NICK MANCUSO, THE RESULTS COMPANY INC., DAVID ROWLAND, LIFE CHOICE LTD (AMALGAMATED FROM, ROLLED INTO, v. CONTINUING ON BUSINESS FOR, AND FROM,, 2014 FC 708

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 theAct.” [7] Rowland and the Results Company allege that Health Canada has refused licences for some of their products and haswithheld approval for others, causing a steep decline in their business.

They allege that the NPN regime is a form of censorship thatprohibits 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.” Theyalso allege that the enforcement of the Regulations has been “excessive and abusive,” employing “para-military methods ofenforcement.” They allege that they have suffered damage to reputation and economic losses, and Rowland alleges breaches of his rightsunder 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 healthproducts 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 formedfrom 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 anumber of occasions, including searches and seizures dating back to 2001. In 2004, Dr. Dahl and his then company (E.D. InternalHealth) were charged with 42 counts of violating the Customs Act, RSC, 1985, c 1 (2nd Supp.) [Customs Act] and the Controlled Drugsand Substances Act, SC 1996, c 19 [CDSA]. Dr. Dahl and E.D.

Internal Health were found guilty on 33 counts and received a conditionalsentence 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 Actand the CDSA. The charges against the Dahls were stayed due to delay in January 2013, while E.G.D.

Modern Design pleaded guilty on11 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]; trialexcerpt 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 seizurespreceding the charges outlined above, which they characterize as excessive and abusive, including a “heavily armed raid” resulting in theseizure of products and a search of their home in which they allege they were unlawfully detained and a gun was pointed at Mrs.

Dahl’schest. They allege that Dr. Dahl was “falsely convicted” in 2004, and that they were “falsely and maliciously charged […] andprosecuted” beginning in 2010 “for the possession and sale of perfectly safe, natural products… [which] are arbitrarily, vaguely, andoverly-broadly treated as ‘drugs’ and falsely and maliciously enforced as such.” They say that Dr. Dahl has an unwarranted criminalrecord “for not only something he was not responsible for, but also due to the ultra vires, unconstitutional Regulations and theirexcessive and abusive enforcement by the Defendants’ officials” (emphasis in original).

The Dahls and Life Choice also allege thatHealth Canada issued unfounded Health Warning Bulletins on its website regarding safety concerns with Dr. Dahl’s and E.G.D. ModernDesign’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.

Inaddition to the alleged breaches of ss. 7, 8 and 9 of the Charter, the Dahls claim that they “have also had their Charter rights, asconsumers, manufacturers, and distributors, personally breached under ss. 2, 7 and 15 of the Charter for the same reasons and rationale asset 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, thecorporate 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 theSupreme Court of Canada in Winner v SMT (Eastern) Ltd, (SCC), [1951] SCR 887 [Winner] , which right, above andbeyond 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 theClaim 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, 98and 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 theRegulations 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 threeseparate claims combined together into one unduly complex, prolix and convoluted pleading that is so undefined and broad in scope as tobe judicially unmanageable.

They also argue that it does not meet the basic rules of pleading in that it fails to set out a concise statementof the material facts relied upon, is replete with bald allegations and colourful rhetoric, and pleads evidence instead of material facts inmany instances.

The Defendants say it is not possible for them to answer the allegations contained in the pleading by preparing astatement of defence. [15] The Defendants also argue that the Plaintiffs are asking the Court to make findings inconsistent with previous findings madeby other courts in different proceedings, and are attempting to re-litigate matters that were, or ought to have been, raised in earlierproceedings. As such, they say the Claim is an abuse of process.

In addition, the Defendants argue that the corporate Plaintiffs areasserting violations of Charter provisions they are not entitled to invoke, all of the Plaintiffs are seeking prerogative relief (specificallyorders 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 beproven unless they are incapable of proof. They state that the test for striking out pleadings under Rule 221(1)(

a) of the Federal CourtRules, SOR/98-106 [Rules] is whether it is plain and obvious, assuming the facts pleaded to be true, that the claim discloses noreasonable cause of action – that is, it has no reasonable prospect for success: Hunt v Carey Canada Inc, (SCC), [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 thatRule 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 leaveto 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 ofthe action (Rule 221(d)), the Defendants say that the Claim fails to meet the basic rules of pleading, is based upon bald assertions thatare unsupported by any material facts and, taken as a whole, is a lengthy and disorganized diatribe in favour of de-regulation of theproduction, 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 bemet by the other side.

Pleadings establish a landmark by which the parties and the court can determine the relevancy of evidence, both ondiscovery 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 scandalouswhere 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 merelyconclusions of law; (

b) include material facts; (

c) state facts and not the evidence by which they are to be proven; and (

d) state factsconcisely 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 withsufficient 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 (RevenueAgency), 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 paragraphs6, 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 insupport 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 theregulatory 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. Inaddition, 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 failedto 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 anypractice or line of conduct with a nexus to a religious belief or morality to which he subscribes, which is required to establish a breach ofs. 2(

a) of the Charter: Syndicat Northcrest v Amselem, 2004 SCC 47 at para 56. Rather, he simply asserts a preference for certain dietaryfood supplements and vitamins. Without more, the Defendants argue, Mancuso’s s. 2(

a) claim presents no reasonable prospect ofsuccess. [24] The Defendants say Mancuso’s allegations regarding freedom of expression under s. 2(

b) of the Charter are similarlydeficient. Although the Supreme Court of Canada has adopted a wide definition of “expression,” Mancuso has not pleaded any personalattempts 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 thereis a deprivation of life, liberty or security of the person that is inconsistent with a principle of fundamental justice.

He has failed toindicate any health product necessary to his bodily and/or psychological integrity that is made unavailable to him by effect of thelegislation 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 ofsuccess as he has not pleaded disadvantage based on a prohibited or analogous ground.

Mancuso alleges discrimination based on choiceof food, dietary supplements and vitamins. This is not a prohibited ground under s. 15 and has not been recognized or pleaded as ananalogous 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 sincethese Plaintiffs rely entirely upon Mancuso’s facts in support of these allegations, they have pleaded no material facts upon which itmight 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 judiciallyunmanageable, 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 andenforcement” of the Regulations. This request is so sweeping and imprecise as to be entirely unworkable.

