Murray v. Dairy Farmers of Ontario, 2014 ONAFRAAT 1

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: Murray v Dairy Farmers of Ontario

Murray v DFO 2014 ONAFRAAT 1

STATUTE: Ministry of Agriculture, Food and Rural Affairs Act

HEARING: December 30, 2013

DATE OF DECISION: January 6, 2014

2014-01

NEUTRAL CITATION: 2014 ONAFRAAT 1

Murray v Dairy Farmers of Ontario

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 David Murray of Mitchell, Ontario from the Dairy Farmers of Ontario in which the Board upheld the decision to reject his request for reconsideration of election ballots.

Before: Harold McNeely, Vice-Chair; Robert Scouller, Member; Richard Smelski, Member

Appearances: David Murray – Appellant Graham Lloyd – General Counsel and Returning Officer for the Dairy Farmers of Ontario, Respondent

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario on December 30, 2013.

Appeal Overview

The Appellant David Murray, a dairy producer from Mitchell, Ontario, was a candidate in Region 10 for the election of Board Members of the Dairy Farmers of Ontario (“DFO”) held in the fall of 2013. The Returning Officer supported by two scrutineers rejected 10 ballots postmarked October 30^th^ 2013, ruling that under Sec 14(4) of Regulation 760 of the Milk Act, he could not be satisfied the ballots were mailed or consigned for delivery not later than October 29, 2013, being the last Tuesday of October. The Board declared Henry Wydeven elected, having received the most votes in the election in Region 10. The Appellant appeals the Board’s decision and requests that the 10 ballots postmarked October 30^th^ be counted in a recount.

Preliminary Matter: Request by Counsel to be allowed to testify

At the outset, the Tribunal was informed by Graham Lloyd, Counsel for Dairy Farmers of Ontario (“DFO”) that he would also be a witness at the hearing. Mr. Lloyd was the Returning Officer who, in rejecting certain ballots during the election, was acting under the authority of Section 14(4) of Reg. 760 of the Milk Act. The Tribunal voiced its concern that a lawyer should not give evidence at a hearing in which he appears as counsel.

Rule 4.02(2) of the Rules of Professional Conduct of the Law Society of Upper Canada states:

(2) Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not testify before the tribunal unless permitted to do so by the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted.

The commentary to the Rule goes on to state:

“A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer.”

Mr. Lloyd suggested that his position as General Counsel and also as Returning Officer, allowed him to be both Counsel and a witness at the hearing. Mr. Lloyd had prepared a two page summary of facts which incorporated by reference certain documents filed with the Tribunal by DFO. The statement of fact was reviewed by the Appellant who accepted these facts as the relevant facts of this appeal. The Appellant also acknowledged that he did not wish to cross-examine Mr. Lloyd.

The Rules of the Tribunal do not address the issue of a counsel who also desires to be a witness at a hearing. The Tribunal is left to apply the provisions of Rule 4.02(2) of the Rules of Professional Conduct. Given that the hearing would proceed by way of a Statement of Facts, agreed to by the Appellant, with the Appellant retaining his right to give evidence, the Tribunal exercised its discretion to allow the hearing to proceed, while allowing Graham Lloyd to act as Counsel to DFO. However, it should be said that the circumstances in which a lawyer is allowed to testify and act as counsel are very limited. The Tribunal does not agree with the proposition put forward by DFO’s lawyer that the dual role of General Counsel and Returning Officer exempts him from the application of Rule 4.02(2).

The Issue to Be Determined

Should the Tribunal direct the Board and the Returning Officer of DFO to conduct a recount of ballots cast for the election held in Region 10, and to include in this recount 10 ballots in envelopes postmarked October 30^th^, 2013?

Evidence

Mr. David Murray

David Murray is a dairy producer in Region 10 who operates a dairy farm with his wife Annamarie in Mitchell, Ontario. He has been a member of the board of DFO since 2005. He ran for election to the Board of DFO in the fall of 2013.

Mr. Murray contends that the 10 ballots postmarked October 30^th^ should not be rejected but should be counted in a recount. He testified that at the Mitchell Post Office, if envelopes arrive at the Post Office after 3:30 p.m., these are postmarked the following day. This is information provided to him by the Manager of the Post Office. He allows however that there is no “written policy” within the post office that this is the practice in all post offices. He also contends that all or some of the 10 ballots in issue could have been consigned to the Post Office on October 29^th^, although postmarked October 30^th^. He states that these ballots, postmarked October 30^th^ demonstrate an intention on the part of the producers to comply with the spirit of the legislation and, should be counted since the regulation speaks of “ballots consigned” and does not specify envelopes which are “postmarked”. He also argues that the ballots may have been delivered to the various Post Offices in Region 10 on October 29^th^, but postmarked October 30^th^, in accordance with the practice at the Mitchell Post Office.

Mr. Murray also underlines that the form of ballot (Ex.2) used by DFO states: “Ballots must be marked or consigned for delivery no later than October 29, 2013.” It does not specify postmarked.

However, a caution is added in the ballot that “Mailing early is recommended to ensure the ballot is received in time”.

Mr. Murray also acknowledged that the rejected ballots may have only been consigned on October 30^th^ but states that DFO should count these ballots since the producers have complied with the spirit of the legislation and should not be denied their right to participate in the election process.

Evidence of Graham Lloyd

Graham Lloyd is the Returning Officer appointed by the DFO to oversee the elections to the Board. He was assisted by two scrutineers and two returning deputy officers in counting ballots. The following is the Agreed Statement of Facts prepared by Graham Lloyd and accepted by the Appellant.

1. In August 2013 DFO Election Returning Officer (“Returning Officer”) gave notice to the licensed dairy producers in Region 10 that an election would be held in their region.

2. By correspondence dated September 17, 2013 the Returning Officer wrote to each of the three submitted candidates advising that, if there was an election, ballots would be mailed to each regional producer and “must be returned, by postmark, by the last Tuesday in October, which is October 29, 2013”. (emphasis by Mr. Lloyd and not by the Tribunal)

3. Ballots were delivered to all licensed dairy producers in Region 10. As well, John Klaver, Member of the Huron Dairy Producer Committee and Ed Danen, Member of the Perth Dairy Producer Committee, were appointed official scrutineers.

4. In accordance with Section 14(3) of Regulation 760, each ballot was scrutinized for compliance.

5. Regulation 760 prescribes that ballots are to be mailed or consigned for delivery by the last Tuesday in October, which was October 29 and ballots are to be counted on the second Tuesday in November.

6. On Tuesday November 12, 2013, the Returning Officer, both Deputy Returning Officers (Barb Richards and Kathy Hamilton), and the Scrutineers reviewed each ballot, including the rejected ballots.

7. The total ballots received were 318. There were 29 rejected ballots: 2 for not being enclosed in the ballot envelope, 15 for missing information on the Ballot Envelope, and 12 for being postmarked after October 29, 2013. Therefore, it was determined there were 289 valid ballots.

8. The results of the valid ballots showed Henry Wydeven received the most votes and David Murray lost the election by 2 votes.

9. Each of the candidates was notified of the results.

10. On or around November 13, 2013, David Murray requested a recount of the ballots. Specifically, he requested that all ballots postmarked October 30 be included in the counting of the ballots on the basis they may have been mailed or consigned for delivery by October 29, 2013.

11. By letter dated November 14, 2013, the Returning Officer informed him that because he could not be satisfied that the ballots postmarked October 30 (ten (10) ballots) were not mailed after October 29, 2013, they would not be included in a recount.

12. No recount proceeded as it was determined it was premature to conduct a recount until the Board rendered a decision, as Regulation 760 permits a recount after the Board declared a candidate elected.

13. By motion 13-11-03 the DFO Board accepted the Returning Officer’s recommendation and declared Henry Wydeven elected to serve as Board Member for Region 10, for a four year term commencing January 9, 2014.

14. Murray requested a Reconsideration of the decision, which was heard and denied on December 9, 2013.

Analysis and Findings

Although the Tribunal understands the Appellant’s concern to not deny a producer the right to participate in the election process, such a process must be governed by rules.

In his letter to the three candidates dated September 17^th^, the Returning Officer had defined the terms prior to the election, in accordance with section 14(4) by stating that “The Ballots must be returned, by postmark, by the last Tuesday in October which is October 29 2013.” Each ballot was scrutinized by two scrutineers to ensure compliance with the Regulation and they concurred with the Returning Officer’s decision to exclude from the count or reject 10 ballots dated October 30^th^ 2013.

In confirming his decision by letter dated November 14, 2013 the Returning Officer stated: “In accordance with Section 14(4) of Regulation 760, these ballots were rejected as I cannot be satisfied the ballots were mailed or consigned for delivery not later than October 29, 2013.” The Returning Officer’s determination to exclude the 10 ballots postmarked October 30^th^ supported by the scrutineers and adopted by the Board of DFO is, in the Tribunal’s view, the correct application of Sec 14(4) which states that “The Returning Officer shall not accept an envelope unless he or she is satisfied it was mailed or consigned for delivery not later than the last Tuesday in October.” The Agreed Statement of Fact (Ex.1) confirms that the Board and its Officials responsible to carry out the election carried out their duties in accordance with Regulation 760. To rule otherwise, would be to allow the Returning Officer to speculate as to whether a ballot postmarked the day after the deadline was in fact consigned to the Post Office the day before, as suggested by Mr. Murray or was cast late and therefore non-compliant with Section 14(4). This exercise would introduce a subjective element in what is otherwise an objective exercise. The Returning Officer and this Tribunal would be in effect determining which ballots were mailed correctly and which were not, with no actual proof either way that the decision re each ballot was the correct one. In effect a person could be elected contrary to the Regulation, thus the need for such rules in the process. The postmark affixed by a neutral third party is the confirmation the ballot was consigned by the deadline imposed by the Regulation.

Order of the Tribunal

The Tribunal hereby orders that the Appeal is dismissed.

Dated at Ottawa, Ontario this 6th day of January, 2014