Irving (J.D.) Ltd. v. North Shore Forest Products Marketing Board et al., 2014 NBCA 42

• Judge: Deschênes, Robertson and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 12, 2014
• Jurisdiction: New Brunswick
• Citations: 2014 NBCA 42;(2014), 422 N.B.R.(2d) 233 (CA)

Irving Ltd. v. Forest Marketing Bd. (2014), 422 N.B.R.(2d) 233 (CA);

    422 R.N.-B.(2e) 233; 1096 A.P.R. 233

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.B.R.(2d) TBEd. JL.012

Renvoi temp.: [2014] N.B.R.(2d) TBEd. JL.012

J.D. Irving, Limited (appellant) v. North Shore Forest Products Marketing Board, Madawaska Forest Products Marketing Board, Northumberland County Forest Products Marketing Board, Carleton-Victoria Forest Products Marketing Board, York-Sunbury-Charlotte Forest Products Marketing Board, South East New Brunswick Forest Products Marketing Board and Southern New Brunswick Forest Products Marketing Board (respondents)

(127-13-CA; 2014 NBCA 42)

Indexed As: Irving (J.D.) Ltd. v. North Shore Forest Products Marketing Board et al.

Répertorié: Irving (J.D.) Ltd. v. North Shore Forest Products Marketing Board et al.

New Brunswick Court of Appeal

Deschênes, Robertson and Richard, JJ.A.

June 26, 2014.

Summary:

Résumé:

J.D. Irving Ltd. (JDI) entered into a stumpage agreement with a private woodlot owner. The Southern New Brunswick Forest Products Marketing Board (SNB) requested that the agreement be submitted to it for approval. This was the first time any of the seven Forest Product Marketing Boards functioning within the Province had required JDI to seek such approval. SNB refused to approve the agreement. JDI appealed.

The New Brunswick Forest Products Commission, in a single paragraph decision, dismissed the appeal. This led JDI to formally question whether the Boards possessed the jurisdiction to regulate such agreements under the Natural Products Act and Regulations. The Boards issued a joint decision, under the letterhead of the Boards' umbrella organization, the New Brunswick Federation of Woodlot Owners, declaring that they possessed the requisite jurisdiction. JDI appealed. Aside from the interpretative issue tied to the Marketing Boards' jurisdiction to regulate stumpage agreements, JDI advanced two allegations of bias: one against the Boards and the other against the Commission. The Commission dismissed JDI's appeal on all three grounds. JDI appealed the Commission's interpretative ruling with respect to the power to regulate stumpage agreements. JDI also pursued the issue of tribunal bias in regard to membership on the Boards. However, the allegation of Commission bias was abandoned.

The New Brunswick Court of Appeal allowed the appeal for the limited purpose of eliminating an inconsistency found in paragraph 34 of the Commission's reasons for decision. In all other aspects, the Commission's decision was affirmed.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Institutional or systemic bias - [See first Forests and Forest Products - Topic 2445 ].

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Administrative Law - Topic 3210 ].

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - The New Brunswick Court of Appeal reviewed the jurisprudence of the Supreme Court of Canada on standard of review and in particular the category of "true jurisdictional question" - See paragraphs 6 to 21.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Administrative Law - Topic 3210 ].

Forests and Forest Products - Topic 2442

Forest regulation - Boards and tribunals - Jurisdiction - The New Brunswick Forest Products Commission refused to disturb a joint decision by seven Forest Products Marketing Boards declaring that they had jurisdiction to regulate stumpage agreements under the Natural Products Act and Regulations - J.D. Irving Ltd. (JDI) appealed - The New Brunswick Court of Appeal held that the Commission's interpretative decision regarding the board's jurisdiction to regulate stumpage agreements was not a true jurisdictional question - The court noted that the law had reached the point where very few cases would fall within that "narrow" category, and this was not one of them - The interpretative issue raised a question of law, but that reality was not determinative of the standard of review issue - Therefore, the Commission's decision was generally owed deference - Here, the Commission's decision met the threshold test of "reasonableness" - See paragraphs 6 to 26 and 30 to 38.

Forests and Forest Products - Topic 2442

Forest regulation - Boards and tribunals - Jurisdiction - The New Brunswick Forest Products Commission refused to disturb a joint decision by seven Forest Products Marketing Boards declaring that they had jurisdiction to regulate stumpage agreements under the Natural Products Act and Regulations - J.D. Irving Ltd. (JDI) appealed, arguing that "stumpage" was not a regulated product within the meaning of the legislation because it did not fall within the definition of "primary forest product" - The New Brunswick Court of Appeal stated that "The validity of the argument hinges on the understanding that the trees standing on a private woodlot are not transformed into a primary forest product until such time as the trees are cut. If this temporal argument were valid it follows that the power to regulate stumpage agreements would not arise until after the fact. In my view, such an interpretation makes no practical sense ..." - See paragraph 35.

Forests and Forest Products - Topic 2442

Forest regulation - Boards and tribunals - Jurisdiction - The New Brunswick Forest Products Commission refused to disturb a joint decision by seven Forest Products Marketing Boards declaring that they had jurisdiction to regulate stumpage agreements under the Natural Products Act - J.D. Irving Ltd. (JDI) appealed, arguing that woodlot owners who also operated a wood processing facility were outside the regulatory ambit of the Act, as their lands did not fall within the definition of "private woodlot" set out in s. 1 of the Forest Products Act - Therefore, the stumpage agreements transformed JDI into an owner with respect to the lands described in the agreement, and, as JDI also operated a wood processing facility, the power of the Boards to regulate dissipated - The New Brunswick Court of Appeal held that this raised a question of law that was to be determined in accordance with the common law and equitable principles, and, therefore, the Commission's ruling was owed no deference - In any event, the court agreed with the Commission's reasoning that JDI became an owner of an interest in land, not the owner of the land itself - See paragraph 36.

