R. v. Sheffield Mills Poultry Company

R. v. Sheffield Mills Poultry Company Court Court of Appeal Date 2003-01-29 Citation 2003 NSCA 19 Docket CA 181291 Judge/Registrar/Adjudicator Chipman, David (Honourable Justice); Saunders, Jamie W. S. (Honourable Justice) (CA); Glube, Constance R. (Honourable Chief Justice) (CA) Document Type Decision Relations Library Sheet - R. v. Sheffield Mills Poultry Company - 2003 NSCA 19 - 2003-01-29 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: R. v. Sheffield Mills Poultry Company, 2003 NSCA 19 Date: 20030129 Docket: CA 181291 Registry: Halifax Between: Sheffield Mills Poultry Company Limited Appellant v. Her Majesty the Queen Respondent - and - The Attorney General of Nova Scotia Interested Party Judges: Glube, C.J.N.S.; Chipman and Saunders, JJ.A. Appeal Heard: January 27, 2003, in Halifax, Nova Scotia Held: Leave to appeal is granted but the appeal is dismissed per reasons for judgment of Chipman, J.A.; Glube, C.J.N.S. and Saunders, J.A. concurring. Counsel: Michael V. Coyle and Thomas MacEwan, for the appellant Thomas W. Jarmyn, for the respondent Interested Party not appearing Reasons for judgment: [1] The appellant seeks leave, and if granted, appeals from its conviction by Judge William MacDonald in the Provincial Court on two charges of processing turkeys without a license contrary to Regulation 15 of the Nova Scotia Turkey Producers’ Marketing Board Regulations ( “the Regulations”) made pursuant to ss. 9 and 11 of the Natural Products Act, R.S.N.S. 1989, c. 308, as amended (“the Act”). [2] The purpose of the Act is stated in the Long Title; An Act to Provide for Regulating the Marketing of Certain Natural Products in Nova Scotia. [3] Under the statutory scheme set up by the Act, a board known as the Natural Products Marketing Council is created. Pursuant to the power given by s. 6(1)(d) of the Act, the Council has established commodity boards for the purpose of carrying out any plan established under the Act. By s. 9 of the Act, the Council may make regulations regarding a number of matters including regulating and controlling the marketing or production of natural products. [4] By O.I.C. 84-209 made February 28th, 1984, amended by O.I.C. 92-1201 made December 8th, 1992, the Nova Scotia Turkey Marketing Plan and the Nova Scotia Turkey Marketing Board (“the Board”) were established. [5] Regulation 15, under which the appellant was convicted, reads: 15 (1) Each processor engaged in the slaughter or marketing of turkeys shall be registered as a processor with the Board. (2) (a) No person shall commence or carry on the business of processing turkeys except as previously authorized by licence issued by the Board. (b) No processing licence shall be issued by the Board in the absence of a written application by the proposed processor being submitted to the Board. (3) (a) All licences issued by the Board to a processor shall expire on the 31st day of December following the issuance of the licence. (b) No fee shall be chargeable to a person making application for or being granted a processor's licence. (4) (a) The Board may refuse to grant a licence to an applicant which, in the opinion of the Board, is not qualified by experience, financial responsibility, or available facility and equipment to properly engage in the processing business. (b) The Board may suspend or revoke or refuse to renew a licence to a processor for failure to observe, perform, or carry out the provisions of the Natural Products Act, these regulations, the Plan, or any order or direction of the Natural Products Marketing Council of Nova Scotia, or of the Board. [6] At the trial before Judge MacDonald the evidence was limited to admissions made by the appellant which the trial judge treated as an agreed statement of facts: 1. That without having a license to do so issued to it by the Turkey Board, the defendant company did slaughter, pluck, eviscerate, chill, and bag 41 turkeys between June 1 and June 30, 2001, and 7 turkeys between July 1 and July 31, 2001. 2. That the defendant company is not alleged in this proceeding to have purchased any of the aforementioned turkeys and did not, in fact, purchase any of the aforementioned turkeys from any commercial producer holding turkey production quota issued by the Turkey Board. 3. That the turkeys referred to in paragraph 1 were grown by producers to whom the exemption contained in Section 10 of the Regulations applied. 4. That the defendant company operates, and operated at all times material, a custom processing facility in which it slaughters, plucks, eviscerates, chills, and bags all manner of poultry, including turkeys, for non-commercial growers. The defendant company’s customers bring their live birds to the defendant company’s facility in the morning and pick them up later the same day. The defendant company’s customers pay a fee for this service. At no time does the defendant company take ownership of the customers’ birds. These facts apply to each of the 48 turkeys mentioned in paragraph 1 hereof. 5. That the defendant company is fully licensed to carry out the aforementioned activities by the Province of Nova Scotia under the Meat Inspection Regulations made pursuant to the Meat Inspection Act (N.S.) and was so licensed at all times material. A Provincial Government veterinary meat inspector is present in the defendant company’s facility to observe and supervise all slaughtering, evisceration and chill operations, and this employee of the Nova Scotia Department of Agriculture and Fisheries inspects and approves (or condemns) every bird before it is released to the customer (or disposed of). These facts apply to each of the 48 turkeys mentioned in paragraph 1 hereof. [7] In convicting the appellant, Judge MacDonald referred to the scheme under the Act as a supply management system whereby a minimum price for turkey would be established through a system of licensing producers and establishing quotas. However, he rejected the appellant’s submission that, as a processor who did not purchase turkey, but only processed them for customers exempt from licensing requirements, the licensing requirement did not apply to it. He said: Although the purpose of the legislation is to provide for a supply marketing scheme, in my opinion, the Act and the Plan confer broad authority on the Council and the Turkey Board to decide what registrations and licenses are necessary, and what sources of information they require. If I accept the submission of the defendant company that I should read down the Regulations to exclude some persons who are otherwise within the meaning of the terms in the Act, the Plan, and the Regulations, I would be meddling in matters which the Council and the Turkey Board are eminently better qualified to determine. Therefore, I reject the defendant company’s submissions that I should interpret or read down the plain words in the Act, the Plan, and the Regulations to find they do not apply to the defendant company. [8] Judge MacDonald concluded that he was satisfied beyond a reasonable doubt that the appellant violated s. 15 of the Regulations, as charged. [9] The appellant appeals to this Court stating the issues as: (a) Whether the Appellant is a “processor” within the meaning of s. 15 of the Turkey Board Regulations and, if so (b) Whether that Regulation is ultra vires the Governor-in-Council at least insofar as it applies to the appellant. Issues 1 and 2 [10] The appellant’s business is described as processing turkeys for processors who are exempt from the Regulations. The appellant refers to the agreed facts and then provides in its factum a narrative respecting the natural products industry and, in particular, the turkey business, making reference to the exemption in s. 10 of the Regulations of producers marketing less than 25 turkeys in a control period. A control period is from May 1st of each year to April 30th of the following year. The appellant refers to his customers as non-commercial turkey enthusiasts, commonly known as “backyard growers” whose relationship to the commercial turkey industry is analogous to that of a home gardener of peas and potatoes to the commercial pea/potato industry. The appellant says that central to the regulatory scheme established by the Act and regulations is the so-called supply management system for turkeys which was described by the trial judge in his decision. [11] The appellant says that it does not purchase turkeys. It only receives them for processing from producers who, in fact, are exempt from the Regulations. These producers are the ones who produce less than 25 turkeys in a control period, but there is no evidence on the record as to how many turkeys the appellant has, in fact, processed in any control period. The answer to this would depend on the number of exempt producers with whom the appellant deals. [12] At any rate, the position of the appellant is that, while conceding that based on the definitions of “process” and “processor” found in s. 1(t) and (u) of the Regulations, it would appear that the appellant falls within Regulations 15(1) and (2), the reality is that on their true interpretation, the Act and the Regulations do not embrace an operator such as the appellant. The appellant’s position is that the purpose of the scheme is to establish a supply management system involving persons with turkey quota and those who deal with such persons. The appellant is not one of those. The appellant refers to the text, The Interpretation of Legislation in Canada, Pierre-André Côté (2nd edition 1991) and to Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27. Particular reference is made to paras. 21 - 23 and the following statement made by Iacobucci, J.: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [13] The appellant’s submission is that the regulatory scheme here has as its sole raison d’etre the regulation of price, which is attained through the supply management system. It says that looking at the scheme as a whole it is clear that processors who buy turkeys from quota holders for resale are the object of the Regulation. The fact that such buyers typically process the turkeys as well is purely incidental to their main supply management related activity. The appellant refers to s. 14 of the Act, providing for a penalty for any person who fails to pay the fair or minimum price adopted or determined by the Council for any regulated product. The appellant refers to Regulation 15(4)(a) empowering the Board to refuse to grant a license to an applicant it considers not qualified by experience, financial responsibility or available facility equipment to properly engage in the processing business. This, it is said, is simply to ensure that quota holders get paid for their turkey. So too it is said that Regulation 16 requiring processors to file a settlement report setting out details of all purchases and sales transactions with producers indicates that sales only are contemplated as part of the price regulating scheme. The appellant refers to s. 11 of the Regulations requiring a processor to collect marketing levies from a producer and remit them to the Board as an indication that a financial relationship based on buying and selling turkeys between processors and producers is what renders the former subject to the Regulations. [14] We do not accept the appellant’s argument. [15] The Act’s stated purpose is to regulate the marketing of the natural products listed in s. 2(f) which includes poultry. The term “marketing” is broadly defined in s. 2(d): 2. In this Act, (d) "marketing" includes advertising, buying, selling, storing, packing, transportation, shipping, pricing, processing, shipping for sale or storage, offering for sale and any other act necessary to prepare a natural product in a form or to make it available at a place and time for purchase, for consumption or use and also includes sale by pedlars, hawkers and traders; [16] The definitions of “marketing” in the Plan and the Regulations, although narrower, include storing and packing, and “processing” and “processor” are defined in the Regulations in such terms that the appellant and its operations fall within them. The Plan’s purpose is stated in s. 3 thereof: 3 The purpose of this Plan is to promote and regulate the marketing, production and sale of turkeys; to establish from time to time the fair or minimum price at which turkey shall be purchased by processors and to cooperate with other boards, agencies and committees set up in other provinces for the same or similar purpose. [17] It is apparent from reading the Act, the Plan, and the Regulations as a whole, that the regulatory scheme thereby established covered the entire turkey industry from production to processing, transportation and sale. The purpose and object of the scheme is clear and supports the broad wording of Regulation 15 under which the appellant falls. The specific exemption from the Regulations of producers who market less than 25 turkeys in a control period (Regulation 10) not only does not extend to the appellant, but illustrates the breadth of the scheme. [18] We are satisfied that Regulation 15 applies to the appellant and that the Regulation is authorized by the legislation and hence intra vires. [19] The trial judge was correct in entering a conviction. Leave to appeal is granted and the appeal is dismissed. Chipman, J.A. Concurred in: Glube, C.J.N.S. Saunders, J.A.