Date: 20070731
Docket: T-1124-07
Citation: 2007 FC 807
Ottawa, Ontario, July 31,
2007
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
THE CANADIAN WHEAT BOARD
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] On June 7, 2007, by
Order in Council P.C. 2007-937, the Governor in Council made regulations amending
the Canadian Wheat Board Regulations, C.R.C. 1978, c. 397 (Regulations).
The amendment to section 9 (the new Regulation) of the Regulations coming into
force on August 1, 2007 will remove barley and barley products (barley) from
the “single desk” marketing authority of the Canadian Wheat Board (CWB).
[2] In Court file T-1124-07,
the CWB argues that the new Regulation is ultra vires the authority of
the Governor in Council and asks the Court to declare the new Regulation ultra
vires and of no force and effect.
[3] In Court file T-1105-07,
the Friends of the Canadian Wheat Board and others (the Friends) also challenge
the authority of the Governor in Council to make the new Regulation and
essentially ask for the same relief as the CWB.
[4] Prothonotary Aronovitch
ordered that the hearing of these two judicial reviews would be expedited and
heard at the same time. She also granted the Provinces of Alberta, Saskatchewan, and Manitoba intervenor status in
both files.
[5] The Provinces of
Manitoba and Saskatchewan support the Applicants
in both files and the Province
of Alberta
supports the position taken by the Respondent.
[6] As the judicial reviews
in the two Court files concern the same legal issues, the Applicants ask for
the same relief, and the intervenors take the same positions in both files,
these reasons will also apply to and will be filed as the Reasons for Judgment
in Court file T-1105-07.
Background
[7] The Canadian Wheat
Board is a corporation without share capital. It is not an agent of Her Majesty
the Queen nor is it a Crown Corporation. Pursuant to section 5 of the Canadian
Wheat Board Act, R.S.C. 1985, c. C-24 (Act), the CWB’s objective is the
“marketing in an orderly manner, in interprovincial and export trade, grain
grown in Canada.” Under Parts III and
IV of the Act, the CWB has the exclusive control over wheat produced in the
designated area. In subsection 2(3) of the Act, “designated area” is defined
as the area comprising the Provinces of Alberta, Saskatchewan, Manitoba, and that part of British Columbia known as the Peace
River District.
[8] When the first version
of the Act was enacted in 1935, the Act only applied to the marketing of wheat.
At that time the CWB did not have the exclusive control over wheat. Amendments
to the Act in 1947 gave the CWB the exclusive authority over the marketing of
wheat. The addition of section 29(A) to the Act in 1948 gave the Governor in
Council the authority to extend by regulation the application of either or both
of Parts III and IV to oats or barley. It read, in part:
29A (1) The Governor in
Council may by regulation extend the application of Part III or of Part IV or
of both Parts III and IV to oats or to barley or to both oats and barley.
(2) Where the Governor
in Council has extended the application of any Part of this Act under
subsection one, the provisions of the said Part shall be deemed to be
re-enacted in this Part, subject to the following:
(a) the words “oats”
and “barley”, as the case may be, shall be substituted for the word “wheat”;
(b) the expression “oat
products” or “barley products” as the case may be, shall be substituted for the
expression “wheat products”;
[9] Between 1949 and 1971,
the Governor in Council made regulations extending Parts III and IV of the Act
to oats and barley on an annual basis for each crop year.
[10] In 1971, Parts III and IV of the Act were
extended to oats and barley by an amendment to section 9 of the Regulations.
The extension to oats was removed in 1989. Since that time, section 9 of the
Regulations states that “Parts III and IV of the Act are hereby extended to
barley.”
