Cayers v. Dairy Farmers of Ontario, 2008 ONAFRAAT 8

Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1, chemin Stone Ouest

Guelph, (Ontario) N1G 4Y2

Tel: (519) 826-3433, Fax: (519) 826-4232

Email: appeals.tribunal.omafra@ontario.ca

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433, Téléc.: (519) 826-4232

Email: appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Cayers v Dairy Farmers of Ontario

Cayers v Dairy Farmers of Ontario 2008 ONAFRAAT 08

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

November 17, 2006

DATE OF DECISION:

March 25, 2008

2008-08

NEUTRAL CITATION:

2008 ONAFRAAT 08

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: A request that the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) review its decision of March 25, 2008 with regard to an appeal by John and Susanna Cayer of Ontario from a decision of the Dairy Farmers of Ontario (DFO) to deny a request for exemption from the November 17, 2006 Quota Policy on Transfer Assessments

AND IN THE MATTER OF: A motion made on July 29, 2008 by the DFO to the Tribunal with regard to the above mentioned request for review

Before:

Kirk Walstedt, Chair; Cor Kapteyn, Vice Chair; Rob Scouller, Member

Appearances:

Donald Good, counsel to John and Susanna Cayer

Geoff Spurr, counsel to the Dairy Farmers of Ontario

No witnesses were called during the hearing of this motion.

DECISION OF THE TRIBUNAL

Background

Vice Chair of the Tribunal, Marthanne Robson, in a Decision dated June 9, 2008 wrote:

“A written request for review was made by the DFO, dated April 21, 2008, supported by written submissions and documents. The Cayers made submissions in writing.

“The DFO submit that Mr. Denis Perrault, one of the panel members who heard the appeal, has an actual conflict of interest in the matter as a result of

a) his being an active dairy farmer;

b) the company under which he carries on his dairy farming business (Perrodale Farms LTD) was subject to regulatory action by the DFO, specifically by George MacNaughton, Director of Regulatory Compliance for the DFO, one of the witnesses at the appeal hearing; and

c) the findings of the Tribunal with respect to the granting of exemptions from the DFO transfer assessment policy place Mr. Perrault in the position of potentially personally benefiting from the Tribunal's ruling.

“The DFO also submit that the Tribunal in its decision strayed into policy considerations and found that there was a policy to grant exemptions to short-term but not long-term producers, contrary to the evidence presented.

“The DFO request that the decision of the Tribunal be set aside and that the matter be reheard by a new panel.

“The Cayers submit that the request for review should be dismissed as

a) the DFO did not object to the presence of Mr. Perrault at the hearing;

b) the DFO were aware or ought to have been aware (that) Mr. Perrault was an active dairy farmer;

c) the DFO's own documents disclosed that Mr. George MacNaughton, Director of Regulatory Compliance and a witness for DFO at the hearing, had corresponded directly with Mr. Perrault and Perrodale Farms, or had been copied on correspondence to Mr. Perrault/Perrodale Farms;

d) the Tribunal's comments with respect to policy were obiter, that is, not essential to the decision of the issue under appeal and should be deleted from the decision”.

In her decision, Vice-Chair Robson made the following Order:

“The request for review is accepted in part. This decision will be made available to the panel hearing the appeal, should they wish to avail themselves of Rule 29.01 to correct any misstatement or ambiguity in their written reasons.

“The review will be limited to the question of conflict of interest or reasonable apprehension of bias of Mr. Denis Perrault raised in the request for review. The matter shall be heard at an oral hearing by one member or a panel selected by the Chair, different from the original panel. The hearing shall be in the form of a motion as contemplated under Rule 25 of the Rules of Procedure…In accordance with practice in these matters, the Tribunal will request that Mr. Perrault provide a statement to the parties prior to the hearing”.

In response to this Decision, the DFO made a motion to the Tribunal that was heard on July 29, 2008 at 1 Stone Road West, in Guelph, Ontario.

In the Motion Record submitted to the Tribunal, the DFO sought:

1. An order setting aside and nullifying the decision of the Tribunal made in the matter of John and Susanna Cayer on March 25, 2008;

2. An order rescheduling the appeal of John and Susanna Cayer before a new panel of the Tribunal at a date and time to be determined;

3. Such further and other relief as the Tribunal may deem appropriate.

Statutory Jurisdiction for a Review:

Section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), as amended, grants to the Tribunal a discretionary power to review all or part of its own decisions and as part of such a review, the power to confirm, vary, suspend or cancel a decision.

The exercise of that power is conditional upon the Tribunal having provided for such a review in its own rules of procedure. The exercise of that power is also conditional upon the Tribunal determining that such a review is advisable.

The Tribunal’s Rules of Procedure:

Pursuant to section 25.1 of the SPPA the Tribunal has established Rules of Procedure that includes Rule 29 which is entitled “Review of A Decision”.

A request for review of this nature must comply with the requirements of Rule 29.07 which is reproduced below.

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 and facsimile number (if any) of the counsel or agent; and

(h) be signed by the requester.

