Saskatchewan (Agriculture, Food and Rural Revitalization) v. Canada (Attorney General), 2006 FC 345

Date: 20060316

Docket: T-1599-04

T-65-05

Citation: 2006 FC 345

Ottawa, Ontario, March 16, 2006

PRESENT:      THE HONOURABLE MR. JUSTICESHORE

BETWEEN:

MINISTER OF AGRICULTURE, FOOD AND RURAL REVITALIZATION FOR SASKATCHEWAN, SASKATCHEWAN AGRI-FOOD COUNCIL, SASKATCHEWAN EGG PRODUCERS, COLBORN FARMS LTD., AMBERLEA FARMS LTD., AND SLOBOSHAN FARMS LTD.

Applicants

and

ATTORNEY GENERAL FOR CANADA;

EGG PRODUCERS OF NEWFOUNDLANDAND LABRADOR;

EGG PRODUCERS OF PRINCE EDWARDISLAND;

NOVA SCOTIAEGG PRODUCERS;

NEW BRUNSWICKEGG PRODUCERS;

LA FÉDÉRATION DES PRODUCTEURS D'OEUFS DE CONSOMMATION DU QUÉBEC;

ONTARIOEGG PRODUCERS;

MANITOBAEGG PRODUCERS;

ALBERTAEGG PRODUCERS BOARD;

NORTHWESTTERRITORIES EGG PRODUCERS' BOARD;

BRITISH COLUMBIAEGG MARKETING BOARD

Respondents

and

CANADIAN EGG MARKETING AGENCY

Intervener

REASONS FOR JUDGMENT AND JUDGMENT

OVERVIEW

[1]                For everything there is a season.

[2]                This application for judicial review is premature as the Applicants did not exhaust their statutory, internal complaint mechanism. This Court's intervention is not justified at this time. (Prince Rupert Grain Ltd. v. Grain Workers' Union, Local 333, 2005 FCA 402, [2005] F.C.J. No. 2055 (QL); Condo v. Canada (Attorney General), 2004 FC 991, [2004] F.C.J. No. 1218 (QL); Vicrossano Inc. v. Canada (Attorney General), 2002 FCT 1999, [2002] F.C.J. No. 1612 (QL), at paragraphs 21-22). As stated in Prince Rupert Grain Ltd., at paragraph 5:

With respect to the jurisdictional issues raised by the appellants, we are mindful of the admonitions of the Supreme Court with respect to the issue of jurisdictional questions. The following passage from International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd.[1996] 2 S.C.R. 432 is apposite:

Parliament and provincial legislatures have clearly indicated that decisions of these boards on matters within their jurisdiction should be final and binding. The courts could all too easily usurp the role of these boards by characterizing the empowering legislation according them authority as jurisdiction limiting provisions which would require their decisions to be correct in the opinion of the court. Quite simply, courts should exercise deferential caution in their assessment of the jurisdiction of labour boards and be slow to find an absence or excess of jurisdiction.

JUDICIAL PROCEDURE

[3]                These are two applications pursuant to section 18.1 of the Federal Courts Act, R.C.S. 1985, c. F-7, for judicial review of the decisions of the Canadian Egg Marketing Agency (CEMA).

[4]                The first application (docket number T-1599-04) challenges the decision of the CEMA dated July 30, 2004, which allocated the quota for the time period from August 1 to December 25, 2004, while the second application (docket number T-65-05) challenges the decision dated December 16, 2004, which allocated the quota for the time period from December 26, 2004 to December 25, 2005.

[5]                The two applications were consolidated in Saskatchewan (Minister of Agriculture, Food and Rural Revitilization) v. Canada(Attorney General), [2005] FC 1027, [2005] F.C.J. No. 1266 (QL), a July 25, 2005 Order by Justice Yves de Montigny.

[6]                The two applications are not based upon a dispute with the "base" quota allocations. Instead, they focus on the "overbase" allocation that is included in both the July 30, 2004 and the December 16, 2004 orders.

[7]                The Applicants seek an order quashing the subject allocation orders; an order enjoining CEMA from using the Quota Allocation Committee (QAC) factors in future orders; an appropriate order as to costs; and such further relief as deemed just by this Court.

BACKGROUND

[8]                The marketing of eggs in Canada is regulated through a coordinated series of federal and provincial laws and regulations. The coordination is provided through the Federal Provincial Agreement for Eggs (FPA) which was first negotiated in 1972 and amended in 1976.

[9]                The signatories to the FPA are the federal and provincial Ministers of Agriculture, the National Farm Products Council (Council) and agricultural supervisory boards and egg commodity boards in all provinces. The stated purpose of the FPA is to ensure the orderly marketing of eggs in Canada, a fair return to egg producers, a dependable supply of high quality eggs and the cooperation and coordination between the provincial egg boards and CEMA.

