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:
Association of Ontario Chicken Processors v. Chicken Farmers of Ontario
Association of Ontario Chicken Processors v. CFO [Motion Decision] (With Reasons) 2013 ONAFRAAT 18
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
December 31, 2013
2013-18
NEUTRAL CITATION:
2013 ONAFRAAT 18
Association of Ontario Chicken Processors v. Chicken Farmers of Ontario [Motion Decision] (With Reasons)
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 the Association of Ontario Chicken Processors (AOCP) from the Chicken Farmers of Ontario (CFO) decision to implement the Specialty Chicken Policy in Quota Period A-119.
AND IN THE MATTER OF: A Notice of Motion filed by the Ontario Independent Poultry Processors (OIPP) requesting party status.
Before:
Paula Lombardi, Vice-Chair; Tim Mousseau, Member; John Rudics, Member
Appearances:
None.
DECISION OF THE TRIBUNAL FOR MOTION HEARING
In its decision dated December 9th, 2013, the Tribunal granted OIPP party status to this appeal with written reasons to follow.
Background
On April 17, 2013, the Association of Ontario Chicken Processors (“AOCP”) appealed a decision by the Chicken Farmers of Ontario (“CFO”) to implement CFO Speciality Chicken Policy 199-2013 (“Policy”) in Quota Period A-119. The appeal was filed with the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) pursuant to section 16 of the Ministry of Agriculture, Food and Rural Affairs Act (“Act”). Two adjournments to the hearing have been granted, at the request of the parties, to allow AOCP and CFO to engage in settlement discussions. The parties requested an adjournment of the December dates to allow further settlement discussions and the hearing is scheduled for January 22nd and 24th, 2014.
On November 27, 2013 the Ontario Independent Poultry Processors (“OIPP”) filed a motion requesting full party status to the hearing. The OIPP is a registered industry association that represents the interests of the smaller, independent poultry processors of Ontario. The Tribunal notes that neither the AOCP nor CFO filed any submissions in response to OIPP’s request for party status.
Party Status
The Act does not provide a definition of what constitutes a “party” but does set out in section 16(10) the persons who will be considered a party to an appeal.
Section 16(10) of the Act states:
Parties (10) At any hearing under this section, any person entitled to receive notice under section (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 and Procedure Act applies. [emphasis added]
The Act grants the Tribunal the discretion to grant persons with a sufficient interest in the appeal party status.
Rule 33.08 of the Tribunal’s Rules of Procedure (“Rules”) reflects the language set out in the Act, and allows the Tribunal, where there is an appeal under section 16(1) or (2) of the Act, to grant party status to any person having a sufficient interest in the subject matter of the appeal. The Rules also do not provide a definition of what constitutes a party. However, both the Act and the Rules contemplate that those persons showing a sufficient interest in the appeal can be made a party to the hearing by the Tribunal.
Sufficient is defined in the Merriam-Webster dictionary as follows:
1 (a) enough to meet the needs of a situation or a proposed end <sufficient provisions for a month>
(b) being a sufficient condition
Taking into consideration the Act, Rules and the Merriam-Webster’s dictionary definition of sufficient, the OIPP must show the Tribunal that it has an adequate or appropriate interested in the appeal that it should be made a party to the hearing.
It is also worth noting that the Courts have characterized party status as a procedural issue, that allows for the persons if made a party to receive notice, disclosure, to call and question witnesses and to advocate for a certain result (see Children’s Aid Society of the County of Renfrew v. J.D., 2011 ONSC 744). The Courts consider the test set out in the Rules of Civil Procedure to determine whether or not to grant a person full party status to a proceeding. Rule 13.01 of the Rules of Civil Procedure effectively creates a 2-step process. Step one, crossing the threshold, is found in Rule 13.01(1):
A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
The jurisprudence relating to party status are consistent in that (a) to (c) of Rule 13.01(1) are to be read disjunctively rather than conjunctively. In other words, a party is only required to fit within one of them to satisfy the first part of the two-step process (see Bloorview Children’s Hospital Foundation v. Bloorview MacMillan Centre, [2001] O.J. No.1700). The onus of falling within Rule 13.01(1) (a), (b) or (c) lies with the person or entity making the request for party status (see M. v. H. 1994 CanLII 7324 (ON SC), (1994), 20 O.R. (3d) 70).
Once it has been established that the individual or entity requesting party status falls within one aspect of Rule 13.01(1), the court then moves onto the second stage of the inquiry, as set out at subrule 13.01(2) (see Bloorview, supra). Rule 13.01(2) states:
On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
This part of the Rule makes it clear that the court retains discretion regarding the outcome of the motion, so that even if a party has brought himself within Rule 13.01(1)(a), (b) or (c), there are other factors to be considered before a request for party status is granted.
When the two parts of the tests are read together, they provide the court with the overall guideline for approaching requests for party status. The court considers the nature of the proceeding into which the proposed intervenor is seeking party status along with the identity of the proposed intervenor. The court then determines whether the decision of the court will have an impact on the person or entity requesting party status. Where it is established that it may, the court must then balance two things: the desirability of giving that person a voice in the hearing while providing either additional information or a different perspective, against any possible increase in costs, delay of the process or prejudice to the named parties to the hearing. The jurisprudence is clear that the courts have taken a practical approach in determining whether or not to grant party status.
Analysis
The OIPP is a registered industry association that represents the interests of smaller, independent poultry processors of Ontario. OIPP were full participants in the development of the CFO Policy that is the subject matter of the hearing. Also, OIPP asserts that CFO’s delay in implementing the Policy has resulted in irrevocable damage to OIPP members.
According to OIPP, its members relied on the implementation of the Policy to solicit their customer base regarding the volume of product that will be purchased prior to submitting their applications and as a result in the ongoing delay in the implementation of the Policy the amount of product requested will not be available to the consumers.
OIPP’s concern is that the CFO has failed to respect its mandate as given by the Farm Products Commission to ensure that an adequate supply of product is available to all consumers, not just those few select consumers that are serviced by the large companies.
OIPP has demonstrated that it has an interest in the subject matter of the proceeding and that any decision made by the Tribunal relating to the Policy and its implementation may potentially impact OIPP’s membership.
OIPP’s motion for party status was filed with the Tribunal prior to the December hearing dates. The hearing has been adjourned to the last week in January and OIPP’s request for party status does not result in any prejudice or delay to the AOCP or CFO. Also, neither the AOCP nor the CFO submitted any responding materials to OIPP’s motion opposing the request for party status.
OIPP has satisfied the Tribunal, on a balance of probabilities, that its participation as a full party will ensure an informed adjudication of the issues raised in the appeal and that OIPP has sufficient interest in the subject matter of the appeal. In the circumstances, the Tribunal concluded that OIPP meets the applicable test for party status.
Order of the Tribunal
Therefore, the Tribunal ordered in its decision dated December 9, 2013 that OIPP’s application for full party status is granted.
Dated at London, Ontario this 31st day of December, 2013