Additionally, in the determination whether it is advisable that the Tribunal conduct a review, guidance is provided by Rule 29.09 which provides as follows:

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.

Issue

Did Denis Perrault have a conflict of interest or exhibit a reasonable apprehension of bias with regard to his participation in the Tribunal hearing of John and Susanna Cayer vs. Dairy Farmers of Ontario?

Preliminary Matters

At the beginning of the proceedings, Panel Member Rob Scouller disclosed to the parties that approximately 10 years ago, he was the Manager of Labour Relations with the Ontario Ministry of Agriculture and Food (OMAF). At that time, he was responsible for negotiating the transfer of a number of OMAF staff to the private sector. Mr. Scouller worked with many groups and individuals outside of the ministry on this project, including Mr. Peter Gould, who is now the General Manager of the DFO. Neither Mr. Good, nor Mr. Spurr raised any concerns or objections to Mr. Scouller remaining on the Panel and completing the hearing.

Geoff Spurr declared that he had worked together with Cor Kapteyn for the Ontario Broiler Hatching Egg & Chick Commission several years ago. Mr. Kapteyn acknowledged that he had worked with Mr. Spurr in the past. Mr. Good indicated that he had no concerns or objections to Mr. Kapteyn remaining on the panel.

Panel Chair Kirk Walstedt indicated that the panel was in receipt of a package of confidential documents from the DFO concerning Perrodale Farms. Geoff Spurr indicated that he did not intend to review the documents, or to mark them as exhibits, but rather wanted to demonstrate to the Panel what the material consisted of. Mr. Good indicated that he would treat the documents similarly.

Following the submissions, the Chair noted that the documents in question would therefore remain confidential and no further reference to them would be made during the proceedings.

The Evidence

Geoff Spurr

Geoff Spurr submitted that:

• the DFO motion dealt with apprehension of bias and conflict of interest that was perceived by DFO in the matter concerning John and Susanna Cayer;

• the motion dealt with a member of the Panel hearing the matter – Denis Perrault – who has a regulatory history with the DFO;

• Mr. Perrault did not identify himself at the outset of the hearing as a long term active producer;

• In a statement provided by Mr. Perrault concerning this matter, Mr. Perrault did not indicate that the panel hearing the matter had followed the Tribunal’s “Members’ Code of Professional and Ethical Responsibilities”;

• The Supreme Court of Canada Decision in the matter of Newfoundland Telephone Company Ltd. v. The Board of Commissioners of Public Utilities (1992) was the “legal high water mark” in determining the responsibilities of administrative boards. In part, the Decision states: “…the conduct of the members of the Board should be such that there could be no reasonable apprehension of bias with regard to their decision.”;

• The Supreme Court decision also addressed the consequence of a finding of bias on the part of an administrative board;

• Mr. Perrault had identified himself as a producer on the day of the hearing, but, had done so at the end of the day, after the hearing had ended;

• George MacNaughton is the DFO Director of Regulatory Compliance and the Director of Production;

• In an affidavit dated 11th of July, 2008, Mr. MacNaughton stated that at the end of the hearing, he approached Mr. Perrault, shook his hand and asked him where he farmed. Mr. Perrault identified himself as a dairy producer through Perrodale Farms. In his affidavit, Mr. MacNaughton testified that he subsequently undertook a search of DFO records of Perrodale Farms Ltd.;

• Ron Versteeg, a regional DFO director, was in attendance at the hearing;

• Mr. Perrault did not more clearly identify himself at the beginning of the hearing because he assumed that Mr. Versteeg knew him and his family. George MacNaughton’s affidavit states that Mr. Perrault is not at all known to Mr. Versteeg. Nor would Mr. Versteeg have any knowledge of Perrodale Farms Ltd. in terms of details concerning milk production and marketing;

• An apprehension of bias did exist in this matter, due to Perrodale Farms’ history of regulatory compliance; a conflict of interest is created because of the Tribunal’s original decision; such a conflict would not be apparent until the Decision was released; and

• In another recent Tribunal appeal – “The Denby Group v. DFO”, - Tribunal Vice-Chair John O’Kane recused himself from hearing the appeal on the grounds of a reasonable apprehension of bias. Prior to Mr. O’Kane’s decision to recuse himself, he had disclosed his concerns to all parties in the matter and had requested submissions from them. Submissions were received from counsel to the appellants.

Donald Good

Mr. Good chose not to call Ron Versteeg as a witness, noting that he had not been alerted to Mr. Versteeg’s presence at the hearing in advance.

Mr. Good submitted that:

• On the day of the original hearing, February 25, 2008, neither he, nor his clients knew the Panel members, including Denis Perrault;

• He agreed with Mr. Spurr that it would have been preferable for Mr. Perrault to have identified himself more clearly;

• His clients had agreed going into a pre-hearing conference related to the appeal that they would focus on the medical grounds of the appeal and not attack the policy per se;

• Another Tribunal hearing on this matter would prejudice the Cayers in terms of additional costs;

• The onus was on the DFO to raise the concern of a possible apprehension of bias as soon as possible;

• the DFO should have objected at an earlier stage of the appeal process as it was not appropriate to wait until a decision was released before raising an objection;

• Neither Mr. Perrault, nor Perrodale Farms would benefit from the original Cayer decision; evidence would have to be established that Perrodale was trying to exit the industry, which was not the case; and that, in fact, DFO had changed the ability of farmers to seek exemptions; and

• No evidence was submitted by DFO that Mr. Perrault decided the case on the basis of bias, nor was there anything on the record that Mr. Perrault did anything during the hearing to suggest bias.

