2014 NBCA 42, 2014 NBCA 42

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 127-13-CA J.D. IRVING, LIMITED APPELLANT J.D.

IRVING, LIMITED APPELANTE - and - - et - NORTH SHORE FOREST PRODUCTS MARKETING BOARD, MADAWASKA FOREST PRODUCTS MARKETING BOARD, NORTHUMBERLAND COUNTY FOREST PRODUCTS MARKETING BOARD, CARLETON- VICTORIA FOREST PRODUCTS MARKETING BOARD, YORK-SUNBURY-CHARLOTTE FOREST PRODUCTS MARKETING BOARD, SOUTH EAST NEW BRUNSWICK FOREST PRODUCTS MARKETING BOARD and SOUTHERN NEW BRUNSWICK FOREST PRODUCTS MARKETING BOARD RESPONDENTS OFFICE DE COMMERCIALISATION DES PRODUITS FORESTIERS DU NORD, OFFICE DE COMMERCIALISATION DES PRODUITS FORESTIERS DU MADAWASKA, OFFICE DE COMMERCIALISATION DES PRODUITS FORESTIERS DU COMTÉ DE NORTHUMBERLAND, OFFICE DE COMMERCIALISATION DES PRODUITS FORESTIERS DE CARLETON-VICTORIA, OFFICE DE COMMERCIALISATION DES PRODUITS FORESTIERS DE YORK-SUNBURY- CHARLOTTE, OFFICE DE COMMERCIALISATION DES PRODUITS FORESTIERS DU SUD-EST DU NOUVEAU- BRUNSWICK et OFFICE DE COMMERCIALISATION DES PRODUITS FORESTIERS DU SUD DU NOUVEAU- BRUNSWICK , INTIMÉS J.D.

Irving, Limited v. North Shore Forest Products Marketing Board et al., 2014 NBCA 42 J.D. Irving, Limited c.

Office de commercialisation des produits forestiers du Nord et autres, 2014 NBCA 42 CORAM: The Honourable Justice Deschênes The Honourable Justice Robertson The Honourable Justice Richard CORAM : l’honorable juge Deschênes l’honorable juge Robertson l’honorable juge Richard Appeal from a decision of the New Brunswick Forest Products Commission: October 28, 2013 Appel d’une décision de la Commission des produits forestiers du Nouveau-Brunswick : le 28 octobre 2013 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite

Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: February 12, 2014 Appel entendu : le 12 février 2014 Judgment rendered: June 26, 2014 Jugement rendu : Le 26 juin 2014 Reasons for judgment by: The Honourable Justice Robertson Motifs de jugement : l’honorable juge Robertson Concurred in by: The Honourable Justice Deschênes The Honourable Justice Richard Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Richard Counsel at hearing: For the appellant: Charles D.

Whelly, Q.C. and Rebecca Marie Atkinson For the respondent: David Duncan Young Avocats à l’audience : Pour l’appelante : Charles D. Whelly, c.r., et Rebecca Marie Atkinson Pour les intimés : David Duncan Young THE COURT The appeal is allowed for the limited purpose of eliminating an inconsistency lodged within paragraph 34 of the Commission’s reasons for decision. In all other respects, the Commission’s decision is affirmed without costs. The judgment of the Court was delivered by ROBERTSON, J.A. [ 1 ] In May 2012, the appellant, J.D. Irving Limited (“JDI”), entered into a written “stumpage

agreement”, with a private woodlot owner, with respect to the right to cut and remove timber standing on the owner’s lands. Those landsare located within the administrative boundaries of the respondent Southern New Brunswick Forest Products Marketing Board (SNB).Subsequently, the SNB requested the agreement be submitted for its approval. This was the first time any of the seven respondentMarketing Boards, functioning within the Province, had required JDI to seek such approval. On May 14, 2012, the SNB refused toapprove the agreement.

That decision was appealed to the New Brunswick Forest Products Commission (the “Commission”). In a singleparagraph decision, issued on June 26, 2012, the Commission dismissed the appeal. This led JDI to formally question whether theBoards possess the jurisdiction to regulate such agreements under the Natural Products Act, S.N.B. 1999, c. N-1.2 (the Act) and thecorresponding Regulations.

The Boards responded with a letter dated August 29, 2012, and a clarification letter dated September 4, 2012.Finally, on December 21, 2012, the Boards issued a joint decision, under the letterhead of the Boards’ umbrella organization, the NewBrunswick Federation of Woodlot Owners. Therein, the Boards declared they possessed the requisite jurisdiction.

