Docket: T-1255-05
Ottawa,
Ontario, the 26th day of April 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
FÉDÉRATION
DES PRODUCTEURS ACÉRICOLES DU QUÉBEC
Applicant
and
CANADIAN FOOD INSPECTION
AGENCY
and
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The Court
has before it an application filed pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, by which the Fédération des producteurs
acéricoles du Québec (the applicant or the Fédération) is seeking an order of mandamus
and a declaratory judgment in respect of a decision of the respondent Canadian
Food Inspection Agency (the Agency), which ruled that the applicant had no
right to receive the documents referred to in sections 21 and 23 of the Maple
Products Regulations (C.R.C., c. 289 – the Regulations).
RELEVANT FACTS
[2]
The
respondent is responsible for ensuring and supervising the administration of
various statutes and regulations regarding the safety of food, protection of
plants and health of animals in Canada.
[3]
Where an
inspector appointed by the Agency believes that there has been a violation of
the Canada Agricultural Products Act, R.S.C. 1985 (4th supp.), c. 20 (the Act) or
its Regulations, he may seize and detain agricultural products. In the case at
bar, maple products were seized and detained.
[4]
The
Fédération asked the Agency [translation]
“in the future to provide the Fédération with all relevant information which
the latter may reasonably request regarding detentions and release of
detentions of maple syrup in large containers produced in the province of
Quebec . . .”.
[5]
On March
7, 2005, by a letter to counsel for the Fédération, the Agency definitively
rejected the Fédération’s request.
ISSUES
[6]
1. Have
the criteria for an order of mandamus and a declaratory judgment been
met in the case at bar?
(a) Was the Fédération owed the duties
provided for in sections 21 and 23 of the Regulations?
(b) Do other adequate remedies exist?
ANALYSIS
[7]
The
Fédération is a group of 11 professional unions of maple product producers and
has the status of a maple product marketing agency in Quebec within the meaning
of section 65 of the Act Respecting the Marketing of Agricultural, Food
and Fish Products, R.S.Q., c. M-35.1. In this regard, the Fédération
applies and administers the Plan conjoint des producteurs acéricoles du
Québec (the Plan Conjoint) amended by subsequent decisions of the Régie des
marchés agricoles et alimentaires du Québec (the Régie), a regulatory and
quasi-judicial agency specializing in the marketing of agricultural products in
the province of Quebec.
[8]
In
relation to the administration of the Plan Conjoint the Régie has approved inter
alia the [translation] Regulations
Respecting the Maple Products Marketing Agency, which provide that a maple
products producer must market all the maple syrup or maple sap he produces in
containers of not less than 5 litres or more than 5 kilograms through the
Fédération, which is the exclusive sales agent of maple product producers in
Quebec (see sections 1, 2 and 3 of the [translation] Regulations
Respecting the Maple Products Marketing Agency). Accordingly, a maple
products producer of large containers located in Quebec must necessarily place
his product at the disposal of the Fédération if he wishes to market it.
[9]
Under
section 5 of the [translation] Regulations
Respecting the Maple Products Marketing Agency, the Fédération may retain
the services of purchasers which it authorizes to receive on its behalf from
maple product producers maple sap, maple sap concentrate and maple syrup, in
accordance with the provisions of a marketing agreement to that effect.
Accordingly, under the regulations in effect in Quebec, in addition to the
Fédération, only authorized purchasers have the right to receive maple syrup in
large containers directly from maple product producers. Thus, a maple product
producer may deliver his maple syrup either directly to the Fédération or
through an authorized buyer receiving the maple syrup for, and on behalf of,
the Fédération.
[10]
The
Fédération operates two maple syrup warehouses in Quebec. These two warehouses
are “registered establishments” under the Maple Products Regulations,
for which the Fédération is the holder of an approval.
[11]
Section 21
of the Act gives an inspector the power to enter and inspect any place in which
the inspector believes on reasonable grounds that there is any agricultural
product or other thing in respect of which the Act or Regulations apply.
