Agriculture, Food and Rural Affairs Appeal Tribunal
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales
1 Stone Road West 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: Ken Allan v. Director - Pre-Hearing Conference
Allan v. Director - PHC 2011 ONAFRAAT 35
STATUTE: Livestock Medicines Act
HEARING: November 16, 2011
DATE OF DECISION: November 21, 2011
2011-35
NEUTRAL CITATION: 2011 ONAFRAAT 35
PRELIMINARY ORDER
IN THE MATTER OF THE LIVESTOCK MEDICINES ACT, R.S.O.1990, CHAPTER L.23 AND ONTARIO REGULATION 730 UNDER THE ACT.
AND IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Ken Allan, of Perth, Ontario, under Section 9(1) of the Livestock Medicines Act from a decision of the Director under the Act, dated July 8, 2010, (reasons dated December 7, 2010) in which the Director revoked the Class 1 Licence issued to Ken Allan.
AND IN THE MATTER OF: A request for review by the Director of the Tribunal’s decision dated July 15, 2011, under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure of the Tribunal.
AND IN THE MATTER OF: A decision of the Tribunal dated October 20, 2011 granting the request for review, and ordering that the review proceed by way of a written hearing.
AND IN THE MATTER OF: A telephone pre-hearing conference heard November 16, 2011 pursuant to Rule 24 of the Tribunal’s Rules of Procedure, for the purpose of considering a request by the Director to dispense with a review hearing and grant the Director a “summary judgment” and revoke Orders 2 and 3 made in the Tribunal’s July 15, 2011 decision.
Before: John O’Kane, Vice Chair; Harold McNeely, Vice-Chair; Bernard Brennan, Member
Appearances: Kristopher Crawford-Dickinson, Counsel for the Director under the Livestock Medicines Act Robert Jaworski – Co-Counsel for the Director under the Livestock Medicines Act Mike Wicklum – Counsel for Ken Allan
DECISION OF THE TRIBUNAL
OVERVIEW
This Tribunal panel was appointed by the Chair to conduct a review hearing following a “request for review” decision by a Tribunal Vice-Chair which determined that an original Tribunal decision contained errors and that a review hearing should proceed by way of a written hearing. The errors determined by the Tribunal Vice-Chair in the “request for review” decision related to the Tribunal’s jurisdiction to make two orders, described as Orders 2 and 3.
After this panel was appointed and after a Notice of Written Hearing with directions had been sent to the parties, counsel for the Director appointed under the Livestock Medicines Act (LMA) wrote to the Tribunal office questioning why the written review hearing was required, given that the Vice-Chair’s “request for review” decision had “clearly held the Tribunal did not have the requisite jurisdiction to issue Orders 2 and 3”. Counsel wrote that the Director wished to argue a motion that the Tribunal grant “summary judgment” and simply revoke Orders 2 and 3.
After hearing submissions, this panel concludes that “summary judgment” is not available in these circumstances. Our reasoning for this conclusion involves an exploration of the nature of the Tribunal, the Tribunal’s procedures for reviewing decisions and the Tribunal’s authority to grant “summary judgment”.
Therefore, the review hearing will proceed, in writing, according to the procedural directions that follow the reasons for this decision.
BACKGROUND
Ken Allan held a Class 1 licence under the LMA between January 8th, 2010 and May 14th, 2010, when the Director provisionally suspended Ken Allan’s licence and scheduled a hearing to consider the suspension.
At a hearing before the Director on July 7th, 2010, Ken Allan failed to attend and the Director found that he had contravened the LMA and suspended his licence. Under section 12(c) of Ontario Regulation 730, made under the LMA, the Director ordered that any livestock medicines in Ken Allan’s possession were to be removed and disposed of under the supervision of an inspector, appointed under the LMA. The Director’s reasons for that decision were released on December 7th, 2010.
Ken Allan appealed the Director’s decision to the Tribunal. Under the LMA, the Tribunal conducted a new hearing and, pursuant to section 9(3) of the LMA, the Tribunal had the authority to:
confirm or alter the decision of the Director or direct the Director to do any act the Director is authorized to do under this Act and the regulations and as the Tribunal considers proper and, for such purpose, the Tribunal may substitute its opinion for that of the Director.
