Alberta Turkey Producers v. Leth, 2006 ABQB 283

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 28, 2006
• Citations: 2006 ABQB 283;(2006), 399 A.R. 259 (QB)

Alta. Turkey Producers v. Leth (2006), 399 A.R. 259 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. MY.009

In The Matter Of the Marketing of Agricultural Products Act, R.S.A. 2000, c. M-4 and the Regulations passed thereunder.

Alberta Turkey Producers (plaintiff/respondent) v. Arnold Leth (defendant/applicant)

(0403 24082; 2006 ABQB 283)

Indexed As: Alberta Turkey Producers v. Leth

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

April 26, 2006.

Summary:

The Alberta Turkey Producers (ATP) applied for a declaration that Leth was not in compliance with the Marketing of Agricultural Products Act and its regulations where he was producing more than his allotted quota of turkeys.

The Alberta Court of Queen's Bench, in a decision reported at [2005] A.R. Uned. 115, allowed the application. A formal judgment had not yet been entered. Leth applied for leave to make further submissions raising constitutional issues before the finalization of the terms of the judgment. The ATP brought another application to stop Leth's turkey production as he had no available quota and was not observing the court's decision.

The Alberta Court of Queen's Bench dismissed Leth's application and allowed ATP's application.

Practice - Topic 6105

Judgments and orders - Amendment, rescission and variation of judgments and orders - Before judgment or order perfected or entered - The Alberta Turkey Producers obtained a declaration that Leth was not in compliance with the Marketing of Agricultural Products Act and its regulations where he was producing more than his allotted quota of turkeys - Before the formal judgment was entered, Leth applied for leave to make further submissions raising constitutional issues pursuant to rule 390 of the Rules of Court - The Alberta Court of Queen's Bench dismissed the application - The decision Leth sought to vary was not an interim order, nor was it one determining collateral or procedural matters during the progress of a cause - It was a final determination of the parties' rights on the merits - Accordingly, the decision was a judgment, not an order, and rule 390 was not applicable - See paragraphs 19 to 23.

Practice - Topic 6105

Judgments and orders - Amendment, rescission and variation of judgments and orders - Before judgment or order perfected or entered - The Alberta Turkey Producers obtained a declaration that Leth was not in compliance with the Marketing of Agricultural Products Act and its regulations where he was producing more than his allotted quota of turkeys - Before the formal judgment was entered, Leth applied for leave to make further submissions raising constitutional issues - The Alberta Court of Queen's Bench dismissed the application - The court had the power to re-open the judgment to admit new evidence or to hear further argument because a formal order had not yet been entered - However, finality in litigation was of fundamental importance - There was no suggestion that an error was made in the decision, that fraud or another unjust occurrence led to a miscarriage of justice, or that important facts had subsequently come to light - Leth could have challenged the constitutionality of the legislation and its regulations during the hearing of the application - His previous counsel elected not to do so, notwithstanding a similar challenge made by Leth in the past and comments made by his counsel during the application which indicated that the issue clearly had been contemplated - The decision was made on the merits of the application and no circumstances had been established to warrant its reconsideration - See paragraphs 24 to 32.

Statutes - Topic 2267

Interpretation - Presumptions and rules in aid - In favour of validity - The Alberta Turkey Producers (ATP) obtained a declaration that Leth was not in compliance with the Marketing of Agricultural Products Act (MAPA) and its regulations where he was producing more than his allotted quota of turkeys - Before the formal judgment was entered, Leth applied for leave to make further submissions raising constitutional issues - The ATP brought another application to stop Leth's turkey production as he had no available quota and was not observing the court's decision - At issue was whether the ATP could be granted relief in view of the Constitutional Question Notice that had been filed and Leth's intent on bringing a constitutional challenge in relation to the ATP's processes - The Alberta Court of Queen's Bench allowed ATP's application - Application of the presumption of constitutionality was appropriate - Leth could not be exempted from the legislation and its regulatory scheme while it continued to apply to other Alberta producers - Continued functioning of this system was necessary for turkey marketing in Alberta and the rest of Canada, until such time as it might be replaced with another legislated system - Accordingly, MAPA and its regulations were presumed to be constitutionally valid pending a court's finding to the contrary - Leth was subject to the current legislation and had complied with its requirements and with those of the ATP - See paragraphs 33 to 35.

