2016 QCCA 1203, 2016 QCCA 1203

Unofficial English Translation Grenier c. Fédération des producteurs acéricoles du Québec 2016 QCCA 1203 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No. 200-09-008754-142 (350-17-000037-138) DATE: July 21, 2016 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. BENOÎT MORIN, J.A. LORNE GIROUX, J.A. ANGÈLE GRENIER APPELLANT – Applicant v.

FÉDÉRATION DES PRODUCTEURS ACÉRICOLES DU QUÉBEC RESPONDENT – Impleaded party and ATTORNEY GENERAL OF QUEBEC RESPONDENT – Intervener and RÉGIE DES MARCHÉS AGRICOLES ET ALIMENTAIRES DU QUÉBEC IMPLEADED PARTY – Respondent and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Intervener JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, District of Beauce (the Honourable Justice Clément Samson) rendered on September 15, 2014, dismissing her application for judicial review of a decision of the Régie des marchés agricoles et alimentaires du Québec rendered on March 12, 2013. [ 2 ] For the reasons of Giroux, J.A., with which Duval Hesler, C.J.Q. and Morin, J.A. agree, THE COURT : [ 3 ] DISMISSES the appeal, with legal costs.

NICOLE DUVAL HESLER, C.J.Q. BENOÎT MORIN, J.A. LORNE GIROUX, J.A. Mtre Hans Mercier Mercier, Morin avocats Inc. For the appellant Mtre Mathieu Turcotte

Dufresne Hébert Comeau Inc.

For the respondent Fédération des producteurs acéricoles du Québec Mtre Patricia Blair Lavoie, Rousseau For the respondent Attorney General of Quebec Mtre Martine Veilleux Dupuis, Veilleux For the impleaded party Régie des marchés agricoles et alimentaires du Québec Hearing dates: January 25 and 26, 2016 REASONS OF GIROUX , J.A. [ 4 ] With leave from a judge of this Court, [1] the appellant appeals from a judgment rendered on September 15, 2014, by the Superior Court of the District of Beauce (the Honourable Justice Clément Samson) , [2] dismissing her application for judicial review of a decision of the Régie des marchés agricoles et alimentaires du Québec (the Régie) rendered on March 12, 2013 . [3] 1 - Background [ 5 ] In November 2011, the respondent, the Fédération des producteurs acéricoles du Québec (the Fédération), filed a motion before the Régie requesting that an inquiry be held and seeking various orders against the appellant, alleging that she had failed to respect her obligations under the regulations enacted pursuant to the Act respecting the marketing of agricultural, food and fish products , [4] more specifically that she had failed to pay the required contributions to the Fédération, to have her maple syrup graded and inspected, to deliver the maple syrup harvests from 2004 to 2011 to the Quebec maple product producers sales agency, and to maintain her maple syrup production quota for the 2004 to 2011 harvests. [ 6 ] At the hearing before the Régie, both the Fédération and the appellant acknowledged that the latter's entire production was sold in bulk to a buyer in Prince Edward Island in 2004 and 2005 and to a buyer in New Brunswick from 2006 to 2011. [5] [ 7 ] The appellant is challenging the jurisdiction of the Régie and of the Fédération over both the transactions and the individuals who conducted them.

She submits that since the sales were made outside Quebec, the laws and regulations of Quebec cannot have extraterritorial scope, that the power set out in the Quebec Maple Sap and Maple Syrup Order [6] is restricted to persons and property situated within the province and applies only to collecting levies and adjustments among producers.

Moreover, since 85% of the provincial production is exported, she argues that the marketing scheme administered by the Fédération forces producers to sell within the province, thus controlling and restricting interprovincial trade in a manner that is not incidental, but rather that directly interferes with the very heart of federal jurisdiction over interprovincial and export trade. 2 - The Régie's March 12, 2013, decision [ 8 ] The Régie dismissed those arguments in its March 12, 2013, decision. [7] While acknowledging that 85% of the maple syrup marketed in bulk by producers may end up, after or without processing, on the export market, it pointed out that only 2% or 3% of the amount produced is sold directly to buyers outside Quebec. [8] [ 9 ] The Régie applied the approach endorsed by the Supreme Court in Canadian Western Bank v .

Alberta [9] and in Fédération des producteurs de volailles du Québec v . Pelland , [10] which consists of seeking the pith and substance of the law and regulations and then verifying whether the intrusion into federal jurisdiction is merely incidental. [ 10 ] The Régie accepted the Fédération's position that the Quebec maple syrup marketing scheme is intended to control production and marketing, within the limits of the quota, for the benefit of producers and the entire maple products industry, regardless of the product's destination.

The true purpose of these provisions is not to establish specific rules for export products or to regulate interprovincial or export trade. Any effect on interprovincial or export trade is merely incidental. [11] [ 11 ] The Régie therefore dismissed the appellant's constitutional challenge, found that she had violated the provisions of the maple syrup marketing scheme and reserved the Fédération’s other rights and recourses with respect to its claims for payment of contributions, penalties and liquidated damages.