In response, JDIexercised its right to appeal the rulings to the Commission, pursuant to s. 65 of the Act. [2] Aside from the interpretative issue tied to the Marketing Boards’ jurisdiction to regulatestumpage agreements, JDI advanced two allegations of bias: one against the Boards and the other against the Commission. The biasallegation directed at the former falls within the category of “institutional” or “structural” bias. JDI maintained that the legislation allowsfor the appointment of Board members, who are its competitors and who will now have access to JDI’s “proprietary information”.

Thesecond allegation of bias was directed at the Chair of the Commission, who presided at the appeal hearing. [3] In a decision dated October 28, 2013, the Commission dismissed JDI’s appeal on all threegrounds. With respect to the allegations of bias, the Commission effectively held there was insufficient evidence to substantiate theallegation of bias on the part of Marketing Board members. As to the allegation of Commission bias, the Commission (the Chair) held itwas merely complying with its statutory mandate.

With respect to the merits of the appeal, the Commission agreed with the Boards’interpretation, save in one fundamental and overriding respect. The Commission held that, while the applicable Regulations vested eachof the Boards with the authority to regulate stumpage agreements, they could only do so after adopting a “marketing order” that set outthe criteria upon which the Boards would grant approval, thereby avoiding the obvious plea of “arbitrariness”. The Commission citedBrant Dairy Co. v. Milk Commission of Ontario, (SCC), [1973] S.C.R. 131, [1972] S.C.J.

No. 82 (QL), and relied on thefollowing passages from that decision: A statutory body which is empowered to do something by regulation does not act within its authority by simply repeating the power in aregulation in the words it was conferred. … The Board is required to legislate by regulation. Instead it has purported to give itself random power to administer as it sees fit withoutany reference point in standards fixed by regulation. [para. 27] [4] The Commission noted that the marketing orders presently in force merely repeated thepowers outlined in the legislation.

In brief, as none of the Marketing Boards had adopted a marketing order prescribing the necessarycriteria to be applied when deciding whether to grant approval, all of the Boards presently lacked the authority to regulate stumpageagreements. Regrettably, there is a solitary sentence located within the Commission’s conclusionary paragraphs that undermines orconflicts with that understanding. However, the ambiguity is easily resolved and is addressed below. [5] The appeal to this Court is brought pursuant to s. 71(1) of the Act.

JDI appeals theCommission’s interpretative ruling with respect to the power to regulate stumpage agreements. JDI also persists with the issue of tribunalbias in regard to membership on the Boards. However, the allegation of Commission bias was abandoned at the hearing of the presentappeal. With respect to the allegation of Board bias, I conclude this Court owes no deference to the Commission’s ruling. But, like theCommission, I find the allegation of bias lacks a sufficient factual record and, in any event, is flawed in another material respect.

As tothe interpretative ruling, I conclude the Commission’s decision is generally owed deference and that it meets the threshold test of“reasonableness”. [6] Regrettably, the parties have been unable to reach a consensus as to the proper review standardwith respect to the issues at hand. Of course, any consensus must be consistent with this Court’s understanding of the principlesunderscoring the deference doctrine. Hence, I turn first to that issue, and in some detail, having regard to the contention this caseinvolves a “true question of jurisdiction” for which the applicable review standard is “correctness”.

Additionally, it is argued theCommission’s findings with respect to bias are subject to the deferential standard of “reasonableness”. In my respectful view, theconverse is true. Tribunal decisions involving a defect in the decision-making process, and that fall within the grasp of the “duty offairness”, are generally reviewed on the standard of correctness. As allegations of tribunal bias fall within the duty of fairness, the reviewstandard has to be correctness.

With respect to the understanding that the interpretative issue decided by the Commission qualifies as atrue jurisdictional question, the law has reached the point where very few cases will fall within that “narrow” category. This case is notone of them. Why this is so requires more than a passing reference to the jurisprudence of the Supreme Court. [7] This appeal is brought pursuant to s. 71(1) of the Natural Products Act, which provides for a

right of appeal to this Court, from the decisions of the Commission, on questions of “law and jurisdiction”. It is settled law that, if theinterpretative issue at hand qualifies as a true jurisdictional question, correctness is the proper review standard. For reasons to beexplained, the question of whether the Marketing Boards possess the jurisdiction to regulate stumpage agreements does not qualify.While the interpretative issue placed before this Court raises a question of law, that reality is not determinative of the standard of reviewissue.