[10]            In the fulfillment of the federal government's FPA commitments, CEMA was created in 1972 through the enactment by the Governor in Council of the Proclamation pursuant to section 16 of the Farm Products Agencies Act, R.S.C. 1985, c. F-4 (Act). As contemplated by the Act, the Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646, as amended, (the Proclamation) and the FPA, CEMA is an industry self-governance body vested with broad, discretionary powers the exercise of which are subject to public interest oversight.

[11]            The broad and flexible discretionary powers granted to CEMA pursuant to the Act and the Proclamation are seen in paragraph 22(1)(f) of the Act, which authorizes CEMA to "make such orders and regulations as it considers necessary in connection" with the marketing plan it is empowered to implement. The marketing plan, as defined in section 2 of the Act and set out in the Proclamation, enables CEMA to fix and determine the quantity of the regulated product (i.e. eggs) that may be marketed in interprovincial and export trade. CEMA is also authorized pursuant to the Act and Proclamation to make orders to impose levies to finance the cost of the system and to enact a licensing system respecting the marketing of eggs in interprovincial and export trade.

[12]            Another indication of the breadth of CEMA's mandate is section 21 of the Act, which provides that the objects of an agency established under the Act are:

[13]            A core function exercised by CEMA and other marketing agencies created under the Act is to assess the national market and establish global quota allocations in each province, which are then subdivided in the form of quotas allotted to individual producers by the provincial egg boards. As discussed in greater detail below, the initial or "base" provincial quota allocations were fixed pursuant to subsection 23(1) of the Act on the basis of historical marketing in the five years prior to the creation of CEMA. Adjustments above the base quota allocations, ("overbase" quota allocations), are not fixed, but are intended by the FPA signatories to be decided by CEMA "as a matter of policy determination from time to time." The quota allocations, as amended from time to time, and related rules and requirements are provided for in the Canadian Egg Marketing Quota Regulations, 1986 SOR/86-8, as amended, (Quota Regulations).

[14]            In addition to implementing a quota system at a federal level, CEMA also operated the Industrial Products Program, which is designed to ensure that producers receive the producer price when their federal or provincial quota marketing are sold into the table (shell) egg market or the industrial (processing) egg market. The costs of running the Industrial Products Program are shared through levies payable by producers with a view to maintaining stability in the egg market at a national level.

[15]            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.

[16]            As set out in section 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".

[17]            In addition to the prior approval function it exercises, Council is also charged with addressing complaints brought in respect of quota allocation disputes and other matters pertaining to agency operations. In respect of quota allocations, Council's mandate to hear and decide complaints is linked to its prior approval function. Although Council does not have directive authority, if it considers that an allocation-related complaint is well founded, Council can, as in a number of past cases, refuse to prior approve an allocation until the Agency has addressed the relevant legal or policy concerns to its satisfaction.

DECISION UNDER REVIEW

The decision of July 30, 2004

[18]            The members of CEMA met on June 15, 2004 and again on July 6, 2004 to discuss the quota allocations for the period of August 1 to December 25, 2004. The allocation agreed upon at the meeting of June 15 was revised at the meeting of July 6.

[19]            There was discussion by the participants of that meeting of the proposed quota allocations. There was also some discussion concerning the criteria found in the Act and the Proclamation as well as the QAC factors - hen to population ratios and market share, which are not found in the Act or the Proclamation. The discussion centered mostly on what the criteria meant, especially comparative advantage, and whether they had properly been considered in the quota allocation.

[20]            Council sent representatives to attend both meetings. At the end of the prior approval process, Council determined that CEMA had considered the criteria found in the Act and the Proclamation and approved the quota allocation decisions made by CEMA.

The decision of December 16, 2004

[21]            The members of CEMA met on November 9, 2004 to discuss the quota allocations for the period of December 26, 2004 to December 25, 2005. As was the case at the June 15 and July 6 meetings, the participants discussed the proposed allocations. They also discussed the criteria imposed by the Act and the Proclamation, in order to determine if they had properly been considered in the allocation, as well as the QAC factors.

[22]            Council sent representatives to the November 9, 2004 meeting just as it had for the June 15 and July 6 meetings. Council approved the allocations determined by CEMA, finding that the criteria had been considered in the decision process and that the decisions were consistent with the objectives of CEMA, which are set out in section 21 of the Act.

ISSUES

[23]            Should the applications for judicial review be dismissed based on the Applicants' failure to exhaust an adequate alternative statutory remedy?

[24]            Did CEMA fail to consider the quota allocation criteria listed in the Act and the Proclamation when enacting the quota allocation amendments?

