Skyline Agriculture v. Farm Land Security, 2015 SKQB 82

Judge:Layh, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:March 26, 2015
Jurisdiction:Saskatchewan
Citations:2015 SKQB 82;(2015), 473 Sask.R. 283 (QB)
 
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Skyline Agriculture v. Farm Land Security (2015), 473 Sask.R. 283 (QB)

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Temp. Cite: [2015] Sask.R. TBEd. AP.035

In The Matter Of the Saskatchewan Farm Security Act, SS 1988-89 C S-17.1

Skyline Agriculture Financial Corp., Skyline Agriculture Lending Corp., Skyline Agriculture Stream Corp., Skyline Agriculture Capital Corp. (applicants) v. the Farm Land Security Board (respondent)

(2014 QBG No. 2089; 2015 SKQB 82)

Indexed As: Skyline Agriculture Financial Corp. et al. v. Farm Land Security Board

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Layh, J.

March 26, 2015.

Summary:

The appellants were prospective international investors who were seeking to gain some measure of access to Saskatchewan's agricultural scene. They had an investment plan which they believed did not offend the land holding requirements of the Saskatchewan Farm Security Act. The Farm Land Security Board (FLSB) ruled otherwise. The appellants appealed the FLSB's decision.

The Saskatchewan Court of Queen's Bench held that the standard of review of the FLSB's decision was reasonableness and dismissed the appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The appellants were prospective international investors who were seeking to gain some measure of access to Saskatchewan's agricultural scene - They had an investment plan which they believed did not offend the land holding requirements of the Saskatchewan Farm Security Act - The Farm Land Security Board (FLSB) ruled otherwise - The appellants appealed - They argued for a correctness standard of review on the basis that the Act did not contain a privative clause and it did contain a right of appeal - The Saskatchewan Court of Queen's Bench applied New Brunswick (Board of Management) v. Dunsmuir (2013 S.C.C.) and held that the standard of review of a FLSB decision was reasonableness, based on existing jurisprudence (first stage of the Dunsmuir analysis) - Alternatively, the court proceeded to the second stage and held that, given the principle of deference allowed a tribunal when interpreting its home statute, as stated in Dunsmuir, and nudged by Moldaver, J., in McLean v. British Columbia (Securities Commission) (2013 S.C.C.) from a principle to a presumption, the presumption had not been rebutted; accordingly, the reasonableness standard applied - See paragraphs 23 to 68.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Saskatchewan Court of Queen's Bench stated that "Absent an earlier judicial determination of the standard of view, Dunsmuir [2008 S.C.C.] offers these factors - presence of a privative clause, the purpose of the tribunal, the nature of the legal question, and the tribunal's expertise, 'considered together' - to consider in determining the standard of review. However, reviewing Supreme Court decisions and learned authors' writings post Dunsmuir has prompted me to draw two conclusions: 1) the Supreme Court continues to struggle to provide certain and predictable principles to explain the applicable standard of review; and 2) the Supreme Court has infrequently referred to the four-factored Dunsmuir analysis and, instead, has developed certain rebuttable presumptions which, if applicable, seemingly obviate the need to move to the second, Dunsmuir analysis." - The court queried whether the presumption of reasonableness that the court had articulated displaced the need for the second step of the Dunsmuir analysis (as the learned authors and several decisions suggested), or did the presumption of reasonableness (particularly when the tribunal was interpreting its own statute) prima facie apply, only to be rebutted by certain exceptions which might include a consideration of the factors invoked by the second contextual analysis in Dunsmuir - The court adopted the second approach, stating that "[t]he Supreme Court could not have jettisoned the clear and emphatic two-step analysis in Dunsmuir without an equally clear and emphatic statement that the presumptions have displaced the need to turn to the second step of Dunsmuir. The presumptions, as well as the second step of the Dunsmuir analysis, must co-exist." - See paragraphs 34 to 41.

