Lafrance v. Director of Regulatory Compliance, Ontario Raw Milk Quality Program, 2002 ONAFRAAT 17

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:

Lafrance v Director of Regulatory Compliance, Ontario Raw Milk Quality Program

Lafrance v Director of Regulatory Compliance, ORMQP [Request for Review] 2002 ONAFRAAT 17

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

DATE OF DECISION:

May 3, 2002

2002-17

NEUTRAL CITATION:

2002 ONAFRAAT 17

Lafrance v Director of Regulatory Compliance, Ontario Raw Milk Quality Program [Request for Review]

IN THE MATTER OF THE MILK ACT AND SECTION 16 OF THE MINISTRY OF AGRICULTURE AND FOOD ACT.

AND IN THE MATTER OF a Request to the Agriculture, Food and Rural Affairs Tribunal (the Tribunal) by Rosaire and Lina Lafrance under Rule 29 of the Tribunal’s Rules of Procedure for a review of the decision of the Agriculture, Food and Rural Affairs Tribunal dated January 2, 2002 on their appeal to the Tribunal from a decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program.

Decision of the Tribunal

Before:

Murray Cardiff, Chair; Terry Denison, Vice Chair

Background

This matter comes before the Tribunal as a result of discretion provided for under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended. Subsection 21.1(1) of that Act provides as follows:

Power to review

“A Tribunal may, if it considers it advisable and if its Rules made under section 25.1 deal with the matter, review all or part or its own decision or order, and may confirm, vary, suspend or cancel the decision or order.”

The Tribunal has made rules that deal with the matter of reviewing a decision. Those rules provide as follows:

Section 29.04:

“The Tribunal may review a final decision or order at the request of a party to an appeal or on its own initiative.”

Section 29.05:

“Any person, other than a party to an appeal, may request the Tribunal to review a final decision or order with leave of the Tribunal.”

The decision in question arose from an appeal by Mr. and Mrs. Rosaire and Lina Lafrance of a decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program (the Director) to uphold test results which indicated that milk on their farm tested in the penalty range for somatic cell count (SCC) on six occasions in 1999. The Tribunal heard the appeal in Alfred, Ontario on March 26, 2001, March 27, 2001 and October 22, 2001. The Tribunal denied the appeal in a decision dated January 2, 2002.

The appellants submitted that the Tribunal’s decision should be varied and the appeal should be granted on the grounds that the panel of the Tribunal that heard the appeal made procedural errors as well as errors in the application of natural justice and procedural fairness.

The respondent submitted that there is no basis for a review of the decision, as the appellants did not demonstrate that the Tribunal made a material error of law or fact or procedural fairness.

The Tribunal’s rules of procedure provide guidance as to when a review of a decision is appropriate. The rules provide:

Section 29.09

“In deciding whether it is advisable to conduct a review of all or any part of a final decision or order, the Tribunal may consider any relevant circumstances including,

(a) whether there is significant new evidence which was not available at the time of the original appeal;

(b) whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision;

(c) the extent to which any party to the appeal or any other person has relied upon the final decision or order;

(d) the extent to which any party to the appeal or any other person will be affected by the review process; and

(e) whether the public interest in finality of decisions is outweighed by the alleged prejudice to the requester.”

In this instance, because the appellant has made out a prima facie case for review, the Tribunal will exercise its discretion to review the matter as requested. The Tribunal undertook a review based on the written submissions of the appellants and the respondent and a review of the Tribunal’s written decision.

Procedural Issues

The appellants submitted that the Tribunal failed to rule on the issue under appeal, viz. the accuracy of the tests performed by the Director. They submitted that the Tribunal improperly broadened the scope of the appeal to give itself the flexibility to uphold the results of the tests performed by the Director, if it felt there was justification for the producers to be penalized. They also submitted it was improper for the Tribunal to look at results of tests conducted in 1998.

The appellants suggested that, rather than try to determine a plausible explanation for the penalties, the Tribunal should have considered whether there was sufficient evidence to doubt the accuracy of the Director’s results. They submitted that, on the balance of probabilities, the evidence before the Tribunal was that the accuracy of the Director’s test results could not be trusted. Further, they submitted that there was nothing to suggest the results of independent testing that they conducted on their milk were unreliable. The appellants also submitted that the Tribunal did not rule on the real issue under appeal and that therefore the appeal should be granted.

