New Tree Fruits v. Jell, 2023 BCPC 10

Citation: New Tree Fruits v. Jell 2023 BCPC 10 Date: 20230110 File No: 128456 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS DIVISION BETWEEN: NEW TREE FRUIT VARIETIES DEVELOPMENT COUNCIL CLAIMANT AND: DEVIN JELL, JANINE JELL, GARTRELL HERITAGE FARMS and SUN-OKA FRUIT FARMS LTD. DEFENDANTS File No: 128458 Registry: Kelowna BETWEEN: NEW TREE FRUIT VARIETIES DEVELOPMENT COUNCIL CLAIMANT AND: DEVIN JELL, JANINE JELL, GARTRELL HERITAGE FARMS and SUN-OKA FRUIT FARMS LTD. DEFENDANTS CORRIGENDUM TO THE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. TAM Counsel for the Claimant: L.

McKenzie-Brown Appearing for the Defendants: D. Jell Counsel for the Attorney General: C. Bant and A. Bjornson Place of Hearing: Kelowna, B.C. Date of Hearing: May 24, November 2, 2022 Date of Judgment: January 10, 2023

A Corrigendum was released by the Court on January 20, 2023. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] The claimant is a council established under the New Tree Fruit Varieties Development Council Regulation (the “Council”). They are authorized to impose a levy on any new tree fruit that is sold. The defendants are growers of, presumably among other things, Ambrosia apples, which are by definition a “new tree fruit” under the regulation. The defendants did not pay the levy for the crop years of 2016 and 2017.

The defendants did pay the required levy for the crop years 2018 and 2019. In this small claims action, the Council sues to collect on the levy owing for the delinquent crop years. The defendants counterclaim for the levy that they did remit for 2018 and 2019. POSITIONS OF THE PARTIES [ 2 ] The claimant’s position is relatively straightforward. The Farming and Fishing Industries Development Act [RSBC 1996],

chapter 134 , is the authorizing statute that created the Council.

Section 4 of the Act says: Revenue and expenditure 4

(1) Subject to the approval of the Lieutenant Governor in Council, a council must establish a levy or class of levy that at the time and in the manner specified in the regulations must be paid by producers or a class of producers of the commodity for which the fund was established.

(2) The council may pay out of the fund the amounts it considers appropriate to (

a) pay an expense approved by the minister as being necessary for or incidental to the administration of this Act in relation to the fund, or (

b) pay to a person, including a person representing the producers of a commodity, a sum to (

i) benefit and promote the industry in British Columbia in respect of a commodity, or (ii) conduct or support research or educational programs in British Columbia in respect of the development and promotion of a commodity.

(3) The Lieutenant Governor in Council, by regulation, may prohibit a council from making payment for purposes specified in the regulations. [ 3 ] In turn, s. 2 and s. 4 of the New Tree Fruit Varieties Development Council Regulation read as follows: Payment of levy 2

(1) Each new tree fruit grower must pay to the council the levy established by the council under section 4 (1) of the Act.

(2) The levy is payable as follows: (

a) in the case of new tree fruit delivered to a first receiver, on the delivery date; (

b) in the case of new tree fruit produced on the farm of a first receiver and processed by that receiver, on the date the new tree fruit is moved into the processing facility; (

c) in any other case, on the date the new tree fruit is sold. . . . Remittance of levy on new tree fruits grown and processed by first receiver and on direct sales 4 On or before June 30 of each year, each new tree fruit grower must remit to the council the total amount that became payable by the grower under

section 2 (

b) or (

c) during the period June 1 of the previous year to May 31 of the current year. [ 4 ] The Council has imposed a levy of $0.02 per pound of Ambrosia apples sold. The defendants did not pay the required levy for 2016 and 2017 and according to the records the defendants provided, the levies owing are $15,462.40 and $16,159.38 respectively. The Council seeks to recover these amounts. [ 5 ] The defendants do not dispute the fact they did not pay the levies in question, nor is there any dispute with respect to the amount owing under the regulation.

