Date: 20060426

Docket: T-1255-05

Citation: 2006 FC 516

Ottawa, Ontario, the 26^th day of April 2006

PRESENT: THE HONOURABLE MR. JUSTICE BLAIS

 

BETWEEN:

FÉDÉRATION DES PRODUCTEURS ACÉRICOLES DU QUÉBEC

Applicant

and

 

CANADIAN FOOD INSPECTION AGENCY

and

ATTORNEY GENERAL OF CANADA

Respondents

 

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

 

[1]               The Court has before it an application filed pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, by which the Fédération des producteurs acéricoles du Québec (the applicant or the Fédération) is seeking an order of mandamus and a declaratory judgment in respect of a decision of the respondent Canadian Food Inspection Agency (the Agency), which ruled that the applicant had no right to receive the documents referred to in sections 21 and 23 of the Maple Products Regulations (C.R.C., c. 289 – the Regulations).

 

RELEVANT FACTS

[2]               The respondent is responsible for ensuring and supervising the administration of various statutes and regulations regarding the safety of food, protection of plants and health of animals in Canada.

 

[3]               Where an inspector appointed by the Agency believes that there has been a violation of the Canada Agricultural Products Act, R.S.C. 1985 (4^th supp.), c. 20 (the Act) or its Regulations, he may seize and detain agricultural products. In the case at bar, maple products were seized and detained.

 

[4]               The Fédération asked the Agency [translation] “in the future to provide the Fédération with all relevant information which the latter may reasonably request regarding detentions and release of detentions of maple syrup in large containers produced in the province of Quebec . . .”.

 

[5]               On March 7, 2005, by a letter to counsel for the Fédération, the Agency definitively rejected the Fédération’s request.

 

ISSUES

 

[6]               1. Have the criteria for an order of mandamus and a declaratory judgment been met in the case at bar?

 

(a)  Was the Fédération owed the duties provided for in sections 21 and 23 of the Regulations?

 

(b) Do other adequate remedies exist?

 

 

ANALYSIS

[7]               The Fédération is a group of 11 professional unions of maple product producers and has the status of a maple product marketing agency in Quebec within the meaning of section 65 of the Act Respecting the Marketing of Agricultural, Food and Fish Products, R.S.Q., c. M-35.1. In this regard, the Fédération applies and administers the Plan conjoint des producteurs acéricoles du Québec (the Plan Conjoint) amended by subsequent decisions of the Régie des marchés agricoles et alimentaires du Québec (the Régie), a regulatory and quasi-judicial agency specializing in the marketing of agricultural products in the province of Quebec.

 

[8]               In relation to the administration of the Plan Conjoint the Régie has approved inter alia the [translation] Regulations Respecting the Maple Products Marketing Agency, which provide that a maple products producer must market all the maple syrup or maple sap he produces in containers of not less than 5 litres or more than 5 kilograms through the Fédération, which is the exclusive sales agent of maple product producers in Quebec (see sections 1, 2 and 3 of the [translation] Regulations Respecting the Maple Products Marketing Agency). Accordingly, a maple products producer of large containers located in Quebec must necessarily place his product at the disposal of the Fédération if he wishes to market it.

 

[9]               Under section 5 of the [translation] Regulations Respecting the Maple Products Marketing Agency, the Fédération may retain the services of purchasers which it authorizes to receive on its behalf from maple product producers maple sap, maple sap concentrate and maple syrup, in accordance with the provisions of a marketing agreement to that effect. Accordingly, under the regulations in effect in Quebec, in addition to the Fédération, only authorized purchasers have the right to receive maple syrup in large containers directly from maple product producers. Thus, a maple product producer may deliver his maple syrup either directly to the Fédération or through an authorized buyer receiving the maple syrup for, and on behalf of, the Fédération.

 

[10]           The Fédération operates two maple syrup warehouses in Quebec. These two warehouses are “registered establishments” under the Maple Products Regulations, for which the Fédération is the holder of an approval.

