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FORESTRY AND TIMBER - Sale of forest products

Monday, February 04, 2019 @ 9:34 AM  

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Appeal by the Southern New Brunswick Forest Products Marketing Board from a decision by a Panel of the New Brunswick Forest Products Commission setting aside a Marketing Order. The Board's Marketing Order was intended to establish the Board as the designated body through which all primary forest products produced on privately owned woodlots would be marketed and sold. A predecessor order required registration with the Board prior to marketing such products and purported to require sale through the Board. Producers and processors disputed the effect of the order, believing that they could deal directly with private woodlot owners, as long as delivery slips and levy fees were remitted to the Board. The subsequent Marketing Order sought to end the practice of bypassing the Board by clearly prohibiting the purchase and sale unless conducted through the Board. The respondents appealed to a Panel of the Commission. The Panel found that the Marketing Order was invalid, as it was arbitrary, lacked detail, failed to reflect the purpose of the Natural Products Act, and improperly delegated statutory powers in a biased manner. The Board appealed.

HELD: Appeal dismissed. The Panel correctly found the Board had the power to make orders advisable or necessary to regulate the marketing of wood products, but that the Marketing Order was an improper attempt by the Board to grant itself unlimited, arbitrary discretion. In addition, the Panel correctly concluded that the Order was improperly constructed, as it omitted key words contained in s. 9 of Regulation 2014-1, contrary to fundamental principles of statutory interpretation. No error arose from the finding that the Board's delegation of powers under the Order to the SNB Wood Co-op was without authority and raised an apprehension of bias and conflict of interest. The Panel's decision did not result from procedural unfairness or exceeding its jurisdiction. The decision was adequately supported by extensive reasons.

Southern New Brunswick Forest Products Marketing Board v. J.D. Irving, Ltd., [2018] N.B.J. No. 307, New Brunswick Court of Appeal, B.V. Green, B.L. Baird and R.T. French JJ.A., December 6, 2018. Digest No. TLD-February42019002