[1994] 2 F.C. 247
A-316-93
Attorney General of Canada (Appellant)
and
The Canadian Broiler Hatching Egg Marketing Agency and The Canadian Hatchery Federation (Cross appellants)
v.
The Canadian Association of Regulated Importers, Parkview Poultry Ltd., Bertmar Poultry Ltd., George Tsisenpoulos, Henry Neufeld, Zigmond Tibay, Henry Kikkert, Eva Szasz Peterffy, Paul Dinga, C & A Poultry Ltd., Zoltan Varga, Jake Drost, George Drost, Joe Drost, Melican Farms Ltd., Joe Speck, Marinus Kikkert, Checkerboard Hatchery, Brampton Chick Hatching Co. Ltd., Zoltan Koesis, Roe Poultry Ltd., Gabe Koesis, Henry Fois (Respondents)
A-363-93
The Canadian Hatchery Federation (Appellant)
and
Attorney General of Canada and The Canadian Broiler Hatching Egg Marketing Agency (Cross appellants)
v.
The Canadian Association of Regulated Importers, Parkview Poultry Ltd., Bertmar Poultry Ltd., George Tsisenpoulos, Henry Neufeld, Zigmond Tibay, Henry Kikkert, Eva Szasz Peterffy, Paul Dinga, C & A Poultry Ltd., Zoltan Varga, Jake Drost, George Drost, Joe Drost, Melican Farms Ltd., Joe Speck, Marinus Kikkert, Checkerboard Hatchery, Brampton Chick Hatching Co. Ltd., Zoltan Koesis, Roe Poultry Ltd., Gabe Koesis, Henry Fois (Respondents)
Indexed as: Canadian Assn. of Regulated Importers v. Canada (Attorney General) (C.A.)
Court of Appeal, Heald, Linden JJ.A. and Gray D.J. —Toronto, December 1, 2 and 3, 1993; Ottawa, January 6, 1994.
Judicial review — Prerogative writs — Certiorari — Appeals from order of certiorari quashing International Trade Minister’s decision allocating import quotas for hatching eggs and chicks on basis of national market share — Governor in Council placing broiler hatching eggs and chicks on Import Control List under Export and Import Permits Act — Notice to Importers including annual global quota, principles of allocation — Issuance of notice discretionary decision immune from review — Policy guidelines not regulations, useful guide only — Minister acting in good faith — Rules of natural justice not applicable to legislative or policy decisions — Minister relying on relevant factors in deciding to adopt quota system — Decision not to be interfered with, even if wrong.
These were appeals against an order of certiorari granted by Reed J. quashing the decision of the Minister for International Trade allocating import quotas for hatching eggs and chicks to hatcheries on the basis of national market share and a second order, meant to supplement the original order, setting interim quotas. The respondents, referred to as the “historical importers”, are companies and individuals who, prior to the Minister’s decision, imported broiler hatching eggs and chicks from the United States without regulation. On May 8, 1989, the Governor in Council placed broiler hatching eggs and chicks on the Import Control List under the Export and Import Permits Act. On that same day, the Minister issued a notice to importers which included the annual global quota and principles of allocation. The goal of the principles set out in the notice was to gradually shift the allocation of import quota from those who had imported in the past (the historical importers) to federally registered hatcheries on the basis of market share. The main issue in this appeal was whether the Minister’s issuance of the notice to importers was a discretionary decision in the nature of policy or legislative action, which is virtually unreviewable, or whether it was the exercise of a statutory power, reviewable according to the ordinary principles of administrative law.
Held, the appeals should be allowed.
Where a statutory discretion has been exercised in good faith and in accordance with the principles of natural justice and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. The policy guidelines are not regulations but a useful guide only. Although the Trial Judge was correct in noting that these guidelines would cause economic loss to certain parties, they were discretionary policy guidelines, within the purview of the Minister who acted in good faith. The rules of natural justice are not applicable to legislative or policy decisions, more particularly to the setting of a quota policy, although they may be to individual decisions respecting grants of quotas. The adoption of a quota policy is essentially a legislative or policy matter, with which courts do not normally interfere. Any remedy that may be available would be political, not legal. It might have been considerate for the Minister to have given the respondents notice and an opportunity to be heard, but he was not required to do so. The respondents sought to impose upon the Minister a public consultation process not contemplated by the legislation.
The Trial Judge erred in quashing the Minister’s decision because it was “based on irrelevant considerations”. It is not fatal to a policy decision that some irrelevant factors be taken into account; it is only when such a decision is based entirely or predominantly on irrelevant factors that it is impeachable. A court will interfere only if there was reliance primarily on irrelevant matters as well as an absence of evidence supporting the Minister’s decision. There was ample evidence in the record to support the decision made by the Minister to adopt the quota system. In doing so, he relied on relevant factors. He did not necessarily make the right decision, but even if it could be shown that he may have made the wrong decision, the Court would have no business interfering with it.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Aeronautics Act, R.S.C., 1985, c. A-2, ss. 5 (as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1; (3rd Supp.), c. 28, s. 359), 6 (as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1).
Broadcasting Act, S.C. 1991, c. 11, s. 11(5).
Canadian Broiler Hatching Egg Marketing Agency Proclamation, SOR/87-40.
Export and Import Permits Act, R.S.C., 1985, c. E-19, ss. 5(1), 8(1).
Farm Products Marketing Agencies Act, R.S.C., 1985, c. F-4, ss. 16, 17, 21, 23.
Government Organization Act, 1983, S.C. 1980-81-82-83, c. 167, ss. 4, 6.
Grain Futures Act, R.S.C., 1985, c. G-11, s. 5(2).
Transportation of Dangerous Goods Act, R.S.C., 1985, c. T-19, s. 22(1).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Maple Lodge Farms Ltd. v. R., [1981] 1 F.C. 500; (1980), 114 D.L.R. (3d) 634; 42 N.R. 312 (C.A.); affd Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; (1991), 83 D.L.R. (4th) 297; [1991] 6 W.W.R. 1; 58 B.C.L.R. (2d) 1; 127 N.R. 161; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385; 50 C.C.C. (2d) 353; 13 C.R. (3d) 1; 15 C.R. (3d) 315; 30 N.R. 119.
APPLIED:
Thorne’s Hardware Ltd. et al. v. The Queen et al., [1983] 1 S.C.R. 106; (1983), 143 D.L.R. (3d) 577; 46 N.R. 91; Re Bedesky et al. and Farm Products Marketing Board of Ontario et al. (1975), 8 O.R. (2d) 516 (Div. Ct.); affd (1975), 10 O.R. (2d) 105 (C.A.); leave to appeal refused (1975), 10 O.R. (2d) 105 (C.A.) note.
REFERRED TO:
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; Bates v Lord Hailsham of St Marylebone, [1972] 3 All E.R. 1019 (Ch.D.); Cantwell v. Canada (Minister of the Environment) (1991), 6 C.E.L.R. (N.S.) 16; 41 F.T.R. 18 (F.C.T.D.); Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42 (T.D.); 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. 81 (C.A.); Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; (1990), 75 D.L.R. (4th) 385; [1991] 2 W.W.R. 145; 2 M.P.L.R. (2d) 217; 69 Man.R. (2d) 134; 46 Admin. L.R. 161; 116 N.R. 46.
APPEALS from Trial Division order of certiorari ([1993] 3 F.C. 199 (abridged); (1993), 62 F.T.R. 172 (T.D.)) quashing a decision of the Minister for International Trade which allocated import quotas for hatching eggs and chicks to hatcheries on the basis of national market share. Appeals allowed.
COUNSEL:
Marlene I. Thomas and Christopher Parke for appellant Attorney General of Canada.
François Lemieux and David K. Wilson for cross appellant Canadian Broiler Hatching Egg Marketing Agency.
Douglas Hodgson and Herman Turkstra for cross appellant Canadian Hatchery Federation.
Paul J. Stott and John T. Pepall for respondents.
SOLICITORS:
Deputy Attorney General of Canada for appellant Attorney General of Canada.
