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 Courriel: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Gabe Kocsis v CFO (RE) [MOTION FOR ADJOURNMENT]
Gabe Kocsis v CFO (RE)
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
October 20, 2017
November 20, 2017
001CFO17
NEUTRAL CITATION:
2017ONAFRAAT18
IN THE MATTER 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 Gabe Kocsis of Jordon, Ontario, from the decision of the Chicken Farmers of Ontario.
AND IN THE MATTER OF: A motion made by Chicken Farmers of Ontario under subsection 16(4) of the Ministry of Agriculture, Food and Rural Affairs Act.
Before: John O’Kane, Vice-Chair; Fred Stulp, Member; Sarah Judd, Member
Appearances:
Gabe Kocsis, Appellant
Geoff Spurr, Counsel for the Chicken Farmers of Ontario, Respondent
MOTION HEARING DECISION
Overview
This motion was heard in Guelph, Ontario, on Friday, October 20, 2017.
Gabe Kocsis, (the “Appellant”) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) from a decision of the Chicken Farmers of Ontario (“CFO”). The essence of the appeal is a challenge to CFO’s authority to enact By-Law 23 and By-Law 26.
CFO brought this interlocutory motion under subsection 16(4) of the Ministry of Agriculture Food and Rural Affairs Act (the “Act”) asking that the Tribunal refuse to hear the Appellant’s appeal because the Appellant knew of the impugned By-Laws for more than one year before commencing this appeal or because the appeal is frivolous, vexatious or not made in good faith.
The Tribunal dismisses the CFO motion and directs that the Appellant’s appeal proceed.
Background
The Appellant Gabe Kocsis appealed to the Tribunal under subsection 16(1) of the Act.
The appeal impugns CFO’s By-Laws 23 and 26 which by-laws created rules related to the nomination and election of District Committee Representatives (“DCR”) to the CFO and requires DCRs to sign a Code of Conduct and a Confidentiality Agreement.
The Appeal challenges CFO’s authority to create those nomination and election rules and to impose the Code of Conduct and Confidentiality Agreement and further, to suspend its dealing with Gabe Kocsis as a DCR, for his alleged refusal to abide by those rules.
The relevant language of subsection 16(1) is as follows:
(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, policy or regulation made by a local board or marketing board.
That subsection gives a party aggrieved by an order, direction, policy or decision of, in this case, the CFO, an appeal right to the Tribunal.
However, the legislature made that appeal right “subject to subsection (4)”.
Subsection 16(4) provides as follows:
- (4) The Tribunal may refuse to hear the appeal or, after a hearing has commenced, refuse to continue the hearing or make a decision if it relates to any order, direction, policy, decision or regulation of which the appellant has had knowledge for more than one year before the notice is filed under subsection (2.1), if in its opinion:
(a) the subject-matter of the appeal is trivial;
(b) the appeal is frivolous or vexatious or not made in good faith; or
(c) the appellant has not a sufficient interest in the subject-matter of the appeal
Subsection 16(4) gives the Tribunal discretion to refuse to hear appeals in the four circumstances set out in the subsection.
In this case, the CFO alleged that Gabe Kocsis had knowledge of the impugned CFO By-Laws for more than one year before filing the notice of appeal and that the appeal was frivolous, vexatious or not made in good faith.
The impugned By-Laws had last been amended by CFO on January 21, 2014.
Gabe Kocsis commenced his appeal to the Tribunal on January 9, 2017 by a notice filed under subsection 16(2.1).
Issues and Analysis
The affidavit evidence filed by the Appellant on the motion confirmed that he has been aware of By-Laws 23 and 26 since at least December 2014.
The Appellant produced in evidence on the motion e-mail communications that he had with a representative of the Farm Products Marketing Commission in December 2014 and January 2015. In those communications the Appellant alluded to a “confidentiality agreement” and cites Regulation 403 made under the Farm Products Marketing Act. In addition, the email communication from the Appellant asserts that Regulation 403 is a “complete code” and that the CFO cannot add to or amend that code and further the CFO cannot require that nominees (for election as DCRs) sign a confidentiality agreement. The appellant also raised a concern over CFO’s by-law as it would place an age restriction on DCRs.
The sole issue for determination on this motion is whether the Tribunal should exercise its discretion under subsection 16(4) to refuse to hear Gabe Kocsis’ appeal related to By-Laws 23 and 26 because he had knowledge of those By-Laws for just over two years before commencing this appeal or because the appeal is frivolous, vexatious or not made in good faith.
An appellant’s right of appeal under subsection 16(1) should only be curtailed in rare circumstances. The CFO candidly conceded that point in its oral argument.
In support of its arguments that the Appellant’s appeal should be curtailed, CFO relied on a previous decision of the Tribunal in the case of Bos v. Chicken Farmers of Ontario 2010 ONAFRAAT 38 where the Tribunal exercised its subsection 16(4) discretion to curtail an appeal where the appellant had known of an impugned CFO allocation policy for at least four years.
However, the facts of the present case are significantly distinct from the facts of the Bos v. CFO decision.
Unlike the facts in the Bos case, in the present case:
The impugned By-Laws do not engage the quota allocation system which is the raison d’etre of the chicken supply management system.
There was no evidence that the impugned By-laws impacted any business or investment decisions made within the chicken supply management system.
The impugned By-laws relate to the CFO’s nomination and election processes which are central to CFO’s governance.
The appellant is challenging CFO’s legal authority to enact the impugned By-laws.
In these circumstances, the Tribunal is not satisfied that the appeal right enshrined in subsection 16(1) should be curtailed because the Appellant had knowledge of the impugned By-laws for more than a year before appealing to the Tribunal.
Generally, parties are encouraged to act timely in pursuit of any appeal rights. That is why such rights are typically governed by time limits. That is also why the legislature granted the Tribunal wide discretionary authority to refuse to hear appeals under subsection 16(4).
However, in this appeal the appellant is raising the issue of CFO’s legal authority to enact the impugned By-Laws. If the Appellant is correct and the CFO is without the legal authority to enact By-Law 23 and 26, then regardless of the passage of time, the By-Laws would be “unlawful”.
Using subsection 16(4) as CFO requests in these circumstances could put an otherwise “unlawful” By-law beyond challenge or review. The Tribunal does not consider that to be the legislature’s intention behind subsection 16(4) of the Act.
Additionally, the Tribunal is not satisfied that there is sufficient evidence to support a finding that the appeal is frivolous, vexatious or not made in good faith.
Order of the Tribunal
The Tribunal hereby orders:
The CFO motion is hereby denied.
There is no order as to costs and each party shall be responsible for its own costs.
The Tribunal directs that a telephone pre-hearing conference in the Appellant’s appeal be convened on December 21, 2017 and that a Notice of Pre-Hearing Conference will accompany this decision.
Dated at Collingwood, Ontario this 20th day of November, 2017.