T-812-84
Le Groupe des éleveurs de volailles de l'est de
l'Ontario, D. Beauchesne, J. Beauchesne, E.
Guay, G. Dupont, B. Piche, M. Piche, M. Ranger,
Jacques Drouin, Jeanne Drouin, P. Soucy, M.
Thiele, F. Quesnel, C. Levac, F. Neveu, A.
Lafleche, P. St.-Onge, B. Lalonde, M. Lamou-
reux, D. Bourgon, R. Seguin, R. Bourgoie, A.
Peloquin, J. C. St-Denis, C. Gravel, A. Grenier,
D. Lauzon, L. Duval, Y. Duval and R. Lalonde
(Applicants)
v.
Canadian Chicken Marketing Agency (Respond-
ent)
Trial Division, Strayer J.—Ottawa, June 25 and
August 30, 1984.
Agriculture — Marketing Boards — Intra and interprovin-
cial trade — Quotas — Provincial boards establishing criteria
for allotment of quotas for interprovincial or export trade —
Ss. 10 and 10.1 of Regulations requiring boards to issue
quotas to producers having intraprovincial quotas at time
marketing plan came into effect, and to producers engaged in
interprovincial marketing during year prior to operation of
plan — Provincial Board refusing application for quotas —
Federal authorities not intervening — Action against federal
Agency and provincial Board as agent for certiorari, injunc
tion, prohibition and declaration — Regulations attacked as
inconsistent with objects of Act, discriminatory and unreason
able — Procedural and jurisdictional issues raised — Farm
Products Marketing Agencies Act, S.C. 1970-71-72, c. 65, ss.
2(e), 6, 7, 18, 22, 23(2),(3) — Canadian Chicken Marketing
Quota Regulations, SOR/79-559, ss. 3, 4, 5, 6, 10, 10.1 (as
am. by SOR/82-859, Schedule, s. 1), Schedule III, ss. 1, 3 (as
am. idem, s. 2) — Canadian Chicken Marketing Agency
Proclamation, SOR/79-158, ss. 1, 5, 6 — Canadian Chicken
Marketing Agency Delegation of Quotas Order, SOR/79-535,
s. 3.
Constitutional law — Charter of Rights — Mobility rights
— S. 6(2)(b) guaranteeing right to pursue gaining of livelihood
in any province — S. 6(3)(a) subjecting s. 6(2) rights to laws of
general application provided not discriminating on basis of
province of residence — Marketing laws of general application
— No discrimination within s. 6(3)(a) — Law Society of Upper
Canada v. Skapinker, 11984] 1 S.C.R. 357 considered —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 6(2)(b),(3)(a)•
Constitutional law — Charter of Rights — Life, liberty and
security of person — Meaning of "liberty and security of
person" from R. v. Operation Dismantle Inc., 119831 1 F.C.
745 (C.A.) applied — S. 7 not guaranteeing substantive rights,
but providing procedural protection with respect to manner of
denial of rights — No denial of fundamental justice in Agen-
cy's refusal to hear appeal — Legislation interfering with
freedom of contract or to engage in trade strictly construed —
S. 26 not elevating common law freedoms higher than this —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 7, 26.
Constitutional law — Distribution of powers — Trade and
commerce — Parliament's jurisdiction over trade and com
merce not including intraprovincial trade and commerce —
Delegation of responsibility to provincial agencies for adminis
tration of quota scheme regulating interprovincial trade in
chicken meat — Applications unable to obtain quotas —
Action against federal Agency and provincial Board as agent
— Jurisdictional issues raised — Constitution Act, 1867, 30 &
31 Vict., c. 3 (U.K.) /R.S.C. 1970, Appendix II, No. 51 (as am.
by Canada Act 1982, c. 11 (U.K.), Schedule to the Constitution
Act, 1982, Item 1), ss. 96, 101.
Bill of rights — Equality rights — S. 1(b) protecting right
of individual to equality before law — Eastern Ontario Broiler
Producers' Association obtaining amendment to Regulations
enabling members to acquire quotas — Regulations not
amended for applicants — Legislation inconsistent with s. 1(b)
only if creating distinctions between different classes of
individuals, having no rational relationship to valid legislative
purpose — Regulations reasonable and having rational rela
tionship to marketing plan — Regulations not requiring
exclusion of others from receiving quotas — Canadian Bill of
Rights, R.S.C. 1970, Appendix III, s. 1(b).
Jurisdiction — Provincial superior courts — Supreme Court
of Ontario unable to grant certiorari or mandamus against
federal agency — Uncertain whether provincial superior courts
able to give declaration as to validy of federal regulations
conflicting with Charter — No reason for implied guaranteed
right to issue declaration, as situation not menacing federal
system or constitutional safeguards of individual rights and
freedoms — Attorney General of Canada et al. v. Law Society
of British Columbia et al., 119821 2 S.C.R. 307 considered..
Jurisdiction — Federal Court — Trial Division — Provin
cial Board established under provincial law, not within judicial
review powers of Federal Court, Trial Division — Court of
Appeal not proper forum as proceedings not involving func
tions of judicial or quasi-judicial nature — Ss. 2 and 18
giving Court exclusive jurisdiction over federal Agency, estab-
lished under federal law and exercising jurisdiction conferred
under Act of Parliament — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, ss. 2, 18, 28.
Judicial review — Prerogative writs — Agriculture — Cer-
tiorari available to review delegated legislation for validity —
Suggestions in Martineau v. Matsqui Institution Disciplinary
Board (No. 2), [19801 1 S.C.R. 602, legislative processes not
subject to judicial review referring to absence of procedural
requirements of fairness in legislative process — Courts
unable to review legislative decisions on procedural grounds —
Certiorari available where alleged grounds matters normally
entertained by Court — Certiorari inappropriate where seek
ing particular interpretation of Regulations — No denial of
fairness in Agency's refusal to hear appeal.
Practice — Stay of proceedings — Application to stay
proceedings, pending determination of Supreme Court of
Ontario action, dismissed — Lack of identity between actions
and uncertainty as to availability of all remedies in Supreme
Court of Ontario — Respondent not party to other action and
plaintiffs additionally seeking damages..
Practice — Declarations — Applicant seeking declaration
ss. 10 and 10.1 of Regulations invalid by motion — Declarato-
ry relief not available by motion where respondent objecting —
R. 603 providing either action or motion appropriate for
proceedings under s. 18, other than proceeding for declaratory
relief — R. 319(1) requiring specific authorization to apply to
Court by motion — No specific authorization, nor discretion,
to permit application for declaration — Parties to have advan
tage of pleadings, discovery, production of documents as result
of declaratory judgment similar to result if substantive relief
available — Canadian Chicken Marketing Quota Regulations,
SOR/79-559, ss. 10, 10.1 (as am. by SOR/82-859, Schedule, s.
1), Schedule III, ss. 1, 3 (as am. idem, s. 2) — Federal Court
Rules, C.R.C., c. 663, RR. 319(1), 603.
Because courts have held that the jurisdiction of Parliament
with respect to "the regulation of trade and commerce" does
not include intraprovincial trade and commerce for the most
part, and since agricultural products are commonly produced in
circumstances where it is not known at the time of production
whether they will be marketed inside or outside the province, it
has been found desirable to combine powers deriving from both
federal and provincial laws with respect to the marketing of
such products in one integrated system of regulation.
Parliament has provided a means for the regulation of inter-
provincial and international trade in certain commodities and
has authorized the delegation of the administration of such
regulatory schemes to provincial agencies.
The Canadian Chicken Marketing Agency was established
by proclamation on December 28, 1978, together with the
marketing plan that the Agency was to administer. The Procla
mation defines "quota system" as a system established by the
Agency, by which a Board, pursuant to a delegation from the
Agency, allots quotas to chicken producers thus enabling the
Board to determine the quantity in which chickens may be
marketed in interprovincial or export trade.
The Canadian Chicken Marketing Agency delegated to the
Ontario Chicken Producers' Marketing Board the power to
allot quotas to Ontario producers with respect to chicken to be
sold in interprovincial and export trade.
Section 10 of the Canadian Chicken Marketing Quota
Regulations provides that producers in operation at the time
the plan came into effect should be automatically entitled to an
interprovincial and export quota if they had, at that time, an
intraprovincial quota. The Regulations were amended in Sep-
tember 1982 by the addition of section 10.1 and Schedule III.
Section 10.1 required the allotment of an interprovincial quota
to certain producers who had been engaged in interprovincial
marketing even though they did not have an intraprovincial
quota from the provincial Board, during the year prior to the
coming into operation of the marketing plan.
With respect to new producers, the Board may either allot
such quotas on the same basis as that on which intraprovincial
quotas are allotted or resort to some other criteria.
In November 1982 the applicants sought a quota stating that
they "presently produce broiler chickens and will be in a
position to produce as of December 31, 1982". Apparently they
were not engaged in the production or interprovincial market
ing of chicken during the qualifying period, nor were they truly
engaged in interprovincial marketing of chicken prior to July,
1983. They had been producing for some months prior to that
and had been nominally selling to a Montreal firm, but the
chickens were destined to an Ontario processor. The chickens
never left Ontario and the "sale" through the Montreal firm
was only a paper transaction.
The applicants applied individually in January 1983 for an
interprovincial quota, but their applications were refused for
failing to provide evidence of marketing chicken in interprovin-
cial trade during the qualifying period. The Board refused to
hear an appeal as it had no authority to "go beyond the
legislation". As a result of a meeting between the executive
committees of the Canadian Chicken Marketing Agency and
the National Farm Products Marketing Council, it was agreed
that any individual applicant might apply to the Agency for a
review of his application. The applicants as a group requested a
hearing to establish the production in the years preceding 1978,
but the Agency refused to act on this request because it was not
a request for a hearing on an individual basis, was not directed
to interprovincial trade, and related to production in the period
1965-1978 which was beyond the Agency's mandate.
The applicants raised the following issues: (1) the Agency
wrongly refused to entertain an appeal from the applicants (2)
sections 10 and 10.1 of the Canadian Chicken Marketing
Quota Regulations are invalid because not authorized by the
Farm Products Marketing Agencies Act (3) the Regulations
are constitutionally invalid for conflict with paragraph 6(2)(b)
of the Charter, which guarantees the right to pursue the
gaining of a livelihood in any province (4) the Regulations are
invalid because they conflict with section 7 of the Charter
guaranteeing the right to life and liberty, and (5) the Regula
tions must be construed and applied consistently with para
graph 1(b) of the Canadian Bill of Rights. The relief sought on
this motion includes a declaration, certiorari, prohibition, and
injunction.
As a preliminary matter the respondent objected to the
proceeding on the basis that essentially it was a request for a
declaration, with other forms of relief being incidental thereto.
A proceeding for declaration should be commenced by action
and not by motion. The respondent also contends that these
proceedings should be stayed pending the determination of a
Supreme Court of Ontario action against the Board, claiming
inter alla, damages in tort and damages pursuant to section
31.1 of the Combines Investigation Act. The respondents also
claim that the Federal Court, Trial Division does not have
jurisdiction under section 18 of the Federal Court Act over the
Board, which was established under provincial law.
Held, the application should be dismissed.
