, leaving them on-site.
Biomedica subsequently
– acting in violation of the seizure – exported the product to the United States after receiving
clearance from the United States' Food and Drug Administration.
[8]
On
June 4, 2004, the appellant filed a human rights complaint with the Commission
against Health Canada, alleging that Health Canada had discriminated against Biomedica
in the provision of services, contrary to section 5 of the Act. The particulars
of the complaint read:
We have reasonable grounds to
believe that we have been discriminated against. We declare that the following
information is true to the best of our knowledge.
Our names
are Bruce Dales and Jason Watkin and our complaint is against Health Canada
Therapeutic Product Program Western Region (TPPWR). We believe that Health Canada
gives preferential treatment to Asian Businesses, by regulating Asian Herbal
Remedies less rigorously than they regulate non-Asian products.
We
also believe that Health Canada pursues a
policy or practice that adversely impacts non-Chinese businesses. For
instance, we have evidence that Health Canada’s TPPWR is blocking more
compliant and safer Canadian products from the Canadian market (and U.S.
market) and are allowing certain Asian products (Chinese Herbal medicines)
which are more dangerous and less compliant products on the Canadian market. We
feel TPPWR applies an unfair rationale for allowing less compliant Asian
products to be sold in the Vancouver Chinatown area in comparison to Canadian
products across Canada and this is
differential treatment based on national or ethnic origin.
…
[My emphasis]
[9]
Six
months later, on December 15, 2004, the appellant amended the complaint, adding
the three other Nutraceutical shareholders (Trevor, Anna and Marlene Watkin) as
complainants. The amended complaint further alleged that Health Canada's
actions against Biomedica had a direct, adverse impact on the appellant and the
three members of the Watkin family, by virtue of their immediate interest in
the corporation and added a claim of discrimination as against a “First Nations”
business. The salient portions of the amended complaint read:
34. The
actions for Health Canada have had a substantial negative impact on Biomedica
by creating confusion in the market place and by preventing the company to
continue to grow as it would otherwise have done but for Health Canada’s
intervention. This has resulted in financial losses to the Watkins.
35. Health
Canada has acted against Biomedica in such
a way as to discriminate against Biomedica by giving significant or
preferential treatment to Asian businesses by refusing or otherwise failing to
act against these businesses in the same manner in which it has acted against
Biomedica.
36. Health
Canada’s failure to apply its regulations
and enforcement activities equally against Asian businesses has resulted in
financial losses to Biomedica, and thereby to the Watkins.
37. Health
Canada acted against Biomedica in such a way as to discriminate against
Biomedica by giving significant preferential treatment to a putative First
Nations business similar to Biomedica by refusing or otherwise failing to act
against this business in the same manner in which it has acted against
Biomedica.
38. Health
Canada’s failure to apply its requirements
and enforcement of activities equally against a putative First Nations business
similar to Biomedica has resulted in financial losses to Biomedica and thereby
to the Watkins.
39. Health Canada
acted against Biomedica in such a way as to discriminate against Biomedica by
giving significant preferential treatment to businesses similar to Biomedica by
refusing or otherwise failing to act against these businesses in the same
manner in which it has acted against Biomedica.
…
42. Health Canada is
in violation of the Bader Order made March 11, 1998 by the Canadian Human
Rights Tribunal. They are in violation of the Bader Order by, among other
things, failing to cease the unequal enforcement of its policies and
regulations as between retailer/wholesalers and importers.
[My emphasis]
[10]
The
complainants ask for financial compensation computed by reference to an expert
report which establishes Biomedica’s lost revenues resulting from the actions
of Health Canada at 4.4 million
dollars. No other remedy is sought. [Nutraceutical has also commenced a civil
action in the British Columbia Superior Court against Her Majesty the Queen and
the Minister of Health, seeking damages of approximately $4.5 million in
relation to Health Canada's enforcement activities against Biomedica, arising from the same
factual situation.]
[11]
When
served with the amended complaint, Health Canada asked that the Commission
refuse to deal with the complaint on the ground that it lacked jurisdiction. A
preliminary investigation into the complaint was conducted. The final version
of the investigator’s report, dated February 17, 2006, advised the Commission
that the matter was within its jurisdiction and should be referred to the
Canadian Human Rights Tribunal for a hearing.
[12]
The
investigator’s report contained the following recommendations:
Based on the
foregoing analysis, it is probable that the Watkins have presented a prima
facie case of discrimination under section 5 of the Act, on the basis of a
prohibited ground – namely, ethnic or national origin.
It is not
apparent that the Respondent’s defenses in respect that to the lack of
jurisdiction and lack of standing to bring the complaint on the grounds that
the allegations are directed at a corporation, rather than an individual, would
likely be successful, on the basis that there appears to be a sufficiently
direct and immediate impact on the Watkins arising from the alleged
discrimination against Biomedica by Health Canada.
