Date: 20050725
Docket: T-1599-04
Citation: 2005 FC 1027
Present: THE HONOURABLE MR. JUSTICE de MONTIGNY
BETWEEN:
MINISTER OF AGRICULTURE, FOOD AND RURAL REVITALIZATION FOR SASKATCHEWAN, SASKATCHEWAN AGRI-FOOD COUNCIL, SASKATCHEWAN EGG PRODUCERS, COLBORN FARMS LTD., AMBERLEA FARM LTD. and SLOBOSHAN FARMS LTD.
Applicants
and
ATTORNEY GENERAL FOR CANADA,
EGG PRODUCERS OF NEWFOUNDLAND AND LABRADOR,
EGG PRODUCERS OF PRINCE EDWARD ISLAND,
NOVA SCOTIA EGG PRODUCERS,
NEW BRUNSWICK EGG PRODUCERS,
LA FÉDÉRATION DES PRODUCTEURS D=OEUFS DE CONSOMMATION DU QUÉBEC,
ONTARIO EGG PRODUCERTS,
MANITOBA EGG PRODUCERS,
ALBERTA EGG PRODUCERS BOARD,
NORTHWEST TERRITORIES EGG PRODUCERS= BOARD,
BRITISH COLUMBIA EGG MARKETING BOARD
Respondents
REASONS FOR ORDER
[1] The Egg Producers of Newfoundland and Labrador, Egg producers of Prince Edward Island, Nova Scotia Producers and New Brunswick Egg Producers (the AAtlantic Boards@) are seeking an order striking the application for judicial review dated August 30, 2004, pursuant to Rule 221 of the Federal Court Rules, 1998, SOR/98-106. They are supported by the Ontario Egg Producers and the Fédération des producteurs d=oeufs de consummation du Québec, both of whom filed written submissions and were represented at the hearing of this motion. The Attorney General of Canada was also represented but took no position with respect to this motion.
[2] The decision under challenge (the ADecision@), made on July 30, 2004 by the Canadian Egg Marketing Agency (ACEMA@), was to enact amendments to the Canadian Egg Marketing Quota Regulations, establishing an egg marketing quota allocation for the period from August 1, 2004 to December 25, 2004. The Applicants seek an order quashing CEMA=s Decision and related prohibitive and directive relief.
Facts
[3] The production and marketing of eggs in Canada is regulated through a coordinated series of federal and provincial laws and regulations. The coordinated system traces its roots to a Federal-Provincial Agreement for Eggs initially agreed to in 1972, and revised in 1976.
[4] The signatories to the 1976 Federal-Provincial Agreement are the federal Minister of Agriculture, the Ministers of Agriculture in all provinces, the Council, the agricultural supervisory boards in all provinces and the provincial egg boards in all provinces. The goal of this Agreement, as stated in the preamble, was to ensure the orderly marketing of eggs, a fair return to producers, a dependable supply of high quality products to the consumers, as well as cooperation and coordination between the provincial boards and CEMA.
[5] The Federal-Provincial Agreement contemplates a supply management system coordinated in a manner consistent with divided federal and provincial constitutional jurisdiction over the production and marketing of agricultural products. The constitutional validity of the system was upheld by the Supreme Court of Canada in Reference re: Agricultural Products Marketing Act, 1970, [1978] 2 S.C.R. 1198 and Fédération des producteurs de volailles du Québec v. Pelland, [2005] S.C.J. 19.
[6] CEMA is a body corporate established in 1972 by the Canadian Egg Marketing Agency Proclamation, SOR/73-1. This Proclamation was authorized by the Farm Products Agencies Act, R.S.C. 1985, c. F-4, which contemplated the creation of similar national agencies and the delegation of authority to those national agencies.
[7] CEMA is a stakeholder body comprised of members appointed by the 11 provincial and territorial egg commodity boards (representing egg producers) and by three downstream organizations (representing processors, hatcheries and consumers). The members of CEMA collectively operate as the Board of Directors of CEMA and oversee the overall policy and strategic direction of the organization.
[8]
CEMA is not an agent of the federal Crown and is required to operate without appropriations from Parliament apart from limited start-up funds. CEMA=s operations are subject to public interest oversight by the Council, a federal government institution comprised of members appointed by the Governor-in-Council. In particular, the Council must approve any amendments proposed by CEMA to Quota Regulations or Levies Order before they can be enacted.
[9] A key function performed by CEMA, subject to oversight by the Council, is the implementation of a quota system in respect of the marketing of eggs. The Proclamation Schedule sets out the 1973 base quota allocations for each signatory province; the Federal-Provincial Agreement, the Farm Products Agencies Act and the Proclamation also contemplate a framework for the future adjustment of quotas.
[10] In addition to establishing and maintaining the quota system at a federal level, CEMA also administers the Industrial Products Program. This Program aims at ensuring that producers are able to receive the producer price whether their federal or provincial quota marketings are sold into the stable egg market or the industrial egg market. The costs of running the Industrial Products Program are funded through levies collected from producers by the provincial boards.
[11] In their application for judicial review of the order made by CEMA on July 30, 2004, covering the period between August 1, 2004 and December 25, 2004, the Applicants (Respondents in this motion) contend that CEMA made its quota allocation order without taking into account the criteria set out in the Farm Products Agencies Act and in the Canadian Egg Marketing Agency Proclamation. There is no need to go any further into the details of this application for the purpose of ruling on the present motion.
[12] Before turning to the arguments made by the parties, it is worth noting that on December 16, 2004, CEMA enacted the 2005 quota allocation. The 2005 quota allocation replaced the 2004 quota allocation which, as noted above, expired on December 25, 2004. As was the case with the 2004 quota allocations, the 2005 quota allocation was previously approved by the Council. On January 14, 2005, the Applicants commenced an application for judicial review (Court file No. T-65-05) with respect to CEMA=s December 16, 2004 Decision. It appears that the relief sought and the grounds advanced in that file are virtually identical to the relief sought and the grounds advanced in the present file.
Issues
[13] This motion raises the following question: Should the Court exercise its discretion to strike the underlying application for judicial review, on the grounds that:
a) The issue is moot;
b) The Applicants= conduct has resulted in delays;
c) There are other alternative remedies provided by the Act.
Analysis
A) Mootness
[14] It is well established that a motion to strike an application must meet a very high threshold. This remedy, being the most extreme, is only justified in exceptional cases and shall not be granted lightly. It is only appropriate and shall only be granted in the clearest of cases; generally speaking, the proper way to contest an originating notice of application which a respondent thinks to be without merit will be to appear and argue at the hearing of the application itself rather than to bring a motion to strike. As the Federal Court of Appeal said in David Bull Laboratories (Can.)Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (F.C.A.)(QL), it is only in those rare cases where the motion is Aso clearly improper as to be bereft of any possibility of success@ that the Court will exercise its jurisdiction to dismiss it in a summary manner.
[15] It also bears noting that the onus of establishing that an issue is moot lies with the party asserting it: Morin v. Canada, [2001] F.C.T. 1430 (T.D.)(QL).
[16] There have been cases where this Court has struck a judicial review application where the issue had become moot and where the application, in any event, did not establish a prima facie basis for the Court to intervene. In Labbé v. Létourneau, [1997] F.C.J. No. 369 (T.D.)(QL), for example, Justice MacKay considered a motion to strike an application for judicial review which sought to enjoin the Commission of Inquiry into the Deployment of Canadian Armed Forces in Somalia from calling Labbé as a witness prior to full disclosure of certain information before the Commission. After the filing of the application for judicial review, but prior to the hearing of the matter, Labbé testified before the Commission. Justice MacKay held that the Application was rendered moot by the appearance of Labbé before the Commission and granted the motion to strike the application.
[17] Similarly, in Fogal v. Canada, [1999] F.C.J. No. 788 (T.D.)(QL), Mr. Justice McKeown granted on grounds of mootness a motion to dismiss an application for judicial review seeking declaratory relief with respect to the execution, ratification and implementation by Canada of the Multilateral Agreement on Investment. Following the filing of the application, the negotiations in respect of the agreement ended without the conclusion of an agreement, and Mr. Justice McKeown concluded that the application for judicial review had become moot and that it would not be appropriate for the Court to exercise its discretion to hear the case. See also: Narvey v. McNamara, [1997] F.C.J. No. 1330 (T.D.(QL); G.A. v. Alberta (Director of Child Welfare), [2002] A.J. No. 257 (Alba Q.B.)(QL).
[18] The leading case on the doctrine of mootness is the decision in Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, in which the Supreme Court of Canada dismissed an appeal on the basis that the legislation the appellant was challenging had been struck down in another decision of the Court prior to the hearing of the appeal. After having established that the doctrine of mootness is but one illustration of the general principle that a court may decline to decide a case which raises merely a hypothetical or abstract question, Mr. Justice Sopinka endorsed a two-step approach to considering mootness. First, it will be necessary to determine whether there remains a live controversy or concrete dispute between the parties. If the answer to this first question is negative and the case is accordingly moot, it is then necessary to determine if the court should exercise its discretion to hear the case nevertheless.
[19] The Court identified three criteria relevant to the exercise of its discretion at that second stage of the inquiry. They are: the presence of an adversarial context, the concern for judicial economy, and the need for the Court to be sensitive to its role as the adjudicative branch in our political framework. It is interesting to note, while discussing the second criteria, the following comments made by the Court at paragraph 36:
Yan expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly. (Y) The mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved.
[20] On the basis of this two step approach, the Atlantic Boards argue that the Application is clearly moot and should be struck since the 2004 quota allocation has expired and has been replaced by the 2005 quota allocation. They also contend that this is not an appropriate case for the Court to exercise its discretion to allow the Applicants= moot challenge to proceed to hearing in view of the dilatory conduct repeatedly engaged in by the Applicants, and the resulting serious prejudice to the Respondent provincial boards. Finally, they maintain that striking the application in respect of the 2004 quota allocation will not prejudice the Applicants since the Applicants= challenge to the 2005 quota application seeks the same relief and raises the same issues as the challenge to the expired 2004 quota allocation.
[21] The Applicants on the other hand are of the view that a tangible and concrete dispute continues to exist between the parties, notwithstanding that the 2004 allocation order expired on December 25, 2004. Relying on the affidavit of Mr. Michael Katz, General Manager of Egg Producers, they allege that the controversy which lies at the heart of this application has been in existence since 1999, and continues to exist as evidence by the filing of a similar application regarding the 2005 allocation. They also suggest that the 2004 allocation order will continue to determine any subsequent quota order.
[22] As for the second part of the Borowski, supra, test, the Applicants refer to a number of cases to conclude that the issues at the heart of the application ought to be judicially determined even if they were to be characterized as moot. Not only is the necessary adversarial context clearly present, as the parties are still in dispute regarding quota allocations for the same reasons as those presented in the application for judicial review, but as a matter of policy, the short lifespan of the subject order should also weigh in favour of exercising the court=s discretion to hear the matter.
[23] Applying the two step analysis developed in Borowski, supra, the Court must first determine whether there remains a live controversy between the parties that can be resolved by a decision in the underlying application for judicial review. Since the 2004 quota allocation has expired and has been replaced by the 2005 allocation, the raison d=être of the application has disappeared. According to Rule 302 of the Federal Court Rules, 1998, an application for judicial review must be directed to a single order; the relief sought must ordinarily be circumscribed by the particular order being challenged, and for that reason the application cannot be transformed into a generic challenge to all or many quota allocations made by CEMA.
[24] However, this is not the end of the matter. Even if the Application is technically moot, this Court has the discretion to hear it if the basic rationale for the enforcement of the mootness doctrine is present. In other words, the Court must determine whether there is still a live controversy, whether there are special circumstances that would make it worthwhile to apply scarce judicial resources to resolve it, and finally whether this is an appropriate case for the Court to intervene, bearing in mind its adjudicative role in our constitutional framework.
[25] In the present instance, there is no doubt that a live controversy and an adversarial relationship continues to exist between the parties. As reflected in the affidavit of Mr. Michael Katz, General Manager of the Saskatchewan Egg Producers, the controversy which lies at the heart of the application has been in existence since 1999. The Applicants have continuously argued that CEMA, in making quota allocations, did not take into consideration the appropriate criteria as required by s. 23(2) of The Farm Products Agencies Act, s. 4(1) of Part II of the Canadian Egg Marketing Agency Proclamation and s. 4(1) of Schedule B to the Federal Provincial Agreement. More importantly, the issue has not vanished with the expiry of the 2004 quota allocation. Indeed, the Applicants have filed a similar application in relation to CEMA=s allocation order for 2005. Hence, the expiration of CEMA=s 2004 order did not automatically extinguish the controversy.
[26] The Court must also be mindful of the second rationale on which the mootness doctrine is based, that is, the concern for judicial economy. As Mr. Justice Sopinka said in Borowski, AYif the court=s decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the action@ (supra, par. 35), the judicial resources will be well spent in considering the case even if it is moot. This is clearly the case here. It appears from the affidavit of Mr. Katz (and this has not been contradicted by the Respondents) that the 2004 allocation order will continue to determine any subsequent quota order. Because Amarket share@ (an inappropriate criterion, according to the Applicants) was utilized to determine the 2004 allocation, and will be used to determine subsequent allocations, the effect of the 2004 quota order is perpetuated in subsequent orders.
[27] Of equal significance in deciding whether scarce judicial resources should be put to use in a particular case is the existence of an issue of public importance, the resolution of which would be in the public interest. As Mr. Justice Sopinka put it in Borowski, AThe economics of judicial involvement are weighed against the social cost of continued uncertainty in the law@ (supra, par. 37). The underlying application for judicial review clearly meets this requirement. The resolution of the dispute between the applicants and the respondents clearly has implications not only for the producers and all those involved in the marketing of eggs, but also for Canadian consumers in general. Moreover, as alleged by the respondents themselves, this conflict and the tense relationship between the parties is not the most conducive environment for the negotiations and completion of a new Federal-Provincial Agreement for eggs. Yet, there appears to be a consensus among all signatories that the existing Agreement is out of date and badly needs to be changed to put the industry on secure footing both legally and operationally.
[28] There is another factor, even more critical, that militates strongly in favour of the Court exercising its discretion to hear this application for judicial review. Considering the short lifespan of the order under attack, a finding from this Court that the issue became hypothetical or academic immediately upon its expiration would have the practical effect of immunizing CEMA from any type of appropriate judicial review of its orders. It would, in effect, encourage tribunals and quasi-judicial bodies to make orders that would be effective for only limited periods of time so as to circumvent judicial oversight and supervision. As the Supreme Court recognized in Borowski, supra, at par. 36, this weighs heavily, as a matter of judicial policy, in favour of exercising the Court=s discretion to hear the matter, especially in a case like this one where the subsequent orders are likely to have expired before the dispute can be settled in courts (see, by way of analogy, Harrison Hot Springs (Village) v. Kamenka (c.o.b. World Endurance Sport), [2004] B.C.J. No. 1251 (B.C.C.A.)(QL).
