T-1730-96
Her Majesty in Right of Alberta (Applicant)
v.
Canadian Wheat Board (Respondent)
Indexed as: Albertav. Canada (Wheat Board) (T.D.)
Trial Division, Gibson J."Calgary, September 16, 17; Ottawa, October 31, 1997.
Federal Court jurisdiction — Trial Division — Judicial review of Canadian Wheat Board's grain delivery program — Federal Court Act, s. 18 giving Court jurisdiction to grant relief against any federal board, commission or other tribunal — S. 2 definition of —federal board, commission or other tribunal— including any body exercising jurisdiction conferred by Act of Parliament — In establishing grain delivery program, Board federal board, commission or other tribunal — Power to establish grain delivery program deriving directly from Canadian Wheat Board Act — Central to Board's function — S. 18.1 permitting anyone directly affected by —matter— in respect of which relief sought to apply for judicial review — Board's objective directed to implementation of public policy — As such, not subject to judicial review — Parliament not intending judicial review of such programs when enacting Federal Court Act, ss. 18, 18.1.
Administrative law — Judicial review — Certiorari — Judicial review of Canadian Wheat Board's grain delivery program — Program aimed at orderly marketing of Canadian grain — Directed at implementation of broad public policy — Not matter subject to judicial review — Application dismissed on merits — That program neither relieving producers from all uncertainty nor resulting in Board taking all risks of downward turns in markets neither refusal to exercise jurisdiction nor other error in respect of which judicial review may be sought.
Practice — Parties — Standing — Crown in right of province lacking standing to bring application for judicial review of Canadian Wheat Board's grain delivery program — Standing acquired: as person —directly affected— by matter in respect of which relief sought under Federal Court Act, s. 18.1; on basis of public interest; or as of right — Applicant not —directly affected— — Mere interest insufficient to establish direct effect — Public interest standing requiring no other reasonable, effective way matter could come before Court — Grain farmers directly affected by grain delivery program having access to Court, but none joined as applicants — Parliament expressly conferring standing on Attorney General under s. 18.1 — Failure to grant equivalent standing to provincial attorneys general not oversight.
Agriculture — Judicial review of Canadian Wheat Board's grain delivery program — Program directed at implementation of public policy not amenable to judicial review — Crown in right of province lacking standing to bring application — Application dismissed on merits — That program neither relieving producers from all uncertainty nor resulting in Board taking all risks of downward turns in markets neither refusal to exercise jurisdiction nor other error in respect of which judicial review may be sought.
This was an application for judicial review of the Canadian Wheat Board's grain delivery program, and an application to strike the originating notice of motion on the grounds that the applicant had no standing because it was not "directly affected" by the matter in respect of which relief was sought; the originating notice of motion was not in respect of a single decision, order or other "matter"; and it failed to disclose a reasonable cause of action. Federal Court Act , section 18 gives the Trial Division exclusive original jurisdiction to grant relief against any "federal board, commission or other tribunal". Section 2 defines a "federal board, commission or other tribunal" as including any body exercising jurisdiction conferred by an Act of Parliament. Subsection 18.1(1) provides that an application for judicial review may be made by the Attorney General or by anyone "directly affected" by the "matter" in respect of which relief is sought.
The applicant argued that, in the assignment and management of quotas through the program and its two major components (the acreage-based and delivery contracts components), the respondent was failing to fulfil certain of its statutory obligations under the Canadian Wheat Board Act.
The issues were (1) whether the Board was a "federal board, commission or other tribunal"; (2) whether the grain delivery program was a "matter" in respect of which judicial review lies: (3) whether the applicant was "directly affected" by the matter; and (4) whether the manner in which the Board operated its grain delivery program was within its jurisdiction as defined by the Act.
Held, the motion to strike should be allowed and the application for judicial review dismissed.
(1) In establishing the grain delivery program in respect of which judicial review was sought, the Canadian Wheat Board was a federal board, commission or other tribunal within the meaning of Federal Court Act, subsection 2(1). The power to establish a grain delivery program derived directly from the Canadian Wheat Board Act and was central to the respondent's function. While elements of the program may have derived from the exercise of general powers incidental to its business, the program as a whole, by its very nature was of a public character.
(2) The objective of the grain delivery program was the orderly marketing of grain grown in Canada. It was a matter directed to the implementation of public policy. As such, it was not easily amenable to judicial review, nor did it lend itself readily to some of the forms of relief contemplated on an application for judicial review, particularly the remedy of setting aside of the "matter", and referring it back for reconsideration. Rather, as a tool of public policy, the grain delivery program was, by nature, more amenable to review through pre-adoption public consultation and the political process. Parliament could not have contemplated judicial review of such a program when it enacted Federal Court Act , sections 18 and 18.1. That did not mean that "matters", other than decisions or orders, as those terms are ordinarily interpreted, are not open to judicial review.
(3) The applicant did not have standing to bring this application for judicial review. Standing is acquired as a person "directly affected" under subsection 18.1(1), on the basis of public interest, or as of right. Where the test for public interest standing is met, subsection 18.1(1) is broad enough to authorize the granting of standing whether or not the applicant is "directly affected". On the evidence, the applicant was not "directly affected". An interest in the respondent's grain delivery program was not sufficient to establish direct effect. To grant public interest standing to the applicant, there must be no other reasonable and effective way that the matter could have come before the Court. The grain farmers of Alberta had access to the Court, and they were clearly directly affected, but none were joined in this application for judicial review. The alternative way this matter could have come before the Court was not more theoretical than real, reasonable and effective. Finally, as to standing as of right, Parliament specifically provided such standing to the Attorney General. Failure to grant equivalent standing to the provincial attorneys general was not a mere oversight. If Parliament had intended to confer such standing, it could easily have done so.
(4) The respondent's grain delivery program neither relieved producers of all uncertainty nor resulted in the respondent taking all risks of downward turns in interprovincial and international markets for grain. That was not to say that any or all of these aspects represented an action, a refusal to exercise jurisdiction or other error in respect of which relief may be granted on a judicial review application. The application should be dismissed on the merits.
statutes and regulations judicially considered
Canadian Wheat Board Act, R.S.C., 1985, c. C-24, ss. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 38, s. 1; S.C. 1991, c. 47, s. 713; 1995, c. 31, s. 1), 5, 6(a),(b),(k), 26, 28, 32(1) (as am. by S.C. 1995, c. 31, s. 2).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) "federal board, commission or other tribunal" (as am. by S.C. 1990, c. 8, s. 1), 18 (as am. idem , s. 4), 18.1 (as enacted idem, s. 5), 28 (as am. idem, s. 8).
Federal Court Rules, C.R.C., c. 663, RR. 1602(2)(f) (as enacted by SOR/92-43, s. 19), 1602(4) (as enacted idem), 1618 (as enacted idem).
cases judicially considered
applied:
Jackson v. Canada (Attorney General), [1997] F.C.J. No. 1603 (T.D.) (QL); Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229; (1993), 102 D.L.R. (4th) 696; 10 C.E.L.R. (N.S.) 204; 61 F.T.R. 4 (T.D.); revd (1995), 18 C.E.L.R. (N.S.) 1; 185 N.R. 48 (F.C.A.); Nova Scotia (Attorney General) v. Ultramar Canada Inc., [1995] 3 F.C. 713; (1995), 127 D.L.R. (4th) 517; 35 Admin. L.R. (2d) 124; 63 C.P.R. (3d) 161; 100 F.T.R. 161 (T.D.); Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; (1992), 88 D.L.R. (4th) 193; 2 Admin. L.R. (2d) 229; 5 C.P.C. (3d) 20; 8 C.R.R. (2d) 145; 16 Imm. L.R. (2d) 161; 132 N.R. 241.
distinguished:
Bone v. Sioux Valley Indian Band No. 290 Council, [1996] 3 C.N.L.R. 54; 107 F.T.R. 133 (F.C.T.D.); Puccini v. Canada (Director General, Corporate Administrative Services, Agriculture Canada), [1993] 3 F.C. 557; (1993), 65 F.T.R. 127 (T.D.).
overruled:
Banu v. Canada (Secretary of State) (1994), 82 F.T.R. 81; 25 Imm. L.R. (2d) 66 (F.C.T.D.).
considered:
Murphy v. Canadian Pacific Railway Company and The Attorney General of Canada, [1958] S.C.R. 626; (1958), 15 D.L.R. (2d) 145; 77 C.R.T.C. 322; Archibald v. Canada, [1997] 3 F.C. 335; (1997), 146 D.L.R. (4th) 499 (T.D.).
referred to:
Wilcox v. Canadian Broadcasting Corporation, [1980] 1 F.C. 326; (1979), 101 D.L.R. (3d) 484 (T.D.); Aeric, Inc. v. Chairman of the Board of Directors, Canada Post Corporation, [1985] 1 F.C. 127; (1985), 16 D.L.R. (4th) 686; 56 N.R. 289 (C.A.); Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464; (1994), 113 D.L.R. (4th) 529; 166 N.R. 57 (C.A.); Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; (1974), 43 D.L.R. (3d) 1; 1 N.R. 225; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1 W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338; Pallister v. Canada (Wheat Board), T-1931-95, Giles A.S.P., order dated 11/10/95, not reported.
authors cited
Strayer, B. L. The Canadian Constitution and the Courts, 3rd ed. Toronto: Butterworths, 1988.
APPLICATION for judicial review of the grain delivery program of the Canadian Wheat Board and motion to strike the originating notice of motion on the grounds that the applicant lacked standing as not directly affected by the matter in respect of which relief was sought; the originating notice of motion was not in respect of a single decision, order or other matter; and it failed to disclose a reasonable cause of action. Motion to strike allowed; application for judicial review dismissed.
counsel:
D. James Rout, Q.C. and Edith MacFarlane for applicant.
Brian H. Hay and Sharlene Telles-Langdon for respondent.
solicitors:
Alberta Department of Justice, Edmonton, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Gibson J.:
INTRODUCTION
These reasons arise out of an application for judicial review, filed July 22, 1996, wherein Her Majesty in Right of Alberta (the applicant) seeks judicial review in respect of "the grain delivery programs established and operated by the [Canadian Wheat Board]".
The grain delivery program of the Canadian Wheat Board (the respondent), and I am satisfied it is a single program, for the 1995-1996 crop year ending July 31, 1996, consisted of two major components, an acreage-based component and a delivery contracts component. The two components are described in the applicant's originating notice of motion in the following terms:
In respect of acreage based deliveries:
(i) the Respondent was to announce grade specific delivery calls for wheat, durum and barley to begin the crop year;
(ii) delivery calls were to be based on the acres assigned by the farmer for delivery in the crop year in the farmer's delivery permit;
(iii) each farmer was entitled to deliver the greater of a minimum of 30 tonnes of a grade called for delivery or the total assigned acreage multiplied by the acreage based delivery call;
(iv) the grades and size of delivery calls were to be determined by early crop year sales;
In respect of delivery contract based deliveries:
(i) farmers could offer to sell wheat, durum and barley to the Respondent under contract series A (application deadline October 29, 1995), B (application deadline December 31, 1995), C (application deadline February 29, 1996), and D (application deadline May 31, 1996);
(ii) each offer was to be for a specified grain and for a specified quantity, class and grade of the grain;
(iii) the Respondent agreed to accept delivery of the grain in accordance with the Act and the terms and conditions of the contract for the grain;
(iv) at any time within 18 days following the applicable application deadline the Respondent could reduce the quantity of the grain to be delivered under the contract if the quantities requested by all farmers combined exceeded the total quantities of grain established by the Respondent; the quantity to be delivered by each farmer who had a contract for the class, variety and quality of grain covered by the contract was then reduced proportionately; if the Respondent reduced the quantity of grain to be delivered under a contract the farmer could terminate the contract by giving notice of termination within 14 days after the reduction;
(v) the Respondent could issue delivery calls at any time during the crop year; the Respondent reserved the right to issue delivery calls for only a portion of, or a particular grade or quality of, the grain to be delivered; the total of the delivery calls was to equal the quantity and quality of grain for which delivery was agreed to;
(vi) the Respondent could exclude tough and damp grain from any delivery call issued;
(viii) if a farmer failed, before the termination date specified in any delivery call under a subsisting contract, to deliver a minimum of 85 per cent of the called grain, the farmer was in default and liable to pay liquidated damages to the Respondent and the Respondent could cancel the contract and any other delivery contract.
Evidence filed on behalf of the applicant substantially supported the foregoing description of the components of the grain delivery program. Unfortunately, no evidence was filed on behalf of the applicant or the respondent that would indicate whether or not the grain delivery programs for the 1996-1997 crop year and for the 1997-1998 crop year had the same or substantially similar features.
By notice of motion filed August 22, 1996, the respondent sought an order striking the applicant's originating notice of motion for judicial review on the grounds that: (1) the applicant is not a person "directly affected by the matter in respect of which relief is sought" and therefore has no standing to bring the application; (2) the originating notice of motion is not "in respect of a single decision, order or other matter"; and (3) the originating notice of motion "fails to disclose a reasonable cause of action".
By order dated October 7, 1996, Mr. Justice Rouleau ordered that the respondent's motion to strike be heard together with the application for judicial review.
ISSUES, POSITIONS OF THE PARTIES AND ANALYSIS
The following issues were before me:
(1) whether the originating notice of motion is in respect of a judicially reviewable matter;
(2) whether the applicant has standing to bring this application for judicial review;
(3) if both issues 1 and 2 are determined in favour of the applicant, whether the manner in which the respondent operates its grain delivery program is within its jurisdiction as defined by the Canadian Wheat Board Act.1
(1) Is this application for judicial review in respect of a judicially reviewable matter?
This issue raises two concerns as to this Court's jurisdiction and the scope of its review powers under sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as enacted idem, s. 5] of the Federal Court Act.2
(a) Federal board, commission or other tribunal
Subsections 18(1) and (3) of the Federal Court Act read as follows:
18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
. . .
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1. [Underlining added by me for emphasis.]
Section 28 [as am. idem, s. 8] of the Federal Court Act is not of consequence for the purposes of this application.
The first question then arises: is the respondent a federal board, commission or other tribunal? That expression is defined in subsection 2(1) [as am. idem, s. 1] of the Federal Court Act in the following terms:
2. (1) . . .
"federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867 .
In Jackson v. Canada (Attorney General),3 Mr. Justice Rothstein had before him an application for judicial review with respect to a decision of the Canadian Wheat Board not to issue an export licence to Jackson. Mr. Justice Rothstein examined the question of whether, on the facts before him, the Canadian Wheat Board was a federal board, commission or other tribunal. He wrote [at paragraph 4]:
In considering whether to characterize a federal entity as a federal board, commission or other tribunal for purposes of section 2 of the Federal Court Act, the jurisprudence appears to make a distinction between the exercise of powers of a public character and the exercise of powers which are incidental to the carrying on of a business.
After citing from Wilcox v. Canadian Broadcasting Corporation,4 and noting that Wilcox was distinguished in Aeric, Inc. v. Chairman of the Board of Directors, Canada Post Corporation,5 Mr. Justice Rothstein [at page 4] cited from Murphy v. Canadian Pacific Railway Company and The Attorney General of Canada,6 to the following effect [at paragraph 7]:
The purpose of the Canadian Wheat Board Act is made apparent by an examination of its provisions. The Board constituted by the Act is required to buy all wheat, oats and barley produced in the designated area, that area being substantially the three prairie provinces. Under regulations which the Board is empowered to make, deliveries of grain to elevators or to railway cars may be limited and, except with the permission of the Board, no person may deliver grain to an elevator who is not the actual producer of the grain and in possession of a permit book issued by the Board, or load into a railway car any such grain which has not previously been delivered under a permit book and with the Board's permission. The Board is required to undertake the marketing of all the grain delivered either to elevators or railway cars and the producers receive their proportionate share of the moneys realized from the sale of grain of the grade delivered by them less the expenses of the operation of the Board. It is a matter of common knowledge that much the greatest part of the grain delivered to elevators or to railway cars is exported from the province in which it is grown either to other provinces of Canada or to foreign countries.
In the same decision, Justice Rand, as he then was, wrote:7
The scheme of the Wheat Act is primarily to benefit producers of wheat in areas to which that product can now be said to be indigenous.
Mr. Justice Rothstein concludes [at paragraph 8]:
I need go no further to be satisfied that the Canadian Wheat Board can be characterized as a corporation with significant public aspects which involve the carrying out of government policy. Of course, not all of the powers conferred by the Canadian Wheat Board Act are public. Under section 6 of the Act, for example, the Board has been vested with general powers incidental to its business such as to enter into contracts, to enter into ordinary commercial banking arrangements, to acquire and hold real property and generally to do all things necessary and incidental to the carrying out of its operations. However, in keeping with Aeric, the Court must examine the specific power being exercised in this case.
The power to establish a grain delivery program derives directly from the Canadian Wheat Board Act and is central to the respondent's function. While elements of the program may derive from the exercise of general powers incidental to its business, the program as a whole, by its very nature, is of a public character.
In the result then, I conclude that, in establishing the grain delivery program in respect of which judicial review is sought, the Canadian Wheat Board is a federal board, commission or other tribunal within the meaning of subsection 2(1) of the Federal Court Act. As such, subject to what follows, this Court has judicial review jurisdiction over the respondent in respect of its grain delivery program.
(b) Decision, order or other matter
The second concern as to this Court's jurisdiction is whether the grain delivery program is a "matter" in respect of which judicial review lies.
Subsection 18.1(1) of the Federal Court Act provides that an application for judicial review may be made by the Attorney General of Canada or by anyone directly affected "by the matter in respect of which relief is sought." [Underlining added.] Other subsections of section 18.1 and related Federal Court Rules8 imply that the types of matters in respect of which relief can be sought by way of judicial review are somewhat circumscribed. For example, subsection 18.1(2) limits the time within which judicial review "in respect of a decision or order of a federal board, commission or other tribunal" [underlining added] may be sought. Subsection 18.1(3), which deals with remedies that the Trial Division may provide on judicial review, speaks in part of "a decision, order, act or proceeding of a federal board, commission or other tribunal." Subsection 18.1(4), dealing with the circumstances in which the Trial Division may grant relief, refers to error of law "in making a decision or an order," and decisions and orders based on erroneous findings of fact. Paragraph 1602(2)(f ) of the Federal Court Rules [as enacted by SOR/92-43, s. 19] provides that an application for judicial review shall "set out the date and details of the decision, order or other matter in respect of which judicial review is sought" [underlining added]. Subsection 1602(4) [as enacted idem ] provides that a "notice of motion shall be in respect of a single decision, order or other matter only" [underlining added].
In my view, none of the foregoing is decisive in determining the limits of the "matters" in respect of which judicial review can be sought under sections 18 and 18.1.
In Banu v. Canada (Secretary of State),9 Associate Senior Prothonotary Giles concluded that "other matter", in the context of applications for judicial review, is ejusdem generis with "decision or order". I cannot agree with this conclusion since "matter" is used in subsection 18.1(1) without being in series with "decision or order". In fact, "matter" only appears in series with "decision or order" in the Federal Court Rules which cannot limit the meaning of "matter" in subsection 18.1(1) of the Act.
In Pallister v. Canada (Wheat Board),10 Associate Senior Prothonotary Giles wrote:
Judicial review is a process by which a single decision of a Board can be challenged.
While the foregoing comment by Mr. Giles is undoubtedly true,11 that comment cannot be read as implying that judicial review is a process by which only a decision, nothing more and nothing less, can be challenged.
In Bone v. Sioux Valley Indian Band No. 290 Council,12 Heald D. J. granted relief on an application for judicial review arising out of an election for a band chief and band council. Clearly, such a "matter" cannot easily be described as either a decision or order of a federal board, commission or other tribunal. At the same time, the election having been followed by an Elections Appeal Board decision allowing an appeal and ordering a new general election, it would appear to be an event or matter of a nature that is reasonably amenable to judicial review.
Finally, in Puccini v. Canada (Director General, Corporate Administrative Services, Agriculture Canada),13 I considered a motion for interim relief pending final disposition of an application for judicial review arising out of a complaint of workplace harassment and the process followed in dealing with that complaint. After quoting subsection 18.1(2) of the Federal Court Act, I wrote:
This subsection contemplates a specific decision or order in respect of which judicial review is sought and this concept is reflected in Rule 1602(2)(f) of the Federal Court Rules. . . which requires that an applicant's notice of motion for judicial review set out "the date and details of the decision, order or other matter in respect of which judicial review is sought." The "details" of the "matter" sought to be reviewed are reflected in the notice of motion herein but the "matter" is more in the nature of a continuing process than in the nature of a specific decision or order and it is thus difficult to pinpoint specific dates, other than the date when the harassment complaint was filed and various milestone dates since that time. In any event, I am satisfied that nothing turns on this issue in the context of this matter, at least for the purposes of this preliminary motion. Subject to what may be decided at a later stage of this proceeding, I am prepared for the purpose of this preliminary motion to interpret the terms of subsection 18.1(2) and Rule 1602(2)(f ) broadly to encompass the situation in this matter where a number of decisions or orders have already been taken or made by the respondent in the course of the harassment investigation that have significantly impacted on the situations of the applicant and the complainant. [Citation omitted.]
Once again, none of the foregoing is determinative on the facts before me. As indicated early on in these reasons, I am satisfied that the acreage-based and delivery contract components of the respondent's grain delivery program, together, constitute a single "program". I am further satisfied that the "program" in respect of which judicial review is being sought here is a single matter. It is a complex program. It directly affects a wide range of individuals and businesses, both producers and many others. Its objective, within the broader context of the overall program of the Canadian Wheat Board, is directed to the object for which the Board is incorporated by the Canadian Wheat Board Act , namely, the marketing in an orderly manner, in interprovincial and export trade, of grain grown in Canada.14 It is a matter directed to the implementation of public policy. As such, it is not easily amenable to judicial review, nor does it lend itself readily to some of the forms of relief contemplated on an application for judicial review, particularly the remedy of setting aside of the "matter", and referring it back for reconsideration. Rather, as a tool of public policy, the grain delivery program is, by nature, in my opinion, more amenable to review through pre-adoption public consultation and the political process. That opinion is consistent with the fact that, on the evidence before me, the respondent engaged in a broad public consultation in the development of the grain delivery policy for the crop year, 1995-1996. The applicant was a party to that consultation process.
I conclude that Parliament could not have contemplated judicial review of a program such as the grain delivery program of the Canadian Wheat Board at the time it had before it the legislation enacting the current sections 18 and 18.1 of the Federal Court Act. That is not to say that I conclude that "matters", other than decisions and orders, as those terms are ordinarily interpreted, are not open to judicial review. I am satisfied that a range of "matters", such as those considered in the Bone and Puccini cases cited earlier in these reasons, are or may be appropriate subjects for judicial review. Neither of those "matters", however, had the broad public policy characteristics of the program here sought to be reviewed.
On the basis of the foregoing considerations, I conclude that this application for judicial review is ill-founded. This conclusion is determinative of this matter. However, I will go on to consider the other issues before me, bearing in mind the possibility of an appeal of my decision and the possibility that others, on such an appeal, may not share my views with regard to the scope of judicial review.
(2) Standing of the Applicant
Three bases were advanced for standing on the part of the applicant to bring this application: first, as a person or entity "directly affected" by the grain delivery program of the respondent; second, on the basis of public interest; and third, as of right.
Standing on the basis of direct effect as provided for in subsection 18.1(1) of the Federal Court Act and on the basis of public interest were both considered in Friends of the Island Inc. v. Canada (Minister of Public Works)15 and Nova Scotia (Attorney General) v. Ultramar Canada Inc.16 In those cases, this Court rejected arguments that the words "directly affected" in subsection 18.1(1) of the Federal Court Act should be given a relatively restricted meaning, in light of the adoption in subsection 18.1(1) of the words "anyone directly affected by the matter" as contrasted with the earlier words of subsection 28(2) of the same Act which were "any party directly affected" [underlining added]. In Friends of the Island , Madam Justice Reed wrote at page 283:
In the light of this background [the change of terminology to which I have referred], I cannot conclude that when Parliament amended the Federal Court Act to redress some of the difficulties which had been created by the earlier division of jurisdiction between the Trial Division and the Appeal Division (by sections 18 and 28 respectively) that it intended to limit judicial review under subsection 18.1(1) to the pre-Thorson, Borowski, Finlay test. I think the wording in subsection 18.1(1) allows the Court discretion to grant standing when it is convinced that the particular circumstances of the case and the type of interest which the applicant holds justifies status being granted. (This assumes there is a justiciable issue and no other effective and practical means of getting the issue before the courts.)17
I take the comments of Madam Justice Reed, and the reasons of Mr. Justice MacKay in the Ultramar case to reflect the view that, where the test for public interest standing enunciated in Thorson, Borowski and Finlay is met, subsection 18.1(1) should be read as broad enough to authorize the granting of standing whether or not the applicant can be said to be "directly affected".
In Canadian Council of Churches v. Canada (Minister of Employment and Immigration),18 Mr. Justice Cory, speaking for the Court, described the test for public interest standing in the following terms:
It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the Court?
I read the references to "legislation" in the foregoing paragraph to extend to "public acts". Mr. Justice Cory wrote in Canadian Council of Churches :19
The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. [Underlining added by me for emphasis.]
As indicated above, counsel for the applicant urged that Her Majesty in Right of Alberta has standing to bring this application as an entity "directly affected by the matter in respect of which relief is sought" within the meaning of subsection 18.1(1) of the Federal Court Act, alternatively, on the basis of public interest standing, and in the further alternative, as of right. In support of these arguments, he cited evidence before me that the applicant has long been interested in grain marketing in the province of Alberta, has exercised a long-standing regulatory role in relation to the production, supply, delivery and marketing of agricultural products in the province, has a social and economic interest in maintaining farm operations and the resulting employment in the province and therefore has a genuine or direct interest in the respondent's grain delivery program as it affects grain producers in Alberta. He urged that the position of Her Majesty in Right of Alberta is fully analogous to that of Her Majesty in Right of the Province of Nova Scotia, on whose behalf the Attorney General of Nova Scotia was granted public interest standing in the Ultramar case. Finally, he argued that, whether or not a challenge as of prerogative right on the part of the Crown in right of a province has yet been recognized by Canadian courts in respect of a program of a federal agency such as the Canadian Wheat Board, it should be recognized on the facts before me. For this proposition he cited among other authorities, the following discussion from The Canadian Constitution and the Courts:20
This does lead, however, to a more general question as to the possible role of the Attorney General in initiating actions in the public interest to challenge constitutionally invalid laws or actions. Traditionally, only the Attorney General could sue for a declaration that a public body is exceeding its powers. Presumably this could include situations where it is alleged that the public body acts without jurisdiction because the statute under which it purports to act is itself ultra vires. While the Attorney General has a right of action only if the public as a whole is affected, it would seem that the question of whether a statute of the Legislature is valid or not would be of concern to the public as a whole.
The application of these common law principles within a federal system causes considerable difficulty. Could a provincial Attorney General commence action in this way to challenge the authority of a federal agency on the grounds that its Act of Parliament was ultra vires? Could the Attorney General of Canada challenge a provincial statute in a similar manner? These questions have not been fully answered in Canada.
We have seen that in four provinces (Manitoba, British Columbia, Alberta, and Ontario) there is a statutory right for either the federal or provincial Attorney General to seek a declaration of invalidity of a provincial statute, and the Ontario law also permits an action by either such officer with respect to the validity of a federal Law. There is some precedent for the Attorney General of Canada being admitted as an additional plaintiff in an action commenced by a private party for a declaration of invalidity of a provincial law and regulation where it was alleged that the provincial provisions interfered with a field of federal jurisdiction. There is some logic to this in that in such a case the Attorney General of Canada is the only law officer with the responsibility of protecting jurisdiction of Parliament which was alleged to be affected. There is also some authority that the Attorney General of Canada now has a sufficient interest, as required in Quebec, in order to intervene in a case involving the Canadian Charter of Rights and Freedoms and its possible effect on a provincial law. On the other hand, doubt has been expressed by the Supreme Court that a provincial Attorney General would by the general rules have standing to seek a declaration against the validity of federal legislation, because he would not be in a different position from other provincial Attorneys General.
In Australia the High Court has held that a state Attorney General had a sufficient title to challenge the validity of the federal Pharmaceutical Benefits Act as it operated within his state. This view may be open to question. It may be that each Attorney General should on principle be entitled to commence an action by himself only with respect to the laws of the jurisdiction to which he belongs. The right of the Attorney General in these cases probably stems from the Crown's prerogative rights as parens patriae. It has been held in other situations that the extent of the prerogative in right of Canada or of a province corresponds to the distribution of legislative power under the Constitution Act.
If this constitutional distribution does apply to declaratory actions by Attorneys General, it is unlikely that they will ever be a means of bringing a public action to challenge directly the validity of legislation. This action has the virtue of simplicity in that the Attorney General need prove no interest in the matter to commerce action. But in bringing action he must challenge the validity of acts of his own legislature. He is a member of the Government responsible to that legislature and if he has formed the opinion that the legislation is invalid he should advise that it be repealed. If the Government rejects his advice he must either accept the majority decision or resign. If he merely has doubts about the validity of the law or if outright repeal is impolitic, then the easier course is for him to advise the cabinet to refer the matter to the courts for an opinion. Or, put another way as Laskin J. did for the Supreme Court in the Thorson case, it is doubtful if a requirement as a condition of standing that the Attorney General first be requested to attach his own legislation "can have any application in a federal system where the Attorney General is the legal officer of a Government obliged to enforce legislation enacted by Parliament and a challenge is made to the validity of the legislation.
It is possible for a private citizen to initiate such proceedings by way of a relator action. In such cases he must obtain the consent of the Attorney General to commence the action in the latter's name. Presumably the same principles which would inhibit the Attorney General from suing by himself would deter him from granting his consent to a private citizen to bring this unique public action.
The Attorney General's action against public bodies to prevent an excess of jurisdiction might be used in a quasi-constitutional manner. This could arise where the allegation was that the public body was wrongly exercising valid statutory powers, in a manner which would apply the statute unconstitutionally in contravention of the distribution of powers or of the Charter of Rights and Freedoms. Thus a provincial Attorney General might seek a declaration that a municipality had exercised its power to make bylaws for the preservation of order on municipal streets in a way which conflicted with the Criminal Code. This would not involve an attack on the provincial statute under which the municipality purported to make its by-law, but only an attack on the by-law itself as being outside the contemplation of that statute. [Citations omitted.]
In response, counsel for the respondent pointed out that, on the evidence, there were 33,012 permit book holders in Alberta and 112,581 permit book holders in the designated area for the crop year 1995-1996, each of whom was directly affected by the respondent's grain delivery program, and that none of those persons joined in this application for judicial review although one permit book holder, who was also a public servant in the employment of the applicant, filed an affidavit in support of the applicant's motion. Thus, counsel urged, the applicant is not among the broad class of those "directly affected" within the meaning of subsection 18.1(1) of the Federal Court Act . Counsel further argued that the applicant fails to meet the test for public interest standing as there is clearly "another reasonable and effective way to bring this issue before the Court" and that way rests in the hands of persons clearly more "directly affected" than the applicant. Counsel also submitted that the applicant had adduced no evidence to establish that there was no other way to raise this issue before the Court. Finally, counsel noted that the theory of "standing as of right" has not been adopted by Canadian courts in this context and, as noted by Strayer J.A. in the passage from his text quoted above: "The application of these common law principles within a federal system causes considerable difficulty."21
I find the position of counsel for the respondent to be determinative on this issue.
On the evidence before me, I find no basis to conclude that the applicant is "anyone directly affected" within the meaning of subsection 18.1(1) of the Federal Court Act . While it is undoubtedly true that the applicant has an interest in the respondent's grain delivery program, and the evidence is sufficient for that purpose, that is not, I conclude, sufficient to establish direct effect.
To grant public interest standing to the applicant, I must find that there is no other reasonable and effective way that this matter could have come before this Court. I simply cannot so conclude on the evidence and argument before me. The grain farmers of Alberta have access to this Court. They clearly are persons directly affected. Recent activity before the Court demonstrates that they are not loathe to exercise that access.22 Thus, it cannot be said that the alternative way this matter could have come before this Court is more theoretical than real, reasonable and effective.
Finally, on standing as of right, it is to be noted that Parliament specifically provided such standing to the Attorney General of Canada. I am not prepared to conclude that failure to grant equivalent standing to the attorneys general of the provinces was a mere oversight. If Parliament had intended to confer such standing it could easily have done so. I am not prepared to read into section 18.1 of the Federal Court Act the words that counsel for the applicant would have me read in. Nor, in the absence of such words, do I feel at liberty to recognize a common law right of standing.
In the result, I conclude that the applicant does not have standing to bring this application for judicial review.
(3) Is the manner in which the respondent operates its grain delivery program within its jurisdiction as defined by the Canadian Wheat Board Act?
The applicant does not attack the respondent's grain delivery program as a whole. Neither does it attack the acreage-based component nor the delivery contracts component as a whole. Rather, the applicant argues that, in the assignment and management of quotas through the program and its two major components, the respondent is failing to fulfil certain of its statutory obligations under the Canadian Wheat Board Act. More specifically, counsel for the applicant advanced the following positions before me:
" Pursuant to subsection 2(1) [as am. by R.S.C., 1985 (4th Supp.), c. 38, s. 1; S.C. 1991, c. 47, s. 713; 1995, c. 31, s. 1] and sections 26 and 28 of the Canadian Wheat Board Act (the Act), the respondent has a duty to issue to producers permit books authorizing delivery of grain produced on the land comprising the farms of the producers. The respondent is not satisfying its statutory duty in this respect because, under the program, although permit books authorize deliveries of grain, the authorizations are conditional with control of satisfaction of the conditions resting solely with the respondent.
" Under section 5 of the Act, the respondent has a duty to market, in an orderly manner, in interprovincial and export trade, grain grown in Canada. The respondent fails to meet this obligation by mandating, through its grain delivery program, producers to produce grain without providing them with a concomitant undertaking to market all of the grain required to be produced.
" Under subsection 32(1) [as am. by S.C. 1995, c. 31, s. 2] of the Act, the respondent has a duty to undertake the marketing of wheat and barley produced in the designated area, in interprovincial and export trade. Under the grain delivery program, the respondent fails, by the terms of the program, to fulfil this duty in respect of all of the wheat and barley produced in the designated area for marketing in interprovincial and export trade.
" By virtue of subsection 2(1), paragraphs 6(a ),(b) and (k) and paragraph 32(1)(a) of the Act, the respondent has a duty to buy all wheat and barley produced in the designated area and offered by a producer for sale and delivery to the respondent at an elevator or railway car. Once again, by virtue of certain of the terms of the grain delivery program, the respondent is failing to fulfil its duty with respect to all wheat and barley produced in the designated area for interprovincial and export trade.
" By obligating, under the terms of its grain delivery program, farmers to deliver, and therefore hold so that it is not available for export, grain that the respondent may never buy, the respondent is breaching its duty not to reduce the quantity of either foreign or interprovincial trade in wheat, wheat products, barley or barley products.
" As noted earlier in Murphy ,23 the scheme of the Act is primarily to benefit producers of wheat in the designated area. Once again, by virtue of certain of the terms of its grain delivery program, it is argued that the respondent fails to act primarily for the benefit of producers and rather, is acting in its own best commercial interest.
" Once again, by reference to Murphy, it is argued that the respondent's grain delivery program fails to fully meet its duty to market, in a timely way, the grain production of the designated area and the portion of that grain production represented by producers initial quotas.
" Finally, and once again by reference to Murphy, it is argued that the respondent, through certain provisions of its grain delivery program, is failing to fulfil its duties not to delay the movement of grain and to cause grain that is moved to flow in an orderly and unabated way.
In response, counsel for the respondent referred me to the following passages among others, from the reasons of Mr. Justice Muldoon in Archibald v. Canada:24
Grain is an important commodity for domestic consumption in, and for export from, Canada. The history of the grain economy demonstrates in the evidence before the Court that a free market generates gluts and famines, high prices and low prices, and speculators having taken unconscionable advantage of the grain producers. Moreover the free market forces also generate counter-market production. Canada enjoys a worldwide reputation for non-corrupt, reliable marketing of grain, Canada's great and important export.
. . .
The objective of the enabling legislation [Canadian Wheat Board Act] is to facilitate "orderly marketing" of Canadian grain. The defendant has established that the Canadian Wheat Board achieves this. It has no other raison d'être .
The nature of the legislation is such that the defendant needs only to establish that when the Act is applied and CWB operates, it sells grain in an orderly fashion. The provisions of the Act, particularly sections 2 and 28, which allow the CWB to fix quotas and use a contract delivery system are the backbone of orderly marketing. . . . Further, the actual sales of grain are coordinated by the Canadian Wheat Board's annual sales plan. . . . More particularly, the CWB has"by virtue of its monopoly"developed strong markets in countries such as China and Japan, and has increased Canada's overall market share vis-a-vis the United States.
That the respondent's grain delivery program is not a program that relieves producers of all uncertainty and results in the respondent taking unto itself all risks of downward turns in interprovincial and international markets for grain, is demonstrated by the aspects of the respondent's program to which counsel for the applicant referred me. That is not to say, however, that any or all of those aspects represents an action, a refusal to exercise jurisdiction or other error in respect of which relief may be granted on a judicial review application such as this. On the basis of the evidence before me, were I to conclude that this application for judicial review is properly before me which, as I have indicated earlier in these reasons, I do not conclude, I would dismiss this application on its merits as disclosing no basis for relief on an application for judicial review.
ADDITIONAL CONSIDERATIONS
To return briefly to a factor commented on earlier in these reasons, I find it telling on the merits of this application that no grain producer or permit book holder is a co-applicant with Her Majesty in Right of Alberta. Also as indicated earlier, I am acutely conscious that not all grain producers in the designated area are fully satisfied with the legislative and administrative scheme governing marketing in interprovincial and export trade of wheat and barley grown in the designated area. That said, while some producers have chosen to challenge aspects of the legislative and administrative scheme before the courts, I reiterate, none have joined in this application.
Finally, I note that all evidence before me related to the grain marketing program of the respondent for the 1995-1996 crop year. If, on this application by this applicant and on the evidence before me, I had determined that some relief was warranted, I would have found myself hard pressed to identify a remedy that would not be moot and would be meaningful with respect to the current grain delivery program of the respondent.
CONCLUSION
In the result, based upon the considerations outlined in these reasons, this application for judicial review is dismissed. Neither counsel before me identified "special reasons" that would justify an order of costs, taking into account Rule 1618 of the Federal Court Rules . There will be no order as to costs.
1 R.S.C., 1985, c. C-24, as am.
2 R.S.C., 1985, c. F-7 as am.
3 [1997] F.C.J. No. 1603 (T.D.) (QL).
4 [1980] 1 F.C. 326 (T.D.).
5 [1985] 1 F.C. 127 (C.A.).
6 [1958] S.C.R. 626, at p. 630.
7 Id., at p. 642.
8 C.R.C., c. 663, as am.
9 (1994), 82 F.T.R. 81 (F.C.T.D.).
10 11 October 1995, T-1931-95, F.C.T.D. unreported.
11 See, for example, Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464 (C.A.).
12 [1996] 3 C.N.L.R. 54 (F.C.T.D.).
13 [1993] 3 F.C. 557 (T.D.), at p. 568.
14 S. 5 of the Canadian Wheat Board Act, supra, note 1.
15 [1993] 2 F.C. 229 (T.D.); revd (1995), 18 C.E.L.R. (N.S.) 1 (F.C.A.) on other grounds.
16 [1995] 3 F.C. 713 (T.D.).
17 Cases referred to, dealing with public interest standing, are: Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; and Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607.
18 [1992] 1 S.C.R. 236, at p. 253.
19 Id., at p. 252.
20 B. L. Strayer, The Canadian Constitution and the Courts, 3rd ed. (Toronto: Butterworths, 1988), at pp. 162-164.
21 Id., at p. 162.
22 See for example Archibald v. Canada, [1997] 3 F.C. 335 (T.D.) (appeal to the Federal Court of Appeal filed 9 May, 1997) and Jackson v. Canada (Attorney General), supra, note 3.
23 Supra, note 6.
24 Supra, note 22, at pp. 407-408 and 424-425.