The Plaintiffs also ask that theCourt read down the definition of “drug” in s. 2 of the Act to exclude natural health products, but the requested declaration is so vagueand imprecise that the Court would be unable to define with precision the scope of any constitutional invalidity or to provide meaningfulguidance 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 fordamages brought under s. 24(1) of the Charter cannot be combined with an action for a declaration of invalidity based on s. 52 of theConstitution Act, 1982: Mackin v New Brunswick (Minister of Finance), 2002 SCC 13 at para 81 [Mackin]; see also Vancouver (City) vWard, 2010 SCC 27 at para 39 [Ward]; Schachter v Canada, (SCC), [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 soughtfor the enforcement of legislation that was constitutionally valid at the time of enforcement: Zündel v Canada, 2005 FC 1612, aff’d 2006FCA 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 atthe time of enforcement.

Absent conduct that is in bad faith or an abuse of power, public officials are entitled to a sphere of civilimmunity in respect of the acts that give effect to valid grants of statutory authority, and this immunity applies even where that grant ofauthority is subsequently declared unconstitutional. There are no retroactive remedies under s. 24(1) of the Charter: Mackin, above, atpara 78; Schachter, above, at para 89.

Since the Plaintiffs have not pleaded with any particularity any allegations of bad faith or abuse ofpower, even assuming the extensive constitutional invalidities they allege, the Plaintiffs would not be entitled to any damages. TheCrown’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 theyare an abuse of process. The rule against collateral attack protects against attempts to challenge judicial decisions in previousproceedings.

This is complemented by the doctrine of abuse of process in situations where a plaintiff accepts the legal force of a judicialorder, but contests the correctness of that order and/or the factual findings underlying it for the purposes of a different proceeding withdifferent legal consequences: Toronto (City) v Canadian Union of Public Employees (CUPE), Local 79, 2003 SCC 63 [CUPE] at paras33-34.

Canadian courts have routinely struck out civil actions where a plaintiff seeks a judicial finding different from a finding made by atrial judge in a prior criminal proceeding: Demeter v British Pacific Life Insurance Co (1985), (ON CA), 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, 2010FC 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 andJanuary 15, 2009, the correctness of the 2004 and 2013 convictions, and the factual findings underlying those convictions.

Dr. Dahl andE.D. Internal Health unsuccessfully challenged the validity of three search warrants under s. 8 of the Charter in the 2004 criminalproceeding (R v Dahl #1, at para 10), and the Plaintiffs also unsuccessfully challenged the legality of the January 15, 2009 searches inthe 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, atpp. 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 asprincipal. The Defendants argue that the entirety of paragraphs 40-41 of the Claim is premised on the assertion that, contrary to thefindings 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 ofpolice searches and/or the admissibility of evidence in a criminal proceeding that are inconsistent with prior findings made in thePlaintiffs’ criminal trials.

This would undermine the principles of consistency, finality and integrity in the administration of justice, andthis 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 ofthe Charter. While corporations can rely on s. 2(

a) of the Charter in defence to a criminal charge, that provision cannot be used as asword by a corporate plaintiff in civil proceedings: Edmonton Journal v Alberta (Attorney General), (SCC), [1989] 2SCR 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, asthese remedies can only be obtained on application for judicial review: Federal Courts Act, RSC 1985, c F-7, s. 18(3) and Burton vCanada, [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 anywrongdoing on the part of the named Ministers, the Minister of National Health and Welfare does not exist, naming the Attorney Generalof Canada is redundant, and the RCMP is not a suable entity: Mandate Erectors and Welding Ltd v Canada, (FC),[1996] FCJ No 1130, 118 FTR 290 at paras 19-21 (TD) [Mandate Erectors]; Cairns v Farm Credit Corp, (FC),[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, (SCC), [1980] 2 SCR 735; Nelles v Ontario (1989), (SCC), 60 DLR (4th) 609 (SCC) [Nelles]; Operation Dismantle Inc v Canada, (SCC), [1985] 1 SCR 441; Hunt, above;Dumont v Canada (Attorney General), (SCC), [1990] 1 SCR 279 [Dumont]; Trendsetter Ltd v Ottawa Financial Corp(1989), 32 OAC 327 (CA) [Trendsetter]; Nash v Ontario (1995), (ON CA), 27 OR (3d) 1 (Ont CA) [Nash]; Arsenaultv Canada, 2009 FCA 242 [Arsenault].

A claim should be struck “only in plain and obvious cases where the pleading is bad beyondargument” (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), (ON CA), 19 OR (3d) 142 (CA); Adams-Smithv Christian Horizons (1997), 14 CPC (4th) 78 (Ont Gen Div); Miller (Litigation Guardian of) v Wiwchairyk (1997), (ON SC), 34 OR (3d) 640 (Ont Gen Div). Matters not fully settled by the jurisprudence should not be decided on a motion to strike: RDBelanger & Associates Ltd v Stadium Corp of Ontario Ltd (1991), (ON CA), 5 OR (3d) 778 (CA).

Indeed, thePlaintiffs say that, in order to succeed in striking a claim, the Defendants must produce a “decided case directly on point from the samejurisdiction demonstrating that the very same issue has been squarely dealt with and rejected”: Dalex Co v Schwartz Levitsky Feldman(1994), (ON SC), 19 OR (3d) 463 (Gen Div).

Finally, the Court should be generous with respect to the drafting of thepleadings, permitting amendment before striking: Grant v Cormier – Grant (2001), (ON CA), 56 OR (3d) 215, [2001]OJ No 3851 (CA); Toronto-Dominion Bank v Deloitte Haskins & Sells (1991), (ON SC), 5 OR (3d) 417, [1991] OJNo 1618 (Gen Div). [38] The Plaintiffs argue that the Defendants improperly teeter-totter between asserting that certain facts are not “facts” becausethey 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’sguidance: Liebmann v Canada (Minister of National Defence), (FC), [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) injunctiverelief or relief in the nature of prohibition (Claim, at paras 1(e)(i) – (iv)); and 3) monetary compensation by way of damages (Claim, atparas 2(a) – (d)). [40] The Plaintiffs say that declaratory relief goes to the crux of the constitutional right to judicial review: Dunsmuir v NewBrunswick, 2008 SCC 9 [Dunsmuir] at paras 27-31; Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 757; Canada vSolosky, (SCC), [1980] 1 SCR 821 at 830; Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 atparas 134, 140, 143 [Manitoba Metis Federation].

