Docket:
T-1477-10
Citation: 2014 FC 243
Toronto, Ontario, March 12, 2014
PRESENT: The Honourable Madam Justice Heneghan
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BETWEEN:
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CARGILL LIMITED, LOUIS DREYFUS CANADA LTD., PARRISH &
HEIMBECKER LIMITED, PATERSON GLOBALFOODS INC. RICHARDSON INTERNATIONAL
LIMITED, WEYBURN INLAND TERMINAL LTD., VITERRA INC., AND WESTERN GRAIN
ELEVATOR ASSOCIATION
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Applicants
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and
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THE ATTORNEY GENERAL OF CANADA AND THE CANADIAN GRAIN COMMISSION
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
I.
INTRODUCTION
[1]
Cargill Limited, Louis Dreyfus Canada Ltd.,
Parrish & Heimbecker Limited, Paterson Globalfoods Inc., Richardson
International Limited, Weyburn Inland Terminal Ltd., Viterra Inc., and Western
Grain Elevator Association (collectively the “Applicants”) bring this
application for judicial review to challenge an Order made by the Canada Grain
Commission (the “Commission”) on August 1st, 2010, that is, Order Number
2010-34 (the “Order”). The effect of that Order is to fix the maximum allowable
moisture shrinkage allowance elevator operators can calculate when drying
grain.
[2]
The Commission is represented in this proceeding
by the Attorney General of Canada (collectively the “Respondents”) pursuant to
Rule 303 of the Federal Court Rules , SOR 198-106 (the “Rules”).
[3]
The Applicants challenge the Order on the
grounds that it is ultra vires the regulation-making authority granted
to the Commission by the Canada Grain Act, R.S.C. 1985, c. G-10 (the
“Act”).
II.
PROCEDURAL HISTORY AND PRELIMINARY
PROCEDURAL ISSUES
[4]
This proceeding was commenced by a notice of application
filed on September 15, 2010. On February 11th, 2011, the Applicants
commenced an application for judicial review challenging section 30 of the Canada
Grain Regulations, C.R.C. c. 889 (the “Regulations”), in case number
T-239-11. The Applicants filed a motion on May 25th, 2011, seeking
to have the two applications for judicial review heard together or one
immediately after the other.
[5]
The order of Prothonotary Lafrenière, dated June
23rd, 2011, provided that there was an insufficient commonality of
issues to consolidate the applications for judicial review and dismissed the
motion. An appeal from that order was dismissed by Justice Bédard of the Federal
Court on September 19th, 2011. By judgment dated June 11, 2012,
Justice Noël of the Federal Court of Appeal allowed the appeal and ordered that
the within matter be heard directly before the hearing of case number T‑239-11.
[6]
At the commencement of the hearing of the within
matter on September 10, 2013, counsel for the Applicants brought an informal
motion, without notice to the Respondents or to the Court, that the hearing in
T-239-11 proceed first, contrary to the decision of the Federal Court of
Appeal.
[7]
Counsel for the Respondents objected to the
motion and following submissions from both parties, an Order was made that this
application would proceed first.
[8]
The Applicants brought another informal motion
at the commencement of the hearing, seeking to amend the notice of application
and to introduce new grounds of attack and new arguments. This step by the
Applicants was apparently in response to objections raised by the Respondents
in their Memorandum of Fact and Law filed as part of their Application Record.
[9]
In seeking to amend the notice of application, the
Applicants wanted to challenge the vires of subsection 38.1(1) of
the Regulations, as well as Commission Orders 2011-92 and 2012-97. These were
not included in the notice of application that was filed on September 15, 2010.
[10]
The Respondents argued that the Applicants were
improperly trying to expand the ambit of their notice of application through
their written arguments.
[11]
The Applicants did not file a formal notice of motion
nor did they seek leave to amend their notice of application prior to the
hearing.
[12]
The Respondents argued that the judicial review
process established by the Federal Courts Act, R.S.C. 1985, c.