In respect
of the defense raised regarding judicial review under the Federal Courts Act,
it is not apparent that this argument would likely be successful on the grounds
that the Act gives broad and liberal remedial authority to rectify human rights
abuses in Canada. There is nothing the Federal Courts Act
or Act that would displace the Commission’s jurisdiction in this regard.
On the issue
of Health Canada acting within its authority under the Food
and Drugs Act and Regulations, the evidence in this regard must be
tested and weighted to determine if Health Canada does
have a bona fide justification for the actions it has taken in respect
of Biomedica.
In addition,
there are public interest considerations raised by this complaint; namely, that
there is an allegation that Health Canada has failed to comply with an Order
from the Tribunal and the limited jurisprudence and potentially broad impact on
the issue of individual complaints when the discriminatory conduct is directed
towards corporate entities. In our view, the Commission would benefit from
participation at the Tribunal level on each of these matters.
[13]
After
considering the report, the Commission decided that the appellant had standing
to bring the complaint and that the matter was within its jurisdiction. This
decision was communicated to Health Canada by letter dated July 4, 2006 and the
application for judicial review was initiated by Health Canada soon thereafter.
[14]
Health
Canada challenged the
decision on the basis that the Commission was without jurisdiction since the
actions complained of are not directed against an individual or individuals. It
further argued that the Commission was without jurisdiction because the alleged
discrimination did not arise “in the provision of …, services, … customarily
available to the general public” within the meaning of section 5 of the Act.
[15]
The
applications judge allowed the judicial review application on the first ground.
She held that the Commission was without jurisdiction to consider the complaint
where the “victim” is a corporate “person” and not an “individual” (Reasons,
para. 24). Given this conclusion, she found it unnecessary to examine whether
Health Canada had provided
“services” within the meaning of section 5 of the Act (Reasons, para. 35).
[16]
The
gist of the appellant’s contention on appeal is that the applications judge
failed to recognize that in this case, while the target of the discrimination
was a corporation, the victim seeking redress was an individual (Appellant’s
Memorandum, para. 81). Even if the corporation was the target of the
discrimination, given the sufficiently direct impact of the discrimination on
the appellant, the appellant qualified as a victim of the discriminatory
practice (Appellant’s Memorandum, paras. 73, 74, 101).
[17]
In
response, the respondent argues that the applications judge reached the correct
conclusion essentially for the reasons that she gave. The respondent adds as a
further argument that the actions complained of are not “services” within the
meaning of section 5, a conclusion which if accepted is sufficient to deprive
the Commission of jurisdiction over the complaint (Respondent’s Memorandum,
paras. 65-69). The appellant deals with this alternative argument at length (Appellant’s
Memorandum, paras. 143-153). According to the appellant so long as Health Canada provides some
services, it is a “service provider” and all its actions are “services”, regardless
of their nature.
[18]
At
the hearing of the appeal, counsel for the respondent made the surprise
announcement that he was not pursuing this alternative argument since it was
not dealt with by the applications judge. It was made clear to counsel for both
parties that this issue - which was properly before the applications judge and
fully addressed in the respective memoranda - remained a live issue from the
Court’s perspective. Counsel for the respondent acknowledged that it was open
to the Court to address the issue if it was found to be the appropriate basis
for the disposition of the appeal, and counsel for the appellant could not
point to anything which would prevent the Court from addressing it. Indeed, the
appellant in his memorandum took the express position that it was appropriate
for this Court to deal with the issue even though it had so far gone
unaddressed (Appellant’s Memorandum, para. 161). Accordingly, the parties were
invited to, and did, make the arguments which they wished to make on this issue.
DECISION
[19]
As a
preliminary comment, I note that it is difficult to detect any genuine human
rights concern in the complaint brought by the appellant as it appears to be
driven by purely commercial motives. This in itself is not determinative, but it
takes away any hesitation that I might otherwise have in seeing the complaint
brought to an end at this early stage.
[20]
In my
view, the applications judge came to the correct conclusion when she held that
the Commission is without jurisdiction to hear the complaint. However, I reach
that conclusion on the basis that the actions which form the object of the
complaint are not “services” within the meaning of section 5:
|
5.
It is a discriminatory
practice in the provision of goods, services, facilities or accommodation
customarily available to the general public
(a) to deny, or to deny access
to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely
in relation to any individual,
on a
prohibited ground of discrimination.
|
5. Constitue un acte discriminatoire, s’il
est fondé sur un motif de distinction illicite, le fait, pour le fournisseur
de biens, de services, d’installations ou de moyens d’hébergement destinés au
public :
a) d’en priver un individu;
b) de le défavoriser à
l’occasion de leur fourniture.
|
[21]
The
essence of the complaint when read in its most favourable light from the perspective
of the appellant is that Health Canada has in effect discriminated against the
complainants by enforcing the Food and Drugs Act against their company,
but not against other businesses who were deserving of the same treatment. This
differential treatment is said to be based on ethnicity.
