West Bank winemaker added to Federal Court of Appeal battle over 'product of Israel' labelling

In ruling, Justice David Stratas criticizes judges for having overly political public profiles

West Bank winemaker added to Federal Court of Appeal battle over 'product of Israel' labelling
David Elmaleh

In the fight over whether a wine produced by Israelis in the West Bank should be labelled in Canada as a product of Israel, the Federal Court of Appeal has added the Psagot Winery – the West Bank winemaker in question – as a party respondent.

The dispute began at the Canadian Food Inspection Agency, progressed to the Agency’s appeals office, and then the Federal Court and now Federal Court of Appeal. David Elmaleh, counsel for Psagot, says adding a party this late in the game is unusual. But since the entire ordeal dealt with Psagot’s product, he argues it was “procedurally unfair” not to include the winemaker from the first instance.

"Our client, Psagot Winery, is very pleased to have been granted the opportunity to be added as a party to this important legal proceeding,” says Elmaleh, founding partner of RE-LAW LLP. “Psagot Winery's voice will now be heard, as it deserves to be.”

Psagot’s labelling was first challenged at the CFIA by Dr. David Kattenburg, who argued the wine was produced in Israeli settlements in the Occupied Palestinian Territories, not in the state of Israel. Initially, the CFIA agreed with Kattenburg but then reversed its decision. Kattenburg appealed to the CFIA Complaints and Appeals Office. The Appeals office found that, since the Canada-Israel Free Trade Agreement defines areas where Israeli customs are applied – such as the West Bank – as Israeli territory, the wine was properly labelled as a product of Israel.

Kattenburg sought judicial review with the Federal Court. Justice Anne Mactavish acknowledged the “profound disagreement” among the parties as to the legal status of Israeli settlements in the West Bank but noted that question was not hers to resolve. Whatever the status of the settlements, “all of the parties and interveners agree” they are not part of the state of Israel, said Mactavish in her decision. Mactavish ruled the Complaints and Appeal Office decision unreasonable.

Psagot was among a dozen parties clamouring into the politically charged food regulation matter. Federal Court of Appeal Justice David Stratas denied intervenor status to 11 others, who hoped to wade through the issues concerning international law, humanitarian problems, human rights and Israel’s territorial sovereignty. Stratas rebuffed the intervenor motions, noting that none planned to contend the purpose of the relevant provisions of the Food and Drugs Act, the Food and Drug Regulations and the Consumer Packaging and Labelling Act were to further Canada’s international obligations in the Israel/Palestine conflict.

“There is nothing to suggest that these provisions were enacted to address state occupation of territories and, in particular, Israel’s occupation of the West Bank,” said Stratas.

International law only enters into the interpretation of domestic legislation in “certain limited ways,” he said. It is not “like a series of tasty plates on a buffet table from which we can take whatever we like and eat whatever we please,” said Stratas.

The matter before the court was a reasonableness review of the CFIA Appeals Office decision, he said. And while Stratas said he did not doubt “for a moment” that international law can play an important role in interpreting legislation and the discernment of its authentic meaning, “this is not one of those cases.”

“This is a politically-sensitive case, and the Court made it clear that politics has no role in the courtroom," says Elmaleh. “The Middle East conflict is not on trial.”

Stratas accused the prospective intervenors of wanting the court to endorse a specific foreign policy imperative to be pursued by the Canadian Government. This is part of a “growing, regrettable tendency” in public law cases where political advocates see the courts as “unfettered decision-making bodies of a political or ideological sort that can give them what they want,” he said.

“What accounts for this? Alas, I fear that in part some courts and some judges may be to blame,” said Stratas.

Courts are too welcoming to political or ideological stakeholders, sometimes including 20 or more intervenors, he said. Judges appear to be deciding cases, not on the merits, but on their own political preferences, giving “virtue-signalling and populism a go,” writing op-eds, making speeches and giving interviews, said Stratas.

“They should not act in this way. They should stay in their proper place,” he said.

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