Under Rule 64, declaratory relief may be sought in the Federal Court “whether or notany consequential relief is or can be claimed.” It has been held that declaratory relief can be sought in an action under s. 17 of theFederal Courts Act: Edwards v Canada (2000), (FC), 181 FTR 219, 94 ACWS (3d) 922; see also Canada (PrimeMinister) v Khadr, 2010 SCC 3 , [2010] 1 SCR 44.

Furthermore, “[t]he constitutionality of legislation has always been ajusticiable issue”: Thorson v Canada (Attorney General), (SCC), [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 fromthe 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 aspleaded, 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 (atparagraphs 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’ complaintsdo not rise above a request for particulars, which the Plaintiffs say are provided in Mancuso’s affidavit in the present motion record.

ThePlaintiffs argue that Mancuso’s s. 7 claims are supported by the jurisprudence (Singh v Canada (Minister of Employment andImmigration), (SCC), [1985] 1 SCR 177; R v Morgentaler, (SCC), [1988] 1 SCR 30; Rodriguez vBritish Columbia (Attorney General), (SCC), [1993] 3 SCR 519; Chaoulli v Quebec (Attorney General), 2005 SCC 35, [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 itcannot 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, andthat the Dahls have additional claims under ss. 2, 7 and 15 of the Charter arising out of the manner in which the search warrants wereexecuted, 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 eachdeclaration sought is, in and by itself, precise, clear and discreet.

The only “broad-sweeping” declaration sought, they say, is that dietaryfood supplements and vitamins cannot to be treated as “drugs” under the Act, which relief is well-founded and backed by facts as to theessential 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, thePlaintiffs argue that Mackin, above, is not as absolute as the Defendants suggest when it comes to damages arising from unconstitutionalsubordinate 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 wasconstitutionally valid at the time of enforcement does not cover enforcement that was in excess of, and an abuse of, authority, and badfaith 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 ofprocess do not apply because the judicial forum is different and the issues are different.

Specifically, the criminal proceedings did notdeal with the declaratory relief sought and the claim of damages for abusive and excess enforcement methods. Dealing with theDefendants’ assertions about the relief sought and evidence led at the criminal trials is the purview of the trial judge in the present actionand should not be dealt with on a motion to strike.

The Plaintiffs argue that the present situation involves different judicial proceedingswith different jurisdictions dealing with different grounds and remedies, not a collateral attack, and that recent Supreme Courtjurisprudence 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 FoodInspection 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 samerights 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, (SCC), [1994] 3 SCR 761 [Heywood]; R v Nova Scotia Pharmaceutical Society, (SCC), [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 vaguenessand over-breadth doctrines under s. 7, which a corporation has the right to invoke since corporations are subject to the criminalprovisions 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), (SCC), [1995] 3 SCR 199 [RJR-MacDonald (1995)];Irwin Toy Ltd v Québec (Attorney General), (SCC), [1989] 1 SCR 927 [Irwin Toy]; Rocket v Royal College of DentalSurgeons of Ontario, (SCC), [1990] 2 SCR 232 [Rocket]).

They argue that corporations have a right to seek declaratoryrelief and obtain constitutional remedies with respect to the application and enforcement of statutes governing them: Winner v SMT(Eastern) Ltd, (SCC), [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 arguethat they are entitled to invoke “the equality provisions of the underlying constitutional imperative [of] equality of treatment”: Donald AMacIntosh, Fundamentals of the Criminal Justice System, (Agincourt: Carswell, 1989); Winner, above; Bolling v Sharpe, 347 U.S. 497(1954); Canada v Schmidt, (SCC), [1987] 1 SCR 500. [49] With respect to the Defendants’ argument that they are not entitled to the injunctive relief claimed, the Plaintiffs argue thatnothing prevents the Court from granting injunctive relief in the course of, and ancillary to, an action (Toth v Canada (Minister ofEmployment and Immigration) (1988), (FCA), 6 Imm LR (2d) 123 (FCA) [Toth]; Manitoba (Attorney General) vMetropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110 [Metropolitan Stores]; RJR-MacDonald v Canada (AttorneyGeneral), (SCC), [1994] 1 SCR 311 [RJR-MacDonald (1994)]), and that nothing prevents the Court from grantingrelief “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 onlyDefendant in claims against the government, in cases dealing with constitutional issues this Court has determined that others can bepersonally named: Liebmann, above, at paras 51-52.

Furthermore, the determination of the standing of parties is not best done at thestage 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 amotion is that set out in Toth, above (see also RJR-MacDonald (1994), above, at pp. 333-334; Metropolitan Stores, above). That is, thePlaintiffs 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 thetest is low (RJR-MacDonald (1994)), above, at para 50), and that such a stay is obtainable as against regulatory provisions as well asexecutive action: Toth, above; Metropolitan Stores, above; RJR-MacDonald (1994), above. They argue that the action presents thefollowing 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, atparas 48-51); (

b) That the doctrine of overbreadth and others apply under s. 7, as tenets of fundamental justice, to all legislative provisions whethercriminal, civil, administrative or other (citing Nova Scotia Pharmaceutical, above); (

c) That the Regulations with respect to natural health products are ultra vires the Parliament of Canada and unlawfully intrude onthe exclusive jurisdiction of the Provinces over civil rights, property, food, health and matters of a merely private and local nature (citingthe Constitution Act, 1867, s. 92(7), (13) and (16), Schneider v British Columbia, (SCC), [1982] 2 SCR 112 at 142;RJR-MacDonald (1995), above at para 32; Eldridge v British Columbia (Attorney General), (SCC), [1997] 3 SCR 624at para 24; Reference Re Securities Act, 2011 SCC 66), and is beyond the Federal government’s criminal law power; (

d) That the Regulations are ultra vires the Act as they go beyond the intent and meaning of the enacting legislation; (

e) That the definition of “drug” in the Act is void for vagueness in that it encompasses any and all food and dietary supplements and/ or vitamins and herbs (citing Heywood, above; Nova Scotia Pharmaceutical, above); and (

f) That s. 3(1) and (2) of the Act violate the Plaintiffs’ rights under s. 2(

a) and (

b) of the Charter and s. 1(

c) of the Canadian Bill ofRights (citing Irwin Toy, above; Rocket, above; RJR-MacDonald (1995), above). [54] The Plaintiffs also submit that they will suffer irreparable harm if the statutory provisions are not stayed. Physical andpsychological integrity is protected as a s. 7 right, and “commercial free speech” is protected under s. 2(

a) and (b), and the ongoinginfringement of these rights is not compensable through damages.

