Agriculture, Food and Rural Affairs Appeal Tribunal
Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
La Gantoise Inc. v Dairy Farmers of Ontario
La Gantoise Inc. v DFO [Cost Order] 2012 ONAFRAAT 21
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
August 2, 2012
August 8, 2012
2012-21
NEUTRAL CITATION:
2012 ONAFRAAT 21
La Gantoise Inc. v Dairy Farmers of Ontario [Cost Order]
ORDER OF THE TRIBUNAL
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 La Gantoise Inc. of Lefaivre, Ontario from the Dairy Farmers of Ontario in which the Director of Regulatory Compliance upheld the decision to reject the contents of the milk bulk tank.
AND IN THE MATTER OF: A request for adjournment by Mr. Charles Goubau of La Gantoise Inc.
Before: Marthanne Robson, Vice-Chair Harold McNeely, Vice-Chair Euclid Mailloux, Member
Background:
On August 2, 2012, the date of the scheduled hearing, the Tribunal received notification from Mr. Goubau requesting an adjournment.
Each party to the appeal proceeded with submissions and arguments regarding the request.
Dairy Farmers of Ontario requested costs be awarded.
Decision and Reason:
Mr. Goubau, owner and manager of La Gantoise Inc., did not appear for the hearing at the appointed time. Tribunal staff made several attempts to contact him. Mr. Goubau advised tribunal staff first by phone followed by e-mail, that he had made an error noting the date of the hearing and requested an adjournment. The hearing was convened and Mr. Goubau made representations to the Tribunal by way of conference call. He advised the Tribunal that he had indicated the incorrect date for the hearing in his agenda, and was not ready to proceed that day.
Mr. Goubau confirmed that he had received the Notice of Hearing clearly indicating the date as Thursday, August 2, 2012, and that he had received a further e-mail communication from counsel for the Dairy Farmers of Ontario (DFO) dated July 24, 2012 which referenced August 2 as the date of the hearing.
Mr. Lloyd, counsel for DFO, argued that this was an unreasonable excuse that would not warrant an adjournment. He argued the appeal should be dismissed. Mr. Lloyd advised the Tribunal that the "thrown away" costs to the DFO were approximately $3000.00, which included air travel from Toronto and hotel for two, as well as witness compensation.
Mr. Lloyd did not argue there was any undue hardship to the DFO should the matter not proceed on the date scheduled.
The Tribunal's Rule 28 regarding costs comments that "An award for costs is very rare." The Rule provides that the Tribunal may make a costs award when a party has “acted clearly unreasonably, frivolously, vexatiously or in bad faith", which can include "failing to attend the hearing event or to sending a representative when properly given notice, without contacting the Tribunal" (Rule 28.04 (a)).
The Tribunal balanced the right of the Appellant to have his case heard, and the cost and inconvenience to the Respondent should the matter not proceed. The Tribunal finds that Mr. Goubau’s failure to correctly record the date of the hearing, and failure to appear did not warrant dismissing his appeal. The Tribunal finds however, that this is an appropriate case for an award of costs, and further, that payment of such costs be a condition of the appeal continuing.
ORDER OF THE TRIBUNAL:
The Tribunal grants La Gantoise Inc. an adjournment to a date to be determined. The adjournment is subject to payment of costs of $3,000.00 to the Dairy Farmers of Ontario on or before Tuesday, September 4, 2012. La Gantoise Inc. will, in addition, provide a written confirmation to the Tribunal office that payment has been made on or before Tuesday September 4, 2012. In default of such payment and notification, the appeal will be dismissed without further notice. Either party may contact the Tribunal office to set a new hearing date once payment has been made to the Dairy Farmers of Ontario.
The current panel is seized with this matter, and will hear the appeal if it proceeds.
Dated at Ottawa, Ontario this 8^th^ day of August, 2012