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:
Chicken Farmers of Ontario v Farm Products Marketing Commission
Chicken Farmers of Ontario v FPMC [Decision of Pre-Hearing Conference] 2000 ONAFRAAT 11
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
June 9, 2000
DATE OF DECISION:
June 12, 2000
2000-11
NEUTRAL CITATION:
2000 ONAFRAAT 11
Chicken Farmers of Ontario v Farm Products Marketing Commission [Decision of Pre-Hearing Conference]
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 Agriculture, Food and Rural Affairs Appeal Tribunal by the Chicken Farmers of Ontario (the CFO) from the December 1, 1999 decision of the Farm Products Marketing Commission relating to the system for the allocation of live chicken to Ontario processors.
AND IN THE MATTER OF:
A pre-hearing to determine procedural matters with respect to the appeal of the CFO.
Before:
Andrew C. Wright, Vice-Chair.
Appearances:
Howard Goldblatt, counsel for the appellant, the Chicken Farmers of Ontario.
Geoff Spurr, counsel for the appellant, the Chicken Farmers of Ontario.
Mr. Ron Folkes, counsel to T & R Sargent Farms Limited.
James P. McIlroy, counsel to the Canadian Restaurant and Foodservices Association.
Mr. Arlen Sternberg, counsel to the Ontario Independent Poultry Processors Association
Stephen Stepinac, counsel to the Farm Products Marketing Commission.
Henry Bos, chicken producer.
Robert DeValk, on behalf of the Further Poultry Processors Association of Canada.
Robert Shapiro, on behalf of the Association of Ontario Chicken Processors.
Background
This pre-hearing conference was held in Guelph, Ontario, on June 9th, 2000, to establish the procedures for a hearing by the Agriculture, Food and Rural Affairs Appeal Tribunal of the appeal by CFO. The Tribunal identified those in attendance who wished to participate in the prehearing conference.
Counsel for CFO indicated that there were three jurisdictional issues he wished to raise with the Tribunal as jurisdictional questions, as follows:
The decision under appeal is a nullity because the Farm Products Marketing Commission (the Commission) made a decision about supply management in the chicken industry in Ontario in circumstances that proper notice of and a fair opportunity to be heard about that issue was not given to CFO and the other participants in the Commission hearing.
The Commission made a decision which exceeded its jurisdiction having regard for the legislative context within which the Commission’s hearing was held and decision made.
The Commission’s decision was a nullity by reason of the participation of members of the Commission who were biased.
Counsel for the CFO asked the Tribunal to divide the hearing so that the preliminary jurisdictional matters could be addressed and disposed of before a hearing of the substantive issues took place. Counsel for CFO indicated that, if the hurdles of the preliminary jurisdictional matters were overcome and a hearing of the substantive issues was to proceed, then CFO would refine the issues the CFO intended to address as part of that hearing.
Those in attendance who wished to be heard were given an opportunity to comment upon the proposal to divide the hearing. Some, particularly counsel for the Ontario Independent Poultry Processors (OIPP), expressed concern that the division of the hearing would delay the process and would give CFO two separate opportunities to argue the same point. The concern was that the evidence in support of the jurisdictional arguments was going to be the same evidence that would be led in support of the substantive arguments. A division of the hearing would duplicate the time and effort, and if the hearing panel were different, could risk different results.
Others supported CFO’s desire to divide the hearing because it would bring to a head the jurisdictional questions quickly without the cost and delay associated with a protracted, complicated hearing of evidence from the numerous stakeholders who could be involved.
The Tribunal is concerned about an efficient hearing process. If the jurisdictional issues can be dealt with quickly and efficiently as questions of law rather than as a matter of controversial evidence, then the most efficient way to proceed is to have the jurisdictional matters heard and disposed of in the first instance. That is the decision of the Tribunal. In making this decision, the Tribunal reserves the discretion to refer to a hearing of substantive issues any of the preliminary motions in connection with which material evidence becomes controversial. The point is if it becomes necessary to have cross-examination on affidavits before being able to argue the preliminary motions, the object of the exercise will have been defeated. In that eventuality, hearing efficiency will be better served by having all of the viva voce evidence joined in one comprehensive hearing.
As counsel are preparing materials for these preliminary jurisdictional motions, they should bear in mind the Tribunal’s concerns and should seek, to the extent possible, to develop an agreed statement of facts upon which the preliminary motions could be argued.
For the purposes of this preliminary hearing all those who have appeared at the pre-hearing are to be regarded as parties. They may elect not to be parties by notifying the Tribunal and others identified in this Order. If there is to be a hearing of the substantive issues, there will be a second pre-hearing conference following disposition of the preliminary jurisdictional motions. At that time issues will be identified, including any issues that may arise out of any other appeals from the December decision of the Commission. The parties to the preliminary jurisdictional motions will not necessarily be parties to any hearing of substantive issues. The question of party status for any such hearing will be decided as part of any second prehearing conference.
Order of the Agriculture, Food and Rural Affairs Appeal Tribunal
CFO will serve on the parties and file with the Tribunal the notices of its motions and supporting materials by 4 o’clock p.m. on July 14, 2000.
The other parties are to serve on all other parties and file with the Tribunal any responding material by 4 o’clock p.m. on August 11th, 2000 with the exception of the Canadian Restaurant and Food Services Association which will have until 4 o’clock p.m. August 18th, 2000 to file their material.
The hearing of argument for the preliminary jurisdictional motions will begin at 9:30 a.m. on September 8th, 2000 at the Tribunal Boardroom, 1 Stone Road West Guelph and, if necessary, will continue for a second day on September 15th, 2000 commencing at 9:30 a.m.
In the event that it is determined there is to be a hearing of the substantive issues there will be a second prehearing conference to determine parties and issues at a time and date to be determined following disposition of the preliminary jurisdictional motions.
This panel of the Tribunal may be spoken to if there are procedural difficulties in connection with this decision by making arrangements for that purpose through the office of the Tribunal’s General Manager.
Dated at Guelph this 12th day of June, 2000.