Attorney-General for Manitoba v. Manitoba Egg and Poultry Association et al.

Pursuant to the provisions of the above recited An Act for Expediting the Decision of Constitutional and Other Provincial Questions, and on the basis of the assumptions set out in paragraph 2, the questions set out in paragraph 3 be referred to The Court of Appeal for the Province of Manitoba, for hearing and consideration.

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In answering the questions referred to it, The Court of Appeal be requested to make the following assumptions:—

(1) The Regulation attached as Schedule “A” hereto is proposed to be made by the Lieutenant-Governor-in-Council.

(2) The Act of the Legislature under which the Regulation is proposed to be made purports to authorize the making of such a Regulation by the Lieutenant-Governor-in-Council.

(3) The Order attached as Schedule “B” hereto is proposed to be made by the Producer Board to be established by the Regulation.

(4) The Act referred to in subparagraph (2), and the Regulation, purport to authorize the making of such an Order by the Producer Board.

(5) The Producer Board will have authority granted to it by the Governor‑in‑Council under Section 2 of the Agricultural Products Marketing Act (Can) R.S.C. 1952, Chap. 6, to regulate the marketing of eggs produced in Manitoba in interprovincial and export trade and for such purpose, with respect to persons and property situated within Manitoba, to exercise all or any powers like the powers exercisable by it in relation to the marketing of eggs locally within the Province.

The questions to be referred to The Court of Appeal be as follows:—

With especial reference to Sections 91, 92 and 121 of the British North America Act, 1867, and on the basis of the assumptions set out in paragraph 2,

(1) (a) Are the Regulation and the Order ones that it is within the legislative competence of the Manitoba Legislature to authorize the Lieutenant‑Governor-in-Council and the Producer Board respectively, to make?

ANSWER: No.

(b) If the Regulation and the Order or either of them, are in part only outside the powers of provincial legislative competence, which parts are so outside?

ANSWER: This should not arise.

(2) If the Regulation and the Order or either of them, are wholly or in part within the powers of provincial legislative competence

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(a) Would a person resident and carrying on business in a Province other than Manitoba be entitled to sell and deliver eggs produced outside Manitoba to any person in Manitoba, free from any regulation, direction or control by the Producer Board established by the Regulation, with respect to

(i) price,

(ii) quantity,

(iii) quality,

(iv) packaging,

(v) marking,

(vi) grading,

(vii) place of delivery,

(viii) identity of purchaser,

(ix) manner of payment, and

(x) contributions to the Producer Board, or

(xi) in respect of any one or more of those items,

or in any other respect?

ANSWER: Yes.

(b) Would any person resident and carrying on business in Manitoba be entitled to buy and take delivery of eggs produced outside Manitoba, from any person resident and carrying on business outside the Province, free from any regulation, direction or control by the Producer Board with respect to the matters set out in clause (a)?

ANSWER: Yes.

(c) If a purchaser to whom clause (b) applies, takes delivery in Manitoba of the eggs therein mentioned, would he then become bound in any respect by the provisions of the Regulation and the Order if he sought, in Manitoba,

(i) to consume the eggs, or

(ii) to use the eggs in his manufacturing business, or

(iii) to resell the eggs to a wholesaler, distributor, retailer or consumer?

ANSWER, in each case: No.

(d) If in relation to the persons described in clauses (a) and (b) or the purchaser described

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in clause (c), and in the circumstances described in those clauses, there is any respect in which the Producer Board can lawfully exercise powers of regulation, direction or control does that exercise become unlawful if it exceeds a certain degree as measured by its prohibitive or restrictive effect upon interprovincial trade, and if so is that degree capable of judicial definition?

ANSWER: A Provincial legislature may not exercise powers of regulation, direction or control, in respect of trade, if such exercise is, in essence and purpose, related to a Provincial boundary and impedes the free flow of trade across Canada. The degree of regulation, direction or control which is lawful would depend upon the factual situation and it would be inappropriate to attempt, in vacuo, a judicial definition.

The Regulation referred to in the Order-in-Council is described as “a Regulation providing for A Plan to Control and Regulate the Marketing of eggs in the Province of Manitoba”, such Plan to be known as “The Manitoba Egg Producers’ Marketing Plan.”

Section 2 of the Regulation contains the following definitions:

(a) “grading station” means an establishment the operator of which is under contract with the Producer Board, where any regulated product is graded, packed, marked and stored;

(b) “marketing” means selling, or offering for sale, and includes advertising, packing, storage, shipping, and transportation, but does not include packing and storage by a producer on his premises;

* * *

(d) “packing station” means an establishment the operator of which is under contract with the Producer Board, where any regulated product already graded is packed, marked and stored;

(e) “producer” means any owner of laying domestic hens who is marketing or who is producing and marketing any regulated product for any purpose other than incubation;

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(f) “Producer Board” means The Manitoba Egg Producers’ Marketing Board established by subsection (1) of Section 4 of this Regulation;

(g) “regulated product” means the egg of the domestic hen not used for incubation;

Section 3(a) and (c) provides that the purpose of the Plan is: “To obtain for producers the most advantageous marketing conditions for the regulated product” and also that its purpose is to regulate production to “avoid over-production thereof.”

Section 4(1) and (2) provides:

(1) There is hereby established a producer board to be known as The Manitoba Egg Producers’ Marketing Board.

(2) The Producer Board shall be made up of 6 members, all of whom shall be actively engaged in the production of the regulated product, to be elected by the producers as provided in a regulation to be enacted hereafter; a majority of the members of the Producer Board shall constitute a quorum for the conduct of business.

Sections 5 and 6 read:

The Producer Board shall be responsible for the operation, administration, management and enforcement of this Plan.

The Producer Board shall with respect to the regulated product be the exclusive sales agent of all producers.

The relevant portions of s. 7 provide:

Every producer shall with respect to the regulated product:—

(a) Comply with all lawful orders and regulations of the producer Board;

(b) Perform any agreement entered into by the Producer Board as his exclusive sales agent;

(c) Obtain from the Producer Board production and marketing quotas, and abide by them;

(d) Entrust the Producer Board with the exclusive marketing of his production;

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The relevant portions of s. 8 are as follows:

The Producer Board may with respect to the regulated product:—