Association of Ontario Chicken Processors v. Agriculture, Food and Rural Affairs Appeal Tribunal et al.

[Indexed as: Association of Ontario Chicken Processors v. Agriculture, Food and Rural Affairs Appeal Tribunal]

63 O.R. (3d) 284

[2003] O.J. No. 330

Docket No. 273/02

Ontario Superior Court of Justice

Divisional Court

Blair R.S.J., Carnwath and J. MacDonald JJ.

January 31, 2003

Administrative law -- Judicial review -- Tribunals -- Jurisdiction -- Standard of review -- Agriculture, Food and Rural Affairs Tribunal having jurisdiction to establish a pricing formula and to fix prices for the [page285] production and marketing of live chickens in Ontario -- Tribunal having jurisdiction to order Ontario Farm Products Marketing Commission to amend its regulations -- Farm Products Marketing Act, R.S.O. 1990, c. F.9 -- Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16.

The Association of Ontario Chicken Processors ("AOCP") sought judicial review of decisions and orders of the Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal") made pursuant to the Ministry of Agriculture, Food and Rural Affairs Act ("MAFRAA"). The Tribunal's decisions concerned the production and marketing of live chickens in Ontario. The Tribunal established a specific pricing formula, fixed prices under the pricing formula and ordered the Ontario Farm Products Marketing Commission (the "Commission"), a statutory body under the Farm Products Marketing Act ("FPMA") to amend its Regulation 402 to implement this pricing formula. Under Regulation 402, the Commission had delegated certain regulatory powers to the Chicken Farmers of Ontario ("CFO"), which was a "local board" under the FPMA with broad regulatory control over the day-to-day production and marketing of live chickens in Ontario.

Under s. 16(1) and (2) of the MAFRAA, the Tribunal had authority to hear appeals from both the Commission and the CFO. The wording of s. 16(1) and (2) was nearly identical, with the difference that the Tribunal had jurisdiction to hear appeals from a regulation made by a local board but it had no comparable jurisdiction to hear appeals from a regulation of the Commission. However, in an interlocutory decision, the Tribunal ruled that it had the jurisdiction to direct the commission to amend or revoke its regulations. The Tribunal based its decision on s. 16(1) of the MAFRAA, which authorizes the Tribunal to order the Commission to take any action the Commission is authorized to take under the FPMA.

Held, the application for judicial review should be dismissed.

On an application for judicial review, in accordance with the "pragmatic and functional approach" adopted by the Supreme Court of Canada, a central question in ascertaining the standard of review is to determine the legislative intention in conferring jurisdiction on an administrative tribunal. In so determining, the court must look at the tribunal's role or function, the expertise of the tribunal, the purpose of the Act as a whole and the provision in particular, the existence of a privative clause, the nature of the problem as a question of law or fact, and the jurisdiction of the tribunal. None of these factors is dispositive and all of them must be weighed. Generally, a court will review an administrative tribunal decision on a jurisdictional issue using a correctness standard. However, it is not appropriate to simply label a question as jurisdiction; rather, the court must employ the Supreme Court of Canada's functional and pragmatic approach to determine the proper standard of review in any given case. In the immediate case, the factors supported a deferential standard of review and the appropriate standard was reasonableness simpliciter.

There was no merit in the submission that the Tribunal lacked jurisdiction to establish a pricing formula and to fix prices under the pricing formula. When called upon to review a decision of the Commission, the Tribunal may order the Commission to do anything the Commission is empowered to do under the FPMA in dealing with any appeal properly before it. Several provisions of the FPMA authorized the original decision of the Commission and the amendments to the Regulation passed by the Commission following the Tribunal's decision. On any scale from correctness to patent unreasonableness, the Tribunal did not exceed its jurisdiction by establishing a specific pricing formula, nor by fixing the starting [page286] price under the specific pricing formula. Further, the tribunal had the jurisdiction to order the Commission to amend its Regulations. Once a matter is properly before the Tribunal, s. 16(11) of the FPMA gives broad, remedial powers to the Tribunal, including the power to do anything that the Commission can do. This includes the power to direct the Commission to amend its regulations in order to carry out the policy of the legislation.

APPLICATION for a judicial review.

Cases referred to Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] S.C.J. No. 1 (Quicklaw); Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, 92 B.C.L.R. (2d) 145, 114 D.L.R. (4th) 385, 168 N.R. 321, 14 B.L.R. (2d) 217 (sub nom. Ivany v. British Columbia); Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 1222, [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, 226 N.R. 201 Statutes referred to Farm Products Marketing Act, R.S.O. 1990, c. F.9, ss. 1 "regulations", 2, 3, 4(1), 5(1), 7, 8 Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16, ss. 12, 14, 16, 17, 18 Rules and regulations referred to R.R.O. 1990, Reg. 402 ("Farm Products Marketing Act"), ss. 17-19 R.R.O. 1990, Reg. 403 ("Farm Products Marketing Act")

Scott Snider and Nicholas A. Richter, for applicant. No one appeared for the Agricultural, Food and Rural Affairs Appeal Tribunal. No one appeared for the Ontario Farm Products Marketing Commission. Howard Goldblatt and Geoffrey Spurr, for the Chicken Farmers of Ontario. James McIlroy, for the Canadian Restaurant and Foodservices Association. Arlen K. Sternberg, for the Ontario Independent Poultry Processors, respondents. Sara Blake, for the Attorney General of Ontario (intervenor).

