Court headnote

Crawford v. Attorney-General for British Columbia
Collection
Supreme Court Judgments
Date
1960-02-17
Report
[1960] SCR 346
Judges
Kerwin, Patrick; Taschereau, Robert; Locke, Charles Holland; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon
On appeal from
British Columbia
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Crawford v. Attorney-General for British Columbia, [1960] S.C.R. 346
Date: 1960-02-17
William Crawford and Hillside Farm Dairy Ltd. and Hay Bros. Farms Ltd Appellants;
and
The Attorney-General of British Columbia City of Vancouver and Fraser Valley Milk Producers Association Respondents.
1959: December 14, 15, 16; 1960: February 17.
Present: Kerwin C.J. and Taschereau, Locke, Cartwright, Fauteux, Abbott, Martland, Judson and Ritchie JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law—Validity of the Milk Industry Act, 1956 (B.C.), c. 28 and Order No. 5 made thereunder—Statute to regulate production, distribution and marketing of milk and its products within province—Whether indirect taxation.
In dealing with the sale of milk for consumption within the Province, a provincial Legislature may provide for the operation of a pool by a designated body to which all milk produced should be delivered and by which it would be sold and the net proceeds, after deduction of the operating expenses, divided among the producers of milk of equal quality in the proportion that the quantities delivered by each bears to the total quantity sold. Consequently, subject to the question of whether they infringe upon the powers of Parliament in relation to trade and commerce (a question with which this Court was asked not to deal), subs. (a), (d), (e), (f), (h), (i), (j), (k), (l),(m), (o), (p), (q),and (t) of s. 41 of the Milk Industry Act, 1956 (B.C.), c. 28, authorizing the machinery for the carrying out in the Province of British Columbia of what is in essence such a pool, are intra vires. These subsections deal in matters of a merely local or private nature in the province and with property and civil rights therein. They do not authorize or impose any levy or tax.
Order No. 5 properly made under the Act, and which provides the machinery for the carrying out of the pool, is similarly valid, saving also any question of infringement upon the powers of Parliament under Head 2 of s. 91.
Lower Mainland Dairy Products v. Crystal Dairy Ltd., [1933] A.C. 168 and Lower Mainland Dairy Products Board v. Turner's Dairy Ltd., [1941] S.C.R. 573, distinguished.
APPEAL from a judgment of the Court of Appeal for British Columbia[1], upholding on a reference the validity of the Milk Industry Act, 1956 (B.C.), c. 28 and of Order No. 5 made thereunder. Appeal dismissed with a qualification.
J. J. Robinette, Q.C., and R. P. Anderson, for the appellants, William Crawford and Hillside Farm Dairy Ltd.
J. G. Alley, for the appellant, Hay Bros. Farms Ltd.
M. M. McFarlane, Q.C. and G. S. Cumming, for the respondent, Attorney-General of British Columbia.
Hon. J. W. de B. Farris, Q.C., and D. Braidwood, for the respondent, Fraser Valley Milk Producers Association.
R. K. Baker, for the respondent, City of Vancouver.
W. R. Jackett, Q.C., and D. H. Aylen, for the Attorney General of Canada.
The judgment of the Court was delivered by
LOCKE J.:—Under the provisions of the Constitutional Questions Determination Act, R.S.B.C. 1948, c. 66, His Honour the Lieutenant Governor in Council of British Columbia referred to the Court of Appeal, for hearing and consideration, the following questions:
1. Is the Milk Industry Act, c. 28 of the Statutes of British Columbia 1956, in its pith and substance a statute to regulate the production, distribution and marketing of milk and manufactured products within British Columbia and within the competence of the Legislative Assembly of British Columbia to enact or is it in its pith and substance a taxing statute to impose indirect taxation and ultra vires of the said Legislative Assembly and if it is ultra vires in what particular or particulars and to what extent?
2. Is Order No. 5 of the Milk Board under the said Act, dated the 18th day of January, 1957, intra vires of the said Milk Board and if not in what particular or particulars and to what extent?
The opinion of the Court as certified to the Lieutenant Governor in Council, reads:
1. That the Milk Industry Act, being Chapter 28 of the Statutes of British Columbia, 1956, is in its pith and substance a statute to regulate the production, distribution and marketing of milk and manufactured milk products within British Columbia and is within the competence of the Legislative Assembly of British Columbia to enact.
2. That, subject to the question of whether it infringes upon the legislative jurisdiction of the Parliament of Canada in relation to trade and commerce, Order No. 5 of the Milk Board under the said Act, dated the 18th day of January, 1957, is intra vires of the said Milk Board.
Davey J.A. dissented as to Question 2, certifying his opinion as being that the said order is completely beyond the powers of the Milk Board because it is based upon indirect taxes to be collected from vendors in the form of adjustment levies.
The Milk Industry Act repealed, inter alia, the Milk Act, R.S.B.C. 1948, c. 208, and the Creameries and Dairies Regulation Act, R.S.B.C. 1948, c. 80. The statute contains 72 sections, almost all of which are designed to ensure that milk offered for sale in the Province shall be produced under sanitary conditions from cattle free from disease and that it be sold in the condition and in the manner best calculated to protect the public health. No one contends that these provisions are beyond the powers of the Province. The attack upon the statute is directed against part of one section alone, i.e. subss. (h) to (q) inclusive of s. 41, and the order made by the Milk Board purporting to act under the authority vested in it by these sub-sections.
By a commission issued under the provisions of the Public Inquiries Act, R.S.B.C. 1948, c. 162, the Honourable Mr. Justice Clyne was directed to inquire, inter alia, into any matters relating to the production, marketing and distribution of milk in the Province which, in his opinion, ought to be investigated in the public interest, and to make such recommendations as he might think proper. After a lengthy inquiry the commissioner made an exhaustive report in which the difficulties of the producers of milk in the lower mainland of British Columbia were reviewed and recommendations for legislation were made.
The preamble to the Milk Industry Act, which is to be deemed as part of the Act intended to assist in explaining its purport and object (the Interpretation Act, R.S.B.C. 1948, c. 1, s. 23(5)) reads in part:
WHEREAS it has been made to appear to the Government of British Columbia that, as a result of instability in the production and marketing of milk in British Columbia and particularly on the Lower Mainland of the Province and on Vancouver Island, there has been uncertainty that producers of milk would receive a reasonable return therefor, and there have been lacking the incentives necessary to ensure to consumers continuity of supply of safe, clean milk in fluid form:
And whereas it has appeared that, due to the lack of proper and adequate pricing and an unjust and discriminatory marketing system, unwarranted surpluses have been encouraged and improper trade practices have existed which threatened the whole price structure and endangered the continuity of a supply to consumers of safe, clean fluid milk as aforesaid.
