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


  • 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)


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:

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.

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:

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.

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.

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