[1993] 1 F.C. 116
T-1346-92
The Ontario Chicken Producers’ Marketing Board (Applicant)
v.
The Canadian Chicken Marketing Agency (Respondent)
Indexed as: Ontario (Chicken Producers’ Marketing Board) v. Canada (Chicken Marketing Agency) (T.D.)
Trial Division, McGillis J.—Toronto, August 18 and 19; Ottawa, October 14, 1992.
Federal Court jurisdiction — Trial Division — Application to quash application for judicial review of assessment of liquidated damages — Canadian Chicken Marketing Agency established by Proclamation pursuant to Farm Products Marketing Agencies Act — Federal-Provincial Agreement controlling production and marketing of chicken in Canada — Amendment thereto requiring provincial boards to pay liquidated damages if quota exceeded and providing for final resolution of disputes by National Farm Products Marketing Council — Agency assessing liquidated damages against Ontario Board — Within Court’s jurisdiction to review assessment — Agency only having powers specifically accorded to it by Act or Proclamation — Agreement to assess damages exceeded powers mandated by Parliament — Agreement between federal and provincial governments not enforceable as private contract — Agency acting pursuant to statutorily authorized Agreement, purporting to exercise jurisdiction by or under Act of Parliament — Application for judicial review without first appealing to Council not premature — Agreement cannot oust Court’s jurisdiction to review jurisdictional issue.
Agriculture — Canadian Chicken Marketing Agency established by Proclamation pursuant to Farm Products Marketing Agencies Act — Assessing liquidated damages for overproduction against Ontario Chicken Producers’ Marketing Board pursuant to amendment to Federal-Provincial Agreement — Agency limited to powers specifically accorded by Act — Assessment of liquidated damages exceeding Agency’s jurisdiction.
This was an application to quash the Ontario Chicken Producers’ Marketing Board’s application for judicial review on the grounds either that the Court lacked jurisdiction or that the application was premature. The Canadian Chicken Marketing Agency was established by Proclamation pursuant to the Farm Products Marketing Agencies Act, which gave it various powers to enable it to perform its functions, but not the power to assess liquidated damages. It was created to ensure the promotion of an effective chicken industry in Canada. To that end it entered into a federal-provincial agreement in 1978, which was amended in 1984 to provide that each provincial marketing board would ensure that the quantity of chicken produced in the province and sold did not exceed its yearly allocation, failing which the provincial board would pay liquidated damages to the Canadian Agency. The amendment also provided that the National Farm Products Marketing Council would finally resolve any disputes concerning liquidated damages. In 1991 the Canadian Agency assessed the Ontario Board with liquidated damages. The Ontario Board did not appeal the assessment to the Council, but applied to this Court for judicial review. The Canadian Agency submitted that the Court lacked jurisdiction to review its assessment which was made pursuant to the terms of the Federal-Provincial Agreement, a private contract, and not through the exercise of powers conferred by or under an Act of Parliament. Furthermore, the provision in the Agreement for the final resolution of disputes concerning the determination of liquidated damages required the Ontario Board to appeal and obtain a ruling from the Council on the liquidated damages assessment before bringing a judicial review application in the Federal Court. The Ontario Board submitted that the Court had jurisdiction pursuant to Federal Court Act, section 18.1. The Canadian Agency is a federal body created by Parliament, exercises jurisdiction conferred by or under an Act of Parliament, and cannot act beyond the scope of those powers. As to prematurity, the provision in the Agreement for resolution of disputes cannot oust the jurisdiction of the Court, particularly where jurisdictional error is alleged. The issues were whether the Canadian Agency, in assessing liquidated damages against the Ontario Board, exercised or purported to exercise jurisdiction or powers conferred by or under an Act of Parliament, and whether the application for judicial review was premature since the Ontario Board had not yet appealed the assessment to the Council.
Held, the application should be dismissed.
The imposition of liquidated damages under the terms of the Federal-Provincial Agreement was beyond the powers conferred on the Agency by or under the Act or Proclamation and was reviewable by this Court. The Canadian Agency, a creature of statute and proclamation, may exercise only those powers specifically accorded to it by the Act or Proclamation. In agreeing to assess liquidated damages against the provincial commodity boards, the Canadian Agency expanded its powers beyond those mandated to it by Parliament.
