Case: Windset Farms (Canada) Ltd. v. British Columbia Farm Industry Review Board, 2026 BCCA 279 (CanLII)
Keywords: greenhouse vegetables; Natural Products Marketing (BC) Act, R.S.B.C. 1996, c. 330; Natural Products Marketing (BC) Act Regulations, B.C. Reg. 328/75, and the British Columbia Vegetable Scheme, B.C. Reg. 96/80
Synopsis:
B.C. regulates the marketing of vegetables grown in B.C. through a regime providing that large scale producers generally must sell through a designated agency. (See para. 8). The Vegetable Scheme establishes the British Columbia Vegetable Marketing Commission as the first instance regulator of the industry. Pursuant to its powers (i.e., rule-making authority in s. 11(q) of the Natural Products Marketing (BC) Act, R.S.B.C. 1996, c. 330), the Commission enacts a Consolidated General Order setting out regulations for the marketing of regulated vegetables. The General Order provides 10 criteria to be satisfied in order for a new agency to be granted “designated agency status”. (See para. 9). The British Columbia Farm Industry Review Board has general supervisory functions over the Commission and must approve new designated agencies (i.e., by determining whether the decision accords with “sound marketing policy” and the General Order). (See para. 11).
The Appellants, Windset Farms (Canada) Ltd. and Greenhouse Grown Foods Inc., are a producer of greenhouse grown vegetables and the designated agency with authority to market them. Together, they seek judicial review of a Review Board decision approving the Respondent MPL British Columbia Distributors Inc. as an agency. Following dismissal of that application by the B.C. Supreme Court (per McDonald J.), the Appellants appeal to the Court of Appeal. Before the appeal is set down, the Review Board issues a subsequent decision which “unconditionally approved MPL’s agency designation”). (See para. 6). The Respondent asks that the appeal be quashed as moot. The Court of Appeal (Abrioux, Edelmann, and Francis JJ.A.) quashes the appeal. (See para. 28).
Importance:
At paras. 8-11, the Court of Appeal provided a helpful summary of the institutional structure (they call it “The Regulatory Framework”) governing B.C. vegetables – potentially useful to anyone gently encouraging their children/grandchildren to eat their vegetables (you can read these four paras. out to them at dinner this evening – they’ll still be protesting broccoli by the time you’re done reading). More so for anyone seeking a deeper understanding of the regulatory framework governing the food that Canadians eat.
As to the meat and potatoes (or broccoli and green beans?) of the dispute, the focus was on the familiar Borowski analysis, as more recently outlined by the B.C. Court of Appeal in Tatlock v. British Columbia (Attorney General), 2025 BCCA 181 at paras. 18-20. (See paras. 20-22; Borowski v. Canada (Attorney General), 1989 CanLII 123). For the Court of Appeal, this appeal is moot because “the tangible and concrete dispute between the parties over whether MPL’s probationary agency designation was lawful has disappeared”. (See para. 20). However, the Appellants advanced an argument that, given the impact in “recurrent supervisory proceedings”, the Court should exercise its discretion to hear the appeal. (See para. 21). For the Court of Appeal,
- that possibility was “too remote to render the present question a live controversy”; and
- “[w]hile the unique nature of this very small, highly regulated community renders any decision by BCFIRB of significant import to the parties, the fact that the issues on appeal are important to the appellants does not save the appeal from being moot.” (See para. 21).
In the circumstances here, the Court of Appeal accepted that the parties are in an “adversarial relationship” and the issues would be “well and fully argued”, but determined it would not be an appropriate use of judicial resources to consider and rule upon those issues. (See para. 23). The Court provided four reasons for its decision:
- No support in the evidentiary record for the conclusion that this is a “recurring issue”;
- No “temporal urgency”;
- No “broad public interest”; and
- The underlying decision is “a policy decision made by a highly specialized tribunal” calling for “restraint”. (See paras. 24-27).
Accordingly, the Court of Appeal quashed the Appellants’ appeal. (See para. 28).
Counsel for the Appellants: Craig Ferris, K.C., Laura Duke, and Thomas Boyd (Lawson Lundell, Vancouver)
Counsel for the Respondent, British Columbia Farm Industry Review Board: Kate Phipps (Arvay Finlay LLP, Vancouver)
Counsel for the Respondent, MPL British Columbia Distributors Inc.: Andrew Gay, K.C. (Gudmundseth Mickelson LLP, Vancouver), Morgan Camley, K.C. (Dentons, Vancouver), and C Qiu