Finally, the Régie postponed to a later date the analysis of the argument raised by the appellant regarding the Régie’s independence and institutional impartiality. 3 - The Superior Court’s September 15, 2014, judgment [ 12 ] Dissatisfied with the Régie’s decision, the appellant applied for a judicial review.

In April 2013, she contested the Régie's jurisdiction on the same grounds that she had previously raised, claiming that the Régie did not have jurisdiction over her since the business that she operates falls under the exclusive jurisdiction of the federal Parliament and that the Régie, having only provincial jurisdiction, may not make an order against her.

[ 13 ] On September 15, 2014, the appellant's application for judicial review was dismissed by the judgment a quo . [ 14 ] Having first determined that the standard of review applicable to the issue of the constitutional division of powers is that of correctness, the judge then considered the constitutional issues underlying the appellant's arguments. [ 15 ] The first issue was that of the administrative or oblique delegation of federal jurisdiction in favour of a provincial body. Pursuant to the Supreme Court’s judgment in P.E.I. Potato Marketing Board v.

Willis , [12] the Canadian Parliament may validly delegate administrative authority to a provincial board to exercise a similar regulatory authority in an area of federal competence as it exercises in the provincial area. [13] [ 16 ] This administrative or oblique delegation is authorized under the Act respecting the marketing of agricultural products [14] . Regarding syrup marketing specifically, the Fédération relied on the 1993 Order. [15] [ 17 ] The trial judge set aside the application of the 1993 Order for reasons that will be discussed later.

Consequently, if neither the Fédération nor the Régie could base their jurisdiction over sales of maple syrup outside Quebec on the 1993 Order , that power had to find its source in the enabling Quebec statute, analyzed under the test of the [ translation ] "pith and substance" of the act. [16] [ 18 ] The judge then dismissed the appellant's argument that her establishment falls under federal jurisdiction because she exports her entire production.

The certificate of registration issued to the appellant under the Canada Agricultural Products Act [17] was not a free pass for allowing the violation of provincial laws. According to the first judge, there was no incompatibility between the federal and provincial laws with respect to the marketing of maple syrup.

The location of appellant's clientele outside Quebec could not transform an agricultural undertaking under provincial jurisdiction into a federal undertaking. [18] [ 19 ] Next, the judge continued with an analysis of the pith and substance of the Quebec Marketing Act [19] and the regulations specific to the maple syrup trade. To do so, in accordance with the case law, [20] he considered the issue from two different angles: both the objective sought by the legislation and its legal and practical effects.

He stressed that provincial legislation may affect interprovincial trade, as long as its effects are only incidental. [21] [ 20 ] Following his analysis of the pith and substance of the Act and its regulations, the judge concluded that the latter fall within the competence of a province to regulate agricultural production and civil relations among its citizens.

It is not a conduit allowing indirect provincial intervention in a field of federal jurisdiction. [22] [ 21 ] As for the incidental intrusion on federal jurisdiction over interprovincial and export trade, the judge took into account the distinction made by the Supreme Court [23] between an intrusion that "impairs" the exercise of a power of the other level of government and one that only "affects" it.

He concluded that, in this case, the management of maple syrup production and the regulatory requirement for maple product producers to sell through the Fédération only indirectly influences the resale price of the product on the export market and thus interferes only incidentally with an area of federal jurisdiction, without impairing it. [24] Similarly, the judge determined that the Quebec rules on quotas, the sales agency, grading and the provisions of the joint plan all fall within provincial jurisdiction and are neither unconstitutional nor inapplicable. [25] [ 22 ] Finally, the judge refused to intervene in the Régie’s decision reserving the Fédération’s rights and recourses regarding its claims for payment of contributions, penalties and liquidated damages. [26] [ 23 ] For the reasons outlined below, I am of the view that the appeal must be dismissed. [ 24 ] Contrary to what the appellant successfully argued before the Superior Court, I am of the view that the 1993 Order [27] adopted under the Marketing Act [28] validly extended the powers that the Quebec Marketing Act [29] grants to the Fédération and to the Régie with respect to marketing maple syrup to interprovincial and export trade. [ 25 ] An understanding of the reasons supporting this position requires an examination of the origins of the Marketing Act under which authority the 1993 Order was made.

I believe that this is necessary given the specific legal context that led both to the adoption of the federal law in 1949 and to its subsequent amendments. In addition, the historical study of the evolution of the legislation makes it easier to grasp the federal legislative intent and makes it possible to respond to some of the arguments invoked to exclude the application of the 1993 Order . 4 - The origin of the 1993 Order [ 26 ] In 1937, in Attorney General for British Columbia v.

Attorney General for Canada , [30] the Privy Council invalidated as ultra vires two federal laws establishing a marketing plan for natural products. [31] According to the Privy Council, the federal legislator may not govern commercial transactions in a way that encompassed their local and extraprovincial dimensions by including in its regulations commercial transactions conducted within a province. [32] [ 27 ] Aware of the difficulty resulting from the division of legislative powers in the area of marketing, [33] the Privy Council noted the possibility for the federal and provincial legislative institutions to collaborate, each within their respective jurisdictions, to achieve a comprehensive and efficient marketing control scheme. [34] [ 28 ] It was for this very purpose [35] that in 1949, the Canadian Parliament enacted the Agricultural Products Marketing Act . [36] It’s key provision reads as follows:

(1) The Governor in Council may by order grant authority to any board or agency authorized under the law of any province to exercise powers of regulation in relation to the marketing of any agricultural product locally within the province, to regulate the marketing of such agricultural product outside the province in interprovincial and export trade and for such purposes to exercise all or any powers like the powers exercisable by such board or agency in relation to the marketing of such agricultural product locally within the province.

