A‑74‑06
2007 FCA 49
Leth Farms Ltd., Wheatland Select Organic Turkey Ltd., and Arnold Leth (Appellants)
v.
The Attorney General of Canada and Canadian Turkey Marketing Agency (Respondents)
Indexed as: Leth Farms Ltd. v. Canada (Attorney General) (F.C.A.)
Federal Court of Appeal, Desjardins, Décary and Ryer JJ.A.—Vancouver, December 14, 2006; Ottawa, January 31, 2007.
Agriculture — Appeal of Federal Court decision dismissing application for judicial review of National Farm Products Council’s (Council) refusal to hear appellant’s complaint regarding calculation of export marketings for 2003/2004 control period as remedy, relief sought beyond Council’s jurisdiction — Appellants, organic turkey producers in southern Alberta, exporting most of products to United States — Alberta Turkey Producers (ATP) granted appellants turkey quota for 2003/2004 control period — However, Council approved Canadian Turkey Marketing Agency’s (CTMA) Quota Regulations amendment whereby appellants not granted export quotas for export marketings in 2003/2004 control period — ATP subsequently asked CTMA to reduce overmarketing fine that would be levied against Alberta in anticipation of exceeding quota allocations — CTMA thereafter forgave portion of overmarketing penalties assessed — Appellants submitted subject complaint to Council pursuant to Farm Products Agencies Act (FPAA), s. 7(1)(f) alleging error in calculation of export marketings — Council misunderstanding nature of complaint — Not complying with own guidelines governing complaints — Should be reluctant to decline to hear complaint based on lack of authority — Federal Court erring when concluding Council’s primary duty relating to establishment of agencies under FPAA, s. 6(1)(a), that Council’s duties in s. 6(1)(b), (c) limited to supervisor, facilitator — Federal Court also misguided in approach when focussing on words “within its powers” in FPAA, s. 7(1)(f) since overlooking essence of provision that, in relation to complaints, Council should “take such action . . . as it deems appropriate” — Appeal allowed.
Construction of Statutes — Appeal of Federal Court decision dismissing application for judicial review of National Farm Products Council’s (Council) refusal to hear complaint regarding calculation of export marketings for 2003/2004 control period on basis remedy, relief sought beyond its jurisdiction — In interpreting Farm Products Agencies Act (FPAA), ss. 6(1)(b), 7(1)(f), 21, to determine scope of Council’s jurisdiction, interdependent nature of provisions considered — Given significant latitude granted Canadian Turkey Marketing Agency (CTMA) in conduct of operations, Council should be able to take broad range of actions to review CTMA’s operations especially when complaint arising in relation thereto — Appeal allowed.
This was an appeal of a Federal Court decision dismissing an application for judicial review of the National Farm Products Council’s (Council) refusal to hear the appellant’s complaint regarding the calculation of their export marketings for the 2003/2004 control period, which resulted in a financial penalty, on the basis that the remedy or relief requested was beyond its jurisdiction. The appellants produce organic turkey products in southern Alberta, almost all of which are exported to the United States. The Canadian Turkey Marketing Agency (CTMA) established a quota system whereby turkey producers are assigned quotas that entitle them to market specified amounts of turkey in interprovincial or export trade for a 12‑month period beginning on May 1. The allocation and administration of such quotas is delegated to provincial marketing boards but maximums are specified. The Alberta Turkey Producers (ATP) granted the appellants a turkey quota of 433,534 kg in live weight for the 2003/2004 control period. In November 2003, the CTMA adopted a Quota Regulations amendment whereby no export quota was granted in respect of the appellants’ export marketings and that decision was approved by the Council. After these Quota Regulations became effective, the ATP asked the CTMA to reduce its overmarketing fine that would be levied against Alberta since it would exceed its quota allocations, largely due to the appellants’ export marketings. The CTMA adopted a resolution forgiving a portion of overmarketing penalties assessed for Alberta for the 2003/2004 control period. The ATP notified the appellants of this resolution and of the fine that was assessed against them. The appellants sent the Council a complaint pursuant to paragraph 7(1)(f) of the Farm Products Agencies Act (FPAA) alleging that the CTMA had erred in the calculation of their export production marketings. The Council declined to take further action on the grounds that the relief requested was outside its jurisdiction.
On judicial review, the Federal Court determined that the Council’s duties contained in FPAA, section 6 were relatively narrow and that its powers under section 7 were narrowly defined. It concluded that the “limited class rule” limited the scope of paragraph 7(1)(l) and that the Council’s powers under that paragraph did not include “directory authority”. The issue was whether the Council has the jurisdiction to hear and dispose of the appellants’ complaint.
Held, the appeal should be allowed.
The Federal Court’s conclusion that the issue in the present case was whether the provisions of paragraph 7(1)(l) provided “directory authority” to the Council was an overrefinement of the problem that resulted in an error of law.