[1] CARNWATH J.: -- The Association of Ontario Chicken Processors (the "AOCP") seeks judicial review of various decisions and orders of the Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal") concerning the production and marketing of live chicken in Ontario.

[2] The decisions and orders of the Tribunal at issue on this application were made pursuant to s. 16 of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16 (the "MAFRAA"), which empowers the Tribunal to hear and decide [page287] certain appeals from the Ontario Farm Products Marketing Commission (the "Commission") and from various local boards, including the Chicken Farmers of Ontario (the "CFO").

[3] There are three issues:

(a) Did the Tribunal exceed its jurisdiction by establishing a specific pricing formula for the marketing of chickens in Ontario?;

(b) did the Tribunal exceed its jurisdiction by fixing prices under the specific pricing formula?; and,

(c) did the Tribunal have jurisdiction to order the Commission to amend its Regulation 402 in order to implement the Tribunal's pricing formula as established?

The Roles of the Commission and of the CFO

[4] The Commission is a statutory body continued under s. 12 of the MAFRAA. The Commission has broad powers under ss. 3, 7 and 8 of the Farm Products Marketing Act, R.S.O. 1990, c. F.9 (the "FPMA") to regulate virtually all aspects of the production and marketing of agricultural products in Ontario.

[5] Local boards, such as the CFO, may be constituted under the FPMA by the Lieutenant-Governor-in-Council to administer plans for the control and regulation of the producing and marketing of farm products. There are numerous local boards and plans in Ontario. FPMA, ss. 4(1) and 5(1)(a).

[6] Pursuant to ss. 3(3) and 7(7) of the FPMA, the Commission may delegate some of its powers, in whole or in part, to a local board. In addition, s. 8 of the FPMA authorizes the Commission to make regulations "vesting in any local board any powers that the Commission considers necessary or advisable to enable such local board effectively to promote, regulate and control the producing or marketing of the regulated product". Pursuant to s. 8(3) of the FPMA, where the Commission vests such powers in a local board, the board may exercise those powers by making regulations or orders or issuing directions.

[7] The CFO is a local board continued under Regulation 403 under the FPMA. As contemplated by ss. 3(3), 7(7) and 8 of the FPMA, the Commission has delegated certain regulatory powers to the CFO, and those powers are set out in Regulation 402 under the FPMA. Under Regulation 402, the CFO has broad regulatory control over the day-to-day production and marketing of live chicken in Ontario, while the Commission retains an oversight and policy function pursuant to its remaining powers under the [page288] FPMA. (R.R.O. 1990, Reg. 403 ("Regulation 403"); R.R.O. 1990, Reg. 402 ("Regulation 402").)

[8] Among the powers retained by the Commission are the powers to conduct hearings and investigations and to settle disputes pursuant to ss. 3(1)(a)-(d) of the FPMA. Of particular relevance to this application is s. 3(1)(a), which provides:

3(1) The Commission may,

(a) subject to the regulations, investigate, adjust or otherwise settle any dispute relating to the marketing of a regulated product between producers and persons engaged in marketing or processing the regulated product;

(Emphasis added)

For the purposes of s. 3(1)(a), "regulations" are defined in s. 1 of the FPMA as "the regulations made under this Act", and would, therefore, include Regulations 402 and 403.

The Role of the Tribunal

[9] The Tribunal is a statutory body continued under s. 14 of the MAFRAA. Pursuant to s. 16 of the MAFRAA, the Tribunal is authorized to hear appeals from the Commission and from local boards, including the CFO. The Tribunal has no other statutory duties under the MAFRAA.

[10] The Tribunal's jurisdiction to hear appeals from the Commission is set out in s. 16(1) of the MAFRAA, which provides:

16(1) Subject to subsection (4) [which is not in issue here], if a person is aggrieved by an order, direction, policy or decision of the Commission or Director, made under the Farm Products Marketing Act or the Milk Act, that person may appeal to the Tribunal by filing with the Tribunal and sending to the Commission or Director written notice of the appeal.

[11] By contrast, the Tribunal's jurisdiction to hear appeals from a local board is set out in s. 16(2) of the MAFRAA, which provides:

16(2) Subject to subsections (4) and (5) [which are not in issue here], if a person is aggrieved by an order, direction, policy, decision or regulation made under the Farm Products Marketing Act by a local board or under the Milk Act by a marketing board, that person may appeal to the Tribunal by filing with the Tribunal and sending to the local board or marketing board written notice of the appeal.

