BenchPress – Vol 44-2 - LawNow Magazine

BenchPress – Vol 44-2

Wines from the West Bank not “Products of Israel”

Kattenburg v Canada (Attorney General), 2019 FC 1003

The applicant, Dr. Kattenburg, is described as a wine lover and activist. He filed a complaint with the Canadian Food Inspection Agency (CFIA) that wines from the West Bank and sold in Canada should not be labelled as “Products of Israel”. The West Bank is not within the State of Israel.

CFIA administers and enforces various acts and regulations, including the Food and Drugs Act, as it relates to food. Section 5(1) of that Act reads:

No person shall label, package, treat, process, sell or advertise any food in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety.

The CFIA concluded that the wines could be sold as labelled. Dr. Kattenburg appealed the decision to the CFIA’s Complaints and Appeals Office (CAO). The “CAO noted that the Canada-Israel Free Trade Agreement … defines Israeli ‘territory’ as including areas where Israel’s customs laws are applied” (at para 3). Israel’s customs laws are applied in the West Bank.

The Federal Court found in favour of Dr. Kattenburg. The Court concluded it was not reasonable for the CAO to allow the wines to be labelled as “Products of Israel” when they in fact come from the West Bank. The Court found the labels to be “false, misleading and deceptive” and to contravene both the Consumer Packaging and Labelling Act and the Food and Drugs Act.

Accommodation Charges for Long-Term Care Residents are OK

Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342

The Elder Advocates of Alberta Society and a group of plaintiffs launched a class action lawsuit against the Government of Alberta. The plaintiffs claimed that the accommodation charge collected by long-term care facilities (nursing homes or auxiliary hospitals) from residents was increased without statutory authorization. The plaintiffs argued that the increased accommodation charge was higher than the actual costs of accommodation and meals. The result, they argued, was that residents were actually subsidizing health care services which were supposed to be provided free. Among other things, the plaintiffs also claimed discrimination under s. 15 of the Canadian Charter of Rights and Freedoms.

The trial judge found that the accommodation charges were within the maximum set by regulation under the Nursing Homes Act. The trial judge also found that the legislation does not require a nexus between the accommodation charge and the actual cost of providing accommodation and meals. However, the trial judge noted, if the legislation requires a nexus, there was sufficient evidence of one. Finally, the trial judge found the plaintiffs had not established substantive discrimination and so their Charter claim failed.

On appeal, the Court of Appeal dismissed the appeal.

The take-away? Accommodation charges imposed by nursing homes and auxiliary hospitals are legal so long as they stay within the maximum set out in the regulations.

Wife Defames Lawyer over Marriage Contract Advice

Levine v Zed, 2019 NBQB 186

Joan Zed asked her lawyer, Allan Levine, to prepare a cohabitation agreement in 2015. She signed the agreement but her new partner, Kevin Zed, did not. Joan and Kevin then decided to get married on October 21, 2016. A few days before the wedding, Mr. Levine called Joan to tell her he had received a marriage contract for her to sign. A lawyer at the law firm where Kevin’s brother worked had prepared the marriage contract. Joan signed the contract on October 20th.

A few months later, Joan realized the marriage contract did not match the cohabitation agreement. The one difference was that the marriage contract stated she would not get anything if Kevin predeceased her. The cohabitation agreement did not say anything about gifts on death.

Joan began posting comments on Facebook and driving by Mr. Levine’s office with posters in her car reading “Lawyer Allan Levine misrepresented me as a favour to a fellow lawyer” and “Allan Levine is A Liar & A Thief”, among other statements.

Mr. Levine filed a defamation lawsuit against Joan. Joan filed a counterclaim that Mr. Levine was negligent, acted in bad faith, and is guilty of collusion and fraud. She claimed significant financial losses.

Unfortunately for Mr. Levine, he had previously been the subject of an investigation by the Law Society of New Brunswick for improperly using his trust account. Thus, the trial judge had to weigh whether Mr. Levine’s past actions were evidence that Joan’s defamatory statements were true.

The trial judge ultimately decided that Mr. Levine had been negligent in advising Joan on the marriage contract. However, the trial judge also found that Joan’s comments were defamatory. He noted Joan seemed to have a distrust of the judicial system. She had asked for the recusal of all Queen’s Bench of New Brunswick’s justices and that the file be transferred to the Federal Court. Joan even filed a complaint against the trial judge to the Canadian Judicial Council!

The damage? The trial judge ordered that each party pay the other $2500 in nominal damages.


Jessica Steingard
Jessica Steingard
Jessica Steingard, BCom, JD, is a staff lawyer at the Centre for Public Legal Education Alberta.

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