The Council’s reasons indicate it did not correctly understand the nature of the complaint and believed that it was being asked to do more than simply review an alleged error in the determination of the amount of export marketing that the CTMA stipulated in its resolution. As well, Part VI, paragraph 3 of the Council’s Guidelines governing complaints states that the Council may dismiss a complaint regarding a matter that is beyond its jurisdiction “after discussing the circumstances with the complainant.” However, in this case, the appellants were not afforded the opportunity to have such a discussion, notwithstanding these clear provisions. The Council should be reluctant to summarily decline to hear a complaint based on a lack of authority to provide the remedy that has been requested. Given the Council’s error regarding the nature of the complaint and its failure to follow the Complaint Guidelines, its decision was set aside.
The Federal Court correctly determined that the Council’s powers should be considered in the context of the duties imposed in section 6. However, its conclusions that the Council’s primary duty related to the establishment of agencies under paragraph 6(1)(a) and that the duties contained in paragraphs 6(1)(b) and (c) were limited to that of a supervisor and a facilitator were incorrect. Nothing on the face of section 6 leads to the conclusion that the duty in paragraph 6(1)(b) should be considered to be limited in its scope to supervisory or facilitative functions. Moreover, in construing the scope of paragraph 7(1)(f), the Federal Court focussed on the words “within its powers” which led to the conclusion that the Council’s powers must be limited to only those powers contained in subsection 7(1). The Court then focussed on paragraph 7(1)(l) but this approach was misguided because the focus on the words “within its powers” in paragraph 7(1)(f) drew attention away from the provision’s essence, namely, that the Council should “take such action . . . as it deems appropriate” in relation to any complaints. Also, the absence in the French version of words equivalent to “within its powers” in paragraph 7(1)(f) of the FPAA shows that no special emphasis should be given thereto in determining the proper interpretation of the scope of the Council’s powers.
The interdependent nature of paragraphs 6(1)(b), 7(1)(f) and section 21 of the FPAA must be considered when interpreting them. The words “take such action . . . as it deems appropriate” in paragraph 7(1)(f) should be construed in light of the duty that is imposed on the Council under paragraph 6(1)(b) to “review the operations of agencies with a view to ensuring that they carry out their operations in accordance with their objects.” The significant latitude that is extended to the CTMA in relation to the conduct of its operations is consistent with a broader range of actions that the Council should be able to take in fulfilling its mandate to conduct a review of the CTMA’s operations especially when a complaint has arisen in relation thereto. Therefore, the Council should direct the CTMA to correct a demonstrable computational error made in the course of its operations.
statutes and regulations judicially
considered
Alberta Turkey Order, C.R.C., c. 134.
Alberta Turkey Producers Federal Authorization Order, Alta. Reg. 154/2000.
Canadian Turkey Marketing Agency Proclamation, C.R.C., c. 647.
Canadian Turkey Marketing Agency Delegation of Quota Order, P.C. 1990‑248.
Canadian Turkey Marketing Quota Regulations, 1990, SOR/90‑231, Schedule (as am. by SOR/2004‑72, s. 1).
Farm Products Agencies Act, R.S.C., 1985, c. F‑4, ss. 1 (as am. by S.C. 1993, c. 3, s. 2), 3 (as am. idem, s. 5), 6 (as am. idem, s. 6), 7 (as am. idem, s. 7), 21, 22.
cases judicially considered
applied:
Saskatchewan (Minister of Agriculture, Food and Rural Revitalizaton) v. Canada (Attorney General) (2006), 289 F.T.R. 237; 2006 FC 345.
authors cited
National Farm Products Council. Guidelines for the Disposition of Complaints to the National Farm Products Council made Pursuant to Paragraph 7(1)(f) of the Farm Products Agencies Act, amended October 2006, online: <http://nfpc‑cnpa.gc.ca/english/ publications/guidelinesforcomplaints.html>.
APPEAL from a Federal Court decision ([2006] 3 F.C.R. 633; (2006), 286 F.T.R. 142; 2006 FC 68) dismissing the application for judicial review of the National Farm Products Council’s dismissal of the appellants’ complaint regarding the calculation of their export marketings for the 2003/2004 control period on the basis that the type of remedy or relief the appellants requested was beyond its jurisdiction. Appeal allowed.
appearances:
Christopher Harvey, Q.C. for appellants.
John L. O’Kane for respondent Canadian Turkey Marketing Agency.
M. Sean Gaudet for respondent Attorney General of Canada.
solicitors of record:
MacKenzie Fujisawa LLP, Vancouver, for appellants
.Lawrence, Lawrence, Stevenson, LLP, Brampton, Ontario, for respondent Canadian Turkey Marketing Agency.
Deputy Attorney General of Canada for respondent Attorney General of Canada.
