In a recent decision, the BC Supreme Court dismissed an application for judicial review challenging a decision of the BC Farm Industry Review Board (BCFIRB) to grant a designated agency licence to MPL British Columbia Distributors Inc. (MPL) to market greenhouse-grown vegetables in BC. In the decision, the Court highlighted BCFIRB’s role as a specialized administrative tribunal with broad supervisory powers over commodity marketing boards. Dentons’ Morgan Camley, Emma Irving and Mélanie Power acted on a team representing MPL on the judicial review.
Background: Regulated vegetable marketing in BC
The marketing of natural products, including certain vegetables is regulated in BC under the Natural Products Marketing (BC) Act.[1] The BC Vegetable Marketing Commission (Vegetable Commission) is the first instance regulator of the BC regulated vegetable industry. It is responsible for administering the British Columbia Vegetable Scheme[2] and ensuring orderly marketing of regulated vegetables. The BCFIRB has general supervisory authority over the Vegetable Commission and BC’s other agricultural commodity boards.
The Vegetable Commission exercises its powers in part through designated agencies, which are responsible for marketing regulated vegetables in BC on behalf of producers. By pooling the production of vegetables from multiple producers, agencies harness their collective power and gain market access. Agencies are designated by the Vegetable Commission and this designation must be pre-approved by BCFIRB under s. 8 of the Natural Products Marketing (BC) Act Regulations[3] before it takes effect. The decision to designate a new agency is a matter of fundamental marketing policy. In order to designate a new agency, the Vegetable Commission must be satisfied that the additional agency will not result in price erosion, lead to market confusion or otherwise undermine orderly marketing. The Vegetable Commission must also be satisfied that the new agency will enhance orderly marketing, promote the development of the industry and ensure that producer returns are maximized.
On January 12, 2023, the Vegetable Commission issued a decision designating MPL as an agency, subject to BCFIRB’s pre-approval. BCFIRB struck a supervisory panel to review the Vegetable Commission’s decision and on October 11, 2023, approved MPL’s designation as an agency for a probationary period and subject to certain conditions, namely reporting requirements.
BC Supreme Court dismisses challenge to agency licence
In Windset Farms (Canada) Ltd. v. British Columbia Farm Industry Review Board, 2025 BCSC 2, the petitioners, Windset Farms (Canada) Ltd. (Windset) and Greenhouse Grown Foods Inc. (GGFI), sought judicial review of BCFIRB’s decision to approve MPL as a designated agency. Windset is a producer of greenhouse-grown vegetables and GGFI is a designated agency in BC. The petitioners alleged that BCFIRB’s decision was patently unreasonable and breached the duty of procedural fairness. They sought to have the decision set aside and remitted back to BCFIRB for reconsideration.
The petitioners argued that the decision was patently unreasonable because BCFIRB: (1) ignored certain statutory conditions for granting a designated agency licence set out in the Vegetable Commission’s Consolidated General Orders; and (2) assumed jurisdiction to approve a new type of probationary licence and assumed ongoing supervision over MPL.[4] First, the Court found that BCFIRB did not err in respect of the statutory requirements set out in the Consolidated General Orders. The Court held that the powers granted to BCFIRB by the legislature are “broad and more than sufficient” to make the decision to grant MPL an agency licence in the circumstances.[5] Further, even if, in the Court’s opinion, an aspect of BCFIRB’s reasoning was flawed, that alone would be insufficient for the Court to find BCFIRB’s decision patently unreasonable if it did not affect the reasonableness of the decision as a whole.[6] Second, the Court found that BCFIRB did not exceed its jurisdiction in granting a probationary licence or in taking an ongoing supervisory role. According to the Court, “t[h]e legislature provided BCFIRB with broad supervisory and discretionary powers establishing BCFIRB as the ultimate decision maker in this regulated area, including to approve an agency licence.”[7] These powers are intended to be “”proactive”, not “passive”.”[8] Therefore, the Court found it was not patently unreasonable for BCFIRB to exercise its power to issue a probationary agency licence or take on ongoing supervision over MPL.[9]
The petitioners also argued that BCFIRB’s decision was procedurally unfair because BCFIRB did not seek submissions regarding granting a conditional licence to MPL and failed to consider credibility issues. The Court rejected both submissions. According to the Court, the petitioners were afforded a high level of procedural fairness in the circumstances and had a “meaningful and fair opportunity to present their evidence and position.”[10] Regarding the issue of credibility, the Court found that BCFIRB had addressed the central issues and concerns raised by the parties and there was “no need for BCIFRB’s reasons to “respond to every argument or line of possible analysis.”[11] The petition was dismissed.
Key takeaways
The regulation of agricultural commodities in BC is highly specialized area of law. In this decision, the Court highlights the unique role of BCFIRB in exercising broad and flexible supervisory powers over industry participants. As noted by the Court, BCFIRB is intended to be a proactive regulator and has the power to make bespoke or unprecedented orders where it deems appropriate without judicial intervention. Given the Court’s broad interpretation of BCFIRB’s powers, provided BCFIRB acts within the scope of its powers and treats parties fairly, courts are unlikely to interfere.
This decision also has the potential to be relied on in other highly regulated and specialized industries. The Court in Windset was clear that where the legislature grants a regulator broad supervisory and discretionary powers, courts should aim to give effect to the legislature’s intention in granting such broad powers.[12] As a result, industry participants in other regulated sectors may find it difficult to challenge the exercise of a regulator’s discretionary powers where the legislature has demonstrated an intention that that regulator be the ultimate decision-maker in that regulated area.
Finally the Court’s comments in Windset on the duty of procedural fairness are notable. The Court emphasized that the scope of procedural fairness must be assessed contextually and may be narrower where a decision is more policy-driven than judicial.[13] As noted above, the decision by the Vegetable Commission and BCFIRB to designate an agency is fundamentally a matter of marketing policy. Courts are likely to find that industry stakeholders participating in proceedings that are fundamentally matters of policy have been afforded a high degree of procedural fairness where they have been granted participatory rights akin to party rights (i.e. the ability to provide submissions, tender evidence and cross-examine witnesses, among other things).
Dentons’ Litigation and Dispute Resolution group have expertise in agricultural law and the regulation of BC’s agricultural commodity boards. If you have a question about this decision or this area of law more broadly, please reach out to the authors, Morgan Camley, Emma Irving, Mélanie Power or Kathryn Gullason.
[1] R.S.B.C. 1996, c. 330.
[2] B.C. Reg. 96/80.
[3] B.C. Reg. 328/75.
[4] Windset Farms (Canada) Ltd. v. British Columbia Farm Industry Review Board, 2025 BCSC 2 at para. 47 [Windset].
[5] Ibid at para. 72.
[6] Ibid at para. 79.
[7] Ibid at para. 87.
[8] Ibid at para. 83.
[9] Ibid at para. 88.
[10] Ibid at paras. 95 and 97.
[11] Ibid at para. 102, citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 127-128.
[12] Ibid at para. 87.
[13] Windset, supra note 5 at paras. 93-94.