F-7 and the Rules provides that only a single decision or enactment may be the subject
of an application for judicial review; see section 18.1 of the Federal
Courts Act and Rule 302 of the Rules.
[13]
Further, the Respondents submitted that of the
five issues raised in the memorandum of fact and law as to why Order 2010-34 is
ultra vires, three issues were raised for the first time in that
memorandum, that is arguments about unlawful sub-delegation pursuant to
subsection 38.1 of the Regulations, the unauthorized exemption power found in
the Order and the failure to comply with the Statutory Instruments Act,
R.S.C. 1985, c. S-22.
[14]
These three grounds were not set out in the
Notice of Application nor in the affidavits filed by the Applicants. Accordingly,
the Respondents did not address these issues in their responding affidavits,
and submitted that the arguments advanced by the Applicants are improperly before
the Court and should not be considered.
[15]
The Applicants argued that the jurisprudence
allows an amendment of pleadings at any time, relying on the decisions in Minister
of National Revenue v. Canderel Ltd. (1993), 157 N.R. 380 and Meyer v.
Canada (1985), 62 N.R. 70.
[16]
The motion was dismissed, principally on the
basis that it was untimely and without notice to the Court. The Respondents
received notice about a proposed amendment only by letter on Friday September 6th,
2013. The Applicants were on notice, upon receipt of the Respondents’
memorandum of fact and law, that the Respondents opposed any attempt to expand
the grounds for judicial review and any arguments related to proposed new
grounds. The Respondents’ application record was filed on November 21st,
2012.
[17]
If the Applicants had wanted to introduce new
grounds, they had the option either to bring a timely motion or file one or
more notices of application for judicial review, then seeking an order to have
all applications heard together. The lateness of the motion was the determining
factor for refusing the motion. In the exercise of my discretion, I dismissed
the Applicants’ motion to amend their notice of application.
[18]
As well, the Respondents objected to parts of
the affidavits of Ms. Carter and Mr. McKerchar, filed by the Applicants, that
they offended Rule 81 of the Rules because they contain material that is
outside the personal knowledge of the deponents and is hearsay and opinion
evidence that they are not qualified to give. Relying on the decision in P.S.
Partsource Inc. v. Canadian Tire Corp. (2001), 267 N.R. 135 at paragraphs
13 to 14, the Respondents submit that there is no common law exception to the prohibition
against hearsay evidence that would allow consideration of this evidence. In
particular, the Respondents objected to the inclusion by Ms. Carter and Mr.
McKerchar of certain articles that they did not write as exhibits to their affidavits.
The Respondents argued that the articles and summaries in the affidavits
are inadmissible hearsay evidence. Further, the opinions expressed in the
articles are inadmissible because they have not been submitted by a Court - approved
expert.
[19]
For these reasons, the Respondents argue that
paragraphs 17, 19, 25-29 and the last three sentences of paragraph 22,
as well as exhibits E, H, and I to O of Ms. Carter’s affidavit are inadmissible
and should not be considered. As well, paragraphs 8 and 9 and exhibits A and B
of Mr. McKerchar’s affidavit are similarly inadmissible and should not be
considered.
[20]
In the result, I agree with the submissions of
the Respondents about the impropriety of certain parts of the affidavits of Ms.
Carter and Mr. McKerchar.
[21]
Paragraphs 17, 19, 25-29, the last three
sentences of paragraph 22, and exhibits E, H, and I to O of the Carter
affidavit are impermissible hearsay evidence and will not be considered.
[22]
Likewise paragraphs 8 and 9 of the McKerchar
affidavit, together with exhibits A and B, are impermissible hearsay evidence
and have not been considered.
III.
BACKGROUND
[23]
The Applicants, Cargill Limited, Louis Dreyfus
Canada Ltd., Parrish & Heimbecker Limited, Paterson Globalfoods Inc.,
Richardson International Limited, Weyburn Inland Terminal Ltd., and Viterra
Inc., operate grain elevators throughout western Canada. The Applicant Western
Grain Elevator Association is an association whose members are the other Applicants.
