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:
Ben and Wilbert Berendsen v Director of Regulatory Compliance (RE)
Ben and Wilbert Berendsen v Director of Regulatory Compliance
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
June 21, 2019
DATE OF DECISION:
July 9, 2019
006BerendsenDRC-19
NEUTRAL CITATION:
2019 ONAFRAAT 13
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 Ben and Wilbert Berendsen of Chepstow, Ontario from the decision of the Director of Regulatory Compliance classifying their farm as unsanitary non-Grade A and consequently shutting it off from the milk market.
AND IN THE MATTER OF: A motion to refuse to hear the appeal.
Before:
Glenn Walker, Vice-Chair; Arnold Strub, Member; and Fred Stulp, Member.
Appearances:
Ben Berendsen, Appellant
Wilbert Berendsen, Appellant
Maria Leal, Director of Regulatory Compliance, Respondent
Julie Mouris, Counsel for the Respondent
INTRODUCTION
By letter dated May 2, 2019, Maria Leal, Director of Regulatory Compliance, Ontario Raw Milk Quality Program (DRC) classified the Appellants’ farm at 455 Concession 6, RR 1, Chepstow, Ontario as unsanitary non-Grade A as a result of the Appellants refusing to allow Betty-Anne Elliott, their Field Services Representative, to conduct a Grade A inspection and consequently ordered the milk from their farm shut-off from the milk market effective immediately. The Appellants appealed that order to the Tribunal. A hearing date was set for June 21, 2019.
On June 16, 2019 the Respondent served the Appellants with a motion requesting the Tribunal to refuse to hear the appeal pursuant to subsection 16(4) of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, Chapter M.16 (MAFRA) on the grounds that the appeal is frivolous, vexatious and/or not made in good faith. The Appellants consented to short service of the motion and the motion was heard on June 21, 2019 prior to the commencement of the appeal.
FACTS
The Appellants forwarded three letters to the Tribunal to initiate the appeal, some of which contained defamatory statements maligning the integrity of Dairy Farmers of Ontario (DFO) and the Field Service Representative. In support of her motion, the Respondent filed the affidavit of Phil Alyea, Regional Field Services Manager for DFO for the southwestern Ontario region. The affidavit was not contradicted or disputed by the Appellants who filed no material in response to the motion. The affidavit outlines a history of harassment, intimidation and obstruction on the part of the Appellants in connection with inspections. It also contained defamatory statements concerning Field Services Representative, Betty-Anne Elliott, as well as other derogatory statements about DFO and a past DFO employee. None of these statements were contradicted by the Appellants in argument.
In the context of this hearing, the Appellants also alleged corrupt behaviour on the part of DFO surrounding an allegedly improper milk dump in 2005. The Appellants were given an opportunity to appear before the DFO board and their request for relief was denied.
THE LAW
Subsection 16(4) of the MAFRA Act states as follows:
“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) or, if in its opinion,
(a) The subject-matter of the appeal is trivial;
(b) The appeal is frivolous or vexatious or is not made in good faith; or
(c) The appellant has not a sufficient interest in the subject-matter of the appeal.”
ANALYSIS
The Respondent asserts that this appeal has all the hallmarks of an appeal that is frivolous, vexatious and/or not made in good faith.
Black’s Law Dictionary’s definition of frivolous is “lacking a legal basis or legal merit; not serious; not reasonably purposeful.” The law is well established that a Court will only dismiss or stay an action as being frivolous in the clearest of cases or if, on the face of the action and circumstances, it is plain and obvious