Association of Ontario Chicken Processors v. Chicken Farmers of Ontario, 1998 ONAFRAAT 9

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Association of Ontario Chicken Processors v Chicken Farmers of Ontario

Association of Ontario Chicken Processors v CFO 1998 ONAFRAAT 9

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

January 20-22, 1998

DATE OF DECISION:

February 5, 1998

1998-09

NEUTRAL CITATION:

1998 ONAFRAAT 9

Association of Ontario Chicken Processors v Chicken Farmers of Ontario

IN THE MATTER OF THE FARM PRODUCTS MARKETING ACT AND SECTION 16 OF THE MINISTRY OF AGRICULTURE AND FOOD ACT.

AND IN THE MATTER OF:

An Appeal to the Farm Products Appeal Tribunal by the Association of Ontario Chicken Processors from the January 12, 1998 decision of the Chicken Farmers of Ontario to allocate to Farm Fresh Poultry Co-op Inc. four hundred and fifty thousand (450,000) kilograms of chicken for Quota Period A-19 and five hundred and fifty (550,000) kilograms of chicken for Quota Period A-20.

Before:

Jim Rickard, Chair; Anna Andres, Member; Armand Bechard, Member.

Appearances:

Mr. Rob Shapiro, advocate for the appellant, the Association of Chicken Processors of Ontario.

Mr. Geoff Spurr, Counsel to the respondent, the Chicken Farmers of Ontario.

Mr. George Alkalay, advocate for Farm Fresh Poultry Co-op Inc.

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario, commencing on Tuesday, January 20^th, 1998 and continuing on Thursday, January 22^nd. The Association of Ontario Chicken Processors (the AOCP) appealed to the Farm Products Appeal Tribunal (the Tribunal) from the January 12^th, 1998 decision of the Chicken Farmers of Ontario (CFO) to allocate to Farm Fresh Poultry Co-op Inc. (Farm Fresh) four hundred and fifty thousand (450,000) kilograms of chicken for Quota Period A-19 and five hundred and fifty thousand (550,000) kilograms of chicken for Quota Period A-20.

The Background

The CFO passed Quota Policy No. 129-1996 effective May 31^st, 1996. The effect of this policy is to establish a framework for assignment of the supply of live chicken to each processor. The relevant sections of Quota Policy No.129-1996 are as follows:

8. Each processor shall communicate to the AOCP its requested supply level for each quota period as determined in accordance with paragraph 5, 6 and 7 herein and the AOCP shall incorporate all such requests in any AOCP recommendation to the Board regarding individual processor supply and total supply for any quota period. The Board shall determine the individual processor supply and total supply levels for each quota period and in so doing shall take into consideration any recommendation by the AOCP. The Board shall further have regard to any special request made to it by AOCP as a result of AOCP’s operation of a special request program for period A-09 to A-16 by which the larger processors will be eligible to apply for an additional quantity of chicken from a pool of a maximum of one (1) million kgs., if required. Any such special requests will be separately identified as part of an AOCP recommendation to the Board regarding the individual processor supply and total supply for the period in question.

9. Applications of new entrants for supply of chicken to be purchased from producers through the Board shall be made in writing to the Board which will determine on a case by case basis whether the application should be granted.

The supply of live chicken has been allotted by the Board using this policy since May 31^st, 1996. Concerns have arisen in the industry surrounding the assignment of supply resulting in a meeting between the Farm Products Marketing Commission (the Commission), the CFO and the AOCP on January 8^th, 1998. By letter of January 9^th, 1998 the Commission informed the CFO and the AOCP of its decision to establish a committee of up to four members appointed by each of the AOCP and CFO chaired by the Commission to develop an allocation system for live chicken. The Commission established a deadline of March 31^st , 1998 for bringing closure to the issue of how processors secure their individual supply of live chicken. In the January 9^th letter the Commission also stated:

“As of Thursday afternoon, January 8^th, 1998, the Commission directs CFO to not allocate chicken to new applicants.

Regarding applications currently before the CFO, these should be dealt with in a manner taking into account that the policy review is being undertaken.”