After hearing from six witnesses over two days, the Tribunal released a written decision on July 15th, 2011 and the specific orders in issue are as follows:
That all prescription and livestock medicines shall be returned to Dr. Allan; and, if they are expired, have been destroyed, or disposed of, then he shall be compensated for all said livestock medicines and prescription medicines.
That Dr. Allan’s personal items and written records removed during the execution of the search warrant be returned forthwith.
The Director sought a review of the Tribunal decision pursuant to Rule 29 of the Tribunal’s Rules of Procedure.
A Vice-Chair of the Tribunal, sitting alone, considered the Director’s “request for review” and received submissions from counsel for the parties.
On October 20th, 2011, the Vice-Chair released the “request for review” decision. In that decision, the Vice-Chair summarized the following two reasons cited in the Director’s “Request for Review”:
Does the Tribunal have the statutory authority to make an order requiring the return of either personal items, livestock medicines and/or prescription medicines seized pursuant to a search warrant issued by His Worship C.A. McKechnie, Justice of the Peace, Ontario Court of Justice?
Does the Tribunal have the jurisdiction to Order compensation for any livestock medicines or prescription medicines that have expired, been destroyed or disposed of during the course of the seizure that occurred pursuant to a search warrant?
In addressing those two questions, the Vice-Chair made findings that the Director had provided sufficient information in its request for review to indicate that the Tribunal exceeded its jurisdiction, and in the result, granted the “request for review” and directed a review hearing by way of a written hearing.
ANALYSIS
1. The Nature of the Tribunal
The Tribunal was continued by the provincial legislature under section 14 of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c.M.16 , as amended (the Act) from its previous incarnation as, among others, the Farm Products Appeal Tribunal.
In subsection 14(3) of the Act, the legislature provided that proceedings before the Tribunal are to be heard by “panels composed of two or more members”, except for motions, or pre-hearing conferences or other informal procedural hearings, which may be heard by one member.
In subsection 14(6) of the Act, the legislature spelled out that a quorum for exercising the Tribunal’s jurisdiction and powers requires two members of a panel appointed under subsection 14(3)(a).
In subsection 14(8) of the Act, the legislature directed that generally, the decision of the “majority of the members of the Tribunal present and constituting a quorum” governs.
It is in the context of the legislative scheme established in these sections of the Act that reveals the legislature’s intention that for all substantive matters, the Tribunal hears and decides sitting as a panel with at least two panel members. An example of that statutory scheme is reflected in the original Tribunal decision that records that a panel of three Tribunal members heard Ken Allan’s original appeal. A further example is reflected in the composition of this panel of three Tribunal members.
2. The Tribunal’s Review Procedures
Pursuant to section 25.1 of the Statutory Powers Procedure Act (SPPA) the Tribunal has made rules governing practice and procedure before the Tribunal.
The Tribunal’s Rules of Procedure include “RULE 29 – REVIEW OF A DECISION” that organizes twenty-six rules governing the Tribunal’s practice and procedure for internally reviewing decisions.
The Rules provide that when a request for review is received, it will be evaluated by the Chair, or a Vice-Chair1 to determine whether a review should be conducted. The Rules set out the evaluation criteria used by the Chair or a Vice-Chair to determine whether a review should be conducted2. The specific evaluation criteria engaged before the Vice-Chair considering the Director’s “request for review” appears to have been Rule 29.09(b) “whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different conclusion”.
The Rules confirm two possible outcomes of a request for review; the request may be refused or the request may be granted, in whole or in part3.
The Rules also establish the following procedures and Tribunal powers once a request for review is granted.
A review of a final decision or order shall be conducted orally unless ordered otherwise4
A review shall be conducted by a panel designated by the Chair5
The Tribunal panel may confirm, vary, suspend or cancel the final decision or order under review6
When those Rules governing internal reviews of decisions are considered in the context of the nature of the Tribunal and the scheme established by the legislature in the Act, the following principles emerge:
Rule 29 is a procedural safety net guarding the parties and the Tribunal process against errors in decisions
Single members of the Tribunal exercising procedures and powers under Rule 29 do not sit in an appellate like capacity nor do they have plenary appellate like powers
Single members of the Tribunal exercising procedures under Rule 29 cannot over-rule, vary, suspend or cancel a final decision or order made by a panel of the Tribunal
Therefore, the request for review decision must be read in the context of the scheme for reviewing decisions. When the request for review decision is considered in that context, the Vice-Chair did not, as the Director asserts, clearly hold that the Tribunal did not have the requisite jurisdiction to issue Orders 2 and 3. In fact, such a determination would have been beyond the authority of a Vice-Chair, under the scheme as discussed.
3. The Tribunal’s Rules Do Not Provide for Summary Judgment
Counsel for the Director argued that a combined reading of the Tribunal’s Rule 1.07 and Rule 1.09, permits the Tribunal to follow the Rules of Civil Procedure, to consider a motion for “summary judgment”.
Rule 20 of the Rules of Civil Procedure authorizes a court to summarily dispose of a lawsuit where there is no genuine triable issue.
There is no Tribunal Rule comparable to Rule 20 of the Rules of Civil Procedure.
An analogous situation arose in the Ontario Court of Appeal’s consideration of the availability of summary judgment under the Rules of the Small Claims Court in the case of Van de Vrande v. Butkowsky (2010) ONCA 230. The Rules of the Small Claims Court contained a provision in Rule 1.03(2) that allowed the Small Claims Court to use the Rules of Civil Procedure by way of analogy where the Small Claims Court Rules did not cover a matter adequately. The Court of Appeal held that the absence of a summary judgment provision in the Small Claims Court Rules was not a “gap” to be filled by analogy to the summary judgment provisions of Rule 20 of the Rules of Civil Procedure.
While the facts of the Van de Vrande case and the specific Small Claims Court Rule in issue are different from the facts and the Rule before the Tribunal, the decision is nonetheless useful by providing a frame of reference for our consideration of this issue.
The Tribunal is a creation of statute and its jurisdiction and powers flow from the legislation. Unlike the law courts, the Tribunal has no inherent powers. Therefore, while the Tribunal’s Rules provide that the Rules of Civil Procedure can be utilized, that utilization is confined to procedural matters. That is, where there is a gap in “procedure” in the Tribunal’s Rules, the Tribunal may adopt as appropriate the “procedures” of the Rules of Civil Procedure. That does not mean that the Tribunal can use the Rules of Civil Procedure to fill a gap in jurisdiction or powers.
Rule 20 of the Rules of Civil Procedure grants the court powers to dispose of lawsuits using the procedures established under that Rule. The legislature has not granted the Tribunal a “Rule 20 like” summary judgment power. Therefore, the Tribunal cannot seize that power and jurisdiction using Rule 1.09 of the Tribunal’s Rules.
In addition, from a very practical perspective, summary judgment in the law courts is premised on there being no material facts in dispute. The summary judgment jurisprudence is well settled that factual disputes of a material nature are triable issues and, therefore, should not be determined summarily but, rather, only after a trial on the merits.
During the pre-hearing conference submissions, Counsel for the Director asserted that there were no material facts in dispute in respect of Orders 2 and 3. He then listed what he described as the three material facts relevant to Orders 2 and 3. Counsel for Ken Allan argued that there was a dispute over the third fact which related to the items seized from Ken Allan. Therefore, it was apparent to the Tribunal that one of the necessary pre-conditions for summary judgment, that is no material facts in dispute, was absent and therefore, even if the Tribunal had summary judgment power, this case is inappropriate for summary judgment.
Therefore, the Tribunal denies the Director’s request for a motion hearing to consider summary judgment.
4. A Written Review Hearing is Appropriate in These Circumstances
Rule 29.24 of the Tribunal’s Rules of Procedure directs that the default mode of review of a final decision or order of the Tribunal is by way of an oral hearing, unless ordered otherwise.
In addition, section 10(3) of the LMA provides that the “oral evidence taken before the Tribunal at a hearing shall be recorded . . .”.
However, in these circumstances, the Vice-Chair considering the “Request for Review” “ordered otherwise” by directing a written review hearing.
Provided that there will be no “oral evidence” during the course of the review hearing, a written review hearing can be accommodated. That will necessitate that the parties develop an agreed statement of fact for those facts not in dispute. For any other facts, the parties will be required to provide the Tribunal with the relevant transcript excerpts from the original Tribunal hearing. In the event any party wishes to rely on new evidence, then an oral evidentiary hearing must be convened pursuant to section 10(3) of the LMA.
PROCEDURAL DIRECTIONS FOR THE WRITTEN REVIEW HEARING
Counsel for the parties will cooperate to develop an agreed statement of issues and facts and documents to be jointly filed with the Tribunal by November 30th, 2011.
In addition, if any issues, facts or documents remain in dispute, counsel for the parties will each file with the Tribunal a list of the disputed issues, facts and documents by November 30th, 2011.
If there are disputed facts and documents, the Tribunal will schedule a date and venue for the review hearing to proceed as an oral hearing, and the parties will receive further notice of hearing from the Tribunal with directions for exchanging documents, witness statements and expert reports, if applicable.
If there are no disputed facts or documents, after filing the agreed statement of issues, facts and documents on November 30th, 2011, the written hearing will proceed on the following schedule:
The Director’s written submissions/arguments will be delivered to opposing counsel and filed with the Tribunal no later than December 30th, 2011;
Ken Allan’s responding written submissions/arguments will be delivered to opposing counsel and filed with the Tribunal no later than January 21st, 2012;
The Director’s reply written submissions/argument will be delivered to opposing counsel and filed with the Tribunal no later than January 31st, 2012.
It is apparent from the original Tribunal decision and the request for review decision and from the submissions received on this pre-hearing conference that the issues on this review hearing focus on the Tribunal’s jurisdiction under the LMA, in a context where there has been a parallel proceeding or proceedings in the Ontario Court of Justice. The circumstances of a parallel proceeding necessarily require that the Tribunal have a complete contextual picture in order that it conducts a fully informed jurisdictional analysis in this review hearing. Therefore, the Tribunal further directs that the Director serve on opposing counsel and file with the Tribunal, no later than November 30th, 2011, copies of the following, to provide that complete contextual picture:
The Director’s decision of July 8th, 2010;
The Director’s reasons for decision issued December 7th, 2010;
Any instructions or directions issued by the Director under section 12 of Ontario Regulation 730 made under the LMA;
The search warrant issued by His Worship C.A. McKechnie, Justice of the Peace, Ontario Court of Justice;
ORDER OF THE TRIBUNAL
Therefore, the Tribunal orders:
- The Director will file with the Tribunal copies of the following documents, no later than November 30th, 2011:
a. The Director’s decision of July 8th, 2010;
b. The Director’s reasons for decision issued December 7th, 2010;
c. Any instructions or directions issued by the Director under section 12 of Ontario Regulation 730 made under the LMA;
d. The search warrant issued by His Worship C.A. McKechnie, Justice of the Peace, Ontario Court of Justice.
The parties will jointly file an agreed statement of issues, facts and documents with the Tribunal by November 30th, 2011.
If any issues, facts or documents remain in dispute, each party will serve and file a list of disputed issues, facts and documents by November 30th, 2011.
If facts and documents remain disputed, the Tribunal will schedule a date and venue for the review hearing to proceed as an oral hearing and the Tribunal will issue a further notice accordingly.
If there are no disputed facts and documents, after filing the agreed statement of issues, facts and documents by November 30th, 2011, the written review hearing will proceed on the following schedule:
a. The Director’s written submissions/arguments will be delivered to opposing counsel and filed with the Tribunal no later than December 30th, 2011;
b. Ken Allan’s responding written submissions/arguments will be delivered to opposing counsel and filed with the Tribunal no later than January 21st, 2012;
c. The Director’s reply written submissions/argument will be delivered to opposing counsel and filed with the Tribunal no later than January 31st, 2012.
Dated at Brampton, Ontario this 21st day of November, 2011