Furthermore, an agreement negotiated between federal and provincial governments pursuant to the provisions of a statute is not an ordinary private contract but an agreement between governments. Such an agreement is not enforceable as a private contract. The Agreement was negotiated pursuant to section 31 of the Farm Products Marketing Agencies Act. The parties acknowledged its legislative base in the recitals and the Agreement is replete with references to legislative authority. It therefore cannot be characterized as a private contract in order to oust the jurisdiction of the Court. Furthermore, the actions of the Canadian Agency were undertaken pursuant to the statutorily authorized amended Federal-Provincial Agreement. It purported to exercise jurisdiction by or under an Act of Parliament, as a result of which this Court had jurisdiction to entertain the application for judicial review.
The application for judicial review was not premature. Section 9 of the amended Federal-Provincial Agreement provided that the Council would provide the final resolution of the “determination” of liquidated damages. In other words, the Council must consider the appropriateness of the assessment of liquidated damages in the circumstances of the case on appeal. Nothing in section 9 purports to oust the jurisdiction of the Court to review the power of the Canadian Agency to impose liquidated damages. Even had it purported to do so, section 9 could not prevent the Court from conducting judicial review of a jurisdictional issue.
STATUES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Chicken Marketing Agency Proclamation, SOR/79-158, Schedule, ss. 6(3), 11 (as am. by SOR/91-139, s. 7), 12 (as am. idem, s. 8).
Canadian Chicken Marketing Quota Regulations, SOR/79-559.
Farm Products Marketing Act, R.S.O. 1990, c. F.9, s. 16.
Farm Products Marketing Agencies Act, S.C. 1970-71-72, c. 65 (now R.S.C., 1985, c. F-4), ss. 16(1), 17(1),(2), 22, 31, 36, 37.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 (as enacted by S.C. 1990, c. 8, s. 1), 18.1 (as am. idem, s. 5).
Federal-Provincial Agreement with respect to the Establishment of a Comprehensive Chicken Marketing Program in Canada, ss. 2, 3, 4, 5, 9.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; (1991), 83 D.L.R. (4th) 297; [1991] 6 W.W.R. 1; 58 B.C.L.R. (2d) 1; 127 N.R. 161; Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220; 127 D.L.R. (3d) 1; 38 N.R. 541.
AUTHORS CITED
Wade, Sir William. Administrative Law, 6th ed., Oxford: Clarendon Press, 1988.
APPLICATION to quash, for lack of jurisdiction in the Court or as premature, an application for judicial review of an assessment of liquidated damages. Application dismissed.
COUNSEL:
Morris Manning, Q.C. and Theresa R. Simone, for applicant.
François Lemieux and Martha A. Healey for respondent.
SOLICITORS:
Manning & Simone, Toronto, for Ontario Chicken Producers’ Marketing Board.
Osler, Hoskin & Harcourt, Ottawa, for Canadian Chicken Marketing Agency.
The following are the reasons for order rendered in English by
McGillis J.: The Ontario Chicken Producers’ Marketing Board (the Ontario Board) brought an application for judicial review under section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] seeking writs of certiorari and prohibition and an injunction against the Canadian Chicken Marketing Agency (the Canadian Agency). The Canadian Agency then moved to quash the motion of the Ontario Board on the basis that the Court lacks jurisdiction or, alternatively, the application to the Court is premature. On the return date of the motions, only the application of the Canadian Agency concerning the jurisdiction of the Court was argued.
FACTS
The Ontario Board was created under the Farm Products Marketing Act, R.S.O. 1990, c. F.9 to administer the production and marketing of chickens in Ontario. The Canadian Agency was established in 1978 by Proclamation [Canadian Chicken Marketing Agency Proclamation, SOR/79-158] pursuant to the Farm Products Marketing Agencies Act, S.C. 1970-71-72, c. 65, now R.S.C., 1985, c. F-4, to promote a strong, efficient and competitive chicken production and marketing industry in Canada.
In 1978, a federal-provincial agreement [Federal-Provincial Agreement with respect to the Establishment of a Comprehensive Chicken Marketing Program in Canada] establishing a comprehensive chicken marketing program in Canada was signed by the federal Minister of Agriculture, his provincial counterparts, the federal and provincial supervisory boards and the provincial marketing boards, with the exception of Alberta in all cases. The Proclamation creating the Canadian Agency was appended as schedule “A” to the Agreement and the Ontario Board was a signatory. The Agreement contained, among other things, various monitoring and enforcement provisions limiting the total quantity of chicken to be produced for sale and sold in the signatory provinces according to provincial allocations.
