Association of Ontario Chicken Processors v. Ontario Broiler Hatching Egg & Chick Commission, 2020 ONAFRAAT 11

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:

AOPC v OBHECC (RE) [MOTION OF PARTICULARS]

AOPC v OBHECC (RE)

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

May 20, 2020

DATE OF DECISION:

August 27, 2020

16AOCP19

NEUTRAL CITATION:

2020 ONAFRAAT 11

FILE NO.: 16AOCP19

DATE: 2020/08/27

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 A MOTION BROUGHT BY THE APPELLANT FOR AN ORDER FOR PARTICULARS

BETWEEN:

Association of Ontario Chicken Processors Appellant

– and –

Ontario Broiler Hatching Egg & Chick Commission Respondent

Chicken Farmers of Ontario

Alexandre Fallon, for the Appellant

Trent Johnson and Gillian Tuck Kutarna, for the Respondent Geoffrey P. Spurr for the Added Party

HEARD: May 20, 2020

Before: Glenn Walker, Chair Brandi Neil, Vice-Chair Fred Stulp, Member

Appearances: Mr. Mike Terpstra, Executive Director, Association of Ontario Chicken Processors, Appellant Alexandre Fallon, Counsel for the Appellant Bill Van Heeswyk, Ontario Broiler Hatching Egg & Chick Commission, Respondent Trent Johnson and Gillian Tuck Kutarna, Counsel for the Respondent Geoffrey P. Spurr, Counsel for the added party, Chicken Farmers of Ontario

DECISION OF THE TRIBUNAL

bACKGROUND

1The Appellant, the Association of Ontario Chicken Processors (AOCP), brings this motion seeking an Order from the Tribunal requiring the Respondent, the Ontario Broiler Hatching Egg & Chick Commission (OBHECC), to provide a detailed list of tasks and associated hours for the annual hatching egg producer hours considered as part of the cost of production formula.

2On May 25, 2018 OBHECC decided to implement a new cost of production formula (COPF) to take effect as of the pricing period A-151.

3On June 1, 2018 AOCP made an application to OBHECC under section 17 of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, Chapter M.16 (MAFRAA) requesting a reconsideration of the COPF adopted on May 25, 2018. In this request AOCP asked OBHECC to reconsider the number of hatching egg management hours among other things.

4AOCP particularized its request on July 25, 2018, again asking for a thorough review of hatching egg farmers’ management hours which would list tasks and associated hours in detail.

5OBHECC held a reconsideration hearing and in its decision noted that the hours for the management category were 847.20 hours, not 1711.7 hours as previously advised but did not list tasks associated with management hours or a breakdown of those hours by task.

6AOCP subsequently appealed the reconsideration decision to this Tribunal pursuant to Section 16 of the MAFRAA.

POSITION OF THE APPELLANT

7Prior to the adoption of the new CODF, OBHECC held consultations with AOCP.

8As a result of this consultation process, AOCP understood that management hours totaled 1711.7 hours and that production labour hours totaled 3,829.2 hours for a total of 5,541 total labour hours for hatching egg producers.

91711.7 hours struck AOCP as being too high for hatching egg management hours and it requested further details from OBHECC beforehand and at the reconsideration hearing.

10AOCP continues to view the overall number of hours for hatching egg producers as being inexplicably high and requires more fulsome disclosure from OBHECC in order to have a full and satisfactory understanding of the subject of the proceedings.

11The Appellant makes this motion relying upon section 5.4(1) of the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22 (SPPA) and Rule 19.01 of the Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal.

12Section 5.4(1) of the SPPA provides as follows:

“If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make order for,

a) The exchange of documents;

b) The oral or written examination of a party;

c) The exchange of witness statements and reports of expert witnesses;

d) The provision of particulars;

e) Any other form of disclosure.”

13The Tribunal has made rules under section 25.1 dealing with disclosure.

Rule 19.01 states as follows:

“At any time in a proceeding the Tribunal may order any party to provide to any other party and the Tribunal such further particulars, information or documents as the Tribunal considers necessary to enable the other party or the Tribunal to obtain a full and satisfactory understanding of the subject of the proceeding.”

