National Farmers Union – Ontario Accreditation (Re), 2012 ONAFRAAT 34

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

Courriel: appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

National Farmers Union – Ontario Accreditation

NFU-O Accreditation (RE) [Second Interim Order] 2012 ONAFRAAT 34

STATUTE:

Farm Registration and Farm Organizations Funding Act, 1993

HEARING:

DATE OF DECISION:

November 23, 2012

2012-34

NEUTRAL CITATION:

2012 ONAFRAAT 34

National Farmers Union – Ontario Accreditation [Second Interim Order]

IN THE MATTER OF: SECTIONS 4 AND 5 OF THE FARM REGISTRATION AND FARM ORGANIZATIONS FUNDING ACT, 1993.

AND IN THE MATTER OF: An application to the Agriculture, Food and Rural Affairs Appeal Tribunal by the National Farmers Union - Ontario (NFU-O) for accreditation under Subsection 4(1) of the Act.

Before: Nicholas Richter, Vice-Chair; Jane Sadler Richards, Member; Mary Field, Member

Appearances:

Ann Slater, Ontario Coordinator/President, NFU-O

Sarah Bakker, Office Administrator, NFU-O

SECOND INTERIM ORDER OF THE TRIBUNAL

This matter was heard by the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) on July 18, 2012, in the Tribunal Boardroom, Guelph, Ontario. The National Farmers Union - Ontario (the “NFU-O”) applied to the Tribunal to become an accredited farm organization pursuant to section 4(1) of the Farm Registration and Farm Organizations Funding Act, 1993 (the “Act”).

The criteria for accreditation of a farm organization are set out in section 5 of Ontario Regulation 723/93 (the “Regulation”). On August 10, 2012, the Tribunal made an interim order inviting the NFU-O and the Minister of Agriculture, Food and Rural Affairs (the “Minister”) to make written submissions with respect to the interpretation of the word “member” in section 5 of the Regulation as it then was. The NFU-O filed submissions on August 22, 2012, and the Minister filed submissions on August 24, 2012.

Similar orders with respect to the interpretation of the word “member” were made in accreditation proceedings involving the Christian Farmers Federation of Ontario (the “CFFO”) and the Ontario Federation of Agriculture (the “OFA”), both of whom also filed submissions. On November 7, 2012, the Tribunal dismissed the CFFO’s application for accreditation. On November 14, 2012, the Tribunal dismissed the OFA’s application for accreditation.

On November 15, 2012, Cabinet amended section 5 of the Regulation. As a result of those amendments, the fourteen criteria set out in section 5(1) of the Regulation were reduced to five. The five criteria that remain are identical to their originals, except for changes in numbering and some variations in the wording of what is now section 5(1)1 of the Regulation. In addition, section 5(2) of the Regulation was amended to renumber a paragraph reference, sections 5(3) and 5(4) were repealed, and a new section 5(3) was enacted (as described in the next paragraph). Those amendments came into force on November 22, 2012, prior to the release of any decision by the Tribunal on the NFU-O’s application for accreditation.

Section 5(3) of the amended Regulation contains the following transitional provision: “For greater certainty, the criteria set out in subsections (1) and (2), as those subsections read on and after November 22, 2012, apply to an application for accreditation that was made to the Tribunal before that date.” As a result of this provision, the NFU-O’s existing application for accreditation became subject to the amended criteria set out in section 5 of the Regulation when the amendments to the Regulation came into force on November 22, 2012.

On the day that the amendments came into force, the NFU-O filed two letters with the Tribunal dated November 22, 2012. In the first letter, the NFU-O gives notice that it is withdrawing its application for accreditation. In the second letter, the NFU-O seeks to commence a fresh application for accreditation under section 4(1) of the Act.

The Tribunal is concerned that the NFU-O’s request to withdraw the existing application and then immediately commence a fresh application may be an abuse of process in the legal sense. It appears to the Tribunal that:

1. the two applications are essentially the same;

2. as a result of the transitional provision in section 5(3) of the Regulation, as amended, the five criteria set out in section 5(1) of the Regulation, as amended, apply equally to the first and the second applications;

3. the Tribunal has already heard extensive evidence with respect to all five criteria set out in section 5(1) of the Regulation, as amended;

4. those five criteria are identical in wording to their originals, except for changes in numbering and some variations in the wording of what is now section 5(1)1 of the Regulation;

5. if the NFU-O wishes to address any issues arising from the amendments to section 5 of the Regulation, it can do so within the existing application by making the appropriate request to the Tribunal;

6. the Tribunal has already committed substantial resources to the existing application; and

7. it would be an inefficient use of the Tribunal’s resources to allow the NFU-O to withdraw the existing application and then proceed with a fresh application, including a fresh hearing on all issues.

Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), provides that “[a] tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” This section would appear to allow the Tribunal to make an order setting aside the NFU-O’s notice of withdrawal and requiring the NFU-O to continue with the existing application for accreditation. The section would also appear to allow the Tribunal to make an order staying the second application as an abuse of process. This power to stay a proceeding for abuse of process would be in addition to the Tribunal’s general powers to stay a proceeding under section 9.1(1)(d) of the SPPA and Rule 8.01(b) of the Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal.

Given the above concerns, the Tribunal considers it appropriate to allow the NFU-O an opportunity to make written submissions on the following issues:

1. whether it would be an abuse of process for the NFU-O to withdraw its existing application and proceed with a fresh application under section 4(1) of the Act;

2. if so, whether the Tribunal should exercise its discretion under section 23(1) of the SPPA to prevent abuse of its processes; and

3. if so, what orders or directions would be appropriate in the circumstances.

The Tribunal has not reached any conclusions with respect to the above issues, nor has it made any finding that there has been an abuse of process by the NFU-O. The Tribunal reserves judgment on all of these issues until the NFU-O has had an opportunity to make submissions in response to this order.

A copy of this order is being served on the Minister as required under section 31 of the Act. The Minister has a statutory right to make submissions pursuant to sections 4(4) and 5(2) of the Act, and the Tribunal invites the Minister to make written submissions on the above issues, should he wish to do so.

Order of the Tribunal

The Tribunal therefore orders that:

1. The NFU-O and the Minister shall serve on each other and file with the Tribunal their written submissions on the issues set out above, if any, by no later than December 3, 2012.

2. This panel shall remain seized of this matter.