SUPREME
COURT OF CANADA
Citation: Fédération
des producteurs de volailles du Québec v. Pelland, [2005] 1
S.C.R. 292, 2005 SCC 20
|
Date: 20050421
Docket: 29805
|
Between:
André Pelland
Appellant
v.
Attorney
General of Quebec and Fédération des producteurs de volailles du Québec
Respondents
‑ and ‑
Attorney
General of Canada and Chicken Farmers of Canada
Interveners
Coram:
McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Abella JJ.
Reasons for
Judgment:
(paras. 1 to 63):
|
Abella J. (McLachlin C.J. and Major, Bastarache, Binnie,
LeBel and Deschamps JJ. concurring)
|
______________________________
Fédération des producteurs de volailles du Québec v. Pelland,
[2005] 1 S.C.R. 292, 2005 SCC 20
André Pelland Appellant
v.
Attorney General of Quebec and Fédération
des producteurs de volailles du Québec Respondents
and
Attorney General of Canada and
Chicken Farmers of Canada Interveners
Indexed as: Fédération des
producteurs de volailles du Québec v. Pelland
Neutral citation: 2005 SCC 20.
File No.: 29805.
2004: December 9; 2005: April 21.
Present: McLachlin C.J. and Major, Bastarache,
Binnie, LeBel, Deschamps and Abella JJ.
on appeal from the court of appeal for quebec
Constitutional law — Distribution of legislative
powers — Federal‑provincial chicken marketing scheme — Constitutionality
of provincial component of scheme — Whether provincial scheme applicable to
production of chicken intended for interprovincial market — An Act respecting
the marketing of agricultural, food and fish products, R.S.Q., c. M‑35.1
— R_glement sur la production et la mise en march_
du poulet, R.R.Q., c. M‑35.1, r. 13.2 — Plan conjoint des
producteurs de volailles du Qu_bec, R.R.Q., c. M‑35,
r. 126.
Constitutional law — Delegation of regulatory
powers — Referential incorporation of provincial legislation by federal
regulatory body — Federal‑provincial chicken marketing scheme — Federal
body, through Grant of Authority by Governor in Council, delegating its
regulatory power over interprovincial and export trade to provincial marketing
board and referentially incorporating provincial legislation — Whether
administrative delegation and referential incorporation constitutional —
Whether only Parliament can referentially incorporate provincial legislation.
The federal and provincial governments entered into a
scheme with respect to the production and marketing of chicken in Canada.
Under the scheme, the federal marketing agency set a global production quota
for each province and the provincial board agreed to authorize its producers to
globally produce and market no more chicken than the quantity fixed by the
federal body as that province’s share of the national marketing target. The
federal body, through a Grant of Authority by the Governor in Council,
delegated its authority to allocate and administer the federal quotas and
regulate the marketing of chicken in interprovincial and export trade to the
provincial body. A chicken producer in a province is thus allocated by the
provincial body a single quota applicable to all of his or her production and
marketing of chicken, regardless of an intention to market the product
intraprovincially, extraprovincially or both. In this case, the appellant, a
Quebec chicken producer, grossly exceeded his allotted quota. The bulk of this
production was exported to Ontario. The provincial board, in accordance with
the penalty provisions found in the provincial regulations, automatically
reduced his quota to zero and imposed a monetary penalty. The Superior Court
rejected the appellant’s argument that the Quebec law was unconstitutional on
the grounds that it affects interprovincial trade, and granted an interlocutory
injunction. The Court of Appeal upheld the decision.
Held: The
appeal should be dismissed.
The provincial legislative component of the federal‑provincial
chicken marketing scheme is constitutional and can operate to limit the
production of chicken destined exclusively for the interprovincial market. The
core character of the provincial legislative component does not relate to
setting quotas or fixing prices for exported goods or to attempting to regulate
interprovincial or export trade. Rather, its purpose is to establish rules
that allow for the organization of the production and marketing of chicken
within Quebec, and to control chicken production to fulfill provincial
commitments under a cooperative federal‑provincial agreement. Any impact
of this legislation on extraprovincial trade is incidental. Chicken producers
within the province who have received a quota from the provincial body are free
to market their products intraprovincially, extraprovincially (with a licence
from the federal body) or in some combination of the two, so long as they do
not exceed their individual quotas. The fact that the appellant’s quota was
reduced to zero had nothing to do with a provincial attempt to regulate
interprovincial or export trade, and everything to do with a flagrant disregard
for his production quota. [33-34] [37] [43-44]
The delegation of regulatory powers and the
referential incorporation of provincial legislation by the federal body under
the Grant of Authority were constitutional. The Grant of Authority, which
satisfies the wording and intent of the delegation of power provision of the
Farm Products Agencies Act , falls squarely within a well‑established
body of precedent upholding the validity of administrative delegation in aid of
cooperative federalism. When the federal legislation and regulations and the
Grant of Authority are considered together, it is clear that Parliament
intended at all times to retain its administrative control over the provincial
body through the federal marketing agency, and there is no indication that the
Grant of Authority attempted to expand provincial legislative authority.
Lastly, there is no basis in this case for elevating the claim that only
Parliament can referentially incorporate provincial legislation to the level of
a constitutional principle. [55] [57] [59]
Cases Cited
Applied: Reference
re Agricultural Products Marketing Act, [1978]
2 S.C.R. 1198; referred to: Kitkatla Band v.
British Columbia (Minister of Small Business, Tourism and Culture),
[2002] 2 S.C.R. 146, 2002 SCC 31; Carnation Co. v.
Quebec Agricultural Marketing Board, [1968] S.C.R. 238; Reference
re The Farm Products Marketing Act, [1957] S.C.R. 198; Attorney‑General
for Manitoba v. Manitoba Egg and Poultry Assn.,
[1971] S.C.R. 689; Canadian Industrial Gas & Oil Ltd. v.
Government of Saskatchewan, [1978] 2 S.C.R. 545; Central
Canada Potash Co. v. Government of Saskatchewan,
[1979] 1 S.C.R. 42; British Columbia (Milk Board) v. Grisnich,
[1995] 2 S.C.R. 895; P.E.I. Potato Marketing Board v. H. B. Willis
Inc., [1952] 2 S.C.R. 392; Coughlin v. Ontario Highway
Transport Board, [1968] S.C.R. 569; Attorney General of Nova Scotia
v. Attorney General of Canada, [1951] S.C.R. 31; Peralta v.
Ontario, [1988] 2 S.C.R. 1045.
Statutes and Regulations Cited
An Act respecting the marketing
of agricultural, food and fish products, R.S.Q.,
c. M‑35.1, s. 1, 45, 64, 93(2), (3), (4), (5), (6), 94.
Canadian Chicken Licensing
Regulations, SOR/81‑517.