However, the defendants say that the mandatory nature of this levy and the existence of the Council are a violation of their constitutional right to the freedom of association as protected by s. 2(

d) of the Canadian Charter of Rights and Freedoms . Accordingly, the levy is unconstitutional and therefore cannot form the basis of this small claims action. Further, seeing that the defendants did pay the unconstitutional levy for 2018 and 2019, those amounts should be returned to the defendants. Those levies were $17,872.80 and $19,547.18 respectively. [ 6 ] Because the defendants are challenging the constitutional validity of the impugned regulation, the Attorney General of British Columbia has opted to participate in accordance with s. 8 of the Constitutional Question Act . The Attorney General supports the

Council’s position that the impugned regulation and Council are NOT unconstitutional. FREEDOM OF AND FROM ASSOCIATION [7]

Section 2(

d) of the Charter provides that: Fundamental freedoms 2 Everyone has the following fundamental freedoms: . . . (

d) freedom of association. [8] In the case at bar, the defendants do not say that they are barred from associating with others. Rather, their complaint is that theyare forced to be associated with the Council through the payment of the levy. While not immediately clear from the wording of s. 2(d),freedom to not associate has been generally accepted as an element of this particular right. At various places in the jurisprudence, thisnegative right has been termed “freedom from association”. At p. 318 of Lavigne v. Ontario Public Service Employees Union, (SCC), La Forest J. said, speaking for Sopinka and Gonthier JJ., in answering the question as to whether s. 2(

d) entails afreedom from association: In my view, the answer is clearly yes. Forced association will stifle the individual's potential for self-fulfillment and realization as surelyas voluntary association will develop it. Moreover, society cannot expect meaningful contribution from groups or organizations that arenot truly representative of their memberships' convictions and free choice. Instead, it can expect that such groups and organizations will,overall, have a negative effect on the development of the larger community.

One need only think of the history of social stagnation inEastern Europe and of the role played in its development and preservation by officially established "free" trade unions, peace movementsand cultural organizations to appreciate the destructive effect forced association can have upon the body politic. Recognition of thefreedom of the individual to refrain from association is a necessary counterpart of meaningful association in keeping with democraticideals. [9] However, the right protected by s. 2(

d) does not amount to a right to isolation. Living in a society necessarily requiresindividuals to participate, willingly or not, in some aspects of communal existence. At p. 320, La Forest J. continues: It does not necessarily follow, however, that s. 2(

d) of the Charter protects us from any association we may wish to avoid. In a word, I donot think the freedom of association is necessarily a right to isolation. As a matter of metaphysical and sociological reality, "no man is anisland", and the Charter must be taken to recognize this. At the very fundamental level, it could certainly not have been intended that s.2(

d) protect us against the association with others that is a necessary and inevitable part of membership in a democratic community, theexistence of which the Charter clearly assumes. Thus, it could not be said that s. 2(

d) entitles us to object to the association with thegovernment of Canada and its policies which the payment of taxes would seem to entail given the comprehensive nature of its authorityand functions. In Justice Holmes' phrase, the state is "the one club to which we all belong" and its activities will inevitably associate uswith policies and groups with which we may not wish to be associated: see Robert Horn in Groups and the Constitution (1971), at p. 3. Realistically, too, as I will more fully explain later, the organization of our society compels us to be associated with others in manyactivities and interests that justify state regulation of these associations. Thus I doubt that s. 2(

d) can entitle us to be free of all legalobligations that flow from membership in a family. And the same can be said of the workplace. In short, there are certain associationswhich are accepted because they are integral to the very structure of society. Given the complexity and expansive mandate of moderngovernment, it seems clear that some degree of involuntary association beyond the very basic foundation of the nation state will beconstitutionally acceptable, where such association is generated by the workings of society in pursuit of the common interest.

However,as will be seen, state compulsion in these areas may require assessment against the nature of the underlying associational activity thestate has chosen to regulate. [10] In terms of delineating as to when this negative right to not associate may be triggered, La Forest J. referenced ProfessorEtherington’s

article “Freedom of Association and Compulsory Union Dues: Towards a Purposive Conception of a Freedom to notAssociate”, (1987) 19 Ottawa L. Rev. 1, in which four core liberty interests were identified, the threatening of which could triggerCharter scrutiny under s. 2(d). They are as follows, at p. 328 of Lavigne: . . . The first is governmental establishment of, or support for, particular political parties or causes. The second is impairment of theindividual’s freedom to join or associate with causes of his choice. The third is the imposition of ideological conformity.

The fourth ispersonal identification of an objector with political or ideological causes which the service association supports. . . . [11] The above was cited with approval in the case of R. v. Advance Cutting & Coring Ltd., 2001 SCC 70 , by LeBel J. atpara. 196. [12] McLachlin J. gave separate reasons for dismissing the appeal in Lavigne. For her, the test ought to be narrowed to the third pointabove – specifically, whether a particular regime compels an individual to conform with the ideology of a particular group. Only thenwould the impugned association trigger s. 2(

d) scrutiny. At p. 344, McLachlin J. said, speaking only for herself: In my view, freedom from compelled association, whatever its ambit, could not extend to the payments here at issue. Freedom not toassociate, like freedom to associate, must be based on the value of individual self-actualization through relations with others. Thejustification for a right not to associate would appear to be the individual's interest in being free from enforced association with ideas andvalues to which he or she does not voluntarily subscribe.

For the purposes of this case, I shall refer to this as the interest in freedom fromcoerced ideological conformity. It follows from this definition that negative associational activity falling under s. 2(

d) is not to be determined by the type of the coerced

activity impugned (e.g. mandatory payments), but by whether the activity associates the individual with ideas and values to which he orshe does not voluntarily subscribe. This approach is similar to that taken toward the right of expression in Irwin Toy Ltd. v. Quebec(Attorney General), (SCC), [1989] 1 S.C.R. 927, where it was held that the test for whether conduct falls within s.2(

b) of the Charter was not the activity per se (e.g. speech or conduct), but whether the activity was one intended to convey meaning. [Emphasis in original.] [13] Without commenting on which is the proper approach, the Supreme Court of Canada in Bernard v. Canada (Attorney General),2014 SCC 13, simply commented that these two tests emerged from the Lavigne and Advance Cutting cases. At para. 103 of Bernard,Rothstein J. summarized the jurisprudence on this point to date: [103] This Court outlined the criteria for freedom from association under s. 2(

d) of the Charter in Lavigne v. Ontario Public ServiceEmployees Union, (SCC), [1991] 2 S.C.R. 211, and R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R.209. Two distinct tests emerge from these cases. [104] The first test (the “ideological conformity test”), which the majority of this Court applied in Advance Cutting, requires a claimantto demonstrate that there was forced association and compelled ideological conformity. [105] The second test (the “liberty test”) requires forced association and infringement of a liberty interest. Whether or not such a testcan be applied in the context of a s. 2(

d) Charter claim has not been definitely determined. Although a majority of the Court in AdvanceCutting discussed the liberty test in obiter (see the reasons of Bastarache J., at para. 33 and LeBel J., at para. 221), only Justice Iacobucciapplied that test, adopting it in lieu of the ideological conformity test (paras. 284-85). For the reasons outlined below, the existence ofsuch a test need not be addressed here. [14] It remains unsettled as to which test is the applicable one when it comes to an analysis of the freedom from association.

THE COUNCIL AND ITS ACTIVITIES [15] The Council was created in 2000, not long after the Ambrosia apple was first developed. This fruit showed promise as a viablenew variety but there was concern that it would not survive in the market place. In the past, new varieties have failed to achievecommercial success because of a lack of interest from major participants in the industry, such as packing houses. Unless some criticalmass is reached whereby it makes business sense to market a product, a fruit may go un-marketed and be left to rot in a warehouse.

Assuch, a group of Ambrosia growers spearheaded the formation of the Council in order to promote the fruit in an organized way. Theseactivities include running radio advertisements, TV commercials, putting up billboards, and other activities at packing houses andgrocery stores. The Council also engaged in research to find ways to improve the fruit. For example, the Council has done extensivework to improve the appearance of the fruit by giving it a redder colour. The Council has also done research on how to keep the fruitlonger without it spoiling.

The Council shares their knowledge and discoveries with the growers through education activities, forexample, such as the production of a video on best practices in pruning and picking. The levy imposed on growers funded these activitiesof the Council. The regulation that created the Council expired on June 30, 2021. While the Council still exists today, they no longercollect the levy. APPLICATION OF LAVIGNE AND ADVANCE CUTTING [16] As stated above, La Forest J. set out a slightly broader liberty test than McLachlin J. who preferred a narrower “ideologyconformity” test.

But even taking the broader approach, i.e., the one that would be more favourable to the defendants’ argument, I do notsee how s. 2(

d) has been violated by the existence of the Council and the imposition of the levy. There is nothing in the operation of theCouncil that threatens any of the interests identified by La Forest J. in Lavigne. While it is true that La Forest J. left the door open for“other values less central to the freedom, in proper context, [to] merit Charter protection” (see p. 328), the defendants have notpersuaded me that that is the case here. All the regulation requires, it seems to me, is that the defendants pay $0.02 per pound ofAmbrosia apples sold. The defendants are not required to attend any meetings.

There are simply no “causes”, political or otherwise,associated to this whole exercise. While the Council is engaged in marketing activities of Ambrosia apples, the defendants remain free todo their own marketing and to form their own group for that purpose. [17] Moreover, s. 4 of the Act restricts the uses to which the Council may put the funds collected from the levy. Specifically, thefunds are used exclusively for administering the Act, or other activities in furtherance of the development or promotion of Ambrosiaapples. Recall that s. 2(

d) is not a right to isolation and necessarily, the modern world requires individuals to participate in social units.This Council strikes this Court as exactly the type of association that “is generated by the workings of society in pursuit of the commoninterest” as deemed constitutionally permissible in Lavigne. There is nothing political or ideological about the regime. Consequently,neither the Council nor the regulation operates in violation of s. 2(

d) of the Charter. The levy was not unconstitutionally imposed, norwere the funds collected unconstitutionally held. [18] Mr. Jell argued that, citing Bernard, a compelled association must be “necessary and inevitable” if it were to be constitutionallypermissible. He further says that the Council is not “necessary” in the sense that growers continue to produce and sell Ambrosia appleseven after they stopped collecting the levy on July 1, 2021. In the court’s view, that is too narrow and too strict of an

interpretation of thequote from the cases. By “a necessary and inevitable part of membership in a democratic community” (see p. 320 of Lavigne), theSupreme Court of Canada could not have meant something without which society would cease to function. As in the case of income taxor property taxes, there may be other ways for society to carry on without their imposition. Rather, the Supreme Court of Canada wassimply referring to the type of associations that are a reasonably necessary part of living in a democratic society. In other words, thesegroups or units are simply part and parcel of our communal reality.

Furthermore, the evidence before the court supports the conclusionthat growers are able to continue to sell Ambrosia apples precisely because of the marketing and development activities undertaken bythe Council during the time it collected the levy. Having reaped the fruits of their labour, I do not think it open to the defendants to nowsay that the Council was never necessary to begin with. AUTHORITIES RELIED ON BY THE COUNCIL

[19] The Council relied heavily on Archibald v. Canada, (FCA). That case concerned the Canadian Wheat Boardwhich requires all wheat producers in Canada to pool their wheat. Each farmer must sell their wheat to the board at a price determined bythe board. The board then sells the wheat on behalf of all wheat producers. Under the Canadian Wheat Board Act, producers areprohibited from selling their wheat inter-provincially or internationally.

The appellants in Archibald claim that their freedom to/fromassociation has been violated in that they are forced to associate with the Canadian Wheat Board and other wheat producers. Further,they are precluded from selling their wheat individually or in association with other producers of their choosing, outside the province inwhich they are produced. [20] In dismissing the s. 2(

d) argument, the Federal Court of Appeal made a distinction between an activity and the associationalaspects of the activity.

Section 2(

d) does not protect any underlying activity, but rather, it is the associating that is constitutionallyprotected. In other words, one cannot legally do something as a group that one cannot legally do as an individual. If there were to beconstitutional protection to do the underlying activity, it must be found in a place other than s. 2(

d) of the Charter. Since there is noconstitutional protection to sell one’s wheat inter-provincially or internationally, the freedom from association argument must fail. Thecourt put it this way at para. 44, citing Canadian Egg Marketing Agency v. Richardson (“CEMA”), (SCC), [1998] 3S.C.R. 157: [44] At paragraph 113 [page 232] of their reasons in CEMA, Iacobucci and Bastarache JJ. stated: . . . s. 2(

d) does not create a right to do in association what is unlawful for an individual to do . . . .

