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:

Elite Swine Inc. et al. v Ontario Pork Producers' Marketing Board

Elite Swine Inc. et al. v OPPMB [Further to the October 28 Order] 2004 ONAFRAAT 42

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

December 16, 2004

DATE OF DECISION:

December 17, 2004

2004-42

NEUTRAL CITATION:

2004 ONAFRAAT 42

Elite Swine Inc. et al. v Ontario Pork Producers' Marketing Board [Further to the October 28 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: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Elite Swine Inc., Cold Springs Farm Ltd., Progressive Pork Producer’s Co-operative Inc., Selves Farms Limited and Synergy Services Inc. from a decision of the Ontario Pork Producers' Marketing Board (OPPMB) not to rescind its decision to increase the service charge on all Ontario hogs by $0.80 per hog in its Board Regulation 9-2004 Schedule B.

AND IN THE MATTER OF: Clarification and expansion of orders and undertakings regarding the treatment of confidential material.

Order of the Tribunal

The use and destruction of confidential material was considered on December 16, 2004 at a hearing of an appeal by Elite Swine Inc., Cold Springs Farm Ltd., Progressive Pork Producer’s Co-operative Inc., Selves Farms Limited and Synergy Services Inc. (the appellants) from a decision of the Ontario Pork Producers' Marketing Board (OPPMB) regarding its service fee.

Positions of parties:

All parties agreed that the appellants should continue to have access to confidential material that was filed with the Tribunal until the appeal and review avenues established in the Ministry of Agriculture, Food and Rural Affairs Act were exhausted. Mr. Foran, counsel to the respondent, asked the Tribunal to order that undertakings made by persons with access to confidential material be extended for as long as they had access to that material. All parties agreed that tapes of the proceeding held by the court reporter should be preserved for 30 days after the release of the Tribunal decision on the appeals.

Order of the Tribunal

Further to its decision of October 28, 2004 regarding privileged information, the Tribunal orders that:

1. Mr. Shapiro, representative of the appellants, is allowed to retain two copies of Exhibit 2, Exhibit 9 and Exhibit 11 filed at the proceeding and two copies of the restricted portions of the transcript of the hearing. One copy of these documents may reside with one of the five appellants; the other is to be kept in Mr. Shapiro's possession. Mr. Shapiro is to advise Mr. Foran, counsel to the respondent, as to where the appellant copy will be kept by the close of business December 17, 2004.

2. All other copies of Exhibits 2, 9, and 11, or parts thereof, all other copies of the restricted portions of the transcript and all notes pertaining to privileged information are to be destroyed or returned to Mr. Foran by December 23, 2004. Mr. Shapiro shall notify Mr. Foran that all copies of this confidential material have been destroyed or returned by the same date.

3. The privileged information provided by the OPPMB to Mr. Shapiro and his clients before the hearing, and any copies that were made of this material, shall be destroyed or returned to Mr. Foran by December 23, 2004. Mr. Shapiro shall notify Mr. Foran that all copies of this confidential material have been destroyed or returned by the same date.

4. The two copies of confidential exhibits and restricted portions of the transcript may be retained until 30 days after the Tribunal decision is delivered to the Minister. At that time they are to be destroyed or returned to Mr. Foran. Mr. Shapiro shall notify Mr. Foran that all copies of this confidential material have been destroyed or returned that same day. If the Minister opts to extend the time in which he may review the decision of the Tribunal in this matter, the date on which this confidential information is to be destroyed is extended accordingly.

5. The undertakings that were signed by parties to this proceeding, their representatives and the court reporter are to remain in effect while they have any or all of the above noted documents in their possession.

6. The court reporter is ordered to keep the tape of the proceeding confidential until such time as she is ordered to destroy it. Transcripts of the restricted portions of the hearing are not to be released except under order of the Tribunal.