In the fall of 1997 several chicken producers formed Farm Fresh and purchased the processing plant formerly owned by Ungerman/Thompson Poultry Products (Ungerman). The CFO assigned to Farm Fresh the supply of live chicken that had previously been assigned to Ungerman under Quota Policy No. 129-1996. Farm Fresh applied to the CFO for an increase in the assigned supply of live chicken indicating that it was a new entrant into the industry and that it wished to grow in a rapid and orderly fashion to process 2.0 million kilogram of live chicken per quota period. Farm Fresh indicated that the 2.0 million kilogram figure was the current production of its producer members.

The AOCP has 20 members representing 97% of the volume of the Ontario slaughter of live chicken. The AOCP is aggrieved by the CFO decision to allot 450,000 kilograms of live chicken supply to Farm Fresh in Quota Period A-19 and 550,000 kilograms of live chicken supply to Farm Fresh in Quota Period A-20.

The AOCP had recommended to the CFO that the supply for Farm Fresh for Quota Period A-19 be set at 382,000 kilograms of live chicken and has not made a recommendation for the supply to any processor for Quota Period A-20.

The Issue

The issues before the Tribunal are:

Should the supply of live chicken assigned to Farm Fresh be 450,000 kilograms or 382,000 kilograms in Quota Period A-19?

Should a supply of live chicken be assigned to Farm Fresh for Quota Period A-20 at this time?

The Evidence and the Findings

Mr. Robert Shapiro, speaking on behalf of the AOCP, acknowledged that the CFO has the authority to set the level of supply for Ontario and to establish individual company supply levels. He argued that, under Quota Policy No.129-1996, the CFO must take into consideration the recommendations of the AOCP in this regard.

Mr. Shapiro told the Tribunal that Quota Policy No. 129-1996 requires the AOCP to recommend to the CFO a total supply of live chicken as well as the specific volume of live chicken to be allotted to each processor, both member and non member processors. He said it was necessary to put this policy in place in 1996, following a number of previous allocating systems, to solve problems in establishing the appropriate total supply figure for Ontario. Prior to this policy the processors, because of their competitive interests, could not come to agreement on an appropriate total supply. He said reaching a total supply figure for each quota period is important for both the producer and the processors to maintain stability in the market.

Mr. Shapiro said that over the period of the current supply setting agreement CFO has dealt with a number of new entrants. In each case, the CFO directed the new entrants to go to the AOCP and obtain a recommendation on the assignment of supply for the CFO to consider. Ungerman was one such new entrant and the AOCP had recommended a supply that the CFO had accepted. He noted that most new entrants had requested a supply in the order of 50,000 to 70,000 kilograms and this level of supply was not considered by AOCP to be a significant volume in the total market and a satisfactory supply arrangement had always been arrived at up to now. Mr. Shapiro told the Tribunal that, in the fall of 1997, two applications came to the CFO, one from Farm Fresh and another from a second producer entity or company. Both of these applicants were requesting supply assignments that are considered to be large. Farm Fresh had requested a supply of 2 million kilograms and the other company a supply of 1.6 million kilograms. Both applicants indicated they were new entrants and wanted the requested allocation assigned over a relatively short period of time.

Mr. Shapiro pointed out that the quota policy does not have any criteria to define a new entrant. Because of its concern over the magnitude of these applications and the perceived shortcomings of Quota Policy No. 129-1996, the AOCP approached the CFO and the Commission to discuss the issues with the result that committees have been struck to review the entire process of allocation of supply to processors.

Mr. Shapiro told the Tribunal that since the passing of Quota Policy No. 129-1996 the industry has changed significantly and there is a processing capacity utilization in the industry of about 60%. He said new Federal policies are allowing line speeds to increase from 96 birds to 140 birds per minute and plants have to put in the new equipment to be competitive. He said the requests for large volumes of product for the two “new entrants” will further dilute the present processor production capacity. He said the processors of the industry are working with a managed supply but an unrestricted ability to process and the industry can not continue to survive in this fashion. He said the AOCP asked the CFO to refuse all new applications while AOCP worked with the CFO to resolve the matter. At a meeting with the Commission on December 11^th, 1997 the AOCP proposed a plant supply quota system for chicken similar to the system in place in the dairy industry.