Forests and Forest Products - Topic 2445

Forest regulation - Boards and tribunals - Judicial review or appeals - Scope of - Seven Forest Products Marketing Boards issued a joint decision declaring that they had jurisdiction to regulate stumpage agreements under the Natural Products Act and Regulations - J.D. Irving Ltd. (JDI) appealed - The New Brunswick Forest Products Commission dismissed the appeal, holding that there was insufficient evidence to substantiate JDI's allegation of bias on the part of Marketing Board members who were or could be competitors of JDI - JDI appealed again - The New Brunswick Court of Appeal held that the court owed no deference to the Commission's decision - Allegations of tribunal bias fell within the duty of fairness, therefore, the review standard was correctness - However, like the Commission, the court found that the bias argument lacked a sufficient factual foundation for an allegation of structural or institutional bias - In any event, JDI's bias argument suffered from a more fundamental flaw, namely, the issue did not involve an adjudicative decision requiring the exercise of discretion (rather it was an interpretive decision) - In effect, JDI would have to argue that the Boards' interpretative decision was the product of a biased decision-maker - In the court's view, such an argument lacked an air of reality and, above all, became moot once the Boards' interpretation was placed before the Commission - See paragraphs 24 and 26 to 29.

Forests and Forest Products - Topic 2445

Forest regulation - Boards and tribunals - Judicial review or appeals - Scope of - The New Brunswick Court of Appeal stated "This appeal is brought pursuant to s. 71(1) of the Natural Products Act, which provides for a right of appeal to this Court, from the decisions of the Commission, on questions of 'law and jurisdiction'. It is settled law that, if the interpretative issue at hand qualifies as a true jurisdictional question, correctness is the proper review standard. For reasons to be explained, the question of whether the Marketing Boards possess the jurisdiction to regulate stumpage agreements does not qualify. While the interpretative issue placed before this Court raises a question of law, that reality is not determinative of the standard of review issue. The deference doctrine has long held that a right of appeal, anchored within the tribunal's 'home' statute, is neither determinative, nor presumptive, evidence of a legislative intention to apply the correctness standard. And the same holds true in regard to those home statutes that contain a 'privative clause' (e.g., the tribunal's decisions are final and not reviewable in any court)" - See paragraph 7.

Forests and Forest Products - Topic 2445

Forest regulation - Boards and tribunals - Judicial review or appeals - Scope of - [See first Forests and Forest Products - Topic 2442 ].

Forests and Forest Products - Topic 4642

Sale of timber - Stumpage fees - Stumpage agreements - At issue was whether J.D. Irving Ltd. (JDI) became owner of lands described in a stumpage agreement made with a private woodlot owner - The New Brunswick Court of Appeal stated that "There can be no doubt that, in the field of real property, stumpage agreements fall within the classification of 'profit à prendre'. The agreement which JDI entered into granted it the exclusive right to enter upon the vendor's lands and to cut and remove the trees standing thereon for a fixed price, based on the 'metric tonne' of woodchips derived from the trees. There can be no doubt that the agreement creates an interest in land (incorporeal hereditament). But this does not mean that the interest so acquired transforms the purchaser of the right into an owner of the land ..." - See paragraph 37.

Forests and Forest Products - Topic 4642

Sale of timber - Stumpage fees - Stumpage agreements - [See all Forests and Forest Products - Topic 2442 and first and second Forests and Forest Products - Topic 2445 ].

Droit administratif - Cote 2093

Justice naturelle - Composition de la commission ou du tribunal (considérations, y compris la partialité) - Partialité - Partialité institutionnelle ou systématique - [Voir Administrative Law - Topic 2093 ].

Droit administratif - Cote 3202

Révision judiciaire - Généralités - Étendue ou norme de révision - [Voir Administrative Law - Topic 3202 ].

Droit administratif - Cote 3210

Contrôle judiciaire - Généralités - Questions juridictionnelles - [Voir Administrative Law - Topic 3210 ].

Droit administratif - Cote 9102

Commissions et tribunaux administratifs - Révision judiciaire - Norme de révision - [Voir Administrative Law - Topic 9102 ].

Forêts and produits forestiers - Cote 2442

Réglementation des forêts - Commissions et tribunaux - Compétence - [Voir Forests and Forest Products - Topic 2442 ].

Forêts and produits forestiers - Cote 2445

Réglementation des forêts - Commissions et tribunaux - Révision judiciaire ou appels - Portée - [Voir Forests and Forest Products - Topic 2445 ].

Forêts and produits forestiers - Cote 4642

Vente de bois - Les droits de coupe - Conventions de coupe - [Voir Forests and Forest Products - Topic 4642 ].

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Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 9].

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Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 9].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 12].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 12].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 14].

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Saltfleet (Township) Board of Health v. Knapman, [1956] S.C.R. 877, refd to. [para. 15].

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Authors and Works Noticed:

Jones, David Phillip and de Villars, Anne S., Principles of Administrative Law (5th Ed. 2000), c. 10, p. 396 [para. 27].

La Forest, Anne Warner, Anger & Honsberger: Law of Real Property (3rd Ed. 2013) (Looseleaf), vol. 2, §17.30 [para. 37].

Counsel:

Avocats:

Charles D. Whelly, Q.C., and Rebecca Marie Atkinson, for the appellant;

David Duncan Young, for the respondent.

This appeal was heard on February 12, 2014, before Deschênes, Robertson and Richard, JJ.A., of the New Brunswick Court of Appeal. The decision of the court was delivered by Robertson, J.A., on June 26, 2014.