Agriculture, Food and Rural Affairs Appeal Tribunal
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
APPEAL: Chesterman Farm Equipment Inc. v. CNH Canada Ltd.
Chesterman Farm Equipment v. CNH Canada 2013 ONAFRAAT 6
STATUTE: Farm Implements Act
HEARING: May 27, 2013
DATE OF DECISION: May 28, 2013
2013-06
NEUTRAL CITATION: 2013 ONAFRAAT 6
Chesterman Farm Equipment Inc. v. CNH Canada Ltd.
IN THE MATTER OF THE FARM IMPLEMENTS ACT.
AND IN THE MATTER OF: An Application to the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) by Chesterman Farm Equipment Inc. (CFEI), of Tillsonburg, Ontario, under Section 5 of the Farm Implements Act from a dispute with CNH Canada Ltd. (CNH).
AND IN THE MATTER OF: The continuation of the hearing to consider the damages portion of the dispute between CFEI and CNH.
Before: John O’Kane, Vice Chair; Rob Scouller, member
Appearances: John May, counsel for appellant, Chesterman Farm Equipment Inc. Ian Flett, co-counsel for appellant Stuart Mackay, counsel for respondent, CNH Canada Ltd.
VOIR DIRE DECISION OF THE TRIBUNAL
At the start of the resumption of the hearing, Counsel for CFEI requested a voir dire hearing about the admissibility of the materials that the Tribunal ordered to be delivered in a May 24th, 2013 Order.
The Voir Dire
About two weeks, ago, while preparing for the continuation of this hearing, Dave Chesterman, the principal of CFEI, discovered that certain areas of loss in the CFEI damages claim were not correct.
Chesterman testified that the original claim was based in part on projections made following the termination of the relationship between CFEI and CNH. Those projections were made in the period of 2006 to 2008.
Chesterman testified that with the passage of time, actual sales and expenses data is now available and the projections should be replaced with actual data.
There is no evidence before the Tribunal contradicting Chesterman’s evidence about the timing of the realization of that oversight.
However, that oversight also impacts on the economic loss calculations in CFEI’s proposed expert’s report. That impact was summarized by CFEI’s proposed expert in a one page narrative addendum and a revised Schedule 2 produced on May 27th, pursuant to the Tribunal Order of May 24th, 2013.
CNH objects to the admissibility of:
(a) the CFEI financial statement data; and,
(b) CFEI’s proposed expert’s revisions to his report.
The basis of the CNH objections are relevance and timing.
Evidence is relevant if it tends to prove or disprove an issue in dispute.
The Tribunal is entitled to received the best evidence to inform its decision making.
The nature of the CFEI financial data presented at the voir dire is indistinguishable from CFEI financial data previously filed with the Tribunal and that has been the subject matter of examinations for discovery.
While no ultimate admissibility or reliability determination has been made, such information has featured prominently in this case. Therefore, the Tribunal accepts that the material is relevant, at least prima facie.
The law is that relevant information should be admitted unless the prejudice to the opposing party outweighs the prejudice to the party seeking admissibility.1
The Tribunal Rules 1.07, 20.06, and 22.02 inform the Tribunal’s decision making in these circumstances.
While cross-examination of Chesterman on the voir dire suggested that he knew about losing, for example, sales of Walco, ALO and Horst equipment during the period that he made his initial loss projections, we are not sure that, even if that was true, it would be a sufficient reason not to allow information based on actual financial performance into the record in these proceedings, subject to procedural fairness safeguards to allow CNH a limited opportunity for additional examination for discovery and the right to supplement their proposed expert’s evidence.
Therefore, we are of the view that the prejudice to CFEI of excluding the information outweighs the prejudice to CNH, which can be addressed by a short adjournment, the additional limited discovery as directed and supplementing the proposed expert’s report.
In reaching this determination the Tribunal was also informed by proportionality considerations. On the face of the CFEI proposed expert’s narrative and revised Schedule 2, the order of magnitude of the proposed changes to the CFEI damages ranges from $30,000 to $40,000.
For those reasons, the Tribunal makes the following order:
ORDER OF THE TRIBUNAL
The hearing is adjourned to June 17th, 2013 and will continue thereafter on the previously set hearing dates as needed.
CFEI will produce Dave Chesterman for further examination for discovery on June 3rd, 2013, commencing at 1:00 p.m., at a venue to be agreed by counsel.
The scope of the further examination for discovery shall be limited to questions arising from the following documents produced to the Tribunal on May 27th, 2013, specifically:
a. Voir dire Exhibit A;
b. Voir dire Exhibit B;
c. Voir dire Exhibit C.
CNH’s proposed expert witness shall deliver any supplemental expert’s report addressing the information in the documents listed in paragraph 3 (a) to (c) by the close of business Friday, June 14th, 2013.
The costs of May 27, 2013 are reserved.
Dated at Brampton, Ontario this 28th day of May, 2013