[24]
The evidence in this matter consists of
affidavits filed on behalf of the Applicants and the Respondents, respectively,
including the exhibits attached to those affidavits. The Applicants filed the
affidavits of Mr. Wade Sobkowich, Ms. Brenda Carter and of Mr. James B.
McKerchar. Ms. Carter and Mr. McKerchar were cross-examined on their
affidavits and the transcripts of those cross-examinations are included as part
of the Respondents’ Application Record.
[25]
The Respondents filed the affidavits of Ms.
Catherine Jaworski and Mr. Blaine Timlick. These deponents were cross-examined
and the transcripts of those cross-examinations form part of the Applicants’
Application Record.
[26]
Mr. Sobkowich is the Executive Director of the
Western Grain Elevator Association. In his affidavit, he describes the
constitution of the Western Grain Elevator Association and its mandate. He also
describes the process, from the perspective of the Western Grain Elevator
Association, leading to the issuance of the Order at issue in this proceeding.
He refers to communications between the Western Grain Elevator Association and
the Commission relating to changes in the percentage used to calculate moisture
shrinkage and the Association’s opposition to those changes.
[27]
Ms. Carter is the Manager of the Grain Quality
Department of the Applicant, Cargill Limited. In her affidavit she provides an
overview of the grain industry in Canada and of the operations of Cargill
Limited. Her evidence relates to the drying of grain and the calculation of
moisture content. She addresses the negative effects the Order will have on
Cargill, that is due to the inherent unpredictability of the drying process and
margins of error in the accuracy of the necessary equipment and the timing of
the measurement of the moisture content of the grain. She attached as exhibits
to her affidavit a number of documents from the Commission and elsewhere
supporting her views, as well as a number of articles from academic journals
related to the study of moisture content rebound.
[28]
Mr. McKerchar is the General Superintendent of
the Applicant, Parrish and Heimbecker Limited. He is a professional agrologist.
He provides an overview of the grain industry in Canada and of the operation of
Parrish and Heimbecker. He largely endorses the evidence of Ms. Carter and Mr.
Sobkowich. He too describes the process of grain drying and the difficulties
that the Applicants will face in complying with the Order. He also describes
the process leading up to the issuance of the Order and the Applicant’s
opposition to it. He attached, as exhibits, certain documents relating to
moisture rebound in the drying process.
[29]
Ms. Jaworski is the Manager, Policy, Planning
and Produce Protection, with the Commission. In her affidavit she responds to
the evidence of Ms. Carter concerning the equipment used to measure moisture
content. Otherwise, she describes the regulatory regime governing the grain
industry in Canada, including the Commission’s role, particularly with respect
to the drying of grain and measurement of moisture content. She also described
the process, from the Commission’s perspective, leading up to the issuance of
the Order.
[30]
Mr. Timlick is the Program Manager, Infestation
Control and Sanitation, with the Commission. His affidavit addresses the
moisture content and drying of grain and shrinkage resulting from the drying
process.
[31]
The facts set out below are drawn from the
affidavits filed by the parties.
[32]
The moisture content of grain determines the
grade and quality of the grain. The Commission has established the maximum
allowable moisture content for each class of grain. The higher the moisture
content of the grain, the less valuable it is.
[33]
Pursuant to the Act, an elevator operator must
weigh grain received from a grain producer when it is delivered to them; see subsection
61(a) of the Act. The grain producers may request, upon delivery, that the
grain elevator dry the grain for them so that it may be assigned a higher grade
by the Commission and therefore increase in value. When grain is dried, it
loses moisture content and therefore loses weight. This decrease in the weight
of the grain is referred to as “moisture shrinkage”. This is not to be confused
with “comprehensive shrinkage”, which is the loss in weight of grain through
the handling of the grain.
[34]
Because the elevator operator is to forward the
same grade and quantity of grain to the terminal that is received from the
producer, when the grain producer requests the grain be dried, the elevator operator
must calculate the moisture shrinkage that will occur during drying. The
elevator operator then deducts this from the amount received from the grain
producer; this is known as a “moisture shrinkage allowance”. The anticipated
weight of the dried grain, and the grade that is to be achieved through drying,
is recorded on the receipt. The grain producer is paid according to the weight
recorded on the receipt.
[35]
The Commission conducts an official inspection
and weighing of the grain at the time it leaves the elevator for transfer to
the terminal or transfer elevator. The Commission also measures the moisture
content of the grain to determine its grade, and if it is above the maximum
moisture content of the grain described on the receipt, the elevator operator is
penalized and the grain is downgraded.
[36]
The process of drying grain is very difficult
and involves a variety of unpredictable variables. As such, it is difficult to
dry the grain to a precise moisture content. The current technology for
measuring moisture content is not absolutely precise. Further, when dried the
grain is subject to “moisture rebound”, which complicates the process of
measuring its moisture content. Moisture rebound occurs because when dried, the
moisture is removed from the outer layer of the grain kernels, but remains in
the inner core of the kernel. It takes about 24 hours for the moisture content
to spread throughout the kernel and reach what is known as equilibrium. As the equipment
measuring the moisture content of grain bases its reading on the moisture level
of the outside of the grain kernel, if measured too soon after drying, it will
give an inaccurate reading. This can cause problems for the elevator operator
down the road when the grain is sent to the terminal or transfer elevator and
measured by the Commission.
[37]
To allow for these variables, the Commission
allows elevator operators a margin of error of a certain percent when measuring
the moisture content of the grain and determining its grade. The Commission
also fixes a maximum moisture shrinkage allowance that may be made by elevator
operators when a grain producer requests that grain be dried. To do so, it has
prescribed a formula to be used to calculate moisture shrinkage, part of which
is the minimum moisture content, presented as a percentage that may be used.
The Commission had fixed this percentage as 1.1% below the moisture content
required for what is known as “tough grade” grain.
[38]
On July 20th, 2009 the Commission
issued a proposal to lower the percentage used to calculate the moisture shrinkage
allowance to 0.1% lower than the moisture content required for tough grade
grain. This would have the effect of lowering the maximum moisture shrinkage
allowance.
[39]
The Western Grain Elevator Association responded
to this proposal, objecting that the variance in moisture rebound and
unpredictability of the drying process made this proposal risky for their
members in that it could result in an increased chance of their grain being
downgraded when it leaves the elevator.
[40]
On February 8th, 2010 the Commission
advised the Western Grain Elevator Association that it would proceed with the
change in the percentage. It changed the percentage through the Order, which
was in effect from August 1st, 2010 until July 31st,
2011.
[41]
Identical orders continuing the lower percentage
were issued in the form of Order No. 2011-92, which was in effect from August 1st,
2011 until July 31st, 2012, and Order No. 2012-97, which was in
effect from August 1st, 2012 until July 31st, 2013. As
noted above, those orders are beyond the scope of this application and will not
be considered.
[42]
On September 15th, 2010 the Applicant
commenced this application challenging the vires of the Order and
seeking a stay of the Order pending determination of this judicial review,
declaratory relief, an order of certiorari quashing or setting aside the
order, and costs on a solicitor-client basis pursuant to the Rules. I note that
there is nothing in the record to show that the Applicants sought an interim
stay of the Order.
IV.
ISSUES
[43]
The within application raises two substantive
issues, as follow:
i)
Was the Order issued by the Commission without
statutory authority and consequently, ultra vires subsection 118(h) of
the Act?
ii)
If the Commission had the authority to make the
Order, did it act outside that authority such that the Order is ultra vires?
V.
