In early January, DSA Canada submitted an affidavit requesting the opportunity to participate as an intervener in a legal case before Canada’s Federal Court of Appeal. The appeal relates to a 2022 Federal Court judgment, whereby a large direct selling company challenged a product classification decision made by Health Canada. The submission to intervene was made in conjunction with another industry association, who share related concerns about the case.
The case is significant to direct selling companies operating in Canada, as it brings into question:
- How Canadian regulators classify consumer products; for example, is it acceptable for regulators, based on unwritten inferences, to deviate from existing codified law and guidance, and
- The information they use to make their decisions; for instance, whether product claims made in non-Canadian jurisdictions can be used as a basis for classification decisions by a regulator in this country.
Unfortunately, in March, DSA Canada’s submission to intervene was denied by the court, which effectively ended both associations’ official role in the case. This was disappointing, as it was considered that the parties involved would bring important and unique perspectives to proceedings, which would in turn assist the Federal Court of Appeal in their decision making.
Broadly, the decision rested on whether the Court believed that the interveners’ participation was useful to what the Court had to decide and to the interests of justice, and that they had a genuine interest in the outcome. The judge involved in this application, Justice Stratas, chose to take a strict interpretation of the ability of potential interveners to be approved, and decided that these elements were not fully met.
DSA Canada will continue to monitor this case, and comment and participate in any way that is beneficial to our membership. Further updates will be provided as the appeal proceeds.
DSA Canada is committed to advocating for its membership, particularly in a case such as this that potentially legitimizes government overreach. We will not hesitate to speak up on issues and invest in creating a fairer marketplace for our members.