Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone Road West Guelph, Ontario

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:Tribunal@OMAF.gov.on.ca

1, chemin Stone Ouest Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email:Tribunal@OMAF.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Zantingh Direct Inc. v Ontario Pork Producers’ Marketing Board

Zantingh Direct Inc. v OPPMB (RE) [Interlocutory Order] 2004 ONAFRAAT 24

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

June 24, 2003-May 25, 2004

DATE OF DECISION:

June 29, 2004

2004-24

NEUTRAL CITATION:

2004 ONAFRAAT 24

Zantingh Direct Inc. v Ontario Pork Producers’ Marketing Board [Interlocutory Order]

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 Zantingh Direct Inc. from decisions of the Ontario Pork Producers’ Marketing Board whereby it rejected Zantingh Direct Inc.’s recommendations for changes to its framework for buying/selling “off-sort” or “lightweight” hogs.

AND IN THE MATTER OF: A subsequent decision of the Ontario Pork Producers’ Marketing Board dated April 6, 2004 whereby it rejected Zantingh Direct Inc.’s “5% proposal”.

AND IN THE MATTER OF: A subsequent request by Zantingh Direct Inc. dated April 30, 2004 that the Agriculture, Food and Rural Affairs Appeal Tribunal reconvene the hearing into this matter to deal specifically with the Zantingh Direct Inc.’s “5% proposal”.

AND IN THE MATTER OF: A motion brought by Zantingh Direct Inc. requesting that the Tribunal order early disclosure of an expert’s report which is to be prepared for the Ontario Pork Producers’ Marketing Board and used at a hearing of an appeal by Zantingh Direct Inc. of a decision of the Ontario Pork Producers’ Marketing Board.

PROCEDURAL ORDER

Background

This Motion was brought to the Tribunal within the hearing from the appeal by Zantingh Direct Inc. (ZDI) from a decision of the Ontario Pork Producers’ Marketing Board (OPPMB/the Board) regarding “off sort” or “lightweight” hogs. The hearing, which commenced June 24, 2003 was adjourned May 25, 2004 to permit ZDI to revise its 5% proposal for consideration and agreement by the Ontario Pork Producers' Marketing Board.

The Motion was brought before a different panel of the Tribunal than that hearing the appeal. ZDI wished to establish a schedule for the disclosure of expert's reports, witness statements and the exchange of documents during the continuation of the hearing.

Before:

Terry Denison, Vice Chair; Doug Flook, Member.

Appearances:

Scott Snider, counsel to Zantingh Direct Inc.

Sean Foran, counsel to the Ontario Pork Producers' Marketing Board.

Submissions

Mr. Scott Snider submitted that his efforts to obtain documents from the OPPMB were frequently frustrated with vague or untimely responses from the Board. He submitted that it was extremely difficult for him to prepare to lead evidence in response to OPPMB submissions because the Board's position was not made clear to him, nor was it known what materials the Board would present is support of it's position. Mr. Snider stated that the reason for the adjournment to hear the present motion was a result of the Board's uncooperative stance.

Mr. Snider cited the occasion of the Board's request dated March 5, 2004 for ZDI's written proposal with respect to 'market clout'. He stated that a written proposal was provided to the Board but that the Board's response was limited to a one -sentence rejection of the proposal dated April 6, 2004. Mr. Snider said that on April 8, 2004 he wrote to the Board requesting disclosure of all issues the Board intended to raise in opposition to ZDI's 5% cap proposal and any additional issues it intended to raise at the hearing. Mr. Snider submitted that the response from the Board to this request was that Mr. Foran was out of the country and that a detailed response was not forthcoming until April 26, 2004.

Mr. Snider submitted that his client was prejudiced by the Board's lack of timely disclosure of materials and witness presentations during the hearing. Mr. Snider stated that the lack of disclosure necessitated his requests for adjournments to enable him to obtain materials and to seek clarification from the Board. Mr. Snider referred to the Tribunal's Rules of Procedure which provide for the disclosure of witness statements five days in advance of the hearing. Mr. Snider submitted that the timely disclosure he sought would reduce the time and cost of the hearing.

Mr. Foran told the Tribunal that the Board is not obligated to provide reasons for any of its policy decisions based on the vote of Board members. He stated that ZDI had appended issues to the 5% proposal at the hearing that were not initially before the Board and hence part of the ZDI appeal. He stated that in December 2003, the Tribunal had directed ZDI to go back to the Board for a decision with respect to its 5% proposal as it had not previously been determined by the Board in order to be properly before the Tribunal at the hearing.

Mr. Foran told the panel that the Board wished to expedite matters in order to obtain a speedy conclusion to the proceedings. He stated that ZDI continued to market hogs in key weight grades during the appeal. Mr. Foran told the panel that any new proposals introduced by ZDI during the hearing would have to be put before the Board for its determination, but that he was prepared to respond to any issues previously in submission before the Tribunal at the hearing.

Messieurs Foran and Snider were in agreement that the hearing would probably continue for no more than four days as indicated by the panel hearing it. They agreed to confer with their witnesses for dates available for the continuation of the hearing. All parties were available to continue during the week of September 27 to October 1, 2004.

ORDER OF THE TRIBUNAL

Upon hearing the submissions and evidence of the parties, the Tribunal orders that:

1. The request for relief as stated in the motion be granted with respect to:

i) At least thirty days prior to the commencement of the hearing, Zantingh Direct Inc. (hereinafter “Zantingh”) and the Ontario Pork Producers’ Marketing Board (hereinafter “Ontario Pork”) will exchange two copies, and deliver seven copies to the Tribunal, of all relevant documentary evidence and other materials of any kind whatsoever intended to be filed at the hearing as an exhibit.

ii) At least thirty days prior to the commencement of the hearing, Zantingh and Ontario Pork will exchange two copies, and deliver seven copies to the Tribunal, of experts’ reports for any expert either party intends to call at the hearing.

iii) At least thirty days prior to the commencement of the hearing, Zantingh and Ontario Pork will exchange two copies, and deliver seven copies to the Tribunal, of witness statements for each witness either party intends to call at the hearing.

iv) At least seven days prior to the commencement of the hearing, Zantingh and Ontario Pork will exchange and deliver to the Tribunal any reply documentation, experts reports and witness statements either party intends to produce in reply to the materials exchanged in accordance with items (i) to (iii).

v) Such further and other relief as council may advise and the Tribunal deems just and expedient.

2. The hearing which adjourned on May 25, 2004 is to continue on Monday September 27 and if necessary, on Tuesday September 28, Wednesday September 29 and Thursday September 30.