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:
Berendsen v Dairy Farmers of Ontario
Berendsen v Dairy Farmers of Ontario [Second Request for Review] 2005 ONAFRAAT 04
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
July 23, 2004
February 4, 2005
2005-04
NEUTRAL CITATION:
2005 ONAFRAAT 04
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: A second 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:
Rod Stork, 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. He sought an extension of the quota loan on humanitarian grounds, due to the financial impact of ongoing litigation with the Crown regarding asphalt on his farm.
In a decision dated August 16, 2004, the Tribunal denied Mr. Berendesen's 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”.
Subsequently, Mr. Berendsen asked the Tribunal to review its decision on the grounds that new evidence had come to light, which directly affects the Tribunal decision. In a decision dated September 24, 2004 the Tribunal denied the request to review its decision. Its reasons for declining to review the decision were:
"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."
"There was no evidence that the Tribunal made any material error of law or fact in hearing the original appeal."
On December 8, 2004, the Tribunal received a second request that it review its decision of August 16, 2004 from Mr. Berendsen. Mr. Berendsen claimed that the DFO was in a conflict of interest on the issue because the DFO and the Attorney General of Ontario had met to discuss a court challenge regarding the Georgian Bay Milk Company, and he understood the Attorney General of Ontario was representing the DFO in that matter. Mr. Berendsen pointed out that he was involved in a court case against the Crown.
Mr. Berendesen also pointed out that it was the DFO that had originally advised him to file a claim against the Crown.
Mr. Berendsen suggested the Tribunal was also in a conflict of interest as it is connected with the Ontario Ministry of Agriculture and Food.
Criteria for Review
The Tribunal's Rules of Procedure provide that the Tribunal will only consider one request for review of a final decision, unless the Chair allows otherwise.
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.
The criteria considered by the Tribunal in evaluating a request for review are outlined in Rule 29.09:
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.
Information considered in this review
For purposes of this review, I was provided with and considered the following:
Letter to the Tribunal by Mr. Berendsen dated December 5, 2004, with attachments (4)
Decision of the Tribunal dated August 16, 2004
Decision of the Tribunal dated September 24, 2004
The Findings
The appellant in this matter takes the position that because of circumstances developing over time, he feels that the Tribunal is in a conflict of interest with regard to his appeal and his request for a review of the Tribunal decision.
Decision and Reasons
After careful consideration of the evidence filed the Chair of the Tribunal has decided not to grant leave to consider a second request for a review of the Tribunal's decision dated August 16, 2004 regarding an appeal by Mr. Ben Berendsen from a DFO decision regarding the loan of milk marketing quota.
The reasons for this decision are:
There was nothing substantial in the request and supporting documentation provided by the applicant to warrant a review of the Tribunal decision on the Berendsen appeal (decision dated August 16, 2004).
The Tribunal has already considered and rejected one request for a review of its decision in this matter. The Chair was not satisfied that this case warranted the consideration of a second request for review.
Dated at Guelph, Ontario this 4th day of February, 2005.