Henry Bos v. Chicken Farmers of Ontario, 2011 ONAFRAAT 9

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:

Henry Bos v. Chicken Farmers of Ontario – Association of Ontario Chicken Processors Request for Party Status

Bos v. CFO - AOCP 2011 ONAFRAAT 9

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

DATE OF DECISION:

March 3, 2011

2011-09

NEUTRAL CITATION:

2011 ONAFRAAT 9

IN THE MATTER OF SECTION 16 OF THE MINISTRY OF AGRICULTURE, FOOD AND RURAL AFFAIRS ACT, R.S.O. 1990, CHAPTER M.16, AS AMENDED.

AND IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Henry Bos, Stevensville, Ontario, from a decision of Chicken Farmers of Ontario declining his request for the revocation of Chicken Farmers of Ontario Regulation 2274-2009 and Policy 175-2009.

AND IN THE MATTER OF: A request by the Association of Ontario Chicken Processors (AOCP) for party status in the upcoming appeal by Henry Bos scheduled to be heard by the Tribunal on March 7^th, 8^th and 22^nd, 2011.

Before:

John O’Kane, Vice Chair; Kirk Walstedt, Chair; Tim Mousseau, Member

Appearances:

None

Background

The appeal in this matter arises under section 16 of the Ministry of Agriculture, Food and Rural Affairs Act (MAFRAA). The appellant’s (Henry Bos) appeal challenged two legislative instruments enacted under the Farm Products Marketing Act by the Chicken Farmers of Ontario (CFO).

The appeal has been underway since March 2010 and, since that time, it has been the subject of several interlocutory proceedings and eight prior interlocutory decisions of the Tribunal.

In a December 13^th, 2010 procedural Order, the Tribunal set a schedule for exchange of hearing documents and scheduled the appeal hearing for March 7^th, 8^th and 22^nd, 2011.

In a letter dated February 17^th, 2011, the Association of Ontario Chicken Processors (AOCP) advised the Tribunal that it wished to seek full party status at the appeal hearing.

The Tribunal directed AOCP to provide their written intervention submissions by February 24^th, 2011 and Mr. Bos and CFO to provide reply submissions by March 1^st, 2011.

CFO supported AOCP’s request for party status while Mr. Bos argued against full party status and in favour of a more limited intervenor role for AOCP.

Intervention

Section 16(10) of the MAFRAA contemplates persons with sufficient interest in the subject matter of an appeal seeking party status. The Tribunal has discretion to grant party status.

Parties

(10) At any hearing under this section, any person entitled to receive notice under subsection (8) and any person having a sufficient interest in the subject-matter of the appeal may be a party to the appeal and the Statutory Powers Procedure Act applies. R.S.O. 1990, c. M.16, s. 16 (10).

The Tribunal has adopted Rules of Procedure that address party status and confirm the Tribunal’s discretion to grant party status.

33.08 In an appeal under section 16(1) or (2) of the Ministry of Agriculture and Food Act any person entitled to receive notice of a hearing and any person having a sufficient interest in the subject matter of the appeal may be a party to the appeal.

The word “party” is not defined in the MAFRAA or the Tribunal’s Rules.

The MAFRAA and the Tribunal’s Rules contain no direction or guidance for the Tribunal about exercising the wide discretion granted in the words “sufficient interest in the subject matter of the appeal may be a party”.

The Tribunal considered the common law of intervention to assist it with exercising its discretion. The case of Pinet v. Penetanguishene Mental Health Centre 2006 CanLII 4952 (ON S.C.) at paragraphs 34 to 37 contains an instructive analysis about intervention and the distinction between “friend of the court” intervention contrasted with full party status.

The following is our adaptation of those intervention principles from the Pinet case to the present circumstances:

Friend of the Court – Intervenor Status:

1. Relevance and usefulness of its intended contributions to the issues raised;

2. Ability to offer a perspective slightly different than that of the existing parties;

3. Its intervention will not cause injustice (prejudice) to the immediate parties.

Full Party Status:

1. The application is made early in the proceeding to permit the fair exchange of evidentiary contributions;

2. The applicant possesses specialized knowledge and expertise in the subject matter to assist the panel with resolving the issues on appeal;

3. The applicant’s interest and evidence are necessary to a properly informed adjudication and not likely to be fully represented or advanced by the existing parties;

4. The interests of the applicant or its members would likely be affected by the outcome of the appeal issues in a way not common to other citizens.

Analysis

AOCP is an organization that represents 11 chicken processors who reflect 95% of the Ontario chicken processing industry.

CFO is a provincial commodity board authorized under the Farm Products Marketing Act and regulations to regulate the chicken production and marketing industry in Ontario. In that respect, CFO regulates producers such as Mr. Bos and processors, such as AOCP’s members.

The appeal relates to a regulatory moratorium imposed October 22^nd, 2009 with the effect of limiting any further processing contracts between Ontario chicken producers like Mr. Bos, and out of province chicken processors.

Ontario chicken processors, as reflected in AOCP’s membership, require chickens to process as part of their business operations. It is therefore understandable why they might have an interest in curbing the extra-provincial movement of Ontario chickens since the extra-provincial movement of chicken could interrupt the business of Ontario chicken processors.

Both CFO and Mr. Bos acknowledged that AOCP has a sufficient interest in the subject matter of the appeal.

AOCP asserts that it has a direct interest in upholding the impugned legislative instruments because it represents Ontario chicken processors and because it is a party to a recently negotiated agreement with CFO and its counterpart organizations in the province of Quebec. The theme running through AOCP’s evidence on this application is the great magnitude of the disruption to the chicken industry both in Ontario and Quebec, if the moratorium is not upheld and continued, until the industry stakeholders can overhaul the processing allocation system. However, that is not the issue in this appeal as framed by Mr. Bos’ appeal notices.

The issues raised by Mr. Bos relate to the “vires”, in an administrative law context, of the impugned legislation. If CFO acted outside its jurisdiction in enacting the impugned legislation, it does not matter how great or how insignificant the consequences might be of setting aside the impugned legislation.

AOCP does not assert any specialized knowledge or expertise in administrative law matters or statutory interpretation that might assist the Tribunal in fulfilling its hearing mandate.

AOCP’s application for status also comes on the eve of the date scheduled for the substantive hearing. That raises our concern over the fairness to the parties by allowing AOCP full party status at this late date. The parties had a Tribunal imposed deadline of February 7^th, 2011 to exchange all documentary evidence.

In our view, it would be unfair to the parties to allow AOCP the right, at this late stage to file additional documentary evidence, call witnesses, cross-examine witnesses and provide the Tribunal with submissions.

AOCP has not satisfied the Tribunal, on a balance of probabilities, that its participation as a full party is necessary for a properly informed adjudication of the appeal issues.

In the circumstances, we conclude that AOCP can contribute usefully to the process as a friend of the court and accordingly, it may participate as an intervenor to provide the Tribunal with submissions.

Tribunal Order

Therefore, the Tribunal Orders that:

1. AOCP’s application for full party status is denied.

2. AOCP is granted intervenor status to make submissions to the Tribunal.

3. AOCP is not permitted to add to the documentary evidence.

4. AOCP is not permitted to call witnesses or cross-examine witnesses.

5. In the event AOCP intends to refer to any authorities as part of its submissions, it will be required to provide a copy of those authorities to the parties and the Tribunal at the hearing on March 7^th, 2011.