Where a serious issue has been established and there is a potentialCharter breach, irreparable harm is made out as such breaches are assumed not to be compensable through damages: RJR-MacDonald(1994), above, at paras 60-61. [55] As to the balance of convenience, the Plaintiffs argue that the provisions sought to be stayed do not deal with any health andsafety issues, and that in the history of the natural health products at issue, there has been no serious injury or death attributed to them.With respect to the public interest, the Plaintiffs point to the Supreme Court’s analysis in RJR-MacDonald (1994), above, at paras 62-67,affirming that that the public interest is a “special factor” to be considered in constitutional cases, but noting that “the government doesnot have a monopoly on the public interest” and it is open to both parties in an interlocutory proceeding involving the Charter to relyupon considerations of the public interest.

Arguments of the Defendants [56] The Defendants argue that the Plaintiffs have not raised a serious issue to be tried, largely on the basis of their argument onthe motion to strike that the Claim as a whole is frivolous and vexatious.

Where this is the case, they argue, no serious issue is raised:RJR-MacDonald (1994), above, at p. 337. [57] With respect to irreparable harm, the Defendants say that the Federal Court of Appeal has repeatedly stated that speculativeharm is not irreparable harm (Canada (Attorney General) v Canada (Information Commissioner), 2001 FCA 25 at para 12 [InformationCommissioner]; International Longshore and Warehouse Union, Canada v Canada (Attorney General), 2008 FCA 3 at paras 25, 33),and argue that the harm alleged by the Plaintiffs is speculative.

For example, while Mancuso identifies three products “eliminated fromthe market” allegedly due to the licensing scheme being challenged, he also states in his affidavit that he uses these products “regularlyand commonly.” He also fails to identify any medical condition from which he suffers that will deteriorate or worsen unless a stay isgranted; his claims to mental and physical distress are unspecified. Thus, the Court is left to speculate as to the nature of the harm thatwill result. The harms alleged by Rowland are similarly speculative.

Moreover, the business income losses he alleges are compensablethrough damages if the Plaintiffs are successful, and thus by definition they do not constitute irreparable harm: RJR-MacDonald (1994),above, at p. 341.

The Defendants note that the law on damages for a Charter breach has developed substantially since RJR-MacDonald(1994), such that it should no longer be assumed that alleged Charter breaches cannot be remedied through damages: see Ward, above. [58] Finally, with respect to the balance of convenience, the Defendants note that the public interest has central importance inassessing the balance of convenience in Charter cases (RJR-MacDonald (1994), above, at p. 343), and argue that legislation is presumedto serve the public interest, even in the face of a constitutional challenge: Harper v Canada (Attorney General), 2000 SCC 57 at para 9[Harper].

In most cases, they say, this presumption is determinative on a motion for an interlocutory injunction, which will only begranted based on alleged unconstitutionality in “clear cases”: Harper, above, at para 9. It is rare for a claim alleging constitutionalinvalidity to meet this threshold for at least two reasons: 1) the extent and meaning of the rights guaranteed by the Charter are oftenambiguous, particularly where the constitutionality of the impugned provisions has not been previously litigated; and 2) it remains open

to the government to justify a breach of those rights based on s. 1 of the Charter (Metropolitan Stores, above, at paras 42, 44). At theinterlocutory stage, the Defendants argue, a reviewing court is simply not in an adequate position to assess the merits of a reasonablelimitation argument. [59] In this case, the Defendants argue, the impugned provisions have the purpose of protecting the health and well-being ofCanadians by prohibiting the advertising and labelling of drugs for serious diseases and by regulating the manufacturing, labelling,advertising and sale of natural health products.

Even the temporary staying of these provisions would deprive officials of tools thatParliament and the Governor in Council have enacted to protect the health and safety of the public. Thus, in advance of any finding ofunconstitutionality, the balance of convenience must favour the maintenance of validly-enacted legislation, and the Plaintiffs’ motion foran injunction must be dismissed. [60] In addition, the Defendants argue, the Plaintiffs have provided no compelling basis to rebut the presumption that the balanceof convenience favours the continued operation of the challenged laws.

Financial loss is not sufficient to bring a claim within the smallminority of cases where the interlocutory staying of legislation can be justified: Evangelical Fellowship of Canada v Canadian MusicalReproduction Rights Agency, (FCA), [1999] FCJ No 1391, [2000] 1 FC 586 (FCA) at para 32. There is no basis hereto find that the public interest is served by granting a stay of the impugned legislation. ANALYSIS Motion to Strike The Law [61] There is no disagreement between the parties as to the rules and principles applicable in a motion to strike.

The disagreementarises over their application to the facts of this case. [62] This motion is brought under subrules 221(a), (c), (

d) and (f). The Defendants say that the Claim does not satisfy the basicrules of pleading. They say it is scandalous, frivolous and vexatious, that it will prevent the fair and effective trial of the action, and thatat least in

part it constitutes a collateral attack on judicial decisions rendered in other proceedings. They say that the Claim is so deficientthat it should be struck in its entirety.

The General Challenge [63] As the Defendants point out, the Claim constitutes a challenge to the Act and the Regulations. [64] In oral argument, the Plaintiffs have told the Court that they are only challenging the NPN and safe licensing aspects of theAct and Regulations as well as the overly broad definition of “drug” found in s. 2 of the Act that allows any food, dietary foodsupplement, nutritional food derivative, or vitamin to be classified as a drug for purposes of the legislation, even when such substancesdo not pose a health risk.