(Emphasis added)

[12] Although s. 16(1) and (2) of the MAFRAA are nearly identical in wording, there is one key difference in wording which is central to the issues on this application. That difference is that while the Tribunal has jurisdiction under s. 16(2) to hear appeals [page289] from a regulation made by a local board, such as the CFO, it has no comparable jurisdiction under s. 16(1) to hear appeals from a regulation of the Commission.

[13] The powers of the Tribunal on an appeal are set out in s. 16(11) of the MAFRAA, which provides:

16(11) Upon an appeal to the Tribunal under subsection (1) or (2), the Tribunal may by order direct the Commission, the local board, the marketing board or the Director, as the case may be, to take such action as it or he or she is authorized to take under the Farm Products Marketing Act or the Milk Act and as the Tribunal considers proper, and for this purpose the Tribunal may substitute its opinion for that of the Commission, the local board, the marketing board or the Director.

[14] Under s. 16(12) of the MAFRAA, the Tribunal is required to send notice of its decision and reasons on an appeal to the parties and the Minister within 20 days after the hearing is completed.

[15] Section 17 of the MAFRAA gives aggrieved persons the ability to seek reconsideration of the actions of the Commission and its delegated bodies, as follows:

17(1) Where a person is aggrieved by an order, direction, policy or decision of the Commission, a local board, a marketing board or the Director, that person may, by written application therefor, request a reconsideration of the order, direction, policy or decision.

(3) Where any person is affected by any regulation made by a local board or a marketing board, he or she may request the local board or marketing board, as the case may be, to reconsider the regulation by serving upon the local board or the marketing board written notice of the request.

(4) Where a person is affected by any regulation made by the Commission, that person may request the Commission to reconsider the regulation by serving upon the Commission written notice of the request.

The Role of the Minister

[16] Under s. 18 of the MAFRAA, the Minister may review the Tribunal's decision. On this application, the relevant provisions are:

18(1) Within thirty days after receipt by the Minister of a decision of the Tribunal under this Act and the reasons therefor, if any, or within such longer period as may be determined by the Minister within such thirty-day period, the Minister may,

(a) confirm, vary or rescind the whole or any part of the decision;

(b) substitute for the decision of the Tribunal such decision as the Minister considers appropriate; or

(c) by notice to the Tribunal require the Tribunal to hold a new hearing of the whole or any part of the matter appealed to the Tribunal and reconsider its decision. [page290]

(3) A decision of the Tribunal that has been confirmed, varied or rescinded under clause (1)(a) or that has been substituted for the decision of the Tribunal under clause (1) (b) is final.

The Appeals Before the Tribunal

[17] The appeals before the Tribunal in this case were from a decision of the Commission dated December 1, 1999, regarding the allocation of live chicken to Ontario processors by producers. That decision was rendered after a hearing by the Commission during September and October 1999. (Application Record, Tab 2, pp. 14-15.)

[18] As recognized by the Tribunal, the hearing before the Commission proceeded under s. 3(1)(a) of the FPMA, which, as noted in para. 9 above, authorizes the Commission to investigate, adjust or settle any dispute relating to the producing or marketing of a regulated product. (Application Record, Tab 2, p. 157.)

[19] In addition to the appeals of the Commission's decision, there were also appeals from various decisions, orders, directions and policies of the CFO made subsequent to the Commission's decision. (Application Record, Tab 2, pp. 10, 12 and 14-15.)

[20] All the appeals were consolidated by the Tribunal and proceeded as a hearing de novo. The appeals were heard over approximately 23 days between February 26 and October 25, 2001. In addition, several preliminary issues were addressed during pre-hearing conferences on four days between June 12, 2000, and February 6, 2001. (Application Record, Tab 2, pp. 12 and 15-16.)

[21] The issues to be addressed in the appeals were defined by the Tribunal as follows:

(a) Total Ontario Domestic Supply Determination, including issues relating to volume setting;

(b) Individual Processor Allocation, including what constitutes a processor and who can purchase live chicken;

(c) Treatment of New Entrants;

(d) Category Requirements;

(e) Price Determination; and

(f) Export Policy.

As the Tribunal summarized its task, "the Tribunal is to design a methodology for determining the amount of chicken to be grown [page291] in Ontario, the allocation of chicken to existing and new processors, the fulfillment of market needs within categories of chicken, the pricing of live chicken and an export policy." (Application Record, Tab 2, pp. 19-20.)

[22] At the outset of the hearing on February 26, 2001, the AOCP raised a preliminary issue regarding the Tribunal's jurisdiction to establish a specific pricing formula for live chicken. The AOCP's position was that the existing statutory scheme required that pricing issues were to be negotiated and arbitrated by the parties in accordance with ss. 17-19 of Regulation 402. These sections provided for the establishment of a negotiating agency made up of four members from the AOCP and four members from the CFO. They further provided for the method of negotiation and the method of arbitration failing a successful negotiation. (Application Record, Tab 2, pp. 154-56.)

[23] The AOCP further argued that the Tribunal did not have jurisdiction to amend these regulations because there is no jurisdiction under s. 16(1) of the MAFRAA for the Tribunal to hear appeals from a Commission regulation. Accordingly, the AOCP argued that the Tribunal did not have jurisdiction to order the Commission to amend its regulations. (Application Record, Tab 2, p. 156.)

[24] The Tribunal issued an interlocutory decision on October 12, 2001, in which it ruled it had the jurisdiction to direct the Commission to amend or revoke its regulations. The Tribunal based its decision on s. 16(11) of the MAFRAA which authorizes the Tribunal to order the Commission to take any action the Commission is authorized to take under the FPMA. The Tribunal concluded the Commission had the power in conducting a hearing under s. 3(1)(a) of the FPMA to amend ss. 17-19 of Regulation 402 if it thought it appropriate to do so. (Application Record, Tab 2, pp. 157-58.)

[25] The Tribunal further held that its jurisdiction to order the Commission to amend its regulations under s. 16(11) of the MAFRAA was not circumscribed by the omission of the word "regulation" in s. 16(1). (Application Record, Tab 2, pp. 157-58.)

[26] On January 2, 2002, the Tribunal issued its initial decision on the appeals. On the issue of price determination, the Tribunal ruled that a pricing formula should be used to determine the price of live chickens to producers and that the pricing formula would have three variables: chick price, feed price and producer margin. The Tribunal left it to the parties to negotiate the details of the pricing formula within the framework established by the Tribunal. (Application Record, Tab 2, pp. 105-07.) [page292]

[27] In order to implement its pricing formula, the Tribunal ordered the Commission to amend ss. 17-19 of Regulation 402 to incorporate the Tribunal's pricing formula. (Application Record, Tab 2, pp. 105-07, 111-12 and 157.)

[28] When the parties were unable to agree on the prices to be included in the Tribunal's pricing formula, the Tribunal received written submissions on this issue. On February 26, 2002, the Tribunal issued a further decision and order in which it fixed the starting price for live chicken under its pricing formula by fixing prices for each of the variables under the formula -- producer margin, chick price and feed price -- and then adding those prices together to reach a price to be used in the first quota period to which the Tribunal's decisions and orders were to apply. As stated by the Tribunal:

The formula to be used to determine the live price of chicken is:

Price = producer margin + chick price + feed price

The starting producer margin is $0.3641 as described under item 1 (above). The parties do not dispute the chick price. The chick price established by the Ontario Broiler Hatching Egg and Chick Commission is provided in the CFO submission and was $0.3008 per kilogram in each of Quota Periods A-32-A- 43 (inclusive). Parties note that the starting price for feed cannot be established, as feed mills have not yet provided the relevant data. In the absence of that information, the Tribunal finds that the starting price for feed shall be $0.4999, which is the average of the feed prices used by the CFO in Quota Periods A-42 and A-43.

The starting price is: $0.3641 + $0.3008 + $0.4999 = $1.1648 per kilogram

(Application Record, Tab 3, pp. 163-66.)

[29] On March 5, 2002, and April 3, 2002, the Tribunal amended and varied its decisions and orders to make changes to the producer margin and starting price for live chickens under the Tribunal's pricing formula and to change the implementation date for the pricing formula from Quota Period A-46 to A-48. As a result of those decisions and orders, the starting price for live chicken was increased to $1.1797 per kilogram. (Application Record, Tabs 4 and 5.)

[30] Following the required referral of the Tribunal's decision to the Minister of Agriculture, the (then) Minister told the parties by letter dated March 15, 2002, that he did not intend to vary in any way the decision of the Tribunal. The Tribunal's decisions of February 26 and March 5, 2002, which varied the original decision of January 2, 2002, were also referred to the Minister in accordance with the requirements of the Act. The Minister responded, saying that he was aware of the decisions of February 26 and March 5 when he confirmed the original decision of [page293] January 2 and further confirmed that the decisions of February 26 and March 5 would stand without variance. (Record of the Tribunal, Vol. 2, Tabs 36 and 37.)

[31] Following the decisions of the Minister to confirm, in effect, the decisions of the Tribunal, the Commission did not amend Regulation 402 until July 30, 2002. On November 20, 2002, the Commission made further amendments to Regulation 402 to amend the start dates to Quota Period A-52 in an attempt to provide for a transitional period.

The Positions Taken by the Parties

[32] The applicant submits:

(a) the Tribunal had no jurisdiction under the statutory scheme to establish a specific pricing formula for live chicken;

(b) the Tribunal had no jurisdiction to fix the price of live chicken under its formula by fixing prices for each of the variables under the formula and then adding those prices together to reach a fixed price;

(c) the Tribunal had no jurisdiction under s. 16(1) and (11) of the MAFRAA to order the Commission to amend Regulation 402.

[33] In considering the issues raised in the preceding paragraph, the applicant submits that the standard of review is correctness.

[34] The respondents' submissions to the positions taken by the applicant cover a wide spectrum with varying emphasis placed on certain sections of the statutory scheme. Nevertheless, broadly put, the respondents' position can be stated as follows:

(a) the hierarchical nature of the statutory scheme and the intertwining provisions of the MAFRAA and the FPMA establish a legislative intention to give the Tribunal jurisdiction to establish a specific pricing formula for live chicken;

(b) the Tribunal did not fix the price of live chicken under its formula but, rather, established a starting point for the subsequent calculation of the price for live chicken as the prices for the variables under the formula changed from Quota Period to Quota Period. In any event, the respondents submit that were it necessary to fix the price of live chicken, the Tribunal had the jurisdiction to do so; [page294]

(c) the respondents submit that the Tribunal's jurisdiction must be examined not only under s. 16(1) and (2) of the MAFRAA, but that regard must be given to s. 16(11) of the MAFRAA; to the method by which appeals may be taken from decisions of local boards and the Commission; and to the intention of the legislature as evidenced by the complex statutory scheme devised to regulate the live chicken industry in Ontario in all of its ramifications.

[35] Some respondents submit that the standard of review for decisions of the Tribunal is, at the least, reasonableness simpliciter. Others submit the standard is patent unreasonableness.

The Standard of Review

[36] In accordance with the "pragmatic and functional" approach adopted by the Supreme Court of Canada, a central question in ascertaining the standard of review is to determine the legislative intention in conferring jurisdiction on an administrative tribunal. In so determining, the court must look at the tribunal's role or function, the expertise of the tribunal, the purpose of the Act as a whole and the provision in particular, the existence of a privative clause, the nature of the problem as a question of law or fact, and the jurisdiction of the tribunal. None of these factors is dispositive and all of them must be weighed. Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, 114 D.L.R. (4th) 385, at p. 589 S.C.R., p. 404 D.L.R.; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, at pp. 1003-12 S.C.R., pp. 208-15 D.L.R.; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] S.C.J. No. 1 (Quicklaw) at para. 21.

The tribunal's role or function

[37] By s. 16(1) and (11) of the MAFRAA, the legislature has granted the Tribunal broad jurisdiction regarding appeals from Commission orders, directions, decisions or policies, and has specified that the Tribunal may, by order, direct the Commission to take such action as the Commission is authorized to take under the FPMA. The legislature has indicated that the Tribunal has the power to "stand in the shoes" of the Commission, which, itself, has broad supervisory powers and a role in balancing competing interests. We find the Tribunal to be a supervisory body that engages in a polycentric balancing of competing interests with a managing and supervisory function. This finding weighs in favour of a deferential standard of review. [page295]

The tribunal's expertise

[38] In Pushpanathan, speaking for the majority of the Supreme Court of Canada, Bastarache J. stated:

Making an evaluation of relative expertise has three dimensions: the court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise. Many cases have found that the legislature has intended to grant a wide margin for decision-making with respect to some issues, while others are properly subject to a correctness standard. . . .

Once a broad expertise has been established, however, the Court is sometimes prepared to show considerable deference even in cases of highly generalized statutory interpretation where the instrument being interpreted is the tribunal's constituent legislation. . . .

In short, a decision which involves in some degree the application of a highly specialized expertise will militate in favour of a high degree of deference, and towards a standard of review at the patent unreasonableness end of the spectrum.

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, at pp. 1007-08 S.C.R., pp. 211-12 D.L.R.

[39] The issues before the Tribunal are described in the Tribunal decision as follows:

-- Total Ontario Domestic Supply Determination, including issues relating to volume setting

-- Individual Processor Allocation, including what constitutes a processor and who can purchase live chicken

-- Treatment of New Entrants

-- Category Requirements

-- Price Determination

-- Export Policy

The list of issues should not be interpreted restrictively. The nature and scope of the hearing is policy based and generic in nature though, of necessity, it will ultimately result in and include details relating to implementation. This list of issues is intended to assist in the organization and focus of the hearing and is subject to the control of the panel hearing the appeals.

In summary, the Tribunal is to design a methodology for determining the amount of chicken to existing and new processors, the fulfillment of market needs within categories of chicken, the pricing of live chicken and an export policy.

(Application Record of the applicant, pp. 19-20.) [page296]

[40] Four Tribunal members with a specialized agricultural background held hearings on 32 days and heard 19 witnesses. The Tribunal's decision involved, in some degree, the application of a highly-specialized expertise. This finding weighs in favour of a deferential standard of review.

The purpose of the legislation

[41] In Pushpanathan, speaking for the majority of the Supreme Court of Canada, Bastarache J. stated:

As Iacobucci J. noted in Southam, supra, at para. 50, purpose and expertise often overlap. The purpose of a statute is often indicated by the specialized nature of the legislative structure and dispute-settlement mechanism, and the need for expertise is often manifested as much by the requirements of the statute as by the specific qualifications of its members. Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies of court supervision diminishes.

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, at p. 1008 S.C.R., p. 212 D.L.R.

