Hunter v. Dairy Farmers of Ontario, 2021 ONAFRAAT 2

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:

Hunter v DFO / Hunter v DRC [MOTION DECISION]

Hunter v DFO / Hunter v DRC [MOTION DECISION] 2021ONAFRAAT2

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

February 05, 2021

DATE OF DECISION:

February 08, 2021

010Hunter20/006Hunter20/007Hunter20

NEUTRAL CITATION:

2021ONAFRAAT2

FILE NOS.: 010Hunter20/006Hunter20/007Hunter20

DATE: 2021/02/08

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 Neil and Melanie Hunter, from a decision of the Dairy Farmers of Ontario dated December 8, 2020, denying their request to use shared facilities.

AND IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Neil and Melanie Hunter, from a decision of the Director of Regulatory Compliance dated October 28, 2020, regarding bacteria shut-off due to a fourth-level bacteria penalty for September 2020 milk.

AND IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Neil and Melanie Hunter, from a decision of the Director of Regulatory Compliance dated October 28, 2020, classifying the appellants’ farm as non-Grade A.

AND IN THE MATTER OF: A Motion made by the appellants, to consolidate the Appeals bearing File Nos.: 006Hunter20, 007Hunter20 and 010Hunter20, and for disclosure.

BETWEEN:

Neil and Melanie Hunter Appellants – and – Dairy Farmers of Ontario Respondent

Represented by Charles Hammond and Donald Good

Represented by Geoffrey Spurr

and

Neil and Melanie Hunter Appellants – and – Director of Regulatory Compliance Respondent

Represented by Charles Hammond and Donald Good

Represented by Geoffrey Spurr

HEARD: February 5, 2021

Before: Glenn C. Walker, Chair

Appearances Charles Hammond, counsel for the appellants Geoffrey Spurr, counsel for the respondents Donald Good, counsel for the appellants

DECISION OF THE TRIBUNAL

1A joint Pre-hearing Conference and Motion was heard today in connection with these three appeals before the Tribunal, namely files: 006Hunter20 between Neil and Melanie Hunter (the “Hunters”) and the Director of Regulatory Compliance (“DRC”); 007Hunter20 between the Hunters and the DRC and 010Hunter20 between the Hunters and Dairy Farmers of Ontario (“DFO”).

2This decision applies to each of the three appeals individually and is not to be construed as a consolidation of these matters.

3In the motion the Hunters seek disclosure pursuant to Rule 19.01 and 26.02 of the Tribunal’s Rules of Procedure of certain documents described as follows:

i. Minutes of the Meeting of the Members of the Board of Dairy Farmers of Ontario (“DFO”) in which Melanie and Neil Hunter’s shared facilities application was denied;

ii. Communications both to and from the DFO and DFO staff related to the denial of the Hunter’s Mental Health Catastrophe Application;

iii. Minutes of the Meeting of the Members of the Board of DFO in which the December 1, 2020 revisions to Sections 2 and 3 of Schedule B to the DFO’s Quota and Milk Transportation Policies were determined; and

iv. Communications, procedures and protocols to DFO relating to the December 1, 2020 revisions to Sections 2 and 3 of Schedule B of the DFO’s Quota and Milk Transportation Policies.

4The Tribunal understands that some of the material described in subparagraph (i) may have already been provided to the Hunters; however, since the Hunters have new counsel, the Tribunal will order that these materials be re-served.