The Plaintiffs say that they do not wish to challenge the health and safety aspects of the legislative scheme. Thebasic assertion is that food, dietary food supplements and vitamins should be classified as food, and not drugs, and that the enforcementand inspection system to which they are subject should be akin to the food inspection and enforcement system, and not thepharmaceutical and/or prohibited drug system. [65] It seems to me that these objectives are adequately and clearly embodied in the CLAIM

section of the Claim along with thelegal ramifications and basis for the relief being sought. The issue is whether the balance of the Claim is sufficiently compliant with therules of pleading. In other words, does the Claim plead with sufficient particularity the constituent elements of each cause of action orlegal ground raised, and does it provide a sufficient factual basis in an appropriate and

summary form? [66] The Defendants, however, feel that at least portions of the CLAIM

section should be struck for several reasons:

a) The claims are too broad and abstract. The substances at issue are not specified (apparently some 55,000 substances are presentlyregulated); b) 1(a)(viii) is a repetition of 1(a)(i); c) 1(a)(ix) lacks the specificity required of pleadings. The Defendants need to know the names of the officials involved, and thetime and places of the violations at issue; d) 1(a)(

x) is too abstract and requires the material facts related to the Plaintiffs; e) 1(a)(xi) is likewise too abstract and needs materials facts related to the Plaintiffs. [67] As regards 1(

a) of the CLAIM section, the Plaintiffs are merely stating in a general way the relief they are seeking and thebasis for that relief. There is no need to state the specifics here if they can be found in the balance of the Claim. In my view, 1(a)(viii) isnot a repetition of 1(a)(

i) because it states a different legal basis for declaring the definition of “drug” to be void. [68] As regards 1(

b) of the CLAIM section, the Defendants raise the following concerns: a) 1(b)(

i) is too broad and unmanageable. It says the “entire scheme and enforcement, […] is unconstitutional in breaching

section 7of the Charter in its reverse onus enforcement […]”;

b) 1(b)(ii) is likewise too broad and unmanageable. Specifics are required. The usual way to attack a scheme of enforcement is byway of judicial review of a particular administrative decision under the Act, rather than by way of an action; c) 1(b)(iii) raises the same concerns; d) 1(b)(iv) is too broad because it requires the Court to declare that anyone can eat what they want without restriction by the State. [69] My reading of these paragraphs in the CLAIM

section is that 1(b)(

i) only deals with the “reverse onus” aspect of enforcementand that 1(b)(ii) only deals with over breadth with respect to NPN licensing and compliance costs. Hence, I see nothing inappropriateabout these paragraphs. [70] As regards 1(b)(iii), it seems to me that the reference to a “large number of persons” is a problem because it is unnecessarilybroad and unmanageable.

However, the intent may be that the discrimination occurs “against any person, who, like the individualPlaintiffs, have a preference […].” Hence, the final seven lines of 1(b)(iii) should be struck with leave to amend. [71] I also agree that 1(b)(iv) is much broader than what the Plaintiffs say is their purpose in bringing this claim. I don’t see howthe Court could possibly, on the facts pleaded, deal with a request for such a broad declaration, or how the Defendants could defend.Hence, this paragraph should also be struck with leave to amend. [72] As regards 1(

c) of the CLAIM section, the Defendants complain that the Plaintiffs are asking the Court to review the wholescheme for classification, inspection and enforcement of food, dietary food supplements and vitamins and declare how it should beregulated. I agree with the Defendants that this is far beyond what is required in the present case, or indeed the power of the Court. Itwould involve the Defendants and the Court in a broad inquiry (there are presently 55,000 approved health products) and in a broad-ranging policy discussion as to how such products are best regulated.

Even if this were an appropriate role for the Court to assume –which it is not (see Friends of the Earth v Canada (Governor in Council), 2008 FC 1183 , [2009] 3 FCR 201 at paras 25, 33,36, 39-40, 45 aff’d 2009 FCA 297; Canadian Union of Public Employees v Canada (Minister of Health), 2004 FC 1334 at para 40) – thepleadings do not, when read as a whole, provide any factual basis for such a broad declaration. Paragraph 1(

c) should be struck. [73] As regards 1(

e) of the CLAIM section, the Defendants have the following complaints:

a) The prerogative relief of prohibition and injunction is not available in an action; b) 1(e)(

i) is too broad and a declaration of invalidity is sufficient;

c) With respect to 1(e)(ii), there is nothing in the Claim that provides a factual or legal basis for an interference with NAFTA,GATT, the WTO, and related agreements, policies regulations, and rulings; d) 1(e)(iii) asks for a general prohibition that goes will beyond the issues and facts set out in the Claim; e) 1(e)(iv) is far too broad in that it refers to “any advertising” and it should be made clear that the intent is to deal with sections 3(1)and 3(2) of the Act. [74] I see no reason to rule at this stage that the prerogative remedies are not available in an action.

See my decision in Sivak #1,above, at paras 36-44. In Manuge, above, one of the companion cases to Telezone, above, the plaintiff sought declarations of invalidity(on both Charter and administrative law grounds), constitutional remedies and damages or restitution in the context of an action, and theSupreme Court raised no concerns with this approach in ruling that the claim should be permitted to proceed in the Federal Court: seeManuge, above, at paras 1, 9-10 and 17-24.

In the companion case of Nu-Pharm, above, the Supreme Court raised no concern that theplaintiff sought injunctive relief along with damages in the same claim before this court. In Ward v Samson Cree Nation, [1999] FCJ No1403, 247 NR 254 (CA), the Court of Appeal found that a claim for declaratory relief could be added to a claim for damages through anamendment to the statement of claim, though the majority and minority differed on the basis for doing so.

See also Hinton v Canada(Minister of Citizenship and Immigration), 2008 FCA 215 at paras 49-50 and 54. [75] In both Manuge and Telezone, the Supreme Court noted that there is “a residual discretion to stay an action if it is premised onpublic law considerations to such a degree that […] ‘in its essential character, it is a claim for judicial review with only a thin pretence ofa private wrong’”: Manuge, above, at para 18, quoting Telezone, above, at para 78. It is not enough, however, for a defendant to claimthat some of the matters at issue would be amenable to judicial review.

If there are valid causes of action pleaded – which an amendedstatement of claim may yet disclose in this matter – this suggests there is more than a thin pretence of private wrong and the plaintiff willnormally be permitted to pursue the action: Manuge, at paras 19-21; Telezone, at para 76. [76] Paragraph 1(e)(

i) is too broad in that it refers to paragraph 1(

c) which has been struck, but I don’t see that the references toparagraph 1(

a) or (

b) cause a problem. Consequently, the reference to paragraph 1(

c) should be struck from paragraph 1(e)(i). [77] I agree with the Defendants’ objections to paragraph 1(e)(ii), (iii) and (iv). The relief requested here goes well beyond whatthe facts and law pleaded in the rest of the Claim can support. Consequently, these paragraph should be struck.

The Damage Claims [78] The Defendants say that the damages claims have no reasonable prospect of success and that the Plaintiffs are improperlyseeking relief under both s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. [79] Relying upon Mackin, above, and Justice Hughes’ decision in Zündel, above, the Defendants say that, absent conduct that is inbad faith or an abuse of power, damages are not available where a plaintiff seeks civil remedies arising from the application of a law thatwas constitutionally valid at the time of enforcement.

