Cami International Poultry Inc. v. Canada (Attorney General), 2013 FC 583

 

 

Date: 20130531

Docket: T-2105-12

Citation: 2013 FC 583

Ottawa, Ontario, May 31, 2013

PRESENT:    THE CHIEF JUSTICE

 

 

BETWEEN:

	CAMI INTERNATIONAL POULTRY INC.
		Applicant
	and
	ATTORNEY GENERAL OF CANADA
		Respondent

 

           REASONS FOR ORDER AND ORDER

 

[1]               This Motion was brought by Chicken Farmers of Canada [CFC] for an order adding it as a party respondent or, in the alternative, granting it leave to intervene in the within application, with broad rights of participation.

[2]               In the within application, Cami International Poultry Inc. [Cami] seeks judicial review of a decision by the Minister of International Trade to refuse Cami’s application for a supplementary import permit to import into Canada live chicken to be processed and sold with their heads and feet attached. Chicken sold in this manner, and prepared according to traditional Chinese custom, is known as Hong Kong dressed chicken [HK Dressed Chicken].

[3]               For the reasons that follow, the alternative relief sought in this Motion will be granted, although with more restricted rights of participation than what CFC has sought.

 

1.         The Parties

[4]               Cami is an Ontario company that is a specialist chicken processor.  Its products include HK Dressed Chicken, which is sold to the Chinese community in Ontario.

[5]               The Minister is responsible for, among other things, determining whether to exercise his or her discretion to grant applications for supplementary import permits pursuant to section 8 of the Export and Import Permits Act, RSC, 1985, c E-19.

[6]               CFC is a statutory corporation established by a Proclamation by the Governor in Council in 1978, pursuant to what is now the Farm Products Agencies Act, RSC, 1985, c F-4, as contemplated by the 2001 Federal-Provincial Agreement for Chicken. CFC's members are appointed by the provincial chicken marketing boards in each of the ten provinces, as well as by downstream stakeholder organizations in the processing, further processing and restaurant/food services sectors.

[7]               CFC performs a number of functions relating to the marketing of chicken in interprovincial and export trade, including but not limited to establishing provincial quota allocations to match domestic supply with demand. As part of its mandate, CFC continually monitors data on chicken quota utilization and storage stocks, and analyzes market trends and chicken supply and disappearance, imports and exports, and pricing.

 

2.         Background  

[8]                On September 20, 2012, Cami submitted to the Department of Foreign Affairs and International Trade [DFAIT] an application for authorization for supplementary imports of live chicken to be processed and sold as HK Dressed Chicken. In that application, Cami indicated that it was not able to source such live chicken from seven identified suppliers in Canada. 

[9]               The following day, a representative of DFAIT wrote to Mr. Jimmy Lee, President Live Procurement at Cami, to inform him that his application had to be sent to CFC, for the purpose of surveying the domestic market to ascertain the availability of the requested product. The letter added that Cami would be informed of the results of this survey within three working days from the time the application was received by CFC. In addition, the letter noted that “pursuant to the sourcing provision of the domestic shortage policy, the sourcing results can include any commercially reasonable substitute product (e.g., eviscerated birds substitution for live bird) that can be used by the applicant to produce the identified end product (i.e., from a technical, quality, as well as economic point of view).”

[10]           On October 5, 2012, Cami resubmitted its application together with a cover letter which explained that the live chicken in question was being sought to supply HK Dressed Chicken to the Chinese community in Ontario. That letter further explained that the application was “only a temporary measure due to the newly implemented Central Canada allocation agreement which prevents Cami International from sourcing its previous live chickens of 600,000 kg from Quebec.” The letter added: “This interim solution is a last resort until a satisfactory solution can be negotiated between Cami, [Chicken Farmers of Ontario] and [the Association of Ontario Chicken Processors].”  As instructed in the aforementioned letter from DFAIT, Cami also sent a copy of its application to CFC.

[11]           On October 11, 2012, CFC responded with the sourcing list that included three potential suppliers of eviscerated chickens.

