New Brunswick

Woodlot board's move to fast-track Irving dispute fails

Judge rules J.D. Irving legal action against SNB co-operative and marketing board will go to trial

Connell Smith - CBC News

August 22, 2017

J.D. Irving Ltd. is challenging the authority of the SNB Wood Co-operative over sales from private woodlots in southern New Brunswick (Jacques Boissinot - Canadian Press)

A judge in Saint John has dismissed an application by the Southern New Brunswick Forest Products Marketing Board and its sister group the SNB Wood Co-operative that could have derailed a legal action by J.D. Irving Ltd.

Irving has asked the Court of Queen's Bench to declare a contract between the marketing board and the wood co-operative unlawful.

ADVERTISEMENT

But earlier this month, the board and co-op applied to Justice William Grant to have the lawsuit converted to a judicial review, a process more akin to an appeal court hearing than a lawsuit.

That would have made the process less time-consuming and less expensive for the two organizations, which lack JDI's legal and financial resources.

JDI challenges co-op order

At the root of the case is a January 2016 order issued by the co-operative declaring that wood from private woodlots can only be sold to the marketing board, and wood purchasers can only buy from the board.

Forest product sales are regulated in New Brunswick, and woodlot marketing boards were granted authority over sales in their respective geographic territories in 1982 under the Natural Products Act.

The system was intended to give individual woodlot owners more collective clout in negotiating sales to mills.

But that control has been eroding.

Wants control over sales

The suit by J.D. Irving is the latest in a series of moves by the company to break the hold that wood marketing boards have had over sales in southern New Brunswick.

In his decision on Monday, Justice William Grant said the court hadn't seen enough documentation of the relationship between the marketing board and the co-operative.

Without those facts, he said he couldn't send the dispute to a judicial review. 

A judicial review, according to UNB law professor Nicole O'Byrne unfolds more like an appeal court hearing, where facts are argued before an appeal judge or Court of Queen's Bench judge, unlike at a regular trial with witnesses.

Decades-long dispute

"If you went into the Court of Appeal and you watched one of these things, it would look like an appeal," said O'Byrne.

"The lawyers will make submissions, they'll file briefs. One side will say, 'We were within jurisdiction,' the other side will say, 'No, they were outside of jurisdiction."

The wood dispute dates back decades but the most recent round began in 2012, when J.D. Irving stopped signing contracts to buy wood from the SNB Forest Products Marketing Board.

Along the way, the company lost appeals to both the New Brunswick Forest Products Commission and the New Brunswick Court of Appeal.

Buys directly from woodlots

Despite those setbacks, the company continues to contract wood its wood purchases directly with private woodlot owners, rather than with SNB. 

Irving has also filed an appeal to the Forest Products Commission arguing that the SNB board's order is not valid.

The commission heard arguments in the case on the Aug. 9 and 10 and reserved a decision.

A spokesperson for the SNB Co-op said the organization may comment on the issue Tuesday.

Noting the matter is before the courts JD Irving spokesperson Mary Keith declined comment Monday.

Start the day smarter
Get the CBC News Morning Brief, the essential news you need delivered to your inbox