Date: 20040216
Docket: T-1051-01
Citation: 2004 FC 236
BETWEEN:
IMPERIAL TOBACCO CANADA LIMITED and
ROTHMANS, BENSON & HEDGES INC. and
JTI-MACDONALD CORP.
Applicants
and
THE MINISTER OF HEALTH and
THE ATTORNEY GENERAL OF CANADA
Respondents
INTRODUCTION
[1] The Applicants are manufacturers in Canada of tobacco products who sought, on December 15, 2000, but were denied on March 22, 2001, for calendar year 2001, pursuant to subsection 14(15) of the Tobacco Reporting Regulations (the "Regulations"), an exemption requested under subsection 14(11) of the Regulations from the requirement to test and report the concentrations of some forty or more prescribed emissions in mainstream and sidestream tobacco smoke from a designated tobacco product, namely, cigarette (fine-cut) tobacco. The Regulations were enacted by the Governor-in-Council pursuant to the Tobacco Act (Canada).
[2] The applicants challenge that decision in this judicial review proceeding; they seek an order quashing the denial of their request which they say was for partial exemption.
[3] In addition, the Applicants seek the following order:
An Order declaring that in order to qualify for a reporting exemption pursuant to section 14(11) of the Tobacco Reporting Regulations in respect of individual smoke emissions listed in Schedules 2 and 3 of the Regulations, a manufacturer is not required to demonstrate the existence of functional linear relationships between tar and all of the other Schedule 2 and 3 emissions, except nicotine, and between nicotine and all of the other Schedule 2 and 3 emissions, except tar; (emphasis mine)
[4] The material part of the decision of March 22, 2001 is as follows:
Mainstream Smoke:
In the case of mainstream smoke, the functional relationship predicts, within statistical limits, smoke emission yields under the ISO conditions for cigarette tobacco, except for the following compounds;
I) Acetone,
ii) ammonia,
iii) 1,3 butadiene, and
iv) NNN.
For most of the emissions collected under intense conditions, the functional relationship tends to over-predict yields. [concentrations of smoke emissions] (addition mine)
Sidestream Smoke:
In the case of sidestream smoke, the functional relationship is not as good a predictor for smoke emissions from cigarette tobacco. Except for the carbonyl compounds (formaldehyde, acetaldehyde, acetone, acrolien, proprionaldehyde, crotonaldehyde, and butyraldehyde) which are significantly higher than the predictor relationship, the functional relationship over-predicts yields. [i.e. concentrations of smoke emissions] (addition mine)
Based upon our analysis, a satisfactory functional linear relationship has not been established. Pursuant to subsection 14(15) of the Tobacco Reporting Regulations, we are rejecting your application for an all-encompassing exemption for cigarette tobacco in calendar year 2001. Therefore, a report on the toxic emissions of cigarette tobacco, as per subsection 14(1), is required for calendar year 2001. [emphasis mine]
[5] The central question raised in this judicial review application is whether the wording of subsection 14(11) of the Regulations permits the grant of a partial exemption from the reporting requirements specified in the Regulations when a functional linear relationship has been established between tar and nicotine and one or more of the emissions, but not all of them, or whether that exemption must be denied totally if, in respect of some emissions, that functional relationship has not been established albeit it has been established in respect of other (most) emissions.
[6] In their December 15, 2000 request, made through their trade association, the Canadian Tobacco Manufacturers' Council (CTMC), the Applicants specifically drew to the attention of Health Canada that their analyses, performed by independent laboratories, showed some emissions of prescribed chemical compounds were overstated and, for that reason, the applicants stated they were not seeking a reporting exemption for those specific emissions where a satisfactory functional relationship had not been established. This was the case for four mainstream and seven sidestream emissions. Exemption was sought for all other emissions.
[7] Dr. Michael F. Borgerding, who is the principal scientist in the Research and Development Department of the R.J. Reynolds Tobacco Company, filed an affidavit in support of the applicants' judicial review application expressing the applicants' criticism of Health Canada's decision in the following way (pages 269 and 270 of the application record, volume 1, paragraphs 63 and 64):
The Acting Director's stated reason for rejection of the exemption for cigarette tobacco testing was: "based upon an analysis, a satisfactory functional linear relationship has not been established." As such, his statement appears to reflect a fundamental misunderstanding of the bench- marking approach. There are over forty functional relationships, not one. The Canadian manufacturers did not seek exemptions for those emissions where the functional relationships from the 28-cigarette study were not satisfactory for predicting the yields of emissions from cigarette tobacco. There is no scientific reason why failure to demonstrate satisfactory functional relationships for some emissions affects or taints the validity of the satisfactory results obtained for most emissions.
The acceptability of each individual smoke emission and the ability to adequately predict cigarette tobacco smoke yields is an evidence-based process. As a factual matter, the functional relationships from the 28-cigarette 2000 bench mark study were found to adequately predict most cigarette tobacco smoke emission yields. Scientifically, there is no reason that an exemption request should not be granted for individual cigarette tobacco smoke emissions that a Health Canada scientist has deemed suitable and for which the manufacturers have requested an exemption. (emphasis mine)
[8] The Acting Director at Health Canada, Mr. Denis Choinière filed two affidavits in support of the respondent's position. He states in an affidavit sworn on the 12th of September, 2001 that he coordinated the putting into place of the Regulations. He indicates he reviewed the requests for exemption filed by CTMC on the 15th of December, 2000 for cigarette (fine-cut) tobacco.
[9] He noted that Dr. Murray Kaiserman, Director of the Office of Research, Evaluation and Surveillance of the Tobacco Control Program at Health Canada had reviewed the data submitted by CTMC for exemption under section 14(11) and recommended the manufacturers receive a partial exemption for fine cut cigarette tobacco.