 

[11]           Section 21 of the Act gives an inspector the power to enter and inspect any place in which the inspector believes on reasonable grounds that there is any agricultural product or other thing in respect of which the Act or Regulations apply. Section 23 of the Act gives the inspector the power to seize and detain any agricultural product or other thing, in particular maple products, if he believes on reasonable grounds that the Act or the Regulations have been contravened, or that will afford evidence in respect of a contravention of the Act or Regulations.

 

 

[12]           Sections 21 and 23 of the Regulations set out the procedure for administering the seizure and detention of maple products, mentioned in section 23 of the Act:

 

[13]           An inspector appointed by the Agency who has detained maple products under section 23 of the Act has a duty to deliver or mail the notice of detention and notice of release of detention, as applicable, to persons covered by sections 21 and 23 of the Regulations. The Fédération is currently never notified by the Agency of this information, except for the maple syrup which is in the two “registered establishments” which it has.

 

(a)  Was the Fédération owed the duties mentioned in sections 21 and 23 of the Regulations?

 

[14]           The Fédération argued that it was clearly owed the duties provided for in sections 21 and 23 of the Regulations. The Fédération maintained it was entitled to receive these notices both because it is the agent of the owner of the maple product seized and because it had care or custody of the maple product at the time of seizure, regardless of where it was physically located. The Agency’s refusal constituted a failure to carry out its non-discretionary legal duties to the Fédération mentioned in the Regulations, and this is why the Fédération is seeking an order of mandamus.

 

[15]           The central issue, i.e. whether the respondents had a legal duty in this case to provide the applicant the information specified in sections 21 and 23 of the Regulations, is in fact a question of legislative interpretation subject to review according to the standard of correctness (see Alberta Wapiti Products Cooperative Ltd. v. Canada (Minister of Agriculture and Agri-Food), [2005] F.C.J. No. 1806, at paragraph 63).

 

[16]           The conditions for obtaining an order of mandamus were stated in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, and summarized as follows at pages 766 et seq.:

1. There must be a public legal duty to act . . .

 

2. The duty must be owed to the applicant . . .

 

3. There is a clear right to performance of that duty, in particular:

(a) the applicant has satisfied all conditions precedent giving rise to the duty . . .

(b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay . . .

 

4. Where the duty sought to be enforced is discretionary, the following rules apply:

(a) in exercising a discretion, the decision-maker must not act in a matter which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropriety” or “bad faith”;

(b) mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified”, “absolute”, “permissive” or “unfettered” . . .

 

5. No other adequate remedy is available to the applicant . . .

 

6. The order sought will be of some practical value or effect . . .

 

7. The Court in the exercise of its discretion finds no equitable bar to the relief sought . . .

 

8. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue.

 

[17]           The Fédération argued that it met each of these conditions for obtaining an order of mandamus. First, it alleged that there was a legal duty to act of a public nature and that this duty was owed to it. The public duty to act is set out in subsection 21(1) of the Regulations. An inspector designated by the Agency who has detained maple products under section 23 of the Act has a duty to deliver or mail the notice of detention or release of detention, as the case may be, to the persons specified in subsection 21(1) of the Regulations. The Fédération argued that it was one of the persons specified in that subsection.

 

[18]           The respondents denied that the applicant was one of the persons clearly identified by subsection 21(1), except for cases in which it is itself the holder of an approval and the products seized were found in that establishment. The persons specified in subsection 21(1) are the following:

(a) . . . the person having the care or custody of the maple product or other thing at the place where it was seized;

 

(b) . . . the owner of the maple product or other thing that was seized, or . . . the owner’s agent . . .

 

[19]           In its written submissions, the Fédération reviewed the regulatory framework and provincial case law to show that it was by implication, the producers’ agent. The Fédération maintained that, as agent of the owner of the maple product seized in the “ registered establishments”, it is entitled to the performance of the legal duty mentioned in paragraph 21(1)(b) of the Regulations regarding it.