The following are the reasons for judgment rendered in English by
Ryer J.A.:
INTRODUCTION
[1]This appeal deals with the jurisdiction of the National Farm Products Council (the Council), an administrative body that was established pursuant to section 3 [as am. by S.C. 1993, c. 3, s. 5] of the Farm Products Agencies Act, R.S.C., 1985, c. F‑4 [s. 1 (as am. idem, s. 2)], (the FPAA), inter alia, to exercise oversight over the Canadian Turkey Marketing Agency (the CTMA), a marketing board that was established pursuant to Part II of the FPAA.
[2]The appellants, who collectively own and operate a turkey production, processing and sales business in southern Alberta, made a complaint to the Council, pursuant to paragraph 7(1)(f) of the FPAA, that an action of the CTMA contained an error in the calculation of their export marketings for a particular period and, as a consequence of such error, they became subject to a financial penalty. The appellants asked the Council to intervene to correct the alleged error and, in response to requests from the Council and its representatives, expressed their desired remedy in terms of an “[o]rder that its export and domestic marketings be correctly calculated in accordance with . . . actual production and marketing experience.”
[3]The Council declined to hear the complaint on the basis that the type of remedy or relief that the appellants requested was beyond its jurisdiction. The appellants made an application to the Federal Court for judicial review of the decision of the Council. On January 24, 2006, Campbell J. dismissed that application, (decision reported at [2006] 3 F.C.R. 633).
STATUTORY FRAMEWORK
[4]The production and marketing of turkey in Canada is heavily regulated as a result of interlocking federal and provincial legislation, which stems from a federal provincial agreement that was entered into in 1973. An amendment to this agreement (the promotion agree-ment), which was made in 1984, introduced monetary penalties that would become payable to the CTMA by a provincial agency in the event that actual provincial production exceeded the quota that was allocated to that province.
[5]The CTMA is mandated, pursuant to the Canadian Turkey Marketing Agency Proclamation, C.R.C., c. 647, to establish a quota system whereby turkey producers are assigned quotas that entitle them to market specified amounts of turkey in interprovincial or export trade. Pursuant to the Canadian Turkey Marketing Agency Delegation of Quota Order, P.C. 1990-248, the allocation and administration of quotas for interprovincial and export trade are delegated to provincial marketing boards. Pursuant to the Alberta Turkey Order, C.R.C., c. 134, Alberta Turkey Producers (ATP) are delegated this authority in relation to the province of Alberta.
[6]The quota system was created pursuant to the Canadian Turkey Marketing Quota Regulations, 1990, SOR/90‑231 (the Quota Regulations) The Quota Regulations create a federal quota with respect to marketing turkey in interprovincial and export trade that applies for a 12-month period, which begins on May 1 in each year and is defined as the control period (the control period). The Quota Regulations also contain a schedule that specifies the maximum amount of turkey that may be produced in a province and marketed for interprovincial or export trade for each control period. Typically, the schedule to the Quota Regulations is updated, at least annually, to establish a current global quota amount for the provinces, having regard to changes in the size of the market for turkeys, as perceived by the CTMA.
[7]Section 9.b of Schedule C to the Federal-Provincial Agreement contemplated the establishment of a separate agreement between the CTMA and the provinces for quota sharing with respect to new export market opportunities developed by a province. To that end, the CTMA developed an export policy in the mid-1980’s (the export policy), which has been amended from time to time. Effective December 1, 2003, the CTMA adopted a new export policy (the 2003 Export Policy), which provided that conditional allocations of export quotas would be granted by the CTMA to the applicable provincial body, for reallocation to individual producers in that province, subject to the fulfillment of certain terms and conditions.
[8]Pursuant to provincial legislation, in particular the Alberta Turkey Producers Federal Authorization Order, Alta. Reg. 154/2000, ATP is authorized to perform all duties and exercise all powers that have been delegated to it under the federal legislation referred to above. As a result, ATP allocates the quota, which has been assigned to Alberta under the Quota Regulations, to Alberta turkey producers for marketing in Alberta and in interprovincial and export trade.
[9]The duties and powers of the Council under the FPAA that are relevant to this appeal are as follows [ss. 6(1)(b) (as am. by S.C. 1993, c. 3, s. 6), (c) (as am. idem), 7(1)(d) (as am. idem, s. 7), (l) (as am. idem)]:
PART I
NATIONAL FARM PRODUCTS COUNCIL:
. . .
Duties and Powers
6. (1) The duties of the Council are
(a) to advise the Minister on all matters relating to the establishment and operation of agencies under this Act with a view to maintaining and promoting an efficient and competitive agriculture industry
(b) to review the operations of agencies with a view to ensuring that they carry on their operations in accordance with their objects set out in section 21 or 41, as the case may be; and
(c) to work with agencies in promoting more effective marketing of farm products in the interprovincial and export trade and, in the case of a promotion‑research agency, in promoting such marketing in import trade and in connection with research and promotion activities relating to farm products.
. . .
7. (1) in order to fulfill its duties, the Council
. . .
(c) shall review the operations of agencies and report thereon annually to the Minister or, in any case where in its opinion the circumstances warrant, on a more frequent basis.