Declaratory relief cannot be obtained by motion, at least
where the respondent objects thereto. Rule 603 provides that
either an action or a motion may be used for proceedings under
section 18, other than a proceeding for declaratory relief. The
wording of Rule 319(1) means that there must be specific
authorization to apply to the Court by motion. There is no
specific authorization for a declaration to be sought by applica
tion, nor is there discretion to allow declarations to be sought
by way of motion. The practical result of a declaratory judg
ment ought to be much the same as if substantive relief were
available, and therefore the parties ought to have the advantage
of pleadings, discovery and production of documents.
These proceedings should not be dismissed in their entirety
nor stayed as they involve in part judicial review of a federal
Board, the Canadian Chicken Marketing Agency, established
under federal law and exercising or purporting to exercise
jurisdiction conferred under an Act of Parliament. Section 18
of the Federal Court Act grants the Trial Division of the
Federal Court exclusive original jurisdiction against such a
board. Superior courts such as the Supreme Court of Ontario
cannot grant certiorari or mandamus against a federal agency.
The Supreme Court of Ontario might not be able to give the
declaration requested as to the validity of federal regulations
but in this Court such a declaration can clearly be made. Even
if the Attorney General of Canada et al. v. Law Society of
British Columbia et al., [1982] 2 S.C.R. 307 applies so as to
ensure the Supreme Court of Ontario the power to make a
declaration as to conflicts between regulations made by federal
boards and the Charter, it is doubtful that the principle can be
carried beyond that so as to authorize judicial review of the
acts of a federal agency in the form of a declaration that its
regulations, though within federal jurisdiction were not author
ized by Parliament. There is no reason for an implied guaran
teed right of the provincial superior courts to issue such a
declaration as the situation does not menace the federal system
or constitutional safeguards of individual rights and freedoms.
A provincial superior court may determine whether a federal
regulation is valid where it is relevant to a cause of action and
to parties within the court's jurisdiction and if otherwise the
court would have to give effect to an invalid regulation. But
that is a different matter from making a declaration in a
proceeding brought solely for that purpose. The stay is also
refused because the parties and issues in the two actions differ.
Since it is not definite that the proceedings involved functions
of a judicial or quasi-judicial nature, it was correct to proceed
under section 18 of the Act.
The Court does not have jurisdiction to grant relief against
or review the decision of the Ontario Board.
The Court heard evidence relating to the legal nature of the
"appeal" to the Agency and the conduct by the Agency of such
proceeding, to the validity of the statutory instruments, and to
any possible violations by the Agency of rights under section 6
or 7 of the Charter.
The Agency was prepared to hear appeals by way of
individual hearings with respect to any applicant. It has no
power to allot individual quotas nor to change such allotment.
It can only establish a system by which quotas are allotted to
producers by the provincial boards. There is no specific require
ment for the Agency to hear appeals from Board decisions nor
is there any power in the Agency to direct a board to alter an
allotment. At most, an informal practice has developed where
by the Agency will hear representations and make suggestions
or recommendations to a provincial Board.
There is no basis for a complaint of denial of fairness in the
fact that the Agency has not conducted a general inquiry into
the production of chickens in Eastern Ontario. What the appli
cants want is a change in the Regulations that would entitle
them to quotas for interprovincial marketing. This would
involve a legislative process. The requirements of fairness do
not apply to an essentially legislative process. Therefore there is
no basis for an order against the respondent as to its procedure
with respect to an appeal.
The validity of the Regulations was considered, even though
a declaration was not obtainable, because in principle certiorari
should be available to review delegated legislation for validity.
The suggestions in Martineau v. Matsqui Institution Discipli
nary Board (No. 2), [1980] 1 S.C.R. 602 that legislative
processes may not be subject to judicial review refer to an
absence of procedural requirements of fairness in the legislative
process, resulting in a lack of ability in the courts to review
legislative decisions on procedural grounds. Certiorari should
be available where grounds are alleged that a court can normal
ly entertain, such as lack of jurisdiction (statutory or constitu
tional). An injunction would not be appropriate against the
respondent because there is no proof that it is taking steps to
enforce these Regulations.
The applicants contend that sections 10 and 10.1 of the
Regulations are inconsistent with the Act. By section 22 of the
Act, the objects of the Agency are "to promote a strong,
efficient and competitive production and marketing industry"
and "to have due regard to the interests of producers and
consumers". By the terms of a federal-provincial agreement,
the parties endorsed a policy "to work towards minimizing
quota values". The applicants contend that the system created
by the Regulations eliminates competition, has little regard for
consumer interests, and has the effect of making quotas expen
sive commodities: a new producer can only acquire a quota by
purchasing a property with respect to which a quota has been
issued in the past, the purchase price strongly reflecting the
value of the quota. It is doubtful that inconsistency with a
federal-provincial agreement would be a basis for attacking the
validity of the Regulations.
The Regulations do not represent a restriction on the number
or kinds of producers who may be given quotas by a provincial
board. Rather, they guarantee that certain producers will be
allotted a quota. The Regulations do not preclude allotments
for interprovincial and export trade beyond the ones required
by sections 10 and 10.1. Section 4 of the Regulations, which
provides that no producer shall market chicken in interprovin-
cial or export trade unless a quota has been allotted, means that
a producer must obtain an allotment from the provincial Board
even for marketing outside the province. It does not mean that
a producer must have a quota for intraprovincial marketing in
order to obtain a quota for marketing outside the province.
On this interpretation, the Regulations are not inconsistent
with the statute (section 22), nor are they discriminatory or
unreasonable. It seems quite rational at the commencement of
a marketing plan to preserve the marketing rights of those who
have demonstrated that they are genuine and competent pro
ducers. The exercise of the provincial Board's discretion is not
under review. However, in adopting the Regulations, and then
leaving the measure of discretion which it has to the provincial
Board with respect to allotment of quotas, the Agency has
acted reasonably and in a manner consistent with the objects of
the Act.
The applicants argue that they are being denied the right to
gain a livelihood in Quebec by selling their chickens there.
They contend that the right protected under paragraph 6(2)(b)
does not require, for its enjoyment, that one move to the
province where one wishes to make a livelihood. The Supreme
Court of Canada, in Law Society of Upper Canada v. Skapink-
er, [1984] 1 S.C.R. 357, held that paragraph 6(2)(b) does not
create a right to gain a livelihood in one's own province
independent of some element of interprovincial movement. The
Skapinker case does not precisely cover the situation here
where producers resident in Ontario are prevented from gaining
a livelihood in Quebec through selling chickens there, even
though they may never have occasion to go there to carry on
business in that Province. It is not clear whether, to be con
sistent with Skapinker, paragraph 6(2)(b) can be applied to
protect those who simply wish to sell their products in another
province without physically going there.
Under paragraph 6(3)(a), restrictions may be imposed on the
right set out in paragraph 6(2)(b) by laws of general applica
tion so long as said laws do not discriminate "among persons
primarily on the basis of province of present or previous
residence". The marketing laws here in question are laws of
general application. With specific reference to the quota
system, they do not discriminate against anyone on the basis of
his province of present or previous residence. To the extent that
they prevent anyone who was not engaged in interprovincial
marketing or did not have an intraprovincial quota, immediate
ly prior to December 28, 1978, they restrict equally persons not
so qualified, whether they are or were residents of Ontario. Nor
can it be said that the applicants are barred from selling in
Quebec simply because they are residents of Ontario. Rather, it
is because they do not have any interprovincial quota, and those
quotas have been issued without any reference to the residence
of the producer. There is no conflict with section 6 of the
Charter.
The applicants contend that "liberty" in section 7 of the
Charter includes freedom of contract which has allegedly been
denied to them by the impugned Regulations. The American
cases dealing with the guarantee of "liberty" found in the
Fourteenth Amendment are not particularly helpful as there
"liberty" is referred to in association with "due process".
There are no substantive rights guaranteed by section 7. Its
purpose is to provide procedural protection with respect to the
manner of denial of those rights.
There was no denial of fundamental justice arising out of the
Agency's supposed refusal to hear an appeal for reasons previ
ously stated.
The applicants seek to elevate to a right recognized by
section 26 of the Charter, the common law approach to free
dom of contract and freedom to engage in a trade. The common
law approach has never been that statutes or regulations inter
fering with these freedoms were invalid. Rather such freedoms
have been, in areas not regulated by statute, recognized to the
extent that the courts would not uphold certain kinds of
contracts unduly interfering with them. In areas regulated by
legislation, there has been a tendency to construe strictly
statutes interfering with freedom of contract or freedom to
engage in trades, but the "common law principles" can be put
no higher than that.
The applicants complain that they have been treated differ
ently from the way in which members of the Eastern Ontario
Broiler Producers' Association were treated. Section 10.1 was
added to the Regulations as a result of this Association's
request for quotas. Thus, other producers obtained an amend
ment enabling them to obtain quotas, whereas they have not
been amended to enable the applicants to do so.
A statute or regulation would be inconsistent with paragraph
1(b) of the Canadian Bill of Rights only if it creates distinc
tions between different classes of individuals which have no
rational relationship or purpose. The Regulations are reason
able and have a rational relationship to the launching of the
marketing plan. The Regulations do not require the exclusion
of other persons from receiving allotments, and if such persons
as the applicants have been excluded, that is the responsibility
of the provincial Board which is not a party in this Court.
If there was an inconsistency between the Regulations and
the Canadian Bill of Rights, certiorari may not be an appropri
ate remedy because all that is required is a particular interpre
tation of the Regulations, and not a quashing of the
Regulations.
CASES JUDICIALLY CONSIDERED
APPLIED:
Sherman & Ulster Ltd. v. Commissioner of Patents and
Industrial Chemical Industries Ltd. (1974), 14 C.P.R.
(2d) 177 (F.C.T.D.); Martineau v. Matsqui Institution
Disciplinary Board (No. 2), [1980] 1 S.C.R. 602; R. v.
Operation Dismantle Inc., [1983] 1 F.C. 745 (C.A.);
deMercado v. The Queen et al., judgment dated March
19, 1984, Federal Court, Trial Division, T-2588-83, not
yet reported.
NOT FOLLOWED:
Re Williams and Attorney-General for Canada et al.
(1983), 6 D.L.R. (4th) 329 (Ont. Div. Ct.).
CONSIDERED:
National Parole Board v. MacDonald, [1'976] 1 F.C. 532
(C.A.); Attorney-General for Manitoba v. Manitoba Egg
and Poultry Association et al., [19711 S.C.R. 689; Attor
ney General of Canada et al. v. Law Society of British
Columbia et al., [1982] 2 S.C.R. 307; Law Society of
Upper Canada v. Skapinker, [1984] 1 S.C.R. 357.
REFERRED TO:
"B" v. Department of Manpower & Immigration, [1975]
F.C. 602 (T.D.); Alexandre v. Minister of Employment
& Immigration, judgment dated May 15, 1984, Federal
Court, Trial Division, T-675-84, not yet reported; Lodge
v. Minister of Employment and Immigration, [1979] 1
F.C. 775 (C.A.), 94 D.L.R. (3d) 326; C.P. Transport Co.