[ 80 ] The Plaintiffs say that Mackin is not absolute, and does not prevent damages for unconstitutional subordinate regulations. Further, they say that TeleZone , and Sivak #1 , both above, make it clear that the Plaintiffs can seek declaratory relief and damages together. They argue that Mackin does not cover the situation where damages are not barred by the expiry of a limitation period, and does not prevent a claim for damages where enforcement has occurred in excess and abuse of authority, or in bad faith, as pleaded in the present case. [ 81 ] I agree that the rule in Mackin is not absolute.

As the Supreme Court explained in Ward , above at para 39 , the consequence of Mackin is that a claim for damages for state conduct pursuant to a statute that was valid at the time will be struck unless the state conduct under the law was “clearly wrong, in bad faith or an abuse of power.” The rule of law demands that duly enacted laws be enforced until declared invalid, and in the absence of “threshold misconduct” as just described, no claim for damages under s. 24(1) of the Charter (or any other claim for damages) will result from that enforcement if the law is subsequently declared invalid: Ward , above, at paras 39, 41 ; Mackin , above, at paras 78-79 .

The Court in Mackin went on to say (at para 81 ): [81] In short, although it cannot be asserted that damages may never be obtained following a declaration of unconstitutionality , it is true that, as a rule, 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. [Emphasis added] [ 82 ] I see nothing in Mackin that suggests the application of the above principles is in any way dependent on whether or not damages are barred by the expiry of a limitation period.

That is a separate issue. [ 83 ] The Plaintiffs do plead that methods of enforcement of the Act and the Regulations are in excess and are an abuse of authority at paragraphs 19-21, and make further allegations of malicious intent and improper purpose or bad faith in relation to enforcement actions against the Dahls and their company at paragraph 92. However, each of these pleadings must be struck for reasons I will outline further below.

If the Plaintiffs wish to maintain an action for damages arising from the enforcement of the portions of the Act and the Regulations which they claim are 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.” The Facts [ 84 ] The Defendants say that paragraph 6 of Claim offends the rules of pleading because it makes general, unsupported assertions about natural health products that “have been safely consumed for centuries, in various forms, without regulations, prohibition, nor enforcement as ‘drugs’, prior to 1985-2005.” [ 85 ] I agree that this is little more than an unsupported assertion and, in its present form, it is not possible for the Defendants to answer.

The Defendants need to know at least:

a) What specific products are referred to;

b) When and where they have been consumed;

c) By whom have they been consumed;

d) In what forms have they been consumed. [ 86 ] Paragraph 6 should be struck for failure to plead sufficient material facts to support the assertion made. [ 87 ] Paragraph 7, likewise refers in a general way to “draconian tactics usually reserved for dangerous, armed criminals and terrorists.” There are insufficient facts pleaded to support this broad assertion or to save it from being scandalous and vexatious, and, in its present form, it is impossible to defend against without investigating every instance of enforcement.

The Defendants are also being asked to examine, and the Court to rule on, the erroneous classification of “any and all ‘foods’ as ‘drugs’.” As there appear to be, according to Defendants’ counsel, some 55,000 substances to deal with, this is simply unworkable for the Defendants and the Court. It seems to me that some specific substances and foods are required together with the facts to support the basic assertion of arbitrary selection. Paragraph 7 should be struck. [ 88 ] Paragraph 8 is similarly problematic.

It is not clear whether the Plaintiffs are asserting that the Defendants have selected and prohibited the sale of prunes, or have prohibited health claims for prunes, chamomile and oregano, or whether they are saying this could happen. And there is no indication of how these examples are connected to anything that the Plaintiffs might have suffered.

Paragraph 6 refers to the Plaintiffs as consumers, producers, distributors and vendors, but unless the Defendants know which dietary food supplements and vitamins they produce, distribute, sell and consume, it is impossible to know if any of what may be hypothetical examples are reasonable or have any relevance for the Plaintiffs. Paragraph 8 should be struck for these reasons. [ 89 ] Paragraph 9 may or may not be a reasonable hypothesis.

Without specific instances, or the material facts as to the erroneous classification and arbitrary selection of all foods and substances presently classified, the Defendants cannot defend these assertions or answer hypothetical examples. [ 90 ] The Plaintiffs appear to be avoiding specific foods and substances because they wish to have all natural health products declared foods and freely available, with the right to claim health benefits, without restraint.

But they are not providing the material facts required on all natural health products to support why this is justified and allow the Defendants to answer the case and the Court to adjudicate it. Nor are they explaining or providing the facts to connect all natural health products to them. [ 91 ] In my view, then, paragraphs 6, 7, 8, and 9 have to be struck.

[ 92 ] The Defendants object to paragraph 10 of the Claim as being argument and not facts. In my view, this paragraph contains a statement of the facts upon which the Plaintiffs rely to distinguish dietary food supplements from drugs. I see nothing improper with this paragraph. [ 93 ] The Defendants also object to paragraph 11 as unsupported assertion and argument. There is no fact stated with respect to any particular health product and the Court is being asked to draw a single conclusion about all natural health products.

In my view, however, this paragraph is a statement about Health Canada’s approach to enforcement and the reasons why the Plaintiffs consider such an approach to enforcement to be inappropriate. I don’t see why the Defendants should have any difficulty in answering this paragraph. It either describes Health Canada’s approach to enforcement or it doesn’t. [ 94 ] The Defendants object to paragraph 12 of the Claim as having no relevance and for not being connected to any of the Plaintiffs , and because no declaration is sought with regard to

Schedule F of the Regulations . In my view, however, this paragraph does no more than provide specific facts to show that dietary food supplements are listed together with pharmaceuticals and are treated in the same way. These are facts to support the Plaintiffs’ claim that natural health products are dealt with inappropriately under the Act and the Regulations. This paragraph is simple to answer. These substances either are listed, or are not listed, in

Schedule F. [ 95 ] The Defendants object to paragraph 13 as being argument, bare legal conclusions and too wide-ranging in that it refers to every dietary food supplement and every drug. It seems to me that the paragraph is an attempt to explain and provide the facts to support the Plaintiffs ’ principle proposition that natural health products should not be listed and treated in law like drugs because drugs have different properties and propensities from natural food products. The only sentence I can see as objectionable occurs in 13(

g) and reads “we have, in Canada, an alarming growth of these diseases termed ‘iatrogenic’ (physician caused).” This is objectionable because there are no facts pleaded to support what is a bare conclusion and a matter of opinion. It is also irrelevant to the factual comparison between drugs and natural food products. Like “Death is the most permanent side effect of all” in 13(d), it is inserted for colour and to promote natural food products at the expense of pharmaceuticals.

