Milk Board (B.C.) v. Bari Cheese Ltd., (1991) 2 B.C.A.C. 1 (CA)

Judge:Southin, Hinds and Hutcheon, JJ.A.
Court:Court of Appeal of British Columbia
Case Date:November 14, 1990
Jurisdiction:British Columbia
Citations:(1991), 2 B.C.A.C. 1 (CA)
 
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Milk Bd. v. Bari Cheese Ltd. (1991), 2 B.C.A.C. 1 (CA);

    5 W.A.C. 1

MLB headnote and full text

The Milk Board (plaintiff/appellant) v. Bari Cheese Ltd. (defendant/respondent)

(No. CA012562)

Indexed As: Milk Board (B.C.) v. Bari Cheese Ltd.

British Columbia Court of Appeal

Southin, Hinds and Hutcheon, JJ.A.

July 26, 1991.

Summary:

The Milk Board (B.C.) commenced an action against a cheese-maker for levies which were allegedly required to be collected from milk producers by the cheese-maker and paid to the Board pursuant to the Milk Industry Act and orders made thereunder.

The British Columbia Supreme Court dismissed the Board's action. The Board appealed.

The British Columbia Court of Appeal dismissed the appeal.

Administrative Law - Topic 7501

Delegated powers - General - [See Statutes - Topic 5302 ].

Constitutional Law - Topic 9708

Agriculture (Constitution Act, 1867, s. 95) - Marketing boards - Levies - The British Columbia Milk Board enacted Milk Sharing Orders, levying deliveries of milk from producers and ordering that vendors remit the levy from monies payable to the producers - The Milk Board levied a cheese producer who made cheese from producers' milk for export - The cheese producer challenged the constitutional validity of the levy scheme - The British Columbia Court of Appeal held that the orders/levies could have been lawfully enacted under s. 39(2) of the Milk Industry Act - S. 39(2) was valid provincial legislation under s. 95 of the Constitution Act, 1867 (or alternatively s. 92), notwithstanding that the cheese was marketed outside British Columbia - See paragraphs 1 to 112.

Statutes - Topic 5302

Delegated legislation - Authority to enact - The British Columbia Milk Board enacted Milk Sharing Orders pursuant to s. 41 of the Milk Industry Act, levying deliveries of milk from producers and ordering that vendors remit the levy from monies payable to the producers - The Milk Board levied a cheese producer who processed producers' milk into cheese for export - The British Columbia Court of Appeal held that the Board could not collect the levy, because it lacked authority to impose the levy under s. 41 - The court noted that the levy could have been lawfully imposed under s. 39(2) of the Milk Industry Act, but it was too late for the Board to rely on s. 39(2), when it initially claimed to enact the orders/levies under s. 41 - See paragraphs 113 to 137.

Trade Regulation - Topic 3504

Marketing of agricultural products - General - Marketing legislation - History - The British Columbia Court of Appeal discussed the history of marketing legislation affecting British Columbia - See paragraphs 22 to 30.

Trade Regulation - Topic 3606

Marketing of agricultural products - Dairy products - Levies - [See Constitutional Law - Topic 9708 ].

Trade Regulation - Topic 3606

Marketing of agricultural products - Dairy products - Levies - [See Statutes - Topic 5302 ].

Cases Noticed:

Lawson v. Interior Tree and Vegetable Committee, [1931] S.C.R. 357; [1931] 2 D.L.R. 193, refd to. [para. 23].

Lower Mainland Dairy Products Sales Adjustment Committee v. Crystal Dairy Ltd., [1933] 1 D.L.R. 82, refd to. [paras. 24, 30 et seq.].

Shannon v. Lower Mainland Dairy Products Board, [1938] 4 D.L.R. 81, refd to. [para. 26].

Reference re Natural Products Marketing Act, 1934, [1937] 1 D.L.R. 691 (P.C.), refd to. [para. 27].

Reference re Milk Industry Act of British Columbia (1960), 22 D.L.R.(2d) 321 (S.C.C.), refd to. [para. 28].

Reference re Agricultural Products Marketing Act, Farm Products Marketing Agencies Act, and Farm Products Marketing Act, [1978] 2 S.C.R. 1198; 84 D.L.R.(3d) 257, refd to. [para. 30].

Milk Board v. Birchwood Dairy Farm et al. (1986), 1 B.C.L.R.(2d) 210 (C.A.), refd to. [para. 42].

Milk Board v. Clearview Dairy Farm Inc. (1986), 69 B.C.L.R. 220 (S.C.), affd. (1987), 12 B.C.L.R.(2d) 116 (C.A.), refd to. [paras. 47-55, 98, 124].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Loc. 580 (1984), 52 B.C.L.R. 1 (C.A.), refd to. [para. 50].

Burns Foods Ltd. v. Attorney General of Manitoba, [1975] 1 S.C.R. 494; 40 D.L.R.(3d) 731, refd to. [para. 85].

Central Canada Potash Co. Ltd. and Canada (Attorney General) v. Saskatchewan, [1979] S.C.R. 42; 23 N.R. 481; 88 D.L.R.(3d) 609, refd to. [para. 94].

Edwards v. Attorney General of Canada, [1930] A.C. 124, refd to. [para. 106].

Statutes Noticed:

Agricultural Products Marketing Act, S.C. 1949, c. 16, generally [paras. 7, 29].

Agricultural Products Marketing Act Orders, British Columbia Milk Order, generally [para. 7].

British Columbia Milk Order - see Agricultural Products Marketing Act Orders.

Canadian Dairy Commission Act, R.S.C. 1985, c. C-15, sect. 8, sect. 9(1), sect. 10, sect. 15 [para. 74]; sect. 12 [para. 75].

Constitution Act, 1867, sect. 91 [paras. 8, 109]; sect. 92 [paras. 8, 108-112]; sect. 95 [paras. 8, 97 et seq.].

Dairy Products Sales Adjustment Act, S.B.C. 1929, c. 20, generally [para. 24].

Milk Industry Act, S.B.C. 1956, c. 28, generally [para. 28].

Milk Industry Act, R.S.B.C. 1979, c. 258, preamble [para. 7]; sect. 39(2)(a)(ii) [para. 6 et seq.]; sect. 41[ paras. 7, 122]; sect. 42 [para. 7].

Milk Industry (Amendment) Act, S.B.C. 1973, c. 128, sect. 6 [para. 7].

Milk Industry Act Orders, Milk Market Sharing Order 24, generally [para. 7 et seq.].

Milk Industry Act Orders, Milk Market Sharing Order 25, generally [para. 7 et seq.].

Milk Market Sharing Orders - see Milk Industry Act Orders.

Natural Products Marketing (British Columbia) Act, S.B.C. 1934, c. 38, generally [para. 25].

Natural Products Marketing Act, S.C. 1934, c. 57, generally [para. 27].

Produce Marketing Act, S.B.C. 1926-27, c. 54, generally [para. 23].

Authors and Works Noticed:

Vancouver Daily Province, Feb. 25, 1927 [para. 16].

Peel, Sir Robert, British Historical and Political Orations from the XIIth and XXth Century, p. 235 [para. 105].

Counsel:

Thomas R. Berger and Gary A. Nelson, for the appellant;

   Christopher Harvey, for the respondent;

George H. Copley and Frank A. Falzon, for the intervenor, the Attorney General of B.C.

This appeal was heard on November 14, 1990, in Vancouver, B.C., before Southin, Hinds and Hutcheon, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on July 26, 1991, including the following opinions:

Southin, J.A. (Hinds, J.A., concurring) - see paragraphs 1 to 135;

Hutcheon, J.A. - see paragraphs 136, 137.

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