Agriculture, Food and Rural Affairs Appeal Tribunal
1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Van Moorsel Farms Ltd. v Chicken Farmers of Ontario
Van Moorsel Farms Ltd. v CFO [Decision of Pre-Hearing Conference] 2000 ONAFRAAT 33
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
December 7, 2000
December 18, 2000
2000-33
NEUTRAL CITATION:
2000 ONAFRAAT 33
Van Moorsel Farms Ltd. v Chicken Farmers of Ontario [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 Van Moorsel Farms Ltd., Perth County, from the June 28, 2000 decision of the Chicken Farmers of Ontario (CFO) wherein the CFO decided 1) not to fix and allot 6,500 units of basic quota to Van Moorsel Farms Ltd. and 2) not to revoke a transfer of 10,008 units of basic quota from Van Moorsel Farms Ltd. to Margaret Munro, Township of Durham.
AND IN THE MATTER OF:
A pre-hearing to identify parties and consider issues related to pre-hearing disclosure and discovery.
Before:
Andrew Osyany, Vice-Chair.
Appearances:
Colin Still, counsel for Margaret Munro
Izaak de Rijcke, counsel for Van Moorsel Farms Ltd.
Geoffrey Spurr, counsel for Chicken Farmers of Ontario
Background
This pre-hearing was heard in Guelph, Ontario on Thursday, December 7 for the purpose of hearing 1) an application that Margaret Munro be granted party status in this matter; 2) an application for an Order from the Tribunal for the examination for discovery of Margaret Munro.
Mr. Still, counsel for Margaret Munro, submitted that there was an agreement made early in 2000 between Van Moorsel Farms Ltd. and his client for the transfer of chicken quota to his client. He said the Chicken Farmers of Ontario (CFO) had approved the transfer. Subsequently, additional quota was assigned to Ms. Munro, rather than Van Moorsel Farms Ltd. In his view the gist of the appeal was the question of who receives this additional quota. He noted that the CFO had upheld its decision to allocate quota to Ms. Munro and had decided that no additional quota would be allocated to Van Moorsel Farms Ltd..
Mr. Still submitted that since his client could be affected by the decision of the Tribunal, she has an obvious interest in the matter and should be granted party status. He noted that the affidavit submitted by Mr. De Rijcke acknowledged that the Tribunal decision “may ultimately have impact on Margaret Munro”.
Mr. de Rijcke noted that the Ministry of Agriculture and Food Act does not define what is a party. He suggested that the definition in Section 5 of the Statutory Powers Procedure Act (SPPA) was applicable:
The parties to a proceeding shall be the persons specified as parties by or under the statute under which the proceeding arises or, if not so specified, persons entitled by law to be parties to the proceeding.” Statutory Powers Procedure Act, R.S.O. 1980, c. 484, s. 34.
He questioned whether Ms. Munro had an entitlement in law to be a party to the hearing and suggested that Mr. Still was trying to shield his client from cross-examination. He stated that this issue was inextricably tied to the question of what interest Ms. Munro has in the proceedings. He noted that at a hearing before the CFO, his client did not ask that the quota transfer be revoked, or that the decision to grant additional quota to Ms. Munro necessarily be revoked. He noted that this quota transaction came at time the CFO was changing its rules and suggested that for this reason there should be a matching amount of quota assigned to his client, Van Moorsel Farms Ltd..
Mr. de Rijcke asked that if Ms. Munro was granted party status, that his cross-motion be granted and he be given the right to examine her for discovery. He also asked that she be ordered to disclose documents. He stated that Ms. Munro had not been present at the CFO hearing but that Mr. Still had participated on her behalf, as there were no rules for CFO hearings. Mr. de Rijcke made reference to the Tribunal Rule of Procedure 30.01:
“Where persons who are not parties to a proceeding wish to make submissions, the Tribunal will, by way of preliminary matters, determine the issues that these persons wish to address and establish the time in the proceedings that the Tribunal will hear these persons, but no such person will be heard unless willing to undergo cross examination by the parties to the hearing.”
