Agriculture, Food and Rural Affairs Appeal Tribunal
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
APPEAL:
Skotidakis Goat Farm vs Dairy Farmers of Ontario (DFO) [MOTION TO AMEND STAY]
Stotidakis Goat Farm vs DFO [MOTION TO AMEND STAY] 2021ONAFRAAT9
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
April 27, 2021
DATE OF DECISION:
April 27, 2021
002Skotidakis19
NEUTRAL CITATION:
2021ONAFRAAT9
FILE NO.: 002Skotidakis19
DATE: 2021/04/27
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: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by 1048547 Ontario Inc. (Skotidakis Goat Farm), from decisions of Dairy Farmers of Ontario, including retroactive assessments, pricing, fines, and milk delivery reduction/cessation decisions.
AND IN THE MATTER OF: A Motion by the Appellant 1048547 Ontario Inc. (Skotidakis Goat Farm)
BETWEEN:
1048547 Ontario Inc. (Skotidakis Goat Farm) Appellant
– and –
Dairy Farmers of Ontario Respondent
Represented by Marie Henein
Represented by David K. Wilson
Before: Glenn C. Walker, Chair; Harold McNeely, Vice-Chair; and Peter Koroneos, Member.
MOTION DECISION
1This motion was heard in writing upon the agreement of the parties.
2The appellant’s motion is for an Order to partially amend the Tribunal’s Order of December 16, 2019 so that the security ordered, the letter of credit for $3,333,333.33, be provided to the Tribunal rather than to DFO and for Order that Dairy Farmers of Ontario (“DFO”) may not realize the letter of credit until (a) the Ontario Minister of Agriculture, Food and Rural Affairs (the “Minister”) upholds the Tribunal’s order pursuant to Rule 33.11 of the Tribunal’s Rules of Procedure, and, (b) 90 days have passed after the Tribunal’s Order becomes final under Rule 33.11.
3In its written submissions, DFO requests that the appellant provide the said letter of credit by no later than 10 days from the date of the order made on this motion. In its reply materials, the appellant requests that the letter of credit be provided within 15 business days from the order’s issuance.
4In dealing with this motion in writing, the Tribunal considered the Amended Notice of Motion and the Exhibits attached thereto, the Written Submissions of the respondent DFO, the Book of Authorities of the respondent DFO and the Reply document of the appellant as well as the Decision and Order of the Tribunal dated December 16, 2019 (the “Decision”).
5The Decision provides an excellent recitation of the background facts and the analysis on the motion to define the stay of the impugned DFO decision (“stay motion”). There is no need to repeat that here. The reader is referred to the Decision which may be found at Skotidakis Goat Farm (1048547 Ontario Inc.) v. Dairy Farmers of Ontario, 2019 ONAFRAAT 21.
SHOULD THE TRIBUNAL HOLD THE LETTER OF CREDIT
6Paragraphs 7, 8 and 9 of the Order made in the Decision deal with the letter of credit and read as follows:
The Appellants shall provide DFO with security in a letter of credit, or other security acceptable to DFO and approved by the Tribunal, for $3,333,333.33.
The Appellants shall ensure the security described above remains in place during the conduct of the appeal.
DFO shall take no steps to collect on the security required by this order before the final appeal disposition.
7The appellant argues that it has concerns that DFO will realize the security before it can seek review of any decision by the Divisional Court, should such a review be required. Both the appellant and the respondent appear to consent to the Tribunal acting as a stakeholder or escrow agent with respect to the letter of credit.
8The appellant’s motion appears to be, in essence, a re-argument of the stay motion. The exhibits attached to the Amended Notice of Motion are all documents which were before the Tribunal on the stay motion and were considered by the Tribunal at that time resulting in the Decision which the appellant now seeks to vary.
9The appellant offers no specific authority or precedent for the Tribunal to act as a stakeholder in this situation.
10Notwithstanding the parties’ consent, the Tribunal declines to act as a stakeholder or escrow agent for the letter of credit. As a matter of policy, this is not a precedent that the Tribunal should set, as it exposes the Tribunal to becoming a party to court litigation between the parties on a review.
TIMELINE FOR HOLDING LETTER OF CREDIT
11In paragraph 9 of the Order in the Decision, DFO is ordered to take no steps to collect on the security before the final appeal disposition.
12Subsections 18(1), (3) and (4) of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16 (“MAFRA”) provide as follows:
(1) The Minister may review a decision of the Tribunal made under this Act and a decision of the Commission to which subsection 17(7) applies within 30 days after receipt by the Minister of the decision of the Tribunal or of the Commission and the reasons therefor, if any, or within such longer period as may be determined by the Minister within such 30-day period.
(3) Subject to subsection (4), a decision of the Tribunal or of the Commission, as the case may be, is final after the expiration of the period mentioned in subsection (1) unless the decision is varied or rescinded or a decision is substituted for the decision of the Tribunal or Commission or a new hearing is required.
(4) A decision of the Tribunal or of the Commission that has been confirmed, varied or rescinded under clause (2)(a) or a decision of the Minister that has been substituted for the decision of the Tribunal or of the Commission under clause (2)(b) is final.
13The “final appeal disposition”, in our opinion, is the point at which the Tribunal’s decision is final for the purposes of MAFRA and can be at one of several points, namely:
(a) 30 days after the Minister receives the decision; or
(b) Such longer period as may be determined by the Minister within the 30-day period; or
(c) The day on which the Minister confirms, varies or rescinds the decision of the Tribunal or substitutes his decision for that of the Tribunal.
14Once the Tribunal’s decision is final, the Tribunal is functus officio.
15This again is an attempt by the appellant to relitigate the stay motion. This issue could have been raised during the argument of that motion.
16We reject the submissions of the appellant that we have authority and jurisdiction to order that the letter of credit be held past the date the decision is final. We find that we do not. Paragraph 9 in the Order in the Decision will remain unchanged. We merely take this opportunity to clarify the meaning of the words “final appeal disposition” contained in that paragraph.
DATE TO PRODUCE THE LETTER OF CREDIT
17The parties appear to agree that a date for the production of the letter of credit should be determined. No such date was set out in the Decision Order. The Tribunal finds that the request by the appellant for 15 business days from the date of this order is reasonable considering the effects of Covid 19 on banking and amount of the letter of credit.
CONCLUSION AND ORDER
The appellant’s motion to vary the decision of December 16, 2019 is dismissed.
The Letter of Credit referred to in paragraph 7 of the Decision Order shall be delivered to DFO within 15 business days of the date this decision is released.
Released: April 27, 2021