Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Eigenbrood v Director

[MOTION TO DISMISS]

Eigenbrood v Director

[MOTION TO DISMISS]

2021ONAFRAAT10

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

April 13, 2021

DATE OF DECISION:

May 12, 2021

002Eigenbrood20

NEUTRAL CITATION:

2021ONAFRAAT10

FILE NO.: 002Eigenbrood20

DATE: 2021/05/12

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: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Mr. Tim Eigenbrood appealing the Director of Regulatory Compliance decisions dated February 25, 2020 and April 24, 2020 regarding Non-Grade A Level 1, 2 and 3 classification of the farm.

AND IN THE MATTER OF A motion made by the Respondent Director of Regulatory Compliance to dismiss the appeals.

AND IN THE MATTER OF An electronic hearing held pursuant to Rule 10 of the Tribunal’s Rules of Procedure.

BETWEEN:

Tim Eigenbrood

Appellant

– and –

Maria Leal

Director of Regulatory Compliance

Respondent

Self-represented

Geoff Spurr, Counsel for the Respondent

HEARD: Tuesday, April 13, 2021 via Zoom

Before: Christine Greydanus, Vice-Chair; Pete Koroneos, Member; Dave Fawcett, Member.

Appearances:

Tim Eigenbrood, Appellant

Geoff Spurr, Counsel for the Respondent

REASONS FOR THE DECISION OF THE TRIBUNAL DATED APRIL 14, 2021 – MOTION HEARING

On April 14, 2021, the Tribunal issued an order dismissing the appeals, with written reasons to follow. These are the reasons for that decision.

BACKGROUND

On May 22, 2019, January 17 and February 18, 2020, the Appellant’s farm at 636 9th Murray Road, Frankford, Ontario was inspected by a Dairy Farmers of Ontario (“DFO”) Field Service Representative (“FSR”) and found to be not in compliance with Ontario Regulation 761, resulting in it being classified as Non-Grade A Level 1, 2 and then 3 sequentially.

On February 3, 2020, the Appellant sent a letter to the Director of Regulatory Compliance (“DRC”) appealing the January 17, 2020 inspection decision and asking for leniency due to his facility being old. The Appellant further insisted that no Grade A FSR inspections occur unannounced for the next two years until his planned new facility is constructed, as “it is impossible to meet these ridiculous requirements 100% of the time”. The February 3, 2020 appeal was denied by the DRC on February 25, 2020.

On April 20, 2020 the Appellant sent an email to the DRC requesting reconsiderations be granted for the May 22, 2019 and February 18, 2020 Non-Grade A findings. The Appellant once again grieved that it is too much to expect his operation to be Grade A at all times and further, that unannounced inspections were annoying. In a letter dated April 24, 2020 the DRC advised the Appellant that the May 22, 2019 Non-Grade A classification is outside of the 90-day timeframe for reconsideration and that the DRC would not be investigating. With regard to the February 18, 2020 classification of Non-Grade A, the DRC’s investigation resulted in a denial of reconsideration and an affirmation of the inspector’s assessment that the Appellant’s farm was Non-Grade A on February 18, 2020.

The Appellant appealed the January 17 and February 18, 2020 Non-Grade A DRC decisions to the Tribunal on March 4, 2020 and the May 22, 2019 inspection and subsequent DRC decision has been included in this appeal. A hearing date was set for May 4, 2021.

On April 1, 2021 the Respondent served the Appellant with a motion requesting the Tribunal refuse to hear the appeals pursuant to subsection 16(4)(b) of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M. 16 (“MAFRA Act”) and on the basis that the appeal is frivolous or vexatious or is not made in good faith. The motion was heard on April 13, 2021.

FACTS

The Appellant initiated an appeal to the Tribunal by letter dated May 4, 2020. At that time, the Appellant was appealing the January 17, 2020 DRC decision only. On April 16, 2020 the Appellant sent an email to the Tribunal appealing the findings of the May 2019 and February 2020 DRC decisions. At that time, the Appellant stated that his arguments were the same in all of the matters and he wished to “get these matters (level 1, 2, 3) discussed before the tribunal.” The Appellant continues on to question “where in the Milk Act does it say these inspections are to be unannounced?”

In support of her motion, the Respondent DRC, Maria Leal, filed an affidavit. The affidavit and attached exhibits outline the Appellant’s repeated call that there be no unannounced inspections and his challenges to the authority of the DRC to conduct unannounced inspections. Ms. Leal outlines the regulatory scheme that authorizes the FSR’s to carry out unannounced inspections in conformity to the Milk regulation.

The Appellant, Tim Eigenbrood, testified orally against the motion. The Appellant did not provide any evidence to contradict the findings of the FSR’s inspections dated May 22, 2019, February 25, 2020 and April 24, 2020 with regard to Non-Grade A and Levels 1, 2 and 3 penalties and accepted that the Non-Grade A findings were accurate except that, if he had been advised in advance of the inspections, he would have had the opportunity to prepare for the inspections and would have been able to pass the inspections. The Appellant stated that he believes his farm is Grade A and that the notion that his farm is not Grade A, that he is not trying to maintain his farm at Grade A level, that he is not trying to follow the regulations and that he is not doing his best, is an insult.

The Appellant did not provide any evidence to support the validity of his appeal for no unannounced inspections.

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.”

ISSUE

1. Should the Appellant’s matter be allowed to proceed to a hearing, or should it be dismissed as being frivolous or vexatious or brought in bad faith?

ANALYSIS

The Respondent asserts that this appeal is frivolous and if not vexatious, bordering on vexatious.

The Tribunal agrees that the arguments and pleas made by the Appellant do not have any legal merit.

The Appellant is a milk producer in Ontario. In order for a producer to access the milk market, the producer must be in compliance with the Milk Act, R.S.O. 1990, Chapter M.12; Milk and Milk Products Regulation 761 and the Raw Milk Quality Program Policies. The Appellant is not disputing that his farm premises was non-compliant on the dates of the inspections but rather that he is working in an old facility and that it is unreasonable for him to be expected to maintain his premises in Grade A condition at all times and that no one else does. The Appellant maintained that none of the Grade A requirements affect milk quality or herd health and that they are “eye candy” for the FSR. The Appellant is asking the Tribunal to allow him to access the milk market without being inspected randomly and only with notice. There is no legal basis for this request and it is plain and obvious that the appeal cannot succeed.

The appeal was therefore dismissed in accordance with 16(4)(b) of the MAFRA Act, on the basis that the appeal is frivolous or vexatious or not made in good faith. The requested relief of the Appellant, that no inspections shall take place unannounced, was also denied.