(2) The Governor in Council may by order revoke any authority granted under subsection one. 2.

(1) Le gouverneur en conseil peut, par arrêté, autoriser tout office ou organisme auquel la législation d’une province permet d’exercer des pouvoirs de réglementation sur la vente de tout produit agricole, localement, dans les limites de la province, à régler le placement de ce produit agricole en dehors de la province, sur le marché interprovincial et dans le commerce d’exportation, et, pour ces fins, à exercer tous pouvoirs semblables à ceux que l’office ou organisme en question peut exercer quant au placement dudit produit agricole, localement, dans les limites de la province.

(2) Le gouverneur en conseil peut, par arrêt, révoquer toute autorisation conférée selon le paragraphe premier. [ 29 ] In 1950, a federal order in council, adopted under this provision, delegated to the Prince Edward Island Potato Marketing Board, which was established under the authority of Prince Edward Island legislation for the marketing of agricultural products, [37] the power to regulate the marketing of potatoes outside the province in the interprovincial and export markets. [ 30 ] In 1952, the Supreme Court in Willis [38] confirmed the validity of the Federal Act of 1949 and the order in council adopted under its authority that delegated powers to the Board to act in interprovincial and export trade.

The Court dismissed the application of its 1951 judgment, Attorney General of Nova Scotia v. Attorney General of Canada , [39] in which it had found that the delegation of legislative jurisdiction between a provincial legislature and the Parliament of Canada was unconstitutional.

However, it found that the administrative or oblique delegation by which Parliament grants a provincial body the power to exercise, in an area of federal jurisdiction, a regulatory power like the power exercised by the body in the provincial area is valid. [ 31 ] It should be noted, however, that a majority of the Supreme Court judges, in Willis , deemed ultra vires certain orders adopted by the Potato Marketing Board in the context of the marketing scheme put in place in 1950 by the government of Prince Edward Island under the authority of provincial law. [40] [ 32 ] One of the orders provided for the establishment of a fund and its provisioning by requiring every producer to pay one cent ($0.01) for every $100 of potatoes shipped or exported by the producer.

This requirement was subsequently repealed; however, the amounts due up to the date of repeal remained payable. [41] [ 33 ] Another order provided for a similar requirement at the same rate, but this time was imposed on all producers "… in respect of all potatoes sold or marketed by such producer". [42] [ 34 ] The Board's orders were deemed ultra vires because they clearly made reference to export trade, [43] or because they were an indirect tax, [44] or for both reasons. [45] [ 35 ] In 1952, the Federal Act of 1949 became

Chapter 6 of the Revised Statutes of Canada , under the same name. [ 36 ] In 1957, the issue of the validity of the imposition of levies or charges to create reserves and to improve distribution and equalization of the proceeds of the sale of agricultural products among producers was revisited by the Supreme Court in Reference re The Farm Products Marketing Act . [46] [ 37 ] In that case, a majority of the judges of the Court decided, notably, that it is unconstitutional for a province to authorize a marketing office, when issuing licences, to impose charges intended to cover the losses incurred in marketing the surpluses of a regulated product and to use the funds for the equalization or adjustment among producers of the moneys realized in a regulated market.

The majority found, as some judges had already concluded in Willis , that this would be equivalent to indirect taxation. [ 38 ] The Federal Act of 1949 was amended in 1957. [47] Its

preamble was replaced [48] with one containing notably the following statement: "… and whereas it is desirable to facilitate such marketing by authorizing the imposition of levies or charges for the equalization or adjustment among producers of the moneys realized from the marketing of the products …".

New subsection 2(2) [49] permitted provincial marketing agencies "… to fix, impose and collect levies or charges from persons engaged in the production or marketing of the whole or any part of any agricultural product …". [ 39 ] This new power was added to the general power already granted to the federal Parliament to delegate to a provincial marketing body the authority to act in extraprovincial and international trade . [50] It is immediately apparent that the addition of subsection 2(2) aims to confer to the provincial authority the power to collect levies or charges from participants in the marketing scheme and thereby remedy the deficiencies raised in Willis and especially in Reference re The Farm Products Marketing Act . [51] [ 40 ] In the consolidation of 1970, the Agricultural Products Marketing Act remained unchanged and became