SUBMISSIONS
A. The Applicants
[44]
The Applicants argue that the Commission purported
to make the Order pursuant to the general authority conferred by subsection
118(h) of the Act that allows the Commission to make orders constituting
directives to the trade.
[45]
They argue that subsection 118(h) does not
authorize the Commission to make the Order and the specific provisions of the
Act, requiring a regulation, apply over any general authority to make orders
constituting directives to the trade, relying in this regard on the decision in
North Coast Air Services Ltd.. et al. v. Canadian Transport Commission,
[1968] S.C.R. 940 at paragraphs 11-16 and 21-26.
[46]
Next the Applicants submit that if the
Commission was authorized to make the Order, in any event, the Order is ultra
vires because the Commission acted beyond its authority by failing
to ask itself the right question, failing to consider matters that it should
have taken into account and by imposing a requirement with which the elevator
operators cannot comply.
[47]
They submit that the Commission, as a statutory
body, must consider the correct issue and exercise due diligence to identify relevant
information for the proper discharge of its statutory duties. It cannot rely on
inaccurate, subjective or arbitrary considerations, relying on the decision in Montreal (City) v. Montreal Port Authority, [2010], 1 S.C.R. 427 at
paragraph 32-33 and 38.
[48]
The Applicants argue that when the Commission
issued the Order, it stated that there was no statistical or technical data to
support the requirements or the Order. According to the Applicants, this is
contrary to the Commission’s stated commitment to science-based grain quality
and quantity assurance systems.
[49]
Further, the Applicants submit that the
Commission failed to consider that the equipment it used to measure compliance
with the Order’s requirements cannot measure to within the percentage required
by the Order.
[50]
The Applicants argue that the Commission has no
authority under the Act to make an Order with which the elevator operators cannot
comply and which will cause significant economic consequences to primary
elevator operators who dry grain at the request of a producer. On these
grounds, the Applicants argue that the Order is ultra vires.
B.
The Respondents
[51]
The Respondents argue that the Order sets out
the formula to be used in calculating moisture shrinkage, how it is calculated
and the maximum shrinkage allowance to be used. They submit that the Order is
clearly a “directive”, directed to the grain trade, and is authorized by
subsection 118(h) of the Act.
[52]
The Respondents further argue that subsection
116(1) of the Act is permissive and does not specifically deal with the artificial
drying of grain or moisture shrinkage as found in the Order. Section 30 of the
Regulations was enacted pursuant to paragraph 116(1)(f) of the Act. Section 30 of
the Regulations relates to comprehensive shrinkage which is different from
moisture shrinkage, the subject of the Order.
[53]
The Respondents submit, relative to the second
issue raised, that the vires of subordinate legislation is not assessed
on the merits of the challenged legislation but upon the of scope of the
regulation-making authority found in the Act; see the decision in Mercier v.
Canada (Correctional Service), [2012] 1 F.C.R. 72 at paragraphs 75-76. The
Applicants are essentially challenging the merits of the Order and this is not properly
the subject of judicial review.
[54]
The Respondents submit that it is within the
realm of reasonable regulation to require, as the Order does, that the costs of
over-drying grain be borne by elevator operators, not grain producers. This is
the consistent with the Commission’s mandate to regulate grain handling in the
interests of producers.
[55]
The Respondents argue that the Applicants’
submissions, that the equipment used to measure the moisture content of grain cannot
provide a reading within the percentage required by the Order, show a
misunderstanding of the calibration of the equipment. The Respondents
submit that the margin referred to by the Applicants is not a margin of error,
but a calibration standard. Pursuant to the Weights and Measures Act,
R.S.C. 1985, c. W-6 and the regulations enacted pursuant to that statute, any
measurement device used in trade and commerce is subject to a calibration standard
and if it meets the standard, the measurement provided is definitive. The
measurement is not adjusted for the calibration of the scales involved and the
calibration standard does not reflect a margin of error. In the result, the
Respondents submit that the Order is valid and reasonable.
