Group Westco Inc v Manitoba Chicken Producers et al, 2022 MBCA 16

Citation: Group Westco Inc v Manitoba Chicken Producers et al, 2022 MBCA 16 Date: 20220209 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre Docket: AI21-30-09662 ) BETWEEN : ) ) GROUP WESTCO INC. ) G. W. Agar and ) R. A. McFadyen (Applicant) Appellant ) for the Appellant ) Group Westco Inc. - and - ) ) MANITOBA CHICKEN PRODUCERS ) J. B. Martens and ) J. A. Sokal (Respondent) Respondent ) for the Respondent ) Manitoba Chicken Producers - and - ) ) MANITOBA FARM PRODUCTS ) T. D. Gisser, Q.C. and MARKETING COUNCIL ) T. D.

Edkins ) for the Respondent (Respondent) ) Manitoba Farm Products ) Marketing Council - and - ) ) Docket: AI21-30-09663 ) Appeals heard and BETWEEN : ) Decision pronounced: ) January 25, 2022 GROUP WESTCO INC. ) ) (Applicant) Appellant ) Written reasons: ) February 9, 2022 - and - ) MANITOBA FARM PRODUCTS ) MARKETING COUNCIL ) ) (Respondent) Respondent ) ) - and - ) ) MANITOBA CHICKEN PRODUCERS ) ) (Respondent) ) COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference.

On appeal from 2021 MBQB 135 pfuetzner JA (for the Court) : [ 1 ] The applicant (Westco) appeals the motion judge’s discretionary decision to dismiss its application for judicial review on the basis of prematurity. [ 2 ] At the hearing, we dismissed the appeal with costs to the respondent, Manitoba Chicken Producers (the Board), with reasons to follow. These are those reasons.

Background [ 3 ] Westco is a producer of chicken broiler and is subject to production quotas adopted by the Board and approved by the respondent, Manitoba Farm Products Marketing Council (the Council), pursuant to The Farm Products Marketing Act , CCSM c F47 (the Act ). [ 4 ] The underlying issue giving rise to Westco’s judicial review application is the Board’s adoption, in November 2018, and the Council’s approval, in December 2018 (the December approval), of the Chicken Broiler Quota Order , Man Reg 228/2006 , as amended by Chicken Broiler Quota Order , amendment, Man Reg 177/2018, and further amended by Man Reg 29/2021 (the amending order).

Westco’s position is that the amending order is inconsistent with the Council’s decision that it was meant to implement. That decision disposed of a statutory appeal, under the Act , undertaken by Friendly Family Farms Ltd., another chicken broiler producer (the Friendly Family decision). In that decision, the Council directed the Board to amend the quota. [ 5 ] After the amending order was registered, Westco wrote to the Council in order to proceed with an appeal of the amending order pursuant to

section 19 of the Act . In that letter, Westco also initiated a review by the Board under

section 19 , stating: . . . As Council is aware,

section 19 of the Act provides that [the] appeal before Council may only proceed if the person affected has first asked the Board to review the matter at issue, and the Board has refused to grant the relief requested.

As a result, by way of a copy of this letter sent to . . . the Board, [Westco] is respectfully requesting the Board to review and reconsider the [amending order] . . .. . . . [ 6 ] Section 19(1) of the Act states: Any person affected by a regulation, order or decision made by a board or commission may appeal to the Manitoba council, but only if the person has first asked the board or commission to review the matter and the board or commission has refused to grant the relief requested. [emphasis added] [ 7 ] The Board denied Westco’s request to review and reconsider the amending order.

Rather than continue with its appeal to the Council, Westco filed an application for judicial review, seeking an order of certiorari quashing the December approval by the Council of the amending order and an order of mandamus requiring that the Board and the Council render the quota compliant with the direction given in the Friendly Family decision. [ 8 ] The Board and the Council brought motions to either strike the notice of application or to dismiss the application on the basis that Westco’s application was premature because it failed to pursue the adequate alternative remedy of the statutory appeal process under the Act .

The motion judge granted the motions and dismissed the application.

Issue [ 9 ] While Westco raised other issues, the only one that we need to address in order to dispose of this appeal is whether the motion judge erred in exercising his discretion to allow the respondents’ motions and to dismiss the application for judicial review on the basis of prematurity. [ 10 ] Westco argues that the motion judge misdirected himself by misunderstanding the fact that it was seeking judicial review of the Council’s December approval of the Board’s adoption of the amending order and that there is no appeal under the Act from a decision of the Council.

Westco asserts that the Council’s December approval, for which no reasons were provided, is unreasonable on its face, as the amending order does not comply with the Council’s specific directions in the Friendly Family decision. Analysis [ 11 ] The motion judge’s decision to dismiss the application on the basis of prematurity is discretionary and is owed deference.

Barring a misdirection on the facts or the law, or a decision that is so wrong as to amount to an injustice, this Court will not intervene (see Sagkeeng v Government of Manitoba et al , 2021 MBCA 88 at para 119 ). [ 12 ] The motion judge did not misapprehend what Westco was seeking in its notice of application. Rather, the motion judge looked at the substance of what was at issue between the parties, finding that the real matter in respect of which Westco sought judicial review was the amending order.

The motion judge found that “the matter [for] which Westco is seeking certiorari and mandamus has not been considered by the Council” and that the “[j]udicial review should not proceed . . . until the Council has had an opportunity to deal with the issue first and to make its views known” (at paras 25, 28) [ 13 ] As a person affected by the amending order and dissatisfied with it, the better approach was for Westco to appeal the amending order to the Council under

section 19 of the Act . This process would have required the Council to consider the parties’ arguments regarding the amending order and to provide reasons for its decision (see section 21(2) of the Act ).

There is no dispute that an appeal decision of the Council after this process is a proper subject of judicial review. [ 14 ] Indeed, Westco began the administrative appeal process, but then decided to take a different tack and sought judicial review of the Council’s December approval of the amending order. [ 15 ] In the circumstances of this case, we are not persuaded that the motion judge misdirected himself on the facts or the law.

Nor are we convinced that his discretionary decision to dismiss the application was so wrong as to amount to an injustice. [ 16 ] For these reasons, we dismissed the appeal with one set of costs in favour of the Board. The Council did not seek costs. JA JA JA