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:
UFCW v MedReleaf Corp (RE) Motion Decision
UFCW v MedReleaf Corp.
STATUTE:
Agricultural Employees Protection Act, 2002
HEARING:
October 17 and 18, 2019
October 22, 2019
001UFCW16B
NEUTRAL CITATION:
2019 ONAFRAAT 18
IN THE MATTER OF THE AGRICULTURAL EMPLOYEES PROTECTION ACT, 2002
AND IN THE MATTER OF: A Notice of Constitutional Question to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) by United Food and Commercial Workers International Union examining the validity of Sections 2(1) and 5 of the Agricultural Employees Protection Act, 2002.
AND IN THE MATTER OF: Notice of Motion Attorney General of Ontario dated October 7, 2019.
AND IN THE MATTER OF: Notice of Motion United Food and Commercial Workers International Union dated October 8, 2019.
Before:
John O’Kane, Vice-Chair; Harold McNeely, Vice-Chair and Jeffrey J. Hewitt, Vice-Chair
Appearances:
Micheil M. Russell and Patrick Enright, counsel for the Complainants
Richard J. Charney and Rika Sawatsky, counsel for the Respondent
Estée Garfin and Aud Ranalli, counsel for the Ministry of the Attorney General for Ontario
Tala Khoury and John Craig, counsel for Labour Issues Coordinating Committee
MOTION DECISION
Overview
On November 14, 2018, the Tribunal issued a consent Procedural Order establishing procedures and schedules for the constitutional challenge to sections 2(1) and 5 of the Agricultural Employees Protection Act, 2002 (the Act). The procedures included exchanging affidavits before the hearing and those affidavits serving as the evidence-in-chief of each affiant. The schedule included, among other dates, eleven hearing days commencing on October 17, 2019.
On October 17, 2019, at the start of the first scheduled hearing day, the Ministry of the Attorney General moved to strike numerous paragraphs1 from the affidavit evidence-in-chief of four United Food and Commercial Workers Union (UFCW) affiants.
In response to the Attorney General’s motion to strike, UFCW advanced a similar motion to strike numerous paragraphs2 from the affidavit evidence-in-chief of three of the government’s affiants. As part of its motion response, UFCW consented to withdraw paragraphs 43 to 48 from the March 18, 2019 Affidavit of Eric Tucker and paragraphs 6, 8, 96 to 97 and 100 from the July 29, 2019 Reply Affidavit of Eric Tucker.
After considering the submissions of the Attorney General and UFCW on the Attorney General’s motion, the Tribunal dismissed the motion giving brief oral reasons with more fulsome written reasons to follow. After receiving that oral decision, UFCW withdrew its motion.
Nature of the Motion
The motion sought to strike affidavit evidence as falling into five categories of inadmissibility: legal opinion on domestic law; legal argument; hearsay; irrelevant; and, improper reply. The Attorney General argued that generally admissibility issues are best addressed at the start of the hearing to focus the evidentiary record on the legal issues in the constitutional challenge and before cross-examination on the affidavits. The Attorney General also argued that leaving inadmissible evidence in the record would cause prejudice, whereas there would be no prejudice to UFCW or the hearing process by granting the motion relief.
UFCW tendered the affidavit evidence of Kevin Shimmin and Derek Johnstone as fact witnesses. UFCW tendered the affidavit evidence of Eric Tucker as expert evidence. The Attorney General’s witnesses also include a mix of fact-based witnesses and two expert witnesses.
Any reference in these reasons to an expert witness should not be taken as determining such because at this preliminary stage, the Tribunal has conducted no voir dire to consider if any proposed expert witness can be qualified.
Reasons for Dismissing the Motion
As explained orally the timing of the Attorney General’s motion was made late and disrupts the hearing schedule and we remain unconvinced that the relief requested will create enough efficiencies in the cross-examinations to outweigh the disruption. The Tribunal has express statutory authority to admit and consider evidence that would not be admissible in the law courts and the Tribunal routinely admits irrelevant and hearsay evidence and deals with such by weighting such evidence appropriately.
A. Motion Timing
This litigation has been before the Tribunal since 2016. On consent of the parties the issues were bifurcated. Phase One addressed the unfair labour practices complaints and culminated in Tribunal decision of August 29, 2018. Phase Two is the constitutional challenge. The parties developed a schedule and processes for the evidentiary and argument aspects of Phase Two that included the exchange of affidavits setting out the evidence-in-chief of each parties’ witnesses.
Under the Tribunal’s Procedural Order, UFCW, as the challenger of the constitutionality of the impugned sections of the AEPA put forward its affidavit evidence-in-chief by March 22, 2019. That date ensured the responding and intervenor parties would understand UFCW’s evidence-in-chief seven months before the hearing began.
Under the Tribunal’s Procedural Order, the Attorney General put forward its responding affidavit evidence-in-chief by June 7, 2019 and UFCW had until July 7, 2019 to put forward any reply affidavit evidence-in-chief.
