Judgments

[2001] 3 F.C. 20

T-1916-99

2001 FCT 34

Canadian Restaurant and Foodservices Association (Applicant)

v.

Canadian Dairy Commission (Respondent)

The Canadian Milk Supply Management Committee, The Prince Edward Island Milk Marketing Board, The New Brunswick Milk Marketing Board, The Fédération des producteurs de lait du Québec, The Dairy Farmers of Ontario, The Manitoba Milk Producers and Attorney General of Québec (Interveners)

Indexed as: Canadian Restaurant and Foodservices Assn. v. Canada (Dairy Commission) (T.D.)

Trial Division, Tremblay-Lamer J.—Ottawa, January 16, 17, 18 and February 7, 2001.

Federal Court Jurisdiction — Trial Division — Judicial review of Canadian Milk Supply Management Committee’s denial of application for Class 5a) milk permits — Court not having jurisdiction to review decision because CMSMC not federal board, commission or other tribunal within Federal Court Act, s. 2(1) — CMSMC not created by federal statute, but under federal-provincial agreement (NMMP) — That federal-provincial agreement approved by order in council not sufficient to bring CMSMC “under” Act of Parliament — “Conferred by or under an Act of Parliament” in s. 2(1) meaning source of jurisdiction must be found in Act of Parliament — CMSMC’s powers come directly from P-9 Agreement (federal-provincial agreement modifying NMMP) which never became law — Powers exercised by CMSMC pursuant to P-9 Agreement expressly delegated to provincial boards which in turn, through Agreement, mandated CMSMC — Nothing in Act, Regulations permitting delegation of federal powers to CMSMC — Any mandate given to CMSMC given by provincial signatories through Agreement — CMSMC not controlled directly, indirectly by federal body.

This was an application for judicial review of the Canadian Milk Supply Management Committee’s denial of the applicant’s application for Class 5a) milk permits. Both the federal and provincial governments exercise jurisdiction over the regime of milk supply management in Canada. In order to regulate in a seamless way both the intraprovincial and interprovincial trade in dairy products, both levels of governments have entered into the National Milk Marketing Plan (NMMP) and the Comprehensive Agreement on Special Class Pooling (P-9 Agreement). The P-9 Agreement includes a Memorandum of Understanding (MOU), which establishes an agreement respecting the manner in which the signatories exercise their authorities and responsibilities in relation to Special Class Pooling, and an Addendum which establishes and operates the Special Milk Class Permit Program (SMCPP). The SMCPP is a program to maintain the competitive trade, both domestic and international, in dairy products, to establish the pricing of milk marketed in interprovincial trade, and to pool returns. The SMCPP provides for five categories of milk including Special Milk Class 5a), which consisted of cheese ingredients for further processing for the domestic and export markets. The SMCPP contemplates that access to the special milk classes will be through a permit system administered by the Canadian Dairy Commission (CDC) under the policy, direction and supervision of the CMSMC.

The CDC is a federal crown corporation, which has been granted certain powers under the Canadian Dairy Commission Act in order to provide milk and cream producers with the opportunity of obtaining a fair return for their labour and investment, and to provide consumers with a continuous and adequate supply of dairy products of high quality. Section 9.1 permits the CDC to enter into an agreement with the provinces to provide for the co-ordinated marketing of dairy products. The CDC has authority to delegate to a provincial board many of its powers. The Canadian Milk Supply Management Committee (CMSMC) is a committee created by contract. It is responsible for the supervision and policy determinations required of it by the NMMP.

The applicant’s members are manufacturers of fresh pizza who derive most of their revenues from home deliveries. The CRFA proposed expansion of the product eligibility criteria for the SMCPP in order to give manufacturers of fresh pizza access to Class 5a) milk permits. When the CMSMC rejected the proposal, the CRFA applied for judicial review of that decision.

Federal Court Act, subsection 2(1) defines “federal board, commission or other tribunal” as any body having powers “conferred by or under an Act of Parliament”, or under an order made pursuant to a prerogative of the Crown, other than any such body established by or under a law of a province.

The issue was whether the Court had jurisdiction to review the exercise of powers by the CMSMC, which in turn depended upon whether the CMSMC was a federal board, commission or other tribunal within the meaning of the Federal Court Act, subsection 2(1).

Held, the application should be dismissed.

The Court did not have jurisdiction to review the decision because the CMSMC is not a “federal board, commission or other tribunal” as provided by subsection 2(1).

The applicant argued that the CMSMC acts as a federal body for the purposes of the administration of the SMCPP. The CMSMC was not created by federal statute. It was created by the agreement (the NMMP) and any power that it has relevant to special class pooling does not derive from an Act of Parliament, but from the P-9 Agreement, a federal-provincial agreement.

The applicant argued that the order in council approving the federal-provincial agreement should be enough to bring the CMSMC “under” an Act of Parliament. The words “conferred by or under an Act of Parliament” in subsection 2(1) only mean that the source of the jurisdiction must be found in an Act of Parliament. This is made clear by the use of the word “prévus” in the French version.

The applicant submitted that any powers exercised under federal-provincial agreements are powers under an Act of Parliament. Cree Regional Authority v. Canada (Federal Administrator), [1991] 3 F.C. 533 relied upon by applicant, was distinguished as the CMSMC is not a creature of statute and the federal-provincial agreement, although approved by order in council, never became law.

While it may be possible that where the powers are exercised pursuant to a regulation, the CMSMC could be considered a federal body, there is no regulation setting out the role of the CMSMC and how it is to perform it with respect to the permit program.

In summary, while the matters covered by the P-9 Agreement are in essence federal matters, the CMSMC does not exercise powers conferred by or under an Act of Parliament; these powers come directly from the P-9 Agreement which never became law.

In addition, the powers exercised by the CMSMC pursuant to the P-9 Agreement were expressly delegated to the provincial boards which in turn, through the Agreement, mandated the CMSMC. Nothing in the Act or Regulations allows any delegation of the federal powers to the CMSMC. Any mandate given to the CMSMC as far as pricing and pooling are concerned was given by the provincial signatories through the agreement. The question of the ability for the province to give such a mandate to the CMSMC is not before the Court. The CMSMC is not controlled directly or indirectly by a federal body, the CDC acting solely as an agent in carrying out administrative functions in the operation of the program.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Dairy Commission Act, R.S.C., 1985, c. C-15, ss. 2, 8, 9 (as am. by S.C. 1994, c. 26, s. 19; 1995, c. 23, s. 2), 9.1 (as enacted idem, s. 3).

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91, 92.

Dairy Products Marketing Regulations, SOR/94-466.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) “federal board, commission or other tribunal” (as am. by S.C. 1990, c. 8, s. 1), 18, 18.1(3) (as enacted idem, s. 5).

CASES JUDICIALLY CONSIDERED

DISTINGUISHED:

British Columbia (Milk Marketing Board) v. Aquilini, [1997] B.C.J. No. 843 (S.C.) (QL); affd in part (1998), 165 D.L.R. (4th) 626; 9 Admin. L.R. (3d) 1; 112 B.C.A.C. 119; 59 B.C.L.R. (3d) 143 (C.A.); Cree Regional Authority v. Canada (Federal Administrator), [1991] 3 F.C. 533 (1991), 81 D.L.R. (4th) 659; 1 Admin L.R. (2d) 173 (C.A.).

REFERRED TO:

Ontario (Chicken Producers’ Marketing Board) v. Canada (Chicken Marketing Agency), [1993] 1 F.C. 116 (1992), 58 F.T.R. 34 (T.D.).

AUTHORS CITED

Brown, D. J. M. and J. M. Evans. Judicial Review of Administrative Action in Canada, loose-leaf ed. Toronto: Canvasback Pub., 1998.

APPLICATION for judicial review of the Canadian Milk Supply Management Committee’s denial of the applicant’s application for Class 5a) milk permits. Application dismissed on the ground that the Court lacked jurisdiction to review a decision of the CMSMC because the latter is not a “federal board, commission or other tribunal” within the meaning of Federal Court Act, subsection 2(1).

APPEARANCES:

David W. Kent and Robert Wisner for applicant.

Barbara A. McIsaac, Q.C. and Gregorios S. Tzemenakis for respondent.

Guy J. Pratte and Martine Richard for intervener Canadian Milk Supply Management Committee.

David K. Wilson and David R. Elliott for interveners The Prince Edward Island Milk Marketing Board, The New Brunswick Milk Marketing Board, The Fédération des Producteurs de Lait du Québec, The Dairy Farmers of Ontario and The Manitoba Milk Producers.

Gaétan Ouellet for intervener Attorney General of Québec.

SOLICITORS OF RECORD:

McMillan Binch, Toronto, for applicant.

