Agriculture, Food and Rural Affairs Appeal Tribunal

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, Ontario, N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

APPEAL: Lalande v Équipements Séguin et Frères, Inc. (RE) Lalande v Équipements Séguin et Frères, Inc.

STATUTE: Farm Implements Act

HEARING: May 21, 2020

DATE OF DECISION: June 2, 2020

003Lalande18

NEUTRAL CITATION: 2020 ONAFRAAT 06

IN THE MATTER OF THE FARM IMPLEMENTS ACT, R.S.O. 1990, c. F.4, AS AMENDED.

AND IN THE MATTER OF: An Application to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) by Raymond Lalande, of St-Pascal Baylon, Ontario, under Section 22 of the Farm Implements Act from a dispute with Équipements Séguin et Frères, Inc. of St-Clet, Quebec, and added parties Kubota Canada Ltd. and Great Plains Manufacturing Inc., concerning a Great Plains Planter, model number YP825 AR8.

AND IN THE MATTER OF: A Motion made by Équipements Séguin et Frères, Inc., filed February 28, 2020, challenging the Tribunal’s jurisdiction to hear and decide this application.

BETWEEN:

Raymond Lalande Applicant

– and –

Équipements Séguin et Frères Inc. Respondent

Kubota Canada Ltd. Respondent (added party)

Great Plains Manufacturing Inc. Respondent (added party)

Robert Tolhurst, for the Applicant Ian Flett, for the Respondent Équipements Séguin et Frères Inc. John Contini, for the Respondents Kubota Canada Ltd. and Great Plains Manufacturing Inc.

HEARD: May 21, 2020

Before: Harold McNeely, Vice-Chair; Tricia Schouten, Vice-Chair; Sarah Judd, Member

Appearances: Ian Flett, counsel for the Respondent, Équipements Séguin et Frères Inc. Robert Tolhurst, counsel for the Applicant, Raymond Lalande John Contini, counsel for the Respondents, Kubota Canada Ltd. and Great Plains Manufacturing Inc.

DECISION OF THE TRIBUNAL

Introduction

1Équipements Séguin et Frères, Inc. (“the Respondent”) has filed a motion to dismiss the Application of Raymond Lalande (“the Applicant”) pursuant to section 4.6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 on the basis that the proceeding relates to matters which are outside the jurisdiction of the Agriculture, Food and Rural Affairs Appeal Tribunal (“the Tribunal”).

2The motion was scheduled to be heard on May 7, 2020. The Respondent filed a Factum and supporting Affidavit of Michel Séguin, the Applicant filed a Factum and supporting Affidavit of Raymond Lalande and the Respondent filed a Reply to the Applicant’s Factum. On the morning of the date on which the motion was scheduled to be heard, counsel for the Respondent submitted additional case law which he felt would be relevant to the Tribunal in determining the matter. The Tribunal adjourned the date set for the motion in order to provide the Applicant with the opportunity to reply to the additional case law presented by counsel for the Respondent. The Applicant subsequently filed a Commentary with respect to the additional case law, and the Respondent filed Supplemental Submissions in response to the Commentary. The motion was heard on May 21, 2020.

Tribunal’s Jurisdiction

3Pursuant to section 5(1) of the Farm Implements Act, on the request of a purchaser, dealer, distributor or manufacturer, the Director may inquire into and attempt to resolve a dispute with respect to any matter arising from the application of the Act. Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 SCR 572 provides for the accepted standard in determining jurisdiction: there must be a real and substantial connection to the forum where the action is brought.

The Facts

4The Respondent submits that, because its business is operated from a physical location in the Province of Quebec and not in the Province of Ontario, there is not a real and substantial connection to Ontario. In addition, it submits that the Applicant chose to cross into the Province of Quebec when he purchased the planter and should therefore be bound by its laws. Finally, the Respondent relies on Article 4 of the contract signed by the parties, which Article provides that the contract is governed by the laws of the Province of Quebec.

5The Applicant submits that there is a real and substantial connection to the Province of Ontario on the following basis: the Respondent advertises in the Province of Ontario; the Respondent is registered as a dealer pursuant to the Farm Implements Act; the Respondent conducts business with customers in Ontario; the Respondent delivered the planter to the Applicant’s farm in Ontario; the Respondent serviced the planter at the Applicant’s farm in Ontario; and, the Respondent’s invoices provide for an Ontario HST number. With respect to Article 4 of the contract, the Applicant submits that he did not read the said Article, that it was not brought to his attention and that, under the circumstances, Article 4 is a particularly unfair term. The Applicant references Tilden Rent-A-Car Co. v. Clendenning, 1978 CanLII 1446 (ON CA) in support of his submission.

Tribunal’s Determination

6There is no dispute with respect to the facts. Although the Respondent does not have a physical office or location in Ontario, it does advertise in Ontario, delivers its equipment to purchasers in Ontario and services its equipment at farms located in Ontario. In addition, it has registered as a dealer pursuant to the Ontario Farm Implements Act. If the Respondent is selling equipment to purchasers in Ontario and is registered as a dealer in Ontario, it must reasonably expect to be governed by the laws of Ontario with respect to purchasers from Ontario. The Tribunal determines that there is a real and substantial connection to the forum in which the application is brought.

7The Tribunal determines that the Applicant did not read Article 4 of the contract between the parties, and that reasonable measures were not taken to draw Article 4 to the attention of the Applicant. Under the circumstances, Article 4 is an unfair term. The Tribunal therefore determines that Article 4 of the contract is unenforceable.

Conclusion

8The motion to dismiss is denied.