Ltd. v. Highway Traffic Bd., [1976] 5 W.W.R. 541
(Sask. C.A.); Re Bicknell Freighters Ltd. and Highway
Transport Board of Manitoba (1977), 77 D.L.R. (3d)
417 (Man. C.A.); Carruthers v. Therapeutic Abortion
Committees, [1983] 2 F.C. 581; 6 D.L.R. (4th) 57
(C.A.); Canada Labour Relations Board et al. v. Paul
L'Anglais Inc. et al., [1983] 1 S.C.R. 147; Bates v. Lord
Hailsham of St. Marylebone, [1972] 1 W.L.R. 1373
(Ch.D.); Attorney General of Canada v. Inuit Tapirisat
of Canada et al., [1980] 2 S.C.R. 735; New Brunswick
Broadcasting Co., Limited v. Canadian Radio-television
and Telecommunications Commission, [1984] 2 F.C. 410
(C.A.); Re Bedesky et al. and Farm Products Marketing
Board of Ontario et al. (1975), 8 O.R. (2d) 516 (Div.
Ct.); Latham v. Solicitor General of Canada, [1984] 2
F.C. 734 (T.D.); MacKay v. The Queen, [1980] 2 S.C.R.
370.
COUNSEL:
E. Binavince and R. Lunau for applicants.
F. Lemieux and P. J. Wilson for respondent.
T. B. Smith, Q.C. and M. Kinnear for interve-
nant (Attorney General of Canada).
SOLICITORS:
Cowling & Henderson, Ottawa, for appli
cants.
Herridge, Tolmie, Ottawa, for respondent.
Deputy Attorney General of Canada for
intervenant (Attorney General of Canada).
The following are the reasons for order ren
dered in English by
STRAYER J.:
Relief Requested
This is an application for various forms of relief
which cannot be readily summarized and are
therefore quoted in full as follows:
(a) an order declaring that Sections 10 and 10.1 of the
Canadian Chicken Marketing Quota Regulations, as
amended, ("the Regulations") enacted by the Respond
ent are invalid in that:
(i) they are not within the authority of the Respondent
as established by the Farm Products Marketing
Agencies Act, S.C. 1970-1971 c. 65;
(ii) they are inconsistent with the Constitution of
Canada, particularly Sections 6(2)(b) and 7 of the
• Canadian Charter of Rights and Freedoms;
(b) an order quashing:
(i) the decision of the Ontario Chicken Producers'
Marketing Board, acting as agent of the Respond
ent, denying the application of the Applicants for
interprovincial and foreign marketing quota; and
(ii) the decision of the Respondent refusing to entertain
an appeal from the decision of the Ontario Chicken
Producers' Marketing Board referred to in (b)(i)
above,
in that both decisions, by relying on Sections 10 and
10.1 of the Regulations and by reason of the breach of
the duty of fairness by the Respondent and by the
Ontario Chicken Producers' Marketing Board, in their
consideration of the application for interprovincial and
foreign quota and of the request for appeal, are invalid
on the grounds, among others, mentioned in paragraphs
(a)(i) and (a)(ii), above;
(c) an order prohibiting the Respondent from applying or
otherwise acting upon, or from directing or causing its
agent the Ontario Chicken Producers' Marketing Board
to apply or otherwise act upon, Sections 10 and 10.1 of
the Regulations in considering and deciding upon the
applications for interprovincial and foreign quota of the
Applicants;
(d) an order
(i) permanently enjoining the Respondent, its officers,
servants, agents and any other person who shall
have knowledge of the order from interfering, in
any manner, with the enjoyment by the Applicants
of their right to pursue the gaining of a livelihood in
any province, pursuant to Section 6(2)(b), and their
right to life and liberty, pursuant to Section 7, of
the Canadian Charter of Rights and Freedoms,
particularly with the operation of their business of
producing and marketing broiler chickens in inter-
provincial and foreign commerce;
or, alternatively,
(ii) directing the Respondent or its agent, the Ontario
Chicken Producers' Marketing Board, to make an
immediate grant of quota to the Applicants to
produce eight million (8,000,000) pounds of broiler
chicken in Ontario and to market such broiler
chickens in Quebec, elsewhere in Canada and for
eign countries;
(e) such remedy, in the nature of the above or otherwise,
deemed by the Court as appropriate and just in the
circumstances pursuant to Section 24 of the Canadian
Charter of Rights and Freedoms.
At the outset counsel for the respondent raised
several objections with respect to the procedures
being employed by the applicants and to the juris
diction of the Court to give the relief requested.
Availability of Declaration on Motion
First, the respondent objected to the whole pro
ceeding on the basis that essentially it was a
request for a declaration, with other forms of relief
being merely incidental thereto. As a proceeding
for a declaration, it should have been commenced
as an action and not as a motion. The applicants
contended that by section 18 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10], which gives
the Trial Division exclusive original jurisdiction to
grant declaratory relief, this Division has its juris
diction by statute which it can exercise in any
proceeding. To the extent that the jurisprudence of
this Court has indicated in the past that such relief
cannot be obtained by way of motion, the appli
cants argued that it could be distinguished and if
not was wrong. I ruled that declaratory relief could
not be obtained by way of a motion, at least where
the respondent objects thereto. While the Trial
Division no doubt has statutory jurisdiction to
grant declaratory relief, it is obliged to follow the
Rules of Court [Federal Court Rules, C.R.C., c.
663] until those Rules are changed. Rule 603
provides that:
Rule 603. Proceedings under section 18 of the Act for any of
the relief described therein, other than a proceeding against the
Attorney General of Canada or a proceeding for declaratory
relief, may be brought either
(a) by way of an action under Rule 400; or
(b) by way of an application to the Court under Rules 319 et
seq. [Emphasis added.]
Thus Rule 603 does not give one a choice of using
either an action or a motion for the purpose of
obtaining a declaratory order. Admittedly, Rule
603 does not specify which procedure is to be used
for obtaining such an order. However, Rule 319(1)
provides that "Where any application is author
ized to be made to the Court, a judge or a pro-
thonotary, it shall be made by motion" (emphasis
added). This means that there must be specific
authorization to do so before an application may
be made to the Court by motion. I have been
unable to ascertain any specific authorization for a
declaration to be sought in this Court by way of an
application. It is to be noted that in Sherman &
Ulster Ltd. v. Commissioner of Patents and
Industrial Chemical Industries Ltd. (1974), 14
C.P.R. (2d) 177 (F.C.T.D.), at page 180,
Mahoney J. held that a declaration could not be
sought by way of application. See also the judg
ment of Addy J. in `B" v. Department of Man
power & Immigration, [1975] F.C. 602 (T.D.) at
pages 606, 621-622; and of Dubé J. in Alexandre
v. Minister of Employment and Immigration
(judgment dated May 15, 1984, Federal Court,
Trial Divison, T-675-84, not yet reported). It is my
understanding of its judgment that the Court of
Appeal in National Parole Board v. MacDonald,
[1976] 1 F.C. 532, at pages 533-534 confirmed
that such a procedure would be "inappropriate"
although in that case they proceeded to deal with
an appeal involving such a procedure because at
that point neither party was relying on procedural
error and both wanted to have an appeal judgment
on the merits.
This requirement of an action for a declaration
is not merely a procedural technicality. I agree
respectfully with the views of Mahoney J. in the
Sherman & Ulster Ltd. case, supra, where at page
180 he explained the rationale: that the practical
result of obtaining a declaratory judgment ought
to be much the same as if substantive relief were
available, and therefore the procedure for obtain
ing the one should be similar to that for obtaining
the other. That is, the parties ought to have the
advantage of pleadings, discovery, production of
documents, etc. In my view, it might well be
appropriate for the Court to have a discretion in
appropriate cases to allow declarations to be
sought by way of motion, but I do not find any
discretion to do so under the present rules.
I therefore held that the relief sought in para
graph (a) of the notice of motion as quoted above
could not be had in this proceeding. I dismissed
that part of the motion without prejudice to the
right of the applicants to seek a similar remedy by
way of an action if they chose to do so. At the
same time I declined to dismiss the rest of the
application at that stage because it appeared to me
that prima facie the other remedies sought could
stand on their own and were not dependent on the
issuance of an order declaring the Canadian
Chicken Marketing Quota Regulations [SOR/79-
559] to be invalid. That is, it appeared to me that
many of the issues that would be involved in
making such a declaration could equally be
addressed in relation to the other remedies.
Objections to Jurisdiction and Remedies; Request
for Stay
Counsel for the respondent then raised several
other objections to the jurisdiction of the Court
and to the remaining aspects of the application
being heard at this time. These objections for the
most part arise out of the rather complex joint
federal-provincial arrangements which it has been
necessary to develop in this country in the field of
marketing of natural products in order to avoid
certain constitutional rigidities. Briefly put,
because the courts have held that the jurisdiction
of Parliament with respect to "The Regulation of
Trade and Commerce" does not include intrapro-
vincial trade and commerce for the most part, and
since agricultural products are commonly pro
duced in circumstances where it is not known at
the time of production whether they will be mar
keted inside or outside the province, it has been
found desirable to combine powers deriving from
both federal and provincial laws with respect to
the marketing of such products in one integrated
system of regulation. Such a system is involved in
the present case.
While the constitutional parameters of such
joint marketing schemes have now become reason
ably well defined, the procedural and jurisdictional
issues involved in the present proceedings raise
associated questions which have not been as fully
explored. What is involved here at the outset are
the roles of the Federal Court and of provincial
superior courts in the exercise of supervisory
powers over administrative agencies engaged in the
administration of these interlocking federal and
provincial laws for the establishment of joint mar-
keting schemes. Consequently, problems arise as to
the proper interpretation of sections 96 and 101 of
the Constitution Act, 1867, 30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1).
The Farm Products Marketing Agencies Act,
S.C. 1970-71-72, c. 65, was adopted by Parliament
in 1972. It was in part a legislative response to the
regulatory and constitutional problems illustrated
by the so-called "chicken and egg war" of the late
1960's and early 1970's. This "war" involved
attempts by certain provinces to protect their own
producers of chickens or eggs by limiting or pre
venting importation of the surplus production in
such commodities from other provinces. The
Supreme Court of Canada in Attorney-General
for Manitoba v. Manitoba Egg and Poultry Asso
ciation et al., [1971] S.C.R. 689 held that prov
inces could not, for the purpose of protecting their
own producers, restrict importation of such prod
ucts from other provinces as this amounted to "a
regulation of trade and commerce" which is a
matter assigned to Parliament involving, as it does,
interprovincial trade.
The Farm Products Marketing Agencies Act
provides, inter alia, for the establishment of a
National Farm Products Marketing Council, to be
appointed by the Governor in Council. The duties
of the Marketing Council, as set out in section 6 of
the Act, include that of advising the Minister with
respect to the establishment and operation of
"agencies". By section 7 the Council is supposed
to consider requests for the establishment of an
agency in respect of the marketing of a farm
product and also to recommend terms of a "mar-
keting plan" to be administered by that agency. By
paragraph 2(e) of the Act, "marketing plan" is
defined as:
2.