ANALYSIS

Statutory provisions

[25]            Section 21 of the Act sets out the objectives of an agency such as CEMA:

[26]            Section 23 of the Act sets out how CEMA should allocate the production or marketing quota:

[27]            Subsection 4(1) of Part II of the Proclamation states the criteria CEMA must consider before making an order amending the production and marketing quota:

[28]            Subsection 6(1) of the Act sets out the duties of Council:

[29]            The pertinent subsections and paragraph 7(1)(f) of the Act states:

Standard of review

[30]            In the 2005 decision Montreal(City) v. 2952-2366 Québec Inc., 2005 SCC 62">2005 SCC 62, at paragraph 41, the Supreme Court of Canada summarized the rules governing the exercise of regulatory powers:

The rules governing the exercise of regulatory powers are well known (Kruse v. Johnson, [1898] 2 Q.B. 105; City of Hamilton v. Hamilton Distillery Co. (1907), 38 S.C.R. 239; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231). The intervention of courts in this sphere has been marked by great deference. Only an exercise of power in bad faith or for improper or unreasonable purposes will justify judicial review (Kruse; City of Montrealv. Beauvais (1909), 42 S.C.R. 211; Associated Provincial Picture Houses, Ltd. v. Wednesbury Corp., [1947] 2 All E.R. 680; Juneau v. Ville de Québec, [1991] R.J.Q. 2781 (C.A.); Shell Canada Products; Montréal (City of) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368).

[31]            The same deferential approach was adopted by Justice Frederick Gibson of this Court in NunavutTerritory (Attorney General) v. Canada(Attorney General), 2005 FC 342, [2005] F.C.J. No. 423 (QL). In Nunavut Territory, at paragraphs 52-53, this Court relied upon the Federal Court of Appeal's 1998 decision, Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans), [1998] 4 F.C. 405 (F.C.A.), [1998] F.C.J. No. 1026 (QL) at paragraph 19, in which the Court examined the principles applicable to the judicial review of the exercise of ministerial discretion.

In other words, the Court in judicial review proceedings is concerned with the legality of the ministerial decision resulting from an exercise of discretion, not its opportunity, wisdom or soundness (see Canadian Assn. of Regulated Importers v. Canada(Attorney General), [1994] 2 F.C. 247 (C.A.), at page 260). This means, in this case, that the reviewing court ought to look at the manner in which the Minister exercised his discretion to determine whether the Minister acted in bad faith or on the basis of irrelevant factors, failed to take into account relevant factors or ignored relevant provisions which conditioned or limited the exercise of his otherwise absolute discretion (see [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pages 7-8; Canada (Attorney General) v. Purcell, [1996] 1 F.C. 644 (C.A.), at page 653; Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), at page 240).

[32]            At paragraph 54, Justice Gibson held that those principles equate to a standard of review of patent unreasonableness:

I am satisfied that the foregoing holds true when the standard of review on this application is derived by the application of a pragmatic and functional analysis as mandated by the Supreme Court of Canada in decisions such as Dr. Q. v. College of Physicians and Surgeons of British Columbia. In effect, the foregoing equates to a standard of review of "patent unreasonableness", in the current terminology on standard of review.

[33]            The deferential approach applied by the Supreme Court of Canada, the Federal Court of Appeal and this Court in the cases cited above, when reviewing the discretionary exercise of the power to make subordinate legislation, should be applied to the review of CEMA's exercise of its regulation-making authority when making quota allocations. The appropriate standard of review is patent unreasonableness.

[34]            Applying a standard of review of patent unreasonableness in the present case is also consistent with the approach adopted by this Court in its 1992 decision, New Brunswick(Egg Marketing Board) v. Canadian Egg Marketing Agency (1992), 94 D.L.R. (4^th) 687, [1992] F.C.J. No. 658 (QL), where a decision of Council to prior approve a proposed quota allocation decision made by CEMA was reviewed. Noting that Council's decision was not protected by a privative clause in the Act, the Court reviewed the decision on a standard of patent unreasonableness, not correctness, because the decision whether to prior approve quota regulations proposed to be made by national marketing agencies "is clearly one which was intended by Parliament to be left to Council." Citing from the Supreme Court of Canada's decision in Canada(Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, at paragraph 14, in New Brunswick(Egg Marketing Board) this Court held that:

...if the interpretation of a particular provision was intended to be left to the tribunal "then its decision is not reviewable unless the interpretation placed upon those provisions is patently unreasonable and the Board thereby exceeded its jurisdiction"...

[35]            The same reasoning applies to the present case. Council gave its prior approval to the 2004 and 2005 quota allocations which are the subject of these judicial review applications. Accordingly, it is submitted that the same standard of review should apply to CEMA's quota allocation decisions post prior approval by Council as was applied by this Court for purposes of reviewing Council's prior approval decision in New Brunswick (Egg Marketing Board), above.

[36]            The jurisprudence holds that regulation-making authorities are accorded great deference in the exercise of that discretionary power. Review of CEMA's quota allocation decisions on a standard of patent unreasonableness is equally supported by the pragmatic and functional analysis approach.

[37]            According to the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraphs 29-38, four factors are considered in context: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the purpose of the legislation and of the particular provision; (3) the expertise of the decision-maker relative to that of the reviewing court on the issue in question; and (4) the nature of the question, namely, whether it is one of law, fact or mixed law and fact.

[38]            The Act does not contain a privative clause or a statutory right of appeal. Under the Act, the Parliament has provided a process for review of CEMA's quota allocation decisions by Council, a specialized administrative tribunal established under the Act.

[39]            Under paragraph 7(1)(f) of the Act, Parliament has provided a complaint process to Council which is available to any person who is directly affected by the operations of an agency and that relates to the operations of the agency. Although Council can only make recommendations in response to some complaints, in response to proposed quota allocations, Council may refuse to prior approve a proposed amendment to CEMA's Quota Regulations. Absent Council's prior approval, CEMA cannot make a regulation prescribing the quota allocation to be made to each of the provinces and territories for the prescribed marketing period.

[40]            The absence of a privative clause and the presence of a statutory process for review by Council of complaints concerning proposed quota allocations made by CEMA must be balanced against the following: the statutory requirement for Council's prior approval of quota allocations to be made by CEMA, the statutory requirement that Council must be satisfied that the proposed quota regulations are necessary for the implementation of CEMA's marketing plan, the statutory duty imposed upon Council to ensure that CEMA carries out its operations in accordance with CEMA's statutory objects as set out in section 21 of the Act and the fact that Council did approve both of the quota allocation decisions impugned in these proceedings and determined that CEMA had duly considered the criteria.

[41]            These factors are indications of Parliament's intention that deference be accorded to national marketing agencies, like CEMA, in the review of quota allocation decision and support review on a standard of patent unreasonableness.

[42]            Under the Act, Parliament intended to leave to CEMA the making of quota allocation decisions. While Council is required under the Act to prior approve the proposed regulations which will prescribe the quota allocations to each of the provinces and territories, Council does not have the authority to decide quota allocations. In the event that Council withholds prior approval, only CEMA has the authority to make a different quota allocation decision.

[43]            When CEMA makes a quota allocation decision under the Act, it does so, not as a result of an adversarial or adjudicative hearing process, but as a result of a policy oriented, legislative process engaged in by stakeholders in the orderly marketing system for eggs, namely producers, consumers, graders, processors and hatcheries, all represented on CEMA's Board of Directors, where CEMA is required to take into account the criteria in the Act and the Proclamation, while bearing in mind its objectives.

[44]            Consideration of the purposes of the Act and of the particular provisions which authorize the making of quota allocation decisions, as well as the intention of Parliament that quota allocation decisions be made by stakeholders in the egg industry, are considerations which indicate review of CEMA's quota allocation decisions on a standard of patent unreasonableness.

[45]            CEMA is a representative stakeholder organization comprised of members appointed by the 11 provincial and territorial boards which represent the licensed eggs producers in each of the provinces and territories and by four downstream organizations representing graders, processors, hatcheries and consumers.

[46]            CEMA prescribes quota allocations under the Quota Regulations. Under the Act, Parliament has given CEMA regulation-making authority in respect of the quota system, as well as in respect of a licensing system for producers and a levy system. The making of quota allocations is a matter to be determined by egg industry stakeholders as represented by members of CEMA.

[47]            Owing to its composition and its familiarity with the particular matter of making quota allocation decisions and its relative expertise generated by application of the statutory objects of the Agency as set out in section 21 of the Act to the facts relevant to the making of new quota allocation decisions each year, it is submitted that CEMA's expertise in making quota allocation decisions is a specialized area of knowledge.

[48]            In light of its specialized role and expertise, this factor indicates that quota allocation decisions made by CEMA be reviewed on a standard of patent unreasonableness.

[49]            The making of quota allocation decisions is far from being a question of pure law as it involves significant elements of fact and policy as well as law.

[50]            In the context of the Act and the Proclamation, comparative advantage of production is considered by CEMA when it makes an overbase allocation in the context of a supply managed regulated product where all licensed egg producers in all provinces and territories are entitled to market the product. In the context, the understanding of the implications for the egg industry and industry stakeholders falls squarely within the core expertise of CEMA.

[51]            To the extent, if any, that consideration of comparative advantage of production can be characterized as a general proposition, interpretation of this statutory requirement must be made in accordance with the statutory objects of the Agency as set out in section 21 of the Act. Given the composition of CEMA and the working knowledge of its members of the egg industry, CEMA is in a better position to assess how those objects are best met when making overbase quota allocation decisions.

