Canadian Association of Regulated Importers et al. v. Canada (Attorney General) et al., (1994) 164 N.R. 342 (FCA)

• Judge: Heald and Linden, JJ.A., and Gray, D.J.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 06, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 164 N.R. 342 (FCA)

Regulated Importers v. Can. (A.G.) (1994), 164 N.R. 342 (FCA)

MLB headnote and full text

Attorney General of Canada (appellant) and The Canadian Broiler Hatching Egg Marketing Agency and The Canadian Hatchery Federation (cross-appellants) v. The Canadian Association of Regulated Importers, Parkview Poultry Ltd., Bertmar Poultry Ltd., George Tsisenpoulos, Henry Neufeld, Zigmond Tibay, Henry Kikkert, Eva Szasz Peterffy, Paul Dinga, C & A Poultry Ltd., Zoltan Varga, Jake Drost, George Drost, Joe Drost, Melican Farms Ltd., Joe Speck, Marinus Kikkert, Checkerboard Hatchery, Brampton Chick Hatching Co. Ltd., Zoltan Koesis, Roe Poultry Ltd., Gabe Koesis, Henry Fois (respondents)

(A-316-93)

The Canadian Hatchery Federation (appellants) and The Attorney General of Canada and The Canadian Broiler Hatching Egg Marketing Agency (cross- appellants) v. The Canadian Association of Regulated Importers, Parkview Poultry Ltd., Bertmar Poultry Ltd., George Tsisenpoulos, Henry Neufeld, Zigmond Tibay, Henry Kikkert, Eva Szasz Peterffy, Paul Dinga, C & A Poultry Ltd., Zoltan Varga, Jake Drost, George Drost, Joe Drost, Melican Farms Ltd., Joe Speck, Marinus Kikkert, Checkerboard Hatchery, Brampton Chick Hatching Co. Ltd., Zoltan Koesis, Roe Poultry Ltd., Gabe Koesis, Henry Fois (respondents)

(A-363-93)

Indexed As: Canadian Association of Regulated Importers et al. v. Canada (Attorney General) et al.

Federal Court of Appeal

Heald and Linden, JJ.A., and Gray, D.J.

January 6, 1994.

Summary:

The federal Minister of International Trade decided to allocate import quotas for hatch­ing eggs and chicks to Canadian hatcheries on the basis of market share rather than to traditional importers, including the appli­cants, on the basis of their historical record of imports. The applicants applied to quash the import allocation quota decision and for other prerogative relief.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 62 F.T.R. 172, allowed the application and quashed the Minister's decision. The Minister appealed.

The Federal Court of Appeal allowed the appeal.

Administrative Law - Topic 223

The hearing and decision - Right to be heard - Who is entitled to be heard - The federal Minister of International Trade decided to allocate import quotas for hatching eggs and chicks to Canadian hatcheries on the basis of market share rather than to traditional importers, includ­ing the applicants, on the basis of their historical record of imports - Affected importers applied to quash the Minister's decision alleging a denial of natural justice - The Federal Court of Appeal held, inter alia, that the principles of natural justice were not applicable to setting a quota policy whether the policy is set by a Minister or a board - See paragraphs 18 to 21.

Administrative Law - Topic 544.1

The hearing and decision - Decisions of the tribunal - Improper considerations - The federal Minister of International Trade decided to allocate import quotas for hatching eggs and chicks to Canadian hatcheries on the basis of market share rather than to traditional importers, includ­ing the applicants, on the basis of their historical record of imports - Affected importers applied to quash the Minister's decision alleging that the Minister con­sidered irrelevant factors in reaching his decision - The Federal Court of Appeal held that the courts will only interfere if the decision was based entirely or pre­dominantly on irrelevant factors and it was not fatal that some irrelevant factors were considered - See paragraphs 22 to 30.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See Administrative Law - Topic 223 ].

Administrative Law - Topic 8265

Administrative powers - Discretionary powers - Exercise of - The federal Minis­ter of International Trade decided to allo­cate import quotas for hatching eggs and chicks to Canadian hatcheries on the basis of market share rather than to traditional importers, including the applicants, on the basis of their historical record of imports - Affected importers applied to quash the Minister's decision - The trial judge held that the Minister's decision to issue notice to importers was reviewable as a statutory power - The Federal Court of Appeal held that the Minister's decision was a discre­tionary act in the nature of a policy guideline and therefore was virtually unreviewable - See paragraphs 10 to 16.

