Agriculture, Food and Rural Affairs
Appeal Tribunal
1Stone 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:
Frey’s Hatchery Ltd. v Ontario Broiler Hatching Egg and Chick Commission
Frey’s Hatchery Ltd. v OBHECC [Request for Review] 2002 ONAFRAAT 30
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
May 17 and 18, 2002
DATE OF DECISION:
August 28, 2002
2002-30
NEUTRAL CITATION:
2002 ONAFRAAT 30
Frey’s Hatchery Ltd. v Ontario Broiler Hatching Egg and Chick Commission [Request for Review]
IN THE MATTER OF THE FARM PRODUCTS MARKETING ACT AND SECTION 16 ON THE MINISTRY OF AGRICULTURE, FOOD AND RURAL AFFAIRS ACT.
AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Frey’s Hatchery Ltd. from decisions of the Ontario Broiler Hatching Egg and Chick Commission.
AND IN THE MATTER OF: A review requested by Frey’s Hatchery Ltd. pursuant to Rule 29 of the Rules of Procedure of the Agriculture, Food and Rural Affairs Appeal Tribunal
Before:
W. Terrance Denison, Vice-Chair
DECISION OF THE TRIBUNAL
Frey’s Hatchery Ltd. appealed to the Tribunal with respect to decisions of the Ontario Broiler Hatching Egg and Chick Commission (OBHECC) in which Frey’s Hatchery Ltd. was assessed fines for obstructing an OBHECC inspector from entering a hatchery, for failure to report the sale of 1,200 birds, and for failing to produce accurate information demanded by OBHECC. The appeal also sought to have the Tribunal consider the issuance of “Hatching Egg Market Share” to the appellant by the respondent commission.
The Tribunal held a hearing of the appeal on May 17th and 18th, 2002. Both Frey’s Hatchery Ltd. and the OBHECC were represented by counsel at the hearing of the merits of the appeal. The Tribunal first dealt as a preliminary matter with a motion by OBHECC’s counsel to dismiss the portion of the appeal by Frey’s Hatchery Ltd. that dealt with the issue of “Hatching Egg Market Share”. After submissions by the appellant and OBHECC the motion was granted and the Tribunal did not deal with this portion of the appeal as the Tribunal found that Frey’s Hatchery Ltd. had not made application to OBHECC with respect to “Hatching Egg Market Share” and therefore no decision had been made which could form the basis of an appeal to the Tribunal.
After the presentation of evidence by the appellant and the respondent, with the opportunity for cross-examination and summations from the parties the Tribunal decided, in a written decision with reasons dated June 10th, 2002 that the penalties imposed on Frey’s Hatchery Ltd. were appropriate and the appeal was denied.
Frey’s Hatchery Ltd., by a letter dated July 8th, 2002 delivered to the Tribunal office, seeks a review of the Tribunal’s decision under Rule 29 of the Tribunal’s Rules of Procedure. Attached to the letter from Frey’s Hatchery Ltd. seeking a review is a letter from Turksta Mazza, counsel to the OBHECC dated June 15th, 2001. The requester submitted no other materials. Although it was represented by counsel at the hearing of the appeal the requester, Frey’s Hatchery Ltd., is not represented by counsel in this request for a review of the Tribunal’s decision. The Tribunal did not call upon the other party to the appeal, OBHECC to make representations with respect to this review.
This request for a review of the final decision of the Tribunal is brought under Rule 29 of the Tribunal’s Rules of Procedure, which is reproduced here:
RULE 29 REVIEW OF A DECISION
Application
29.01 The Tribunal may at any time correct a typographical error, grammatical error, error of calculation, misstatement, ambiguity, technical error or other similar error which appears in a decision or order of the Tribunal without recourse to this Rule and without prior notice to the parties to an appeal.
29.02 This rule applies to reviews conducted under subsection 21.2(1) of the SPPA.
29.03 Before a final decision or order is issued, any application to review an interim order or procedural ruling of the Tribunal shall be made by motion to the panel of the Tribunal hearing the appeal and not under this Rule.
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.
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.