Mr. Shapiro told the Tribunal that the CFO had provided four reasons for increasing the Quota Period A-19 allocation to Farm Fresh and setting the Quota Period A-20 allocation early. The first reason provided by the CFO is that Farm Fresh is supplying a niche market with air chilled roasters and Cornish hens. Mr. Shapiro pointed out that there is a difference in opinion as to what constitutes a niche market. He said about 30% of all chicken is currently processed as air chilled. He identified several processors that provide air chilled roaster products. He argued that air chilling is a process not a niche market. He reviewed the CFO’s statistics indicating that the market for Ontario grown and processed Cornish hens totals about 20,000 kilograms per period. He argued that, while Cornish hens are considered to be a niche market, 20,000 kilograms is well within the allotment to Farm Fresh and therefore is not a valid reason for increasing the supply of live chicken to this processor. He said Ungerman had successfully used the Cornish hen niche market argument to increase its supply of live chicken to supply that market and as such was already in an accelerated supply process when Farm Fresh purchased it.

Mr. Shapiro said the second reason the CFO provided for increasing the allotment is that Farm Fresh is recently established and so must grow at a faster rate than established processors. He said that the established processors dispute the claim that Farm Fresh is a new processor. He argued that Farm Fresh did not start out at an allocation of zero kilograms but bought an established plant with an allocation of 250,000 kilograms and an established growth pattern for that allocation. He said this is not a reason for an additional allotment to Farm Fresh over and above that growth pattern.

The third reason the CFO increased the allotment is that Farm Fresh has been working on establishing its plant and operations for 18 months and has complied with all CFO requirements. Mr. Shapiro said the CFO requirements are: (1) proof of ownership,(2) a licensed plant and (3) a letter of credit. He said that before anyone can process one kilogram of chicken those three things must be provided. He argued that these requirements bear no relevance to additional allotment in Quota Periods A-19 or A-20.

Mr. Shapiro said the fourth reason provided by the CFO for the increase in allotment is that the market is expanding and the other processors should not be affected by the allotment to Farm Fresh. He said the CFO just added the 68,000 kilograms of chicken to the total supply recommended by the AOCP and allotted this amount to Farm Fresh. Mr. Shapiro told the Tribunal the AOCP is not concerned about the absolute size of the increase in allotment but is concerned about the process used to arrive at the allotment. He argued that a kilogram of chicken allotted to any one processor in Ontario has an effect on the other processors. They are all competing in the same marketplace with a restricted supply of product.

Mr. Shapiro also indicated that the volume requested by Farm Fresh appeared to bear more relationship to the volume that its producer members were growing than to the size of the market that the plant could service. He said, in his opinion, the current plant cannot process the 2.0 million kilograms per quota period that it was requesting.

Mr. Shapiro argued that the allocation for 550,000 kilograms of live chicken to Farm Fresh for Quota Period A-20 was premature and in violation of the CFO’s own quota policy. He said that the AOCP had not yet made a recommendation on the total supply for Quota Period A-20 or on the live supply to any plants. He requested the Tribunal to reverse this decision of the CFO.

Mr. John Georgakakos, from Riverview Poultry, told the Tribunal that Riverview is currently the second largest processor of roaster chickens in the province. He said he had approached the CFO, prior to the implementation of the current supply setting agreement, asking for more supply. The CFO had noted the turmoil in the industry and suggested he talk with the AOCP to deal with Riverview’s supply concerns as well as the overall issue that the processors were facing in reaching agreement on the recommended supply of chicken. Mr. Georgakakos said that the supply setting agreement was the result of the discussions. He said that none of the processors were completely happy with the agreement, but all took the approach that the processors had to be responsible. He argued that a chicken is a chicken whether water chilled or air chilled and displacement will take place as a result of this allocation to Farm Fresh. He did not see why the established processors should reduce their supply to allow this processor to grow at a rate beyond that agreed to in the Quota Policy while they waited at current production levels.

