Prokam Enterprises Ltd. v. British Columbia Farm Industry Review Board, 2024 BCCA 151

Ken McEwan, K.C. and Saheli Sodhi successfully represented a respondent on an appeal from the judicial review of a decision of the BC Farm Industry Review Board (the “Board”).

The judicial review proceeding arose from a decision made by the Board following a supervisory review into allegations of bad faith and unlawful activity raised in court filings alleging misfeasance in public office by members and staff of the BC Vegetable Marketing Commission. At the conclusion of the lengthy supervisory review, the Board concluded there was no cogent evidence to substantiate the very serious allegations of wrongdoing and expressed its concern that the complainants had advanced their allegations of bad faith and unlawful conduct for strategic or ulterior purposes (a copy of BCFIRB’s supervisory review decision can be found here). One of these complainants, Prokam Enterprises Ltd., sought judicial review of the decision, alleging that the Board’s decision was ultra vires(which argument was not made before the Board), and that the decision was not procedurally fair and was patently unreasonable. On judicial review, Justice Brongers dismissed Prokam’s petition in its entirety. A summary of and link to Justice Brongers’ judicial review decision can be found here.

Prokam appealed Justice Brongers’ order dismissing the judicial review. On appeal, Prokam significantly recast the arguments raised on judicial review. Prokam argued that: (1) BCFIRB’s determination that there was “no evidentiary foundation” for Prokam’s allegations was beyond the scope of the supervisory review and thus both procedurally unfair and patently unreasonable; and (2) BCFIRB made findings of misconduct against Prokam which were beyond the scope of the allegations review and thus procedurally unfair. Ken McEwan and Saheli Sodhi opposed each of these bases for review, arguing that Board’s determinations were not “findings of misconduct” and that these findings fell squarely within the terms of reference for the supervisory review. They also argued that Prokam’s appeal on the “no evidentiary foundation” finding served no practical purpose and would not change the outcome, as the thrust of Prokam’s argument was not on the correctness or reasonableness of the finding itself, but only on the language used by Board in making that finding.

The Court of Appeal dismissed the appeal in its entirety. The Court concluded that the supervisory review process was not procedurally unfair and that the findings complained of were not “findings of misconduct” but rather were findings that flowed directly from the terms of reference. In concluding that the “no evidentiary foundation” finding was not patently unreasonable, the Court noted that Prokam did not take issue with the Board’s ultimate conclusion that its allegations were not substantiated. The Court found there was no practical purpose to the appeal on this issue in that it would not change the outcome. In concluding on this issue, the Court noted that “the fact that the Board’s findings were expressed in stronger terms than Prokam believes is appropriate is not a ground for this Court to interfere with” the Board’s decision.

The full reasons for judgment can be found here.

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