The deference doctrine has long held that a right of appeal, anchored within the tribunal’s “home” statute, is neither determinative,nor presumptive, evidence of a legislative intention to apply the correctness standard. And the same holds true in regard to those homestatutes that contain a “privative clause” (e.g., the tribunal’s decisions are final and not reviewable in any court). [8] The first Supreme Court decision to allude to the possibility that deference might still be owedto a tribunal decision, in the face of a right of appeal, was Bell Canada v.

Canada (Canadian Radio-Television and TelecommunicationsCommission), (SCC), [1989] 1 S.C.R. 1722, [1989] S.C.J. No. 68 (QL), at 1746. Therein, the Court observed that aspecialized tribunal, acting within its area of expertise and jurisdiction was entitled to curial deference even in the absence of a privativeclause and the presence of a statutory right of appeal. Subsequent decisions of the Court would confirm that understanding of the law:United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., (SCC), [1993] 2S.C.R. 316, [1993] S.C.J. No. 56 (QL), at para. 31; Pezim v.

British Columbia (Superintendent of Brokers), (SCC),[1994] 2 S.C.R. 557, [1994] S.C.J. No. 58 (QL), at para. 67; and British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., (SCC), [1995] 2 S.C.R. 739, [1995] S.C.J. No. 54 (QL), at para. 30. [9] Invariably, however, it is Dr. Q v. College of Physicians and Surgeons of British Columbia,2003 SCC 19, [2003] 1 S.C.R. 226, that is cited for the proposition that neither a privative clause, nor a right of appeal, is presumptive ordeterminative evidence with respect to the standard of review issue.

And that is why attention invariably focuses on two factors:“tribunal expertise” and the “nature of the issue”. While the deference doctrine has undergone numerous refinements since Dr. Q wasdecided, it is only necessary, on the facts of this case, to focus on two relatively recent Supreme Court cases: Dunsmuir v. NewBrunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (“Dunsmuir”) and Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’Association, 2011 SCC 61, [2011] 3 S.C.R. 654 (“Alberta Teachers’ Association”). [10] In Dunsmuir, the Court set out a two-step framework to be applied when identifying the properstandard of review (“standard of review analysis”). The first step is intended to avoid the need to move to the second step. The first steplooks to see whether the standard of review issue has been addressed in the earlier jurisprudence dealing with the same legislation. If not,the Court in Dunsmuir outlined a number of general rules or presumptions that would facilitate the task of identifying the standard ofreview.

All are predicated on the nature of the question or issue decided by the tribunal. [11] As there are no precedents from this Court pertaining to the review of decisions of theCommission, it is necessary to return to Dunsmuir and the general rules and presumptions outlined therein and to be applied whenisolating the proper review standard. According to Dunsmuir, tribunal decisions involving the exercise of discretion or policy warrantdeference, as do rulings on questions of fact and questions of mixed law and fact.

As for tribunal decisions involving questions of law, adistinction must be drawn between those tied to the

interpretation of the tribunal’s home statute and those tied to the general principles ofthe civil or common law. With respect to the former, Dunsmuir held deference will “usually result” from a tribunal’s

interpretation of itshome statute and those statutes “closely connected” to its mandate and with which the tribunal has a “particular familiarity”. With respectto the latter category, Dunsmuir held correctness is the proper review standard with respect to questions of “general law” that are ofcentral importance to the legal system and outside the tribunal’s area of specialized expertise.

When referring to questions of general law,the Court was referring to the rules and principles surrounding the civil and common law: Dunsmuir, at para. 60, referring to the resjudicata doctrine. [12] While the correctness standard applies to tribunal decisions involving the application of civiland common law principles, Dunsmuir recognized an exception in cases where the tribunal has developed an expertise with respect to theapplication of the principle within the context of the tribunal’s statutory mandate: Dunsmuir, at para. 54, applied in Nor-Man RegionalHealth Authority Inc. v.

Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616. This understanding ofthe law is subject to a relatively recent qualification. In a post-Dunsmuir decision, the Court held the correctness standard applies to allquestions of law that are of central importance to the legal system and outside the relative expertise of the tribunal, not just thosequestions involving civil or common law principles: Canada (Canadian Human Rights Commission) v.

Canada (Attorney General), 2011SCC 53, [2011] 3 S.C.R. 471. [13] To date, the Supreme Court has yet to outline a framework or the criteria to be applied indetermining whether a question of law is of central importance to the legal system. In the interim, attention focuses on whether the issueat hand falls outside the relative expertise of the tribunal. At this juncture, one can safely assume that any presumption of tribunalexpertise will be displaced automatically in those instances where the law has already determined that correctness is the proper reviewstandard.

There are only three additional categories. [14] The correctness standard applies to tribunal decisions that involve a “true jurisdictional

question”: Dunsmuir, at para. 59. More will be said of the category shortly. As expected, the correctness standard applies toconstitutional issues. This is true with respect to “division of powers” issues and to cases where the tribunal is applying the CanadianCharter of Rights and Freedoms to determine the constitutional validity of a provision of the tribunal’s home statute. However, thereview of administrative decisions that impact on a Charter right or freedom are now reviewed on the deferential standard ofreasonableness: Doré v.

Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, overruling cases such as Slaight Communications Inc. v.Davidson, (SCC), [1989] 1 S.C.R. 1038, [1989] S.C.J. No. 45 (QL) and Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256. [15] To the list of cases requiring the application of the correctness standard must be added thosealleging breach of the fairness duty (e.g., bias).

Although Dunsmuir did not specifically refer to this category, earlier Court decisionsconfirm the general understanding that correctness is the proper review standard: In Re The Ontario Labour Relations Board, TorontoNewspaper Guild, Local 87, American Newspaper Guild (C.I.O.) v. Globe Printing Company, (SCC), [1953] 2 S.C.R.18, [1953] S.C.J. No. 28 (QL) and Saltfleet (Township) Board of Health v. Knapman, (SCC), [1956] S.C.R. 877, [1956]S.C.J. No. 63 (QL). The exceptional cases are those where it is alleged the tribunal breached the duty of “procedural fairness”.

If thelegislature or Parliament has delegated to the tribunal the right to establish policy or guidelines with respect to adjudicative matters, thedeference obligation is restored. This understanding of the law emanates from Baker v. Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL) at para. 27 (“Baker”), was further explained inCouncil of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 , [2007] 1 S.C.R. 650, [2007] S.C.J.

No. 15 (QL)at para. 231 and is consistent with what was decided in Dunsmuir, at para. 53. [16] Save for two cases under consideration at the time Dunsmuir was decided, and Dunsmuir itself,the Supreme Court has yet to move to the second step of the standard of review analysis: Canada (Citizenship and Immigration) v.Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 and Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678. That step requires thereviewing court to weigh four factors, first identified 20 years earlier in U.E.S., Local 298 v. Bibeault, (SCC), [1988] 2S.C.R. 1048, [1988] S.C.J.

No. 101 (QL): (1) the presence or absence of a privative clause in the tribunal’s home statute; (2) the purposeof the statute; (3) the expertise of the tribunal; and (4) the nature of the issue (the Bibeault factors). In theory, the stated objective is toisolate the intent of the legislature or Parliament. [17] Of particular significance to this case is Dunsmuir’s acceptance of the proposition that truejurisdictional questions remain subject to the review standard of correctness. This takes us to the Supreme Court’s decision in AlbertaTeachers’ Association. Therein, it had been argued that the

interpretation of a statutory provision imposing a limitation period qualifiedas a “true jurisdictional question”, and, therefore, correctness was the proper review standard. The Court was unanimous in refusing toclassify the limitation issue as a jurisdictional question. At the same time, the majority asked whether there was any need to retain thiscategory because of the difficulty historically encountered in providing a workable definition.

While the question was left for anotherday, the majority held the category was “narrow” and further: “As long as the true question of jurisdiction category remains, the partyseeking to invoke it must be required to demonstrate why the court should not review a tribunal’s

interpretation of its home statute on thedeferential standard of reasonableness” (para. 39). In short, there is now a rebuttable presumption that the tribunal’s

interpretations of itshome statute, and those closely related to its work, are owed deference. [18] While the law is emphatic that the category of “true jurisdictional question” is “narrow”, it isequally clear some cases fit nicely within the category and, therefore, correctness is the proper review standard. These are the “who getsto decide” cases referred to in Dunsmuir (para. 61) and Alberta Teachers’ Association (para. 30).

