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 Ontario Farm Products Marketing Commission
Chicken Farmers of Ontario v OFPMC [Interlocutory Decision] 2001 ONAFRAAT 47
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
October 12, 2001
2001-47
NEUTRAL CITATION:
2001 ONAFRAAT 47
Chicken Farmers of Ontario v Ontario Farm Products Marketing Commission [Interlocutory Decision]
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
Mr. Shapiro, counsel for the Association of Ontario Chicken Processors, argued that the Tribunal has no authority, in these appeals, to establish a specific pricing formula. Two other parties supported this position. They accepted that the Tribunal may, if it considers it appropriate, decide that there should be a formula pricing approach and may, if it considers it appropriate, identify generally what the components of the formula should be. However, they argued that the exact nature and details of any pricing formula must be negotiated by the parties and, if negotiations are not successful, arbitrated.
They stated that these negotiations and/or arbitration are mandated by sections 17, 18 and 19 of Regulation 402 under the Farm Products Marketing Act, which state:
Negotiating Agencies
- (1) There shall be a negotiating agency of eight members for each quota period fixed by the local board. O. Reg. 194/92, s. 3.
(2) The local board and the voluntary group of processors known as the Association of Ontario Chicken Processors shall each appoint four members to the negotiating agency. O. Reg. 194/92, s. 3; O. Reg. 560/92, s. 1 (1).
(3) The local board and the Association of Ontario Chicken Processors shall notify each other and the Commission in writing of the name and address of their appointees at least twenty-three days before the beginning of the quota period. O. Reg. 194/92, s. 3; O. Reg. 560/92, s. 1 (2).
(4) If the Commission is not notified, it shall appoint the members necessary to complete the negotiating agency. O. Reg. 194/92, s. 3.
(5) If a member of a negotiating agency dies, resigns or is unable or unwilling to act, the local board, the Association of Ontario Chicken Processors or the Commission, as the case may be, shall appoint a replacement. O. Reg. 194/92, s. 3; O. Reg. 560/92, s. 1 (3).
- The negotiating agency may settle by agreement minimum prices for chickens or for any class, variety, grade or size of chickens. O. Reg. 194/92, s. 3.
Arbitration
- (1) If the negotiating agency does not arrive at an agreement by 4 p.m. on the sixteenth day before the beginning of the quota period on all matters that it may settle by agreement or decides before that date that an agreement cannot be reached, it shall submit in writing to the Commission,
(a) a signed agreement concerning any matters agreed to; and
(b) a statement of the final position of each of the parties on each matter in dispute.
(2) The Commission shall refer the matters in dispute to an arbitration board.
(3) The arbitration board shall be composed of one member, who shall be appointed by the members of the negotiating agency.
(4) If the member of the arbitration board has not been appointed at least twelve days before the beginning of the quota period, the Commission shall make the appointment.
(5) If the member of the arbitration board dies, resigns or is unable or unwilling to act before he or she has made an award, the negotiating agency or the Commission, as the case may be, shall appoint a new member and the new member shall continue and complete the arbitration.
(6) The arbitration board shall make its award by 4 p.m. on the third day before the beginning of the quota period by selecting without modification one of the final positions on each matter submitted by the parties, and shall provide written reasons for the selection at least two days before the beginning of the quota period. O. Reg. 194/92, s. 3.
(7) The arbitration board shall not make an award if the parties reach an agreement on all matters in dispute and inform the board of that fact before an award is made. O. Reg. 443/97, s. 2.
These regulations were enacted by the Farm Products Marketing Commission (the Commission) pursuant to its authority under section 7(1) 25 of the Farm Products Marketing Act, which states:
(1) The Commission may make regulations generally or with respect to any regulated product,
providing for the establishment in connection with any plan, of negotiating agencies that may be empowered to adopt or settle by agreement any or all of the following matters:
i. minimum prices for the regulated product or for any class, variety, grade or size of the regulated product,
ii. terms, conditions and forms of agreements relating to the producing or marketing of the regulated product,
iii. any charges, costs or expenses relating to the production or marketing of the regulated product,
iv. the minimum amount of rental to be paid by or on behalf of a person engaged in processing a regulated product to lease land from an owner or tenant for the production of the regulated product and the terms and conditions of lease that shall apply in respect of the leasing of any such land;
R.S.O. 1990, c. F.9, s. 7 (1).