(d) shall review all orders and regulations that are proposed to be made by agencies and that are of a class of orders or regulations to which the Council, by order, provides that this paragraph is applicable and, where it is satisfied that the orders and regulations are necessary for the implementation of the marketing plan or promotion and research plan that the agency proposing to make the orders or regulations is authorized to implement, the Council shall approve the orders and regulations;
. . .
(f) shall make such inquiries and take such action within its powers as it deems appropriate in relation to any complaints received by it from any person who is directly affected by the operations of an agency and that relate to the operations of the agency;
. . .
(l) may do all such other things as are incidental or conductive to the fulfillment of its duties.
. . .
PART II
FARM PRODUCTS MARKETING AGENCIES
. . .
Objects and Powers
21. The objects of an agency are
(a) to promote a strong, efficient and competitive production and marketing industry for the regulated product or products in relation to which it may exercise its powers; and
(b) to have due regard to the interests of producers and consumers of the regulated product or products. [Emphasis added.]
[10]The Council has issued guidelines [Guidelines for the Disposition of Complaints to the National Farm Products Council made Pursuant to Paragraph 7(1)(F) of the Farm Products Agencies Act, amended October 2006] (the Complaint Guidelines) that govern complaints that are made to it, pursuant to paragraph 7(1)(f) of the FPAA, in relation to actual or proposed orders or regulations, or other decisions, of an agency that relate to its operations. The relevant portions of the Complaint Guidelines are as follows:
IV. GENERAL GUIDELINES
1. These guidelines are to be construed liberally to ensure the fairest, least expensive and most expeditious way of resolving complaints. To ensure the flexibility required, or to avoid any unfairness, the Council or the Committee may dispense with, or vary any of these Guidelines.
. . .
V. HOW TO FILE A COMPLAINT
. . .
3. (1) Subject to subsection (2), a complaint should be filed within 15 working days from the time the decision of the agency, came, or might reasonably have come to the attention of the person filing the complaint.
. . .
VI. WHAT HAPPENS NEXT AFTER A COMPLAINT IS FILED
. . .
3. If Council considers that the complainant is not directly affected by the Agency order or regulation, proposed order or regulation, or other decision; that the matter is beyond the jurisdiction of Council; the complainant is late in filing, or the complaint is trivial, frivolous, vexatious or otherwise not substantive; Council may, after discussing the circumstances with the complainant, dismiss the complaint.
. . .
VIII. WHAT HAPPENS AFTER THE ORAL HEARING
. . .
2. A report of Panel’s findings and recommendations is also published and distributed to all parties.
FACTS
[11]The appellants are prominent southern Alberta turkey producers and processors who have held a production and marketing quota for more than 10 years. Since 2001, the appellants have produced “organic” turkey products, substantially all of which have been exported to the United States.
[12]The ATP granted the appellants a quota of 433, 534 kg, in live weight, of turkey for the 2003-2004 control period.
[13]On June 12, 2003, the ATP applied to the CTMA for an export quota, pursuant to section 1.2 of the 2003 Export Policy, in respect of the export marketings of the appellants for the 2003-2004 control period.
[14]During the period from June 12, 2003 to January 12, 2004, correspondence and information flowed between the ATP and the CTMA in relation to the requirements of section 1.2 of the 2003 Export Policy. In addition, the appellants unsuccessfully attempted to communicate directly with the CTMA in relation to such requirements. All such efforts failed to convince the CTMA that the appellants met the requirements of section 1.2 of the 2003 Export Policy and on January 12, 2004, the CTMA closed its file with respect to the appellants, but suggested to the ATP that a reconsideration of the matter would be possible if the appellants were to submit all of the information that the CTMA felt that it required but had not received.
[15]In fact, the decision not to grant any export quota to the appellants for the 2003-2004 control period was made by the CTMA earlier than January 12, 2004, through its adoption of a proposed Quota Regulations amendment in November of 2003, in which no export quota was granted in respect of the appellants’ export marketings. The Council approved the proposed Quota Regulations amendment in March of 2004 and on April 2, 2004, such amendment became effective [SOR/2004-72, s. 1].
[16]The appellants did not challenge, by way of judicial review, either the adoption of the proposed Quota Regulations amendment by the CTMA, in November of 2003, or its approval by the Council, in March of 2004.
[17]Subsequent to the 2003‑2004 Quota Regulations becoming effective, communications took place between the CTMA and ATP with respect to the absence of any conditional allocations of export quota in relation to the export marketings of the appellants in the 2003‑2004 control period. In correspondence to the CTMA, dated April 6, 2004, the ATP stated:
The existing Policy, without the kg for kg option, is far too punitive with respect to 59% of live weight. Our Section 1.2 exporter will be placed in an extreme overmarketing situation if the 59% rule is applied. Basically we are asking for the ability to achieve a less punitive fall back position if the thresholds are not reached.
