Administrative law – Decisions of administrative tribunals – Egg Producers Board – Penalties – Service fees – Judicial review – Compliance with legislation
Alberta Egg Producers Board v. Donszelmann,  A.J. No. 1148, Alberta Court of Queen’s Bench, October 4, 2004, Johnstone J.
Donszelmann had 6,000 hens removed from his farm pursuant to a Court order. Donszelmann re-stocked his farm with 3,400 hens and again all but 300 of the hens were directed removed by the Court. In July of 1997, Donszelmann incorporated his solely owned and controlled company, Alberta Poultry Sales Ltd. Two years later, there were more than 16,000 hens on his facility. An appeal of the earlier Court order was sought and an order was made directing Donszelmann to comply with regulation and not restock hens in excess of 300. The Board then applied for monetary payment in the form of “service charges” or “profit earned” from Donszelmann.
The Act and its Regulations designate the Board as agent for the Canadian Egg Marketing Agency, which regulates and controls the production, marketing and processing of eggs and the possession of hens in Alberta. The statutory scheme contains an obligation to pay service charges to the Board, although there is no authority for this outside of the statute and regulations.
The Court characterized the charges sought by the Board as being in the nature of a debt owed rather than a penalty. For the time after December 1998, the legislation specifically contemplates legal action by the Board to recover unpaid service charges from unregistered producers such as Donszelmann. However, for the period prior to December of 1998, the Egg Production and Marketing Amendment Regulation, AR 293/97 is silent as to service charges with respect to unregistered producers, and the Court therefore held that the Board could not collect service charges due from Donszelmann during this earlier period.
The Court held that Alberta Poultry Sales Ltd. did not need to be specifically named, but that any involvement of Alberta Poultry Sales Ltd. was as agent for Donszelmann, and that it was not necessary to name the agent as respondent in a claim against a principal, pursuant to the decision of Champaklal Mistry v. B.W. Brooker Engineering Ltd.,  A.J. No. 267 (Q.B.).
Donszelmann was held liable for payment of service charges from December 1998 onward in the amount of nearly $60,000. Solicitor-client costs were awarded against Donszelmann due to his disregard for the previous Court orders.
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