Osler, Hoskin & Harcourt, Ottawa, for cross appellant Canadian Broiler Hacthing Egg Marketing Agency.
Turkstra, Mazza, Shinehoft, Mihailovich Associates, Toronto, for cross appellant Canadian Hatchery Federation.
Abraham, Duggan, Toronto, for respondents.
The following are the reasons for judgment rendered in English by
Linden J.A.: These two appeals are from decisions of the Trial Division. On April 1, 1993 [[1993] 3 F.C. 199], the Trial Judge granted an order in the nature of certiorari quashing a decision of the Secretary of State for External Affairs which allocated import quotas for hatching eggs and chicks to hatcheries on the basis of national market share. It was also ordered that a decision on this matter be made on relevant grounds after hearing submissions from the applicants. In addition an injunction was issued to prevent any claw back of quota from the historical importers until such decision is taken. This order reads as follows:
a) an order in the nature of certiorari, quashing the decision of the Minister for International Trade, as adopted by the Secretary of State for External Affairs, allocating import quota for hatching eggs and chicks to hatcheries only, across Canada, on national market share.
b) order in the nature of mandamus requiring that the Secretary of State for External Affairs make a decision with respect to the system of import quota allocation only after having received submissions from the applicants and by taking into account only relevant considerations; and
c) an interim order in the nature of an injunction requiring that the Secretary of State for External Affairs not implement any further retrieval or claw back of the quota from historical importers until a decision as set out above is taken.
The second order being appealed from was dated May 27, 1993 and was meant to supplement the original order of April 1, 1993. In it, the Court ordered also:
(a) Seventeen percent (17%) of the quota for hatching egg and chick imports for 1993 shall be allocated to historic importers;
(b) From January 1, 1994 the quota will be allocated to historic importers at the level it was issued to them in 1991, adjusted for the increase in the quota base to 21.1% of domestic production of broiler hatching eggs which resulted from the agreement of September 13, 1990 between Canada and the United States;
(c) The remainder of the 1994 quota will be allocated to hatcheries on the basis of market share until the Secretary of State for External Affairs makes a decision in accordance with paragraph 2 of the order of April 1, 1993 herein;
(d) In the event the Secretary of State for External Affairs has not made a decision by October 1, 1994, the parties are at liberty to seek a further interim order from this Court;
(e) This order shall take effect on July 1, 1993.
This latter order was made with the consent of the Attorney General and the applicants below, but over the objections of the Canadian Hatchery Federation and the Canadian Broiler Hatching Egg Marketing Agency.
The facts are briefly the following. The respondents are individuals and companies who, prior to the decision being challenged, imported broiler hatching eggs and chicks from the United States without regulation. They are referred to as the “historical importers” and they have been represented by the Canadian Association of Regulated Importers, which is a trade group representing importers of broiler hatching eggs and chicks, as well as importers of other products.
The Canadian Broiler Hatching Egg Marketing Agency is a national marketing agency established by proclamation on December 29, 1986 [SOR/87-40] under the Farm Products Marketing Agencies Act, R.S.C., 1985, c. F-4, sections 16 and 17.
The Canadian Hatchery Federation represents 89 hatcheries across Canada, including most of the major hatcheries. It is composed of 7 regional associations.
During the hearings in 1983 that led up to the establishment of a national marketing agency for these products, the Chicken Broiler Hatching Egg Producers Association urged the creation of such an agency to control imports of broiler hatching eggs and chicks to protect the market of domestically produced broiler hatching eggs. In a report written after these hearings (May 23, 1984), the National Farm Products Marketing Council found that some importers had used the threat of imports of hatching eggs and chicks in bargaining with domestic producers for lower prices. It also reported that low import prices in central Canada had an effect on prices in other provinces as well.
Not long after (December 29, 1986), following further discussions and consultations, a proclamation was issued creating the Canadian Broiler Hatching Egg Marketing Agency (CBHEMA) which would have the authority to regulate the marketing of broiler hatching eggs and chicks from member provinces for interprovincial and international trade. On September 1, 1987, CBHEMA recommended to the Minister of Agriculture that the Governor in Council place broiler hatching eggs and chicks on the Import Control List under the Export and Import Permits Act [R.S.C., 1985, c. E-19].