Despite having UFCW’s affidavit evidence-in-chief since March (nearly seven months), and despite having UFCW’s affidavit reply evidence-in-chief since July (nearly three months), the Attorney General waited until the eve of the hearing to bring this motion. There was no explanation why the motion was not brought before the start of the constitutional hearing.
B. Disruption of the Hearing Schedule
Counsel for the Attorney General argued that the affidavits, once cleared of the inadmissible portions, could be reproduced overnight and the hearing proceed as scheduled.
The Tribunal is not convinced the affidavit evidence record can be amended as easily or as expeditiously as argued by the Attorney General.
Apparent from footnotes 1 and 2 is the substantial breadth of the competing motions to strike and their impact on the affidavit evidence record.
Had the Attorney General’s motion been made timelier, it would not have jeopardized the hearing schedule.
At the start of the hearing the parties presented the Tribunal with a proposed schedule for cross-examination of the witnesses of UFCW, the Attorney General, MedReleaf Corp., and the intervenor Labour Issues Coordinating Committee (LICC).
That jointly prepared schedule proposed eight of the eleven scheduled hearing days as dates for cross-examination on the affidavit evidence-in-chief. Given the substance of some of the affidavit evidence-in-chief, the Tribunal considered the proposed times for cross-examinations as overly generous.
Given that the hearing schedule as established in the Procedural Order now seems more than sufficient for cross-examinations and legal arguments, the Tribunal concluded there would not be substantial efficiencies achieved in the cross-examinations resulting from disrupting the hearing schedule, re-formatting and re-printing all the impugned affidavits.
That conclusion was reinforced for the Tribunal when the hearing re-convened on October 18th, 2019 for the cross-examination of Kevin Shimmin from the UFCW. The parties’ schedule had proposed a full day for Mr. Shimmin’s cross-examination but his cross-examination was concluded before noon.
C. Section 15 of the Statutory Powers Procedure Act
Under section 15 of the Statutory Powers Procedure Act (SPPA) the legislature granted the Tribunal wide discretionary power to admit as evidence at a hearing any oral testimony and any document or other thing and such testimony, documents or things need not be given under oath and whether or not admissible as evidence in court.
That wide discretionary power is subject to two exceptions. The first exception is a prohibition on evidence that would be inadmissible as privileged under the common law of evidence or inadmissible by statute. The second exception is a prohibition arising from any express statutory limitation making the evidence inadmissible.
Neither of those two exceptions apply to the five categories of inadmissibility argued by the Attorney General.
The Tribunal’s mandate as trier of fact and law arises principally in the agricultural sector and under a variety of statutes focused on the agri-sector. Many parties appear before the Tribunal on applications and appeals without counsel and with no previous background in litigation and the rules of evidence.
This Tribunal routinely admits evidence that would otherwise be inadmissible in the law courts. This Tribunal has substantial experience considering evidence admitted under section 15 of the SPPA and determining whether such evidence is reliable and how much weight should be attached to what would otherwise be inadmissible.
Admissibility Versus Reliability, Credibility and Weight
The Tribunal reminds the parties that while the Tribunal’s practice may be to a wider scope of admissibility, and while the Tribunal dismissed the Attorney General’s motion to strike, that should not be taken as a signal the Tribunal has, at this point made any determination that the impugned paragraphs are reliable, credible or should receive any weight.
Those arguments remain available to each party to make to the Tribunal.
Order of the Tribunal
The Tribunal Orders:
The Attorney General’s motion to strike paragraphs from the UFCW affidavits is dismissed.
On consent:
a. Paragraphs 43 to 48 of the March 18, 2019 Affidavit of Eric Tucker are withdrawn.
b. Paragraphs 6, 8, 96 to 97 and 100 of the July 29, 2019 Reply Affidavit of Eric Tucker are withdrawn.
- The affidavit paragraphs withdrawn on consent shall be redacted from the Tribunal Record.
Dated at Collingwood, Ontario this 22nd day of October 2019.
Footnotes
- paragraphs 43-58, 62, 64-72, 76-79, and 83 from the March 18, 2019 Affidavit of Eric Tucker; paragraphs 6, 8, 56, 84-85, 94, 96-97, 100 and 102-104 from the July 29, 2019 Reply Affidavit of Eric Tucker; paragraphs 4-8 and 29-34 from the March 15, 2019 Affidavit of Derek Johnstone; paragraphs 8-9, 11-15, 20-24, and 26-36 from the March 18, 2019 Affidavit of Kevin Shimmin; paragraphs 3-16 from the July 19, 2019 Reply Affidavit of Derek Johnstone
- paragraphs 13, 41-43 and 44-47 from the June 5, 2019 Affidavit of Philip Malcolmson; the June 6, 2019 Affidavit of Portia MacDonald-Dewhirst; paragraphs 25-30, 31-34, 197-214, 227-243, 244-275 and 281-286 from the June 5, 2019 Affidavit of Richard Chaykowski