Thus, whether it is said that theactivity is foundational to the association or that the association is foundational to the activity, it comes to the same thing: what is beingattempted is to bring under constitutional protection activities that are not constitutionally protected when done by individuals, simply byvirtue of the fact that individuals have associated for the purpose of carrying on these activities. [45] As the CEMA decision reaffirms, the corollary of the Charter-based right to freedom to conduct an activity in association is thatthere is a Charter-based right to conduct the activity individually.

Although the argument in CEMA was concerned with the positivefreedom to associate, in my view this corollary is equally applicable in the context of a negative freedom from association; if one seeksfreedom from a compelled association under paragraph 2(d), there must be some interest at stake which is recognized bythe Charter elsewhere than in paragraph 2(d). It is not sufficient to say that in the absence of legally compelled association, an activitywould be lawful if done individually.

For the associational argument to succeed, the individual activity precluded by the legallycompelled association must be one that is protected by the Charter. [21] By comparison, there is even less compelled association in the case at bar. The wheat producers in Archibald have no choice butto sell their wheat to the board at a price determined by the board. They are also prohibited from selling their wheat outside their ownprovince. Here, there is no such restriction. The defendants may sell their apples at a price and location that they determine. In any event,s. 2(

d) does not, per Archibald and CEMA above, protect the selling and marketing of apples. In my view, the defendants stand in nobetter position to make the s. 2(

d) argument than the wheat producers in Archibald, or the egg farmers in CEMA. As such, theseauthorities are persuasive and strongly support the Council and the Attorney General’s position on the constitutional question. [22] Mr. Jell says that Archibald is outdated and has been reconsidered in other Supreme Court of Canada cases. I do not agree withthat submission. The result in Archibald was reached after an application of the tests set out in Lavigne. The argument failed because theregime in question does not touch on the core Charter interests that are constitutionally protected.

To my knowledge, Lavigne (decidedin 1991) remains good law on the issue of “freedom from association”. Indeed, it was referenced with apparent approval in Bernard in2014. If Lavigne had been reversed or substantially modified, that has not been drawn to my attention. AUTHORITIES RELIED ON BY THE ATTORNEY GENERAL [23] The Attorney General adopts the submissions of the Council. In addition, Ms. Bant relies on two further cases that appear to beapplicable to the case at bar. In R. v.

Allen, 2005 NSCA 118, the appellants challenged the constitutionality of a regime whereby holdersof fishing licences must pay annual dues to an accredited organization pursuant to the Fisheries Organizations Support Act, S.N.S. 1996,c. 6. The purpose of the legislation was to strengthen fisheries organizations in Nova Scotia and provide a procedure to enable accreditedfisheries organizations to collect mandatory annual dues from licence holders.

Not unlike the conclusions reached by this Court in thecase at bar, the Nova Scotia Court of Appeal held at para. 37: [37] By contrast the impugned statute in this case was in my view properly described by Mr. Reardon in his testimony as “enablinglegislation”. It mandates the accreditation and orderly function of these fisheries organization [sic]. It does not restrict or purport toregulate the species fished in those regions. It provides a mechanism by which annual dues may be collected by accredited fisheriesorganizations.

It does not in any way compromise a licence holder’s ability to fish, or to obtain and maintain a licence or a quota. Thus,by comparison, the impugned legislation here seems almost benign when contrasted with the provisions and repercussions challenged ineither Lavigne or Advance Cutting, supra. [38] In conclusion on this point, there is simply no evidence from any of the appellants charged in this prosecution or from any othersource, supporting a violation of their freedom of association by their having to pay dues to an accredited organization within theirregion.

The appellants have failed to establish any breach of s. 2(

d) of the Charter. [39] By contrast there was ample evidence to support the trial judge’s findings that the affiliation of those who fish is driven by thereality of their workplace, and that the accreditation of fishing associations provided for by the FOSA serves the common good andfurthers the collective social welfare. Accordingly he did not err in his application of the principles established in Lavigne, or AdvanceCutting, supra, nor in his decision that s. 9 of the FOSA did not violate the appellants’ s. 2(

d) Charter rights. Furthermore - on thisrecord - the trial judge was correct to conclude that the appellants had failed to present evidence that the compelled associationcompromised their liberty interests. [24] Similarly, in Matthias v. British Columbia Medical Association, 2013 BCSC 251, the plaintiff objected to the mandatory feesimposed by the defendant in order for her to gain access to certain benefits as a medical practitioner. The plaintiff in that case was not amember of the association, but was nevertheless obliged to deal with them by virtue of an agreement between the BCMA and the

government. Among other causes of action, the plaintiff alleged that the mandatory payment of these fees amounted to a violation of her s. 2(

d) freedom. The court then quoted extensively from Lavigne and concluded at para. 141 : [141] Bearing in mind all of the principles respecting the general requirement that pleadings disclose a cause of action (see paras. 35-38, herein) and particularly those set out in Abdool (see para. 39, herein), I am of the view that, accepting the salient facts as proved – as such, all the relevant facts appear to be admitted – it is plain and obvious that the plaintiff’s claims cannot succeed.

It is not a question of difficulties with the articulation of the claims, even if, as the BCMA submitted, the articulation could be improved. It is simply that the collection of fees from non-members by a lawfully authorized representative of a collective to which the plaintiff is “compelled by circumstances to associate” up to the level of fees charged to members, is lawful. (Emphasis added.) [ 25 ] The court went on to dismiss the plaintiff’s application for class action certification and struck the claim in its entirety. AUTHORITIES RELIED ON BY MR. JELL [ 26 ] On behalf of the defendants, Mr.

Jell relied primarily on Mounted Police Association of Ontario v. Canada (Attorney General) , 2015 SCC 1 . In that case, the Supreme Court of Canada held that mandatory membership in a staff relations program violated s. 2(

d) of the Charter . Consequently, a closer examination of that case is warranted. [ 27 ] The Mounted Police Association case concerned the collective bargaining process between members of the Royal Canadian Mounted Police and the government. RCMP members are not permitted to unionize or engage in collective bargaining by virtue of the Public Service Labour Relations Act . Instead, their labour relations issues are dealt with (primarily) through the Staff Relations Representative Program (“SRRP”).

This is a program that was created by regulation and it was the only vehicle through which most labour relation issues could be resolved. [ 28 ] While the Supreme Court of Canada did find the mandatory nature of the SRRP in violation of s. 2 (d), it is important to note that it did so in the context of the entire labour relations regime. As I read the case, the fact that RCMP members are not permitted to unionize and collectively bargain formed a significant basis for why the Supreme Court ruled this way.

Add to this the mandatory participation in the SRRP, the employee is deprived of a meaningful process to collectively negotiate that affords measures of protection that would be present in other spheres. [ 29 ] At paras. 84 - 91 of Mounted Police Association , the Supreme Court of Canada specifically talked about the employees’ choice of their collective goals and an association that represents their interests in a way that operates independently from the influences of management. As things were, the employees’ right to have this input and to be represented was tremendously hampered.

It was this substantial interference that resulted in a Charter violation. At para. 80 of Mounted Police Association , the court summarized the interests that were at stake: [80] To recap, s. 2 (

d) protects against substantial interference with the right to a meaningful process of collective bargaining. Historically, workers have associated in order “to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict”, namely, their employers: Alberta Reference , at p. 366. The guarantee entrenched in s. 2(

d) of the Charter cannot be indifferent to power imbalances in the labour relations context. To sanction such indifference would be to ignore “the historical origins of the concepts enshrined” in s. 2 ( d ): Big M Drug Mart , at p. 344.

It follows that the right to a meaningful process of collective bargaining will not be satisfied by a legislative scheme that strips employees of adequate protections in their interactions with management so as to substantially interfere with their ability to meaningfully engage in collective negotiations. [ 30 ] Furthermore, the Supreme Court held that the SRRP was unconstitutional because its very purpose was to prevent RCMP members from unionizing and collectively bargaining in an independent way.

At para. 110, the court noted: [110] Even before this Court, the Attorney General of Canada does not contend that the current-day SRRP provides RCMP members with an independent association. Indeed, the Attorney General appears to concede that the SRRP continues to be imposed on members of the RCMP for the purpose of preventing collective bargaining through an independent association . Its position is rather that s. 2 (

d) does not guarantee RCMP members a right to form and bargain through an association of their own choosing. We have rejected this view. Accordingly, it follows that the purpose of the imposition of the SRRP, to prevent the formation of independent RCMP members’ associations for the purposes of collective bargaining, is unconstitutional. [Emphasis added.] [ 31 ] To make things worse, the effect was exactly what was intended – a deprivation of this meaningful and independent bargaining process.

Consequently, the regime resulted in the aforementioned “substantial interference” and is thereby a violation of s. 2 (d). See Mounted Police Association at paras. 111 to 121. [ 32 ] The Mounted Police Association case must therefore be read with that background in mind. If RCMP members had not been prohibited from collective bargaining by the Public Service Labour Relations Act , the result would necessarily have been different. Viewed in that light, it is clear to see how that case is distinguishable.

At its core, Mounted Police Association is at least as much about the positive right to associate, than the negative right not to. [ 33 ] In the case at bar, there is no equivalent prohibition. The defendants are free to associate with other growers as they please. They can engage in whatever marketing activities they wish. There is no legislative impediment, under the impugned regulation or otherwise, to the defendants’ self-fulfilment. And unlike the SRRP, the regulation in question does nothing other than collect a levy to the tune of 2 cents per pound of Ambrosia applies sold.

The proceeds of this levy are used solely to administer the Act and to develop or promote the fruit. In no way is that a “substantial interference” with the defendants’ business activities. [ 34 ] Contrary to the defendants’ position, Mounted Police Association (decided in 2015) did not reverse the previous jurisprudence.

Indeed, it cited Lavigne with apparent approval in its treatment of the “freedom from association” issue, at para. 42, for example. It was a fundamental difference in the legislative framework, and the core interests that were at stake, that led to an apparently different result. [ 35 ] Mr. Jell made further submissions with respect to s. 1 of the Charter which deals with the reasonable limits on rights and freedoms as can be demonstrably justified in a free and democratic society. However, since this Court finds no violation of s. 2 (d), it is not necessary to deal with that argument.

SUMMARY AND CONCLUSION [ 36 ]

Section 2(

d) of the Charter grants us the freedom to associate. This freedom can, in some cases, include the right not to associate. This does not mean, however, that we have a right to live in isolation. Being in a society necessarily implies being organized into groups. Groups that are legislatively formed for the purpose of advancing a common goal are constitutionally permissible, even where membership in them is not voluntary, as long as the regime does not threaten any core liberty interests, such as freedom from ideological conformity.

The Council in the case at bar collects $0.02 for every pound of Ambrosia apples sold. They promote these apples through marketing activities. They do research and educate growers on their findings. They do no more than that. There is no ideology associated with the Council and the defendants are not required to subscribe to any. The defendants remain free to conduct their own marketing and form their own groups. None of their liberty interests are at stake, including the right to be free from ideological compulsion.

As with all cases where there is an alleged Charter violation, the onus is on the party claiming that violation. The defendants here have failed in that onus and their defence to the claim therefore fails. Indeed, if the defendants were correct in their analysis, then it would follow that anyone could object to the payment of any tax on the basis that they do not wish to be associated with the government entity that is imposing it.

That is not how it works living in a democratic society and living in a democratic society is something the Charter clearly presupposes. [ 37 ] As stated above, the constitutionality of the Council and the regulation is the only issue at this hearing. Since the court is not persuaded by the defendants’ argument, the claimants ought to succeed. Accordingly, judgment will be granted in their favour. For 2016, the amount of the unpaid levy is $15,462.40. For 2017, it is $16,159.38. The total comes to $31,621.78.

For the same reason, the defendants’ counterclaim for the return of the levy paid for 2018 and 2019 is hereby dismissed. _________________________ The Honourable Judge A. Tam Provincial Court of British Columbia CORRIGENDUM - Released January 20, 2023 In the Reasons for Judgment dated January 10, 2023, the following changes have been made: [1] On the title page it is noted that the Counsel for the Attorney General has been amended to include A. Bjornson. [2] My Reasons for Judgment are amended accordingly. ______________________ The Honourable A. Tam Provincial Court Judge