Canadian Chicken Marketing
Agency Quota Grant of Administrative Authority,
P.C. 1991‑1090, ss. 2, 3, 4.
Canadian Chicken Marketing
Quota Regulations, 1990, SOR/90‑556,
ss. 2, 3, 4, 5(1), (3), 6, 7.
Chicken Farmers of Canada
Proclamation, SOR/79‑158, ss. 6(1), 9.
Constitution Act, 1867, ss. 91(2) , 92(10) , 92A .
Farm Products Agencies Act, R.S.C. 1985, c. F‑4, ss. 16(1) , 21 , 22 .
Federal‑Provincial
Agreement with respect to the establishment of a Comprehensive Chicken
Marketing Program in Canada (1978).
Plan conjoint des producteurs
de volailles du Québec, R.R.Q., c. M‑35,
r. 126.
Règlement sur la production et
la mise en marché du poulet, R.R.Q., c. M‑35.1,
r. 13.2, ss. 1, 53, 54, 90, 92.
Authors Cited
Hogg,
Peter W. Constitutional Law of Canada, vol. 1, loose‑leaf
ed. Scarborough, Ont.: Carswell, 1992.
APPEAL from a judgment of the Quebec Court of Appeal
(Fish, Rousseau‑Houle and Chamberland JJ.A.), [2003] Q.J.
No. 3331 (QL), affirming a decision of Crôteau J., [2001] Q.J.
No. 5828 (QL). Appeal dismissed.
Louis H. Lacroix, François Chevrette and Sébastien Locas,
for the appellant.
Pierre‑Christian Labeau, for the respondent the Attorney General of Quebec.
Pierre Brosseau
and Nancy Lemaire, for the respondent Fédération des producteurs de
volailles du Québec.
René LeBlanc, for
the intervener the Attorney General of Canada.
David K. Wilson and M. Lynn Starchuk, for the intervener the Chicken
Farmers of Canada.
The judgment of the Court was delivered by
1
Abella J. — Over 25 years
ago, this Court decided that a federal-provincial scheme with respect to the
production and marketing of eggs was constitutional. André Pelland, a Quebec
chicken farmer whose production is subject to a similar scheme, seeks a review
of the scheme’s constitutionality.
Background
2
In a landmark 1978 case which has come to be known as the “Egg
Reference” (Reference re Agricultural Products Marketing Act, [1978]
2 S.C.R. 1198), this Court unanimously affirmed the constitutional validity of
a national agricultural marketing scheme collaboratively crafted by Parliament
and the provinces in response to the Court’s evolving jurisprudence. The Egg
Reference has since become the blueprint for federal-provincial marketing
schemes.
3
After the release of the Egg Reference, the federal and provincial
governments entered into the 1978 Federal-Provincial Agreement with respect
to the establishment of a Comprehensive Chicken Marketing Program in Canada
(“Federal-Provincial Agreement”).
4
To ensure effective marketing and a dependable supply of chicken to
Canadian consumers, the Federal-Provincial Agreement was designed to weave
together the legislative jurisdiction of both levels of government in order to
ensure a seamless regulatory scheme. The integration of the federal and
provincial components of the scheme is achieved through s. 22(3) of the Farm
Products Agencies Act, R.S.C. 1985, c. F-4 . (The relevant provisions are
attached as appendices to these reasons.) Section 22(3) enables a federal
marketing agency to authorize a provincial body to perform any function
relating to interprovincial or export trade in the regulated product that the
federal agency is authorized to perform. Pursuant to the Canadian Chicken
Marketing Agency Quota Grant of Administrative Authority (“Grant of
Authority”), P.C. 1991‑1090, June 13, 1991, the federal marketing agency
delegated its authority to Quebec’s chicken marketing board, the Fédération des
producteurs de volailles du Québec (“Fédération”). The Grant of Authority
authorized the provincial body to allocate and administer federal quotas in
accordance with both the federal Canadian Chicken Marketing Quota
Regulations, 1990, SOR/90‑556, and such relevant rules as were in
force from time to time in the province.
5
Implementing its part of the terms of the Federal-Provincial Agreement,
and pursuant to what is now s. 16(1) of the Farm Products Agencies Act ,
the federal government created a federal chicken marketing agency, then known
as the Canadian Chicken Marketing Agency and now called the Chicken Farmers of
Canada (“CFC”). It was expressly empowered by s. 22(1) of the Farm Products
Agencies Act to implement a marketing plan and make such orders and
regulations, subject to the approval of the Governor in Council, as were
necessary for the execution of the plan.
6
The provincial component of the scheme in Quebec is the subject of the
constitutional challenge before us and is embodied in An Act respecting the
marketing of agricultural, food and fish products, R.S.Q., c. M-35.1, and
the Règlement sur la production et la mise en marché du poulet, R.R.Q.,
c. M‑35.1, r. 13.2. In 1971, the Plan conjoint des producteurs de
volailles du Québec, R.R.Q., c. M-35, r. 126 (“Plan”), was adopted pursuant
to what is now s. 45 of the provincial legislation. The Plan is administered by
the Fédération and governs all production and marketing of chicken within the
province of Quebec.
7
The function of the federal body is to assess the national market and
set a global production quota for each province. It assigns a marketing quota
to each province representing that province’s share of the national market.
8
Each provincial body then adopts as its intraprovincial production quota
the exact share federally assigned to it. It agrees to authorize its local
producers to globally produce and market no more chicken than the quantity
fixed by the federal body as that province’s share of the national marketing
target. To produce and market chickens in Quebec, a farmer must receive a quota
allocation from the Fédération and produce no more than his or her allocated
quota for a given period. A producer in a province receives a single quota
applicable to all of his or her production and marketing of chicken, regardless
of intended destination.
9
In order to facilitate the integration of production and marketing
quotas, the federal body delegates its authority to regulate the marketing of
chickens in interprovincial and export trade to the provincial body, in this
case the Fédération. Once producers obtain a production and marketing quota
from the Fédération, they are free to decide where their product will be sold.
Neither the federal nor the provincial body sets distinct intraprovincial or
extraprovincial marketing quotas.
10
In this way, the federal-provincial scheme combines in one body, the
Fédération, provincial jurisdiction over production and intraprovincial
marketing, and federal jurisdiction over extraprovincial marketing. The
federally and provincially assigned quotas dovetail so that the total quantity
of chicken produced in Canada does not exceed the agreed-upon national
marketing total.
11
Because Mr. Pelland produced 4,425,030 kg in excess of his allotted
quota for the relevant periods, the Fédération, in accordance with the penalty
provisions found in the provincial regulations, automatically reduced his quota
to zero and imposed a monetary penalty in the amount of $2,433,766.50. In
addition, it sought an interlocutory injunction.
12
Crôteau J. granted the injunction: [2001] Q.J. No. 5828 (QL). He found
that Mr. Pelland produced and sold about 29 times his quota, representing
almost 50 percent of the surplus produced in Quebec for the relevant periods.
