Allan v The Director, 2012 ONAFRAAT 14

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 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Allan v The Director

Allan v Director 2012 ONAFRAAT 14

STATUTE:

Livestock Medicines Act

HEARING:

March 30, 2012

DATE OF DECISION:

May 29, 2012

2012-14

NEUTRAL CITATION:

2012 ONAFRAAT 14

Allan v The Director

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.

Before:

John O’Kane, Vice Chair; Harold McNeely, Vice-Chair; Bernard Brennan, Member

Appearances:

None

DECISION OF THE TRIBUNAL

Overview

The narrow issue in this review hearing concerns the scope of the Tribunal’s jurisdiction under the Livestock Medicines Act, RSO 1990, c. L23 (LMA) to make two of four orders contained in a Tribunal decision released July 15th, 2011.

In that July 15th decision, the Tribunal made a series of findings of fact, none of which were the subject of this review and, therefore, in the context of this review, all those findings of fact remain intact.

The impugned orders are:

• That all prescription and livestock medicines shall be returned to Ken 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. (Order No. 2 from the July 15th, 2011 Tribunal decision)

• That Ken Allan’s personal items and written records removed during the execution of the search warrant be returned forthwith. (Order No. 3 from the July 15th, 2011 Tribunal decision)

This review proceeded as a written review pursuant to the October 20th, 2011 decision of Vice-Chair Lombardi granting the Director a review hearing.

Ken Allan, who was the appellant in the original Tribunal hearing, participated in the early stages of this review with the assistance of his counsel, Mr. Wicklum. However, as the Tribunal was establishing the review process, Mr. Wicklum confirmed that both he and his client would not participate in the review hearing to file any materials in response to the Director’s materials.

The written materials filed by the Director on this review, which included four affidavits, a Factum and Casebook, were unchallenged by any responding evidence or argument.

The LMA and regulations create a regime the purpose of which is the identification of livestock medicines and the regulation of licensees who sell livestock medicines. The regulatory regime under the LMA incorporates licensing and quasi-criminal offences as regulatory controls.

However, this system does not regulate the ownership or possession of livestock medicines. Therefore, a farmer can buy, own and possess livestock medicines to treat his or her livestock without running afoul the regulatory regime of the LMA. The original Tribunal found, among other facts, that Ken Allan had been for many years a licensed veterinarian, who gave up his veterinary practice in 2009 and continued to be a farmer owning livestock.

The Issues on This Review

The Director’s Factum frames the following two issues for the Tribunal’s determination on this review:

1. Does the Tribunal have the authority to order payment of compensation to Mr. Allan for any livestock medicines that were seized and have expired, been destroyed or disposed of? (Order No. 2); and

2. Does the Tribunal have the authority to order the return of all items seized pursuant to a search warrant issued by a Justice of the Ontario Court of Justice? (Order No. 3)

The Evidence on the Review Hearing

The evidence that the Director filed on this review presented significant new facts that were not before the original panel hearing the Ken Allan appeal.

Those new facts included details concerning steps taken by an “inspector” appointed under the LMA to pursue a search warrant and charges under the offence provisions of the LMA.

Those acts by the inspector were independent of the Director’s decision that was originally appealed and not part of the Director’s decision revoking Ken Allan’s licence.

Those new facts also included details concerning proceedings taken by an inspector under the Provincial Offences Act (POA) and a search warrant issued by His Worship C.A. McKechnie, of the Ontario Court of Justice.

Those new facts included details concerning the execution of that search warrant and the seizure of livestock medicines and other items of Ken Allan’s personal property.

Analysis and Findings

The scheme of the LMA creates a regime where the Director’s licensing decisions may be appealed to this Tribunal.

The LMA regime also creates offences and offence enforcement takes place in the law courts and not before the Tribunal.

It is trite to observe that the regulatory control under the LMA regime may involve licensing actions or offence enforcement actions, or both.

As the evidentiary record expanded on this review, it became apparent to the review panel that the actions involving Ken Allan engaged both the Director’s licensing actions and the inspector’s offence enforcement actions.

1. The Compensation Order

The Tribunal, as a creature of statute, has no inherent jurisdiction or authority. Tribunal authority flows from the legislation. As confirmed by the Supreme Court of Canada in the Dunsmuir¹ case, a “decision maker may not exercise authority not specifically assigned to him or her”.

The Tribunal’s powers under section 9(3) of the LMA are to “hear the appeal by way of a new hearing to determine whether the licence should be issued, renewed, suspended or revoked”. In the context of that hearing and determination, the Tribunal may “confirm or alter the decision of the Director” or direct the Director “to do any act the Director is authorized to do under” the LMA and regulations “as the Tribunal considers proper. . .”.

Therefore, the Tribunal’s powers under the LMA are no greater than the Director’s powers under the LMA, and those powers relate to issuing, renewing, suspending or revoking a licence.

The Director has no legislative authority to award compensation. Therefore, the Tribunal, in an appeal from the Director’s licensing decision, has no legislative authority to award compensation. As noted above, the Tribunal has no inherent jurisdiction to award compensation.

The Divisional Court in the Schmolinski² case considered a compensation award upheld by the Licence Appeal Tribunal (LAT), in an appeal from the Complaint Committee of the Board of Funeral Services under the Funeral Directors and Establishments Act. The Court concluded that neither the Committee nor the LAT had authority under that legislation to award compensation for the loss of a deceased’s personal property. The Court concluded that the only remedy was to seek compensation through the civil courts.

That rationale of the Divisional Court is applicable in the context of the LMA since there is no authority under the LMA for the Director or the Tribunal to award compensation in respect of a licensing decision.

Therefore, the Tribunal had no jurisdiction under the LMA to award or order that any compensation would be paid to Ken Allan for any livestock medicines that were seized and had expired, had been destroyed or had been disposed of.

2. The Order to Return Seized Items

The affidavit evidence of Graham Ridley, a conservation officer with the Ministry of Natural Resources and an “inspector” under the LMA, filed on this review hearing was that he conducted an investigation and came to the conclusion that Ken Allan had committed offences under the LMA. Graham Ridley did not testify in the original appeal hearing before the Tribunal.

Graham Ridley testified that he had reasonable and probable grounds to charge Ken Allan with offences under the LMA. He also testified that he had reasonable and probable grounds that a search warrant was needed to gather evidence of the offences committed by Ken Allan. He testified that he applied for and obtained a search warrant under section 158 of the POA from His Worship C.A. McKechnie of the Ontario Court of Justice on July 27th, 2010. He testified that on July 30th, 2010, he and officers of the Ontario Provincial Police executed the search warrant and that pursuant to that search warrant he seized, among other things, livestock medicines and business records. He also testified that the livestock medicines and business records remained in his care, custody and control.

Therefore, the personal items and livestock medicines were seized from Ken Allan pursuant to a POA search warrant obtained in pursuit of the offence enforcement actions under the LMA. The search warrant seizure was not directly related to the licensing decision of the Director under the LMA.

Under section 159(4) of the POA, items detained pursuant to a search warrant can be released on motion made to a “justice”. Under section 1 of the POA, “justice” is interpreted to mean a provincial judge or a justice of the peace. The Tribunal is neither a provincial judge nor a justice of the peace.

Therefore, in these circumstances, where the items were seized pursuant to a POA search warrant, the Tribunal had no jurisdiction to order the return of the seized items.

3. A Related Issue

The appeal process to this Tribunal arose from the July 7th, 2010 decision of the Director to revoke Ken Allan’s license under the LMA. That July 7th decision was confirmed in a brief written decision dated July 8th, 2010. The salient portions of that written decision are:

I have considered my findings and the testimony of Dr. Palmer with respect to improperly handled livestock medicines, as well as the authority provided to me in subsection 6(1) of the Act and section 13 of Regulation 730. In my opinion, the contraventions warrant the revocation of the license issued to Dr. Ken Allen (sic), and I hereby revoke Dr. Allen’s (sic) license.

In accordance with subsection 12(c) of Regulation 730, any livestock medicines in the possession of Dr. Ken Allen (sic) shall be removed and disposed of under the supervision of an inspector in a manner satisfactory to a director appointed under the Livestock Medicines Act.

While the Director’s decision provided for the removal or “seizure” of livestock medicines, the evidence before this review panel was unequivocal that the “seizure” effected in this case was pursuant to the POA enforcement proceedings and not pursuant to the Director’s licensing decision.

Therefore, we leave open the issue of the Tribunal’s jurisdiction to order return of items removed or seized pursuant to a Director’s decision, in the context of a licensing related appeal.

ORDER OF THE TRIBUNAL

Therefore, pursuant to Rule 29.26 of the Tribunal’s Rules of Procedure, the Tribunal orders:

1. That the Orders numbered 2 and 3 of the Tribunal’s July 15th, 2011 decision are hereby cancelled.

DATED at Brampton, Ontario this 29th day of May, 2012

Footnotes

1. 1Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190, at ¶29
2. 2Ontario v. Schmolinski 2007 CanLII 48636 (ON SCDC), [2007] O.J. No. 4355