Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: Tribunal@OMAF.gov.on.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 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: Ramsay et al. v Dairy Farmers of Ontario Ramsay et al. v DFO [Prehearing Conference] 2004 ONAFRAAT 08

STATUTE: Ministry of Agriculture, Food and Rural Affairs Act

HEARING: September 3, 2003

DATE OF DECISION: February 25, 2004

2004-08

NEUTRAL CITATION: 2004 ONAFRAAT 08

RAMSAY ET AL

PREHEARING CONFERENCE DECISION

IN THE MATTER OF THE MILK 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 dairy farmers:

Carl Ramsay and Martha Ramsay, Napanee, ON, Jacqueline Fennel, Spencerville, ON, Tom Callahan, Corbyville, ON, Betty Denby, John Denby and William Denby, Sunderland, ON, Isobel Hope, Wayne Hope and Steve Hope, Keene, ON, Dale McFeeters, Woodville, ON, Ken Durham and Richard Durham, Smithville, ON, from a decision of the Dairy Farmers of Ontario dated September 3, 2003 by which it decided not to vary its over-quota payment policy which provides that:

1. Milk producers who ship in excess of 103% of their quota allotment are not paid for that portion of milk that is shipped in excess of 103% of their quota holdings;
2. Proceeds of the sale of milk shipped in excess of 103% of quota individual producers’ quota holdings are distributed to all quota holding milk producers.

AND IN THE MATTER OF:

A pre-hearing motion by the dairy farmers Ramsay et al, for:

1. An Order pursuant to Sections 1.03, 1.06 and 1.08 of the Rules of Procedure of this Tribunal incorporating the Class Action procedures under the Rules of Civil Procedure into the procedures of this Tribunal for the sole purpose of this appeal, subject to any required amendments specific to this appeal.

2. An Order certifying the named Appellants as the Representative Appellants in this Class Action appeal before this Tribunal in this appeal.

3. An Order requiring DFO to incorporate into its website and monthly publications the Notice set out in Appendix A to this Notice of Motion.

4. An Order requiring within 30 days of the cut off date in the Notice referred to in paragraph 3, to provide the Solicitor for the Representative Appellants with the following information:

a) Names and addresses of the Participating Farmers;

b) The quantity of milk purchased and/or picked up by DFO from the Representative Appellants and Participating Farmers from January 1, 2003 to the information being current;

c) A monthly report on each Representative Appellant and Participating Farmer to the month prior to the hearing;

d) The data on all milk sold by class from January 1, 2003 to date and updated monthly to the date of the hearing.

5. An Order requiring the solicitor for the Representative Appellants and participating Farmers to keep the data and information received under paragraph 4 strictly confidential, except as may be required to be disclosed at the hearing of this Appeal.

6. An Order that the stay provisions in Section 16 of the OMAFRA Act shall have no effect on this Appeal.

7. An Order that the Respondent DFO provide disclosure of all documentation by February 29, 2004, including the data and information in paragraph 3.

8. An Order that the Appellants shall file an Expert Report, if required, on the appropriate level of compensation by April 1, 2004.

9. An Order that the Respondent DFO shall have 30 days from receipt of the Appellants’ Expert Report to complete and file any Expert Report required by the Respondent. The Respondent shall also disclose any additional documents and file witness statements of its intended witnesses by the same date.

10. An Order that the Appellants shall disclose all documentation to be relied on at the hearing and witness statements by April 1, 2004.

11. An Order that the hearing of this matter shall be held at a mutually agreeable time in Guelph but not earlier than 30 days after the Respondent’s time for its Expert Report has expired.

12. An Order that the solicitor, Donald R. Good, P.Ag., be appointed the Solicitor of Record for this Class Action on the basis of the Legal Services Agreement attached hereto at Appendix B.

Before: Andrew Osyany, Vice Chair; George Klosler, Member.

Appearances: Donald Good, counsel on behalf of the appellants Ramsay et al. Geoff Spurr, counsel on behalf of the respondent, Dairy Farmers of Ontario.

DECISION OF THE TRIBUNAL

These pre-hearing motions were heard at Guelph, Ontario on Wednesday December 10, 2003. The appellants wished the Tribunal to hear their appeals in the manner afforded Class Action suitors from their appeals from the decision of the DFO not to review its policy for payment of quota and non-quota milk. The appellants requested that the Tribunal use its discretion under the Statutory Powers and Procedures Act (SPPA) to invoke the provisions of the Rules of Civil Procedure, to hear their appeals as a Class Action Suit.

Relevant Statutes and Rules

This appeal comes to the Tribunal by way of the Ministry of Agriculture, Food and Rural Affairs Act. The relevant subsections of the Act are reproduced below:

Idem

16 (2) Subject to subsections (4) and (5), if a person is aggrieved by an order, direction, policy, decision or regulation made under the Farm Products Marketing Act by a local board or under the Milk Act by a marketing board, that person may appeal to the Tribunal by filing with the Tribunal and sending to the local board or marketing board written notice of the appeal. R.S.O. 1990, c. M.16, s. 16 (2).

Tribunal may refuse to hear appeal

16 (4) The Tribunal may refuse to hear the appeal or, after a hearing has commenced, refuse to continue the hearing or make a decision if it relates to any order, direction, policy, decision or regulation of which the appellant has had knowledge for more than one year before the notice is filed under subsection (1) or (2) or, if in its opinion,

(a) the subject-matter of the appeal is trivial;

(b) the appeal is frivolous or vexatious or is not made in good faith; or

(c) the appellant has not a sufficient interest in the subject-matter of the appeal. R.S.O. 1990, c. M.16, s. 16 (4).

Conditions for appeal

16 (5) No appeal may be taken from an order, direction, policy, decision or regulation of a local board or a marketing board unless,

(a) the appellant has first applied to the local board or marketing board for a hearing and the local board or marketing board has refused to grant, in whole or in part, the relief requested by the appellant or has not decided the matter within sixty days of the application for a hearing; or

(b) the appellant and the local board or marketing board have waived their respective rights under clause (a) in writing. R.S.O. 1990, c. M.16, s. 16 (5).

Rule 1.08 of The Tribunal Rules of Procedure states:

Matters not provided for by these rules

1.08 Where any matter of procedure is not provided for by these rules, the Rules of Civil Procedure may be followed where the Tribunal determines they are appropriate.

Background

The DFO policy of zero-payment for category milk shipments in excess of 103% of quota came into effect on April 1, 2003. A group known as Dairy Farmers For Justice (now Ramsay et al.) appeared before the DFO Quota Committee on June 24, 2003 to request that the Board change its new milk payment policy. In a decision dated September 3, 2003 the DFO denied the request of Ramsay et al.

The producers, Ramsay et al. appealed to the Tribunal from the new DFO milk payment policies. The group of appellants was made up of quota holding and non quota holding producers, who marketed their milk through the DFO. The purpose of the pre-hearing motions was to request that the Tribunal hear the matter as a Class Action Suit and to prescribe the manner in which dairy producers could remove themselves from involvement in the appeal.

Position of Parties

Mr. Good, counsel to the appellant group, submitted that the appellant group were aggrieved by the decision of the DFO not to change its policy on over quota milk payments. He maintained that the new policy was tantamount to expropriation of the milk and there existed no legal authority for the payment policy under the Milk Act. Mr. Good told the Tribunal that the new policy was inequitable to both non quota holding producers and quota holding producers. He stated that some of the appellants held quota and some did not. Mr. Good submitted that the appellants wished to represent all dairy farmers in Ontario.

Mr. Good submitted that Rule 1.08 of the Tribunal's Rules of Procedure provided for the Tribunal adopting the Rules of Civil Procedure. He asked that the Tribunal make such a ruling to consider the appeal of Ramsay et al. a Class Action Suit. He stated that all dairy producers should be included in the action unless they specifically declined to have their interests thus represented. Mr. Good said that it was imperative that the Tribunal attach the weight that he had interpreted from its Rules with regard to it being incumbent on the Tribunal to decide to adopt the Rules of Civil Procedure in the matter if it determined that to do so was appropriate.

Mr. Good proposed that should the Ramsay et al. pre-hearing be conducted as a Class Action Suit under the Rules of Civil Procedure he would divide the appellant group into two sub-classes; those producers who hold quota and those who do not hold quota. He stated that should the Tribunal find for the appellants, he might expect that a Tribunal panel member be appointed to preside over the procedural and organizational aspects of the hearing as a judge is similarly appointed in court proceedings pertaining to Class Action suits. Mr. Good stated that the motion also sought to address the issues of notifying all producers of the suit, and to set dates for producers to withdraw from the process as all producers would be included in the Class Action Suit unless they specifically declined. Mr. Good told the Tribunal that he moved to devise a mechanism that waived the hearing of producer appeals before the DFO before proceeding to the Tribunal as provided for in Section 16 (5) a and b of the Ministry of Agriculture, Food and Rural Affairs Act.

Mr. Good asked the Tribunal to consider his proposal for his appointment as legal representative to the dairy producers. He stated that the fees for legal representation might be based on the amount of milk each producer markets as his/her portion of the service provided.

Mr. Good stated that he was in agreement with counsel for the DFO regarding the stay of the matter under appeal. He said that the a stay of the decision of the DFO was not practical in this matter. He said that the DFO would have to pay the producers for over quota milk and then return the milk and attempt to get reimbursement for the milk back from the producers.

Mr. Good replied to a question with regard to his proposed classes of appellants, that the appeal sought to reimburse quota holding producers for all milk marketed through the DFO above quota but, non quota holding producers would not seek compensation.

Mr. Good submitted to the Tribunal drafts of the motion Appendices A and B, which state his proposals on the legal representation, billing of legal fees and procedure for managing a Class Action Suit. Mr. Good cited cases from his brief, of authorities from decisions from Ontario Court and the Schapelhouman et al. appeal, that was decided by the Tribunal.

Mr. Good submitted the affidavit of a dairy producer, Mr. Bill Denby, in support of the motions for hearing the matter as a Class Action suit, naming a solicitor of record, stating the matter under appeal and indicating the number of appellants whose interests might be represented by the appeal.

Mr. Spurr, counsel to the DFO, said that the motion was opposed by the DFO. He stated that none of the appellants grouped as Ramsay et al., were in attendance at the DFO hearing on the matter held June 24, 2003, though he would not necessarily exclude the Ramsay et al. group of producers from being considered as making the same appeal as was heard by DFO that day. Mr. Spurr said that the affidavit of dairy producer Bill Denby, firmly identified him as the only appellant to date.

Mr. Spurr stated that he represented the respondent in the Schapelhouman et al appeal. He said that the matter illustrated how an appeal can be brought to the Tribunal by a group of appellants organized and represented by an agent. He said that similar circumstances pertained to Ramsay et al. making the application of Rules of Civil Procedure inappropriate.

Mr. Spurr argued that the Tribunal does not have the jurisdiction to award costs so that it was not necessary for the Tribunal to consider a schedule of legal fees for the appellant group. He suggested that the Dairy Farmers For Justice pay for any legal representation by Mr. Good.

Mr. Spurr said that contrary to Mr. Good's interpretation; there is no imperative requirement governing the manner in which the Tribunal conducts a hearing, but that the SPPA from which the Tribunal derives it own rules and jurisdiction, provides for a discretionary application of the provisions of the SPPA. Mr. Spurr stated that several proceedings are provided for under the SPPA, but that the Class Action procedure is not among its provisos. Mr. Spurr cited the appeals of Denby, Hope and McFeeters, a group of appellants whose grievances were recently heard by the Tribunal. He said that the DFO consents to responding to Ramsay et al in a common hearing before the Tribunal. He stated that under the Rules of Civil Procedure, parties were litigants and as such the body hearing the case could award costs to the successful litigant. Mr. Spurr submitted that the Tribunal has no authority to award costs or damages.

Mr. Spurr said that the appellants sought to add to the group Ramsay et al. but that Mr. Denby should not be considered within the group as his interests were in conflict due to numerous appeals by him that were dismissed by the Tribunal.

Mr. Good replied to Mr. Spurr's submission that he wished to provide a mechanism for producers who did not wish to be included in the appeal. He said that he cited the Schapelhouman case as one in which there was no provision for non-inclusion of producers.