13
In the Court of Appeal of Quebec, Rousseau-Houle J.A., writing for a unanimous
court (Fish and Chamberland JJ.A.), dismissed Mr. Pelland’s appeal on
the grounds that this Court’s decision in the Egg Reference was
determinative of the constitutional issue raised by the appellant: [2003] Q.J.
No. 3331 (QL).
14
After leave was granted in October 2003, McLachlin C.J. stated the
following constitutional questions:
1. Can An Act respecting the marketing of agricultural, food and
fish products, R.S.Q., c. M‑35.1, and the Règlement sur la
production et la mise en marché du poulet, R.R.Q., c. M‑35.1, r.
13.2, constitutionally apply ex proprio vigore to limit the production
of chickens destined exclusively to the interprovincial market?
2. If not, do An Act respecting the marketing of agricultural,
food and fish products, R.S.Q., c. M‑35.1, and the Règlement sur
la production et la mise en marché du poulet, R.R.Q., c. M‑35.1, r.
13.2, nonetheless apply to limit the production of chickens destined
exclusively to the interprovincial market by virtue of s. 22(3) of the Farm
Product Marketing Agencies Act, R.S.C. 1985, c. F‑4 , and the Canadian
Chicken Marketing Agency Quota Grant of Administrative Authority, P.C. 1991‑1090?
15
In my view, the 1978 Federal-Provincial Agreement, like the scheme in
the Egg Reference, both reflects and reifies Canadian federalism’s
constitutional creativity and cooperative flexibility. For the reasons that
follow, and based largely on a generation of constitutional jurisprudence from
this Court, I would dismiss the appeal.
Analysis
A. The Constitutional Validity of the
Provincial Production and Marketing Legislation
16
Mr. Pelland does not dispute that he grossly exceeded his allocated
quota. Rather, he challenges the interlocutory injunction obtained by the
Fédération on the grounds that the entirety of his produce is exported to
Ontario and not marketed in the province of Quebec. He argues that the
provincial marketing Act and regulations can only apply to the production of
chickens destined for Quebec markets, not those intended exclusively for
interprovincial markets.
17
Mr. Pelland does not base his argument on the pith and substance of the
provincial marketing Act and the provincial chicken regulation; instead, he
urges the Court to conclude that placing quota restrictions on products
destined for export is not a provincial matter. He does not challenge the
validity of the provincial scheme, but argues that it cannot apply to the
production of chicken destined solely for interprovincial markets. The scheme
he proposes as an alternative would be bifurcated: a federal quota for export
production and a provincial one for intraprovincial trade.
18
Mr. Pelland relies on Laskin C.J.’s statement in the Egg Reference
that the provincial law and regulations at issue there would not be valid if
they occurred “with a view to limiting interprovincial or export trade” (p.
1287). However, this comment was made in the context of considering whether
the law and regulations were in pith and substance a provincial matter.
Ultimately, as explained later in these reasons, Laskin C.J. found that
they were. This comment, therefore, does not support the proposition that
provincial laws found valid under a pith and substance analysis are
inapplicable to export trade.
19
Contrary to Mr. Pelland’s submissions, in my view the pith and substance
of the provincial marketing Act and the provincial chicken regulations are at
the heart of this appeal. In order to determine whether the provincial
component of the scheme is unconstitutional because it intrudes into a federal
head of power, it is necessary first to determine its core character.
20
The requisite approach was recently discussed by LeBel J. in Kitkatla
Band v. British Columbia (Minister of Small Business, Tourism and Culture),
[2002] 2 S.C.R. 146, 2002 SCC 31, at paras. 53-54, a case involving
provisions of the Heritage Conservation Act, R.S.B.C. 1996, c. 187:
A pith and substance analysis looks at both (1) the
purpose of the legislation as well as (2) its effect. First, to determine the
purpose of the legislation, the Court may look at both intrinsic evidence, such
as purpose clauses, or extrinsic evidence, such as Hansard or the minutes of
parliamentary committees.
Second, in looking at the effect of the legislation,
the Court may consider both its legal effect and its practical effect. In
other words, the Court looks to see, first, what effect flows directly from the
provisions of the statute itself; then, second, what “side” effects flow from
the application of the statute which are not direct effects of the provisions
of the statute itself: see R. v. Morgentaler, [1993] 3 S.C.R. 463, at
pp. 482‑83. Iacobucci J. provided some examples of how this would work in
Global Securities Corp. v. British Columbia (Securities Commission), [2000]
1 S.C.R. 494, 2000 SCC 21, at para. 23:
The effects of the legislation may also be relevant
to the validity of the legislation in so far as they reveal its pith and
substance. For example, in Saumur v. City of Quebec, [1953] 2 S.C.R.
299, the Court struck down a municipal by‑law that prohibited leafleting
because it had been applied so as to suppress the religious views of Jehovah’s
Witnesses. Similarly, in Attorney‑General for Alberta v. Attorney‑General
for Canada, [1939] A.C. 117, the Privy Council struck down a law imposing a
tax on banks because the effects of the tax were so severe that the true
purpose of the law could only be in relation to banking, not taxation. However,
merely incidental effects will not disturb the constitutionality of an
otherwise intra vires law. [Emphasis added.]
(See also P. W. Hogg, Constitutional Law of Canada (loose-leaf
ed.), vol. 1, at § 15.5(d))
21
The essential character of an analogous scheme was scrutinized in the Egg
Reference. Under the scheme at issue in that case, the Canadian Egg
Marketing Agency set overall quotas for each province. It was created as a
result of an agreement between the federal Minister of Agriculture, the federal
marketing agency, and their counterparts in all provinces. The goal was to
establish a comprehensive national egg marketing scheme. The federal Agency
was given authority to set overall provincial quotas and to impose levies or
charges on the marketing of eggs by egg producers, to be collected on its
behalf by the provincial egg marketing boards. In Ontario, the Ontario Farm
Products Marketing Board was the provincial board setting individual egg
production quotas for its producers based on the province’s assigned quota. The
Ontario legislation also prohibited egg production by anyone who did not have a
quota.
22
In the Egg Reference, this Court confirmed that the regulation of
agricultural production is essentially a local matter within provincial
jurisdiction pursuant to s. 92(10) of the Constitution Act, 1867 . The
Court reached the following relevant conclusions: although constitutional
jurisdiction over marketing is divided, agricultural production is prima
facie a local matter under provincial jurisdiction; the provincial scheme
was not aimed at controlling extraprovincial trade, but was deemed to be
coordinated and integrated with the regulations established under federal
authority; and, most pertinently, producers could not claim exemption from
provincial control over production by electing to devote their entire output to
extraprovincial trade.
23
Any effect of the provincial egg marketing and production scheme on
extraprovincial trade was found to be incidental to the constitutionally
permissible purpose of controlling agricultural production within the context
of a cooperative federal-provincial agreement.
