Date: 20071207
Docket: A-108-07
Citation: 2007 FCA
389
CORAM: RICHARD C.J.
DÉCARY
J.A.
NADON J.A.
BETWEEN:
TIMBERWEST
FOREST CORP.
Appellant
and
HER
MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
Heard at Ottawa, Ontario, on December
5, 2007.
Judgment delivered at Ottawa,
Ontario, on December
7, 2007.
REASONS FOR JUDGMENT BY: DÉCARY
J.A.
CONCURRED
IN BY: RICHARD
C.J.
NADON
J.A.
Date:
20071207
Docket: A-108-07
Citation: 2007 FCA 389
CORAM: RICHARD
C.J.
DÉCARY J.A.
NADON
J.A.
BETWEEN:
TIMBERWEST FOREST CORP.
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
This is an
appeal from a decision of O’Keefe J. of the Federal Court (2007 FC 148) whereby
he dismissed a challenge by the appellant of the validity of a Notice to
Exporters controlling the exports of logs harvested from some private lands in
British Columbia. The plaintiff was contending that the Notice to Exporters
Serial No. 102 (Notice 102) is not authorized by the Export and Import
Permits Act, R.S.C. 1985, c. E-19 (the Act) and moreover, is
unconstitutional as being an attempt by the federal government to regulate in
an area of provincial jurisdiction.
[2]
With
respect to the legality of Notice 102, I agree with O’Keefe J. that Notice 102
is a policy guideline which does not fetter the exercise of the Minister’s
discretion and as such is beyond the reach of the courts. I also agree with him
that in any event, the words “other needs” in subsection 3(e) of the Act
do not exclude the consideration by the Minister of provincial needs.
[3]
With
respect to the constitutionality of Notice 102, I also agree with O’Keefe J.
that it is not the role of the courts to determine the constitutionality of
policies. Furthermore, the appellant did not challenge the validity of any
provision of the Act nor of the list of goods established pursuant to that Act.
[4]
Neither
did the appellant challenge the validity of the Memorandum of Understanding
between the governments of Canada and British Columbia, dated March 30, 1998. In that Memorandum, the two
governments agreed to establish the Federal Timber Export Advisory Committee
for the purpose of providing recommendations to the Federal Minister for
International Trade “on exports of logs from lands outside the scope of British Columbia’s forestry legislation”. (see
Memorandum, Terms of Reference, A.1, A.B. p. 162)
[5]
Absent a
challenge to the Memorandum, and considering in addition that the Government of
British Columbia was not made a party to the proceedings, the Court is in no
position to determine whether it was constitutionally permissible for the
Government of British Columbia to allow the Government of Canada to fill the
gap in the export restrictions set out in Part 10 of the Forest Act,
R.S.B.C. 1996, c. 157.
[6]
The appeal
should be dismissed with costs.
“Robert
Décary”
“I
agree
J. Richard C.J.”
“I
agree
M. Nadon J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-108-07
STYLE OF CAUSE: TIMBERWEST
FOREST CORP. v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 5, 2007
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: RICHARD C.J.
NADON J.A.
DATED: December 7, 2007
APPEARANCES:
|
Mr. Geoff R. Hall
Mr. Orlando Silva
|
FOR THE APPELLANT
|
|
Mr. Robert
MacKinnon
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
McCarthy Tétrault LLP
Toronto, Ontario
|
FOR THE APPELLANT
|
|
John H. Sims
Deputy Attorney General of Canada
Ottawa, Ontario
|
FOR THE RESPONDENT
|
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