14Any order made by the Tribunal under either SPPA section 5.4(1) or Rule 19.01 is discretionary.

POSITION OF OBHECC AND CFO

15OBHECC takes the position that no order should be made based on three grounds.

16CFO supports the position taken by OBHECC on this motion.

SECTION 16(5) MAFRAA

17OBHECC and CFO take the position, firstly, that the motion should be dismissed as the issue of all the hatching egg producers’ hours is not properly before the Tribunal.

18In the letter from AOCP to OBHECC dated June 1, 2018, in which the Appellant requests a reconsideration hearing, the only mention of the number of hours is for the number of hatching egg management hours. AOCP does not question the number of labour production hours.

19In the letter from AOCP to OBHECC dated July 25, 2018, wherein it particularized its request for reconsideration, there is only mention of “Hatching egg farmers management hours” and no mention of the number of labour production hours.

20OBHECC and CFO assert that the issue of the number of labour production hours as opposed to management hours was not before OBHECC for reconsideration and was not addressed by it in its decision.

21In paragraphs 41 to 44, inclusive, OBHECC dealt with the issue of hatching egg management hours in its Reconsideration Decision. It limited its analysis to management hours, presumably, because the issue of labour production hours was not raised by AOCP in its request.

22Furthermore, there is nothing in the Appellant’s Notice of Appeal dated November 13, 2019 beyond a request for an Order requiring OBHECC to provide a detailed list of tasks and associated hours for the annual hatching egg producer management hours considered as part of the COPF.

23We take note of the argument of OBHECC and CFO that the relief requested in the Notice of Motion dealing with all hatching egg producer hours is broader than one of the issues properly before this Tribunal, that is the hatching egg producers management hours. Under Section 16 of MAFRAA, the Appellant can only appeal decisions on issues before the original decision maker. To do otherwise would deny the original decision maker the opportunity to rule of that issue itself.

24As stated in paragraph 32 of Mr. Van Heeswyk’s affidavit, sworn May 11, 2020, in support of OBHECC’s position:

“The number of HEP management hours used in the OBHECC COPv6 has been the subject of much discussion and confusion.” (emphasis ours)

25At paragraph 15 of the affidavit of Mr. Terpstra, sworn April 28, 2020, in support of the appellant’s position, he asserts that:

“In its reconsideration decision, attached hereto as Exhibit H, OBHECC noted that the hours for the “management” category were only 847.20, not 1711.7. However, no adjustment was made to the total number of labour hours for hatching egg producers. In essence, OBHECC limited its assessment to one of the five components of hatching egg producer labour, the one, explicitly described as “management”. In doing so, OBHECC was not indicating that the other four components represented production labour, the hours of which totaled 4693.7, which in AOCP’s view is too high.”

26We find that there is confusion regarding the number of management labour hours. OBHECC has not been forthcoming with details requested by AOCP which would possibly clarify this confusion.

27The appeal is limited to management hours, as stated above. The production of details concerning management labour hours may assist the appellant and the Tribunal in understanding this issue. The error in the number of management hours first disclosed by OBHECC in the reconsideration decision appears to be the possible source of this confusion.

28In these circumstances, the Tribunal has the jurisdiction to make an order for particulars of information that is directly related to the issue before it, that is management labour hours, but lacks jurisdiction to order particulars related to the issue of production labour hours as this issue is not properly before it on appeal.

RULE 19

29AOCP has brought this motion for particulars under Rule 19.01 of the Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal.

30OBHECC and CFO argue that AOCP’s use of Rule 19.01 in the circumstances of this case is an improper attempt to request the creation and disclosure of new evidence under the guise of being particulars. To support that argument, they rely upon Rule 1:09 which provides that where any matter of procedure is not provided for by these Rules the Rules of Civil Procedure may be followed where the Tribunal determines they are appropriate. They refer to the Rules of Civil Procedure regarding disclosure (Rule 25.10) and cases decided under that Rule.

31We agree with the submission of the appellant that there is no need to resort to the Rules of Civil Procedure. Rule 19 provides a complete code for providing particulars in a tribunal setting.