[10] This is what Mr. Choinière states at paragraphs 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of his affidavit of September 12, 2001 :
19. Le rapport de M. Kaiserman recommandait qu'une exemption « partielle » soit accordée aux requérantes et indiquait que bien qu'il existait un lien fonctionnel linéaire entre certaines émissions toxiques du tabac à cigarettes, il n'en existait pas pour toutes;
20. En me basant sur les critères mentionnés à l'article 14 (15), j'ai conclu que le libellé de l'article 14, ne me permettait pas d'agréer, au nom du Ministre, à la demande d'exemption partielle des requérantes;
21. En effet, les requérantes n'ont pas démontré l'existence d'un « lien fonctionnel » linéaire : a) d'une part, entre le goudron et chacune des autres émissions - à l'exception de la nicotine - dégagée par la combustion du produit du tabac désigné, en l'occurence le tabac à cigarettes; b) d'autre part, entre la nicotine et les autres émissions dégagées par la combustion du tabac à cigarettes;
22. Au surplus, tel qu'il appert de la demande d'exemption des requérantes du 15 décembre 2000 produite sous la cote DC-1, la demande n'a pas été présentée le 1er décembre tel que requis en fonction de 14(11), l'échantillon présenté n'était pas conforme aux paragraphes 14(13) ou (14) car il ne comprenait que 6 marques de tabac à cigarettes et n'incorporait aucun échantillon de référence de ce type de produit;
23. J'ai donc fait parvenir à chacune des requérantes, le 22 mars 2001, une lettre rejetant leur demande d'exemption pour leurs marques de tabac à cigarettes, le tout tel qu'il appert desdites lettres produites au soutien des présentes sous la cote DC-3;
24. À l'époque de ma décision, j'avais été informé que le Ministre avait accordé aux requérantes, le 16 janvier 2001, une exemption de l'obligation de présenter le rapport sur les émissions toxiques présentes dans la fumée principale ou dans la fumée latérale dégagées par les cigarettes;
25. Ladite décision était toutefois fondée sur une étude qui démontrait l'existence d'un « lien fonctionnel » linéaire : a) d'une part, entre le goudron et chacune des autres émissions - à l'exception de la nicotine - dégagée par la combustion du produit du tabac désigné, en l'occurence les cigarettes; b) d'autre part, entre la nicotine et les autres émissions dégagées par la combustion des cigarettes;
26. Pour bénéficier de l'exemption prévue au paragraphe (11) relativement aux cigarettes, les requérantes avaient présenté au Ministre un échantillon d'au moins 28 marques et 2 échantillons de référence de cigarettes;
27. La demande d'exemption des requérantes pour les cigarettes visait l'ensemble des émissions conformément au Règlement;
28. De l'aveu même des requérantes, les conditions prévues au Règlement n'avaient pas été rencontrées dans le cadre de leurs demandes d'exemption concernant le tabac à cigarettes. [je souligne]
[11] Briefly put, Mr. Choinière's view is that, quite apart from non compliance with other statutory provisions such as sampling size, as a matter of statutory interpretation, the Regulations, as worded, do not provide for a partial exemption - an exemption on an individual emission basis for those emissions where a satisfactory functional relationship has been established but excluding those emissions from exemption where such link does not exist. In his view, the exemption under subsection 14(11) can only be granted if the functional relationship is established between tar and every or all emissions listed in Schedule 2 for mainstream smoke and Schedule 3 for sidestream smoke and likewise where that functional relationship exits between nicotine and every emission listed in the Schedules.
[12] He noted the applicants on January 16, 2001, were granted a section 14(11) exemption for cigarettes but that was because each applicant met all of the statutory conditions including the establishment of a functional link between tar and nicotine and every other prescribed emission.
[13] Thus, the resolution of the problem before the Court rests on the application of the proper principles of statutory interpretation to the scope of the exemption power under subsection 14(11) coupled with subsection 14(15) of the Regulations.
[14] It is convenient, at this juncture, to refer to the reporting scheme provided by the Regulations. For our purposes, that scheme is set out in Part 3 of the Regulations which is headed "Emissions from Designated Tobacco Products". Part 3 of the Regulations contains only one provision which is section 14 having, however, fifteen subsections and many paragraphs and subparagraphs.
[15] Subsection 14(1) of the Regulations requires every manufacturer of a designated tobacco product to report annually prescribed information by brand and type of designated tobacco product on the concentrations of (prescribed) emissions contained in mainstream and sidestream smoke produced from the combustion of the designated tobacco product.
[16] Various subsequent subsections deal with the content of the report, how sampling is to take place, methods and conditions for the collection of data and when the report is to be submitted.
[17] "Emission" is a defined term in the Regulations and, as noted, Schedule 2 to the Regulations lists 42 chemical emissions or chemical compounds for mainstream smoke and Schedule 3 lists 41 of them for sidestream smoke to which the report relates.
[18] Critical to the analysis in this judicial review application are the provisions of subsections 14(11) to 14(15) of SOR 2000-273:
| (11) A manufacturer may, on or before December 1 of the year preceding the year for which the exemption is sought, apply to the Minister for an exemption from the requirement to submit a report under subsection (1) in respect of the emissions for mainstream or sidestream smoke of a brand of a designated tobacco product specified by the manufacturer, if the manufacturer provides to the Minister the content and results of a statistical analysis done under the conditions referred to in subsection (12), that demonstrates, within a 95% confidence limit and in relation to the type of emission exemption sought, the existence of a functional linear relationship (a) between tar and each of the other emissions, other than nicotine, produced from the combustion of the designated tobacco product (I) by using the following formula:
y=mx+b
