Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Ontario Dairy Council v Ontario Farm Products Marketing Commission
Ontario Dairy Council v OFPMC [Procedural Order] 2014ONAFRAAT13
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
May 26, 2014
2014-13
NEUTRAL CITATION:
2014 ONAFRAAT 13
Ontario Dairy Council v Ontario Farm Products Marketing Commission [Procedural Order]
IN THE MATTER OF THE MILK ACT AND 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 Ontario Dairy Council, Mississauga, Ontario, from a decision of the Ontario Farm Products Marketing Commission dated December 19, 2013 in which it granted Mac’s Convenience Stores Inc.’s request to test market a three-litre jug for fluid milk products for a one year period.
AND IN THE MATTER OF: A letter from the Ontario Farm Products Marketing Commission dated March 11, 2014 in which the Commission advised that documents in Tabs 4, 17, 20 and 22 of the binder of documents provided to the Tribunal on March 11, 2014 contains confidential commercial information. (Confidential information identified and redacted in copies sent to the Ontario Dairy Council and Mac’s convenience Stores Inc.) The letter also stated that the Commission intends to request that the Tribunal order that the information marked “confidential commercial information” be treated as confidential, be sealed and not form part of the public record.
AND IN THE MATTER OF: A notice of motion filed by the Commission on March 31, 2014 in which it is seeking an Order that the Tribunal does not have jurisdiction over the subject matter of the appeal filed as it claims the Commission’s decision of December 19, 2013 is a decision of general application and shall not be the subject of an appeal before the Tribunal in accordance with subsection 16(2) of the Ministry of Agriculture, Food and Rural Affairs Act.
AND IN THE MATTER OF: A letter from the Ontario Dairy Council dated April 16, 2014 in which it requested access to the redacted portions of the Commission’s binder of documents in order to determine if any of the redacted portions are of relevance to the motion on jurisdiction filed by the Commission.
REQUEST FOR RESTRICTED ACCESS TO DOCUMENTS
In a Procedural Order dated April 24, 2014, the Tribunal invited the Ontario Farm Products Marketing Commission to file a request pursuant to Rule 23 of the Tribunal’s Rules of Procedure for restricted access to any portions of its binder of documents filed March 11, 2014, that it deems to be confidential, commercial information. That invitation was issued as a result of the Ontario Dairy Council seeking access to redacted portions of documents submitted by the Commission in its binder of documents. Mac’s Convenience Stores Inc. made no such request to the Tribunal nor advised the Tribunal that it was represented by outside legal counsel with respect to the appeal before the Tribunal.
In response to that invitation, the Commission filed a request for restricted access on May 2, 2014. The Commission’s request to the Tribunal was that the portions of the documents at Tabs 4, 17, 20 and 22 of the Commission’s binder of documents marked as “Confidential Commercial Information” (hereinafter referred to as “Confidential Commercial Information) should not be accessible to the public, to the other parties to the appeal or to the counsel or agents of the other parties with the exception that information in the document at Tab 4 that is related to Mac’s may be available to them.
As mentioned already, Mac’s Convenience Stores Inc. has made no request for access to any redacted portions of the Commission’s binder of documents.
The Ontario Dairy Council filed a notice of objection to the Commission’s request and argued that, at the very least, counsel for the parties should have access to the redacted information marked “Confidential Commercial Information” pursuant to Rule 23.15 of the Tribunal’s Rules of Procedure.
The Tribunal has considered the request for restricted access and is of the view that the portions of documents at Tabs 4, 17, 20 and 22 contain confidential business information which justifies restricted access. The Tribunal is satisfied that the Confidential Commercial Information be sealed, not form part of the public record and that the restricted access be given to Counsel to the Ontario Dairy Council to portions of the documents marked as Confidential Commercial Information on the terms set out below.
The Tribunal therefore makes the following order.
ORDER OF THE TRIBUNAL
The portions of the documents at Tabs 4, 17, 20 and 22 marked as “Confidential Commercial Information” in the Commission’s binder of documents submitted to the Tribunal on March 11, 2014 shall be placed in a sealed envelope and will not be accessible to the public or to the other parties to the appeal subject to the following.
Counsel to the Ontario Dairy Council is granted access to the Confidential Commercial Information for the limited purpose of preparing the Ontario Dairy Council’s response to the Commission’s motion on the Tribunal’s jurisdiction subject to completing the declaration and undertaking as indicated in paragraph 3.
Counsel to the Ontario Dairy Council is to complete the attached declaration and undertaking appended to this procedural order that counsel will not:
a) Share the Confidential Commercial Information implicitly or explicitly with any other person; or
b) Reproduce, in any manner, any information in the confidential portion of the documents.
c) Within thirty (30 days) of receipt of the Tribunal’s decision with respect to the jurisdiction issue, I will destroy the Confidential Information provided to me by the Tribunal and any notes that I have prepared relating to this information.
Upon receipt of the signed declaration and undertaking from counsel to the Ontario Dairy Council, the Tribunal will courier the Confidential Commercial Information to counsel to the Ontario Dairy Council.
Within 10 days of receipt of the signed declaration and undertaking from counsel to the Ontario Dairy Council, the Ontario Dairy Council and Mac’s Convenience Stores Inc. are to file their response to the motion on jurisdiction. The Tribunal will inform the Ontario Dairy Council and Mac’s Convenience Stores Inc. of the date of receipt of the signed undertaking.
The provisions of this Order shall continue after the final disposition of these proceedings and this Tribunal shall retain jurisdiction to deal with any issues relating to this Order including without limitation its enforcement.
Dated at Ottawa, Ontario this 26th day of May, 2014
DECLARATION AND UNDERTAKING
IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by the Ontario Dairy Council, Mississauga, Ontario, from a decision of the Ontario Farm Products Marketing Commission dated December 19, 2013 in which it granted Mac’s Convenience Stores Inc.’s request to test market a three-litre jug for fluid milk products for a one year period.
I, [insert name], counsel to the Ontario Dairy Council, the appellant, DECLARE THAT:
I am/am not an employee, officer, director or shareholder of the party for whom I appear or any other person known by me to be a participant at this hearing;
I acknowledge that I am about to receive Confidential Information from the Agriculture, Food and Rural Affairs Appeal Tribunal as defined in the Order of the Tribunal dated, May 26, 2014.
I certify my understanding that this Confidential Information is being produced to me pursuant to the terms and restrictions of the Order of the Tribunal dated, May 26, 2014, and that I have been given a copy of and have read and understood my obligations under that Order. I hereby agree to be bound by the terms of that Order. I agree to utilize the Confidential Information solely for the purposes of preparing the Ontario Dairy Council’s response to the Commission’s motion on the Tribunal’s jurisdiction.
I clearly understand that the Confidential Information and my copies or notes relating thereto shall not be disclosed to or discussed implicitly or explicitly with anyone.
Within thirty (30 days) of receipt of the Tribunal’s decision with respect to the jurisdiction issue, I will destroy the Confidential Information provided to me by the Tribunal and any notes that I have prepared relating to this information.
I hereby submit to the jurisdiction of the Tribunal for the purpose of enforcement of the Tribunal’s Order, and waive any and all objections to jurisdiction and venue.
Signature ____________________________________
Printed Name __________________________________
Date: _______________________