Chapter A-7 . [52] [ 41 ] The validity of sections 2 and 3 of the Agricultural Products Marketing Act , as it read in 1970, was again confirmed in the Egg Reference, [53] with the exception of paragraph 2(2)(a), which was declared ultra vires of the federal Parliament. This provision purported to authorize a provincial producers marketing board to levy fees or charges to organize the marketing of an agricultural product "… locally within the province …". The Court dismissed the position that these adjustment levies imposed on producers were in the nature of a tax. This notion is being excluded, paragraph 2(2)(

a) constituted a federal intrusion in a provincial field of jurisdiction and

therefore was invalid. As noted by Laskin C.J., this result was not catastrophic since provinces are capable of enacting their own valid legislation, though their own provisions dealing with adjustment levies. [54] [ 42 ] The remainder of

section 2 of the Agricultural Products Marketing Act as it read in 1970 however, was deemed valid by the same decision. This was particularly the case concerning paragraph 2(2)(b), which allowed the federal government to delegate to a provincial marketing board, by order, the power to impose similar adjustment levies "with respect to the marketing of any agricultural product in interprovincial and export trade". [ 43 ] It was not until 1984 that the Canadian Parliament acknowledged the Supreme Court’s ruling in the Egg Reference by repealing subparagraph 2(2) (

a) of the Agricultural Products Marketing Act . [55] [ 44 ] In the 1985 consolidation, the name of the Federal Act of 1949 was changed to the Agricultural Products Marketing Act . [56] Its wording was also amended without, however, changing its fundamental purpose.

That version remains substantially unchanged today. [ 45 ] The last amendment dates back to 1991 [57] when the scope of the Act was extended to wood [58] and a new provision provided that levies or charges imposed pursuant to subsection 2(2) constitute a debt due to the provincial board or agency that may be recovered before any court of competent jurisdiction. [59] [ 46 ] This text, as amended in 1991, remains in force today. Since the scope of the 1993 Order , [60] adopted under the Marketing Act , is in dispute here, it is appropriate to reproduce the

preamble and full text in their entirety :

An Act to provide for the marketing of agricultural products in interprovincial and export trade

Preamble WHEREAS it is desirable to improve the methods and practices of marketing agricultural products of Canada; AND WHEREAS the legislatures of several of the provinces have enacted legislation respecting the marketing of agricultural products locally within the province; AND WHEREAS it is desirable to cooperate with the provinces and to enact a measure respecting the marketing of agricultural products in interprovincial and export trade; AND WHEREAS it is desirable to facilitate such marketing by authorizing the imposition of levies or charges for the equalization or adjustment among producers of the moneys realized from the marketing of the products.

THEREFORE Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short title 1 This Act may be cited as the Agricultural Products Marketing Act . R.S., c. A-7, s. 1.

Loi concernant la commercialisation des produits agricoles sur les marchés interprovincial et international Préambule Considérant : qu’il importe d’améliorer les méthodes de commercialisation des produits agricoles canadiens; que les législatures de plusieurs provinces ont adopté des lois régissant la commercialisation locale des produits agricoles sur leur territoire respectif; qu’il est souhaitable de collaborer avec les provinces et d’adopter une loi concernant la commercialisation des produits agricoles sur les marchés interprovincial et international; qu’il convient de faciliter cette commercialisation en autorisant l’institution de taxes et prélèvements pour une meilleure répartition ou la péréquation, entre producteurs, des sommes rapportées par la commercialisation des produits, Sa Majesté, sur l’avis et avec le consentement du Sénat et de la Chambre des communes du Canada, édicte :

Titre abrégé 1

Titre abrégé : «

Loi sur la commercialisation des produits agricoles ».

Definition of agricultural product 1.1 In this Act, agricultural product includes wood. 1991, c. 34, s. 1. Governor in Council may grant authority to provincial boards 2

(1) The Governor in Council may, by order, grant authority to any board or agency authorized under the law of any province to exercise powers of regulation in relation to the marketing of any agricultural product locally within the province, to regulate the marketing of that agricultural product in interprovincial and export trade and for those purposes to exercise all or any powers like the powers exercisable by the board or agency in relation to the marketing of that agricultural product locally within the province. Levies and charges

(2) The Governor in Council may, by order, grant to any board or agency mentioned in subsection (1) authority in relation to the powers that may be granted to the board or agency under this Act with respect to the marketing of any agricultural product in interprovincial and export trade, (

a) to fix, impose and collect levies or charges from persons engaged in the production or marketing of the whole or any part of any agricultural product and for that purpose to classify those persons into groups and fix the levies or charges payable by the members of the different groups in different amounts; and (

b) to use the levies or charges for the purposes of the board or agency, including the creation of reserves, the payment of expenses and losses resulting from the sale or disposal of any such agricultural product and the equalization or adjustment among producers of any agricultural product of moneys realized from the sale thereof during such period or periods of time as the board or agency may determine. Debt due to board or agency

(2.1) Levies or charges imposed by a board or agency pursuant to the authority granted to it under subsection (2) constitute a debt due to that board or agency and may be sued for and recovered by it in any court of competent jurisdiction. Authority may be revoked S.R., ch. A-7, art. 1. Définition de produit agricole 1.1 Pour l’application de la présente loi, produit agricole s’entend également du bois. 1991, ch. 34, art. 1. Habilitation d’offices provinciaux à l’exercice de certains pouvoirs 2

(1) Le gouverneur en conseil peut, par décret, étendre aux marchés interprovincial et international les pouvoirs de tout office ou organisme habilité par la législation d’une province à réglementer la commercialisation d’un produit agricole donné dans la province. Taxes et prélèvements