[12]           According to an affidavit sworn by Mr. Lee, Cami then contacted the three suppliers in question to inquire as to whether the chickens in question could be used for HK Dressed Chicken. It appears that one of the potential suppliers confirmed that it could not supply such chickens, and that no response was received from the other two suppliers.

[13]           Accordingly, a representative of Cami contacted the Minister's office to advise that Cami was not satisfied with the sourcing results because the suppliers identified by CFC could not supply chicken that could be processed and sold as HK Dressed Chicken.

[14]           In response, a representative of DFAIT sent an e-mail to Mr. Lee dated October 22, 2012. Among other things, it was noted in that e-mail that CFC initiated the sourcing process for the requested live chickens on October 5, 2012 and that the results, which reflected a willingness of three different sources to supply a total of 725,000 kg of whole eviscerated chickens, were sent to Cami on October 11, 2012. The e-mail proceeded to state the following:

As per the supplemental policy, Cami must contact each supplier identified within one working day to negotiate price and delivery with the suppliers.  The applicant is normally expected to purchase the sourced product up to the level of the requested quantity.  The applicant shall notify the CFC as soon as procurement from domestic sources has been completed. 

[15]           Based on the foregoing, the e-mail stated that DFAIT “considers that your request has been filled and the file on this is closed.” This is the decision [Decision] that is the subject of Cami’s application for judicial review.

[16]           Later that day, Mr. Lee responded to that e-mail stating, among other things, that whole eviscerated birds cannot be substituted for HK Dressed Chicken, and that CFC’s sourcing confirmed that there were no available chickens that could be processed and sold as HK Dressed Chicken.

[17]           The following day, the same representative of DFAIT replied. Among other things, he referred to a number of prior letters that DFAIT had sent to Cami expressing the view that “eviscerated birds are considered to be a commercially reasonable substitute for live birds.” In addition, he stated that “DFAIT does not consider that there is a nationwide market shortage of chicken in Canada.”

[18]           On November 8, 2012, Mr. Robert de Valk, General Manager of the Further Poultry Processors Association, made additional submissions to DFAIT on behalf of Cami. In reply, a representative of the Minister stated, among other things, that DFAIT’s response to Cami’s application “is consistent with the established policy pertaining to supplemental authorizations and is in-keeping with past precedent on the application of the policy.”

 

 

 

3.         The Supplemental Import Policy

[19]           DFAIT’s policy with respect to supplementary imports of chicken and chicken products is set forth in its Notice to Importers – Items 96 to 104: Chicken and Chicken Products - Supplementary Imports (Notice No. 793) [Guidelines].

[20]           Section 5.1 of the Guidelines stipulates that the Minister “may, at his discretion, authorize the importation of chicken and chicken products in excess of the import access quantity, particularly if he judges that the importation of these products is required to serve overall Canadian market needs.” The import access quantity in question is equal to approximately 7.5% of domestic chicken production in the previous year. This is also known as the tariff rate quota [TRQ] limit. The TRQ limit is distributed to holders of import quotas, to whom import permits are issued to enable chicken and chicken products to be imported at low “within access commitment rates” of duty.

[21]           Section 5.2 of the Guidelines states that applications for an authorization for supplementary imports should follow the applicable procedures set forth in the Guidelines.

[22]           Section 6 of the Guidelines set forth procedures to be followed when processing applications for authorization for supplementary imports due to market shortages.

[23]           Section 6.3.2 states that applications must be sent to CFC, with a copy to DFAIT.

[24]           Section 6.3.3 stipulates, among other things, that applicants “shall demonstrate that normal supply sources have been exhausted before applying for an authorization for supplementary imports.”

[25]           Section 6.5.3 adds that the sourcing results from CFC's survey “can include any commercially reasonable substitute product (e.g., eviscerated birds substitution for live bird) that can be used by the applicant produce the identified end product (i.e., from a technical, quality, as well as economic view point).”

[26]           Section 6.6.1 further adds that if an applicant is not satisfied with the sourcing results, the applicant may continue the application process using the form Application for Authorization for Supplementary Imports - Continuation of Application. It appears to be common ground between the parties that Cami did not continue its application in this manner before filing its application for judicial review of the Decision. This is a matter that may be raised in the within application.