where y is the amount of the other emission, m is the slope, x is the mean amount of tar as determined by 7 replicates, and b is the intercept,(ii) by applying a regression analysis to the results obtained under subparagraph (I), and (iii) by applying an F-test to the results obtained under that subparagraph; and (b) between nicotine and the other emissions produced from the combustion of the designated tobacco product, by making the calculation and applying the analysis and test described in paragraph (a), except that the references to "tar" in subparagraph (I), other than in the description of "y", shall be read as references to "nicotine". (12) The conditions under which the statistical analysis to be provided in subsection (11) are as follows: (a) in the case of mainstream smoke, under the conditions set out in paragraphs (6)(a) and (b); and (b) in the case of sidestream smoke, under the conditions set out in paragraph (6)(a). Sample size (13) To qualify for an exemption under subsection (11), the manufacturer must submit to the Minister (a) a sample that must be composed of at least 28 different brands and 2 standard samples of a type of the designated tobacco product that represent the range of tar and nicotine deliveries for that type of designated tobacco product as determined (I) in the case of mainstream smoke, in accordance with Official Method T-115, entitled Determination of "Tar", Nicotine and Carbon Monoxide in Mainstream Tobacco Smoke, made by the Department of Health, dated December 31, 1999, and (ii) in the case of sidestream smoke, in accordance with Official Method T-212 entitled Determination of "Tar" and Nicotine in Sidestream Tobacco Smoke, made by the Department of Health, dated December 31, 1999; (b) a list of the brands of the designated tobacco product for which the application for exemption is made; and (c) a list of the properties of the designated tobacco product, such as the type of tobacco, type of filter and characteristics of a cigarette paper, which demonstrate the functional linear relationship between (I) the brands of the designated tobacco product that form the sample, and (ii) one or more of the brands of the designated tobacco product for which the application for exemption is made. Joint Sample (14) For the purpose of subsection (13), two or more manufacturers may combine their designated tobacco products to produce a joint sample for the purpose of analyzing the sample in accordance with that subsection. (15) The Minister shall, without delay, decide to accept or reject (a) an application made under subsection (11), based on the (I) methodology used, and (ii) the demonstration of a satisfactory functional linear relationship based on (A) the mean and standard deviations of the amount of each of the emissions, other than tar and nicotine, (B) the estimates and 95% confidence limits for the slope "m" and the intercept "b" referred to in subparagraph (11)(a)(I), (C) regression statistics, including the degree of freedom for error, degree of freedom for regression, mean square regression, mean square error and the F statistic, and (D) the fact that the data must fall under a 95% prediction interval; and (b) a sample made in accordance with subsection (13) or (14), based on the methodology used and the representativeness of the sample. [emphasis mine] |
|
(11) Le fabricant peut, au plus tard le 1er décembre précédant l'année pour laquelle il demande une exemption, demander au ministre de l'exempter de l'obligation de présenter le rapport aux termes du paragraphe (1) à l'égard des émissions présentes dans la fumée principale ou dans la fumée latérale dégagées par un produit du tabac désigné d'une marque qu'il spécifie, s'il lui fournit le contenu et les résultats d'une analyse statistique effectuée dans les conditions prévues au paragraphe (12), relativement au type d'émission en cause, démontrant à une limite de confiance à 95_% qu'il existe un lien fonctionnel linéaire : a) d'une part, entre le goudron et chacune des autres émissions -à l'exception de la nicotine -dégagée par la combustion du produit du tabac désigné, par application des étapes suivantes : (I) effectuer un calcul selon la formule suivante :
y=mx+b
où « _y_ » représente la quantité de l'autre émission, « _m_ » la pente, « _x_ » la quantité moyenne de goudron déterminée à partir de 7 sous-échantillons, « _b_ » le point d'interception, (ii) appliquer une analyse de régression aux résultats obtenus en application du sous-alinéa (I), (iii) soumettre les résultats obtenus en application du sous-alinéa (I) à un essai statistique F; b) d'autre part, entre la nicotine et les autres émissions dégagées par la combustion du produit du tabac désigné, par application des étapes prévues à l'alinéa a), mais où « _goudron_ » est remplacé par « _nicotine_ » , sauf à l'élément y du sous-alinéa (I). (12) Les conditions applicables à l'analyse statistique à fournir pour une demande d'exemption sont les suivantes : a) dans le cas des émissions présentes dans la fumée principale, celles prévues aux alinéas (6)a) et b); b) dans le cas des émissions présentes dans la fumée latérale, celles prévues à l'alinéa (6)a). Importance de l'échantillon (13) Pour bénéficier de l'exemption prévue au paragraphe (11), le fabricant présente au ministre : a) un échantillon d'au moins 28 marques et 2 échantillons de référence d'un même type de produit du tabac désigné, qui couvre toute la gamme des émissions de goudron et de nicotine propres à ce type de produit du tabac, ces émissions étant mesurées : (I) dans le cas de la fumée principale, conformément à la méthode officielle T-115 du ministère de la Santé, intitulée Dosage du « _goudron_ » , de la nicotine et du monoxyde de carbone dans la fumée principale de tabac, dans sa version du 31 décembre 1999, (ii) dans le cas de la fumée latérale, conformément à la méthode officielle T-212 du ministère de la Santé, intitulée Dosage du « _goudron_ » et de la nicotine dans la fumée latérale du tabac, dans sa version du 31 décembre 1999; b) la liste de toutes les marques de ce type de produit du tabac désigné pour lesquelles l'exemption est demandée; c) une liste des propriétés de ce produit du tabac désigné, telles le type de tabac, le type de filtre et les caractéristiques du papier à cigarettes utilisé, qui démontrent l'existence du lien fonctionnel linéaire entre : (I) d'une part, les différentes marques qui forment l'échantillon, (ii) d'autre part, au moins l'une des marques pour lesquelles l'exemption est demandée. Échantillonnage conjoint (14) Pour l'application du paragraphe (13), deux fabricants ou plus peuvent présenter un échantillon conjoint de leurs produits du tabac désignés aux fins d'analyse conformément à ce paragraphe. (15) Le ministre agrée ou rejette sans délai : a) la demande présentée aux termes du paragraphe (11), en se fondant : (I) d'une part, sur la méthode utilisée, (ii) d'autre part, sur la démonstration d'un lien fonctionnel linéaire satisfaisant, fondée sur les renseignements suivants : (A) les moyennes et les écarts-types de la quantité de chacune des émissions, à l'exception du « _goudron_ » et de la nicotine, (B) les estimations et les limites de confiance de 95_% de la pente « _m_ » et du point d'interception « _b_ » visés au sous-alinéa (11)a)(I), (C) les statistiques relatives à la régression, notamment la marge d'erreur, la marge de régression, la moyenne de régression au carré, l'erreur quadratique moyenne et la statistique F, (D) le fait que les prévisions établies doivent être assujetties à un intervalle de prédiction de 95_%; b) l'échantillon présenté aux termes des paragraphes (13) ou (14), en se fondant sur la méthode utilisée et la représentativité de l'échantillon. [je souligne] |
FURTHER BACKGROUND
[19] In addition to Dr. Borgerding's affidavit which has been already referred to, the applicants' filed, in support of their judicial review, the affidavit of Dr. Stewart Massey, Director of Scientific Affairs at Imperial Tobacco and former Chairman of the Technical Committee of the CTMC.
[20] The applicant, Rothmans, Benson & Hedges Inc., supported its facts through the affidavit of Steve Chapman, its Director of Scientific Affairs as did JTI-MacDonald through Bruno Duguay, its in-house counsel. I need not summarize their affidavits. They reiterate the exemption application process as they relate to their individual companies which parallel those described by Dr. Massey.