 

[20]           I agree that the Fédération is the producers’ agent. However, as the respondents pointed out, paragraph 21(1)(b) of the Regulations indicates that notices of detention shall be sent to the owner of the product or to its agent. My view is that paragraph 21(1)(b) leaves the designated inspector a choice of sending the notices in question to either of the persons mentioned in that paragraph. In Apotex, supra, the Court of Appeal had mentioned at page 767, when a mandamus order is sought in relation to a discretionary power, special rules apply:

 

(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair” “oppressive” or demonstrate “flagrant impropriety” or “bad faith”;

 

(b) mandamus is unavailable if the decision-maker's discretion is characterized as being “unqualified”, “absolute”, “permissive” or “unfettered”;

 

(c) in the exercise of a “fettered” discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations;

 

(d) mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and

 

(e) mandamus is only available when the decision-maker's discretion is “spent”; i.e., the applicant has a vested right to the performance of the duty.

 

[21]           The inspectors designated by the Agency do not immediately have knowledge of the often complex relations between the Fédération, producers and buyers. The Agency accordingly has a discretion under paragraph 21(1)(b) of the Regulations, and that discretion must not be exercised unfairly, in bad faith or for irrelevant considerations. The applicant did not show the Court that the respondent has acted in an unfair or oppressive way in exercising its discretion. The Fédération sought to steer the respondent’s discretion in a particular direction. The Fédération was trying to add to the Regulations and did not establish that it had a clear right to detention and release notices under paragraph 21(1)(b) of the Regulations.

 

[22]           The Fédération considered that it should receive a copy of the detention notices issued by inspectors and a copy of the release notices, because it met the requirement of paragraph 21(1)(a) of the Regulations, in that, it was a person having care or custody of the maple product at any place where it is seized.

 

[23]           The applicant added that the authorized purchasers are agents of the Fédération as long as they have not paid the latter in full for the maple products they received in their “registered establishments” in accordance with the terms of clause 8.01 of the marketing agreement. It argued that the authorized purchasers are in fact only temporary holders of the maple syrup seized and detained by the inspectors designated by the Agency at the “registered establishments” and do not have legal custody thereof. Therefore, only the Fédération has legal custody of the maple product stored for it by the authorized purchasers in their “ registered establishments” until the latter have made full payment to the Fédération.

 

[24]           The applicant argued that paragraph 21(1)(a) of the Regulations refers to the concept of “care or custody” at the place where the product is seized, not to [translation] “physical custody”. It indicated that the Regulations should be interpreted in accordance with the civil law in effect in the province of Quebec and construed consistently with Quebec case law. By that interpretation, the applicant suggested that the words “care or custody” in the Regulations involved a power of controlling, directing and supervising the maple syrup received from producers. As authorized purchasers have none of these powers, it is the Fédération that has custody of the product until the buyer has paid in full.

 

[25]           The applicant used the definition of “care or custody” in the civil liability sense. It cited Baudoin’s text book as a basis for making a distinction between the holder and the person having custody. A mere holder does not have custody because he does not have actual control and direction of the product. The applicant argued that the purchaser is only the holder of the product. I do not agree with this analysis of the words “care and custody” suggested by the applicant, because the situation at issue here does not arise in a civil liability context.

 

[26]           In R. v. Drakes (Q.C.A.), [1991] Q.J. No. 1681, the Quebec Court of Appeal mentioned in relation to a definition of “care and custody”:

In the Nova Scotia County Court His Honour Judge Pottier said in R. v. Henley, [1963] 3 C.C.C. 360 at p. 366, in a case similar to this one:

 

The word “care” may also mean custody, charge, safe keeping, preservation, oversight or attention. Where it is used in this sense it becomes a relative term and is of broad comprehension. One has to look at the provision of its use and determine its physical sense from that standpoint.

