Case information

Civil procedure — Appeal — Appeal with leave or as of right — Action dismissed because of its abusive nature — Whether art. 30 para. 2(3) of Code of Civil Procedure applies in cases where, following hearing on merits, trial judgment declares application to be abusive after dismissing it on other grounds, or whether art. 30 para. 2(3) must be confined to cases where application is dismissed at preliminary stage, without hearing on merits — Code of Civil Procedure, CQLR, c. C 25.01, art. 30.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicant Vincent DeBlois incorporated the applicant Zen Smoke in 2011 for the purpose of importing, distributing and marketing e cigarettes containing nicotine in Canada. In 2009, Health Canada had issued a public advisory stating that e cigarettes used to vaporize and administer nicotine were covered by the Food and Drugs Act, R.S.C. 1985, c. F 27, and the Food and Drugs Regulations, C.R.C., c. 870, and that various authorizations were necessary in order to import, advertise and market them, among other things. After obtaining information from Health Canada about the legislative and regulatory requirements to be met, the applicants imported e-cigarettes for distribution without complying with those requirements. Zen Smoke applied to the Federal Court for judicial review of a Health Canada decision prohibiting the entry of the e-cigarettes into Canada because of violations of the applicable legislative and regulatory provisions. In December 2012, the Federal Court rejected the interpretation of those provisions proposed by Zen Smoke. Despite that decision and the laying of penal charges, the applicants continued their import activities through the United States. However, they ceased their activities in July 2014. In October 2015, the applicants filed an application against the respondents, the Attorney General of Canada, the Department of Health Canada and the Canada Border Services Agency, seeking damages for such things as loss of business opportunities, loss of income, inconvenience and damage to their reputation. They maintained that they had been subjected to harassment and seizures of materials, among other things, that had led to the termination of their operations. The Superior Court dismissed the application and declared it to be abusive. The Court of Appeal declared that an appeal from the trial judgment required leave to appeal. It dismissed the motion for leave to appeal de bene esse.