Section 23 of the Act gives the inspector the power to seize and detain any
agricultural product or other thing, in particular maple products, if he
believes on reasonable grounds that the Act or the Regulations have been
contravened, or that will afford evidence in respect of a contravention of the
Act or Regulations.
|
21. (1) For the purpose of
ensuring compliance with this Act and the regulations, an inspector may,
subject to section 22, enter and inspect any place, or stop any vehicle,
in which the inspector believes on reasonable grounds there is any
agricultural product or other thing in respect of which this Act or the
regulations apply
|
21. (1) Dans le but de faire
observer la présente loi et ses règlements, l’inspecteur peut procéder à la
visite de tout lieu — ou, s’il s’agit d’un véhicule, à son immobilisation et
à sa visite — s’il a des motifs raisonnables de croire que s’y trouvent des
produits agricoles ou d’autres objets visés par la présente loi ou ses
règlements. Il peut en outre, son avis devant, dans tous les cas, être fondé
sur des motifs raisonnables :
|
|
23. Where an inspector believes on reasonable grounds that this Act
or the regulations have been contravened, the inspector may seize and detain
any agricultural product or other thing
(a) by means of or in
relation to which the inspector believes on reasonable grounds the
contravention occurred; or
(b) that the inspector
believes on reasonable grounds will afford evidence in respect of a
contravention of this Act or the regulations.
|
23. L’inspecteur peut saisir et retenir tout produit agricole ou tout
autre objet, s’il a des motifs raisonnables de croire qu’ils ont servi ou
donné lieu à une contravention à la présente loi ou à ses règlements, soit
tout produit agricole, ou tous autres éléments, dont il a des motifs raisonnables
de croire qu’ils peuvent servir à prouver la contravention.
|
|
21. (1) An inspector shall, after detaining any maple product or
other thing in accordance with subsection 20(1), forthwith deliver or
mail a notice of detention
|
21. (1) Après avoir retenu un produit de l’érable ou tout autre objet
conformément au paragraphe 20(1), l’inspecteur remet ou envoie par la
poste sans délai un avis de rétention aux personnes suivantes :
|
|
(a) to the person having the care or
custody of the maple product or other thing at the place where it was seized;
|
a) la
personne qui a la garde du produit de l’érable ou de l’objet au lieu où la
saisie a été effectuée;
|
|
(b) to the owner of the maple product
or other thing that was seized, or to the owner's agent; and
|
b) le
propriétaire du produit de l’érable ou de l’objet saisi, ou son mandataire;
|
|
(c) where the maple product or other
thing is removed from the place where it was seized to another place in
accordance with subsection 19(5) or 25(1) of the Act, to the person
having the care or custody of the maple product or other thing at that other
place.
|
c) lorsque le
produit de l’érable ou l’objet est déplacé ou transféré du lieu de la saisie
à un autre lieu conformément aux paragraphes 19(5) ou 25(1) de la Loi,
la personne qui en a la garde à ce lieu.
|
|
23. Where an inspector
determines that any detained maple product or other detained thing meets the
requirements of the Act and these Regulations, the inspector shall release
the maple product or other thing and shall deliver or mail one copy of a
notice of release to each of the persons to whom a copy of the notice of detention
referred to in subsection 21(1) was delivered or mailed.
|
23. Lorsque l’inspecteur
détermine que le produit de l’érable ou l’objet retenu est conforme, il lève
la saisie et remet ou envoie par la poste un avis de levée à chaque personne
à qui l’avis de rétention visé au paragraphe 21(1) a été remis ou
envoyé.
|
[13]
An
inspector appointed by the Agency who has detained maple products under
section 23 of the Act has a duty to deliver or mail the notice of
detention and notice of release of detention, as applicable, to persons covered
by sections 21 and 23 of the Regulations. The Fédération is currently never notified by
the Agency of this information, except for the maple syrup which is in the two
“registered establishments” which it has.
(a) Was the Fédération owed the duties
mentioned in sections 21 and 23 of the Regulations?
[14]
The
Fédération argued
that it was clearly owed the duties provided for in sections 21 and 23 of the
Regulations. The Fédération maintained it was entitled to receive these notices
both because it is the agent of the owner of the maple product seized and
because it had care or custody of the maple product at the time of seizure,
regardless of where it was physically located. The Agency’s refusal constituted
a failure to carry out its non-discretionary legal duties to the Fédération
mentioned in the Regulations, and this is why the Fédération is seeking an
order of mandamus.
[15]
The
central issue, i.e. whether the respondents had a legal duty in this case to
provide the applicant the information specified in sections 21 and 23 of the
Regulations, is in fact a question of legislative interpretation subject to
review according to the standard of correctness (see Alberta
Wapiti Products Cooperative Ltd. v. Canada (Minister of Agriculture and Agri-Food), [2005] F.C.J.
No. 1806, at paragraph 63).
[16]
The
conditions for obtaining an order of mandamus were stated in Apotex
Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, and summarized as
follows at pages 766 et seq.:
1. There must be a public legal
duty to act . . .
2. The duty must be owed to the
applicant . . .
3. There is a clear right to
performance of that duty, in particular:
(a) the applicant has satisfied
all conditions precedent giving rise to the duty . . .
(b) there was (i) a prior demand for performance of
the duty; (ii) a reasonable time to comply with the demand unless refused
outright; and (iii) a subsequent refusal which can be either expressed or
implied, e.g. unreasonable delay . . .
4. Where the duty sought to be
enforced is discretionary, the following rules apply:
(a) in exercising a discretion, the decision-maker
must not act in a matter which can be characterized as “unfair”, “oppressive”
or demonstrate “flagrant impropriety” or “bad faith”;
(b) mandamus is unavailable if the
decision-maker’s discretion is characterized as being “unqualified”,
“absolute”, “permissive” or “unfettered” . . .
5. No other adequate remedy is
available to the applicant . . .
6. The order sought will be of
some practical value or effect . . .
7. The Court in the exercise of
its discretion finds no equitable bar to the relief sought . . .
8. On a “balance of convenience”
an order in the nature of mandamus should (or should not) issue.
[17]
The
Fédération argued
that it met each of these conditions for obtaining an order of mandamus.
First, it alleged that there was a legal duty to act of a public nature and
that this duty was owed to it. The public duty to act is set out in subsection
21(1) of the Regulations. An inspector designated by the Agency who has
detained maple products under section 23 of the Act has a duty to deliver or
mail the notice of detention or release of detention, as the case may be, to
the persons specified in subsection 21(1) of the Regulations. The Fédération
argued that it was one of the persons specified in that subsection.
[18]
The
respondents denied that the applicant was one of the persons clearly identified
by subsection 21(1), except for cases in which it is itself the holder of an
approval and the products seized were found in that establishment. The persons
specified in subsection 21(1) are the following:
(a) . . . the person having the care or custody of the maple product
or other thing at the place where it was seized;
(b) . . . the owner of the maple product or other thing that was
seized, or . . . the owner’s agent . . .
[19]
In its
written submissions, the Fédération reviewed the regulatory framework and
provincial case law to show that it was by implication, the producers’ agent.
The Fédération maintained that, as agent of the owner of the maple product
seized in the “ registered establishments”, it is entitled to the performance
of the legal duty mentioned in paragraph 21(1)(b) of the Regulations
regarding it.
[20]
I agree
that the Fédération is the producers’ agent. However, as the respondents
pointed out, paragraph 21(1)(b) of the Regulations indicates that
notices of detention shall be sent to the owner of the product or to its
agent. My view is that paragraph 21(1)(b) leaves the designated
inspector a choice of sending the notices in question to either of the persons
mentioned in that paragraph. In Apotex, supra, the Court of Appeal had
mentioned at page 767, when a mandamus order is sought in relation to a
discretionary power, special rules apply:
(a) in exercising a discretion,
the decision-maker must not act in a manner which can be characterized as
“unfair” “oppressive” or demonstrate “flagrant impropriety” or “bad faith”;
(b) mandamus is unavailable if the
decision-maker's discretion is characterized as being “unqualified”,
“absolute”, “permissive” or “unfettered”;
(c) in the exercise of a
“fettered” discretion, the decision-maker must act upon “relevant”, as opposed
to “irrelevant”, considerations;
(d) mandamus is unavailable to compel the
exercise of a “fettered discretion” in a particular way; and
(e) mandamus is only available when the
decision-maker's discretion is “spent”; i.e., the applicant has a vested right
to the performance of the duty.
[21]
The
inspectors designated by the Agency do not immediately have knowledge of the
often complex relations between the Fédération, producers and buyers. The
Agency accordingly has a discretion under paragraph 21(1)(b) of the
Regulations, and that discretion must not be exercised unfairly, in bad faith
or for irrelevant considerations. The applicant did not show the Court that the
respondent has acted in an unfair or oppressive way in exercising its
discretion. The Fédération sought to steer the respondent’s discretion in a
particular direction. The Fédération was trying to add to the Regulations and
did not establish that it had a clear right to detention and release notices
under paragraph 21(1)(b) of the Regulations.
[22]
The
Fédération considered that it should receive a copy of the detention notices
issued by inspectors and a copy of the release notices, because it met the
requirement of paragraph 21(1)(a) of the Regulations, in that, it was a
person having care or custody of the maple product at any place where it is
seized.
[23]
The
applicant added that the authorized purchasers are agents of the Fédération as
long as they have not paid the latter in full for the maple products they
received in their “registered establishments” in accordance with the terms of
clause 8.01 of the marketing agreement. It argued that the authorized purchasers
are in fact only temporary holders of the maple syrup seized and detained by
the inspectors designated by the Agency at the “registered establishments” and
do not have legal custody thereof. Therefore, only the Fédération has legal
custody of the maple product stored for it by the authorized purchasers in
their “ registered establishments” until the latter have made full payment to
the Fédération.
