BREAKING: West Bank Wine Case Shuts Out Interveners

Oct. 8, 2020

Jewish advocacy groups will not have a say in the case of the wine labels from Israel.

In a recent ruling, a Federal Court judge denied intervener status to a dozen organizations that sought input in the ongoing challenge to wines made in the West Bank but labeled as “Product of Israel.”

Psagot Winery

They included the Centre for Israel and Jewish Affairs (CIJA) and B’nai Brith Canada’s League for Human Rights.

One of wineries at the centre of the case, Psagot Winery Ltd., was added to the case as a respondent, but the court said its participation “must be limited.”

At issue in the case is whether wines produced by the Psagot and Shiloh wineries in West Bank Jewish settlements can be labeled as “Product of Israel” under Canadian law.

Last year, a Federal Court judge found that “made in Israel” labels on settlement wines are “false, misleading and deceptive” because international law does not recognize the West Bank as part of Israel, and that Canadians have a right shop “conscientiously.” She returned the case to the Canadian Food Inspection Agency’s appeals board for further consideration.

The government appealed her ruling. But before the appeal could be heard, a judge dismissed everyone who wanted to weigh in on the case, saying, in effect, that the court will not be drawn into a battle over the Israeli-Palestinian conflict.

In his ruling, Federal Court of Appeal Judge David Stratas said that “a number” of parties wishing to intervene wanted to address “Israel’s occupation of the West Bank, including the status of the West Bank, the territorial sovereignty of Israel, human rights and humanitarian concerns, issues of international law, and other related issues. Many of them appear to want this Court to rule on the merits of these issues.

“But there is one basic problem,” the judge wrote. “This appeal does not raise the merits of these issues.”

He said the case should properly rest on Canadian laws regulating the labeling of food and drugs, which are designed to protect consumers. There is “nothing to suggest,” Stratas said, that these laws “were enacted to address state occupation of territories and, in particular, Israel’s occupation of the West Bank.”

The Israel/West Bank issue “is a controversial one, with many differing views and deeply-felt opinions on all sides,” the judge went on. However, it is not “useful” for the appeals court to hear the interveners.

In addition to CIJA and B’nai Brith, Stratas dismissed requests to intervene from Independent Jewish Voices, the Centre for Free Expression, Amnesty International Canada, Prof. Eugene Kontorovich, Prof. Michael Lynk (the UN special rapporteur on Palestinian human rights), the Arab Canadian Lawyers Association, the Transnational Law and Justice Network, and Canadian Lawyers for International Human Rights, Al-Haq.

Independent Jewish Voices and B’nai Brith’s League for Human Rights were interveners in the Federal Court case.

Stratas also took aim at other judges who “give the impression that they decide cases based on their own personal preferences, politics and ideologies. Increasingly, they wander into the public square and give virtue signalling and populism a go.”

The judge said he didn’t want to be too hard on the prospective interveners, saying he suspects that some of them were “lured” to the appeal “by torqued-up press reports distorting what the Federal Court decided. And once one group applies to intervene on a controversial issue like this, others feel they also have to apply.”

The Psagot winery, about 20 kilometers northeast of Jerusalem in an Israeli settlement of the same name, was added to the case as a respondent because the court should have notified it of the case, said the judge. The court said the winery was “never invited” to join the case but should have been, and that it found out about the matter from media reports.

The winery “is pleased to have been granted the opportunity to be a party to this important legal proceeding,” said its lawyers, David Elmaleh and Aaron Rosenberg of the Toronto firm RE-LAW.

The firm’s website leaves little doubt about how it feels when it comes to the winery’s legal status:

“Psagot Winery’s wines are produced by Israelis under the auspices of an Israeli company in an Israeli community on Israeli land subject to Israeli law, in the State of Israel, and in the Land of Israel. Its wines are products of Israel.”

In a statement to the CJR, David Matas, legal counsel to the League for Human Rights, found fault with Stratas’ “over-generalizations.”

Also, this ruling was made by a single judge. “Yet the appeal itself will be heard, presumably, by a panel of three judges. The other two members of the panel might disagree with this judge on many of the statements he made.”

Interveners may ask the court to reconsider its decision within 10 days of the ruling, but “it is too early for B’nai Brith Canada to decide whether we will or will not do so.”

The case goes back to 2017, when Winnipeg resident David Kattenburg raised concerns with Ontario’s liquor board that products from the two wineries were from Israeli settlements in the occupied territories, not from Israel itself, and were deceptively labeled as “Product of Israel.”

He then complained to the Canadian Food Inspection Agency (CFIA), which sided with him. However, after Jewish groups protested, the agency abruptly reversed course, saying the wines could be sold under the Canada-Israel Free Trade Agreement.

Kattenburg appealed to the agency’s Complaints and Appeals Office, which upheld the reversal. He then sought a judicial review at the Federal Court.

The court sided with Kattenburg, and Jewish groups urged an appeal based on what they said were errors committed by the judge. The government agreed. Due to delays brought about by COVID, it is not clear when the matter will be heard.

* The above clarifies that the Psagot winery was added to this case as a respondent, not an internever.

– By CJR Staff