VI.
DISCUSSION AND DISPOSITION
[56]
The first matter to be addressed is the standard
of review. Since the application properly raises only a question of vires,
the applicable standard of review is that of correctness. In this regard I refer
to the decision in Canada (Wheat Board) v. Canada (Attorney General)
(F.C.A.), [2010] 3 F.C.R. 374 at paragraph 36 where the Federal Court of
Appeal said the following:
Turning
first to the vires issue, the Court must determine
on a standard of correctness whether the Direction Order was authorized by the
power delegated to the Governor in Council pursuant to subsection 18(1) of the
Act.
[57]
The question is whether the Order is authorized
by subsection 118(h) of the Act. The Order provides as follows:
August 1, 2010
Pursuant to
paragraph 118(h) of the Canada Grain Act, the Canadian Grain Commission
(the Commission) hereby makes the following order that provides instructions
related to section 38.1 of the Canada Grain Regulations.
1. The
moisture shrinkage allowed for tough, damp, moist or wet grain artificially
dried at the producer’s request at primary elevators is calculated as follows:
The difference between the percentage
of moisture content before drying and after drying is multiplied by one hundred
and the resulting figure is divided by the difference between one hundred and
the resulting figure is divided by the difference between one hundred and the
percentage of moisture content after drying.
i.e (% moisture before drying – %
moisture after drying) / (100% - % moisture after drying) x 100 = % moisture
shrinkage
2. Moisture
shrinkage arrived at in accordance with section 1 of this order shall be
calculated on the weight of the grain delivered (scale weight) and shall be
recorded by the elevator manager for review by the Commission.
3. In
the case of all grains artificially dried except as many be authorized by the
Commission, the minimum percentage of moisture content after drying that may be
used to calculate moisture shrinkage pursuant to section 1 of this order is
zero and one-tenth (0.1%) less than the minimum moisture content specified as
tough for that grain in Schedules I and II of the Off Grades of Grain and
Grades of Screenings Order.
This order shall expire on July 31,
2011, unless previously revoked by the Commission.
[58]
Subsection 118(h) of the Act provides as
follows:
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Orders of the Commission
118. The Commission may make orders
…
(h) constituting directives
to the trade
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Arrêtés de la Commission
118. La Commission peut, par arrêté :
…
h) formuler
des instructions relatives au commerce des grains
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[59]
As outlined above the Applicants argue that
“maximum shrinkage allowance” can only be set by regulation pursuant to
paragraph 116(1)(f) of the Act which provides as follows:
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Regulations
 116. (1) The Commission may, with the
approval of the Governor in Council, make regulations
…
(f) fixing the maximum shrinkage
allowance that may be made on the delivery of grain to an elevator
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Règlements
116. (1) Avec l’approbation du
gouverneur en conseil, la Commission peut, par règlement :
…
f) fixer
la marge maximale de perte de poids qui peut être calculée lors de la livraison
de grain à une installation
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[60]
The analytical framework for considering the vires
of subordinate legislation is set out in Canada (Wheat Board), supra
at paragraph 46, as follows:
The
first step in a vires analysis is to identify the
scope and purpose of the statutory authority pursuant to which the impugned
order was made. This requires that subsection 18(1) be considered in the
context of the Act read as a whole. The second step is to ask whether the grant
of statutory authority permits this particular delegated legislation.
[61]
Following this analytical approach, in my
opinion subsection 118(h) is the grant of statutory authority that allows the
Commission to issue orders constituting directives to the trade. The Order was
issued pursuant to that subsection.
[62]
The Act does not have a purpose section. However,
pursuant to section 13 of the Act, the objects of the Commission are to
“establish and maintain standards of quality for Canadian grain and regulate
grain handling in Canada”. Section 13 requires the objects of the Commission be
carried out in the interests of grain producers, not elevator operators.
