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:
Black v Chicken Farmers of Ontario & Ontario Farm Products Marketing Commission
Black v CFO & OFPMC [Motion Hearing] 2014 ONAFRAAT 12
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
May 14, 2014
May 21, 2014
2014-12
NEUTRAL CITATION:
2014 ONAFRAAT 12
Black v Chicken Farmers of Ontario & Ontario Farm Products Marketing Commission [Motion Hearing]
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 Glenn Black, Providence Bay, Ontario, concerning various issues related to Chicken Farmers of Ontario and the Ontario Farm Products Marketing Commission regarding small flock chicken policy and the chicken supply management system in Ontario.
AND IN THE MATTER OF: The hearing of a Motion by Chicken Farmers of Ontario pursuant to Rule 25 of the Tribunal’s Rules of Procedure regarding a number of issues related to the appeal by Glenn Black, including that the Tribunal lacks the necessary jurisdiction to hear some or all of the matters and/or that the Tribunal ought not to hear the appeal.
Before:
John O’Kane, Vice-Chair; Dr. Stan Benda, Vice-Chair; Paula Lombardi, Vice-Chair
Appearances:
Glenn Black – Appellant
Geoff Spurr – Counsel for Chicken Farmers of Ontario
Michele Ireland – Counsel for the Ontario Farm Products Marketing Commission
DECISION OF THE TRIBUNAL – MOTION HEARING
Overview of this Motion and Glenn Black’s Appeal
This motion, heard May 14th, 2014, considered the Chicken Farmers of Ontario (“CFO’s”) request to dismiss or alternatively limit the scope of an appeal to the Tribunal by Glenn Black, a farmer from Providence Bay, Manitoulin Island.
Mr. Black harbours significant animus toward CFO and the Ontario Farm Products Marketing Commission (“Commission”). Mr. Black sees the supply management system for chicken and more particularly the CFO and the Commission as obstacles to his goal, which he explained as ensuring the availability of “affordable locally grown food”. The depth of that animus is revealed in Mr. Black’s appeal materials references to the supply management system, the CFO and the Commission as the “chicken mafia” engaged in “oppression” and “tyranny” and a system of “chicken apartheid”.
Mr. Black’s appeal contains a long list of complaints about CFO and the Commission.
The more focused aspects of Mr. Black’s appeal included challenges of Commission policy and regulations, CFO policy and regulations as well as raising concerns about the appropriateness of supply management as a policy of the federal and provincial governments, the governance of the CFO and the Commission, the constitutional validity of supply management and provincial legislation, and specifically the regulatory regime applicable to chicken growers enacted by the Commission and the CFO.
The broader scope of Mr. Black`s appeal related to what he characterized as an emerging crisis in Ontario with respect to safe and affordable locally grown food. His appeal argues that in order to address that food crisis, the chicken regulatory regime in Ontario must be changed.
Mr. Black’s appeal seeks Tribunal orders overturning or amending policies, regulations and statutes, declaratory orders and monetary damages under many different headings. The appeal seeks a broad ranging investigation into the current chicken regulatory system. Indeed, Mr. Black seeks nothing less than a paradigm shift in the regulatory regime.
In support of the remedies requested, Mr. Black’s appeal relies on God’s Law; Wednesbury unreasonableness; United Nations Universal Declaration of Human Rights; United Nations International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Royal Proclamation of 1763; Colonial Laws Validity Act 1865; and, the Magna Carta, amongst other laws and principles.
As will become apparent from these reasons, while safe affordable food is undoubtedly a laudable goal, the Tribunal does not have the jurisdiction to embark on a public inquiry into that issue even where that public inquiry is clothed as an appeal related to the regulatory regime for chicken in Ontario.
Regulatory Context of Chicken Production and Marketing
The production and marketing of chicken in Ontario is highly regulated under coordinated provincial and federal legislation and under the auspices of a Federal-Provincial Agreement.
Regulatory agencies comprised of chicken producers exist at the federal and provincial levels and are subject to government oversight. This industry self-regulated regime is known as a “supply management system”. That supply management system has been a feature of federal and provincial government policy for fifty years.
The principle provincial statute under the supply management system is the Farm Products Marketing Act (“FPMA”). The principle provincial subordinate legislation in relation to chicken is Ontario Regulation 402 and Ontario Regulation 403.
The chicken regulatory agency in Ontario is the CFO. CFO exercises provincial
regulatory authority delegated from the Commission and federal regulatory authority
delegated from the Chicken Farmers of Canada (“CFC”).
The Commission is an arm of the provincial government responsible for farm product marketing policy and is a supervisory oversight agency monitoring the operations of, the CFO, among other local boards.
Tribunal Jurisdiction
Tribunal jurisdiction is comparable to a cord comprised of three threads. Those three jurisdictional threads can be described as:
subject matter;
remedies; and,
parties.
All three threads are required elements of the Tribunal’s jurisdiction. Without even one of those required elements, the jurisdictional “cord” breaks and the Tribunal has no jurisdiction.