This sentence should be struck. [ 96 ] The Defendants also object to paragraph 14 as being too broad and as involving a policy debate about what products should be regulated by Health Canada, which the Court cannot decide. They also argue that it contains bare conclusions and assertions rather than material facts. I have to disagree with the Defendants.

Once again, the paragraph is a statement of the material facts upon which the Plaintiffs rely to distinguish “nutrients” from drugs, and these facts are recited to support their argument that nutrients should not be regulated like drugs, which in turn gives rise to the relief that is requested. I do not see this as requiring the Court to decide policy.

The issue for the Court will be whether, as a result of natural food products being regulated in the way they are, have the Plaintiffs established a right to the relief they seek on the basis of the forms of action and breaches of rights which they allege? [ 97 ] The Defendants say that paragraph 15 is improper for a number of reasons:

a) It deals with Dr. Dahl’s past convictions under the CDSA and has nothing to do with the relief being sought in this claim in relation to the Act and the Regulations; b) 15(

f) does not plead facts; c) 15(

g) is colourful in its assertion that RCMP officers “have guns drawn every time when they raid vitamin suppliers.” This is a fact the Plaintiffs cannot possibly know. [ 98 ] In general, I agree with the Defendants on most of these points and, as I point out later, I also agree that the bulk of the pleadings with respect to Dr. Dahl have to be struck as an abuse of process, and the remainder must be struck for other reasons. I see nothing wrong, however, with the subparagraphs (a), (b), (

c) and (

h) and find that they can be separated from the other subparagraphs. It is my view that only subparagraphs (e), (f), and (

g) should be struck. [ 99 ] The Defendants object to paragraph 16 as containing unmanageable bald assertions, unsupported by material facts. The Plaintiffs concede that paragraph 16 probably belongs, for the most part, in the CLAIMS sections. I think the best approach, then, is to strike paragraph 16 in its entirety so that the Plaintiffs can correct the problem by way of amendment. However, I also point out the following:

a) There is a significant amount of overlap with the CLAIMS as already set out and the Plaintiffs should ensure that repetition does not occur;

b) Moving paragraph16(

f) to the CLAIMS

section will not cure the problem because these are material facts pleaded to support the assertion;

c) The kind of assertion that is found in paragraph16(

g) involves a general inquiry into all of the natural health products being regulated and is not connected to the individual Plaintiffs . It is more argument than pleading;

d) The kind of bald assertion found in paragraph16(

m) about “confusion” is unacceptable without the specifics. As pleaded, it is nothing more than an opinion or argument;

e) The same goes for paragraphs 16(s), (t), (u);

f) Paragraph 16(

y) again refers to “Draconian methods of enforcement” as though they are ubiquitous and routine, but there are insufficient materials facts to support such an assertion. If the Plaintiffs intend to re-draft paragraph 16 for inclusion elsewhere in the Claim, these problems should be born in mind. [ 100 ] Paragraph 17 of the Claim alleges that the Government specifically designed the regulations to be cost prohibitive for and to eliminate small producers, distributors etc. Legislative purpose could be relevant to some of the constitutional analysis, including the

division of powers issues (if found to be economic regulation of a specific industry, it would presumptively fall under the provincialpower over property and civil rights). On the other hand, if this allegation is meant to establish bad faith, then it offends the rules ofpleading because bad faith has to be pleaded with more particularity, per Merchant Law, above.

I think the Plaintiffs must amend thepleading to clarify this point, and to plead the allegation with sufficient particularity if it is intended to establish bad faith, before they canbe permitted to pursue such a claim through discovery and at trial. [101] The Defendants object to paragraph 18 of the Claim as being too broadly worded as a general attack on the regulatory schemeof the Act and the Regulations that is not connected to any material facts pleaded.

It contains unsupported general conclusions – 18(b) –and applies to all applications – 18(c) – under the scheme. [102] In my view, paragraph 18 is an attempt to provide material facts to support a general assertion that the regime under the Act andthe Regulations is vague, overly-broad and arbitrary. This is necessary background for the Plaintiffs specific complaints: a) 18(

a) is a clear statement of fact; b) 18(

b) is a straight statement of fact about what qualifications are required of any decision-maker. It does not require an assessmentof every decision and every official; c) 18(

c) is a statement of fact about how any application is assessed and that science plays no part and no reasons are given; d) 18(

d) is likewise a statement of fact; e) 18(

e) is likewise a statement of fact; f) 18(

f) is unacceptable as a bald, unsupported assertion and requires specific facts; g) 18(

g) is a

summary of the character and impact of the facts previously pleaded but it is laden with argument. I agree with the Defendants that these facts about the administration of the regime may not avail the Plaintiffs in the relief they seek forreasons of relevance to the Plaintiffs’ own experience with the system. But at this stage, apart from 18(

f) and 18(g), I don’t think theycan be struck as inadequate pleading. My conclusion is that 18(

f) and 18(

g) must be struck but that the balance of paragraph 18 canremain. [103] This highlights 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 factsand counsel is then at liberty to present in argument any legal consequences which the facts support: see Conohan v The Cooperators,[2002] 3 FC 421, 2002 FCA 60. I have attempted to be sensitive to this and to evaluate facts pleaded in relation to more than one type ofclaim or cause of action where they could reasonably be seen as relevant.

Still, the Plaintiffs bear the responsibility of pleading thematerial facts in a manner that discloses a cause of action recognized in law, and it is inevitable that the manner of pleading will affectwhether a claim is recognizable or not. The pleadings play an important role in providing notice and defining the issues to be tried, andthe Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes ofaction: see Johnson, above, at para 25.

Rather, “[e]ach constituent element of each cause of action must be pleaded with sufficientparticularity”: Simon, above, at para 18. [104] The Defendants object generally to paragraphs 19-21 of the Claim as being bare general assertions without supporting facts. Asnoted above, these paragraphs (and paragraphs 19 and 21 in particular), amount to a pleading that the Defendants’ enforcement actionswere an abuse of authority and/or conducted in bad faith.