24
While disagreeing about the exact scope of the relevant provincial head
of power, Pigeon J., for the five-person majority, and Laskin C.J., in a
minority concurring opinion, agreed that the provincial component of this
marketing scheme was constitutional because its purpose did not extend beyond
production and trade within the province. They also both accepted that if the
true purpose of the provincial legislation had been to regulate interprovincial
and export trade, it would have been ultra vires.
25
Pigeon J. held that because agricultural production is prima facie
within provincial jurisdiction, production quotas could be imposed by a
province on all its producers, regardless of the ultimate destination of the
goods produced. A producer could not evade a province’s jurisdictional
authority over production by producing goods destined for an export or
extraprovincial market:
No operator can claim exemption from provincial control by electing
to devote his entire output to extraprovincial trade. I can find no basis
for the view that there must be a division of authority at the stage of
production between what will be going into intraprovincial and what will be
going into extraprovincial trade. [Emphasis added; p. 1295.]
26
This is the conclusion Mr. Pelland seeks to set aside, primarily on the
basis of Laskin C.J.’s minority opinion expressing the concern that if the
focus of the provincial legislation had been the regulation of extraprovincial
interests, it would have been beyond the province’s jurisdiction. The
possibility that specifically caused Laskin C.J. to articulate a caveat to
Pigeon J.’s opinion was that of a province using its regulatory jurisdiction
over production to “choke off” interprovincial trade at its very source:
It is true that a Province cannot limit the export of goods from the
Province, and any provincial marketing legislation must yield to this. How
then, it may be asked, can it be allowed to accomplish this forbidden end by
choking off interprovincial trade at its very source, at the point of
production? [p. 1286]
27
Based on this analysis, Mr. Pelland submits that this Court ought to
reconsider the constitutionality of a marketing scheme like the one he is
regulated by, find the provincial component of the scheme to be
unconstitutional, and confine the jurisdiction of provincial marketing boards
to production for provincial marketing only.
28
It seems to me that the impugned legislation is constitutionally valid
whether the majority or minority opinion in the Egg Reference is
applied. Pigeon J. did not dispute that provincial legislation which is aimed
at regulating extraprovincial trade is ultra vires. He held only that
agricultural production is prima facie a provincial matter:
In my view, the control of production, whether agricultural or
industrial, is prima facie a local matter, a matter of provincial
jurisdiction. [p. 1293]
He qualified
this position, however, by stating:
This does not mean that such power is unlimited,
a province cannot control extraprovincial trade, as was held in the Manitoba
Egg Reference [[1971] S.C.R. 689] and in the Burns Foods case
[[1975] 1 S.C.R. 494]. However, “Marketing” does not include production and,
therefore, provincial control of production is prima facie valid. In the
instant case, the provincial regulation is not aimed at controlling the
extraprovincial trade. In so far as it affects this trade, it is only
complementary to the regulations established under federal authority. In my
view this is perfectly legitimate, otherwise it would mean that our
Constitution makes it impossible by federal-provincial cooperative action to
arrive at any practical scheme for the orderly and efficient production and
marketing of a commodity which all governments concerned agree requires
regulation in both intraprovincial and extraprovincial trade. [Emphasis added;
p. 1296.]
Laskin C.J.
was in substantial agreement with this analysis:
The primary object is to regulate marketing in intraprovincial trade. Although
it would not be a valid regulation of such marketing to impose quotas on
production with a view to limiting interprovincial or export trade, I am
not persuaded that I should give s. 21a, seen in the context of the Ontario
Farm Products Marketing Act of which it is part, that construction.
[Emphasis added; pp. 1286-87.]
29
With respect, I have difficulty seeing how Laskin C.J.’s reasons in the Egg
Reference assist Mr. Pelland or yield a fertile basis for reconsidering the
constitutionality of the provincial component of the scheme in this case. In a
passage of equal applicability to the present case, Laskin C.J. wrote that:
It is clear that the intention was to mesh federal
and provincial regulatory control so as to embrace both the producers who
market their production in a particular Province and those who seek to export their
production to another Province or beyond Canada. It was certainly open to the
federal authorities to fix the respective provincial shares of Canadian egg
production for the purpose of regulating the movement of eggs in
interprovincial or export trade. The share so fixed for a particular Province
would establish a limitation for that Province in respect of its own marketing
policies. Hence, the fact that a Province has adopted the same share
percentage does not per se rule out its connection with intraprovincial
trade. The adoption provides no more than a reference point by which to
measure the provincial approach to marketing quotas for producers in the
Province. I do not think that the use of this reference point amounts to an
invasion of federal authority in relation to interprovincial trade. Rather,
and the terms of the challenged Regulation so indicate, it is enacted under a
recognition of that authority and an appreciation of the control of that trade
under federal legislation. In short, it envisages that there will be
interprovincial and export marketing by producers in Ontario. [Emphasis
added; pp. 1282-83.]
30
As a substantive matter, neither judgment in the Egg Reference deviated
from this Court’s defining prior analysis in Carnation Co. v. Quebec
Agricultural Marketing Board, [1968] S.C.R. 238. In Carnation,
Martland J., writing for a unanimous Court, undertook a careful review of this
Court’s jurisprudence, including Reference re The Farm Products Marketing
Act, [1957] S.C.R. 198, and concluded that:
The view of the four judges in the Ontario
Reference was that the fact that a transaction took place wholly within a
province did not necessarily mean that it was thereby subject solely to
provincial control. The regulation of some such transactions relating to
products destined for interprovincial trade could constitute a regulation of
interprovincial trade and be beyond provincial control.
While I agree with the view of the four judges in
the Ontario Reference that a trade transaction, completed in a province,
is not necessarily, by that fact alone, subject only to provincial control, I
also hold the view that the fact that such a transaction incidentally has
some effect upon a company engaged in interprovincial trade does not
necessarily prevent its being subject to such control.
I agree with the view of Abbott J., in the Ontario
Reference, that each transaction and each regulation must be examined in
relation to its own facts. . . . They did not purport directly to control or
to restrict such trade. There was no evidence that, in fact, they did control or
restrict it. The most that can be said of them is that they had some effect
upon the cost of doing business in Quebec of a company engaged in
interprovincial trade, and that, by itself, is not sufficient to make them
invalid. [Emphasis added; pp. 253-54.]
31
This analysis underlies the concern expressed by Laskin C.J. in the Egg
Reference, and it arises whenever there is overlapping jurisdiction. Laws
enacted under the jurisdiction of one level of government often overflow into
or have incidental impact on the jurisdiction of the other governmental level.