[18]In correspondence to the CTMA, dated June 8, 2004, ATP advised the CTMA that Alberta would likely have exceeded its quota allocations, largely due to the marketings of the appellants, and noted that if the CTMA were to grant the request made to it by ATP in the April 6, 2004 correspondence, the overmarketing fine that would be levied against Alberta would be greatly reduced. ATP requested that exporters who are subject to section 1.2 of the 2003 Export Policy should be given “full recognition for product that leaves the country.” It is noted that the appellants did not participate in or approve the requests that were made by ATP in this exchange of correspondence.
[19]The Board of Directors of the CTMA met on June 22 and 23, 2004. In materials that were presented to the meeting, the following statements appeared:
Although the office can verify export activity of 368,484 kg, the information required to assess these exports, relative to section 1.2 of the Policy, has not been received.
The CTMA Directors have the discretion to grant the relief sought by the ATP for the forgiveness of overmarketing penalties as set out in their letter of June 7, 2004.
[20]At the meeting, the following resolution (the June resolution) was passed by the CTMA:
It was MOVED by B. Cram and SECONDED by P. Ouellette to forgive overmarketing penalties for Alberta in an amount not to exceed 368,474 kg for the 2003/2004 control period, that is directly attributed to production marketed by Leth Farms in export trade subject to Alberta Turkey Producers confirming the necessary measures that will be enacted to monitor compliance with the Export Policy for marketings by Leth Farms, effective immediately.
[21]On July 7, 2004, the June resolution was communicated by the CTMA to ATP as follows:
Please find attached the motion from the 196th CTMA meeting providing for the forgiveness of overmarketings in Alberta for the 2003/04 control period in the amount of 368,474 kg (eviscerated weight).
These kilograms reflect the kilograms exported as per the documents provided by the ATP from submissions of Leth Turkey Farms.
The members in passing this motion require that ATP provide confirmation of the steps being taken to ensure that the Export Policy conditions will be fully satisfied in the future. We understand from our discussion with the ATP representatives in Winnipeg that these steps are in process.
From the discussion at the meeting it is clear that special considerations such as this, required because the Policy terms were not satisfied, are not appropriate and this is a one time provision only.
[22]On July 8, 2004, ATP advised the appellants of the June resolution and indicated in its correspondence that:
The export credits granted by the agency have greatly reduced the over marketing levels of your farming options.
[23]Also included in that correspondence was an invoice that assessed a fine in the amount of $462,174.07 against the appellants, based upon the following calculations:
OVERMARKETING FINE 03/04
BASED ON DEEMED PRODUCTION OF
1,268,596 LIVE WEIGHT
Deemed Production 1,268, 596 kg’s
Less domestic allowance 228, 536 kg’s
Less Export Credits Granted 447,992 kg’s
Overmarketing 592,068 kg’s
[24]As a result of a mediation, ATP and the appellants reached an agreement (the mediation agreement) that the overmarketing amount should be reduced to 148,471.3 kg, on the basis of a reduction in the amount of deemed production. The amount of “export credits” was not altered.1 However, the media-tion agreement provided that if the appellants were able to obtain an increase in their 2003-2004 “export credits” from the Council, the CTMA or the Federal Court, then the amount of such increase would be applied to reduce the overmarketing amount.
[25]On July 14, 2004, the appellants sent a letter to the Council in which they sought to appeal the June resolution on the basis that the CTMA had erred in the calculation of the export marketings of the appellants.
[26]In correspondence to the appellants, dated July 20, 2004 and October 1, 2004, the Council referred to the July 14, 2004 correspondence as a complaint and requested details regarding the grounds for the complaint and the relief that was sought.
[27]In correspondence to the Council, dated October 12, 2004, counsel for the appellants provided an explanation of the grounds for the complaint and described the requested relief as an order that the export and domestic marketing of the appellants be correctly calculated and that export credits be issued in accordance with such calculations. Further correspon-dence took place between the Council and counsel for the appellants in late October of 2004.
[28]In correspondence to the appellants, dated November 22, 2004, the Council advised that it was not prepared to take any further actions with respect to the appellants’ complaint, stating:
The Council has determined that it cannot grant you the relief that you are seeking, as this is outside the jurisdiction of the Council. Further, we are aware that the matter is before the courts in Alberta.
For these reasons, the Council has decided that it is not prepared to take any further action on this matter at this time.
THE FEDERAL COURT DECISION
[29] In the application for judicial review, the applications Judge, Campbell J., determined that the reasons for the Council’s decision were to be found in certain briefing notes that were sent to members of the Council and certain evidence of Mr. Terrence Hayward, Executive Director of the Council. The relevant portions of the briefing notes and the evidence are found in paragraph 10 of Campbell J.’s decision and read as follows:
RECOMMENDATION
The Council cannot grant the relief sought by the complainant, as this is outside the jurisdiction of the Council. As the matter is now before the Courts in Alberta, the Council is not prepared to take any action on this matter at this time.