McCarthy Tétrault, Ottawa, for respondent.

Borden Ladner Gervais LLP, Ottawa, for intervener Milk Supply Management Committee.

Osler, Hoskin & Harcourt, Ottawa, for interveners The Prince Edward Island Milk Marketing Board, The New Brunswick Milk Marketing Board, The Fédération des Producteurs de Lait du Québec, The Dairy Farmers of Ontario and The Manitoba Milk Producers.

Bernard, Roy & Associés, Montréal, for intervener Attorney General of Québec.

The following are the reasons for order rendered in English by

[1]        Tremblay-Lamer J.: This is an application by the Canadian Restaurant and Foodservices Association (CRFA) for a judicial review of a decision of the Canadian Milk Supply Management Committee (CMSMC) dated September 30, 1999, rejecting the CRFA’s application for Class 5a) milk permits.

FACTS

1.         The Regime of Milk Supply Management in Canada

[2]        Milk production in Canada is comprised of two categories: fluid milk and industrial milk. Fluid milk is processed into table milk and cream. Industrial milk is processed into dairy products, such as butter, cheese, milk powders, ice cream and yogurt. This application for judicial review is concerned with industrial milk and, in particular, the purchase of cheese.[1]

[3]        Both the federal and provincial governments exercise jurisdiction over the regime of milk supply management in Canada. The constitutional authority of the federal Parliament to regulate the dairy industry is limited to inter provincial and international activities, whereas the constitutional authority of each provincial legislature to regulate the dairy industry is generally confined to activities solely within the province, pursuant to sections 91 and 92 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]].

[4]        Both levels of governments have entered into two agreements, namely the National Milk Marketing Plan (NMMP)[2] and the Comprehensive Agreement on Special Class Pooling (P-9 Agreement),[3] to regulate in a seamless way both the intraprovincial and interprovincial trade in dairy products.

Canadian Dairy Commission

[5]        The Canadian Dairy Commission (CDC) is a federal crown corporation established pursuant to the Canadian Dairy Commission Act (Act).[4] The objects of the CDC are to provide efficient producers of milk and cream with the opportunity of obtaining a fair return for their labour and investment and to provide consumers of dairy products with a continuous and adequate supply of dairy products of high quality.[5]

[6]        The CDC is granted certain powers under section 9 [as am. by S.C. 1994, c. 26, s. 19; 1995, c. 23, s. 2] of the Act in order to carry out its objects. These powers include, amongst others, the establishment and operation of a pool or pools in respect of the marketing of milk, calculating the level of national milk production target for industrial milk and subject to an agreement(s) entered into under section 9.1 [as enacted idem, s. 3] of the Act, the establishment and operation of a program(s) in respect of the quantities and prices of milk or cream, or of any component, class, variety of grade of milk or cream, necessary for the competitive international trade in dairy products. It is important to note that none of these powers are exercised by the CDC.

Provincial Milk Marketing Boards

[7]        Each province has a Milk Marketing Board (provincial board), which is a body constituted under the laws of a province for the purposes of promoting, controlling and regulating the production and marketing of milk and other dairy products. The provincial boards operate within a framework established under both authority from provincial legislation and authority delegated pursuant to the Act as coordinated through the federal/provincial agreements, i.e. the NMMP and the P-9 Agreement.

[8]        The powers vested in the provincial boards under provincial law in respect of milk marketing within the province, are supplemented by federal powers in respect of interprovincial and export marketing as delegated pursuant to the Act. Section 9.1 of the Act permits the CDC to enter into an agreement with the provinces to provide for the co-ordinated marketing of dairy products, including milk. The CDC has authority to delegate to a provincial board many of its powers, including the granting of authority for the performance thereof. Section 9.1 states:

9.1 The Commission may, with the approval of the Governor in Council, enter into an agreement with a province or a Board, providing for the coordinated marketing of dairy products, including the granting of authority for the performance

[9]        The provincial boards that have intervened in this application for judicial review, the Prince Edward Island Milk Marketing Board, the New Brunswick Milk Marketing Board, the Fédération des producteurs de lait du Québec, the Dairy Farmers of Ontario, and the Manitoba Milk Producers, perform similar functions and exercise similar powers in their respective provinces, including the federal powers delegated to such provincial boards by the CDC.[6]

Canadian Milk Supply Management Committee

[10]      The CMSMC is a committee created by contract pursuant to paragraph H.1 of the NMMP. The CMSMC is responsible for the supervision and policy determinations required of it by the provisions of the NMMP and the Memorandum of Agreement.[7] The annex of the order in council makes it clear that the CMSMC is responsible to oversee and implement the agreement.

