Assignment 2- Due: November 18/19, 2013 - Instructor: Greg Flynn

Poli Sci 3NN6

By: Hanin Abuzaid
1051870

The following paper will address the issue at hand concerning Dr. Norway and his
new product, and determine whether the decision of the Minister was correct or
reasonably appropriate, and under what standard should the court review it. Next, the
facts of the case will be applied to each element of the applicable law including the
privative clause, expertise, purpose of provision and the nature of the problem as well as
the Food and Drugs Act. Next, the relevant and applicable source of legal test will be
conducted in reference to Baker v. Canada and finally, any precedent of tribunals
standard of review will be analyzed in the concluding analysis.
After Dr. Norway established Dr. Norways Gold Food he applied to Health
Canada for a license to sell his natural product in accordance with the regulations under
the Food and Drug Act and was subsequently denied by the Minister. The Minister
determined that Dr. Norways Gold Food contained exceptionally high amounts of
caffeine and sugar and little of much else. Thus, the Minister rejected Dr. Norways
license application on the grounds that substantial intake of Gold Food could result in
injury to the health of the consumer based on Section 7(d) of the Food and Drugs Act. In
analysis of the law in relation to Baker v. Canada, there was no Privative Clause in this
case, as seen in Section 9(2) of the Food and Drugs Act where it is stated that the
applicant may request reconsideration from the Minister. Therefore, no Privative Clause
was in place. Next, the expertise of the Minister in rejecting Dr. Norway was based on
the ingredients of his product and the subsequent effect it may have on the consumer. She
analyzed the ingredients and deemed them to be harmful if taken in substantial amounts
and thereby rejected his application. Furthermore, the Ministers purpose of provision
was to protect possible consumers and in this case Dr. Norway planned to market his
product to students in high school and university. The Minister displayed a high
deference in the purpose of provision because even after Dr. Norway reapplied, she still
deemed his product to be potentially harmful to the consumer. In fact, the nature of the
problem was the ingredients of Gold Food, as it was a highly saturated beverage
containing large amounts of sugar and caffeine. The legality of the matter was that the
Minister could not approve the license when she felt that Dr. Norway was violating
Section 7(d) of the Food and Drugs Act in which the license may be rejected if it is likely
to result in injury to the health of the purchaser. Furthermore, a precedent was set with
Vanilla Coke, which had not been approved for sale in Canada, and Dr. Norways Gold
Food was found to be very similar to the product.
The Ministers decision to reject Dr. Norways application and appeal was
fair because she had accurately assessed the ingredients and product and found them on
both occasions to pose a threat to the consumer. In Dr. Norways reapplication even he
could not determine what moderate amount of the product could be ingested without
having adverse effects. As such, the issue of determining whether the Minister was
correct or reasonably appropriate in her decision has been deemed correct and the facts of
the case have been applied to applicable elements of the law including the privative
clause, expertise, purpose of provision and nature of the problem. In accordance with the
Food and Drugs Act and in relation to Baker v. Canada, the facts were cross examined
and compared with Vanilla coke in precedence.