The passage from the affidavit reads as follows (Attorney General’s record, at page 6):
21. I have reviewed the affidavit filed by the Applicants’ in this proceeding. It would appear, from my review, that they are dissatisfied with the Export Policy developed by the CTMA and its application to their operations. A copy of the CTMA’s Export Policy is attached hereto as Exhibit “G”. The Council has no “directory authority” under the Act to amend or order an amendment to the CTMA’s Export Policy.
22. It also appears from the Applicants’ affidavit that they are complaining of a “domestic overmarketing penalty” for the 2003-2004 control period in the amount of $462,174.07. This penalty was assessed by the Alberta Turkey Growers Marketing Board, over which the Council has no jurisdiction. [Emphasis added.]
The cross‑examination is as follows (applicants’ application record, at page 69):
Q The complaint was rejected on a jurisdiction ground rather than a procedural or timing ground; is that correct?
A The complaint was not rejected. The complaint was not continued within, other than the inquiry that was made by council in seeking information from Mr. Leth to determine what it was that the complainant wanted done, and that was taken into account by council when they considered did they have the authority to do what was asked.
Q And the council determined—I must have it somewhere— that it [sic] not did have the authority?
A To grant the order requested, correct.
Q And was that because the council viewed it as a complaint relating to the export policy of the CTMA rather than order or a regulation of the CTMA?
A Council recognized it was not an order or regulation of the CTMA that was at question here. From the materials submitted by the complainant, council, in its review, determined that the action being complained about over which the council has no authority. [Emphasis added.]
[30]The grounds for the application for judicial review were stated in the following terms [at paragraph 12]:
that the Decision was based on a misapprehension of jurisdiction and that the law pertaining to this matter, properly understood and applied, requires that the NFPC review the conduct of the CTMA and ensure that it is consistent with the CTMA’s statutory mandate.
[31]However, the applications Judge found that the only issue for determination was whether the Council erred with respect to its powers granted to it under section 7 of the FPAA. He then stated, more specifically, in paragraph 14, that the issue was whether the power granted to the Council in paragraph 7(1)(1) of the FPAA included “directory authority.”
[32]The applications Judge concluded that the ambit of the powers contained in section 7 of the FPAA should be considered in light of the scope of the duties contained in section 6 of the FPAA. He determined that those duties were relatively narrow, stating at paragraph 17 that “the terms of section 6 made it clear that the Council is not intended to be an enforcer, but is intended to be a supervisor and a facilitator dedicated to productive change.” He then concluded that the Council’s powers under section 7 were narrowly defined. Finally, he concluded that the “limited class rule” should operate to limit the scope of paragraph 7(1)(l) of the FPAA, stating, at paragraph 20:
Therefore, by reading the general grant of power in paragraph 7(1)(l) in context with the supervisor and facilitator duties established by section 6 and the narrow powers provided in subsection 7(1) to carry out these duties according to the “limited class rule”, in my opinion, the discretionary power to do “all such other things as are incidental or conducive to the fulfilment of its duties” [underlining added] most certainly does not give something more than supervisory or facilitation powers; that is, it does not give directory authority to the Council to make an “order” to require the applicants’ export and domestic marketings be correctly calculated in accordance with actual production and marketing experience as requested in the October 12, 2004 letter quoted above.
He concluded by stating that the grant of power contained in paragraph 7(1)(l) of the FPAA did not include “directory authority” and he dismissed the appeal.
ISSUE
[33]The issue is the scope of the Council’s jurisdiction to hear and dispose of the complaint.
ANALYSIS
[34]The appropriate standard of review to be applied in relation to the decision of the Council that it could not hear and dispose of the complaint, in the manner requested by the appellants, was determined by the applications Judge to be correctness. I agree with that conclusion.
[35]The applications Judge concluded that the Council was entitled to decline to hear the complaint because the relief or remedy that was sought was beyond the power of the Council to grant. He reduced the issue further by concluding that the issue was whether or not the provisions of paragraph 7(1)(l) of the FPAA provided “directory authority” to the Council. With the greatest respect, this was an over‑refinement of the problem that resulted in an error in law.
[36]To determine the correctness of the Council’s decision to refuse to hear and dispose of the complaint, it is necessary to interpret the legislative framework that provides the Council with its duties and powers.
[37]All of the parties agreed that the July 14, 2004 correspondence by the appellants to the Council constituted a complaint of the type contemplated by paragraph 7(1)(f) of the FPAA. However, there was no apparent agreement as to the nature of the complaint.
[38]Counsel for the Council and the CTMA argued that the complaint related to the proposed Quota Regulations amendment for the 2003-2004 control period and accordingly, the complaint was made too late. With respect, I do not agree. In my opinion, the complaint was that the June resolution contained an error in the calculation of the export production marketed by the appellants in the 2003-2004 control period and the appellants wanted that error to be corrected.
[39]The June resolution was clearly an action taken by the CTMA in the course of its operations. While the main purpose of the June resolution may have been to provide a forgiveness of a portion of certain overmarketing penalties that were assessed or to be assessed against ATP, in accordance with the promotion agreement, the determination of the amount that was to be forgiven depended upon a determination of the amount of production marketed by the appellants in export trade. The amount of export marketing so determined by Council had, and continues to have, a direct impact upon the appellants. That amount was used by the ATP, within days of the June resolution, as a factor in the determination of the overmarketing penalty that ATP assessed against the appellants. The continuing relevance of that amount is evident from the provision of the mediation agreement that stipulates that any increase in the amount of export marketing for the 2003-2004 control period will be applied to reduce the overmarketing penalty that was assessed by ATP in respect of the 2003-2004 control period. Therefore, having determined that the complaint related to the June resolution and not the proposed Quota Regulations amendment, the complaint was made on a timely basis because it was brought within 15 days of the time that the appellants became aware of the June resolution, as contemplated by Part V, paragraph 3(1) of the Complaint Guidelines.
[40]The reasons for the decision of the Council, as outlined by the applications Judge, also support the premise that the Council was in error in terms of its understanding of the nature of the complaint. In particular, the evidence of Mr. Hayward, Executive Director of the Council, that “The Council has no ‘directory authority’ under the Act to amend or order an amendment to the CTMA’s Export Policy” indicates that the Council erroneously believed that it was being requested by the appellants to do something other than correct an alleged computational error in the June resolution. Mr. Hayward’s further evidence to the effect that the appellants’ complaint was with respect to the penalty that was assessed by ATP is another indication that the Council erroneously believed that it was being asked to do more than simply review an alleged error in the determination of the amount of export marketing that the CTMA stipulated in the June resolution.
[41]The decision of the Council to refuse to hear the complaint because of a lack of jurisdiction raises another concern in relation to the provisions of the Complaint Guidelines. In particular, Part VI, paragraph 3 states, inter alia, that the Council may dismiss a complaint in relation to a matter that is beyond its jurisdiction “after discussing the circumstances with the complainant.” In reviewing the correspondence from the Council to the appellants and their counsel, the only reference to a lack of jurisdiction is found in the November 22, 2004 correspondence in which the Council stated that it lacked jurisdiction to grant the relief that was requested and that it was unwilling to take any further action. It is an open question as to what the appellants may have said if they had been advised that the Council was uncertain as to whether it could “grant an Order” or exercise “directory authority” in relation to a decision of the CTMA. However, they were not afforded the opportunity to have such a discussion, notwithstanding the clear provisions of Part VI, paragraph 3 of the Complaint Guidelines.
[42]Inasmuch as it is the Council, not the complainant, that has the obligation to determine the remedy, if any, that is to be provided in relation to a complaint, the Council should be reluctant to summarily decline to hear a complaint on the basis of a lack of authority to provide the remedy that has been requested. It may well be that after the complaint has been heard, the Council would be in a position to grant an appropriate remedy, other than the one that was specifically requested. Such a flexible approach is consistent with the provisions of Part IV, paragraph 1 of the Complaint Guidelines.
[43]Having regard to the errors of the Council in relation to the nature of the complaint and to the indicated failure of Council to follow the Complaint Guidelines, I would set aside the decision of the Council and return the matter to them to consider the complaint. Given this determination, the scope of the Council’s powers in relation to the disposition of the complaint will now be considered.
[44]As a general matter, the Council’s powers to dispose of a complaint in relation to the operations of the CTMA will have to be considered in light of the actual circumstances of the complaint that has been made. At a minimum, Part VIII, paragraph 2 of the Complaint Guidelines directs the Council to publish a report of its findings and recommendations in relation to the complaint that it has considered. Whether such a report would have satisfied the appellants is yet another open question, although there was some suggestion from their counsel, at the hearing of this appeal, that such an outcome may have been sufficient. That said, the existence of a broader power to deal with complaints was considered by the Federal Court in the judicial review application.
[45]The applications Judge correctly determined that the powers of the Council, which are outlined in section 7 of the FPAA, should be considered in the context of the duties imposed on the Council in section 6 of the FPAA. However, with respect, I do not agree with the applications Judge’s conclusions that the primary duty of the Council related to the establishment of agencies under paragraph 6(1)(a) of the FPAA and that the duties contained in paragraphs 6(1)(b) and (c) of the FPAA were limited to that of a supervisor and a facilitator.
