On 4 December 2020, Al-Haq and Canadian Lawyers for International Human Rights (CLAIHR), filed a joint motion seeking leave to appeal to the Canadian Supreme Court, to appeal the decision in the Kattenburg v. Canada (Attorney General), 2019 FC 1003, addressing the labelling of Israeli settlement products in the occupied Palestinian territory of West Bank as “Product of Israel”. In doing so, Al-Haq and CLAIHR joined with Independent Jewish Voices, Amnesty International Canada, Centre For Free Expression, Professor Michael Lynk (UN Special Rapporteur for the Situation of Human Rights in the Palestinian Territory Occupied Since 1967), Arab Canadian Lawyers Association, and the Transnational Law And Justice Network [hereafter CLAIHR and Al-Haq et. al]. The motion argues that product labelling on commercial goods originating from Israeli settlements should give due consideration to international human rights obligations Canada is bound to as per international law.
In March 2017, Dr. David Kattenburg lodged a complaint with the Canadian Food Inspection Agency (CFIA) against the labelling of wines produced in Israeli settlements in the West Bank as “Product of Israel.” Based on the definition of the Israeli “territory,” which includes areas where Israel’s customs laws apply, provided by the Canada-Israel Free Trade Agreement (CIFTA), the CFIA decided that settlement wines would continue to be labelled as such.
Dr. Kattenburg appealed before the CFIA’s Complaints and Appeals Office (CAO), which confirmed the CFIA’s decision, finding that settlement wines can be imported and sold under the label “Product of Israel” and that foreign policy considerations fall outside its mandate.
Dr. Kattenburg was granted judicial review of the CAO’s decision by the Federal Court. Madam Justice Mactavish commanded reconsideration of the matter with the argument that the label “Product of Israel” was misleading and inaccurate, as the parties and interveners had all agreed that the settlements were not part of the State of Israel.
The Federal Court held that:
- Although section B.02.108 of the Food and Drug Regulation requires wines to have labels indicating their country of origin when sold in Canada, the CFIA guidelines exceptionally allows regional labels where the average consumer can readily recognize the country associated with the region. Average consumers cannot identify whether “Product of Israel” includes the Occupied Palestinian Territory (OPT) or not, nor can they tell from a label named after a settlement that the latter is located in the OPT.
- Relying on the definition of “territory” found in the CIFTA in order to assess country of origin labelling requirements is unreasonable as it results in a false and misleading label, and as the definition enclosed in the CIFTA is not relevant to Canada’s product labelling laws, aimed at informing and protecting Canadian consumers.
- In addition to health and safety, country of origin labelling is aimed at facilitating “conscientious buying,” which, Justice Mactavish explains, engages section 2(b) of the Canadian Charter, on protection of individuals’ freedom of expression. The CAO’s decision to allow the “Product of Israel” label is unreasonable as it fails to balance Charter rights.
Following this, the Attorney General applied to the Federal Court of Appeal to overturn the decision.
CLAIHR and Al-Haq’s Application for Leave to Intervene
In August 2020, CLAIHR and Al-Haq, applied for leave to intervene arguing that the CFIA’s decision to permit “Product of Israel” wine labels does not adequately consider Canada’s obligations under international law. According to the methodology set in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC65 (CanII), administrative decision-makers must interpret legislation using a presumption that such laws conform with Canada’s obligations under conventional and customary international law and the values and principles underlying these sources. Therefore, when reaching its wine labelling decision, the CFIA should have considered violations of international law perpetuated by Israel’s settlement enterprise and their associated businesses in the OPT.
CLAIHR and Al-Haq, alongside Independent Jewish Voices Canada, Amnesty International Canada, Centre for Free Expression, UN Special Rapporteur Michael Lynk, Arab Canadian Lawyers Association, Transnational Law and Justice Network, filed motions seeking leave to intervene. However, the motions were dismissed by the Federal Court of Appeal on October 6th, 2020. At the time, Justice Stratas argued that the pending judicial review constitutes no more than a standard judicial review of a regulatory decision that does not justify the intervention of twelve separate parties. He added that these moving parties seemed to seek ruling on the issues of Israel’s occupation of the OPT, the territorial sovereignty of Israel, as well as related questions of human rights and humanitarian law, which fall outside the scope of the appeal.
Denial of Motion Seeking Leave to Intervene
In particular, Justice Stratas considered that the moving parties did not pass the test for useful intervention on the following reasoning:
- Live issues for judicial review concern the Canadian Food Inspection Agency’s interpretation and application of a country of origin labelling requirement under the Food and Drug Regulations to wines produced in the West Bank, and whether these labels were false or misleading. The panel will engage in reasonableness review of the case, and not correctness review, which is doomed to fail according to Justice Stratas. The reasonableness review will depend on whether the Agency conducted an adequate investigation in light of its governing legislation and provided sufficient justification for its decision. The panel will also consider whether the Federal Court was well-founded to hold that the Agency should have considered freedom of expression under section 2(b) of the Canadian Charter.