In 1984, the Federal-Provincial Agreement was amended to provide, among other things, that each provincial marketing board would ensure that the total quantity of chicken produced in the province and marketed in intraprovincial, interprovincial or export trade did not exceed its yearly allocation as determined from time to time by the Quota Regulations [Canadian Chicken Marketing Quota Regulations, SOR/79-559] of the Canadian Agency. Furthermore, if the provincial marketing board exceeded its yearly allocation, it would pay to the Canadian Agency liquidated damages as prescribed, from time to time, in its liquidated damages resolution. The National Farm Products Marketing Council (the Council) would resolve finally any disputes concerning liquidated damages. The amount assessed as liquidated damages by the Canadian Agency or the Council on appeal would constitute a debt payable to the Agency.
Prior to 1990, the Canadian Agency calculated liquidated damages for the overproduction of chicken on an annual basis. In 1990, a new system of periodic penalties was introduced in the liquidated damages resolution and the Canadian Agency assessed liquidated damages against the Ontario Board in the amount of $928,321. The Ontario Board appealed the 1990 assessment to Council and argued, among other things, that the Canadian Agency had no jurisdiction to impose periodic or monetary penalties. Council rejected the jurisdictional argument of the Ontario Board and, following a consideration of the substantive arguments, dismissed the appeal. The Ontario Board paid the 1990 assessment as confirmed on appeal.
In 1991, the Canadian Agency applied the liquidated damages resolution and assessed the Ontario Board with liquidated damages in the amount of $1,713,172.
The Ontario Board did not appeal this assessment to Council, but rather applied to this Court for judicial review.
ISSUES
(i) Whether the Canadian Agency, in making its assessment of liquidated damages against the Ontario Board, exercised or purported to exercise jurisdiction or powers conferred by or under an Act of Parliament; and
(ii) whether the application of the Ontario Board is premature.
POSITION OF THE CANADIAN AGENCY
Counsel for the Canadian Agency submits that this Court has no jurisdiction to entertain the application of the Ontario Board on the basis that the Canadian Agency made its assessment of liquidated damages pursuant to the terms of the Federal-Provincial Agreement and not through the exercise or purported exercise of jurisdiction or powers conferred by or under an Act of Parliament. The Federal-Provincial Agreement entered into between the Canadian Agency and various provincial commodity boards, including the Ontario Board, is a private contract which has nothing to do with the governing statute, regulations or Proclamation. Indeed, the Canadian Agency does not have the statutory power to assess liquidated damages and, unless a provincial board is a party to the Agreement, it could not be obligated to pay such damages. Furthermore, the parties to the Agreement, including the Ontario Board, have agreed that the Council is the body to resolve finally disputes in relation to the determination of liquidated damages. Accordingly, the parties to the Agreement have established a complete contractual code for the assessment of liquidated damages and the resolution of disputes. Since the Ontario Board has not appealed its assessment to the Council, its application to the Court is premature.
Counsel conceded that the Canadian Agency is subject to judicial review by this Court where it exercises its regulatory powers. Furthermore, this Court would have jurisdiction to review the actions of the Canadian Agency under certain articles of the Federal-Provincial Agreement. However, the Court nevertheless lacks jurisdiction in relation to the liquidated damages resolution and only the provincial superior court possesses jurisdiction to review the actions of the Canadian Agency under this portion of the Agreement.