[21] The thrust of Dr. Massey's affidavit was to trace the genesis and the legislative history of the Regulations which, as he noted, created expanded obligations on tobacco manufacturers to periodically report to the Minister on such matters as consumer tobacco product sales, tobacco company research and promotional activities, and tobacco product ingredients, constituents and emissions.
[22] He indicates the purpose of subsection 14(11) of the Regulations is to provide an exemption from the requirement of full testing of some or all of the Schedule 2 and 3 emissions, if the manufacturer can satisfy the Minister of the existence of statistically reliable "functional relationships" between the concentrations of tar and other emissions (other than nicotine), and the concentrations of nicotine and other emissions (other than tar).
[23] He states subsection 14(11) recognizes the fact that, in most cases, there is a direct and scientifically demonstrable relationships between the concentrations of tar and nicotine found in mainstream and sidestream tobacco smoke and the concentrations of the other emissions listed in the Schedules to the Regulations. Because of this, the measurement of tar or nicotine concentrations in tobacco smoke, and the application of the appropriate functional relationship, will provide a reliable prediction of the concentrations of the other Schedule 2 and 3 emissions and this is because tar and nicotine are a function of the quantity of tobacco burnt during smoking and tar is an aggregate measure of the other emissions in those Schedules.
[24] Dr. Massey notes that when the Minister first announced the Regulations would be developed, no exemption was identified but that, as a result of industry consultation, the idea of such an exemption was agreed to on the basis of studies which had been conducted in the United States commencing in 1994 leading to the 1999 Massachusetts benchmarking study conducted in the context of proposed regulations to be issued by that state's Department of Public Health.
[25] As the Regulations were being developed in Canada, a technical working group was formed consisting of the Health Canada scientists, technical representatives from the tobacco industry and an independent technical expert. One of the issues immediately on the table was the scope of the proposed reporting which, as originally conceived, would require full testing, meaning measuring and reporting on more than 950 individual smoke emission measurements for each cigarette brand listed and 120,000 individual measurements to fully test all cigarettes sold in Canada.
[26] Dr. Borgerding puts it this way in his affidavit (page 264, 265 and 266, Vol. 1 of A.R. paras 47, 48, 49 50, 51, 52 and 55):
47. In order to find a means of providing the best quality tobacco emissions data in a manageable and achievable time frame, a practical approach was adopted for study through the technical group consultation process. That practical approach is "bench-marking".
48. As typically defined, a bench-mark is "anything that is taken as, or serves as a point of reference". In the context of the Regulations benchmarking is the generation of data on a well defined set of tobacco products that will be used as a reference point from which smoke constituent yield values for other cigarettes can be predicted.
49. The amount of smoke produced by a given cigarette can be assessed based on a measurement of general smoke yield, such as "tar", nicotine or carbon monoxide. Given that smoke composition is consistent from cigarette brand to cigarette brand when cigarettes have similar design features, the yields of individual smoke emissions are expected to track the amount of smoke produced in a given cigarette. In principle, therefore, individual smoke emission yields can be predicted from "tar" nicotine and carbon monoxide yields, provided the yield relationships (or "functional relationships") between the individual smoke emissions and "tar" nicotine or carbon monoxide are first established by "benchmarking".
50. In 1999, the Canadian manufacturers undertook a bench-marking study to demonstrate the viability of this approach in consultation with officials of Health Canada. Twenty-eight brands of Canadian cigarettes were studied. Over 40 analyses were measured in each cigarette at two different machine-smoking regimens for mainstream and at least one smoking regimen for sidestream smoke. In total, more than twenty-eight thousand data points were generated in the study at a cost of approximately $3 million.
51. In the 1999 study, "functional relationships" were determined for each of the smoke emissions of interest. The "functional relationship" is the mathematical description of how one smoke emission yield is related to another. Specifically, in the case of the "benchmarking study" and as the Regulations are now written, it is the mathematical description of how, for a given cigarette, any one of the emissions of interest are related to "tar" and nicotine yields for that cigarette... .
52. Satisfactory linear functional relationships were demonstrated for all emissions evaluated in both the 1999 and 2000 twenty-eight-cigarette benchmark studies. As such, the functional relationships established in the studies can be applied to predict individual smoke emission yields from other similarly constructed cigarettes sold in Canada.
53. . . .
54. . . .
55. It is important to note, however, that if an individual functional relationship for one of the over forty emissions had not been satisfactory in terms of section 14 of the Regulations, it would have no bearing on whether the functional relationships for the other dozens of emissions were satisfactory or not.
[27] Against this background, Dr. Massey, in his affidavit, referred to a notice published by Health Canada in Part I of the Canada Gazette of January 22, 2000 which invited comment on the proposed Regulations which had been drafted. The notice referred to B.C.'s Tobacco Testing and Disclosure Regulations on the books since July 1998 and noted these Regulations referred to the same methods as proposed and which were in place for over a year. That notice went on to say:
Health Canada has also provided for partial exemption in the case of identical products, and in cases where functional relationships between products have been demonstrated which significantly reduce the compliance costs.
[28] Dr. Massey noted, when the Regulations were published in the Canada Gazette, Part II, on July 19, 2000, the Regulatory Impact Analysis Statement (RIAS) contained the following statement:
Additionally, for tobacco products where the level of selected chemicals in smoke has been demonstrated through laboratory testing to be similar amongst brands, tobacco manufacturers have the option to test a smaller number of brands and predict the concentrations of chemicals for most brands using mathematical calculations. Using this "benchmarking" provision in the Regulations would significantly reduce testing costs to the industry while ensuring Canadians can still be fully informed of the range and level of toxic emissions in tobacco products.
[29] Dr. Massey argues that the benchmarking provision in subsection 14(11) is consistent with the Federal Government's regulatory policy which seeks to avoid imposing unnecessary regulatory burdens and minimizing regulatory compliance costs while achieving the aims of the Regulations.
[30] Dr. Massey's affidavit then speaks to the 2000 benchmark study conducted and the processing of their two applications for exemption, the first being for cigarettes and submitted on December 1, 2000 and the other request for exemption submitted on December 15, 2000 for cigarette fine-cut tobacco which is the subject of this judicial review application.
[31] In his affidavit, Dr. Massey notes on January 16, 2001, Health Canada granted to the applicants the requested exemption sought for cigarettes in their December 1, 2000 application subject to the reserve that certain dissimilar brands would have to be tested.