Unlike the Superior Courts of Ontario, the Tribunal has no inherent jurisdiction, it only has statutory jurisdiction.
A. Remedy Jurisdiction
The Tribunal is a creation of statute and its only authority flows from the legislation creating it and from a variety of provincial statutes related primarily to the agricultural sector.
One such statute, and the source of Tribunal jurisdiction in this case, is the Ministry of Agriculture, Food and Rural Affairs Act (MAFRA Act), in particular section 16(1).
The Tribunal is also authorized to hear appeals under the Drainage Act or the Farm Implements Act, for example. However, the Tribunal`s jurisdiction under the MAFRA Act is different than its jurisdiction under either the Drainage Act or the Farm Implements Act.
While the Tribunal may have authority under the Drainage Act to make compensatory awards to landowners impacted by a drain, it would not have authority to make compensatory awards in the context of an appeal under the MAFRA Act, unless that authority was expressly granted in the MAFRA Act. Similarly, while the Farm Implements Act may grant the Tribunal authority to award damages in an appeal related to a defective farm implement, it would not have the authority to award money damages under the MAFRA Act, unless that authority was expressly granted in the MAFRA Act.
In the context of Mr. Black’s appeal under the MAFRA Act, the Tribunal “steps into the shoes” of the CFO and Commission, respectively and its remedial jurisdiction is
described in subsection 16(11).
. . . the Tribunal may by order direct the Commission, the local board, the marketing or the Director, as the case may be, to take such action as it or he or she is authorized to take under the Farm Products Marketing Act or the Milk Act, and as the Tribunal considers proper, and for this purpose the Tribunal may substitute its opinion for that of the Commission, the local board, the marketing board or the Director.
As seen in that wording, the Tribunal has no authority to award damages. Under that wording the Tribunal can order that the CFO or Commission do what they are authorized to do under the FPMA and regulations, as the Tribunal considers proper.
Essential to that remedy jurisdiction is that what the Tribunal orders be “authorized” under the FPMA. Therefore, even if the Tribunal considered it “proper” to order the CFO or Commission to do something, unless the FPMA authorized the CFO or Commission to do so, the Tribunal would have no jurisdiction to grant such a remedy.
The authority and powers of the Commission are detailed in the FPMA. The authority and powers of the CFO are detailed in Regulation 402 and Regulation 403. It is clear from the regulatory regime that the CFO and the Commission have no authority to grant damage awards. Therefore, the Tribunal, standing in their shoes in an appeal under the MAFRA Act, has no authority to award damages.
That illustration of the Tribunal’s lack of remedy jurisdiction under the MAFRA Act to award damages is equally applicable to many of the other remedies Mr. Black sought in his appeal. That list of remedies where the Tribunal has no jurisdiction under the MAFRA Act include:
damages;
declaratory judgments;
general inquiries into the supply management system;
general inquiries into the affordability of food, amongst other claims.
While the Tribunal does not have unlimited remedy jurisdiction, Mr. Black still has access to the courts for damage claims and declaratory judgments. Mr. Black also has access to the class proceedings process and the courts who regularly exercise their jurisdiction to address mass claims of the sort set out in Mr. Black’s Notice of Appeal. Mr. Black may also consider public inquiry legislation at the provincial or federal level to address his issues of broader policy or public interest.
B. Party Jurisdiction
Under subsection 16(1) of the MAFRA Act, a “person” aggrieved by an “order, direction, decision, policy or regulation” made by the CFO or an “order, direction or decision” made by the Commission may appeal to the Tribunal.
From that wording it is apparent that in an appeal such as Mr. Black’s there are three parties: Mr. Black, the CFO and the Commission. Where the Tribunal has remedy jurisdiction and subject matter jurisdiction, it can make orders involving those three parties. However, the Tribunal’s party jurisdiction does not extend beyond those three parties.
Much of Mr. Black’s claims and much of the relief he seeks extends beyond those three parties to other entities such as the people of Ontario generally, other provincial governments, the federal government, and federal regulatory agencies.
The wording of subsection 16(1) of the MAFRA Act that defines the Tribunal’s party jurisdiction does not, in these circumstances, extend beyond Mr. Black, the CFO and the Commission.
The Tribunal has no party jurisdiction over the numerous other entities and people set out in Mr. Black’s Notice of Appeal beyond Mr. Black, CFO and subject to our comments about subject matter jurisdiction, the Commission.
C. Subject Matter Jurisdiction
The wording in subsection 16(1) of the MAFRA Act contains a clear distinction between appeals from the CFO as opposed to appeals from the Commission. That distinction is that no appeal lies to the Tribunal from “policies” or “regulations” made by the Commission.
That subsection 16(1) distinction is amplified in subsection 16(2).
For greater certainty, a regulation or policy made by the Commission . . . shall not be the subject of an appeal before the Tribunal but may be subject to reconsideration by the Commission under section 17.
One aspect of Mr. Black’s appeal relates to the claim that he should be entitled to membership in CFO as a “producer” of chicken and thereby entitled to all the benefits of membership in CFO including the right to attend meetings and vote.