[52]            While a quota allocation may not, in some cases, change from year to year, each quota allocation is made within the context of the particular circumstances and facts relevant to the quota allocation decision. With each allocation the specific facts must be analyzed and, in that respect, it is in the nature of a question of fact.

Should the applications be dismissed based on the Applicants' failure to exhaust an adequate alternative statutory remedy?

[53]            The leading cases on the adequate alternative remedy doctrine are [1979] 2 S.C.R. 561">Harelkin v. University of Regina, [1979] 2 S.C.R. 561 and Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, [1995] S.C.J. No. 1 (QL).

[54]            In [1979] 2 S.C.R. 561">Harelkin, the majority of the Supreme Court of Canada ruled that an internal appeal from a university committee to the university Senate provided an adequate remedy - even in respect of a breach of natural justice - and, therefore, without addressing the merits, dismissed the judicial review application.

[55]            A similar result was reached in Matsqui, above, in which the Court held that an appeal tribunal established by First Nations bands to address tax assessments on reserve lands was an adequate alternative forum - even with respect to an issue of jurisdiction. The majority in Matsqui summarized the applicable principles as follows, at paragraph 37:

... a variety of factors should be considered by courts in determining whether they should enter into judicial review, or alternatively should require an applicant to proceed through a statutory appeal procedure. These factors include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). I do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant.

[56]            Matsqui, above, at paragraphs 54-56, holds that the issue under the alternative remedy doctrine is whether the appeal body is an adequate forum for resolving, at first instance, the challenge under consideration. It is an error to suggest that the statutory appeal tribunal must necessarily be a better forum than the courts for the adequate alternative remedy doctrine to apply.

[57]            The adequate alternative remedy doctrine has been applied by the Federal Court in a number of cases. (Froom v. Canada (Minister of Justice), 2004 FCA 352, [2005] 2 F.C.R. 195 (F.C.A.), [2004] F.C.J. No. 1735 (QL); Abbott Laboratories, Ltd. v. Canada(Minister of National Revenue - MNR), 2004 FC 140, [2004] F.C.J. No. 410 (QL); Agustawestland International Ltd. v. Canada (Minister of Public Works and Government Services), 2004 FC 1545, [2004] F.C.J. No. 1878 (QL); Andersonv. Canada (Armed Forces), [1997] 1 F.C. 273 (F.C.A.), [1996] F.C.J. No. 1370 (QL).). In a manner consistent with Matsqui and [1979] 2 S.C.R. 561">Harelkin, above, the Federal Court in Froom, above, at paragraph 12, stressed: "the test is whether the alternative remedy is adequate, not whether it is perfect". The Court in Froom also noted, at paragraph 7, that if the alternative remedy doctrine is not applied "the inevitable result will be multiple proceedings, forum-shopping, inconsistent results and delay".

[58]            The adequate alternate remedy doctrine applies even when the time period for invoking the alternate remedy has expired absent a satisfactory explanation. (Adams v. British Columbia(Workers' Compensation Board), [1989] B.C.J. No. 2478 (B.C.C.A.), at paragraphs 4, 7; Carriere v. British Columbia(Labour Relations Board), [1995] B.C.J. No. 2927 (B.C.S.C.), at paragraphs 24-29.)

[59]            Applying this doctrine, the Council complaint route is an adequate alternative remedy to address the issues the Applicants seek to raise. To put it another way, the Applicants should not be permitted to forum-shop and circumvent the established statutory remedial mechanism. With respect to the first factor, that of convenience, expeditiousness and cost, Council has an established expertise in the handling of complaints, whether in regard to quota allocations or otherwise, in an efficient, cost effective manner. Specifically, Council's Complaint Guidelines are designed to "ensure the fairest, least expensive and most expeditious way of resolving complaints". Council moves on complaints very quickly. Within five working days of receiving a complaint Council will decide whether a hearing is warranted, and within five working days after that, the Committee charges with conducting the hearing establishes a schedule for the hearing date. In the case at bar, 18 months will have passed from the date of the 2004 quota allocation decision in dispute before the judicial review applications are even heard, let alone decided.

[60]            Turning to the second factor, the nature of the error alleged, the cases suggest that the case for declining to entertain a judicial review application will be stronger where the issues is one of statutory interpretation and weaker where the issues is jurisdictional in nature. As Matsqui and [1979] 2 S.C.R. 561">Harelkin, above, demonstrate, however, judicial review can be declined even if an excess of jurisdiction is alleged. In Matsqui the issue centered on whether the land in dispute was in the reserve so as to fall within the taxation powers of the bands. In [1979] 2 S.C.R. 561">Harelkin, the issue was whether jurisdiction was lost through a breach of natural justice.