POSITION OF THE ONTARIO BOARD
Counsel for the Ontario Board submits that the Court has jurisdiction pursuant to section 18.1 of the Federal Court Act to grant the relief sought in its originating notice of motion. The Canadian Agency is a federal body created by Parliament which exercises or purports to exercise jurisdiction or powers conferred by or under an Act of Parliament. It cannot act beyond the scope of its limited powers without acting in excess of its jurisdiction. Furthermore, it cannot exercise powers purportedly conferred on it by consent or agreement, but rather is limited to the exercise of only those powers granted to it by Parliament. Since the Canadian Agency has no power under its governing statute, regulations or Proclamation to impose liquidated damages, its actions in purporting to impose such damages under the terms of the Federal-Provincial Agreement are reviewable by this Court. The statute itself provides penalties for those who breach its provisions and does not give any power to the Canadian Agency to make an agreement concerning penalties, damages or enforcement. The Canadian Agency cannot, by purporting to act under the Federal-Provincial Agreement, acquire an immunity from judicial review by this Court. Although the Canadian Agency has the power under its enabling Act to enter into a federal-provincial agreement, the statute contemplates that such agreements will be made solely for the purpose of permitting the Agency to perform functions ordinarily reserved to provincial boards in matters pertaining to intraprovincial trade. The Federal-Provincial Agreement cannot be properly characterized as a private contract. In fact, the recitals and terms of the Agreement recognize the existence of and necessity for a proper legislative and regulatory basis to authorize its provisions. If the position of the Canadian Agency were adopted, it would permit a federal board to expand its jurisdiction by consent and would also enable it to escape review by this Court by alleging that its actions in a particular instance were not legislatively founded.
With respect to the argument concerning prematurity, the Ontario Board is not premature in bringing its application to the Court rather than appealing the assessment of liquidated damages to the Council. The existence of a term in the Agreement that the Council shall finally resolve the determination of liquidated damages cannot oust the jurisdiction of the Court, particularly where jurisdictional error is alleged. Furthermore, the Council is a signatory to the Agreement and has on two previous occasions, in 1986 and 1991, decided that the liquidated damages resolution has a statutory basis. It is not appropriate to ask a signatory to the Agreement who has twice ruled on the validity of the resolution to decide the matter again.
LEGISLATIVE SCHEME
Although counsel has conceded that the Canadian Agency has no statutory power to impose liquidated damages, certain aspects of the legislative scheme must nevertheless be reviewed in order to determine whether the Court possesses jurisdiction in this matter.
The Farm Products Marketing Agencies Act (the Act) provides for the creation of the Council and authorizes the establishment of national marketing agencies for farm products.
Part II of the Act provides for the establishment of agencies, their membership, objects and powers. Subsection 16(1) of the Act permits the Governor in Council to establish by proclamation in prescribed circumstances a marketing agency with powers relating to a farm product. Such a proclamation shall, among other things set out in subsection 17(1) of the Act, designate the statutory powers under section 22 that are not vested in the agency and specify the terms of any marketing plan that the agency is empowered to implement. Subsection 17(2) of the Act provides for the alteration of a proclamation by the Governor in Council by way of a further proclamation which may, among other things, vest an agency with statutory powers withheld from it at the time of its creation, amend the terms of a marketing plan which an agency is empowered to implement or withdraw any of the statutory powers previously vested in the agency.
Subsection 22(1) of the Act establishes the powers of an agency and permits it, subject to the initial proclamation or any subsequent one altering its powers, to engage in various activities. For example, in paragraphs 22(1)(b), (f), (g) and (j) of the Act respectively, an agency may implement a marketing plan, make orders and regulations in connection with the implementation of a marketing plan and make an order concerning the collection and remission of licence fees, levies or charges provided for in a marketing plan. Under paragraph 22(1)(n) of the Act, an agency may do other things necessary or incidental to the exercise of any of its powers or the carrying out of any of its functions under the Act.
Under Part III of the Act entitled “General”, the marginal note to section 31 reads “Federal-provincial agreements”. Section 31 of the Act permits the Minister of Agriculture to make an agreement, on behalf of the Government of Canada, with any province to allow the agency to perform on behalf of the province functions pertaining to intraprovincial trade and other matters related thereto which are agreed to by the parties. The agency is then given the power in subsection 22(2) of the Act to perform on behalf of a province any function relating to intraprovincial trade that is specified in such a federal-provincial agreement.
In Part III of the Act, there are also provisions dealing with the recovery of debts due to an agency and offences and punishments. For example, section 36 of the Act provides that unpaid licence fees, levies or charges assessed under the terms of a marketing plan constitute a debt payable to the agency and section 37 creates summary conviction offences for, among other things, the contravention of a provision of the Act or a marketing plan.
Pursuant to subsection 16(1) of the Act, the Governor in Council by proclamation created the Canadian Agency. This Proclamation contains a Schedule which, among other things, sets out the terms of a marketing plan and mandates the Canadian Agency to establish by order or regulation a quota system for the provinces. Various sections of the Schedule provide the Canadian Agency with enforcement and monitoring powers. For example, in subsection 6(3) and sections 11 [as am. by SOR/91-139, s. 7] and 12 [as am. idem, s. 8] of the Schedule respectively, the Agency may reduce or refuse to allot the quota of a producer who has produced and marketed chickens in excess of his previous quota, establish a licensing system, impose, by order or regulation, levies or charges and provide for their collection. In order to determine if modifications are required to enable the Agency to carry out its objects, the Agency is required pursuant to subsection 15(1) of the Schedule to meet and review, at least once a year, the terms of the marketing plan contained in the Schedule and any orders and regulations made under the Act to implement the plan.
The Federal-Provincial Agreement was made in 1978 under section 31 of the Act on the understanding, as reflected in a recital, that the parties possessed the necessary legislative power to create and operate a comprehensive chicken marketing program. This attention to legislative power is reflected throughout the Federal-Provincial Agreement. For example, under the heading “Ministers of Agriculture” in section 2 of the Agreement, the federal and provincial ministers agreed to request the Governor in Council, the lieutenants governor in council and the provincial marketing boards to exercise all legislative power necessary to create and operate the program without legal impediment. They further agreed in section 3 of the Agreement to authorize and direct the Canadian Agency and the provincial boards to delegate authority as necessary in order to implement the marketing plans annexed to the Agreement, including the Schedule A Proclamation. In section 4 of the Agreement, the Council and the provincial marketing boards, in their capacities as supervising agencies, agreed to make any marketing plan, order or regulation necessary to implement the Agreement, including the approval of regulations or orders of their respective commodity boards or the Canadian Agency. Similarly, the commodity boards agreed in subsection 5(1) to become parties to any marketing plan and to enact any regulation or order necessary in the exercise of their own jurisdiction or any delegated authority to implement the Agreement.
In 1984, the Federal-Provincial Agreement was amended to strengthen the monitoring and enforcement of the comprehensive chicken marketing program to accomplish certain other purposes and to provide for the imposition by the Canadian Agency of liquidated damages. In this regard, the parties agreed to repeal the quota provision in subsection 5(2) of the Federal-Provincial Agreement and replaced it with paragraph 5(2)(a) which provided that each provincial commodity board would pay liquidated damages to the Canadian Agency for any marketings in excess of its yearly provincial allocation at the rate and in the manner prescribed by the Agency in its liquidated damages procedure resolution. Furthermore, the commodity boards agreed with the Canadian Agency in the amended paragraph 5(2)(b) that, in consideration of the Agency agreeing to the amendment, any amount assessed as liquidated damages would constitute a debt due and payable to the Agency. If the debt was not paid within the time prescribed in the Agency’s liquidated damages procedure resolution or following an appeal to the Council, the outstanding amount could be recovered by the Agency in a court of competent jurisdiction. In addition, section 9 of the Agreement was revoked and replaced with an amended section providing, among other things, that the Council shall resolve finally the determination of liquidated damages. In Part II, section 3 of the amendment, the Council and the supervising agencies agreed to make any marketing plan amendment, regulation or order necessary to ensure the implementation of the amendments to the Agreement.
Following the amendment to the Federal-Provincial Agreement, the Canadian Agency adopted a resolution determining the rate and manner of payment of liquidated damages and subsequent production cutbacks. The substance of this resolution was changed from time to time by the Canadian Agency.
ANALYSIS
(i) Jurisdiction of the Federal Court of Canada
The question of the jurisdiction of this Court to entertain the application for judicial review brought by the Ontario Board involves a determination of whether the Canadian Agency, in making its assessment of liquidated damages against the Ontario Board, exercised or purported to exercise jurisdiction or powers conferred by or under an Act of Parliament within the meaning of section 2 [as am. by S.C. 1990, c. 8, s. 1] of the Federal Court Act.
A review of the legislative scheme creating the Canadian Agency and the comprehensive chicken marketing program reveals that a statutorily based, carefully regulated system was implemented to control the production and marketing of chickens in Canada. To ensure the promotion of an effective chicken industry, the Canadian Agency was created by a proclamation of the Governor in Council pursuant to section 16 of the Farm Products Marketing Agencies Act (the Act). It was accorded by the Act and Proclamation various powers to enable it to perform its functions.