These are the cases in which thetribunal must decide whether it possesses the jurisdiction to decide an issue or whether the jurisdiction rests in a superior court, anothertribunal, or whether there is a concurrency of jurisdiction. A few examples should assist in understanding the kinds of cases fallingwithin the category of “true jurisdictional question”. [19] The Supreme Court has had to decide whether a tribunal possesses the jurisdiction to rule on theconstitutional validity of a provision of its home statute. A negative response means the issue must be referred to the superior court.

Infact, the Supreme Court has provided a qualified response. A tribunal may address the constitutional issue provided it has either theexpress or implied right to decide questions of law: Westcoast Energy Inc. v. Canada (National Energy Board), (SCC),[1998] 1 S.C.R. 322, [1998] S.C.J. No. 27 (QL); Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R.504; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; and R. v. Conway, 2010SCC 22, [2010] 1 S.C.R. 765.

However, the tribunal’s constitutional ruling is to be reviewed on the correctness standard. [20] The category of true jurisdictional question also comes into play in those cases where theSupreme Court has been asked to rule on which of two adjudicative bodies possesses the jurisdiction to decide an issue. For example, thequestion must be asked whether a unionized employee is entitled to sue his employer in tort rather than seeking relief under the collectiveagreement in order to settle their differences: Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, [1995] S.C.J. No.59 (QL) and New Brunswick v.

O’Leary, (SCC), [1995] 2 S.C.R. 967, [1995] S.C.J. No. 60 (QL). In recent times, itwas asked whether the issue of employment discrimination should be decided by a human rights tribunal or an arbitrator applying theprovisions of a collective agreement. Alternatively, the jurisdiction may be concurrent. It is understandable that one would wish to labelthat type of question a “true jurisdictional question” for which correctness is the proper review standard. See, generally, Dunsmuir, at

para. 61; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; Quebec(Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185;Tranchemontagne; Syndicat des professeurs du Cégep de Ste-Foy v. Quebec (Attorney General), 2010 SCC 29, [2010] 2 S.C.R. 123;Alberta Teachers’ Association; and British Columbia (Workers’ Compensation Board) v.

Figliola, 2011 SCC 52, [2011] 3 S.C.R 422. [21] For the practioner and reviewing judge, it is worth noting that, of the five jurisdictional casesdecided after the release of Dunsmuir, the Supreme Court rejected the plea of “true jurisdictional question” in all but one. In all five, theCourt was dealing with a tribunal decision involving the

interpretation of the tribunal’s home statute. As to the exceptional case, it wassubsequently distinguished: Nolan; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Canada (Canadian Human RightsCommission); and Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309,subsequently distinguished in Alberta Teachers’ Association, at para. 33. [22] Returning to the facts of the present case, it is clear the Commission’s

interpretation of theNatural Products Act is owed deference. The law has reached the point where there is a presumption of deference to tribunal decisionsinvolving the

interpretation of its home statute. Correlatively, there is nothing to rebut the presumption of deference and tribunalexpertise. The Commission is a specialized tribunal dealing with a regulatory scheme that is foreign to most reviewing judges (As to themeaning of a specialized tribunal see Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3S.C.R. 152).

It is not composed, for example, of ad hoc lay tribunal members who lack the necessary skills to interpret legislation inaccordance with established principles as is true of the Appeals Tribunal established under the Workplace Health, Safety andCompensation Commission Act, S.N.B. 1994, c. W-14: Keddy v. Workplace Health, Safety and Compensation Commission, Region 3Hospital Corporation and Anne Brown, 2002 NBCA 24, 247 N.B.R. (2d) 284.

Parenthetically, this is not to suggest that the equivalenttribunals in other jurisdictions also lack the necessary expertise when it comes to deciding questions of law: see Pasiechnyk v.Saskatchewan (Workers’ Compensation Board), (SCC), [1997] 2 S.C.R. 890, [1997] S.C.J. No. 74 (QL) and Martin v.Alberta (Workers’ Compensation Board), 2014 SCC 25, [2014] S.C.J. No. 25 (QL). [23] As well, the interpretative issue at hand does not fall within the established categories for whichcorrectness is the proper review standard.

Obviously, the issue does not raise a constitutional question or a true jurisdictional question ofthe kind just discussed. Nor does the interpretative issue qualify as a question of law that is of central importance to the legal system andoutside the Commission’s field of expertise. That said, however, there is a tangential issue that must be dealt with on this appeal whichbrings into consideration the application of common law and equitable principles. JDI maintains the stumpage agreement renders JDI anowner of the land described in the agreement, and, therefore, the Act has no application.