[22]
In my
view, Health Canada, when enforcing the Food
and Drugs Act in the manner complained of is not providing “services, …
customarily available to the general public” within the meaning of section 5.
The actions in question are coercive measures intended to ensure compliance.
The fact that these measures are undertaken in the public interest does not
make them “services”.
[23]
I reach
this conclusion applying a standard of correctness. As noted, the issue whether
the actions complained of are “services” has not been addressed in the present
proceedings so that there is no reasoning to which I could defer. In any event,
this is a “true question of jurisdiction or vires” which must be
reviewed on a standard of correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, para. 59).
[24]
In submitting
that the Commission has jurisdiction, the appellant relies on the decision of
the Canadian Human Rights Tribunal in Bader v. Canada
(National Health and Welfare) (1996), 30 C.H.R.R. D/383 (“Bader”)
(aff’d on the issue of jurisdiction by a Review Tribunal (1998), 31
C.H.R.R. D/268), where it was found that Health Canada’s enforcement actions
were “services” within the meaning of section 5 of the Act. However, no basis
is advanced for this conclusion in these decisions, since, as noted by the
Tribunal, the parties did not dispute the issue (Bader, supra, p. D/397,
para. 52).
[25]
The appellant also relies on the decision of this Court in Canada
(Attorney General) v. Rosin, [1991] F.C.J. No. 391 (C.A.) (“Rosin”). However,
the government actions which formed the basis of the alleged discrimination in
that case – parachuting courses offered by the Armed Forces – were “services”
within the commonly accepted meaning of that word. The issue which arises in
this case is whether government actions which are not “services” within the commonly
accepted meaning can nevertheless be treated as “services” under section 5.
[26]
In this
respect, reference should be made to the decision of this Court in Singh
(Re), [1989] 1 F.C. 430 (“Singh”), which was cited by the Canadian Human Rights Tribunal as authority
for the proposition that all government actions come within section 5 of the
Act regardless of their nature (see Menghani v. Canada
(Employment and Immigration Commission) (1992), 17
C.H.R.R. D/236 at D/244 – D/246; (“Menghani”)). In my respectful view, Singh, supra,
does not stand for this proposition. In Singh, supra, the Court held
that “services” under section 5 are not restricted to “market place”
activities, but extend to the provision of services by government officials in
the performance of their functions. In so holding, the Court declined to follow
U.K. decisions rendered pursuant to the Sex Discrimination Act 1975
(U.K.), 1975 c. 65 which held that government actions are not “services” under
that Act regardless of their nature or character.
[27]
The
precise conclusion in Singh, supra, – which was reached in what was in
effect a motion to strike for lack of jurisdiction (Singh, supra, p.
438) – was that it was “not by any means” clear at the preliminary stage when this
decision was made that “the services rendered, both in Canada and abroad, by
the officers charged with the administration of the Immigration Act 1976,
SOR/78-172 (“Immigration Act”) were not services customarily available
to the general public” (Singh, supra,
p. 440). Significantly, paragraph 3(c) of the then Immigration Act
which the Court quotes at page 441 provided that one of the statutory objectives
to be pursued by those charged with its administration was:
|
3. …
(c) to facilitate the reunion in Canada of Canadian
citizens and permanent resident with their close relatives from abroad;
|
3. …
c) de faciliter
la réunion au Canada des citoyens canadiens et résidents permanents avec
leurs proches parents de l’étranger;
|
[28]
Public
authorities can and do engage in the provision of services in fulfilling their
statutory functions. For example, the Canada Revenue Agency provides a service
when it issues advance income tax rulings; Environment Canada provides a
service when it publicizes weather and road conditions; Health Canada provides
a service when it encourages Canadians to take an active role in their health
by increasing their level of physical activity and eating well; Immigration
Canada provides a service when it advises immigrants about how to become a
Canadian resident. That said, not all government actions are services. Before relief
can be provided for discrimination in the provision of “services”, the
particular actions complained of must be shown to be “services” (see Gould
v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571 (“Gould”), per Iacobucci J. for the majority at paras. 15, 16, 17 and per La Forest J.
concurring in the result at para. 60).
[29]
In Singh,
supra, at page 440, the Court made the following comments in the course of
an apparent obiter which merit comment:
The
wording of our section 5 is also instructive. While paragraph (a) makes
it a discriminatory practice to deny services, etc. to an individual on
prohibited grounds, paragraph (b) seems to approach matters from the
opposite direction, as it were, and without regard to the person to whom the
services are or might be rendered. Thus it is a discriminatory practice.