Cases Noticed:

Leth Farms Ltd. et al. v. Alberta Turkey Growers Marketing Board et al. (2000), 255 A.R. 50; 220 W.A.C. 50; 2000 ABCA 32, refd to. [para. 5].

Olsen v. Groome et al. (2004), 365 A.R. 188; 2004 ABQB 923, refd to. [para. 21].

Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara et al. (2003), 334 A.R. 329; 2003 ABQB 168, refd to. [para. 21].

Canadian Imperial Bank of Commerce v. Bury et al. (1979), 103 D.L.R.(3d) 560 (Alta. Q.B.), refd to. [para. 22].

P.M.M. v. R.W.M. (2000), 279 A.R. 119; 2000 ABQB 846, refd to. [para. 23].

Bank of Nova Scotia v. Wojnar (1980), 34 A.R. 149 (Q.B. Master), refd to. [para. 23].

Stevenson v. Dandy, [1918] 3 W.W.R. 662 (Alta. C.A.), refd to. [para. 24].

369413 Alberta Ltd. v. Pocklington, [1999] A.R. Uned. 583; 79 Alta. L.R.(3d) 222 (Q.B.), revd. in part [2005] A.R. Uned. 582; 2005 ABCA 376, refd to. [para. 24].

Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.), refd to. [para. 24].

Kay v. Wirstiuk, [1978] 1 W.W.R. 317; 8 A.R. 405 (T.D.), refd to. [para. 24].

Pro-Express Ltd. v. Thew et al. (1996), 185 A.R. 285 (Q.B.), refd to. [para. 24].

Dell Chemical & Marketing Ltd. v. Aquasol International Inc., 2000 ABQB 930, refd to. [para. 24].

Begro Construction Ltd. v. St. Mary River Irrigation District et al. (1994), 167 A.R. 164 (Q.B.), refd to. [para. 25].

Insurance Corp. of British Columbia v. Dommasch (1978), 93 D.L.R.(3d) 294; 8 B.C.L.R. 241 (S.C.), refd to. [para. 25].

Sales v. Calgary Stock Exchange, [1931] 3 W.W.R. 392 (Alta. T.D.), refd to. [para. 25].

Sykes v. Sykes (1995), 58 B.C.A.C. 294; 96 W.A.C. 294; 13 R.F.L.(4th) 273 (C.A.), refd to. [para. 25].

Cheema v. Cheema, [2001] B.C.T.C. 298; 89 B.C.L.R.(3d) 179; 2001 BCSC 298, refd to. [para. 27].

Aquiline Resources Inc. et al. v. Wilson et al., [2005] B.C.T.C. 1461; 2005 BCSC 1461, refd to. [para. 27].

Stamp v. McIntosh (1998), 225 A.R. 76; 1998 ABQB 516, refd to. [para. 29].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al. (1998), 209 A.R. 384; 160 W.A.C. 384; 1998 ABCA 41, refd to. [para. 30].

Becker v. Director of Employment Standards (Alta.) et al., [2003] A.R. Uned. 168; 2003 ABCA 130, refd to. [para. 30].

Mustard v. Oldham et al., [2005] A.R. Uned. 821; 2005 ABQB 736, refd to. [para. 30].

Alberta Turkey Producers v. Leth Farms Ltd. et al. (1998), 217 A.R. 176; 1998 ABQB 375, refd to. [para. 33].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 34].

Statutes Noticed:

Rules of Court (Alta.), rule 390 [para. 19].

Counsel:

Joe Miller (Weir Bowen), for the plaintiff;

Christopher Harvey, Q.C. (MacKenzie Fujisawa LLP), for the defendant.

This application was heard on February 28, 2006, by Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 26, 2006.