Black v. Chicken Farmers of Ontario, 2014 ONAFRAAT 26

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

Black v CFO 2014ONAFRAAT26

STATUTE: Ministry of Agriculture, Food and Rural Affairs Act

HEARING: N/A

DATE OF DECISION: September 24, 2014

2014-26

NEUTRAL CITATION: 2014ONAFRAAT26

Black 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 amended appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Glenn Black, Providence Bay, Ontario, concerning Chicken Farmers of Ontario Regulation No. 2425-2013 and the 300 bird chicken exemption policy and various other issues related to the supply management system for chicken and the regulation of the chicken industry; as well as costs, damages, awards and judgments requested by the appellant.

AND IN THE MATTER OF: The Tribunal’s July 31st, 2014 Notice of Intention to Refuse to Hear Appeal and Glenn Black’s written submissions and the August 22nd, 2014 response submissions of the Chicken Farmers of Ontario.

Before:

John O’Kane, Vice-Chair; Dr. Stan Benda, Vice-Chair; Paula Lombardi, Vice-Chair

Appearing by Written Submissions:

Glenn Black – Appellant

Geoff Spurr – Counsel for Chicken Farmers of Ontario

DECISION OF THE TRIBUNAL

As explained in the reasons that follow, the Tribunal refuses to hear the appeal of Glenn Black.

Background

The Tribunal first considered Mr. Black’s appeal at a May 14th motion hearing. That motion, made by the Chicken Farmers of Canada (“CFO”), sought to dismiss or limit Mr. Black’s appeal.

Rather than dismiss the appeal, the Tribunal, in its decision of May 21st, 2014, struck Mr. Black’s Appeal Notice and provided leave to re-file the appeal within 60 days of the decision with a direction that Mr. Black’s appeal be restricted to CFO Regulation No. 2425-2013 and a CFO policy known as the 300 bird exemption policy.

The Tribunal gave that direction to Mr. Black in a decision that explained in detail the Tribunal’s jurisdiction and how most of what Mr. Black sought in his initial appeal was not justiciable before the Tribunal.

Mr. Black then proceeded to file a 98 page Revised Notice of Appeal (“RNOA”). The initial Appeal Notice comprised 21 pages. After filing the 98 page RNOA, Mr. Black then sent the Tribunal a two page Notice of Appeal and finally, incorporated into his recent written submissions was yet another Notice of Appeal of just over two pages.

After receiving the RNOA, the Tribunal received a request from CFO to schedule another motion to dismiss Mr. Black’s appeal. Rather than schedule the requested motion, the Tribunal on its own initiative issued a Notice of Intention to Refuse to Hear Appeal to the parties and provided Mr. Black and CFO an opportunity to file written submissions.

In that Notice of Intention, the Tribunal cautioned Mr. Black he had one last opportunity to persuade the Tribunal that the appeal was not “frivolous, vexatious or made in bad faith”.

In addition, the Tribunal directed Mr. Black to provide written submissions dealing with whether the Tribunal has jurisdiction to grant the relief set out in section 11 of the RNOA. Section 11 of the RNOA is entitled Requested Orders. A copy of that Section is appended to these reasons.

As directed by the Tribunal in its May 21st Motion Decision, Mr. Black filed a RNOA which sought an increase in the 300 bird exemption to 2,000 birds or 1,295 birds. Contrary to the Tribunal’s direction from the May 21st Motion Decision, Mr. Black sought a dozen additional items of relief. A précis of the requested relief follows:

a. Declaration of wrongful action & inactions of CFO;

b. Orders that are restorative or corrective to prevent, eliminate, mitigate, cure defects, illegal acts, abuses of power, conflicts of interest, bad faith, torts, injustices and other aliments in the actions and inactions of CFO;

c. Orders to clarify, correct, and interpret the responsibilities, authority, reporting, key performance indicators, measurements, audits, inspections, risk management, cost-benefit analysis, avoiding conflict of interest, avoidance of bad faith, efficiency, effectiveness, purpose, Mission, priorities, limitations, and constraints on the policies, procedures, rules, decisions, actions and inaction of CFO;

d. Recommendations by the Tribunal that those raising quota-exempt chickens should be eligible as members in CFO, equal to quota holders and entitled to run for office;

e. The Tribunal make written recommendations to the Minister of Agriculture on improvement and recommended interpretations of agricultural policies, programs, initiatives, priorities, the Act and regulations;

f. Damages for the losses of Mr. Black incurred due to wrongful actions and inactions of CFO;

g. Damages for lost business, profits, prestige, good will, mental anguish, pain and suffering, and other benefits that Mr. Black would otherwise have enjoyed had it not been for CFO’s wrongful actions or inactions;

h. Judgment for a full accounting for Mr. Black, and all others similarly situated, disgorgement of unjust income, profits, and other benefits received by CFO;

i. Determination of a constructive trust CFO owes Mr. Black and a full accounting of the trust and liquidation and payment of the trust to Mr. Black and all others similarly situated;

j. Declarations on other forms of trust that exist or were created in favour of Mr. Black, and all others similarly situated, and a full accounting of those trusts;

k. Exemplary and punitive damages.

It was confirmed by Mr. Black at the May 14th motion hearing that:

• he raises 1 chicken; and,

• his appeal reflects a personal political manifesto.

Tribunal Jurisdiction

The Tribunal is a creature of statute. To understand the Tribunal’s powers in the context of an appeal requires consideration of the legislation that provides for an appeal to the Tribunal. In this case, that legislation is the Ministry of Agriculture Food and Rural Affairs Act (the “Act”)

Subsection 16(11) of the Act describes the Tribunal’s powers on appeal.

Upon an appeal to the Tribunal under subsection (1), the Tribunal may by order direct the Commission, the local board, the marketing board 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.

The CFO is a “local board” constituted under the Farm Products Marketing Act.

Therefore, in an appeal from the CFO, the Tribunal can order CFO to take such action as the Tribunal considers proper and that CFO is authorized to take under the Farm Products Marketing Act (“FPMA”). (emphasis added)

Understanding the scope of that Tribunal authority in this context requires us to consider if the FPMA authorizes the CFO to do or grant any of the twelve areas of relief recited above from Mr. Black’s RNOA.

The purpose of the FPMA as explained in section 2 is to provide for the control and regulation of producing and marketing farm products including the prohibition of producing and marketing. Under the FPMA, the Ontario Farm Products Marketing Commission enacted Regulation 402 that prescribes the CFO’s authority and powers.

Regulation 402 sets out the powers delegated to the CFO. Included within those delegated powers is the authority to control the production and marketing of chicken through a quota system and in subsection 5(f) the power to provide exemptions from the regulatory regime. Therefore, it is certain that since the CFO has the power to make the 300 bird exemption policy and the associated Regulation No. 2425-2013, the Tribunal has the jurisdiction to order CFO to alter that exemption limit.

However, Regulation 402 does not grant CFO powers such as are included in any of the twelve areas of relief recited above from Mr. Black’s RNOA. Therefore, since CFO is not authorized to do any of those twelve things, the Tribunal likewise on appeal cannot do any of those twelve things. The Tribunal is unable to order CFO to do any of those twelve things regardless whether Mr. Black frames the basis for such relief in administrative law, constitutional law, bad policy or the public interest generally.

Therefore, in all but the one area of requested relief, the Tribunal is without jurisdiction.

Refusing to Hear Appeal

The Tribunal has the power to control its own process. That power includes the power to refuse to hear an appeal in appropriate circumstances including refusing to entertain matters that are not justiciable before the Tribunal. Justiciability is determined in the context of the statute creating the appeal to the Tribunal. As reflected in the discussion above about Tribunal jurisdiction, none of the twelve areas of relief recited above from Mr. Black’s RNOA are justiciable before the Tribunal.

This jurisdiction issue has been explained to Mr. Black in the original Motion Reasons, then again in the Notice of Intention to Refuse to Hear Appeal and now for a third time.

Apart from the implicit power to control its own process and refuse to hear an appeal, subsection 16(4) of the Ministry of Agriculture Food and Rural Affairs Act provides express authority to refuse to hear appeals that are trivial, frivolous or vexatious, not made in good faith or where the appellant lacks sufficient interest in the subject matter.

An appeal that is trivial or frivolous is one that is not serious. The Tribunal was established to provide parties aggrieved by a decision of the CFO a forum to consider that dispute. While Mr. Black’s appeal did raise a dispute over CFO’s 300 bird exemption he used that possibly serious dispute as a toe-hold to gain a platform for his personal political manifesto. After the Tribunal directed Mr. Black to re-frame his appeal about just that issue, Mr. Black choose to ignore the Tribunal and filed an RNOA that was as expansive as the original appeal. The attitude displayed in Mr. Black’s conduct communicates a lack of seriousness about the 300 bird exemption issue; a lack of seriousness about the Tribunal process; and, a lack of seriousness about the Tribunal’s previous decision.

That attitude, as reflected in the RNOA informs our view that Mr. Black’s appeal is trivial or frivolous.

The categories of vexatious proceedings are relatively large and remain flexible to allow Courts and tribunals to respond appropriately. As reflected in the Lang Michener v. Fabian case cited by Mr. Black, the courts recognize as vexatious an action that cannot succeed or one where no reasonable person can reasonably expect to obtain relief. That direction must be tailored to the Tribunal. As discussed previously, the Tribunal is without jurisdiction to grant Mr. Black any of those twelve areas of relief set out above. Therefore, in this Tribunal context, an appeal seeking such relief cannot succeed and is properly described as vexatious.

Examining the motive(s) of the appellant is required to determine if an appeal is not made in good faith. Mr. Black’s motives advancing the appeal can be gleaned from a review of the original notice of appeal and the several hundred pages that accompanied that document, the Revised Notice of Appeal and the additional two shorter appeal notices, as well as from his oral submissions made at the original motion hearing. The original motion decision discussed that Mr. Black’s appeal revealed a significant animus toward the chicken regulatory regime in Ontario and in Canada.

Implicit in the original motion decision was the Tribunal rejecting giving Mr. Black a platform to advance and debate his personal political agenda. Explicit in the original motion decision was that if Mr. Black genuinely wished to pursue an appeal that the Tribunal could consider, he was to restrict the appeal to the 300 bird exemption and the related regulation.

A careful examination of the RNOA reveals that Mr. Black is bent on pursuing his own agenda despite the Tribunal’s direction and advice. That conduct suggests to us that the 300 bird exemption is not the real motive behind Mr. Black’s appeal. The real motive appears to be to gain that platform to advance and debate a personal political agenda. In these circumstances we find that to be in bad faith.

Refusing to hear an appeal is not a decision taken lightly by the Tribunal. Mindful of that seriousness we invited Mr. Black to convince us that his appeal was not frivolous, vexatious or not made in good faith. On all accounts, Mr. Black failed to convince us.

Therefore, the Tribunal refuses to hear Mr. Black’s appeal.

Dated at Brampton, Ontario this 24th day of September, 2014.

Appendix 1

11. Requested Orders

The Appellant relies upon and respectfully requires the following findings, rulings, Orders, declarations, injunctive relief, monetary relief, judgements, and awards against the Respondent CFO:

a. Declaration of the wrongful actions and inactions of the Respondent, and the findings of fact and interpretations of law that support such declarations;

b. Orders by the Tribunal that are restorative or corrective so as to prevent, eliminate, mitigate, or cure the defects, illegal acts, abuses of power, conflicts of interest, bad faith, torts, injustices, and other ailments in the actions and inactions of the Respondent;

c. Orders by the Tribunal to clarify, correct, and interpret the responsibilities, authority, reporting, key performance indicators, measurements, audits, inspections, risk management, cost-benefit analysis, avoiding conflict of interest, avoidance of bad faith, efficiency, effectiveness, purpose, Mission, priorities, limitations, and constraints on the policies, procedures, rules, decisions, actions, and inactions of both CFO;

d. Orders by the Tribunal to raise the quota-exempt chicken limit from 300 birds per year per farm property, to:

i. 2,000 birds/yr/farm;

ii. Or, in the alternative, to 1,295 birds/yr/farm.

e. Recommendations by the Tribunal that under the Chicken Regulations, those raising quota-exempt chickens in Ontario should be eligible to be members in CFO on an equal basis to chicken quota-holders, and thereby can run for office.

f. The Tribunal making written recommendations to the Ontario’s Minister of Agriculture on improvements and recommended interpretations of agriculture policies, programs, initiatives, priorities, Farm Products Marketing Act, and regulations;

g. Award of damages for the losses the Appellant incurred due to the wrongful actions and inactions of the Respondent;

h. Damages for the lost business, profits, prestige, good will, mental anguish, pain and suffering, and other benefits that the Appellant would otherwise have enjoyed had it not been for the Respondent’s wrongful actions and inactions;

i. In the alternative, with the waiver of tort by the Applicant, judgement that the Respondent shall provide a full accounting for the Applicant and all others similarly situated, and under the laws of equity the disgorgement of unjust income, profits, and other benefits received by the Respondent, for the benefit of the Applicant and all others similarly situated;

j. Judgement in favour of the Appellant that by the Respondent’s duty owed and tortuous actions, the Respondent are deemed to have created a constructive trust in favour of the Applicant, and the Applicant seeks a Court declaration of the existence of this constructive trust, a full accounting by the Respondent for this constructive trust, and the liquidation and payout of said constructive trust in favour of the Applicant and all others similarly situated.

k. Declaration as to the other forms of trust that exist or were created in favour of the Appellant and all others similarly situated, and an order for the full accounting for those trusts;

l. Judgement against the Respondent for exemplary and punitive damages;

m. Tribunal costs and legal costs on the basis of full reimbursement, or in the alternative, solicitor-client and cost recovery for disbursements by the Appellant against the Respondent and in favour of the Applicant and all other similarly situated;

n. Other costs, findings, declarations, awards, and judgements that the Applicant may request, and/or that the Court sees fit to award.