Kimberly-Clark Nova Scotia v. Nova Scotia Woodlot Owners and Operators Association - Central Wood Suppliers Division, (1998) 175 N.S.R.(2d) 34 (SC)

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 11, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 175 N.S.R.(2d) 34 (SC)

Kimberly-Clark N.S. v. WOOA (1998), 175 N.S.R.(2d) 34 (SC);

    534 A.P.R. 34

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. FE.037

In The Matter Of: The Primary Forest Products Marketing Act, R.S.N.S. 1989, c. 355

And In The Matter Of: An application by the Nova Scotia Woodlot Owners and Operators Association - Central Wood Suppliers Division for Classification of the term "Pulpwood"

And In The Matter Of: An application by Kimberly-Clark Nova Scotia for an order quashing the decision of the Nova Scotia Primary Forest Products Marketing Board, dated March 23, 1998

Kimberly-Clark Nova Scotia (applicant) v. The Nova Scotia Woodlot Owners and Operators Association - Central Wood Suppliers Division (respondent)

(S.H. No. 149197)

Indexed As: Kimberly-Clark Nova Scotia v. Nova Scotia Woodlot Owners and Operators Association - Central Wood Suppliers Division

Nova Scotia Supreme Court

MacAdam, J.

December 16, 1998.

Summary:

In 1981, the Pulpwood Marketing Board (later known as the Primary Forest Products Marketing Board) certified the Nova Scotia Woodlot Owners and Operators Association (NSWOOA) as the bargaining agent for all producers of "pulpwood" who sold pulpwood to Scott Maritimes Ltd. In 1995, Scott notified NSWOOA that it would no longer be processing roundwood pulpwood but would instead be using chips and the collec­tive agreement would not be renewed. A division of the NSWOOA applied for a determination of the meaning of "pulpwood" in the 1981 registration order. A majority of the Board held that "pulpwood" included all forms of wood cut and prepared and pur­chased by Scott, primarily for processing into wood pulp, including pulpwood chips. Kimberly-Clark, Scott's successor, applied for certiorari.

The Nova Scotia Supreme Court dismissed the application.

Administrative Law - Topic 3202

Judicial review - General - Scope of review - In 1981, the Pulpwood Marketing Board (later known as the Primary Forest Products Marketing Board) certified NSWOOA as the bargaining agent for all "pulpwood" producers who sold pulpwood to Scott Maritimes - In 1995, Scott notified NSWOOA that it would no longer be processing roundwood pulpwood but would instead be using pulpwood chips and the collective agreement would not be renewed - The Board held that "pulp­wood" included pulpwood chips - Scott's successor applied for judicial review - The Nova Scotia Supreme Court noted that the Pulpwood Marketing Act, 1972 gave the Board broad discretionary powers and did not contain a privative clause or a right to appeal - The Board was a specialized tribunal with special expertise - The court held that the standard of review of the Board's decision was reasonableness simpliciter - See paragraphs 54 to 71.

Administrative Law - Topic 3221

Judicial review - General - Unreasonable­ness of decision attacked - Reasonableness simpliciter - In 1981, the Pulpwood Mar­keting Board (later known as the Pri­mary Forest Products Marketing Board) certified NSWOOA as the bargain­ing agent for all "pulpwood" pro­ducers who sold pulpwood to Scott Maritimes - At the time of the certification, pulpwood was supplied in roundwood form - In 1995, Scott notified NSWOOA that it would no longer be processing roundwood pulpwood but would instead be using pulp­wood chips and the collective agree­ment would not be renewed - Pulpwood chips were unknown in the Nova Scotia forest industry in 1981 - The Board held that "pulpwood" included pulpwood chips - Scott's suc­cessor applied for judicial review - The Nova Scotia Supreme Court dismissed the application, holding that the Board's deci­sion was not "clearly wrong" - See para­graphs 72 to 94.

Administrative Law - Topic 3221

Judicial review - General - Unreasonable­ness of decision attacked - Reasonableness simpliciter - [See Adminis­trative Law - Topic 3202 ].

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - The applicant applied for judicial review of a decision of the Primary Forest Products Marketing Board (formerly the Pulpwood Marketing Board) - The Board's jurisdic­tion was not in issue - There was no privative clause - An issue arose with respect to the Board's role on judicial review - The Nova Scotia Supreme Court held that the Board could make sub­missions on the "reasonableness of its approach" but not on the "reasonableness of its position" - See paragraphs 8 to 30.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Administrative Law - Topic 3202 ].

Forests and Forest Products - Topic 5130

Sale of pulpwood - Marketing plans - Marketing boards - Judicial review - [See Administrative Law - Topic 3202 and first Administrative Law - Topic 3221 ].

Cases Noticed:

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449; 7 Alta. L.R.(2d) 370; 89 D.L.R.(3d) 161, refd to. [para. 8].

Jennifer's of Nova Scotia Inc. v. Clark (1994), 136 N.S.R.(2d) 110; 388 A.P.R. 110 (C.A.), refd to. [para. 10].

Paccar of Canada Ltd. v. Canadian Asso­ciation of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437, refd to. [para. 17].

Doiron v. Duplisea et al. (1998), 170 N.S.R.(2d) 15; 515 A.P.R. 15 (C.A.), refd to. [para. 20].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 21].

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd. (1993), 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140; 93 C.L.L.C. 12,186, refd to. [para. 32].

Canada (Procureur général) v. Alliance de la Fonction publique du Canada, [1991] 1 S.C.R. 614; 123 N.R. 161, refd to. [para. 34].

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des em­ployés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 38].

Superintendent of Brokers v. Pezim - see Pezim v. British Columbia Securities Commission et al.

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; [1994] 7 W.W.R. 1, refd to. [para. 39].

Spectrum Pension Plan (Administrator) v. Superintendent of Pensions (N.S.) et al. (1998), 161 N.S.R.(2d) 1; 477 A.P.R. 1 (C.A.), refd to. [para. 42].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 43].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R 157; 177 N.R. 1; 121 D.L.R.(4th) 385; 27 Admin. L.R.(2d) 1, refd to. [para. 51].

Prassard v. Minister of Employment and Immigration, [1989] 1 S.C.R. 560; 93 N.R 81; 57 D.L.R.(4th) 663, refd to. [para. 58].

Nekoosa Packaging Corp. et al. v AMCA International Ltd. et al. (1989), 30 F.T.R. 127 (T.D.), refd to. [para. 60].

MacPhee et al. v. Pulpwood Marketing Board (N.S.) et al. (1988), 88 N.S.R.(2d) 345; 225 A.P.R. 345 (C.A.), leave to appeal dismissed (1989), 102 N.R. 400; 93 N.S.R.(2d) 270; 242 A.P.R. 270 (S.C.C.), refd to. [para. 66].

Nova Scotia Forest Industries v. Nova Scotia Pulpwood Marketing Board (1975), 12 N.S.R.(2d) 91; 6 A.P.R. 91 (C.A.), refd to. [para. 66].

Bogoch Seed Co. v. Canadian Pacific Co. and Canadian National Railways, [1963] S.C.R. 247, refd to. [para. 77].

Statutes Noticed:

Primary Forest Products Marketing Act, R.S.N.S. 1989, c. 355, generally [para. 3].

Pulpwood Marketing Act, S.N.S. 1972, c. 15, generally [para. 2].

Authors and Works Noticed:

Coté, Pierre-André, The Interpretation of Legislation in Canada (2nd Ed. 1991), pp. 224, 225 [para. 62]; 226, 227 [para. 63].

de Smith, Judicial Review of Administra­tive Action (4th Ed. 1980), p. 110 [para. 12].

Driedger, The Construction of Statutes (3rd Ed. 1994), p. 193 [para. 57].

Evans, Judicial Review of Administrative Action in Canada (1998), pp. 15-29 [para. 14].

Counsel:

Thomas E. Hart (McInnes Cooper & Robertson), for the applicant;

Joseph Q. MacDonell (Carruthers & Mac­Donell), for the respondent, Nova Scotia Woodlot Owners and Operators Associ­ation;

Louise Walsh Poirier, for the Primary Forest Products Marketing Board.

This application was heard on November 18 and December 11, 1998, before MacAdam, J., of the Nova Scotia Supreme Court, who delivered the following judgment orally on December 16, 1998, with written release on January 8, 1999.