The Petitioner, British Columbia Chicken Marketing Board (the “Chicken Board”), sought an injunction requiring the Respondent Reid, an organic chicken producer, to cease production of chicken until he had received a grower’s licence and permit from the Chicken Board. The Court granted the injunction, finding that there was nothing in the legislative scheme to exclude organically grown chicken from the reach of the Chicken Board. Certified organic chicken is chicken.

26. November 2002 0

Administrative law – Permits and licences – Compliance with legislation – Judicial review – Compliance with legislation – Remedies – Injunctions

British Columbia (Chicken Marketing Board) v. Reid, [2002] B.C.J. No. 2403, British Columbia Supreme Court, October 24, 2002, C.L. Smith J.

The Petitioner Chicken Board is one of a number of marketing boards established for various agricultural sectors in accordance with the Natural Products Marketing (BC) Act, R.S.B.C. 1996, c. 330. The mandate of the Chicken Board is to regulate the production and marketing of chicken pursuant to the British Columbia Chicken Marketing Scheme, 1961, B.C. Reg. 188/61 (the “Scheme”). The Respondent Reid has been producing organic chickens since 1994, currently producing 2,000 chickens per week. He refused to apply for a permit or acquire a grower’s licence from the Chicken Board and has not paid its fees or levies. The only other substantial grower of organic chicken in the province is licensed and holds a permit. In April 2002, Reid was notified by the Chicken Board that he was in breach of its Regulations and as such the Chicken Board ordered that he immediately cease production and marketing of chicken. In accordance with the legislation, Reid appealed the cease and desist order to the British Columbia Marketing Board and continued to produce organic chicken pending appeal without seeking a stay of proceedings from the Marketing Board. The Chicken Board in turn sought a Court injunction to enforce its cease and desist order prior to the appeal.

The provisions of the Scheme extend to all chicken including certified organic chicken. The “regulated product” is defined as “any class of chicken under 6 months of age not raised or used for egg production”. There was nothing in the Scheme indicating an intention to exclude organically grown chicken from the meaning of the word “chicken”.

The Chicken Board was not disentitled to its injunction remedy by reason of its latches or acquiescence, notwithstanding its failure to bring Reid’s organic chicken production under its control for about seven years. The source for the injunction is statutory and not equitable. Factors that might be considered by a court in an application for an equitable injunction will be of limited, if any, application to the granting of a statutorily based injunction, (Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 47 M.P.L.R. (2d) 249 (BCCA)). However, although the discretion of the court to refuse a statutory injunction is restricted, some discretion does remain.

There was no issue about failure of the Chicken Board to exhaust its administrative remedies as it was pursuing a statutory remedy which was the only available means for enforcing its orders. Once the Chicken Board issued its cease and desist order, Reid’s choices were to either obey it and appeal or seek a stay and appeal. As in British Columbia (Mushroom Marketing Board) v. Money’s Mushrooms Ltd., [1995] B.C.J. No. 792 (B.C.S.C.), ignoring the order while appealing was not an option. However, the Court suspended its Order for injunction for a few weeks to allow Reid to seek a permit or pursue an appeal and apply for a stay. On a balance of convenience, it would be unfair for the order to be effective immediately given the nature of Reid’s ongoing operation and ability to earn a livelihood.

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