Ferme Benoit Lachaine v. Dairy Farmers of Ontario, 2011 ONAFRAAT 29

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone 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:

Ferme Benoit Lachaine v. Dairy Farmers of Ontario – Request for Review

Ferme Benoit Lachaine v. DFO – Request for Review 2011 ONAFRAAT 29

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

DATE OF DECISION:

September 6, 2011

2011-29

NEUTRAL CITATION:

2011 ONAFRAAT 29

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 Ferme Benoit Lachaine (Benoit Lachaine) of Chute à Blondeau, Ontario, from a decision of the Dairy Farmers of Ontario to deny its request for an exemption from the 15% Transfer Assessment on the sale of its quota.

AND IN THE MATTER OF: A request for review by Ferme Benoit Lachaine from a decision of the Tribunal dated March 5, 2010 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.

Before: Susan Whelan, Vice Chair

Appearances: None

BACKGROUND TO THE REQUEST FOR REVIEW

Ferme Benoit Lachaine Inc. (FBL) is a family farming corporation owned by shareholders Benoit and Isabelle Lachaine. The farm consists of approximately 400 acres in Chute-à-Blondeau, Ontario. FBL farms approximately 300 acres as cash crops and the remaining 100 acres is bush land.

FBL was incorporated in 1999, and has operated as a dairy farm since the date of incorporation. In six separate transactions between September 2007 and February 2009, FBL sold its entire milk production quota on the milk quota exchange at the prevailing market price.

The Dairy Farmers of Ontario (DFO) is a dairy producer organization granted regulatory authority for dairy farming in Ontario. Their authority is subject to oversight by various entities including the Ontario Farm Products Marketing Commission, this Tribunal, and the Minister.

DFO had a quota transfer assessment policy (Policy) that applied if a dairy farmer sold his/her milk quota. The Policy was implemented in November of 2006 and imposed a minimum assessment of 15% on all but a dairy farmer’s last 10 kilograms (kgs) of quota transferred. (Quota is defined in kilograms; with approximately 1 kilogram (kg) representing one milking cow.)

FBL was assessed $367,055.21 from the six quota sale transactions under the Policy.

DFO considered special circumstance exemptions from the Policy. Section H. 2 of the DFO Quota Policies reads, in part, as follows:

“2. Requests for Special Consideration

If a producer requires special consideration for reasons of not being able to comply with a particular policy(s) in Part I, DFO's Quota Committee should be advised of the problems, in writing, providing all the pertinent details as to why special consideration has been requested.

Medical conditions will not be accepted as the basis for any exemption requests. Producers must remain solely responsible for taking whatever steps they deem appropriate, including acquiring insurance, to protect against unforeseen circumstances, including medical challenges.

The Quota Committee will consider a request and make a recommendation to DFO. DFO, in turn, will reach a decision on the matter and the producer will be so advised.”

In July of 2008, FBL, through its lawyer, asked DFO to grant an exemption from the Policy for two previous quota transactions and on all future transactions. The request for an exemption was based on the special circumstances that FBL was experiencing financial hardship and that Mr. Benoit Lachaine had unexpected medical problems which prevented him from operating the dairy farm. Mr. Benoit Lachaine’s medical problems related to arthritic pain in his large right toe. In addition, Mr. Benoit Lachaine had acquired significant debt since 1999 when he purchased the farm and had not expected to leave the industry due to health concerns.

On September 17, 2008, DFO refused FBL’s exemption request. FBL requested a reconsideration of the DFO decision and on December 1, 2008, DFO denied FBL’s reconsideration request.

On August 27, 2009, FBL appealed the DFO decision to the Tribunal under section 16 of the Ministry of Agriculture, Food and Rural Affairs Act (the Act). On March 2, 2010, the Tribunal conducted a hearing to consider FBL’s request that the Tribunal grant it an exemption from the Policy and order DFO to pay FBL $367,055.21.

The Tribunal appeal panel (Panel) dealt with only one issue for its determination:

1. Whether FBL should receive an exemption from the DFO’s assessment on FBL’s quota transfer.

Under section 16 of the Act, on an appeal from any order, direction, policy, regulation or decision of DFO, the Tribunal conducts a hearing de novo and may make decisions DFO could make.

The Tribunal released its decision on March 5, 2010, denying FBL an exemption from the quota transfer assessment.

On April 1, 2010, FBL requested a review of the Tribunal decision and asked for a reversal of that decision. In the alternative, FBL requested that the decision of the Tribunal be set aside and that another bilingual hearing be scheduled as soon as possible.

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”. The Tribunal also has the authority to review its Milk Act decisions pursuant to subsection 16(15) of the Act. While the Rules are adopted pursuant to the SPPA and not the Act, the Rules may be applied to guide reviews of decisions under the Act. Rule 29.09 of the Tribunal’s Rules of Procedure reads as follows:

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.

Rule 29.09 provides that in considering the advisability of a review I may consider any relevant circumstance including those listed in subsections (a) to (e) of that Rule.

Although the Rules permit me to confer with the members of the appeal panel, I elected not to seek out their explanation, preferring to allow the decision to "speak for itself". In the course of reviewing the decision, all materials provided by the parties have been considered, and in accordance with Rule 29.18 of the Tribunal’s Rules of Procedure, submissions from DFO with respect to FBL’s request for review were considered. FBL’s counsel was also provided the opportunity to reply to the submissions made by DFO and that document has also been considered.

FBL’s Reasons for the Request for Review

FBL bases its request for a review on the assertion that:

1. (a) The Tribunal hearing on March 2, 2010, was not bilingual as requested; and

(b) The quality of the translation services provided were not adequate.

2. The Panel failed to consider certain important factors when it made its decision.

Findings and Analysis

1. (a) Was the Tribunal hearing on March 2, 2010, bilingual as requested?

Rule 15 of the Tribunal’s Rules of Procedure addresses the language of a hearing and Rule 15.01 reads as follows:

The Tribunal shall conduct its hearing in English or in English and French in accordance with the French Language Services Act.

Rule 15.02 specifically addresses the use of the French language:

The Tribunal may permit a person to give his or her evidence in French or make submissions in French if the person so requests, in accordance with Rule 15.03.

In addition, Rule 15.03 sets out:

An appellant, respondent or other party who wishes to give or call evidence or make submissions in French must, at least 15 business days before the hearing, request the Tribunal to provide French language translation of the evidence and submissions at the hearing. The Tribunal has the discretion, in appropriate circumstances, of providing a French speaking panel for the hearing instead of French language translation.

On August 27, 2009, counsel for FBL wrote to the Tribunal requesting that the Hearing “proceed as a bilingual hearing or with full French-English translation.”

On September 2, 2009, the Tribunal office sent a letter to counsel for the Appellant, FBL, and to the respondent, DFO, setting out potential hearing dates and addressing the Appellant’s request for a bilingual hearing, pursuant to Rule 15 of the Tribunal’s Rules of Procedure. The letter indicated that the Tribunal office had discussed the matter with the requesting party and believed that it was adequately addressing the request for a bilingual hearing. The letter from the Tribunal office stated:

“With respect to the request by counsel to the appellant for a bilingual hearing, pursuant to Rule 15 of the Tribunal’s Rules of Procedure, the Tribunal office understands that it is the appellant’s preference to proceed with consecutive interpretation, as opposed to simultaneous interpretation. In consideration of this request, please advise the Tribunal of the anticipated number of days needed for the hearing of this matter.”

Counsel for FBL did not respond to either correct or object to the reference in the letter from the Tribunal office identifying consecutive interpretation as the Appellant’s preference.

At the commencement of the Tribunal hearing Vice-Chair O’Kane clearly advised that:

“We have an interpreter present with us today. The Interpreter will be sworn, and he’ll be assisting with the French/English translation.”

Counsel for FBL did not raise any objection at the commencement of or during the hearing about consecutive translation or the manner in which the translation was to be provided. Furthermore, counsel for FBL advised at the Tribunal hearing that although his client’s first language was French and that his client would be providing his evidence in French, he did not need to have everything interpreted for him. In doing so, Counsel for FBL waived the right to consecutive translation services for the entire hearing and offered to work together with the Tribunal. In addition, counsel for FBL advised that he would be addressing the Tribunal in English and making his submissions in English. Counsel for FBL clearly stated:

“As a preliminary matter, Mr. Lachaine - - his first language is French. We’ve asked that an interpreter be present. He does understand English fairly well, so I don’t think he needs to have everything interpreted for him, but he would want to have his evidence given in French.”

“I would address the Tribunal in English and make any submissions in English. So I think that’ll work fine if we work together on that.”

The Vice-Chair advised Mr. Benoit Lachaine and his counsel at the beginning of the hearing as follows:

“Mr. Lachaine, if there is anything going on that you have any concern about in terms of understanding, feel free to raise your hand, slow us down, stop us. This Hearing is for you so we want to make sure that you are understanding everything that goes on.”

Not only did counsel for FBL not object at the commencement of the hearing, the French language issue was addressed when Mr. Benoit Lachaine wanted to provide a written document in the French language as part of his evidence in chief.

At that point the Vice-Chair advised that he was unilingual, and that only one member of the panel had any command of the French language, therefore, the Vice-Chair suggested that:

“Mr. Lachaine can read from it word for word so that we will have that evidence, and if there’s ever any issue we can always request from the reporter sort of that truncated version in a verbatim format if we need it.”

Therefore, the Tribunal allowed Mr. Benoit Lachaine to read the written document in its entirety in French and it was translated into English at that point in the hearing. Although counsel for FBL indicated that he thought that the Panel would be bilingual, he did not object to fact that all members were not and he commented:

“That’s fine. I guess I had understood pro lib that the Tribunal members would have been able to understand French, but that’s - - we’ll be fine with the interpreter.”

Counsel for FBL indicated that the last page of the written statement also provided a financial summary and all parties agreed to accept that as an exhibit. Counsel for FBL did not raise any formal objection at this point.

There was a further discussion of how the translation would take place and it was agreed that the interpreter would be given a copy of Mr. Benoit Lachaine’s written text to follow and that he would translate it two or three sentences at a time. The interpreter was provided with the document to review for a few minutes in advance of the actual evidence being given.

When Mr. Benoit Lachaine took the stand he apologized for the inconvenience.

“First of all, sorry for the inconvenience. I thought that the system of translation will be with assistance, so it will be easier. My English is not so bad but when I want to translate the real meaning….I’m Francophone, so sorry.”

The Vice Chair advised him that there was “no need to apologize”.

It is unfortunate that Mr. Benoit Lachaine now feels that he was unable to fully provide his evidence. However, the fact remains that he did provide his evidence at the Tribunal hearing in the French language as his counsel had requested. It is important to also emphasize that the evidence indicates that FBL’s counsel was consulted prior to the hearing and agreed to consecutive translation, for his client, versus simultaneous translation.

There were several opportunities to raise an objection to the manner or method in which French language services were provided during the Tribunal hearing, particularly at the commencement of the hearing and again during the hearing when Mr. Benoit Lachaine gave his evidence. However, counsel for FBL did not raise an objection at any stage of the hearing about the format or the quality of the translation services. It was only after the decision was released that the new counsel for FBL raised an issue about the quality of the translation and the type of bilingual hearing provided. It is my opinion that French language services were provided in accordance with Rules 15.01, 15.02, and 15.03 and that the objection to the provision of French language services was not raised in a timely manner.

1. (b) Was the quality of the translation services provided adequate?

Counsel for FBL has also raised the issue of whether the translation services were competently provided. Mr. Benoit Lachaine stated in his affidavit that he was asked by the interpreter prior to the hearing for the proper translation of a number of basic expressions and words related to agricultural terminology and that his counsel at the time of the hearing, Mr. Tolhurst, had to intervene repeatedly in order to whisper the appropriate translations to the interpreter.

In dealing with this issue, it should be noted that the transcript indicates that Mr. Tolhurst, counsel for FBL, did not raise any concerns about the quality of the translation at the hearing. His affidavit dated April 1, 2010, now indicates that he believes:

“the Tribunal misunderstood the evidence given by Benoit Lachaine at the Hearing, as translated, and as a result made findings of fact that were contrary to the actual evidence.”

In his affidavit, Mr. Tolhurst does not mention that he may have assisted with the translation of several words related to the dairy industry during the hearing.

In analyzing the evidence, Mr. Ken Larose, a certified translator, and expert for the Appellant, identified that the English translation at page 23 of the transcript was missing the word “quota” and that this was illustrative of the “awkwardness of the English”.

In French the sentence read:

“Au cours de l’année 2000, nous avons acheté 19 kilos de quotas pour la somme de 367 083$.”

It was translated into English as follows:

“During the year 2000, we bought 19 kilograms for the amount of $367,083.”

The translation should have been “19 kilograms of quota”. However, the Tribunal members were well versed in the fact that kilograms represent quota and I find that although the translation was not exactly precise, omitting the word ‘quota’ is not representative of misleading material information. Dairy farmers often speak in kilograms or in number of milking cows when referring to their quota.

Mr. Larose, also identified that page 27 of the transcript shows “arthrose” as “arthrosis”, and that the correct term should have been “osteoarthritis.”

However, the Tribunal decision clearly indicates at page 3 in the decision, that the Tribunal panel correctly identified and understood Mr. Lachaine’s condition.

“In the spring of 2007 Benoit Lachaine began experiencing pain in his right foot. After two or three months he consulted his doctor who diagnosed an arthritic problem and prescribed anti-inflammatory medication….The eventual diagnosis was “hallux rigidis” which is a degenerative condition of the big toe. In addition to medication, he was prescribed orthotics for his shoes and physiotherapy.”

Mr. Larose provided several other examples of omissions in the translation; however, they are not matters which are pivotal in the decision.

Mr. Larose refers to page 34 of the transcript and the response by Mr. Benoit Lachaine that he is experiencing less income without his dairy production. Mr. Larose suggests that the translation was meaningless and confusing by translating the words “la culture” to mean “the culture” instead of “cultivation” or “crop farming”. However, the Tribunal panel described the investment in cash cropping that Mr. Benoit Lachaine made at page 4 of the decision:

“FBL then invested $150,000 into tile drainage, leveling and adding minerals to the soil to make the 300 acres of crop land more viable for a cash crop farming operation. FBL also invested about $320,000 in grain storage bins, drying equipment and other equipment modifications suited for cash cropping.”

In the Tribunal’s Findings and Analysis at page 6, the Tribunal panel identified but did not accept Mr. Benoit Lachaine’s testimony that cash cropping was not viable.

“Benoit Lachaine continues to this day as an active farmer, albeit in cash cropping rather than dairy. We accept that cash cropping is less strenuous on his foot than dairy farming. We also find that FBL would not have invested approximately $500,000 into the cash cropping operation without knowing it would continue to receive a reasonable return on investment through the income derived from cash cropping.”

Mr. Larose made reference to the fact that the interpreter had trouble understanding the English he was being asked to translate. He used a reference to “high 80 kilos” being translated incorrectly to be “88 kilos”. However, Mr. Benoit Lachaine clearly understood the question and ensuing discussion when he replied that the “total maximum was 78 cows” that he had in his barn.

In his expert report, Mr. Larose also identifies two situations where counsel for FBL offered assistance to the interpreter in finding the correct word. One reference was with regard to using the word “bend” for “pencher” instead of the proper word “squat”. As previously mentioned, the Tribunal panel understood Mr. Benoit Lachaine’s medical condition and recognized that milking was difficult for him as a result of the problems he was experiencing with his right big toe. It was not material whether he was bending or squatting.

Mr. Larose further identified that at page 54 of the transcript, question 44, the English question was:

“That’s in addition to the $3,000 a month for 20 years that you agreed to pay to your father?”

However, the French translation fails to mention both the 20 year period and that the amount was to be paid to Mr. Benoit Lachaine’s father. I fail to see how this would affect the Tribunal in their findings. When the question was put to Mr. Benoit Lachaine, he replied with a simple “yes” without any further clarification. His answer indicates that he knew the time period was 20 years and the amount was payable to his father.

Mr. Larose also stated that in question 66 the English translation did not indicate that the $680,000 reflected the amount paid to Mr. Benoit Lachaine’s father. However, in the Tribunal panel’s decision at page 3, they accepted the following as evidence:

“Benoit Lachaine purchased the family farm from his father Edmond in 1999. ….Over a period of twenty years, the note is paid down $2,000 monthly and the preference shares are redeemed at $1,000 monthly.”

The Tribunal panel’s decision indicates that they clearly understood that Mr. Benoit Lachaine had repaid his father more than $680,000.

The translation expert, Mr. Larose, acknowledges that interpretative services may not always be accurate. He states in his letter of September 27, 2010:

“My comments are not intended to impugn the quality of the interpreter’s work in general. There are many reasons why, in certain settings and on certain topics, things can go less well than usual in the provision of accurate interpretation services.”

In the last paragraph of the same letter, Mr. Larose stated:

“Many other examples could be given, but those mentioned above are sufficient in my opinion to describe the level of interpretation at this hearing as unprofessional in every sense of the word. The poor level of language and the many outright errors in meaning could certainly affect the Tribunal’s understanding of the line of argument being presented.”

After reviewing Mr. Larose’s report and after carefully reviewing all of the evidence and the translation provided, I find that the Tribunal panel did not misinterpret the evidence or discussion and further find that there is nothing that convinces me there were any errors in the translation that impacted the final decision of the Tribunal. The examples that Mr. Larose indicated could affect the Tribunal’s understanding of the line of argument being presented did not, in fact, affect their understanding.

Had the Tribunal's decision been in FBL’s favour, it is unlikely the Appellant would be objecting to the translation services provided. It is difficult to accept the Appellant’s claim that FBL was prejudiced by the manner in which the hearing was conducted and that evidence was misunderstood as a result of translation. I find that although the overall quality of the translation services may not be exceptional, it was satisfactory and the evidence was clearly understood by the Tribunal panel.

In reviewing all of the documents provided, I find that the Tribunal did follow its Rules of Procedure, did provide a bilingual hearing in accordance with its Rules in compliance with the French Language Services Act and in the manner requested and accepted by counsel for FBL, and that the translation services were adequate and, consequently, there was no breach of procedural fairness as argued by FBL.

2. Did the Tribunal Panel fail to consider important factors when it made its decision?

This was a trial de novo and while standing in the shoes of the DFO, the Panel was entitled to define criteria to assist in exercising DFO’s broad “special consideration” discretion.

Counsel for the Appellant and Respondent referred the Panel to previous Tribunal exemption decisions Cayer #2, VanderGeest and Shaw. However, counsel for both parties also confirmed that these decisions were not binding on the Tribunal.

The Panel found that while these decisions may be possibly persuasive, they do not create a set of established legal principles. Each case is governed by a unique set of facts. In addition, the Tribunal distinguished the FBL decision from previous decisions based on the following factual differences:

• Benoit Lachaine continues as an active farmer

• Benoit Lachaine was not killed in an accident

• Benoit Lachaine did not suffer a catastrophic injury that ended his farming career

• Benoit Lachaine did not have a terminal disease

• Benoit Lachaine did not have a plan to exit the industry interrupted by the November 2006 policy.

To determine that the Panel made an error in the findings of fact, the Appellant, FBL, would have to show that there was no evidence for the Panel to come to the conclusions of fact; or that they failed to understand or accept other material facts or considerations.

The Panel accepted the fact that Mr. Benoit Lachaine had a legitimate medical condition that caused him pain when he milked his cows, but that it did not prevent him from performing other less strenuous farm work; such as cash crop farming. Whether or not Mr. Benoit Lachaine returned to school does not diminish the fact that cash crop farming is considered active farming. TheAppellant has not proven that the Panel failed to understand his role in cash crop farming.

The Panel found that FBL would not have invested approximately $500,000 into a cash crop farming operation without assuming a reasonable return on investment; and further found that there was no evidence of financial hardship. The fact that cash crop farming provides a different stream of income is a well documented fact and Mr. Benoit Lachaine would have known this prior to entering into the cash crop business. The fact that there were several members of his family in post-secondary education may indeed financially strain the families resources, but is not material to whether or not FBL should qualify for an exemption for quota sales between 2007 and 2009.

The Panel also found that FBL made its decision to exit the dairy industry knowing that it would face a 15 percent assessment on its quota transfer. The Appellant has not provided any evidence to the contrary.

The Panel concluded that based on all of the evidence presented that FBL had not satisfied the criteria for Special Consideration, and that there was nothing sufficiently “special” about Mr. Benoit Lachaine’s right toe and foot condition to warrant an exemption from the 15 percent quota transfer assessment.

DECISION OF THE TRIBUNAL

With regard to FBL’s argument that the right to a fair hearing has precedence over the principle of the finality of decisions; I would agree but with different results. The question of whether the right to a fair hearing was compromised is determined by examining the evidence regarding the procedure that was followed throughout the entire process. I find that the process in the hearing was not unreasonable or unfair for the following reasons:

First, Counsel for FBL requested a “bilingual hearing or with full French-English translation” in the appeal letter of April 27, 2009.

Counsel for FBL is now asserting in their reply document of January 18, 2011, at paragraph 18, page 4, that:

“Ferme Benoit Lachaine was surprised and disappointed to learn that the hearing would not be bilingual.”

Yet counsel for FBL at the time of the Hearing did not raise an objection to the format or translation services provided; and also did not object when he received the letter from the Tribunal advising of consecutive translation in advance of the hearing.

The Appellant has also argued that the fact two of the three members sitting on the panel during the hearing did not understand French adversely affected the decision of the Tribunal. The Appellant again argued that translation services were very poor, however, a review of the expert report reveals that any discrepancies identified by DFO or the expert in the translation were not material to the decision.

