Slater v Pedigree Poultry Ltd.

Court of Appeal for Saskatchewan

Dockets: CACV3635; CACV3636;

CACV3638

Citation: Slater v Pedigree Poultry Ltd.,

2022 SKCA 113

Date: 2022-10-07

Docket: CACV3635

Between:

Mervin Slater

Appellant

(Defendant)

And

Pedigree Poultry Ltd. and Ronald Dubois

Respondents

(Plaintiffs)

And

Saskatchewan Broiler Hatching Egg Producers’ Marketing Board

and Victor Loewen

Respondents

(Defendants)

Docket: CACV3636

Between:

Victor Loewen

Appellant

(Defendant)

And

Pedigree Poultry Ltd. and Ronald Dubois

Respondents

(Plaintiffs)

Saskatchewan Broiler Hatching Egg Producers’ Marketing Board

and Mervin Slater

Respondents

(Defendants)

Page 2 of 90

Docket: CACV3638

Between:

Saskatchewan Broiler Hatching Egg Producers’ Marketing Board

Appellant

(Defendant)

And

Pedigree Poultry Ltd. and Ronald Dubois

Victor Loewen and Mervin Slater

Respondents

(Plaintiffs)

Respondents

(Defendants)

Before:

Ryan-Froslie, Schwann and Kalmakoff JJ.A.

CACV3636 allowed in part, all other appeals dismissed

The Honourable Madam Justice Schwann

The Honourable Madam Justice Ryan-Froslie

The Honourable Mr. Justice Kalmakoff

Disposition:

Written reasons by:

In concurrence:

On appeal from:

Appeal heard:

Counsel:

2020 SKQB 100 and QBG 2590 of 2001, Regina

October 14 and 15, 2021

Michael Scharfstein and Bonnie Cherewyk for Mervin Slater

Robert Kennedy, K.C., and Lauren Wihak for Victor Loewen

Jeremy Ellergodt and Bo Carter for the Saskatchewan Broiler

Hatching Egg Producers’ Marketing Board

Daniel Maddigan and John Beke, K.C., for Pedigree Poultry Ltd. and

Ronald Dubois

Page 1

Schwann J.A.

I.

INTRODUCTION

[1]

The action that gives rise to these appeals concerns the tort of misfeasance in public office.

It raises the difficult question of where the appropriate balance should be struck between curbing

questionable behavior on the part of a regulatory body and its public officials and protecting those

officials from claims brought by individuals who are adversely affected by their decisions.

[2]

The factual backdrop in which this tort was alleged to have occurred is in connection with

the supply management regime for the broiler hatching egg producers’ industry in Saskatchewan,

which is established pursuant to provincial legislation. In broad-brush terms, the legislative scheme

creates a regulatory tribunal to oversee the production and marketing components of the industry,

principally through a licensing regime and quota limits.

[3]

The Saskatchewan Broiler Hatching Egg Producers’ Marketing Board [Board] is the

regulator of that program. The individual defendants, Mervin Slater and Victor Loewen, were

directors of the Board at the relevant time as well as active producers in the broiler hatching egg

industry. The plaintiffs in the action, Pedigree Poultry Ltd. [Pedigree] and Ronald Dubois

[collectively, the respondents], were producers whose businesses fell under the oversight of the

Board.

[4]

The respondents commenced an action for compensatory damages against the Board as

well as Messrs. Slater and Loewen in their individual capacities as directors of the Board in relation

to actions that the Board took, or omitted to take, in the discharge of its regulatory function. The

respondents alleged that their actions and behavior rose to the level of misfeasance in public office.

[5]

The Court of Queen’s Bench trial judge who heard the matter found each of the Board and

the individual defendants liable for misfeasance in public office. He awarded the respondents

substantial damages and imposed a punitive damage award against Mr. Slater personally: Pedigree

Poultry Ltd. v Saskatchewan Broiler Hatching Egg Producers’ Marketing Board, 2020 SKQB

100, 87 Admin LR (6th) 66 [Trial Decision].

Page 2

[6]

The Board, Mr. Slater and Mr. Loewen [collectively, the appellants] have each appealed

from the Trial Decision. They say the trial judge committed numerous errors of law, fact, and

mixed law and fact. For the reasons that follow, I find their appeals must be dismissed, apart from

one aspect of Mr. Loewen’s appeal (CACV3636).

II.

BACKGROUND

A.

The regulation of the broiler hatching egg producers’ industry

[7]

The chicken industry is supply managed. It is composed of two streams: the production

and marketing of broiler hatching eggs by breeder producers and the production and marketing of

broiler chickens by broiler producers. The issue at trial involved the former.

[8]

In on-the-ground terms, the broiler hatching egg producers’ industry works in this way. A

hatchery in Saskatchewan (at the relevant time, Sunnyland Poultry Products Ltd. [Sunnyland])

purchases day-old chicks from a grower in the United States. The hatchery then sells those chicks

to licenced Saskatchewan broiler hatching egg producers, who have available quota to accept the

hatchery’s placement. Those producers then raise the day-old chicks (called pullets) in what is

known as a pullet barn, until they mature and become capable of laying eggs. This process takes

roughly 20–22 weeks.

[9]

The pullets are then placed in laying barns, where they lay eggs for 55 to 65 weeks. At this

point in their development, the chicks are called layers. The eggs from the laying barns are then

delivered to the hatchery, where they were incubated. Chicks hatched from those eggs (called

broilers) are sent to broiler producers who raise the birds for slaughter.

[10] The broiler hatching egg producers’ industry was created by The Natural Products

Marketing Act, RSS 1978, c N-3 [1978 Marketing Act]. Among other things, that legislation

authorized the Lieutenant Governor in Council to constitute a board to administer plans for the

promotion, control and regulation of the marketing of a natural product within Saskatchewan. A

natural product is defined to mean “any product of … animals including poultry whether alive or

killed …” (1978 Marketing Act, s 2).

Page 3

[11] In 1985, The Broiler Hatching Egg Marketing Plan Regulations, RRS c N-3 Reg 1

[Regulations], was enacted to create a regulatory framework for the production and marketing of

the hatching egg industry. The Regulations created the Board and assigned to it the responsibility

for the administration of the Saskatchewan Broiler Hatching Egg Marketing Plan [Marketing

Plan], the purposes of which are set out in s. 6 of the Regulations:

Purposes

6(1) The general purpose and intent of the plan is to provide for orderly marketing in the

Saskatchewan hatching egg industry.

(2) Without limiting the generality of subsection (1), the specific purposes of the plan are:

(a) to regulate the production and marketing of hatching eggs in an orderly manner

in Saskatchewan;

(b) to maintain a stable price for hatching eggs that is relative to the cost of

production;

(c) to ensure the availability of an adequate supply of hatching eggs to meet the

market demand;

(d) to establish marketing quotas for producers;

(e) to initiate, or co-operate in, research and education relating to the production

and marketing of hatching eggs; and

(f) to co-operate with federal and extra-provincial marketing bodies with similar

purposes.

The Board is vested with a broad array of powers, including the authority to issue, cancel or

suspend any licence, require information from producers relating to the production and marketing

of hatching eggs, inspect records and make any order considered necessary or advisable to

promote, control and regulate the production and marketing of hatching eggs. The Board’s powers

are set out in s. 8 of the Regulations:

Powers of board

8(1) The board is vested with the power:

(a) to regulate the time and place at which and the agency through which hatching

eggs are marketed;

(b) to regulate the manner of distribution, quantity, grade and class of hatching

eggs that are marketed by any producer at any time;

(c) to prohibit, in whole or in part, the transportation, packing, storing or marketing

of any quantity, grade or class of hatching eggs;

(d) to market, including grading, hatching eggs either as principal or agent;

(e) to exempt from any order any person or class of persons engaged in the

production or marketing of hatching eggs or any class, variety or grade of hatching

eggs;

Page 4

(f) to require any or all producers to register with and obtain licences from the

board and provide any guarantees of financial responsibility that it considers

necessary;

(g) to issue licences, fix and collect licence fees, collect charges for services

rendered by it and collect penalities from any or all producers, and for those

purposes to classify such producers into groups and fix the licence fees and charges

payable by the members of the different groups, and to recover any such licence

fees, charges or penalities by suit in any court of competent jurisdiction;

(h) to cancel or suspend any licence for violation of any part or provision of the

plan, of any order of the board or of the regulations and to reinstate any cancelled

or suspended licence;

(i) to require from all producers full information relating to the production or

marketing of hatching eggs, as well as periodic information in any form that it may

determine;

(j) to inspect the records of production of hatching eggs and the premises of

producers at its discretion;

(k) to fix or determine the price or prices or minimum price or prices at which

hatching eggs, or any quality, grade or class thereof, may be bought or offered for

sale in Saskatchewan;

(l) to require the person in charge of any vehicle in which hatching eggs may be

transported to permit any person designated by the board to search the vehicle;

(m) to seize, remove and dispose of any hatching eggs marketed in violation of an

order of the board and retain or otherwise dispose of the proceeds thereof;

(n) to use any moneys it receives in carrying out the purposes of the plan and

paying its expenses;

(o) to borrow, raise or secure the payment of money in any manner that it considers

appropriate for the proper administration of the plan;

(p) to draw, make, accept, endorse, execute, issue, hypothecate or assign

promissory notes, bills of exchange and other negotiable or transferable

instruments;

(q) to purchase, take on lease or in exchange or otherwise acquire real property for

the purpose of its business and to sell or otherwise dispose of, or mortgage, real

property acquired by it;

(r) subject to the approval of the council, to make such orders as in its opinion are

necessary or advisable to promote, control and regulate the production and

marketing of hatching eggs and to amend or revoke such orders; and

(s) to carry out educational and research programs relating to hatching eggs.

(2) The board may accept and exercise any power or authority delegated to it by or pursuant

to the Agricultural Products Marketing Act (Canada), as amended from time to time, in

relation to any power, authority or function that may be conferred or imposed pursuant to

that Act.

Page 5

[12] Although the 1978 Marketing Act was repealed in 1990, the Board and the Regulations

were carried forward under The Agri-Food Act, SS 1990-91, c A-15.2 [1991 Agri-Food Act], and

ultimately its successor legislation, The Agri-Food Act, 2004, SS 2004, c A-15.21. Under the 1991

Agri-Food Act, the Board is required to give licence holders notice and the right to be heard when

it seeks to suspend or cancel a licence. The 1991 Agri-Food Act also established an appeal

committee to “hear appeals from any person aggrieved by an act or omission of an agency”

(s. 22(1)(a)). Among other things, an appeal committee is empowered to “confirm, vary, disallow

or stay” any Board decision or “refer the matter back to the agency for its consideration”

(s. 22(3)(b)(iii)). A significant feature to the Regulations, enacted under the 1991 Agri-Food Act,

is the prohibition against the sale of the quota per se.

[13] Quota is an important feature of this regulatory scheme. Pursuant to s. 21 of the

Regulations, the Board may, by order, provide for the fixing and allotting of quota to producers

for the production and marketing of hatching eggs. Where there is an increase in Saskatchewan’s

overall allotment of quota, or where any quota has reverted to the Board, s. 21(4) requires half of

it to go to individuals who wish to enter the industry and the other half to existing producers.

[14] Until July of 2000, producers were not allowed to transfer quota other than as part and

parcel of the sale of a production unit and, further, only if the Board was satisfied that no

remuneration had been paid for the quota itself. The Board orders most relevant to the issue of

quota are as follows:

ORDER NO. 1 (1986)

…

1. The Board shall, on coming into force of this order, establish a quota system based upon

the number of eggs to be marketed from a given number [of] chicks placed on an annual

basis.

…

4. A quota that is allocated to a registered producer shall relate to and be attached to a

particular production unit. Only one production unit shall be situated on a legally defined

parcel of land.

…

6. No person or persons shall own, control or have an interest in more than one production

unit, without the written permission of the Board.

Page 6

7. The maximum annual quota shall be 1,450,000 eggs per production unit, except for

production units with capacity over 1,450,000 eggs prior to August 12, 1985. Producers

who are allocated quota equal to or in excess of 1,450,000 eggs per production unit are not

eligible for future quota expansion.

…

ORDER NO. 6/86

PRODUCTION INTERRUPTION

…

1.a. A producer who wishes not to produce part or all of his annual quota of broiler hatching

eggs shall apply to the Board for permission before December 1st of the year prior to the

year the interruption of production and marketing is to occur.

b. The Board may approve or reject any applications for interruption in the production and

marketing of part or all of a producer’s annual quota.

c. The Board may cancel all or part of the producer’s quota if the producer fails to produce

and market all or part of the quota without the permission of the Board.

d. Before quota is cancelled the producer shall be given 14 days notice by registered or

certified mail. Where the producer is not satisfied with the Board’s decision he might

proceed to appeal the case to the Natural Products Marketing Council.

…

ORDER NO. 8/86

QUOTA TRANSFER

…

1. Transfer of quota shall be approved by the Board when the following conditions have

been met:

a. The production unit is sold or leased by one person to another person.

b. Except where quota is being transferred within the family, the production unit

shall have been advertised through the Board.

…

ORDER NO. 12/98: QUOTA ALLOCATION

…

4. In the event of industry expansion and pursuant to section 21(4) of the Plan (where 50%

of the total amount of quota expansion will be offered to new producers) the majority of

the remaining new quota shall be offered to existing units currently placing less than 30,000

breeder chicks. The maximum individual allotments will be determined by the Board

following discussion at a general meeting of producers and industry representatives.

[15] In November of 1998, Order No. 1 was repealed and replaced with Order No. 18/98: Quota

and Licence Transfer. This order allowed for the transfer of licence and quota, subject to Board

approval.

Page 7

B.

The key players

[16] When the industry became regulated in the mid 1980s, James Glen, the principal of

Pedigree, was grandfathered into the program. This resulted in Pedigree being granted a licence

and receiving a quota of 18,000 bird units, or 2,610,000 hatching eggs based on 145 eggs per bird.

Because Pedigree was grandfathered into the regulatory program, its initial quota exceeded the

maximum available limit established by Board Order No. 1, which, at that time, was 1,450,000

eggs per year, based on 10,000 bird units.

[17] Mr. Dubois became a licenced producer in 1991 when he purchased an existing production

unit at Pike Lake, Saskatchewan. His quota was set at 8,400 bird units (or 1,218,000 eggs). Shortly

thereafter, Mr. Dubois leased a hatching barn from Prairie Properties Limited, a company owned

by Mr. Glen, which was located on the same quarter section as Pedigree’s barns in the Regina

Beach area. Pedigree administered the day-to-day operations for Mr. Dubois, including arranging

for the placement of chicks from Sunnyland.

[18] Mr. Dubois also entered a management services contract [management agreement] with

Pedigree on December 31, 1996, pursuant to which Pedigree agreed to “provide complete

management services for [Mr. Dubois’s] hatching egg production operations …”. The trial judge

accepted as fact that Mr. Dubois had little hands-on involvement in the business.

[19] Mr. Slater was a founding director of the Board and remained in that capacity from August

of 1985 until December 31, 1999, when he became the Board’s manager. As mentioned, Mr. Slater

was the first Board chair and retained that position for most of his tenure on the Board. During that

time, he assumed responsibility for the Board’s day-to-day administration, supervised employees,

and was the contact person when people called the Board. He organized the meetings, signed

cheques, answered correspondence and so forth. In short, he was the face of the Board.

[20] Mr. Slater was also the Board’s representative on the Broiler Industry Committee [BIC].

The raison d’être of the BIC was to work with the chicken marketing boards to realize on

opportunities to increase the production capacity of breeders and broilers. Other members of the

BIC were Eugene Bendig (an official with Saskatchewan Agriculture and Food), Lanny Weiler

(the general manager of Sunnyland) and David Keet (a farmer who represented the Chicken

Farmers of Saskatchewan).

Page 8

[21] In addition, Mr. Slater was a producer at the relevant time. His production unit, called

Spruce Hill Livestock Ltd., was first licenced in 1986 for 28,500 bird units. Spruce Hill received

an additional quota of 1,500 bird units in 1999.

[22] Mr. Loewen was a Board director from 1991 to 2001, and its chair for a brief period in

2000. He, too, was in the hatching business, operating under the name Pine Grove Poultry. His

business’s initial quota was 7,500 bird units.

[23] Tim Keet was also a director of the Board at the material time. He was not named as a party

in the respondents’ lawsuit.

C.