That portion of Mr. Black’s appeal is governed by a regulation made by the Commission, which creates the right to membership and voting in CFO.
It is apparent from the definition section 2 of Regulation 403 that “producer” is defined as a chicken producer who has been fixed and allotted a quota under the Chicken Plan. That definition would exclude Mr. Black as a “producer” as defined since he has not been fixed and allotted a quota. However, section 3 of that same regulation sets out rules respecting voting entitlement and uses somewhat broader wording to describe a producer that Mr. Black asserts he satisfies.
However, based on subsections 16(1) and 16(2) of the MAFRA Act, Mr. Black`s grievance about Regulation 403 which is a Commission regulation, is beyond the Tribunal’s subject matter jurisdiction.
Mr. Black is not without recourse in respect of the issue raised seeking membership and voting rights in CFO. Subsection 16(2) of the MAFRA Act provides that a grievance over a regulation or policy of the Commission is subject to reconsideration by the Commission under section 17, and if not satisfied with that there is a right to seek review of that decision by the Minister of Agriculture and Food. Therefore, the MAFRA Act provides Mr. Black with recourse on that issue, just not recourse to the Tribunal.
To Dismiss or Restrict the Appeal?
Based on the jurisdictional analysis, Mr. Black’s appeal cannot proceed as currently framed.
The Notice of Appeal must be restricted to the issues within Tribunal jurisdiction.
Of the claims advanced in Mr. Black’s Notice of Appeal, the only issue within Tribunal jurisdiction relates to his complaint regarding CFO’s regulation of the 300 bird exemption from the requirement for production quota and marketing quota.
That 300 bird exemption derives from the predecessor of what is currently CFO Regulation No. 2425-2013 that was originally enacted by CFO in 2007.
The CFO raised a limitation issue arguing that Mr. Black had knowledge of the 300 bird exemption policy for more than one year before filing his original complaint in February 2013. In that regard, CFO relied on subsection 16(4) that grants the Tribunal discretionary jurisdiction to refuse such an appeal. CFO argues that since the evidence clearly established that Mr. Black was producing chicken under the 300 bird exemption policy since 2011, the Tribunal ought to refuse to hear the appeal. In response, Mr. Black argued that his education and understanding about the regulatory regime and the full impact of the 300 bird exemption policy was incremental and it was only when the CFO issued a decision in January 2013 regarding a complaint by the Practical Farmers of Ontario that he had a sufficient understanding of the issues relating to the 300 bird exemption.
In considering Mr. Blacks request that we decline to exercise our discretion to refuse to hear his appeal, the Tribunal is mindful that it must balance competing interests. On the CFO side there is the interest in finality and curtailing endless challenges to policies and regulations. On Mr. Blacks side this appeal may be his only opportunity to challenge what he asserts is a CFO policy/regulation that restricts his ability to have an economically viable chicken farm.
In this balancing exercise, the Tribunal also considers the evidence of prejudice to each side as a significant factor to consider.
CFO did not tender any evidence of significant prejudice if an appeal of Regulation No. 2425-2013 and the 300 bird exemption policy was allowed to continue to a hearing. The prejudice to Mr. Black is that he would be deprived of a full hearing on the merits of his complaint of that Regulation/policy.
In the circumstances of this case, the Tribunal is satisfied that, given the absence of any real prejudice to CFO, we should decline to exercise the discretion granted under subsection 16(4) of the MAFRA Act to refuse to hear Mr. Black`s appeal.
Therefore, Mr. Black’s appeal will be allowed to continue but will be restricted as follows:
The Notice of Appeal as filed is struck with leave being granted to allow Mr. Black to re-file an Amended Notice of Appeal within 60 days of the date of these reasons.
The Amended Notice of Appeal will be restricted to Mr. Black`s complaint about CFO Regulation No. 2425-2013 and the 300 bird exemption policy.
This panel will remain seized of this matter.
When Mr. Black files an Amended Notice of Appeal as directed, the Tribunal Coordinator will convene a telephone pre-hearing conference to establish a Pre-Hearing Procedural Order addressing, among other issues: pre-hearing exchange of documents; examinations for discovery, if any; exchange of experts’ reports; witness lists; and, duration of the hearing.
Order of the Tribunal
The Tribunal Orders:
- The motion by Chicken Farmers of Ontario is granted as follows:
a. Mr. Black’s Notice of Appeal is hereby struck;
b. Mr. Black is granted leave to file an amended Notice of Appeal within 60 days of the date of this Order;
c. Mr. Black’s Amended Notice of Appeal is restricted to challenging CFO Regulation No. 2425-2013 and the 300 bird chicken exemption policy;
d. This panel shall remain seized of the matter if Mr. Black files an amended Notice of Appeal;
e. If Mr. Black files an Amended Notice of Appeal, the Tribunal Coordinator will convene a telephone pre-hearing conference to establish a Pre-Hearing Procedural Order addressing, among other issues: pre-hearing exchange of documents; examinations for discovery, if any; exchange of experts’ reports; witness lists; and, duration of the hearing.
Dated at Brampton, Ontario this 21st day of May, 2014.