(e) . . . a plan relating to the promotion, regulation and
control of the marketing of any regulated product in inter-
provincial or export trade that includes provision for all or
any of the following:
(iii) the marketing of the regulated product on a basis that
enables the agency that is implementing the plan to fix and
determine the quantity, if any, in which the regulated
product or any variety, class or grade thereof may be
marketed in interprovincial or export trade by each person
engaged in such marketing thereof and by all persons so
engaged, ...
By section 17 of the Act the Governor in Council
is authorized to establish such agencies by procla
mation and by section 18 such proclamation is to
set out the terms of the marketing plan that the
agency is empowered to implement. By subsection
18(3) it appears that, notwithstanding the general
language employed earlier in the Act, the Gover
nor in Council can confer on an agency the power
to determine the quantity in which a regulated
product can be marketed in interprovincial or
export trade only if that product is eggs or poultry.
Section 23 of the Act sets out a number of the
objects and powers of such agencies. Subsections
(2) and (3) are of particular significance for
present purposes. They provide as follows:
23. ...
(2) An agency may perform on behalf of a province any
function relating to intraprovincial trade in any regulated
product in relation to which it may exercise its powers that is
specified in an agreement entered into pursuant to section 32.
(3) An agency may, with the approval of the Governor in
Council, grant authority to any body, authorized under the law
of a province to exercise powers of regulation in relation to the
marketing locally within the province of any regulated product
in relation to which the agency may exercise its powers, to
perform on behalf of the agency any function relating to
interprovincial or export trade in the regulated product that the
agency is authorized to perform.
Thus, provision is made for interdelegation of
administrative powers, either from the province to
the federal agency as in subsection 23(2), or from
the federal authority to a provincial agency as in
subsection 23(3). It is the latter subsection which
has been employed in the present case.
On December 28, 1978, the Governor in Council
approved the signature by the Minister of Agricul
ture of a federal-provincial agreement, entered
into with most of the provinces, which had
endorsed a marketing plan for chickens. On the
same day the Canadian Chicken Marketing
Agency Proclamation, SOR/79-158 was adopted
by the Governor in Council. It purports to be made
under subsection 17(1) of the Act and establishes
both the Canadian Chicken Marketing Agency
and the marketing plan (as approved by the signa
tory provinces) which the Agency is to administer.
The term "Commodity Board" is defined by sec
tion 1 of the Proclamation to include, in Ontario,
the Ontario Chicken Producers' Marketing Board,
which is the Board referred to in the applicants'
notice of motion here in. The term "quota system"
is defined as:
5....
... a system established by the Agency by which a Board or
Commodity Board, pursuant to a delegation from the
Agency, allots quotas to chicken producers thus enabling the
Board or Commodity Board to fix and determine the quanti
ty, if any, in which chickens of any variety, class or grade
may be marketed in interprovincial or export trade.
Similarly, section 6 provides for the quota system
which is to obtain under the marketing plan that
the Agency is to administer. Subsection 6(1) pro
vides as follows:
6. (1) The Agency shall, by order or regulation, establish a
quota system for the regulated area by which quotas are
allotted to all members of classes of chicken producers in each
province to whom quotas are allotted by the appropriate Board
or Commodity Board.
Subsection 6(4) requires the Agency, in establish
ing the quota system, to allot quotas to each
province in such a way that the quota for a given
province shall equal the amount of chicken meat
produced and sold within the province, plus the
amount of chicken meat which may be produced
and sold outside the province in interprovincial and
export trade, plus chicken meat produced in the
province which is not subject to quota. Subsection
6(5) of the Proclamation proceeds to fix the pro
vincial quotas in specific numbers of pounds and
kilograms, province by province. There have been
several amendments to this Proclamation which I
think do not affect the present situation.
Subsequent to the issuance of this Proclamation,
the Governor in Council approved on July 19,
1979 the Canadian Chicken Marketing Agency
Delegation of Quotas Order, SOR/79-535, which
had been made by the Agency and approved by
the Council. Section 3 of this Order provides as
follows:
3. Subject to and in accordance with any regulations made
by the Agency , the Agency hereby authorizes each Commodity
Board in respect of a province to allot, on behalf of the Agency,
quotas in interprovincial and export trade to producers in the
province and, for such purposes, to exercise all or any powers
like the powers exercisable by such Commodity Board in
relation to the marketing of chicken locally within the province.
Thus the Agency, with the approval of the Council
and the Governor in Council, pursuant to subsec
tion 23(3) of the Act delegated to, inter alia, the
Ontario Chicken Producers' Marketing Board the
power to allot quotas to producers in Ontario with
respect to chicken to be sold in interprovincial and
export trade.
Further, the Agency with the approval of the
Council adopted on July 30, 1979 the Canadian
Chicken Marketing Quota Regulations, SOR/79-
559. These Regulations provide inter alia as
follows:
4. No producer in a province that is a regulated area shall
market chicken in interprovincial or export trade unless a quota
has been allotted to that producer by the Commodity Board of
that province.
5. A Commodity Board in respect of a province shall allot
quota in interprovincial and export trade to producers in that
province and may, for such purposes, exercise all or any powers
like the powers exercisable by it in relation to the marketing of
chicken locally within that province.
6. A quota may be allotted to a producer in a province upon
the like terms and conditions and in the like manner as a quota
is allotted in relation to the marketing of chicken locally within
that province.
10. The Commodity Board in respect of a province shall
authorize any producer in that province to market chicken in
interprovincial and export trade if, on or before December 28,
1978, he was, and since that day has continued to be, author
ized by that Commodity Board to market chicken locally within
that province.
The Regulations were amended by the Agency,
with the approval of the Council on September 14,
1982, by SOR/82-859 [s. 1]. These amendments
include the following:
10.1 Notwithstanding section 10, where, on or before Decem-
ber 28, 1978, the Commodity Board of a province was author
ized, pursuant to subsection 2(1) of the Agricultural Products
Marketing Act, to regulate the marketing of chicken, that
Commodity Board shall authorize a producer in that province
to market chicken in interprovincial trade, subject to and in
accordance with the provisions of Schedule III, if
(a) on or before December 28, 1978, the producer was not
authorized by that Commodity Board to market chicken
locally within that province; and
(b) the producer engaged in the marketing of chicken in
interprovincial trade during the qualifying period as defined
in section 1 of Schedule III.
In section 1 of the new Schedule III referred to in
section 10.1, there is the following definition:
1. ...
"qualifying period" means the period commencing on the 28th
day of December, 1977 and ending on the 27th day of
December, 1978;
Section 3 of Schedule III further provides:
3. ...
(2) A Commodity Board shall not issue a basic broiler quota
to an applicant therefore unless the Commodity Board has
verified the information contained in the application and the
applicant makes available to it such books and records as may
be necessary to enable the Commodity Board to verify the
quantity of broiler chicken produced and marketed in interpro-
vincial trade during the qualifying period from the registered
premises of the applicant.
While it may be necessary to consider other
aspects of the legislation and statutory instru
ments, the foregoing provide the essential frame
work of the scheme and will explain the jurisdic
tional issues raised by the respondent. This
framework reveals that Parliament has provided a
means for the regulation of interprovincial and
international trade in certain commodities, and has
authorized the delegation of the administration of
such regulatory schemes to provincial agencies.
Further, it appears such a delegation has been
made with respect to, inter alia, the allotment of
quotas in interprovincial and export trade in chick
en meat to Ontario producers thereof. The federal
Regulations require that such a producer have a
quota allotted by the Ontario Chicken Producers'
Marketing Board in order to sell in interprovincial
or export trade. Section 6 of the Regulations
permit, but do not require, the provincial Board to
allot interprovincial and export quotas on the same
basis as intraprovincial quotas. However, section
10 does require that, vis-à-vis producers in opera
tion at the time the plan came into effect, they
should be automatically entitled to an interprovin-
cial and export quota if they had, at that time, an
intraprovincial quota. The amendment, section
10.1 of the Regulations, further requires the allot-
ment of an interprovincial quota to certain pro
ducers who had been engaged in interprovincial
marketing, even though they did not have an intra-
provincial quota from the provincial Board, during
the year prior to the coming into operation of the
marketing plan. This was frequently referred to as
a "grandfather clause" during argument.
It appears to me from the foregoing that the
provincial Board, while required to grant interpro-
vincial or interprovincial and export quotas to
certain specified classes of producers in operation
before the coming into force of the plan, may with
respect to new producers either allot such quotas
on the same basis as that on which intraprovincial
quotas are allotted or resort to some other criteria.
The essential complaint of the applicants herein is
that they have not been able to bring themselves
within any of the categories to which the provin
cial Board is required by federal Regulations to
grant interprovincial or export quotas. They say
that they have engaged, and want to engage, in
interprovincial and possibly export trade but have
been denied quotas to do so by the provincial
Board. They further say that notwithstanding sub
missions to the federal Agency and the National
Farm Products Marketing Council, these federal
authorities have not taken steps to see that such
quotas are issued in interprovincial or export trade.
Hence these proceedings against the Agency in
which relief is sought both with respect to activi
ties of the Agency and with respect to activities of
the provincial Board which, according to the appli
cants, is simply an agent of the federal Agency.
As noted earlier counsel for the respondent took
several further objections to the procedures being
employed and the jurisdiction of the Court. First,
while conceding that Rule 603 permits the obtain
ing of an injunction by application without the
necessity of an action, this apparently having been
implicitly confirmed by the Court of Appeal in
Lodge v. Minister of Employment and Immigra-
tion, [1979] 1 F.C. 775 at page 783; 94 D.L.R.
(3d) 326, at page 333, he says that it is not
appropriate in a case such as the present to grant a
permanent injunction without a full trial of the
facts by way of an action. I think I need not
consider this objection further at this point. In my
view it is necessary first to see if there is any legal
basis for issuing an injunction and then consider
whether judicial discretion should nevertheless be
exercised against its issuance.
Further, the respondent objected that to the
extent that the remaining relief still in issue at this
point (i.e., everything except the declaration
requested in paragraph (a)) is sought against the
Ontario Chicken Producers' Marketing Board,
such relief is beyond the jurisdiction of this Court
to give. He relied on section 18 of the Federal
Court Act which essentially gives the Trial Divi
sion jurisdiction to give relief against a "federal
board, commission or other tribunal". Section 2 of
that Act defines "federal board, commission or
other tribunal" in such a way as to include bodies
exercising powers conferred by or under an Act of
Parliament but not including such bodies if they
are "constituted or established by or under a law
of a province". The Ontario Chicken Producers'
Marketing Board, it was agreed on all sides, is
established under provincial law and therefore
does not come within the judicial review powers of
the Federal Court, Trial Division. Counsel for the
respondent cited in support of this conclusion the
following cases: C.P. Transport Co. Ltd. v. High
way Traffic Bd., [1976] 5 W.W.R. 541 (Sask.
C.A.); Re Bicknell Freighters Ltd. and Highway
Transport Board of Manitoba (1977), 77 D.L.R.
(3d) 417 (Man. C.A.). See now also Carruthers v.
Therapeutic Abortion Committees, [1983] 2 F.C.
581; 6 D.L.R. (4th) 57 (C.A.) (leave to appeal
refused by S.C.C. Feb. 2, 1984).