Crown - Topic 706

Authority of Ministers - Delegation of - What constitutes a delegation - The fed­eral Minister of International Trade decided to allocate import quotas dif­ferently than in the past - The Secretary of State issued the relevant import permits - Affected importers applied to quash the reallocation decision, arguing that the Minister of International Trade was not empowered to make the decision, rather the Secretary of State was the Minister designated under the Export and Import Permits Act - The Federal Court of Appeal affirmed that the Secretary of State adopted, as his own, the decision of the Minister for International Trade - This was not a case of an unauthorized subdelegation of authority - See paragraph 31.

Trade Regulation - Topic 3543

Marketing of agricultural products - Pro­duction and import quotas - Changes in quota system - [See Administrative Law - Topic 223 and Crown - Topic 706 ].

Cases Noticed:

Maple Lodge Farms v. Canada (Govern­ment) et al., [1981] 1 F.C. 500; 42 N.R. 312 (C.A.), affd. [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 13].

Thorne's Hardware Ltd. v. R., [1983] 1 S.C.R 106; 46 N.R. 91; 143 D.L.R.(3d) 577, refd to. [para. 16].

Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 19].

Martineau v. Matsqui Institution Discipli­nary Board, [1980] 1 S.C.R. 602; 30 N.R. 119; 106 D.L.R.(3d) 385; 13 C.R.(3d) 1; 50 C.C.C.(2d) 353, refd to. [para. 19].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R.(3d) 1, refd to. [para. 19].

Bates v. Hailsham (Lord) of St. Maryle­bone, [1972] 3 All E.R. 1019, refd to. [para. 19].

Bedesky v. Ontario (Farm Products Mar­keting Board) (1975), 58 D.L.R.(3d) 484 (Div. Ct.), affd. (1976), 62 D.L.R.(3d) 265 (Ont. C.A.), refd to. [para. 20].

Cantwell et al. v. Canada (Minister of the Environment) et al. (1991), 41 F.T.R. 18 (T.D.), refd to. [para. 23].

Vancouver Island Peace Society v. Canada (Minister of National Defence) et al., [1992] 3 F.C. 42; 53 F.T.R. 300 (T.D.), refd to. [para. 23].

National Anti-Poverty Organization et al. v. Canada (Attorney General) et al. (1989), 99 N.R. 181; 36 Admin. L.R. 197 (F.C.A.), refd to. [para. 24].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134; 75 D.L.R.(4th) 385, refd to. [para. 32].

Statutes Noticed:

Aeronautics Act, R.S.C. 1985, c. A-2, sect. 5, sect. 6 [para. 21].

Broadcasting Act, R.S.C. 1985, c. B-9.01, sect. 11(5) [para. 21].

Export and Import Permits Act, R.S.C. 1985, c. E-19, sect. 5(1) [para. 11]; sect. 8(1) [para. 12].

Farm Products Marketing Agencies Act, R.S.C. 1985, c. F-4, sect. 16, sect. 17 [para. 4]; sect. 21 [para. 27]; sect. 23 [para. 26].

Government Organization Act, S.C. 1983, c. 167, sect. 4, sect. 6 [para. 31].

Grain Futures Act, R.S.C. 1985, c. G-11, sect. 5(2) [para. 21].

Transportation of Dangerous Goods Act, R.S.C. 1985, c. T-19, sect. 22(1) [para. 21].

Counsel:

Marlene Thomas and Chris Parke, for the appellant, Attorney General of Canada;

François Lemieux and David Wilson, for the cross-appellant, The Canadian Broiler Hatching Egg Marketing Agency;

Douglas Hodgson and Herman Turkstra, for the cross-appellant, Canadian Hatchery Federation;

Paul Stott and John Pepall, for the respon­dents.

Solicitors of Record:

John C. Tait, Q.C., Deputy Attorney Gen-eral of Canada, Ottawa, Ontario, for the appel­lant, Attorney General of Canada;

Osler, Hoskin and Harcourt, Ottawa, Ontario, for the cross-appellant, The Canadian Broiler Hatching Egg Market­ing Agency;

Turkstra, Mazza, Shinehoft and Mihailo­vitch, Toronto, Ontario, for the cross-appellant, Canadian Hatchery Federation;

Abraham, Duggan, Toronto, Ontario, for the respondents.

These appeals were heard in Toronto, Ontario, on December 1, 2 and 3, 1993, before Heald and Linden, JJ.A., and Gray, D.J., of the Federal Court of Appeal.

The decision of the Court of Appeal was delivered by Linden, J.A., on January 6, 1994.