[11] In addition to creating the new governance
structure for the CWB that exists today, the 1998 amendments to the Act added
section 47.1. It reads:
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47.1
The Minister shall not cause to be introduced in Parliament a bill that would
exclude any kind, type, class or grade of wheat or barley, or wheat or barley
produced in any area in Canada, from the provisions of Part IV, either in
whole or in part, or generally, or for any period, or that would extend the
application of Part III or Part IV or both Parts III and IV to any other
grain, unless
(a) the
Minister has consulted with the board about the exclusion or extension; and
(b) the
producers of the grain have voted in favour of the exclusion or extension,
the voting process having been determined by the Minister.
|
47.1
Il ne peut être déposé au Parlement, à l’initiative du ministre, aucun projet
de loi ayant pour effet, soit de soustraire quelque type, catégorie ou grade
de blé ou d’orge, ou le blé ou l’orge produit dans telle région du Canada, à
l’application de la partie IV, que ce soit totalement ou partiellement, de
façon générale ou pour une période déterminée, soit d’étendre l’application
des parties III et IV, ou de l’une d’elles, à un autre grain, à moins que les
conditions suivantes soient réunies :
a)
il a consulté le conseil au sujet de la mesure;
b)
les producteurs de ce grain ont voté — suivant les modalités fixées par le
ministre — en faveur de la mesure.
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[12] The 1998 amendments also repealed paragraph
46(b) of the Act. It read:
|
46.
The Governor in Council may make regulations
…
(b)
to excluded any kind of wheat, or any grade thereof, or wheat produced in any
area in Canada, from the provisions of this Part either in whole or in part,
or generally, or for any period;
|
46.
Le gouverneur en conseil peut, par règlement :
…
b)
soustraire tout type ou grade de blé, ou le blé produit dans une région
donnée du Canada, a l'application de la présente partie, totalement ou
partiellement, de façon générale, ou pour une période déterminée;
|
[13] As noted above, on June 7, 2007, the
Governor in council, pursuant to sections 46, 47 and 61 of the Act, amended the
Regulations by replacing the existing section 9 with the following:
Part III of the Act is extended to barley.
[14] With this amendment, Part IV will no longer
be extended to barley. As a result, although the Wheat Board will still be
entitled to market barley, barley will be removed from the CWB’s monopoly or,
as it is known, its “single desk” authority.
The
Respondent’s Submissions
[15] The Respondent
submits that the key regulation-making power is found in subsection 47(1) of
the Act. It authorizes the Governor in Council by regulation to extend the
application of certain parts of the Act to barley. It reads:
|
47(1)
The Governor in Council may, by regulation, extend the application of Part
III or of Part IV or of both Parts III and IV to oats or to barley or to both
oats and barley.
|
47(1) Le gouverneur en
conseil peut, par règlement, étendre l'application de la partie III ou de la
partie IV, ou des deux, à l'avoine et à l'orge, ou à l'un des deux.
|
[16] Subsection
47(1) read together with subsection 31(4) of the Interpretation Act,
R.S.C. 1985, c. I-21 provide the Governor in Council with the power to repeal
the extension of the Act to barley. Subsection 31(4) of the Interpretation
Act reads:
|
31(4)
Where a power is conferred to make regulations, the power shall be construed
as including a power, exercisable in the same manner and subject to the same
consent and conditions, if any, to repeal, amend or vary the regulations and
make others.
|
31(4)
Le pouvoir de prendre des règlements comporte celui de les modifier, abroger
ou remplacer, ou d’en prendre d’autres, les conditions d’exercice de ce
second pouvoir restant les mêmes que celles de l’exercice du premier.
|
[17] Further,
as provided in subsection 3(1) of the Interpretation Act, this statutory
presumption may only be displaced by a contrary intention that is clear and
unambiguous. Subsection 3(1) reads:
|
3(1)
Every provision of this Act applies, unless a contrary intention appears, to
every enactment, whether enacted before or after the commencement of this
Act.
|
3(1)
Sauf indication contraire, la présente loi s’applique à tous les textes,
indépendamment de leur date d’édiction.
|
[18] The Respondent
maintains that in this instance Parliament has not expressed a contrary
intention.
[19] The
Respondent also submits that this position is consistent with Justice
Rothstein’s consideration of the applicability of subsection 31(4) to the Act
in Saskatchewan Wheat Pool v. Canada (Attorney General), [1993] F.C.J.