[61]            In the present case, there is no dispute that CEMA has jurisdiction to enact quota allocations in the exercise of its statutory authority. The claim by the Applicants is that CEMA failed to adequately consider the overbase criteria or erroneously took into account irrelevant considerations. The alleged errors are non-jurisdictional and thus support a broad, not a restrictive, application of the adequate alternative remedy doctrine.

[62]            Next, there is the nature of the appellate body (i.e., its investigative, decision-making and remedial capacities). Council is an independent public oversight body specifically mandated by Parliament to review the operations of agencies created under the Act and to decide complaints against an agency brought by directly affected persons. As is evidence from the Act, the Complaint Guidelines and Council's Governance Manual, Council has a broad range of investigatory and decision-making tools at its disposal. If a complaint calls for a mediation type of response, Council can provide for such a role. If a full hearing is considered to be warranted, Council has at its disposal all the powers of a Commissioner under the Inquiries Act, R.S.C. 1985, c. I-11. Council can also hold an oral hearing that provides similar safeguards (right to counsel, written and oral argument, cross examination) without the cost and formality of a full-blown public hearing.

[63]            With respect to its remedial powers, Council does not conduct a de novo appeal but in the context of proposed quota allocations has the powers needed to address the issues raised by the Applicants. As Counsel to the Saskatchewan signatories pointed out in closing submissions in the December 2003 complaint:

Under section 7(1)(f) of the Act, Council has a very broad authority to do what it thinks is appropriate to help the system operate properly. So we don't think there is a jurisdictional question here and all. (Affidavit of Bruce Simmons, April 4, 2005, Exhibit O, at page 264.)

[64]            In particular, although Council does not have the ability to step into the shoes of CEMA and decide for itself how a quota allocation ought to be enacted, Council does have the power and the duty to decide whether prior approval ought to be granted in respect of a quota allocation. If not satisfied that CEMA has properly considered the overbase criteria or if not satisfied that the proposed quota allocation accords with the objects of the Act, Council has the authority to withhold prior approval until the outstanding legal or policy concerns are addressed to its satisfaction. Thus, viewed practically and realistically, Council has the ability to provide an adequate remedy in response to a timely quota allocation complaint. Indeed, the Council complaint mechanism offers the advantage of oversight by a body that is both independent and has in-depth knowledge of the industry. In addition, Council provides ongoing, proactive supervision of Agency decisions - something that the Courts are not equipped to provide.

[65]            A complaint to Council would not necessarily be an adequate alternative remedy in all cases involving a review of a decision or action by an agency established under the Act. There may be situations in which the limits on Council's jurisdiction or other circumstances are such that the statutory complaint mechanism would not be an adequate alternative to judicial review. In the present case, however, there is no valid reason why the Applicants should not be required to exhaust the complaint remedy before a judicial review application is launched. The fact that Council granted prior approval of the 2004 and 2005 allocation after the 15 day time limit for complaints had elapsed is not a sufficient basis to disregard the complaint remedy. (Adams and Carriere, above) There is no evidence to suggest that Council would not have provided a fair, impartial and effective process had timely complaints been brought before prior approval was considered. (Froom, above, at paragraph 19; [1979] 2 S.C.R. 561">Harelkin, above; Adams, above, at paragraphs 8-10)

[66]            In a manner analogous to the self-government scheme in Matsqui, above, Parliament intended CEMA to have significant powers of industry self-governance, subject to public interest oversight. Council's role was carefully designed to foster industry self-governance and at the same time be sensitive to the cooperative federal-provincial context in which CEMA was established. This underscores the appropriateness of preserving the integrity of Council's role, at first instance, as the forum for resolving quota allocation disputes. The circumstances also bring into play the following consideration set out in [1979] 2 S.C.R. 561">Harelkin, above:

...the general intent of the Legislature that intestine grievances preferably be resolved internally by the means provided in the Act, the university thus being given the chance to correct its own errors, consonantly with the traditional autonomy of universities as well as with expeditiousness and low cost for the public and the members of the university...

[67]            Both the 2004 and 2005 quota allocations were prior approved by Council on the basis that CEMA had duly considered the overbase criteria and the quota allocations were consistent with CEMA attaining its objects. The Applicants, having sat on their complaint rights, are now advancing a collateral attack on these Council prior approval decisions, contrary to the principles laid out in R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706, [1998] S.C.J. No. 32 (QL) and Alberta (Energy Resources Conservation Board) v. Sarg Oils Ltd., 2002 ABCA 174, [2002] A.J. No. 938 (Alta.C.A.) (QL). Moreover, contrary to Froom, above, these judicial review applications have given rise to "multiple proceedings, forum-shopping, inconsistent results and delay". The proper way to proceed is for the Applicants to launch a complaint before the quota allocation order is made and before Council considers prior approval. If still dissatisfied with the outcome, the Applicants can commence a judicial review application, as done in New Brunswick(Egg Marketing Board), above.