[29] Finally, in deciding whether it would be a proper use of its discretion to hear this application for judicial review, the Court must be mindful of its proper adjudicative function and must strive not to be seen as intruding into the role of the legislature. In the context of the present application, this criterion is easily met since the Court would be performing the function that is at the very core of its jurisdiction: ensuring that a statutory body operates within the confines of the law and of its delegated authority. In examining whether CEMA uses appropriate criteria in making quota allocation orders, this Court would clearly be performing a judicial function and would not interfere with legitimate political decisions.
[30] I am reinforced in this conclusion by the decisions of my colleagues in two recent and very similar cases: Radil Bros. Fishing Co v. Canada, [2003] F.C.J. No. 106 (T.D.(QL); Nunavut Territory v. Canada, [2005] F.C.J. No. 423 (T.D.)(QL). In both of these cases, the decisions under attack were expired, had a short lifespan and had repercussions for the future. Relying on the two step approach elaborated in Borowski, supra, Prothonotary Hargrave in the first case and Justice Gibson in the second came to the conclusion that there was still a live controversy and that the mootness doctrine did not apply.
[31] For all these reasons, I am of the view that the Respondents have not met the onus of establishing that the application for judicial review filed by the Applicants is moot, despite the fact that the 2004 quota allocation has now expired. I acknowledged that this Court has in the past struck a number of applications for judicial review on the ground of mootness: see, for example, Labbé v. Létourneau, [1997] F.C.J. No. 369 (T.D.)(QL); Fogal v. Canada, [1999] F.C.J. No. 788 (T.D.)QL); Narvey v. McNamara, [1997] F.C.J. No. 1330. I have carefully reviewed, but I believe that they are all distinguishable on their facts. In none of these cases do we find the combination of a live controversy, going back several years and yet to be resolved, with respect to an order of a short lifespan but with clear implications for the future.
B) Delays
[32] The Respondents have also strenuously argued that the Application for judicial review should be dismissed because of the dilatory conduct of the Applicants. The Respondents pointed out, for example, that the Applicants misjoined CEMA instead of naming the affected parties, and then waited six months to bring a motion to correct the mistake. The Applicants, on the other hand, counter that there are reasonable justifications for most of the delay that occurred. First, the Applicants= counsel was appointed to the court in October 2004, which necessitated the retention of a new counsel. They also contend that the Respondents are themselves responsible for part of the delay in bringing this motion to strike.
[33] An Application for judicial review is obviously a summary procedure, as is made clear by the short time frame to make it and by the short delays provided in Rule 301 of the Federal Court Rules, 1998, for the various procedural steps to be completed before it can be heard. While this Court most certainly possesses the implied jurisdiction to make its own procedural work and to ensure that its resources are put to the best use possible, I am of the view that this case does not warrant such a drastic measure as the dismissal of the application for judicial review.
[34] While I am convinced that the Applicants have been far from diligent in perfecting their application for judicial review, and have disregarded the rules pertaining to the delays more than once, I am not prepared to strike their application. They have showed all along a genuine interest in pursuing the litigation, and have indeed filed another application for judicial review with regards to the 2005 quota allocation. The administration of justice would not be served by striking this application, as there is a live controversy that ought to be settled.
[35] In the circumstances, the best course of action is to consolidate the two proceedings (i.e., the 2004 and the 2005 applications for judicial review), pursuant to Rule 105. Considering the common issues of law and fact, the common parties, the parallel evidence and the likelihood that the outcome of one case will determine the other, it is appropriate to have the two applications heard together; this is by far the most efficient way, both for the parties and for the Court, to come to the most efficient and timely resolution of this dispute.
[36] I am also mindful of the protracted nature of these proceedings and of the need to bring them to an end as quickly as possible, in the interests of the parties themselves. It is hoped that the resolution of this litigation will clear the air and contribute to create an environment conducive to the finalization of a new Federal Provincial Agreement. Both parties having expressed a desire to have this application heard in the fall, I will therefore ask for a proposed schedule of the remaining procedural steps, with a view to having a consolidated hearing of the two applications (T-1599-04 and T-65-05) no later than November.
C) Alternative Remedies
[37] Before disposing of this motion, there is one final argument that I need to deal with. It was argued that the Applicants should have followed the complaint route in the Farm Products Agencies Act, s. 7(1)(d) and (f), prior to applying for judicial review. These provisions provide, in essence, that the National Farm Products Council shall review all orders that are proposed to be made by an agency like CEMA and approve them if satisfied that they are necessary for the implementation of the marketing plan. The Council shall also make inquiries and take appropriate actions in relation to any complaints received Afrom any person who is directly affected by the operations of an agency and that relate to the operations of the agency@. Closely related to this argument is the submission that it is the decision of the Council that should have been challenged by way of judicial review, instead of the order made by CEMA.
[38] There is no doubt that the Court will not ordinarily quash a decision of a federal agency unless and until the applicant has exhausted all other avenues of redress and appeal. In Harelkin v. University of Regina, [1979] 2 S.C.R. 561, Justice Beetz for the majority listed the factors to be taken into consideration to determine whether an administrative tribunal provides an adequate alternative remedy. In the present case, I am not convinced that this Court should even embark on this analysis, since the complaint procedure outlined in s. 7(1)(f) of the Farms Products Agencies Act appears to be aimed at addressing complaints related to the operations of an agency, not to determine whether an order made by that agency is in accordance with the law. It would indeed be strange, to say the least, to raise the legality of an order before the very same authority which has approved it.
[39] I note further that the Respondents have raised this argument but have not pursued it with much forcefulness and did not shore it up with one single case. In any event, considering the exceptional nature of a motion to strike, I believe that this issue is better left to the judge who will eventually rule on the merits of this application for judicial review.
"Yves de Montigny"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: MINISTER OF ARGRICULTURE, FOOD AND RURAL REVITALIZATION FOR SASKATCHEWAN, SASKATCHEWAN AGRI-FOOD COUNCIL,
SASKATCHEWAN EGG PRODUCERS, COLBORN FARMS LTD, AMBERLEA FARMS LTD AND SLOBOSHAN FARMS LTD
and
EGG PRODUCERS OF NEWFOUNDLAND AND LABRADOR,
EGG PRODUCERS OF PRINCE EDWARD ISLAND,
NOVA SCOTIA EGG PRODUCERS,
NEW BRUNSWICK EGG PRODUCERS,
LA FÉDÉRATION DES PRODUCTUERS D'OEUFS DE CONSOMMATION DU QUÉBEC
ONTARIO EGG PRODUCERS,
MANITOBA EGG PRODUCERS,
ALBERTA EGG PRODUCERS BOARD,
NORTHWEST TERRITORIES EGG PRODUCERS'BOARD,
BRITSH COLUMBIA EGG MARKETING BOARD
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 28, 2005
REASONS FOR ORDER: de Montigny J.
APPEARANCES:
Mr. Michael D. Tocher and Mr. Katz FOR APPLICANTS
Mr. David Wilson FOR RESPONDENT ATLANTIC EGG PRODUCERS
Mr. Robert Wilson FOR RESPONDENT FOR ONTARIO EGG PRODUCERS
Me Pierre Brosseau FOR RESPONDENT FIDIRATION DES PRODUCTEURS D EUFS DE CONSOMMATION DU QUIBEC
Ms Glennys Bembridge FOR RESPONDENT AGC
SOLICITORS OF RECORD:
Mr. Michael D. Tochor FOR APPLICANTS
Regina, Saskatchewan
Mr. David Wilson FOR RESPONDENT
Ottawa, Ontario
Mr. Robert Wilson FOR RESPONDENT
St. Catharines, Ontario
Me Pierre Brosseau FOR RESPONDENT
Longueuil, QC
Ms Glennys Bembridge FOR RESPONDENT
Saskatoon, Saskatchewan