HEALTH AND WELFARE
Judicial review of decision by Acting Manager, Tobacco Control Program, on behalf of Minister of Health, determining applicant, by allowing casino patrons to redeem accumulated reward amounts for tobacco products, contravened Tobacco Act, s. 29(b)—Health Canada ordered applicant to cease offering complimentary tobacco product coupons to patrons, disallow redemption of tobacco products with points earned by gaming—Applicant operates two casinos at Niagara Falls—Offers patrons affinity program “Players Advantage Club”, to which about 1/3 of customers belong—Purpose in offering club membership to obtain information about customers for marketing—Membership benefits include merchandise discounts, free parking, direct mail offers, Rewards Program for “cash back” on playing slots, accumulation of points redeemable for food, retail goods, accommodation, logo merchandise discounts—Customers earn points playing slots, video poker—Tobacco products obtainable upon redemption—Government official advised applicant scheme in violation of s. 29(b)—Tobacco Act enacted in 1997, in reaction to decision in RJR—MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, invalidating Tobacco Products Control Act—Purpose of Act to protect Canadians’ health, protect youth from inducement to use tobacco and to restrict access—According to s. 4, purpose of Act to provide legislative response to national public health problem of substantial, pressing concern in light of conclusive evidence implicating tobacco use in incidence of debilitating, fatal diseases, raise public awareness of health hazards of tobacco use—Key feature of Act: provisions dealing with “promotion”, found in Part IV—Under s. 29, no manufacturer or retailer shall “offer or provide any consideration, direct or indirect, for the purchase of a tobacco product, including a gift to a purchaser or third party, bonus, premium, cash rebate or right to participate in a game, lottery or contest; furnish a tobacco product without monetary consideration or in consideration of the purchase of a product or service or the performance of a service”—Health Canada letter constitutes federal decision subject to judicial review— Construction of Tobacco Act, s. 29—Applying pragmatic functional approach correctness appropriate standard of review—In considering s. 29(b), Court must have regard to Act’s overall objective: health protection, in particular, that of youth—Act, s. 18 defines “promotion” as representation likely to influence, shape attitudes, behaviours and, in interpreting s. 29(b), must look not just at literal wording but also consider whether activity at issue promotes tobacco products— Evidence revealing Rewards Program not promoting sale, use of tobacco, making no direct, indirect representation that would influence, shape behaviour concerning tobacco— Availability of tobacco as reward not advertised—It would be otherwise were casinos handing out coupons for free tobacco products—Rewards Program not created to increase tobacco sales nor was any association made between gambling, tobacco use—Points redemption for tobacco not “promotion” within Act, Part IV—Tobacco promotion neither primary nor collateral objective of Rewards Program—But tobacco not furnished “without monetary consideration”—Discrepancy between English, French versions: English refers to “monetary consideration”, French to “à titre gratuit”, which is broader, as implies “without any consideration”, monetary or otherwise —Court must reconcile apparent contradiction, find shared or common meaning—If one has broader meaning, more narrow to be selected as shared meaning—Consideration must be of monetary nature—This analysis reinforced by s. 31: “no person shall . . . with or without consideration.”—That indicates when Parliament qualified “consideration” with word “monetary” in s. 29(b), meant something more narrow than when used “consideration” unqualified as in s. 31— French word “gratuit” ambiguous, can refer to monetary consideration, more generally to any consideration—In any event, this is not critical in deciding whether tobacco acquisition upon points redemption contrary to s. 29(b)— While not “à titre gratuit’, neither is it “without monetary consideration” as reward value deducted from member’s account has monetary value with direct relationship to value of tobacco—Points not given away without compensation to casino as personal information, such as playing habits, preferences, disclosed by customers of value for marketing purposes—Minister’s decision invalid, need not be acted upon—Tobacco Act, S.C. 1997, c. 13, ss. 2(b), 4, 18, 29(b), 31—Tobacco Products Control Act, R.S.C., 1985 (4th Supp.), c. 14.
Falls Management Company v. Canada (Minister of Health) (T-1572-04, 2005 FC 924, de Montigny J., order dated 30/6/05, 18 pp.)