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) [REQUEST FOR REVIEW OF DECISION]
Gabe Kocsis v CFO (RE)
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
February 14, 2018
July 6, 2018
001Kocsis18-RFR
NEUTRAL CITATION:
2018ONAFRAAT09
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 Jordan, Ontario, from the decision of the Chicken Farmers of Ontario.
Before:
Harold R. McNeely, Vice-Chair
REQUEST FOR REVIEW OF DECISION
Mr. Kocsis seeks to have the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) review its March 27, 2018 amended decision (the “Decision”) pursuant to Rule 29 of the Tribunal’s Rules of Procedure.
Mr. Kocsis has failed to persuade me that the Decision contains any material error of fact or law and accordingly, for the following reasons, I decline to grant Mr. Kocsis’s request to allow a review to proceed.
Authority to Review Tribunal Decisions:
Section 21.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) authorizes the Tribunal to review all or part of its own decisions, if the Tribunal has created rules dealing with reviews. The Tribunal has implemented that statutory authority under Rule 29 of its Rules of Procedure.
The Tribunal’s Rules establish a process whereby the Chair or a Vice-Chair considers the request for review of a decision to decide “whether a review should be conducted”.1
The Tribunal’s Rule 29.09 sets out the criteria for evaluating a request for review as follows:
In deciding whether it is advisable to conduct a review of all or any part of a final decision or order, the Tribunal may consider any relevant circumstances including,
(a) whether there is significant new evidence which was not available at the time of the original appeal;
(b) whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision;
(c) the extent to which any party to the appeal or any other person has relied upon the final decision or order;
(d) the extent to which any party to the appeal or any other person will be affected by the review process; and
(e) whether the public interest in finality of decisions is outweighed by the alleged prejudice to the requester.
It is not my role to conduct a review but only to determine if, in the circumstances including those set out in Rule 29.09, there are grounds for a review to be conducted.
Background
The history of this matter is summarized in the Tribunal’s Amended Decision of March 27, 2018. As stated by Vice-Chair O’Kane at page 2 of the Amended Decision, the sole issue on appeal is whether the Board had the legal authority to enact the impugned by-laws and the legal authority to suspend its dealings with Mr. Kocsis as a District Committee Representative (“DCR”). These issues are further defined at pages 4 and 5 of the Amended Decision.
The Appellant’s arguments are also thoroughly analyzed and summarized in the Amended Decision.
The Order Under Review
In this appeal, the Appellant has challenged the authority of the Chicken Farmers of Ontario (the “Board”) to require a DCR to comply with certain rules of conduct set out in regulations adopted by the Board in By-Law 26 (which has since been replaced by By-Law 28). These By-Laws established rules for the election and nomination of members to a District Chicken Producers Committee (“Committee”) or to become a DCR. He also disputes the Board’s authority to suspend its dealings with the Appellant as a DCR by reason of his refusal to abide by its rules, by refusing to sign a Code of Business Conduct and Confidentiality Agreement.
In answering questions which defined the issues at the hearing, the Tribunal found that:
a) The Board has the legal authority to enact the by-laws challenged by the Appellant; and
b) The Board could suspend its dealings with the Appellant who refused to comply with the Board’s request to sign the DCR’s Code of Business Conduct and Confidentiality Agreement.
The Tribunal accepted the evidence of Everett Benjamins, Board Chairman, that to require a DCR to sign these documents on an annual basis was part of corporate governance best practices since as part of discharging their duties, DCR’s may be provided with confidential, personal, propriety or sensitive information.
Reasons Invoked by the Appellant for a Review
The Appellant raises the following reasons for a review of the Amended Decision:
a) By-Law 26 was the operative By-Law imposing additional requirements that the
Board did not have authority to enact.
b) The Tribunal should not have considered By-Law 28 which was enacted after his
suspension.
c) The Tribunal erred in deciding that a DCR Committee is a Committee of the
Board or CFO. He asserts it is a Committee of the District Chicken Farmers. This
Committee is created by Regulation 402.
d) Had the legislature intended CFO to have authority over DCRs, it would have
granted this power to the Board by legislation.
Discussion
The integrity of boards, governing bodies and groups such as DCRs, formed to inform boards, or to complement the policies adopted by boards is central to the proper functioning of these boards and to maintain the confidence of stakeholders and the public. Therefore, rules are required to govern the relationship between a board and these groups. These rules should reflect the principles of corporate governance. Confidential information provided to the Board and then shared with Committees and received by DCRs must be protected. Part of the responsibilities of DCRs is to provide feedback to the Board on confidential decisions before these are made public.
Premature disclosure of these decisions, or the unauthorized release of the confidential information would harm the reputation of the Board, its members, and result in a loss in confidence in the CFO. Therefore, a person who is appointed to a Committee or is part of the DCR should not expect to serve free of rules of governance including those of the Board. The release of confidential or sensitive information to DCRs allows them to fulfil their duties and arrive at informed comments or recommendations when they are consulted by the Board.
Whether DCRs are a Committee of the local Board or a Committee of the District Chicken Farmers does not exempt DCRs from compliance with the Code of Business Conduct and Confidentiality Agreement.
Conclusion
The issues as defined in the Amended Decision properly identified the questions the Tribunal had to consider at the hearing. After an analysis of the evidence and the arguments of the parties, the Tribunal determined that the Board had the legal authority to enact the By-Laws relied upon by the Board and to suspend its interactions and dealings with the Appellant, who had refused to sign the DCR Code of Business Conduct and DCR Confidentiality Agreement.
Having determined that the enactment of the By-Laws was within the legal authority of the Board, it was open to the Tribunal to arrive at the determination it arrived at in the Amended Decision.
There is no basis for a review of the Amended Decision.
Order of the Tribunal
The request for review is denied and the Amended Decision of March 27, 2018 stands.
Dated at Ottawa, Ontario this 6^th^ day of July, 2018