Although the Canadian Agency was not granted the power under either the Act or Proclamation to impose liquidated damages on a provincial commodity board, it nevertheless signed an amendment to the Federal-Provincial Agreement in 1984 in which the parties purported to require provincial commodity boards to pay liquidated damages. Under the terms of the amended Agreement and the liquidated damages resolution, the Canadian Agency subsequently assessed such damages against the Ontario Board. It is therefore necessary to consider whether this assessment of liquidated damages amounts to an exercise or purported exercise by the Canadian Agency of jurisdiction or powers conferred by or under a federal statute.
Counsel for the Canadian Agency conceded that it is subject to judicial review by this Court in the exercise of its regulatory powers. He further conceded that this Court would have jurisdiction to review the actions of the Canadian Agency under certain articles of the Federal-Provincial Agreement. However, he seeks to avoid judicial review by this Court of the actions of the Canadian Agency in imposing liquidated damages against the Ontario Board by characterizing the Federal-Provincial Agreement, or at least that portion of it concerning liquidated damages, as a private contract.
The argument advanced by the Canadian Agency is initially premised on the assumption that a federal body, which has powers circumscribed by statute and proclamation, can negotiate and conclude a private bargain to expand its powers beyond those mandated to it by Parliament. I do not agree with this proposition. As stated in Administrative Law by Sir William Wade (Oxford: Clarendon Press, 1988, at page 264), it is a primary rule that “no waiver of rights and no consent or private bargain can give a public authority more power than it legitimately possesses.” The Canadian Agency, which by its very nature is a creature of statute and proclamation, may only exercise those powers specifically accorded to it by the Act or Proclamation. In making an agreement to assess liquidated damages against the provincial commodity boards, the Canadian Agency has expanded its powers beyond those mandated to it by Parliament. Accordingly, its purported exercise of jurisdiction or powers in imposing liquidated damages under the terms of the Federal-Provincial Agreement is beyond those powers conferred on it by or under the Act or Proclamation and, for this reason alone, is reviewable by this Court.
The argument advanced by the Canadian Agency is further premised on the assumption that a federal-provincial agreement negotiated pursuant to the provisions of a statute may be characterized as a private contract. However, this proposition is not tenable at law. An agreement negotiated between federal and provincial governments pursuant to the provisions of a statute is not an ordinary, private contract, but rather an agreement between governments. Such an agreement is not enforceable as a private contract. (See Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at pages 553-554 and 565.) The Federal-Provincial Agreement in question in the case at bar was negotiated pursuant to section 31 of the Act. The parties to the Agreement acknowledged its legislative base in the recitals and the Agreement itself is replete with references to legislative authority. It cannot properly be characterized as a private contract in order to oust the jurisdiction of this Court. Furthermore, the actions of the Canadian Agency were undertaken pursuant to the statutorily authorized amended Federal-Provincial Agreement. Its actions therefore constitute the exercise or purported exercise of jurisdiction or powers by or under an Act of Parliament, as a result of which this Court has jurisdiction to entertain the application of the Ontario Board for judicial review.
(ii) Prematurity
The amendment to section 9 of the Federal-Provincial Agreement provides that the Council shall be the body to resolve finally the determination of liquidated damages. Counsel for the Canadian Agency argues that this provision requires the Ontario Board to appeal and obtain a ruling from the Council on the 1991 liquidated damages assessment before bringing its judicial review application in this Court. I cannot accept this argument either based on a consideration of a plain reading of the section or the jurisprudence.
A plain reading of section 9 of the amended Federal-Provincial Agreement reveals that the Council is to provide the final resolution of the “determination” of liquidated damages. In other words, Council must consider the appropriateness of the assessment of liquidated damages in the circumstances of the case on appeal. There is nothing in section 9 which purports to oust the jurisdiction of the Court to review the power of the Canadian Agency to impose liquidated damages. Indeed, even if section 9 of the amended Federal-Provincial Agreement purported to do so, it could not prevent the Court from conducting judicial review of a jurisdictional issue. (See Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220.) Accordingly, the application of the Ontario Board for judicial review is not premature.
DECISION
The application of the Canadian Agency to quash the motion of the Ontario Board is dismissed with costs payable to the Ontario Board in any event of the cause.