On May 8, 1989 the Governor in Council placed broiler hatching eggs and chicks on the Import Control List. This was done pursuant to the recommendation of the Secretary of State for External Affairs (actually the Minister of International Trade operationally).
On the same day as the products were placed on the List, May 8, 1989, a notice to importers was also issued, which is the main subject of these two appeals. In the notice to importers the annual global quota and principles of allocation were included. The goal of the principles set out in the notice was to gradually shift the allocation of import quota from those who had imported in the past (the historical importers) to federally registered hatcheries on the basis of market share. Excerpts from that seven-page notice include:
Principles of Quota Allocation
11. In 1989, the main criterion for determining the size of quota allocated to individual applicants will be the average level of their annual imports during 1984 through 1988, inclusive. However, any remaining quota not allocated on this basis will be allocated to federally-registered hatcheries on the basis of market share.
12. Applicants requesting quota allocations for 1989 are requested to submit a summary of their imports for the calendar years 1984 through 1988, along with Customs entry documents to substantiate this import performance.
13. Federally-registered hatcheries applying for a quota allocation on the basis of market share must provide information on the total numbers of chicks sold for chicken production in calendar year 1988. Market share, determined on this basis, is subject to verification by External Affairs.
14. In each of the years from 1990 to 1993 inclusive, 25 percent of the quota allocated on the basis of historical import performance will be retrieved each year and reallocated to federally-registered hatcheries only, on the basis of market share. For 1994 and beyond, the entire quota will be reallocated each year to federally-registered hatcheries only, on the basis of market share.
Quota Utilization
15. Quota holders will be permitted to import up to their annual quota level at any time during the calendar year.
16. The quota allocation may be used to import either broiler hatching eggs or chicks for chicken production. Each chick will be counted as 1.27 hatching eggs.
17. If a quota holder uses less than 90 percent of quota allocated, the allocation in the next year will normally be reduced to the actual level of utilization. Quota not used in any calendar year will not be available for carryover to the next calendar year. (See affidavit of Catherine Anne McKinley, particularly Exhibit “A” thereto, A.B., Vol. 4, pp. 755, 756 and 757).
A challenge to this notice was launched by the respondents in the Trial Division, leading to the two orders that have been appealed to this Court.
The first issue is whether the Minister’s issuance of the notice to importers dated May 8, 1989 was a discretionary decision in the nature of policy or legislative action, which is virtually unreviewable, or whether it was the exercise of a statutory power, reviewable according to the ordinary principles of administrative law. The Trial Judge held that it was the exercise of a statutory power and hence reviewable in the ordinary way, wherefrom she proceeded to quash the decision. With respect, I am of a different view—that the promulgation of the notice was a discretionary act in the nature of a policy guideline and hence was largely immune from review.
Subsection 5(1) of the Export and Import Permits Act, R.S.C., 1985, c. E-19, reads as follows:
5. (1) The Governor in Council may establish a list of goods, to be called an Import Control List, including therein any article the import of which the Governor-in-Council deems it necessary to control for any of the following purposes:
…
(b) to restrict, for the purpose of supporting any action taken under the Farm Products Marketing Agencies Act, the importation in any form of a like article to one produced or marketed in Canada the quantities of which are fixed or determined under that Act.
Subsection 8(1) of the same Act states:
8. (1) The Minister may issue to any resident of Canada applying therefor a permit to import goods included in an Import Control List, in such quantity and of such quality, by such persons, from such places or persons and subject to such other terms and conditions as are described in the permit or in the regulations.
There is no challenge to the legislative nature of placing the articles on the List; the challenge is to the notice to importers which inter alia outlines an annual global quota, principles of quota allocation and matters dealing with the issuance of permits.
The decision of Maple Lodge Farms Ltd. v. R., [1981] 1 F.C. 500 (C.A.); affd [1982] 2 S.C.R. 2, is of significance in this case. In a similar fact situation, it was held that the authority given to the Minister to grant permits under subsection 8(1) was discretionary. Thus, according to Mr. Justice McIntyre in the Supreme Court of Canada (at pages 7-8):
In construing statutes such as those under consideration in this appeal, which provide for far-reaching and frequently complicated administrative schemes, the judicial approach should be to endeavour within the scope of the legislation to give effect to its provisions so that the administrative agencies created may function effectively, as the legislation intended. In my view, in dealing with legislation of this nature, the courts should wherever possible, avoid a narrow, technical construction, and endeavour to make effective the legislative intent as applied to the administrative scheme involved. It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
It was also held that the Minister could issue policy guidelines outlining the general requirements for the granting of permits, for that would be helpful to applicants to know in general terms what the policy and practice of the Minister will be, as long as they do not confine the Minister so as to fetter his discretion (see pages 6-7).
The Supreme Court of Canada was merely echoing the principles expressed by Mr. Justice Le Dain (as he then was) in the Federal Court of Appeal in Maple Lodge Farms, supra, at pages 513-514:
… guidelines, which are not regulations and do not have the force of law, cannot limit or qualify the scope of the discretion conferred by statute, or create a right to something that has been made discretionary by statute. The Minister may validly and properly indicate the kind of considerations by which he will be guided as a general rule in the exercise of his discretion … but he cannot fetter his discretion by treating the guidelines as binding upon him and excluding other valid or relevant reasons for the exercise of his discretion.
After all, these policy guidelines are not regulations; they may be easily changed from time to time, depending on the economic and political climate as well as the international situation. They are a useful guide only, which is as it should be.
As for the finality of policy decisions, a similar view was expressed in Thorne’s Hardware Ltd. et al. v. The Queen et al., [1983] 1 S.C.R. 106, by Mr. Justice Dickson (as he then was), at page 111:
Decisions made by the Governor in Council in matters of public convenience and general policy are final and not reviewable in legal proceedings. Although … the possibility of striking down an order in council on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action.
Although the Trial Judge was correct in noting that these guidelines would cause economic loss to certain parties, they were, nevertheless, in my view, discretionary policy guidelines, and hence, within the purview of the Minister and not subject to ordinary review, save according to the three exceptions set out in Maple Lodge Farms.
Turning to the Maple Lodge Farms exceptions, therefore, no one questions that the Minister acted in good faith. Criticisms were levelled at the substance of his decision and the method of arriving at that decision, but no allegations of bad faith have been made. Thus, that exception is not applicable here.
As for the need to comply with natural justice principles in this case, there is a fundamental disagreement. The Trial Judge held that some form of notice to the respondents was required as well as an effective opportunity to be heard. The appellants challenge this view, whereas the respondents support it.
Generally, the rules of natural justice are not applicable to legislative or policy decisions. As has been clearly stated by Sopinka J. in Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at page 558:
[T]he rules governing procedural fairness do not apply to a body exercising purely legislative functions.
A similar statement was made by Dickson J. (as he then was) in Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at page 628:
A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision.
(See also Estey J. in Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735, at page 758; Bates v Lord Hailsham of St Marylebone, [1972] 3 All E.R. 1019 (Ch.D.).)
More particularly, it has been held that the principles of natural justice are not applicable to the setting of a quota policy although they may be to individual decisions respecting grants of quotas. In Re Bedesky et al. and Farm Products Marketing Board of Ontario et al. (1975), 8 O.R. (2d) 516 (Div. Ct.); affirmed (1975), 10 O.R. (2d) 105 (C.A.); leave to appeal refused (1975), 10 O.R. (2d) 105 note, Mr. Justice Morden stated at page 539:
No authority was cited to us for the proposition that the principles of natural justice respecting the right to notice and the right to be heard are applicable to govern a body such as the Chicken Board with respect to the devising and adopting of a quota policy. In fact, the law would appear to be to the contrary.
