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:
Ontario Independent Poultry Processors v Chicken Farmers of Ontario
Ontario Independent Poultry Processors v CFO 2014 ONAFRAAT 23
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
July 14, 2014
DATE OF DECISION:
August 15, 2014
2014-23
NEUTRAL CITATION:
2014 ONAFRAAT 23
Ontario Independent Poultry Processors v Chicken 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 from the Ontario Independent Poultry Processors by Mr. John Slot from the Chicken Farmers of Ontario in which the board denied the request to implement the CFO Specialty Chicken Policy No. 199-2013 as it is currently configured.
AND IN THE MATTER OF: A notice of motion filed by the Association of Ontario Chicken Producers in which it is seeking, prior to the commencement of the hearing of this appeal, an Order of the Tribunal dismissing the Appeal on the grounds that CFO Policy No. 199-2013 has been effectively replaced by subsequent Policy decisions of CFO and that OIPP has not appealed the subsequent CFO decisions.
Before:
Harold McNeely, Vice-Chair Glenn Walker, Vice-Chair Richard Smelski, Member
Appearances:
John Slot, representing the Appellant, Ontario Independent Poultry Processors Geoff Spurr, Counsel for the Respondent, Chicken Farmers of Ontario Herman Turkstra, Counsel for Association of Ontario Chicken Processors, Party to the Appeal
DECISION OF THE TRIBUNAL – MOTION TO DISMISS
Overview of Motion
The Ontario Independent Poultry Processors (the “OIPP”) filed an appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) from the decision of the Chicken Farmers of Ontario (the “CFO) denying the request to implement the CFO Specialty Chicken Policy No. 199-2013. The Association of Ontario Chicken Processors (“AOCP”) applied to be granted party status to this Appeal. By letter dated June 20, 2014, AOCP was granted party status.
AOCP has applied by way of Motion, filed on July 13, 2014, to have OIPP’s appeal dismissed on the grounds that CFO Policy No. 199-2013, being the Specialty Chicken Policy (the “Policy”) has been effectively replaced by subsequent Policy decisions of CFO and that the OIPP has not appealed the subsequent CFO decisions. CFO supports this Motion. The following is a brief history of the enactment of the Policy, taken from the Affidavit of Michael Terpstra, Executive Director of AOCP, the Document Brief of CFO and the Document Brief of OIPP as well as, the representation of the parties at the hearing.
Following discussions between AOCP, OIPP and CFO, Policy 199-2013 was enacted by CFO on February 1, 2013. The Policy was said to be effective August 11, 2013, to commence with Quota Period A-119 (August 11, 2013 to September 5, 2013). The Policy called for CFO to, among other steps, create a Specialty Chicken Panel, set up a governance framework, adopt monitoring compliance procedures and carry out annual Policy reviews (collectively the “procedures”).
Before CFO took steps to create or adopt these procedures, Chicken Farmers of Canada (“CFC”) informed CFO in December 2012 that it would initiate a study of specialty products in order to develop a policy for these products on a national level.
This information caused CFO to delay the adoption of the additional measures identified in paragraph 1, opting instead to wait until CFC had adopted a national Specialty Policy to avoid conflicts between its Policy and the national Policy which would result from CFC’s review.
Following consultation with the Provincial Commodity Boards, CFC circulated a proposed Specialty Production Policy in September 2013. This Policy was approved by CFC on November 26, 2013.
In May 2014, CFC published the initial Specialty Production allocation for periods A-126, A-127.
Following the enactment of the CFC Policy, CFO started a revision of Policy No. 199-2013.
In April 2013, AOCP appealed Policy No. 199-2013 to the Tribunal asking that the policy be amended as set out in the Grounds of Appeal and Relief Claim document appended to Michael Terpstra’s affidavit.
AOCP withdrew its appeal after CFO confirmed that it would redraw Policy No. 199-2013 to align it with the CFC Policy.
Since January 2014, CFO has issued decisions which have resulted in amendments to Policy No. 199-2013 which include the Kosher RFP process, a process for New Entrant Processors and a Specialty Breeds Policy. The Tribunal was advised that these policies would likely be enacted or finalized by CFO by the end of July 2014.
It was argued by CFO and AOCP that Policy No. 199-2013, as originally enacted, no longer includes the procedures identified in paragraph 1 above. According to CFO and AOCP, the Policy has been so redrawn by CFO’s decisions that it can now be said that Policy No. 199-2013 has not survived as a Policy. OIPP states that Policy No. 199-2013 continues to exist, since it is identified as a Policy on the website of CFO. OIPP seeks to have it implemented as originally drafted. As of the day of the hearing, Policy No. 199-2013 had not been completely withdrawn, or superseded as a Policy of CFO.
Both CFO and AOCP argue that it is important for CFO’s Specialty Chicken Policy to be aligned with CFC’s Policies, to limit or avoid litigation between producers, processors, CFO and other Commodity Marketing Boards. They state that this consideration overrides the need for an immediate implementation of a flawed policy which was designed before CFC’s policy was enacted.
For reasons given at the hearing, the Tribunal dismissed AOCP’s motion (supported by CFO) to have OIPP’s appeal dismissed, as having no reasonable prospect of success.
As an alternative, AOCP’s Counsel suggested that OIPP’s appeal be adjourned since Policy No. 199-2013 had been substantially redrawn by CFO and the final decision by CFO would likely be taken by the end of July 2014.
OIPP desires to have the appeal heard as soon as possible to compel CFO to implement the policy as enacted. It argues its members are prejudiced by CFO’s delay to implement Policy No. 199-2013. The delay has a serious impact on its members who have been required to delay or cancel programs to process birds for Quota Period A-119 and subsequent periods, thereby resulting in a loss of confidence on the part of its members amongst their customers.
After hearing arguments from all parties at the hearing on July 14, 2014, the Tribunal adjourned the appeal to September 15 and 16, 2014 with reasons to follow.
Reasons for Adjournment
During the hearing, the Tribunal was advised by CFO that its policy review would be completed by the end of July 2014, at which time Policy No. 199-2013 would either be withdrawn entirely, or redrawn substantially to include the amendments detailed in the letter from Chris Horbász of CFO to AOCP and OIPP dated July 3, 2014. These amendments were in response to AOCP’s appeal, withdrawn in January 2014 and also to align CFO’s Policy with the National Specialty Breeds Policy. CFO cannot be faulted for its decision to review Policy No. 199-2013, in light of CFC’s adoption of the National Specialty Breeds Policy, in order to determine its impact on CFO’s Policy, and to align CFO’s Policy with the CFC Policy, where necessary. It is also desirable to have a policy which will prevent conflicts between the various parties affected by the Policy. Since Policy No. 199-2013 had not been withdrawn as of the date of the hearing, and continues to be represented as CFO policy, albeit without implementation of certain sections, and without completion of the procedures described in paragraph 1 above, the Tribunal is of the view that OIPP’s appeal should not be dismissed at this time.
If Policy No. 199-2013 is revoked, or if it is so substantially redrawn resulting in a new Policy, it may well be that OIPP’s Appeal of the Policy may fail. However, it is premature to make this determination given that Policy No. 199-2013 was in existence when the appeal was launched and had not been withdrawn at the date of the hearing.
Order of the Tribunal
The Tribunal Orders:
The substantive hearing is adjourned to September 15 and 16, 2014.
A Notice of Rescheduling of Hearing shall be served on the parties in accordance with the Rules of the Tribunal.
Dated at Ottawa, Ontario this 15th day of August, 2014.