[24]
The
applicant argued that paragraph 21(1)(a) of the Regulations refers to
the concept of “care or custody” at the place where the product is seized, not
to [translation] “physical
custody”. It indicated that the Regulations should be interpreted in accordance
with the civil law in effect in the province of Quebec and construed
consistently with Quebec case law. By that interpretation, the applicant
suggested that the words “care or custody” in the Regulations involved a power
of controlling, directing and supervising the maple syrup received from
producers. As authorized purchasers have none of these powers, it is the
Fédération that has custody of the product until the buyer has paid in full.
[25]
The
applicant used the definition of “care or custody” in the civil liability
sense. It cited Baudoin’s text book as a basis for making a distinction between
the holder and the person having custody. A mere holder does not have custody
because he does not have actual control and direction of the product. The
applicant argued that the purchaser is only the holder of the product. I do not
agree with this analysis of the words “care and custody” suggested by the
applicant, because the situation at issue here does not arise in a civil
liability context.
[26]
In R.
v. Drakes (Q.C.A.), [1991]
Q.J. No. 1681, the Quebec Court of Appeal mentioned in relation to a definition
of “care and custody”:
In the Nova Scotia County Court
His Honour Judge Pottier said in R. v. Henley, [1963] 3 C.C.C. 360 at p.
366, in a case similar to this one:
The word “care” may also mean
custody, charge, safe keeping, preservation, oversight or attention. Where it
is used in this sense it becomes a relative term and is of broad comprehension.
One has to look at the provision of its use and determine its physical sense
from that standpoint.
[27]
The
respondents submitted that, in reading paragraph 21(1)(a), an element of
physical control of the maple product is clearly suggested. This is still more
apparent from reading the English version of the Regulations, which indicates
“the person having the care or custody of the maple product”. Further,
the respondents believed that authorized purchasers had a power of control,
direction and supervision of products received from producers. Authorized
purchasers are subject to legal requirements and duties set out, inter alia,
in the Regulations. For example, packing and shipping facilities must be
designed, built and maintained so as to avoid any conditions which might lead
to the contamination of products. Authorized purchasers also have a duty to
store products detained in conditions that will ensure they are preserved and
to make certain that products seized or detained, and their labels, are not
moved or altered.
[28]
Physical
custody is of great importance in the case at bar, since inspectors seized and
detained maple products for examination and control: obviously, therefore, it
is crucial that the person or persons with physical custody of the products
concerned by the seizure and detention order issued by the inspectors pursuant
to sections 21 and 23 of the Act and sections 21 and 23 of the Regulations be
fully aware of the consequences of these notices.
[29]
Accordingly,
my view is that the procedure followed by the inspectors in exercising their
discretion to deliver seizure and detention notices complied with the
provisions of the Act and of the Regulations.
(b) Are there other adequate remedies?
[30]
The
applicant argued that, apart from mandamus, there is no other way of
asserting its right to have the information requested. However, the respondents
submitted that the Fédération has other means to obtain information requested.
[31]
The
respondents stated that, under the Plan Conjoint, the Fédération may carry out
any inquiry necessary to the implementation of the Plan and may obtain from
producers any information thought necessary to the implementation of the Plan
and the Regulations. Section 20 of the Plan provides that a producer shall give
the Fédération any information considered necessary to the implementation of
the Plan or the Regulations.
[32]
Also, the
respondents stated that section 29 of the Act Respecting the Marketing of Agricultural,
Food and Fish Products, R.S.Q., c. M-35.1, authorizes the Régie des marchés
agricoles to take action against a producer who does not comply with a
provision of a plan or agreement. The applicant could thus apply to the Régie
for the information sought. Section 97 of the Act Respecting the
Marketing of Agricultural, Food and Fish Products gives the applicant a
regulatory power to determine the information and documents which a producer
must provide. In addition, sections 163 to 165 of the Act Respecting the
Marketing of Agricultural, Food and Fish Products authorize the Régie to
exercise coercive powers to compel the production of information on matters
covered by the Act.
[33]
It appears
from the comments submitted to the Court by counsel for the applicant that the
Fédération is experiencing some difficulties in obtaining copies of notices of
seizure or of notices of release of the said seizures from purchasers, that it
has itself authorized to purchase the products in question, and this threatens
the effective management of the Plan Conjoint.
