Sunnybrook Farms v Chicken Farmers of Ontario, 2001 ONAFRAAT 54

Agriculture, Food and Rural Affairs Appeal Tribunal

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:

Sunnybrook Farms v Chicken Farmers of Ontario

Sunnybrook Farms v Chicken Farmers of Ontario [Pre-Hearing Decision] 2001 ONAFRAAT 54

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

November 2, 2001

DATE OF DECISION:

November 22, 2001

2001-54

NEUTRAL CITATION:

2001 ONAFRAAT 54

Sunnybrook Farms v Chicken Farmers of Ontario [Pre-Hearing 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 Sunnybrook Farms from a decision of the Chicken Farmers of Ontario (CFO) to refuse to hold a hearing into the entitlement of Sunnybrook Farms for a periodic allocation base of 100,000 kilograms (live weight) per quota period for slaughter.

AND IN THE MATTER OF: A Pre-Hearing Conference for the purpose of hearing a Motion brought by Sunnybrook Farms to define the scope of the stay which operates while the matter is under appeal.

Before:

Andrew Osyany, Vice Chair

Appearances:

Ron Folkes, counsel to the appellant, Sunnybrook Farms Ken Holstein, Sunnybrook Farms Geoffrey Spurr, counsel to the respondent, CFO Robert Shapiro, President, Association of Ontario Chicken Processors (AOCP)

DECISION OF THE TRIBUNAL ON A PRELIMINARY MOTION

This preliminary motion was heard in Guelph, Ontario on November 2, 2001. Sunnybrook Farms, a chicken processor asked the Tribunal to order that:

1. Any actions by the CFO to compel the appellant to reduce its periodic allotment for slaughter to any amount below 100,000 kilograms (live weight) of chicken per quota period be stayed for Quota Period A-43 and all subsequent quota periods until the final outcome of the appeal.

2. Any proceedings taken by the CFO to draw upon or call upon the line of credit posted by the appellant with the CFO be stayed until the final outcome of the appeal, provided that the appellant does not contract to purchase more than 100,000 kilograms (live weight) of chicken for slaughter per quota period from A-41 until the final outcome of the appeal.

3. The AOCP be compelled to produce all correspondence, minutes of meetings, notes and other records regarding its recommendation to the CFO of June 14th, 1996 that the appellant receive a base of live chicken for slaughter of 100,000 kilograms per quota period (live weight) commencing with Quota Period A-17 and documents reflecting subsequent dealings with respect to the allocation of live chicken for slaughter of Sunnybrook Farms up to the present time, forthwith.

4. Such other order as the Tribunal may deem just.

Statutory Context

Section 16 (2) of the Ministry of Agriculture, Food and Rural Affairs Act is as follows:

16(2) Subject to subsections (4) and (5), if a person is aggrieved by an order, direction, policy, decision or regulation made under the Farm Products Marketing Act by a local board or under the Milk Act by a marketing board, that person may appeal to the Tribunal by filing with the Tribunal and sending to the local board or marketing board written notice of the appeal.

The Issues

The issues before the Tribunal were:

1. Should the Tribunal prevent the CFO from taking action against Sunnybrook Farms pending the outcome of the appeal, provided the processor does not slaughter more than 100,000 kilograms of chicken per quota period?

2. Should the Tribunal compel the AOCP to produce documents related to its recommendations regarding the allocation of live chicken for slaughter to Sunnybrook Farms from June 14, 1996 to the present time?

The Evidence and the Findings

At the outset of the pre-hearing conference, Mr. Spurr indicated that the nature of the motion had changed as Sunnybrook Farms had released chicken in compliance with CFO regulations for quota period A-43. The other parties agreed that there was no longer a dispute with regard to quota period A-43.

Mr. Ken Holstein gave evidence on behalf of Sunnybrook Farms. However, before Mr. Holstein was cross-examined by the representatives of other parties to the appeal, Sunnybrook Farms withdrew its motion in its entirety.

Mr. Folkes told the Tribunal that Sunnybrook Farms and the CFO had reached an agreement with regard to actions to be taken by the CFO against Sunnybrook Farms in quota periods A-44 and A-45. Mr. Folkes said that he was content with the documentation provided by the AOCP to date, even though Mr. Shapiro had indicated to him that it was not the entire set of documents he requested by way of his motion.

Mr. Spurr confirmed that the CFO was in agreement with Sunnybrook Farms.

Mr. Shapiro said he could not support the agreement reached by the other two parties. He said he understood that the CFO was limiting its ability to enforce its quota regulations, for two periods, and that AOCP members could be short chicken as a result. He said that as he was not sure that sufficient compensation would be provided to affected processors he could not support the agreement. He said he would have to poll his members individually on the matter.

However, Mr. Shapiro said he did not wish to cross examine Mr. Holstein or present any evidence on the matter as there would be a hearing on the merits of the case scheduled shortly.

Mr. Folkes and Mr. Spurr asked that their clients’ agreement be made an order of the Tribunal.

ORDER

After having considered the submissions of the parties, the Tribunal makes the following order:

1. the Motion brought by Sunnybrook Farms, is withdrawn;

2. Sunnybrook Farms will reassign any kilograms purchased in excess of its allocation for Quota Periods A-44 and A-45 or until the decision in this appeal is rendered, if sooner;

3. Sunnybrook Farms will not sign, in any quota period, pending the outcome of this appeal, more than 100,000 kilograms and will not contest a draw on its Letter of Credit by CFO;

4. provided Sunnybrook Farms contracts for no more than 100,000 kilograms, CFO’s enforcement remedies against Sunnybrook will be limited to forfeiture of its Letter of Credit in the amount of $8,000.00 for non-compliance in Quota Periods A-44 and A-45 by Sunnybrook Farms of its obligation to reassign live kilograms to other processors, until the final outcome of this appeal.

The fact that this order was made, or its content, shall not be construed by the Tribunal panel hearing the appeal as an admission on the part of any party relative to the respective merits of their positions when the appeal is heard.

Dated at Shelburne, Ontario the 22nd day of November, 2001.