29.06 A request under Sub-rule 29.05 shall comply with Sub-rule 29.07.
Contents of a request for review
29.07 A request for review of a final decision or order of the Tribunal shall,
(a) be in writing;
(b) state the interest of the requester in the subject matter of the appeal;
(c) state the reasons for requesting the review;
(d) state the desired outcome of the review;
(e) attach any documents which support the request;
(f) state the full name, mailing address, telephone number and facsimile number (if any)of the requester;
(g) if the requester has counsel or an agent, state the full name, mailing address, telephone number and facsimile number (if any) of the counsel or agent; and
(h) be signed by the requester.
Action by Tribunal
29.08 Upon receipt of a request for review which complies with Sub-rule 29.07 the Tribunal shall send a copy of the request to each party to the appeal.
Evaluation of a request for review
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.
Time limits
29.10 A request for review shall be filed within thirty days of the date of the final decision or order.
29.11 A request for review received after the expiry of the thirty day period may be considered if the Tribunal is satisfied that there is a good reason for the delay.
Multiple requests for review
29.12 Except with leave of the Chair, the Tribunal will consider only one request for review of a final decision or order by any person.
Consideration of requests for review
29.13 The Chair of the Tribunal, or a Vice-Chair designated by the Chair, shall consider each request for review of a final decision or order and decide whether a review should be conducted.
29.14 The Chair, or the Vice-Chair who considers the request, may consult with the member or members of the Tribunal who participated in the hearing of the appeal or motion which resulted in the final decision or order which is the subject of the request for review.
29.15 The Chair may request the member or members of the Tribunal who participated in the hearing of the appeal or motion which resulted in the final decision or order which is the subject of the request for review to consider the request and make the decision to review or not to review it.
29.16 The Chair, Vice-Chair or other member or members of the Tribunal who considers a request for review may have regard to the record of the hearing of the appeal or motion in addition to any material filed by the requester and any other party to the appeal.
29.17 The Tribunal may refuse a request to review a final decision or order without seeking submissions from any other party to the appeal.
29.18 If the Tribunal decides to receive and consider submissions from the other parties to the final decision or order which is the subject of a request for review it shall notify the other parties of the request for review and allow them ten days to respond.
29.19 The Tribunal shall send a copy of any response it receives from another party to the appeal to the requester and the requester shall be allowed five days to reply.
29.20 A copy of the requester's reply shall be sent by the requestor to each of the other parties and to the Tribunal.
29.21 The Tribunal shall not accept any further submissions without its permission.
29.22 A request for review may be granted in whole or in part.
29.23 If the Tribunal decides to review one of its final decisions or orders it may attach conditions, add other parties or make procedural directions to govern the review process.
Procedure for a review
29.24 Unless otherwise ordered, a review of a final decision or order of the Tribunal shall be conducted orally.
The Tribunal’s discretionary power to review a decision is enabled in the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22:
Power to review
21.2(1) 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 of its own decision or order, and may confirm, vary, suspend or cancel the decision or order. 1997, c.23, s.13(20).
The purpose of the Tribunal reviewing its own decision is to correct obvious errors or oversights in a decision and to avoid unnecessary applications to the Courts for judicial review. A review by the Tribunal is not an appeal or new hearing and determination of the evidence, although a review could result in a matter being referred back to the original hearing panel to hear and consider additional evidence, in some cases. It should not be regarded as a usual way of proceeding, but should only be used when there is some special reason to reconsider the Tribunal’s decision.
I have carefully reviewed the written decision of the Tribunal in this matter together with the letter from Frey’s Hatchery Ltd. requesting the review. I am satisfied that there is nothing in the letter from Frey’s Hatchery Ltd. that raises new or different points from the evidence that was lead or that could have been lead at the hearing of this matter. The letter attempts to re-argue the case that was before the Tribunal. There is no apparent error in law that suggests that the Tribunal failed to apply the correct law to the factual evidence that it had before it. Both parties were represented by counsel at the hearing. There appears to have been procedural fairness in how the hearing was conducted, with the appellant and respondent having ample opportunity to present evidence, cross-examine witnesses, and to make submissions to the Tribunal before it made its decision.
Since I find that there is no valid reason given in the request of Frey’s Hatchery Ltd. for a review of the Tribunal’s decision the request for a review is denied.
Dated at Toronto, ON, this the 28th day of August, 2002.