This was an application to quash the decision of the Minister for International Trade to allocate import quotas for hatching eggs and chicks to hatcheries across Canada based on market share rather than to traditional importers on the basis of their historical record of imports. Market share is the percentage of the total Canadian production of hatching eggs and chicks which a particular hatchery produces. The applicants also sought an order requiring the Secretary of State for External Affairs to allow them to make representations and submissions on any proposed quota allocation scheme before it is adopted, and an interim order directing the Minister to issue quotas for hatching eggs and chicks to those who have historically imported eggs and chicks. The grounds for the challenge were that the rules of natural justice were not met because the applicants did not have an effective opportunity to make representations with respect to the allocation scheme before it was decided upon; the Minister considered extraneous and irrelevant considerations in reaching his decision; and the Minister who had the authority under the Act to make the decision was not the Minister who made the decision.
- Are policy decisions immune from judicial review/exempted from procedural fairness?
Reed held that in deciding how to allocate import quotas, the Minister was exercising a statutory power which had been delegated to him. It caused considerable economic harm to the applicants and others. There was an implied principle that Parliament intended that the statutory powers being exercised in this case would be exercised in accordance with the administrative law rules of fairness, which included notice to the applicants of what was being proposed and an opportunity to comment. There need not exist a "right" to bring an application for judicial review; it is sufficient if the applicant can demonstrate an "interest" which justifies the application for judicial review. In some cases that interest may be only a "legitimate expectation". The applicants may not have had a "right to import", but for many years they had been importing in an unregulated environment. They had established a position in the market and an economic viability based on this practice of importing. They established an interest sufficient to found a claim for review of the Minister's decision respecting the allocation of import quotas. It would not have been impractical to give those affected by the allocation decision an opportunity to comment thereon. There were not a large number of persons affected and they were known. Although personal and individual notice to every person affected was not required, some sort of general notice, perhaps by newspaper notice, and an opportunity to submit representations was required before a decision was taken.
When looking at review of a policy decision, what is important is an assessment of the effects of the decision. The decision was treated as setting down rules according to which permits would be and were strictly issued. These were not guidelines for internal administrative use. It was applied as a binding decision with respect to the issuance of permits. No discretion was left to an official acting in the name of the Minister to depart from the system of quota allocation detailed in the notice to importers.
As a result of his findings, Justice Reed granted an order continuing their entitlements under the old scheme, at least until they had been able to make submissions on the changes.
Policy decisions are not necessarily immune from judicial review.