Agriculture, Food and Rural Affairs Appeal Tribunal
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 [February 6 Procedural Order] 2001 ONAFRAAT 7
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
February 6, 2001
2001-07
NEUTRAL CITATION:
2001 ONAFRAAT 7
Chicken Farmers of Ontario v Ontario Farm Products Marketing Commission [February 6 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 Osyany, Vice-Chair
Appearances:
Laurel Baig, Sack, Goldblatt, Mitchell, Counsel for Chicken Farmers of Ontario
Arlen Sternberg, Torys, Counsel for the Ontario Independent Poultry Processors
James P. McIlroy, McIlroy and McIlroy, Counsel for the Canadian Restaurant and Foodservices Association
Robert Shapiro, for The Association of Ontario Chicken Processors
Henry Bos
PROCEDURAL ORDER
This is a pre-hearing application by Chicken Farmers of Ontario (CFO) for an order requiring the parties to exclude from the materials placed before the Tribunal prior to the commencement of the proceedings the actual decision of the Farm Products Marketing Commission, dated December 1, 1999 (“Decision”) and any reference to the Decision or the evidence before the Commission. In fact, some of the parties, other than the CFO have included the Decision and references to it in their pre-hearing filing of documents and witness statement.
This is the fourth pre-hearing order in this matter. In the last pre-hearing conference this matter was placed before Vice-Chair Wright by the CFO, in asking for an order in the following terms:
“The appeal will proceed as a hearing de novo. No reference will be made to or reliance placed on the decision of the Commission or the evidence or pleadings before the Commission.”
The order actually made by Vice-Chair Wright on January 29, 2001 reads as follows:
“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.”
The CFO is taking the position that Vice-Chair Wright’s order in fact adopts and amplifies the CFO request. Furthermore, the CFO has alleged bias in the Decision. This allegation of bias is being cured by a special kind of de novo hearing, therefore the normal practice of the Tribunal in receiving the Commission order should be disregarded. Because it is a de novo hearing, the Decision has no probative value, and the only reason to put it before the Tribunal is to suggest some probative value. The Tribunal’s reception of the Decision would also taint the Tribunal with the bias issue.
The other parties are taking the position that Vice-Chair Wright specifically rejected the CFO’s position on this point, as can be seen from the obvious comparison of the decision wording with the request. Furthermore, the Ministry of Agriculture and Food and Rural Affairs Act, s. 16 (7) provides as follows:
Upon receipt of a notice under subsection (1) or (2), the Tribunal shall forthwith notify the Commission, the local board, the marketing board or the Director where any such body or the Director has an interest in the subject-matter of the appeal and such body or the Director, as the case may be, shall thereupon forthwith provide the Tribunal with all relevant by-laws, documents or other materials, of any kind whatsoever, in its or his or her possession. R.S.O. 1980, c. 270, s. 13 (6); 1988, c. 13, s. 1 (12).
The statute clearly means that all the materials, including the decision itself should be placed in front of the Tribunal. As well, there is the convenience and efficiency issue, in that parties are free to suggest any regime to the Tribunal, and it is convenient and efficient to adopt parts of the Decision in making these presentations. Furthermore, some of the parties’ appeals are consolidated only in regard to variation of some items in the Decision; and the adoption of the CFO’s position would lead to their asking for these variations without being able to tell the Tribunal what the decision is.
The normal practice of the Tribunal is to receive the Commission decisions along with all the materials, and the Tribunal is well able to make a decision de novo, without being constrained by the Commission decision.
In the normal course of preparation, it is possible that some of the panel members will have read the Decision. Does that “taint” them, does it mean that panel members will have to be polled and the “readers” disqualified? (In response to this issue, counsel for CFO indicated that this was not a problem, that panel members will not have to be polled and that counsel had confidence in the panel’s ability to discharge its quasi-judicial role).
I accept the submissions of the parties in opposition to the CFO. The inclusion of the Decision, references to the Decision and the evidence before the Commission in the pre-hearing filings of documents and witness statements does not violate the order of Vice-Chair Wright, dated January 29, 2001.
The application of CFO is dismissed.
Dated at Shelburne this 6th day of February, 2001.