Finally, the respondent contended that in any
event I ought to stay the present proceedings in the
Federal Court pending the determination of a
proceeding commenced by the applicants herein in
the Supreme Court of Ontario. This is an action
commenced on January 23, 1984, approximately
three months before the present motion was filed
in the Federal Court. While the plaintiffs in that
action appear to be the same as the applicants
herein, the respondent before me is not a party to
that action. Instead the defendants in that action
include the Ontario Chicken Producers' Marketing
Board, La Fédération des producteurs de volailles
du Québec, (referred to hereinafter as "Volbec")
and a number of individuals. While there is some
similarity in the relief sought, in that the plaintiffs
in that action also seek an order requiring the issue
to them of quotas by the provincial Board and an
injunction preventing interference with their pur
suit of a livelihood through the sale of chicken
meat outside the province, they also seek damages
in tort and damages pursuant to section 31.1 of the
Combines Investigation Act [R.S.C. 1970, c. C-23
(as am. by S.C. 1974-75-76, c. 76, s. 12)]. In
addition they seek declarations as to invalidity, not
only of regulations or orders of the provincial
Board but also of
any applicable orders, regulations, statutes made by or pursu
ant to the authority of the provinces of Ontario and Quebec and
of Canada or the prerogative of the Crown ... supporting the
unlawful actions of the defendants
as being inconsistent with the Constitution. Appar
ently a statement of defence has now been filed in
that action. The plaintiffs therein had applied for
an interlocutory injunction in February and on
June 28, 1984 Callon J. dismissed that application.
While he considered that there is a substantial
issue to be tried he did not think it an appropriate
case in which to issue an interlocutory injunction
prior to the trial and disposition of the action.
The respondent contended that the action in the
Supreme Court of Ontario covers the issues raised
in these proceedings and is more comprehensive in
that it also involves the claim for damages. He
further contended that the Supreme Court of
Ontario would have power to issue any necessary
declarations as to the validity of the Proclamation,
the Delegation of Quotas Order, and the Regula
tions, issued by the federal authorities herein. He
relied for this proposition on the cases of Attorney
General of Canada et al. v. Law Society of British
Columbia et al., [1982] 2 S.C.R. 307 and Re
Williams and Attorney-General for Canada et al.
(1983), 6 D.L.R. (4th) 329 (Ont. Div. Ct.).
Counsel for the applicants contended that the
present case would be an appropriate one for an
injunction to be issued. As to the jurisdiction of the
Court, he contended essentially that what was
involved in the present proceeding was judicial
review of a federal agency. While conceding that,
by virtue of section 2 of the Federal Court Act,
this Court could not exercise powers of judicial
review over the provincial Board as such, it has
exclusive jurisdiction over the federal Agency and
could make orders against the Agency and its
agents with respect to the regulation of interpro-
vincial and export trade. He distinguished the
proceedings in the Supreme Court of Ontario on
the basis that they involve an action in tort and
also that, to the extent that they involve a declara
tion as to the validity of the quota system, this
pertained to intraprovincial quotas whereas the
proceedings in the Federal Court, Trial Division
relate to interprovincial and export quotas. He
therefore opposed the stay of the present
proceedings.
After consideration of these submissions, I ruled
that I could not conclude at that point that the
proceedings herein should be dismissed in their
entirety or stayed. I noted the normal reluctance of
the Court to dismiss or strike out proceedings on
preliminary objections if it is not abundantly clear
that such proceedings cannot succeed.
More specifically, I was not prepared to dismiss
the proceedings as being beyond the jurisdiction of
this Court or to stay them in favour of the action
in the Supreme Court of Ontario, because it
appears to me that these proceedings involve, in
part, judicial review of a federal Board, namely the
Canadian Chicken Marketing Agency, established
under federal law and exercising or purporting to
exercise jurisdiction conferred under an Act of
Parliament. By section 18 of the Federal Court
Act the Trial Division of the Federal Court has
exclusive original jurisdiction to grant relief
against such a Board. I understand from this that
it was the intention of Parliament that judicial
review of federal agencies should normally be
effected by the Federal Court and not by provin
cial superior courts such as the Supreme Court of
Ontario.
It is not clear that the Supreme Court of
Ontario can give all of the relief sought by the
applicants in the present proceeding. It obviously
cannot give certiorari or mandamus against a
federal agency. It might not be able to give the
declaration requested as to the validity of federal
regulations. It is true that, as submitted by the
respondent, the Supreme Court of Ontario is en
titled according to the authority of the Law Socie
ty of British Columbia case, supra, to issue decla
rations to the effect that federal statutes or
regulations are invalid because in conflict with the
distribution of powers prescribed by the Constitu
tion. It appears from the judgment of Estey J.,
writing for the Supreme Court of Canada, at pages
328-329 that it is not sufficient that a superior
court authorized by section 101 of the Constitu
tion Act, 1867 (i.e., the Federal Court), whose
decisions are reviewable by another section 101
court (the Supreme Court of Canada), have the
jurisdiction to grant such a declaration; such juris
diction must also be available to the superior
courts of the provinces authorized (though not
established) by section 96 of the Constitution Act,
1867 whose decisions are equally appealable to a
section 101 court (the Supreme Court of Canada).
To deny provincial courts such jurisdiction
... would strip the basic constitutional concepts of judicature
of this country, namely the superior courts of the provinces, of
a judicial power fundamental to a federal system ....
This decision has since been followed in Canada
Labour Relations Board et al. v. Paul L'Anglais
Inc. et al., [1983j 1 S.C.R. 147. These cases
involved the distribution of powers. Whether the
same principle should apply where the declaration
sought, as in the present case, relates to possible
conflicts with the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] remains to be seen, since the purported
violation of the Charter does not imply an unau
thorized intrusion by federal authorities into pro
vincial jurisdiction and therefore does not threaten
the "federal system". Even assuming, however,
that the principle of the Law Society of British
Columbia case applies so as to ensure the Supreme
Court of Ontario the power to make a declaration
as to conflicts between regulations made by federal
boards and the Charter, it is doubtful that the
principle can be carried beyond that so as to
authorize such judicial review of the acts of a
federal agency in the form of a declaration that its
regulations, though within federal jurisdiction,
were not authorized by Parliament. I can see no
reason for an implied guaranteed right of the
provincial superior courts to issue such a declara
tion, as the situation does not menace the federal
system or constitutional safeguards of individual
rights and freedoms. For this reason I respectfully
decline to adopt the reasoning of the Divisional
Court of Ontario in Re Williams and Attorney-
General for Canada et al., supra, where it appar
ently interpreted the Law Society of British
Columbia decision to authorize a provincial supe
rior court to determine, in a proceeding for a
declaration, whether the Governor in Council had
acted within the statutory authority granted to it
by Parliament. See Mullan, Annotation (1983), 3
Admin. L.R., at pages 114-115. I have no doubt
that, were such a question relevant to a cause of
action and to parties within the jurisdiction of a
provincial superior court, and if the court were in a
position where, if it could not consider the validity
of a federal regulation vis-à-vis its statutory
authorization the court might have to give effect to
an invalid regulation, then it should be able to
consider that question and make a determination
for the purposes of that action. But that is a
different matter from making a declaration in a
proceeding brought solely for that purpose. At this
point it is not possible to say in what circumstances
the Supreme Court of Ontario might be expected
to make the declaration concerning federal laws
and regulations as requested in the prayer for
relief in the action in that Court. It is not clear,
therefore, that a declaration could be made in the
proceedings in that Court. In this Court such a
declaration clearly can be made if the proceedings
are in an appropriate form.
I would also refuse the stay of the present
proceedings because of other differences between
them and the action in the Ontario Court. The
respondent here is not even a party to the provin
cial action. The provincial Board and Volbec are
parties to that action but not to the present pro
ceedings. There are a number of different issues
raised by the Ontario action including rather far-
ranging tort claims.
Given this great lack of identity between the two
actions, and given the fact that not all of the
remedies sought here could necessarily be obtained
in the provincial Court, I declined to grant the
stay.
It had also been suggested by counsel for the
Attorney General of Canada that this matter
might have been better dealt with by proceedings
brought under section 28 of the Federal Court Act
for review by the Court of Appeal. I concluded
that at that stage of the proceedings I was unable
to determine that these proceedings involved func
tions of the Agency of a judicial or quasi-judicial
nature and therefore it appeared to me that the
proper avenue was under section 18 of the Act as
the applicants had chosen. I might add that noth
ing that later transpired has altered this conclu
sion.
Having held that the proceedings should contin
ue, I ruled at the same time that there were certain
forms of relief referred to in the notice of motion
which would not be available. First, as previously
determined, the declaration sought in paragraph
(a) is not available herein because these proceed
ings were not commenced in the form of an action.
Further, there could be no form of relief against,
or judicial review of, the Ontario Chicken Produc
ers' Marketing Board because that is not within
the jurisdiction of this Court. I also expressed
some doubt as to whether any of the decisions
under attack, if essentially of a legislative nature,
could be reviewable by certiorari.
I therefore concluded that the only issues which
I could address in these proceedings were as fol
lows. With respect to the relief sought in para
graph (b), I could only consider the suitability of
the order referred to in subparagraph (ii). With
respect to the order requested in paragraph (c), I
could only consider that possibility vis-à-vis the
respondent Agency. I held that I was prepared to
consider this as a request for relief either in the
form of prohibition or an injunction, depending on
which, if either, were warranted by the facts and
further argument. With respect to the relief
requested in paragraph (d), I held that I would
only consider the request in subparagraph (i) in so
far as it would involve an order against the
respondent Agency but not as against the provin
cial Board as the "agent" of the respondent. With
respect to the alternative relief sought in subpara-
graph (ii), the order previously given by Walsh J.
on May 31, 1984, was to the effect that, because
proper evidence was available on which could be
given an order requiring the allotment of a quota
with respect only to a few of the applicants, the
applicants were allowed to withdraw their request
for the relief sought in this subparagraph without
prejudice to their right to renew it following the
hearing on this application. I will not deal with
that matter further at this stage. The relief sought
in paragraph (e), being anything which the Court
deems appropriate, was left for consideration in
my final order.
By way of summary then I indicated that I was
prepared to hear evidence and argument as to the
legal nature of the "appeal" to the Agency as
referred to in subparagraph (b)(ii) and the con
duct by the Agency of such a proceeding, evidence
and argument as to the validity of the statutory
instruments, and evidence and argument as to any
possible violations by the Agency of rights under
section 6 or 7 of the Canadian Charter of Rights
and Freedoms. I excluded evidence or argument as
to what the provincial Board has done in the
exercise of authority delegated to it by the federal
statutory instruments or otherwise. I concluded by
noting that if this division of various forms of relief
appeared complicated, it is because it reflects the
complications of the Constitution which divided
authority between the two levels of government
with respect to the regulation of trade and author
ized the creation of (without itself creating) supe
rior courts by both Parliament and provincial
legislatures to engage in judicial review of the
administrative tribunals created by each of those
legislative bodies.
On the basis of the foregoing the application
was then heard. I will summarize the essential
facts and then deal with the substantive issues as
raised by the parties.
