Allan et al. v. Attorney General for the Province of Ontario et al.

[Indexed as: Allan v. Ontario (Attorney General)]

85 O.R. (3d) 654

Court of Appeal for Ontario,

MacPherson, Sharpe and Rouleau JJ.A.

May 12, 2006

Appeals -- Jurisdiction -- Applicants bringing application for judicial review of decision of Minister of Agriculture and challenging that decision on both administrative law and constitutional grounds -- Application dismissed by Divisional Court -- Applicants' appeal to Court of Appeal quashed -- Section 6(1) of Courts of Justice Act determinative -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1). [page655]

The Dairy Farmers of Ontario ("DFO") was delegated the power to make regulations with respect to the production and marketing of milk within Ontario, and to exempt any persons from the requirements set out in those regulations, and was authorized to require that milk be marketed on a quota basis and to regulate the fixing and allotment of quota. DFO made a regulation requiring that all milk producers be licensed by it, that all milk be marketed to it and that all milk be marketed on a quota basis. The Agriculture, Food and Rural Affairs Tribunal (the "Tribunal") ordered DFO to submit a proposed export plan for subsidized milk to the federal Department of Foreign Affairs and International Trade for an opinion. DFO sought review of the Tribunal's decision by the Minister of Agriculture and Food pursuant to s. 18 of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16. The Minister rescinded the Tribunal's decision. The effect of that decision was to require the applicants to hold quota and sell their milk to DFO. The applicants brought an application for judicial review of the Minister's decision. They challenged the decision on administrative law grounds and also alleged that the decision approving the DFO program was an ultra vires attempt by the Province of Ontario to regulate milk exports. As the applicants exported all of their product from the province, they argued that DFO had no authority under the Constitution to apply the milk marketing regulation to them. The application was dismissed. The applicants appealed.

Held, the appeal should be quashed.

Section 6(1) of the Courts of Justice Act was determinative. The Divisional Court properly decided the entire matter as the Divisional Court. The applicants' challenge to the constitutional validity of the underlying regulation and statute was properly before the Divisional Court as an aspect of the judicial review application.

APPEAL from the decision of the Divisional Court (2005), 2005 25770 (ON SCDC), 76 O.R. (3d) 616, [2005] O.J. No. 3083, dismissing an application for judicial review.

Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 [as am.] Ministry of Agriculture of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16, s. 18 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 14 [as am.]

Shannon Chace-Hall, for Ministry of Attorney General for Ontario.

Peter R. Greene and Michael Osborne, for applicants (appellant) (responding party).

Geoffrey Spurr, for Dairy Farmers of Ontario.

[1] Endorsement by THE COURT: -- We agree with the Attorney General's submission that this appeal must be quashed. The judgment under appeal is a decision of the Divisional Court and s. 6(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 is determinative. The Divisional Court properly decided the entire matter [page656] as the Divisional Court. The challenge to the constitutional validity of the underlying regulation and statute was properly before the Divisional Court as an aspect of the application for judicial review and it is too late for the appellant to reconstitute the matter as a Rule 14 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] application before a judge of the Superior Court. Costs to the Attorney General fixed at $750 and to the Dairy Farmers of Ontario fixed at $250, inclusive of GST and disbursement.

Appeal quashed.