That is why a reviewing court is required to focus on the core character of the
impugned legislation, as this Court did in Carnation; Attorney-General
for Manitoba v. Manitoba Egg and Poultry Assn., [1971] S.C.R. 689; the Egg
Reference; Canadian Industrial Gas & Oil Ltd. v. Government
of Saskatchewan, [1978] 2 S.C.R. 545; and Central Canada Potash Co.
v. Government of Saskatchewan, [1979] 1 S.C.R. 42.
32
Turning to an examination of the essence of the provincial component of
the 1978 federal-provincial chicken marketing scheme, one observes at the
outset that the scheme is functionally identical to Ontario’s egg marketing and
production legislation considered in the Egg Reference. Like that case,
the parties agree that the provisions of the Constitution Act, 1867
engaged by the federal-provincial chicken marketing scheme at issue here are s.
91(2) , which confers jurisdiction over trade and commerce to the federal
government, and s. 92(10) , which gives provincial governments jurisdiction
over local works and undertakings.
33
As previously indicated, once the national quota for chicken production
is divided among the provinces, a producer must be allotted an individual
production quota in order to produce chicken in the province. Chicken producers
within each province receive only one individual marketing and production
quota.
34
The provincial chicken regulation expresses quotas in square meters of
barn space, clearly tying quotas to physical production within Quebec.
The quota assigned to each producer in a province does not distinguish between
what can be marketed within the province and what can be marketed
extraprovincially; rather, the decision whether to market internally or
externally is up to each producer once he or she obtains the proper licences (Canadian
Chicken Licensing Regulations, SOR/81-517). Quebec’s chicken producers are
free to market their products intraprovincially, extraprovincially or in some
combination of the two, so long as they do not exceed their individual quotas.
35
The only requirements imposed on provincial producers wishing to export
their product are that they obtain a marketing and production quota from the
Fédération and a licence from the federal body. A producer may not engage in
the marketing of chicken in interprovincial or export trade without the
appropriate licence. The licensing requirement, however, is not onerous. On
receipt of a valid application, the federal body is required to issue a
licence. For its part, the producer is required to abide by the applicable laws
and to make regular reports detailing its extraprovincial sales. The amount of
chicken that a producer may export is not specified on the licence and is, in
theory, limited solely by the quota amount assigned by the Fédération.
36
It is important to stress that in examining the provincial laws at issue
in the Egg Reference, both Laskin C.J. and Pigeon J. agreed that they
were constitutional because they did not purport to, nor did they in fact,
directly control or restrict export trade. The same is true of the provincial
scheme in this case.
37
The core character of the provincial legislative component of the
federal-provincial chicken marketing scheme is not to set quotas or fix prices
for exported goods or to attempt to regulate interprovincial or export trade.
As in the Egg Reference, its purpose is to establish rules that allow
for the organization of the production and marketing of chicken within Quebec
and to control chicken production to fulfill provincial commitments under a
cooperative federal-provincial agreement. Any impact of this legislation on
extraprovincial trade is incidental.
38
With respect, I see no principled basis for disentangling what has
proven to be a successful federal-provincial merger. Because provincial
governments lack jurisdiction over extraprovincial trade in agricultural
products, Parliament authorized the creation of federal marketing boards and
the delegation to provincial marketing boards of regulatory jurisdiction over
interprovincial and export trade. Each level of government enacted laws and
regulations, based on their respective legislative competencies, to create a
unified and coherent regulatory scheme. The quota system is an attempt to
maintain an equilibrium between supply and demand and attenuate the inherent
instability of the markets. To achieve this balance, it cannot exempt
producers who seek to avoid production control limits by devoting all or any of
their production to extraprovincial trade.
39
Mr. Pelland also suggested that the Court consider the analysis in Central
Canada Potash as offering analagous guidance. With respect, however, that
case is not applicable. It turned on “the true nature and character” of the
operative provincial scheme (p. 75). In Central Canada Potash, in fact,
Laskin C.J. affirmed the decision of this Court in the Egg Reference. At
issue was the constitutional validity of provincial regulations in Saskatchewan
whereby each producer’s share of potash production was allocated based solely
on production capacity. It was common ground that at the time the regulations
were made, almost all Saskatchewan-produced potash was sold in interprovincial
and export trade. The case was decided before s. 92A was added to the Constitution
Act, 1867 , enlarging provincial powers over non-renewable natural
resources.
40
Laskin C.J. found that the purpose of the regulations was to regulate
the marketing of potash through the fixing of a minimum selling price
applicable to the permitted production quota. The only market for which the
scheme had any significance was the export market. Citing the Egg Reference,
he held that while it is true that production controls and conservation
measures with respect to natural resources in a province are ordinarily matters
within provincial authority, the situation may be different where a province
establishes a marketing scheme with price fixing as its central feature. He
found Saskatchewan’s legislation to be ultra vires because it took
direct aim at the production of potash destined for export and had the intended
effect of regulating the export price.
41
In Mr. Pelland’s case, however, quotas are not being imposed on
production with a view to limiting interprovincial trade, the hypothetical
situation left open by Laskin C.J.’s minority judgment in the Egg Reference.
Unlike Central Canada Potash, where the provincial scheme took direct aim
at production destined for export, or the Manitoba Egg and Poultry case
in which the provincial scheme was designed to restrict or limit the free flow
of trade between provinces, the cooperative scheme at issue in this case is
designed, like the scheme in the Egg Reference, to integrate federal and
provincial marketing and production programmes.
42
At best, Mr. Pelland might argue that his production was effectively
“choked off” by the reduction of his quota to zero through the penalty
provisions of the provincial legislation. It is true that in his case the
penalty provisions had this effect. But since the purpose of the provincial
legislation is not to strangle export production, and since Mr. Pelland
had been entitled, if he so chose, to export his entire quota of chickens, he
cannot argue that the limits on his production and marketing contradict the
purpose of the provincial legislation.
43
Mr. Pelland had his quota reduced not to control what he exported to
extraprovincial markets, but in proportionate and formulaic response to his
overproduction, regardless of the intended market. An individual producer like
Mr. Pelland receives a single production quota, regardless of marketing
destination. The fact that his quota was reduced to zero had nothing to do
with a provincial attempt to regulate interprovincial or export trade, and
everything to do with a flagrant disregard for his production quota.
44
Accordingly, the answer to the first constitutional question is
affirmative, namely, the provincial legislation is constitutional and can
operate to limit the production of chickens destined exclusively for the
interprovincial market.
B. Administrative Delegation and
Referential Incorporation
45
Mr. Pelland’s alternative argument is that the Grant of Authority in
this case was constitutionally improper.
46
In British Columbia (Milk Board) v. Grisnich, [1995] 2 S.C.R.
895, the Court held that a provincial administrative body does not need to
specify on the face of a decision the exact source of the authority to make it.
So long as a provincial marketing board is properly endowed with both federal
and provincial powers, the court will not look behind any given decision.
