T-453-80
Maple Lodge Farms Limited (Applicant)
v.
Government of Canada and the Minister of Eco
nomic Development responsible for Industry,
Trade and Commerce (Respondents)
Trial Division, Dubé J.—Toronto, February 4;
Ottawa, February 13, 1980.
Prerogative writs — Mandamus — Application for man-
damus ordering Minister to issue supplementary import per
mits allowing applicant to import more chickens than allowed
under the global import quota under the Import Control List
— For mandamus to issue the act sought must be a duty
imperative and not discretionary — Whether Minister's au
thority to issue permits is mandatory or discretionary
Discretion of Minister is confirmed by ss. 5 and 10 of Export
and Import Permits Act — No suggestion of unreasonableness
or bad faith on part of Minister — Application denied —
Export and Import Permits Act, R.S.C. 1970, c. E-17, ss.
5(1)(a.1), 8, 10, 12 — Import Control List, C.R.C. 1978, Vol.
VI, c. 604, as amended, No. 19 — Import Permit Regulations,
SOR/79-5, ss. 3(a)-(k), 4.
APPLICATION.
COUNSEL:
D. K. Laidlaw, Q.C. and A. J. Lenczner for
applicant.
J. Scollin, Q.C. for respondents.
SOLICITORS:
McCarthy & McCarthy, Toronto, for appli
cant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
Dust J.: The applicant moves the Court for a
writ of mandamus ordering the Minister to issue
supplementary import permits allowing the appli
cant to import four million pounds of live chicken
under five pounds.
In his affidavit in support of the motion Robert
J. May, Secretary-Treasurer of the applicant, says
that Maple Lodge Farms Limited has been in
business since 1956 as a poultry-processor and
employs some five hundred and forty employees.
Until February 1979 chicken was not a regulated
item under the Export and Import Permits Act' or
the Regulations thereunder. On January 5, 1979 a
Regulation [SOR/79-70] was passed under the
Act restricting the amount and number of chickens
permitted to be imported into Canada. At that
time a notice to importers was issued advising that
chicken in Canada would be subject to a global
import quota effective October 22, 1979. Under
that quota the applicant's entitlement for the bal
ance of the calendar year was 1,775,997 pounds
eviscerated weight.
For the year 1980 the global import quota was
approximately 48 million pounds and the appli
cant's entitlement thereunder was to be 9,448,306
pounds. Appended to the said notice was the annex
of conditions and procedures governing the issu
ance of supplementary import permits.
Foreseeing the shortfall in its requirements the
applicant applied on several occasions for supple
mentary import permits which applications were
only granted in part. Further requests for supple
mentary import permits made during the months
of December 1979 and January 1980 have been
refused by the Minister.
The affiant states that unless the applicant
receives supplementary import permits forthwith it
will be unable to supply its long standing and
reliable customers and will suffer losses of profit in
the short term, and loss of permanent business in
the long term. It will have to lay off many of its
staff with resultant hardship.
As I pointed out at the opening of the hearing a
writ of mandamus is a matter for the discretion of
the Court and will be granted only where there is a
specific legal right and no other remedy: therefore
the applicant must show that there resides in him a
legal right to the performance of a legal duty by
the Minister. Moreover, the subject matter of the
' R.S.C. 1970, c. E-17.
writ must be clear and the act sought must be a
duty imperative and not discretionary.
Under section 5(1) of the Act 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 he deems it necessary
to control for any of the purposes outlined in the
paragraphs, including paragraph (a.1) which
reads:
5. (1) ...
(a.1) 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.
Section 8 deals with import permits. It reads:
8. The Minister may issue to any resident of Canada apply
ing 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. [My underlining.]
Under section 12, the Governor in Council may
make regulations prescribing the information and
undertakings to be furnished by applicants for
permits. One such regulation is the Import Control
List which includes under number 19 [SOR/79-70
becoming C.R.C. 1978, Vol. VI, c. 604, item
16.1]:
19. Chickens and chicken capons, live or eviscerated, parts
and products manufactured wholly thereof.
The Regulations respecting import permits
[SOR/79-5] provide under section 3 that a resi
dent of Canada may apply for a permit by furnish
ing the information described in paragraphs (a) to
(k). Section 4 prescribes that "A permit shall be in
the form set out in the schedule". The notice to
importers of October 19, 1979 describes the chick
en import quota, the quota allocation and the
issuance of permits.
The annex to the notice describes the conditions
and procedures governing the issuance of supple
mentary import permits. It announces that "if
required to fill specific Canadian market needs,
additional quantities of chicken and chicken prod-
ucts may be allowed to enter Canada supplemen
tary to the basic quota."
The basic argument of learned counsel for the
applicant is that the Minister has no discretion on
the issuance of permits, the matter being entirely
in the hands of the Governor in Council: the only
function of the Minister would be the signing of
the permits.
With all due respect, I cannot accept that argu
ment. While under section 5 of the Act it is for the
Governor in Council to establish an Import Con
trol List, section 8 of the Act makes it discretion
ary and not mandatory for the Minister to issue
import permits "in such quantity and of such
quality, by such persons, from such places ... and
subject to such other terms and conditions as are
described in the permit or in the regulations." The
discretion of the Minister is further confirmed by
section 10 which provides that "The Minister may
amend, suspend, cancel or reinstate any permit
...". [My underlining.]
If the Minister who is entrusted with the
administration of an Act should decide not to issue
permits, which he has the discretion to issue or not
to issue, it is not for the Court to order him to do
otherwise; unless his decision be unreasonable or
tainted with bad faith. In British Oxygen Co. Ltd.
v. Minister of Technology, 2 the House of Lords
held that the Minister has a discretion under the
Industrial Development Act 1966 and is not bound
to pay a grant to every person who is eligible to
receive one. Lord Reid said at page 624:
If the Minister who now administers the Act, acting on behalf
of the Government, should decide not to give grants in respect
of certain kinds of expenditure, I can find nothing to prevent
him. There are two general grounds on which the exercise of an
unqualified discretion can be attacked. It must not be exercised
in bad faith, and it must not be so unreasonably exercised as to
show that there cannot have been any real or genuine exercise
of the discretion. But, apart from that, if the Minister thinks
that policy or good administration requires the operation of
some limiting rule, I find nothing to stop him.
2 [1971] A.C. 610.
There is no suggestion of unreasonableness or
bad faith on the part of the respondent Minister.
He is acting within the scope of his authority and
in furtherance of the purpose of the Act, which is
to restrict the importation of chicken to protect the
Canadian production, thus acting in support of the
Farm Products Marketing Agencies Act, as pro
vided for by paragraph 5(1)(a.1). Surely, it is not
for the Court to interfere with the Minister's
discretionary powers in the performance of his
duties.
However much sympathetic I might be to the
plight of the applicant, I have no alternative but to
deny his application.
ORDER
The application is denied with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.