Judgments

[1994] 2 F.C. 475

T-1942-92

Pineview Poultry Products Ltd., Gary Villetard operating as Villetard’s Eggs, Villetard’s Eggs, 355210 Alberta Ltd., Frank Richardson, Gary Villetard and Pat Martel (Plaintiffs)

v.

Her Majesty the Queen in Right of Canada and The Canadian Egg Marketing Agency (Defendants)

and

Minister of Justice, Government of the Northwest Territories (Intervenor)

Indexed as: Pineview Poultry Products Ltd. v. Canada (T.D.)

Trial Division, MacKay J.—Vancouver, June 8, 1993; Ottawa, January 27, 1994.

Agriculture — Application to strike amended amended statement of claim alleging legislated marketing scheme precluding NWT egg producers from obtaining quotas (1) not applicable to plaintiffs; (2) contrary to Constitution Act, 1867, s. 121; (3) contrary to Charter, ss. 6, 7, 15 — Application allowed in part as to claim legislation not applicable to plaintiffs, Charter, s. 7 challenge, as plain and obvious no possibility of success — Corporate plaintiffs lacking standing to bring Charter challenges.

Constitutional law — Distribution of powers — Plaintiffs unable to obtain federal quotas to market eggs produced in NWT in any provinces because of legislated scheme — Alleging boundaries between NWT and provinces acting as barrier to interprovincial marketing of eggs contrary to Constitution Act, 1867, s. 121 — S. 121 guaranteeing free movement of goods from province to province — Laskin C.J. commenting marketing scheme not in essence and purpose related to provincial boundary in Reference respecting the Agricultural Products Marketing Act, R.S.C., 1970, c. A-7 et al., [1978] 2 S.C.R. 1198 — Decision in reference case persuasive, not binding in subsequent case — Comments made without consideration of circumstances herein not complete answer to plaintiffs’ claim — Not plain and obvious claim would be dismissed after full argument.

Constitutional law — Charter of Rights — Life, liberty and security — Allegation legislated egg marketing scheme, precluding allocation of quotas to NWT producers, contrary to Charter, s. 7 — Claim struck out as plain and obvious could not succeed — Purely economic interests not protected by Charter, s. 7.

Constitutional law — Charter of Rights — Mobility rights — Allegation egg producers in NWT unable to participate in interprovincial trade because legislative scheme precluding allocation of quota to NWT producers and exclusion related to provincial residence boundaries — Provinces may not regulate pursuing of citizen’s livelihood in terms of provincial boundaries — Neither may Parliament — Allegation not struck as not plain and obvious marketing arrangements not infringing Charter, s. 6(2)(b).

Constitutional law — Charter of Rights — Equality rights — Plaintiffs unable to obtain federal quotas to market eggs because no production of eggs in NWT in 5 years prior to creation of Marketing Plan — Arguable (1) producers in NWT denied equality under law by denial of opportunity to apply for or obtain federal quota; (2) province of residence personal characteristic leading to conclusion law discriminatory.

Practice — Parties — Standing — Allegation legislated egg marketing scheme contravening Constitution Act, 1867, s. 121, Charter, ss. 6, 7, 15 — Individual plaintiffs not denied standing to bring Charter challenge because shareholders, directors of corporation — Corporations lacking standing to challenge legislation as inconsistent with Charter, ss. 6, 7, 15(1) — No necessity to accord public interest standing to corporations herein as interest standing may be pursued by individual plaintiffs.

This was an application to strike the amended statement of claim for failure to disclose a reasonable cause of action. The plaintiffs were seeking an interlocutory injunction to preclude interference with interprovincial trade in eggs by the plaintiffs. Farm Products Marketing Agencies Act, section 23 provides that quotas under a marketing plan shall be allocated on the basis of the production from an area in relation to the total production of Canada over the five years preceding the effective date of the marketing plan. A marketing plan, administered by the Canadian Egg Marketing Agency (CEMA) was established in 1972. The Canadian Egg Licensing Regulations and the Canadian Egg Marketing Quota Regulations form part of that plan. The Licensing Regulations apply to persons engaged in the marketing of eggs in interprovincial or export trade in any province, including the Northwest Territories (NWT) and the Yukon Territory. They prohibit interprovincial or export marketing of eggs without a licence, and make it a condition of every licence that the holder shall not knowingly engage in interprovincial or export egg marketing except with a person who holds a licence, and in eggs that have been produced by a producer authorized under a federal quota allotted under the Quota Regulations. CEMA may refuse to issue or renew a licence, or may suspend or revoke a licence, where the applicant or licence holder has failed to observe any condition in the licence. The Quota Regulations prohibit interprovincial or export egg marketing unless a federal quota has been allotted to the producer on behalf of CEMA by a provincial commodity board. A producer is entitled to a federal quota if it is allotted a provincial quota. The plaintiff, Pineview Poultry Products Ltd., is a corporation carrying on business in the NWT as a producer and marketer of chicken eggs, and holds a seller’s licence issued by CEMA; Gary Villetard and Pat Martel (Villetard/Martel) are the owners of the Pineview egg production facilities, through which they are engaged in the production and marketing of eggs; Gary Villetard, operating as Villetard’s Eggs, produces and markets eggs in Alberta, and Villetard holds buyer’s and seller’s licences issued by CEMA; Frank Richardson is the directing mind and a shareholder of 355210 Alberta Ltd. which operates in the NWT. CEMA has given notice of its intention to revoke or suspend the licences on the ground that Pineview and Villetard have violated the conditions of their licences by engaging in the interprovincial marketing of eggs as Pineview did not hold a federal quota as required by the Quota Regulations. The plaintiffs alleged that Pineview, Villetard/Martel and 355210 were unable to obtain federal quotas to market eggs produced in the NWT in any of the provinces because there was no commercial production of eggs in the NWT prior to the creation of the marketing plan as required by the Act, section 23; the Quota Regulations made no allowance for a quota to be given to a producer in the NWT; there is no egg commodity board in the NWT.

Reference respecting the Agricultural Products Marketing Act, R.S.C. 1970, c. A-7 et al., [1978] 2 S.C.R 1198, upheld the validity under the Constitution Act, 1867 of the fundamental elements of the national egg supply management system. Constitution Act, 1867, section 121 provides that all articles of the growth, produce or manufacture of any of the provinces shall, from and after the Union, be admitted free into each of the other provinces. The issues raised herein were (1) whether certain provisions of the legislative scheme applied to commercial production of eggs in the NWT and to the marketing in the provinces of eggs produced in the NWT; (2) whether those provisions were inconsistent with the Constitution Act, 1867, section 121; (3) whether those provisions were inconsistent with Charter, sections 6 (right to pursue livelihood in any province), 7 and 15 (equality rights).

Held, the application should be allowed in part. The claim that the legislative scheme did not apply to the plaintiffs, and the Charter, section 7 challenge had no possibility of success and should be struck out. The corporate plaintiffs lacked standing to challenge the impugned provisions under the Charter.

The Egg Reference decision was a reference case, and as such was merely advisory. It was not binding in relation to a subsequent case involving facts determined at trial, though it was persuasive that the quota system established was, by implication, valid when considered as a matter of the division of powers under the Constitution Act, 1867. However, the decision antedated the coming into force of the Charter, and did not address the issues of alleged inconsistency of certain provisions of the legislative regime providing for egg marketing with rights guaranteed by the Charter. While the Egg Reference case did deal with the question of consistency of the legislative regime with section 121 of the Constitution Act, 1867, it did so in the context of argument concerning the regime created by federal legislation and that of Ontario, a participating, cooperating province involved in arrangements designed to coordinate marketing in interprovincial or export trade and in intraprovincial trade. No consideration was given to the operating regime for coordinating trade in light of section 121 when viewed from the perspective of the NWT which did not originally and does not now participate in the Canada-wide marketing arrangements for eggs.

(1) The Act (section 23), Licensing Regulations (sections 3, 4(1), 7(1)(d) and (e)) and Quota Regulations (sections 4(1)(a), 5(2), 6 and 7(1)) were applicable to commercial production of eggs in the NWT and to the marketing of eggs there produced in the provinces. The Act, by its terms is clearly applicable to the whole of Canada, including the NWT. The preamble to the Proclamation creating CEMA makes it clear that it was intended to, and does apply throughout Canada in regard to marketing in interprovincial and export trade in eggs. Even if it were perceived as applying to one region of Canada by reference to the allocation of quotas to ten provinces specifically named and thus as excluding the NWT, the regulation of trade between the ten-province region and the NWT is a matter entirely within the authority of Parliament and a matter that could be provided for expressly by the Proclamation under the Act as it stands.

The definition of “province” in the Interpretation Act includes “the Yukon and the Northwest Territories”. That definition applies wherever the word “province” is used in the Act, the Proclamation and the Regulations. As a matter of interpretation, since the Act, subsection 23(1) and the Proclamation are applicable to the trade in eggs between the Territories and other provinces, the questioned provisions of the Licensing Regulations and the Quota Regulations are also applicable to producers of eggs in the NWT so far as they desire to operate in interprovincial trade. It was plain and obvious that as a matter of legislative interpretation, the Act, the Proclamation and the Regulations, including the particular provisions referred to by the plaintiffs, were intended to and do apply to the whole of Canada, including the NWT. Moreover, it is clear that following a trial this Court would not grant a declaration that they did not apply. Thus the plaintiffs’ claim for a declaration that they did not apply, and the allegations in support of that claim, should be struck from the amended amended statement of claim.

(2) The plaintiffs claimed that under the marketing scheme the boundaries between the NWT and the provinces acted as an effective barrier to the interprovincial marketing of eggs produced in the NWT contrary to Constitution Act, 1867, section 121. Laskin C.J. commented in the Egg Reference that the marketing scheme was not “in its essence and purpose related to a provincial boundary”. Those comments, made without consideration of the circumstances raised by this case, should not be taken as a complete answer to the plaintiffs’ claim that the impugned provisions contravene section 121. That may only be determined after full argument, and evidence having been adduced at trial. It was not plain and obvious that their claim would be dismissed whatever the evidence and argument that may be presented.

(3) CEMA challenged the standing of the corporate plaintiffs to raise Charter challenges, and alleged that the plaintiffs were attempting to circumvent established rules for standing by having the individual plaintiffs as shareholders make claims indirectly that the corporations could not do directly. If the right alleged to be infringed is protected under the Charter, the individual asserting that right should not be denied standing simply because he was a shareholder or director of a corporation that could not assert the right. It is well settled that corporations have no interests protected by Charter, paragraph 6(2)(b) and section 7, and the Federal Court of Appeal has denied standing to a corporation in regard to challenging legislation said to infringe Charter, subsection 15(1). Of the three requirements set out in Minister of Justice et al. v. Borowski to grant standing in the public interest, there was a serious issue in relation to Charter, section 15 and the corporate plaintiffs had a genuine interest in the question of the validity of the marketing scheme and its supporting legislation. However, since that interest could be pursued by individual plaintiffs, there was no necessity for public interest standing to be accorded to the corporations. Only the individual plaintiffs, Richardson, Villetard and Martel had standing to challenge the marketing scheme as inconsistent with Charter, subsection 15(1) based on their province of residence.

(i) The plaintiffs argued that they could not market their eggs outside the Territory because they could not obtain a quota, and therefore they were denied the right guaranteed by Charter, paragraph 6(2)(b) to pursue their livelihood in any province. The marketing scheme was said not to be saved by paragraph 6(3)(a) because it discriminates according to province of residence. It has been held that the provinces may regulate Charter, subsection 6(2) rights but, subject to sections 1 and 6, not in terms of provincial boundaries. It is implicit in the wording of the exception from laws of general application in paragraph 6(3)(a) that neither may Parliament. The producers in the NWT may not participate in interprovincial trade because the scheme precludes assignment of any quota to producers in the NWT and that effect is an exclusion related to provincial residence and boundaries, not merely to lack of an assigned quota. It may be difficult for the individual plaintiffs to persuade a trial judge that the marketing arrangements infringe paragraph 6(2)(b), but at this stage it was not plain and obvious that they would be unsuccessful if given the opportunity to develop their evidence and argument in full.

(ii) It was plain and obvious that the claim that the impugned provisions were inconsistent with Charter, section 7 could not succeed. Purely economic interests are not protected by section 7.

(iii) There was an arguable case that the individual plaintiffs, as egg producers in the NWT, were denied equality under the law by denial of opportunity to apply for or obtain a federal quota. Whether that denial was related to their province of residence as producers, and whether their province of residence was a personal characteristic which would lead to the conclusion that the law was discriminatory within subsection 15(1) were arguable issues.

The plaintiff Villetard, doing business as Villetard’s Eggs, and Villetard’s Eggs could not make out a case that their section 15 rights had been infringed because they could not purchase eggs from NWT producers. Villetard is in the same position as egg purchasers in any province and that group is not a discrete minority. Province of residence is not a ground on which inability to purchase from producers in the NWT was based.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 6, 7, 15(1).

Canadian Dairy Commission Act, R.S.C., 1985, c. C-15.

Canadian Egg Licensing Regulations, SOR/73-286.

Canadian Egg Licensing Regulations, 1987, SOR/87-242, ss. 3, 4(1), 7(1), 8, 9(1),(2).

Canadian Egg Marketing Agency Proclamation, SOR/73 -1.

Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646, s. 2(1).

Canadian Egg Marketing Agency Quota Regulations, SOR/86-8, ss. 4(1), 5(2), 6 (as am. by SOR/86-411, s. 3), 7(1) (as am. idem, s. 4).

Canadian Wheat Board Act, R.S.C., 1985, c. C-24.

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 121.

Criminal Code, R.S.C. 1970, c. C-34.

Farm Products Marketing Agencies Act, S.C. 1970-71-72, c. 65, ss. 17, 18, 23, 24, 32.

Farm Products Marketing Agencies Act, R.S.C., 1985, c. F-4, ss. 2, 3(3), 16, 17, 22, 23, 31.

Federal Court Act, R.S.C., 1985, c. F-7, s. 50.

Federal Court Rules, C.R.C., c. 663, R. 419(1).

Interpretation Act, R.S.C., 1985, c. I-21, s. 35(1).

Rules of Court, B.C. Reg. 221/90, R. 19(24)(a).

CASES JUDICIALLY CONSIDERED

APPLIED:

Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1 W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; (1984), 9 D.L.R. (4th) 161; 11 C.C.C. (3d) 481; 53 N.R. 169; 3 O.A.C. 321; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; (1989), 96 A.R. 352; 58 D.L.R. (4th) 317; [1989] 4 W.W.R. 1; 66 Alta. L.R. (2d) 97; 38 C.R.R. 193; 98 N.R. 266.

DISTINGUISHED:

Groupe des éleveurs de volailles de l’est de l’Ontario v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280; (1984), 14 D.L.R. (4th) 151; 20 Admin. L.R. 91 (T.D.); Milk Bd. v. Clearview Dairy Farm Inc., [1987] 4 W.W.R. 279; (1987), 12 B.C.L.R. (2d) 116 (B.C.C.A.).

CONSIDERED:

Reference respecting the Agricultural Products Marketing Act, R.S.C. 1970, c. A-7 et al., [1978] 2 S.C.R. 1198; (1978), 84 D.L.R. (3d) 257; 19 N.R. 361; Attorney-General for Manitoba v. Manitoba Egg and Poultry Association et al., [1971] S.C.R. 689; (1971), 19 D.L.R. (3d) 169; R. v. Quesnel (1985), 53 O.R. (2d) 338; 24 C.C.C. (3d) 78; 12 O.A.C. 165 (C.A.); R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97; 39 C.R.R. 306; 96 N.R. 115; 34 O.A.C. 115; R. v. S. (S.), [1990] 2 S.C.R. 254; (1990), 57 C.C.C. (3d) 115; 77 C.R. (3d) 273; 49 C.R.R. 79; 110 N.R. 321; 41 O.A.C. 81; Pineview Poultry Products Ltd. v. Canada, T-1942-92, Muldoon J., judgment dated 11/9/92, F.C.T.D., not yet reported; Pineview Poultry Products Ltd. et al. v. Canadian Egg Marketing Agency et al. (1993), 151 N.R. 195 (F.C.A.); Canadian Egg Marketing Agency v. Richardson, [1993] 2 W.W.R. 453 (N.W.T.S.C.); Demaere v. The Queen (Canada), [1983] 2 F.C. 755; (1984), 11 D.L.R. (4th) 193 (C.A.).

REFERRED TO:

Attorney General for Ontario v. Attorney General for Canada, [1912] A.C. 571; (1912), 3 D.L.R. 509 (P.C.); Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33 N.R. 304; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; (1990), 74 D.L.R. (4th) 321; Gold Seal Ltd. v. Attorney General of Alberta (1921), 62 S.C.R. 424; 62 D.L.R. 62; [1921] 3 W.W.R. 710; Murphy v. Canadian Pacific Railway Company and The Attorney General of Canada, [1958] S.C.R. 626; (1958), 15 D.L.R. (2d) 145; 77 C.R.T.C. 322; Central Amusement (N.B.) v. Atlantic Lottery Corp. et al. (1991), 115 N.B.R. (2d) 429 (Q.B.); Cabre Exploration Ltd. v. Arndt and Alberta (1988), 87 A.R. 149; [1988] 5 W.W.R. 289; 60 Alta. L.R. (2d) 172; 39 L.C.R. 212 (C.A.); Parkdale Hotel Ltd. v. Canada (Attorney General), [1986] 2 F.C. 514; (1986), 27 D.L.R. (4th) 19; 1 F.T.R. 190 (T.D.); Rudolf Wolff & Co. v. Canada, [1990] 1 S.C.R. 695; (1990), 69 D.L.R. (4th) 329; 43 Admin. L.R. 1; 41 C.P.C. (2d) 1; 46 C.R.R. 263; 106 N.R. 1; 39 O.A.C. 1; National Anti-Poverty Organization v. Canada (Attorney General), [1989] 3 F.C. 684; (1989), 60 D.L.R. (4th) 712; 36 Admin. L.R. 197; 26 C.P.R. (3d) 440; 99 N.R. 181 (C.A.); Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641; (1990), 71 D.L.R. (4th) 253; 45 Admin. L.R. 1; 109 N.R. 357 (C.A.); Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; Smith, Kline & French Laboratories Limited v. Attorney General of Canada, [1986] 1 F.C. 274; (1985), 24 D.L.R. (4th) 321; 7 C.P.R. (3d) 145; 19 C.R.R. 233; 12 F.T.R. 81 (T.D.); affd Smith, Kline& French Laboratories Ltd. v. Canada (Attorney General), [1987] 2 F.C. 359; (1986), 34 D.L.R. (4th) 584; 11 C.I.P.R. 181; 12 C.P.R. (3d) 385; 27 C.R.R. 286; 78 N.R. 30 (C.A.); leave to appeal to S.C.C. refused [1987] 1 S.C.R. xiv; Weyer v. Canada (1988), 83 N.R. 272 (F.C.A.); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; [1990] 4 W.W.R. 481; (1990), 68 Man. R. (2d) 1; 56 C.C.C. (3d) 65; 77 C.R. (3d) 1; 109 N.R. 81; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167.

APPLICATION to strike out the amended amended statement of claim. Application allowed as to claims alleging the inapplicability of the impugned legislative scheme to the plaintiffs, contravention of Charter, section 7, and Charter challenges by the corporate plaintiffs.

COUNSEL:

R. Graham McLennan for plaintiffs.

James H. Smellie for defendant, Canadian Egg Marketing Agency.

Kirk N. Lambrecht for defendant, Her Majesty the Queen.

Eugene Meehan for intervenor.

SOLICITORS:

McLennan Ross, Edmonton, for plaintiffs.

Osler, Hoskin & Harcourt, Ottawa, for defendant, Canadian Egg Marketing Agency.

Deputy Attorney General of Canada for defendant, Her Majesty the Queen.

Lang Michener, Ottawa, for intervenor.

The following are the reasons for order rendered in English by

MacKay J.: This is an application to strike the plaintiffs’ statement of claim in an action instituted against the defendants on August 4, 1992, when the original statement of claim was filed. That statement was subsequently replaced by an amended statement of claim filed September 2, 1992, and again by an amended amended statement of claim sent to the defendants in September 1992, and filed December 14, 1992. Before the last document was filed the defendant CEMA [Canadian Egg Marketing Agency] had filed the notice of motion to strike on October 16, 1992, but it was agreed by counsel for all parties when this motion was heard, that it should be treated as relating to the amended amended statement of claim. The motion to strike is, of course, based on Rule 419(1) [Federal Court Rules, C.R.C., c. 663], in particular paragraphs (a), that the plaintiffs’ statement of claim does not disclose a reasonable cause of action, and (c) that it is frivolous and vexatious.

At the time this application was heard no defence had been filed. Certain parties were added as plaintiffs by the amended amended statement of claim and by order of Madam Justice McGillis made February 25, 1993. By a further order of the same date, upon consent of all parties, the Minister of Justice for the Northwest Territories was added as an intervenor.

In the original statement of claim, as in the amended amended version, the plaintiffs seek relief including an interlocutory injunction, pending trial, to preclude interference with interprovincial trade in eggs by the plaintiffs and an order to stay proceedings instituted by the defendant Marketing Agency. The plaintiffs made application by motion filed August 5, 1992 for an order, pursuant to section 50 of the Federal Court Act, R.S.C., 1985, c. F-7, as amended, to stay proceedings commenced by the defendant, the Canadian Egg Marketing Agency (“CEMA”) to determine whether licences held by certain of the plaintiffs should be suspended or revoked, pending disposition of the action commenced by the plaintiffs. That application was heard on August 7, 1992, by my colleague Mr. Justice Muldoon [Pineview Poultry Products Ltd. v. Canada, T-1942-92, judgment dated 11/9/92, not yet reported], who declined to grant an order to stay CEMA proceedings but he ordered that no action be taken to suspend or revoke marketing licences of the plaintiffs until trial of this action or until further order of the Court. That decision was appealed by CEMA to the Court of Appeal which, on February 3, 1993 [(1993) 151 N.R. 195], set aside the order and dismissed the motion of the plaintiffs for a stay of proceedings instituted by CEMA.[1]

The parties and their interests

The various parties in this action, all of whom were represented at the hearing of CEMA’s motion to strike are as follows.

The plaintiffs, respondents to the motion, include:

—   Pineview Poultry Products Ltd. (“Pineview”), a body corporate, carrying on business in the town of Hay River, in the Northwest Territories, as a producer and marketer of chicken eggs. It held Seller’s Licence No. 000724, issued by CEMA pursuant to regulations, which licence CEMA has given notice of its intention to revoke or suspend;

—   Gary Villetard and Pat Martel (hereinafter referred to by their names or collectively as “Villetard/Martel”) are the owners of the Pineview egg production facilities in Hay River where Martel resides and, presumably through Pineview, they are engaged in production and marketing of chicken eggs;

—   Gary Villetard, operating as Villetard’s Eggs , and Villetard’s Eggs, (collectively referred to as “Villetard”) carry on business of producing and marketing chicken eggs in the Province of Alberta, where the plaintiff Gary Villetard resides; and Villetard held Buyer’s Licence No. 000061 and Seller’s Licence No. 000059, issued by CEMA, and CEMA has given notice of its intention to revoke or suspend these licences; and

—   Frank Richardson is the directing mind and a shareholder of 355210 Alberta Ltd. which operates under the name of Northern Poultry in the town of Hay River where Richardson resides.

The defendants include:

—   The Canadian Egg Marketing Agency, the applicant in this motion to strike the plaintiffs’ statement of claim. CEMA is a body corporate established pursuant to the Farm Products Marketing Agencies Act, R.S.C., 1985, c. F-4 (the “Act”) and the Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646 (the “Proclamation”), carrying on responsibilities assigned by the legislation concerning the regulation of interprovincial marketing of eggs in Canada including the allocation of quotas to producers and the licensing of buyers and sellers in that marketing; and

—   Her Majesty the Queen in right of Canada who supports CEMA’s motion to strike;

—   The intervenor. The Minister of Justice of the Northwest Territories, was added as intervenor in the action by Order of February 25, 1993, on application with consent of the parties, in light of the direct and significant interest of the Government of the Northwest Territories in constitutional and other issues raised in the action by the plaintiffs’ statement of claim and its amended versions, and by the motion to strike the action made by CEMA.

At the hearing of the motion to strike separate counsel appeared for each of the defendants CEMA and Her Majesty the Queen, and for all plaintiffs collectively, and for the intervenor the Minister of Justice of the Government of the Northwest Territories. The motion was addressed pursuant to Rule 419(1)(a), that is, on the ground that the amended amended statement of claim reveals no reasonable cause of action. The second ground for the motion as filed, that the amended amended statement of claim is frivolous or vexatious in terms of Rule 419(1)(c), was not separately argued. If, as I do find, some of the claims of the plaintiff cannot be determined, at this stage, to reveal no reasonable cause of action, those claims cannot be characterized as frivolous or vexatious.

The background and the legislative regime

Counsel for all parties agreed that for purposes of the application to strike, the Court, taking all facts pleaded in the amended amended statement of claim as proven, should strike out any claim pleaded only if it is persuaded that it is plain and obvious, i.e. that it is beyond doubt, that the plaintiffs have no chance of success if the action were to proceed to trial.[2] See also Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 dealing with Rule 19(24)(a) of the B.C. Rules of Court, a provision similar to Rule 419(1)(a) of the Federal Court Rules.

The facts of this matter as set out by the plaintiffs’ amended amended statement of claim are as follows, excepting the descriptions of the parties in that statement.

4. The Defendant the Canadian Egg Marketing Agency (“CEMA”) is a body corporate established pursuant to the Farm Products Marketing Agencies Act, R.S.C. 1985, c. F-4 (the “Act”) and the Canadian Egg Marketing Agency Proclamation, C.R.C. c. 646, (the “Proclamation”) and carries out duties relating to the regulation of interprovincial marketing of eggs in Canada.

5. Section 22 of the Act authorizes federally established farm product marketing agencies, such as CEMA, to implement marketing plans to promote, regulate, and control the marketing of regulated products, including eggs, in interprovincial or export trade. Section 23(1) of the Act states that any such marketing plan, to the extent that it allocates any production or marketing quota to any area of Canada, shall allocate that quota on the basis of the production from that area in relation to the total production of Canada over the five years preceding the effective date of the marketing plan.

6. Par[t] II of the Proclamation establishes, as of December 15, 1972, the marketing plan which CEMA administers (hereinafter referred to as the “Marketing Plan”) and authorizes CEMA to, by order or regulation, establish a quota and licensing system for the marketing of eggs in interprovincial or export trade.

7. The Canadian Egg Licensing Regulations, 1987 S.O.R./87-242, as amended, (the “Licensing Regulations”) and the Canadian Egg Marketing Quota Regulations, S.O.R./86-8, as amended, (the “Quota Regulations”) were made in accordance with the Act and the Proclamation and form part of the Marketing Plan.

8. The Licensing Regulations state that:

i.     They apply to persons engaged in the marketing of eggs in interprovincial or export trade in any province including the Northwest Territories and the Yukon Territory (section 3);

ii.    No person shall engage in the marketing of eggs in interprovincial or export trade unless the person holds an appropriate licence (section 4(1));

iii.   Every licence shall be subject to the condition that the holder of the licence shall not knowingly engage in the marketing of eggs in interprovincial trade or export except with a person who holds a licence (section 7(1)(d));

iv.   Every licence shall be subject to the condition that the holder of the licence shall not knowingly engage in the marketing of eggs in interprovincial or export trade except in eggs that have been produced by a producer authorized to do so under a federal quota allotted to the producer pursuant to the Quota Regulations (section 7(1)(e));

v.    CEMA may refuse to issue or renew a licence or may suspend or revoke a licence where the applicant or holder of the licence has failed to observe any condition in the licence (section 8(a));

vi.   Where CEMA intends to suspend or revoke a licence it shall give notice of its intention to do so and shall allow the holder of the licence to attend before CEMA and show cause why the licence should not be suspended or revoked (section 9).

9. The Quota Regulations state that:

i.     No producer shall market eggs in interprovincial or export trade unless a federal quota has been allotted to the producer, on behalf of CEMA by the Commodity Board of the province in which the producer’s egg production facilities are located (section 4(1)(a));

ii.    A producer is entitled to be allotted a federal quota if, pursuant to the rules of the Commodity Board of the province in which the producer’s egg production facilities are located, the producer is allotted a provincial quota (section 5(2));

iii.   The quantity of eggs that a producer is authorized to market from a province under a federal quota for the period set out to [sic] in the schedule incorporated as part of the Quota Regulations shall equal the provincial quota allotted to the producer for that period by the Commodity Board of the province minus the quantity of eggs marketed by the producer in intraprovincial trade in that province during that period (section 6, as amended by SOR/86-411);

iv.   Federal quotas should be allotted to producers in each province such that the total number of eggs to be marketed in interprovincial and intra-provincial trade and pursuant to exemptions granted by the Commodity Board for that province will not exceed the number of dozen eggs specified for that province in the schedule incorporated as part of the Quota Regulations (section 7(1));

v.    “Commodity Boards” are defined as the various egg marketing boards of the 10 provinces of Canada (section 2).

10. [Refers to the licenses held by Pineview and Villetard.]

11. CEMA has given notice of its intention to revoke or suspend the Licences on the basis that Pineview and Villetard have violated the conditions of those Licences by engaging in the interprovincial marketing of eggs without Pineview holding a federal quota as required by the Quota Regulations.

12. Pineview, Villetard/Martel and 355210 Alberta Ltd. are not able to obtain federal quotas to market eggs produced in the Northwest Territories in any of the provinces of Canada because of the following:

i.     Section 23 of the Act prohibits the allocation of a federal quota to the Northwest Territories, as there was no production of eggs from the Northwest Territories in the five years prior to the creation of the Marketing Plan.

ii.    The Quota Regulations, and in particular sections 6 and 7(1), and the schedule attached thereto make no allowance for a quota to be given to a producer in the Northwest Territories.

iii.   There is no Commodity Board specified in the Quota Regulations which could grant a federal quota to a producer in the Northwest Territories.

iv.   There is no Commodity Board specified in the Quota Regulations which could grant a provincial quota to a producer in the Northwest Territories, which is a necessary pre-condition to Pineview’s entitlement to a federal quota.

The preceding statement of facts, accepted as proven for purposes of considering the motion to strike, is further elaborated particularly in regard to the legislative regime here questioned, in the statement of facts included in CEMA’s memorandum of fact and law, and that statement is agreed upon by the plaintiffs, with certain exceptions noted below. Because the facts there set out assist in understanding the issues they are here repeated.

3. The Canadian Egg Marketing Agency (the “Agency”) was established in 1972 by a Proclamation of the Governor in Council made pursuant to the Farm Products Marketing Agencies Act, S.C. 1970-71-72, c. 65, now R.S.C. 1985 c. F-4. The Proclamation was made in furtherance of a 1972 Federal-Provincial Agreement in Respect of the Establishment of a Comprehensive Egg Marketing Program (the “Federal-Provincial Agreement”) which was revised and consolidated in 1976. The signatories to the 1976 Federal Provincial Agreement were the federal and provincial Ministers responsible for agricultural marketing, the federal and provincial agricultural products supervisory boards, the provincial egg marketing boards and the Agency.

B. The Basic Elements of the Egg Supply Management System

4. The fundamental elements of the national egg supply management system were considered by the Supreme Court of Canada in Reference Re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198 (the “Egg Reference”). In the course of upholding the validity under the Constitution Act, 1867 of those fundamental elements, Chief Justice Laskin referred to them as follows:

(a)  The Canadian egg market is a strictly regulated market, involving control of prices, the fixing of producing and marketing quotas, the imposition of several classes of levies upon producers and a surplus (over quota) egg removal programme through which eggs surplus to the table market are disposed of (page 1214);

(b)  The main control agencies are, at the national level, the Agency and provincially, the provincial egg commodity boards (page 1214);

(c)  The Federal-Provincial Agreement sets out the term of the comprehensive egg marketing plan, involving the integration of federal and provincial prescriptions, and including the scheme of organization and powers of the Agency (pages 1214-1215);

(d)  The scheme involves identical quotas for producers, whether in intraprovincial trade or in the interprovincial or export market, fixed on a complementary basis by the national Agency and the provincial commodity boards in relation to an assigned egg production level to each of the provinces (page 1215);

(e)  Alongside the interlocking national and provincial quota system is a national licensing system used to maintain an accurate record of egg movements as required for supply management planning purposes (page 1216);

(f)  The price paid to producers is established through consultation between the Agency and the provincial boards based on a cost of production formula supervised by the National Farm Products Marketing Council (the “Council”) (pages 1216-1217);

(g)  Eggs surplus to table market demand are purchased by the provincial boards and the Agency and are sold at a substantial loss for domestic processing or export (page 1218);

(h)  Levies are collected from producers to defray losses associated with the operation of the surplus removal program and administrative costs (page 1218) (total levies payable by registered producers currently average approximately 16 cents per dozen eggs).

5. Chief Justice Laskin summarized the characteristics of the national egg marketing system as follows at page 1219:

This integrated scheme is designed to introduce stability into the egg market on a national level by assuring all producers a producer price for their eggs within their respective quotas, regardless of whether those eggs are sold locally or extraprovincially and regardless of whether they are sold for table consumption or end up in the surplus removal programme. The producers, however, share the cost of this programme, again on a national level, through the levies payable in respect thereof.

C. A Summary of the Provisions at Issue

6. The Plaintiffs’ constitutional challenge is directed at section 23 of the Act, together with sections 4(1)(a), 5(2), 6 and 7(1) of the Canadian Egg Marketing Agency Quota Regulations SOR/86-8, as amended (the “Quota Regulations”) and sections 3, 4(1), 7(1)(d) and 7(1)(e) of the Canadian Egg Marketing Agency Licensing Regulations SOR/87-242, as amended (the “Licensing Regulations”). The provisions at issue, together with other related provisions which are not challenged, operate in the manner described below:

(a)  Pursuant to the Act, the Proclamation and the Federal-Provincial Agreement, combined intraprovincial, interprovincial and export marketings were initially set at the base level of the marketplace in 1972, 475,000,000 dozen eggs per year and were made subject to adjustment as described below;

(b)  In accordance with what is now section 23 of the Act, this base was allocated to individual provinces based on average marketings in the five years prior to the establishment of the Agency, 1967 to 1971;

(c)  As is acknowledged by the Plaintiffs (Amended Amended Statement of Claim, paragraph 12(i)), there was no commercial egg production in the Northwest Territories when the Agency was established and, accordingly, there was no base to allocate to that area;

(d)  Moreover, the Plaintiffs also acknowledge that there is no egg commodity board in the Northwest Territories (paragraph 12(ii) Amended Amended Statement of Claim);

(e)  The Quota Regulations, duly enacted pursuant to the Act, provide that:

(i)   “federal quota” means the number of dozens of eggs that a producer is entitled to market in interprovincial and export trade (section 2);

(ii)  “provincial quota” means the number of dozens of eggs that a producer is entitled by a commodity board to market in intraprovincial trade under a system of either production or marketing controls (section 2);

(iii) an egg producer is only permitted to market eggs in interprovincial and export trade if the producer has been allotted federal quota (section 5);

(iv) consistent with the interlocking nature of federal and provincial quota, entitlement to federal quota is limited to producers with provincial quota provided under a system of production or marketing controls (section 4);

(v)  in order to maintain orderly marketing, the quantity of federal quota allotted to producers in a province, when combined with the allotted provincial producer quota and production under quota exemptions (e.g., for small flocks), must not exceed the quota allocation for the province concerned (section 7);

(f)  Section 4 of the Schedule to the Proclamation and section 23 of the Act make provision for periodic adjustments in quota allocations up or down from the base figures, as required to meet the needs of the market place;

(g)  Due to a reduction in egg consumption in Canada, quota allocations are currently below base 1972 levels, except for certain provinces in Atlantic Canada;

(h)  As a corollary to the national quota system, the Licensing Regulations stipulate that:

(i)   All persons engaged in the marketing of eggs in interprovincial and export trade are required to hold an appropriate buyer’s and/or seller’s licence issued by the Agency (sections 3 and 4);

(ii)  Although the issuance and renewal of buyer’s and seller’s licences by the Agency is normally made on request, the Agency may refuse to issue or renew or suspend or revoke a licence on grounds of, among other things, nonobservance of any condition of the licence (section 8);

(iii) Among the standard licence conditions are the requirements to comply with all orders and regulations of the Agency and to not knowingly engage in the marketing of eggs in interprovincial and export trade except in eggs that have been produced under a federal quota (paragraphs 7(1)(b) and (e));

(iv) A show cause procedure applies where the Agency intends to refuse to issue or renew or to suspend or revoke a licence (section 9).

7. In the absence of territorial production or marketing controls, producers in the Northwest Territories are legally permitted to produce and market within the Territories any quantity of eggs they wish. What the provisions at issue prohibit is the marketing in interprovincial and export trade of eggs produced without quota, whether such eggs are produced in the Northwest Territories or any other part of the country. This orderly marketing scheme is a vital component to the integrated national supply management system upheld by the Supreme Court of Canada in the Egg Reference, supra.

D. The Show Cause and Injunction Proceedings

8. In July of 1992 show cause notices were issued in respect of egg marketing licences held by the Plaintiffs Villetard Eggs and Pineview. In essence, the show cause notices alleged that on a regular and consistent basis Villetard Eggs and Pineview had breached the terms of their licences by knowingly engaging in the marketing in interprovincial and export trade in eggs produced in the Northwest Territories by Pineview without federal quota.

9. Three business days before the first show cause proceeding before the Agency was scheduled to be heard, the Plaintiffs brought these proceedings. Pineview and Villetard Eggs also sought an interim order staying the show clause proceedings and enjoining the Agency from suspending or revoking their licences. The moving parties succeeded in obtaining a stay before Mr. Justice Muldoon but that order was set aside, with costs, by the Federal Court of Appeal.

The only portions of this statement of facts by CEMA not agreed by the plaintiffs are paragraphs 6(a), (b) and (g), which they say are not supported by any evidence in these proceedings, and the last sentence of paragraph 7 which in the plaintiffs’ view should properly be in argument rather than in the statement of facts. In my view, it makes no difference for purposes of the motion before me that the parties are not agreed on those four factors, which concern the implications of the egg marketing plan adopted pursuant to the Act, the Proclamation and the antecedent federal-provincial agreement on egg marketing. If there be any difference between the facts set out in the statement of claim and those set out by CEMA’s memorandum in support of its motion to strike, I am bound to accept those set out in the former document.

The intervenor, the Minister of Justice of the Government of the Northwest Territories, by memorandum of fact and law filed in regard to the motion sets out certain facts, which, though unnecessary for disposal of the issues in this matter, underlie the interest of the intervenor in this matter. For the record those facts are:

3. No federal quota to market Northwest Territories-produced eggs in interprovincial trade is available under this marketing control system.

4. No producer shall market eggs in interprovincial trade unless that producer has a federal quota.

5. The Government of the Northwest Territories has tried unsuccessfully since 1984 to obtain a quota.

6. Egg production has major implications and benefits for the Northwest Territories.

7. The majority shareholder in Pineview Poultry Products Ltd. is the Hay River Dene Band.

It is useful to include the statutory provisions referred to in the plaintiffs’ statement of claim, in particular those which provide the grounds for relief sought by the plaintiffs. The basic legislation is the Farm Products Marketing Agencies Act, now R.S.C., 1985, c. F-4, which authorizes, by section 16, the establishment by proclamation by the Governor in Council of an agency with powers relating to any farm product, including specifically eggs, except products regulated under the Canadian Wheat Board Act [R.S.C., 1985, c. C-24] or the Canadian Dairy Commission Act [R.S.C., 1985, c. C-15], for regulation of marketing in interprovincial and export trade. Here such a proclamation was made in 1973 [SOR/73-1], creating CEMA, and that agency by the proclamation was directed to establish, by order or regulation, a quota system by which quotas are assigned to all members of classes of egg producers in each province to whom quotas are assigned by the appropriate Board or Commodity Board, i.e. the various boards listed in the proclamation by name, one for each of the ten provinces which created it. Section 23 of the Act provides the basis for allocation of quotas to various areas of Canada in the following terms:

23. (1) A marketing plan, to the extent that it allocates any production or marketing quota to any area of Canada, shall allocate that quota on the basis of the production from that area in relation to the total production of Canada over a period of five years immediately preceding the effective date of the marketing plan.

The proclamation establishing CEMA also sets out the original quota system by which quotas were assigned for each of the ten provinces of Canada. Those quotas, in recent years at least, have been varied from time to time by amendment to the Canadian Egg Marketing Agency Quota Regulations [SOR/86-8].

The provisions of the Canadian Egg Licensing Regulations, 1987 [SOR/87-242], of interest in the plaintiffs’ action, and for this motion, are the following.

3. These Regulations apply to persons who are engaged in the marketing of eggs in interprovincial or export trade in any province, including the Northwest Territories and the Yukon Territory.

4. (1) Subject to subsections (2) and (3), no person shall engage in the marketing of eggs in interprovincial or export trade unless the person holds an appropriate licence.

…

7. (1) Every licence shall be subject to the following conditions:

…

(d) the holder of the licence shall not knowingly engage in the marketing of eggs in interprovincial trade except with a person who holds a licence; and

(e) the holder of the licence shall not knowingly engage in the marketing of eggs in interprovincial or export trade except in eggs that have been produced by a producer authorized to do so under a federal quota allotted to the producer pursuant to the Canadian Egg Marketing Agency Quota Regulations, 1986.

…

8. The Agency may refuse to issue or renew a licence or may suspend or revoke a licence where the applicant or holder of the licence

(a) has failed to observe any condition of the licence; or

…

9. (1) Where the Agency intends to refuse to issue or renew a licence or intends to suspend or revoke a licence, the Agency shall give notice of its intention to the applicant or holder of the licence by personal service or by registered mail.

(2) The notice referred to in subsection (1) shall set out

(a) the reasons on which the Agency bases its intention; and

(b) a time and date at which the applicant or holder of the licence may show cause why the licence should be issued or renewed or should not be suspended or revoked.

The provisions of the Canadian Egg Marketing Agency Quota Regulations, of particular interest here are the following.

4. (1) No producer shall market eggs in interprovincial or export trade

(a) unless a federal quota has been allotted to the producer, on behalf of the Agency, by the Commodity Board of the province in which the producer’s egg production facilities are located;

…

5….

(2) After the coming into force of these Regulations, a producer is entitled to be allotted a federal quota if, pursuant to the rules of the Commodity Board of the province in which the producer’s egg production facilities are located, the producer is allotted a provincial quota.

6. [as am. by SOR/86-411, s. 3] Subject to these Regulations, the quantity of eggs that a producer is authorized to market from a province under a federal quota for the period set out in the schedule shall equal the provincial quota allotted to the producer for that period by the Commodity Board of the province minus the quantity of eggs marketed by the producer in intraprovincial trade in that province during that period.

7. (1) [as am. idem, s. 4] Federal quotas shall be allotted to producers in each province in such manner that the aggregate number of dozens of eggs produced in the province and

(a) authorized to be marketed by producers under federal quotas allotted on behalf of the Agency by the Commodity Board of the province,

(b) authorized to be marketed by producers in intraprovincial trade under provincial quotas allotted by the Commodity Board of the province, and

(c) anticipated to be marketed by producers under quota exemptions granted by the Commodity Board of the province,

during the period set out in the schedule will not exceed the number of dozens of eggs set out in respect of that province in the schedule.

The issues raised by the motion to strike

The issues raised by CEMA’s motion to strike, supported by Her Majesty the Queen, directly reflect the relief sought by the plaintiffs in the action. Those issues, and the related relief sought by plaintiffs, are:

1. Whether certain provisions of the legislative scheme apply to commercial production of eggs in the Northwest Territories and to the marketing in the provinces of Canada of eggs produced in the Northwest Territories;

(The plaintiffs seek a declaration that section 23 of the Act, section 3, subsection 4(1), paragraphs 7(1)(d), and 7(1)(e) of the Licensing Regulations and paragraph 4(1)(a), subsection 5(2), section 6 and subsection 7(1) of the Quota Regulations do not apply to a commercial producer of eggs in the Northwest Territories or to the marketing in the provinces of Canada of eggs produced in the Northwest Territories.)

2. In the alternative, whether those same provisions are inconsistent with section 121 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]];

(The plaintiffs seek a declaration that the same provisions identified above are of no force and effect on the basis that they contravene section 121 of the Constitution Act, 1867.)

3. In the alternative, whether those same provisions are inconsistent with paragraph 6(2)(b), section 7 or subsection 15(1) of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]];

(The plaintiffs seek a declaration that the same provisions identified above are of no force and effect on the basis that they are inconsistent with those sections, or each of them, of the Charter. In support of this relief, the plaintiffs Pineview, Villetard/Martel, 355210 Alberta Ltd. and Richardson allege that the regulations violate their rights assured by paragraph 6(2)(b), section 7 and subsection 15(1) of the Charter; and the plaintiff Villetard alleges that, in relation to the purchase and sale of eggs, its rights assured by paragraph 6(2)(b) and subsection 15(1) of the Charter, are violated by the regulations.)

These issues are the matters upon which submissions of CEMA, the plaintiffs and the defendant, Her Majesty the Queen, are made in this proceeding.

For the intervenor, the points in issue are said to be these.

Can the exclusion of an entire jurisdiction, the Northwest Territories, from fair and equal access to CEMA, an important forum of the Canadian economic commonwealth, be constitutionally defended?

Is it plain and obvious that the Plaintiffs’ constitutional claims to fair and equal access to the egg marketing system are futile and an abuse of process? Can these claims be dismissed at a preliminary, interlocutory application where the complete factual, legal and equitable basis of this action cannot be fully evaluated?

The issues thus expressed by the intervenor cannot be dealt with as primary issues between the plaintiffs and defendants. I take them as emphasizing the requirement that this Court be satisfied, in relation to the primary issues raised by the parties, that there be no chance of success at trial of the plaintiffs’ claims before those claims are struck at this preliminary stage.

I note for the record that the intervenor, by written memorandum of fact and law and at the hearing, supports the plaintiffs’ position in relation to alleged violations of section 121 of the Constitution Act, 1867 and paragraph 6(2)(b) and subsection 15(1) of Charter provisions, but does not comment on the question of the applicability of the Act and Regulations to the Northwest Territories or upon the alleged violation of section 7 of the Charter.

I note also that in submissions of CEMA when this matter was heard, counsel urged the Court that in so far as any one of the plaintiffs’ claims is found to be without prospect of success at trial, that claim should be struck by order at this stage. With that proposal counsel for the plaintiffs agreed.

Before I turn to consideration of the issues in turn it is useful to reiterate that the egg marketing system established under the Act, the Proclamation and the Licensing Regulations has already been upheld by the Supreme Court of Canada as constitutionally valid, at least in relation to certain of their provisions as these were viewed in the context of the distribution of legislative powers between federal and provincial governments under the Constitution Act, 1867, (see Reference respecting the Agricultural Products Marketing Act, R.S.C. 1970, c. A-7 et al.).[3] That decision was in a reference case, primarily concerned with the administrative interdelegation of powers between federal and provincial agencies by agreement, and with the imposition of levies imposed by or on behalf of those agencies in relation to marketing. Strictly speaking a decision in a reference case is only advisory;[4] it is not stare decisis in relation to a subsequent case involving facts determined at trial, though it may be persuasive.

It is instructive to be clear about the questions determined in that case (the Egg Reference). In response to specific questions the full Court unanimously concluded, inter alia, that certain provisions, not including section 23 as it now is numbered, of the Farm Products Marketing Agencies Act, then S.C. 1970-71-72, c. 65 (the forerunner, essentially similar, to the current Act), were not ultra vires. The sections there questioned included then sections 17, 18, 23, and 32 (now sections 16, 17, 22 and 31). The first three of these concern the authority of the Governor in Council to create by proclamation an agency to regulate a farm product in interprovincial or export trade, the contents of such a proclamation and the powers of an agency so created. The last section referred to authorizes the exercise by an agency, where so provided by federal provincial agreement, of powers on behalf of a province in relation to intraprovincial trade.

While the quota system established by the Proclamation constituting CEMA was not directly in issue by the questions dealt with in the Egg Reference, the Supreme Court’s conclusions in relation to levies imposed under the marketing scheme required the Court to consider the quota system as the basis upon which the marketing arrangements and the levies imposed were based. Then Chief Justice Laskin, for himself and three others of the Court upheld the authority of Parliament to establish quotas on an industry-wide basis if those were related to regulatory control of interprovincial and export trade, even where the quotas were based on production quotas “in the various Provinces”.[5] Earlier[6] he had noted that the quota system established for CEMA by the Proclamation was within the authority provided under then section 24, now section 23, of the Act, and the validity of that provision was not questioned in that case. Mr. Justice Pigeon,[7] for himself and four other members of the Court differed from the Chief Justice in considering the quota system as one related to production, but in so far as it was concerned with marketing, as he found the CEMA arrangements to be, the system was valid. That system envisages quotas established by provincial marketing boards, acting in relation to intraprovincial trade under provincial legislation and in relation to interprovincial trade under authority delegated by CEMA within the terms of federal enabling legislation including the allocation of quotas by province. Ontario regulations under which such quotas were established were directly in question in the Egg Reference and the validity of governing provincial legislation was upheld. In my view, the decision is persuasive that the quota system established under the Proclamation is, by implication, valid when considered as a matter of the division of powers under the Constitution Act, 1867.

In addition, the decision unanimously found that the Canadian Egg Marketing Agency Proclamation, originally enacted as SOR/73-1 in terms essentially similar to those now in effect, was validly enacted in the administrative law sense, i.e. within the authority of the Act. Similarly, the Canadian Egg Licensing Regulations, then SOR/73-286, which were essentially similar to the successor regulations of 1987 now current, were validly enacted under the enabling legislation, i.e. under the Act and the Proclamation.

It is obvious, but worthy of note that the Egg Reference decision antedates the coming into force of the Canadian Charter of Rights and Freedoms and thus it did not address the issues here raised of alleged inconsistency of certain provisions of the legislative regime providing for egg marketing with rights guaranteed by the Charter. While the reference case did deal with the question of consistency of the legislative regime with section 121 of the Constitution Act, 1867, it did so in the context of argument concerning the regime created by federal legislation and that of Ontario, a participating, cooperating province involved in arrangements designed to coordinate marketing in interprovincial or export trade and in intraprovincial trade. In my view, no consideration was given in the decision to the operating regime for coordinating trade in light of section 121 when viewed from the perspective of the Northwest Territories, which did not originally and does not now participate in the Canada-wide marketing arrangements for eggs.

That said, I turn to the issues in turn.

The applicability of the egg marketing arrangements in relation to interprovincial or export trade of eggs produced in the Northwest Territories

CEMA, supported by Her Majesty the Queen, urges that it is plain and obvious that the Act, the Proclamation and the Regulations are applicable to extraterritorial trade in eggs produced in the Territories. Thus it is said to be beyond doubt that the plaintiffs’ claim to a declaration that they are not applicable would be dismissed at trial.

For the plaintiffs it is urged that the opposite is the case. This submission is said to be based on the grounds that the Act was not intended by Parliament to apply to eggs produced in the Northwest Territories and that interpreting it to include the Territories leads to an absurdity since its purpose is to regulate production and marketing of eggs interprovincially but its effect is to prohibit interprovincial marketing by egg producers in the Northwest Territories.

In support of these arguments it is submitted that if Parliament had intended the Act to apply to the Northwest Territories, subsection 3(3) of the Act, in creating the National Farm Products Marketing Council, would have more reasonably provided for representation from that region, and not merely for one-third representation from each of the four Western Provinces, the Central Provinces and the four Atlantic Provinces, as it does.

In addition, it is said that had the Act been intended to apply to the Northwest Territories Parliament “would surely not have enacted” subsection 23(1), which provides for quotas to be allocated on the basis of production in the five years immediately preceding adoption of the marketing plan since that effectively precludes allocation of any quota, ever, to the Territories. Even if the effect of the legislated scheme is found to be as perceived by the plaintiffs, I am not persuaded that there is merit to these arguments of the plaintiffs for they invite the Court to ignore the plain meaning, in my view, of the legislative provisions, and to consider the wisdom, the reasonableness, of those provisions, a matter beyond the Court’s role in the interpretation of statutes.

Nor am I persuaded by the plaintiffs that subsection 2(1) of the Proclamation, directing the Agency to establish a quota system assigning quotas “to all members of classes of egg producers in each province to whom quotas are assigned by the appropriate … Commodity Board”, yields an absurd result when read in light of subsection 23(1) of the Act even if the latter be read as in effect precluding allocation of a quota to the Territories. The latter provision does not include reference to provinces, rather it speaks of the allocation of marketing quotas “to any area of Canada”. When the Proclamation was first issued in 1973 there was no history of commercial egg production in the Territories; now that there is, there is still no territorial board to assign a quota to commercial producers. In my view, CEMA is not obligated by subsection 2(1) of the Proclamation to assign a quota until a territorial board has assigned a quota and there is a record of five years production immediately before adoption of a marketing plan by CEMA.

I hasten to note that those two qualifications in themselves do not necessarily lead to a conclusion that, if they are met, the Northwest Territories would be assigned a quota under the existing scheme. In the course of argument counsel for CEMA submitted that the legislated scheme did not foreclose a possible quota for the Northwest Territories simply because when CEMA was created there was no commercial production of eggs in the Northwest Territories. He referred to subsection 23(2) as authorizing revision of quotas and suggested that adoption of a plan in future might take cognizance of subsequently established commercial production in the Territories if there were a commodity board in the Northwest Territories that assigned quotas, though admittedly there has not been and is not now such a board. While subsection 23(2) of the Act does provide for revised allocation of quotas, that is in relation to “additional quotas for anticipated growth of market demand”, and demand currently is said to be less than it was when the quotas were first established, though this fact is not established by clear evidence or accepted by the plaintiffs. Moreover, under subsection 23(2) CEMA is required, in allocating additional quotas, to consider the principle of comparative advantage of production, a principle that might not favour fostering in interprovincial trade the marketing of eggs produced in the Northwest Territories.

Finally, the terms of the Proclamation read as a whole seem to me to make assignment of a quota to the Northwest Territories difficult if not impossible, unless those terms be modified. Although this matter was not fully argued before me, I accept for purposes of considering the motion to strike that the plaintiffs’ assumption is correct, that the existing scheme precludes assigning a quota to the Northwest Territories. As I note below in dealing with argument concerning section 121, that assumption is among facts pleaded by the plaintiffs which are deemed to be proven.

I am persuaded that the Act, specifically section 23, and section 3, subsection 4(1), paragraphs 7(1)(d) and 7(1)(e) of the Licensing Regulations and paragraph 4(1)(a), subsection 5(2), section 6 and subsection 7(1) of the Quota Regulations are applicable to commercial production of eggs in the Northwest Territories and to the marketing of eggs there produced in the provinces of Canada.

In my view, the Act by its terms is clearly applicable to the whole of Canada, including the Northwest Territories. Section 23 deals with the allocation of production or marketing quotas “to any area of Canada”. Subsection 16(1) provides for creation of an agency with powers relating to any farm product in interprovincial or export trade where that is supported by a majority of producers of the product “in Canada”. Subsection 17(1) provides for a proclamation creating an agency and requires designation of the farm product concerned and whether the agency shall exercise powers in relation to that product to the extent that it is “grown or produced anywhere in Canada”, or to that product as it is “grown or produced in any region of Canada” or in “such region and anywhere in Canada outside that region for shipment into that region in interprovincial trade and not for export”. Those sections reflect the definitions in section 2 of the Act of “farm product”, and “regulated product” which deal in turn with eggs, poultry and other natural products of agriculture in relation to which the majority of producers of the product in Canada favour establishment of a marketing agency, and to any farm product to the extent it is grown or produced anywhere in Canada, or in any region in Canada designated in a proclamation, or in such region and anywhere in Canada outside that region for shipment into that region in interprovincial trade where the proclamation so provides.

The Proclamation creating CEMA includes in its preamble that the farm product in relation to which CEMA may exercise its powers is “eggs from domestic hens … produced anywhere in Canada”, it deals with marketing in interprovincial and export trade without reference to any limitation to a particular region of Canada and clearly, if implicitly, it is intended to, and does, apply throughout Canada in regard to that trade. Even if it were perceived as applying to one region of Canada by reference to the allocation of quotas to ten provinces specifically named and thus as excluding the Northwest Territories, the regulation of trade between the ten-province region and the Northwest Territories is a matter entirely within the authority of Parliament and a matter that could be provided for expressly by the Proclamation under the Act as it stands. In my view, the legislated scheme clearly provides for regulation of interprovincial trade in eggs throughout Canada, including the Territories, and including that trade in eggs between the Northwest Territories and any province in Canada.

Both parties made reference to the Interpretation Act, R.S.C., 1985, c. I-21, subsection 35(1) which defines “province” as “a province of Canada and includes the Yukon and the Northwest Territories”. Nothing argued persuades me that that definition is not applicable wherever the word “province” is used in the Act, the Proclamation and the Regulations. In the Licensing Regulations as amended in 1987, section 3, then added, makes clear that those Regulations are applicable to persons engaged in marketing of eggs in interprovincial or export trade in any province including the Northwest Territories, by specific reference to the Territories. That is clearly based on the Act, and the Proclamation and is merely consistent with the provision of the Interpretation Act.

As a matter of interpretation, aside from the issues of constitutional validity yet to be discussed, since subsection 23(1) of the Act and the Proclamation are applicable to the trade in eggs between the Territories and other provinces of Canada, the questioned provisions of the Licensing Regulations and the Quota Regulations are also applicable to producers of eggs in the Northwest Territories so far as they desire to operate in interprovincial trade. As we have noted, the forerunners of the existing regulations have been upheld, either expressly or implicitly in the Egg Reference. They are applicable to egg producers in the Territories.

In my view it is plain and obvious that, as a matter of legislative interpretation, the Act, the Proclamation and the Regulations, including the particular provisions referred to by plaintiffs, are intended to, and do, apply to the whole of Canada, including the Northwest Territories. Moreover, it is clear, in my opinion, that following a trial this Court would not grant a declaration that they do not apply. Thus, the plaintiffs’ claim for a declaration of this nature, and the allegations in support of that claim, are now appropriately struck from the statement of claim.

The impugned provisions and section 121

CEMA submits that it is plain and obvious that the plaintiffs’ claim that the impugned provisions are not consistent with section 121 of the Constitution Act, 1867 has no chance of success at trial. That section provides:

121. All Articles of the Growth, Produce, or Manufacture of any of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.

That submission is based on jurisprudence, in particular the Egg Reference decision of then Chief Justice Laskin, who commented as follows:[8]

This brings me to the submissions of the appellants on s. 121 of the British North America Act [now the Constitution Act, 1867]. These submissions engage the proclamation and the terms of the marketing plan, as set out in S.O.R./73-1, rather than the authorizing provisions of the Farm Products Marketing Agencies Act.

…

A federal regulatory statute which does not directly impose a customs charge but through a price fixing scheme, designed to stabilize the marketing of products in interprovincial trade, seeks through quotas, paying due regard to provincial production experience, to establish orderly marketing in such trade cannot, in my opinion, be in violation of s. 121. In Gold Seal Ltd. v. Dominion Express Co.,[9] both Anglin and Mignault JJ. viewed s. 121 as prohibiting the levying of customs duties or like charges when goods are carried from one Province into another. Rand J. took a broader view of s. 121 in Murphy v. C.P.R.,[10] where he said this, at p. 642:

I take s. 121 apart from customs duties to be aimed against trade regulation which is designed to place fetters upon, or raise impediments to, or otherwise restrict or limit, the free flow of commerce across the Dominion as if provincial boundaries did not exist. That it does not create a level of trade activity divested of all regulation, I have no doubt: what is preserved is a free flow of trade regulated in subsidiary features which are or have come to be looked upon as incidents of trade. What is forbidden is a trade regulation, that in its essence and purpose is related to a provincial boundary.

Accepting this view of s. 121, I find nothing in the marketing scheme here that, as a trade regulation, is in its essence and purpose related to a provincial boundary. To hold otherwise would mean that a federal marketing statute, referable to interprovincial trade, could not validly take into account patterns of production in the various Provinces in attempting to establish an equitable basis for the flow of trade. I find here no design of punitive regulation directed against or in favour of any Province.

The plaintiffs refer to the words of Mr. Justice Rand in Murphy v. Canadian Pacific Railway Company and The Attorney General of Canada, accepted by Laskin C.J., and to the latter’s own words in referring to the marketing scheme as not being “in its essence and purpose related to a provincial boundary.” They refer as well to words of Laskin J. (as he then was) in Attorney-General for Manitoba v. Manitoba Egg and Poultry Association et al.:[11]

… to permit each province to seek its own advantage, so to speak, through a figurative sealing of its borders to entry of goods from others would be to deny one of the objects of Confederation, evidenced by the catalogue of federal powers and by s. 121, namely to form an economic unit of the whole of Canada.

I note for the record that Laskin C.J. in that case, having found that the provincial legislation there in question was invalid as directed to interprovincial trade, specifically said that he found it unnecessary to invoke section 121 and its applicability to the marketing scheme there in question.

The plaintiffs claim that under the marketing scheme, the boundaries between the Northwest Territories and the provinces act as an effective barrier to, not the regulation of, the interprovincial marketing of eggs produced in the Territories and that this offends section 121. The plaintiffs urge that in the Egg Marketing reference the Court, viewing the scheme in the circumstances of 1978, and, I add, in the context of questions framed regarding federal legislation and the complementary legislation of Ontario as a province participating in the marketing arrangements, did not consider the position of the Territories in relation to those arrangements. The effect of the Proclamation and of subsection 23(1) is to exclude the Territories from interprovincial trade; no quota can be assigned to a producer in the Territories. While, as I have noted, it is suggested by counsel for CEMA that this result is not inevitable under the scheme as it is, the interpretation of the Proclamation in this respect has not been fully addressed at this stage. In any event, for purposes of this motion, accepting as proven the facts alleged in the plaintiffs’ amended amended statement of claim, I am bound to accept as fact, paragraph 12 which as noted early in these reasons, sets out that the plaintiffs Pineview, Villetard/Martel and 355210 Alberta Ltd. are not able to obtain federal quotas to market eggs produced in the Northwest Territories in any of the provinces of Canada because of provisions of the Act, the Licensing Regulations and the Quota Regulations.

For CEMA it is urged that it is not their location in the Territories, rather it is because there is no Board and no intraterritorial or intraprovincial quota assigned to them. They are said to be in the same position as producers within the ten provinces to whom no quota is assigned. While that is true as an economic outcome, it seems to me to ignore the key element of the plaintiffs’ claim, that unlike producers collectively in each of the ten provinces, location in the Territories does effectively preclude allocation of a quota to producers there under the marketing scheme as it is now.

I am not persuaded that at this stage the comments of Laskin C.J. in the Egg Reference, made without consideration of the circumstances raised by this case, should be taken as a complete answer to the plaintiffs’ claim that the impugned provisions contravene section 121. That may be determined after full argument. In my opinion the plaintiffs are entitled to opportunity to make full argument, after adducing evidence at trial, in relation to their claim. It is not plain and obvious, to me, at this preliminary stage, that their claim in this respect will be dismissed whatever the evidence and argument that may be presented.

The quota and licensing provisions and the Charter

As a preliminary matter CEMA and Her Majesty the Queen contend that the plaintiffs have no standing to raise concerns relating to alleged violations of sections 6, 7 and 15 of the Charter. The plaintiffs’ challenge concerns the perceived inability of egg producers in the Northwest Territories to obtain a federal quota but the only producers before the Court are said to be the corporations Pineview and 355210 Alberta Ltd. and as corporations they have no standing to raise these issues.

I note however, that among other facts set out in the amended amended statement of claim, which for purposes of this motion is accepted as proven, is the statement in paragraph 1 that the individual plaintiffs “Gary Villetard and Pat Martel are the owners of the Pineview egg production facilities in Hay River … and are engaged in the production and marketing of chicken eggs.” Moreover, the individual plaintiff Frank Richardson is described in paragraph 3 as residing and carrying on the “business of producing and marketing eggs as the directing mind and a shareholder of 355210 Alberta Ltd. which operates under the name Northern Poultry in the Town of Hay River.” The status of Messrs. Villetard, Martel and Richardson is not further elaborated at this stage, but for my purposes I must accept that they are producers as described.

CEMA asserts that the plaintiffs seek to circumvent established rules for standing by having the claims made by individuals as shareholders of Pineview and of 355210 Alberta Ltd., seeking to do indirectly what the corporate plaintiffs cannot do directly, that is to assert constitutional claims which only individuals may claim under the Charter. For the Crown it is said that “having chosen to operate as corporations, it is improper to now attempt to seek the benefit of the Charter by adding shareholders as parties”, but I am not persuaded there is any merit in this if the individuals have protected Charter interests that are infringed. For the record I note that Frank Richardson was one of the plaintiffs included in the original statement of claim, that his corporation 355210 Alberta Ltd., and the individual plaintiffs Gary Villetard and Pat Martel as egg producers were all added as plaintiffs by the amended amended statement of claim, and by order of the Court in February 1993. There are cases where the rights of individuals, shareholders of directors or corporations, have been dealt with in relation to the Charter even where the standing of the corporations to do so was denied or not relied upon[12] and I am not persuaded at this stage that, as a general proposition, if the right alleged to be infringed is protected under the Charter, the individual asserting that right should be denied standing simply because he or she is a shareholder or director of a corporation that could not assert the right.

Finally, with regard to Villetard, it is said that as an Alberta based producer holding both federal and provincial quota and licences, it has no standing to complain about alleged infringements of Charter rights of egg producers in the Northwest Territories. In my view, this ignores the possible interest of Villetard as a purchaser in Alberta of eggs produced in the Territories, a purchase prohibited under licensing regulations where the producer in the Territories has no quota to market eggs in interprovincial trade.[13]

I agree with CEMA’s submission about lack of standing for the corporate plaintiffs. It now seems settled, at least in this Court, that corporations have no interests protected by paragraph 6(2)(b)[14] and section 7[15] of the Charter both of which have been interpreted as concerning rights of individuals. Whether a corporation may have standing to challenge validity of legislation said to infringe the rights of others under section 15 of the Charter, even though corporate interests are not protected by that section, is said by the plaintiffs to be an issue expressly left open by the Supreme Court of Canada.[16]For this Court that issue would appear to be decided at this stage by the Court of Appeal denying standing to a corporation in regard to challenging legislation said to infringe subsection 15(1).[17]

For the plaintiffs it is urged that if standing be a serious issue the Court in its discretion should grant standing in the public interest on the standards set out in Minister of Justice of Canada et al. v. Borowski.[18] Of the three requirements there set out, I would agree that there is a serious issue here raised in relation to subsection 15(1) of the Charter and that the corporate plaintiffs have a genuine interest in the question of the validity of the marketing scheme and its supporting legislation. However, since I find that interest may here be pursued by individual plaintiffs there is no necessity for public interest standing to be accorded to the corporations.

I turn to discussion of the various Charter rights here claimed to be infringed. So far as any of those claims are not plainly and obviously futile, in the sense that the plaintiffs cannot succeed, I note, for each, which of the plaintiffs, aside from the corporations, has standing to pursue the claim.

The impugned provisions and paragraph 6(2)(b) of the Charter

CEMA contends that it is plain and obvious the impugned provisions do not interfere with protected mobility rights under subsection 6(2) of the Charter. That section provides:

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a) to move to and take up residence in any province; and

(b) to pursue the gaining of a livelihood in any province.

(3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

CEMA, and Her Majesty, contend that the marketing scheme, under the impugned provisions, does not infringe upon “mobility rights” and paragraph 6(2)(b) does not create a free standing right to work or a right to production or marketing quotas. Moreover, the scheme is within paragraph 6(3)(a) as a law of general application in force in the Northwest Territories, as elsewhere, that does not “discriminate among persons primarily on the basis of province of present or previous residence”.

That position is disputed for the plaintiffs. It is said the plaintiffs Richardson, Villetard and Martel cannot market their eggs outside the Territories because they cannot obtain a federal quota and this denies them the right guaranteed by paragraph 6(2)(b) to pursue their livelihood in any province of Canada. Further, the fact that plaintiffs Villetard operating as Villetard’s Eggs and Villetard’s Eggs can purchase eggs from any province except the Northwest (and Yukon) Territories infringes their rights under paragraph 6(2)(b). The current marketing scheme is said not to be saved by paragraph 6(3)(a) because it does discriminate according to province of residence.

Both sides rely on jurisprudence relating to paragraph 6(2)(b). In Law Society of Upper Canada v. Skapinker,[19] Estey J. declined to find that a free standing right to work was to be inferred from paragraph 6(2)(b); rather that section assures to citizens and permanent residents the right to pursue the gaining of a livelihood in any province, whether or not the individual is resident there, when considered with the concept of mobility. In Black v. Law Society of Alberta, dealing with provincial law society rules which forbade residents from associating with non-residents in the practice of law in the province, La Forest J., in finding the rule violated subsection 6(2), said:[20]

Section 6(2)(b), in my view, guarantees not simply the right to pursue a livelihood, but more specifically, the right to pursue the livelihood of choice to the extent and subject to the same conditions as residents.

…

What section 6(2) was intended to do was to protect the right of a citizen (and by extension a permanent resident) to move about the country, to reside where he or she wishes and to pursue his or her livelihood without regard to provincial boundaries. The provinces may, of course, regulate these rights (as Skapinker holds). But, subject to the exceptions in ss. 1 and 6 of the Charter, they cannot do so in terms of provincial boundaries. That would derogate from the inherent rights of the citizen to be treated equally in his capacity as a citizen throughout Canada.

In my view, if the provinces may not regulate the pursuing of the citizen’s livelihood in terms of provincial boundaries, neither may Parliament, in light of paragraph 6(2)(b), and that is implicit in the wording of the exception from laws of general application in paragraph 6(3)(a).

In R. v. Quesnel,[21] the validity of Ontario marketing legislation and its imposed quota system was questioned by the defendant, charged with failing to permit inspection under the scheme, in part on the ground it infringed section 6 of the Charter. The Ontario Court of Appeal found that section 6 was not applicable where a resident of the province simply sought to raise chickens without obtaining an appropriate quota; paragraph 6(2)(b) does not provide a provincial resident of “an independent constitutional right to work in his province of residence so as to override provincial legislation”. Nor does that section of the Charter enshrine a right that precludes the application of a federal law of general application which is consistent with paragraph 6(3)(a), even though it permits treating applicants in the same province differently.[22] Finally, comparable legislation to that here in question, concerning marketing of chickens was found not to infringe the rights of Ontario producers seeking to market chickens in Quebec without an interprovincial quota. In the last case my colleague Strayer J. said:[23]

It appears to me that under paragraph 6(3)(a), restrictions may be imposed on the right set out in paragraph 6(2)(b), by laws of general application so long as said laws do not discriminate “among persons primarily on the basis of province of present or previous residence”. It appears to me that the marketing laws in question here are laws of general application. With specific reference to the quota system, they do not discriminate against anyone on the basis of his province of present or previous residence …. Nor can it be said that the applicants are barred from selling in Quebec simply because they are residents of Ontario. Rather, it is because they do not have any interprovincial quota and those quotas have been issued without any particular reference to the residence of the producer. I therefore conclude that there is no conflict with section 6 of the Charter.

I am persuaded that the last case is distinguishable from this in light of the context in which the issue is here raised. Here the producers concerned in the Northwest Territories, it is said, may not participate in interprovincial trade because the scheme as now constituted precludes assignment of any quota to producers in the Territories and its effect, to exclude participation in interprovincial marketing, is an exclusion related to provincial residence and boundaries, not merely to lack of an assigned quota. The individual plaintiffs may face difficulty in persuading a trial judge that the marketing arrangements infringe paragraph 6(2)(b) of the Charter, but at this stage I cannot conclude that it is plain and obvious that they will be unsuccessful if given the opportunity to develop their evidence and argument in full.

As for the plaintiff Villetard, carrying on business as Villetard’s Eggs and Villetard’s Eggs, its rights to “pursue the gaining of a livelihood” in Alberta by purchasing eggs from producers in the Northwest Territories, as from producers in other provinces of Canada, may be even more difficult to establish as rights protected by paragraph 6(2)(b), but again until their evidence and argument can be heard in full I would desist from concluding that they cannot succeed at trial. It is not plain and obvious to me that there is no possibility of their success in this claim.

The impugned provisions and section 7 of the Charter

Neither the plaintiffs nor the intervenor, who supported their position, made any submissions at the hearing in relation to the plaintiffs’ claim that the impugned provisions are inconsistent with section 7 of the Charter.

I agree with CEMA, and Her Majesty, that it is plain and obvious this claim cannot succeed if this matter should proceed to trial. Section 7 provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

It is well settled that purely economic interests such as those here asserted by the plaintiffs are not protected by section 7.[24]

The marketing scheme and subsection 15(1) of the Charter

CEMA, and Her Majesty the Queen, contend that apart from the issue of standing, the plaintiffs’ claim that the impugned provisions infringe susection 15(1) of the Charter must fail because that claim does not relate to discrimination in terms of the enumerated grounds there set out or to analogous grounds. Subsection 15(1) provides:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical handicap.

CEMA argues that in this action the plaintiffs claim purely economic rights which bear no relationship to the personal characteristics of those who claim to be unequally treated in the terms enumerated in subsection 15(1) or analogous terms. Even if it can be said that Northwest Territories producers of eggs are treated differently in respect of a federal quota, there is nothing discriminatory about the scheme within the context of the Charter. Those egg producers cannot be said to be a “discrete and insular minority” of the type sought to be protected by subsection 15(1).

For the plaintiffs it is urged that the individual plaintiffs Richardson, Gary Villetard and Pat Martel have been denied equality under the law and equality before the law since they cannot apply for a federal quota for interprovincial egg marketing, whereas other egg producers in Canada outside the Northwest Territories may do so.

It is also contended that the plaintiffs Villetard operating as Villetard’s Eggs, and Villetard’s Eggs have been denied equality under the law because they cannot purchase eggs from Northwest Territories producers since those producers are denied the ability to obtain a federal quota, but I do not see this as denial of equality, or even differential treatment related to their location or residence in Alberta, the basis of the plaintiffs’ claim that they are denied equal treatment under the law. Villetard, as so described as plaintiff, is in the same position as any other egg purchaser located in any of the provinces of Canada and that group does not constitute a discrete minority, and their province or provinces of residence is not a ground on which inability to purchase from producers in the Northwest Territories is based.

In this case it is urged for the plaintiffs Richardson, Villetard and Martel, as producers of eggs in the Northwest Territories, that the marketing scheme is discriminatory, denying only to producers in the Territories the opportunity to seek a quota, and that difference is related to their province of residence, a personal characteristic analogous to those set out in subsection 15(1).

In my view, there is here an arguable case that the plaintiffs Richardson, Villetard and Martel as egg producers in the Northwest Territories are denied equality under the law by denial of opportunity to apply for or obtain a federal quota. Whether that denial is related to their province of residence as producers is arguable, and whether their province of residence is a personal characteristic which would lead to the conclusion that the law is discriminatory within the terms of subsection 15(1) is an arguable issue, not yet clearly determined.

In R. v. Turpin, while holding that the Criminal Code [R.S.C. 1970, c. C-34] provisions there in issue were not discriminatory within the meaning of subsection 15(1), Madam Justice Wilson, speaking for the Supreme Court, commented:[25]

I would not wish to suggest that a person’s province of residence or place of trial could not in some circumstances be a personal characteristic of the individual or group capable of constituting a ground of discrimination, I simply say that it is not so here.

…

In this particular case the appellants claim to be part of a disadvantaged group comprising all those charged with s. 427 offences being tried outside the province of Alberta and it is this claim which I have rejected. This does not, in my view, preclude the possibility that some variations in criminal law and procedure among the different provinces could give rise to discrimination in the sense defined by a majority of this Court in Andrews.[26]

Referring to those comments in R. v. S. (S.),[27] Chief Justice Lamer, while rejecting argument that subsection 15(1) of the Charter was infringed, for young offenders in Ontario, by federal legislation authorizing alternative measures of punishment to be adopted by provincial Attorneys General but which had not been acted upon in Ontario, commented as follows:

I agree with Wilson J. that in determining whether province-based distinctions which arise from the application of federal law contravene s. 15(1) of the Charter, a case-by-case approach is appropriate.

The defendants submit that an almost identical challenge to that now raised by the plaintiffs in relation to subsection 15(1) of the Charter was rejected by the British Columbia Court of Appeal in Milk Bd. v. Clearview Dairy Farm Inc.[28] There the Court dismissed an appeal from a decision granting an injunction against sale by the defendant dairy, which had no quota for sale of fluid milk or industrial milk, and refusing a declaration sought by the defendant dairy that the milk marketing scheme, analogous to that here relating to marketing of eggs, contravened subsection 15(1) of the Charter. The dairy claimed the right to sell industrial milk, without a provincially assigned quota, to a cheese manufacturer located in the province which sold its product in intraprovincial and interprovincial trade. The Court of Appeal upheld the finding that no subsection 15(1) right was infringed by the marketing scheme. The plaintiffs distinguish that case. I agree that it does not deal with the issue they seek to raise, for the case involved a challenge to the assignment of milk quota by a provincial board, under a federal-provincial arrangement comparable to that concerning egg marketing, but that quota related to sale within the province, a matter of intraprovincial trade. The issue raised there did not deal with the issue of the validity of federal legislation which it is said denies opportunity to participate in interprovincial trade by reason of the province of residence of producers, in the Northwest Territories, the issue which plaintiffs here seek to raise.

Thus, while the corporate plaintiffs have no standing to challenge the marketing scheme as inconsistent with subsection 15(1) of the Charter, and in my view the plaintiff Villetard doing business as Villetard’s Eggs and Villetard’s Eggs cannot make out a case that subsection 15(1) rights have been infringed, it is otherwise for the individual plaintiffs Richardson, Villetard and Martel as producers in the Northwest Territories. By no means do I imply they are likely to be successful if the marketing scheme is challenged on the ground that it infringes their rights under subsection 15(1). At this stage, however, I am not persuaded that it is plain and obvious that their claim in this regard is without possibility of success if the matter be tried.

Conclusion

I summarize my conclusions.

I do not accept the defendants’ application that all of the claims of the plaintiffs, and thus the entire statement of claim, should be struck out. I am persuaded, however, that two of the claims advanced by the plaintiffs have no possibility of success and should be struck out, even at this preliminary stage.

In my view, it is plain and obvious that the plaintiffs’ amended amended statement of claim does not disclose a reasonable cause of action, that is, a cause of action with some chance of success, in the following claims:

1)         that the impugned provisions (section 23 of the Act, section 3, subsection 4(1), paragraphs 7(1)(d) and 7(1)(a) of the Licensing Regulations and paragraph 4(1)(a), subsection 5(2), section 6 and subsection 7(1) of the Quota Regulations do not apply to a commercial producer of eggs in the Northwest Territories or to the marketing in the provinces of Canada of eggs produced in the Northwest Territories;

2)         that the impugned provisions are inconsistent with section 7 of the Charter.

Further, I conclude it is plain and obvious that claims of the corporate plaintiffs to challenge the impugned provisions on the grounds that they are inconsistent with rights assured to citizens or permanent residents of Canada under paragraph 6(2)(b) of the Charter and rights assured to individuals under subsection 15(1), have no chance of success if they were to proceed to trial. Finally, I conclude that the plaintiffs Villetard, doing business as Villetard’s Eggs, and Villetard’s Eggs, has no chance of success in a claim that rights assured under subsection 15(1) of the Charter are denied to it.

Despite the well presented submissions of CEMA and of Her Majesty the Queen, I am not persuaded that the jurisprudence relied upon forecloses the possibility of success in regard to the claims by all plaintiffs in relation to section 121 of the Constitution Act, 1867. Similarly, the claims by the individual plaintiffs Richardson, Villetard and Martel as egg producers in the Northwest Territories and the claim of Villetard’s Eggs that the impugned provisions infringe their rights assured by paragraph 6(2)(b) of the Charter, are not, in my view, plainly and obviously without chance of success. I reach the same conclusion in relation to the claims of the individual plaintiffs as producers of eggs in the Northwest Territories in relation to subsection 15(1) of the Charter where the essence of the plaintiffs’ claim is that the marketing scheme, in effect, discriminates on the basis of province of their residence.

Having so concluded, there is no basis on which to strike the claims which cannot be said to be without possibility of success on the alternative ground set out by CEMA’s motion. Those claims cannot be said to be frivolous or vexatious in the terms of Rule 419(1)(c).

In light of these conclusions an order goes allowing the application of CEMA in part and directing that the following portions of the amended amended statement of claim be struck out:

1) paragraph 13 in its entirety;

2) in paragraph 15,

(a) the references to the corporate plaintiffs Pineview and 355210 Alberta Ltd., in lines 1 and 7-8;

(b) the words, in lines 5 and 6 of that paragraph, “and their rights to liberty and the right not to be deprived thereof except in accordance with the principles of fundamental justice as provided in section 7 of the Constitution Act, 1982”;

3)         in paragraph 16, the reference to the corporate plaintiffs Pineview and 355210 Alberta Ltd.;

4)         paragraph 18 in its entirety;

5)         in the plaintiffs’ prayer for relief, following paragraph 19,

(a) subparagraph (i), in its entirety; and

(b) in subparagraph (ii), line 4, the words “Section 7”.

In its motion CEMA asked for costs in this application and in proceedings to this date. My disposition of the application is on the basis that the motion is allowed in part only. In all the circumstances it seems appropriate at this stage that costs be in the cause and that is provided in the order now issued.

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