The Board’s early relationship with Pedigree and Mr. Dubois

[24] Soon after the Board was established in the mid 1980s, difficulties arose between it and

Messrs. Glen and Dubois. They were the genesis of this action. As the trial judge described it,

these difficulties “affected Mr. Slater’s attitude toward both Mr. Glen and Mr. Dubois”, and, given

Mr. Slater’s leadership role on the Board, “the Board’s actions were affected by Mr. Slater’s

antipathy for both of them” (Trial Decision at para 41). According to the trial judge, these points

of conflict set the stage for the allegations of misfeasance that were eventually levelled at

Mr. Slater, Mr. Loewen and the Board. I will briefly recount the back story as it provides the

necessary foundation for the respondents’ allegations.

[25] The first point of difficulty that arose between Mr. Glen and the appellants occurred in

1993, shortly after Mr. Glen was elected to the Board. He requested the release of certain Board

records. The Board resisted. Mr. Glen was also at odds with Mr. Slater over the implementation

of a policy to deal with the temporary surplus of hatching eggs in the early 1990s. They differed

on how to implement a responsive policy and associated compensation program. Mr. Slater

favoured pro rata cuts by all producers, whereas Mr. Glen advocated for a system that called for

early slaughter and compensation for the oldest breeder broiler flocks.

Page 9

[26] Even after Mr. Glen left the Board, like all producers, his approval was required to address

any temporary surplus. Despite Mr. Glen and others having refused to provide their consent for

the Board’s surplus removal program, the Board adopted Mr. Slater’s policy direction and put a

surplus removal program in place, describing it as having been passed when in fact it had not

obtained the necessary approval from all producers. Mr. Glen laid a complaint with the

Agricultural and Food Products Development and Marketing Council [Council] over that

misrepresentation. The Council is responsible to the Minister for the supervision of the operation

of all agencies, including the Board. As noted by the trial judge, the Council sided with the

producers (Trial Decision):

[47] In the result, Council intervened. A meeting was held in January 1996, where Mr. Glen

was again a vocal opponent of the Board’s actions. On March 9, 1996, Mr. Slater, as board

chair, wrote to advise all producers – despite being aware of the fact that orders were not

effective unless they had been approved by Council – that Council “has rescinded Order

12/95”. In fact, and as he well knew, Council had never approved that order.

[27] The third incident between Mr. Glen and the Board related to Pedigree’s reduced

production following a fire in 1994, which destroyed its barns. Pedigree immediately rebuilt but

its new barns could only handle 40% of its prior capacity, or roughly 8,000 to 8,500 birds. Because

of the fire, Mr. Slater had urged Mr. Glen to apply for a stand down. This form of order authorizes

a temporary reduction in the amount of production without relinquishing quota. Some

correspondence passed between the parties, but nothing further came of the issue. Notwithstanding

the fire and its disruptive effects on Pedigree’s hatching business, the Board continued to licence

it in 1996, 1997 and 1998, without any reduction in quota, even though the Board knew that

Pedigree was underproducing. Pedigree attempted to return to full production in 1998 and 1999

but, as discussed below, was unable to do so.

[28] Mr. Dubois’s difficulties with the Board began in 1991, when he purchased his production

unit and then sought to transfer his operation to the Regina Beach area, near the Pedigree operation.

Mr. Dubois’s acquisition of that production unit was financed by a company owned by Mr. Glen.

Mr. Slater saw this as a red flag, and, as the trial judge put it, this resulted in “the first skirmish”

in what was referred to at trial as the “sham producer” war that “would end only when the Board

was finally put under the control of an administrator in 2000” (at para 52). Mr. Slater, for the

Board, said the transfer could not be approved without assurance from Mr. Glen that Pedigree

would not gain an interest in or control of more than one production unit. The Board asked

Page 10

Mr. Dubois to file an application identifying all persons who held an interest in his operation.

When he refused to do so, the Board rejected his transfer request, characterizing it as “a scheme to

enlarge a farm [Pedigree’s] more than 10,000 units” and that it was unfair “for one producer to use

the other producers work … to further benefit himself with no respect for the others” (at para 54).

[29] Mr. Dubois took his dispute with the Board to a conciliation committee as required by

s. 11(2) of the Regulations. A compromise was struck, whereby the Board agreed to approve

Mr. Dubois’s transfer on the condition that he kept his operation “separate and apart from any

other production unit” and that it not exceed 10,000 bird units.

[30] The second dispute between Mr. Dubois and the Board related to his 1996 request to

advertise his quota for sale. Once again, the Board pressed for further information from Mr. Dubois

as to the identity of the proposed purchaser. Mr. Dubois did not clarify his position and again asked

for his quota to be advertised (notwithstanding that a Board order at that time only permitted the

advertising of a production unit not a quota). Mr. Dubois took his complaint to the Council for a

mediated solution.

[31] The lawyer retained by Mr. Dubois sent multiple letters to the Board, reiterating

Mr. Dubois’s request and demanding a response. None came and an Appeal Committee hearing

was scheduled.

[32] In October of 1997, despite being informed that all communication with Mr. Dubois was

to be through his lawyer, Mr. Slater called Mr. Dubois directly, who, at that time, resided in Texas.

Mr. Slater did not immediately identify himself; however, his identity became obvious to

Mr. Dubois once Mr. Slater started quizzing him about his operation. The trial judge understood

the purpose of Mr. Slater’s call was to confirm his suspicion that Mr. Dubois owned nothing and

was a mere pawn operating under the umbrella of Pedigree.

[33] At the Appeal Committee hearing held on November 3, 1997, the Board once again

asserted that Mr. Dubois was not actively involved as a producer and that Pedigree was behind his

operation and accessing his quota. Nonetheless, the Appeal Committee allowed Mr. Dubois’s

appeal and directed the Board to proceed with advertising Mr. Dubois’s production unit. It also

rejected the Board’s sham producer argument, writing as follows (Dubois v The Saskatchewan

Page 11

Broiler Hatching Egg Producers’ Marketing Board (3 November 1997) Saskatoon, Agri-Food

Appeal Committee at 5):

The Board raised a concern that the unit might be under control by another producer. The

Committee noted that this is a separate issue and again does not relieve [the] Board from

its obligation to advertise the unit. If the Board sees evidence that another producer is

contravening orders dealing with controlling interest, then it is the Board’s responsibility

to fully investigate the matter and take appropriate action.

[34] The trial judge did not accept Mr. Slater’s testimony about the purpose of his telephone

discussion with Mr. Dubois. The trial judge also rejected Mr. Slater’s evidence about the

production quota and advertising dispute, describing it as “cut from whole cloth” (Trial Decision

at para 62). The trial judge found the real reason why the Board responded as it did to Mr. Dubois

was because it took the position, as it had at the Appeal Committee hearing, that “Mr. Dubois was

not an active producer, was not actively involved in the production unit” and that Pedigree was

contravening Board orders (at para 65).

D.

The specific allegations of misfeasance in public office

[35] The trial judge determined the appellants had committed misfeasance in public office in

three ways: (a) by Mr. Slater interfering with Pedigree’s June of 1998 placement, (b) by

authorizing a May 24, 1998, letter purporting to significantly affect the respondents’ licences and

quota, and (c) by failing to award expansion quota to them. A somewhat in-depth recitation of the

factual matrix is necessary to understand the parties’ positions at trial and the Trial Decision.

1.

The industry expansion and prelude to the June placement issue

[36] The broiler hatching egg producers’ industry was in an aggressive expansion mode in 1998.

The Chicken Farmers of Canada was prepared to substantially increase Saskatchewan’s market

share, provided the province’s industry was able to respond swiftly. To that end, the Board

determined that it should increase quota capacity quickly, knowing it would take time for

producers to ramp up production. The Board conveyed the news of the proposed expansion to all

Saskatchewan producers by a letter dated January 19, 1998, in which it inquired whether they

wished to take part in this one-time opportunity.

Page 12

[37] In addition to seven other producers, both Mr. Glen and Mr. Dubois received the Board’s

January 19, 1998, letter. They each responded in writing to express their interest. In a follow-up

telephone conversation, regarding Pedigree’s proposed expansion, Mr. Slater told Mr. Glen that

he was under pressure to increase the production of hatching eggs and asked for Mr. Glen’s

placement information. He told Mr. Glen that the cap of10,000 bird units imposed by Order No. 1

would be increased to 30,000. Mr. Glen responded by letter of March 24, 1998. He expressed an

interest in an additional 12,000 bird units, of which 7,500 were to be placed in June of 1998 [June

placement] and the balance at different intervals in 1998 and into 1999. Mr. Glen’s letter stipulated

that his proposal was subject to the hatchery’s schedule and obtaining financing for poultry house

construction. He emphasized that time was “of the essence and thus [he] would appreciate

[Mr. Slater’s] timely response”.

[38] Mr. Glen communicated news of his anticipated quota expansion and June placement to

Bob Kowalchuk, an official with Sunnyland. He also expressed a willingness to build a broiler

breeder farm close to Sunnyland’s operation in Wynyard. Sunnyland confirmed that it could

arrange for an enhanced June placement of pullets. On April 14, 1998, Mr. Glen also met with the

Farm Credit Corporation to discuss financing. The trial judge accepted that Pedigree would have

been able to obtain financing, if not through the Farm Credit Corporation, then through the Glen

family, as it had substantial assets. He then made this important finding: “Mr. Glen was ready,

willing and able to carry out this plan to expand Pedigree and to make the placements identified in

his March 24 letter” (at para 75).

[39] Mr. Slater sent another letter about the quota expansion to producers on April 14, 1998,

seeking further details about their financing arrangements and placement schedules. Mr. Dubois

was not included in this mailout, but Mr. Glen was. Mr. Glen, however, did not respond because

he felt that he had already supplied the sought-after information and had informed Mr. Slater

personally of Pedigree’s ability to ramp up quickly. Financial details were not provided because

Pedigree could not finalize arrangements without confirmation that it would get additional quota.

However, in Mr. Glen’s subsequent letter to the Board on April 28, 1998, he confirmed his request

for an additional 12,000 bird units, and his intention to expand his facilities.

Page 13

[40] Mr. Slater testified that the April 14, 1998, Board letter was sent to all producers and that

those who responded provided everything he had asked for. The trial judge rejected his evidence.

Regarding Mr. Dubois, the trial judge stated, “Mr. Dubois did not respond to the April 14 letter

because Mr. Slater did not send it to him, having concluded he was a sham producer” (emphasis

added, at para 78). He also rejected Mr. Slater’s testimony that all producers who eventually

received additional allocation on September 9, 1998, had, in fact, responded to the April 14, 1998,

letter.

[41] Despite there being conflicting evidence as to the length of time it would take for a

placement to occur, the trial judge accepted that Mr. Glen’s June placement would have occurred

but for the events that followed. His finding was based, in part, on Mr. Loewen’s testimony that

placements could take anywhere from a month to a few months and the fact that Mr. Loewen was

personally able to secure a placement of 20,000 chicks in five weeks.

2.

Cancellation of Pedigree’s June placement

[42] Although there was conflicting evidence about whether the June placement was logistically

possible, the trial judge accepted Mr. Glen’s testimony that Sunnyland had agreed to the placement

and would have been able to place the chicks with Pedigree. However, on April 21, 1998, Mr. Glen

was informed by Mr. Kowalchuk that, because of what he had heard at a BIC meeting held on

April 17, 1998, Pedigree’s proposed June placement was in jeopardy. Mr. Glen called Mr. Slater

immediately. As the trial judge put it, Mr. Slater “responded angrily that Mr. Glen had not

responded to his April 14 letter, and told Mr. Glen that if he failed to respond, he would be ‘out of

luck’” (at para 83). Mr. Glen insisted that Pedigree had already provided the Board with a

placement schedule and had confirmed that financing would be in place. According to Mr. Glen,

Mr. Slater remained agitated when he reiterated that his placement schedule did not include

anything for Mr. Dubois. The trial judge inferred that this discussion confirmed that, in

Mr. Slater’s mind, Mr. Glen had an interest in Mr. Dubois’s operation and Mr. Dubois was little

more than a sham producer.

Page 14

[43] When Mr. Glen spoke with Mr. Slater again on April 27, 1998, about the June placement,

Mr. Slater said the quota for the June placement did not exist because Pedigree had not been

granted a stand down. This was the first time the stand down issue had come up since it was raised

by Mr. Slater after Pedigree’s 1994 fire. Mr. Slater also flagged several other long-standing

grievances with Mr. Glen. Mr. Glen raised his concerns about getting a June placement from the

hatchery with Mr. Weiler (the general manager of Sunnyland), who deferred to the Board.

[44] Mr. Glen wrote to the Board on April 28, 1998, and again on May 5, 1998, to confirm that

Pedigree had made the necessary arrangements for the June placement and that, pursuant to its

1998 licence, it already had sufficient quota for that placement. When his request for an immediate

response went unanswered, Mr. Glen appealed the Board’s lack of response.

[45] On May 11, 1998, Mr. Kowalchuk informed Mr. Glen that Pedigree’s June placement was

cancelled. The trial judge made the following findings about that cancellation:

[91] I nonetheless find that the June placement was cancelled by Sunnyland on May 11

because Mr. Slater made statements to Mr. Weiler at the BIC meeting which were intended

to and in fact led Sunnyland to conclude that Pedigree may lack the quota for that

placement, and then failed to set Sunnyland straight. I concluded that Mr. Slater so advised

Mr. Weiler because Mr. Weiler said at the BIC meeting that he did not know Mr. Dubois,

which Mr. Slater took as confirmation that [Mr. Dubois] had never placed chicks.

Mr. Slater believed he had the smoking gun which confirmed Mr. Dubois was not

operating a separate production unit from Pedigree.

(Emphasis added)

The trial judge gave numerous reasons to support his determination that “Mr. Slater, Mr. Loewen

and the Board had continued to believe Mr. Dubois was a sham producer before the April 17 BIC

meeting” (at para 92) and that their actions throughout “are properly understood as continuing

attempts to win the sham producer war” (at para 94).

[46] According to Mr. Glen, at a mediation session held on May 22, 1998, which took place

prior to his appeal of the June placement issue, Mr. Slater indicated that the Board had no problem

with the June placement. The trial judge accepted Mr. Glen’s evidence. The Board was asked to

confirm that position in writing, but it failed to do so, as promised. Instead, two days later, on May

24, 1998, the Board sent a rather stunning letter, the specifics of which are discussed below.

Page 15

3.

The May 24 cancellation and amalgamation letter

[47] The Board’s May 24, 1998, letter, signed by Mr. Slater, purported to (a) cancel Pedigree’s

“unused quota” of 10,300 bird units, (b) transfer Mr. Dubois’s entire production unit (including

quota) to Pedigree, and (c) require Pedigree to find a market for its product. The letter reads as

follows:

Dear Mr. Glen,

Re: Board’s decision following May 20 [sic], 1998 meeting with yourself, the board, and

council representative.

1. The production unit referred to as Pedigree Poultry managed by Jim Glen has produced

eggs from 8500 chicks placed per year for the last four years. No stand down permission

was granted. The cancellation of the unused quota 18,000 - 7,700 = 10,300 takes place as

of now.

2. With the information supplied from Ron Dubois and the history of this production unit.

The quota and production unit known as Ron Dubois which has always been managed,

administered and shares the same grow barns, egg room, and office, [will] be rolled into

Pedigree Poultry with an annual quota of 7700 + 8500 = 16,200.

3. The province is in need of more hatching eggs and is in the process of giving out quota

to existing producers and new producers, as you have requested an increase of 7500 chicks

per year the Board is willing to look at this request if you find a legitimate market for your

product to be produced at the same building complex.

[48] Neither Pedigree nor Mr. Dubois had been given prior notice of these decisions nor were

they afforded the opportunity to be heard. The trial judge made the following significant

observations and findings in connection with the letter:

[98] The May 24 letter was fundamentally inconsistent with Mr. Slater’s statement at the

mediation that the Board had no problem with the June placement. It confirmed that all

Board members knew Mr. Glen wanted expansion quota. It incorrectly said he wanted only

7,500 more bird units, when he had very clearly asked for 12,000. It also called for him to

find a market. That requirement was not imposed on any other producer as a condition of

being considered for expansion quota.

[49] Pedigree appealed the Board’s decisions as expressed in the May 24, 1998, letter. The

Board did not arrange for mediation as required by the Regulations. At the Appeal Committee

hearing, conducted on September 2, 1998, the Board advanced the position that it was entitled to

cancel 10,300 bird units of Pedigree’s quota on 14 days’ notice on the footing that Pedigree had

underproduced without a stand down order. Its position was advanced despite there being no

correspondence between Mr. Glen and the Board over this issue for many years.

Page 16

[50] The Board also argued that it had no choice but to cancel Pedigree’s quota as Sunnyland

had decided not to make further placements. Mr. Slater attempted to buttress the Board’s position

by referring to a conversation he had had with Mr. Weiler and the latter’s correspondence to him

of July 23, 1998, two months after the cancellation of the June placement, in which Mr. Weiler

was said to be dissatisfied with Pedigree.

[51] The trial judge concluded the timing of Mr. Weiler’s July of 1998 letter had no bearing on

the decision expressed in the Board’s May 24, 1998, letter and that it was little more than “a

transparent attempt to justify its actions, tailored to fit the defence narrative” (at para 104). From

the whole of the evidence, including the Appeal Committee’s conclusions, the trial judge drew the

following inference in relation to the Board’s actions:

[105] Further, the Board did not cancel Pedigree’s quota because Pedigree had

underproduced, as it claimed in the May 24 letter. It cancelled Pedigree’s quota and

transferred Mr. Dubois’ license because it decided to rearrange Pedigree’s and Mr. Dubois’

licenses and quotas to line them up with what it had concluded was really happening: that

is, the operation of a single Pedigree production unit that had been making two placements

a year. The Board did so despite having been explicitly directed by the Appeal Committee

in the advertising appeal decision – which closed the book on the first of the Board’s

misguided attempts to deal with the sham producer issue without taking the steps required

by the Act, Regulations and orders – that if it was concerned with this issue, it should fully

investigate and then take further action.

[52] The Appeal Committee ruled in favour of Pedigree and Mr. Dubois in a decision rendered

in November of 1998: Pedigree Poultry Ltd. v The Saskatchewan Broiler Hatching Egg

Producers’ Marketing Board (2 September 1998) Regina, Agri-Food Appeal Committee. It

ordered the Board to rescind the May 24, 1998, letter and return Pedigree’s quota allocation. The

trial judge summarized the conclusions of the Appeal Committee in this way:

[107] Pedigree received the decision of the Appeal Committee relating to its September 2

appeal in November 1998 [November 1998 decision]. The decision was clear, blunt and

fully vindicated Pedigree’s position. Among other things, it said the Appeal Committee

reached the following conclusions:

(a) The Board failed to take expedient action in relation to the mediation.

(b) The Board’s cancellation of Pedigree’s quota based on the lack of a stand down

agreement was “a complete turnabout from the agreement at the mediation

meeting”.

(c) The [1991 Agri-Food] Act, the Regulations and the orders require that the

Board provide a producer the opportunity to be heard before cancelling quota, and

no such opportunity was provided before the May 24 cancellation.

Page 17

(d) The Board may have had justification for cancelling quota, although that

remained questionable based on the evidence at the hearing. However, it failed to

take appropriate action. It failed to follow up after Pedigree was not granted a stand

down in 1995, but instead issued licenses in 1996, 1997 and 1998.

(e) The Board failed to respond to repeated inquiries from Pedigree, and gave no

notice “as to its concerns about underproduction from Pedigree until the May 24th

letter cancelling 10,300 hens ‘as of now’”.

(f) The Board failed to operate in good faith when an attempt was made to mediate

a resolution to Pedigree’s concern.

(g) The Board acted contrary to the intent of the orders and Regulations, which

require a fair opportunity for a producer to be heard upon the cancellation of quota

rights.

[53] Pedigree sought to restore its placements with Sunnyland but was told none were available

for 1998 and possibly into 1999. When Pedigree applied to the Board for its 1999 licence, the

Board did not issue it for four months, being two months beyond the usual time it had taken in the

past. As things turned out, Pedigree only received placements for half of its existing quota in 1999.

[54] Pedigree experienced further difficulties in obtaining its 2000 licence. In 2000, Mr. Slater

repeatedly rejected Pedigree’s applications for licensing and requested additional information,

which Mr. Glen dutifully provided. Further, the Board refused to take Mr. Dubois’s payment for

his licence because it would not accept a cheque from anyone other than Pedigree, “stating that

Mr. Dubois did not place the flock, and that it would look to Pedigree for payment” (at para 111).

[55] When the Board indicated that it would not grant Pedigree a licence for 2000, Pedigree

appealed. The Board once again pushed the theory that Pedigree and Mr. Dubois were a single

production unit and supplemented its submissions with the suggestion that Pedigree had bad

business relations with Sunnyland. The Appeal Committee once again ruled in favour of Pedigree

and ordered the Board to immediately issue the 2000 licence: The Saskatchewan Broiler Hatching

Egg Producers’ Marketing Board (Re) (November 2000) Saskatoon, Agri-Food Council [2000

Council Decision]). While the 2000 Council Decision was under reserve, Mr. Slater wrote to

Lilydale (the company that had taken over the hatchery business from Sunnyland) to inform it that

Pedigree did not have authority to produce and market eggs in 2000 and that the Board would not

allow the May of 2000 placement. The Board approved that letter.

Page 18

4.

The Board’s dealings with Mr. Dubois

[56] I have already alluded to Mr. Dubois’s early difficulties with the Board and will not repeat

that history. However, what transpired from 1998 to 2000 was highly relevant to the trial decision.

[57] From the time Mr. Dubois received his 1998 licence in February of that year, until the May

24, 1998, cancellation letter, no correspondence of any significance passed between him and the

Board. As discussed above, the May 24, 1998, letter purported to roll Mr. Dubois’s entire

production unit into Pedigree’s. Astonishingly, Mr. Dubois was not copied on that letter and was

not advised by the Board in advance that it was even contemplating that course of action.

[58] The Board’s purported cancellation drew an immediate response from Mr. Dubois’s legal

counsel, who took issue with its failure to provide notice and for not sending him the April 14,

1998, letter about the expansion quota. When the Board did not respond to this, and several follow

up letters from Mr. Dubois’s legal counsel, Mr. Dubois appealed.

[59] Mr. Dubois’s appeal was heard on September 2, 1998, in conjunction with Pedigree’s

appeal. At the appeal hearing, and contrary to the May 24, 1998, letter, Mr. Slater informed the

Appeal Committee that the Board had not altered Mr. Dubois’s quota. This about face led Mr. Keet

(a Board director) to write the following handwritten apology from the Board: “We Are

Addressing your concerns to the Misbelief that your quota and licence was taken away from you.

This is not true and we apologize for any inconvenience”.

[60] The trial judge found that the Board’s so-called apology misrepresented its position:

[124] … The Board was well aware the May 24 letter purported to “take away”

Mr. Dubois’ license by “rolling” his quota and production unit into Pedigree. I concluded

that the Board made this ill-conceived attempt to claim there was “nothing to see here”

because Mr. Slater and Mr. Loewen, at least, and thus the Board, knew what the Board had

done was unlawful, as it did not comply with the regulatory framework. The Board had

finally rolled over, three months after it was first told by counsel for Mr. Dubois that it had

acted unlawfully.

[61] Like Pedigree, Mr. Dubois did not receive his 1999 licence in a timely way. The Board

refused to accept his fees. On April 28, 1999, the Board cancelled Mr. Dubois’s quota and licence.

The cancellation letter provided as follows:

This is your official notice that your quota and license is being cancelled. Note:

Saskatchewan Broiler Hatching Egg Marketing Plan 8(1)(h), 8(1)(i), 8(1)(j), and Order No.

12/98(6).

Page 19

1) You have not asked for a stand down.

2) You have not purchased any breeders for at least 3 years, if not longer.

3) You have not satisfied the board that you have any interest in the poultry

industry, attached letter dated April 8, 1999.

4) You stated on October 27, 1997 when you talked to the chairman by phone that

you had nothing to do with the Regina Beach operation.

Your cancellation is in effect June 04, 1999.

[62] Mr. Dubois appealed. The Appeal Committee found that while Mr. Dubois’s relationship

with Mr. Glen was relevant to the cancellation issue, neither party had conclusively proved their

positions one way or the other. While the Appeal Committee was satisfied that the Board had cause

to doubt Mr. Dubois, it ultimately allowed Mr. Dubois’s appeal because the Board had failed to

provide reasonable notice. Of significance, the Appeal Committee concluded by stating as follows

(Dubois v The Saskatchewan Broiler Hatching Egg Producers’ Marketing Board (17 August

1999) Saskatoon, Agri-Food Appeal Committee at 6 [1999 Dubois Appeal Committee Decision]):

Should the board wish to re-initiate a new cancellation process, the board should provide

adequate prior notice to Mr. Dubois and an opportunity to be heard as required under

Section 9 of The Agri-Food Act, before any cancellation occurs. The notice should set out

the grounds for any proposed cancellation, the time within which he must respond and the

consequences of failing to do so.

[63] The Board appealed the 1999 Dubois Appeal Committee Decision to the Court of Queen’s

Bench. That appeal was dismissed: Saskatchewan Broiler Hatching Egg Producers’ Marketing

Board v Dubois, 1999 SKQB 228, [2000] 5 WWR 269. Mr. Dubois’s 1999 licence was finally

issued on December 14, 1999. Shortly thereafter, the Board renewed its efforts to cancel

Mr. Dubois’s licence by requesting further documentation and evidence from him. By letter of

February 14, 2000, the Board informed him that it would cancel his licence after the expiration of

four weeks.

[64] Following an exchange of correspondence, Mr. Dubois filed another appeal on February

28, 2000, alleging that the Board had exceeded its jurisdiction and was maliciously harassing him.

The Appeal Committee once again found in favour of Mr. Dubois: The Saskatchewan Broiler

Hatching Egg Producers’ Marketing Board (Re) (11 May 2000) Saskatoon, Agri-Food Appeal

Committee. It determined that Mr. Dubois was a producer within the meaning of the Marketing

Plan and that “the Board’s actions were intrusive and bordered on harassment” (emphasis added,

at 4). The Appeal Committee ordered the immediate reinstatement of Mr. Dubois’s licence.

Despite this decision, the Board continued to slow walk Mr. Dubois’s 2000 licence and dealt with

him as if he were not a licenced producer.

Page 20

5.

Allocation of the expansion quota

[65] As mentioned above, in the midst of the aforementioned interactions between the Board,

Pedigree and Mr. Dubois, the Board was tracking an expansion strategy for the industry to align

itself with the possibility of an increased, province-wide market share. The Board’s January 19,

1998, and April 14, 1998, letters were integral to its interactions with all Saskatchewan producers.

[66] The Board held a meeting on September 9, 1998, where it allocated an expansion quota of

58,220 bird units to seven of the existing producers. All who had requested an expanded quota –

other than Pedigree, Mr. Dubois and another entity – were granted what they had requested, either

unconditionally or on a conditional basis. Mr. Loewen (Pine Grove Poultry), for instance, received

18,000 new units. As it turned out, of the 58,220 bird units that were allocated at the September

meeting, only 36,920 were eventually taken up. From this, and the other evidence about how and

why some quota was not fully taken up, the trial judge drew the following conclusions:

[147] No additional quota was allocated or offered to [Mr. Dubois] or Pedigree by the

Board at the September 9 meeting, or at any time before the administrator took control. I

concluded there was no discussion at the September 9 meeting of granting additional quota

to [Mr. Dubois] or Pedigree, despite that the Board knew that both were licensed producers

that wanted additional quota.

[148] I also concluded – based on the regulatory history relating to the plaintiffs prior to

September 9, but the defendants’ actions after that meeting – that the failure to allocate

quota to Pedigree or Mr. Dubois on September 9 was part and parcel of their ongoing

attempt to have their way in relation to the sham producer issue, despite knowing the Board

had not taken the steps necessary to cancel Mr. Dubois’ license. Mr. Slater and

Mr. Loewen, at least, and thus the Board, did not wish to deal with Mr. Dubois and

Mr. Glen as separate producers who were entitled to share in the new quota or in the quota

that would be returned as a result of conversion. Their goal was to achieve the outcome

that they failed to achieve on May 24. They wanted Mr. Dubois gone, and Mr. Slater to be

licensed as the operator of a single production unit located at Regina Beach.

(Emphasis added)

[67] The trial judge found as fact that neither Mr. Glen nor Mr. Dubois were informed of the

September 9, 1998, meeting in advance or of its results. He then said as follows:

[160] … neither [Mr. Glen] nor Mr. Dubois knew the particulars of the new quota

allocations until November 2000. Mr. Glen learned those particulars on November 24 and

27, 2000, when he attended a Board strategic planning session, and was given a copy of a

report titled “Quota Issuance by SBHEPMB”. That report contained the details of the new

quota allocations listed above.

[68] Finally, the evidence showed that the expansion project resulted in Mr. Slater’s operation

receiving an additional 1,500 bird units and Mr. Loewen’s an additional 20,000 bird units.

Page 21

6.

Subsequent actions

[69] In late 1998, negotiations took place between Mr. Glen and Mr. Bendig of BIC –

purportedly on behalf of the industry at large – about the possible expansion of Pedigree’s quota:

but the offers were geared toward treating the Regina Beach operations (i.e., Pedigree’s and

Mr. Dubois’s) as one entity. Mr. Glen saw this as an attempt to achieve what the Board had

intended to realize by its May 24, 1998, letter. Mr. Dubois was never part of those discussions.

The negotiations were eventually terminated.

[70] As noted above, Pedigree and Mr. Dubois experienced difficulties obtaining their licences

in 1999 and 2000. The Board delayed issuance of their respective licences and was persistent in

its pursuit of the cancellation of Mr. Dubois’s licence. On May 18, 2000, Mr. Glen wrote to the

Saskatchewan Minister of Agriculture and Food, alleging that the Board was not acting within the

scope of its authority and was engaging in harassment. By order of the Lieutenant Governor in

Council, dated June 8, 2000, the Board was stripped of its powers, which were assigned to the

Minister of Agriculture and Food. Pedigree and the new administrator attempted to negotiate a

resolution to Pedigree’s claim for damages for the loss of the 1998 placement and expansion quota.

Those discussions proved unfruitful, and the matter proceeded to trial, resulting in the Trial

Decision now under appeal.

III. THE TRIAL DECISION

[71] After comprehensively reviewing the evidence and the law pertaining to misfeasance in

public office, the trial judge turned to Pedigree’s and Mr. Dubois’s core allegations.

[72] Dealing first with Pedigree’s allegation of the misfeasance that it said led to the loss of its

June placement, the trial judge found that Mr. Slater’s attendance at the BIC meeting of April 17,

1998, was in his capacity as a public officer as a member of the Board and that his discussions

with Mr. Weiler about Pedigree’s quota status created concerns in the mind of Sunnyland, which

eventually led to the cancellation of Pedigree’s placement. In sharing information, and undertaking

those discussions with Mr. Weiler, Mr. Slater spoke in his capacity as Board chair and member.

As such, the trial judge concluded he “had a legal obligation not to knowingly or recklessly

misrepresent Pedigree’s status as a licensed producer” (at para 194). Similarly, when Mr. Slater

Page 22

heard Mr. Glen’s representations relating to the June placement, he was also acting in a public

capacity and was under an obligation to address the uncertainty he had created: “He was not

entitled to do nothing” (at para 195).

[73] The trial judge found Mr. Slater guilty of “sins of omission and sins of commission” in

relation to his handling of the June placement:

[199] … He knowingly or with the necessary subjective reckless disregard for his duties

as chair and a member of the Board both acted and failed to act, in a manner that was

unlawful and was likely to cause damage to Pedigree. He was guilty of Category B

misfeasance and that misfeasance caused the cancellation of the June placement. Further,

Pedigree was unable to secure placements in 1999 to mitigate the damage resulting from

that cancellation. As Pedigree said, the Board had by then awarded quota to Pine Grove

that would prevent such a placement.

[74] While the trial judge was not prepared to infer that the Board had authorized what

Mr. Slater had done or that Mr. Loewen knew what had happened before May 11, 1998, when the

June placement was cancelled, he found those facts largely irrelevant to the question of their

liability: “If the Board had acted properly as soon as it became aware of the problem, rather than

doing what it did on May 22 and May 24, Pedigree would have been able to complete a placement

and avoid suffering a loss. As such, Mr. Loewen and the Board are also liable for the damage

suffered on that account” (at para 203).

[75] The trial judge turned next to the respondents’ misfeasance allegations concerning the May

24, 1998, letter, which, as mentioned, purported to roll Mr. Dubois’s production unit (i.e., licence

and quota) into Pedigree’s, cancel Mr. Dubois’s licence, and cancel 10,300 bird units of Pedigree’s

quota for underproduction due to its failure to obtain a stand down order. The trial judge concluded

that the Board took this measure, even though no proposal had been made for this course of action.

As he put it, “The May 24 letter was out of the blue” (at para 204).

[76] The trial judge found Mr. Slater, Mr. Loewen and Mr. Keet “participated fully in the

decisions reflected in the May 24 letter” (at para 205) and that “Mr. Loewen, like Mr. Slater, had

actual knowledge that they and the Board could not do what they did on May 24 without giving

Mr. Dubois and Pedigree a right to be heard” (emphasis added, at para 206). In addition, if he had

not found direct knowledge, the trial judge was satisfied that they acted in “reckless disregard for

the lawfulness of their actions” (at para 206). He also found that both Mr. Loewen and Mr. Slater

were aware that the decisions reflected in the May 24, 1998, letter “would cause the affected

producer to suffer damages” (at para 207).

Page 23

[77] In response to the Board’s argument that it was motivated by a higher public interest and

properly exercised its regulatory responsibilities, the trial judge found it to be “no defence that the

[appellants] claim they had a reasonable suspicion [that Mr. Dubois’s operation] was a sham” (at

para 209). Even if Mr. Dubois had been found to have breached Board orders, such an action would

not have been a defence: “The fact a public officer believes their cause is righteous does not mean

they can ignore the law which governs the exercise of their public functions” (at para 210). Put

bluntly, the trial judge was unpersuaded by the Board’s argument because, as a matter of law, it

was required to operate lawfully.

[78] A summary of the trial judge’s conclusion on liability in connection with the May 24, 1998,

letter is found at paragraph 211 of his decision:

[211] … The Board sought to rearrange Pedigree’s and Mr. Dubois’ licenses and quotas to

correspond with what it had concluded was really happening; that is, a single Pedigree

production unit was making two placements a year. It did so without complying with the

procedural requirements imposed by the regulatory framework. That is sufficient – given

that damages of the right sort were caused – to make out misfeasance in these

circumstances. Further, they misled Pedigree as to the reason it cancelled its unused quota,

as they did so because of the sham producer issue, which they were not entitled to take into

account.

[79] The final aspect of the respondents’ claim was the Board’s alleged failure to provide them

with expansion quota. The trial judge made the following key findings of fact in connection with

that issue:

(a)

(b)

(c)

(d)

the Board granted an expansion quota – conditionally or otherwise – to seven of the

producers who had expressed an interest;

the Board was aware that Pedigree and Mr. Dubois had requested an additional

quota, yet it failed to grant or even consider granting an expansion quota to them;

Pedigree’s response to the Board’s January 19, 1998, solicitation of interest letter

was more complete than the responses of others who had been awarded quota; and

many of the producers who had received an expansion quota, including

Mr. Loewen, had not provided the required information or assurances the Board

had demanded.

Page 24

[80] Based on those findings, the trial judge determined that Pedigree and Mr. Dubois had not

been dealt with in the same way or on the same basis as the other producers on September 9, 1998,

nor had they been awarded an expansion quota after the first round of allocation ended. His

summary for why the appellants had acted as they did is as follows:

[216] I have explained above why I have concluded the defendants took this route. The

Board did not fail to allocate quota to the plaintiffs for any of the shopping list of reasons

identified by the defendants – not because Mr. Dubois had said he wanted to sell his

production unit, not because Sunnyland would not place chicks with Pedigree, not due to

uncertainty as to their capacity to ramp up or their alleged failure to respond to the April

14 letter, not for biosecurity reasons, and not for any other reason related to the capacity of

either of the plaintiffs. It failed to allocate quota to Pedigree or Mr. Dubois on and after

September 9 because it was committed to having its way in relation to the sham producer

issue.

(Emphasis added)

The unfairness of it all, the trial judge said, was exacerbated by the fact that the Board kept

Pedigree and Mr. Dubois “in the dark” throughout the quota expansion exercise (at para 218).

[81] The trial judge rejected the Board’s submission that the granting of a quota was a matter

exclusively within its almost unfettered discretion. Pointing to s. 21(2) of the Regulations, he

remarked on how the Board was obliged to offer new quota to existing producers and to discharge

that function fairly and “in an even-handed fashion, based on proper considerations, and in

accordance with the regulatory framework” (at para 223). To conclude on this point, he said as

follows:

[226] In the result, the individual defendants either knew, or were reckless as to whether,

they and the Board were acting unlawfully when they decided to exclude Pedigree and

Mr. Dubois from the allocation of expansion quota. This was one more attempt to have

their way without the bother of providing proper notice and a fair hearing before deciding

if Mr. Dubois was a sham producer, making an order authorized by law if the Board

decided he was a sham producer, and weathering the inevitable appeal. The defendants also

knew a failure to award expansion quota to the plaintiffs would likely cause them damage.

(Emphasis added)

[82] For all of those reasons, the trial judge was satisfied that the tort of misfeasance in public

office had been made out against each of the appellants with respect to both Pedigree and

Mr. Dubois. After a careful assessment of the expert evidence adduced by the parties on the

quantification of loss, the trial judge found the appellants liable for the following damages:

Page 25

(a)

For Pedigree –

(i)

$20,394 for the loss of its June placement;

(ii)

$1,574,518 for loss of income from the Board’s failure to allocate expansion

quota; and

(iii) $540,000 for loss of the capital value of the unallocated quota.

(b)

For Mr. Dubois –

(i)

$70,538 for loss of income from the Board’s failure to allocate expansion

quota; and

(ii)

$900,000 for the loss of the capital value of the unallocated quota.

[83] In addition to pre-judgment interest and costs, punitive damages in the amount of $50,000

were assessed against Mr. Slater personally.

IV. THE LAW: MISFEASANCE IN PUBLIC OFFICE

[84] The tort of misfeasance in public office is an intentional tort rooted in the principle that

“those who hold public office and exercise public functions are subject to the law and must not

abuse their powers to the detriment of the ordinary citizen” (Freeman-Maloy v Marsden (2006),

208 OAC 307 (CA) at para 10). In Three Rivers District Council v Governor and Company of the

Bank of England (No 3), [2000] 2 WLR 1220 (HL) [Three Rivers], the House of Lords described

the tort in a similar way (at 1230):

The rationale of the tort is that in a legal system based on the rule of law executive or

administrative power “may be exercised only for the public good” and not for ulterior and

improper purposes: Jones v. Swansea City Council [1990] 1 W.L.R. 54, 85F, per Nourse

L.J.; a decision reversed on the facts but not on the law by the House of Lords [1990] 1

W.L.R. 1453, 1458. The tort bears some resemblance to the crime of misconduct in public

office: Reg. v. Bowden [1996] 1 W.L.R. 98.

[85] In its earliest formulation, the tort was limited to situations where the public office holder

abused a power the officer actually possessed. In Canada, the tort was expanded, beginning with

the formative decision Roncarelli v Duplessis, [1959] SCR 121 [Roncarelli]. There, the premier

of Quebec was found liable for directing the liquor licensing regulator to revoke Mr. Roncarelli’s

Page 26

liquor licence, even though the premier had no statutory authority in the decision-making process.

In light of Roncarelli, the tort was broadened beyond allegations of abuse of a statutory or

prerogative power to situations “where a public officer with actual knowledge of his lack of

statutory power or authority acted in a manner that he knew would probably harm the plaintiff”

(Philip H. Osborne, The Law of Torts, 6th ed (Toronto: Irwin Law, 2020) at 224). In England, for

example, the House of Lords in Three Rivers also enlarged the scope of the tort by giving effect to

the idea that the tort can arise from a range of misconduct committed by a public official, including

“sins of omission” (at 1275).

[86] The Supreme Court revisited the tort of misfeasance in public office in Odhavji Estate v

Woodhouse, 2003 SCC 69, [2003] 3 SCR 263 [Odhavji], which remains the leading authority on

the matter. Speaking for the court, Iacobucci J. concluded that the “ambit of the tort is not

restricted” to situations where the public officer is engaged in the unlawful exercise of a statutory

or prerogative power (at para 19). The class of conduct to which the tort applies is “more broadly

based on unlawful conduct in the exercise of public functions generally” (at para 17). The focus

on the alleged misconduct demands an examination of whether it was deliberate and unlawful. In

this regard, the Supreme Court, adopting Three Rivers, said this:

24 Insofar as the nature of the misconduct is concerned, the essential question to be

determined is not whether the officer has unlawfully exercised a power actually possessed,

but whether the alleged misconduct is deliberate and unlawful. As Lord Hobhouse wrote

in Three Rivers, supra, at p. 1269:

The relevant act (or omission, in the sense described) must be unlawful.

This may arise from a straightforward breach of the relevant statutory

provisions or from acting in excess of the powers granted or for an

improper purpose.

(Emphasis added)

[87] The broader ambit of this tort, as set out in Odhavji, now means that it can apply to

situations “where the public officer wilfully injures a member of the public by: an abuse of power

possessed; intentionally exceeding powers possessed; or the deliberate failure to discharge a public

duty” (Lisa Mrozinski, “Monetary Remedies for Administrative Law Errors” (2009) 22 Can J

Admin L & Prac 133 at 138).

Page 27

[88] In Odhavji, Iacobucci J. set out the elements of the tort of misfeasance in public office as

being these: “(i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness

that the conduct is unlawful and likely to injure the plaintiff” (at para 32). Plaintiffs must also

“prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries

suffered are compensable in tort law” (at para 32). Lewis N. Klar et al, Remedies in Tort, loose-

leaf (2020 Rel 10) vol 3 (Toronto: Thomson Reuters, 2020), summarizes what a plaintiff needs to

prove to succeed in a misfeasance in public office claim (at 24-21):

2. Elements of Cause of Action

§60 To establish the tort of misfeasance in public office a plaintiff must show: (1) the public

official deliberately engaged in unlawful conduct in his or her capacity as a public officer;

(2) the public official was aware both that the conduct was unlawful and that it was likely

to harm the plaintiff; (3) the public official’s tortious conduct was the illegal cause of the

plaintiff’s injuries; and (4) the injuries suffered are compensable in tort law.

(Footnotes omitted)

[89] Justice Iacobucci, in Odhavji, formulated two ways in which the tort can be committed:

(a)

Category A, also know as targeted malice, occurs where the public officer

specifically intended to harm a person or class of persons; and

(b)

Category B involves a situation where a public officer acts with the knowledge that

they have no power to do the act complained of and that the act is likely to injure

the plaintiff.

[90] The difference between these two categories has often been described as a question of

proof. In the Category B formulation, the plaintiff must prove the two ingredients independently,

i.e., that the public officer was aware that their conduct was unlawful and that it was likely to harm

the plaintiff. With Category A, however, the fact that the officer expressly acted for the purpose

of harming the plaintiff is sufficient proof. Regardless of the formulation, there must still be proof

of a “deliberate disregard of official duty coupled with knowledge that the misconduct is likely to

injure” (at para 23): see also The Law of Torts at 225.

Page 28

[91] As to the knowledge component of a Category B type situation, a plaintiff must establish

that the defendant had actual knowledge that the conduct was unlawful and that the likely

consequence of the alleged misconduct was harm to the plaintiff. The required mental element

with a Category B form of the tort is said to include subjective recklessness. In addressing the idea

of subjective awareness of harm arising from the misconduct, Iacobucci J. said as follows:

38 The statement of claim also alleges that the defendant officers and the Chief “knew or

ought to have known” that the alleged misconduct would cause the plaintiffs to suffer

physically, psychologically and emotionally. Although the allegation that the defendants

knew that a failure to cooperate with the investigation would injure the plaintiffs satisfies

the requirement that the alleged misconduct was likely to injure the plaintiffs, misfeasance

in a public office is an intentional tort that requires subjective awareness that harm to the

plaintiff is a likely consequence of the alleged misconduct. At the very least, according to

a number of cases, the defendant must have been subjectively reckless or wilfully blind as

to the possibility that harm was a likely consequence of the alleged misconduct: see for

example Three Rivers, supra; Powder Mountain Resorts, [2001 BCCA 619]; and Alberta

(Minister of Public Works, Supply and Services) (C.A.), [2001 BCCA 619]. This, again, is

not a sufficient basis on which to strike the pleading. It is clear, however, that the phrase

“or ought to have known” must be struck from the statement of claim.

(Underline emphasis in original, italic emphasis added)

[92] As can be seen from this discussion, by adopting the approach taken in Three Rivers and

Powder Mountain Resorts Ltd. v British Columbia, 2001 BCCA 619, [2001] 11 WWR 488

[Powder Mountain], Odhavji expanded the ambit of the tort and clarified the point that subjective

knowledge can include recklessness or wilful blindness on the part of the public officer. The

Ontario Court of Appeal in Foschia v Conseil des Écoles Catholique de Langue Française du

Centre-Est, 2009 ONCA 499, 266 OAC 17, synthesized the law on this point in this way: “In

proving the third element [i.e., awareness], it is sufficient for the plaintiff to show that the public

official acted with reckless indifference to both the unlawfulness of his or her act and the likelihood

that it would injure the plaintiff” (at para 24): also see Meekis v Ontario, 2021 ONCA 534 at

para 73, 461 DLR (4th) 307, and Ontario Racing Commission v O’Dwyer, 2008 ONCA 446, 293

DLR (4th) 559 [O’Dwyer].

[93] The Supreme Court recently returned to the Odhavji principles in Ontario (Attorney

General) v Clark, 2021 SCC 18, 456 DLR (4th) 361 [Clark]. While the decision in Clark did not

engage in an in-depth discussion of the tort of misfeasance in public office, it did provide this

summary of the tort’s constituent elements:

Page 29

[22] The elements and proper scope of the tort of misfeasance are not disputed in this

appeal. A successful misfeasance claim requires the plaintiff to establish that the public

official engaged in deliberate and unlawful conduct in his or her capacity as a public

official, and that the official was aware that the conduct was unlawful and likely to harm

the plaintiff (Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, at para. 23, per

Iacobucci J.).

[94] Clark is important in two fundamental respects. It affirmed (a) the broad scope or ambit of

the tort, and (b) that subjective awareness can be established through subjective recklessness or a

conscious disregard for the lawfulness of the conduct and its harmful consequences:

[23] The unlawful conduct anchoring a misfeasance claim typically falls into one of three

categories, namely an act in excess of the public official’s powers, an exercise of a power

for an improper purpose, or a breach of a statutory duty (Odhavji, at para. 24). The

minimum requirement of subjective awareness has been described as “subjective

recklessness” or “conscious disregard” for the lawfulness of the conduct and the

consequences to the plaintiff (Odhavji, at paras. 25 and 29; Powder Mountain Resorts Ltd.

v. British Columbia (2001), 94 B.C.L.R. (3d) 14 (C.A.), at para. 7; Three Rivers District

Council v. Bank of England (No. 3) (2000), [2003] 2 A.C. 1 (H.L.), at pp. 194–95, per Lord

Steyn).

V.

ANALYSIS

A. The tort of misfeasance in public office

[95] Common to all three appeals is the assertion that the trial judge erred in his interpretation

and application of the subjective element of the tort of misfeasance in public office. It is the

appellants’ position that the mental element of the tort requires a positive finding of dishonesty or

bad faith and that an honest but mistaken belief in the lawfulness of the act, mere negligence, or

maladministration is not sufficient. The appellants also assert the trial judge misapplied the

elements of the tort and thereby erred in law because he overlooked or overemphasized the

following:

(a)

(b)

(c)

there was no statutory rule or regulation that was breached with regard to the way

the Board awarded the expansion quota;

the respondents were not entitled to an enhanced quota (or any quota, for that

matter);

the Board’s directors were motivated with the best interests of the industry at heart;

Page 30

(d)

if Saskatchewan producers could not ramp up production, the expansion quota

would be taken away;

(e)

(f)

the trial judge over-emphasised the sham producer issue; and

the trial judge failed to consider the broader landscape of the industry and the

Board’s regulatory responsibilities.

1.

The subjective element

[96] The trial judge’s articulation of the elements of the tort of misfeasance in public office is

found at paragraph 171 of the Trial Decision:

[171] What, then, are the elements of the tort? Misfeasance in public office is “an

intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct

in the exercise of public functions and (ii) awareness that the conduct is unlawful and likely

to injure the plaintiff”. (Odhavji, para 32) Those elements may be made out in either of the

two ways identified by the House of Lords in Three Rivers District Council v Bank of

England (No. 3), [2000] 3 ALL ER 1 (HL), which Odhavji characterized as Category A

and Category B misfeasance. Category A is made out if a public officer acts for the purpose

of harming the plaintiff, which in and of itself makes out both distinguishing elements. To

make out Category B, the plaintiff must prove both elements of the tort; that is, that the

public officer was aware the conduct was unlawful and that it was likely to harm the

plaintiff (Odhavji, para 23). Here, we are concerned only with Category B.

[97] The trial judge went on to say that “proof of deliberate unlawful conduct” was not required

and that, as he understood the law, proof of actual knowledge that the “act or omission was

unlawful and likely to harm a plaintiff” was not necessary (at para 173). Instead, he said, “It is

sufficient to prove subjective recklessness or wilful blindness as to these two factors” (at para 173).