No. 902 (F.C.T.D.) (QL). At paragraphs 35 and 36, Justice Rothstein stated:
35. In extending the application of Parts III
and IV of the Canadian Wheat Board Act to barley, the Governor in Council
is acting by regulation. I can see no reason why subsection 31(4) of the Interpretation
Act would not enable the Governor in Council, if he chose to do so, to
repeal the extension of Parts III and IV to barley.
36. At this point in time, section 9 of the Canadian
Wheat Board Regulations, C.R.C. 1978, c. 397, as amended, extends Part III
and IV of the Canadian Wheat Board Act to barley. The Governor in
Council has not acted to repeal this extension, but I see no reason why he
could not do so provided it was done in accordance with relevant provisions of
the Canadian Wheat Board Act and subsection 31(4) of the Interpretation
Act.
[20] Contrary
to the Applicants’ submissions, the Respondent argues that these statements by
Justice Rothstein are an integral part of the decision and are not obiter
dicta. The Respondent grounds this assertion of the following analysis.
[21] The issue
in Saskatchewan Wheat Pool was whether the Governor in Council could by
regulation deregulate the interprovincial marketing of barley and the export
and import of barley to or from the United
States. The regulations at
issue partially deregulated the single desk for barley. That is, barley
producers could sell their barley to buyers in the United States without going through the CWB.
[22] In his
decision, Justice Rothstein noted the similarity between the provisions of the
former section 29A and the statutory authority in section 47 of the Act
empowering the Governor in Council by regulation to extend the application of
Parts III and IV to oats and barley. At paragraph 22, Justice Rothstein
stated:
… Parliament thought it best to maintain
flexibility and leave it to the Governor in Council to act by regulation to
extend the Canadian Wheat Board’s exclusive authority over oats and barley.
[23] Following
a recital of the provisions of section 29A, he stated at paragraph 24:
24. Thus while it was left to the Governor in
Council, in his discretion, to extend or not extend Parts III and/or IV of the
Act to oats and/or barley, once they were extended, those Parts were deemed
re-enacted so as to apply to oats and/or barley. The effect of the words of
subsection 29A(2) was to apply Parts III and/or IV, only with the necessary
modifications to recognize that those Parts were applicable to oats and/or
barley. No other changes to Parts III and IV other than those
envisaged by section 29A were authorized. The Governor in Council was not
vested with the authority to amend Parts III and IV.
[24] The
Respondent maintains that the preceding quote is the crux of the decision. The
Governor in Council has a limited authority, namely, to extend the single desk
to barley in its entirety or to repeal that extension in its entirety. The
Governor in Council does not have the authority to alter any one aspect of the
single desk regime set out in Part IV of the Act.
[25] Following
a review of the history of the manner in which the Act was extended by
regulation to barley, Justice Rothstein states at paragraphs 30 to 33:
30. I refer to the annual making of regulations
because the applicants in this case argue that the Governor in council, in
acting under section 29A, now section 47, is, in effect, promulgating the
coming into force of legislation governing the Canadian Wheat Board’s authority
over barley and that once exercised, the power is spent. In other words, the
Governor in Council cannot revoke the extension of Parts III and IV once he has
extended them and that it is only Parliament that can revoke the Board’s
authority over barley.
31. The inference I draw from the annual
extensions of Parts III and IV to oats and barley is that the Governor in
Council could act by regulation to extend the Board's exclusive control over
the marketing of oats and barley in a crop year if he chose to do so; however,
if in any crop year the Governor in Council chose not to do so, the Board would
not have control over oats and barley for that crop year and would continue not
to have control until the Governor in Council decided to extend the application
of Parts III and IV at a later date.
32. This view is supported by the fact that
section 29A has been re-enacted as a continuing enabling provision as
section 47 of the Canadian Wheat Board Act, R.S.C. 1985, c. C-24, as
amended.
33. This leads me to the conclusion that the
extension of Parts III and IV to oats and barley is a regulatory action of the
Governor in Council. It is not analogous to the promulgation of a
statute and the regulatory power is not spent once it is acted upon by the
Governor in Council.
