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

[Cost Benefit Order] 2004 ONAFRAAT 43

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

December 15, 2004

DATE OF DECISION:

December 17, 2004

2004-43

NEUTRAL CITATION:

2004 ONAFRAAT 43

Elite Swine Inc. et al. v Ontario Pork Producers' Marketing Board [Cost Benefit 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: A request by the appellants for an order that the OPPMB be required to produce documents showing its risk analysis related to becoming a mandatory respondent in the U.S. trade action.

Order of the Tribunal

This request was made on December 15, 2004 at a hearing of the 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:

Mr. Shapiro asked the Tribunal to order the OPPMB to produce its risk analysis related to becoming a mandatory respondent. He argued that the risk analysis was relevant because it was mentioned by Mr. Larry Skinner, an OPPMB witness, under cross examination.

Mr. Foran objected as he said the question of becoming a mandatory respondent was not identified as a ground for appeal until the first day of the hearing, so the OPPMB would not have disclosed documents related to its efforts to be made a mandatory respondent, if any existed. He said if the appellants did not object to the decision that the OPPMB took regarding the mandatory respondent issue, then the information requested was not relevant to the appeal.

Mr. Shapiro clarified that he was not arguing that the information should have been disclosed earlier. He said that the existence of documentation of risk analysis undertaken by the OPPMB would reflect on whether he OPPMB had used due diligence in making its decision. He said board governance was a relevant issue.

Ruling:

The Tribunal reminds both parties that this is a hearing de novo.

The Tribunal is charged with the responsibility of making a decision about the appropriateness of fees levied by the OPPMB to fund its defense of the U.S. trade action.

The Tribunal cannot turn back the clock six months and reverse either the decision to seek a mandatory respondent status or to enter into the legal defense itself.

With this in mind, information discussed by the OPPMB when reaching its decision is of little use to the Tribunal in its decision making process. As the Tribunal stated in its comments of November 25^th - we are not even going down the road as to whether there was incompetence or mismanagement on the part of the OPPMB, as any wrongs that may have been committed are righted through the hearing de novo process.

The motion to have information related to cost benefit analysis released, if it exists is denied.