Denby et al. v Dairy Farmers of Ontario, 2003 ONAFRAAT 26

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Denby et al. v Dairy Farmers of Ontario Denby et al. v DFO [September 15 Pre-Hearing Conference] 2003 ONAFRAAT 26

STATUTE: Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

DATE OF DECISION: September 15, 2003 2003-26

NEUTRAL CITATION: 2003 ONAFRAAT 26

Denby et al. v Dairy Farmers of Ontario [September 15 Pre-Hearing Conference]

IN THE MATTER OF THE MILK ACT AND SECTION 16 OF 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 Mrs. Betty Denby, Mr. John Denby and Mr. William Denby and by Mrs. Isobel Hope and Mr. Dave Hope and by Mr. Dale McFeeters, Darmar Farms Inc. from decisions of the Dairy Farmers of Ontario by which it:

1. Cancelled the appellants’ licences to engage in the producing and marketing of milk (Licence Nos. 585343, 604984 and 621561)
2. Cancelled quota fixed and allotted to the appellants (10 kg Denby #585343, 5 kg Hope #604984 and 5 kg Darmar Farms Inc. #621561)
3. Required remaining quota held by the appellants to be offered for sale or sold on the June 2003 or July 2003 quota exchanges.
4. Cancel any quota not sold by the conclusion of the July 2003 quota exchange.
5. Prevent the accumulation of production credits for the use of the appellants.

AND IN THE MATTER OF: A pre-hearing conference for the purpose of:

1. Resolving a request for an order for additional disclosure of documents.
2. Resolving a request for an adjournment of the hearing.

Before: John Taylor, Vice Chair; Jack Young, Vice Chair.

Appearances: Melodie Foerster, on behalf of the appellants, Mrs. Betty Denby, Mr. John Denby and Mr. William Denby and by Mrs. Isobel Hope and Mr. Dave Hope and by Mr. Dale McFeeters, Darmar Farms Inc.. Geoff Spurr, counsel to the respondent, Dairy Farmers of Ontario. Peter Gould, witness fot the respondent.

DECISION OF THE TRIBUNAL

This application was considered by way of teleconference call, on September 10, 2003. The Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) considered the motion by Mr. Good for an order that the DFO make full disclosure to the appellant of all relevant materials regarding the appeal and that the hearing scheduled to commence September 15, 2003, be adjourned until the appellant was satisfied that the DFO had disclosed all relevant documents.

The Evidence

1. Disclosure of Materials

Ms. Foerster stated that she represented the appellants on behalf of their counsel, Mr. Good, who was unavailable to teleconference. Ms. Foerster said that Mr. Good's office was in receipt of a submission from Mr. Spurr dated September 10, 2003 wherein the respondent stated that full disclosure of all materials had been made, pursuant to the Tribunal pre-hearing order of July 14th, 2003. Ms. Foerster stated that the appellants were satisfied that the DFO had made full disclosure of all relevant documents and that a misinterpretation arose during the discussion relating to the materials which led Mr. Good to mistakenly believe that further documents were forthcoming.

Mr. Spurr said that the DFO had complied fully with the Tribunal order of July 14th, 2003 which stipulated that:

• By September 2, 2003 each party shall deliver to the other all documents generated in the months of March 2003, April 2003 and May 2003 that related to the matter under appeal and,
• By September 5, 2003 the parties shall deliver to the other parties two copies of a list of witnesses intended to be called at the hearing and two copies of a "will say" statement for each witness and,
• By Monday, September 8, 2003 the parties shall deliver to each other party two copies of all relevant documentary evidence and other materials of any kind whatsoever intended to be filed at the hearing as an exhibit. The presentation of the parties may be included if desired.
• By September 8, 2003 the parties shall deliver to each other party two copies of all relevant documentary evidence and other materials of any kind whatsoever intended to be filed at the hearing as an exhibit. The presentation of the parties may be included if desired.
• By Monday, September 8, 2003, seven copies of all relevant documentary evidence and materials of any kind whatsoever intended to be filed at the hearing as an exhibit shall be delivered to the Tribunal by each of the parties. The presentation of the parties may be included if desired.

Mr. Spurr told the Tribunal that the appellants had not yet submitted any documents that were ordered to be disclosed by the Tribunal. Mr. Spurr said that there were never any written instructions from the Director, Raw Milk Quality Program, nor did the DFO indicate at any time that such documents existed.

2. Adjournment

Ms. Foerester explained that the request for adjournment of the hearing scheduled for September 15, 2003 arose from the issue of disclosure. She said that Mr. Good believed that full disclosure of materials had not been made, therefore he was unable to prepare his materials to meet the DFO case; hence the request for adjournment. Ms. Foerester told the parties that Mr. Good had set aside specific dates to reschedule the hearing. She said that a further delay in the proceedings would not unfairly prejudice the position of the respondent.

Mr. Spurr argued that there was no reasonable basis to adjourn the hearing scheduled for September 15, 2003. Mr. Spurr said that the motion presently under discussion was not submitted until September 9, 2003, well after the witness list, 'will say ' statements and the documentary evidence were to have been exchanged by the parties. He said that the appellants were in conflict with the issues they raised in their motion. Mr. Spurr said that the rulings of the DFO were stayed by virtue of the appeals and that further delay was unwarranted. Mr. Spurr said that during the pre-hearing conference discussion of July 8, 2003 the parties agreed to the matters of fact and that the period of time to which the appeal pertained was March, April and May of 2003.

ORDER OF THE TRIBUNAL

After careful consideration of the submissions the Tribunal orders:

1. By 10:00 a.m. Friday September 12, 2003 the same materials listed in the July 14th pre-hearing order of the Tribunal are to be submitted by the appellant, specifically:

• The appellants shall deliver to the DFO all documents generated in the months of March 2003, April 2003 and May 2003 that related to the matter under appeal and,
• The appellants shall deliver to the DFO two copies of a list of witnesses intended to be called at the hearing and two copies of a "will say" statement for each witness and,
• The appellants shall deliver to the DFO two copies of all relevant documentary evidence and other materials of any kind whatsoever intended to be filed at the hearing as an exhibit. The presentation of the appellants may be included if desired.
• The appellants shall deliver, seven copies of all relevant documentary evidence and materials of any kind whatsoever intended to be filed at the hearing as an exhibit to the Tribunal. The presentation of the appellants may be included if desired.

2. Mr. Peter Gould, Director of Regulatory Compliance, will swear an affidavit stating that there are no further materials under his jurisdiction and pertaining to the matters under appeal that remain undisclosed to the appellants. The affidavit will be presented at Tribunal hearing on September 15, 2003.

3. The Motion by Mr. Good dated September 9, 2003 is dismissed.

4. The decision of the Tribunal is to be delivered verbally as time is of the essence in this matter (the verbal; decision of the Tribunal was issued to Geoff Spurr counsel to the DFO and Melodie Foerster representative for the appellants at 4:15 p.m. on September 10, 2003).

Dated at Tilbury, Ontario this the 15th day of September, 2003.