The Appellant argued that he had a reasonable expectation that the Tribunal panel members would at least be able to understand French without interpreting or translation services. However, in Rule 15.03 it clearly states that:

“….The Tribunal has the discretion, in appropriate circumstances, of providing a French speaking panel for the hearing instead of French language translation.”

Rule 15.03 does not guarantee the provision of a French speaking panel, it states that a French speaking panel may be appointed for a hearing instead of French language translation.

There is no evidence presented that illustrates that the Tribunal did not follow proper procedure prior to, during or after the hearing. Nor is there any evidence of any objection by FBL or counsel to the procedure outlined prior to or during the hearing. In fact, the evidence shows:

-the Appellant was notified of the procedure to be followed in the letter dated September 2, 2009, from the Tribunal and the Appellant did not raise an objection upon receipt of the letter, prior to or during the hearing.

• the letter of September 2, 2009 indicated that the Tribunal understood that the Appellant’s preference for French language services was consecutive translation; and

• the evidence from the transcript indicates that both Counsel and the Appellant accepted the translation service that was provided and waived the right to consecutive translation of the entire process at the commencement of the hearing.

Further, the evidence does not show that the quality of the translation was such that it would justify a reversal of the decision.

The Appellant has raised a number of arguments to support his request for a review on the fact that the hearing on March 2, 2010, was not bilingual as requested. The Tribunal agrees with the Appellant’s argument that the Courts of Justice Act provides that the official languages of the courts of Ontario are English and French. The Tribunal also agrees with the fact that the County where the Appellant lives, namely the County of Prescott, has a large French speaking community. In addition the Tribunal also accepts that the FLSA expressly provides for the right to services in French.

However, the fact remains that the Appellant was notified of and did not object to the proposal of consecutive translation. In addition, the fact also remains that the Appellant’s counsel waived the right to consecutive translation of the entire hearing at the beginning of the hearing.

The Appellant has also argued that the interpreter was unable to translate adequately on numerous occasions throughout the hearing.

The respondent has argued that the test for sufficiency of translation is as follows:

“ that it is not enough that the language issue “could” have affected the Tribunal’s understanding. Rather, has FBL (the Appellant) shown that the language issue was such that it did affect the Tribunal’s understanding of the material facts in this case and that if the understanding had been different, the outcome would have been different.”

The evidence shows that the Tribunal understood the testimony presented and that the translation did not affect the factual or material findings of the decision.

I would support the test that the respondent has put forward and find that the Tribunal did properly identify the key facts in its decision, including:

• Benoit Lachaine was a dairy farmer,

• Benoit Lachaine experienced pain in his right foot with the ultimate diagnosis being Hallux Rigidus – a degenerative condition of the big toe; and

• Benoit Lachaine made a decision to quit the dairy production industry based on this condition, and sold his milk quota in a series of transactions between 2007 and 2008.

The Tribunal’s findings were unimpaired by any translation difficulties and include:

• Benoit Lachaine has a legitimate medical condition that caused him pain when he milked his cows and therefore he could no longer milk and tend his dairy herd due to this pain in his foot and big toe.

• The Appellant made his decision to leave the dairy industry with the knowledge there would be a 15% assessment on its quota transfer

Therefore, FBL’s arguments do not prove the Tribunal failed to comply with the request for a bilingual hearing. The evidence indicates that the Tribunal’s established policy for a bilingual hearing in accordance with the French Languages Service Act was applied fairly to FBL’s request. And that the French translation provided for the hearing was in accordance with what FBL’s counsel had requested.

Therefore, it would now be unjust to find that the hearing was neither fair nor proper on the basis of the translation services provided.

Further, FBL’s arguments do not prove that the Panel misunderstood any important factors in coming to its final determination based on the translation provided or for any other reason, or that the Panel made an error in law.

The Appellant also argued that the Tribunal’s decision cannot be reconciled with previous Tribunal decisions. However, it is well established that while previous Tribunal decisions may be persuasive, they do not create a set of established legal principles. The Tribunal clearly distinguished the Appellant’s case from previous decisions.

This review of the Tribunal’s decision did not find anything special, unique or extraordinary about Benoit Lachaine’s circumstances or medical condition to warrant an exemption.

In conclusion, FBL's request for a review is denied.

No costs shall be awarded to either party for the request for review.

Dated at Amherstburg, Ontario this 6th day of September, 2011