DIVISIONAL COURT FILE NO.: 270/04
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: CHICKEN FARMERS OF ONTARIO Plaintiff (Moving Party)
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CHUCK DROST, PETER DROST, DON DROST, JOE DROST, MARK DROST, NEW LIFE FARMS LTD., DON DROST ENTERPRISES LTD., JOE DROST LIMITED, VICTORY FARMS LTD., DROST FARMS LTD., and MARK DROST FARMS LTD. Defendants (Responding Parties)
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CHICKEN FARMERS OF CANADA Intervenor
BEFORE: Mr. Justice Whalen
COUNSEL: Geoffrey Spurr, for the Plaintiff (Moving Party) James McIlroy, for the Defendants (Responding Parties) David K. Wilson, for the Intervenor
HEARD: June 17, 2004
E N D O R S E M E N T
1This is a motion seeking leave to appeal the interlocutory decision of Dandie J. refusing the granting of an interim injunction.
2The applicable test for granting leave to appeal is found in Rule 62.02(4), namely that:
(a) there is a conflicting decision by another judge or court in Ontario which requires appeal consideration; or
(b) there is good reason to doubt the correctness of the subject order and the matter is of such importance that an appeal is merited.
3In respect of the conflict test, the respondents argued it was not proper to compare the decisions of Dandie J. and Taliano J. because they had considered very different remedies. In the latter, the issue was intervenor status, whereas in the former it was injunctive relief. As the respondents put it, it was an “apples and oranges” exercise to compare the decisions. There is some force to this argument. However, it is a relatively unique and unusual situation because the decisions were in respect of interlocutory proceedings within the same action.
4It is quite clear that Taliano J. concluded that the claim involved a substantial public interest. Hence he granted the Chicken Farmers of Canada intervenor status. On the other hand, Dandie J. viewed it as private litigation. Each judge therefore characterized the claim very differently, and those differing characterizations may have an important effect on how the case is pursued, the participation of the parties (at least of the intervenor) and the trial court’s approach to resolution. I am convinced that these differing legal characteristics also affected the way in which the claim for interim injunctive relief was considered. Therein lies a fundamental conflict between two judges of this court.
5I conclude that an appeal is merited to clarify this issue of the public/private nature of the case. It is a conflict of principle, not discretion, although once properly characterized, the operation of discretion may result in different considerations and conclusions.
6I also conclude that this conflict raises issues of correctness, making clarification by appeal of some importance.
7This action was launched because the respondents are alleged to have ignored a direction issued to them under provincial and federally delegated regulation governing the production, processing and marketing of chicken. But for this underlying legislation the plaintiff agency and intervenor would not exist and the claim would not be here.
8The legislation in question involves an integrated, co-operative, federal-provincial approach that has been established and accepted in Canada for decades. Because of this, I conclude there is good reason to doubt the correctness of Dandie J.’s decision that this case was one of private rather than public interest. He gave little or no consideration to the legislative issues in concluding as he did.
9Public law was also a basis of claim for interim injunction under section 13 of the Farm Products Marketing Act. Statute-based injunction is available where there has been marketing contrary to regulation. Dandie J. did not address this. In failing to do so, he likely erred. This is another basis to question the correctness of his decision both in direction and result. There is strong evidence that the respondents were marketing in contravention of the legislation. Yet none of this was addressed in Dandie J.’s reasons.
10The existence of a public interest may also have significant impact upon the court’s exercise of discretion in granting interim injunctive relief. Questions about the integrity of the legislated system come into play, changing the assessment of irreparable harm and balance of convenience. The court’s discretion may be more limited and the evidence (or lack thereof) relied on by the respondents may be of much less importance or effect.
11The impact of the presence of a public interest on the application of the legal tests and exercise of discretion in an application for injunctive relief has been discussed in a number of authorities: Fédération des producteurs de volailes du Québec c. Pelland, [2001] J.Q. No. 5828; Canada v. IPSCO Recycling Inc., 2003 FC 1518, [2003] F.C.J. No. 1950; British Columbia (Chicken Marketing Board) v. Reid, [2002] B.C.J. No. 2403; R.J.R. MacDonald Inc. v. Canada (Attorney General), [1994] S.C.J. No. 17.
12Again, all of this operates at the level of principle. It is not merely a question of exercise of discretion. If Dandie J. was incorrect in failing to recognize the public law nature of the claim (as I believe he was), then the principles operating on the exercise of discretion would be significantly different and a different result might well ensue. While I recognize that the same conclusion is not foreclosed, it would be very much less likely.
13The likely presence of a public interest combined with my concerns about the correctness of Dandie J.’s decision elevates the importance of the matter before me considerably. The public interest in a stable marketing system and the potential negative impact of a breach of that system on other producers and marketers makes it worthy of attention by appeal.
14For these reasons, the motion for leave to appeal is granted.
15The respondents argued that a different result in the interim injunction application would result in irreparable harm to them and so leave to appeal should not be granted. This presupposes the outcome of an appeal and any possible reconsideration by a motions judge in the result. An appeal will not cause irreparable harm to the respondent. The parties are urged to get the matter on for trial as soon as possible. That would be in everyone’s interest.
16The parties may address costs by written submissions of no more than 3 pages each. The applicants should serve and file their submissions within 7 days of receipt of these reasons, and the respondents within 7 days after receiving the last of the applicant’s submissions. The applicant’s written reply of no more than 1½ pages each (if necessary) should follow within 7 days thereafter if necessary.
W.L. WHALEN J.
DATE: 20040618