He suggested that if she is given party status then Ms. Munro should be compelled to attend and subject herself to cross-examination. He noted that his only other recourse to deal with Ms. Munro’s evidence was to have her summoned as a witness. He said this raised another host of problems, as for Van Moorsel Farms Ltd. to call her as its own witness she would be an “adverse witness”. He pointed out that counsel could not cross-examine or discredit their own witnesses as a general rule. He said that while it was unfair for his client to have to call Ms. Munro, yet her testimony was crucial as she had information on the quota transaction that gave rise to this dispute. He therefore asked for an order that she attend an examination for discovery, and that that she provide documents that may be required.
Mr. Spurr submitted that there were rules surrounding CFO hearings. He said the CFO follows the SPPA and a document outlining its procedure was sent out with its notices of hearings. With regard to the application for party status, he stated that: the CFO decision not to revoke a transfer of quota to Margaret Munro was an issue; that the affidavit submitted by Mr. de Rijcke indicated she may be affected by the outcome; and that she had been involved in hearings held on this matter to date. Mr. Spurr noted that Section 16(4) of the Ministry of Agriculture and Food Act allowed the Tribunal to discontinue an appeal if the appellant does not have sufficient interest in the matter, but he acknowledged that Ms. Munro was not the appellant. He also noted that the SPPA gives permissive rights, not obligatory rights. Mr. Spurr suggested that the two matters under consideration should be treated as separate issues. He had no opinion as to whether or not Ms. Munro should be produced for discovery.
With regard to the application for an order that his client undergo an examination for discovery, Mr. Still noted that Mr. de Rijcke had clarified that he was not seeking a nullification of the quota transfer or the allocation of additional quota to Ms. Munro. He suggested that if the only issue was the allocation of additional quota to Van Moorsel Farms Ltd. then that was a policy matter. He pointed out that Mr. de Rijcke’s submissions on this matter state that his challenge relates to whether the CFO has applied its statutorily assigned role and whether its policies are appropriate. He said that Mr. de Rijcke had not indicated in his submission that there had been a misunderstanding or that any further evidence was required. He submitted that his client’s evidence would have no bearing on the issue of CFO policy. Mr. Still noted there was a companion suit in civil court against his client and indicated he would not want a second examination for discovery ordered by the Tribunal, in addition to an examination for discovery under the civil proceedings legislation. He felt this would give Van Moorsel Farms Ltd. an unfair advantage in the Superior Court action. He also noted that the notes of the CFO hearing are not available and that no one has been able to examine representatives of Van Moorsel Farms Ltd. under oath.
Mr. de Rijcke suggested that Ms. Munro could add to or clarify evidence submitted at the CFO hearing. He said that it was at that hearing that, for the first time, essential documentation came to light. He said Ms. Munro could be asked to answer and explain forms that she signed. He suggested that Ms. Munro was not the owner of the land that the quota was to be assigned to and that it was later assigned to a different farm. Mr. de Rijcke submitted that there were questions as to Ms. Munro’s status as a producer and her right to receive quota. He explained that these points could not be clarified at the CFO hearing as she did not attend it. He suggested that it was within the framework of the Tribunal’s rules and in the interest of justice for Ms. Munro to attend an examination of discovery.
Decision and Reasons
The decision of the Agriculture, Food and Rural Affairs Tribunal is that:
Margaret Munro is granted party status in this matter. Margaret Munro will be subject to the normal provision that she provide documentary disclosure to the Tribunal and to other parties, in advance of the hearing. That disclosure is to be provided by January 12, 2001.
The application for an Order for the examination for discovery of Margaret Munro is denied.
The Tribunal notes that all parties acknowledged that Ms. Munro had some interest in this matter.
The Tribunal believes that an Order for examination for discovery should only be issued under extraordinary circumstances. It did not find that there were extraordinary circumstances in this instance.
Dated at Shelburne, this 18^th^ day of December, 2000.