Mr. Guy Gillyatt, speaking on behalf of Grand River Poultry, told the Tribunal that his market was primarily roaster chickens and that he was aggrieved by the assignment of supply to Farm Fresh. He said that Grand River was a company similar to Riverview and it had to hold back its growth since the assignment of supply system was initiated. He said he had applied to the CFO, to the AOCP and to the special committee for additional supply and had been told to wait and work within the framework of the assignment of supply agreement. Finally he decided he had to purchase a plant so he could expand and he did so at a considerable cost. Even with this purchase, he is still 20 to 30% short on production. He said he has customers and needs more kilograms of chicken to meet his demands but he supports the supply setting agreement because it brings order to the industry. He questioned whether Farm Fresh really has the equipment, buildings and customer base to take on the large increase it is requesting while the rest of the processors remain at static levels of supply. He argued that it is not fair that some businesses have to wait while others grow at their expense.

Several other processors told the Tribunal that:

• they also operate in the Cornish hen and roaster markets,
• their plants are operating at 50% of capacity or less,
• they have customers that indicate they would purchase more product from them,
• they support the supply setting agreement as it brings stability to the industry,
• they are aggrieved by the assignment of an increased supply to Farm Fresh and the assignment of a supply in Quota Period A-20 when no other processor has yet been assigned a supply for Quota Period A-20.

Mr. Kevin Thompson, Marketing coordinator for the CFO, told the Tribunal that the CFO had tried several systems to arrive at the total supply for the province and had implemented the current system on the recommendation of the AOCP. He said the CFO recognized that the system provided a framework for assignment of supply and the AOCP developed discipline within its ranks and this has brought stability to the industry since Quota Policy No. 129-1996 was implemented. He said the system set out a framework for the growth of small processors, a formula for allocating supply to larger processors, special case consideration of niche marketers defined by company name, special consideration for Cuddy, the banking of growth and provision for new entrants to obtain a supply of live chicken. He said the system brought structure to the industry without totally constraining it. The system allowed new entrants but deliberately did not set out criteria so applicants could be evaluated on case by case basis. The system has worked as a number of new entrants came into production since the system was put in place.

Mr. Thompson told the Tribunal that Farm Fresh had approached the CFO in the fall of 1996 requesting a supply of chicken for the proposed processing facility. Farm Fresh applied in writing for a supply of 1.8 million kilograms of chicken for Quota Period A-13. Mr. Thompson said the CFO had denied this request because of the timing of the request (the allocation for A-13 had been sent out already) and raised three issues with Farm Fresh which they would need to address before they were allocated chicken:

• a premise to use to process chicken,
• a license to process chicken,
• a letter of credit.

At this time the CFO also requested Farm Fresh approach the AOCP to obtain a recommendation for assignment of supply.

Mr. Thompson said that on September 18^th, 1997 Farm Fresh advised CFO that it had entered into an agreement to buy the Ungerman plant effective October 6^th, 1997. Farm Fresh requested an assignment of supply of 350,000 kilograms for Quota Period A-17, 450,000 kilograms for Quota Period A-18, 550,000 kilograms for Quota Period A-19 and 650,000 kilograms for Quota Period A-20. The CFO responded to Farm Fresh that it should approach the AOCP to discuss the issue of assignment of supply. At the time of this request to the CFO the supply for Quota Periods A-15 and A-16 had already been made to the Ungerman plant and so Farm Fresh was assigned this supply.

Mr. Thompson said that the AOCP recommended a supply of 314,000 kilograms to Farm Fresh for Quota Period A-18 which is the same number as the previous recommendation for the Ungerman plant. He filed with the Tribunal a copy of the decision of the special request panel which indicated that the panel did not consider Farm Fresh as a processor of specialty products and that the panel did not have a mandate to deal with a new entrant.

Mr. Thompson said that on December 4^th, 1997, Farm Fresh requested a meeting with the CFO. This meeting was held on December 10^th, 1997. By letter of December 11^th, 1997, the CFO advised Farm Fresh that it was deferring a decision on the request for supply as a meeting had been set up between the CFO, the AOCP and the Commission to discuss several issues, one of which is the process for assignment of supply to processors.