[68]            The test is whether the alternate tribunal (in this case Council) provides "an adequate forum for considering at first instance the issue raised" by the challenger. (Matsqui, above, at paragraph 59) An additional reason for requiring the Applicants to exhaust the complaint remedy is so that, in the event of a court challenge, the Court has the benefit of Council's knowledge and expertise in framing the facts in respect of this complex regulatory scheme. (Carriere, above, at paragraph 19)

[69]            In summary, this application for judicial review is premature as the Applicants did not exhaust their statutory, internal complaint mechanism. This Court's intervention is not justified at this time. (Prince Rupert Grain Ltd.,above ; Condo, above; Vicrossano Inc., above, at paragraphs 21-22.) As stated in Prince Rupert Grain Ltd., above, at paragraphs 4-5:

The fact that a litigant disagrees with the Board's decision on an interlocutory matter is not itself a special consideration. If it were, the practice of restrained intervention would be meaningless. The Board's decision on the issue of res judicata, and in particular its alleged failure to address the appellants arguments on this issue, does not preclude the appellants from making the same arguments before the Board at the hearing on the merits as they did before the panel which decided PRG 2002 as to whether statutory criteria in s. 35 have been satisfied. To that extent, the appellants' position on the merits has not been prejudiced and we are not justified in intervening at this point.

With respect to the jurisdictional issues raised by the appellants, we are mindful of the admonitions of the Supreme Court with respect to the issue of jurisdictional questions. The following passage from International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd. [1996] 2 S.C.R. 432 is apposite:

Parliament and provincial legislature have clearly indicated that decisions of these boards on matters within their jurisdiction should be final and binding. The courts could all too easily usurp the role of these boards by characterizing the empowering legislation according them authority as jurisdiction limiting provisions which would require their decision to be correct in the opinion of the court. Quite simply, courts should exercise deferential caution in their assessment of the jurisdiction of labour boards and be slow to find an absence or excess of jurisdiction.

Did CEMA fail to consider the quota allocation criteria listed in the Act and the Proclamation when enacting the quota allocation amendments?

[70]            As it was determined above that the Applicants should have proceeded with the complaint process provided in the FPA, it is not necessary to determine whether CEMA properly made the quota allocation decisions by considering the criteria listed in the Act and the Proclamation. The Applicants should have brought their complaint to the Council if they had concerns about the quota allocation decisions made by CEMA. Then, once the complaint procedure before the Council was completed, if they still had concerns about the quota allocation decisions made by CEMA, they, then, could have brought an application for judicial review to this Court.

[71]            This Court will make these comments, however, on the issue of the criteria to be considered by CEMA when making quota allocation decisions. The Act and the Proclamation are quite clear that comparative advantage, variation in the size of the market for eggs, failure to market the number of dozens of eggs authorized to be marketed, the feasibility of increased production in each province and comparative transportations costs are the five criteria to be considered by CEMA. The QAC factors are not mentioned in the Act or Proclamation, therefore they cannot replace the five factors enumerated above. Until such time as the FPA, the Act and the Proclamation are amended, the five criteria must be considered in every quota allocation decision.

[72]            It is not clear from the transcripts of the meetings when the quota allocations were discussed and that the criteria were, in fact, properly considered. It would appear that the criteria seemed to be discussed as an afterthought in order to ensure that the decisions could not be contested, which was not the intention of the Act. Council sent representatives to the meetings of CEMA and determined that CEMA had properly considered the relevant criteria and approved the decision. This is Council's role. How both CEMA and Council acted, respectively, and what each did, respectively, may be in question, if put forward, at the right time, subsequent to certain prescribed proceedings. It is not the role of this Court, a priori, to put itself in the place of CEMA or the Council in order to determine the quota allocations or to approve these decisions. The Court's role is, in such matters, as discussed above, with respect to judicial review, if, and when that is warranted.

CONCLUSION

[73]            The consolidated application is dismissed.

[74]            The Court wishes to thank counsel for the care with which they prepared the pleadings and documentation which were submitted before the Court, both in respect of evidence and law.

[75]            Since the continuity of the agricultural system in this sector is at stake, a need exists for self-examination leading to self-evaluation within existing parameters. Furthermore, due to expired agreements, significant movement is required to forge through new agreements, thus, a vision for the system's future viability.

[76]            The Court exercises its discretion to declare that there shall be no costs in this matter. The consolidated application for judicial review is dismissed without costs.