The trial judge also accepted that, as a matter of law, a breach of procedural fairness could ground

the tort. That proposition appears to have been conceded by the appellants at trial: see paragraph

177.

[98] The appellants acknowledge that Odhavji remains the leading decision on the tort of

misfeasance in public office and that this decision expanded the ambit of the tort to include an

enlarged range of misconduct. That said, as the appellants emphasize, the tort is not directed to

maladministration or even negligence by a public officer. The requirement for a deliberate course

of action, they say, is animated by the need to establish an element of bad faith or dishonesty.

Page 31

[99] The matter at hand involved an allegation of a Category B type of the tort. The appellants

say that, to establish the mental element under this category, bad faith or dishonesty must be

proven. Put another way, they argue that a defendant’s subjective recklessness must be understood

within the traditional confines of the tort – at bottom, the focus is on bad faith and dishonesty.

Some would argue – as the appellants have – that proof of a bad faith type of threshold is necessary;

otherwise, the alleged illegality or misuse of power is little more than the application of

administrative law principles to a private law action for damages that will inevitably lead to delay,

undue cost, and a chill on all public officers.

[100] There is some support for the argument that bad faith is part of the liability analysis under

Category B. Indeed, Odhavji says as much:

28 As a matter of policy, I do not believe that it is necessary to place any further restrictions

on the ambit of the tort. The requirement that the defendant must have been aware that his

or her conduct was unlawful reflects the well-established principle that misfeasance in a

public office requires an element of “bad faith” or “dishonesty”.

[101] Support can also be drawn from J.P. v British Columbia (Children and Family

Development), 2017 BCCA 308 at para 329, [2017] 12 WWR 639, leave to appeal to SCC refused,

2018 11146 [J.P.]. There, the British Columbia Court of Appeal observed that a finding of

liability “requires ‘clear proof commensurate with the seriousness of the wrong’” and that

“subjective recklessness or wilful blindness requires a higher standard of proof than objective

foreseeability of harm for negligence” (at para 329, quoting Powder Mountain at para 8).

[102] While the majority decision in Clark did not expand on the mental element, Côté J. (writing

in dissent but not on this point) framed the mental element along much the same lines. She said as

follows:

[162] In Odhavji, Iacobucci J. stated that the elements of misfeasance in public office create

a high threshold that protects public officers from these risks (E. Chamberlain, Misfeasance

in a Public Office (2016), at p. 4; Odhavji, at paras. 28–30). A plaintiff must establish

deliberate misconduct that demonstrates bad faith or dishonesty. Inadvertent or negligent

actions of public officers are not enough (Odhavji, at para. 26). There must be an

intentional abuse of power (para. 30).

(Emphasis in original)

Page 32

[103] All of that said, even if I accept the proposition that proof of an element of bad faith is

required to make out a Category B type of the tort, the question that remains is what constitutes

bad faith. David Mullan, in his article “Roncarelli v. Duplessis and Damages for Abuse of Power:

For What Did It Stand in 1959 and For What Does It Stand in 2009?” (2010) 55 McGill LJ 587

[Mullan], suggests that debate came to a head in Odhavji – where the Supreme Court relied on

case law that held reckless indifference to the legality of the actions was sufficient (Three Rivers

and Powder Mountain) and found that formulation could establish the tort under Category B. This

idea, Mullan says, is supported further by how the Supreme Court adopted a broad interpretation

of bad faith, which includes recklessness, as presented in Finney v Barreau du Quebec, 2004 SCC

36, [2004] 2 SCR 17 [Finney]. Finney involved the interpretation and application of a good faith

statutory immunity clause. Justice Lebel, writing for the Court, cast the concept of bad faith in

broad terms:

[39] These difficulties nevertheless show that the concept of bad faith can and must be

given a broader meaning that encompasses serious carelessness or recklessness. Bad faith

certainly includes intentional fault, a classic example of which is found in the conduct of

the Attorney General of Quebec that was examined in Roncarelli v. Duplessis, [1959]

S.C.R. 121. Such conduct is an abuse of power for which the State, or sometimes a public

servant, may be held liable. However, recklessness implies a fundamental breakdown of

the orderly exercise of authority, to the point that absence of good faith can be deduced and

bad faith presumed. The act, in terms of how it is performed, is then inexplicable and

incomprehensible, to the point that it can be regarded as an actual abuse of power, having

regard to the purposes for which it is meant to be exercised (Dussault and Borgeat,

[Administrative Law: A Treatise, 2d ed (Toronto: Carswell, 1990)], vol. 4, at p. 343). This

Court seems to have adopted a similar view in Chaput v. Romain, [1955] S.C.R. 834. In

that case, provincial police officers were held liable for breaking up a meeting of Jehovah’s

Witnesses. Although the police had been granted immunity by a provincial statute for acts

carried out in good faith in the performance of their duties, Taschereau J. concluded that

the police officers could not have acted in good faith, as there was no other explanation for

their negligence (p. 844). (See also, but in the context of an action to quash a municipal

by-law, the comments by Pratte J. in Corporation de St-Joseph de Beauce v. Lessard,

[1954] B.R. 475, at p. 479.) Moreover, the fact that actions have been dismissed for want

of evidence of bad faith and the importance attached to this factor in specific cases do not

necessarily mean that bad faith on the part of a decision-maker can be found only where

there is an intentional fault, based on the decision-maker’s subjective intent (see, for cases

dealing with intentional fault: Deniso Lebel Inc., [[1996] RJQ 1821 (CA)]; Directeur de la

protection de la Jeunesse v. Quenneville, [1998] R.J.Q. 44 (C.A.), leave to appeal refused,

[1998] 1 S.C.R. xiii).

[104] The contours of bad faith described in Finney were adopted in Enterprises Sibeca v

Frelighsburg, 2004 SCC 61, [2004] 3 SCR 304 [Sibeca]. Speaking for the Supreme Court,

Deschamps J. set out the following formulation of bad faith:

Page 33

[26] Based on this interpretation, the concept of bad faith can encompass not only acts

committed deliberately with intent to harm, which corresponds to the classical concept of

bad faith, but also acts that are so markedly inconsistent with the relevant legislative

context that a court cannot reasonably conclude that they were performed in good faith.

What appears to be an extension of bad faith is, in a way, no more than the admission in

evidence of facts that amount to circumstantial evidence of bad faith where a victim is

unable to present direct evidence of it.

[105] Although both Finney and Sibeca are cases that involved the Quebec civil code, Mullan

argues the bad faith formulation expressed in those decisions applies equally to the common law.

His conclusion on that point is as follows (at 609–610, and 611):

The uncertainty left by Justice Iacobucci’s judgment in Odhavji is resolved in favour of

bad faith extending at least to recklessness as to the legality of a purported exercise of

statutory or prerogative power.

… a debate [what constitutes bad faith] that now seems to have been resolved in favour of

the inclusion of recklessness with respect to the legality of the power being exercised, but

which may also include a sense of constructive bad faith whenever a power is exercised in

a way that is “markedly inconsistent” with the relevant legislative context and purpose.

(Footnotes omitted)

[106] There is no question that misfeasance in public office is a fault-based tort, and, as such, it

requires proof of fault. It is also beyond question that the liability threshold for this tort is a high

bar to clear. Indeed, as the Supreme Court cautioned in Odhavji, “misfeasance in a public office is

not directed at a public officer who inadvertently or negligently fails adequately to discharge the

obligations of his or her office” (at para 26). However, I see no evidence that the trial judge applied

a lower negligence type standard or that he failed to put his mind to the high hurdle demanded for

this tort. Moreover, and quite significantly, the trial judge went so far as to make a finding of bad

faith against all three defendants in the context of his discussion about statutory immunity:

[235] Here, the plaintiffs expressly pled that the defendants acted in bad faith, including as

a result of acting in a manner they knew to be unlawful. The claim is cast in misfeasance

in public office, which requires proof that the tortfeasor has knowingly acted in a manner

that is unlawful and likely to cause damage to the claimant, or recklessly or with wilful

disregard for those factors. All of the acts of misfeasance that I have found to have been

committed by the defendants fall within the definition of bad faith in Enterprises Sibeca.

This was a finding of mixed fact and law that was open to the trial judge to make on the evidence

that was adduced at trial. Absent an error of law, or a palpable and overriding error of fact, appellate

intervention is unwarranted. There is no such error here.

Page 34

2.

Good faith or honest but mistaken belief

[107] The appellants next argue that they discharged their duties with an honest but mistaken

belief that the respondents were acting contrary to the Regulations and Board orders and that

Saskatchewan ran the risk of losing an increased market share if they did not act with immediacy

on the quota expansion project. Mr. Loewen, in particular, argues that an honest but mistaken

belief in the lawfulness of his conduct is a complete defence and that, as a matter of principle, it is

consistent with the notion that subjective recklessness must rise to the level of bad faith or

dishonesty and involve actions which are obviously inexplicable, incomprehensible and egregious.

[108] On a more specific level, the appellants say the trial judge failed to clearly explain and

articulate how the procedural fairness breaches amounted to deliberate, unlawful conduct. Second

(as will be discussed further below), Mr. Loewen says the trial judge failed to adequately explain

how his omissions amounted to bad faith or the dishonest exercise of a statutory authority. He

claims the evidence demonstrates that he had an honest but mistaken belief that the respondents

were non-compliant with the statutory regime.

[109] The appellants arguments must be rejected. Their ends justify the means reasoning misses

the point. The respondents’ action was not a challenge to the Board’s regulatory authority but to

whether the means employed by the Board and the two named directors – individually and

collectively – were motivated by bad faith or a reckless disregard for whether they were acting

unlawfully and would likely cause harm to Pedigree and Mr. Dubois. The argument also ignores

the fundamental legal principle that, in dealing with Pedigree’s and Mr. Dubois’s licences and

quotas – regardless of whether the regulatory scheme had been contravened by them – they were

entitled to procedural fairness. I know of no law that suggests otherwise. Furthermore, in deciding

who should get an expansion quota, the Board had to make its determination within the context of

the directives and the objects and purposes of the statutory regime. Its actions could not be

motivated by an animus or in an unrelenting pursuit of a belief that had been repeatedly rejected

by the Appeal Committee.

[110] The trial judge dealt squarely with these arguments and was well aware of the appellants’

overarching position. After hearing and considering the evidence in its entirety, he rejected that

line of defence, based on the following findings of fact:

Page 35

(a)

Paragraph 148 – the failure to allocate quota to Pedigree or Mr. Dubois was part of

the appellants’ attempt to address what they viewed as a sham producer issue,

despite knowing that the Board had not taken the steps necessary to deal with that

issue or cancel Mr. Dubois’s licence as a result. They did not wish to engage with

Mr. Dubois or Pedigree as separate producers who were entitled to share in the new

quota: “Their goal [was] to achieve the outcome they fail[ed] to achieve on May

24”.

(b)

Paragraph 196 – in connection with the June placement issue, Mr. Slater was aware

that Pedigree had remaining quota, which could not be reduced for reasons of

underproduction without proper notice.

(c)

(d)

Paragraphs 202 and 203 – the Board discussed the June placement issue and had

decided how it would proceed in advance of the mediation.

Paragraph 208 – the Board’s cancellation of Pedigree’s quota was problematic as it

was not done for the reason of addressing underproduction but was instead done to

resolve its sham producer theory. Thus, the Board misled Pedigree.

(e)

(f)

Paragraph 211 – the Board approached the sham producer issue by cancelling

Mr. Dubois’s quota, rolling it into Pedigree’s and subsequently reducing Pedigree’s

quota. All of these actions were taken without adhering to the statutory framework.

Paragraph 213 – the Board granted quota to seven other producers, who had

requested an increase, but did not consider granting additional quota to Pedigree or

Mr. Dubois. This decision was made despite the fact that both Pedigree and

Mr. Dubois were licenced producers who had requested quota and who had

responded to the Board’s letter in a more complete manner than multiple other

producers that were ultimately awarded expanded quota.

(g)

Paragraphs 214 and 215 – quota was granted to R & E Poultry, even though the

Board had no expectation that R & E Poultry would deliver. The Board also granted

quota to Mr. Keet, even though he had inadequate facilities, and to Pine Grove

(Mr. Loewen), despite its failure to advise the Board how it would finance the

expansion. Taken in contrast, Mr. Dubois and Pedigree “were not dealt with on the

same basis as other producers” (at para 215).

Page 36

(h)

Paragraphs 216 to 218 – the Board’s failure to deal with the respondents

appropriately on the quota issue was solely related to the sham producer issue and

was not attributable to any of the reasons offered by the Board. This unfair and

unequal treatment was compounded by the fact that the Board did not provide

notice to the respondents as to how it was proceeding nor did the Board explain

why they were not considered for expansion quota.

[111] On a more specific note, the trial judge squarely addressed the Board’s argument that it

acted within the regulatory framework and in accordance with its duties if not obligations in

relation to the May 24, 1998, letter. He said as follows:

[209] The Board may have been entitled to cancel Pedigree’s or Mr. Dubois’ license if they

had violated the regulatory framework in the manner suspected by the Board. However,

that is not a defence to the plaintiffs’ claims. Just as public officers were found liable in

Nilsson CA [2002 ABCA 283] and Apotex [2017 FCA 73] despite having the public interest

in mind, it is no defence that the defendants claim they had a reasonable suspicion [Ronald

Dubois’s operation] was a sham. For the same reason, it was no defence to claim that they

did so for the good of all in the context of the quota expansion project – even if that had

been true, which I find it was not.

[210] The fact that Mr. Dubois ultimately vindicated his position in relation to the sham

producer issue puts an exclamation point to the matter. However, the Board’s actions would

– assuming damages could be shown – constitute misfeasance even if Mr. Dubois had

ultimately been found to have been in breach of Board orders. A public officer cannot

escape its lawful obligation to conduct its business lawfully – including in accordance with

the duty of fairness and based on proper considerations – by asserting the result would have

been the same had it acted lawfully. As O’Dwyer demonstrates, a breach of the duty of

fairness or the principles of natural justice can be sufficient to underpin a finding of

misfeasance. The fact a public officer believes their cause is righteous does not mean they

can ignore the law which governs the exercise of their public functions.

[112] Neither did the trial judge accept that the respondents could not establish misfeasance

because the granting of expansion quota involved the exercise of discretionary authority. He found

that argument was undermined by the contrasting way in which the Board had dealt with the other

producers:

[221] It is self-evident, for example, that the Board could not grant 2000 more bird unit

equivalents of quota to all producers but one, for no reason but personal dislike or to punish

the producer for being a squeaky wheel. With respect, the Board’s position relating to this

issue misses the fundamental point of judicial review of statutory delegates, which is a

cornerstone of the rule of law.

Page 37

[113] Finally, Mr. Slater and Mr. Loewen were found to have had more than enough

sophistication and experience to know that their and the Board’s discretion was not unfettered: see

paragraphs 224 and 225. By considering the evidence as a whole, and making explicit findings of

fact, the trial judge concluded that, at least with respect to the quota issue, the appellants possessed

actual knowledge that they were acting unlawfully and that their actions would cause the

respondents harm:

[226] In the result, the individual defendants either knew, or were reckless as to whether,

they and the Board were acting unlawfully when they decided to exclude Pedigree and

Mr. Dubois from the allocation of expansion quota. This was one more attempt to have

their way without the bother of providing proper notice and a fair hearing before deciding

if Mr. Dubois was a sham producer, making an order authorized by law if the Board

decided he was a sham producer, and weathering the inevitable appeal. The defendants

also knew a failure to award expansion quota to the plaintiffs would likely cause them

damage.

(Emphasis added)

[114] To conclude, the findings of fact support the trial judge’s bottom-line conclusion on

liability. The appellants contend that the trial judge should have interpreted the evidence

differently and come to a different conclusion, but they do not point to any palpable and overriding

error that would justify appellate intervention. As such, this argument must be rejected. An

appellate court’s role is to correct error, not to re-weigh or re-evaluate the evidence; intervention

is limited to where there is an error of law or a palpable and overriding error of fact. The appellants

have not persuaded me of either.

3.

The Board’s liability as a corporate entity for the misfeasance of its

directors and officers

[115] The Board argues firstly that if neither Mr. Slater nor Mr. Loewen committed misfeasance

in public office in their capacity as corporate directors, it could not itself be liable for that tort. I

have dealt with and rejected that argument above and will not repeat that analysis here.

[116] In the alternative, the Board postulates that the trial judge erred by reflexively imputing the

actions and knowledge of Messrs. Slater and Loewen to the Board and thereby finding it liable on

that basis. The Board’s argument substantially reduces to the question of whether it can be directly

liable for misfeasance in public office. It says that, as a corporate entity, liability for the tort of

misfeasance in public office can only be visited upon it in one of two ways: (a) being vicariously

liable for the actions of its officers and directors, or (b) where the allegations of misfeasance relate

to a policy created and implemented by it.