47
If, however, there is a deficiency in the federal-provincial scheme, the
court may scrutinize the impugned decision of the provincial board to determine
the authority under which it was made. The question then becomes whether the
decision is constitutionally sustainable given the legislative or administrative
defect.
48
I see no such defect in this case. The federal body, through the Grant
of Authority, properly delegated its regulatory power over interprovincial and
export trade to the Fédération.
49
Mr. Pelland concedes that a provincial marketing board may impose quota
restrictions on products destined for export if there is a proper federal
delegation of authority. It is his position, however, that the federal body,
the CFC, failed to properly delegate its regulatory authority to the
Fédération. He cites as the dispositive irregularity the referential
incorporation by the federal body of provincial rules under s. 4 of the Grant
of Authority which provides that, in allotting and administering federal
quotas, a provincial board shall, in accordance with the federal regulations,
apply such rules as are in force from time to time in the province in relation
to the allotment and administration of provincial quotas.
50
He contends that only Parliament can referentially incorporate the legislation
of a province and that Parliament must do so expressly. Unless so authorized, a
federal regulatory body may not referentially incorporate provincial laws when
delegating its powers to a provincial marketing board. Since s. 22(3) of the Farm
Products Agencies Act does not expressly provide for referential
incorporation, Mr. Pelland maintains that it was not open to the federal body
to referentially incorporate provincial laws under s. 4 of the Grant of
Authority. Section 22(3) states:
An agency may, with the approval of the Governor in Council, grant
authority to any body, authorized under the law of a province to exercise
powers of regulation in relation to the marketing locally within the province
of any regulated product in relation to which the agency may exercise its
powers, to perform on behalf of the agency any function relating to
interprovincial or export trade in the regulated product that the agency is
authorized to perform.
51
Both the intent and wording of this provision are satisfied by the Grant
of Authority: it was approved by the Governor in Council; the Fédération is a
“body, authorized under the law of a province to exercise powers of regulation
in relation to the marketing locally within the province of any regulated
product”; s. 3 of the Grant virtually mirrors the language of the statute
granting authority to the Fédération; and s. 4 of the Grant fulfills the
obligations of the federal body under s. 9 of the Chicken Farmers of Canada
Proclamation, SOR/79-158, to “prescribe the function that is to be
performed on behalf of [Chicken Farmers of Canada]” by the Fédération and other
provincial boards.
52
Moreover, a venerable chain of judicial precedent chokes off
Mr. Pelland’s argument. In P.E.I. Potato Marketing Board v. H. B.
Willis Inc., [1952] 2 S.C.R. 392, this Court affirmed the constitutionality
of an administrative inter-delegation from Parliament to a provincial
administrative body. Parliament, it held, has the authority to enable a
provincial body to exercise, with respect to a matter of federal jurisdiction,
the same powers as it exercises within provincial jurisdiction. It is the
validity of precisely such a delegation which was reaffirmed in the Egg
Reference. While provinces cannot use their jurisdiction over local
matters to regulate extraprovincial commerce, they may nonetheless use their
provincial powers to complement federal regulation in the area. As previously
noted, it was explicitly stated in the Egg Reference that no producer
can claim an exemption from provincial control by electing to devote the bulk
of his or her production to extraprovincial trade.
53
In Coughlin v. Ontario Highway Transport Board, [1968] S.C.R.
569, this Court held that Parliament may, acting within its legislative
competence, incorporate provincial legislation by reference. Writing for the
majority in a case concerning a federal referential incorporation of a
provincial law dealing with motor vehicle transport, Cartwright J. held: “In my
opinion there is here no delegation of law-making power, but rather the
adoption by Parliament, in the exercise of its exclusive power, of the
legislation of another body as it may from time to time exist” (p. 575).
Referential incorporation is thus designated to be a useful technique when
there is overlapping constitutional jurisdiction and it is necessary to
dovetail federal and provincial legislation.
54
In Coughlin, both administrative inter-delegation and referential
incorporation were deemed constitutional because neither violated the
constitutional bar on legislative inter-delegation. The prohibition against
legislative inter-delegation was set out by this Court in Attorney General
of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31, where it
held that one legislative body cannot enlarge the powers of another by
authorizing the latter to enact laws which would have no significance or
validity independent of the delegation.
55
Applying the principles governing administrative delegation to the
chicken marketing scheme, the federal body, the CFC, was free to referentially
incorporate provincial legislation under the Grant of Authority. The Grant of Authority
falls squarely within a well-established body of precedent upholding the
validity of administrative delegation in aid of cooperative federalism, such as
P.E.I. Potato Marketing Board, Coughlin, the Egg Reference
and Peralta v. Ontario, [1988] 2 S.C.R. 1045.
56
The Grant of Authority must be construed in the context of other
elements of the regulatory scheme. Section 6(1) of the Chicken Farmers of
Canada Proclamation states that the CFC shall establish a quota system
whereby quotas are allotted to producers in each province by the appropriate
provincial board. Both ss. 3 and 4 of the Grant of Authority clearly indicate
that the powers delegated to the Fédération are to be exercised subject to the
federal regulations, which themselves impose a number of substantive
constraints on the delegated power. They provide, for example, that a
provincial producer marketing chickens in interprovincial trade must have been
allotted a federal quota by the provincial board. The federal regulations also
provide that the number of kilograms marketed must be equal to or less than the
federal quota and that the producer must comply with the rules that the
Fédération is authorized to exercise in the name of the CFC.
57
When the federal legislation, regulations and the Grant of Authority are
considered together, it is clear that Parliament intended at all times to
retain its administrative control over the Fédération through the CFC. There
is no indication that the Grant of Authority attempted to expand provincial
legislative authority. The CFC can take back the powers it delegated at any
time. The federal chicken regulations in no way altered the nature of the
delegation of authority from the CFC to the Fédération, and there was no
impermissible legislative delegation by the Grant of Authority.
58
It is interesting to note that the argument raised by Mr. Pelland was
also raised in the Egg Reference, where it was argued that only
Parliament could incorporate provincial legislation by reference. For the
Governor in Council to do so, would be unconstitutional. Laskin C.J. discussed
administrative delegation and referential incorporation at some length,
concluding, in a passage concurred in by Pigeon J., that:
Involved in the appellants’ submissions, as reflected in their
factum and in oral argument, was the contention that there is a
constitutional requirement in the delegation of authority that standards be
fixed by Parliament or where, as here, there is delegation in depth, that is by
orders which the Governor‑in‑Council is authorized to make, the
orders of the Governor‑in‑Council should establish standards and
not, by wholesale redelegation, leave their determination to the provincial
boards nor, as s. 2(1) provides, adopt the various provincial standards
for federal purposes. I do not think this Court would be warranted in
imposing such a constitutional limitation on the delegation of authority. The
matter of delegation in depth is covered by the judgment of this Court in Reference
re Regulations (Chemicals) under the War Measures Act [[1943] S.C.R. 1],
and I would not limit its rationale to emergency legislation. There is
sufficient control on an administrative law basis through the principle
enunciated and applied by this Court in [Brant Dairy Co. v. Milk Commission
of Ontario, [1973] S.C.R. 131] (which arises for consideration under
question 2) and I find no ground for raising it to a constitutional
imperative. [Emphasis added; pp. 1225-26.]
59
The analysis remains apposite: there is no basis in the present appeal
for elevating the claim that only Parliament can referentially incorporate
provincial legislation to the level of a constitutional principle.
60
As envisaged by the 1978 Federal-Provincial Agreement, Parliament
intended that federal and provincial legislation create an interlocking scheme
for the effective regulation of chicken production and marketing. It was
clearly intended that the “federal quota” and the “provincial quota”, as
defined in the federal chicken regulations, be integrated. Parliament could
not have intended that the federal body establish 10 different sets of quota
administration rules subject to modification whenever provincial quota
administration rules were modified. And it is clear from s. 22(3) of the Farm
Products Agencies Act that Parliament intended that the CFC enact
regulations which would promote the integrity of the federal-provincial scheme.
The federal and provincial schemes were intended to dovetail.
61
In order to give effect to this legislative intent with respect to the
allocation and administration of quotas, the federal body could either have
re-enacted the relevant provincial legislation in each jurisdiction as its own,
or incorporated it by reference. That it chose to do so by referential
incorporation does not render the choice vulnerable to constitutional censure.
62
Mr. Pelland, during oral argument, abandoned his final submission that
the Grant of Authority was invalid because it was not properly published in the
Canada Gazette.
63
I would dismiss the appeal with costs to Fédération des producteurs de
volailles du Québec. No other party requested costs.
APPENDIX
A
Relevant
Federal Laws and Regulations
Farm
Products Agencies Act, R.S.C. 1985, c. F-4
16. (1) The Governor in Council may, by
proclamation, establish an agency with powers relating to any farm product or
farm products the marketing of which in interprovincial and export trade is not
regulated pursuant to the Canadian Wheat Board Act or the Canadian
Dairy Commission Act where the Governor in Council is satisfied that a
majority of the producers of the farm product or of each of the farm products
in Canada is in favour of the establishment of an agency.
21. The objects of an agency are
(a) to promote a strong, efficient and competitive production
and marketing industry for the regulated product or products in relation to
which it may exercise its powers; and
(b) to have due regard to the interests of producers and
consumers of the regulated product or products.
22. (1) Subject to the proclamation by which
it is established and to any subsequent proclamation altering its powers, an
agency may
. . .
(b) implement a marketing plan the terms of which are set out
in the proclamation establishing it or in any subsequent proclamation issued
under subsection 17(2) in respect of it;
. . .
(f) where it is empowered to implement a marketing plan, make
such orders and regulations as it considers necessary in connection therewith,
but all such orders and regulations shall, in the case of orders and
regulations that are of a class to which paragraph 7(1)(d) is made applicable,
be submitted to the Council before the making thereof, and in any other case,
be submitted to the Council either before or after the making thereof
. . .
. . .
(n) do all such other things as are necessary or incidental to
the exercise of any of its powers or the carrying out of any of its functions
under this Act.
(2) An agency may perform on behalf of a province
any function relating to intraprovincial trade in any regulated product in
relation to which it may exercise its powers that is specified in an agreement
entered into pursuant to section 31.
(3) An agency may, with the approval of the
Governor in Council, grant authority to any body, authorized under the law of a
province to exercise powers of regulation in relation to the marketing locally
within the province of any regulated product in relation to which the agency
may exercise its powers, to perform on behalf of the agency any function
relating to interprovincial or export trade in the regulated product that the
agency is authorized to perform.
Canadian
Chicken Marketing Quota Regulations, 1990, SOR/90-556
2. In these Regulations,
. . .
“Agency” means the Canadian Chicken Marketing
Agency;
. . .
“Commodity Board” means, in respect of the Province
of
. . .
(b) Quebec, the Fédération des producteurs de volailles du
Québec,
. . .
“federal quota” means the number of kilograms of
chicken, expressed in live weight, that a producer is entitled, pursuant to
these Regulations, to market in interprovincial and export trade during the
year referred to in Schedule I or the period referred to in Schedule II;
. . .
“producer” means a person who raises chicken for
processing or for sale to the public;
“provincial quota” means the number of kilograms of
chicken, expressed in live weight, that a producer is entitled, pursuant to
orders, regulations or policy directives made by the appropriate Commodity
Board, to market in intraprovincial trade during the year referred to in
Schedule I or the period referred to in Schedule II.
3. (1) Subject to subsection (2), these
Regulations apply to the marketing of chicken in interprovincial and export
trade.
(2) These Regulations do not apply to the marketing
of chicken under quota exemptions granted by a Commodity Board.
4. No producer shall market chicken in
interprovincial or export trade
(a) unless a federal quota has been allotted to the producer,
on behalf of the Agency, by the Commodity Board of the province in which the
producer’s chicken production facilities are located;
(b) in excess of the federal quota referred to in paragraph (a);
or
(c) contrary to any rule of the Commodity Board referred to in
paragraph (a) that the Commodity Board has been authorized by the
Agency, pursuant to subsection 22(3) of the Act, to apply in performing on
behalf of the Agency the function of allotting and administering federal
quotas.
5. (1) Subject to subsections (2) and (3), a
producer is not entitled to be allotted a federal quotas [sic] unless,
on August 25, 1990, the producer was entitled to a federal quota pursuant to
the Canadian Chicken Marketing Quota Regulations.
. . .
(3) On or after August 26, 1990, a producer is
entitled to be allotted a federal quota if, pursuant to the rules of the
Commodity Board of the province in which the producer’s chicken production
facilities are located, the producer is allotted a provincial quota.
6. The quantity of chicken that a producer is
authorized to market from a province under a federal quota for the year
referred to in Schedule I or the period referred to in Schedule II shall equal
the provincial quota allotted to the producer for that year or period by the
Commodity Board of the province minus the quantity of chicken marketed by that
producer in intraprovincial trade in that province during that year or period.
7. The Commodity Board of a province shall allot
federal quotas to producers in the province in such manner that the aggregate
number of kilograms of chicken produced in the province and
(a) authorized to be marketed by producers in interprovincial
or export trade under federal quotas allotted on behalf of the Agency by the
Commodity Board of the province,
(b) authorized to be marketed by producers in intraprovincial
trade under provincial quotas allotted by the Commodity Board of the province,
and
(c) anticipated to be marketed by producers under quota
exemptions granted by the Commodity Board of the province,
during the year referred to in Schedule I or the period referred to in
the Schedule II will not exceed the number of kilograms of chicken set out
in respect of that province for that year or period.