JUDGMENT

THIS COURT ORDERS that

1.          The consolidated application be dismissed;

2.          There shall be no costs.

            Recognizing the unique nature of the matter, the inherent role of the participants, and by its nature, the co-operative framework of the supply management system, wherein by addressing a common challenge, together as one, therein is found the essence of the ultimate "Comparative Advantage" for all, setting the groundwork and climate for solution.

"Michel M.J. Shore"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1599-04 and T-65-05

STYLE OF CAUSE:                           MINISTER OF AGRICULTURE, FOOD AND RURAL REVITALIZATION FOR SASKATCHEWAN, SASKATCHEWAN AGRI-FOOD COUNCIL, SASKATCHEWAN EGG PRODUCERS, COLBORN FARMS LTD., AMBERLEA FARMS LTD., AND SLOBOSHAN FARMS LTD.

Applicants

and

ATTORNEY GENERAL FOR CANADA;

EGG PRODUCERS OF NEWFOUNDLAND AND LABRADOR;

EGG PRODUCERS OF PRINCE EDWARD ISLAND;

NOVA SCOTIA EGG PRODUCERS;

NEW BRUNSWICK EGG PRODUCERS;

LA FÉDÉRATION DES PRODUCTEURS D'OEUFS DE CONSOMMATION DU QUÉBEC;

ONTARIO EGG PRODUCERS;

MANITOBA EGG PRODUCERS;

ALBERTA EGG PRODUCERS BOARD;

NORTHWEST TERRITORIES EGG PRODUCERS' BOARD;

BRITISH COLUMBIA EGG MARKETING BOARD

Respondents

and

CANADIAN EGG MARKETING AGENCY

Intervener

PLACE OF HEARING:                     Vancouver, British Columbia

DATE OF HEARING:                       February 28 and March 1, 2006

REASONS FOR JUDGMENT:        SHORE J.

DATED:                                              March 16, 2006

APPEARANCES:

Mr. Michael D. Tochor, Q.C.

FOR THE APPLICANTS

Ms. Glennys Bembridge Mr. David K. Wilson Mr. Pierre Brosseau Mr. Gordon J. Kuski, Q.C. Mr. Loran V. Halyn Mrs. Lynn Starchuk No appearance No appearance

FOR THE RESPONDENT ATTORNEY GENERAL OF CANADA FOR THE RESPONDENTS EGG PRODUCERS OF EWFOUNDLAND AND LABRADOR, EGG PRODUCERS OF PRINCE EDWARD ISLAND, NOVA SCOTIA EGG PRODUCERS, NEW BRUNSWICK EGG PRODUCERS FOR THE RESPONDENT LA FÉDÉRATION DES PRODUCTEURS D'OEUFS DE CONSOMMATION DU QUÉBEC FOR THE RESPONDENT ONTARIO EGG PRODUCERS FOR THE RESPONDENT ALBERTA EGG PRODUCERS BOARD AND NORTHWEST TERRITORIES EGG PRODUCERS BOARD FOR THE INTERVENER CANADIAN EGG MARKETING AGENCY FOR THE RESPONDENT MANITOBA EGG PRODUCERS FOR THE RESPONDENT BRITISH COLUMBIA EGG MARKETING BOARD

SOLICITORS OF RECORD:

Macpherson Leslie & Tyerman LLP Regina, Saskatechewan

FOR THE APPLICANTS

John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Canada Saskatoon Regional Office Saskatoon, Saskatchewan Johnston & Buchan LLP Ottawa, Ontario Tremblay, Brosseau, Fleury, Savoie Longueuil, Québec McDougall Gauley Regina, Saskatechewan and Wilson Spurr LLP St. Catherines, Ontario Sugimoto & Company Calgary, Alberta Johnston & Buchan LLP Ottawa, Ontario Aikins, MacAulay & Thorvaldson LLP Winnipeg, Manitoba McKercher McKercher & Whitmore Regina, Saskatchewan

FOR THE RESPONDENT ATTORNEY GENERAL OF CANADA FOR THE RESPONDENTS EGG PRODUCERS OF NEWFOUNDLAND AND LABRADOR, EGG PRODUCERS OF PRINCE EDWARD ISLAND, NOVA SOCIA EGG PRODUCERS, NEW BRUNSWICK EGG PRODUCERS FOR THE RESPONDENT LA FÉDÉRATION DES PRODUCTEURS D'OEUFS DE CONSOMMATION DU QUÉBEC FOR THE RESPONDENT ONTARIO EGG PRODUCERS FOR THE RESPONDENT ALBERTA EGG PRODUCERS BOARD AND NORTHWEST TERRITORIES EGG PRODUCERS BOARD FOR INTERVENER CANADIAN EGG MARKETING AGENCY FOR THE RESPONDENT MANITOBA EGG PRODUCERS FOR THE RESPONDENT BRITISH COLUMBIA EGG MARKETING BOARD