Alberta v. Canada ( Wheat Board )
A-863-97
Desjardins J.A.
23/11/98
16 pp.
Appeal from Trial Division's dismissal of application for judicial review of Wheat Board's 1995-1996 grain delivery program ([1998] 2 F.C. 156)-Delivery program composed of two components-Under acreage-based component, Board announced calls for delivery of specific grades of grain at beginning of crop year-Delivery calls based on acreage producer chose to assign to delivery program-Amount recorded in producer's permit book-Each producer entitled to deliver greater of minimum of 30 tonnes of grade of grain called for delivery or total assigned acreage multiplied by acreage-based delivery call-Under contract-based component of program, producers could offer to sell specified quantity, class, grade of specified grain under any one of four contracts, each involving different deadline-Terms of offer recorded by producer in permit book-Producers could change amount of grain offered prior to deadline-Within 18 days after deadline, Board required to announce quantity of grain would accept-Contractually obligated to call for delivery of accepted tonnage-If Board accepted less than 100% of grain offered, producer had 14 days to cancel contract-If failed to deliver 85% of grain called for under delivery contract, producer in default, liable to pay liquidated damages to Board, Board could cancel that contract, any other contract with that producer-Appellant submitting Board exceeding statutory jurisdiction (1) by making contracts which are not purchase agreements or necessary or incidental to carrying on of operations, contrary to Canadian Wheat Board Act, s. 6(b), (k); (2) by issuing permit books not authorizing delivery of grain, contrary to s. 26(1); and (3) by imposing unconscionable penalties, thus making contracts not primarily benefitting producers-Appeal dismissed-(1) Producers must apply for delivery permit-Terms and conditions of delivery contracts in permit books-Primary term producer cannot withdraw amount of grain made available for delivery before expiry of period 18 days after deadline-Producers accepting terms, conditions when specifying on application for delivery permit amount of grain allocated to particular contract series-Locked-in situation at start of 18-day period for each contract series merely phase leading up to delivery contract under that series-When Board determining how much grain wishes to accept, contract for delivery of grain born which binds Board to accept delivery, pay for selected grain-Producer has 14 days to cancel contract if acceptance not covering 100% of offer-S. 6(b), (k) empowering Board to generally do all such things, acts as may be necessary or incidental to carrying on its operations under Act-Appellant not demonstrating such powers not adequate to cover phases described in delivery contracts-(2) S. 26(1) requiring Board to issue permit books authorizing delivery of grain-"Permit book" defined in s. 2(1) as delivery permit issued by Board for crop year-"Quota" defined as quantity of grain authorized to be delivered from grain produced on land described in permit book as fixed from time to time by Board, whether expressed as quantity that may be delivered from specific number of acres or otherwise-No illegality in acreage-based deliveries for Board to issue books recording not quantity of grain but quantity in acres of land, particularly considering words "from a specific number of acres or otherwise"-Method of establishing quota within broad authority to design, implement quota system-Under s. 28(a), (b), (c) Board may prescribe manner in which books issued-Irrelevant that Board may inscribe offers in permit book rather than fixed amounts to be delivered-Quota system essential element on which Act based eventually reflected in permit book once acceptance call made-(3) Liquidated damages instituted in response to requests by producers to ensure cost of non-delivery borne by producers failing to live up to contractual commitments to Board-Reflecting cost of default, including lost sales, demurrage, contract cancellation, less efficient use of delivery system, loss of reputation as reliable supplier, and supplying customers with higher grade grain to meet Board's commitments-Nothing indicating why option of cancelling all other delivery contracts added, but common sense dictating reasonable to exclude producer who continuously failed to live up to obligations under program-No evidence supporting appellant's position, or even whether penalties implemented-Such submission cannot be decided without factual basis-Appellant unable to indicate by what standard Court to assess "benefit" to producers-Matter cannot be decided in vacuum-Canadian Wheat Board Act, R.S.C., 1985, c. C-24, ss. 2(1) "permit book", "quota", 6(b), (k), 26(1), 28.