[26] Based on
the above, the Respondent says that the finding in paragraphs 35 and 36 is
integral to the decision since Justice Rothstein ultimately decided that the
challenged regulation was ultra vires as it partially deregulated barley
from the single desk, a power not given to the Governor in Council under
section 47 and 31(4).
[27] The
Respondent also points to paragraph 62 as another key aspect of the decision
where Justice Rothstein finds that while section 47 gives the Governor in Council
the power to extend Parts III and IV to barley, that is the extent of the
regulatory power conferred. Parts III and IV of the Act cannot be changed
because of the deemed re-enactment provisions.
[28] Finally,
the Respondent also refers the Court to paragraphs 66 and 67 of the decision.
They read:
66. I earlier indicated that it was my view that
section 47 of the Canadian Wheat Board Act and subsection 31(4) of the Interpretation
Act, confer on the Governor in Council the power to revoke the extension of
Parts III and IV of the Canadian Wheat Board Act to barley. I was
somewhat troubled by the proposition that the Act allowed the Governor in
Council to completely deregulate barley but not deregulate it in part as has
been attempted here. I have carefully reviewed section 47 to see if there was
a necessary implication that barley could be partially deregulated by the
Governor in Council. I cannot see how this can be the case. When Parts III
and IV of the Canadian Wheat Board Act are extended to barley, they are
deemed re-enacted. It is beyond the authority of the Governor in Council to
amend Parts III and IV, which is what is implied by partial deregulation.
67. I can only conclude that Parliament was
prepared to permit the Governor in Council only to decide whether or not the
interprovincial and export trade in barley should be subject to the same
regulatory regime set forth in the Act as was applicable to wheat. If the
Governor in Council decided upon the deregulatory approach, the Canadian Wheat
Board would not trade in barley and there would be no licencing system
applicable. There would be an open or free market in barley. However, if the
Governor in Council decided to regulate barley, it would involve the board
having exclusive control over the marketing of barley either by trading in the
commodity itself or by licencing others to do so. The Act does not contemplate
partial deregulation by the Governor in Council as was attempted by Order in
Council P.C. 1993-1399.
[29] The
Respondent acknowledges that the Saskatchewan Wheat Pool decision does
not end the debate. The question today is whether anything has transpired
since 1993 that alters or displaces the conclusion reached by Justice
Rothstein. The Respondent maintains that nothing has occurred that would
undermine the conclusion.
[30] The
Respondent submits that when the 1998 amendments were passed, Parliament must
be taken to have been aware of the presumption found in section 31(4) and the
outcome in the Saskatchewan Wheat Pool case. The Respondent also
submits that in 1998 it would have been open to Parliament to repeal the
regulation making power in section 47 or the presumption in subsection 31(4)
but it was not done.
[31] The
Respondent also takes the position that the Act contemplates two distinct
regimes for changing the scope of its application. First, pursuant to the
combined operation of section 47 and subsection 31(4) the Governor in Council
has the authority to extend or revoke the application of Part III or Part IV,
or both Parts III and IV, to oats or barley by regulation. Second, pursuant to
section 47.1, Parliament may extend or revoke the application of the Act to any
grain including wheat and barley. However, if a bill is introduced to alter
the application of Part IV to wheat or barley in any way, or to extend the
application of Parts III and IV, or both Parts III and IV to any other grain,
then section 47.1 requires that two conditions precedent be met.
[32] The
Respondent argues that the duality of regimes interpretation finds further
support in the fact that the new unproclaimed section 47 maintains the ability
of the Governor in Council to extend or repeal the extension of Parts III or
IV, or both Parts III and IV to barley. As well, subsection 47(5) requires conditions
parallel to those found in section 47.1 to be satisfied before the Minister
recommends making a regulation to the Governor in Council.
[33] Finally,
the Respondent characterizes the power under section 47.1 as being much broader
than the very limited power conferred on the Governor in Council by operation
of section 47 and subsection 31(4). Subject to certain conditions, it gives
the power to Parliament to include any grain, for example canola, in the single
desk of the CWB. Similarly, the powers to exclude in section 47.1 are much
broader than the limited power to exclude under section 47. In 47.1, the power
to exclude is not just to wheat and barley but any kind, type, class or grade
of wheat and barley produced anywhere in Canada. As Justice Rothstein stated
in Saskatchewan Wheat Pool, the Governor in Council’s power does not
permit it to partially deregulate by taking one type of barley out of the
single desk but not another or to take barley grown in Alberta out of the
single desk but not barley grown in the other two prairie provinces. These
powers are reserved to Parliament under section 47.1. In contrast, the powers
under section 47 are simply an “on” and an “off” switch, the Governor in
Council may extend the application of the Act to barley or may repeal the
extension of the Act to barley.
Analysis
[34] Before
turning to an analysis of the validity of the specific Regulation at issue in
the present case, it is worthwhile to review certain principles in relation to
subordinate legislation and statutory interpretation.
[35] It is
well established that those who are granted the power by Parliament to enact
subordinate legislation must exercise that power in accordance with the
enabling statute. As sated by Justice Estey in Canada (Attorney General) v. Inuit Tapirisat of
Canada, [1980] 2. S.C. R. 735:
… However, in my view the essence of the
principle of law here operating is simply that in the exercise of a statutory
power the Governor in Council, like any other person or group of persons, must
keep within the law as laid down by Parliament or the Legislature. Failure to
do so will call into action the supervising function of the superior court
whose responsibility is to enforce the law, that is to ensure that such actions
as may be authorized by statute shall be carried out in accordance with its
terms, or that a public authority shall not fail to respond to a duty assigned
to it by statute.
[36] In Bay
Travel Centre Ltd. v. Registrar of Travel Services et al. (1981), 126
D.L.R. (3d) 685, Chief Justice McLachlin, as a Judge of the British Columbia
County Court, abstracted the following principles from prior Supreme Court of
Canada jurisprudence. At paragraph 24 she states;
It is well-established that Regulations may
neither exceed nor be inconsistent with the statutory provisions under which
they are made. If they do, they constitute attempts to legislate by
adding to or amending the statute, and will be held to be ultra vires: Belanger
v. The King, (1916) 34 D.L.R. 221; 54 S.C.R. 265. The delegated
authority must be exercised strictly and in
accordance with the enabling statute; Regulations may neither enlarge nor
abridge the scope or substance of the delegated power: King v.
National Fish Co. Ltd. (1931) Ex. C.R. 75. The proper method of
construction is to read the enabling statute together with the Regulations, so
that any excess of power assumed by the body entrusted with the duty of making
the Regulations is revealed: King v. National Fish Co. Ltd., supra.
[37] In Waddell
v. Schreyer et al. (1983), 5 D.L.R. (4th) 254; Waddell v. Canada
(Governor in Council), [1983] B.C.J. No. 2017 at paras 28, 29 and 30,
Justice Lysyk made a number of observations that are helpful in this
analysis. He stated:
28. In determining the scope of a power or
discretion delegated by Parliament it may be necessary to look beyond the
literal terms of the particular delegating provision of the enactment to
ascertain limitations on that power or discretion which must have been intended
by Parliament. …
29. Rephrased in terms less charged than evasion
of an Act of Parliament, the underlying principle is familiar
enough. In determining whether impugned subordinate legislation has
been enacted in conformity with the terms of the parent statutory provision, it
is essential to ascertain the scope of the mandate conferred by Parliament,
having regard to the purpose(s) or objects(s) of the enactment as a
whole. The test of conformity with the Act is not satisfied merely
by showing that the delegate stayed within the literal (and often broad)
terminology of the enabling provision when making subordinate
legislation. The power-conferring language must be taken to be
qualified by the overriding requirement that the subordinate legislation accord
with the purposes and objects of the parent enactment read as a whole.
32. … the delegate may not frustrate or evade
the Act of Parliament or exercise his discretionary powers arbitrarily or
otherwise than in accordance with the purposes or objects of the enactment. The
delegate must not only stay within the literal terms of the delegating
provision but must respect, as well, restrictions upon his mandate that are
implicit in the legislative scheme considered in its entirety.
[38] It is
also well established that regulations passed pursuant to the authority of an
Act cannot operate as an amendment of that statute. As the Court of Appeal
stated in Bell Canada v. Challenge Communications Limited, [1979] 1 F.C.
857 at para. 14:
14. … Where there is a conflict between one of
the provisions of a statute and a regulation passed there under, the statute
itself is treated as supplying the governing consideration and the regulation
is treated as being subordinate to it. …
[39] As to the
principles of statutory interpretation, in NAV Canada v. Wilmington Trust
Co., [2006] 1 S.C.R. 865 (S.C.C.) at para. 36, the Supreme Court of Canada
reiterated the fundament principle of statutory interpretation, namely, that
“the words of an Act must be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act and the intention of Parliament.”
[40] With
these principles in mind, I will now turn to an analysis as to whether the new
Regulation is ultra vires.
[41] As reviewed earlier, the Respondent’s position that
the new Regulation is valid is grounded on the combined operation of section 47
of the Act and subsection 31(4) of the Interpretation Act, reliance on
the Saskatchewan Wheat Pool decision, and the absence of a contrary
intention that would displace the statutory presumption in subsection 3(1) of
the Interpretation Act.
[42] Turning
first to the Saskatchewan Wheat Pool case, for the purpose of this
analysis it is not necessary to decide whether paragraphs 35 and 36 of the
decision are obiter or the ratio of the case. Even if a
conclusion is reached that paragraphs 35 and 36 reflect the ratio of the
decision, the question still remains whether anything has transpired subsequent
to Justice Rothstein’s decision that would give rise to a different result
today.
[43] In
particular, the question is whether section 47.1 and the repeal of subsection
46(b) reflect a contrary intention of Parliament to the use of section 47 and
subsection 31(4) as the authority to repeal the Regulation extending the
application of Part IV of the Act to barley.
[44] The
Respondent argues that a contrary intention as contemplated is subsection 3(1)
must be clear and unambiguous. In my view, this is not a correct statement of
the law. In Bank of Montreal v. Gratton 1987, 45 D.L.R. (4th) 290 at p.
294, the British Columbia Court of Appeal in the context of considering the
same phrase in the provincial legislation held:
… The contrary intention need not be found in
express words, but may be inferred from the scheme of the enactment, its
legislative history and other circumstances which surround the use of the word
in question. Although the Interpretation Act does not use the words "the
context otherwise requires", the conclusion that a contrary intention
appears may be based on the fact that the context otherwise requires.
[45] The
first task in statutory interpretation is to discern the ordinary sense or
meaning of the relevant provision. In the present case, section 47 expressly
provides the Governor in Council with the authority to extend the application
of Parts III and IV or either of them to barley. Section 47 does not expressly
refer to the exclusion of barley or any grain. Section 47.1, however,
expressly provides that barley may be excluded from the application of the
Act. As well, in section 47.1, Parliament reserved to itself the power to
exclude barley provided that certain conditions were met. Within the Act
itself, there is no express delegated authority to the Governor in Council to
exclude barley. Read together in their ordinary sense, the power to include
barley is delegated to the Governor in Council, but the power to exclude is
reserved to Parliament.
[46] The
parties tendered a great deal of evidence surrounding the legislative history
comprising primarily of excerpts from Hansard. I have not found this evidence
to be particularly helpful in discerning Parliament’s intention at the time it
passed the 1998 amendments. In many instances, the specific amendment being
discussed could not be identified with any degree of certainty.