5.
… in the provision of … services … customarily available to the general public
…
(b)
to differentiate adversely in relation to any individual, on a prohibited
ground of discrimination.
Restated
in algebraic terms, it is a discriminatory practice for A, in providing
services to B, to differentiate on prohibited grounds in relation to C. Or, in
concrete terms, it would be a discriminatory practice for a policeman who, in
providing traffic control services to the general public, treated one violator
more harshly than another because of his national or racial origins ([Footnote:
see Gomez v. City of Edmonton (1982), 3 C.H.R.R. 882]).
It is indeed arguable that
the qualifying words of section 5
5. … provision
of … services … customarily available to the general public …
can only
serve a limiting role in the context of services rendered by private persons or
bodies; that, by definition, services rendered by public servants at public
expense are services to the public and therefore fall within the ambit of
section 5. It is not, however, necessary to make any final determination on
the point at this stage …
[My emphasis]
[30]
As can be
seen, the Court did not dispose of the point that it raised. However, to the
extent that this passage can be taken as suggesting that all government actions
are “services” within the meaning of section 5, it should be addressed.
[31]
Addressing
this question, I agree that because government actions are generally taken for
the benefit of the public, the “customarily available to the general public”
requirement in section 5 will usually be present in cases involving
discrimination arising from government actions (see for example Rosin, supra
at para. 11, and Saskatchewan Human Rights Commission v. Saskatchewan
(Department of Social Services) (1988), 52 D.L.R. (4th) 253 at
266-268). However, the first step to be performed in applying section 5 is to
determine whether the actions complained of are “services” (see Gould, supra,
per La Forest J., para. 60). In this respect, “services” within the meaning of
section 5 contemplate something of benefit being “held out” as services and “offered”
to the public (Gould, supra, per La Forest J., para 55).
Enforcement actions are not “held out” or “offered” to the public in any sense
and are not the result of a process which takes place “in the context of a
public relationship” (Idem, per Iacobucci J., para. 16). I therefore
conclude that the enforcement actions in issue in this case are not “services”
within the meaning of section 5.
[32]
Given
this conclusion, the opinion expressed by the Canadian Human Rights Tribunal in
Bailey et al v. Minister of National Revenue (1980), 1 C.H.R.R. D/193 at
D/212 – D/214 (“Bailey”) (applied in LeDeuff v. The Canada Employment
and Immigration Commission (1987), 8 C.H.R.R. D/3690 at D/3693 (aff’d on
this issue by a Review Tribunal without discussion (1989), 9 C.H.R.R. D/4479) that
all government actions in the performance of a statutory function constitute
“services” within the meaning of section 5 because they are undertaken by the
“public service” for the public good, must be disavowed. The same comment applies
to the decision of the Canadian Human Rights Tribunal in Anvari v. Canada (Canadian Employment and
Immigration Commission) (1989), 10 C.H.R.R. D/5816 at para. 42271, aff’d by a Review
Tribunal (14 C.H.R.R. D/292 at D/297, para. 19) (applied in Menghani,
supra, at D/244, para. 26 which decision was later confirmed by the Federal
Court on other grounds (Canada (Secretary of State
for External Affairs) v. Menghani, [1994] 2 F.C. 102)), insofar as it holds that
all actions of immigration officials under the Immigration Act are
“services” because the performance of a statutory duty is “by definition” a
service to the public (see also Bailey, supra at p. D/214).
[33]
Regard
must be had to the particular actions which are said to give rise to the
alleged discrimination in order to determine if they are “services” (Gould,
supra, per Iacobucci J., para. 16, per La Forest J., para. 60), and the
fact that the actions are undertaken by a public body for the public good
cannot transform what is ostensibly not a service into one. Unless they are
“services”, government actions do not come within the ambit of section 5. As in
the present case, the enforcement actions which form the object of the
complaint are not “services” under any of the meanings that can be given to
this word, the Commission is without jurisdiction to hear the complaint.
[34]
In
reaching this conclusion, I have had in mind throughout that the Act, being dedicated
to the advancement and protection of human rights, should be given a broad,
liberal and purposive interpretation in order to maximize its reach. However
this is not a matter of giving the word “services” a generous meaning in order
to achieve that goal; this is a matter of not giving that word a meaning that
it cannot bear (Gould, supra, per La Forest J., para. 50 and per Iacobucci J., para. 13).
[35]
Having
reached this conclusion, I need not deal with the alternative basis relied upon
by the applications judge for concluding that the Commission does not have
jurisdiction over the complaint filed by the appellant.
[36]
I would
dismiss the appeal with costs.
“Marc Noël”
“I
agree.
M. Nadon J.A.”
“I agree.
C. Michael Ryer J.A.”
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