To the extent the validity of that argumenthinges on how the common law treats stumpage agreements, this Court owes no deference to the Commission’s assessment andapplication of common law and equitable principles. Moreover, although the jurisprudence makes room for the exceptional case, this isnot one of them. [24] This leaves for consideration the matter of deference in regard to the allegations of bias. Saveperhaps for factual findings which are essential to determinations regarding tribunal bias, the Commission’s decision regarding the biasof the Marketing Boards is owed no deference.

The same holds true with respect to its self-assessment of whether the facts support areasonable apprehension of bias on the part of the Commission, or one of its members. The long-established legal test makes no room forthe decision-maker’s subjective appreciation of whether he or she is biased: “what would an informed person, viewing the matterrealistically and practically – and having thought the matter through – conclude”: Committee for Justice and Liberty et al. v. NationalEnergy Board et al., (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118 (QL), at 394. [25] In

summary, the standard of review applicable to the interpretative issue at hand is“reasonableness”. The question as to whether the Marketing Boards possess the jurisdiction to regulate stumpage agreements, mostcertainly, does not qualify as a “true jurisdictional question” for which “correctness” is the proper review standard.

Nor does theinterpretative issue fall within the other recognized categories for which correctness is generally the proper standard: constitutionalissues; questions of law of central importance to the legal system and outside the tribunal’s field of relative expertise; and defects in thedecision-making process, falling under the umbrella of the fairness duty.

Of course, allegations of “bias” demand the application of thecorrectness standard. [26] Having determined the applicable review standard with respect to the issues arising on thisappeal, I turn first to the allegation of bias directed at the Marketing Boards. I agree with the Commission that JDI failed to provide asufficient factual foundation for its allegation that some Board members are in fact competitors of JDI. However, there is also a morefundamental reason for rejecting the bias argument.

I shall deal with both rationales in the order stated. [27] JDI made no attempt to deal with the question of whether the Act expressly or implicitly allowsfor the appointment of Marketing Board members who are or could be competitors of JDI. In short, JDI failed to raise the issue ofstructural or institutional bias, as referred to in Rothesay Residents Association Inc. v. Rothesay Heritage Preservation & Review Boardet al., 2006 NBCA 61, 299 N.B.R. (2d) 369, and discussed in David Phillip Jones and Anne S. de Villars, Principles of Administrative

Law, 5th ed., (Toronto: Carswell, 2009),

Chapter 10, commencing at 396 (Professor Philip Bryden). It is also worth noting that althoughJDI did not raise the issue of bias with the Boards, that omission would not have been fatal to the plea of bias before the Commission.This is because s. 67(6) of the Act expressly allows the appellant “to make representations and adduce evidence” before the Commission.In other words, the Act allows for de novo appeals to the Commission from the decisions of the Boards. [28] However, JDI chose not to adduce sufficient evidence to support its allegation of bias.

The onlyevidence of bias lies in the affidavit evidence that the manager of the SNB is also the manager of the Southern New Brunswick WoodCooperative. JDI goes on to insist the Cooperative enters into agreements with private woodlot owners to provide cutting and removalservices similar to the services provided by JDI under stumpage agreements. Like the Commission, I conclude the factual record outlinedin the affidavit evidence is insufficient to support a finding of institutional or structural bias.

Having made that determination, I registermy concern with the fact that Board members are elected from among those who are private owners of woodlots of 10 hectares or morewithin the “regulated area”: Southern New Brunswick Forest Products Marketing Board Regulation – Natural Products Act, NB. Reg.2005-146, ss. 2, 4 and 5.

However, whether the onus falls on the Minster responsible for the administration of the legislation, or theCommission, to fully and properly address the merits of the allegation of institutional or structural bias is not a matter on which thisCourt should speculate. [29] Ignoring the failure to provide a factual foundation for the allegation of structural or institutionalbias, I agree with counsel for the respondent Marketing Boards that JDI’s bias argument suffers from a more fundamental flaw. Theissue before the Boards did not involve an adjudicative function requiring the exercise of discretion.