(2) Le gouverneur en conseil peut, par décret, habiliter les offices ou organismes visés au paragraphe (1), en ce qui concerne les pouvoirs qui peuvent leur être attribués aux termes de la présente loi relativement à la commercialisation des produits agricoles sur les marchés interprovincial et international :

a) à instituer et percevoir des taxes ou prélèvements payables par les personnes se livrant à la production ou la commercialisation de tout ou

partie d’un produit agricole et, à cette fin, à classer ces personnes en groupes et à fixer les divers montants des taxes et prélèvements payables par les membres des différents groupes;

b) à employer à leur profit ces taxes ou prélèvements, notamment pour la création de réserves et le paiement des frais et pertes résultant de la vente ou de l’aliénation du produit agricole, et pour une meilleure répartition ou la péréquation, entre producteurs de tous produits agricoles, des sommes rapportées par la vente de ceux-ci durant la ou les périodes qu’ils peuvent déterminer.

(3) The Governor in Council may, by order, revoke any authority granted under this section. R.S., 1985, c. A-6, s. 2 ; 1991, c. 34, s. 2. Regulations 3 The Governor in Council may make regulations prescribing the terms and conditions governing the granting and revocation of authority under

section 2 and generally may make regulations for carrying the purposes and provisions of this Act into effect. R.S., c. A-7, s. 3. Offence 4

(1) Every person who contravenes any regulation, or any order, rule or regulation made by any board or agency under this Act with reference to the marketing of an agricultural product in interprovincial and export trade, is guilty of an offence and liable on

summary conviction to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months or to both. Onus

(2) In any prosecution for an offence under this Act, the act or omission complained of, in respect of which the prosecution was instituted, shall, unless the accused proves the contrary, be deemed to relate to the marketing of an agricultural product in interprovincial and export trade. R.S., c. A-7, s. 4. Recouvrement des créances

(2.1) Les taxes ou prélèvements impayés imposés en vertu du paragraphe (2) constituent des créances de l’office ou de l’organisme, qui peut en recouvrer le montant devant tout tribunal compétent. Retrait d’habilitation

(3) Le gouverneur en conseil peut, par décret, retirer les habilitations accordées au

titre du présent article. L.R. (1985), ch. A-6, art. 2 ; 1991, ch. 34, art. 2. Règlements 3 Le gouverneur en conseil peut, par règlement, fixer les conditions régissant l’octroi et le retrait des habilitations prévues par l’article 2 et, de façon générale, prendre toute mesure d’application de la présente loi. S.R., ch. A-7, art. 3. Infraction 4

(1) Quiconque contrevient à un règlement pris par le gouverneur en conseil ou à une ordonnance, une règle ou un règlement pris par un office ou organisme sous le régime de la présente loi relativement à la commercialisation d’un produit agricole sur les marchés interprovincial et international commet une infraction et encourt, sur déclaration de culpabilité par procédure

sommaire, une amende maximale de cinq cents dollars et un emprisonnement maximal de trois mois, ou l’une de ces peines. Fardeau de la preuve

(2) Dans les poursuites pour infraction à la présente loi, le fait reproché — acte ou omission — est réputé, sauf preuve contraire par l’accusé, lié à la commercialisation d’un produit agricole sur les marchés interprovincial et international. S.R., ch. A-7, art. 4. [ 47 ] Pursuant to

section 2 of the Marketing Act , the 1993 Order was issued on March 30, 1993. [61] For the purposes of this analysis, the full text of the Order is reproduced below: Order granting authority to the Fédération des producteurs acéricoles du Québec to regulate the marketing in bulk, in interprovincial and Décret étendant aux marchés interprovincial et international les pouvoirs de la Fédération des producteurs acéricoles du Québec

export trade, of maple sap and maple syrup produced in Quebec .

Short Title 1 This Order may be cited as the Quebec Maple Sap and Maple Syrup Order .

Interpretation 2 In this Order, Act means An Act respecting the marketing of agriculture, food and fish products and amending various legislation , S.Q. 1990, c. 13 enacted by the Province of Quebec; ( Loi ) Commodity Board means the Fédération des producteurs acéricoles du Québec established pursuant to the Act; ( Fédération ) maple sap and maple syrup means any maple sap and any maple syrup produced in the Province of Quebec and marketed in bulk; ( eau d'érable et sirop d'érable ) market in bulk means to sell, offer for sale or deliver a product, in barrels or otherwise in bulk, to a processor, a wholesaler or any other intermediary. ( commercialiser en vrac ) Interprovincial and Export Trade 3 The Commodity Board is authorized to regulate the marketing in bulk of maple sap and maple syrup in interprovincial and export trade and for those purposes may, with respect to persons and property situated in the Province of Quebec, exercise all or any powers like the powers exercisable by that Commodity Board under the Act in relation to the marketing in bulk of maple sap and maple syrup locally in the Province of Quebec.