Page 38

[117] Putting aside the issue of vicarious liability and the pleadings, the Board suggests that, as

a regulatory board, it can only be directly liable as a public entity within the ambit of this tort in

the limited circumstances described in Saskatchewan Power Corporation v Swift Current (City),

2007 SKCA 27, [2007] 5 WWR 387 [SaskPower]. In that case, the City of Swift Current had

commenced an action against the Saskatchewan Power Corporation (a Crown corporation) for

misfeasance in public office arising from allegations of predatory pricing, breach of contract and

alteration of terms of service. SaskPower succeeded on a motion to strike the statement of claim

for disclosing no reasonable cause of action because the City of Swift Current had failed to identify

any person as having the requisite bad faith or malice to sustain the action. On appeal, the narrow

question was whether the intentional tort of misfeasance in public office could be made out against

a corporation “without naming a specific individual or individuals” (at para 30).

[118] Speaking for this Court, Lane J.A., having regard to Georgian Glen Development Ltd. v

Barrie (City), [2005] OTC 770 (Sup Ct) at para 11, and Three Rivers, took a broad approach to the

scope of public office. He concluded that liability for this tort can be found against an individual

office holder as well as the corporate entity itself. He noted how SaskPower’s submissions

confused the plaintiff’s claim for direct liability with one based on vicarious liability: “A

corporation may itself be found liable for an intentional tort. A corporate entity must, of course,

act through the medium of individuals who are the directing mind of the corporation. The identity

of such individuals, however, is a matter of evidence, not an essential element of the tort” (at

para 29). In the result, this Court held that the question to be asked is whether intention can be

established for purposes of liability without naming a specific individual or individuals.

[119] Respectfully, the distinction the Board attempts to draw from SaskPower flows from its

misinterpretation of that decision. Contrary to the Board’s argument, SaskPower should not be

seen as an exception to the requirement to plead vicarious liability; rather, SaskPower merely

stands for the proposition that, where individual public officers are not named in a statement of

claim, it is sufficient in those circumstances to plead that the corporate policies of the public body

make out the elements of the tort:

[27] … Because this is the alleged corporate policy of SaskPower it is not a required

element that a particular individual be identified. The identity of the individual may be

relevant in a pleading of vicarious liability against SaskPower. However, the identity of

the employee or official who acted on behalf of SaskPower is not a necessary element of

the tort.

Page 39

[120] I understand this passage to stand for the general proposition that a claim for misfeasance

in public office can be brought against a public authority alone and that the identity of the

individual or individuals responsible for the tortious conduct need not necessarily be named in the

pleadings. As the Court noted, the identity of the employee is not an essential element of the tort

as against the public authority.

[121] The Ontario Court of Appeal considered the issue of direct liability of a public authority

arising from the misfeasance of one of its officials in O’Dwyer. In that case, the tort of misfeasance

was made out against the Ontario Racing Commission (the sole defendant) based on the

Commission’s action that was precipitated by a phone call that had been made by one of its

officials. While the phone call itself was not found to be an illegal act, the Commission’s refusal

to acknowledge that the phone call constituted a decision within the meaning of the relevant

legislation, and its failure to provide the plaintiff with his corresponding “statutory entitlement to

a hearing” (at para 46), did constitute unlawful conduct. Like in SaskPower, the court in O’Dwyer

emphasized a broad approach to the concept of public office. Referencing Three Rivers, the court

held that public office is to be defined in a relatively wide sense.

[122] Jones v Swansea City Council, [1990] 1 WLR 1453 (HL), offers further support for the

premise that a public authority can be directly liable for misfeasance in public office arising from

the actions of its officers. In Jones, where the tort of misfeasance in public office was directed at

a city council, Lord Lowy held, “if a plaintiff alleges and proves that a majority of the councillors

present, having voted for a resolution, did so with the object of damaging the plaintiff, he thereby

proves against the council misfeasance in a public office” (at 1458–1459).

[123] Moreover, while not deciding the issue, SaskPower can be interpreted to mean that the

conduct of individual representatives of a public body may be imputed directly to the corporate

entity. This approach appears to have been accepted by the Federal Court of Appeal in St. John’s

Port Authority v Adventure Tours Inc., 2011 FCA 198, 335 DLR (4th) 312 [St. John’s], with the

caveat that the pleadings “must identify and attribute such conduct to an individual or natural

person whose conduct is that of the corporate entity” (at para 38): also see Merchant Law Group

v Canada Revenue Agency, 2010 FCA 184 at paras 36–38, 321 DLR (4th) 301 [Merchant].

Page 40

[124] St. John’s and Merchant, however, stand at odds with this Court’s decision in SaskPower

in the sense that both decisions held that, even where the tort of abuse of public office is committed

by a corporate entity, the identities of the individuals responsible for the actions of the entity must

be pleaded. In St. John’s the Federal Court of Appeal concluded that the tort can be maintained

against a corporate entity, so long as there are individuals responsible for conduct that meet the

requisite level of intent to make out the elements of the tort:

[54] At the level of legal theory, it makes sense that the particular public officer engaging

in the conduct must be pleaded. Corporate entities and public authorities are artificial

entities. To the extent they act, they act through individuals. To the extent they have mental

states, the mental states derive from human beings that are associated in some way with

them.

[125] Returning to the matter at hand, the Board asserts that since it did not have a policy

prohibiting Pedigree (Mr. Glen) or Mr. Dubois from receiving an expansion quota, no misfeasance

in public office claim could be made out against it. With respect, that position is at odds with

O’Dwyer, which held that the state of mind and intentions of individual officials of a public

authority can be imputed to that authority, even without pleading vicarious liability or that the

public authority’s policies themselves can constitute misfeasance in public office.

[126] That said, I recognize there is some support in the jurisprudence for the premise that

vicarious liability is the only means by which a public authority can itself be held liable for

misfeasance in public office: see J.P. at para 319 and Moses v Lower Nicola Indian Band, 2015

BCCA 61 at para 44, [2015] 4 WWR 633 [Moses].

[127] The Board asserts the decision in 0956375 B.C. Ltd. v Regional District of Okanagan-

Similkameen, 2020 BCSC 743 at para 183, 3 MPLR (6th) 258 [Okanagan-Similkameen], stands

for the proposition that it is not sufficient to allege misfeasance solely against the public body to

which a public official belongs and that the failure to identify the “alleged wrongdoing public

official as a defendant … is fatal to any claim” (at para 183). With respect, the Board’s

interpretation of this passage is incorrect and does not contradict my analysis above. Okanagan-

Similkameen does not suggest that a claim for misfeasance in public office cannot be brought

against a public body directly. It merely holds the claim “must specifically include the alleged

wrongdoing public official as a defendant and that failure to do so is fatal to any claim”

(at para 183). This approach accords with the rulings in St. John’s and Merchant.

Page 41

[128] While Okanagan-Similkameen might go further in stating that the identity of the individual

public officers must be pleaded in the statement of claim – whereas St. John’s suggests that broader

descriptions of individual responsibility may suffice – it is unnecessary to resolve that question on

this appeal because Messrs. Slater and Loewen were identified and named as defendants in

addition to the Board.

[129] In summary, when SaskPower is read harmoniously with O’Dwyer and Three Rivers, it

seems clear that an action of this nature can be maintained against the Board directly. There is

ample authority to uphold the principle of imputation of liability to the Board for the actions of

Mr. Slater and Mr. Loewen. Given this conclusion, I find it unnecessary to go on to consider the

appellants’ alternate argument about the respondents’ failure to plead vicarious liability.

B.

The statutory immunity issue

[130] Section 27 of the 1991 Agri-Food Act provides for broad-based statutory immunity. It reads

as follows:

Immunity

27 No action lies or shall be instituted against:

(a) the council or any agency;

(b) any member, officer or employee of the council or agency; or

(c) any other person appointed pursuant to this Act;

where the council, agency, member, officer, employee or person is acting pursuant to the

authority of this Act or the regulations, for any loss or damage suffered by any person by

reason of anything in good faith done, caused or permitted or authorized to be done,

attempted to be done or omitted to be done, by any of them pursuant to, or in the exercise

of or supposed exercise of, any power conferred by this Act or the regulations or in the

carrying out or supposed carrying out of any duty imposed by this Act or the regulations.

[131] The Board – as continued pursuant to s. 34(3)(b) of the 1991 Agri-Food Act – falls within

the definition of agency. It submits that it had a bona fide belief, in both fact and law, that it was

justified in making the decisions that it made, even if it was ultimately found to be in error. It says

a mistaken but bona fide belief does not amount to a lack of good faith; and, therefore, the trial

judge erred by not extending immunity protection to it under this provision.

Page 42

[132] While Mr. Slater and Mr. Loewen agree that the immunity protection under s. 27 does not

apply in the face of bad faith, they contend that the prevailing jurisprudence requires a plaintiff to

prove actual bad faith before a public official will be denied statutory immunity. Moreover, they

dispute whether a finding of bad faith was open to the trial judge on the evidence adduced at trial.

[133] Mr. Loewen specifically submits the trial judge confused lawfulness with good faith and

that evidence of an honest but mistaken belief on his part was central to this analysis. The trial

judge, he says, should have begun his analysis with s. 27. According to Mr. Loewen, had the trial

judge addressed the issue of bad faith up front, and then filtered it through the s. 27 framework, he

would have been forced to come to grips with the central issue: that is, whether the appellants had

acted in bad faith. However, because he approached the issue from the perspective of the subjective

element of misfeasance in public office, Mr. Loewen submits that the trial judge made no express

findings on this central issue.

[134] Mr. Slater takes his proposition one step further. He argues that the trial judge’s

misapprehension of the law, combined with ignoring or misstating material evidence, led him to

error. He contends the decision on this point precludes effective appellate review because the trial

judge addressed the issue of immunity protection with a single conclusory sentence.

[135] The Board adopts a somewhat curious argument. On the one hand, it says that

Messrs. Slater and Loewen exhibited no bad faith because they did not act outside of their authority

as public officials; but, on the other, the Board asserts that if Messrs. Slater and Loewen did act

outside of their authority, the Board could not be found liable because they had acted in bad faith,

and, as such, their actions cannot be visited on the Board. The Board also argues that it can only

be liable where the allegations relate to matters of policy implemented by it as a corporate entity.

As addressed above, I find that argument to be without merit.

[136] After citing numerous authorities that have dealt with similarly worded statutory immunity

provisions, the trial judge made a crucial finding of fact, which negates any argument that the

Board and Messrs. Slater or Loewen had acted in good faith. To repeat, the trial judge found as

follows:

Page 43

[235] Here, the plaintiffs expressly pled that the defendants acted in bad faith, including as

a result of acting in a manner they knew to be unlawful. The claim is cast in misfeasance

in public office, which requires proof that the tortfeasor has knowingly acted in a manner

that is unlawful and likely to cause damage to the claimant, or recklessly or with wilful

disregard for those factors. All of the acts of misfeasance that I have found to have been

committed by the defendants fall within the definition of bad faith in Enterprises Sibeca.

(Emphasis added)

[137] Prior to making that finding, the trial judge instructed himself on the law, with particular

emphasis on the Supreme Court’s decision in Sibeca. In that case, a developer had purchased land

with the intention of constructing a particular project on it. A new municipal council was

subsequently elected. It amended the zoning bylaw at issue, which resulted in bringing Sibeca’s

project to a halt. Sibeca sued for loss of profits that it would have realized if the project had

proceeded as planned. The matter eventually found its way to the Supreme Court where

Deschamps J., speaking for the majority, rejected the developer’s claim for damages. She

recognized that, while private law liability for misfeasance in public office could attach to a public

authority in circumstances where a bylaw was declared to be invalid, liability under that tort did

not flow directly or automatically from its invalidity. She said as follows:

[23] In public law, a municipality may not therefore be held liable for the exercise of its

regulatory power if it acts in good faith or if the exercise of this power cannot be

characterized as irrational. The declaration on judicial review that a bylaw is invalid

because it is founded on a misinterpretation of the law or on a consideration determined to

be irrelevant does not necessarily expose the municipality to extra-contractual liability. A

municipality has a margin of legitimate error.

[138] Justice Deschamps went on, however, to consider the interplay between public law

immunity and the concept of bad faith. Relying on paragraph 39 from Finney, she adopted a bad

faith formulation that is flexible and varies from one area of the law to the other. Bad faith, she

concluded, includes acts committed deliberately with intent to harm, but also “acts that are so

markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude

that they were performed in good faith” (at para 26). In her view, it was not so much as an extension

of bad faith as it was an evidential issue: “What appears to be an extension of bad faith is, in a

way, no more than the admission in evidence of facts that amount to circumstantial evidence of

bad faith where a victim is unable to present direct evidence of it” (at para 26).

Page 44

[139] As the concept of bad faith formulated by Deschamps J. in Sibeca was developed for

purposes of the Quebec civil code, the question that remains is whether it is applicable at common

law. Odhavji provides an answer to that question, as Mullan discusses (at 611):

[T]he debates in the case law centred on what counted as bad faith for these purposes – a

debate that now seems to have been resolved in favour of the inclusion of recklessness with

respect to the legality of the power being exercised, but which may also include a sense of

constructive bad faith whenever a power is exercised in a way that is “markedly

inconsistent” with the relevant legislative context and purpose.

(Footnotes omitted)

[140] Thus, in accordance with the dicta in Sibeca, the concept of bad faith can encompass not

only acts committed deliberately with intent to harm (which was not asserted by the respondents)

but also “acts that are so markedly inconsistent with the relevant legislative context that a court

cannot reasonably conclude that they were performed in good faith” (at para 26).

[141] Based on this, I am of the view that the appellants’ argument must be rejected. The trial

judge made a clear finding of bad faith based on his assessment of the evidence and the credibility

of the witnesses, which he thoroughly canvassed in paragraphs 15–168 and later in the analysis

portion of his decision found at paragraphs 191–228. The fact that he framed bad faith within the

context of the tort of misfeasance in public office does not in any way undermine his finding in

that regard. This finding of fact was grounded in the evidence, and it is owed deference by this

Court.

C.

Jurisdictional issue: Availability of alternative remedies

[142] The appellants assert the trial judge erred in determining that the Court of King’s Bench

had jurisdiction to adjudicate the respondents’ private law claim in the face of alternate, exclusive

public law remedies. They say the claim does not raise distinct issues that could not have been

adequately addressed through the statutory appeal mechanism. More specifically, they attack the

trial judge’s reasoning in relation to whether the legislative scheme constitutes a complete code

for addressing the allocation of an expansion quota and his determination about the essential

character of the dispute. The appellants further assert that the respondents’ civil claim amounts to

an impermissible collateral attack of the Board’s decision and is, therefore, an abuse of process.

Page 45

1.

Complete code or essential character

[143] The appellants’ arguments are interrelated and, apart from the submissions on collateral

attack, will be addressed together.

[144] Relying on Shinkaruk Enterprises Ltd. v Saskatoon (City), 2018 SKQB 9, 70 MPLR (5th)

24 [Shinkaruk], and Markwart v Prince Albert, 2012 SKQB 411, 407 Sask R 3, the Board contends

that it operates under a complete code with respect to the allocation of quota and that the legislation

provides a process to resolve any dispute from decisions made about allocation. The trial judge’s

analysis of damages, they say, overlooks the fact that damages were only sought in lieu of the

quota; and, as such, the more appropriate remedy was to confront and redress the core issue through

the statutory appeal mechanism under the 1991 Agri-Food Act. It says the trial judge erred in law

in determining otherwise.

[145] As the trial judge correctly observed, the case law must be read with a careful eye to the

facts and nature of the alleged tort. After reviewing the applicable jurisprudence, the trial judge

understood that, as a matter of general principle, where the Legislature has granted a tribunal the

exclusive jurisdiction to deal with an issue, the Court of King’s Bench has none. He observed,

“This principle has been frequently and robustly applied in relation to labour relations matters,

where courts have generally shown great deference to codes that were designed to fundamentally

and comprehensively change the legal landscape” (at para 250). While the trial judge

acknowledged that this principle of law can extend to circumstances beyond labour relations

matters (Shinkaruk being one such example), he correctly noted that the analysis is more

demanding in that an assessment of the essential character of the dispute, and its factual context,

is required: see Weber v Ontario Hydro, [1995] 2 SCR 929 at para 43 [Weber]; McNairn v United

Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the

United States and Canada, Local 179, 2004 SKCA 57 at para 27, 240 DLR (4th) 358; Regina

Police Assn. v Regina (City) Police Commissioners, 2000 SCC 14 at para 25, [2000] 1 SCR 360

[Regina Police]; and Symington v Halifax, 2007 NSCA 90 at para 68, 285 DLR (4th) 76

[Symington].

Page 46

[146] I see no error with how the trial judge approached this issue. He understood that,

fundamentally, the inquiry called for an examination of the essential character of the dispute to

determine if the subject matter was expressly or inferentially governed by the legislative scheme.

That assessment turned on the legislation, the facts and the true nature of the dispute, not on how

the legal issues were framed in the statement of claim: see Weber at para 43. As the trial judge

succinctly put it, “the facts matter” (at para 251), and the nomenclature of a private law claim does

not make it so.

[147] The trial judge’s rejection of the appellants’ argument was grounded in the following

reasoning. First, he noted that since the respondents had 45 days in which to bring their appeal,

they were likely out of time when they finally learned in November of 2000 that an expansion

quota had been allocated to the other producers. The Board attacks that line of reasoning by

suggesting that the respondents could have somehow forced the quota issue and moved things

along more efficiently and definitively. With respect, this is a circular argument. The trial judge

made a finding of fact that can only be set aside on appeal if the appellants can demonstrate

palpable and overriding error. None was suggested. In any event, pursuant to the operative

legislation, it seems to me that the respondents could only have appealed if they were aggrieved,

and they could only have been aggrieved if they had sufficient knowledge of what went on with

respect to the allotment of expansion quota. The trial judge accepted as fact that the respondents

did not possess that knowledge because of the Board’s meandering and shrouded handling of the

issue. One wonders, then, how they could have forced the issue.

[148] Second, as the trial judge noted, the respondents sought damages for misfeasance in public

office, which, as he correctly pointed out, “could not be awarded by the Appeal Committee”; and

that, in any event, “the remedies that may have been available would not be a sufficient remedy

for these acts of misfeasance in public office” (at para 257).

[149] While the trial judge went on to observe that “a grant of additional quota would have been

no substitute for a civil remedy” (at para 257), I do not interpret his reasoning to have been based

solely on how the respondents had framed their grievance or, to put it another way, that he

determined the issue based on form over substance. Rather, he focussed on the respondents’

allegation of an abuse of power for which they sought redress. A similar point was made in Solgi

v College of Physicians and Surgeons of Saskatchewan, 2022 SKCA 96, where this Court said as

follows, albeit in the context of a discussion about collateral attack and abuse of process:

Page 47

[81] … a claim can be characterized as a collateral attack when it challenges the validity

of a court or administrative order in a different forum, hence causing that claim to constitute

an abuse of the court’s process. If a claimant is seeking to set aside or vary that order, they

generally must proceed by judicial review, or avail themselves of the appeal mechanisms

provided by the administrative structure’s enabling statute. However, if the claimant is

“content to let the order stand” (TeleZone [2010 SCC 62] at para 19) and is instead seeking

damages by pursuing a recognized cause of action because of the harm they have suffered

from that order, then their claim is generally one that is recoverable in a civil action. Indeed,

their claim is such that it would typically be impossible for them to achieve the recovery

they seek on an appeal from, or judicial review of, the order.

[150] Finally, the trial judge went on to contrast the Saskatchewan Broiler Hatching Egg

Marketing Plan with regulatory frameworks for things such as zoning controls (Shinkaruk), police

discipline (Regina Police), and labour arbitration (Weber). He found the essence of the

respondents’ claim to be about the misuse of power by a public official and not “of a character that

was expressly or inferentially governed by this statutory scheme” (at para 258). Simply because

the dispute, in its broadest sense of the terms, could be characterized as something related to the

jurisdiction occupied by the Appeal Committee did not necessarily mean that the Appeal

Committee had exclusive jurisdiction over the dispute.

[151] Moreover, the trial judge found the abuse of power claim in this case to be more akin to

the malicious prosecution claim in Symington, which the Nova Scotia Court of Appeal concluded

was not consumed by the applicable discipline legislation. Adopting the reasoning of Perrell J. in

Muirhead v York Regional Police Services Board, 2014 ONSC 6817, 16 CCLT (4th) 136, the trial

judge concluded on this point by stating as follows:

[258] … It bears emphasis that the purpose of the intentional tort of misfeasance in public

office is “to protect each citizen’s reasonable expectation that a public officer will not

intentionally injure a member of the public through deliberate and unlawful conduct in the

exercise of public functions” [Odhavji at para 30]. I note the following useful comments

by Perell J. in Muirhead, with which I agree:

90. In my opinion, in the employment context, as a matter of the rule of

law, the Weber principle must be applied, but it should be applied carefully

when the allegation is that a public official abused their power and

engaged in deliberate unlawful conduct with the intent to harm. In the

circumstances of a dispute about the abuse of power, the factual

circumstances may move the classification of the dispute from being a

dispute about an employment relationship to being a dispute about the

misuse of power by a public official to hurt a person who happens to be an

employee.

Page 48

91. In the case at bar, all of Constable Muirhead’s grievances, as they are

currently pleaded, fall within the grievance procedure of the collective

agreement or the arbitration provisions of the Police Services Act [RSO

1990, c P.15], but there is at least a hint or suggestion that Defendants were

using their power as an employer to discipline disingenuously,

malevolently, and vindictively and for purposes extraneous to the

employment relationship. It may be that there are material facts that could

be pleaded to cross the line from a discipline dispute between employer

and employee to a dispute about the intentional abuse of power to cause

harm by a public official to a citizen who happens to be an employee of

the public official.

[152] Although not mentioned by the trial judge, there are two further points to be made on this

issue. First, the relief sought by the respondents was not just in connection with the unallocated

quota. The allegations of misfeasance in public office were also directed at Pedigree’s lost June

placement and the May 24, 1998, letter. Those matters added to the understanding that the course

of conduct amounted to an abuse of power that called out for redress by a damages award.

[153] Second, as the appellants take pains to emphasize, in another of their grounds of appeal,

the allocation of quota is not a matter of right but a question of discretion. So, while the Appeal

Committee may have been able to set aside the Board’s decision in whole or in part, that did not

guarantee that the respondents would be fully redressed. In any event, there were the intervening

interests of third parties, who also had been granted quota, which may have limited the flexibility

and available options open to the Appeal Committee.

[154] One final point merits consideration. The Board says the trial judge erred by failing to

resolve the threshold question of whether the legislation created a complete code for dealing with

its actions or omissions. I agree that the trial judge failed to directly resolve this issue; however,

his reasoning supports the conclusion that he implicitly considered it and concluded that the power

was not exclusive.

[155] The Supreme Court recently reaffirmed the essential character test in Northern Regional

Health Authority v Horrocks, 2021 SCC 42, 462 DLR (4th) 585 [Horrocks], albeit in a decision

that pitted the jurisdiction of a labour arbitrator against a human rights tribunal. While Horrocks

did not involve a competing tort claim brought in a superior court, the Supreme Court underscored

that an examination of the legislation is the appropriate place to begin the jurisdictional analysis.

As the Supreme Court noted, one must ask if the legislation in question contains explicit language

Page 49

conferring exclusive jurisdiction on the administrative tribunal: “Where the legislation includes a

mandatory dispute resolution clause, an arbitrator empowered under that clause has the exclusive

jurisdiction to decide all disputes arising from the collective agreement, subject to clearly

expressed legislative intent to the contrary” (at para 39).

[156] Taking a cue from the approach described in Horrocks, there are several features of this

rather bare-boned legislative scheme that undermine the appellants’ argument. First, unlike the

cases the appellants rely on, the Legislature did not insert explicit language conferring exclusive

jurisdiction to the Appeal Committee over all manner of actions and inactions by the Board or

language pre-empting the jurisdiction of the Court of King’s Bench. Although it was speaking in

the context of the doctrine of collateral attack, the Supreme Court in Canada (Attorney General)

v TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585 [TeleZone Inc.], observed that “any derogation

from the jurisdiction of the provincial superior courts … requires clear and explicit statutory

language” (at para 42). Such language is not present here.

[157] Other matters worth noting include the fact that an appeal under s. 22 of the 1991 Agri-

Food Act is permissive, not mandatory, and the legislation contemplates a further appeal to the

Court of King’s Bench on questions of law or jurisdiction.

[158] Taken as a whole, I am unable to conclude that the Legislature intended for the 1991 Agri-

Food Act to constitute the Appeal Committee as the exclusive arbiter of all things connected with

quota or the allocation of an expansion quota. Paralleling the reasoning of Tholl J.A. in

Yashcheshen v Law School Admission Council Inc., 2021 SKCA 149 at para 38, 75 CCEL (4th) 1,

although there are certainly undercurrents of a grievance regarding the quota allocation, that is not

enough to oust the jurisdiction of the Court of King’s Bench in the face of a properly pleaded cause

of action.

[159] To conclude, I see no error in principle with how the trial judge assessed the issue of

whether the 1991 Agri-Food Act provides a complete code or how he characterized the essential

nature of the parties’ dispute.

Page 50

2.

Collateral attack

[160] In the alternative, the appellants submit that the respondents’ civil action for damages

amounts to a collateral attack on the Board’s decision. While the claim may be framed as

misfeasance in public office, they assert that the alleged unlawfulness is premised on the Board’s

failure to adhere to the duty of fairness, which is more properly addressed through a judicial review

or a statutory appeal.

[161] The collateral attack argument is being raised for the first time on appeal, and, for that

reason alone, it must be rejected. Generally speaking, “a party cannot present an entirely new

argument for the first time on appeal” (Silzer v Saskatchewan Government Insurance, 2021 SKCA

59 at para 34): also see R v Perka, [1984] 2 SCR 232 at 240; Meier v Saskatchewan Agrologists,

2016 SKCA 116 at para 28, 405 DLR (4th) 506; United Steelworkers v Comfort Cab Ltd., 2017

SKCA 45 at para 40, 414 DLR (4th) 688; and Piche v Saskatchewan Government Insurance, 2020

SKCA 53 at para 146, leave to appeal to SCC refused, 2020 87104. The principle is not

unyielding, however, and there are exceptions to its rigid application, as outlined in A.M. v Ministry

of Social Services, 2020 SKCA 114:

[183] … Whether to hear a new issue being raised for the first time on appeal is a matter

of discretion. The discretion is “narrow and should be exercised sparingly”, taking into

account “all of the circumstances, including the state of the record, fairness to all parties,

the importance of having the issue resolved by this Court, its suitability for decision and

the broader interests of the administration of justice” (Guindon v Canada, 2015 SCC 41 at

paras 5 and 20, [2015] 3 SCR 3 [Guindon]).

Even if the appellants were permitted to raise this argument on appeal, there are several reasons

why it cannot succeed.

[162] As mentioned, the Supreme Court considered the doctrine of collateral attack in TeleZone

Inc. In that case, TeleZone had sought damages for the dismissal of its application for a

communication service licence, in spite of a policy statement that had been issued by Industry

Canada to the effect that it would grant up to six licences. As it turned out, only four were granted.

When TeleZone sued for damages in the Ontario Superior Court of Justice, the Attorney General

challenged that court’s jurisdiction to proceed with the action until such time as TeleZone obtained

an order from the Federal Court quashing that regulatory decision. The Attorney General argued

that TeleZone’s claim constituted an impermissible collateral attack on the Minister’s order and

that, pursuant to s. 18 of the Federal Court Act, SC 1970-71-72, c 1, the Federal Court had

exclusive judicial review jurisdiction over federal boards and tribunals.

Page 51

[163] The Supreme Court rejected the Attorney General’s argument. It recognized that legal

proceedings can serve different legal purposes. It also noted that, while collateral attack can be

raised as a defence, “the possible availability of the defence is not an argument against provincial

superior court jurisdiction” (at para 63). The object of TeleZone’s action, the Supreme Court said,

was not to “avoid the consequences of [the ministerial] order issued against it” but to seek damages

because of the order (at para 64). With those principles in mind, I return to the appellants’

argument, which, in my view, does not stand up to scrutiny.

[164] To begin with, the doctrine of collateral attack must be raised as a defence if a defendant

intends to rely on it: see, for example, TeleZone Inc. v Canada (Attorney General), 2008 ONCA

892, 303 DLR (4th) 626 (overturned in TeleZone Inc., but not on this point). In the matter at hand,

none of the appellants pleaded collateral attack as a defence to the respondents’ action, even though

it may have been open to them to do so.

[165] Moreover, a careful examination of the respondents’ claim demonstrates quite clearly that

they were not seeking to attack the validity of a Board decision in relation to either the June

placement issue, the May 24, 1998, letter or the expansion quota. The doctrine of collateral attack

is “an attack made in proceedings other than those whose specific object is the reversal, variation,

or nullification of the order or judgment” (R v Wilson, [1983] 2 SCR 594 at 599). It is concerned

with the ability of a court to consider a decision made by a court or tribunal that is otherwise

binding on a plaintiff.

[166] In this case, there was no Board order in place that could be subject to attack. The June

placement issue was a matter of procedural fairness that had been addressed by the Appeal

Committee. Even though it was resolved in favour of Pedigree, by that time it had suffered a

financial loss. Further, as discussed above, there was arguably nothing left to appeal in connection

with the expansion quota issue since no decision had been made by the Board in relation to quota

for these respondents. They were purposefully ignored. All of this is to say that the respondents’

case is grounded in fault, not invalidity. The theory of their case was that, in committing errors of

omission and commission, the Board’s actions and inactions were permeated by bad faith. The

purpose of their civil action was to redress a deliberate wrong that was designed to harm them, not

as a backdoor means to challenge the validity of the Board’s actions with respect to the allocation

of expansion quota for themselves or others.

Page 52

[167] Finally, as I have alluded to above, even assuming that a decision had been made by the

Board with respect to the expansion quota, the respondents were out of time to appeal such a

decision. The legislation gave them 45 days, but the trial judge found they were not aware of the

conditional and unconditional grants of quota to the other producers until November of 2000. By

then, those other producers had been given their allocations. I fail to see how the Appeal

Committee by that point in time could have unwound those decisions and made a decision

favourable to the respondents in a way that would not have had an impact on third party interests.

To put it in the vernacular, that ship had sailed.

[168] I see no basis for appellate intervention under the aegis of collateral attack.

3.

The floodgates argument

[169] I wish to briefly comment on an overarching argument advanced by Mr. Loewen

specifically. He argues the Trial Decision will lead to a significant expansion of the tort of

misfeasance in public office. Mr. Loewen believes a claim for misfeasance in public office is

inconsistent with the principles of administrative law, generally. He points to case authority that

affirms the underlying principle that the setting aside of an administrative decision on judicial

review is not synonymous with a finding of civil liability and that damages are not generally

available for harm caused by the discharge of regulatory functions. As he puts it, historically

speaking, administrative decision-makers had the “right to be wrong”, so long as the impugned

decision was made within the confines of the decision-maker’s jurisdiction. Mr. Loewen says it

will create an untenable situation in that those persons aggrieved by an administrative decision

will be able to choose a private law tort remedy instead of administrative law relief. The upshot of

this circumstance, he says, will give rise to a chilling effect on all statutory decision-makers and

lead to innumerable, protracted and expensive civil actions for damages.

[170] Further, Mr. Loewen says a mere breach of natural justice – as the trial judge found as fact

in this case – is a question of process, not substance, which generally results in the decision-maker

being called upon to revisit the matter by employing the correct process and procedures.

Mr. Loewen is unable to conceive of any circumstance where a simple breach of procedural

fairness would or should give rise to damages.

Page 53

[171] With respect, Mr. Loewen’s argument misunderstands what the trial judge found. The

procedural breach was obvious, but it was not the breach of procedure that gave rise to the

damages. The trial judge concluded bad faith precipitated the procedural breach and permeated the

appellants’ insistence in pursuing the matter after their actions had been repeatedly corrected by

the Appeal Committee. Those findings, the trial judge emphasized, were evidence of a deliberate

course of action intended to harm the respondents and were far more than a lapse of procedural

fairness.

[172] Neither do I foresee the feared onslaught of civil actions by parties aggrieved by

administrative decision-making. It has always been open to the impugned decision-maker to

address improper claims by utilizing tools such as applications to strike pleadings (see Odhavji)

or summary judgment (see Deren v SaskPower, 2017 SKCA 104). In fact, as counsel for

Mr. Loewen alluded to in argument, relatively few cases of misfeasance in public office have been

decided on their merits because most are disposed of on a strike application.

[173] Mr. Loewen’s argument also overlooks the statutory immunity provisions that provide a

complete defence to civil claims brought against decision-makers for actions taken in good faith.

Provisions of this nature blunt the possibility of the feared onslaught of litigation and should

provide a measure of comfort for statutory decision-makers, assuming the facts justify their

actions. In short, I find Mr. Loewen’s argument more theoretical than real. He should have faith

in the checks and balances built into the judicial system.

D.

The trial judge’s treatment of the evidence

[174] Mr. Slater, in particular, takes issue with the trial judge’s findings of fact, notably his

assessment of witness credibility and his alleged misapprehension or disregard for the evidence

adduced at trial. Mr. Slater submits there was no evidence on the record capable of supporting a

finding that he had personally engaged in any independent conduct separate and apart from his

position on the Board that could rise to the level of subjective recklessness or wilful blindness.

[175] Before turning to the specifics, I find it not only useful but necessary to begin with the

applicable standard of appellate review and some basic principals associated with the weighing of

evidence.

Page 54

[176] The standard of appellate review on a question of law is correctness that allows an appellate

court, where it finds legal error, to replace the opinion of the trial judge with its own: Housen v

Nikolaisen, 2002 SCC 33 at para 8, [2002] 2 SCR 235 [Housen]. The standard of review for

findings of fact and mixed fact and law (absent an extricable question of law) is palpable and

overriding error: see paragraphs 10 and 34 of Housen. This means that a finding of fact cannot be

reversed, absent palpable and overriding error: “An error is palpable if it is plainly seen and if all

the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the

result …” (emphasis in original, Hydro-Québec v Matta, 2020 SCC 37 at para 33, 450 DLR (4th)

547, and Law Society of Saskatchewan v Abrametz, 2022 SCC 29 at para 113, 470 DLR (4th) 328

[Abrametz]).

[177] Appellate deference is desirable in connection with findings of fact because of the

privileged position enjoyed by the trier of fact to see and hear the witnesses and, thus, to assess

their credibility: “The trial judge is better situated to make factual findings owing to his or her

extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge’s

familiarity with the case as a whole” (Housen at para 18): also see R v G.F., 2021 SCC 20 at

para 81, 459 DLR (4th) 375, and Hilmoe v Hilmoe, 2018 SKCA 92 at para 34, [2019] 1 WWR

118, leave to appeal to SCC refused, 2019 50902 [Hilmoe].

[178] Credibility findings fall within the domain of the trial judge and are considered to be

findings of fact: R v Mehari, 2020 SKCA 37 at para 28, 452 DLR (4th) 413, rev’d 2020 SCC 40,

but not on this point, and R v Gagnon, 2006 SCC 17 at para 10, [2006] 1 SCR 621. For that reason,

great deference is shown to the credibility assessments made by a trial judge. An appellate court

may only disturb those findings where a palpable and overriding error can be shown: “It is not

enough that there is a difference of opinion with the trial judge” (Gagnon at para 10). Put another

way, an appellate court cannot “simply substitute its opinion for that of the trial judge with respect

to the assessment of the credibility of witnesses …” (R v Brunelle, 2022 SCC 5 at para 9, 412 CCC

(3d) 489).

[179] Appellate deference is also called for in relation to the weight assigned to the evidence by

the trial judge. It is not appropriate for an appellate court to second-guess the weight assigned to

the evidence or to interfere with inferences of fact drawn by the trial judge. The Supreme Court

underscored this point in Housen in the following statement:

Page 55

[23] We reiterate that it is not the role of appellate courts to second-guess the weight to be

assigned to the various items of evidence. If there is no palpable and overriding error with

respect to the underlying facts that the trial judge relies on to draw the inference, then it is

only where the inference-drawing process itself is palpably in error that an appellate court

can interfere with the factual conclusion. The appellate court is not free to interfere with a

factual conclusion that it disagrees with where such disagreement stems from a difference

of opinion over the weight to be assigned to the underlying facts.

(Emphasis in original)

See also Martin v Martin, 2022 SKCA 79 at para 37.

[180] The Supreme Court returned to the issue of the standard of review in relation to matters of

credibility and weight in Abrametz, where it once again re-affirmed the application of a deferential

stance for findings of fact by an appellate court. As to the weight assigned to the evidence, the

Supreme Court said this: “An appellate court is not free to interfere with factual conclusions merely

because it disagrees with the weight to be assigned to the underlying evidence …” (at para 113).

[181] Those points made, I turn to Mr. Slater’s specific arguments.

1.

The trial judge’s credibility assessment

[182] The trial judge found Mr. Slater was neither credible nor reliable. He said Mr. Slater had a

“patchy memory of many of the events at issue” and was a witness who frequently “gave

conflicting answers or answers which were inconsistent with the record” (Trial Decision at

para 21). Perhaps most significantly, the trial judge found important aspects of Mr. Slater’s

evidence were shaped by his overarching narrative: i.e., that he was a person who had always acted

with the best of motives, for the good of the industry, for proper reasons, and in accordance with

the rules as he understood them. Because of Mr. Slater’s approach to the way in which he testified,

the trial judge drew this inference: “As a result, he sometimes avoided giving honest and

responsive answers in favour of answers calculated to justify his and the Board’s actions or avoid

the potentially negative impact of a line of questioning” (at para 21). The trial judge provided three

examples to illustrate this point, but, as he noted, “[t]here are certainly others” (at para 22).

[183] Mr. Slater attacks one of the examples the trial judge used to illustrate his point about

credibility. The trial judge commented on Mr. Slater’s rather detailed and unbelievable explanation

about Mr. Glen’s attempt to access Board records and whether he (Mr. Slater) had tried to access

Board records himself. Mr. Slater says he clarified and later expanded upon his explanation once

Page 56

he had a chance to refresh his memory from the meeting minutes and that his explanation under

cross-examination was uncontradicted. Ergo, he says, there was no reason for the trial judge to

have disbelieved his explanation or for characterizing it as “detailed and unbelievable” (at para 24).

[184] With respect, this argument does not reveal any palpable and overriding error. While

Mr. Slater may have refreshed his memory, that did not prevent the trial judge from taking note of

how the cross-examination had played out, and, in any event, that was not the issue. Mr. Slater

said he had never tried to access Board records. But the trial judge found he could not square

Mr. Slater’s role on the Board with his evidence on this point. It was open to, and indeed required,

for the trial judge to assess Mr. Slater’s credibility considering his testimony in its entirety. That

is precisely what the trial judge did. Furthermore, even if the trial judge made an obvious error

with respect to this matter, it was far from overriding. The trial judge’s assessment of Mr. Slater’s

credibility did not hang on this one example.

[185] Next, Mr. Slater urges this Court to apply the R v W.(D.), [1991] 1 SCR 742, framework

employed in criminal matters to assess credibility. He cites no case authority in support of this

proposition. There are several flaws in Mr. Slater’s argument on this point. First, W.(D.) is not a

rigid structure for determining which witness to believe. In fact, taking that sort of approach would

constitute an error of law. Second, the W.(D.) framework is specific to the criminal standard of

proof: it is an instruction to triers of fact that relates to how exculpatory evidence should be

assessed and weighed when determining whether the guilt of an accused person has been proven

beyond a reasonable doubt. The W.(D.) framework was not designed to be applied in connection

with civil cases and the balance of probabilities standard of proof. Accordingly, it cannot be said

that the failure to use W.(D.) in a civil action is an error in principle. Moreover, I fail to see how

the application of the W.(D.) framework, even adapted to the standard of proof that applies in civil

cases, would have altered the trial judge’s assessment of Mr. Slater’s credibility, or changed the

outcome of the trial.

[186] Mr. Slater also submits that, as a general proposition, trial judges should take care not to

conflate witness credibility with ultimate liability. I agree with that submission. However, I see no

evidence of the trial judge having taken that approach. Credibility is not synonymous with ultimate

liability, nor does it entail a preference for one party’s evidence over the other. The totality of the

Page 57

evidence must be examined to determine whether a plaintiff has proven their case on a balance of

probabilities. The trial judge’s reasons make it abundantly clear that he considered all of the

evidence and that he kept his attention focused on the requisite standard of proof.

[187] Finally, Mr. Slater argues the trial judge’s credibility and reliability findings were flawed

because he dealt with those matters at the start of his decision, which, he says, gives the impression

that his findings were presumptive and ungrounded. Mr. Slater’s focus on the placement of these

findings in the context of the Trial Decision as a whole overlooks the trial judge’s very detailed

analysis of the evidence that followed his credibility findings. A vast amount of evidence was

adduced at trial, which the trial judge summarized in his 291-paragraph decision. He not only

reviewed the evidence in depth but made specific findings of fact and drew inferences from those

findings as the reasons progressed. Many of those findings bore on his assessment of the credibility

of the key players, most notably Mr. Slater.

[188] To conclude, Mr. Slater’s arguments, in substance and effect, call for this Court to

independently assess his credibility and substitute our opinion for that of the trial judge. This is

not a proper appellate function. I see no basis for intervention.

2.

Overlooked or misapprehended material evidence

[189] Mr. Slater next argues that the trial judge ignored, misstated or misapprehended material

evidence. Failure to consider material evidence, he asserts, is an error of law that justifies appellate

intervention. In the face of an error of this nature, Mr. Slater says no deference is owed to the trial

judge’s findings of fact, and, as such, this Court is free to review the trial evidence in its entirety,

substitute its findings for those of the trial judge, and make its own decision.

[190] Mr. Slater’s submission overlooks what this Court has said about an allegation that an error

of fact can ground an error of law. These principles were discussed in Hilmoe:

[35] We also find it helpful to restate certain basic principles of appellate review where

errors of fact are said to ground an error of law. First, a trial judge is not required to revisit

each and every piece of evidence in his or her reasons, and an appellate court must presume

the trial judge has reviewed all of the evidence unless an omission gives rise to a “reasoned

belief” the trial judge has forgotten, ignored or misconceived the evidence in a way that

affected the trial judge’s conclusion (Van de Perre v Edwards, 2001 SCC 60 at para 15,

[2001] 2 SCR 1014; Housen v Nikolaisen at para 72). Second, it is open to a trial judge to

prefer the evidence of certain witnesses over the evidence of other witnesses and to place

more weight on some parts of the evidence over other evidence (Toneguzzo-Norvell

Page 58

(Guardian ad litem of) v Burnaby Hospital, [1994] 1 SCR 114 at 122–123; Housen v

Nikolaisen at para 72). Third, the mere fact a trial judge has not discussed certain evidence

in depth is not on its own a sufficient basis for appellate intervention (Van de Perre v

Edwards at para 15; Housen v Nikolaisen at para 72; see also, Northrock Resources v

ExxonMobil Canada Energy, 2017 SKCA 60, [2017] 12 WWR 369 [Northrock]).

[191] Turning to the specifics, Mr. Slater argues the trial judge failed to consider the vast bulk of

the appellants’ evidence, which he maintains was either uncontradicted or supported by

confirmatory evidence. He points to six examples in furtherance of his argument:

(a)

The Board was operating in an industry expansion mode in 1998 – Mr. Slater claims

the trial judge ignored what he calls the mountain of evidence about an intense push

to expand the industry in 1998 and the resulting pressure on the Board and the

industry as a whole to make it happen. Ignoring this body of evidence, he says,

caused the trial judge to examine the claim in a vacuum. Had the trial judge

considered the urgency of the expansion initiative, he would have realized that the

Board’s actions were not egregious.

(b)

The trial judge was preoccupied with the sham producer theory – Mr. Slater argues

the Board and its directors had not only the right but the obligation to consider

whether Pedigree and Mr. Dubois were acting outside of the Regulations and the

Board’s orders. He notes that the Board was responsible for investigating those

concerns. Instead, he says, the trial judge twisted their efforts and dismissed their

good faith actions as being little more than a “sham producer war” (at paras 94 and

201). According to Mr. Slater, if the trial judge had drilled down into the

respondents’ actions and their operations’ irregularities, he would have come to the

inescapable conclusion that the Board had good reason to be concerned. In short,

as above, he says the trial judge erred by failing to consider the vast amount of

evidence that pointed to how and why the Board’s actions were appropriate.

(c)

There was no evidence that Pedigree intended to move its barns to Wynyard – the

trial judge accepted as fact that Pedigree was prepared to and could have moved to

Wynyard. Mr. Slater says this finding was erroneous because there was no evidence

that Pedigree intended to move and no relocation application was presented to the

Board. The only evidence adduced at trial was that Mr. Glen may have discussed

this option with officials from Sunnyland.

Page 59

(d)

The evidence did not establish that Mr. Dubois had an ongoing desire to sell –

Mr. Slater highlights the evidence of Mr. Dubois’s on again–off again desire to sell

his quota and production units. Had the trial judge considered this evidence from

the perspective of the Board’s handling of quota and the expansion quota, rather

than from Mr. Dubois’s perspective, Mr. Slater says it would have revealed the

reasonableness of the Board’s interactions with him. Armed with this knowledge,

Mr. Slater submits that the trial judge would have found that there was no reason

for the Board to have given Mr. Dubois any expansion quota as it was unlikely to

be utilized.

(e)

(f)

The Board was obliged to investigate wrongdoing – Mr. Slater says the trial judge

erred in failing to recognize the Board’s regulatory obligations and its duty to the

industry as a whole, to ensure that producers complied with the rules and the

Regulations.

The characterization of the 2000 Council Decision – Mr. Slater claims the trial

judge overstated the upshot of this decision in describing it as a full vindication of

Mr. Dubois, despite the fact that he was (allegedly) offside the Regulations and the

earlier 1999 Dubois Appeal Committee Decision, where the Appeal Committee

found his relationship with Mr. Glen was questionable. Mr. Slater argues that when

the 2000 Council Decision is read as a whole, it is clear that the Appeal Committee

did not fully vindicate Mr. Dubois.

[192] As I discussed in paragraph [110], grounds (a), (b), (d) and (e) – which Mr. Slater claims

were ignored – all serve to advance his ends justify the means argument, which the trial judge

rejected. Moreover, contrary to Mr. Slater’s argument, his attitude and approach was highly

relevant to the tort of misfeasance in public office, which the trial judge found to exist based on

the totality of the evidence that he accepted. Mr. Slater’s argument that the Trial Decision

somehow enfeebled the Board’s powers and responsibilities, and improperly placed Pedigree and

Mr. Dubois beyond the reach of the law, ignores the obvious: this case was unique and it was

decided on its own facts.

Page 60

[193] Furthermore, the trial judge did not ignore this body of evidence or fail to address

Mr. Slater’s arguments head on. The trial judge was acutely aware of the fact that the industry was

in expansion mode at the relevant time. He remarked as follows:

[140] As the regulatory war between the Board, Mr. Dubois and Mr. Slater played out, the

Board [was] pursuing the expansion opportunity. The expansion process, which would also

provide for the “conversion” of quota from inefficient hatching egg producers and other

measures to improve the hatching egg industry, involved the [Chicken Farmers of

Saskatchewan], the [Chicken Farmers of Canada], the Board, producers and the BIC. As

Mr. Slater made clear in his evidence, regulation and quotas are one thing, and a market

for chickens and thus broiler breeder eggs are another. As amendments to the Regulations

and adjustments to licenses and quotas were dealt with, Mr. Slater and others also worked

to secure a new market for Saskatchewan chicken farmers.

[141] The expansion process effectively began in 1997. The Board’s January [19], 1998

and April 14 letters were part of that process. The September 9, 1998 Board meeting was

also a very important step in the process. The total quota outstanding in September 1998

was 104,000 bird units. At the September 9 meeting, the Board allocated 58,220 bird units

to 7 of the existing producers. Those who had requested expansion quota – other than

Mr. Dubois, Pedigree and Golden View Colony – were allocated what they had requested.

The two largest allocations were 18,000 to 20,000 units to Mr. Loewen’s Pine Grove, and

18,000 units to R & E Poultry, which was owned by Richard Volk. The minutes said

Mr. Volk was to move his production unit to the Wynyard area, and that the Board was

looking at possible candidates to build a new production unit at Wynyard.

[194] The trial judge also grappled with the appellants’ suggestion that the actions (and inactions)

they took were motivated for the greater good of the industry writ large and undertaken in the

proper discharge of their regulatory function. However, the trial judge soundly rejected that

underlying proposition for the reasons expressed in paragraphs 209 and 210 of the Trial Decision,

which are repeated here for emphasis:

[209] The Board may have been entitled to cancel Pedigree’s or Mr. Dubois’ license if they

had violated the regulatory framework in the manner suspected by the Board. However,

that is not a defence to the plaintiffs’ claims. Just as public officers were found liable in

Nilsson CA [2002 ABCA 283] and Apotex [2017 FCA 73] despite having the public interest

in mind, it is no defence that the defendants claim they had a reasonable suspicion

[Mr. Dubois’s operation] was a sham. For the same reason, it was no defence to claim that

they did so for the good of all in the context of the quota expansion project – even if that

had been true, which I find it was not.