Agriculture, Food and Rural Affairs
Appeal Tribunal
1Stone 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:
Sobczyk v Ontario Flue Cured Tobacco Growers’ Marketing Board
Sobczyk v OFCTGMB 2014ONAFRAAT16
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
May 23, 2014
DATE OF DECISION:
June 3, 2014
2014-16
NEUTRAL CITATION:
2014 ONAFRAAT16
Sobczyk v Ontario Flue Cured Tobacco Growers’ Marketing Board
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 Matthew Sobczyk of Burford, Ontario from the decision of the The Ontario Flue-Cured Tobacco Growers’ Marketing Board denying his licence to produce tobacco.
Before: Paula Lombardi, Vice-Chair; Richard Smelski, Member; Tim Mousseau, Member
Appearances:
Lisa Gunn, Counsel for the Appellant
Matthew Sobczyk, Appellant/witness
Geoffrey Spurr, Counsel for the Respondent
Inspector Nicole Thornburry, Witness for the Respondent
Mr. Vergeer, Vice-Chair of the Tobacco Board, Witness for the Respondent
REASONS FOR THE DECISION
This appeal was heard by the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) on May 23, 2014, in the Tribunal hearing room, Guelph, Ontario. The Appellant, Matthew Sobczyk (“Mr. Sobczyk”), appealed the decision of The Ontario Flue-Cured Tobacco Growers’ Marketing Board (“Board”) denying his 2014 application for a licence to produce tobacco and retaining the proceeds from the sale of the seized tobacco.
Preliminary Matters
At the request of counsel for the Appellant the Tribunal issued an order excluding witnesses from the hearing until their evidence was tendered with the exception of Mr. Vergeer, advisor for the Board and Mr. Sobczyk, the Appellant.
Background Information
Prior to 2012 the Tobacco Board had exclusive responsibility for regulating the production of flue-cured tobacco (“tobacco”) in Ontario. After a transitional period, on October 1, 2012 the Tobacco Board’s functions of oversight and regulation of tobacco were assumed by the Ministry of Finance (“Ministry”) pursuant to the provisions of the Tobacco Tax Act (“Act”). The Act authorizes Ministry inspectors (“Inspector(s)”) to examine any land upon which tobacco is produced and inspect any inventory of raw leaf, partially or fully processed tobacco. The Ministry inspectors also are given the authority to seize the tobacco if the person is not in compliance with the provisions of the Act.
As part of the transition the Tobacco Board’s General Regulations (“General Regulations”) were revised on October 1, 2012 for the 2013-2014 growing year. The revisions to the General Regulations included, among other things, a requirement to affix a sticker provided by the licensee’s buying company to each bale of tobacco immediately after the tobacco is baled.1
On October 10, 2013 Inspector Richard Scragg attended the Sobczyk property with Inspectors Thornburry and Bohm. The Inspectors discovered thirty-two (32) bales of tobacco that were not properly labelled in the kilns. However, the next day, on October 11, 2013 the 32 tobacco bales that had been detained by the Inspectors the day before were reported as having been stolen. On October 12, 2013 an anonymous call to the Ontario Provincial Police (“OPP”) resulted in an inspection of Mr. Sobczyk’s uncle’s farm located at 301 3rd Concession, in Burford. A total of 43 tobacco bales were discovered in a large trailer, 7 bales locked in a snowmobile trailer, and 20 bales in the barn. None of the 70 bales discovered were labelled in accordance with the regulatory requirements.
On February 18, 2014 the Tobacco Board held a hearing to determine whether Mr. Sobczyk, a licensed producer of tobacco, contravened the Tobacco Board’s General Regulations by failing to: attach a sticker to all bales of tobacco; record information on each sticker; include a record of all bales in the record book; and, declare all storage locations. Having heard the evidence and submissions, the Tobacco Board found that Mr. Sobczyk had contravened the regulations. The Tobacco Board denied Mr. Sobczyk a license for the 2014 tobacco crop year and retained all the monies associated with the sale of the seized tobacco.
Counsel for the Appellant acknowledged that Mr. Sobczyk had violated the General Regulations. Therefore, the only issue remaining before the Tribunal is whether or not the penalty imposed by the Board being the seizure and sale of the baled tobacco and the Tobacco Board’s refusal to issue Mr. Sobczyk a licence for the 2014 growing year is appropriate in the circumstances.
Counsel for the Tobacco Board agreed that the issue before the Tribunal was not whether or not Mr. Sobczyk had contravened the General Regulations as the parties agreed that there was a contravention. The Tobacco Board argued that the issue before the Tribunal in considering the appropriate penalty was whether or not there was an intention on the part of the Appellant not to disclose the existence of the bales of tobacco without labels affixed in accordance with the General Regulations.
The Issues
The issues to be determined on this appeal are:
- Is the penalty imposed by the Tobacco Board for violating the General Regulations by failing to: attach a sticker to all bales of tobacco; record information on each sticker; include a record of all bales in the record book