- Moving parties notably intend to submit arguments related to the illegality of Israel’s occupation of the West Bank, grounded in human rights and humanitarian law, and the applicability of section 2(b) of the Canadian Charter, in light of international law.
- Such submissions are doomed to fail as the relevant provisions of the Food and Drugs Act, Food and Drug Regulations and Consumer Packaging and Labelling Act neither intend to implement Canada’s international obligations nor the question of Israel’s occupation of the West Bank. Rather, they generally seek consumer protection, quality assurance and safety. The moving parties’ proposed use of international law contradicts Court authorities’. International law serves the interpretation of domestic law in very limited cases, and cannot be used to amend domestic legislation.
- Furthermore, the interveners’ aim in approaching the legislation with regard to international law is irrelevant to the authentic aim of the legislation, that is the discernment of legislative purpose. The product labelling provisions at stake were not formulated out of regard for international instruments invoked by the moving parties.
- The argument according to which international law is part of the process of applying the relevant legislation to the facts of the case is doomed to fail. When interpreting domestic law, an administrative decision-maker cannot consider international law as a directly binding source.
- On the argument that the labels on the wines violate section 2(b) Charter rights, Justice Stratas holds that the panel will consider whether the Federal Court correctly held that the Agency should have considered issues under the section, but not substantially, which would be the role of the Agency.
Justice Stratas concluded that the moving parties’ interventions will not advance the determination of the panel, as they are aimed at supporting the appeal of the main respondent Dr. Kattenburg. Their submissions will be neither useful nor necessary to determine how the Agency applied domestic labelling requirements in legislation to specific imported food products.
CLAIHR and Al-Haq’s et.al Application for Leave to Appeal
Following this, on 4 December 2020, CLAIHR and Al-Haq et. al filed a joint motion seeking leave to appeal to the Supreme Court of Canada filed pursuant to Section 40 of the Supreme Court Act, RSC 1985, c S-26. CLAIHR and Al-Haq seek to provide guidance on the interpretation of the Canada Israel Free Trade Agreement with due consideration of Canada’s international obligations under international human rights and humanitarian law. More specifically, mislabelling products originating from an occupied territory contribute to legitimizing the unlawful occupation of the West Bank and the attached violations of human rights and humanitarian
The applicants argue that:
- The Appeal raises a matter of national importance. Interventions have consistently supported Canadian courts’ decisions regarding human rights-related issues beyond the litigants. The core elements of the test for intervention, as established under the Reference re Workers’ Compensation Act 1983 are: (1) whether the applicant has an interest in the matter, and (2) can provide submissions that will be useful and different than the parties. By concluding that most issues raised by the interveners were doomed to fail, Justice Stratas denied the impact of the case decision on consumers’ freedom of expression and Canada’s international legal obligation. The decision to not grant the motion to intervene runs counter to the Court’s role to make independent and impartial decisions that give due regard to context and perspectives of those who may be impacted. This requires the reception of public interest organizations’ submissions.
- No Consistent Test for Interveners Before the Federal Court and Federal Court of Appeal. Justice Stratas applied another test for intervention of the one developed under Rothmans, Benson & Hedges Inc. v. Canada (Attorney General) in 1990. Subsequently to his decision, Justice Rennie granted public interest organizations leave to intervene to address international law issues in Montejo v. Attorney General of Canada, based on Rothmans test. This demonstrates inconsistency in the application of intervention tests.
- Intervention Motions are not an Opportunity to Pre-Determine Merits. Justice Stratas’s test for intervention inappropriately leads to assessment of the merits of the case, notably when considering whether the issues are “live” and if the moving parties are “doomed to fail.” This is not the purpose of such interventions.
- Courts Should Be Open to Diverse Perspectives on Public Issues. The case engages the relevant and unsettled issue of wines produced in the occupied Palestinian terriories and their labelling for the purpose of ensuring consumers’ purchasing power in accordance with their beliefs and conscience. Justice Stratas’s approach contradicts the development of human rights, rule of law and access to justice in Canada. As such, the case is a matter of national importance and constitutes the opportunity to address the role of intervening public interest agencies or individuals in such matters.
CLAIHR is a federally-incorporated registered charity. It is a non-governmental organization of lawyers, law students, legal academics and other jurists, founded in 1992 to promote human rights law from a Canadian perspective through education, research, and advocacy.
Al-Haq is an independent Palestinian non-governmental human rights organization established in 1979 in Ramallah, West Bank. Established to protect and promote human rights and the rule of law in the OPTs, the organization documents violations of the individual and collective rights of Palestinians in the OPTs, irrespective of the identity of the perpetrator, and seeks to end such breaches through advocacy before Palestinian legislative and executive bodies, businesses, civil society, regional and international bodies including national and international courts of law.