Thus, the Court must bear in mind the guidance of the Court of Appeal inMerchant Law, above, at para 34-35: [34] I agree with the Federal Court's observation (at paragraph 26) that paragraph 12 of the amended statement of claim "contains aset of conclusions, but does not provide any material facts for the conclusions." When pleading bad faith or abuse of power, it is notenough to assert, baldly, conclusory phrases such as "deliberately or negligently," "callous disregard," or "by fraud and theft did steal":Zundel v. Canada, 2005 FC 1612, 144 A.C.W.S. (3d) 635; Vojic v.

Canada (M.N.R.), (FCA), [1987] 2 C.T.C. 203, 87D.T.C. 5384 (F.C.A.). "The bare assertion of a conclusion upon which the court is called upon to pronounce is not an allegation ofmaterial fact": Canadian Olympic Association v. USA Hockey, Inc. (1997), (FC), 74 C.P.R. (3d) 348, 72 A.C.W.S.(3d) 346 (F.C.T.D.). Making bald, conclusory allegations without any evidentiary foundation is an abuse of process: AstraZenecaCanada Inc. v. Novopharm Limited, 2010 FCA 112 at paragraph 5.

If the requirement of pleading material facts did not exist in Rule 174or if courts did not enforce it according to its terms, parties would be able to make the broadest, most sweeping allegations withoutevidence and embark upon a fishing expedition. As this Court has said, “an action at law is not a fishing expedition and a plaintiff whostarts proceedings simply in the hope that something will turn up abuses the court's process”: Kastner v.

Painblanc (1994), 58 C.P.R.(3d) 502, 176 N.R. 68 at paragraph 4 (F.C.A.). [35] To this, I would add that the tort of misfeasance in public office requires a particular state of mind of a public officer in carryingout the impunged action, i.e., deliberate conduct which the public officer knows to be inconsistent with the obligations of his or heroffice: Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69 at paragraph 28. For this tort, particularization of theallegations is mandatory.

Rule 181 specifically requires particularization of allegations of "breach of trust," "wilful default," "state ofmind of a person," "malice" or "fraudulent intention." [105] Paragraph 19 is drafted as 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, and it istelling that they only refer to one example in their own case (the experiences of the Dahls).

A claim that does not plead sufficientmaterial facts for the defendant to know how to answer is a vexatious pleading (Kisikawpimootewin v Canada, 2004 FC 1426; Murray vCanada (1978), 21 NR 230 (FCA)), nor can an action be brought on speculation hoping that sufficient facts will be obtained duringdiscovery to substantiate the pleadings (AstraZeneca Canada Inc v Novopharm Ltd, 2009 FC 1209, aff’d 2010 FCA 112; Sivak #2,above, at paras 30-31). The appropriateness of enforcement procedures as well as their purpose can only be assessed and adjudicated byknowing the full facts and context of each individual case.

That is an impossible action to mount and to defend when there must bethousands of instances. As drafted, this is a colourful assertion unsupported by the facts as pleaded. It has to be struck. [106] Paragraph 20 has similar problems. It asserts a general practice but cites no specific instances. Whether or not this is a generaland invariable practice is a fact that can be defended, but it need not go further than that. If it is not a general and invariable practice thenthe Defendants need not make or address specific instances unless the Plaintiffs have pleaded specific instances correctly.

Hence, I thinkit needs to be made clear by the Plaintiffs whether what they refer to here is something mandated by the Act or the Regulations, orconduct set out in some administrative policy of directive, or whether they are referring to what individual officials have chosen to dothat is either in breach of the Act or the Regulations or not required for the purposes of the regime.

If the Plaintiffs intend this as astatement of what all officials do then they need to plead the facts to show that it always occurs (which seems impossible to me) orindividual instances of this having happened that the Defendants can answer and the Court can adjudicate. Paragraph 20 as presentlydrafted should be struck so that these matters can be clarified by amendment. [107] Paragraph 21 has the same problems as paragraph 19.

It asserts conduct that occurs in all instances and which the Plaintiffscannot know, the Defendants cannot defend, and the Court cannot manage or adjudicate without knowing the full facts and context ofeach instance. In addition, it alleges that Health Canada officials repeatedly engaged in a practice of misleading the RCMP, which is aserious allegation of bad faith that would need to be pleaded with much greater particularity to avoid being vexatious: see Merchant Law,above, at paras 34-35, and Rule 181.

This paragraph should be struck. [108] The Defendants object to paragraphs 22 and 23 of the Claim on the grounds that Rowland is attempting to use the doctrine ofreasonable expectations as a sword in a context where, even if the facts pleaded are true, all he is saying is that his personal expectationswere not met. I agree that the doctrine of reasonable expectations (or legitimate expectations as it is sometimes called) cannot be used inthis way and that no valid basis is pleaded and no reasonable cause of action is set out in these paragraphs. See Mackin, above, at para83.

As the Supreme Court has consistently held, “[t]he doctrine of reasonable expectations does not create substantive rights, and doesnot fetter the discretion of a statutory decision-maker”: Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 SCR 249, 2002SCC 11 at para 78; Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 26;Reference Re Canada Assistance Plan (B.C.), (SCC), [1991] 2 SCR 525 at paras 58-59.

None of the Plaintiffs couldhave any legitimate expectation that the Government of Canada would change the Regulations or take any other action based on a publicannouncement by a Minister of the Crown that he intended to follow the recommendations of a Parliamentary Committee. Paragraphs 22and 23 should be struck. [109] The Defendants make extensive objection to Mancuso’s Charter claims as set out in paragraphs 24 to 30 of the Claim: (

a) The claims pleaded by Mancuso are similarly composed of bald assertions of Charter infringements unsupported by materialsfacts. Mancuso pleads that the entirety of the “current scheme” violates his rights under sections 2, 7 and 15 of the Charter. Mancusofails to specify the health product(

s) that are not made available to him as a result of the Food and Drugs Act or the Natural HealthProduct Regulations, or that he has unsuccessfully taken steps to obtain any such products. (

b) Mancuso also fails to plead the constituent elements of the Charter violations he asserts.

Section 2(

a) of the Charter protects thesingle integrated concept of “freedom of conscience and religion”. To successfully establish a breach of

section 2(a), a claimant mustdemonstrate that he/she has a prac

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