Canadian Restaurant and Foodservices Association v. Canadian Dairy Commission et al., (2002) 164 O.A.C. 201 (DC)

• Judge: Farley, Pardu and McCombs, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: September 25, 2002
• Jurisdiction: Ontario
• Citations: (2002), 164 O.A.C. 201 (DC)

Cdn. Restaurant v. Dairy Comm. (2002), 164 O.A.C. 201 (DC)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. SE.064

Canadian Restaurant and Foodservices Association (applicant) v. Canadian Dairy Commission and Canadian Milk Supply Management Committee (respondents) v. Prince Edward Island Milk Marketing Board, The New Brunswick Milk Marketing Board, Federation des producteurs de lait du Quebec, Dairy Farmers of Ontario and Manitoba Milk Producers (intervenors)

(170/2001)

Indexed As: Canadian Restaurant and Foodservices Association v. Canadian Dairy Commission et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Farley, Pardu and McCombs, JJ.

September 25, 2002.

Summary:

The Association represented producers of fresh pizzas. Frozen pizza producers were granted Special Milk Class Permits by the Canadian Milk Supply Management Committee. The Permits entitled those producers to purchase cheese at a discounted price. The Association applied for the same Permits, submitting that the Permit system (which excluded fresh products) should be extended to include fresh pizza producers. The Committee, adopting the recommendation of the Canadian Dairy Commission, dismissed the application without reasons. The Association applied for judicial review, seeking an order setting aside the decision, an order directing the granting of Permits or, alternatively, an order directing that the Committee reconsider the Association's application in accordance with the rules of natural justice.

The Ontario Divisional Court dismissed the application. The Committee's decision not to expand the Permit system to a new class of products (fresh pizzas) was a legislative or policy decision. The Committee did not owe the Association a duty of procedural fairness and certainly no duty greater than allowing the Association the opportunity to make its views known.

Administrative Law - Topic 1262

Classification of power or function - Powers or functions classified as legislative - What constitutes - The Canadian Milk Supply Management Committee was comprised of one representative from the Canadian Dairy Commission and each of the nine provincial milk marketing boards - The Committee was responsible for supervision and policy decisions required under a Plan and Memorandum of Agreement between the 10 signatories - A Special Milk Class Permit permitted frozen pizza producers to purchase cheese at a discounted price - The guidelines excluded "fresh products" - The Canadian Restaurant and Foodservices Association lobbied to expand the guidelines to include fresh products, wishing to extend the same price discount to its members who produced fresh pizzas - The Committee, without written reasons, rejected the Association's formal request for the same Permits - The Association sought judicial review - The Ontario Divisional Court dismissed the application - The Committee's decision not to expand the Permit system to a new class of products (fresh pizzas) was a legislative or policy decision - The Committee owed no duty of procedural fairness and certainly no duty greater than affording the Association an opportunity to make its views known.

Administrative Law - Topic 9116

Boards and tribunals - Judicial review - Review of administrative policy or discretion - [See Administrative Law - Topic 1262 ].

Trade Regulation - Topic 3611

Marketing of agricultural products - Dairy products - Decisions of board or commission - Judicial review - [See Administrative Law - Topic 1262 ].

Cases Noticed:

Abel et al. v. Advisory Review Board (1980), 31 O.R.(2d) 520 (C.A.), refd to. [para. 41].

Anaskan v. Canada (1977), 15 O.R.(2d) 515 (C.A.), refd to. [para. 42].

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119, refd to. [para. 44].

Milk Marketing Board (B.C.) et al. v. Aquilini et al. (1998), 112 B.C.A.C. 119; 182 W.A.C. 119; 9 Admin. L.R.(3d) 1, dist. [para. 45].

Brant Dairy Co. et al. v. Milk Commission of Ontario et al., [1973] S.C.R. 131, refd to. [para. 45].

Inuit Tapirisat of Canada Ltd. and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 47].

Irving Oil Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 48].

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, refd to. [para. 49].

Carpenter Fishing Corp. et al. v. Canada (Minister of Fisheries and Oceans) et al., [1998] 2 F.C. 548; 221 N.R. 372 (F.C.A.), refd to. [para. 49].

Pharmaceutical Manufacturers Association of Canada v. British Columbia (Attorney General) (1997), 96 B.C.A.C. 165; 155 W.A.C. 165; 149 D.L.R.(4th) 613 (C.A.), refd to. [para. 49].

R. v. Ontario Milk Marketing Board et al., [1969] 1 O.R. 309 (H.C.), affd. [1969] 2 O.R. 121 (C.A.), refd to. [para. 52].

Bedesky et al. v. Farm Products Marketing Board of Ontario et al. (1975), 8 O.R.(2d) 516 (Div. Ct.), affd. (1975), 10 O.R.(2d) 105 (C.A.), refd to. [para. 52].

Canadian Association of Regulated Importers et al. v. Canada (Attorney General) et al., [1994] 2 F.C. 247; 164 N.R. 342 (F.C.A.), refd to. [para. 52].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 56].

Toronto Independent Dance Enterprise v. Canada Council, [1989] 3 F.C. 516 (T.D.), refd to. [para. 57].

Statutes Noticed:

Canadian Dairy Commission Act, R.S.C. 1985, c. C-15, sect. 8 [para. 2].

Authors and Works Noticed:

Brown, D.J.M., and Evans, J.M., Judicial Review of Administrative Action in Canada (1998), p. 7-23 [para. 50].

Counsel:

David W. Kent and Robert Wisner, for the applicant;

Guy Pratte and Michelle Flaherty, for the respondents;

David Wilson and David Elliott, for the intervenors.

This application was heard on January 31 and February 1, 2002, before Farley, Pardu and McCombs, JJ., of the Ontario Divisional Court.

On September 25, 2002, the following judgment was released by the Court.