Chicken Farmers of Ontario v Ontario Farm Products Marketing Commission, 2001 ONAFRAAT 4

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: Chicken Farmers of Ontario v Ontario Farm Products Marketing Commission

Chicken Farmers of Ontario v OFPMC [January 29 Procedural Order] 2001 ONAFRAAT 4

STATUTE: Ministry of Agriculture, Food and Rural Affairs Act

HEARING: November 21, 2000

DATE OF DECISION: January 29, 2001

2001-04

NEUTRAL CITATION: 2001 ONAFRAAT 4

Chicken Farmers of Ontario v Ontario Farm Products Marketing Commission [January 29 Procedural Order]

IN THE MATTER OF the Farm Products Marketing Act and of Section 16 of the Ministry of Agriculture And Food And Rural Affairs Act;

AND IN THE MATTER OF an Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) by the Chicken Farmers of Ontario (“CFO”) from the December 1st, 1999 decision of the Farm Products Marketing Commission (the “Commission”) following a hearing under Section 3(1)(a) of the Farm Products Marketing Act for the purpose of allocating live chicken to Ontario Processors:

Before: Andrew C. Wright, Vice-Chair

Appearances: Howard Goldblatt, Counsel for Chicken Farmers of Ontario Geoffrey Spurr, Counsel for Chicken Farmers of Ontario Robert Shapiro, for The Association of Ontario Chicken Processors Arlen Sternberg, Counsel for the Ontario Independent Poultry Processors James P. McIlroy, Counsel for the Canadian Restaurant and Foodservices Association Robert G. de Valk, for the Further Poultry Processors Association of Canada Neil Palmer, for Grand River Poultry K. Robin Horel, for Maple Leaf Poultry Paul Bulman, for Port Colborne Poultry Henry Bos

PROCEDURAL ORDER

The CFO appeal comes to the Tribunal from a decision of the Commission pursuant to subsection 16(1) of the Ministry of Agriculture, Food and Rural Affairs Act. Subsection 16(1) provides as follows:

16. (1) Subject to subsection (4), if a person is aggrieved by an order, direction, policy or decision of the Commission or Director, made under the Farm Products Marketing Act or the Milk Act, that person may appeal to the Tribunal by filing with the Tribunal and sending to the Commission or Director written notice of the appeal.

The decision of the Commission was issued on December 1st, 1999 and was made after a several day hearing under clause 3(1)(a) of the Farm Products Marketing Act. The purpose of the hearing was to determine a process for allocating live chicken to Ontario processors. Clause 3(1)(a) of the Farm Products Marketing Act provides as follows:

3. (1) The Commission may,

(a) subject to the regulations, investigate, adjust or otherwise settle any dispute relating to the marketing of a regulated product between producers and persons engaged in marketing or processing the regulated product;

In the course of a pre-hearing conference held on June 9th, 2000, CFO raised three grounds upon which the December 1st, 1999 decision of the Commission should be set aside and sent back to the Commission for a re-hearing. The Tribunal decided to have these questions argued as a preliminary motion. The CFO motion was argued on September 8th and September 15th, 2000. That motion was dismissed. The following is a synopsis and consolidation of the Procedural Orders made in the course of a pre-hearing conference on November 21st, 2000:

ORDER

1. The Appeal will proceed as a hearing de novo. Any evidence that was before the Commission shall not be regarded as evidence before the Tribunal unless and until it is admitted in evidence by the Tribunal for the purposes of its hearing de novo. In its hearing de novo the Tribunal will have no regard for the substance of the Decision of the Commission. The Decision of the Commission, as the decision from which this appeal has been launched, is merely the event from which flows the Tribunal’s jurisdiction to hold a de novo hearing.

2. The appeal of the Canadian Restaurant and Foodservices Association under subsection 16(2) of the Ministry of Agriculture, Food and Rural Affairs Act will be consolidated to be heard with the CFO appeal under subsection 16(1) of the same Act. This Order is made without prejudice to CFO addressing the Tribunal panel hearing the appeals upon the issue of whether the Canadian Restaurant and Foodservices Association has status as an aggrieved person to launch a subsection 16(2) appeal and upon the issue of the scope of the matters that may be addressed in the context of this subsection 16(2) appeal.

3. The appeal of the Ontario Independent Poultry Processors under subsection 16(1) of the Ministry of Agriculture, Food and Rural Affairs Act from the December 1st, 1999 Decision of the Commission will also be consolidated to be heard with the CFO appeal of the same Decision under subsection 16(1) of the same Act.

4. The appeals of Grand River Poultry and Port Colborne Poultry under subsection 16(2) of the Ministry of Agriculture, Food and Rural Affairs Act will not be consolidated with the other appeals. The subsection 16(2) appeals by Grand River Poultry and Port Colborne Poultry will be consolidated and scheduled to be heard subsequent to the release of the decision of the Tribunal with respect to the originating CFO appeal and from the other appeals now consolidated to be heard therewith.

5. The issues to be addressed in this appeal are broadly summarized as follows:

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

Category Requirements

Price Determination

Export Policy

This list resembles a similar list that appears in the decision of the Commission that is now under appeal. Nothing should be read into that similarity which derogates from the requirement of item 1 that the hearing is a de novo hearing of similar issues.

This list of issues should not be interpreted restrictively. The nature and scope of the hearing is policy based and generic in nature though, of necessity, it will ultimately result in and include detail relating to implementation. This list of issues is intended to assist in the organization and focus of the hearing and is subject to the control of the panel hearing the appeals.

This issues list should not be construed as restricting the authority of the hearing panel to limit the scope of the Canadian Restaurant and Foodservices Association appeal under subsection 16(2) the Ministry of Agriculture, Food and Rural Affairs Act should they be persuaded so to do on application by CFO as contemplated by item 2 above.

6. The parties to the appeals, in order of presentation, are:

(i) Chicken Farmers of Ontario

(ii) The Association of Ontario Chicken Processors

(iii) The Ontario Independent Poultry Processors

(iv) The Canadian Restaurant and Foodservices Association;

(v) Further Poultry Processors Association of Canada

(vi) Henry Bos

7. With respect to the party status of Grand River Poultry, Maple Leaf Poultry and Port Colborne Poultry, they are entitled to party status if they elect to do so by giving notice to the other parties and to the Tribunal on or before the close of business on Friday, December 1st, 2000. If they do not given notice, they will not be parties to the hearing.

8. All parties shall provide to the other parties of copies of their respective documents, including witness statements, by Friday, January 19th, 2001.

9. All parties shall provide to the other parties copies of their response and supplementary documentation, including new or amended witness statements by February 9th, 2001.

10. All parties are expected to make disclosure to the other parties in order that there will have been a fair exchange of information and positions before the hearing so that all have a fair opportunity to understand the issues to be addressed. The admissibility in evidence at the hearing of documentation and evidence not previously disclosed will be in the discretion of the panel hearing the appeals.

11. The Hearing will commence on and will continue on the following dates:

Monday, February 26th, 2001 through Friday, March 2nd, 2001;

Monday, March 5th, 2001 through Friday, March 9th, 2001.

The Tribunal will adjourn from Monday, March 12th, 2001 until Friday, March 30th, 2001 and resume sitting:

Monday, April 2nd, 2001 through Friday, April 6th, 2001;

Tuesday, April 17th, 2001 through Friday, April 20th, 2001.

12. Despite the suggestions of some that the hearing be held outside of Guelph, post November 21st, it has been determined that the hearing will convene in the Conference Centre, 1 Stone Road West, in Guelph. Thereafter the location of the hearing will be in the discretion of the panel hearing the appeals.

Dated at London this 29th day of January, 2001.