Mr. Good said that he did not advocate converting a Tribunal hearing to a court proceeding but that he was requesting that the Tribunal rely upon the Rules of Civil Procedure wherever it deemed it appropriate to do so. He argued that the Tribunal Rule 1.08 provided for the Tribunal to determine to apply the Rules of Civil Procedure. Mr. Good stated that he was prepared to concede representing the appellants if they chose another agent. Mr. Good said that both the Tribunal Rules of Procedure and the Rules of Civil Procedure stated that the most efficient and cost effective methods of disposing of cases should be employed. He said that his motion did not seek to resolve the merits of the appeal but to establish the most cost effective system of organizing a multi-appellant hearing. He said that the procedural organization is not connected to the issues under appeal. He asked that the Tribunal assume the role of the administrative magistrate so that unfamiliarity with the process of managing a large appellant group, would not prejudice the outcome of the appeal by error of process, against the appellants. Mr Good stated that as provided for in the SPPA, this was clearly an occasion to invoke the Rules of Civil Procedure to manage the appeals.

The Tribunal considered the motions, and reply by the DFO and decided to dismiss the motions in regard to Items 1 to 5 and 12. The parties were verbally informed of the decision with written reasons to follow.

Reasons for Decision

Importing Class Action Provisions into Tribunal Proceedings

The jurisdiction of the Tribunal is based upon the enabling statutes. The Tribunal has no inherent jurisdiction apart from what the statutes have granted. In any event, there is no common law right to Class Action Suits. In Ontario class actions were created by the Class Proceedings Act, 1992. That Act enables class actions to be commenced only in the Ontario Court (General Division).

The Rules of Civil Procedure deal with the procedure to be followed in Class Action Suits, but the Rules of Civil Procedure cannot confer jurisdiction on the Tribunal, or any other body, to adjudicate class actions. The Rules of Civil Procedure deal with numerous diverse matters, but that does not mean that every matter mentioned in the Rules of Civil Procedure may be imported into Tribunal procedure, simply because of the wording of Rule 1.08 of the Tribunal Rules of Procedure. One needs only to look at provisions dealing with summary judgement, default, mandatory mediation, counterclaim, cross-claim, third party claim, medical examination of parties, appointment of receiver, enforcement of orders and the myriad particular proceedings, payment into court, to test the validity of the previous proposition.

Because of the clear lack of jurisdiction, this panel does not need to deal with the broader considerations as to whether the class action proceedings should be imported into Tribunal proceedings, if there were such discretionary power.

Agreements Between the Appellants and Respondent.

The parties agreed to a number of procedural matters. The panel requested that Mr. Good draft the order for circulation to the respondent and panel, as he was already in possession of his motion format, and that the approved draft would be incorporated into the decision. This panel has added a time limitation for additional appellants joining in the appeal. The Tribunal accepts the submissions of the parties to waive their respective rights to a hearing before the DFO in order to qualify to be part of this appeal, provided all additional intended appellants, comply with the provisions of paragraph 4 of this order.

ORDER OF THE TRIBUNAL

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

1. That pursuant to the provisions of the Ministry of Agriculture, Food and Rural Affairs Act, s. 16, the decision of Dairy Farmers of Ontario, dated September 3, 2003 shall not be stayed, and that this order shall be effective retroactively to the time the appeal was brought to the Tribunal.

2. That the appellants shall file an Expert Report, if required, on the appropriate level of compensation and all documentation relevant to the case not agreed upon, between the appellants and the respondent by April 1, 2004.

3. That the respondent shall have 60 days from receipt of the appellants' Expert Report to complete and file any Expert Report required by the respondent. The respondent shall also disclose any additional documents and shall file witness statements of its intended witnesses by the same date.

4. That the appellants shall disclose all documentation to be relied on at the hearing and witness statements by May 1, 2004.

5. That the hearing of this matter shall be held at a mutually agreeable time in Guelph, but earlier than 60 days after the respondent's time for its Expert Report has expired.

6. The respondent shall be deemed to have waived the requirement of other farmer appellants to attend a hearing before DFO in order to qualify to be part of this appeal, provided they are in compliance with paragraph 4 of this Order.

7. That this Tribunal has no jurisdiction to entertain Class Action Suits.

Dated at Shelburne, Ontario this 25th day of February, 2004.