[32] Dr. Massey then turned his attention to the analysis report prepared by Dr. Kaiserman who examined the data submitted by the applicants for their December 15, 2000 request for partial exemption for cigarette fine-cut tobacco. In his view, Dr. Kaiserman's report concluded, except for four compounds, that the cigarette functional
relationships examined by him predicted mainstream smoke emissions for fine-cut tobacco and over-predicted sidestream smoke emissions.
[33] Dr. Massey quoted the following statement from Dr. Kaiserman's report:
Based upon the analysis, it can be concluded that cigarettes made from fine-cut or cigarette tobacco produce concentrations of emission similar to machine made cigarettes, except for certain compounds.
I recommend that the industry be granted its request for an exemption except for the following [Dr. Kaiserman then lists the emissions noted in Mr. Choinière's decision letter].
[34] The Minister responded through the affidavits of Denis Choinière, Dr. Murray Kaiserman and Carolyn Ferland.
[35] In these reasons, I have already reproduced some extracts from Dr. Choinière's affidavits. In the affidavit he attested to on September 12, 2001, Dr. Choinière traces the history of the development of the exemption provided in subsection 14(11) of the Regulations after reiterating the reason the exemption request was denied was because a functional relationship had not been established between tar and nicotine and all of the scheduled emissions.
[36] In terms of legislative history behind the exemption provision, he refers to the consultative process between Health Canada and the CTMC concerning the development of those Regulations, the 1999 benchmarking study and CTMC's request for an exemption provision to be added to the Regulations.
[37] Dr. Choinière states at paragraph 12 of his affidavit that it was on the basis of the results of the 1999 benchmarking study that Health Canada added to the Regulations subsection 14(11) providing for an exemption of the obligation to produce a report in respect of emissions provided certain conditions had been met. He quotes the French text of the subsection and states that the functional relationship must be on the one hand "entre le goudron et chacune des autres émissions" and, on the other hand "entre la nicotine et les autres émissions".
[38] Dr. Choinière notes the requirements of subsection 14(13) concerning sample size in order to qualify for an exemption. The sample size must be composed of at least 28 different brands and two standard samples of a type of the designated tobacco product that represents the range of tar and nicotine deliveries for that type of designated tobacco product as determined.
[39] Dr. Kaiserman's affidavit was deposed to also on the 12th day of September, 2001. He states that since 1989, he has been involved in a variety of capacities, roles and titles on "the tobacco file at Health Canada" including serving since June 1998 as the Department's liaison with representatives of the Canadian tobacco industry in consultations leading to the implementation of the Regulations.
[40] He refers to the approach made by the Canadian tobacco manufacturers after the Minister had announced the development of the Regulations. He confirms the establishment of a technical working group between Health Canada and the manufacturers to review the scientific aspects of Health Canada's initial proposal and "develop ways of reducing the cost to the manufacturers while meeting Health Canada's objectives of better informing smokers and government about the amounts of some chemicals in tobacco smoke".
[41] He confirms the methodology proposed by the manufacturers was the benchmark as outlined in the "1999 Benchmarking Study". He notes the sample size requirements.
[42] Dr. Kaiserman describes the premise behind benchmarking, i.e. that data collected could be interpreted in such a way "that statistical relationships between tar and each of the other chemicals could be established, these statistical relationships could be used to calculate the amounts of these chemicals in the smoke of those brands that were similar and were not included in the « Benchmark » " and that as a result a smaller number of brands could be analysed and used to predict the chemical results for similar brands.
[43] At paragraph 13 of his affidavit, Dr. Kaiserman said this:
Following the proposal by the manufacturers, Health Canada included in the Regulations an exemption at section 14(11).
[44] Dr. Kaiserman then states that on November 6, 2000, the tobacco working group met to discuss "amongst other items the results of the "fine-cut Benchmark". He says that the manufacturers were advised the "fine-cut Benchmark" did not comply with the provisions of subsection 14(13) of the Regulations because the number of brands and the standard samples were not as required.
[45] On December 15, 2000, he states the manufacturers submitted to Health Canada the "fine-cut Benchmark" and requested an exemption for cigarette fine-cut tobacco. This data was statistically evaluated internally and thereafter reviewed by him. He noted again that only six brands of cigarette tobacco and no cigarette tobacco standard samples were provided in that "fine-cut Benchmark".
[46] He states that the data submitted by the Canadian tobacco manufacturers indicated that the combination of the two "Benchmarks", cigarette and fine-cut, could be used to predict the mainstream emissions of all but four of the required chemicals found in mainstream smoke. With respect to sidestream smoke, the combination of bench-marks was not as good a predictor with the benchmarks predicting more than what was analysed for all but seven compounds where the predictions were too low.
[47] Dr. Kaiserman concludes his affidavit by stating:
It was on this statistical basis that, on February 20, 2001, I recommended that the three major manufacturers receive a partial exemption". [emphasis mine]
[48] I need not detail Carolyn Ferland's affidavit. The point made in her affidavit was not pressed at the hearing of the applicant's application.
ANALYSIS
[49] This application for judicial review is to be determined on the proper application of the principles of statutory interpretation, a task relevant to the declaration sought by the applicants but not so in respect of the order to quash the decision.
[50] Regardless of my holding on whether subsection 14(11) of the Regulations provides for a partial exemption, there are other grounds on which Mr. Choinière's March 22, 2001 decision can be supported. The individual applicants' applications for exemption for cigarette tobacco were out of time; they should have been filed on or before December 1, 2000, rather than on December 15, 2001.
[51] Of more importance, is the wording of subsection 14(13) of the Regulations. That subsection is clear in stating to qualify for an exemption under paragraph 14(11), a sample (the "benchmark") must be composed of at least twenty-eight (28) different brands and two (2) standard samples of a type of the designated tobacco product which is defined in section 1 of the Regulations to include cigarette tobacco.
[52] The decision Mr. Choinière made was on behalf of the Minister. It was made pursuant to subsection 14(15) of the Regulations. He was entitled to reject the December 15, 2000 applications on the basis of non-compliance with paragraph 14(15)(b) of the Regulations which specifically refer to a sample being in accordance with subsections 14(13) and 14(14) of the Regulations.