I can see no reason to differentiate the situation where, as here, it is a Minister rather than a board that is establishing the quota. Some may be damaged while others may gain by such a quota, but the exercise is essentially a legislative or policy matter, with which Courts do not normally interfere. Any remedy that may be available would be political, not legal. It might have been a considerate thing for the Minister to give the respondents notice and an opportunity to be heard, but he was not required to do so.
In essence, what the respondents are seeking here is to impose a public consultation process on the Minister when no such thing has been contemplated by the legislation. There are statutes in which regulations or policies cannot be promulgated without notifying and consulting the public. (See, for example, Grain Futures Act, R.S.C., 1985, c. G-11, subsection 5(2); Aeronautics Act, R.S.C., 1985, c. A-2, section 5 [as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1; (3rd Supp.), c. 28, s. 359] and section 6 [as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1]; Transportation of Dangerous Goods Act, R.S.C., 1985, c. T-19, subsection 22(1); and Broadcasting Act, S.C. 1991, c. 11, subsection 11(5). No such legislative provision appears in the Export and Import Permits Act, something that Parliament could have inserted if it wanted notice to be given and consultation with the public to be held.
The last basis of attack on the Minister’s conduct was that it was based on irrelevant factors and was not supported by the evidence. The Trial Judge was of the view that there was no evidence that the system adopted would support domestic supply management, that there was any consideration of the increased concentration of the market that might arise, nor of reliance on the Deloitte, Touche study which may have supported the decision. Rather she decided that the main focus was to transfer profits from one segment of the market to another, which might cause disruption of the market. Accordingly, the Trial Judge quashed the decision of the Minister because it was “based on irrelevant considerations.” With respect, I am of the view that the Trial Judge erred in this regard as well.
It is not fatal to a policy decision that some irrelevant factors be taken into account; it is only when such a decision is based entirely or predominantly on irrelevant factors that it is impeachable. It is not up to the Court to pass judgment on whether a decision is “wise or unwise.” (See Cantwell v. Canada (Minister of the Environment) (1991), 6 C.E.L.R. (N.S.) 16 (F.C.T.D.), at page 46 per MacKay J.) This Court, because these matters involve “value judgments”, is not to “sit as an appellate body determining whether the initiating department made the correct decision.” (See Strayer J. in Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42 (T.D.), at page 49.)
As this Court stated in National Anti-Poverty Organization v. Canada (Attorney General), [1989] 3 F.C. 684, at page 707, “Even if one were to assume that the Governor in Council acted with a dual purpose in mind (one falling within his mandate … and the other falling outside his mandate … ) I doubt that this could advance the respondents’ case.” For, as the Supreme Court of Canada has explained, “Governments do not publish reasons for their decisions; governments may be moved by any number of political, economic, social or partisan considerations.” (See Thorne’s Hardware Ltd., supra, at pages 112-113.)
In other words, for a court to interfere, there must be reliance primarily on irrelevant matters as well as an absence of evidence supporting the Minister’s decision.
The relevant legislative provisions to be considered here are subsections 5(1) and 8(1) of the Export and Import Permits Act which are reproduced above. It should be noted that, in establishing the Import Control List, the Governor in Council must deem it necessary “for the purpose of supporting any action taken under the Farm Products Marketing Agencies Act.” Counsel for the respondents contended that this necessarily incorporated section 23 of that Act into the decision making considerations binding upon the Minister. Section 23 reads as follows:
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.
(2) In allocating additional quotas for anticipated growth of market demand, an agency shall consider the principle of comparative advantage of production.
He further argued that, because subsection 23(1) stipulates that the historical method of allocation must be used in setting up a marketing plan, the use of the machinery in the Export and Import Permits Act must also be in accordance with that principle. In my view, this is too narrow a reading of these sections. This contention, if it were accepted, would virtually prevent the Minister from departing from the historical patterns of production, something that would render nugatory the capacity of the Minister to change trading patterns in the commodities under consideration. This could not have been the object of Parliament.
In “supporting any action taken under the Farm Products Marketing Agencies Act,” not only must the Minister have regard to history in subsection 23(1), but he must also consider the “principle of comparative advantage” in subsection 23(2) as well as other sections of the Act. For example, the Minister must also consider section 21 of the Act which describes the objects of an agency as follows:
21. The objects of an agency are
(a) to promote a strong, efficient and competitive production and marketing industry for the regulated product or products in relation to which it may exercise its powers; and
(b) to have due regard to the interests of producers and consumers of the regulated product or products.
This indicates that the Minister must take into account a very broad range of considerations, not only the historical situation, in arriving at his decisions.
A detailed reading of the record indicates that the considerations taken into account by the Minister included a wide variety of matters and were not as limited as the Trial Judge thought. While there may have been some irrelevant and less relevant matters taken into account, there were also many relevant ones that were assessed.
There is no need for me to list each and every factor nor piece of relevant evidence that was considered, but I shall mention a few illustrative ones. The Minister considered various quota allocation systems, that is, the traditional method, a phased-in allocation to hatcheries on a provincial market share basis and a phased-in allocation to hatcheries on a national market share basis. (See Gosselin affidavit, Appeal Book, Volume V, pages 1089-1118.) The advantages and disadvantages of each of these alternatives were weighed (see, for example, Drohomereski affidavit, Appeal Book, Volume II, pages 310-314). Evidence was adduced concerning the advantages of shifting import allocations on a phased-in basis as between hatcheries and limiting imports only to hatcheries, such as reducing inequalities between traditional importers and those who did not possess any quotas, (see Gosselin, cross-examination, Appeal Book, Volume V, pages 1169-1170; CBHEMA submissions, Appeal Book, Volume II, page 467 and Volume IV, page 1102), improving the degree of market responsiveness by adjusting allocations annually on the basis of market share (see DeValk affidavit, Appeal Book, Volume I, page 294), producing savings by passing on the benefits of the lower prices of imports (see McKinley cross-examination, Appeal Book, Volume IV, page 840), and granting imports to the hatchery segment of the industry that had a long-term view of optimal supply arrangements (see Gosselin cross-examination, Appeal Book, Volume V, pages 1180-1182). There was also evidence of support for the system adopted by the Minister from CBHEMA, the Canadian Chicken Marketing Agency, the Ontario Chicken Producers Marketing Board and others. Evidence was also introduced to show that the quota system adopted would support supply management of hatching eggs and chicks. (See, for example, Gosselin evidence, Appeal Book, Volume V, pages 1167, 1176, etc; Drohomereski evidence, Appeal Book, Volume IV, page 510; McKinley evidence, Appeal Book, Volume IV, pages 791, 921 etc.) There is no need to add further examples, of which there are many.
In conclusion, there is ample evidence in the record to support the decision made by the Minister to adopt the system he did. In doing so he relied on relevant factors. This is not to say that the evidence demonstrated that he necessarily made the right decision. That is not the standard of review that we must apply. Indeed, even if it could be shown that he may have made the wrong decision, this Court would have no business interfering with it in these circumstances.
As to the remaining issues to be dealt with, the Trial Judge was correct in deciding that, while the Minister for International Trade may have made the initial decision, it was done with the approval of the Secretary of State for External Affairs. In other words, the Secretary of State for External Affairs adopted, as his own, the decision made originally by the Minister for International Trade. It was, therefore, not an unauthorized sub-delegation of authority. (See Government Organization Act, 1983, S.C. 1980-81-82-83, c. 167, sections 4 and 6.)
There is no basis for contending that the doctrine of reasonable expectations was applicable on these facts, since there was no promise to consult nor any such practice which might have been reasonably relied upon by the respondents. (See Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, at page 1203.)
Because of the result in the first appeal, there is no need to consider in the second appeal whether the Trial Judge exceeded her jurisdiction in so far as the remedy she ordered. Since the Trial Judge erred in quashing the decision of the Minister, the remedy she ordered must also be set aside.
These appeals will both be allowed and the order for certiorari dated April 1, 1993, quashing the Minister’s decision will be set aside as will the order dated May 27, 1993, of the Court setting interim quotas.
Heald J.A.: I agree.
Gray D.J.: I agree.