A-97-80
Maple Lodge Farms Limited (Appellant) (Appli-
cant)
v.
Government of Canada and the Minister of Eco
nomic Development, responsible for Industry,
Trade and Commerce (Respondents) (Respond-
ents)
Court of Appeal, Heald and Le Dain JJ. and
MacKay D.J.—Toronto, May 14, 1980.
Prerogative writs — Mandamus — Appeal from Trial
Division decision dismissing application for writ of mandamus
to compel Minister to issue supplementary import permits
enabling appellant to import more than its basic quota of live
chickens — Application for permits was refused, although
Canadian Chicken Marketing Agency was unable to locate a
domestic supply of live chickens, and notwithstanding a policy
statement that permits would normally be issued in such
situations — Whether Minister had any discretion to refuse
the permits, and if he did, whether he refused the permits for
an irrelevant reason — Appeal dismissed — Export and
Import Permits Act, R.S.C. 1970, c. E-17, as amended, ss. 5(1)
(a.1), 8, 12 — Import Permit Regulations, SOR/79-5, ss.
3(a)-(k), 4 — Interpretation Act, R.S.C. 1970, c. I-23, s. 28
Farm Products Marketing Agencies Act, S.C. 1970-71-72, c.
65, ss. 7(1)(d), 17(1), 22(a),(6) — Import Control List, Amend
ment SOR/79-70, Item 19.
Appeal from a judgment of the Trial Division dismissing an
application for a writ of mandamus to compel the Minister to
issue supplementary import permits to enable the appellant to
import live chickens in excess of its basic quota. Appellant
purchases live chickens, slaughters, eviscerates and packages
them, and delivers them the same day to its customers. Its
reputation is based on the freshness and quality of its product.
Chicken was placed on the Import Control List, thus prohibit
ing the importation of chicken without an import permit issued
by the Minister. The policy concerning the issuance of supple
mentary import permits was as follows: "If required to fill
specific Canadian market needs, additional quantities of chick
en and chicken products may be allowed to enter Canada
supplementary to the basic quota." Appellant applied for sup
plementary import permits which were refused although the
Canadian Chicken Marketing Agency was unable to indicate a
domestic source of supply of chicken. The Agency suggested
that the appellant take eviscerated chicken from the domestic
market. The issues are whether the Minister had any discretion
at all to refuse the permits, and, if he did, whether he refused
the permits for an irrelevant reason.
Held, the appeal is dismissed. Section 8 of the Export and
Import Permits Act confers a discretionary authority to issue
import permits and does not create a duty to issue them upon
the fulfilment of certain conditions. Section 28 of the Interpre
tation Act requires that the word "may" in section 8 be
construed as permissive unless the context indicates a contrary
intention. The Export and Import Permits Act does not create
or recognize a legal right to an import permit. Chicken was
placed on the Import Control List pursuant to section 5(1)(a.1)
of the Act for the purpose of restricting its importation to
support action taken under the Farm Products Marketing
Agencies Act. It is an implication of section 5(1)(a.1) that the
Minister is to exercise his authority to issue or refuse permits
for the purpose specified therein. The authority conferred on
the Governor in Council by section 12 of the Act to make
regulations respecting certain matters affecting import permits
is not inconsistent with a discretionary authority in the Minister
to issue or refuse to issue a permit, although in the exercise of
his discretion he must conform to the Regulations. There is
nothing in the terms of section 12 to suggest that it was
intended to confer authority to determine the conditions upon
the fulfilment of which every applicant would be entitled to a
permit. The appellant alternatively attacked the relevance of
the criteria reflected by the policy guidelines, that is, the
availability of eviscerated chicken as a reason for refusing an
application for a permit to import chicken. It cannot be con
cluded that these considerations are extraneous or irrelevant to
the statutory purpose for which chicken was placed on the
Import Control List and to which the exercise of the Minister's
discretion must be related. A valid purpose for which the
Minister may exercise his discretion is that which is indicated
in section 5(1)(a.1). The policy guidelines permit the Agency to
determine, as a condition precedent to the issue of an import
permit, whether the product is available in the domestic
market, a matter that is relevant to the purpose for which
chicken was placed on the Import Control List. The discretion
conferred by section 8 is exercised in order to protect the
domestic market in interprovincial trade of Canadian producers
of chicken by restricting the importation of chicken in any of its
forms. Assuming that what the guidelines purport to say is that
a permit will normally be issued if the Agency is unable to find
a domestic source of supply of the specific product for which
the applicant seeks a permit, it is not sufficient by itself to
invalidate the Minister's decision on the ground that it was
based on an extraneous or irrelevant consideration. The Minis
ter may indicate the kind of considerations by which he will be
guided as a general rule in the exercise of his discretion but he
cannot fetter his discretion by treating the guidelines as binding
upon him and excluding other valid or relevant reasons for the
exercise of his discretion.
McHugh v. Union Bank of Canada [1913] A.C. (P.C.)
299, referred to. Smith & Rhuland Ltd. v. The Queen, on
the relation of Brice Andrews [ 1953] 2 S.C.R. 95, referred
to. British Oxygen Co. Ltd. v. Minister of Technology
[1971] A.C. (H.L.) 610, referred to. Re Hopedale De
velopments Ltd. and Town of Oakville [1965] 1 O.R. 259,
referred to. Julius v. The Right Rev. the Lord Bishop of
Oxford (1879-80) 5 App. Cas. 214, distinguished. The
Labour Relations Board of Saskatchewan v. The Queen
on the relation of F. W. Woolworth Co. Ltd. [1956]
S.C.R. 82, distinguished. Capital Cities Communications
Inc. v. Canadian Radio-Television Commission [1978] 2
S.C.R. 141, applied.
APPEAL.
COUNSEL:
D. Laidlaw, Q.C. for appellant.
J. Scollin, Q.C. and J. A. Belisle for
respondents.
SOLICITORS:
McCarthy & McCarthy, Toronto, for appel
lant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal from a judgment
of the Trial Division [[19801 2 F.C. 458] dismiss
ing an application for a writ of mandamus to
compel the Minister of Industry, Trade and Com
merce to issue supplementary import permits pur
suant to the Export and Import Permits Act,
R.S.C. 1970, c. E-17, to enable the appellant to
import some four million pounds of live chickens
weighing under five pounds each.
The issues raised by the appeal are whether the
Minister had any discretion at all to refuse the
permits applied for by the appellant, and, if he did,
whether he refused the permits for an irrelevant
reason.
The appellant carries on business as a poultry
processor. It purchases live chickens, slaughters,
eviscerates and packages them, and delivers them
the same day to its customers, which consist of
major retail food outlets and the "fast food" trade.
It has a significant portion of the Ontario market
for freshly slaughtered chicken. Its business and
reputation are based on the freshness and quality
of its product. It requires large quantities of live
chicken every day to meet the requirements of its
customers.
In January, 1979, chicken was placed on the
Import Control List established under section 5 of
the Export and Import Permits Act, as amended
by R.S.C. 1970 (2nd Supp.), c. 29 and c. 32 and
S.C. 1974, c. 9, s. 2. Order in Council P.C. 1979-
13 (SOR/79-70, Canada Gazette, Part II, Vol.
113, No. 2, January 24, 1979) added to the List,
as Item 19, "Chickens and chicken capons, live or
eviscerated, parts and products manufactured
wholly thereof", pursuant to section 5(1)(a.1) of
the Act, which reads as follows:
5. (1) The Governor in Council may establish a list of goods,
to be called an Import Control List, including therein any
article the import of which he deems it necessary to control for
any of the following purposes, namely:
(a.1) to restrict, for the purpose of supporting any action
taken under the Farm Products Marketing Agencies Act, the
importation in any form of a like article to one produced or
marketed in Canada the quantities of which are fixed or
determined under that Act.
The effect of placing Item 19 on the Import
Control List was, by section 14 of the Act, to
prohibit the importation of the products described
therein without an import permit issued by the
Minister pursuant to section 8 of the Act, which
reads as follows:
8. The Minister may issue to any resident of Canada apply
ing therefor a permit to import goods included in an Import
Control List, in such quantity and of such quality, by such
persons, from such places or persons and subject to such other
terms and conditions as are described in the permit or in the
regulations.
In October 1979, the Minister issued a "Notice
to Importers" which set out the policy that would
be followed with respect to permits for the import
of chicken. The scheme established a global import
quota for specific periods and individual quotas for
importers. In addition to this "basic quota", for
which permits would be issued as required, there
was provision for supplementary import permits in
accordance with a policy described in general
terms as follows: "If required to fill specific
Canadian market needs, additional quantities of
chicken and chicken products may be allowed to
enter Canada supplementary to the basic quota."
The policy statement set out the conditions and
procedure for obtaining supplementary import per
mits for chicken as follows:
i) Firms having a basic quota entitlement will normally use
this amount prior to making application for supplementals
under this provision.
ii) The buyer must contact his normal sources of domestic
supply.
iii) The buyer must contact the Canadian Chicken Market
ing Agency (CCMA) at Suite 400, 44 Peel Centre Dr.
Brampton, Ontario L6T 4B5, (416) 792-6622 stating:
a) type of product required
— product specifications must be normally accepted trading
classes or product
b) Canadian sellers contacted to purchase product
c) delivery dates for required product
iv) CCMA will have 72 hours (3 working days) from the
receipt of the request to inform the buyer of a source of
supply in Canada.
NO At the time the CCMA is contacted, a permit application
must be sent to the Department of Industry, Trade and
Commerce, Office of Special Import Policy. A copy of the
required communication to the CCMA (iii above) must
accompany the application.
vi) CCMA will notify the buyer and the Office of Special
Import Policy, regarding the action taken on a request under
item, iii) above. If Canadian product is not offered at the
market price, a permit will normally be issued; however, if an
offering of product is made, the application may be refused
or reduced by an amount equal to the quantity offered by
Canadian sources.
vii) Should the buyer refuse to purchase product sourced by
the CCMA under iv) above, future requests for supplemen-
tals would normally not be considered for a period of at least
90 days from the date of application.
It is the application of these conditions to the
appellant's requests for supplementary import per
mits that gives rise to the issues on the appeal.
The policy statement specifies that certain
"codes and categories" are to be used by importers
in applying for supplementary permits. Those with
respect to "live chicken" and "eviscerated chick
en", which are the products in issue in this case,
are as follows:
19-011 Live chicken avg. unit weight less than 5 lbs. live
weight
19-012 Live chicken avg. unit weight greater than 5 lbs. live
weight
19-021 Eviscerated chicken avg. unit weight less than 2 lbs.
eviscerated weight
19-022 Eviscerated chicken avg. unit weight between 2 lbs. and
4 lbs. eviscerated weight
19-023 Eviscerated chicken avg. unit weight greater than 4 lbs.
eviscerated weight
During the period October 21 to December 31,
1979, the appellant made several applications for
supplementary import permits under category
19-011—live chicken under five pounds. These
applications were granted in part and refused in
part, although in some cases the Canadian Chick
en Marketing Agency was unable to indicate a
domestic source of supply of chicken in this cate
gory. In one case the Agency offered the appellant
eviscerated chicken in category 19-022, but the
appellant refused it.
In late December 1979, and in January 1980,
the appellant made a series of applications for
supplementary import permits covering chicken in
category 19-011 amounting to approximately four
million pounds. These applications were refused by
the Office of Special Import Policy, acting for the
Minister, although the Canadian Chicken Market
ing Agency was unable to offer a domestic source
of supply of live chicken. The Agency suggested
instead that the appellant take eviscerated chicken
from the domestic market. A letter dated January
9, 1980, from the Agency to the appellant reads as
follows:
In response to your letter of January 9, 1980, the Agency has
not been able to source an available supply of live chicken in
either Ontario or Quebec, in order to meet your request for
supplementary imports.
There has, however, been a large quantity of eviscerated prod
uct offered to you to fill your market requirements. This
information was given by telephone on January 8 and in a
subsequent letter of 9 January.
Other letters from the Agency in January con
firmed the offer of eviscerated chicken. A letter of
January 7, 1980 contained the following state
ment:
Because C.C.M.A. is interested in adequately supplying the end
need for fresh chicken, it feels that eviscerated chicken can be
adequately substituted for live product; for this reason the
Agency accepted the offers of eviscerated product instead of
live when it was sourcing for this request.
In a letter of January 16, 1980 the Agency
concluded:
The fact that C.C.M.A. has not found live product available in
Ontario and Quebec to meet your request does not indicate a
shortage of supply to the overall market, especially when total
storage stocks in Ontario increased 7.3% from 1 December
1979 to 1 January 1980. The fact that eviscerated product has
been found also indicates an abundant supply. The lack of live
product does, however, indicate that the live birds are all
committed by producers to processors and therefore are not
available to another processor on short notice.
In the affidavit filed in support of the applica
tion for mandamus there are the following para
graphs 21 and 23 with reference to the importance
to the appellant's business of live, as opposed to
eviscerated, chicken:
21. The market that Maple Lodge Farms has achieved is
based, to a great extent, on providing freshly slaughtered
chicken to its customers within twenty-four hours of the slaugh
ter. This permits the customer sufficient opportunity to sell the
chicken which has a shelf life of approximately seven days and
permits the ultimate consumer an opportunity to maintain the
chicken, at home, for a few days within the period of the shelf
life and extending slightly beyond it. The customers of Maple
Lodge Farms have become accustomed to the consistent quality
of the chicken received from it and can market the chicken to
the ultimate consumer based on a standard of quality that it
expects. Maple Lodge Farms takes great pains to ensure that
the quality of the chicken it provides to the major retail food
outlets is consistent and has a careful program of quality
assurance.
23. Eviscerated Chicken suggested to Maple Lodge Farms,
by the Canadian Chicken Marketing Agency is chicken that
has been slaughtered for some time and may well have lost
some days of freshness. Maple Lodge Farms in turn would have
to bring the chicken into its plant, unpack it, process and cut it,
re-pack it and ship it to its customers. The shelf life would be
diminished and could never be certified either by Maple Lodge
Farms or by the major food retail outlets. Furthermore, it is
almost impossible to determine the quality of the eviscerated
chicken and thus Maple Lodge Farms would jeopardize its
relationship with its customers in accepting dead chicken,
whose shelf life and quality are not known. Eviscerated chicken
available to a processor such as Maple Lodge Farms is a
surplus chicken of a suspicious quality.
The appellant contends, first, that the Minister
did not have a discretion under section 8 of the Act
to refuse the supplementary import permits. It is
argued that the Act confers the authority to
impose limitations or conditions on the right to an
import permit on the Governor in Council, and not
on the Minister, and that within the context of the
conditions that have been laid down by the Gover-
nor in Council the appellant was entitled to the
permits.
Section 12 of the Act empowers the Governor in
Council to make regulations as follows:
12. The Governor in Council may make regulations
(a) prescribing the information and undertakings to be fur
nished by applicants for permits, certificates or other author
izations under this Act, the procedure to be followed in
applying for and issuing or granting permits, certificates or
other authorizations, the duration thereof, and the terms and
conditions, including those with reference to shipping or
other documents, upon which permits, certificates or other
authorizations may be issued or granted under this Act;
(b) respecting information to be supplied by persons to whom
permits, certificates or other authorizations have been issued
or granted under this Act and any other matter associated
with their use;
(c) respecting the issue of and conditions or requirements
applicable to general permits or general certificates;
(d) respecting the certification, authorization or other control
of any in-transit movement through any port or place of any
goods that are exported from Canada or of any goods that
come into any port or place in Canada;
(e) exempting any person or goods or any class of persons or
goods from the operation of any or all of the provisions of
this Act; and
(J) generally for carrying out the purposes and provisions of
this Act.
Pursuant to the authority conferred by section
12, the Governor in Council made the Import
Permit Regulations by Order in Council P.C.
1978-3738 of December 14, 1978 (SOR/79-5,
Canada Gazette, Part II, Vol. 113, No. 1, January
10, 1979). Sections 3 and 4, which are the only
provisions of relevance in the present case, read as
follows:
3. A resident of Canada may apply for a permit, either
verbally or in writing, to the Office of Special Import Policy of
the Department or to any person authorized by the Minister to
issue a permit on his behalf by furnishing the following
information:
(a) the applicant's name and address;
(b) information as to whether or not the applicant is a
resident of Canada;
(c) the importer's name and address if different from the
applicant;
(d) the name and address of the supplier of the goods to be
imported;
(e) the country of origin of the goods;
(f) the country from which the goods are imported;
(g) the Canadian port of entry where the goods will enter
Canada;
(h) the date of entry of the goods in Canada;
(i) a description of the goods;
(j) the number of units of the goods to be imported and their
value in Canadian currency; and
(k) any information requested by the Minister in any case
where, in his opinion, the information furnished by the
applicant requires clarification or the description of the
goods to be imported is not in sufficient detail.
4. (1) A permit shall be in the form set out in the schedule.
(2) When a permit is issued, the Minister shall
(a) affix his signature to each copy of the permit; and
(b) cause two copies of the permit to be transmitted to the
applicant.
The form of permit set out in the schedule
provides a space for "Other terms and conditions"
and it contains the statement, "The export/import
of goods described above is permitted subject to all
conditions described herein and subject to the
Export and Import Permits Act and any regula
tions made thereunder."
Looking at these provisions as a whole, I am of
the opinion that section 8 of the Act confers upon
the Minister a discretion as to whether or not to
issue an import permit in a particular case. Section
28 of the Interpretation Act, R.S.C. 1970, c. I-23,
requires, of course, that the word "may" in section
8 be construed as permissive unless the context
indicates a contrary intention. See McHugh v.
Union Bank of Canada [1913] A.C. (P.C.) 299;
Smith & Rhuland Limited v. The Queen, on the
relation of Brice Andrews [1953] 2 S.C.R. 95.
This is not a case for application of the principle
recognized in Julius v. The Right Rev. the Lord
Bishop of Oxford (1879-80) 5 App. Cas. 214 and
referred to in The Labour Relations Board of
Saskatchewan v. The Queen on the relation of F.
W. Woolworth Co. Ltd. [1956] S.C.R. 82 at page
87, that permissive words may be construed as
creating a duty where they confer a power the
exercise of which is necessary to effectuate a right.
The Export and Import Permits Act does not
create or recognize a legal right to an import
permit. Chicken was placed on the Import Control
List, pursuant to section 5(1)(a.1) of the Act for
the purpose of restricting its importation to sup
port action taken under the Farm Products Mar
keting Agencies Act, S.C. 1970-71-72, c. 65. As I
have said, the effect of its inclusion in the List is,
by section 14 of the Act, to prohibit its importation
"except under the authority of and in accordance
with an import permit issued under this Act." The
common law right to import goods is to that extent
abrogated. It is an implication of section 5(1)(a.1)
of the Act that the Minister is to exercise his
authority to issue or refuse permits for the purpose
specified therein. It cannot have been intended, in
view of this declared purpose, that the power to
issue permits should be a mere Ministerial duty
imposed for the sole purpose of monitoring the
extent to which an unlimited right of importation
is in fact exercised.
The words in section 8, "in such quantity and of
such quality, by such persons, from such places or
persons and subject to such other terms and condi
tions as are described in the permit or in the
regulations", do not refer to conditions defining a
right or entitlement to a permit but to the terms
and conditions to which an issued permit may be
subject. This is clear from the terms of section
12(a) of the Act, which, in conferring the power to
make regulations, speaks, inter alia, of "the terms
and conditions, including those with reference to
shipping or other documents, upon which permits,
certificates or other authorizations may be issued
or granted under this Act." Further, section 3 of
the Import Permit Regulations, which prescribes
the information to be furnished by applicants for
permits, could not by implication create a right to
a permit upon the simple fulfilment of this require
ment. The Regulation imposes a requirement upon
an applicant for a permit; it does not create,
expressly or impliedly, a duty to issue a permit
upon the fulfilment of this requirement. The infor
mation simply forms part of the basis on which the
Minister is to exercise his discretion whether or
not to issue a permit, and if so, upon what terms
and conditions. The authority conferred by section
12 of the Act to make regulations respecting cer
tain matters affecting import permits is not incon
sistent with a discretionary authority in the Minis
ter to issue or to refuse to issue a permit, although,
needless to say, in the exercise of his discretion he
must conform to the Regulations. There is nothing
in the terms of section 12, which empowers the
Governor in Council to lay down certain require
ments affecting permits, to suggest that it was
intended to confer authority to determine the con
ditions upon the fulfilment of which every appli
cant would be entitled to a permit. The permit
which the Minister may issue pursuant to section 8
is certainly subject to the terms and conditions
imposed by the Regulations but that is a different
thing from conditions which qualify or eliminate
altogether his discretion as to whether to grant a
permit at all. In conclusion, it is my opinion that
section 8 confers a discretionary authority to issue
import permits and does not create a duty to issue
them upon the fulfilment of certain conditions.
Alternatively, the appellant contends that if the
Minister has a discretion it was exercised upon the
basis of irrelevant or extraneous considerations.
This ground of appeal, as I understand it, is really
an attack upon the relevance of the policy guide
lines themselves. Specifically, it is an attack upon
the relevance of the availability of eviscerated
chicken as a reason for refusing an application for
a permit to import live chicken. The appellant did
not, as I understood its argument, attack the
guidelines on the ground that they fettered the
exercise of the Minister's discretion. It attacked
the relevance of the criteria reflected by them. It
contended, in effect, that there was no basis in the
Act for the adoption of these criteria for the
exercise of the Minister's discretion.
For the reasons I have already given, I am of the
view that a valid purpose for which the Minister
may exercise his discretion with respect to the
issue of permits for the importation of chicken is
that which is indicated in section 5(1)(a.1) of the
Act—to restrict the importation of chicken in sup
port of action taken under the Farm Products
Marketing Agencies Act. This is a broad purpose
the implementation of which by the exercise of the
Minister's licensing authority has been left to the
Minister's discretion. The appellant contended
that there was no evidence that the policy adopted
by the Minister to guide the exercise of his discre
tion was one related to that purpose. That it is so
related is a reasonable inference, I think, from the
role assigned to the Canadian Chicken Marketing
Agency in the implementation of the policy. The
Agency was established by proclamation (P.C.
1978-3966, December 28, 1978; SOR/79-158)
pursuant to section 17(1) of the Farm Products
Marketing Agencies Act, which reads as follows:
17. (1) The Governor in Council may by proclamation
establish an agency with powers relating to any farm product or
farm products the marketing of which in interprovincial and
export trade is not regulated pursuant to the Canadian Wheat
Board Act or the Canadian Dairy Commission Act where he is
satisfied that a majority of the producers of the farm product or
of each of the farm products in Canada is in favour of the
establishment of an agency.
Section 22 of the Act respecting the objects of
an agency established pursuant to section 17(1), is
as follows:
22. The objects of an agency are
(a) to promote a strong, efficient and competitive production
and marketing industry for the regulated product or products
in relation to which it may exercise its powers; and
(b) to have due regard to the interests of producers and
consumers of the regulated product or products.
The product for which the Agency is responsible
is described in the proclamation establishing it as
follows:
... that the farm product in relation to which the Canadian
Chicken Marketing Agency may exercise its powers is chickens
and any part thereof and such powers may be exercised in
relation to
(a) chickens and parts thereof produced anywhere in
Canada except in the Provinces of Alberta, Manitoba
and Newfoundland; and
(b) chickens and parts thereof produced in the Provinces of
Alberta, Manitoba and Newfoundland for shipment into
the rest of Canada in interprovincial trade and not for
export.
The Schedule to the proclamation indicates the
marketing plan to be administered by the Agency.
The plan consists of a quota system for the mar
keting of chickens by producers in interprovincial
or export trade. The Schedule contains the follow
ing definitions of "chicken" and "producer":
"chicken" means a chicken or any part thereof; (poulet)
"producer" means a person who raises chickens for processing,
for sale to the public or for use in products manufactured by
him; (producteur)
Pursuant to sections 6, 7 and 9 of Part II of the
Schedule to the proclamation, the Agency adopted
the Canadian Chicken Marketing Quota Regula
tions, which were approved by the National Farm
Products Marketing Council pursuant to section
7(1)(d) of the Farm Products Marketing Agencies
Act (SOR/79-559, August 2, 1979, Canada
Gazette, Part II, Vol. 113, No. 16, August 22,
1979). The Regulations provide for the allotment
of quotas by the Commodity Board in a province
to producers for marketing in interprovincial or
export trade. They contain the same definitions of
"chicken" and "producer" as the Schedule to the
proclamation.
The policy guidelines with respect to the impor
tation of chicken permit the Agency, in support of
the marketing program under the Farm Products
Marketing Agencies Act, to determine, as a condi
tion precedent to the issue of an import permit,
whether the product is available in the domestic
market. In my view that is a matter that is rele
vant to the purpose for which chicken was placed
on the Import Control List pursuant to section
5(1)(a.1) of the Export and Import Permits Act.
Chicken was placed on the List "to restrict ... the
importation in any form of a like article to one
produced or marketed in Canada ...." Item 19
refers to chicken without distinction as to the
various forms identified by the Office of Special
Import Policy codes and categories. This is also
true of the definition of "chicken" in the Schedule
to the proclamation establishing the Canadian
Chicken Marketing Agency and in the Canadian
Chicken Marketing Quota Regulations. These
provisions permit the discretion conferred by sec
tion 8 of the Export and Import Permits Act to be
exercised in order to protect the domestic market
in interprovincial trade of Canadian producers of
chicken by restricting the importation of chicken
in any of its forms.
The complaint in the present case is that the
Minister does not appear to have adhered to his
policy guidelines in accepting the availability of
eviscerated chicken as a reason for refusing an
import permit for live chicken. It is argued that
the word "product" in the guidelines—and par
ticularly in the statement "If Canadian product is
not offered at the market price, a permit will
normally be issued"—must refer to the specific
product for which an application for import permit
has been made. This contention is supported by the
requirement that the applicant should use the
Office of Special Import Policy codes and catego
ries, which distinguish live chicken under five
pounds and eviscerated chicken, and the require
ment that the applicant inform the Agency of the
"type of product required." I must say that this
appears to me to be a reasonable view of the
guidelines when read as a whole. Moreover, I do
not think that the Crown's contention that the
criterion expressed by the guidelines is whether the
imported product is required to fill the needs of the
Canadian market as whole, rather than the specif
ic needs of the importer, is a tenable one. I think
the word "buyer" in the guidelines necessarily
refers to the applicant for the permit.
Assuming, however, that this is a correct view of
what the guidelines purport to say—that a permit
will normally be issued if the Agency is unable to
find a domestic source of supply of the specific
product for which the applicant seeks a permit—it
is not in my opinion sufficient by itself to invali
date the Minister's decision in the present case on
the ground that it was based on an extraneous or
irrelevant consideration. To hold otherwise would
be to adopt the position that guidelines, once
adopted, indicate what are to be considered to be
the only relevant considerations for the exercise of
a discretion. Such a conclusion would be contrary
to the fundamental principle that guidelines, which
are not regulations and do not have the force of
law, cannot limit or qualify the scope of the discre
tion conferred by statute, or create a right to
something that has been made discretionary by
statute. The Minister may validly and properly
indicate the kind of considerations by which he
will be guided as a general rule in the exercise of
his discretion (see British Oxygen Co. Ltd. v.
Minister of Technology [1971] A.C. (H.L.) 610;
Capital Cities Communications Inc. v. Canadian
Radio-Television Commission [1978] 2 S.C.R.
141, at pp. 169-171), but he cannot fetter his
discretion by treating the guidelines as binding
upon him and excluding other valid or relevant
reasons for the exercise of his discretion (see Re
Hopedale Developments Ltd. and Town of Oak-
ville [1965] 1 O.R. 259).
In the present case the Minister, acting through
the Office of Special Import Policy, appears to
have adopted, as the reason for refusing the sup
plementary import permits sought by the appel
lant, the considerations which are disclosed in the
passages quoted above from the letters of the
Agency to the appellant. These considerations
relate to the quantity of eviscerated chicken avail
able and the over-all requirements of the market.
Having regard to the terms of section 5(1)(a.1) of
the Export and Import Permits Act and the
description or definition of the product in Item 19
of the Import Control List, the proclamation
establishing the Agency, and the Canadian Chick
en Marketing Quota Regulations, I am unable to
conclude that these considerations are clearly
extraneous or irrelevant to the statutory purpose
for which chicken was placed on the Import Con
trol List and to which the exercise of the Minis
ter's discretion must be related.
For these reasons I am of the opinion that the
Trial Division did not err in dismissing the applica
tion for mandamus, and the appeal should accord
ingly be dismissed with costs.
* * *
HEALD J.: I concur.
* * *
MACKAY D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.