[34]
It appears
clearly from sections 4, 5, 10, 11, 12 and in particular 13(b) that the
Fédération has full powers to investigate and obtain from producers any
information considered necessary for the implementation of the Plan and the
administration of the Regulations:
[translation]
13. The Fédération may:
. . .
(b) make any inquiry necessary
for the implementation of the Plan or the administration of a Regulation or
regarding the conditions for marketing the product in question, or to improve
the outlets for such products. It may obtain from producers any information
considered necessary for the implementation of the Plan and the administration
of the Regulations . . .
[35]
Section 20
of the Plan Conjoint, and in particular subsection (e), sets out the duties of
a producer: he is to provide the Fédération with any information necessary for
the implementation of the Plan or the administration of the Regulations:
[translation]
20. The producer shall:
(a) comply with the decisions and
Regulations made by the Fédération pursuant to the powers vested in it under
the Act and the Plan;
(b) observe any agreement concluded in
the course of the administration of the Act and the implementation of the Plan;
(c) pay the costs of administration of
the Regulations and the implementation of the Plan in accordance with the
amounts and terms specified under the Act and Plan;
(d) if applicable, pay his share of any
amount owed to any person whose intervention has been requested to market the
product in question and whose services are retained by the Fédération in
accordance with the terms established or negotiated by the Fédération or its
agent, and authorize any person hired by the Fédération to market the product
in question and receive the overall proceeds of a joint sale to deduct that
portion and deliver the same to any person designated by it;
(e) provide the Fédération with any
information considered necessary for implementing the Plan or regulations.
[36]
I
understand that the Fédération
has to obtain information on seizures in order to avoid paying producers for
quantities of maple products which may have been seized and possibly destroyed.
This question has more to do with the contractual relationship between the
producers, the authorized buyers and the Fédération, and does not concern the
Federal Court.
[37]
Sections
92 to 102.1 of the Act Respecting the Marketing of Agricultural, Food and
Fish Products set out the powers of marketing agencies. Subsection 92(2) of
that Act clearly states that an agency may, by a by-law, determine the
information and documents which the producers must supply to the board. Section
29 authorizes a reduction and even a suspension of the authorized quotas of
negligent or delinquent producers.
[38]
In
addition, under sections 163 and 164, the Régie des marchés agricoles et
alimentaires du Québec may conduct an investigation and require parties engaged
in production or marketing to provide information on their operations.
[39]
Appendix
A of the marketing agreement between the Fédération and purchasers of the
product concerned in the Plan Conjoint (Exhibit BP-3) was filed at the hearing:
it is an authorization request form which must be filed by potential purchasers
who wish to be authorized to purchase the products in question, here maple
products. Section 7 of this form is an undertaking by the buyer to provide [translation] “such additional
information as the Fédération may require for valid reasons”. May we not
conclude that the obtaining of information on seizures is a “valid reason”,
before concluding the sale of the products in question?
[40]
I
have no choice but to conclude that the Fédération still has a number of
unexplored avenues for obtaining what it is seeking by this application for mandamus.
[41]
The
arguments regarding the complexity of the process or tenuous nature of the
relations between the parties involved simply cannot withstand scrutiny.
[42]
Neither
the Canadian Food Inspection Agency, and even less the Federal Court, can make
up for the lack of cooperation between the various partners, the Fédération,
the producers and the authorized buyers, and the latter are legally subject to
mutual obligations under valid legislation and regulations.
[43]
In
the context of an application for judicial review, the Federal Court may
exercise a market regulation function to compel partners to comply with
contractual agreements, subject to a broad superintending power exercised by
other bodies, including the Régie des marchés agricoles alimentaires du Québec.
[44]
In
particular, the respondent has a supervisory role regarding the quality of
products marketed and must ensure that the specific requirements of federal
legislation are observed in full: its function does not extend to the fine
points of rules governing the relationship between parties operating in the
market.
[45]
As
the applicant is not covered by section 21 of the Regulations, except for cases
where it has itself become the holder of approval, and the products seized are
in that establishment, and as there are other means available for the applicant
to obtain the information sought, it does not meet the requirements of a mandamus.
There is no need to deal with the other conditions for obtaining an order of mandamus.
Further, the applicant has not proven the existence of any right, and
accordingly no declaratory judgment shall be rendered.
JUDGMENT
THE COURT ORDERS AND DECLARES
that:
1. The application for judicial
review is dismissed;
2. The respondents shall be
entitled to a single bill of costs.
“Pierre Blais”
Certified
true translation
François
Brunet, LLB, BCL
Email this Content