[53] This leaves the applicants as a remedy the declaration sought in their amended application which I repeat here for convenience:
An Order declaring that in order to qualify for a reporting exemption pursuant to section 14(11) of the Tobacco Reporting Regulations in respect of individual smoke emissions listed in Schedules 2 and 3 of the Regulations, a manufacturer is not required to demonstrate the existence of functional linear relationships between tar and all of the other Schedule 2 and 3 emissions, except nicotine, and between nicotine and all of the other Schedule 2 and 3 emissions, except tar;
[54] The wording of this declaration makes it plain the applicants seek a decision of this Court they are entitled to a partial exemption.
[55] I note the declaration is not tied to the December 15, 2000 applications for exemption under section 14(11) of the Regulations which are only relevant for reporting during 2001. The wording operates in the future which is the classical purpose for seeking a declaration.
[56] As noted previously, the solution to the question in this case rests on a matter of statutory interpretation. As a start, I refer to Justice Iacobucci's often quoted statement in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraphs 20, 21, 22, and 23:
¶ 20 At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete.
¶ 21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
¶ 22 I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit".
¶ 23 Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues. [emphasis mine]
[57] In Rizzo Shoes, supra, former employees of that bankrupt company filed a proof of claim with the trustee in bankruptcy for termination and severance pay owing under the Ontario Employment Standards Act ("ESA"). That claim was rejected by the trustee who was overruled by the Ontario Divisional Court which, itself, was overturned by the Ontario Court of Appeal.
[58] Under the ESA it is provided "no employer shall terminate the employment of an employee..." without giving the prescribed notice or the prescribed payments in lieu of notice.
[59] The employment of the employees of Rizzo Shoes ceased by virtue of the making of a receiving order under the Bankruptcy Act. The Ontario Court of Appeal concluded the ESA did not apply because Rizzo Shoes had not terminated its employees but that termination occurred as a matter of law under the Bankruptcy Act.
[60] The Ontario Court of Appeal applied the plain meaning of words rule in statutory interpretation which Justice Iacobucci recognized "appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees" and that involuntary termination by bankruptcy "does not fit comfortably into this interpretation". In his view, that analysis was incomplete and, as noted, his view was the Ontario Court of Appeal "did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized".
[61] Justice Iacobucci's analysis included the following considerations:
(1) The object of the ESA was the protection of the interests of the employees;
(2) The same can be said of the objects of the termination and severance pay provisions of the ESA, notice in order to take preparatory measures and seek new employment or, in lieu thereof, to provide a monetary cushion against the adverse effects of economic dislocation;
(3) Another purpose to the severance pay provisions of the ESA was to compensate long serving employees with due recognition that employees make an investment in the employer's business.
[62] As a result of this analysis, Justice Iacobucci concluded "the consequences or effects which result from the Court of Appeal's interpretation of ss. 40 and 40a of the ESA are incompatible with both the object of the Act and with the object of the termination and severance pay provisions themselves". He continued at paragraph 27:
It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).
[63] Justice Iacobucci noted, if the ESA did not apply to termination at law in bankruptcy, those employees "fortunate" enough to have been dismissed the day before would be entitled to termination and severance but those terminated after bankruptcy not. To him, this was an absurd consequence particularly in a unionized context where seniority determines lay-off.
[64] In addition, Justice Iacobucci found the Ontario Court of Appeal's interpretation arbitrary because it distinguished between employees merely on the basis of the timing of their dismissal and would arbitrarily deprive some employees of a means to cope with the economic dislocation caused by unemployment. To him, the result of the interpretation provided by the Ontario Court of Appeal was an unreasonable one because its interpretation limited the protections of the ESA rather than extending them.
[65] He continued his analysis by reference to legislative history, to the debates before the Ontario Legislature and to the nature of the statutory scheme which he characterized as a benefits-conferring legislation which, as such, ought to be interpreted in a broad and generous manner. Reliance on all of these tools supported the interpretation he was formulating.
[66] He concluded, when the express words of the ESA were examined in their entire context, there was "ample support for the conclusion that the words « terminated by the employer » must be interpreted to include termination resulting from the bankruptcy of the employer".
[67] In the case before me, counsel for the applicants' approach and submissions on statutory interpretation were largely compatible with the perspective taught by the Supreme Court of Canada in Rizzo Shoes supra. There were three branches to his argument: the ordinary meaning rule, the need to reconcile the English and French texts and confirmation of the applicants' interpretation by reference to purpose, consequence and the notion of absurdity.
[68] First, he took me to a summary of the basic propositions underlying the ordinary meaning rule set out in Ruth Sullivan's Third Edition of Driedger on the Construction of Statutes, Butterworths Canada, 1994:
Summary of the ordinary meaning rule: the basic propositions. As understood and applied by modern courts the ordinary meaning rule consists of the following propositions.
(1) It is presumed that the ordinary meaning of a legislative text is the intended or most appropriate meaning. In the absence of a reason to reject it, the ordinary meaning prevails.
(2) Even where the ordinary meaning of a legislative text appears to be clear, the courts must consider the purpose and scheme of the legislation, and the consequences of adopting this meaning. They must take into account all relevant indicators of legislative meaning.
(3) In light of these additional considerations, the court may adopt an interpretation in which the ordinary meaning is modified or rejected. That interpretation, however, must be plausible; that is, it must be one the words are reasonably capable of bearing.
This formulation of the ordinary meaning rule is not particularly strong or constraining. It acknowledges that the ordinary meaning of words does not always provide the courts with a solution and that sometimes this meaning may be rejected in response to some other concern. Nevertheless, it affirms that there is such a thing as ordinary meaning, and it makes this meaning determinant in the absence of a reason to reject it.
Although the modern version of the ordinary meaning rule avoids some of the problems associated with the former rule, it still raises a number of questions.
[69] He argued subsection 14(11) does not state that functional relationships have to be demonstrated for "all" emissions, a word not found in the subsection. Rather, the functional relationship which must be shown is between tar and "each of the other emissions ..." and between nicotine and "the other emissions ...". He points to Mr. Choinière's use of the word "toutes" in his affidavit.
[70] He examined the definition of "all" in the Shorter Oxford Dictionary, Third Edition, as "The entire number of, without exception" and to the definition of "each" to mean "every (one or more) regarded separately". He concludes the use of "each" refers to the functional relationship between individual emissions and not the relationship between all emissions.
