NFU-O Accreditation (Re), 2012 ONAFRAAT 37

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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: 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) [Third Interim Order] 2012 ONAFRAAT 37

STATUTE:

Farm Registration and Farm Organizations Funding Act, 1993

HEARING:

DATE OF DECISION:

November 30, 2012

2012-37

NEUTRAL CITATION:

2012 ONAFRAAT 37

National Farmers Union – Ontario Accreditation [Third 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

THIRD 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”).

On November 23, 2012, the Tribunal issued an order (the “Second Interim Order”) in response to two letters filed by the NFU-O with the Tribunal dated November 22, 2012. The first letter gave notice that the NFU-O was withdrawing its application for accreditation. The second letter sought to commence a fresh application for accreditation under section 4(1) of the Act. Both letters were filed on November 22, 2012, the day that amendments to section 5 of Ontario Regulation 723/93 (the “Regulation”) came into force. Section 5 of the Regulation sets out the criteria that a farm organization must meet in order to be accredited under section 4(1) of the Act. The amended criteria apply equally to the NFU-O’s existing application and to any fresh application as a result of a transitional provision set out in section 5(3) of the Regulation, as amended.

In the Second Interim Order, the Tribunal raised a concern that the NFU-O’s request to withdraw its existing application for accreditation and then immediately commence a fresh application may be an abuse of process in the legal sense. The Tribunal invited written submissions from the NFU-O and the Minister of Agriculture, Food and Rural Affairs (the “Minister”) with respect to that issue.

On November 28, 2012, the NFU-O filed its written submissions with the Tribunal. In those submissions, the NFU-O states that “[t]he NFU-O does not consider it an abuse of process to withdraw its existing application in order to proceed with a fresh application under section 4(1) of the Act.” The NFU-O indicates that its intention in proceeding as it did was to make the Tribunal’s work easier, to make the NFU-O’s application as clear and succinct as possible, and to facilitate an expeditious decision.

In its written submissions, the NFU-O indicates that it is willing to withdraw its letter dated November 22, 2012, giving notice to the Tribunal that the NFU-O was withdrawing its existing application for accreditation. However, the NFU-O goes on to state:

This approach could include the following provisions:

1. A ruling finding that the NFU-O has not committed an abuse of the Tribunal’s process;

2. Application of Ontario Regulation 363/12 [which amends section 5 of the Regulation effective November 22, 2012] to the NFU-O’s July 18, 2012 submission and a decision based only on the amended criteria and

3. A timely response to the NFU-O’s July 18, 2012 application under Ontario Regulation 363/12 as per Rule 34.09 of the Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal [which provides that the Tribunal will release its decision within twenty days after a hearing under the Act has been completed].

It is not clear from the above submission whether the NFU-O’s willingness to withdraw the letter in question is conditional upon the Tribunal’s willingness to grant the three requests set out above. For the purposes of this order, it is sufficient to note that the NFU-O’s written submissions do not constitute an unconditional withdrawal of either letter.

Counsel for the Minister filed a letter with the Tribunal on November 28, 2012, in response to the Second Interim Order. In that letter, counsel states that “[t]he Minister is of the opinion that the NFU-O’s original actions do not in any way constitute an abuse of the Tribunal’s process and were, in fact, justifiable, given the present situation; as such, the Minister would be supportive of the NFU-O’s proposal and of the Tribunal issuing a third Interim Order that reflects the three NFU-O requests.” Among other things, the Minister asks the Tribunal to “expeditiously determine whether it is willing to issue a third Interim Order reflecting the three NFU-O requests.” The Minister also indicates his willingness to make written or oral submissions on the abuse of process issue raised by the Tribunal.