Facts
The Ontario Chicken Producers' Marketing
Board was established under provincial law in
1965. It proceeded to grant intraprovincial quotas,
i.e. quotas for the production of chickens for sale
in Ontario, to Ontario producers. According to
counsel for the applicants, some 834 chicken pro
ducers received such a quota from the Board, but
none of these, with the exception of one quota
granted in 1969, was a producer of chickens east
of Kingston in Ontario prior to 1983. It is not
disputed that there were nevertheless chicken pro
ducers operating in Eastern Ontario during this
period, and selling all or much of their production
in Quebec and in the United States.
As noted earlier, the marketing plan for chick
ens established under the Farm Products Market
ing Agencies Act came into effect on December
28, 1978. In early 1979 Mr. Yvon Montpetit, a
barrister and solicitor in Hawkesbury, Ontario,
submitted a memorandum to the Farm Products
Marketing Council established under the Act on
behalf of 11 producers in that area who, along
with others, had formed the Eastern Ontario Broil
er Producers' Association. The gist of this
representation was that his clients had been pro-
timing broilers since 1967 for sale in the Montreal
market. They had not been made aware of the
marketing plan and quota restrictions when they
were established in Ontario in the 1960's. The
provincial Board had shown very little interest in
them and appeared only concerned that they not
sell in the Toronto market. As these producers
wished to continue selling in Montreal they asked
for a "permit" from the federal authorities to do
so, either on a permanent basis or until the
Ontario Board made the determination concerning
their applications for quotas. These representations
were apparently brought to the attention of the
Canadian Chicken Marketing Agency in March,
1979 and were discussed by the Agency at a
meeting in May, 1979. According to the affidavit
of Mr. Romeo Leblanc, General Manager of the
Agency, the problem of the Eastern Ontario Broil
er Producers' Association, and possible solutions to
the problem, were discussed with representatives
of all the provinces which had signed the federal-
provincial agreement endorsing the marketing
plan. These discussions took place in 1980 and
1981. Following this the amendments to the Regu
lations now found in section 10.1 and Schedule III
were adopted on September 14, 1982 and pub
lished in the Canada Gazette as SOR/82-859. The
effect of those amendments was to require provin
cial boards to authorize marketing in interprovin-
cial trade for producers who had been engaged in
interprovincial marketing during the "qualifying
period" and who had not had a quota from the
provincial Board at that time. The "qualifying
period" was defined as December 28, 1977 to
December 27, 1978, being the year immediately
preceding the coming into force of the marketing
plan. This covered the situation of the members of
the Eastern Ontario Broiler Producers' Associa
tion.
Shortly after these amendments were adopted
and published, the Agency published advertise
ments as to the nature of the amendments and as
to how application could be made for such quotas.
These advertisements were published in 13 news
papers circulating in eastern Ontario including
both English and French language papers and
including what appear to be three trade journals.
It was after this that the Agency received its first
communication from the applicants in the present
proceedings. A Mr. Pierre Lamoureux, a barrister
and solicitor of Ottawa, wrote to the Agency on
their behalf. His letter dated November 26, 1982
stated that his clients "presently produce broiler
chickens and will be in a position to produce as of
December 31, 1982". He made reference to other
producers in the area who had been producing
without a quota and who had been given the right
to an interprovincial quota. This presumably is a
reference to the members of the Eastern Ontario
Broiler Producers' Association. He asked for simi
lar consideration for his clients.
The evidence is unsatisfactory as to the date of
commencement, and quantity, of chicken produc
tion of most of the applicants, and as to whether
this is for most of them a principal occupation.
Affidavits were sworn by only seven of the appli
cants and all but one of these is to a large extent
simply confirmatory of the affidavit of François
Quesnel, the President of Le Groupe des éleveurs
de volailles de l'est de l'Ontario (GEVEO), one of
the applicants herein to which the other applicants
belong. Much of the evidence in these affidavits
also appears to be hearsay, which is not adequate
for a motion of this kind which is not an interlocu
tory proceeding. There is some difference of opin
ion between the respondent and the applicants as
to when the latter started producing chickens.
There is little evidence to suggest that they were
engaged in much production before the last half of
1982. In particular, it appears to be common
ground that the applicants were not engaged in the
production or interprovincial marketing of chicken
during the qualifying period prescribed for Regu
lation 10.1, namely December 28, 1977 to Decem-
ber 27, 1978. Further, according to the affidavit of
Mr. Leblanc, which is supported by the affidavit of
Thomas McClintock, a chartered accountant who
was appointed as an inspector of the Agency for
this purpose, the applicants were not truly engaged
in interprovincial marketing of chicken at least
prior to July, 1983. They had apparently been
producing for some months prior to that and had
nominally been selling to a Montreal firm,
Cronkhite Poultry (Montreal) Ltd. but it was the
opinion of the deponents Leblanc and McClintock
that in fact the destination of the chickens was an
Ontario processor, Maple Lodge Farms of Norval,
Ontario. That is, the chickens never left Ontario
and the "sale" through the Montreal firm was in
their view only a paper transaction.
As a result of the advertisements noted above,
and the communications with the Agency, the
applicants herein individually applied to the
Ontario Chicken Producers' Marketing Board in
January, 1983, for an interprovincial quota. In
February they were sent letters by the Board
indicating that they had to produce books and
records to establish their marketing of chicken in
interprovincial trade during the qualifying period,
December 28, 1977—December 27, 1978. Subse
quently, in April, 1983 they were sent letters
advising them that their applications had been
refused because they had failed to provide evi
dence of marketing chicken in interprovincial
trade during the qualifying period. The applicants
then sent individual letters dated June 2, 1983 to
the Board requesting an appeal of its decision. By
a letter dated June 13, 1983 the Secretary-Manag
er of the provincial Board wrote to Mr. Quesnel
representing the applicants saying that the Board
had no authority to "go beyond the legislation"
and that any appeal should be made to the
Canadian Chicken Marketing Agency and/or the
National Farm Products Marketing Council.
According to Mr. Quesnel, he then telephoned Mr.
Leblanc, the General Manager of the Agency, and
was advised that there was no point in pursuing an
appeal; that the Agency would not "grant an
appeal to anyone who had not been in production
during the qualifying period". Subsequently,
according to Mr. Leblanc, the solicitors for the
applicants together with some of the applicants
met with the executive members of the National
Farm Products Council on August 4, 1983 to
review the situation. The next day the executive
committee of the Council met with the executive
committee of the Agency and it was agreed that
any individual applicant for interprovincial quota
might apply to the Agency and request that a
review of his application be undertaken. On
August 9, 1983, Mr. J. Boynton, the Vice-Chair
man of the National Farm Products Marketing
Council, wrote to the solicitors then representing
the applicants, the letter reading in part as follows:
As agreed at the meeting with your clients on July 27, 1983,
the Council Executive met on August 4, 1983, to review the
current situation involving your principals in Eastern Ontario.
On August 5, 1983, the Council Executive met, in Toronto,
with the Executive of the Canadian Chicken Marketing Agency
and a representative of the Ontario Chicken Producers' Mar
keting Board to discuss the concerns and the position of the
Eastern Ontario producers you represent. At that meeting, the
CCMA assured us that any individual applicant for interpro-
vincial quota may apply to the Canadian Chicken Marketing
Agency and request that a review of his application be
undertaken.
On the basis of the above observation, we would suggest that
you instruct your clients who may wish to do so, to write to the
CCMA requesting such a review, at which time the applicant
could present any additional information or evidence which he
believes relevant to his case. The Agency will arrange such
reviews promptly.
According to Mr. Leblanc the Agency has not
since that time received any request, on an
individual basis, from most of the applicants with
respect to a review of the quota decisions as
applied to them. Instead, the applicants Quesnel
and Thiele met representatives of the Council on
September 13, 1983 and made a request in writing
in the form of a letter dated September 12 to the
Canadian Chicken Marketing Agency, as follows:
The Eastern Ont. Chicken Farmers Ass. G.E.V.E.O. having
been embroiled in a conflict with the Ont. Chicken Producers'
Marketing Board, requests a hearing before your board, to
investigate the amount of chicken produced in Eastern Ont., in
the years of 1965-1978 and the failure of the O.C.P.M.B. to
allot quota for our production.
For discussion, we would like to establish the production in
the years preceding 1978.
Please advise us of date and time for this hearing. Attending
this hearing would be the members of the executive of
G.E.V.E.O.
The Agency has taken the position that it will not
act on this request because it is not a request for a
hearing on an individual basis of quota problems,
is not directed to interprovincial trade and relates
to production in the period 1965-1978 which is
beyond the Agency's mandate. In October and
December, 1983, the Agency did however review
individual quota applications including, apparent
ly, applications from one or two of the present
applicants. As a result it made certain recommen-
dations to the Board for adjustments of quotas in
respect of certain producers and these recommen
dations were apparently adopted by the Board.
The procedure followed for these "hearings" was
that the Executive Committee of the Agency con
sidered evidence produced at a review hearing
before it and then made recommendations to the
provincial Board.
The applicants complain that since July, 1983
they have been subjected to various forms of inter
ference and harassment by the provincial Board
and by La Fédération des producteurs de volailles
du Québec (voLBEc). There is no significant evi
dence that the respondent is involved directly in
such alleged activities. As noted earlier, on Janu-
ary 23, 1984 the applicants commenced action in
the Supreme Court of Ontario against the provin
cial Board, VOLBEC, and certain other producers
claiming, inter alla, damages for such alleged
activity. On April 25, 1984 they commenced this
application in the Trial Division.
The applicants attack the actions of the respond
ent on basically five grounds: (1) the Agency
wrongly refused to entertain an appeal from the
applicants; (2) Regulations 10 and 10.1 are invalid
because not authorized by the Farm Products
Marketing Agencies Act; (3) the Regulations are
constitutionally invalid for conflict with paragraph
6(2)(b) of the Canadian Charter of Rights and
Freedoms; (4) the Regulations are invalid because
in conflict with section 7 of the Canadian Charter
of Rights and Freedoms; and (5) the Regulations
must be construed and applied consistently with
paragraph 1(b) of the Canadian Bill of Rights
[R.S.C. 1970, Appendix III]. I shall deal with
each of these substantive issues and in connection
with each consider what remedies, if any, are
relevant and available.
Refusal of Agency to Entertain Appeal
The essential complaint of the applicants here is
that the respondent has refused to hear their case.
While they concede that there is no statutory
provision for such a hearing, they contend that it is
the policy of the Board to hold such hearings and
fairness requires that if such hearings are held for
others they should be held for the applicants.
To the extent that this is a complaint that the
respondent has refused to hold an individual hear
ing with respect to any or each of the applicants, I
have no hesitation in rejecting it. The letter from
Mr. Boynton, the Vice-Chairman of the Council,
to the applicants' solicitor of August 9, 1983
makes it clear on behalf of the Agency that the
Agency is prepared to hear any such appeals. The
applicants do not deny that this letter was written
nor that it was received by their solicitor. There is
no evidence to indicate that the Agency has subse
quently declined the request of any individual
applicant for a hearing.
I therefore do not need to consider whether in
any event the respondent was obliged to hold such
a hearing. It is clear that the respondent has no
power to allot any individual quota or to change
such allotment. By subsection 6(1) of the Schedule
to the Proclamation, SOR/79-158, it is clear that
the Agency can only establish a quota system by
which quotas are allotted to producers by the
provincial Commodity Board. There is no specific
requirement for the Agency to hear appeals from
Board decisions nor is there any power in the
Agency to direct a Board to alter an allotment. At
most, it can be said that an informal practice has
developed whereby the Agency will hear represen
tations and make suggestions or recommendations
to a provincial Board. Conceivably, once having
adopted such a practice it is incumbent on the
Agency to make it available to all producers on the
same basis, but the matter is not beyond dispute.
To the extent that this is a complaint—which it
seems to be—that the Agency has not conducted a
general inquiry into the production of chickens in
Eastern Ontario, I can see no basis for a complaint
of denial of fairness. It appears to me that this
would be in the nature of a legislative process
directed toward what the applicants really want
which is a change in the Regulations. What the
applicants really complain of is that the amend
ments in the form of section 10.1 and Schedule III
of the Regulations were designed for the benefit of
the Eastern Ontario Broiler Producers' Association
and they seemingly want a hearing, as described in
Mr. Quesnel's letter of September 12, 1983 to
demonstrate that they are equally deserving of a
regulation that would entitle them to quotas for
interprovincial marketing. Such an investigation
and a subsequent consideration and adoption of
regulations would in my view constitute a legisla
tive process. The end product would be regulations
which would have a universal application across
the country. It is only necessary to consider the
process used with respect to the adoption of the
amendments in 1982. Following representations
from and discussions with the Eastern Ontario
Broiler Producers' Association, the Agency carried
out discussions with all the provincial signatories
of the federal-provincial agreement of 1978 and
eventually adopted the amendments which have
universal application. A similar process would pre
sumably be involved if further amendments were
made to deal with the problem of the applicants.
In my view, the requirements of fairness do not
apply to an essentially legislative process: see
Bates v. Lord Hailsham of St. Marylebone,
[1972] 1 W.L.R. 1373 (Ch.D.), at page 1378;
Attorney General of Canada v. Inuit Tapirisat of
Canada et al., [1980] 2 S.C.R. 735, at pages
756-758; New Brunswick Broadcasting Co., Lim
ited v. Canadian Radio-television and Telecom
munications Commission, [1984] 2 F.C. 410
(C.A.). The essence of the applicants' complaint
concerning refusal to hear an appeal is that of
denial of fairness which I think is irrelevant in the
circumstances. I therefore find no basis for an
order against the respondent as to its procedure
with respect to an "appeal".
The Regulations are not Authorized by the Farm
Products Marketing Agencies Act
I am going to proceed to consider the validity of
the Regulations even though a declaration is not
obtainable in these proceedings because I have
come to the conclusion that in principle certiorari
should be available to review delegated legislation
for validity. While certiorari was at one time
confined in its use to the review of judicial and
quasi-judicial decisions, it is now clear that it may
be used to review administrative decisions as well:
see Martineau v. Matsqui Institution Disciplinary
Board (No. 2), [1980] 1 S.C.R. 602. It is true that
in the Martineau decision there are suggestions in
both the majority judgment by Pigeon J. (at page
634, quoting the judgment of Megarry J. in Bates,
supra) and in the concurring minority judgment
by Dickson J. [as he then was] (at page 628) that
legislative processes may not be subject to judicial
review. But it appears to me clear that, in the
context, these should be taken to refer to an
absence of procedural requirements of fairness in
the legislative process (as noted above) resulting in
a lack of ability in the courts to review legislative
decisions on procedural grounds. Apart from these
particular limitations on the grounds for granting
certiorari where legislative functions are involved,
I can see no reason for holding certiorari to be
unavailable as a remedy where grounds are alleged
that a court can normally entertain, such as lack of
jurisdiction (statutory or constitutional) as con
sidered below. In this regard I respectfully adopt
the views of Dickson J. in Martineau, supra, at
page 619:
When concerned with individual cases and aggrieved persons,
there is the tendency to forget that one is dealing with public
law remedies, which, when granted by the courts, not only set
aright individual injustice, but also ensure that public bodies
exercising powers affecting citizens heed the jurisdiction grant
ed them. Certiorari stems from the assumption by the courts of
supervisory powers over certain tribunals in order to assure the
proper functioning of the machinery of government. To give a
narrow or technical interpretation to "rights" in an individual
sense is to misconceive the broader purpose of judicial review of
administrative action. One should, I suggest, begin with the
premise that any public body exercising power over subjects
may be amenable to judicial supervision, the individual interest
involved being but one factor to be considered in resolving the
broad policy question of the nature of review appropriate for
the particular administrative body.
See also Evans, de Smith's Judicial Review of
Administrative Action (4th ed., 1980), at pages
72, 395.
The essential complaints of the applicants con
cerning the Regulations, whether attacked on
statutory or constitutional grounds, relate to sec
tions 10 and 10.1, and Schedule III. These are
quoted above. Suffice it to say that section 10
requires provincial Boards to grant interprovincial
and export quotas to any producer to whom the
Board had given an intraprovincial quota before
the commencement of the marketing plan. Section
10.1 further requires the provincial Board to grant
an interprovincial quota to any producer who did
not previously have a quota but who was market
ing chickens in interprovincial trade during the
qualifying period. Schedule III defines qualifying
period as being the year between December 28,
1977 and December 27, 1978 and requires the
provincial Board to verify such information which
the applicant must make available as is necessary
for the Board to determine that the applicant was
so marketing during the qualifying period.
The applicants contend that these Regulations
are inconsistent with the statute. They point out
that by section 22 of the Act the objects of an
Agency are "to promote a strong, efficient and
competitive production and marketing industry"
and "to have due regard to the interests of pro
ducers and consumers". Further they say that by
the terms of the federal-provincial agreement,
approved on the part of the Government of
Canada by P.C. 1978-3967 dated December 28,
1978, the parties undertook to instruct their repre
sentatives on various policies including a policy "to
work towards minimizing quota values". They say
that the system created or preserved by these
Regulations eliminates competition for established
producers, has little or no regard for efficiency or
consumer interests, and has the effect of making
quotas expensive commodities: a new producer can
only acquire a quota by purchasing a property
with respect to which a quota has been issued in
the past, the purchase price strongly reflecting the
value of the quota. They also contend that on the
basis of general principles of law statutory powers
to make regulations should not be exercised in a
discriminatory way but in a reasonable way.
I doubt that inconsistency with a federal-provin
cial agreement would in any event be a basis for
attacking the validity of the Regulations.
With respect to the other bases of attack, it is
necessary that at this point I clarify what I think
to be the proper interpretation of these Regula
tions. In my view they do not represent a restric
tion on the number or kinds of producers who may
be given quotas by a provincial board. Rather,
they guarantee that certain producers will be allot
ted a quota in interprovincial, or interprovincial
and export, trade. The applicants prefer this inter
pretation and I think it is the correct one. Counsel
for the respondent contended that the Regulations
do restrict provincial boards to granting quotas
only in those situations where the Regulations
specifically require an allotment. As authority for
this he relies on section 4 of the Regulations which
provides in effect that no producer in a regulated
area shall market chicken in interprovincial or
export trade "unless a quota has been allotted to
that producer by the Commodity Board of that
province". In my view all this means is that a
producer must obtain an allotment from the pro
vincial Board even for marketing outside the prov
ince. Were it not for this provision, it is doubtful
that provincial law could so require because inter-
provincial and export marketing is a matter for
Parliament. Section 4 does not mean, in my view,
that a producer must have a quota for intraprovin-
cial marketing in order to obtain a quota for
marketing outside the province. It is this interpre
tation which counsel for the respondent seemed to
be advocating. I reject this interpretation, and find
that the provincial Board has general authority by
virtue of the Canadian Chicken Marketing Agency
Delegation of Quotas Order, SOR/79-535, section
3 of which authorizes the provincial Board
3. ... to allot, on behalf of the Agency, quotas in interpro-
vincial and export trade to producers in the province and, for
such purposes, to exercise all or any powers like the powers
exercisable by such Commodity Board in relation to the mar
keting of chicken locally within the province.
While clearly the provincial Board has to make
allotments consistently with the Regulations of the
Agency, in my view those Regulations do not
preclude allotments for interprovincial and export
trade beyond the ones required by sections 10 and
10.1.
On this interpretation, then, it is not possible to
say that the Regulations are inconsistent with the
statute, nor are they discriminatory or unreason
able. It appears to me quite rational at the com
mencement of a marketing plan which for the first
time covers marketing in interprovincial and
export trade to preserve the marketing rights of
those who have demonstrated that they are gen
uine and competent producers by having produced
in the recent past. Such was the conclusion of the
Divisional Court of Ontario in Re Bedesky et al.
and Farm Products Marketing Board of Ontario
et al. (1975), 8 O.R. (2d) 516, at pages 545-546,
where the Ontario Chicken Marketing Plan was
under consideration. I do not think it can be said
that to guarantee an allotment for at least these
producers is clearly contrary to the promotion of a
"strong, efficient and competitive production and
marketing industry" nor without "regard to the
interests of producers and consumers" as required
by section 22 of the Act. It has not been demon
strated to me that such Regulations are intrinsical
ly unreasonable. Nor are they discriminatory in
the normal sense of that word. It is true that they
distinguish between those who have produced
before a certain date and/or have had a quota
before a certain date, but that date is chosen by
reference to the commencement of the new mar
keting plan embracing interprovincial and export
trade. There is thus a rational basis for it in terms
of the legitimate purposes of the Regulations and
therefore it cannot be said to be discriminatory.
In so finding, I must emphasize that I am only
directing my attention to the actions of the
respondent. In my view the Agency has left a
considerable measure of discretion to the provin
cial Board. It may well be open to demonstration
in other proceedings against the Board that it has
not exercised that discretion in a manner con-
sistent with the objects of the Act or in a manner
which is reasonable or non-discriminatory. As
determined at the outset, I have no authority to
review the actions of the provincial Board, either
directly or indirectly, by treating the Board as an
agent of the respondent, a federal agency. In
adopting the Regulations which it has, and then
leaving the measure of discretion which it has to
the provincial Board with respect to allotment of
quotas for interprovincial and export marketing,
the federal Agency has in my view acted reason
ably and in a manner consistent with the objects of
the Act and that is all I need determine here.
Had I found some defect in the Regulations
based on inconsistency with, or lack of authority
granted by, the Act, for the reasons stated above I
believe that I could address such deficiencies
through the issue of a writ of certiorari. As for
other remedies, such questions could, of course
have been addressed in an action for a declaration
but the applicants have chosen not to proceed by
way of action and have therefore forgone the right
to a declaratory remedy. While they also seek
injunctions to prevent the respondent from acting
on the basis of the impugned Regulations, they
have not demonstrated any action which the
respondent itself is likely to take pursuant to these
Regulations which would directly interfere with
them. Therefore even if there were a substantive
ground for an injunction, there was no basis for
granting one against the respondent. The adminis
tration of the scheme is in the hands of the provin
cial Board and that Board is beyond my
jurisdiction.
Validity of Regulations in Relation to Charter,
Paragraph 6(2) (b)
Section 6 of the Charter provides as follows:
6. (1) Every citizen of Canada has the right to enter, remain
in and leave Canada.