5With respect to this portion of the Motion the Tribunal orders as follows:

a. DFO shall provide to the Hunters Minutes of the Meeting of the Members of the Board of Dairy Farmers of Ontario (“DFO”) in which Melanie and Neil Hunter’s shared facilities application was denied, to include both the original meeting where the Board heard the application and the Reconsideration Hearing minutes, if any.

b. Communications both to and from the DFO and DFO staff related to the denial of the Hunter’s Mental Health Catastrophe Application unless DFO claims that any document is privileged, in which case DFO shall disclose the nature of the document and the privilege claimed. If there is any dispute with respect to a privilege being claimed, either party may bring a motion to the Tribunal to have the issue decided prior to the commencement of the hearings.

c. Minutes of the Meeting of the Members of the Board of DFO in which the December 1, 2020 revisions to Sections 2 and 3 of Schedule B to the DFO’s Quota and Milk Transportation Policies were determined; and.

d. Communications, procedures and protocols to DFO relating to the December 1, 2020 revisions to Sections 2 and 3 of Schedule B of the DFO’s Quota and Milk Transportation Policies.

e. These documents shall be provided to the Hunters on or before February 11, 2021 in digital format.

6The Hunters also seek an order that all three appeals shall be consolidated or, in the alternative, heard at the same time or one immediately after the other as the hearing panel may direct.

7The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) provides as follows with respect to consolidation or hearing proceedings at the same time.

“9.1 (1) If two or more proceedings before a tribunal involve the same or similar questions of fact, law or policy, the tribunal may,

(a) combine the proceedings or any part of them, with the consent of the parties;

(b) hear the proceedings at the same time, with the consent of the parties;

(c) hear the proceedings one immediately after the other; or

(d) stay one or more of the proceedings until after the determination of another one of them.

Exception

(2) Subsection (1) does not apply to proceedings to which the Consolidated Hearings Act applies. 1994, c. 27, s. 56 (19).

Same

(3) Clauses (1) (a) and (b) do not apply to a proceeding if,

(a) any other Act or regulation that applies to the proceeding requires that it be heard in private;

(b) the tribunal is of the opinion that clause 9 (1) (a) or (b) applies to the proceeding.”

Conflict, consent requirements

(4) The consent requirements of clauses (1) (a) and (b) do not apply if another Act or a regulation that applies to the proceedings allows the tribunal to combine them or hear them at the same time without the consent of the parties. 1997, c. 23, s. 13 (16).

Use of same evidence

(5) If the parties to the second-named proceeding consent, the tribunal may treat evidence that is admitted in a proceeding as if it were also admitted in another proceeding that is heard at the same time under clause (1) (b). 1994, c. 27, s. 56 (19)”

8Section 8.01 of the Tribunal’s Rules of Procedure states as follows:

8.01 Where the Tribunal considers that two or more appeals are related to each other by common facts, issues, questions of law or for any other reason, the Tribunal may,

1. with the consent of the parties, order the appeals to be consolidated or heard at the same time; or

2. hear one immediately after the other or stay or adjourn any matter until the determination of any other matter.”

9This rule mirrors subsection 9.1 (1) of SPPA requiring the consent of the parties to order that two matters be consolidated or heard at the same time.

10The SPPA section 9.1 goes on to set out several exceptions to the requirement of having the consent of the parties. The Consolidated Hearings Act does not apply; there is no other Act or regulation requiring that these proceedings be heard in private; there is no evidence before the Tribunal to lead it to believe that a closed hearing would be allowed pursuant to SPPA subsection 9(1) and there is no other Act or regulation (including the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16) that applies to the proceedings which would allow the Tribunal to combine the appeals or hear them at the same time without the consent of the parties.

11Counsel for the Hunters asks the Tribunal to dispense with consent of the parties in Rule 8.01 relying upon Rule 2.03 which provides as follows:

“2.03 The Tribunal may, in order to secure the most just, most expeditious and most cost effective determination of any appeal, dispense with compliance with any rule at any time.” (emphasis mine)

12That Rule would permit the Tribunal to dispense with compliance with Rule 8.01 and order that the appeals be consolidated or heard together without the consent of the parties.

13There is no need to determine whether the Tribunal will exercise its discretion in that regard as the rule does not permit the Tribunal to waive compliance with a statutory requirement, namely Subsection 9.1(1) of the SPPA.

14It is interesting to note that Rule 6.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 dealing with consolidation and hearing matters together has no requirement that the parties consent.

15Accordingly, there can be no order for consolidation or that the proceedings be heard together without the consent of the parties.

16On November 13, 2020 a Pre-Hearing Conference (“PHC”) was held in the non-Grade A appeal, File 006Hunter20, at which time the Hunters were represented by Robert Scriven. The Tribunal ordered that this matter be heard by the same panel immediately before the appeal from the decision of the DRC regarding bacteria shut-off. Hearing dates were set for January 11, 12 and 14, 2021. These dates were later abandoned.

17On November 13, 2020 a PHC was held in the bacteria shut-off appeal, File 007Hunter20. The Tribunal ordered that this matter be heard by the same panel immediately after the appeal from the decision of the DRC classifying the Hunters’ farm as non-Grade A. Hearing dates were set for January 11, 12 and 14, 2021. These dates were later abandoned.

18At the time that these PHC’s were held the appeal from the decision of the DFO Board on the application for shared facilities had not yet been filed.

19On January 4, 2021 a PHC was held in the appeal concerning shared facilities, File 010Hunter20, at which time the Hunters were representing themselves. Hearing dates were set for February 8 and 9, 2021. These dates were later abandoned.

20The Tribunal is cognizant of the sentiment expressed in Section 138 of the Courts of Justice Act R.S.O. 1990, c. C.43 providing that as far as possible a multiplicity of legal proceedings shall be avoided; however, if the Legislature had intended that administrative tribunals should have the same authority to grant orders to consolidate or hear proceedings together without the consent of the parties as the courts do, it would have provided the tribunals with some discretionary power.

21The Tribunal also understands the arguments which the Hunters intend to make in all three appeals which will create much repetition.

22In order to mitigate this repetition, the Tribunal urges counsel for the parties to present to the panel an Agreed Statement of Facts to deal with any non-contentious facts which are common to all three appeals.

23The Tribunal also urges counsel to consider consenting, at the appropriate time, to have the Tribunal treat some evidence that is heard in one hearing as also admitted in another hearing as anticipated by Subsection 9.1(5) of the SPPA.

24As there is no clear consent between the parties, the Tribunal orders that the three appeals be heard in the order that they were received by the Tribunal and as ordered previously in the PHC Orders of November 13, 2020 and January 4, 2021, one immediately following the other (that is Files 06Hunter20; 07Hunter20 and 010Hunter20), by the same panel, on March 2, 3, 4 and 5, 2021.

25The hearings will take place electronically using the Zoom application. A Notice of Electronic Hearing and Procedural Order will follow.

26The Appellants shall serve on the Respondent and file with the Tribunal on or before February 15, 2021 copies of all documents, maps, photographs, expert reports or other documents they intend to rely upon at the hearings. The Respondent shall serve on the Appellants and file with the Tribunal on or before February 24, 2021 copies of all documents, maps, photographs, expert reports or other documents it intends to rely upon at the hearings. The Appellants shall serve on the Respondent any reply material on or before February 26, 2021.

27A joint Book of Documents may be used encompassing all three appeals; however, documents will be entered as exhibits separately in each hearing.

28The parties shall comply with section 52 of the Evidence Act, R.S.O. 1990, c. E insofar as possible.

29No document not disclosed in accordance with this Order may be tendered in evidence at the hearings without leave of the Tribunal panel.

30The Appellants shall serve on the Respondent and file with the Tribunal on or before February 15, 2021 a list of witnesses they intend to call and a short witness statement for each. The Respondent shall serve on the Appellants and file with the Tribunal on or before February 24, 2021 a list of witnesses it intends to call and a short witness statement for each. An expert’s report may take the place of a witness statement and a CV shall be included.

31All documents served and filed shall comply with the Procedural Order which will accompany the Notice of Electronic Hearing.

32This Order may be varied by the panel assigned to these hearings as required.

33The Appellants have requested costs of the motion. This is not an appropriate matter for costs under Rule 28 of the Rules of Procedure.