The Tribunal is not prepared to grant the NFU-O’s three requests, for the following reasons:

1. With respect to the first request, the Tribunal is not prepared to make a

finding at this point that the NFU-O has or has not committed an abuse of the Tribunal’s process, given that the Minister has indicated that he is prepared to make submissions on that issue. The law relating to abuse of process is both complex and diverse, and the NFU-O has not provided any case law or legal submissions with respect to that issue (the Tribunal appreciates that the NFU‑O is unrepresented and that it is difficult for an unrepresented party to provide case law or to make legal submissions). The Tribunal would benefit from receiving and reviewing the Minister’s submissions, and any legal submissions that the NFU-O may wish to provide, before making any findings with respect to the abuse of process issue.

2. With respect to the second request, section 5 of the Regulation, as amended, applies to the NFU-O’s existing application as a matter of law, unless there are further amendments to the Regulation. In the Tribunal’s view, it is neither necessary nor appropriate for the Tribunal to include a provision in an interim order that the Tribunal will apply the law in force at the time to the NFU-O’s application. In addition, the NFU-O’s request that the Tribunal render a decision based only on the amended criteria could result in a potential error of law. Not only must the NFU-O meet the amended criteria set out in section 5 of the Regulation, but it must also satisfy the Tribunal that it is an “organization representing farmers in the province” as required by section 4(1) of the Act. The Tribunal raised this issue with the NFU-O at the hearing of this application.

3. With respect to the third request, the Tribunal does not consider it appropriate to bind its own hands with respect to the timing of its decision. The Tribunal’s ability to issue a decision within the timelines set out in Rule 34.09 of the Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal depends on a number of factors, not all of which are within the Tribunal’s control. For this and other reasons, Rule 4.03 provides that the Tribunal may extend any time prescribed by the Rules on such terms as the Tribunal may determine. In all cases, the Tribunal strives to render its decisions as quickly as possible, in light of the prevailing circumstances.

Although it is entirely up to the NFU-O, the NFU-O may wish to consider withdrawing both its letters dated November 22, 2012, without condition. This would allow the Tribunal to continue its work on the NFU-O’s existing application without further delay. It would also render the abuse of process issue moot, thereby avoiding any need for the Tribunal to make findings on that issue. As the Tribunal noted in its Second Interim Order, and reiterates today, the Tribunal has not made any finding that there has been an abuse of process by the NFU-O.

Alternatively, the Tribunal is prepared to receive further submissions on the issues raised in the Second Interim Order and to adjudicate on those issues. In that case, the Tribunal would appreciate receiving the Minister’s submissions by December 7, 2012. The Tribunal is also prepared to allow the NFU-O to make legal submissions on those issues,

in addition to the submissions already filed, by December 7, 2012, should the NFU-O wish to do so. Finally, the Tribunal is prepared to hear oral submissions, in addition to or instead of written submissions, should the NFU-O or the Minister prefer to proceed in that fashion. A date for any oral submissions may be arranged through the Tribunal office.

Order of the Tribunal

The Tribunal therefore orders that:

1. If the NFU-O wishes to withdraw its letters dated November 22, 2012, without condition, and continue with its existing application, it shall serve on the Minister and file with the Tribunal a written notice to that effect by December 4, 2012.

2. If the NFU-O files the written notice set out in paragraph 1 of this order by December 4, 2012, then the NFU-O’s existing application will proceed as though the letters had not been filed. In that case, if the NFU-O wishes to provide further evidence, or to make further submissions, orally or in writing, as a result of the amendments to the Regulation or for any other reason, the NFU-O may direct its request to the Tribunal in writing. Similarly, if the Minister wishes to provide evidence, or to make further submissions, orally or in writing, as a result of the amendments to the Regulation or for any other reason, the Minister may direct his request to the Tribunal in writing.

3. If the NFU-O does not file the written notice set out in paragraph 1 of this order by December 4, 2012, then the Minister shall serve and file any written submissions with respect to the issues raised in the Second Interim Order by December 7, 2012. If the NFU-O wishes to make legal submissions with respect to those issues, in addition to the submissions already filed, it shall serve and file those submissions by December 7, 2012. If either the Minister or the NFU-O wishes to make oral submissions, in addition to or instead of written submissions, that person or party shall arrange a date through the Tribunal office in consultation with the other person or party.

4. This panel shall remain seized of this matter.