[11]      The membership of the CMSMC consists of representatives of the signatory provincial boards and their respective provincial governments. Each province which is a signatory receives one vote. In addition, the Dairy Farmers of Canada, the National Dairy Council of Canada and the Consumers Association of Canada each have one representative with full participation rights on the CMSMC, but with no right to cast a vote. The CDC performs various administrative and secretarial functions on behalf of the CMSMC, but the CDC representative does not cast any vote dealing with matters covered by the P-9 Agreement.[8]

National Milk Marketing Plan

[12]      Established in 1984, the NMMP is a federal-provincial agreement designed to co-ordinate the marketing of milk and cream products relating to Canadian domestic requirements and any additional industrial milk requirements in Canada. The preamble to the NMMP reflects the policy determination of the federal and the provincial signatories that “a supply management program for industrial milk products be continued in the long-term best interest of consumers, producers and processors”. To this effect, the signatories recognized that it was desirable for the NMMP to be ratified by the appropriate agencies and/or provincial boards in all provinces and in Canada, and that the participation of the federal and provincial authorities was required to assure the adoption and implementation of the NMMP.[9]

[13]      The objectives of the NMMP are to balance the supply of industrial milk with estimated Canadian requirements and to determine provincial shares of industrial milk.[10]

[14]      The signatories to the NMMP are, inter alia, the provincial boards constituted under the laws of a province for the purpose of regulating the production for marketing, or the marketing in intraprovincial trade, of any dairy product (except Newfoundland).[11]

[15]      The NMMP also includes a Memorandum of Understanding and an addendum which set out the framework for operation of the NMMP. It is also modified by various other agreements which allow a pooling of revenues derived from the sale of milk in various classes. Of significance in this case is the P-9 Agreement because it creates special classes of milk for use to service domestic and external markets and pools revenues from the sales of industrial milk in these special classes.

Comprehensive Agreement on Special Class Pooling

[16]      The P-9 Agreement is an agreement among the signatories of the NMMP in respect of the creation of special classes of milk for competitive markets and the pooling of revenues from sales of industrial milk in these special classes of milk used to service domestic and external markets (Alberta and British Columbia have not signed the agreement but both operate within its parameters).

[17]      The P-9 Agreement also includes a Memorandum of Understanding (Schedule I) and an addendum (Schedule II). The purpose of the Memorandum of Understanding is to establish an agreement among the signatories respecting the manner in which they exercise their authorities and responsibilities and the manner in which they conduct their mutual affairs in relation to the implementation and objectives of the Memorandum of Understanding on Special Class Pooling. Of particular significance, section 5 of the Memorandum of Understanding details the marketing activities that shall form part of the special classes of milk.[12]

[18]      The purpose of the addendum is to establish and operate a program, the Special Milk Class Permit Program (SMCPP), necessary for the competitive international trade in dairy products. The addendum provides details for the operation of a national pooling of returns from special classes and the co-ordinated marketing of dairy products, including the respective obligations and responsibilities of the provincial boards and the CDC. Section 2 of the addendum provides for the granting of the proper authority to the provincial boards to enable them to carry out the pricing of milk marketed in interprovincial trade and the pooling of returns.[13]

[19]      Section 4 of the addendum (in conjunction with section 9.1 of the Act) provides for the delegation of the federal powers to the provincial boards, in so far as is necessary to enable the provincial boards to implement the SMCPP. Section 4 of the addendum also makes it clear that each provincial board shall exercise the authorities granted to it in the same manner as the provincial board exercises its similar provincial powers. Finally, section 6 of the addendum makes it clear that any changes to the system must receive approbation of the CMSMC.[14]

Special Milk Class Permits Program

[20]      The SMCPP is a program to maintain the competitive trade, both domestic and international, in dairy products, to establish the pricing of milk marketed in interprovincial trade, and to pool returns. In addition, the program provides for a permit system whereby processors can access milk, at appropriate price levels in the provinces where they are carrying on business, for use in the special classes.

[21]      The SMCPP provides for five categories of milk, whereby milk prices vary according to the end use of the milk, including Special Milk Class 5a) which consisted of cheese ingredients for further processing for the domestic and export markets.