Geoff Spurr, In Reply

In reply, Mr. Spurr testified that:

• Mr. Perrault does not need the Cayer decision to ask for an exemption, but, it gives him a “leg up”;

• He agreed that there was no evidence that Mr. Perrault’s actions showed bias, but, maintained that this was not the issue at hand;

• If Mr. Perrault had disclosed at the beginning of the hearing then the parties, including the DFO, would have had the opportunity to ask questions; this was denied to DFO; and

• He and his client understood submissions relative to the Cayers themselves, but, submitted that should not be the test that the law says is appropriate in this matter.

Tribunal Reasons/Findings

The Tribunal is in agreement with Vice Chair Robson in her Decision of June 9, 2008 where she states that, “The issues of conflict of interest and reasonable apprehension of bias are questions of law which go to the jurisdiction of the Tribunal. Allegations of conflict of interest or reasonable apprehension of bias must always be considered seriously”.

The Tribunal notes the following excerpts from the Tribunal’s “Members’ Code of Professional and Ethical Responsibilities”

1. The Code sets out the standards of conduct governing the professional and ethical responsibilities of Members of the Agriculture, Food and Rural Affairs Appeal Tribunal. The standards cover the primary areas of Member responsibility – the conduct of hearings and decision-making – as well as the institutional responsibilities of Members to their colleagues, the Tribunal Chair, and the Tribunal itself.

2. The Code recognizes the fundamental and overriding responsibility of Tribunal Members to maintain and enhance the integrity, competence and effectiveness of the Tribunal…

3. The Code applies to all Members of the Tribunal: the Tribunal Chair, Vice-Chairs and Members…

4. The Tribunal depends on its Members to ensure that its decisions are impartial, fair and just, and are perceived as such.

5. Members shall conduct themselves so that public confidence in the integrity, objectivity and impartiality of the Tribunal is maintained and enhanced.

6. Any conflict between the private interests of a Member and his or her official duties and responsibilities shall be resolved in favour of the public interest.

7. A conflict of interest is any interest, relationship, association or activity that may be incompatible with the Member’s obligations to the Tribunal. A conflict of interest arises when a Member's private or personal interest may take precedence over or compete with his or her responsibilities as an appointee. A conflict of interest may be real, perceived or potential. A conflict of interest may be pecuniary and/or non-pecuniary.

8. A pecuniary conflict of interest exists where a Member has a financial interest that may be affected by the resolution or treatment of a matter before the Tribunal. The financial interest may be that of the Member, or of a family member or other person with whom the Member has a close personal or professional relationship.

9. Bias is a lack of neutrality or impartiality on the part of a decision-maker regarding an issue to be decided. A biased decision-maker is one who is predisposed to decide a case on the basis of considerations extraneous to the evidence or the applicable law, policy or argument made in the case.

10. It is the responsibility of each Member to consider and inquire into any circumstance which might suggest a possible conflict of interest or reasonable apprehension of bias. The Member may at first be the only person in a position to recognize this. As soon as such a possibility is identified, the Member should take appropriate steps….

The Tribunal finds that despite the fact that DFO raised the issue of possible conflict of interest or a reasonable apprehension of bias of Mr. Perrault following the issuance of the March 25, 2008 Tribunal Decision, it is without doubt the responsibility of each individual member to determine whether they have a conflict of interest or a reasonable apprehension of bias and to declare either prior to the hearing or to raise it with the parties at the commencement of the hearing, such as Mr. Scouller did at the beginning of this hearing.

The Tribunal finds that the Supreme Court of Canada, in the case cited above provides clear direction for adjudicative and other administrative tribunals on matters related to reasonable apprehension of bias. Specifically, the Supreme Court Decision states: “It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts”.

The Tribunal finds that although Mr. Perrault did introduce himself as a dairy producer, he did so following the conclusion of the hearing which did not provide either party with the opportunity to address any issues or ask any questions they may have had with respect to his activities as a producer which could affect his ability to make an unbiased decision.

The Tribunal believes there was no intent on the part of Mr. Perrault to either gain an advantage for himself in the decision, or to mislead the parties in any way. However, the Tribunal finds that as a result of Mr. Perrault not fulfilling his responsibility to disclose his business relationship with the DFO, as is required by the Members Code of Professional Conduct, the public’s confidence in the integrity, objectivity and impartiality of the Tribunal could reasonably be brought into question.

Order

The Tribunal Orders that the Tribunal’s Decision of March 25, 2008 in the matter of John and Susanna Cayer v. Dairy Farmers of Ontario, be set aside and nullified. The Tribunal will assign a new Panel to re-hear this matter.