Mr. Thompson told the Tribunal that the CFO had been aware that the AOCP favored the creation of a system of plant supply quota similar to the system in place for milk processors. He said the CFO was advised on December 10^th that the AOCP had approached the

Commission to request a review of the supply setting arrangement promoting its concept of plant supply quota. He said that on January 11^th, 1998, Farm Fresh asked the CFO for a decision on its supply for Quota Periods A-19 and A-20. Farm Fresh asked for 550,000 kilograms of supply for A-19 and 650,000 kilograms for A-20, followed by a uniform growth ending at 2.0 million kilograms by Quota Period A-27. Farm Fresh said that these levels of supply are essential for it to meet the market demand, asserting that the market is inadequately served by Farm Fresh’s competitors. As a result of this request the CFO decided to increase the supply assignment to Farm Fresh to 450,000 kilograms in Quota Period A-19 and 550,000 kilograms in Quota Period A-20. This supply is 100,000 kilograms less than requested by Farm Fresh but 68,000 kilograms more than AOCP recommendation.

Mr. Thompson told the Tribunal that the AOCP had a history of recommendations that Farm Fresh be assigned the same supply figures that had been generated in Quota Policy No. 129-1996 for Ungerman and so the CFO had proceeded to assign a supply for Quota Period A-20 fully expecting the AOCP to recommend Farm Fresh be assigned the Ungerman number for Quota Period A-20.

Mr. Thompson said that the CFO had set the supply for Quota Periods A-19 and A-20 at a reasonable level for Farm Fresh based on the supply that had been requested for Quota Period

A-19 and the formula suggested by Farm Fresh for growth in its supply through the following quota periods. He said the fact that Farm Fresh is a producer owned cooperative was not a factor in making the decision on supply.

Mr. Thompson agreed that the AOCP has the expertise to advise the CFO on supply matters. He said the CFO considers this advice and also considers the views and recommendations of all downstream users of chicken when making its decisions. The recommendation from the AOCP is just one factor in making the decision on total supply. He emphasized that the CFO regulates the production and marketing of chicken.

Mr. Tom Posthuma, chicken producer and a member of the Board of Directors for CFO, told the Tribunal that the CFO had asked the Commission to deal with the issue of new entrants at the January 1998 meeting where it was decided to establish committees to address the issue of supply setting policy. He said the Commission had directed the CFO not to accept any new applications and to deal with the existing applications at the CFO’s discretion. He said the CFO felt obliged to make a decision on the application and so had exercised its judgment and made an allotment for Quota Periods A-19 and A-20. He said the CFO felt it was highly unlikely that the committees established by the Commission would have completed their work before Quota Period A-20 so both allotments were decided at the same time. The CFO had dealt with Farm Fresh as a new entrant and therefore gave it the appropriate considerations. He said the CFO considered the request from Farm Fresh for a growth of “100,000 kilograms, plus 5% of the overall growth in the market per quota period” was large enough to have an impact on pricing, and so decided to provide a smaller but growing supply to Farm Fresh. He said, in making its decision, CFO did not consider that Farm Fresh is a producer cooperative and in fact, the CFO has told Farm Fresh not to expect to process the production of its members.

Mr. Posthuma told the Tribunal that in making its decision the CFO considered that Farm Fresh was a new entrant processing for a niche market. The CFO defined a niche market as a smaller specialized market served by few suppliers. He said another factor was that Farm Fresh had been “in the system” for some time and had consistently indicated a need for 2.0 million kilograms of supply. He said the CFO was aware that any large increase in supply will have an impact on the marketplace. He said Farm Fresh had presented a proposal to increase supply slowly and only if there is growth in the total market place. In Quota Period A-19, the total market growth is 2.6 % and for Quota Period A-20 the growth is projected to be 5% or 2.5 million kilograms. He said it appeared to CFO that there is significant room to satisfy the Farm Fresh request with respect to Quota Period A-20 without disruption of the market. Mr. Posthuma indicated that the CFO views this appeal as an attempt by the AOCP to impose a plant supply quota before such a policy has been implemented.

Mr. Jim Judge addressed the Tribunal on behalf of Farm Fresh. He outlined the processes followed by the members of the cooperative in deciding to purchase the Ungerman plant and the work they had done with the CFO and the AOCP attempting to secure a supply of chicken to process at the plant. He said Farm Fresh had been formed to service a niche market in air chilled Cornish hens and roasters. He said that, from his perspective, a niche market is the market that a processor can develop and service.

