Milk Marketing Board (B.C.) et al. v. Aquilini et al., (1998) 112 B.C.A.C. 119 (CA)

• Judge: Esson, Braidwood and Proud­foot, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 08, 1998
• Jurisdiction: British Columbia
• Citations: (1998), 112 B.C.A.C. 119 (CA)

Milk Marketing Bd. v. Aquilini (1998), 112 B.C.A.C. 119 (CA);

   182 W.A.C. 119

MLB headnote and full text

Temp. Cite: [1998] B.C.A.C. TBEd. OC.016

British Columbia Milk Market­ing Board and Canadian Dairy Commission (plaintiffs/respondents) v. Luigi Aquilini, Carmine Abbinante, Vincenzo Abbinante, Bari Cheese Ltd., (names of other defendants omitted)

(CA23080, CA23501; CA23503; CA23506; CA23507; CA23508; CA23751; CA23753; CA23756; CA23757; CA23758; CA24089; CA24092; CA24093; CA24094; CA24095)

Indexed As: Milk Marketing Board (B.C.) et al. v. Aquilini et al.

British Columbia Court of Appeal

Esson, Braidwood and Proud­foot, JJ.A.

September 8, 1998.

Summary:

In ongoing litigation, the plaintiff tribunals sought com­pliance by the defendants with their regime for regulating the dairy industry in British Columbia. In 1996, the scheme was ruled unconstitutional and remedial legislation was enacted as a result. New pro­vincial and federal regulations were passed which conferred federal and provin­cial regulatory powers on the B.C. Milk Mar­keting Board. The Board in 1994 had issued orders al­lotting new provincial quota to existing quota holders. Then, under its joint authority, the Board issued a Consoli­dated Order allotting federal quota concur­rent with the provincial quota. The defend­ants, who had been operating outside the original quota system, did not receive any of the new provin­cial or federal quota, but con­tinued to produce milk without licence or quota. The trial judge, in a decision reported in [1997] B.C.T.C. Uned. 493, upheld the Regulations and the scheme. The defendants ap­pealed.

The British Columbia Court of Appeal allowed the appeal in part.

Administrative Law - Topic 1054

Classification of power or function - Powers or func­tions classified as adminis­trative - Fixing of quotas - The British Columbia Court of Appeal held that the British Columbia Milk Marketing Board, the Canadian Dairy Commission and the Canadian Milk Supply Management Com­mittee were not given legis­lative functions, only ad­ministrative ones - See para­graphs 30 to 31.

Administrative Law - Topic 7533

Delegated powers - Validity of delegated powers - Ad­ministrative acts - [See Con­stitutional Law - Topic 612 ].

Constitutional Law - Topic 612

Powers of Parliament and the Legislatures - Delegation of power - Delegation of ad­ministrative power - British Columbia Regulations (Milk Marketing Board Regu­lation) were passed under the Natural Products Marketing (B.C.) Act - Federal Regulations (Dairy Products Marketing Regula­tions) were enacted under the Can­adian Dairy Commission Act - The B.C. Milk Marketing Board issued orders allot­ting new provincial milk quota - Under its joint authority, the Board issued a Con­s­olidated Order allotting federal milk quota - The British Columbia Court of Appeal affirmed that the sub­delegation of federal ad­ministrative authority was intra vires - See paragraphs 11 to 31.

Trade Regulation - Topic 3606

Marketing of agricultural products - Dairy products - Levies - The B.C. Milk Mar­keting Board and the Canadian Dairy Commission enforced a new milk market­ing scheme - The defendants were milk pro­ducers who operated inde­pendently of the scheme with­out quotas or licences from the Board and refused to pay non-quota or over-quota levies - The British Columbia Court of Appeal held that the tribunals were entitled to a civil judgment against the defendants for unpaid levies - Unpaid levies were recover­able as a debt in a court of competent jurisdiction - The court fur­ther held that the defendants were liable for unpaid "administrative" and "promo­tional" levies - The court held, however, that the defendants were not general part­ners in milk production and therefore not liable in­dividually for the judgment levies - See paragraphs 58 to 84.

