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:
2343193 Ontario Inc. v Dairy Farmers of Ontario
2343193 Ontario Inc. v DFO [Motion for Party Status] 2014ONAFRAAT27
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
N/A
October 10, 2014
2014-27
NEUTRAL CITATION:
2014 ONAFRAAT 27
2343193 Ontario Inc. v Dairy Farmers of Ontario [Motion for Party Status]
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 2343193 Ontario Inc., (Andy Senn and Franz Suter) from the Dairy Farmers of Ontario (“DFO”) decision to deny their request for exemption.
AND IN THE MATTER OF: A notice of motion filed by the Association of Ontario Chicken Producers (“AOCP”) seeking an order granting limited party status to the AOCP to participate in the appeal on the issues of the constitutional validity of DFO policies and regulations and issues relating to the Competition Act as raised by the appellant in the Amended Notice of Appeal and Notice of Constitutional Question.
Before:
Marthanne Robson, Vice-Chair John O’Kane, Vice-Chair Claire Belluz, Member
Appearances:
Anne Tardiff, Co-Counsel for the Appellants Alyssa Tomkins, Co-Counsel for the Appellants David Wilson, Co-Counsel for the Respondents Benjamin Grant, Co-Counsel for the Respondents Graham Lloyd, General Counsel & Director of Communication, Dairy Farmers of Ontario Herman Turkstra, Counsel for Association of Ontario Chicken Processors
DECISION OF THE TRIBUNAL – MOTION FOR PARTY STATUS
Overview of Motion
This motion by the AOCP for limited party (intervenor) status arose in the context of the appeal of 2343193 Ontario Inc. from the DFO decision denying the appellant’s request for exemption from certain DFO Quota Transfer Policies.
The appellant filed a Notice of Constitutional Question on August 13, 2014, asserting among other things that sections B-4, C-5 and D-3 of DFO Quota and Milk Transportation Policies were an arrangement between competitors contrary to the Competition Act and that those impugned sections should be read down or are constitutionally inapplicable to the appellant. That Notice engaged the interest of the AOCP and was the impetus for the AOCP’s intervenor motion.
As explained in these reasons, the AOCP has failed to satisfy the Tribunal that it has a sufficient interest in the subject matter of this appeal to be granted intervenor status and therefore the motion is dismissed.
The Test for Status
(a) Sufficient Interest in the Subject Matter
Subsection 16(1) of The Ministry of Agriculture, Food and Rural Affairs Act (the “Act”) dictates the parties to an appeal to the Tribunal as including “any person having a sufficient interest in the subject-matter of the appeal may be a party to the appeal and the Statutory Powers Procedure Act (“SPPA”) applies.”
Section 5 of the SPPA provides that the parties to a proceeding shall be the persons specified by the statute or if not specified, person entitled by law to be parties to the proceeding.
Rule 33.08 of the Tribunal’s Rules of Procedure incorporate the Act’s wording regarding persons having a “sufficient interest in the subject matter”.
The legislature used the words “sufficient interest” rather than words such as “an interest” or “any interest” to establish the statutory test for allowing outsiders into a private proceeding that typically involves an appellant and a respondent. Our role interpreting the words used by the legislature is to strive to give full meaning to the words “sufficient interest”.
This Tribunal has previously considered requests for status by “outsiders” to appeals and in those cases has developed a framework for considering these requests informed significantly by the common law of intervention. [Henry Bos v. Chicken Farmers of Ontario 2011 ONAFRAAT 9; Association of Chicken Processors of Ontario v. Chicken Farmers of Ontario 2013 ONAFRAAT 18]
A critical distinction between the facts of the present case and the facts of the Henry Bos case is that, both Henry Bos and the Chicken Farmers of Ontario conceded that the AOCP had a sufficient interest in the subject matter of the appeal. In this case, neither the appellant nor the DFO concede that AOCP has a sufficient interest in the subject matter of the appeal.
A similar distinction between the facts of the present case and the facts of the AOCP v. Chicken Farmers of Ontario case is that there, neither the AOCP nor the Chicken Farmers of Ontario opposed the application for status in that appeal. In this case, both the appellant and the DFO oppose granting AOCP status in the appeal.
As a threshold matter, the onus is on the AOCP to satisfy the Tribunal that it has a sufficient interest in the subject matter of this appeal.
The Tribunal observed that there is no representation in this proceeding involving the milk processing industry. The Tribunal does not accept, as AOCP suggests, that the AOCP can serve as a proxy in this appeal for the milk processing sector. The absence of the milk processing sector from this appeal or from any application for status suggests that the potential impacts of the outcome of this appeal are not nearly as significant across the supply managed commodities as the AOCP would have us believe.
The evidence of Michael Terpstra filed by the AOCP alludes to his “belief” that the Tribunal’s findings on constitutional or Competition Act grounds will impact all producers and processors in the supply management system. His evidence also suggested that any such finding will have a major impact on the Ontario food chain and the business of food processors generally. He stated his understanding that such Tribunal findings would remove AOCP members’ entitlement to rely on a “regulated industry defence” in the context of the operation of the chicken supply management system.
Apart from Mr. Terpstra’s broadly expressed beliefs, the AOCP did not file any evidence demonstrating how those beliefs would be realized.
AOCP argued that it had more than a mere “jurisprudential interest” in the constitutional issue related to DFO policy arguably contravening the Competition Act. As the Appellant in this case noted in their submission (par.37) “… supply management is inherently anti-competitive, but generally protected by the regulated conduct defence where the impugned conduct is authorized by statute.” In the Tribunal’s opinion, this does not mean that any case in which the regulated conduct defence is argued necessarily gives rise to an entree by any other potential party that may argue that defence in some other proceeding. The evidence unique to the appellant and DFO will dictate the factual matrix of this appeal. In any proceeding involving the chicken industry and the chicken regulator evidence that would be unique to such a case would dictate the factual matrix of such a case. Importantly, Tribunal decisions are not binding and carry modest weight as precedents.
The evidence on this motion did not persuade the Tribunal that AOCP, an organization from the chicken processing industry, has a sufficient interest in issues related to producer quota transfer policies in the milk industry.
Having determined that AOCP failed to discharge the threshold onus of “sufficient interest” in the subject matter of the appeal, the motion fails and it is unnecessary that the Tribunal address the typical balancing considerations. However, for the sake of completeness and in the event of a judicial review or appeal, the Tribunal’s reasons follow below.
(b) Timing of the Status Request
AOCP’s timing for its request for status comes before the Tribunal just eighteen days before the start of a five day hearing.
That five day hearing was set a considerable time ago and those five days are already committed to hearing at least five witnesses (three of whom are proffered as expert witnesses) plus legal argument. It is an aggressive hearing timetable. The timetable was established with input from the parties and with no gaps to add either other witnesses, cross-examinations by other counsel, or legal argument from other counsel.
Typically in status applications made late in proceedings the proposed intervenor must commit to adding nothing to the evidentiary record, or at a minimum clearly articulate for the tribunal or court its intended evidence and how such evidence will assist the tribunal or court determining the issues between the parties.
In these circumstances, AOCP has not committed to add nothing to the evidentiary record and it has not in its motion evidence, clearly articulated the nature and extent of its intended evidence. If anything, AOCP has been equivocal about the evidentiary issue.
In circumstances such as this, on the eve of a long scheduled hearing where the parties have exchanged full documentary disclosure and with no gaps in the hearing timetable, AOCP’s equivocation on the evidentiary issues introduces unnecessary uncertainty and an unwarranted disruption to the parties and the process.
(c) Potential Prejudice
A key consideration in any intervention application is that the introduction of the outsider not cause prejudice to the parties to the proceeding.
Even if AOCP filed no evidence and only cross-examined the hearing witnesses and made legal arguments that would lengthen the hearing. As discussed previously the hearing timetable is aggressive with no slack or gaps. An inevitable result of even that minimal involvement by AOCP would mean the hearing would exceed the five days currently scheduled. That would mean additional hearing scheduling involving three Tribunal panel members, at least six lawyers and two parties.
That would translate into delay. At present the appellant is operating under a stay of the DFO’s determination. Further delay in the hearing occasioned by the introduction of an intervenor represents real prejudice and militates against granting intervenor status to AOCP.
(d) A Properly Informed Adjudication
The issues in this appeal relate to a dairy producer’s compliance with or exemption from DFO Policies.
The litigants are the dairy producer who is subject to the policies and the regulator who developed the policies.
In these circumstances the appellant and the DFO are the parties both necessary and best suited to develop the facts and arguments for the Tribunal to make a fully informed decision.
AOCP has not persuaded the Tribunal that its interest, evidence or arguments are necessary for a properly informed adjudication.
Order of the Tribunal
The Tribunal Orders:
- The AOCP motion is dismissed.
Dated at Ottawa, Ontario this 10th day of October, 2014.