Mr. George Alkalay testified for Farm Fresh. Mr. Alkalay is a business consultant assisting Farm Fresh to establish its business plan. He told the Tribunal that Farm Fresh is focusing on specialty markets of air chilled roasters and Cornish hens and currently is the only processor in Ontario for fresh air chilled Cornish hens. He said the opportunity to expand in this market is estimated to be very good. Mr. Alkalay said that Farm Fresh needs 2.0 million kilograms of supply to be viable in this ever competitive processing market and cannot make the investment needed to expand the plant to this capacity without assurance of supply. For this reason, Farm Fresh had asked the CFO to provide commitments to a long term supply increasing each quota period until it reaches 2.0 million kilograms of chicken. He said Farm Fresh had requested growth of 100,000 kilograms per quota period plus an additional 5% of the total growth in the market for each quota period.

Mr. Alkalay argued that chicken supply is not regulated in the same fashion as dairy. Plant supply quota does not exist in the chicken industry and the CFO and AOCP should not act as if plant supply quota is already in place. He argued that Farm Fresh, as a producer cooperative,

should be regarded as supporting farmers in providing value added services beyond the farm gate. He argued that there is a compelling public policy interest supporting agricultural diversification and the CFO policy has to be considered in the context of allowing a producer to have value added to their production.

The Tribunal examined the evidence and took note of the following:

• The CFO has accepted and followed the AOCP recommendations on processor supply levels.
• The allocation of supply to Farm Fresh for Quota Period A-20 is out of the ordinary practice and does not appear to be justified in the circumstances of the review currently underway and the directions from the Commission to act in a fair manner.
• The Tribunal accepts the argument that air chilled roasters and Cornish hens are not unique to Farm Fresh but are products processed at several plants in Ontario.
• There is no definition of a niche market and each of the parties presented a different interpretation to the Tribunal. This should be addressed by the committee established by the Commission.
• There is no definition of a new entrant. It appears to the Tribunal that Farm Fresh purchased a plant and accepted the existing accelerated supply assignment for two quota periods but then claimed to be a new entrant as well. In the opinion of the Tribunal, Farm Fresh cannot be both an existing plant and a new entrant but appears to be attempting to take the best results from both situations.
• The Commission told the AOCP and the CFO not to do anything out of the ordinary practices but it appears that the CFO took unusual steps of ignoring the recommendation of the AOCP for Quota Period A-19 and establishing the supply to just one processor in Quota Period A-20.

The Tribunal finds there is no defined criteria for new processor entrants and this has created the difficulties causing this appeal to come to the Tribunal. In the opinion of the Tribunal, the industry may have been remiss in not having foreseen this situation and providing a mechanism to guide new entrants in making decisions. Having said that, an allocation growing rapidly to 2 million kilograms in the short time frame of seven quota periods, in the opinion of the Tribunal, is too large an increase for the industry to absorb without disruption. In the opinion of the Tribunal, the new entrant policy should consider issues such as:

1. a definition of what constitutes a new entrant,

2. the maximum allocation to a new entrant in any quota period,

3. minimum requirements, in place at the time of request, to be eligible for a supply allocation,

4. a quota period for the allocation to start,

5. a consistent growth pattern for graduated entry into the industry.

Decision and Reasons

After careful consideration of the evidence presented and the submissions made, the Tribunal decided to grant the appeal of the AOCP and to issue the following orders:

1. The CFO is directed to set the assignment of supply of live chicken to Farm Fresh for Quota Period A-19 at 382,000 kilograms of chicken.

2. The decision of the CFO to assign a supply of live chicken to Farm Fresh for Quota Period A-20 is revoked.

The reasons for this decision are:

1. The evidence indicates that several processors provide Cornish hens and air chilled roasters. The Tribunal accepts the argument of the AOCP that, for purposes of assignment of supply of live chicken, this is a general market not a niche market.

2. The Tribunal accepts the argument that the CFO did not follow the normal practice of Quota Policy No. 129-1996 when it set a supply for Farm Fresh for Quota Period A-20 without setting a supply for all other processors at the same time.

3. With a review of the supply setting arrangements underway and constrained by a time limit, the Tribunal is of the opinion that the industry ought to follow, as reasonably as possible, past practices in order to allow the review to take place without additional complicating factors being introduced during the review.

Dated at Guelph, Ontario, this 5^th, day of February, 1998.