[47] In
contrast, the evolution of the legislation in terms of the express provisions
dealing with the inclusion and exclusion of grain is helpful. Prior to the
1998 amendments when section 47.1 was added to the Act, subsection 46(b) of the
Act specifically authorized the exclusion of wheat, and barley by virtue of the
re-enactment provision, by regulation without the need to rely on the Interpretation
Act. Subsection 46(b) was repealed at the same time section 47.1 was added
to the Act. The language of section 47.1 is similar to the language of the
repealed subsection 46(b) except for one key difference, subsection 46(b)
provided for exclusion by regulation and section 47.1 provides for exclusion by
Parliament. The simultaneous repeal of section 46(b) and the enactment of
section 47.1 supports the view that at the time of the amendments Parliament
intended to revoke the Governor in Council’s power under section 47 to exclude
barley and other grains from the application of Parts III and IV of the Act.
[48] The
Respondent argues, however, that the Governor in Council’s power to exclude
barley from the application of Parts III and IV under section 47 is not at odds
with the power reserved to Parliament under section 47.1. This argument is
premised on the Respondent’s assertion that Parliament intended and the Act
contemplates two distinct regimes for changing its application, a very narrow
regulatory power and a much broader statutory power. As such, the two powers
can co-exist harmoniously. I reject this argument. The Respondent
characterizes the very narrow power under section 47 as an “on” and an “off”
switch. While this may have been the case prior to the 1998 amendments, when section
47.1 is read with a view to ascertaining the scope of the provision in relation
to barley, one of the powers expressly reserved to Parliament is the exclusion
of barley from the application of the Act. This specific enactment takes
precedence over the power to exclude by regulation created by the operation of
section 47 and subsection 31(4).
[49] There
is also the matter of the new section 47 that was enacted in 1998 but not
proclaimed in force. The relevant provisions state:
47. (1) The Governor in
Council may, by regulation, on the recommendation of the Minister, extend the
application of Part III or of Part IV or of both Parts III and IV to barley.
(2) Where the Governor
in Council has extended the application of any Part under subsection (1), the
provisions of that Part shall be deemed to be re-enacted in this Part,
…
(5) The Minister shall
not make a recommendation referred to in subsection (1) unless
(a) the Minister has
consulted with the board about the extension; and
(b) the producers of
barley have voted in favour of the extension, the voting process having been
determined by the Minister.
[50] The
Respondent argues that the existence of this new section 47 goes against a
finding that section 47.1 reflects a contrary intention. In my opinion, even
if the new section 47 was in force, it would not materially alter the outcome
of these applications. The language of the existing section 47 only speaks of
extension. It contains no express language of exclusion. On its face, other than
adding the requirements of consultation with the Board and a vote by barley
producers, the new section 47 would do nothing more than continue to permit
Parts III and IV to be extended to barley by regulation. As with the existing
section 47, a regulatory power to exclude could only be grounded on the
combined operation of the new section 47 and subsection 31(4) of the Interpretation
Act.
[51] It
is also important to look at the purpose underlying the repeal of section 9 of
the Regulations. Section 9 of the Regulations was initially passed to include
barley in the application of Parts III and IV of the Act. Although on its
face, the new regulation simply extends the application of Part III to barley,
by repealing the former section 9 of the Regulations and replacing it with the
new section 9, in effect, the Governor in Council has excluded barley from the
CWB’s single desk authority. This power is expressly reserved to Parliament in
section 47.1.
[52] In
my opinion, in 1998, Parliament did not intend to create two alternative
regimes for the exclusion of barley from the Act. Instead, I conclude that the
1998 amendments were intended to create separate self-contained processes, one
to extend the Act to barley and one to exclude barley from the Act. The
inclusion of section 47.1 reflects a contrary intention by Parliament that
displaces the statutory presumption in subsection 31(4) of the Interpretation
Act.
Conclusion
[53] For
the above reasons, I conclude that the new Regulation is ultra vires and
of no force and effect.
JUDGMENT
THIS COURT ORDERS AND DECLARES
that:
1. The judicial
review is allowed with cost to the Applicant.
2. Section 9 of
the Canadian Wheat Board Regulations, C.R.C. 1978, c. 397 is ultra
vires and of no force and effect.
“Dolores
M. Hansen”
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