After referring to the inquiry conducted by Clyne J. and the fact that by his report certain findings and recommendations had been made to His Honour the Lieutenant Governor in Council, the preamble continues:
And whereas the Legislative Assembly of British Columbia has considered the contents of the said report and is of the opinion:
(a) That it is necessary to consolidate the present legislation dealing with milk and to enact further measures in relation thereto to safeguard the public health:
(b) That all milk for human consumption in fluid form must, in respect of qualities of safety and cleanliness, meet a common standard:
(c) That at the present time the total volume of such milk available for the fluid market greatly exceeds the demand therefor, but that in the foreseeable future, owing to increases in population and the limited area in which milk can be produced, the demand for such fluid milk may exceed the possible supply thereof:
(d) That the price of milk of such standard for consumption on the fluid market in British Columbia is affected only by local supply and demand, whereas the price for milk for manufacturing purposes is fixed by world market conditions in respect of the manufactured product:
(e) That, in order to ensure to the consuming public of British Columbia a continuity of supply of safe and clean fresh fluid milk meeting such standard, it is necessary that a premium be offered to producers thereof, but because of market conditions aforesaid the price which all producers shall receive for the total volume of such milk must be conditioned by the price paid for the surplus supply which is sold at the world market price, resulting in a return to the producers of a blended price for all milk produced by them.
(f) That in this Province the history of production and distribution of milk for consumption in fluid form shows an inequality in bargaining strength as to price between producers and distributors, and that the fixing of prices to be paid to producers for such milk is therefore necessary:
(g) That, for the foregoing reasons and for other reasons referred to in the said report, it is essential that prices which the producer shall receive for all milk which he has produced under conditions qualifying it for the fluid market be fixed at a level which will ensure an adequate but not an excessive supply of milk qualified for the fluid market.
By s. 2 "qualifying milk" is defined to mean milk which is produced on an approved fluid-milk dairy-farm or an approved raw-milk dairy-farm, certified as such, which meets such standards for such milk as may be prescribed by regulation made under the statute.
Part III of the Act constitutes the Milk Board which is declared to be a body corporate and defines its functions.
Section 41, so far as it need be considered, reads:
For the purpose of controlling and regulating under this Act the marketing of milk produced in British Columbia, the Board shall, so far as the legislative authority of the Province extends, have power to make orders in relation to the said marketing, and, without limiting the generality of the foregoing, shall have power to make orders:
(a) Providing for the classifying of any or all persons engaged in the production, supplying, processing, distribution, or sale of milk within the Province, and providing for the licensing of persons in any or all of such classes and for the qualifications for such licences, and defining standards and grades in relation to the quality of any such milk:
***
(c) Prescribing the form of licences and the term of such licences, and the terms and conditions upon which the same shall be issued, renewed, suspended, or revoked:
(d) Prohibiting any person from engaging in the production, supplying, processing, distribution, or sale of milk, or of any class or classes, grade or grades thereof, within the Province unless he is the holder of a current licence from the Board which has not been suspended or revoked:
(e) Providing for classes of milk according to acceptability for utilization in each of such classes:
(f) Prescribing the terms and times of payment for milk supplied to vendors by producers thereof:
***
(h) Fixing the minimum value at which vendors shall account to producers for milk which is sold on the fluid market, which value shall be set by formula as hereinafter provided: (i) Determining the minimum value at which vendors shall account to producers for milk used in manufactured milk products, which value shall be determined on the basis of current market yields:
(j) Fixing the price which shall be paid to all producers for all milk marketed by them and qualifying for the fluid market, which price shall be a blended price, taking into account the quantity of milk which has been sold on the fluid market and the quantity of such milk surplus to fluid-milk requirements and which must be sold on the market for manufactured milk products and the values applicable to the said quantities respectively in accordance with clauses (h) and (i) hereof:
(k) Apportioning the quantity of milk which has been sold as fluid milk among all producers qualifying for the fluid market and fixing the price for milk qualifying for the fluid market so that each producers of such qualifying milk receives:
(i) The fluid-milk value as determined in clause (h) for that proportion of all milk qualifying for the fluid market marketed by him which is equal to the proportion that total fluid-milk sales is of the total quantity of milk which qualifies for the fluid market received by licensed vendors in each area of production; and
(ii) The value as determined in clause (i) for the remainder of the milk marketed by him which qualifies for the fluid market;
and providing for the distribution of the total proceeds of milk which qualifies for the fluid market accordingly:
(l) Ordering that the proceeds of the total quantity of milk qualifying for the fluid market and produced by all producers in each area of production and sold on both the said markets shall be prorated among all such producers so that each producer shall receive his proportionate share of the total proceeds in accordance with the quantity of milk qualifying for the fluid market supplied by him:
(m) Establishing and adopting a formula for the purpose of the fixing of values hereunder in each area of production or for the Province as a whole, which formula shall take into account relevant economic factors, including changes in the general price level, changes in the price of any or all factors of production, and the quantity of milk which is sold on the fluid market in relation to the total quantity of milk which qualifies for the fluid market. The said formula shall be such as to provide a reasonable premium for the production of milk for the fluid market to ensure an adequate but not an excessive supply of milk which qualifies for such market:
***
(o) Directing that accounts be given by vendors to producers of the milk received by such vendors from such producers, which accounts shall contain particulars of the quantity of milk received, the total value thereof, and the amount due to each such producer at the values and prices from time to time fixed and determined by the Board, and the basis (as to butter-fat content or on other basis) on which such values and prices have been fixed and determined:
(p) Directing the payment of the amounts due by vendors to producers in accordance with the said accounts:
(q) From time to time designating the vendor to whom or through whom a producer shall market his milk, and requiring every such vendor to accept milk from such producers as the Board may determine:
***
(t) Establishing or designating an agency to or through which all fluid milk shall or may be delivered or sold:
It was under the powers assumed to have been vested in the Milk Board that Order No. 5, the validity of which is questioned, was made.
The term "producer" is defined in s. 2 of the Act as meaning any dairy farmer who produces milk for human consumption and the term "vendor" as meaning, inter alia, any person dealing in milk, whether by purchase or sale or on the basis of delivery on consignment for sale, but not a producer as such. Section 3 of Order 5 provides for the issue of licences to vendors and producers, and by s. 4 no person shall act in either capacity unless he is in possession of a current licence. The fee for such licence is $1.
Section 15 requires that qualifying milk shall be classified at the premises of the vendor where it is received from the producer on the basis of utilization as follows:
(a)Class I milk shall be all qualifying milk to be utilized by a vendor for sale in fresh fluid form to:
(i) Wholesale or retail customers in any part of the Province:
(ii) Other vendors in any part of the Province:
(b) Class II milk shall be all qualifying milk sold in the Province to a vendor and surplus to his fluid requirements and utilized in the Province for the manufacture of canned evaporated milk or for the manufacture of concentrated fresh fluid milk:
(c) Class III milk shall be all qualifying milk sold in the Province to a vendor and surplus to his fluid requirements and utilized in the Province for any purpose other than those set forth in subsections (a) and (b) of this section.
Section 16 declares the manner in which the minimum value of the various classes of milk, as defined in the order, is to be determined. To the figures which result there may be additions or substractions, dependent on the butter fat content as provided by s. 17. It is the resulting figures which are used for the purpose of the computations directed in the two succeeding sections of the Order.
Section 18 provides the manner in which the total value of qualifying milk received during any month at each plant by each vendor shall be computed, and s. 19 the manner in which the "producer price" per hundred weight for qualifying milk shall be determined. It is unnecessary for the purpose of this opinion to state in more exact detail the manner in which this value is determined.
Section 24, which contains the provision for what is referred to by the appellants as a levy or tax, reads as follows:
For the purposes of milk regulation contemplated by the Act:
(a) Each producer shall market his qualifying milk in each class in the same proportion that the total sales by all vendors of qualifying milk in each class bears to the total volume of qualifying milk received by them from all producers in each area of production. For the purpose of avoiding the unnecessary cost to vendors, producers, or consumers resulting from the movement of qualifying milk pursuant to the foregoing provisions of this section, and in lieu of requiring vendors to transfer to other vendors such quantity of qualifying milk in any class received by them from their producers as will ensure that each vendor shall market the same proportion of the volume of each class of qualifying milk, the producer price resulting from the computations mentioned in sections 19, 20, 22, 23 and 25 hereof is fixed as one price for qualifying milk so that each vendor will pay to each producer the same price for qualifying milk:
(b) As in complying with the order for payment of the said price some vendors may be required to pay to producers more and other vendors may be required to pay to producers less than the total value of the volume of qualifying milk received by them as computed in section 18 hereof:
(i) On or before the fifteenth day after the end of the month during which the milk was received, every vendor shall pay to the Board the amount by which the value of milk received by him as calculated under section 18 hereof is greater than the amount which he must pay to producers in complying with sections 19, 20, 22, 23, and 25 hereof:
(ii) On or before the seventeenth day after the end of the month during which the milk was received, the Board shall pay to every vendor the amount by which the value of milk received by him as calculated under section 18 hereof is less than the amount which he must pay to producers in complying with sections 19, 20, 22, 23 and 25 hereof. Section 25 (a), so far as it need be considered, reads:
On or before the nineteenth day after the end of each month each vendor shall make payment to each producer for qualifying milk received at the plant of such vendor from such producer during the previous month:
(i) Where the provisions of section 22 have not become applicable, at not less than the price for all qualifying milk adjusted for butter-fat differential as provided in section 20 hereof:
Section 22 relates to the payment where quotas have been established and we were informed that none such have been established by the Board.
Section 29 provides that the Board shall announce monthly the minimum accounting value determined for each month for each of the three classes of milk delivered by producers during the preceding month.
It will be seen from the foregoing that, so far as the producers (other than producer-vendors) are concerned, the milk is sold to the vendors at a price to be determined in the following month. The vendors are required to report monthly to the Milk Board showing the amount of qualifying milk purchased during the month and the extent to which it has been sold as Class I, Class II or Class III milk, as defined by s. 15.
With this information from all of the vendors, including presumably producer-vendors, the Board, in accordance with the formula stated in the Order, determines the value of the milk sold in each of the three classes. The value of the milk sold in the fluid market is placed at a higher figure than that sold for manufacturing purposes which is said to provide the incentive for continued production of qualifying milk. The vendor realizes his profit in handling such milk from the amount added by him to the amount for which he is liable to the Board. While the value placed upon milk sold for consumption in fluid form is an arbitrary figure when computed in accordance with the formula, the value of Class II and Class III milk can be more closely determined from the prices ruling in the manufacturing market during the month in question.
Having arrived at the total of the values of all qualifying milk in the manner directed by s. 18 of Order No. 5, the producer price is determined in the manner prescribed by s. 19. It is upon the footing that the respective rights and obligations of the parties are to be those defined in the Order that the parties contract. As between the producer and the vendor, the obligation of the latter is twofold, he must account for the full determined value of all the milk he has received and he must pay to the producer the blended producer price. In order that this may be done in the case of all the producers, the vendor is obligated to pay to the Board any amount by which the value of the milk purchased by him, determined in the prescribed manner, exceeds the amount to be paid for it at the blended price, computed as aforesaid, on the assumption that all vendors discharge this obligation. The amount paid to the Board in these circumstances is in satisfaction of a contractual obligation. It is in no sense a levy.
Some illustrations of the manner in which these adjustments as between the Board and the vendors are made are to be found in the reasons for judgment of Davey J.A. As between the Board and the vendors the payments are made to and by the Board which accounts to the producers on behalf of what is in essence a pool operated on behalf of all the producers in the production area who have been supplied qualifying milk during the period.
The attack upon s. 41 and Order 5 is based upon the judgment of the Judicial Committee in Lower Mainland Dairy Products v. Crystal Dairy Ltd.[2]. Due to the fact that the production of milk in what is now defined by s. 40 of the Act as the Vancouver area of production has been for a very long time in excess of the demand for fluid milk, various attempts have been made by legislation to provide a means whereby the benefit of the available high price on the fluid market should be shared by all of the producers. In the Crystal Dairy case, the legislature had passed the Dairy Products Sales Adjustment Act, 1929, which authorized the appointment of a committee which would be empowered to require the producers to make returns to it of the milk sold by them, and those selling fluid milk were required to pay a levy assessed according to the quantity sold. The total of these levies was to be apportioned by the committee among the farmers who had sold milk to be used for manufacturing purposes at lower prices. The committee was further authorized to make a levy upon the producers to pay its expenses. It was held that both levies were taxes and it was held that, as they would tend to affect the price of commodities, they were indirect taxes and the Act was ultra vires the Province.
In a later case decided in this Court: Lower Mainland Dairy Products Board v. Turner's Dairy Ltd.[3], orders made by a marketing board established under the Natural Products Marketing (B.C.) Act, R.S.B.C. 1936, c. 165, which required the producers in the area to sell their milk to a company incorporated at the instance of the Board at prices fixed by it and directed that the proceeds of the resale of the milk should be divided pro rata among all of the producers, were held to be invalid as being merely a colourable attempt to impose indirect taxes upon those producers whose milk might otherwise be disposed of as fluid milk at prices in excess of what they would receive under the orders of the Board. It had been held at the trial that the real purpose of the impugned orders was to take from the producer supplying the fluid market a portion of his real returns and to contribute the same to other producers and that the sales and resales directed by the order were mere shams, and these findings were upheld in this Court.
In my view, neither of these cases affect the issue to be decided in the present matter. Apart from any objection that might be made to the legislation and the Order on the ground that, to the extent that they may trespass upon the powers of Parliament in relation to the regulation of trade and commerce under Head 2 of s. 91 of the British North America Act, they are ultra vires (and we are asked not to deal with this point), the parts of s. 41 which are questioned and the Order both deal, in my opinion, with matters of a merely local or private nature in the province within Head 16 of s. 92 and with property and civil rights in the province within Head 13.
In my opinion, in dealing with the sale of milk for consumption within the Province, the Legislature might provide for the operation of a pool by a designated body to which all milk produced should be delivered and by which it would be sold and the net proceeds, after deduction of the operating expenses, divided among the producers of milk of equal quality in the proportion that the quantities delivered by each bears to the total quantity sold. I consider that s. 41 of the Act authorizes, and Order No. 5 provides, the machinery for the carrying out of what is in essence such a pool but operated in a manner which effects, for the benefit of the producers and consumers, a large saving of expense by avoiding to a large extent the cost which would be incurred in delivering milk from the eastern and southern portion of the production area to the large market for fluid milk in the cities of Vancouver and New Westminster. The practical effect of the legislation is that each producer receives his proportionate share of the higher value of milk on the fluid market, which is paid to him in the blended price that he receives from the vendor. It is true that he does not receive the full amount realized on the fluid milk market, as he would if the milk was sold on behalf of the pool to which he delivers his milk, since by the method followed the price paid by the vendors must, of necessity, enable them to sell milk on the fluid market at a profit. The fact that the Legislature considers that this method is preferable in the interests of the milk industry as a whole cannot have any bearing upon the validity of the legislation.
I agree with the argument advanced by counsel for the Attorney-General of British Columbia that the legislation and the Order do not authorize or impose any levy or tax. In so far as the producer is concerned, the legislation authorizes the Board to fix the price which the vendor is to pay to him from month to month, this being the blended price referred to in the preamble, and the accounting value mentioned in the Order which is the value mentioned in paras. (h), (i) and (j) of s. 41.
In so far as the vendors are concerned, the contention that the amounts they may be required to pay to the Milk Board under the provisions of para. (b) of s. 24 of Order No. 5 is a levy or tax appears to me to be based upon a misapprehension of the real nature of the transaction between the producers and the vendors.
As appears from the reasons for judgment of the Chief Justice and of Sidney Smith and Coady JJ.A., it was contended in the Court of Appeal that subss. (h) to (q), inclusive, of s. 41, and Order No. 5, as they apply to producer-vendors, are ultra vires. A producer-vendor is defined in s. 2 of the Act as being any person who distributes milk produced only by his own cattle.
Section 44, so far as it need be considered, reads:
In the application of the provisions of this Act, a producer-vendor shall be entitled to all the rights and privileges and be subject to all the duties and obligations given to and imposed on a producer and on a vendor.
Order No. 5, s. 3, provides for the licensing of vendors and of producers, but not of producer-vendors as such. They are not mentioned elsewhere in the Order and, if there is some other order of the Milk Board regulating the manner in which such dealers shall operate, it is not before us.
As producers they are required by s. 24(a) of Order No. 5 to market their qualifying milk in each of the three classes defined by s. 15 in the proportions stated. In the factum filed on behalf of the appellant Hay Bros. Farms Ltd. in this Court, it is stated that the whole of the production of a producer-vendor is sold in the fluid market. As to do this would, upon the material before us, render the dealer liable to the heavy penalties prescribed by s. 63 of the Act and to a suspension of his licence under s. 13 of Order No. 5, it is apparent that in some manner such dealers are relieved of the obligation of complying with s. 24(a). We are not informed as to how this has been done.
The language of s. 44 of the Act must be construed as imposing upon a producer-vendor such of the obligations of a vendor as are by their nature applicable. The relation between a producer and a vendor, such as above referred to, is that of vendor and purchaser and the obligation imposed by s. 24 rests upon a vendor qua purchaser. Since one cannot contract with one self, this portion of the Order cannot refer to a producer-vendor.
Whether there is anything done by the Board in its dealings with producer-vendors which may be objectionable as beyond its powers cannot be determined upon the material before us.
A further contention made on behalf of the appellants is that Order No. 5 goes beyond the powers vested in the Milk Board by s. 41. In my opinion, ample powers are given to the Board by the subsections of s. 41 which are above quoted to make the said order. While the form in which Question 1 is stated asks the opinion of the Court as to the constitutional validity of the Milk Industry Act as a whole, the answer made should be restricted, in my opinion, to that portion of the Act which it is contended is ultra vires and as to which we have heard argument. Whether or not any of the other 71 sections of the Act deal with matters beyond the powers of the Province is a matter which I consider, should not be determined without argument.
I would, accordingly, substitute for the answer made by the Court of Appeal to the first question the following:
Subject to the question of whether they infringe upon the legislative jurisdiction of the Parliament of Canada in relation to trade and commerce, subsections (a), (d), (e), (f), (h), (i), (k), (l), (m), (o), (p), (q) and (t) of s. 41 of the Milk Industry Act are intra vires the Legislature of British Columbia.
I agree with the answer made by the majority of the Court of Appeal to the second question.
Subject to the qualification to the answer to Question 1 as above mentioned, I would dismiss this appeal.
Appeal dismissed, with qualification.
Solicitors for the appellants, William Crawford and Hillside Farm Dairy Ltd.: Boughton, Anderson, McConnell & Dunfee, Vancouver.
Solicitors for the appellant, Hay Bros. Farms Ltd.: Davis & Company, Vancouver.
Solicitors for the respondent, the Attorney-General for British Columbia: Cumming & Bird, Vancouver.
Solicitor for the respondent, the City of Vancouver: R. K. Baker, Vancouver.
Solicitors for the respondent, Fraser Valley Milk Producers Association: Sutton, Braidwood, Morris, Hall & Sutton, Vancouver.
[1] (1959), 17 D.L.R. (2d) 637.
[2] [1933] A.C. 168, 1 D.L.R. 82.
[3] [1941] S.C.R. 573, 4 D.L.R. 209.

Court headnote

Crawford v. Attorney-General for British Columbia Collection Supreme Court Judgments Date 1960-02-17 Report [1960] SCR 346 Judges Kerwin, Patrick; Taschereau, Robert; Locke, Charles Holland; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon On appeal from British Columbia Subjects Constitutional law Decision Content Supreme Court of Canada Crawford v. Attorney-General for British Columbia, [1960] S.C.R. 346 Date: 1960-02-17 William Crawford and Hillside Farm Dairy Ltd. and Hay Bros. Farms Ltd Appellants; and The Attorney-General of British Columbia City of Vancouver and Fraser Valley Milk Producers Association Respondents. 1959: December 14, 15, 16; 1960: February 17. Present: Kerwin C.J. and Taschereau, Locke, Cartwright, Fauteux, Abbott, Martland, Judson and Ritchie JJ. ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA Constitutional law—Validity of the Milk Industry Act, 1956 (B.C.), c. 28 and Order No. 5 made thereunder—Statute to regulate production, distribution and marketing of milk and its products within province—Whether indirect taxation. In dealing with the sale of milk for consumption within the Province, a provincial Legislature may provide for the operation of a pool by a designated body to which all milk produced should be delivered and by which it would be sold and the net proceeds, after deduction of the operating expenses, divided among the producers of milk of equal quality in the proportion that the quantities delivered by each bears to the total quantity sold. Consequently, subject to the question of whether they infringe upon the powers of Parliament in relation to trade and commerce (a question with which this Court was asked not to deal), subs. (a), (d), (e), (f), (h), (i), (j), (k), (l),(m), (o), (p), (q),and (t) of s. 41 of the Milk Industry Act, 1956 (B.C.), c. 28, authorizing the machinery for the carrying out in the Province of British Columbia of what is in essence such a pool, are intra vires. These subsections deal in matters of a merely local or private nature in the province and with property and civil rights therein. They do not authorize or impose any levy or tax. Order No. 5 properly made under the Act, and which provides the machinery for the carrying out of the pool, is similarly valid, saving also any question of infringement upon the powers of Parliament under Head 2 of s. 91. Lower Mainland Dairy Products v. Crystal Dairy Ltd., [1933] A.C. 168 and Lower Mainland Dairy Products Board v. Turner's Dairy Ltd., [1941] S.C.R. 573, distinguished. APPEAL from a judgment of the Court of Appeal for British Columbia[1], upholding on a reference the validity of the Milk Industry Act, 1956 (B.C.), c. 28 and of Order No. 5 made thereunder. Appeal dismissed with a qualification. J. J. Robinette, Q.C., and R. P. Anderson, for the appellants, William Crawford and Hillside Farm Dairy Ltd. J. G. Alley, for the appellant, Hay Bros. Farms Ltd. M. M. McFarlane, Q.C. and G. S. Cumming, for the respondent, Attorney-General of British Columbia. Hon. J. W. de B. Farris, Q.C., and D. Braidwood, for the respondent, Fraser Valley Milk Producers Association. R. K. Baker, for the respondent, City of Vancouver. W. R. Jackett, Q.C., and D. H. Aylen, for the Attorney General of Canada. The judgment of the Court was delivered by LOCKE J.:—Under the provisions of the Constitutional Questions Determination Act, R.S.B.C. 1948, c. 66, His Honour the Lieutenant Governor in Council of British Columbia referred to the Court of Appeal, for hearing and consideration, the following questions: 1. Is the Milk Industry Act, c. 28 of the Statutes of British Columbia 1956, in its pith and substance a statute to regulate the production, distribution and marketing of milk and manufactured products within British Columbia and within the competence of the Legislative Assembly of British Columbia to enact or is it in its pith and substance a taxing statute to impose indirect taxation and ultra vires of the said Legislative Assembly and if it is ultra vires in what particular or particulars and to what extent? 2. Is Order No. 5 of the Milk Board under the said Act, dated the 18th day of January, 1957, intra vires of the said Milk Board and if not in what particular or particulars and to what extent? The opinion of the Court as certified to the Lieutenant Governor in Council, reads: 1. That the Milk Industry Act, being Chapter 28 of the Statutes of British Columbia, 1956, is in its pith and substance a statute to regulate the production, distribution and marketing of milk and manufactured milk products within British Columbia and is within the competence of the Legislative Assembly of British Columbia to enact. 2. That, subject to the question of whether it infringes upon the legislative jurisdiction of the Parliament of Canada in relation to trade and commerce, Order No. 5 of the Milk Board under the said Act, dated the 18th day of January, 1957, is intra vires of the said Milk Board. Davey J.A. dissented as to Question 2, certifying his opinion as being that the said order is completely beyond the powers of the Milk Board because it is based upon indirect taxes to be collected from vendors in the form of adjustment levies. The Milk Industry Act repealed, inter alia, the Milk Act, R.S.B.C. 1948, c. 208, and the Creameries and Dairies Regulation Act, R.S.B.C. 1948, c. 80. The statute contains 72 sections, almost all of which are designed to ensure that milk offered for sale in the Province shall be produced under sanitary conditions from cattle free from disease and that it be sold in the condition and in the manner best calculated to protect the public health. No one contends that these provisions are beyond the powers of the Province. The attack upon the statute is directed against part of one section alone, i.e. subss. (h) to (q) inclusive of s. 41, and the order made by the Milk Board purporting to act under the authority vested in it by these sub-sections. By a commission issued under the provisions of the Public Inquiries Act, R.S.B.C. 1948, c. 162, the Honourable Mr. Justice Clyne was directed to inquire, inter alia, into any matters relating to the production, marketing and distribution of milk in the Province which, in his opinion, ought to be investigated in the public interest, and to make such recommendations as he might think proper. After a lengthy inquiry the commissioner made an exhaustive report in which the difficulties of the producers of milk in the lower mainland of British Columbia were reviewed and recommendations for legislation were made. The preamble to the Milk Industry Act, which is to be deemed as part of the Act intended to assist in explaining its purport and object (the Interpretation Act, R.S.B.C. 1948, c. 1, s. 23(5)) reads in part: WHEREAS it has been made to appear to the Government of British Columbia that, as a result of instability in the production and marketing of milk in British Columbia and particularly on the Lower Mainland of the Province and on Vancouver Island, there has been uncertainty that producers of milk would receive a reasonable return therefor, and there have been lacking the incentives necessary to ensure to consumers continuity of supply of safe, clean milk in fluid form: And whereas it has appeared that, due to the lack of proper and adequate pricing and an unjust and discriminatory marketing system, unwarranted surpluses have been encouraged and improper trade practices have existed which threatened the whole price structure and endangered the continuity of a supply to consumers of safe, clean fluid milk as aforesaid. After referring to the inquiry conducted by Clyne J. and the fact that by his report certain findings and recommendations had been made to His Honour the Lieutenant Governor in Council, the preamble continues: And whereas the Legislative Assembly of British Columbia has considered the contents of the said report and is of the opinion: (a) That it is necessary to consolidate the present legislation dealing with milk and to enact further measures in relation thereto to safeguard the public health: (b) That all milk for human consumption in fluid form must, in respect of qualities of safety and cleanliness, meet a common standard: (c) That at the present time the total volume of such milk available for the fluid market greatly exceeds the demand therefor, but that in the foreseeable future, owing to increases in population and the limited area in which milk can be produced, the demand for such fluid milk may exceed the possible supply thereof: (d) That the price of milk of such standard for consumption on the fluid market in British Columbia is affected only by local supply and demand, whereas the price for milk for manufacturing purposes is fixed by world market conditions in respect of the manufactured product: (e) That, in order to ensure to the consuming public of British Columbia a continuity of supply of safe and clean fresh fluid milk meeting such standard, it is necessary that a premium be offered to producers thereof, but because of market conditions aforesaid the price which all producers shall receive for the total volume of such milk must be conditioned by the price paid for the surplus supply which is sold at the world market price, resulting in a return to the producers of a blended price for all milk produced by them. (f) That in this Province the history of production and distribution of milk for consumption in fluid form shows an inequality in bargaining strength as to price between producers and distributors, and that the fixing of prices to be paid to producers for such milk is therefore necessary: (g) That, for the foregoing reasons and for other reasons referred to in the said report, it is essential that prices which the producer shall receive for all milk which he has produced under conditions qualifying it for the fluid market be fixed at a level which will ensure an adequate but not an excessive supply of milk qualified for the fluid market. By s. 2 "qualifying milk" is defined to mean milk which is produced on an approved fluid-milk dairy-farm or an approved raw-milk dairy-farm, certified as such, which meets such standards for such milk as may be prescribed by regulation made under the statute. Part III of the Act constitutes the Milk Board which is declared to be a body corporate and defines its functions. Section 41, so far as it need be considered, reads: For the purpose of controlling and regulating under this Act the marketing of milk produced in British Columbia, the Board shall, so far as the legislative authority of the Province extends, have power to make orders in relation to the said marketing, and, without limiting the generality of the foregoing, shall have power to make orders: (a) Providing for the classifying of any or all persons engaged in the production, supplying, processing, distribution, or sale of milk within the Province, and providing for the licensing of persons in any or all of such classes and for the qualifications for such licences, and defining standards and grades in relation to the quality of any such milk: *** (c) Prescribing the form of licences and the term of such licences, and the terms and conditions upon which the same shall be issued, renewed, suspended, or revoked: (d) Prohibiting any person from engaging in the production, supplying, processing, distribution, or sale of milk, or of any class or classes, grade or grades thereof, within the Province unless he is the holder of a current licence from the Board which has not been suspended or revoked: (e) Providing for classes of milk according to acceptability for utilization in each of such classes: (f) Prescribing the terms and times of payment for milk supplied to vendors by producers thereof: *** (h) Fixing the minimum value at which vendors shall account to producers for milk which is sold on the fluid market, which value shall be set by formula as hereinafter provided: (i) Determining the minimum value at which vendors shall account to producers for milk used in manufactured milk products, which value shall be determined on the basis of current market yields: (j) Fixing the price which shall be paid to all producers for all milk marketed by them and qualifying for the fluid market, which price shall be a blended price, taking into account the quantity of milk which has been sold on the fluid market and the quantity of such milk surplus to fluid-milk requirements and which must be sold on the market for manufactured milk products and the values applicable to the said quantities respectively in accordance with clauses (h) and (i) hereof: (k) Apportioning the quantity of milk which has been sold as fluid milk among all producers qualifying for the fluid market and fixing the price for milk qualifying for the fluid market so that each producers of such qualifying milk receives: (i) The fluid-milk value as determined in clause (h) for that proportion of all milk qualifying for the fluid market marketed by him which is equal to the proportion that total fluid-milk sales is of the total quantity of milk which qualifies for the fluid market received by licensed vendors in each area of production; and (ii) The value as determined in clause (i) for the remainder of the milk marketed by him which qualifies for the fluid market; and providing for the distribution of the total proceeds of milk which qualifies for the fluid market accordingly: (l) Ordering that the proceeds of the total quantity of milk qualifying for the fluid market and produced by all producers in each area of production and sold on both the said markets shall be prorated among all such producers so that each producer shall receive his proportionate share of the total proceeds in accordance with the quantity of milk qualifying for the fluid market supplied by him: (m) Establishing and adopting a formula for the purpose of the fixing of values hereunder in each area of production or for the Province as a whole, which formula shall take into account relevant economic factors, including changes in the general price level, changes in the price of any or all factors of production, and the quantity of milk which is sold on the fluid market in relation to the total quantity of milk which qualifies for the fluid market. The said formula shall be such as to provide a reasonable premium for the production of milk for the fluid market to ensure an adequate but not an excessive supply of milk which qualifies for such market: *** (o) Directing that accounts be given by vendors to producers of the milk received by such vendors from such producers, which accounts shall contain particulars of the quantity of milk received, the total value thereof, and the amount due to each such producer at the values and prices from time to time fixed and determined by the Board, and the basis (as to butter-fat content or on other basis) on which such values and prices have been fixed and determined: (p) Directing the payment of the amounts due by vendors to producers in accordance with the said accounts: (q) From time to time designating the vendor to whom or through whom a producer shall market his milk, and requiring every such vendor to accept milk from such producers as the Board may determine: *** (t) Establishing or designating an agency to or through which all fluid milk shall or may be delivered or sold: It was under the powers assumed to have been vested in the Milk Board that Order No. 5, the validity of which is questioned, was made. The term "producer" is defined in s. 2 of the Act as meaning any dairy farmer who produces milk for human consumption and the term "vendor" as meaning, inter alia, any person dealing in milk, whether by purchase or sale or on the basis of delivery on consignment for sale, but not a producer as such. Section 3 of Order 5 provides for the issue of licences to vendors and producers, and by s. 4 no person shall act in either capacity unless he is in possession of a current licence. The fee for such licence is $1. Section 15 requires that qualifying milk shall be classified at the premises of the vendor where it is received from the producer on the basis of utilization as follows: (a)Class I milk shall be all qualifying milk to be utilized by a vendor for sale in fresh fluid form to: (i) Wholesale or retail customers in any part of the Province: (ii) Other vendors in any part of the Province: (b) Class II milk shall be all qualifying milk sold in the Province to a vendor and surplus to his fluid requirements and utilized in the Province for the manufacture of canned evaporated milk or for the manufacture of concentrated fresh fluid milk: (c) Class III milk shall be all qualifying milk sold in the Province to a vendor and surplus to his fluid requirements and utilized in the Province for any purpose other than those set forth in subsections (a) and (b) of this section. Section 16 declares the manner in which the minimum value of the various classes of milk, as defined in the order, is to be determined. To the figures which result there may be additions or substractions, dependent on the butter fat content as provided by s. 17. It is the resulting figures which are used for the purpose of the computations directed in the two succeeding sections of the Order. Section 18 provides the manner in which the total value of qualifying milk received during any month at each plant by each vendor shall be computed, and s. 19 the manner in which the "producer price" per hundred weight for qualifying milk shall be determined. It is unnecessary for the purpose of this opinion to state in more exact detail the manner in which this value is determined. Section 24, which contains the provision for what is referred to by the appellants as a levy or tax, reads as follows: For the purposes of milk regulation contemplated by the Act: (a) Each producer shall market his qualifying milk in each class in the same proportion that the total sales by all vendors of qualifying milk in each class bears to the total volume of qualifying milk received by them from all producers in each area of production. For the purpose of avoiding the unnecessary cost to vendors, producers, or consumers resulting from the movement of qualifying milk pursuant to the foregoing provisions of this section, and in lieu of requiring vendors to transfer to other vendors such quantity of qualifying milk in any class received by them from their producers as will ensure that each vendor shall market the same proportion of the volume of each class of qualifying milk, the producer price resulting from the computations mentioned in sections 19, 20, 22, 23 and 25 hereof is fixed as one price for qualifying milk so that each vendor will pay to each producer the same price for qualifying milk: (b) As in complying with the order for payment of the said price some vendors may be required to pay to producers more and other vendors may be required to pay to producers less than the total value of the volume of qualifying milk received by them as computed in section 18 hereof: (i) On or before the fifteenth day after the end of the month during which the milk was received, every vendor shall pay to the Board the amount by which the value of milk received by him as calculated under section 18 hereof is greater than the amount which he must pay to producers in complying with sections 19, 20, 22, 23, and 25 hereof: (ii) On or before the seventeenth day after the end of the month during which the milk was received, the Board shall pay to every vendor the amount by which the value of milk received by him as calculated under section 18 hereof is less than the amount which he must pay to producers in complying with sections 19, 20, 22, 23 and 25 hereof. Section 25 (a), so far as it need be considered, reads: On or before the nineteenth day after the end of each month each vendor shall make payment to each producer for qualifying milk received at the plant of such vendor from such producer during the previous month: (i) Where the provisions of section 22 have not become applicable, at not less than the price for all qualifying milk adjusted for butter-fat differential as provided in section 20 hereof: Section 22 relates to the payment where quotas have been established and we were informed that none such have been established by the Board. Section 29 provides that the Board shall announce monthly the minimum accounting value determined for each month for each of the three classes of milk delivered by producers during the preceding month. It will be seen from the foregoing that, so far as the producers (other than producer-vendors) are concerned, the milk is sold to the vendors at a price to be determined in the following month. The vendors are required to report monthly to the Milk Board showing the amount of qualifying milk purchased during the month and the extent to which it has been sold as Class I, Class II or Class III milk, as defined by s. 15. With this information from all of the vendors, including presumably producer-vendors, the Board, in accordance with the formula stated in the Order, determines the value of the milk sold in each of the three classes. The value of the milk sold in the fluid market is placed at a higher figure than that sold for manufacturing purposes which is said to provide the incentive for continued production of qualifying milk. The vendor realizes his profit in handling such milk from the amount added by him to the amount for which he is liable to the Board. While the value placed upon milk sold for consumption in fluid form is an arbitrary figure when computed in accordance with the formula, the value of Class II and Class III milk can be more closely determined from the prices ruling in the manufacturing market during the month in question. Having arrived at the total of the values of all qualifying milk in the manner directed by s. 18 of Order No. 5, the producer price is determined in the manner prescribed by s. 19. It is upon the footing that the respective rights and obligations of the parties are to be those defined in the Order that the parties contract. As between the producer and the vendor, the obligation of the latter is twofold, he must account for the full determined value of all the milk he has received and he must pay to the producer the blended producer price. In order that this may be done in the case of all the producers, the vendor is obligated to pay to the Board any amount by which the value of the milk purchased by him, determined in the prescribed manner, exceeds the amount to be paid for it at the blended price, computed as aforesaid, on the assumption that all vendors discharge this obligation. The amount paid to the Board in these circumstances is in satisfaction of a contractual obligation. It is in no sense a levy. Some illustrations of the manner in which these adjustments as between the Board and the vendors are made are to be found in the reasons for judgment of Davey J.A. As between the Board and the vendors the payments are made to and by the Board which accounts to the producers on behalf of what is in essence a pool operated on behalf of all the producers in the production area who have been supplied qualifying milk during the period. The attack upon s. 41 and Order 5 is based upon the judgment of the Judicial Committee in Lower Mainland Dairy Products v. Crystal Dairy Ltd.[2]. Due to the fact that the production of milk in what is now defined by s. 40 of the Act as the Vancouver area of production has been for a very long time in excess of the demand for fluid milk, various attempts have been made by legislation to provide a means whereby the benefit of the available high price on the fluid market should be shared by all of the producers. In the Crystal Dairy case, the legislature had passed the Dairy Products Sales Adjustment Act, 1929, which authorized the appointment of a committee which would be empowered to require the producers to make returns to it of the milk sold by them, and those selling fluid milk were required to pay a levy assessed according to the quantity sold. The total of these levies was to be apportioned by the committee among the farmers who had sold milk to be used for manufacturing purposes at lower prices. The committee was further authorized to make a levy upon the producers to pay its expenses. It was held that both levies were taxes and it was held that, as they would tend to affect the price of commodities, they were indirect taxes and the Act was ultra vires the Province. In a later case decided in this Court: Lower Mainland Dairy Products Board v. Turner's Dairy Ltd.[3], orders made by a marketing board established under the Natural Products Marketing (B.C.) Act, R.S.B.C. 1936, c. 165, which required the producers in the area to sell their milk to a company incorporated at the instance of the Board at prices fixed by it and directed that the proceeds of the resale of the milk should be divided pro rata among all of the producers, were held to be invalid as being merely a colourable attempt to impose indirect taxes upon those producers whose milk might otherwise be disposed of as fluid milk at prices in excess of what they would receive under the orders of the Board. It had been held at the trial that the real purpose of the impugned orders was to take from the producer supplying the fluid market a portion of his real returns and to contribute the same to other producers and that the sales and resales directed by the order were mere shams, and these findings were upheld in this Court. In my view, neither of these cases affect the issue to be decided in the present matter. Apart from any objection that might be made to the legislation and the Order on the ground that, to the extent that they may trespass upon the powers of Parliament in relation to the regulation of trade and commerce under Head 2 of s. 91 of the British North America Act, they are ultra vires (and we are asked not to deal with this point), the parts of s. 41 which are questioned and the Order both deal, in my opinion, with matters of a merely local or private nature in the province within Head 16 of s. 92 and with property and civil rights in the province within Head 13. In my opinion, in dealing with the sale of milk for consumption within the Province, the Legislature might provide for the operation of a pool by a designated body to which all milk produced should be delivered and by which it would be sold and the net proceeds, after deduction of the operating expenses, divided among the producers of milk of equal quality in the proportion that the quantities delivered by each bears to the total quantity sold. I consider that s. 41 of the Act authorizes, and Order No. 5 provides, the machinery for the carrying out of what is in essence such a pool but operated in a manner which effects, for the benefit of the producers and consumers, a large saving of expense by avoiding to a large extent the cost which would be incurred in delivering milk from the eastern and southern portion of the production area to the large market for fluid milk in the cities of Vancouver and New Westminster. The practical effect of the legislation is that each producer receives his proportionate share of the higher value of milk on the fluid market, which is paid to him in the blended price that he receives from the vendor. It is true that he does not receive the full amount realized on the fluid milk market, as he would if the milk was sold on behalf of the pool to which he delivers his milk, since by the method followed the price paid by the vendors must, of necessity, enable them to sell milk on the fluid market at a profit. The fact that the Legislature considers that this method is preferable in the interests of the milk industry as a whole cannot have any bearing upon the validity of the legislation. I agree with the argument advanced by counsel for the Attorney-General of British Columbia that the legislation and the Order do not authorize or impose any levy or tax. In so far as the producer is concerned, the legislation authorizes the Board to fix the price which the vendor is to pay to him from month to month, this being the blended price referred to in the preamble, and the accounting value mentioned in the Order which is the value mentioned in paras. (h), (i) and (j) of s. 41. In so far as the vendors are concerned, the contention that the amounts they may be required to pay to the Milk Board under the provisions of para. (b) of s. 24 of Order No. 5 is a levy or tax appears to me to be based upon a misapprehension of the real nature of the transaction between the producers and the vendors. As appears from the reasons for judgment of the Chief Justice and of Sidney Smith and Coady JJ.A., it was contended in the Court of Appeal that subss. (h) to (q), inclusive, of s. 41, and Order No. 5, as they apply to producer-vendors, are ultra vires. A producer-vendor is defined in s. 2 of the Act as being any person who distributes milk produced only by his own cattle. Section 44, so far as it need be considered, reads: In the application of the provisions of this Act, a producer-vendor shall be entitled to all the rights and privileges and be subject to all the duties and obligations given to and imposed on a producer and on a vendor. Order No. 5, s. 3, provides for the licensing of vendors and of producers, but not of producer-vendors as such. They are not mentioned elsewhere in the Order and, if there is some other order of the Milk Board regulating the manner in which such dealers shall operate, it is not before us. As producers they are required by s. 24(a) of Order No. 5 to market their qualifying milk in each of the three classes defined by s. 15 in the proportions stated. In the factum filed on behalf of the appellant Hay Bros. Farms Ltd. in this Court, it is stated that the whole of the production of a producer-vendor is sold in the fluid market. As to do this would, upon the material before us, render the dealer liable to the heavy penalties prescribed by s. 63 of the Act and to a suspension of his licence under s. 13 of Order No. 5, it is apparent that in some manner such dealers are relieved of the obligation of complying with s. 24(a). We are not informed as to how this has been done. The language of s. 44 of the Act must be construed as imposing upon a producer-vendor such of the obligations of a vendor as are by their nature applicable. The relation between a producer and a vendor, such as above referred to, is that of vendor and purchaser and the obligation imposed by s. 24 rests upon a vendor qua purchaser. Since one cannot contract with one self, this portion of the Order cannot refer to a producer-vendor. Whether there is anything done by the Board in its dealings with producer-vendors which may be objectionable as beyond its powers cannot be determined upon the material before us. A further contention made on behalf of the appellants is that Order No. 5 goes beyond the powers vested in the Milk Board by s. 41. In my opinion, ample powers are given to the Board by the subsections of s. 41 which are above quoted to make the said order. While the form in which Question 1 is stated asks the opinion of the Court as to the constitutional validity of the Milk Industry Act as a whole, the answer made should be restricted, in my opinion, to that portion of the Act which it is contended is ultra vires and as to which we have heard argument. Whether or not any of the other 71 sections of the Act deal with matters beyond the powers of the Province is a matter which I consider, should not be determined without argument. I would, accordingly, substitute for the answer made by the Court of Appeal to the first question the following: Subject to the question of whether they infringe upon the legislative jurisdiction of the Parliament of Canada in relation to trade and commerce, subsections (a), (d), (e), (f), (h), (i), (k), (l), (m), (o), (p), (q) and (t) of s. 41 of the Milk Industry Act are intra vires the Legislature of British Columbia. I agree with the answer made by the majority of the Court of Appeal to the second question. Subject to the qualification to the answer to Question 1 as above mentioned, I would dismiss this appeal. Appeal dismissed, with qualification. Solicitors for the appellants, William Crawford and Hillside Farm Dairy Ltd.: Boughton, Anderson, McConnell & Dunfee, Vancouver. Solicitors for the appellant, Hay Bros. Farms Ltd.: Davis & Company, Vancouver. Solicitors for the respondent, the Attorney-General for British Columbia: Cumming & Bird, Vancouver. Solicitor for the respondent, the City of Vancouver: R. K. Baker, Vancouver. Solicitors for the respondent, Fraser Valley Milk Producers Association: Sutton, Braidwood, Morris, Hall & Sutton, Vancouver. [1] (1959), 17 D.L.R. (2d) 637. [2] [1933] A.C. 168, 1 D.L.R. 82. [3] [1941] S.C.R. 573, 4 D.L.R. 209.

Crawford v. Attorney-General for British Columbia

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Crawford v. Attorney-General for British Columbia

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