Trade Regulation - Topic 3607

Marketing of agricultural products - Dairy products - Quotas - British Columbia Regulations (Milk Marketing Board Regu­lation) were passed under the Natural Products Marketing (B.C.) Act - Federal Regulations (Dairy Products Marketing Regula­tions) were enacted under the Can­adian Dairy Commission Act - The B.C. Milk Marketing Board issued orders allot­ting new provincial milk quota to existing quota holders - Under its joint authority, the Board issued a Con­solidated Order allotting federal milk quota concurrent with the provincial quota - Those milk pro­ducers operating outside the quota system did not receive any new provincial or federal quota - The British Columbia Court of Appeal affirmed that the alloca­tion of federal quota was not discrimina­tory, patently unreasonable or in­consistent with the legis­lation - See paragraphs 32 to 55.

Trade Regulation - Topic 3611

Marketing of agricultural products - Dairy products - Decisions of board or com­mission - Judicial review - The British Columbia Court of Appeal referred to the standard of judicial review of the B.C. Milk Marketing Board and the Canadian Dairy Commission - See paragraphs 44 to 46.

Words and Phrases

Collect - The British Colum­bia Court of Appeal held that the word "collect" as found in s. 13(1)(k) of the Natural Prod­ucts Marketing (B.C.) Act, R.S.B.C. 1979, c. 296, and s. 12(1)(f) of the Canadian Dairy Commission Act, R.S.C. 1985, c. C-15, must embody the concept of being able to sue to collect the debt - See paragraphs 60 to 62.

Cases Noticed:

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) 280 (C.A.), refd to. [para. 3].

Peralta et al. v. Ontario (1985), 7 O.A.C. 283; 49 O.R.(2d) 705 (C.A.), affd. [1988] 2 S.C.R. 1045; 89 N.R. 323; 31 O.A.C. 319, refd to. [para. 26].

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

United Brotherhood of Car­penters and Joiners of America, Local 579 v. Bradco Construction Ltd. (1993), 153 N.R. 181; 106 Nfld. & P.E.I.R. 140; 344 A.P.R. 140; 102 A.L.R.(4th) 402 (S.C.C.), refd to. [para. 45].

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, refd to. [para. 45].

Sivasamboo v. Canada (Minis­ter of Citi­zenship and Im­migration) (1994), 87 F.T.R. 46; 29 Admin. L.R.(2d) 211 (T.D.), refd to. [para. 46].

Boldrick v. Salz, [1952] O.W.N. 487 (C.A.), appld. [para. 63].

Manitoba (Eastern Judicial District Board) v. Winnipeg (City) (1886), 3 Man.R. 537 (Q.B.), refd to. [para. 64].

Orangeville Raceway Ltd. v. Wood Gundy (1955), 6 B.C.L.R. 391 (C.A.), refd to. [para. 79].

Statutes Noticed:

Canadian Dairy Commission Act, R.S.C. 1985, c. C-15, sect. 8 [para. 35]; sect. 9(e) [para. 75]; sect. 12 [para. 51]; sect. 12(1)(a) [para. 19]; sect. 12(1)(f) [para. 61]; sect. 12(1)(j) [para. 65].

Canadian Dairy Commission Act Regula­tions (Can.), Dairy Products Marketing Regula­tions, SOR/94-466, sect. 1, sect. 2, sect. 3, sect. 4, sect. 5(1), sect. 5(3), sect. 5(4), sect. 6, sect. 7(1), sect. 7(3) [para. 21].

Natural Products Marketing (B.C.) Act, R.S.B.C. 1979, c. 296, sect. 2 [para. 75]; sect. 13(1)(k) [para. 60]; sect. 19(1), sect. 19(2) [para. 65].

Natural Products Marketing (B.C.) Act, R.S.B.C. 1996, c. 330, sect. 17(1), sect. 17(2) [para. 65].

Natural Products Marketing (B.C.) Act Regulations (B.C.), Milk Marketing Board Regulations, reg. 16/94, sect. 2 [para. 6].

Counsel:

Christopher Harvey, Q.C. and Tracey M. Cohen, for the appellants;

Robert P. Hrabinsky and Ed­ward F.M. Macaulay, for the respondent, B.C. Milk Mar­keting Board;

Steven R. Stark and Thomas Harding, for the respondent, Canadian Dairy Com­mis­sion;

John R. Haig, Q.C., for the Attorney Gen­eral of Canada;

George Copley, Q.C., for the Attorney General of British Columbia.

This appeal was heard in Van­couver, British Columbia, on June 22 to 24, 1998, before Esson Braidwood and Proudfoot, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Braidwood, J.A., on September 8, 1998.