Federal Court of Appeal upholds decision that the Minister of Health did not deny the appellant procedural fairness in refusing a natural health product license

Administrative law – Decisions reviewed – Minister of Health – Permits and licences – Judicial review – Appeals – Procedural requirements and fairness – Standard of review – Reasonableness

Canada RNA Biochemical Inc. v. Canada (Minister of Health), [2021] F.C.J. No. 1826, 2021 FCA 213, Federal Court of Appeal, November 2, 2021, D.J. Rennie, J.B. Laskin and A.L. Mactavish JJ.A.

The appellant, Canada RNA Biochemical Inc., appealed a decision from the Federal Court that dismissed its petition for judicial review. The decision under judicial review was from the Minister of Health who refused to grant a natural health product license to the appellant for a medication used to improve circulation. The Minister refused the license because an external hematologist found that the risk of internal bleeding could not be properly monitored when the product was sold over the counter.

The appellant argued that the Federal Court erred in applying a reasonableness standard of review to questions of procedural fairness. The Court of Appeal held that the lower Court properly recognized the difference between the standard of review applicable to the decision and the Court’s assessment on issues of procedural fairness. The Court of Appeal held that the lower Court did not apply a reasonableness standard to issues of procedural fairness.

The appellant contended that it was denied procedural fairness when the Minister consulted an external hematologist. The Court of Appeal rejected this argument because the record showed that the appellant was provided with the hematologist’s opinion and had an opportunity to provide response reports and submissions, which it did.

The appellant also argued that procedural fairness was breached when there were discussions regarding the approval of the product for professional use under the supervision and monitoring of a healthcare practitioner. Health Canada eventually rejected the professional use option. The Court concluded that there was no evidence to indicate that Health Canada misled the appellant when recommending, and then rejecting, the professional use option. The Court of Appeal held that there was no merit to the argument that the appellant had any form of legitimate expectation to licensing.

The appeal was dismissed with costs.

This case was digested by Jackson C. Doyle, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Jackson C. Doyle at jdoyle@harpergrey.com.

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