[63]
Subsection 14(1) of the Act sets out a number of
functions of the Commission, including the establishment of grades of grain,
standards and procedures to regulate the handling, transportation and storage
of grain, together with the promotion of research relative to grain and grain
products, and otherwise oversee the grain trade in Canada.
[64]
Having regard to the power to issue orders under
subsection 118(h), as well as the objects and functions of the Commission pursuant
to sections 13 and 14 of the Act, it follows, in my view, that subsection
118(h) allows the Commission to issue orders that are directives to the trade,
for the purpose of maintaining standards of quality for Canadian grain and
regulating grain handling, storage and transportation. These powers are to be
exercised with regard to the interests of grain producers.
[65]
In my opinion, the challenged Order falls
squarely within the statutory authority outlined above. The Order is directive,
providing instructions as to how moisture shrinkage is to be calculated. It is
directed at the grain trade since it applies to grain producers and primary
elevators. The Order regulates the storage and handling of grain in the
interests of grain producers, in compliance with section 13 and subsection
14(1) of the Act, as noted above. The Order falls within the statutory
authority granted by subsection 118(h) and is not ultra vires.
[66]
The Applicants’ arguments that the Order
impermissibly does something that can only be done by regulation cannot succeed.
As the Respondents note, subsection 116(1) is permissive, not mandatory.
Paragraph 116(1)(f) provides that the Commission may make regulations with the
approval of the Governor in Council setting a maximum shrinkage allowance. At
the same time, there are no provisions in the Act prohibiting the
Commission from issuing an order pursuant to subsection 118(h) that has the
same effect, that is setting a maximum shrinkage allowance. Subsection
118(h) is the statutory authority for the challenged Order, and contrary to the
submissions of the Applicants, there is nothing in the Act preventing an order
from being issued that addresses the same subjects as those listed under
subsection 116(1).
[67]
As Justice Nadon for the Federal Court of Appeal
noted in Mercier, supra at paragraphs 63-70, a permissive power to make
regulations in relation to a particular subject does not necessarily preclude a
general power to issue orders or directives from being used to regulate similar
subjects. Overlap is permissible and in some cases, desirable.
[68]
Having regard to a large and liberal
interpretation of subsection 118(h) mandated by section 12 of the Interpretation
Act, R.S.C. 1985, c. I-21, Parliament granted the Commission broad powers
to issue orders constituting directives to the trade. In my opinion, the
Order was validly enacted pursuant to that statutory authority. There may be
some overlap between the subject matters addressed by subsection 116(1) and
section 118. The power to regulate maximum shrinkage allowances under paragraph
116(1)(f) does not preclude the Commission from issuing a directive to the
trade having the same effect when it is issued pursuant to valid statutory authority.
Any conflict between paragraph 116(1)(f) and subsection 118(h) is a matter for
Parliament to address and does not affect the vires of the challenged
Order.
[69]
I turn now to the second issue raised by the
Applicants, that is whether the Commission acted outside of its authority to
issue the Order. In this regard, the Applicants appear to question the science
and the policy behind the Order. In my opinion, this is a challenge to the
substantive merits of the Order. This argument must fail.
[70]
There is little scope for a reviewing Court to
comment on the choice of science relied upon by a regulatory authority; see Inverhuron
& District Ratepayers’ Association v. Canada (Minister of the Environment)
et al. (2001), 273 N.R. 62 at paragraph 48.
[71]
The jurisprudence is clear that it is not for
the Court to assess the merits of challenged subordinate legislation on
judicial review; see the decision in Jafari v. Canada (Minister of
Employment and Immigration) (1995), 180 N.R. 330 at paragraph 14. A
challenge to the vires of subordinate legislation involves only an
assessment of whether the challenged provisions fall within the
authority provided in the enabling statute. The wisdom of the Order is properly
a matter for the legislature and is not a question for this Court to decide.
VII.
CONCLUSION
[72]
In the result, the application for judicial
review is dismissed with costs to the Respondents.
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