Class 5a) Milk Permits

[22]      The SMCPP contemplates that access to the special milk classes will be through a permit system administered by the CDC under the policy direction and supervision of the CMSMC.

2.         The CRFA Proposal to the CMSMC

[23]      The CRFA is the largest hospitality association in Canada. A significant number of its members consist of manufacturers of fresh pizza who derive most of their revenues from home deliveries.

[24]      The CDC has previously granted Class 5 permits to, amongst others, manufacturers of fresh pizza (not members of the CRFA).[15] The CRFA, on behalf of its members, decided to seek access to Class 5a) milk permits for manufacturers of fresh pizza.

[25]      Prior to making a formal request, the CRFA was informed by the CDC that there were two options available to the CRFA and its members to obtain Class 5a) milk permits.[16]

[26]      The first option discussed was an administrative option whereby the individual members of the CRFA wishing to obtain a permit could make the appropriate application under the Information Guide for Further Processors and Application Form.[17]

[27]      Such applications are reviewed by a CDC officer who determines if the applicant meets the eligibility requirements of the SMCPP. The CRFA was further advised that if the application was denied, the appeal process would then be triggered. The application would go to the CMSMC and would be considered on the basis of that specific application.[18]

[28]      It was made clear that any such application would necessarily have to be denied by the CDC because fresh products (other than those made with butter) are not eligible under the SMCPP.[19]

[29]      The second option was for the CRFA, in its capacity as a trade association, to make a proposal on behalf of its members for a change in policy with respect to the SMCPP so as to include fresh pizza as an eligible product.[20]

[30]      Including fresh products (other than goods using butter) in the Class 5 program would constitute a major policy change with respect to the scope of the SMCPP. Such decisions can only be made by the CMSMC as set out in paragraph H.1 of the plan and reinforced by Clause 3 of Schedule II of the P-9 Agreement.[21]

[31]      On August 31, 1998, the CRFA formally advised the CDC that it would be pursuing, on behalf of its members, access to Class 5a) milk permits for manufacturers of fresh pizza.[22]

[32]      On May 28, 1999, the Ingredients Technical Committee met to consider the CRFA proposal. The Committee agreed by majority to the following:

It is recommended that the CRFA’s request for Special Class pricing be declined. The CRFA’s Application has failed to meet the burden upon it to prove that they are eligible for this program.[23]

[33]      An excerpt of the Report of the Ingredients Technical Committee dated June 29, 1999 was provided to the Ingredients Committee on that date.[24]

[34]      The CDC then made a request for comments from Ingredients Committee members as to the recommendation of the Ingredients Technical Committee.[25]

[35]      The Ingredients Committee met on June 29, 1999, and recommended by majority vote that the CRFA proposal to expand the product eligibility criteria for the SMCPP be declined.[26]

[36]      On September 29 and 30, 1999, the CMSMC met and decided to reject the CRFA proposal.[27]

[37]      On November 3, 1999, the CRFA applied before this Court for judicial review of the CMSMC’s decision.

ISSUE

Is the CMSMC a federal board, commission or other tribunal within the meaning of the Federal Court Act [R.S.C., 1985, c. F-7, s. 2(1) (as am. by S.C. 1990, c. 8, s. 1)]?

[38]      For the following reasons the Court is of the view that the CMSMC is not a federal board and consequently the issues raised by the applicant about the “reviewability” of the decision and any breach of procedural fairness that could have been owed to the applicant will not be examined by the Court.

POSITION OF THE CRFA

[39]      The applicant argues that this Court has jurisdiction to review the decision of the CMSMC. The CRFA relies on the decision of the B.C. Supreme Court in British Columbia (Milk Marketing Board) v. Aquilini (affirmed in part by the B.C. Court of Appeal)[28] for the proposition that the CMSMC acts as a federal body for the purposes of the administration of the SMCPP. The B.C. Supreme Court in that decision analysed, amongst others, the delegation of powers under the Act and the Dairy Products Marketing Regulations[29] to the CMSMC. The CRFA argues that, although Aquilini dealt with the powers of the CMSMC in determining the federal quota under the national plan, the CMSMC remains a federal body for the purposes of the administration of the SMCPP. The pith and substance of the program is the regulation of inter-provincial and international trade in dairy ingredients for further processing.

[40]      The CRFA also relies on two decisions of this Court, Canadian Chicken Marketing Agency[30] and Cree Regional Authority,[31] for the proposition that powers exercised by a federal body under a federal-provincial agreement are powers under an Act of Parliament.