The respondent submitted that the issue considered by the Tribunal was correct as the appeal was from a decision of the Director to maintain the penalty range SCC test results on milk from the appellants’ farm. The respondent suggested that the results from 1998 were considered because the appellants made an issue of what had happened leading up to the penalty ranges.

The respondent submitted that the appellants’ evidence was that there was a serious problem with SCCs in their cows and that the problem occurred over an extended time. The respondent submitted that the appellants’ case depended on differences between the Director’s test results and their independent test results taken in a period after the period in which the penalties were assessed. The respondent submitted the appellant had not provided credible evidence that the Director’s test results were unreliable and that the onus was on the appellants to prove this beyond a reasonable doubt.

Natural Justice and Procedural Fairness

The appellants submit that the Tribunal failed to meet its obligations under the French Language Services Act (FLSA) as it did not provide the appellants with a panel in which all members were bilingual when they requested that it do so. They submitted that the FLSA specifically guarantees the right to communicate in French with any government agency and receive services in French from any government agency. The appellants submitted that the Tribunal placed less importance on service in the language of choice than on the need for specialized knowledge of a panel member.

The respondent submitted that the Tribunal complied with the FLSA. The respondent noted that two of the three panel members hearing this matter were fluently bilingual; that simultaneous translation was provided; that witnesses testified in French, English or both; and that the appellants’ counsel were fluently bilingual. The respondent also submitted concerns with regard to the timing of the appellants’ objections regarding the unilingual English member of the panel.

Analysis and Conclusions

The issue considered by the Tribunal in the hearing of the appeal by Mr. and Mrs. Rosaire and Lina Lafrance was:

“Should the Tribunal allow six SCC test results which indicate the milk on the Lafrance farm tested in the penalty range in 1998 and 1999 to stand?”

The Tribunal does not agree with the appellants that the only question for it to consider in appeals of this nature is the accuracy of the tests conducted by the Director. The Tribunal is of the view that it has the discretion to consider that mitigating circumstances can contribute to milk testing in the penalty range and it can reverse the decision of the Director based on these circumstances. However, there was no evidence of mitigating circumstances in this particular appeal.

The Tribunal notes that Regulation 761, under the Milk Act, provides for a financial penalty to be assessed to producers when their milk is found in “three of any four consecutive monthly tests” to contain somatic cells in an amount equal or greater than the somatic cell level established in the regulation. By definition the SCC penalty assessed to Mr. and Mrs. Lafrance in February 1999 was based on test results taken in November 1998, December 1998, January 1999 and February 1999. Similarly, the December 1998 test results are relevant to the penalty the appellants received in March 1999.

The parties disagreed on which party had the onus of proof and on the appropriate standard of proof that should be used by the Tribunal. The hearing before the Tribunal was a hearing de novo in which the Tribunal’s role was to determine whether test results in question should be allowed to stand. The onus is on the respondent to satisfy the Tribunal that the test results were accurate. The standard of proof that must be met is the balance of probabilities.

This review panel of the Tribunal has considered the submissions of the parties and the decision of the Tribunal in this matter dated January 2, 2002. The appellants noted that there was a higher than expected rate of penalties assessed in their district at the time they received their penalties. They also questioned whether the milk transporter who collected the samples followed the proper procedure. The respondent argued that the milk of individual cows in the appellants’ herd in the time period in question exceeded the penalty level. The respondent noted that the procedures followed by the milk transporter were reviewed. This panel of the Tribunal is not persuaded that the evidence supports the appellants’ contention that there were inaccuracies in the test results relied upon by the Director for the period in which the penalties were assessed to them.

With regard to the application of the FLSA to the proceedings of the Tribunal, the preamble of the FLSA states that the French language has a special status as an official language in Canada, and is recognized as an official language in Ontario in the courts and in education. The FLSA sets out to guarantee the use of the French language in institutions of the Legislature and the Government of Ontario.

The Act defines “government agency” in a way that makes it clear that the Tribunal is a government agency which is included in the application of the FLSA, and it also defines “service” in a way that clearly includes what the Tribunal does: that is, it includes the communications with, the hearing of evidence by, and the issuance of decisions by the Tribunal.

Subsection 5(1) of the FLSA states:

Right to services in French

5. (1) A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule. R.S.O. 1990, c. F.32, s. 5 (1).

The Tribunal interprets this to mean that either from its offices in Guelph, or when it is conducting hearings in any of the areas designated in the Schedule to the Act, the Tribunal must communicate in French with any person who wishes to communicate with the Tribunal in French.