[46]Nothing on the face of section 6 of the FPAA leads to the conclusion that the duty contained in paragraph 6(1)(b) of the FPAA—to review the operations of agencies with a view to ensuring that they carry on their operations in accordance with their objects, as set out in section 21 of the FPAA—should be considered to be limited in its scope to supervisory or facilitative functions. Indeed, a contrary conclusion in relation to the nature of the Council’s duties appears to have been adopted by Justice Shore in Saskatchewan (Minister of Agriculture, Food and Rural Revitalization) v. Canada (Attorney General) (2006), 289 F.T.R. 237 (F.C.) (the CEMA decision) when he addressed sections 6 and 7 of the FPAA in the context of the powers of the Canadian Egg Marketing Agency (CEMA), the equivalent of the CTMA in relation to egg marketing. At paragraphs 15 and 16, Justice Shore stated:
Although the scheme enacted by Parliament and the Governor in Council gives CEMA broad discretionary authority, that discretion is subject to qualifications, particularly in regard to overbase allocations. Specifically, CEMA is obliged to consider certain factors (the “overbase criteria”) in enacting regulations to establish overbase allocations. Any amendments to the Quota Regulations must be approved by Council before the amendments are enacted. Further, quota allocations proposed by CEMA (as well as other operational activities of CEMA) are subject to a statutory complaint mechanism to Council.
As set out in subsection 6(1) of the Act, the key duties of Council are to review the operations of CEMA and other similar agencies to ensure “they carry on their operations in accordance with their objects” and to advise the Minister of Agriculture and Agri‑Foods on related issues “with a view to maintaining and promoting an efficient and competitive agriculture industry”. [Emphasis added.]
[47]In construing the scope of paragraph 7(1)(f) of the FPAA in the case at bar, the applications Judge focussed on the words “within its powers” which appeared to lead him to conclude that the powers of the Council must be limited to only those powers that are contained in subsection 7(1) of the FPAA. This led to a focus on paragraph 7(1)(l) of the FPAA. With respect, this approach was misguided because the focus on the words “within its powers” draws attention away from the essence of the provision, namely, that the Council should “take such action. . . . as it deems appropriate” in relation to any complaints”. Furthermore, the French version of paragraph 7(1)(f) of the FPAA does not contain language that translates into the phrase “within its powers.” The absence of these words in the French version of paragraph 7(1)(f) of the FPAA is consistent with my view that no special or enhanced emphasis should be given to them in the determination of the proper interpretation of the scope of the powers granted to the Council pursuant to paragraph 7(1)(f) of the FPAA.
[48]While counsel for the CTMA argued that in previous complaint decisions under paragraph 7(1)(f) of the FPAA, the Council has determined that it did not have the authority to order an agency to act, I note that the materials cited by such counsel referred to paragraph 7(1)(d) of the FPAA and not to paragraph 7(1)(f) of the FPAA. That said, the presence or absence of such authority is a matter of law, in respect of which the opinion of the Council is not determinative.
[49]Counsel for the Council referred to the CEMA decision in relation to the proposition that the Council does not have “directory authority.” While Shore J. does state that the Council does not have “directory authority” and can only make recommendations in relation to some complaints under paragraph 7(1)(f) of the FPAA, I will observe that no authority is cited by him in support of those propositions.
[50]The interdependent nature of paragraphs 6(1)(b), 7(1)(f) and section 21 of the FPAA must be considered when interpreting them. The words “take such action . . . as it deems appropriate,” in paragraph 7(1)(f) of the FPAA, should be construed in light of the duty that is imposed on the Council under paragraph 6(1)(b) of the FPAA to “review the operations of agencies with a view to ensuring that they carry out their operations in accordance with their objects.” The objects of the CTMA are broadly stated in section 21 of the FPAA and its powers are even more broadly stated in section 22 of the FPAA. In my view, the significant latitude that is extended to the CTMA in relation to the conduct of its operations is consistent with a broader, rather than a narrower, range of actions that the Council should be able to take in the fulfillment of its mandate to conduct a review of the operations of the CTMA, especially in situations in which a complaint has arisen in relation to such operations. The precise nature of the “appropriate action” to be taken by the Council, in relation to any particular complaint, will no doubt depend upon the actual circumstances of the complaint. However, in my view, it would be appropriate for the Council to direct the CTMA to correct a demonstrable computational error that had been made by the CTMA in the course of its operations.
[51]In view of my conclusion that the express words of paragraph 7(1)(f) of the FPAA empower the Council to take action in relation to complaints that are before it, and in particular that such action would include a direction to the CTMA to correct a demonstrably erroneous calculation, I find it unnecessary to consider whether paragraph 7(1)(l) of the FPAA or the principle of jurisdiction by necessary implication, as argued by counsel for the appellants, could also provide a basis for the empowerment of the Council to direct the CTMA to correct the computation of the export marketings of the appellants, as specified in the June resolution, should it be determined upon the hearing of the complaint that such computation was erroneous.
[52]I would therefore allow the appeal with costs, set aside the decision of the Federal Court and direct the Council to hear the complaint of the appellants.
Desjardins J.A.: I concur.
Décary J.A.: I agree.
1 The reference to “export credits” appears to be a reference to the mechanism that was, in essence, used to provide export quotas under the version of the Export Policy that was replaced by the 2003 version.