[71] He then studied the immediate context in which the word "each" is found. He drew the court's attention to the words "in relation to the type of emission exemption sought" in subsection 14(11) as an indicator that an exemption may be requested for less then the entire number of Schedule 2 and 3 emissions. He argued there would be no need to refer to a "type of emission exemption" if only one exemption could be sought for all emissions.
[72] He finds comfort in his interpretation by referring to the marginal note to subsection 14(11) which reads "Exemption - functional relationship of certain emissions", which is, to him, a reference to less than the totality of Schedule 2 and 3 emissions.
[73] His second overarching argument is the need, he argues, to reconcile the English and French versions of the provision which, in his view, are different because the English text speaks of "the type of exemption sought" whereas the French text uses the words "relativement au type d'émission en cause".
[74] To counsel for the applicants, the only shared meaning is that the emissions referred to in sections 14(11)(a) and (b) are those emissions under consideration for an exemption, i.e. being sought.
[75] When the ordinary meaning principle is coupled with the shared meaning of the English and French texts what the words "each of the other emissions" refers to are the emissions for which exemption is sought for which a functional relationship has been established.
[76] The third branch of his argument is based on his examination of other aids to interpretation to verify or test the results of the application of the ordinary meaning rule (plain meaning in its immediate context married to the shared meaning of the English and French texts). He argues, while appreciating that the purpose of the Regulations is to expand the reporting requirements from the previous regulations in order to enable Health Canada to obtain complete data on tobacco products to inform Canadians about the hazards of smoking, it is necessary to examine why subsection 14(11) was inserted into the Regulations.
[77] The exemption was provided to reduce testing costs while ensuring Canadians will be fully informed of the range and level of toxic emissions. Testing is not required and is, in fact, unnecessary when a functional relationship is established between tar (or nicotine) and each prescribed emission. This functional relationship can only be determined at the level of each prescribed emission, i.e. there is one functional relationship for each emission.
[78] Once that functional relationship is established it is a predictor of the concentration of each chemical compound in similar brands.
[79] Counsel argues the purpose of the Regulation and of the exemption provision would be defeated if subsection 14(11) is interpreted to only allow for a single exemption for all emissions.
[80] The applicants conclude the interpretation favoured by Health Canada produces absurd consequences because the evidence is clear the failure to establish a functional relationship between tar (or nicotine) and an individual smoke emission has no bearing on the validity and reliability of the functional relationship established for other individual emissions.
[81] Even Dr. Kaiserman of Health Canada agreed this view was correct.
[82] The result of Health Canada's interpretation is completely unnecessary expensive testing to obtain the same results as would be predicted by benchmaking techniques now in place.
[83] Counsel for the respondent's approach to statutory interpretation, in her written memorandum and in oral argument, both in French, resembled the application of the plain meaning rule to the effect if the regulation-makers' intention is reflected in words whose meaning is plain and clear, that is the end of the matter and there is no need to resort to external aids including the regulatory history to the exemption, to post-regulation scientific evidence such as provided by Dr. Borgerding which was not before the regulator when the Regulations were made or to the economic consequences flowing from the application of clear words.
[84] She framed this argument by examining the purpose of the Regulations which she said was larger than that advanced by the applicants.
[85] The Regulations support the Tobacco Act which provide a legislative response to a national health problem of substantial and pressing concern - to protect the health of Canadians, to reduce health care costs attributable to smoking and to have the tools to better inform Canadians about the perils of smoking.
[86] The Regulations, she argues, enable better programs and regulatory design, better product monitoring and better enforcement of legislative and regulatory requirements while reducing disease costs and generating benefits to Canada which the Regulatory Impact Analysis Statement (RIAS) states "far outweigh the cost of these Regulations" [to the tobacco manufacturers and on Health Canada].
[87] She argues, while it is true the purpose of the exemption is to reduce unnecessary testing costs, the primary intention of the Regulations is to ensure Canadians can be completely informed as to the scope and content of toxic emissions in tobacco smoke.
[88] Counsel for the respondent argues the Minister cannot grant exemptions on an emission by emission basis. If such was the case the applicants would only have to conduct tests on emissions where no functional relationship was established.
[89] She states the focus of this proceeding should be on subsection 14(15) of the Regulations which determines in what circumstances the Minister can grant an exemption. She argues the applicants' aim on subsection 14(11) is misplaced.
[90] Examining subsection 14(15), she argues the Minister must be satisfied on two issues: 1) the methodology used and 2) the demonstration of a satisfactory functional relationship based on, inter alia, the mean and standard deviations of the amount of "each of the emissions, other than tar and nicotine" and looking to the French text,"les moyennes et les écarts-types de la quantité de chacune des émissions, à l'exception du goudron et de la nicotine".
[91] She argues the word "chacune" in subsection 14(15) has two aspects: an individual aspect and a collective one. What the word connotes is that an emission is taken individually within the universe of all emissions.
[92] She concludes, as the Regulations are written, the Minister must consider the functional relationship between all of the emissions. The words of the provision, subsection 14(15), are clear on the point and is incompatible with the interpretation to section 14(11) proposed by the applicants, the existence for partial exemptions which, if it were the case, would be reflected in subsection 14(15) and they are not.
[93] She adds the applicants' interpretation is wrong for another reason. There is no exemption for emissions provided for in subsection 14(11). The exemption is to produce a report required by subsection 14(1).
[94] She concludes it must be appreciated the Regulations were drafted based on the 1999 Benchmark study where all mainstream and sidestream emissions, without exception, yielded a functional relationship between tar and nicotine and each and every other prescribed emission, a fact acknowledged by the applicants. It was on this basis the exemption was drafted.
[95] Moreover, she states there is no evidence in the record which establishes that less than complete functional relationships between tar and nicotine with all prescribed emissions in a benchmark would still provide the necessary predictability of emissions in similar brands not in the benchmark.
CONCLUSIONS
[96] As intimated previously in these reasons, I view the applicant's approach to statutory interpretation more in line with the modern approach than that expounded by the respondent.
[97] The modern approach is described in Sullivan, supra, at pages 3-4 in the following terms:
Today, in every case, the meaning that emerges from reading the words in their immediate context must be considered in light of a larger context and tested against other sources of legislative meaning. The purpose of the legislation must be taken into account, even where the meaning appears to be clear, and so must the consequences. At the end of the day, a court may decide to go with its first impression, the meaning that emerged simply from reading the text. But no modern court would consider it appropriate to adopt that meaning, however "plain", without first going through the work of interpretation.