Levies or Charges 4 The Commodity Board may, in relation to the powers granted to it under

section 3 , relativement à la commercialisation en vrac de l'eau d'érable et du sirop d'érable produits au Québec

Titre abrégé 1 Décret sur l'eau d'érable et le sirop d'érable du Québec . Définitions 2 Les définitions qui suivent s'appliquent au présent décret. commercialiser en vrac Vendre, offrir en vente ou livrer un produit, en baril ou autrement en vrac, à un transformateur, à un grossiste ou à tout autre intermédiaire. ( market in bulk ) eau d'érable et sirop d'érable L'eau d'érable et le sirop d'érable produits au Québec et commercialisés en vrac. ( maple sap and maple syrup ) Fédération La Fédération des producteurs acéricoles du Québec, constituée en vertu de la Loi. ( Commodity Board ) Loi La loi du Québec intitulée

Loi sur la mise en marché des produits agricoles, alimentaires et de la pêche et modifiant d'autres dispositions législatives , L.Q. 1990, ch. 13 ( Act ) Marchés interprovincial et international 3 Les pouvoirs conférés à la Fédération par la Loi relativement à la commercialisation en vrac de l'eau d'érable et du sirop d'érable dans cette province, à l'égard des personnes et des biens qui s'y trouvent, sont étendus aux marchés interprovincial et international.

(

a) fix and impose, by order, and collect levies or charges from persons referred to in that

section who are engaged in the production or marketing in bulk of maple sap and maple syrup and for those purposes may classify those persons into groups and fix, by order, the levies or charges payable by the members of the different groups in different amounts; and (

b) use the levies or charges for the purposes of the Commodity Board, including the creation of reserves, the payment of expenses and losses resulting from the sale or disposal of maple sap and maple syrup and the equalization or adjustment among the producers of maple sap and maple syrup of moneys realized from the sale thereof during such period or periods as the Commodity Board may determine. Taxes et prélèvements 4 En ce qui concerne les pouvoirs qui lui sont attribués aux termes de l'article 3, la Fédération est habilitée :

a) à instituer par ordonnance et à percevoir les taxes ou prélèvements payables par les personnes visées à cet

article qui se livrent à la production ou à la commercialisation en vrac de l'eau d'érable et du sirop d'érable et, à cette fin, à classer ces personnes en groupes et à fixer par ordonnance les divers montants des taxes et prélèvements payables par les membres des différents groupes;

b) à employer à son profit ces taxes ou prélèvements, notamment pour la création de réserves et le paiement des frais et pertes résultant de la vente ou de l'aliénation de l'eau d'érable et du sirop d'érable, et pour une meilleure répartition ou la péréquation, entre les producteurs d'eau d'érable et de sirop d'érable, des sommes rapportées par la vente de ceux-ci durant la ou les périodes que la Fédération peut déterminer. 5 - Analysis [ 48 ] In first instance, three main reasons were invoked to set aside the application of the 1993 Order as a source of the Fédération’s power for implementing the Quebec Marketing Act [62] scheme in relation to producers selling their syrup in another province or abroad. [ 49 ] First, the reviewing judge concluded that the 1993 Order delegates power only to the Fédération, whereas, in other orders of the same nature, such powers are also conferred upon the Régie.

The wording of the Order being insufficient to grant to the Régie, a separate entity, the powers that the Order delegates to the Fédération, it could not be interpreted as an implicit delegation to the Régie. [63] [ 50 ] Secondly, the reviewing judge was of the opinion that, despite the general terms of

section 3 of the Order , the Fédération, as far as interprovincial trade is concerned, has only the powers granted to it under

section 4, namely, those to impose and collect levies and charges from maple producers. [64] [ 51 ] Thirdly, the reviewing judge decided that, even had the Régie and the Fédération been conferred authority under 1993 Order , the delegation would have needed to be authorized by the Quebec government in accordance with sections 120 and 121 of the Quebec Marketing Act . There was no evidence of any such authorization having been given. [65] [ 52 ] For the reasons explained below, I am of the view that these reasons do not justify setting aside the application of the 1993 Order .

On the contrary, the Order is sufficient to allow the Fédération to exercise, in interprovincial and export trade, the powers granted to it by the Quebec Marketing Act for the marketing of maple syrup in Quebec. 5.1 The 1993 Order and the Régie [ 53 ] The appellant argues that since the 1993 Order does not delegate powers to the Régie, the powers that it exercises in the marketing of maple sap and syrup do not extend to interprovincial and export trade.

The Superior Court accepted this argument, which is essentially based on a comparison between various orders made under the authority of the Marketing Act. [66] As some of them delegate powers to a producer marketing board to act in interprovincial and export trade while others refer expressly to the Régie, it should be inferred that, in the case of the 1993 Order , Parliament chose not to delegate powers to the Régie. [ 54 ] Respectfully, I believe that this approach is wrong. It is based on a restrictive

interpretation of the 1993 Order , which is not only inappropriate, but also incompatible with the objective pursued by Parliament.

