Leth Farms Ltd. et al. v. Alberta Turkey Growers Marketing Board et al., (2000) 255 A.R. 50 (CA)

• Judge: McClung, O'Leary and Costigan, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 27, 2000
• Citations: (2000), 255 A.R. 50 (CA)

Leth Farms Ltd. v. Turkey Growers (2000), 255 A.R. 50 (CA);

    220 W.A.C. 50

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. FE.066

Leth Farms Ltd., Select Turkey Ltd. and Arnold Leth (respondents/plaintiffs) v. Alberta Turkey Growers Marketing Board (appellant/defendant) and The Attorney General For Alberta (appellant/intervener) and The Canadian Turkey Marketing Agency (appellant/intervener)

(Nos. 98-18054; 98-18069; 98-18070)

Indexed As: Leth Farms Ltd. et al. v. Alberta Turkey Growers Marketing Board et al.

Alberta Court of Appeal

McClung, O'Leary and Costigan, JJ.A.

January 27, 2000.

Summary:

The plaintiff Leth was the president and major shareholder of the corporate plaintiffs, Leth Farms Ltd. and Select Turkey Ltd. Leth Farms raised turkeys. Select Turkey slaugh­tered the turkeys and acted as Leth Farms' agent in marketing and selling the processed turkey parts, all of which were exported out of Alberta. The plaintiffs commenced an action against the Alberta Turkey Growers Market­ing Board, seeking a declaration that certain of the Board's levies against the plaintiffs' processed turkey products were ultra vires the statutory and constitutional authority of the Board where all of the plaintiffs' product was shipped to purchasers outside of Alberta. The plaintiffs also argued that they were not subject to levies estab­lished under federal legislation because their product was not one to which those levies could attach. Five stated questions of law were submitted for determination. The Attor­ney General of Alberta and the Canadian Turkey Marketing Agency were granted intervenor status.

The Alberta Court of Queen's Bench, in a decision reported at 229 A.R. 300, answered the five questions of law and granted a declaration that the plaintiffs' operations were not subject to the levies under the provincial legislation. The court concluded that the provin­cial Marketing of Agricultural Products Act was ultra vires the province as it purported to control the marketing of turkeys in interprovincial markets. The court also found that the relevant federal legisla­tion was inapplicable to the plain­tiffs' oper­ations. The Alberta Turkey Growers Market­ing Board, the Attorney General of Alberta and the Canadian Turkey Marketing Agency appealed.

The Alberta Court of Appeal allowed the appeal, holding that the chambers judge erred in law in his answers to all five ques­tions. The court held that the Marketing of Agricultural Products Act was not ultra vires, that the Act and the subordinate regu­lations and orders (except ss. 20.1(3), 20.1(6) and 20.1(7) of the Turkey Marketing Regulation) applied to the plaintiffs' oper­ations and that the plaintiffs were obligated to pay levies or service charges under s. 11 of the Turkey Marketing Regulation. The court also found that the plaintiffs' product was "turkey" as defined in the federal Agri­cultural Products Marketing Act and that the plaintiffs were "marketing" as defined in the federal Farm Products Agencies Act. There­fore, the federal legislation applied to the plaintiffs' operations and the plaintiffs' products were the proper subject of the federal levy.

Constitutional Law - Topic 505

Powers of parliament and the legislatures -Exclusive legislative powers - Federal powers - Invalidity of provincial legislation - The plaintiff Leth was the president and major shareholder of the corporate plain­tiffs Leth Farms Ltd. and Select Turkey Ltd. - Leth Farms raised turkeys - Select Turkey slaughtered the turkeys and acted as Leth Farms' agent in marketing and selling the processed turkey parts, all of which were exported out of Alberta - The following stated question was submitted for determination: whether the provincial Marketing of Agricultural Products Act was ultra vires the constitutional authority of the province of Alberta in that it pur­ported to regulate, and authorize the regu­lation of production for marketing, and the marketing of turkeys extra-provincially as well as intra-provincially without distinc­tion and, accordingly, trenched on exclus­ive federal authority over trade and com­merce - The Alberta Court of Appeal answered the question in the negative, holding that the legislation was not ultra vires - See paragraphs 102 to 116.

Constitutional Law - Topic 505

Powers of parliament and the legislatures -Exclusive legislative powers - Federal powers - Invalidity of provincial legislation - [See second Trade Regulation - Topic 3745 ].

Constitutional Law - Topic 2502

Determination of validity of statutes or Acts - Aim or purpose of statute - [See Constitutional Law - Topic 2621 ].

Constitutional Law - Topic 2621

Determination of validity of statutes or Acts - Considerations - General - An issue arose regarding whether a provincial stat­ute was aimed at interprovincial trade and was ultra vires - Reference was made to the absence of words in the Act specifi­cally limiting the Act's application to the Province of Alberta - The Alberta Court of Appeal stated that the absence of words purporting to specifically limit the oper­ation of legislation was only one factor that could be considered in assessing the validity of the legislation - The legislation as a whole had to be considered in order to determine its aim - See paragraphs 103 to 104.

Constitutional Law - Topic 5671

Federal jurisdiction (s. 91) - Regulation of trade and commerce - Extra-provincial trade - [See first Constitutional Law - Topic 505 ].

Constitutional Law - Topic 7300.4

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Agricultural marketing - [See first Consti­tutional Law - Topic 505 and second Constitutional Law - Topic 9708 ].

Constitutional Law - Topic 9708

Agriculture - Marketing boards - Levies - The plaintiff Leth was the president and major shareholder of the corporate plain­tiffs Leth Farms Ltd. and Select Turkey Ltd. - Leth Farms raised turkeys - Select Turkey slaughtered the turkeys and acted as Leth Farms' agent in marketing and selling the processed turkey parts, all of which were exported out of Alberta - The plaintiffs argued that they were not subject to levies established under federal legisla­tion because their product was not one to which those levies could attach - The Alberta Court of Appeal held that the plaintiffs' product (processed turkey parts) was "turkey" as defined in the federal Agricultural Products Marketing Act and was a "farm product" for the purpose of the federal Farm Products Agencies Act - The plaintiffs were also "marketing" as defined in the Farm Products Agencies Act - The federal legislation applied to the plaintiffs' operations and the plaintiffs' products were the proper subject of the federal levy - See paragraphs 137 to 162.

Constitutional Law - Topic 9708

Agriculture - Marketing boards - Levies - The plaintiff Leth was the president and major shareholder of the corporate plain­tiffs Leth Farms Ltd. and Select Turkey Ltd. - Leth Farms raised turkeys - Select Turkey slaughtered the turkeys and acted as Leth Farms' agent in marketing and selling the processed turkey parts, all of which were exported out of Alberta - The plaintiffs argued that they were not subject to certain levies established under the provincial Marketing of Agricultural Prod­ucts Act because all of the plaintiffs' prod­uct was shipped to purchasers outside of Alberta - The Alberta Court of Appeal held that the plaintiffs were obligated to pay levies or service charges under s. 11 of the Turkey Marketing Regulation.

Constitutional Law - Topic 9708

Agriculture - Marketing boards - Levies - The plaintiff Leth was the president and major shareholder of the corporate plain­tiffs Leth Farms Ltd. and Select Turkey Ltd. - Leth Farms raised turkeys - Select Turkey slaughtered the turkeys and acted as Leth Farms' agent in marketing and selling the processed turkey parts, all of which were exported out of Alberta - At issue was whether the plaintiffs were sub­ject to certain levies established under the provincial Marketing of Agricultural Prod­ucts Act where all of their product was shipped outside of Alberta - Also at issue was whether the relevant federal legislation applied to the plaintiffs' operations - The Alberta Court of Appeal held that the plaintiffs were subject to levies under the provincial legislation and that the federal legislation also applied to their operations -The court held that the federal and provin­cial legislation had established an effective system of interlocking quotas which was not ultra vires and which was effective to catch the plaintiffs' operations - See para­graph 62 to 84.

Trade Regulation - Topic 3503

Marketing of agricultural products - Mar­keting legislation - General - [See first Constitutional Law - Topic 505 and all Constitutional Law - Topic 9708 ].

Trade Regulation - Topic 3505

Marketing of agricultural products - Mar­keting legislation - Application - [See first and third Constitutional Law - Topic 9708 ].

Trade Regulation - Topic 3505

Marketing of agricultural products - Mar­keting legislation - Application - The plaintiff Leth was the president and major shareholder of the corporate plaintiffs Leth Farms Ltd. and Select Turkey Ltd. - Leth Farms raised turkeys - Select Turkey slaughtered the turkeys and acted as Leth Farms' agent in marketing and selling the processed turkey parts, all of which were exported out of Alberta - The following stated question was submitted for deter­mination: whether the provincial Marketing of Agricultural Products Act and all subor­dinate regulations and board orders passed thereunder relating to turkeys were limited to the production and the processing for marketing, and the marketing, within the province of Alberta and, if so, had no application to the vertically integrated activities of the plaintiffs insofar as those activities were directed to marketing out­side Alberta - The Alberta Court of Appeal held that the Act and the subordinate regu­lations and orders (except ss. 20.1(3), 20.1(6) and 20.1(7) of the Turkey Market­ing Regulation) applied to the plaintiffs' operations.

Trade Regulation - Topic 3541

Marketing of agricultural products - Pro­duction and import quotas - General - [See third Constitutional Law - Topic 9708 ].

Trade Regulation - Topic 3741

Marketing of agricultural products - Fowl -General - [See first Constitutional Law -Topic 505 , all Constitutional Law - Topic 9708 and second Trade Regulation - Topic 3505 ].

Trade Regulation - Topic 3745

Marketing of agricultural products - Fowl -Marketing defined - [See first Constitu­tional Law - Topic 9708 ].