Nor were the Boards being called onto assess evidence so as to make findings of credibility or other findings of fact, or mixed law and fact, or of drawing inferences from thefacts so found. This was a case in which the Boards were asked collectively to rule on whether they possessed the jurisdiction to regulatestumpage agreements. The answer to the question posed required an

interpretation of the relevant legislation. In effect, JDI must arguethe Boards’ interpretative decision was the product of a biased decision-maker. In my view, such an argument lacks an air of reality and,above all, became moot once the Boards’

interpretation was placed before the Commission. [30] Applying the review standard of reasonableness to the Commission’s interpretative decision, Ican find no basis to intervene with respect to its ultimate conclusion. In reaching this determination, I have not lost sight of JDI’sargument that the Commission’s decision fails the threshold standard of review because of an “insufficiency of reasons”. In response, Iwould draw attention to the Supreme Court’s decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador(Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.

Therein, the Court rejected the understanding that Dunsmuir stood for thefollowing propositions: (1) the deferential standard must be applied independently to both the tribunal’s reasons and the result; and (2)“insufficiency of reasons” is a stand-alone basis for setting aside a tribunal decision. Instead, “the reasons must be read together with theoutcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (para.14). Indeed, it was LaForest J. in CAIMAW Local 14 v. Paccar of Canada Ltd., (SCC), [1989] 2 S.C.R. 983, [1989] S.C.J.

No. 107 (QL), who,20 years earlier, observed: “The emphasis should be not so much on what result the tribunal has arrived at, but on how the tribunalarrived at the result” (pp. 1003 to 1004). [31] Another Supreme Court precedent which warrants mention is Construction Labour Relations v.Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405. Therein, the Court held that tribunals did not have to explicitly address all possibleshades of meaning of a statutory provision.

Moreover, the Court strongly emphasized that administrative tribunals do not have to considerand comment upon every issue raised by the parties in their reasons. That said, it is reasonable to impose the expectation that a tribunalwill deal with those issues properly raised and intelligently pursued at the hearing. On the other hand, there are instances where the sheervolume of issues being raised is but a reflection of those who are never slowed by thought.

This is the point where the plea ofinsufficient reasons for decision rings hollow. [32] It is worth noting that, as far as I am aware, the “sufficiency of reasons” argument has yet to beaccepted as a decisive factor in any administrative law case that has reached the Supreme Court. Assuming the tribunal or administrativedecision-maker is obligated to provide reasons for decision, the law is generous when it comes to deciding what is required to meet thatcommon law obligation.

One need only go back to the Court’s seminal decision in Baker in support of that understanding. [33] Returning to the interpretative issue decided by the Commission, JDI advances three argumentsin support of its appeal. The first has some merit. JDI argues the Commission’s decision is afflicted by an internal inconsistency. On theone hand, the Commission holds that the Marketing Boards presently lack the authority to regulate stumpage agreements because of theirfailure to adopt marketing orders which set out the criteria to be applied when deciding to grant or withhold approval.

On the other hand,the Commission makes the following determinations at paragraph 34 of its reasons: a. The Boards’ decision as reflected in the letter dated August 29, 2012, and clarified by letter dated September 4, 2012, remains avalid decision of the Boards based upon the legislative and regulatory framework. The panel concludes that the Boards have jurisdictionto require all direct agreements relating to farm products of the forest originating from private woodlots, regulated product, to bereviewed and approved.

b. While the Boards have jurisdiction under their marketing mandate, the Panel concludes that the Boards have not exercised theirauthority in a proper manner.

The Panel concludes that the current framework or lack thereof, for the review and inspection ofagreements relating to farm products of the forest originating from private woodlots is insufficient to require the Appellant to produce theinformation sought either by the decision by letter dated August 29, 2012 or the letter dated December 21, 2012. […] [para. 34] [Emphasis added.] In the letters, the Boards bluntly declared they possessed the jurisdiction to regulate stumpage agreements.

The letters say nothing aboutthe failure to adopt marketing orders that provide a legal framework for assessing stumpage agreements. [34] I agree there is an apparent inconsistency in the Commission’s reasons for decision. However,when its reasons are read as a whole, the true thrust of the Commission’s decision is not lost. The Marketing Boards possess the statutoryauthority or jurisdiction to regulate, provided each Board adopts a marketing order which sets out the criteria upon which stumpageagreements are to be assessed for approval purposes.

In other words, until proper marketing orders are adopted, the Boards have nopower to regulate stumpage agreements. This

interpretation resonates throughout the Commission’s reasons for decision. Accordingly,the Commission’s declaration as to the validity of the Board decisions, as found within the letters of August 29, 2012, and September 4,2012, is misleading and inconsistent with the Commission’s ultimate ruling. Accordingly, the appeal must be allowed for the limitedpurpose of clarifying that the reference, found in paragraph 34 of the Commission’s decision, to the Boards’ decision being “valid” is inerror.

That said, the error is not overriding in the sense it undermines the Commission’s ultimate conclusion with respect to thejurisdiction of the Boards to regulate stumpage agreements. [35] JDI’s second argument rests on the proposition that “stumpage” is not a regulated productwithin the meaning of the legislation because it does not fall within the definition of “primary forest product”. The salient portions of thedefinition read as follows: “primary forest products” means (

a) any unmanufactured product of forest trees of hardwood or softwoodspecies; and (

b) wood chips and biomass produced at or on the harvest site. The validity of the argument hinges on the understandingthat the trees standing on a private woodlot are not transformed into a primary forest product until such time as the trees are cut. If thistemporal argument were valid it follows that the power to regulate stumpage agreements would not arise until after the fact. In my view,such an

interpretation makes no practical sense. Otherwise, once the trees are cut, JDI would incur a contractual obligation to pay thewoodlot owner in accordance with an agreement which the Marketing Board may or may not approve. If the agreement is not approvedwhere does this leave the woodlot owner and JDI? It is not for this Court to speculate on the answer to such a question.

It simply makesmore sense that approval of the agreement be sought prior to the cutting of the trees and not after the fact. [36] JDI’s third argument hinges on the fact that woodlot owners who also operate a woodprocessing facility are outside the regulatory ambit of the Act, as their lands do not fall within the definition of “private woodlot” set outin s. 1 of the Forest Products Act, S.N.B. 2012, c. 105.

JDI insists that stumpage agreements transform JDI into an owner with respect tothe lands described in the agreement, and, as JDI also operates a wood processing facility, the power of the Boards to regulate dissipates.In short, the question to be addressed is whether JDI becomes an owner of the lands described in the stumpage agreement by virtue of theagreement itself. This raises a question of law that is to be determined in accordance with the common law and equitable principles, and,therefore, the Commission’s ruling is owed no deference.

Regardless of that legal reality, I agree with the Commission when it reasoned: The Panel considers that while the Appellant may well have an enforceable right to or interest in the land covered by their Agreement,the vendor in that same Agreement covenants that the vendor holds good and marketable title to the lands in fee simple.

The vendorretains this interest subject to the terms of the Agreement which in the opinion of the Panel is sufficient to keep the land within thedefinition of “private woodlot” within the meaning of the terms as used and intended to be used within the FPA and as referenced withinthe NPA.

As such, the marketing [emphasis in original] of such a farm product of the forest originating from a private woodlot isproperly included in the mandate of marketing and is within the jurisdiction as set out by the NPA, FPA and associated regulations andorders. [para. 19] [37] There can be no doubt that, in the field of real property, stumpage agreements fall within theclassification of “profit à prendre”.

The agreement which JDI entered into granted it the exclusive right to enter upon the vendor’s landsand to cut and remove the trees standing thereon for a fixed price, based on the “metric tonne” of woodchips derived from the trees.There can be no doubt that the agreement creates an interest in land (incorporeal hereditament). But this does not mean that the interestso acquired transforms the purchaser of the right into an owner of the land. As the Commission noted, the vendor retains the fee simpletitle to the woodlot and expressly warrants to the purchaser that the lands are so owned.

In short, under the stumpage agreement, JDIbecame an owner of an interest in land, not the owner of the land itself. This is why its argument must fail. (See, generally, A.W. La Forest, ed., Anger & Honsberger: Law of Real Property, loose-leaf, 3rd ed. (Toronto: Canada Law Book, 2013) vol. 2 at §17.30; NewBrunswick Electric Power Commission v. Barberie, [1968] N.B.J. No. 33 (C.A.) (QL) at paras. 56-58; and New Brunswick ElectricPower Commission v. Tobique Salmon Club Limited, (N.B.C.A.), at 30.)

[ 38 ] In conclusion, having regard to the applicable standard of review, I find no basis for setting aside the Commission’s decision. That said, I would allow the appeal for the limited purpose of eliminating the inconsistency lodged within paragraph 34 of the Commission’s reasons for decision, as discussed earlier. In all other respects, the Commission’s decision is affirmed without costs. ____________________________________ J.T. ROBERTSON, J.A. WE CONCUR: _________________________________ ALEXANDRE DESCHÊNES, J.A. __________________________________ J.C. MARC RICHARD, J.A.