Mr. Shapiro argued that the Tribunal has no authority to amend these regulations, citing section 16(1) of the Ministry of Agriculture, Food and Rural Affairs Act, which states:
Appeal to Tribunal
- (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.
He pointed out that that section does not authorize an appeal from a regulation made by the Commission. It authorizes an appeal only from an “order, direction, policy or decision of the Commission.” They distinguished this from section 16(2), which authorizes an appeal from an “order, direction, policy, decision or regulation made under the Farm Products Marketing Act by a local board.” The list of what may be appealed under section 16(1) does not include a regulation. The list under section 16(2) does include a regulation. We note that, while two of the appeals before us are under section 16(1), the other two are under section 16(2), but do not regard this as determinative of the issue.
Mr. Goldblatt, counsel for the Chicken Farmers of Ontario, took the contrary position. He stated that the establishment of a pricing formula is an essential component of the proposal put forward on behalf of his client. They argued that the Tribunal should replace the system of price negotiation and arbitration with a system of formula pricing. They submitted a price setting formula is essential to the CFO proposal. They submitted that the Tribunal should direct the Commission to amend or revoke the regulations and cited section 16(11) as authority to do so. That subsection states
Powers of Tribunal on appeal
- (11) Upon an appeal to the Tribunal under subsection (1) or (2), the Tribunal may by order direct the Commission, the local board, the marketing board or the Director, as the case may be, to take such action as it or he or she is authorized to take under the Farm Products Marketing Act or the Milk Act and as the Tribunal considers proper, and for this purpose the Tribunal may substitute its opinion for that of the Commission, the local board, the marketing board or the Director.
In analyzing this issue, it is important to keep in mind the nature of these appeals from the decision of the Commission. It was described in the Procedural Order of Vice Chairman Wright dated January 29, 2001, as follows:
- 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.
The authority of the Commission to make the decision under appeal is set out in section 3(1)(a) of the Farm Products Marketing Act, which states:
Authority of Commission
- (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;
It is our view that in exercising its authority under this provision the Commission could have amended its regulations made under section 7(1) 25, if it thought it appropriate to do so.
Section 16(11) of the Ministry of Agriculture, Food and Rural Affairs Act authorizes the Tribunal to direct the Commission to take such action as it is authorized to take under the Farm Products Marketing Act and the Tribunal may substitute its opinion for that of the Commission. On its face, this provision authorizes the Tribunal to direct the Commission to amend its regulation made under the Farm Products Marketing Act. The only issue, then, is whether the omission of the word “regulation” from the list, “order, direction, policy or decision”, contained in section 16(1) restricts the scope of the Tribunal’s authority under section 16(11).
The Supreme Court of Canada, in Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1999 CanLII 699 (SCC), 174 D.L.R. (4th) 193, at p. 207, considered whether the Court, on appeal, was restricted to deciding the issue that had been certified to it as a question of general importance under the Immigration Act. It held that it was not. It stated that the certification of a question of general importance was the trigger by which the appeal was justified. The object of the appeal is the judgment itself, not the certified question. Once a question has been certified, all aspects of the appeal may be considered by the Court of Appeal within its jurisdiction. The Court of Appeal is not confined to answering the stated question or issues directly related to it. All issues raised by the appeal may be considered.
Applying this reasoning to the appeals before this Tribunal, it is our view that sections 16(1) and 16(2) are merely the triggers that allow the Tribunal to hear these appeals. The scope of the Tribunal’s jurisdiction is prescribed by section 16(11). It is not circumscribed by section 16(1). Accordingly, this Tribunal does have authority to direct the Commission to amend or revoke its regulations made under section 7(1) of the Farm Products Marketing Act. This conclusion is particularly apt given the purpose of these appeals, which is to establish a new supply management system for the chicken industry. It is inappropriate that this Tribunal be prevented from altering a component of the system, if advisable to do so.
Having come to the conclusion that the Tribunal does have jurisdiction to direct the Commission to amend or revoke its regulations, we have made no decision as to whether this jurisdiction will be exercised in the circumstances of these appeals. Having not yet heard closing arguments, we have not, at this stage, come to any conclusion as to whether it would be appropriate to establish a pricing formula or whether to continue the pricing negotiation/arbitration system in accordance with the regulations or whether to establish some other system.
Dated this 12th day of October, 2001.