 

4.         The relief sought by Cami in its Application for Judicial Review

[27]           In its Application for Judicial Review, Cami seeks an Order quashing the Decision and referring the matter back to the Minister for a redetermination in accordance with such directions as this Court may deem to be appropriate. In addition, Cami seeks an Order for costs of the within application and such further and other relief as this Court deems just.

 

5.         Relevant legislation

[28]           Rule 303(1) of the Federal Courts Rules, SOR/98-106 addresses the circumstances in which an applicant must name another party as a respondent. That Rule states as follows:

 

[29]           The authority of the Court to order that a person or entity be added as a party is set out in Rule 104(1)(b), which provides as follows:

 

 

[30]           With respect to motions for leave to intervene, Rule 109(2) states:

 

 

 

6.         Analysis

A.      CFC’s request to be added as a party

 

[31]           Pursuant to Rule 104(1)(b), this Court may add CFC as a party to these proceedings if one or both of the following conditions are met:

1.             CFC ought to have been joined as a party; or

2.             CFC’s presence before the Court is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined.

(i)   The first branch of Rule 104(1)(b)

[32]           During the hearing, CFC stated that it was relying primarily on this branch of Rule 104(1)(b). It submits that it will be directly affected, within the meaning of Rule 303(1), by the order being sought by Cami in the within application. In this regard, it makes the following assertions:

1.             the within application implicates the domestic market survey conducted by CFC in accordance with the whole bird substitution policy;

2.             unplanned imports pursuant to supplementary import permits directly impact CFCs ability to plan the level of production need to meet demand;

3.             import controls, including the regime in respect of supplementary imports, were established to support CFC’s supply management operations; and

4.             certainty with regard to imports is crucial to the stability of the domestic industry and the ability of chicken farmers represented by CFC to earn adequate returns.

[33]           I do not agree that CFC would be directly affected if this Court grants the relief sought by Cami in the within application.

[34]           If this Court grants such relief, the only direct consequence of its Order will be to (i) quash a decision which essentially refused to issue the requested supplementary import permit, and (ii) remit the matter back to the Minister for a redetermination in accordance with this Court’s directions. There will be no direct impact on CFC or its members, financially or otherwise; and they will not be bound by any of the relief that Cami has sought and that may be granted by the Court (Havana House Cigar & Tobacco Merchants Ltd v Jane Doe, [1998] FCJ No 411 (QL), at para 4; Early Recovered Resources v Gulf Log Salvage Co-operative Assn, [2003] FCJ No 716 (QL), at paras 6-7).

[35]           Unless and until the Minister decides to issue the requested permit, there can be no adverse impact upon the existing chicken supply management scheme administered by CFC in Canada, because Cami will not be authorized to import any additional chicken into Canada. Accordingly, the impact on CFC and its members of any decision that the Minister might make if the matter is referred back for a redetermination is speculative at this point in time.

[36]           The same is true with respect to the potential precedent that may be established and its impact on the whole bird substitution policy, if the Minister ultimately decides to grant a supplementary import permit to Cami – something which Mr. Michael Dungate, Executive Director of CFC, stated is his principal concern in this matter (Cross-Examination of Michael Dungate, January 30, 2013, at p 55).

[37]           Of course, if the requested supplementary import permit is granted, it will presumably be for dates different from those that were set forth in Cami’s initial application. (This issue does not appear to be the subject of dispute between the Parties in the within application.)

[38]           If and when the Minister issues the supplemental import permit that Cami has requested, it will be open for CFC or its members to seek judicial review of that decision in this Court, provided that they are able to demonstrate that they are “directly affected” by that decision, as contemplated by subsection 18.1(1) of the Federal Courts Act, RSC 1985, c F-7.

