Chesterman Farm Equipment Inc. v. CNH Canada Ltd., 2009 ONAFRAAT 6

Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone Road West

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

1 Stone Road West

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

Courriel : appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Chesterman Farm Equipment Inc. v. CNH Canada Ltd.

CFEI v. CNH 2009 ONAFRAAT 6

STATUTE:

Farm Implements Act

HEARING:

DATE OF DECISION:

March 19, 2009

2009-06

NEUTRAL CITATION:

2009 ONAFRAAT 6

IN THE MATTER OF THE FARM IMPLEMENTS ACT, AND 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 (Tribunal) by Chesterman Farm Equipment Inc. (“CFEI”), of Tillsonburg, Ontario, from a decision of CNH Canada Ltd. (“CNH”);

AND IN THE MATTER OF: a Pre-hearing Conference pursuant to Rule 24 of the Tribunal’s Rules of Procedure;

Before:

John O’Kane, Vice Chair

Appearances:

Dave Chesterman, representative on behalf of the appellant, CFEI

John May, counsel for the appellant, CFEI

Toby Jefferies, on behalf of the respondent, CNH

Stuart Mackay, counsel for the respondent, CNH

Donald Good, counsel for the Intervener Association of Equipment Manufacturers (“AEM”)

Shashu Clacken, counsel for the Intervener John Deere Limited (“JDL”)

DECISION OF THE TRIBUNAL

The Pre-hearing Conference in this matter, adjourned from May 18^th, 2008, was continued in the Tribunal Boardroom, in Guelph, Ontario, on Wednesday, March 18^th, 2009.

While several issues had resolved before the Pre-hearing continued, two contentious issues remained. The first related to the Intervener JDL filing additional documentary evidence and what, if any, restrictions ought to govern that evidence. The second related to a series of questions arising during the CFEI examination for discovery of CNH about information CNH relied on from AEM.

Issue 1:

On March 4^th, 2009, Counsel for JDL wrote the Tribunal and all other counsel indicating that JDL proposed to file “confidential documents” by April 20, 2009, and wished to address protecting the confidential documents by a confidentiality agreement.

The day before the continued Pre-hearing, Counsel for JDL circulated a draft form of Confidentiality Order and Confidentiality Undertaking.

Counsel for CFEI raised a concern that addressing confidentiality of the JDL documents was premature. It is premature because in paragraph 1(a) of the Tribunal’s May 16^th, 2008, Order, the Intervenor parties were to file any documentary evidence they intended to rely on before November 1^st, 2008. On October 30^th, 2008, Counsel for JDL had circulated to all parties and the Tribunal their Document Book and “will-say statement”. The “confidential documents” referred to in JDL’s March 4^th, 2009 letter are materials yet undisclosed to the parties. Therefore, before considering confidentiality we must first address JDL’s entitlement to file evidentiary material at this time.

I directed that if JDL wished to rely on documentary evidence not yet served and filed in accordance with the Tribunal’s Order, it should first bring a motion under Tribunal Rule 25 for leave to serve and file that material. If JDL considers the documentary evidence sensitive and wants access to it restricted, then confidentiality and access issues can be addressed in the context of JDL’s motion, in the event leave is granted.

In addition to Tribunal Rule 25, I direct JDL to Tribunal Rule 23 regarding requests for restricted access.

Issue 2:

CNH alleges it terminated CFEI’s dealer agreement because CFEI failed to maintain a level of market share for farm equipment sales in its territory.

On discovery, Counsel for CFEI asked CNH’s representative questions about how CNH determined CFEI’s market share.

CNH’s evidence was that it relied on data obtained from AEM.

CFEI then inquired of AEM about the market data. AEM refused to provide CFEI with the information requested.

Although an Intervenor party, AEM has no right to participate in the examination for discovery process of this proceeding and it is not subject to discovery by CFEI or CNH.

Therefore, I accept the submissions of counsel for AEM, supported by counsel for CNH, that I should treat AEM as a non-party for the purpose of any requests for information arising from the discoveries.

I also accept the submission of counsel for CFEI that the information requested is important to his client’s case. However, my accepting that submission is not a pre-determination of CFEI’s entitlement to the information or its relevance or admissibility.

Information from non-parties is available in two ways.

The first is by way of a Summons to Witness under Tribunal Rule 18.

The second is under Tribunal Rule 1.09 that opens up the procedures available in the Rules of Civil Procedure. In these circumstances Rule 30.10 or Rule 31.10 of the Rules of Civil Procedure, with necessary modifications, are applicable.

I directed that CFEI bring a motion under Tribunal Rule 25 for an Order for information from AEM. The questions for determination on the motion are set out in the letter to AEM dated February 17^th, 2009, from CFEI’s counsel.

Consent Issues:

1. The main parties (CNH and CFEI) agreed that:

a. CNH’s preliminary expert’s report would be served on CFEI by March 27^th, 2009;

b. CNH and CFEI would exchange final experts’ reports by April 17^th, 2009;

c. For any remaining issues about discovery undertakings and refusals, CNH and CFEI would file electronic versions of the discovery transcripts and brief written submissions on each issue with the Tribunal by March 27^th, 2009;

d. Some time with the Pre-hearing Vice-Chair should be set aside for facilitated settlement discussion.

On hearing the submissions and consent terms from counsel, the Tribunal makes the following Order.

ORDER OF THE TRIBUNAL

The Tribunal hereby Orders that:

Undertakings and Refusals

1. By March 27^th, 2009, CNH and CFEI will:

a. file electronic versions of the examination for discovery transcripts with the Tribunal;

b. identify for the Tribunal what undertaking and refusal issues remain unresolved and where they arise in the transcripts;

c. file brief written submissions with the Tribunal on each unresolved undertaking and refusal issue for the Tribunal’s determination.

Continuation of Pre-Hearing

2. This Pre-Hearing is adjourned to Tuesday, April 21^st, 2009, at the Tribunal office in Guelph, Ontario for:

a. at 9:00 a.m.

i. CFEI’s motion to obtain information requested from AEM; and

ii. JDL’s motion regarding leave to file additional materials and any access restrictions, if leave is granted.

b. at 1:00 p.m., facilitated settlement discussions involving only the Tribunal, CNH and CFEI, and their respective counsel.

Hearing Date, Filing Materials and Expert’s Reports

3. The hearing of this matter will commence on Monday, May 11^th, 2009, at 9:00 a.m. at the Tribunal office in Guelph, Ontario. The Tribunal has reserved the following dates for this matter: May 11, 12, 13, 14, 15, 20 and 21, 2009.

4. The date by which the parties are to exchange amongst one another, and file with the Tribunal, copies of all relevant documentary evidence and other materials of any kind intended to be filed as exhibits at the Hearing is now Monday, April 27^th, 2009.

5. CNH will serve its preliminary expert’s report on CFEI by March 27^th, 2009.

6. The parties will exchange final experts’ reports by April 17^th, 2009.