Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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 Ontario Farm Products Marketing Commission

Chicken Farmers of Ontario v OFPMC [Decision on Preliminary Matter] 2001 ONAFRAAT 14

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

DATE OF DECISION:

February 27, 2001

2001-14

NEUTRAL CITATION:

2001 ONAFRAAT 14

Chicken Farmers of Ontario v Ontario Farm Products Marketing Commission [Decision on Preliminary Matter]

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 Chicken Farmers of Ontario from a decision of the Ontario Farm Products Marketing Commission dated December 1, 1999 relating to the system for the allocation of live chicken to Ontario processors.

Ruling

Just before parties were to commence making opening submissions, Mr. McIlroy, counsel for the CFRA advised the Tribunal that his client had an apprehension of bias concerning panel member, Mr. Andy Koopal. Mr. McIlroy assured the Tribunal that he did not question the integrity of Mr. Koopal. However, he reminded the Tribunal of the allegation of bias that had been made against Mr. Bill Dover, a member of the Ontario Farm Products Marketing Commission (OFPMC). Mr. Dover had a business association with the CFRA who was a party before the OFPMC. This hearing de novo will cure that problem.

Mr. McIlroy pointed to the list of witnesses delivered by counsel for the Chicken Farmers of Ontario (CFO). One of the CFO’s proposed witnesses is Mr. John Core, former chair of the Dairy Farmers of Ontario (DFO). Tribunal member, Mr. Koopal, is a dairy farmer and as such is a producer licensed by the DFO.

None of the other parties objected to Mr. Koopal’s participation on this panel.

In the Tribunal’s view the situation of Mr. Koopal is different from that of Mr. Dover. The DFO is not a party to this proceeding. Mr. Koopal is licensed by the DFO because law requires that every dairy farmer be a licensed producer. Mr. Koopal is not and has never been on the board of the DFO. The Tribunal is satisfied the Mr. Koopal will approach the issues in this hearing with an open mind.

The nature of the hearing and the decision to be made by the Tribunal must be kept in mind. The purpose of this hearing is to determine a process for allocating live chicken to Ontario processors. The issues to be addressed in this appeal, which is to be by way of hearing de novo, have been listed by Vice Chair Andrew C. Wright in his Procedural Order dated January 29, 2001:

• Total Ontario Domestic Supply Determination, including issues relating to volume setting
• Individual Processor Allocation, including what constitutes a processor and who can purchase live chicken
• Treatment of New Entrants
• Category Requirements
• Price Determination
• Export Policy

Vice Chair Wright pointed out that the nature and scope of the hearing is policy based and generic in nature.

The test to be applied in these circumstances has been stated by the Court of Appeal in TransCanada Pipelines Ltd. v. Beardmore (Township) (2000), 2000 CanLII 5713 (ON CA), 186 D.L.R. (4th) 403 at 463:

“Since the commissioner was not engaged in an adjudicative process, the test, therefore, is not whether bias can be reasonably apprehended, but whether, as a matter fact, the requirement of open-mindedness had been lost to the extent that it can reasonably be said that he had predetermined the nature of the restructuring proposal he was by statute mandated to develop.”

The Tribunal has not been persuaded that the requirement of open-mindedness has been lost to the extent that it can reasonably be said the Mr. Koopal has predetermined the nature of the process for allocating live chicken that the Tribunal is by statute mandated to develop.

The Supreme Court of Canada, in Newfoundland Telephone Co. Ltd. v. Newfoundland (Board of Commissioners of Public Utilities) (1992), 1992 CanLII 84 (SCC), 89 D.L.R. (4th) 289, recognized that members of a tribunal are more often drawn from among persons experienced in the subject that is regulated by the tribunal. This alone does not disqualify a member of a tribunal. The fact that Mr. Koopal is licensed by the DFO, which is an organization similar to the CFO, does not disqualify him, particularly as he is not a member of the board of the DFO. As the Supreme Court said,

“No doubt many boards will operate more effectively with representation from all segments of society who are interested in the operations of the board. Nor should there be undue concern that a board which draws its membership from a wide spectrum will act unfairly. It might be expected that a board member who holds directorships in leading corporations will espouse their viewpoint. Yet I am certain that although the corporate perspective will be put forward, such a member will strive to act fairly. Similarly, a consumer advocate who has spoken out on numerous occasions about practices which he, or she, considers unfair to the consumer will be expected to put forward the consumer point of view. Yet that same person will also strive for fairness and a just result. Boards need not be limited solely to experts or to bureaucrats.”

All members of this panel, including Mr. Koopal, will strive for fairness and a just result. The Tribunal is not persuaded that a reasonable person, knowing the facts, would hold a reasonable apprehension that Mr. Koopal is biased.