32Rule 25.10 relates specifically to pleadings and there appears to be no rule akin to SPPA section 5.4(1) and our Rule 19.01 under the section dealing with discovery in the Rules of Civil Procedure.

33The powers in Rule 19 are discretionary. All the rules of the Tribunal are to be liberally interpreted in order to obtain the most just, most expeditious and most cost-effective determination in every appeal (Rule 1.07).

34It should be noted that the Tribunal may order any party not just an appellant or applicant party to provide particulars.

35It should also be noted that the particulars may be ordered where the Tribunal considers it necessary to enable the other party (AOCP) or the Tribunal to obtain full and satisfactory understanding of the subject of the proceeding. In view of the apparent confusion, the Tribunal finds that this information may assist it as well in understanding the issue concerning management hours.

36For these reasons, Rule 19.01 is an appropriate tool for use by the Appellant in these circumstances.

RULE 20

37Lastly, OBHECC and CFO submit that, in reality, this is not a motion for particulars but a motion for disclosure which should have been brought under Rule 20 of the Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal.

38Rule 20.03 provides that the Tribunal may order a party to disclose to any other party the existence of all documents and things that the party will refer to or enter as evidence at the hearing.

39They argue that AOCP is requesting disclosure of documents and not particulars and that, as such, the motion when examined under Rule 20 must be dismissed as the appellant would not be entitled to documents which OBHECC did not intend to rely upon at the hearing.

40The appellant cites the decision of the Ontario Court of Appeal in Ontario Human Rights Commission v. Dofasco, 2001 CanLII 2554 in support of its position. We find that decision not only very helpful but binding on the Tribunal.

41At paragraphs 46 to 48, inclusive, the court held:

46The commission submits that the board's order should have been confined to only those documents on which the complainant intends to rely to support her case. It relies upon Rule 41 in making the submission. Rule 41, standing alone, appears to support the commission's submission. There is, however, more in the governing legislation than Rule 41. Rule 42, which is backed up by s. 5.4(1) of the Statutory Powers Procedure Act, confers on the board the power to order any party to deliver to any other party "further . . . documentary evidence . . . for the purposes of the hearing, and anything else the panel considers appropriate for a full and satisfactory understanding of the issues in the proceeding". This would clearly include any documents in a party's possession that are relevant to an issue in the proceeding and which may be helpful to the other party.

47This interpretation accords with one of the recognized purposes of discovery, which include not only enabling a party to know the case he or she has to meet but, also, to obtain documents "which may . . . enable the party requiring the affidavit [of documents] either to advance his own case or to damage the case of his adversary" (Compagnie Financière du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55, 52 L.J.Q.B. 181 (C.A.) at p. 63 Q.B.D.; and see Williston and Rolls, The Law of Civil Procedure (Toronto: Butterworths, 1970) at pp. 894-98). This, in turn, facilitates more accurate fact- finding at the trial or hearing, if the proceeding has not earlier resulted in a settlement. I refer, generally, to Cook v. Ip (1985), 1985 CanLII 163 (ON CA), 52 O.R. (2d) 289, 22 D.L.R. (4th) 1 (C.A.) at p. 292 O.R.

48Section 5.4(1) of the Statutory Powers Procedure Act, which confers power on the board to "make orders for (a) the exchange of documents", should be read as meaning the exchange of documents to carry out the basic purposes of pre-hearing disclosure and so should not be read as confined to documents on which a party intends to rely.

42Rule 42 in the Dofasco case is almost identical to the Tribunal’s Rule 19.01.

43We find that contrary to the submissions of OBHECC particulars can be in the form of documents. Rule 19.01 specifically refers to “particulars, information or documents”.

44We also find that the error of OBHECC in relating the management hours to AOCP or even the misunderstanding of AOCP in the circumstances provide a sufficient factual basis to support the requested order for particulars.

CONCLUSION

45For the above reasons, the motion is granted in part.

ORDER

46The Tribunal therefore orders that OBHECC provide to AOCP and CFO a detailed list of tasks and associated hours for the annual hatching egg producer management hours considered as part of the cost production formula within 60 days of the date of the release of this decision.