Executive Summary: Key Legal and Evidentiary Issues

• The central issue on appeal was whether the matter had become moot following BCFIRB's subsequent unconditional approval of MPL's agency designation.
   
• At stake was whether BCFIRB had jurisdiction under the Natural Products Marketing (BC) Act to grant a novel probationary agency designation not set out in the regulatory scheme.
   
• Appellants Windset and GGFI argued that live questions remained about the scope of BCFIRB's jurisdiction and its obligation to apply the General Order's 10 designation criteria.
   
• Procedural fairness was also raised, with the appellants contending they were not afforded a fair hearing before BCFIRB at first instance.
   
• The Court considered whether to exercise its discretion to hear the moot appeal on the grounds of recurring issues, evasiveness of review, or broad public interest.
   
• Judicial restraint was engaged given that the First BCFIRB Decision was a policy decision by a highly specialized tribunal and no live dispute remained.
   

Facts of the case

This appeal arose from a decision of the British Columbia Farm Industry Review Board ("BCFIRB"), which reviewed a decision of the British Columbia Vegetable Marketing Commission (the "Commission"). The Commission is the first-instance regulator of the BC vegetable industry and is empowered under s. 11(1)(a) of the Natural Products Marketing (BC) Act, R.S.B.C. 1996, c. 330 ("NPMA") to designate the agencies through which regulated vegetables must be marketed. BCFIRB exercises supervisory powers over the Commission under the NPMA and has exclusive jurisdiction under s. 9(2) to determine whether a Commission designation accords with sound marketing policy and the Commission's General Order.

MPL British Columbia Distributors Inc. ("MPL"), a greenhouse vegetable marketer based in Ontario, appeared before the Commission seeking designation as an agency entitled to market vegetables produced in British Columbia. The Commission designated MPL as an agency, subject to BCFIRB's approval (the "First Commission Decision"). On October 11, 2023, BCFIRB approved MPL's designation for a probationary period commencing immediately and continuing through until the licensing period ending March 1, 2025, contemplating a future review before issuing MPL a licence for the following year (the "First BCFIRB Decision"). The court noted this was a novel status not set out in the regulatory scheme.

Windset Farms (Canada) Ltd. ("Windset"), a producer of greenhouse grown vegetables subject to the same regulatory scheme, and Greenhouse Grown Foods Inc. ("GGFI"), a designated agency with authority to market vegetables under the same legislative scheme, sought judicial review of the First BCFIRB Decision. The judicial review was heard in April 2024 and reasons for judgment dismissing the application were issued on January 2, 2025. Windset and GGFI appealed that decision.

Policy and legislative provisions at issue

The regulatory framework governing vegetable marketing in BC is established by the NPMA, the Natural Products Marketing (BC) Act Regulations, B.C. Reg. 328/75, and the British Columbia Vegetable Scheme, B.C. Reg. 96/80. The Commission enacted a Consolidated General Order (the "General Order") pursuant to its s. 11(q) NPMA rule-making authority, which at the relevant time provided 10 criteria that must be satisfied for a new agency to receive designated agency status. In June 2024, while the judicial review was under reserve, the Commission repealed most of the General Order's agency-related provisions and replaced them with an "Agency Order," which retained nine of the 10 criteria but added a provision allowing the Commission to give different weights to the requirements or waive any of them entirely. The NPMA also contains a privative clause with respect to BCFIRB's decisions (s. 9(3)), and the Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 58(1) designates BCFIRB as an expert tribunal in relation to matters within its exclusive jurisdiction.

Reasoning and analysis

Before the appeal was set down for hearing, BCFIRB issued a subsequent decision on July 11, 2025, unconditionally approving MPL's agency designation (the "Second BCFIRB Decision"), which superseded the First BCFIRB Decision. No judicial review was sought of the Second BCFIRB Decision. MPL moved to quash the appeal as moot. The Court found the appeal moot, as the tangible and concrete dispute over whether MPL's probationary agency designation was lawful had disappeared, applying the test in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.

The Court then considered whether to exercise its discretion to hear the moot appeal by reference to the three Borowski factors as discussed in Tatlock v. British Columbia (Attorney General), 2025 BCCA 181. While satisfied that the adversarial relationship between the parties remained intact, the Court found that the second and third Borowski factors weighed against hearing the appeal. The Court gave four reasons for declining. First, the legal and factual landscape had changed: the Agency Order had replaced the General Order, making appellate guidance on the old framework of little or no practical utility. Second, the evidentiary record did not support the notion that BCFIRB issues probationary licences on a recurring basis; the appellants had also failed to take steps to expedite the appeal before the Second BCFIRB Decision rendered it moot. Third, the issues raised were purely economic in nature and did not rise to broad public interest. Fourth, because the First BCFIRB Decision was a policy decision made by a highly specialized tribunal, it was appropriate for the Court to exercise restraint in the absence of a live dispute rather than risk pre-emptively dictating government decision-making.

Ruling and overall outcome

The Court of Appeal quashed the appeal. The appeal was found to be moot, and the Court declined to exercise its discretion to hear it. As this was a mootness decision with no substantive determination on the merits, neither party was identified as the successful party on the underlying dispute, and no monetary award or costs order is reflected in the written reasons.