[39]           In the meantime, as recognized by the Mr. Dungate on cross-examination, CFC can convey to the Minister its views regarding the potential impact of such a decision on the chicken supply management scheme in Canada, and on producers, processors or others, through the Tariff Quota Advisory Committee [TQUAC] of which CFC is a member (Cross-Examination of Michael Dungate, January 30, 2013, at p. 43). In this latter regard, in the previously mentioned communication to Cami from the Minister’s office, dated November 8, 2012, the Minister’s representative stated as follows:

. . .  [W]e welcome the opportunity to point out that in making its decisions with respect to the application of the existing policy, the department considers the advice of the [TQUAC]. Parties can raise issues of concern with the [TQUAC], by seeking the placement of discussion items on the Committee's agenda. Items for discussion can be added to the agenda either by associations on behalf of their member companies or by the Department in response to issues raised by companies.

[40]           Given that CFC will not be directly affected by the decision, it cannot be said that it “ought to have been joined as a party,” within the meaning of Rule 104(1)(b), and as contemplated by Rule 301(1)(a).

(ii)   The second branch of Rule 104(1)(b)

[41]           The Court may Order that a person be added as a party where that person’s presence is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined by the Court.

[42]           CFC submits that its participation as a party in the within proceeding meets this test for several reasons. First, it states that Cami seeks to contest the results of the domestic market survey that CFC conducted in accordance with the Guidelines. Second, it asserts that its evidence will show that Cami’s evidence contains serious gaps and inconsistencies. Third, it maintains that its evidence will show that the level of supply of products such as HK Dressed Chicken is heavily influenced by the private business decisions of Canadian chicken processors, including Cami. Fourth, it submits that its participation will ensure that the Court has the benefit of a complete, accurate and balanced record on relevant matters, including particulars respecting the Canadian market for chicken and related marketing regulations that fall outside the purview and expertise of the Minister.

[43]           In my view, CFC’s participation in this proceeding is not necessary to ensure that any of these matters are appropriately addressed in the within proceeding, or to ensure that all matters in dispute in the proceeding may be effectually and completely determined by the Court. In this regard, counsel to the Attorney General conceded during the hearing of this Motion that “it is technically possible that [CFC] could participate in this proceeding through the Attorney General.” When pressed on this point during cross-examination, Mr. Dungate acknowledged that he was not aware of anything that would prevent CFC from providing affidavit evidence through the Attorney General (Cross-Examination of Michael Dungate, January 30, 2013, at pp 48-49).

[44]           In brief, I am not satisfied that the issues that have been raised in the within application cannot be effectually and completely decided unless CFC is added as a party (Air Canada v Thibodeau, 2012 FCA 14, at para 24 [Thibodeau]; Canada (Fisheries and Oceans) v Shubenacadie Indian Band, 2002 FCA 509, at para 8 [Shubenacadie]). The fact that CFC may have some relevant evidence to adduce on some of the issues that have been raised is not a sufficient basis upon which to conclude that its participation in these proceedings is necessary, in the sense contemplated by Rule 104(1)(b). The same is true with respect to CFC’s interest in a particular outcome of the within application, and with respect to its concern that the Attorney General may not advance the relevant arguments adequately (Thibodeau, above, at para 11; Shubenacadie, above).

[45]           I agree with Cami’s position that CFC’s role in the Minister’s exercise of discretion to issue specific supplementary import permits to import chickens into Canada is purely administrative, and is confined to conducting the market surveys described in the Guidelines. There does not appear to be any screening or analysis involved in this function. CFC merely conveys the results of its surveys to the Minister, without providing advice. Once it does so, it role in the process is complete.

[46]           I acknowledge that Cami’s Notice of Application and Mr. Lee’s affidavit refer to CFC. However, those references simply describe the role that CFC played in the process that led to the Decision, and are not directly related to the issues that have been raised in the within application. The facts at issue in the within application are distinguishable from those in Apotex Inc v Canada (Attorney General), [1994] FCJ No 879 (QL), at para 17. There, Merck & Co and its Canadian affiliate [collectively Merck] were added as parties because their rights in other proceedings would have been directly affected if certain of the remedies sought by Apotex were granted by the Court. In addition, certain passages in an affidavit filed on behalf of Apotex suggested bad faith on Merck’s part. As a matter of fairness, the Court concluded that Merck should have an opportunity to respond to those allegations. No similar or other allegations have been made against CFC in the within application.

[47]           The present situation is also distinguishable from the facts in Nu-Pharm Inc v Attorney General, 2001 FCT 973, at paras 20 and 24. There, Merck was added as a party because, as the owner of the patent and exclusive licenses for the drug enalapril, it was found to have a direct, pressing and legitimate interest in the proceedings, which directly related to that patent. In addition, the Court concluded that Merck’s presence was necessary to ensure that all matters in dispute in the within application could be effectually and completely determined. 

[48]           CFC also suggests that it ought to be added as a party because the determination of the within application will directly affect its and its members’ rights. For the reasons discussed above, the effect of the within application on the rights of CFC and its members are speculative at this point in time.

B.      CFC’s request to be granted intervener status

 

[49]           In the alternative to being granted full party status in the within proceedings, CFC requests that it be granted intervener status.

[50]           In determining whether to allow a motion to intervene, it is necessary to consider the following factors:

1.             Is the proposed intervener directly affected by the outcome?

2.             Does there exist a justiciable issue and a veritable public interest?

3.             Is there an apparent lack of any other reasonable or efficient means to submit the question of the Court?

4.             Is the position of the proposed intervener adequately defended by one of the parties to the case?

5.             Are the interests of justice better served by the intervention of the proposed third-party?

6.             Can the Court hear and decide the cause on its merits without the proposed intervener?

Boutique Jacob Inc v Paintainer Ltd, 2006 FCA 426, at para 19 [Boutique Jacob]; Canadian Union of Public Employees (Airline Division) v Canadian Airlines International Ltd, [2010] 1 FCR 226 at para 8, FCJ No 220 (QL).  

[51]           It is not necessary that all of the foregoing factors be met before a request to intervene may be granted (Boutique Jacob, above, at para 21).

[52]           As discussed above, CFC will not be directly affected by the outcome of the within application. In addition, there is no lack of other reasonable or efficient means to adduce the evidence that it proposes to submit. As previously noted, the Attorney General has conceded that “it is technically possible that [CFC] could participate in this proceeding through the Attorney General,” and Mr. Dungate has acknowledged that he was not aware of anything that would prevent CFC from providing affidavit evidence through the Attorney General. With this in mind, I am satisfied that the Court could hear and decide the within application on its merits without the participation of CFC as an intervener.

[53]           However, I am satisfied that there is a justiciable issue and a veritable public interest that could benefit from the participation of CFC in this proceeding. Given the nature of that public interest, namely, the availability of poultry products desired by Canadians, I am also satisfied that the interests of justice would be better served by granting CFC intervener’s status in this proceeding.  In addition, while I am satisfied that CFC’s position would likely be adequately represented by the Attorney General, I accept the Attorney General’s position that CFC’s participation in these proceedings would be helpful, at least with respect to certain issues that have been raised by Cami and are identified below.

[54]           Balancing the three factors that weigh against granting intervener’s status to CFC against the three factors that weigh in favour of granting such status to CFC, I consider it appropriate to exercise my discretion in favour of CFC, particularly given the public interest dimension of the within application. I am satisfied that the advantages of granting such status to CFC outweigh the disadvantages, including the potential delay and the increased costs to the parties that this might cause. In this regard, I note that CFC has represented that it will not delay or otherwise disrupt the proceeding, and that it is prepared to file and serve its affidavit evidence and its record in accordance with any timelines set by this Court.

[55]           I accept Cami’s position that CFC does not have any expertise with respect to the various issues that Cami has raised under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c 11 [Charter], or with respect to whether members of the Chinese community consider eviscerated chickens to be acceptable substitutes for HK Dressed Chicken. 

[56]           However, contrary to Cami’s vigorous submissions during the hearing of this motion, the issues that it has raised in this proceeding do not appear to be limited to those two issues. 

[57]           In its Notice of Application, Cami devotes less than two pages, at the very end of the document, to the Charter issues. At the outset of that section of the document, it states that, in exercising his discretion, the Minister is also bound to do so in a manner consistent with the Charter.

[58]           Earlier in the Notice of Application, Cami raises other issues, including with respect to whether eviscerated birds are a commercially reasonable substitute for live birds and whether “there is an unmet market in Ontario for a distinct product in a distinct market that will not compete with chicken processed for the mainstream commodity market.” In addition, Cami makes representations with respect to various procedures set forth in the Guidelines, the purpose of the supplementary import regime, and previous exercises of discretion by the Minister to issue a supplementary import permit. These are all matters that are also addressed in the affidavit of Robert de Valk, which was filed by Cami in this proceeding. Likewise, Mr. Lee states in his affidavit that “[t]here is presently a significant shortage of Hong Kong-dressed chickens in the marketplace, particularly during the times of Chinese festivals such as the Chinese New Year, the Winter Festival and the Moon Festival.” He adds: “If this shortage continues, there is a real risk that people will go underground to the farmers’ market and purchase live chickens to slaughter for themselves at home.”

[59]           I am satisfied that it would be in the interest of justice for CFC to be able to make representations directly to the Court with respect to these issues, and to cross-examine Messrs. de Valk and Lee on the statements referred to or quoted immediately above. In this regard, I note that CFC’s interest in these issues may not be entirely aligned with that of the Attorney General and I accept that CFC may be uniquely positioned to address at least some of those issues. However, given its absence of expertise with respect to the two issues identified at paragraph 55 above (Cross-examination of Michael Dungate, above, at pp 60-62), which Cami has stated are central to this proceeding, CFC will not have any rights to make representations, cross-examine affiants, or otherwise participate in respect of those issues.

 

7.         Conclusion

[60]           CFC does not meet either of the tests set forth in Rule 104(10(b) for being added as a party to the within application. Its request for an Order granting it such status will therefore be denied.

[61]           However, I am satisfied that it is appropriate to exercise my discretion in favour of granting CFC’s request, in the alternative, for intervener’s status in this proceeding. That said, CFC’s rights of participation will be more restricted than what it requested in its Notice of Motion.

[62]           Given that each of CFC and Cami were partially successful on this Motion, there will be no Order with respect to costs.

 

ORDER

 

THIS COURT ORDERS as follows:  

 

1.                Chicken Farmers of Canada [CFC] is hereby added as an intervener in this proceeding.

 

2.                CFC shall have the right to introduce affidavit evidence, cross-examine Cami’s affiants, participate in any pre-hearing motions and/or case conferences, and make oral and written submissions, solely with respect to the statements referred to or quoted in paragraph 58 of the attached Reasons for Order. For greater certainty, CFC shall not have any participation rights with respect to the issues that Cami has raised under the Charter or with respect to whether members of the Chinese community consider eviscerated chickens to be acceptable substitutes for HK Dressed Chicken.

 

3.                The schedule established in the Rules is amended as follows:

(a)              CFC shall be subject to the same deadlines applicable to the respondent in this proceeding;

(b)             The applicant shall comply with Rule 306 within 7 days of the date of this order;

 

(c)              The timelines proscribed by Rules 307 to 314 will then run from the date that the proof of service referred to in Rule 306 was filed with the Court.

 

 

"Paul S. Crampton"

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                         T-2105-12

 

STYLE OF CAUSE:                        CAMI INTERNATIONAL POULTRY INC. v

                                                            ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING:                  Ottawa, Ontario         

 

DATE OF HEARING:                    March 6, 2013

 

REASONS FOR ORDER

AND ORDER:                                  CRAMPTON CJ.

 

DATED:                                            May 31, 2013             

 

 

APPEARANCES:

 

 

Ronald Caza Alyssa Tomkins	FOR THE APPLICANT
David Cowie	FOR THE RESPONDENT
David K. Wilson Adam Huff	FOR THE MOVING PARTY

 

 

SOLICITORS OF RECORD:

 

 

Ronald Caza Ottawa, ON	FOR THE APPLICANT
William Pentney Deputy Attorney General of Canada	FOR THE RESPONDENT
David K. Wilson Adam Huff	FOR THE MOVING PARTY