Administrative Law - Topic 9102

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

Real Property - Topic 286

Restrictions on ownership - Statutory - Nonresidents - The appellants, international investors, had a plan which they believed did not offend the land holding requirements of the Saskatchewan Farm Security Act (SFSA) - Essentially, the appellants and a second set of corporations implemented a series of transactions - No one disputed that the latter corporations satisfied the residency requirements for persons entitled to have a "land holding" under the SFSA - The Farm Land Security Board (FLSB) decided that the appellants did not satisfy the residency requirements under s. 76(e) of the SFSA - The FLSB rejected the appellants' assertion that "any interest in farm land" had to be consonant with, and limited to, the principle of an "interest in land" as developed under the jurisprudence respecting the Land Titles Act - It found that the totality of the proposed structure between the appellants and the other corporations "directly or indirectly ... confer[s] [upon the appellants a] right or control ordinarily accruing to the owner of farm land" (s. 76(e)(iii)(C)) - The FLSB anchored its definition of "land holding" in a purposive way - It found that the combination of the Mortgage, Loan, Swap, Derivative, Index and other agreements between the two sets of corporations gave the appellants many of the rights and controls respecting Saskatchewan farm land that the SFSA did not countenance them to receive, most particularly the benefit of any increase in the capital value of Saskatchewan farm land under the Derivative and the right to enjoy the income from the farm land under the Swap - The FLSB found that minimal rights had been left to the "putative farmer", comparing its position to a "tenant under a crop share arrangement" - The appellants appealed - The Saskatchewan Court of Queen's Bench applied a reasonableness standard and dismissed the appeal.

Real Property - Topic 288

Restrictions on ownership - Statutory - Farmland - [See both Administrative Law - Topic 3202 and Real Property - Topic 286 ].

Real Property - Topic 290

Restrictions on ownership or use - Statutory - "Land holding" defined - [See Real Property - Topic 286 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Real Property - Topic 286 ].

Words and Phrases

Land holding - The Saskatchewan Court of Queen's Bench discussed the meaning of "land holding" as found in s. 76(e) of the Saskatchewan Farm Security Act, S.S. 1988-89,  S-17.1 - See paragraphs 1 to 84.

Cases Noticed:

Dunsmuir v New Brunswick - see New Brunswick (Board of Management) v. Dunsmuir.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 23].

Guinn v. Manitoba (2009), 245 Man.R.(2d) 57; 466 W.A.C. 57; 2009 MBCA 82, folld. [para. 25].

Shields et al. v. Farm Land Security Board (Sask.), [2010] Sask.R. Uned. 79; 2010 SKQB 170, refd to. [para. 31].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, appld. [para. 35].

Tervita Corp. et al. v. Commissioner of Competition et al. (2015), 467 N.R. 97; 2015 SCC 3, refd to. [para. 36].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) (2010), 474 A.R. 169; 479 W.A.C. 169; 21 Alta. L.R.(5th) 30; 2010 ABCA 26, revd. [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 42].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 57].

Regina (City) v. Kivela et al. (2006), 275 Sask.R. 271; 365 W.A.C. 271; 266 D.L.R.(4th) 319; 2006 SKCA 38, refd to. [para. 63].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 71].

Affinity Credit Union v. United Food and Commercial Workers, Local 1400 et al. (2015), 451 Sask.R. 293; 628 W.A.C. 293; 2015 SKCA 14, refd to. [para. 75].

Campbell v. Workers' Compensation Board (Sask.) (2012), 393 Sask.R. 246; 546 W.A.C. 246; 2012 SKCA 56, refd to. [para. 76].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 76].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 76].

Statutes Noticed:

Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1, sect. 76(e) [para. 19].

Counsel:

M. Milani, Q.C., and E. Kleisinger, for the applicants;

J. Ehmann, Q.C., and K. Willet, for the respondent.

This appeal was heard by Layh, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on March 26, 2015.

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