[ 55 ] That objective is the cooperation with the provinces to eliminate constitutional impediments to the implementation of supply- management schemes in the field of agricultural production. [ 56 ] This was the objective behind the Federal Act of 1949 , [67] and it is still what is stated in the

preamble of the current Marketing Act. [68] What is more, the Supreme Court itself favours accommodating cooperative intergovernmental efforts in the sector of agricultural production and marketing. [69] [ 57 ] A liberal

interpretation of the application of the 1993 Order is more consistent with the objectives set out in its parent legislation, the Marketing Act [70] and, as is discussed below, this

interpretation produces results that are more consistent with this objective. [71] In addition, a regulation like the 1993 Order and its enabling statute command a broad and purposive

interpretation that is consistent with the Supreme Court's general approach to statutory

interpretation. [72] [ 58 ] The 1993 Order was made shortly after the coming into force of the Act respecting the marketing of agricultural products, food and fish products and amending various legislation in 1990, [73] to which it refers expressly in the

definitions set out in

section

Section 3 of the Order extends to interprovincial and export trade the "the powers conferred to the Commodity Board [pouvoirs conférés à la Fédération]" under the Marketing Act of 1990 . This means that the Canadian government, when enacting the 1993 Order, was very familiar with the marketing scheme put in place in Quebec in 1990 and in particular, the role played by each of its actors. [ 59 ] In this case,

section 64 of the Quebec Marketing Act of 1990 provides that the producers marketing board is established upon the coming into force of the joint plan. It is responsible for administering the joint plan and may exercise every power conferred by Title III of the Act . [74] At the time of the coming into force of the 1993 Order, the Plan conjoint des producteurs acéricoles du Québec had been in force since February 28, 1990. [75] It entrusts with the Fédération, which is responsible for applying and administering the joint plan, the powers and attributions of a producer marketing board.

The Fédération acts as sales agent and negotiator for the producers within the scope of the plan. [76] [ 60 ]

Section 92 of the Quebec Marketing Act of 1990 grants a producer marketing board the authority to determine conditions governing the production, storage, preparation and handling of the product marketed under the plan it administers. The

section also grants to the board the power to determine standards respecting the quality, form, composition and container of the product, as well as inscription which must appear on such container. The same

section also confers upon the board the power to prescribe the classification and identification of the product. Moreover, under

section 169 of the Act , a producers marketing board may appoint a person to conduct such investigations and verifications as may be necessary for the purposes of the joint plan and by-laws. [ 61 ] Pursuant to these powers, in 1995, the Fédération adopted the Règlement sur l’inspection et le classement du produit visé par le Plan conjoint des producteurs acéricoles du Québec. [77] [ 62 ]

Section 93 of the Quebec Marketing Act of 1990 also confers on producers marketing boards the power to adopt by-laws setting production quotas for the product marketed under the plan, and its second paragraph sets out the provisions that such a by-law may contain. Sections 93 and 94 prohibit the production and marketing of the product without holding a quota. [ 63 ] That power was exercised on October 22, 2003, when the Règlement sur le contingentement de la production et de la mise en marché du produit visé par le Plan conjoint des producteurs acéricoles du Québec [78] came into force. [ 64 ]

Section 98 of the Quebec Marketing Act of 1990 grants to a producers marketing board the power to determine what factors apply when establishing the sales price of the product, as well as its modes of payment, to require every producer to sell the product to the board and to retain, out of the sales price, the amounts necessary for marketing the product, together with any other contribution. Under this enabling provision, the Règlement sur l’agence de vente des producteurs acéricoles [79] came into force on February 28, 2002.

The Règlement provides, in particular, that producers may only sell their products through the Fédération and that they must make available to the Fédération all of their production that is intended for sale and marketed under the joint plan. [80] [ 65 ] Under sections 122 to 134 of the Quebec Marketing Act of 1990 , a producers marketing board may establish a contribution and special contribution scheme through a joint plan or a by-law. The Fédération has widely availed itself of those powers since 1995. [81] [ 66 ]

Section 101 of the Quebec Marketing Act of 1990 , referred to in the 1993 Order, provides that "[e]very by-law made by a marketing board or a general meeting under this Act shall be submitted to the Régie for approval". Under this provision, the Régie may assess, in any manner it deems appropriate, the opinion of the producers in respect of a proposed by-law and may require the marketing board if deemed necessary, to submit the by-law to the general meeting for ratification. [ 67 ] I cannot see how the failure to mention the Régie in

section 3 of the 1993 Order could prevent the Order from being applied. The powers granted by

section 3 regarding interprovincial and export trade are the same as those granted to the Fédération pursuant to the Quebec Marketing Act of 1990 . As seen above, all the powers exercised by the Fédération that the appellant challenges were exercised pursuant to by-laws expressly authorized by the enabling provisions of the 1990 Act .

What is more, these legislative provisions, notably those of sections 92 to 100 and 122 to 125, expressly authorize the producers marketing board—in this case the Fédération—to regulate marketing; it does not grant that power to the Régie, which only approves by-laws made by the Fédération. [ 68 ] By referring specifically to the Fédération and to the Quebec Marketing Act of 1990 in the

definitions of

section 2 of the 1993 Order , the Canadian government showed that it was aware of all the mechanisms of the Act , including the approval and arbitration roles that it confers on the Régie. [82] The fact that by-laws made by the Fédération must be approved by the Régie does not mean that the delegation of power to the Fédération under sections 3 and 4 of the 1993 Order is incomplete or inoperative for lack of specific mention of the Regie. [ 69 ] Lastly, given the clearly stated objective of cooperation with the provinces in the

preamble of the Agricultural Products Marketing Act , [83] the appellant's argument concerning the absence of an express delegation of power to the Régie in effect negates any usefulness to the 1993 Order [84] and runs counter to the legislative intent. [85] Such an

interpretation must be dismissed.

5.2 Sections 3 and 4 of the 1993 Order [ 70 ] The appellant argues that, in the case of interprovincial and export trade, the delegation of power to the Fédération is limited to collecting levies and charges under

section 4 of the 1993 Order . [ 71 ] This argument is partially based on the restrictive wording of

section 4 as a result of the use of the introductory language: "The Commodity Board may, in relation to the powers granted to it under

section 3 …". [86] [ 72 ] I find this unduly restrictive

interpretation of the 1993 Order unjustified . It renders it useless and makes its

section 3 superfluous. The introductory words of

section 4 are not meant to restrict. They simply signify “in the context of” or “in the exercise of the powers conferred under

section 3". This

interpretation is all the more plausible considering that the English version of the introductory paragraph of

section 4 uses the expression "in relation to", which has a rather extensive meaning according to author Ruth Sullivan: The expressions "in respect of" and "in relation to" and "respecting" are used frequently in legislation to describe the relationship between two legally significant entities. [87] [ 73 ] Moreover, the structure of the 1993 Order is modeled after that of the Marketing Act , which, in subsection 2(1), grants the Canadian government the general power to extend to interprovincial and export trade the powers of any provincial agency to regulate marketing within the province and, in subsection 2(2), the power to grant to the agency the right to collect levies and charges. [ 74 ] This structure dates back to 1957 when the Federal Act of 1949 , [88] which became

Chapter 6 of the Revised Statutes of Canada of 1952 , was amended. As explained in paragraphs [38] and [39] above, the 1957 amendment was intended to remedy problems relating to the validity of the provincial legislative provisions imposing contributions that had been raised in Willis [89] and in Reference re The Farm Products Marketing Act . [90] The purpose was to increase, rather than restrict, the powers of provincial marketing agencies. Consequently, the powers delegated to the Fédération under

section 4 of the 1993 Order add to those already delegated to it under

section 3; they do not, as the appellant contends, restrict those powers. That argument, too, must fail. 5.3 Lack of authorization [ 75 ] In the Superior Court, the appellant successfully argued that neither the Fédération nor the Régie had been authorized by the Quebec government to accept the delegation of power contemplated by the 1993 Order . This argument is based on the provisions of sections 120 and 121 of the Quebec Marketing Act, [91] which form

Chapter VIII of Title III of the Act , and dealing with agreements with other governments and government bodies. According to this argument, for such a delegation to be valid, it must be authorized by an order of the Quebec government made under one of those provisions. [ 76 ] In my view, that argument is ill founded. None of those provisions applies in this case.

Section 120 enables the government to authorize the Régie or, as the case may be, the Régie and a producers marketing board, to make agreements with the government of Canada or of another province, in relation to the production or marketing of an agricultural product or any matter within the competence of the Régie or of a producers marketing board. [ 77 ] The 1993 Order does not require any provincial authorization in order to become effective. Under its provisions, the Fédération is authorized directly by the federal government to act in interprovincial and export trade. [92] [ 78 ]

Section 121 of the Quebec Marketing Act authorizes the Quebec government to allow a producer marketing board to act as an agent of the federal government and to entrust to a body authorized under a federal law to regulate the marketing of an agricultural product, any function that the federal body may accomplish under the Quebec Marketing Act . [ 79 ] In the present case, the Fédération does not act as an agent of the federal government and it is not authorized to regulate the marketing of an agricultural product by a federal law, but a law of Quebec, the Quebec Marketing Act . [ 80 ]

Section 121 of the Quebec Marketing Act also provides that the Quebec government may allow a producers marketing board to perform any function which a federal body may perform under a federal law on behalf of any body authorized under a federal law to regulate the marketing of an agricultural product. [ 81 ] This provision in applicable since the Fédération does not perform its functions on behalf of a federal body, but in its own name. [ 82 ] It follows that the Fédération needs no authorization whatsoever from the Quebec government to benefit from the delegation of power set out in the 1993 Order .

This argument too must fail. [ 83 ] In the end, I am of the opinion that the 1993 Order , which implements an administrative delegation, reveals a clear desire for cooperation between the two levels of government in order to prevent any operational conflict or conflict of intent with respect to the management of the supply of maple products. [ 84 ] This willingness to cooperate and the mechanism used to give it concrete expression ensure the constitutional validity of the marketing schemes put in place under the Quebec Marketing Act and the regulations adopted by the Fédération even when, as in this case, the scheme is applied to a producer whose product is intended for interprovincial or export trade. [ 85 ] This suffices to dismiss the appellant's action without having to conduct an analysis of the pith and substance of the Quebec Marketing Act [93] to determine whether it is valid. [ 86 ] For these reasons, I would dismiss the appeal, with legal costs.

LORNE GIROUX, J.A. [31] Natural Products Marketing Act , S.C. 1934, c. 57; Natural Products Marketing Act Amendment Act, S.C. 1935, c. 64.