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:
International Dairy Direct – Broker Agent v Dairy Farmers of Ontario
International Dairy Direct – Broker Agent v DFO [Pre-Hearing Conference] 2003 ONAFRAAT 9
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
April 16, 2003
DATE OF DECISION:
April 17, 2003
2003-09
NEUTRAL CITATION:
2003 ONAFRAAT 9
International Dairy Direct – Broker Agent v Dairy Farmers of Ontario [Pre-Hearing Conference]
IN THE MATTER OF THE FARM PRODUCTS MARKETING 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 International Dairy Direct, Sunderland, Ontario from a decision of Dairy Farmers of Ontario dated March 14, 2003 by which it refused to change its plan for complying with the World Trade Organization ruling related to Canada’s milk export practices, which was released February 25, 2003.
AND IN THE MATTER OF:
A motion by Dairy Farmers of Ontario for an Order made pursuant to subsection 16(6) of the Ministry of Agriculture, Food and Rural Affairs Act to limit or define the scope of the stay in effect by virtue of the appeal of International Dairy Direct, in particular an order that the stay maintains the legal status quo in effect as of February 25, 2003 and does not extend so as to permit International Dairy Direct to implement its Proposal for the export of raw milk pending the hearing before the Appeal Tribunal.
AND IN THE MATTER OF:
A request by International Dairy Direct that the hearing in this matter, scheduled to commence on Wednesday, April 23, 2003, be adjourned to a more convenient date.
Before:
John Taylor, Vice Chair; Tim Sutton, Member
Appearances:
Donald R. Good, counsel to the appellant, International Dairy Direct
Geoffrey P. Spurr, counsel to the respondent, Dairy Farmers of Ontario
DECISION OF THE TRIBUNAL
These matters were considered at a pre-hearing conference held by way of teleconference call on Wednesday, April 16, 2003. The purpose of the pre-hearing conference was twofold. The Tribunal was to consider a request that the Tribunal limit or define the scope of the stay in effect by virtue of the appeal by International Dairy Direct. The Tribunal was also to decide whether or not to adjourn the hearing of the appeal. Prior to the pre-hearing conference, the Tribunal agreed to vary the time requirements in its Rules of Procedure for the service of notice of motion and reply, in order to have the matter dealt with in an expeditious manner.
The Background
The Dairy Farmers of Ontario (DFO), acting in response to concerns that milk exported from Canada could be subsidized, provided export milk shippers an exemption from part of the regulatory scheme established under the Milk Act. An electronic bulletin board, operated by the firm Deloitte and Touche, allowed for buyers and sellers of milk to enter into contracts. The DFO exempted export milk producers shipping under the terms of these contracts from the requirement to hold marketing quota for milk shipped under an export contract. The DFO did not control the price or volume of milk marketed through these contracts. However, the DFO continued to license export milk producers, whether or not they held quota, and these producers were required to abide by milk quality standards established by regulation under the Milk Act.
After this system had been in operation for approximately two years, the World Trade Organization (WTO) ruled that the Canadian system was non-compliant with an international trade agreement. An agreement reached by the Department of Foreign Affairs and International Trade (DFAIT) allowed for export milk producers to continue to ship export milk brokered under valid contracts through April 2003. The DFO revoked its regulatory exemption for export milk producers, effective March 1, 2003.
International Dairy Direct (IDD) proposed to establish itself as a broker of export milk and ship milk directly to the United States of America (USA), as well as to domestic processors active in the export market. IDD asked the DFO to approve their scheme and to request the endorsement of the DFAIT for the IDD export plan. The DFO did not endorse the IDD proposal and refused to vary its plan for ensuring compliance with the WTO ruling. IDD appealed to the Tribunal. IDD commenced shipping milk to the USA but export shipments had been discontinued by the time of the pre-hearing conference.
Statutory Context
The Statutory Powers Procedure Act provides that an appeal to the Tribunal of a decision made by a marketing board acts as a stay on the decision. Subsection 25(1) of that statute states:
Appeal operates as stay, exception
- (1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,
(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or
(b) the tribunal or the court or other appellate body orders otherwise. 1997, c. 23, s. 13 (21).
Subsection 16(6) of the Ministry of Agriculture, Food and Rural Affairs Act states:
Effect of appeal
- (6) Where, by virtue of subsection 25 (1) of the Statutory Powers Procedure Act, an appeal under subsection (1) or (2) operates as a stay in the matter, the Tribunal may limit or define the scope of the stay.
Position of Parties
Mr. Geoffrey Spurr told the Tribunal the DFO took the position that it was necessary for the Tribunal to define the scope of the stay of the DFO decision as IDD appeared to take the view that the stay allowed it to implement its export milk plan. Mr. Spurr argued that the stay should preserve the status quo, and since IDD was not engaged in exporting milk when the WTO decision was released, it could not export milk by virtue of the stay.
Mr. Donald Good argued that there was no need for the Tribunal to define the scope of the stay as IDD had ceased exporting milk. He also submitted that Mr. Spurr was asking the Tribunal to extend its authority to a matter not under appeal. Mr. Good said IDD had established its export plan on the theory that the WTO ruling did not apply to milk producers in the position of his suppliers. Mr. Good said IDD would consent to an order that the stay be eliminated.
Mr. Spurr said DFO did not object to the Tribunal eliminating the stay. Mr. Spurr and Mr. Good agreed that any Tribunal order on the stay in this matter should be limited to these parties only. It was pointed out that another milk exporter had initiated an appeal of the same DFO action.
On the request for an adjournment of the hearing, Mr. Good explained that he had recently been retained by IDD, had not had an opportunity to fully research his case and had a commitment to appear at another proceeding at the time the IDD appeal was to be heard. Mr. Good also suggested that the parties may be able to better define the matters under appeal to the Tribunal. He pointed out his client did not have legal representation when the appeal was initiated.
Mr. Spurr indicated that DFO would not oppose the request for adjournment if the Tribunal ordered the stay was no longer in effect.
Decision and Reasons
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The automatic stay resulting from the IDD appeal of the DFO decision dated March 14, 2003 is suspended as it affects these parties, IDD and DFO. This order does not affect the effect of the stay on other parties.
The Tribunal hearing in this matter, scheduled to commence Wednesday, April 23, 2003 is adjourned to a date to be determined by the General Manager/Secretary of the Tribunal, in consultation with the parties.
The reasons for this decision are:
Both parties consented to the order regarding the stay and the order that the hearing be adjourned.
The order regarding the stay should not prejudice any other party appealing the decision of the DFO.
Dated at Tilbury, Ontario the 17th day of April, 2003.