[41]      The CRFA underlines that the exception in subsection 2(1) of the Federal Court Act is only intended to allow a provincial body, whose decisions are otherwise reviewed in the superior courts of that province, to remain under the supervision of those courts even though it may exercise some delegated federal powers. The CRFA argues that the CMSMC is a body, distinct from the provincial boards, that is constituted or established by or under the national plan and not the law of any province.

POSITION OF THE CDC, THE CMSMC AND INTERVENERS

[42]      Counsel for the CMSMC, the CDC and the intervening provincial boards take the position that this Court is a statutory court without inherent jurisdiction and, as such, has no jurisdiction except that assigned by statute. Therefore, by the express words of subsection 2(1) of the Federal Court Act, the body alleged to be subject to the jurisdiction of the Court must have been granted powers by Parliament, but even if it has, the mere delegation of a federal power to a body constituted or established by the law of a province will not suffice to afford jurisdiction to the Court.

[43]      They argue that the CMSMC is not a creature of federal statute and has no distinct legal personality. The CMSMC is simply a committee or forum, established by contract, in which the provincial boards, with the full authority derived from their respective provincial statutes as supplemented by federally delegated authority, exercise their powers on a consensual basis.

[44]      The delegation of federal power is made directly to the provincial boards which have no authority to subdelegate their powers to the CMSMC. The CMSMC has been delegated no federal pricing or pooling powers. Therefore, this Court has no jurisdiction over the CMSMC.

[45]      The Attorney General of Quebec argues that this Court has no jurisdiction over the decision taken by the voting members of the CMSMC because they simply exercise their rights under a private contract.

ANALYSIS

[46]      As noted at the outset the only issue to be determined is whether or not this Court has jurisdiction to review the exercise of powers by the CMSMC. Pursuant to subsection 18.1(3) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, on application for judicial review, this Court may:

18.1 …

(3) …

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

[47]      Thus, this Court will have jurisdiction if the CMSMC is a “federal board, commission or other tribunal” as defined by subsection 2(1) of the Federal Court Act:

2. (1) …

“federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867.

[48]      It is irrelevant for the purpose of determining the jurisdiction of this Court, if the CMSMC exercised policy-making functions or other functions, as stated by the authors Brown and Evans:

In the result, the source of a tribunal’s authority, and not the nature of either the power exercised or the body exercising it, is the primary determinant of whether it falls in the definition. The test is simply whether the body is empowered by or under federal legislation or by an order made pursuant to a prerogative power of the federal Crown.[32]

[49]      The words in the definition of “federal board, commission or other tribunal” suggest certain essential components.

[50]      The body will be within the prima facie jurisdiction of the Federal Court by virtue of it having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament. Further, it is nonetheless excluded from the jurisdiction of the Federal Court by being a body constituted or established by or under a law of a province.

[51]      The first step in the analysis is to identify the source of the powers being exercised or purporting to be exercised. In the present instance, the powers invoked related to the pricing power in the creation of special classes of milk for use to service domestic and external markets. These powers are the essence of the P-9 Agreement.

[52]      As explained above, the CMSMC is a committee established pursuant to paragraph H.1 of the NMMP, exercising powers conferred by section 1 of the Memorandum of Understanding (Schedule I) of the P-9 Agreement and section 6 of the addendum (Schedule II) of the P-9 Agreement. Its role is essentially to supervise and oversee the implementation of the P-9 Agreement.

[53]      It is clear that the CMSMC is not created by any federal statute. It is created by the agreement and any power relevant to special class pooling it has does not derive from an Act of Parliament but derives from the P-9 Agreement itself.

[54]      In fact, counsel for the applicant conceded that the powers exercised by the CMSMC are not conferred by an Act of Parliament but he argued that they are conferred “under” an Act of Parliament. The existence of a government instrument emanating from the federal government (the order in council approving the federal-provincial agreement) where the CMSMC is contemplated as the supervisory actor should be enough to bring it under an Act of Parliament.

[55]      I disagree. I do not accept the broad distinction drawn by the applicant between the words “by” and “under”. In my opinion, the words “conferred by or under an Act of Parliament” in subsection 2(1) of the Federal Court Act only mean that the source of the jurisdiction must be found in an Act of Parliament. The French version makes it clear by the use of the word “prévus” in the section, “compétence ou des pouvoirs prévus par une loi fédérale”.

