In Harrison v Afexa Life Sciences Inc 1 the British Columbia Supreme Court has confirmed that the Food and Drugs Act constitutes a complete code, thereby barring an independent civil cause of action based on an alleged breach of the Food and Drugs Act. This decision continues the British Columbia courts’ ongoing attempts to delineate the scope of claims that can be brought based on legislation and is a welcome development for companies who sell products subject to the provisions of the Food and Drugs Act.
The decision in Harrison stemmed from an application to strike portions of a Statement of Claim in an action brought against Afexa Life Sciences Inc. The plaintiff, Harrison, alleged that he and the members of the proposed plaintiff class suffered damages because Cold- FX did not have the immediate cold and flu relief promised by Afexa.
In his claim, Harrison made numerous allegations, including: deceit, fraudulent misrepresentation, breaches of the Business Practices and Consumer Protection Act (BPCPA) and the Competition Act, and, breach of section 9 of the Food and Drugs Act (FDA). Subsequently, Afexa brought an application to strike a number of paragraphs in Harrison’s Statement of Claim.
The court agreed with Afexa regarding the deficiency of much of the Statement of Claim. Specifically, Harrison failed to show exactly what damages he had suffered by purchasing Cold- FX. In addition, the court held that Harrison neglected to include which representations he and the other plaintiffs relied on when purchasing the product. As such, the court ordered Harrison to provide particulars, failing which, the claims would be struck.
The alleged breach of the Food and Drugs Act
Harrison also alleged that Afexa breached section 9 of the FDA and sought restitutionary damages. Afexa argued that the FDA was a complete scheme and did not allow a consumer to directly sue the drug manufacturer for restitution. In response, Harrison argued that a civil right may be available where a court considers the statutory remedy to be inadequate on the construction of the statute as a whole.2 Harrison further submitted that a proper interpretation of the FDA would include civil liability.
Thankfully, the court preferred Afexa’s arguments. Relying on the decision of Madam Justice Newbury inWakelam v Johnson & Johnson, the court concluded that the FDA could be enforced in a ‘comprehensive fashion’.3 Specifically, the court noted that under the FDA, offences are created for a breach of the FDA, corresponding penalties are available (both monetary fines and custodial terms), and considerable powers given to an inspector in order to investigate and enforce its provisions.
The court held that such provisions were proof of a comprehensive scheme under the FDA, and that its existence precluded further civil claims. In doing so, the court followed Balanyk v University of Toronto, which noted that ‘the FDA does not create a private right of action for violations of the Act’.4 The court concluded that ‘there is no right of the consumer to sue in a civil action for breach of section 9 of the Act’ and declined to allow the pleading.5
The decision confirming that the FDA is a complete code provides a further measure of certainty for entities whose products are subject to the FDA and are faced with the possibility of a civil suit based on an alleged breach of the FDA. The court in Harrison is clear that the earlier appellate decisions in Wakelam and Balanykpreclude the possibility of an independent civil action for a breach of the FDA. Instead, the court specifically noted that the FDA created offences, penalties, and provided for an inspector with considerable investigatory powers. With such a comprehensive scheme, it was clear that independent civil claims for breaches of the FDA should not be allowed to stand.