[42] In Pushpanathan, speaking for the majority of the Supreme Court of Canada, Bastarache J. also noted that the fact that a tribunal plays a role in policy development is significant, and further stated:

That legal principles are vague, open-textured, or involve a 'multi-factored balancing test' may also militate in favour of a lower standard of review (Southam, at para. 44). These considerations are all specific articulations of the broad principle of 'polycentricity' well known to academic commentators who suggest that it provides the best rationale for judicial deference to non-judicial agencies. A 'polycentricic issue is one which involves a large number of interlocking and interacting interests and considerations'. (P. Crane, An Introduction to Administrative Law (3rd ed., 1996), at p. 35). While judicial procedure is premised on a bipolar opposition of parties, interests, and factual discovery, some problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many parties. Where an administrative structure more closely resembles this model, courts will exercise restraint. The polycentricity principle is a helpful way of understanding the variety of criteria developed under the rubric of the "statutory purpose".

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, at p. 1009 S.C.R., pp. 212-13 D.L.R.

[43] The Tribunal decision dealt with six complex issues in the agricultural sector involving a number of interlocking and interacting interests and considerations. We find these considerations [page297] are "specific articulations of the broad principle of polycentricity". This finding weighs in favour of a deferential standard of review.

The privative clause

[44] In Pushpanathan, Bastarache J. adopted the following definition of a privative clause:

A full privative clause is 'one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded'.

Bastarache J. further stated:

. . . the presence of a 'full' privative clause is compelling evidence that the court ought to show deference to the tribunal's decision, unless other factors strongly indicate the contrary as regards the particular determination in question . . .

At the other end of the spectrum is a clause in an Act permitting appeals, which is a factor suggesting a more searching standard of review.

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, at p. 1006 S.C.R., p. 210 D.L.R.

[45] In the matter before us, the legislature has provided no statutory right of appeal from Tribunal decisions. Instead of judicial review, the statute provides for ministerial review. Section 18(2) of the MAFRAA states that a decision of the Tribunal is "final" unless the Minister decides to intervene. Section 18(3) goes on to say that if the Minister confirms a Tribunal decision, the Tribunal decision is "final". As already noted earlier in these reasons, the Minister, on two occasions, refused to vary or rescind the decision of the Tribunal, refused to substitute for the decision of the Tribunal such decision as the Minister considered appropriate and refused to require the Tribunal to hold a new hearing. We can come to no other conclusion than that the Minister confirmed the decision of the Tribunal and that it was final, subject only to judicial review. The privative clause weighs in favour of a deferential standard of review.

The nature of the problem as a question of law or fact

[46] In Pushpanathan, Bastarache J. noted that "determinations of abstract principles with wide application is a factor militating against deference", and further stated:

. . . even pure questions of law may be granted a wide degree of deference where other factors of the pragmatic and functional analysis suggest that such deference is the legislative intention . . . [page298]

There is no clear line to be drawn between questions of law and questions of fact, and, in any event, many determinations involve questions of mixed law and fact. An appropriate litmus test was set out in Southam, supra, at para. 37, by Iacobucci J., who stated:

Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear whether the dispute is over a general proposition that might qualify as a principle of law or over a particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future.

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, at pp. 1019 and 1012 S.C.R., pp. 221 and 213-14 D.L.R.

[47] We find nothing in the present case that could be characterized as a dispute over a general proposition that might qualify as a principle of law. The applicant is, rather, seeking judicial review regarding a provincial Tribunal's chicken-pricing formula. We mean no disrespect to the chicken industry in Ontario when we say that the application involves a particular set of circumstances, under a specialized statutory scheme that is focused on a specific industry sector and is, therefore, not apt to be of much interest to judges and lawyers in the future. This finding weighs in favour of a deferential standard of review.

Analysis

[48] We turn to the applicant's submission that the Tribunal lacked jurisdiction to establish a specific pricing formula and to fix prices under its specific pricing formula. Generally, a court will review an administrative tribunal's decision on a jurisdictional issue using a correctness standard. However, it is not appropriate to simply label a question as "jurisdictional" and to conclude that a correctness standard must be applied. Rather, the court must employ the Supreme Court of Canada's "functional and pragmatic" approach to determine the proper standard of review in any given case. We find the standard of review to be reasonableness simpliciter.

Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] S.C.J. No. 1 (Quicklaw) at paras. 21-25.

[49] In order to understand the Tribunal's decision with respect to a specific pricing formula and fixing prices under that formula, it is necessary to review events leading up to the Tribunal hearing. As a result of mounting concerns with the allocation system in the marketing of live chicken, the Commission established a Vision Committee in 1998 with representatives from across the industry. The Vision Committee was to solve the concerns and reach consensus on various aspects of the allocation system, [page299] including the pricing of live chicken. In particular, the Vision Committee was asked to consider "formula pricing", the pricing method ultimately selected by the Commission and the Tribunal at the subsequent hearings. (Applicant's Record, Tab 2, p. 14.)

[50] Efforts by the Vision Committee to reach consensus amongst the various industry representatives failed. At that point, the Minister asked the Commission to try and facilitate an industry-based solution to the dispute. Nevertheless, consensus among the producers and processors was not reached. In August 1999, the Commission then issued a Notice of Hearing in order to resolve the dispute concerning the various components of the allocation system. The Notice of Hearing was issued under s. 3(1)(a) of the FPMA. As noted earlier, the section empowers the Commission to address any dispute relating to the marketing of live chicken between producers and persons engaged in marketing or processing.

[51] The Commission hearing took place in September 1999 and present were the main industry components -- the CFO, the AOCP, the Ontario Independent Poultry Producers (the "OIPP"), the Further Poultry Processors Association and the Canadian Restaurant and Foodservices Association (the "CRFA"). The Commission heard five days of evidence and submissions on the six key aspects of the allocation system, that is, total supply determination; individual processor allocation; treatment of new entrants; category requirements; price determination; and export policy.

[52] In December 1999, the Commission issued its decision, modifying the method used up to that time to establish pricing of live chicken. The old method included a negotiating agency made up of producers and processors who periodically negotiated, and if necessary, arbitrated the price of live chicken. The Commission's modification of that method maintained certain periodic pricing negotiations and arbitrations, but mandated that they should occur within the framework of a formula price. The Commission decided the formula would be based on three components: (a) feed price; (b) chick price; and, (c) producer margin. The negotiations and arbitrations would focus on the producer margin component. This pricing method selected by the Commission was also ultimately selected by the appeal Tribunal on the subsequent appeal. (Applicant's Record, Tab 2, pp. 105-12.)

[53] In May 2000, the CFO appealed the Commission's decision. Three other parties then delivered Notices of Appeal -- the AOCP, the OIPP and the CRFA. The CFO, AOCP and OIPP appeals were pursuant to s. 16(1) of the MAFRAA. The CRFA [page300] appeal was an appeal of the CFO policies and decisions relating to the allocation system under s. 16(2).

[54] As noted earlier, the Tribunal hearing was a thorough, detailed hearing de novo on all six aspects of the allocation system the Commission had decided upon, including pricing. With respect to pricing, all the parties, including the AOCP, agreed there should be a formula approach to pricing used for purposes of subsequent pricing negotiations and arbitrations. (Applicant's Record, Tab 2, pp. 35, 105.)

[55] The dispute between the parties was over the details of the formula, including whether a wholesale market component should be part of that formula. At the hearing before the Tribunal, the AOCP "urged the Tribunal to allow the parties some time to negotiate the specific details of a pricing formula and to specify how a formula is to be developed if the parties fail to reach a negotiated agreement". This is precisely what the Tribunal decided at the conclusion of the hearing. (Applicant's Record, Tab 2, pp. 91, 105, 112.)

[56] Over the course of the hearing, the Tribunal heard an extensive amount of detailed and expert evidence concerning pricing and the specific components of the pricing formula. (Applicant's Record, Tab 2, pp. 20-90.)

[57] The Tribunal issued its 104-page decision in January 2002. The decision deals extensively with each of the six different aspects of the allocation system. The Tribunal's decision on pricing was basically the same as that arrived at by the Commission and maintained the existing system of negotiation and arbitration, with modifications.

[58] The Tribunal specifically held that it "supports the establishment of price by negotiation/arbitration". The Tribunal ordered a continuation of negotiation and arbitration to set pricing to be conducted within the framework of a formula pricing approach. The Tribunal concluded that chick price, feed price and producer margin would be the three components of that formula and specifically provided for periodic negotiations and arbitrations of the producer margin component. (Applicant's Record, Tab 2, pp. 105-07, 111-12.)

[59] As had been urged by the AOCP, the Tribunal allowed the parties a period of six weeks after the release of its decision to negotiate some of the fine details of the formula, and the starting price that would be in effect for the first 16 weeks under the new allocation system. The Tribunal ordered that if the parties were unable to agree on any of those details, then written submissions could be made and the Tribunal would decide those remaining issues. As on prior occasions, the parties were unable to agree on many of the details and written submissions were made to the [page301] Tribunal which then decided those issues. (Applicant's Record, Tab 2, p. 112 and Tab 3, p. 159.)

[60] Following the Tribunal's decision, the AOCP asked the Minister to review that decision twice under s. 18(1) of the MAFRAA -- once after the main decision and a second time after the Tribunal decided the details of the price formula and starting price. When the Minister subsequently confirmed the decisions, the AOCP commenced this application for judicial review in May of 2002.

[61] We find no merit in the applicant's submission that the Tribunal lacked jurisdiction to establish a specific pricing formula and to fix prices under its specific pricing formula. In arriving at this conclusion, we have identified several specific provisions of the FPMA which authorize the original decision of the Commission and the amendments to the Regulation passed by the Commission following the Tribunal's decision.

[62] First, s. 7(1)18 of the FPMA specifically states the Commission has the power to make regulations "providing for the control and regulation of the producing or marketing of any regulated product, including the times and places at which the regulated product may be produced or marketed". Any decisions which establish a price formula relate to the control and regulation of the marketing of chickens, which is a regulated product.

[63] Second, s. 7(1)19 of the FPMA authorizes the Commission to make regulations "providing for the control and regulation of agreements entered into by producers of a regulated product with persons engaged in marketing or processing the regulated product . . .". The establishment of a pricing formula controls and regulates agreements between producers and the marketers or processors of live chicken, which is a regulated product.

[64] Third, under s. 7(1)27 and 29 of the FPMA, the Commission has wide powers to determine the rules and procedures with respect to negotiations and arbitration conducted by negotiating agencies. The Commission is given the power to provide for arbitration of matters not settled by agreement and to determine the practice, procedures and method of dispute resolution of arbitrators. Establishing a pricing formula which would govern the conduct of an arbitration is within the Commission's authority under these provisions.

[65] Fourth, and most compelling, s. 7(1)43 of the FPMA gives the Commission a general power to enact regulations "respecting any matter necessary or advisable to carry out effectively the intent and purpose of the Act". Given the Commission's conclusions about the necessity for a pricing formula that would [page302] address all issues relating to both supply and price, we find its conclusions fall within the general power of the Commission to carry out the purpose of [the] FPMA set out in s. 2 of the Act, that is, "the control and regulation in any or all aspects of the producing and marketing within Ontario of farm products . . .".

[66] We find the Commission's decision to be entirely in keeping with the wording of the legislation. When called upon to review a decision of the Commission, the Tribunal may order the Commission to do anything the Commission is empowered to do under the FPMA in dealing with any appeal properly before it and places no restriction on these powers. Section 16(11) specifically states that the Tribunal may, by order, direct the Commission to take such action as it is authorized to take under the FPMA. We can come to no other conclusion than that the Commission had the power to establish a specific pricing formula and to fix a price by which to initiate formula pricing for the first Quota Period. In exercising its functions of review and remedial action, the Tribunal is clothed with the authority to do and require to be done anything the Commission can do. On any scale of review from correctness to patent unreasonableness, we find the Tribunal did not exceed its jurisdiction by establishing a specific pricing formula, nor by fixing the starting price under the specific pricing formula.

[67] We turn then to the third submission of the applicant that the Tribunal had no jurisdiction to order the Commission to amend its Regulation 402 in order to implement the Tribunal's pricing formula as established. The applicant submits that since there is no reference to "regulation" in s. 16(1) of the MAFRAA, no appeal can be taken from a Commission regulation to the Tribunal. Therefore, the applicant submits, the Tribunal has no power to order the Commission to amend its Regulations. We reject this submission.

[68] There is indeed a distinction between s. 16(1) and s. 16(2) of the MAFRAA, as submitted by the applicant. Section 16(2) permits an appeal of a local board regulation to the Tribunal. However, it must be remembered that s. 16(5) of the MAFRAA provides that no appeal may be taken from a local board regulation unless the appellant has first applied to the local board for a hearing, and the local board has refused to grant, in whole or in part, the relief requested. Before a local board regulation can be appealed to the Tribunal, the local board must have dealt with the issue in a hearing, a hearing initiated by the appellant.

[69] The route available to someone aggrieved by a regulation passed by the Commission is different. Under s. 16(1), no direct [page303] appeal is permitted. Rather, any person affected by a Commission regulation may request the Commission to reconsider the regulation (s. 17(4)). Upon such a request, the Commission must hold a hearing or afford the opportunity of a hearing to the would-be appellant.

[70] In the event the Commission confirms the challenged regulation, following the reconsideration under s. 17(4), then, and only then, can the would-be appellant appeal the Commission's decision not to reconsider the regulation, pursuant to s. 16(1). In this fashion, a person aggrieved can have a Commission regulation reviewed by the Tribunal.

[71] As noted above, in the matter before us there was no appeal of a Commission regulation before the Tribunal. Rather, there was an appeal of a Commission decision made under the broad powers of s. 3(1)(a) of the FPMA. That decision was properly before the Tribunal, thereby giving it jurisdiction to exercise the powers granted to it by s. 16(11).

[72] Once a matter is properly before the Tribunal, we find that s. 16(11) gives broad, remedial powers to the Tribunal, including the power to do anything or order anything that the Commission can do. This includes the power to direct the Commission to amend its regulations in order to carry out the policy of the legislation. Section 16(11) is one of the essential powers in the hierarchical scheme for the review of policy decisions.

[73] We find the applicant's submission would frustrate the hierarchical scheme of the legislation. Whatever the action taken by a local board or by the Commission, the legislation contemplates that the action may be reviewed by the Tribunal and the Tribunal's decision, may in turn, be reviewed by the Minister for confirmation or otherwise. On the applicant's view, a Commission order requiring a certain action to be taken would be subject to review by the Tribunal under s. 16(1); a Commission regulation requiring the identical action to be taken would be immune from review by the Tribunal. We find this to be contrary to the legislative intent. On any standard of review, from correctness to patent unreasonableness, we find the Tribunal had the power to direct the Commission to amend its regulation.

[74] The application is denied.

[75] The parties may make written submissions with respect to costs within 21 days.

Order accordingly. [page304]