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:

John Vieraitis v. Xeltron & Phair Systems - Preliminary Order of Tribunal

Vieraitis v. Xeltron & Phair Systems 2010 ONAFRAAT 19

STATUTE:

Farm Implements Act

HEARING:

June 28, 2010

DATE OF DECISION:

July 6, 2010

2010-19

NEUTRAL CITATION:

2010 ONAFRAAT 19

Preliminary Order of Tribunal

IN THE MATTER OF THE FARM IMPLEMENTS ACT

AND IN THE MATTER OF: An Application to the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) by John Vieraitis, of Tillsonburg, Ontario, for a hearing under Section 5 of the Farm Implements Act with respect to the alleged failure of a colour sorting machine to perform to specifications.

Before:

Susan Whelan, Vice-Chair; Kirk Walstedt, Chair; Ken Benson, member

Appearances:

John Vieraitis – applicant

Cheryl Biehler – counsel for Xeltron S.A., respondent

Arturo Aguero – representative for Xeltron S.A., respondent

Bill Phair – Phair Systems Ltd., respondent

BACKGROUND

At the commencement of the hearing on June 28, 2010, Ms Biehler, legal counsel for Xeltron S.A., raised a preliminary matter. She informed the Tribunal that the applicant had included in his submission brief several “without prejudice” documents. These documents relate to the unsuccessful confidential mediation that took place on February 9, 2010, and she advised that they should not form part of the evidential record now before the Tribunal. She requested that the documents be removed from the official record and that the panel disregard them.

After hearing opening statements from all parties and after lengthy deliberation, the panel determined that it could not continue to adjudicate the matter before them without an apprehension of bias due to the “without prejudice” documents contained in the brief of documents that they had reviewed in preparation for the hearing.

The Tribunal explained to all of the parties present that any suggestion of bias or the appearance of bias is a very serious matter as it may undermine the perception of fairness and independence of the Tribunal.

Order of the Tribunal

In the documents submitted for the hearing, the applicant made additional claims not contained in the initial letter filed with the Tribunal and that were not the subject of a mediation. The jurisdiction of the Tribunal to address these additional claims and award certain remedies was questioned by Xeltron’s counsel. As a result, submissions are required in order for the Tribunal to ascertain its jurisdiction to hear the claims and to possibly award any claimed remedies. Therefore, in the interest of moving these matters forward expeditiously, the Tribunal Orders:

1. That within 10 days of the date of this order, the applicant shall file with the Tribunal and serve on the other parties any submissions that he wishes to make regarding the jurisdiction of the Tribunal to hear his claims made subsequent to his initial letter of appeal dated May 27, 2009 and to award the remedy(ies) that he is claiming. Within this submission, if the applicant indicates that he wishes to pursue claims not raised in his letter of May 27, 2009, the applicant shall address whether any new claims raised require mediation, and if so, whether he is prepared to waive mediation on these new claims.

2. That within 21 days of the date of this order, the respondents shall file with the Tribunal and serve on the other parties their responding submission, if any, regarding the jurisdiction of the Tribunal to hear the applicant’s claims made subsequent to the May 27, 2009 letter to the Tribunal and to award the remedies claimed by the applicant. Within this submission, if the applicant indicates that he wishes to pursue additional claims made subsequent to May 27, 2009, the respondents shall address whether any new claims raised require mediation, and if so, whether they are prepared to waive mediation on these new claims.

3. That the applicant shall have 28 days from the date of this order to file and serve a reply to the respondents’ submission, if any.

4. That within 10 days of the date of this order that the applicant shall resubmit his document brief without any documents or reference to the confidential mediation process or settlement discussions; and

5. That a new panel be appointed to hear this matter.