Section 6 of the FLSA states:

Existing practice protected

6. This Act shall not be construed to limit the use of the English or French language outside of the application of this Act. R.S.O. 1990, c. F.32, s. 6.

The Tribunal interprets this to mean that the fact that services are being provided in one of French or English shall not mean that services in the other language are diminished. For example, if a person requires services of the Tribunal in French, that cannot result in a person using English to communicate with the Tribunal in a proceeding having less service.

Section 7 of the FLSA contemplates that there may be some reasonable limitation on the obligations of government agencies to provide services in French. Section 7 of the FLSA states:

Limitation of obligations of government agencies, etc.

7. The obligations of government agencies and institutions of the Legislature under this Act are subject to such limits as circumstances make reasonable and necessary, if all reasonable measures and plans for compliance with this Act have been taken or made. R.S.O. 1990, c. F.32, s. 7.

In the Lafrance case, there are two issues concerning the question of whether the appellants have been able to receive the services of the Tribunal in accordance with the FLSA.

First, there is the question of written communications with the Tribunal’s office. In the Tribunal’s view the Tribunal staff, although not bilingual, have endeavoured to communicate with the solicitor for Rosaire and Lina Lafrance through French translation. The appellants’ solicitor has communicated with the Tribunal by writing the request for a review of its decision in English as an accommodation to the Tribunal staff. While this is appreciated, it does not diminish the fact that the Tribunal has the capability of communicating with the appellants in written French communications.

Second there is the question of the use of the French language at the hearings of the Tribunal. In this case, the Tribunal provided for communication in either French or English at the hearing by assigning two bilingual members to the panel hearing the Rosaire and Lina Lafrance appeal, together with another unilingual English member who had the services of translation by a certified court translator during the hearing.

The Tribunal is mindful of the fact that not all of its members are bilingual and that some of its members who are bilingual do not have the specialized knowledge of animal husbandry required to appreciate the concerns that a dairy farmer would have when the milk quality of his or her cows is in question. It is worth noting that the unilingual member on the panel hearing the Rosaire and Lina Lafrance appeal is a very experienced doctor of veterinary medicine who is familiar with dairy cattle and diseases of dairy cattle, and that his experience is important to the Tribunal panel in understanding the veterinary evidence led by the Director and the appellant.

The appellants submit that in order to meet the obligations under the FLSA the Tribunal must sit with a panel consisting of members who are all capable of understanding the French language. While there is no doubt that this would facilitate the appellants’ ability to use the French language to address the Tribunal, to be understood, and to be addressed by the Tribunal in the French language, it is not the only possible way for the requirements of the FLSA to be met. The provision of simultaneous translation also meets the requirements of the FLSA. Not only does this mean that a non-French speaking member of the Tribunal can understand what the appellant is saying to the Tribunal, it also means that the appellant can hear the translation from English to French of the words of other parties and counsel who choose to address the Tribunal in English, as is their right to do. The Tribunal notes that simultaneous translation is the method that the Legislature of Ontario and the Parliament of Canada use to facilitate the use of both French and English in their proceedings, deliberations, and indeed to enact statutes.

The Tribunal is of the view that the appellants’ right to a hearing in the language of their choice was provided in compliance with the FLSA. The Tribunal is satisfied that the members of the Tribunal that heard the appeal and the parties to the hearing were well served by a knowledgeable interpreter who provided simultaneous translation from English to French and from French to English.

The fact that knowledgeable bilingual counsel represented the appellants does not relieve the Tribunal of its obligations under the FLSA but it suggests to the Tribunal that the interests and concerns of the appellants were communicated to the Tribunal in a meaningful way.

The Tribunal is satisfied that the appellants received a fair hearing within reasonable and necessary limits on its obligations under the FLSA to serve the appellants in French. The Tribunal is satisfied that it has taken “all reasonable measures and plans for compliance with this Act”.

Decision and Reasons

The Tribunal has reviewed its decision dated January 2, 2002 with respect to the appeal by Rosaire and Lina Lafrance and considered the representations of the parties and has decided to confirm the decision.

The reasons for this decision are:

1. The evidence before the original appeal panel supports the conclusion that there were no errors in the laboratory test results which were the basis of the penalties in question.

2. The appellants received a fair hearing before the Tribunal in compliance with the FLSA and following the rules of natural justice.

DATED AT Ethel, Ontario this 3rd day of May, 2002.