[98] In reaching what I consider a proper interpretation to the provisions raised in this case I had resorted to several sub-principles of statutory interpretation which I considered particularly relevant.
[99] Two presumptions of statutory construction come into play: the presumption of coherence and the presumption against tautology.
[100] Ruth Sullivan explains the presumption of coherence at page 176 of her text:
It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole. The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal.
[101] The general principle of the presumption against tautology is also explained by Ruth Sullivan in her text at page 159:
It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose. ... As Lord Simon indicates, every word and provision found in a statute is supposed to have a meaning and a function. For this reason courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless or pointless or redundant.
[102] When reading legislation there are a series of don'ts that are out of bounds: words in a text cannot be deleted; words which are not in a text cannot be added to and generally a court cannot fill a legislative gap. In the result the interpretation reached must be plausible: one that the text of the legislation is reasonably capable of.
[103] Counsel for the respondent makes two telling points with which I agree. First, she submits the Minister's decision must conform to the requirements of subsection 14(15) of the Regulations. Having said this, I observe that subsection 14(15) refers generally to subsections 14(11) to 14(14) which set out the conditions of an acceptable benchmark.
[104] Second, she is correct in submitting the exemption provided for in subsection 14(11) is not an exemption for emissions but rather an exemption from the reporting requirement spelled out in subsection 14(1). Those reporting requirements are to report the prescribed information by brand and type of designated tobacco products in respect of the emissions contained in both mainstream and sidestream smoke.
[105] In order to provide the information required in the report, each applicant must conduct tests to report on the prescribed emissions. Smoking machines are used to conduct these tests. Sample sizes, methods of collection and the contents of the reports are also prescribed.
[106] Counsel for the applicants looked to the dictionary to determine the meaning of the word "each". However, as was recognized by Lord Greene in Re Bidie, Bidie v. General Accident, Fire & Life Assurance Corp. [1998] 2 All. E.R. 995 at 998 (C.A.)
Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context.
[107] Ruth Sullivan pointed out the perils of the dictionary meaning of words (at page 11 of her text). She talks about the plasticity of words.
[108] The Shorter Oxford Dictionary, 5th Edition is illustrative of this point: "each" can mean "each and all, collectively and individually; every".
[109] Counsel for the applicants argues correctly that meaning must be given to the words "type of emission exemption sought" found in subsection 14(11).
[110] I do not, however, accept that reconciliation need occur between the English and French text because in my view the French text has the same meaning as the English text.
[111] I come to this view by examining the wording of the exemption clause as pre-published on April 1, 2000 in Part I of the Canada Gazette. The French wording read "relativement au type demandé d'exemption pour émission" which the drafter recognized needed polishing and hence the change in the published version of the Regulations to "au type d'émission en cause". The structure of the French text did not need to repeat the notion of exemption as the exemption is not in relation to emissions but in respect of providing a report in respect of emissions.
[112] When all of the words of subsection 14(11) are read together in the immediate context of the subsection and in the context of section 14 itself, the meaning of the words "type of exemption sought" and "each of the other emissions" fall into place. As suggested by counsel for the respondent, there are only two types of emissions contemplated in the Regulations: mainstream smoke emissions and sidestream smoke emissions.
[113] This point of departure leads me to the conclusion that the "type of exemption sought" as phrased in subsection 14(11) is one of two kinds: a reporting exemption for prescribed mainstream smoke emissions and a reporting exemption for prescribed sidestream emissions.
[114] It is clear from Part 3 of the Regulations and also Schedules 2 and 3 read in their entirety that the Governor-in-Council who made the Regulations drew a bright line between mainstream smoke and sidestream smoke in that: 1) the Schedule 2 and 3 emissions are not completely the same; 2) the methods of collection are different; 3) the reporting requirements, while overlapping, are not identical (see subsection 14(7)).
[115] The Governor-in-Council is clear in subsection 14(1) that an applicant may apply for an exemption from the reporting requirements "to submit a report under subsection (1) in respect of the emissions for mainstream or sidestream smoke".
[116] In other words, the Minister can provide a reporting exemption for either mainstream smoke or sidestream smoke or both if in respect of either two streams of smoke or both, each and every emission in those streams yields a satisfactory functional relationship.
[117] Nowhere in the Regulations can I see an intent by the Governor-in-Council to break up the universe of all Schedule 2 or 3 emissions for testing and reporting. That is confirmed by the use of the word "each of the other emissions", "the other emissions" and "each of the emissions" and their corresponding French words "les autres émissions", "chacune des autres émissions", all conveying the same meaning that the functional relationship in the two streams must be for all emissions in the relevant stream, individually and collectively.
[118] Counsel for the applicants forcefully argued absurd consequences because the evidence established that the functional relationship was for each emission and the undisputed evidence showed, which Dr. Kaiserman accepted, lack of functionality did not spread to taint successful functionality on an emission basis.
[119] Both parties agree the exemption was drafted on the basis of the 1999 Benchmaking Study. That study evidenced complete functionality for all mainstream and sidestream emissions.
[120] It is true that the respondent did not counter Dr. Borgerding's evidence. Mr. Choinière, however, said the evidence Health Canada had before it which persuaded it to recommend the exemption provision was the 1999 Benchmaking Study.
[121] I do not think it is the function of the Court in the guise of interpretation and the application of the absurd consequence rule to weigh evidence which was not before the regulation-maker or was different from it, particularly when complex scientific matters are involved. In my view the exemption provision properly interpreted does not produce any unreasonable consequences.
[122] The applicants' remedy is with the regulation-maker.
[123] For these reasons, this judicial review application is dismissed with costs. The declaration sought by the applicants will not issue.
(Sgd.) "F. Lemieux"
Judge
Vancouver, British Columbia
February 16, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1051-01
STYLE OF CAUSE: IMPERIAL TOBACCO CANADA LTD ET AL v.
THE MINISTER OF HEALTH ET AL
PLACE OF HEARING: Montreal, QC
DATE OF HEARING: September 3 and 4, 2003
REASONS FOR ORDER: Lemieux J.
APPEARANCES:
Mr David R. Collier FOR APPLICANTS
Ms Marie Marmet FOR RESPONDENTS
SOLICITORS OF RECORD:
OGILVY RENAULT FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENTS