Canada: Agricultural Law NetLetter: Friday, March 7, 2014 - Issue 295

** HIGHLIGHTS **

  • A Justice of the Saskatchewan Court of Queen's Bench has held that certiorari and mandamus are not available to quash the direction of livestock inspectors who requested that cattle and sale proceeds be held until the regulatory mechanism under Saskatchewan legislation for determining ownership has been exhausted. The Saskatchewan Agricultural Products Act and the Regulations thereunder allow livestock inspectors to detain both cattle and sale proceeds if the ownership of cattle is in dispute. The Regulations contain a mechanism which allows the Ministry of Agriculture to conduct investigations to attempt to determine ownership, failing which funds are paid into Court. [Editor's Note: As far as the editor is aware, this is the first occasion on which any Canadian Court has considered whether certiorari or mandamus are available to challenge decisions of livestock investigators. A number of other provinces have legislation similar to Saskatchewan.]. (Jans v. Jans, CALN/2014-010, [2014] S.J. No. 73, Saskatchewan Court of Queen's Bench)

** NEW CASE LAW **

Jans v. Jans; CALN/2014-010, Full text: [2014] S.J. No. 73; 2014 SKQB 54, Saskatchewan Court of Queen's Bench, L.M. Schwann J., February 20, 2014.

Livestock Inspection -- Ownership -- Detention of Livestock and Funds by Inspectors to Determine Ownership -- Availability of Certiorari and Mandamus.

Russell Jans ("Russell"), Jay Jans ("Jay"), Jay's wife, and their numbered company (collectively the "Applicants") brought an application for certiorari to quash the decision of the Inspection and Regulatory Management Branch of the Saskatchewan Ministry of Agriculture (the "Branch") to direct that auction market operators withhold the sale proceeds derived from the sale of cattle contributed for auction from Jans Ranch. The Applicants also sought a writ of mandamus directing the Branch to rescind this direction.

The Applicants had been involved in a large cattle ranching operation near Tompkins, Saskatchewan known as the Jans Ranch with Bryce Jans ("Bryce"), who is Jay's brother and Russell's son.

By 2007, relations between Bryce, Jay and Russell had soured.

Bryce commenced an action in January 2011 against both Russell and Jay for a declaration of constructive trust, an accounting with respect to the ranch operations and other relief. Jay's wife and their company were added as Defendants.

The Applicants' sole means of income is derived from ranching operations and the purchase and sale of livestock.

Jay personally owned 1,200 head of cattle and the company owned approximately 1,000 head of cattle.

On December 2, 2013, Bryce's legal counsel sent a letter to the Branch. He took the position that ownership of all cattle that come from Jans Ranch was in dispute. The letter requested the Branch to:

"retain or restrain any funds resulting from the sale of ranch cattle."

On December 3, 2013, Mr. Wilk, an official of the Branch, sent an e-mail to 37 Ministry of Agriculture officials requesting them to direct markets to withhold these funds.

On December 17, 2013, Jay attempted to sell approximately $250,000 of livestock only to find that the transaction had been "blocked" by the Branch and that all cattle would be detained and the funds received from the sale of Jans Ranch livestock would be held by the Ministry.

Jay's Affidavit indicated that the effect of detaining the cattle and withholding the proceeds would be that he and his family could not earn a living and that the cattle would die and that if the decision stood, he would lose approximately $3.5 million.

Bryce's Affidavit claimed that his cattle were frequently mixed up with Jans Ranch cattle.

Bryce had filed a Livestock Search Program Report concerning missing cattle with the Branch in October of 2013.

Section 7 of the Animal Products Act, R.S.S. 1978, (Supp.), c. A-20.2 (the "Act") authorizes inspectors to detain animals for the purpose of establishing proof of ownership:

"7(1)
An inspector may cause any animal or animal product to be detained for the purposes of:

  1. inspection;
  2. establishing proof of ownersihp of the animal or animal product.

(2)
No animal or animal product detained under subsection (1) may be removed from the place of inspection without the authorization of the inspector."

Sections 14 and 15 of the Regulations under the Act set out the mechanics for dealing with contested ownership. Sections 14(1) and (2) authorize inspectors to permit disputed livestock to be sold, but to direct that the sale proceeds be held:

"14(1)
Where an inspector is of the opinion that the ownership of any livestock may be in doubt, he or she may order its detention and, if necessary, he or she may:

  1. order the transportation of the livestock to a stockyard until rightful ownership is established; or
  2. subject to subsection (2), allow the livestock to be offered for sale.

(2)
Where an inspector allows any livestock to be offered for sale pursuant to subsection (1), he or she shall give to the market operator a notice to withhold settlement in the form issued by the department."

The remaining provisions in s. 14 and 15 of the Regulations set out a mechanism to resolve ownership issues.

During the course of argument, it was conceded that in spite of the fact that a directive had been issued by the Branch directing that the cattle be detained, Jay took matters into his own hands by taking the cattle back to avoid this from occurring.

During the course of the application, the Branch also provided the Court and the parties with a "Notice to Contributor" dated December 30, 2013 which indicated that 44 cattle had been sold, and that the proceeds were being held pursuant to s. 14 of the Regulations. The Applicants then requested that the "Notice to Contributor" be quashed.

Decision: Schwann, J. dismissed the applications for certiorari and mandamus [at para. 39 and 40].

Schwann, J. observed [at para. 20] that the initial sale had not been blocked, and that after Jay learned that the cattle would be detained, he took matters into his own hands, reclaimed all 1,200 head to avoid the sale funds being held by market operators [at para. 20].

Schwann, J. observed [at para. 22] that this application may be moot because the Minister no longer had any power to order detention of the cattle or the sale funds.

Schwann, J. also observed that judicial review is a discretionary remedy [at para. 23 to 25] that there are exceptions to the general rule that Courts do not rule on moot issues.

With respect to the transaction regarding the 44 head of cattle which had been sold, Schwann, J. observed [at para. 32] that the application before the Court did not involve this transaction.

Schwann, J. was also concerned as to whether prerogative relief could be granted in the face of an alternative legislative scheme [at para. 33 to 35] and held that the legislative scheme set out in s. 14 and 15 of the Regulations must be exhausted before prerogative relief can be sought, stating as follows [at para. 36 to 39]:

"[36] Sections 14 and 15 of the Regulations create a comprehensive legislative scheme to deal with instances where ownership of cattle is dubious. Pursuant to s. 14(1), where an inspector forms the opinion that the "ownership of the livestock is in doubt", the inspector makes a detention order and either orders 1) the transport of the animals back to a stockyard (s. 14(1)(a)), or 2) allows them to be offered for sale, but directs market operators to withhold sale proceeds. (s. 14(2)).

[37] The matter does not end there as the provisions of the Regulations go on to provide a comprehensive, staged process of investigation, input rights of the parties and, if necessary, ultimate resolution by this Court. To illustrate, where an inspector issues a notice to withhold settlement pursuant to s. 14(3):

  • the inspector has 30 days to "make reasonable inquiries as to the rightful ownership of the livestock;
  • if these inquiries do not satisfactorily resolve ownership, the inspector directs the market operator to forward the withheld settlement funds to the Minister (s. 14(7));
  • s. 15(1) directs the Minister to "make all further inquiries that he or she considers necessary, and shall hear any persons claiming ownership of the livestock";
  • the onus is on the contributor to establish ownership (s. 14(5));
  • where the contributor is unable to discharge that onus, the Minister must release the sale proceeds to the rightful owner (if ownership has been satisfactorily established), or pay the money into court; and
  • ownership is ultimately determined by this Court, on application (s.15(6)).

[38] Absent an exception or special circumstance, the legislative scheme set out in ss. 14 and 15 of the Regulations must be exhausted before prerogative relief can be sought. In any event, by putting the ultimate question of livestock ownership in the hands of this Court on a substantive basis pursuant to s. 15(6) of the Regulations, the legislature has signalled an intention to involve this Court in a broader, more adjudicative fashion on the very merits of the ownership issue. Preliminary judicial intervention is incompatible with the role assigned to this Court by s. 15(6).

[39] In conclusion, I find the within application for prerogative relief to be moot, and in any event premature and/or brought in the face of an alternate, yet equally effective statutory scheme. The legislature has created a summary resolution process for disputes about ownership of livestock by engaging the input of officials who possess expertise in the field. For these reasons, the application to quash must be denied."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions