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:
Ontario Dairy Council v Ontario Farm Products Marketing Commission
Ontario Dairy Council v OFPMC 2014ONAFRAAT19
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
N/A
DATE OF DECISION:
July 17, 2014
2014-19
NEUTRAL CITATION:
2014ONAFRAAT19
Ontario Dairy Council v Ontario Farm Products Marketing Commission
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 notice of motion filed by the Commission 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.
Before:
Harold McNeely, Vice-Chair; Stan Benda, Vice-Chair; Rob Scouller, Member
DECISION OF THE TRIBUNAL – MOTION ON JURISDICTION
Issue
Is the Commission’s decision authorizing Mac’s Convenience Stores Inc. (Mac’s) to participate in a test market for fluid milk products in a three-litre jug for fluid milk products for a one year, one of:
specific application and thus falling within the jurisdiction of the Tribunal; or
general application and thus falling outside the jurisdiction of the Tribunal?
The Tribunal finds that the Commission decision is one of specific application. Thus, the Tribunal claims jurisdiction over this matter.
Facts
On December 11, 2013, the Commission made a decision approving Mac’s for a one-year test marketing of a three-litre plastic jug for fluid milk products.
Mac’s initiated both the concept of test marketing the three-litre plastic jug and sought approval to implement it. The Commission responded to the initiative and acted through section 18 of Regulation 753 of the Milk Act. It is telling that the Commission did not seek to amend section 8 of Regulation 753 and include an expiry date.
More particularly, in its December 19, 2013 letter to Mac’s, the Commission stated it would consider requests from other retailers or fluid milk processors if they wished to conduct similar market research that is consistent with the conditions and requirements outlined by the Commission. All interested parties had to submit a request in writing to the Commission for review and response.
Subsequently, on January 15, 2014, 7-Eleven Canada, Inc. wrote to the Commission inquiring about the marketing of fluid milk products in three-litre plastic jugs. The Commission advised 7-Eleven Canada, Inc. to put in writing a formal request for consideration by the Commission. On January 24, 2014, Saputo also wrote to the Commission about the test marketing. The Commission replied via e-mail asking Saputo eight questions about their test market request. The Commission required this information in order to make a specific decision about Saputo’s application. Neither of these applying parties was granted authority to participate in the one-year test market for fluid milk products in a three-litre jug as of the filing date for this motion.
Law
At its most generic, a decision of general application applies
- equally to every entity in the class;
- lists any fixed conditions that must be satisfied to cloth the stakeholder in authority;
- is virtually automatic upon satisfaction of conditions, or at least there is no profound discretion in the decision maker;
- is public or at least public to the stakeholders/constituents; and
- does not require any assessment or idiosyncratic considerations.
Licensing is the classic example of a general application decision. Conversely, the fact the decision maker invites other supplicants does not transmogrify a specify application into one of general application.
The statutory crux of the matter is found in sections 16 and 17 of the Ministry of Agriculture, Food and Rural Affairs Act (MAFRAA) that addresses the distinction between specific and general application matters, and the profound consequences of that characterization.
16(1) Subject to subsections (4) and (5), a person who is aggrieved by any of the following orders, directions, decisions, policies or regulation made under the Farm Products Marketing Act and the Milk Act may appeal the matter to the Tribunal:
Any order, direction, decision or policy made by a Director.
Any order, direction, decision, policy or regulation made by a local board or marketing board.
An order, direction or decision made by the Commission that applies specifically to the aggrieved person, to a group of persons of which the aggrieved person is a member or with respect to a particular dispute or incident involving the aggrieved person.
(2) For greater certainty, a regulation or policy made by the Commission under the Farm Products Marketing Act or the Milk Act or an order, direction or decision of the Commission under either of those two Acts that is of general application shall not be the subject of an appeal before the Tribunal but maybe a subject to reconsideration by the Commission under section 17.
17(8) For the purposes of subsection (7), an order, direction or decision of general application includes any order, direction or decision other than one that,
(a) applies only with respect to a person or group of persons or with respect to a particular dispute or incident; or
(b) governs the day to day operations of a particular local board or marketing board under the Farm Products Marketing Act or the Milk Act.
The Tribunal has no quibble with the legislative history or jurisprudence cited by the Commission. Still, none of that helps to show the Commission decision as one of general application. Instead, a purposeful interpretation of section 16 and 17 of the MAFRAA shows a party aggrieved by a decision of the Commission has the right to appeal to the Tribunal, unless the decision is one of general application.
But the Mac’s decision is not one of general application. There are no generic or general conditions that if satisfied by any qualified applicant, then justifies approval. There is no fixed methodology for the testing. There is no prescription as to the type of data that must be gathered. Instead, the entire process smacks of an ad hoc approach originally triggered by Mac’s request and continued with both the Saputo and 7-Eleven inquiries. In the latter two instances, the Commission sought idiosyncratic information – hardly indicative of a general application scenario.
It is worth recalling that the Commission acted under section 18 of Regulation 753 which states,
No person shall buy, sell, offer for sale, have in possession for sale, manufacture for sale or distribute for sale a milk product or a fluid milk product unless it complies with this Regulation or it is a new milk product or new fluid milk product that the Commission allows, subject to those conditions it may impose, to be manufactured and sold on a temporary basis.
Interestingly, section 8 of the same Regulation 753 states in part:
A fluid milk product for retail sale must be in a container described in one of the following paragraphs, subject to the restrictions, if any, set out in the paragraph...
Section 18 of Regulation 753 speaks to a specific application or the authority to insert idiosyncratic conditions. Conversely, it is section 8 of Regulation 753 that is of general application. The section prescribes the conditions/terms that must be met by all constituents. As the Ontario Dairy Council noted, section 8 could have been amended to have a sunset clause for three-litre containers. That would have captured this testing situation and kept the issue of three-litre testing outside of the jurisdiction of the Tribunal. However, the Commission moved under section 18.
Consequently, the Tribunal dismisses the Commission's motion and finds that the Tribunal has jurisdiction over this matter.
Order of the Tribunal
The Tribunal Orders that:
The motion by the Ontario Farm Products Marketing Commission is denied.
The Tribunal Coordinator provide the parties with dates available to hear the appeal by the Ontario Dairy Council.
This panel shall remain seized of the matter.
Dated at Ottawa, Ontario this 16th day of July, 2014