Trade Regulation - Topic 3745

Marketing of agricultural products - Fowl -Marketing defined - The plaintiff Leth was the president and major shareholder of the corporate plaintiffs Leth Farms Ltd. and Select Turkey Ltd. - Leth Farms raised turkeys - Select Turkey slaughtered the turkeys and acted as Leth Farms' agent in marketing and selling the processed turkey parts, all of which were exported out of Alberta - A chambers judge found that the provincial Marketing of Agricultural Prod­ucts Act was ultra vires as it purported to govern the extra-provincial marketing of the plaintiffs' turkeys - The chambers judge was of the view that no "marketing" occurred in Alberta because there was no sale from Leth Farms to Select - The Alberta Court of Appeal stated that it was an oversimplification to conclude that marketing essentially meant selling - Mar­keting was to be given a broad definition and many of the activities in which the plaintiffs were engaged within the province of Alberta were caught by the definition of marketing - The court held that the trans­actions at which the Act was aimed were intraprovincial and the Act was not ultra vires the province - See paragraphs 102 to 116.

Trade Regulation - Topic 3745

Marketing of agricultural products - Fowl -Marketing defined - The Alberta Court of Appeal held that the definition of "market­ing" in the Farm Products Agencies Act should not be given a narrow statutory interpretation that would limit marketing to sales transactions - See paragraph 155.

Words and Phrases

Marketing - The Alberta Court of Appeal interpreted the meaning of the word "mar­keting" as defined in the Marketing of Agri­cultural Products Act, S.A. 1987, c. M-5.1 - See paragraphs 105 to 111.

Words and Phrases

Marketing - The Alberta Court of Appeal interpreted the meaning of the word "mar­keting" as found in the Farm Products Agencies Act, R.S.C. 1985, c. F-4, - See paragraph 155.

Cases Noticed:

Agricultural Marketing Products Act, Re, [1978] 2 S.C.R. 1198; 19 N.R. 361; 84 D.L.R.(3d) 257, consd. [para. 59].

Milk Board (B.C.) v. Grisnich et al., [1995] 2 S.C.R. 895; 183 N.R. 39; 61 B.C.A.C. 81; 100 W.A.C. 81, refd to. [para. 67].

Irvine et al. v. Restrictive Trade Practices Commission et al., [1987] 1 S.C.R. 181; 74 N.R. 33, refd to. [para. 77].

R. v. Mills (B.J.) (1999), 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201 (S.C.C.), refd to. [para. 99].

Maple Lodge Farms Ltd. v. Canada and Minister of Economic Development, [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 101].

Alberta Cattle Commission v. Butterfield et al. (1996), 187 A.R. 362; 127 W.A.C. 362 (C.A.), refd to. [para. 101].

Shannon v. Lower Mainland Dairy Prod­ucts Board, [1938] 4 D.L.R. 81, refd to. [para. 103].

Carnation Co. v. Quebec Agricultural Marketing Board, [1968] S.C.R. 238, refd to. [para. 107].

Wayvell Farms Ltd. v. Pork Producers' Marketing Board (Alta.), Alberta and Fletcher's Ltd. (1987), 81 A.R. 278 (C.A.), refd to. [para. 109].

Central Canada Potash Co. and Canada (Attorney General) v. Saskatchewan, [1978] S.C.R. 42; 23 N.R. 481; 88 D.L.R.(3d) 609, refd to. [para. 112].

Milk Marketing Board (B.C.) v. Bari Cheese Ltd. et al. (1996), 79 B.C.A.C. 34; 129 W.A.C. 34; 26 B.C.L.R.(3d) 279 (C.A.), refd to. [para. 142].

Campbell Soup Co. v. Farm Products Marketing Board (1975), 63 D.L.R.(3d) 401 (Ont. H.C.), affd. (1977), 77 D.L.R.(3d) 725 (Ont. C.A.), refd to. [para. 150].

Statutes Noticed:

Farm Products Agencies Act, R.S.C. 1985, c. F-4, sect. 2 [paras. 37, 38].

Marketing of Agricultural Products Act, S.A. 1987, c. M-5.1, sect. 49(2) [para. 26]; sect. 50(a) [para. 25].

Marketing of Agricultural Products Act Regulations (Alta.), Turkey Marketing Regulation, A.R. 397/88, sect. 11 [para. 2].

Turkey Marketing Regulation - see Mar­keting of Agricultural Products Act Reg­ulations (Alta.).

Counsel:

G.A. Meikle and C. Enns, for the appel­lant/intervener, the Attorney General for Alberta;

R.K. Laing, Q.C., for the appel­lant/intervener, The Canadian Turkey Marketing Agency;

J.V. Miller and D. Jardine, for the appel­lant/defendant, Alberta Turkey Growers Marketing Board;

C. Harvey, Q.C., and G.L. Wells, for the respondent/plaintiff, Leth Farms Ltd., Select Turkey Ltd. and Arnold Leth.

This appeal was heard on September 20-22, 1999, before McClung, O'Leary and Costigan, JJ.A., of the Alberta Court of Appeal. The following judgment of the Court of Appeal was delivered by Costigan, J.A., on January 27, 2000.