[56]      The applicant submits that in the decision Cree Regional Authority,[33] the Court concluded that any powers exercised under federal-provincial agreements are powers under an Act of Parliament. I do not accept that it is the case. In that decision, the issue was whether the federal administrator exercised jurisdiction or powers conferred by or under an Act of Parliament pursuant to sections 2 and 18 of the Federal Court Act.

[57]      The Federal Court of Appeal found that the appointment of the federal administrator arose exclusively from a federal enactment. The mechanism for the appointment of a federal administrator was provided by the agreement which became law. Once appointed, the federal administrator was a “federal board” in that his powers were conferred on him by a federal Act rather than the Agreement itself.

[58]      In the case at bar, the relationship between the Act, the NMMP and the P-9 Agreement under which the CMSMC is mandated is obviously very different from that in the Cree Regional Authority. It does not possess any of the linkages outlined above. The CMSMC is not a creature of statute and the federal-provincial agreement although approved by order in council, never became law.

[59]      Further, I accept that it may be possible that where the powers are exercised pursuant to a regulation, the CMSMC could be considered a federal body, as was the case in the decision of the B.C. Supreme Court in Aquilini[34] where the Court analysed, amongst others, the delegation of powers under the Act and the Dairy Products Marketing Regulations to the CMSMC with respect to the administration of the federal milk quota. The Court found that in discharging its duties under the regulation the CMSMC was acting as a federal body solely with matters relating to federal quotas. However, in the present case, there is no similar regulation setting out the role of the CMSMC and how it is to perform it with respect to the permit program.

[60]      In summary, while I agree that the matters covered by the P-9 Agreement are in essence federal matters the difficulty lies in the fact that the CMSMC does not exercise powers conferred by or under an Act of Parliament; these powers come directly from the P-9 Agreement which never became law.

[61]      In addition, the powers exercised by the CMSMC pursuant to the P-9 Agreement were expressly delegated to the provincial boards which in turn, through the Agreement, mandated the CMSMC.

[62]      As outlined above, section 9.1 of the Act authorizes a delegation to the province or provincial boards through an agreement.

[63]      The P-9 Agreement records in its preamble that the provinces (through their respective provincial board) have agreed to create special classes of milk that will be sold at preferential pricing:

WHEREAS the authorities from the provinces that are signatories have decided to create special classes of milk priced at levels that will be competitive in both domestic and external markets;[35]

[64]      Schedule II to the P-9 Agreement is an addendum to the Memorandum of Understanding (Schedule I) that sets out the delegation and acceptance of authorities for the co-ordinated marketing of dairy products.

[65]      Thus, Schedule II provides for the granting of the proper authority to the provincial boards to enable them to carry out the pricing of milk marketed in interprovincial trade and the pooling of returns, and establishes the CDC in connection with the P-9 Agreement as agent “in carrying out administrative functions in the operation of the program”.[36]

[66]      With respect to the legal authority necessary to empower the provincial boards to establish and implement the special class pooling program, paragraph 4 of Schedule II to the P-9 Agreement provides:

Subject to the approval of the Governor in Council, the Commission authorizes the [Provincial] Boards, insofar as is necessary to enable the Boards to fully carry-out the program as set out in the MOU and its Annexes, to exercise all powers of the Commission set out in paragraphs 9(1)(f) to (i) of the Canadian Dairy Commission Act. The Boards shall exercise the authorities granted to them in the same manner as the Boards exercise their similar provincial powers.[37]

[67]      As opposed to the Aquilini[38] decision, there is nothing in the Act or Regulations that allows any delegation of the federal powers to the CMSMC. Any mandate given to the CMSMC as far as pricing and pooling are concerned, was given by the provincial signatories through the agreement.

[68]      The respondent and the interveners take the position that the CMSMC is a “forum” for the provincial boards and not an “acting” or a deciding entity. I disagree with this proposition. The P-9 Agreement clearly identifies the CMSMC as the supervisory body. The question of the ability for the province to give such a mandate to the CMSMC is not before the Court. But what is certain is that the CMSMC is not controlled directly or indirectly by a federal body, the CDC acting solely as an agent in carrying out administrative functions in the operation of the program.

[69]      For all these reasons, I find that this Court does not have jurisdiction to review a decision of the CMSMC because it is not a “federal board, commission or other tribunal” as provided by subsection 2(1) of the Federal Court Act.

[70]      The application for judicial review is dismissed.

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