Canadian
Chicken Marketing Agency Quota Grant of Administrative Authority, P.C.
1991-1090, June 13, 1991
2. In this Grant of Authority,
“Agency” means the Canadian Chicken Marketing
Agency;
. . .
“Commodity Board” means, in respect of the Province
of
. . .
(b) Quebec, the Fédération des producteurs de volailles du Québec,
. . .
“federal quota” means the number of kilograms of
chicken, expressed in live weight, that a producer is entitled, pursuant to
these Regulations, to market in interprovincial and export trade during the
year referred to in Schedule I to the Regulations or the period referred to in
Schedule II to the Regulations;
. . .
“producer” means a person who raises chicken for
processing, for sale to the public or for use in products manufactured by the
producer;
“provincial quota” means the number of kilograms of
chicken, expressed in live weight, that a producer is entitled, pursuant to
orders, regulations or policy directives made by the appropriate Commodity
Board, to market in intraprovincial trade during the year referred to in
Schedule I to the Regulations or the period referred to in Schedule II to the
Regulations;
“Regulations” means the Canadian Chicken
Marketing Quota Regulations, 1990.
3. Subject to section 4, the Agency hereby grants
to the Commodity Board of each province authority to perform on behalf of the
Agency the function of allotting and administering, in accordance with the
Regulations, federal quotas in the province and, for the purpose of performing
that function, to exercise on behalf of the Agency all and any powers that the
agency would be entitled to exercise in the performance thereof.
4. In performing the function of allotting and
administering federal quotas pursuant to this Grant of Authority, a Commodity
Board of a province shall, in accordance with the Regulations, apply in
relation to the matters listed below such rules, if any, as are in force from
time to time in the province in relation to the allotment and administration of
provincial quotas:
(a) entitlement to a quota;
(b) the basis on which the amount of a quota is determined;
(c) an increase or decrease in a quota or an allotment of an
additional quota;
(d) the allotment of quotas to producers who have or have not
previously been allotted a quota;
(e) the period of time for which a quota is valid;
(f) maximum and minimum quota size;
(g) the determination of who is a producer including the producer’s
affiliates, partners, associates and subsidiaries;
(h) cancellation, suspension or variation of quotas for breach of the
rules relation to quotas or for non-payment of levies imposed by the Commodity
Board or the Agency;
(i) reduction or loss of a quota for failure to utilize the quota;
(j) ownership, leasing and transfer of quotas;
(k) quota banks;
(l) the definition of chicken production facilities and the
application and relationship of the definition to quotas;
(m) utilization of quotas;
(n) marketing arrangements with processors; and
(o) information and reports to be submitted by producers.
APPENDIX
B
Relevant
Provincial Laws and Regulations
An Act
respecting the marketing of agricultural, food and fish products, R.S.Q.,
c. M‑35.1
1. This Act establishes rules to allow orderly organization of
the production and marketing of agricultural and food products and the
marketing of fish products and of wild fur, whether or not such activities are
carried on for purposes of sale.
45. Ten or more interested producers may transmit to the Régie a
draft joint plan permitting the establishment of conditions for the production
and marketing of an agricultural product originating from a designated
territory or intended for a specified purpose or a particular buyer, and the
constitution of a producer marketing board to administer the plan.
64. The producer marketing board is established upon the coming
into force of a plan; it is responsible for administering the plan and may
exercise every power conferred by this Title, subject to any restriction or
condition set out in the plan or determined by the Régie.
93. A marketing board may, by by‑law, fix production and
marketing quotas for the product marketed under the plan it administers and,
for that purpose, subject production and marketing to the conditions,
restrictions and prohibitions it determines.
Without restricting the scope of the first
paragraph, a board may, by by‑law,
. . .
(2) require that every producer be the holder of an
individual quota allocated by the board and authorizing him to produce or
market the product marketed under the plan it administers, fix the minimum and
maximum quotas the producer may hold, individually or in association with other
persons, and determine the proportion of the quota each producer must produce
himself within his operation;
(3) determine the conditions governing the
allocation, maintenance or renewal of an individual quota, and the manner in
which it is issued;
(4) establish equivalences based on the area under
cultivation or operation or the number of animals reared or marketed, for the
purpose of fixing the quota of a producer;
(5) determine the manner and conditions applicable
to the temporary or permanent reduction of the quota of a producer who produces
or markets a larger or smaller quantity of the product marketed under the plan
than is permitted by his quota;
(6) impose on any producer who contravenes a by‑law
made under this section, a penalty based on the volume or value of the product
marketed or the area under cultivation or operation, and prescribe the use of
this penalty for particular purposes;
. . .
94. Where a marketing board makes a by‑law under section
93, no person may produce or market the product concerned unless he holds a
quota, except in the circumstances and on the conditions determined in the by‑law.
Règlement
sur la production et la mise en marché du poulet, R.R.Q., c. M-35.1,
r. 13.2
[translation]
1. Any person who produces and markets chicken covered by the
Plan conjoint des producteurs de volailles du Québec (R.R.Q., c. M‑35, r.
126) shall first be the holder of a quota granted by the Fédération des
producteurs de volailles du Québec in accordance with this regulation.
“Quota” (quota) means an authorization to
produce expressed in square metres that is confirmed by a certificate.
53. In every period, every producer shall breed a number of
chickens sufficient to meet his individual quota (contingent individuel)
and shall market the quantity in kilograms provided for in his individual
quota.
54. A producer’s individual quota (contingent individuel)
represents the maximum quantity of chicken, expressed in kilograms of body
weight, that he may produce and market in the course of a period based on his
quota (quota) and the percentage of use determined by the Fédération.
90. Any producer who, after the application of section 71,
produces or markets chicken in a quantity exceeding his individual quota in a
given period shall, during the sixth period following the one in which his
overproduction occurred, reduce his production and marketing by a quantity
equivalent to his overproduction.
92. Any producer who produces and markets chicken in a quantity
exceeding his individual quota as adjusted in accordance with the provisions of
Chapter IV shall, in addition to complying with the reduction imposed pursuant
to section 90, pay to the Fédération:
(1) $0.35 per kilogram of chicken in body weight
for any production up to 3% of his individual quota; and
(2) $0.55 per kilogram of chicken in body weight
for any portion of his production exceeding 3% of his individual quota.
Appeal dismissed with costs.
Solicitor for the appellant: Louis H. Lacroix,
Berthierville, Quebec.
Solicitor for the respondent the Attorney General of
Quebec: Attorney General of Quebec, Sainte‑Foy.
Solicitors for the respondent Fédération des producteurs de
volailles du Québec: Tremblay, Brosseau, Fleury, Savoie, Montréal.
Solicitor for the intervener the Attorney General of
Canada: Attorney General of Canada, Ottawa.
Solicitors for the intervener the Chicken Farmers of
Canada: Johnston & Buchan, Ottawa.