 

[27]           The respondents submitted that, in reading paragraph 21(1)(a), an element of physical control of the maple product is clearly suggested. This is still more apparent from reading the English version of the Regulations, which indicates “the person having the care or custody of the maple product”. Further, the respondents believed that authorized purchasers had a power of control, direction and supervision of products received from producers. Authorized purchasers are subject to legal requirements and duties set out, inter alia, in the Regulations. For example, packing and shipping facilities must be designed, built and maintained so as to avoid any conditions which might lead to the contamination of products. Authorized purchasers also have a duty to store products detained in conditions that will ensure they are preserved and to make certain that products seized or detained, and their labels, are not moved or altered.

 

[28]           Physical custody is of great importance in the case at bar, since inspectors seized and detained maple products for examination and control: obviously, therefore, it is crucial that the person or persons with physical custody of the products concerned by the seizure and detention order issued by the inspectors pursuant to sections 21 and 23 of the Act and sections 21 and 23 of the Regulations be fully aware of the consequences of these notices.

 

[29]           Accordingly, my view is that the procedure followed by the inspectors in exercising their discretion to deliver seizure and detention notices complied with the provisions of the Act and of the Regulations.

 

(b)  Are there other adequate remedies?

[30]           The applicant argued that, apart from mandamus, there is no other way of asserting its right to have the information requested. However, the respondents submitted that the Fédération has other means to obtain information requested.

 

[31]           The respondents stated that, under the Plan Conjoint, the Fédération may carry out any inquiry necessary to the implementation of the Plan and may obtain from producers any information thought necessary to the implementation of the Plan and the Regulations. Section 20 of the Plan provides that a producer shall give the Fédération any information considered necessary to the implementation of the Plan or the Regulations.

 

[32]           Also, the respondents stated that section 29 of the Act Respecting the Marketing of Agricultural, Food and Fish Products, R.S.Q., c. M-35.1, authorizes the Régie des marchés agricoles to take action against a producer who does not comply with a provision of a plan or agreement. The applicant could thus apply to the Régie for the information sought. Section 97 of the Act Respecting the Marketing of Agricultural, Food and Fish Products gives the applicant a regulatory power to determine the information and documents which a producer must provide. In addition, sections 163 to 165 of the Act Respecting the Marketing of Agricultural, Food and Fish Products authorize the Régie to exercise coercive powers to compel the production of information on matters covered by the Act.

 

[33]           It appears from the comments submitted to the Court by counsel for the applicant that the Fédération is experiencing some difficulties in obtaining copies of notices of seizure or of notices of release of the said seizures from purchasers, that it has itself authorized to purchase the products in question, and this threatens the effective management of the Plan Conjoint.

 

[34]           It appears clearly from sections 4, 5, 10, 11, 12 and in particular 13(b) that the Fédération has full powers to investigate and obtain from producers any information considered necessary for the implementation of the Plan and the administration of the Regulations:

[translation]

 

13.  The Fédération may:

 

. . .

 

(b) make any inquiry necessary for the implementation of the Plan or the administration of a Regulation or regarding the conditions for marketing the product in question, or to improve the outlets for such products. It may obtain from producers any information considered necessary for the implementation of the Plan and the administration of the Regulations . . .

 

 

[35]           Section 20 of the Plan Conjoint, and in particular subsection (e), sets out the duties of a producer: he is to provide the Fédération with any information necessary for the implementation of the Plan or the administration of the Regulations:

[translation]

 

20. The producer shall:

 

(a) comply with the decisions and Regulations made by the Fédération pursuant to the powers vested in it under the Act and the Plan;

 

(b) observe any agreement concluded in the course of the administration of the Act and the implementation of the Plan;

 

(c) pay the costs of administration of the Regulations and the implementation of the Plan in accordance with the amounts and terms specified under the Act and Plan;

 

(d) if applicable, pay his share of any amount owed to any person whose intervention has been requested to market the product in question and whose services are retained by the Fédération in accordance with the terms established or negotiated by the Fédération or its agent, and authorize any person hired by the Fédération to market the product in question and receive the overall proceeds of a joint sale to deduct that portion and deliver the same to any person designated by it;

 

(e) provide the Fédération with any information considered necessary for implementing the Plan or regulations.

 

[36]           I understand that the Fédération has to obtain information on seizures in order to avoid paying producers for quantities of maple products which may have been seized and possibly destroyed. This question has more to do with the contractual relationship between the producers, the authorized buyers and the Fédération, and does not concern the Federal Court.

 

[37]           Sections 92 to 102.1 of the Act Respecting the Marketing of Agricultural, Food and Fish Products set out the powers of marketing agencies. Subsection 92(2) of that Act clearly states that an agency may, by a by-law, determine the information and documents which the producers must supply to the board. Section 29 authorizes a reduction and even a suspension of the authorized quotas of negligent or delinquent producers.

 

[38]           In addition, under sections 163 and 164, the Régie des marchés agricoles et alimentaires du Québec may conduct an investigation and require parties engaged in production or marketing to provide information on their operations.

 

[39]           Appendix A of the marketing agreement between the Fédération and purchasers of the product concerned in the Plan Conjoint (Exhibit BP-3) was filed at the hearing: it is an authorization request form which must be filed by potential purchasers who wish to be authorized to purchase the products in question, here maple products. Section 7 of this form is an undertaking by the buyer to provide [translation] “such additional information as the Fédération may require for valid reasons”. May we not conclude that the obtaining of information on seizures is a “valid reason”, before concluding the sale of the products in question?

 

[40]           I have no choice but to conclude that the Fédération still has a number of unexplored avenues for obtaining what it is seeking by this application for mandamus.

 

[41]           The arguments regarding the complexity of the process or tenuous nature of the relations between the parties involved simply cannot withstand scrutiny.

 

[42]           Neither the Canadian Food Inspection Agency, and even less the Federal Court, can make up for the lack of cooperation between the various partners, the Fédération, the producers and the authorized buyers, and the latter are legally subject to mutual obligations under valid legislation and regulations.

 

[43]           In the context of an application for judicial review, the Federal Court may exercise a market regulation function to compel partners to comply with contractual agreements, subject to a broad superintending power exercised by other bodies, including the Régie des marchés agricoles alimentaires du Québec.

 

[44]           In particular, the respondent has a supervisory role regarding the quality of products marketed and must ensure that the specific requirements of federal legislation are observed in full: its function does not extend to the fine points of rules governing the relationship between parties operating in the market.

 

[45]           As the applicant is not covered by section 21 of the Regulations, except for cases where it has itself become the holder of approval, and the products seized are in that establishment, and as there are other means available for the applicant to obtain the information sought, it does not meet the requirements of a mandamus. There is no need to deal with the other conditions for obtaining an order of mandamus. Further, the applicant has not proven the existence of any right, and accordingly no declaratory judgment shall be rendered.

JUDGMENT

 

            THE COURT ORDERS AND DECLARES that:

 

1.      The application for judicial review is dismissed;

2.      The respondents shall be entitled to a single bill of costs.

 

 

 

“Pierre Blais”

 

 

 

 

 

 

 

Certified true translation

François Brunet, LLB, BCL

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                                     T-1255-05

 

STYLE OF CAUSE:                                     FÉDÉRATION DES PRODUCTEURS

                                                                       ACÉRICOLES DU QUÉBEC v.

                                                                       CANADIAN FOOD INSPECTION AGENCY

                                                                       and ATTORNEY GENERAL OF CANADA

 

 

PLACE OF HEARING:                               Montréal, Quebec

 

DATE OF HEARING:                                 April 11, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                               The Honourable Mr. Justice Blais

 

DATED:                                                        April 26, 2006

 

 

 

APPEARANCES:

 

Alexandre Ajami	FOR THE APPLICANT
Guy Lamb	FOR THE RESPONDENTS

 

SOLICITORS OF RECORD:

 

Miller, Thomson, Pouliot s.e.n.c.r.l.	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENTS