Quebec farmer wins appeal against fines for exceeding poultry quota

Ferme Avicole Rodier Bombardier Inc. and Rock Bombardier have successfully challenged quota penalties imposed by the "Éleveurs de volailles du Québec" (the poultry marketing board in Quebec) in the Quebec Court of Appeal.  Bombardier was charged penalties for having exceeded chicken quota production levels by producing chickens for export from Quebec without a purchase contract in place.  In other words, with no contract in place, all of the production was counted against the quota and resulted in over-production in the eyes of the marketing board.

Bombardier contested the allegations on the basis that there was an export contract in place with a company called Volaille Giannone Inc.  Before the marketing tribunal in Quebec, Bombardier sought to have Giannone added to the case (interpleaded) to exercise a "recourse in warranty" against Giannone.  The Tribunal rejected this request and rejected a request by Bombardier to have the penalties dismissed on the basis that they were imposed outside of the applicable limitation period.  Bombardier argued that the penalty imposed falls under the authority of the Penal Code of Procedure in Quebec (rather than the Civil Code of Procedure) so that the limitation period is one year.

The Quebec Court of Appeal has found that the marketing tribunal (la Regie) was not expressly authorized by its constituting statute (the Act of the Legislature that creates the tribunal and delegates to the tribunal its powers) to impose a penalty set by the marketing board.  It did not have authority to be seized of the board's claim for a penalty.  Neither could the tribunal be seized of the producers' claim that they had a valid contract with Giannone.  On this basis, the Court of Appeal allowed the application for judicial review and overturned the decision of the Quebec Superior Court that upheld the penalties imposed by the tribunal.

However, the Court of Appeal declined to award costs to any party of the appeal/judicial review.  The Court rejected the primary argument of the producers that the fines were a penal matter that had to be addressed according to Quebec's Penal Code of Procedure (and, therefore, the board would be out of time to impose the penalties).  In the Court's view, the cost of making this argument did not facilitate the Court's study of the case. 

The decision in French is available at: Bombardier c. Éleveurs de volailles du Québec.

Appeal Tribunal dismisses challenge to poultry export rules in Ontario

Henry Bos is a chicken producer from the Niagara peninsula who wanted to sell more of his production to chicken processors in the province of Quebec. Since November 2009, as a result of a moratorium created by regulation, Mr. Bos has been capped at selling about 20% of his production to a Quebec processor and the balance of his production to Ontario processors.

Amendments to a 2005 regulation governing contractual arrangements between Ontario chicken producers and out of province processors, and a 2005 policy governing chicken production and marketing quotas implemented the 2009 moratorium.  Mr. Bos challenged the policy and regulation amendments.  The essence of his challenge was that the effect of those amendments removed his freedom to sell his chicken to whomever he chooses.  He explained, in his evidence and his arguments, that the "core character" of the impugned policy amendment and regulation amendment is to control the inter-provincial movement of chicken, and that control was beyond the jurisdiction of the marketing agency, the Chicken Farmers of Ontario (CFO).  He testified the impugned policy amendment and regulation amendment prevent him the freedom to market more than 9,025 quota units inter-provincially.  The 9,025 quota units reflected the level of Mr. Bos' contracts with a Quebec processor at the time when CFO introduced the moratorium in November 2009.

The Agriculture, Food and Rural Affairs Appeal Tribunal found that the policy and regulation amendments were within the powers of the CFO as granted by the province of Ontario.  The moratorium, the Tribunal ruled, fell within the regulation of chicken marketing in Ontario.  The moratorium was part of the control of marketing transactions within Ontario.  The fact that it temporarily and incidentally capped exports out of province did not affect the finding that the regulation and policy amendments were ones the CFO was authorized to make.  The Tribunal also noted that the moratorium is being phased out.

Read the decision at: Henry Bos vs. Chicken Farmers of Ontario (CFO).