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:

Berendsen v Dairy Farmers of Ontario

Berendsen v DFO [Request for Review] 2004 ONAFRAAT 31

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

August 16, 2004

DATE OF DECISION:

September 24, 2004

2004-31

NEUTRAL CITATION:

2004 ONAFRAAT 31

Berendsen v Dairy Farmers of Ontario [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 by the appellant, Ben Berendsen, that the Agriculture, Food and Rural Affairs Appeal Tribunal review its decision dated August 16, 2004 on his appeal from a decision of the Dairy Farmers of Ontario (DFO) to deny a request that he be allowed the continued use of 10 kg of milk quota.

Before:

Murray Cardiff, Chair

DECISION OF THE TRIBUNAL

Background

An appeal by Mr. Ben Berendsen was heard by the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) in Guelph, Ontario on July 23, 2004. The Dairy Farmers of Ontario (DFO) had given Mr. Berendsen the use of 10 kg of milk quota, at no cost, for a limited time. The loan had expired in June 2004 and Mr. Berendsen sought to have the continued use of 10 kg of quota for at least one more year. Mr. Berendsen was involved in litigation concerning the presence of asphalt on one of his farms. He sought an extension of the quota loan on humanitarian grounds, due to the financial impact of the ongoing litigation.

The Tribunal issued its decision in this matter on August 16, 2004. The Tribunal denied the appeal citing as its reason that “it is not the explicit mandate or responsibility of the DFO to alleviate the financial difficulties of individual milk producers”.

Mr. Berendsen sought to have this decision reviewed on the grounds that new evidence had come to light which directly affects the Tribunal decision. He also sought an order that the DFO disclose information related to humanitarian relief given to other dairy farmers.

Criteria for review

The Tribunal’s Rules of Procedure, provide for a review in Rule 29, which for convenience is reproduced here:

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 calendar days of the date of the final decision or order.

29.11 A request for review received after the expiry of the thirty calendar 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 seven business 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 three business 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.

29.25 A review shall be conducted by a panel of the Tribunal designated by the Chair.

29.26 On a review the Tribunal may confirm, vary, suspend or cancel the final decision or order under review.

Information considered in this review

For purposes of this review, I was provided with and considered the following:

1. Letter to the Tribunal dated AU 25 04 from Mr. Donald R. Good, counsel to Mr. Berendsen

2. Letter to the Tribunal dated AU 27 04 from Mr. John W. Karn, Secretary to the DFO

3. Letter to Gordon Coukell, Chairman, DFO dated AU 16 04 from Ben Berendsen (attached to the letter referenced in point 2)

4. Letter to Mr. Berendsen dated AU 23 04 from Mr. John W. Karn, Secretary to the DFO

5. Letter to the Tribunal dated AU 30 04 from Mr. Donald R. Good, counsel to Mr. Berendsen

6. Letter to the Tribunal dated SE 01 04 from Mr. John W. Karn, Secretary to the DFO

The Findings

Based on my review of the aforementioned documents, the decision of the Tribunal dated August 16, 2004, and the Notice of Hearing for this proceeding, I have come to the conclusion that there was no new evidence brought forward that was not available at the time of the original appeal. It is clear from the letter to Mr. Coukell, dated August 16, 2004 that Mr. Berendsen and his counsel were both aware that at least one other dairy producer had been loaned quota by the DFO, although they did not know the name of the producer. I find that their not knowing this person’s name would not have made any difference to the outcome of the appeal. I also note that, if the appellant in the original appeal felt that the name of this person, or any other information regarding humanitarian relief provided by the DFO was relevant, he could have sought an order for disclosure before the hearing of the original appeal.

Having regard to the findings, decision and reason of the panel that heard the original appeal, I do not accept the argument that the evidence that the appellant now seeks to bring forward would have changed its decision in this matter. That panel recognized that the DFO had given assistance to individual dairy farmers, including Mr. Berendsen, in the past. That panel found that notwithstanding past DFO practices it was not it’s explicit mandate or responsibility to provide assistance to individual dairy producers.

Decision and Reasons

After careful consideration of the evidence filed and submissions made, the Tribunal has decided to deny the request that it review its decision of August 16, 2004.

The reasons for this decision are:

1. No new evidence was presented that was not available at the time the original appeal was heard. Information on past humanitarian assistance provided to producers could have been obtained at or prior to the hearing.

2. There was no evidence that the Tribunal made any material error of law or fact in hearing the original appeal.