Canada’s Federal Court of Appeal has ruled that a federal agency’s justification for allowing “Product of Israel” labels on wines produced in Israel’s illegal West Bank settlements is woefully deficient and has ordered the agency to justify its decision.
The Federal Court of Appeal’s decision arises out of a four-year legal battle between human rights activist Dr. David Kattenburg and the Canadian Food Inspection Agency (CFIA).
(In the interests of full disclosure, I am Dr. Kattenburg’s legal counsel in this litigation. I am acting for him on a pro bono basis.)
The dispute began in 2017, after Dr. Kattenburg complained to the CFIA about two wines being sold by the Liquor Control Board of Ontario. The wines are produced in Israeli settlements situated in the West Bank and are labelled as “Product of Israel.”
In accordance with an overwhelming body of international jurisprudence – including a unanimous 2004 decision of the International Court of Justice – Canada’s federal government has taken the position for many years that the West Bank is occupied territory, that it does not form part of the State of Israel, and that Israel’s settlements in the West Bank violate the Fourth Geneva Convention.
For this reason, the CFIA initially agreed with Dr. Kattenburg that the “Product of Israel” labels on wines made in West Bank settlements violate Canadian law, but when the CFIA’s decision became known to pro-Israel lobby groups in Canada and to the government of Israel, the Trudeau government came under intense pressure to force the CFIA to change course.
That is precisely what the CFIA did. In reversing itself, the CFIA relied principally on a provision of the Canada-Israel Free Trade Agreement (CIFTA).
Yet CIFTA has nothing to do with product labelling.
In response to the CFIA’s capitulation to political interference, Dr. Kattenburg filed a judicial review application in the Federal Court of Canada. In July 2019, Madam Justice Mactavish ruled in Dr. Kattenburg’s favour, finding that “Product of Israel” labels on these settlement wines were “false, misleading and deceptive.”
The Attorney General of Canada appealed.
In rendering its decision yesterday, the Federal Court of Appeal stated (my emphasis):
[T]he process of justification, which binds administrative decision-makers, does not necessarily require exhaustive or lengthy reasons and any reasons are to be reviewed in light of the record and submissions made by the parties. But whatever form this takes, where, as here, legislative interpretation is in issue, the administrative decision-maker must demonstrate that its interpretation of the relevant provisions is consistent with their text, context and purpose… Here this demonstration is totally lacking.
While there may be cases where reviewing courts can discern how an administrative decision-maker construed the relevant legislation even though the matter was not explicitly addressed, this is not such a case. We simply have no idea how the Agency construed its legislation in coming to the conclusion that the labels are compliant, including how it addressed the pivotal issues: false and misleading as to what and from whose eyes and from which perspective is the question whether the labels are false or misleading to be assessed?
The Federal Court of Appeal concluded its analysis by remitting the matter back to the CFIA and by directing the CFIA to provide a fulsome and reasonable explanation for its decision after taking submissions from interested parties.
The Attorney General of Canada has now attempted to persuade no less than four Federal Court judges (including the Chief Justice of the Federal Court of Appeal) that the CFIA had a reasonable basis to allow these wines to be labelled as “Product of Israel.” Not one of those judges was persuaded that the CFIA had adequately justified its decision.
Nonetheless, the Federal Court of Appeal has given the CFIA a second kick at the can. This will delay the final resolution of this matter, but there is no reason to believe that the CFIA will ultimately succeed in justifying its decision.
The reason for this is simple: as Canada’s government has long acknowledged, the West Bank is not part of Israel, and the settlements in which these wines have been produced are, in the words of the U.N. Security Council, a “flagrant violation of international law.”
The full decision of the Federal Court of Appeal can be read here: a-312-19-reasons-for-judgment.