(2) Every citizen of Canada and every person who has the
status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a
province other than those that discriminate among persons
primarily on the basis of province of present or previous
residence; and
(b) any laws providing for reasonable residency requirements
as a qualification for the receipt of publicly provided social
services.
(4) Subsections (2) and (3) do not preclude any law, pro
gram or activity that has as its object the amelioration in a
province of conditions of individuals in that province who are
socially or economically disadvantaged if the rate of employ
ment in that province is below the rate of employment in
Canada.
It is necessary to see the paragraph in question in
this context.
The applicants argue, with some force, that they
are being denied the right to gain a livelihood in
Quebec by selling their chickens there. They con
tend that the right protected under paragraph
6(2)(b) does not require, for its enjoyment, that
one move to the province where one wishes to
make a livelihood. They contend further that, as
the Charter equally binds both federal and provin
cial authorities it matters not whether one or the
other or both are responsible for bringing about
this effect: in any case, it is an effect proscribed by
the Charter.
The most authoritative decision to date on this
paragraph is that of the Supreme Court of Canada
in the Law Society of Upper Canada v. Skapinker,
[1984] 1 S.C.R. 357. That case involved, inter
alia, a person who was not a Canadian citizen but
who had met all other requirements for member
ship in the Ontario Bar except that of citizenship.
He sought a declaration that the citizenship
requirement for bar admission was inconsistent
with paragraph 6(2)(b) of the Charter because it
had the effect of denying him the right to pursue
the gaining of a livelihood in Ontario even though
he was admitted for permanent residence. By the
time the matter reached the Supreme Court one
Richardson, a U.S. citizen also otherwise qualified
for admission to the Bar, joined the case as an
intervenor. The Supreme Court came to the con
clusion that paragraph 6(2)(b) does not create an
independent right to gain a livelihood in one's own
province independent of some element of interpro-
vincial movement. At page 382 of the judgment,
Mr. Justice Estey on behalf of the Court stated as
follows:
I conclude, for these reasons, that para. (b) of subs. (2) of s.
6 does not establish a separate and distinct right to work
divorced from the mobility provisions in which it is found. The
two rights (in para. (a) and in para. (b)) both relate to
movement into another province, either for the taking up of
residence, or to work without establishing residence.
As in that case there was no extraprovincial ele
ment involved, the paragraph was held not to
apply to the situation so as to prevent the Province
of Ontario from requiring Canadian citizenship for
persons joining the Law Society of Upper Canada.
While very relevant, the Skapinker case does
not precisely cover the present situation where, it is
said, producers resident in Ontario are prevented
from gaining a livelihood in Quebec through sell
ing chickens there, even though they may never
have occasion to go there to carry on business in
that Province. There is clearly an extraprovincial
element involved in such a situation but it is not
clear whether, to be consistent with the judgment
of the Supreme Court in Skapinker, paragraph
6(2)(b) can be applied to protect those who simply
wish to sell their products in another province
without physically going there. Counsel for the
respondent pointed out the anomaly that would
exist if this paragraph does cover the present situa
tion, as it would guarantee the right of a natural
person to sell across a provincial boundary but
would not protect the corporation doing so as it
only applies to citizens and permanent residents,
neither of which designation is appropriate for a
corporation. There is the further question as to
whether section 6 was ever intended to guarantee
free movement of goods between provinces, this
being a matter hotly contested in constitutional
discussions of recent years but without any appar
ent consensus being reached.
I think I need not decide the matter simply on
the language of paragraph 6(2)(b), however. It
appears to me that under paragraph 6(3)(a), re
strictions may be imposed on the right set out in
paragraph 6(2)(b), by laws of general application
so long as said laws do not discriminate "among
persons primarily on the basis of province of
present or previous residence". It appears to me
that the marketing laws in question here are laws
of general application. With specific reference to
the quota system, they do not discriminate against
anyone on the basis of his province of present or
previous residence. To the extent that in the
present situation they prevent anyone who was not
engaged in interprovincial marketing, or did not
have an intraprovincial quota, immediately prior
to December 28, 1978, they restrict equally per
sons not so qualified whether they are or were
residents of Ontario. It appears, for example, that
all or most of the present applicants are and have
been for a long time residents of Ontario. Nor can
it be said that the applicants are barred from
selling in Quebec simply because they are residents
of Ontario. Rather, it is because they do not have
any interprovincial quota and those quotas have
been issued without any particular reference to the
residence of the producer. I therefore conclude
that there is no conflict with section 6 of the
Charter.
Again, of course, certiorari might have been
available as a remedy if substantive grounds had
been established for its grant. This Charter issue
might also have been addressed through a declara-
tory action but the applicants have not resorted to
an action. An injunction would not be appropriate
against the respondent because there is no proof
that it is taking steps to enforce these Regulations
nor, as far as I can see, could it do so.
Validity of Regulations as Regards Section 7 of
the Charter
Section 7 of the Charter provides as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
First, the applicants contend that the "liberty"
referred to includes freedom of contract which,
they say, has been denied to them by the impugned
Regulations. In support of this proposition they
refer to a number of decisions of the United States
Supreme Court, mostly in relation to the guaran
tee in the Fourteenth Amendment of the U.S.
Constitution that no State shall "deprive any
person of life, liberty, or property, without due
process of law".
First, it should be observed that the trend in the
jurisprudence of the United States Supreme Court
for at least the last forty years has been unfavour
able to absolute freedom of contract, as such, as a
form of "liberty" under the Fourteenth Amend
ment. Moreover, "liberty" is there referred to in
association with the term "due process". It is
necessary to consider the Canadian provision on its
own terms.
I respectfully agree with the judgment of Pratte
J. in R. v. Operation Dismantle Inc., [1983] 1 F.C.
745 (C.A.), at page 752 where he held that the
phrase "liberty and security of the person" must
be read as a whole as referring to freedom from
arbitrary arrest or detention, and with the judg
ment of Cattanach J. in deMercado v. The Queen
et al. (judgment dated March 19, 1984, Federal
Court, Trial Division, T-2588-83, not yet reported)
where, at pages 12-13, he follows the judgment of
Pratte J. Further, I have held elsewhere and
remain of the view that there are no substantive
rights guaranteed by section 7. Rather, its purpose
is to provide procedural protection with respect to
the manner of denial of those rights. See Latham
v. Solicitor General of Canada, [1984] 2 F.C. 734
(T.D.).
The applicants contend however that even if
section 7 provides only procedural, and not sub
stantive, protection there has been a denial here of
fundamental justice. They have not explained the
nature of that denial, other than that arising out of
the supposed refusal of the Agency to entertain an
appeal with respect to their quotas. I have dealt
with this matter earlier and for the same reasons
that I have found no denial of fairness I would
conclude that there has been no denial of "funda-
mental justice".
Closely associated with this argument based on
section 7 was the contention by the applicants that
the common law has always jealously guarded
freedom of contract and freedom to engage in a
trade. They seek to elevate this common law
approach into a right which they then say is
recognized by section 26 of the Charter which
provides as follows:
26. The guarantee in this Charter of certain rights and
freedoms shall not be construed as denying the existence of any
other rights or freedoms that exist in Canada.
In my view the common law approach has never
been that statutes or regulations interfering with
these freedoms were invalid. Rather such freedoms
have been, in areas not regulated by statute, recog
nized to the extent that the courts would not
uphold certain kinds of contracts unduly interfer
ing with them. In areas regulated by legislation,
there no doubt has been a tendency to construe
strictly statutes interfering with freedom of con
tract or freedom to engage in trade. But the
"common law principles" can be put no higher
than that and they certainly acquire no more
content by the inclusion of section 26 in the
Charter.
For the reasons which I outlined in the previous
section dealing with paragraph 6(2)(b) of the
Charter, it appears to me that, if I am in error
with respect to the non-applicability of section 7 of
the Charter, certiorari could be available but the
other requested remedies would not be.
Need to Construe and Apply the Regulations Con
sistently with the Canadian Bill of Rights, Para
graph 1(b)
This paragraph of the Canadian Bill of Rights
provides as follows:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(b) the right of the individual to equality before the law and
the protection of the law;
The applicants complain that they have been treat
ed differently from the way in which the members
of the Eastern Ontario Broiler Producers' Associa
tion were treated. By this presumably they mean
that the Regulations were amended in a way which
enabled the other producers to obtain quotas
whereas they have not been amended to enable the
applicants to do so.
Given the very narrow construction applied to
this paragraph by many courts, including the
Supreme Court of Canada, I believe that at best it
can be said that a statute or regulation would be
inconsistent with paragraph 1(b) of the Canadian
Bill of Rights only if it creates distinctions be
tween different classes of individuals which have
no rational relationship to some valid legislative
purpose. See, e.g., MacKay v. The Queen, [ 1980]
2 S.C.R. 370, at pages 390-391. As I have
explained earlier in relation to the proposition that
the Regulations in question here were not author
ized by the statute, it appears to me that the
Regulations adopted by the Agency, guaranteeing
quota allotments for interprovincial or export mar
keting to those in the business of production before
December 28, 1978 (the date of the inception of
the marketing plan under the federal law), are
reasonable in the circumstances and have a ration
al relationship to the launching of the marketing
plan. I also emphasized there that the Regulations
passed by the Agency do not require the exclusion
of other persons from receiving allotments and if
such persons as the applicants have been excluded
that is the responsibility of the provincial Board
which is not and cannot be a party in this Court. I
am not at liberty to review its actions to determine
if they are consistent with the Canadian Bill of
Rights even though, arguably, in exercising powers
under the Farm Products Marketing Agencies Act
the Board will be obliged to observe the require
ments of the Canadian Bill of Rights.
Should I be in error in finding that there is no
inconsistency between the Regulations and the
Canadian Bill of Rights, it is not clear that certio-
rari could be used here against the Agency to
correct the situation. Certiorari may not be an
appropriate remedy because all that is required is
a particular interpretation of the Regulations—an
interpretation which in the view of the applicants
would accord with the requirements of paragraph
1(b) of the Canadian Bill of Rights—and not a
quashing of those Regulations. Also, for reasons
previously stated, the declaration is not available
in these proceedings and an injunction would not
be available against the respondent because it is
not taking, nor is it about to take, and administra
tive action under the Regulations vis-à-vis the
applicants.
Conclusions
The possible scope of action left open to me was
narrowed or rendered uncertain by the fact that
these proceedings were not commenced as an
action and therefore a declaratory order was not
available; and further by my conclusion that,
because of constitutional constraints and the statu
tory limitations imposed by section 2 of the Feder
al Court Act, I could give no remedy which would
amount to judicial review of the actions of a Board
created under provincial law even if it were exer
cising powers under federal laws. The only form of
remedy that appears to me to be potentially appli
cable is certiorari vis-à-vis the respondent Agency
to review its decisions including legislative
decisions.
Within these constraints, it is my conclusion
that there is no basis for holding wrong or invalid
decisions of the respondent Agency with respect to
the "appeal" sought by the applicants nor with
respect to the Canadian Chicken Marketing Quota
Regulations adopted by it.
I therefore dismiss the application with costs,
without prejudice to the right of the applicants to
seek by way of an action a declaration similar to
that sought by this motion.
ORDER
It is hereby ordered that this application be
dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.