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 Email: AFRAAT@ontario.ca
and Canadian Sheep Federation
2023 ONAFRAAT 19
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 (“Tribunal”) by Roger Albers and Matt Lynch, regarding a decision of the Ontario Sheep Marketing Agency (now the Ontario Sheep Farmers) dated June 1, 2022
AND IN THE MATTER OF a motion in held pursuant to Rule 30 of the Tribunal’s Rules of Procedure.
BETWEEN:
Roger Albers and Matt Lynch Appellants
– and –
Ontario Sheep Farmers Respondent
– and –
Canadian Sheep Federation Participant
Represented by John O’Kane
Represented by Geoffrey P. Spurr
Represented by John O’Kane
Heard: October 4, 2023 by video conference
Before: Glenn C. Walker, Chair
Appearances:
John O’Kane, Counsel for Appellants and Participant
Geoffrey P. Spurr, Counsel for Respondent
Allan Ribbink, representing Canadian Sheep Federation, Participant
Erin Morgan, representing Ontario Sheep Farmers, Respondent
MOTION DECISION
This is a motion for disclosure brought by the appellants, Roger Albers and Matt Lynch, and the Canadian Sheep Federation, a participant in these proceedings, pursuant to Rule 24 of the Tribunal’s Rules of Procedure.
The Canadian Sheep Federation (“CSF”), as a participant, is not entitled to bring motions1 but will be entitled to receive copies of all documents exchanged or filed by the parties2. The Tribunal will treat this motion as being made by the appellants only.
The respondent is Ontario Sheep Farmers (“OSF”) which was known as the Ontario Sheep Marketing Agency3 (“OSMA”), at the time the appeal was brought and was also known by that name during the period for which disclosure is sought. It will be referred to throughout this decision as OSF but should be interpreted as referring to OSMA for any period pre-dating the change of name.
The Issues on the Appeal
- As pleaded in the appellants’ December 2, 2022 appeal letter to the Tribunal, the issues on appeal are:
OSF has not implemented any licensing regime.
OSF’s purporting to license non-resident producers is beyond OSF’s authority.
OSF’s purporting to collect license fees from non-resident producers is beyond OSF’s authority.
OSF’s purporting to collect license fees from some but not all producers is arbitrary, unreasonable, unfair, discriminatory and beyond OSF’s authority.
OSF’s license fee exemption policy is arbitrary, unreasonable, unfair, discriminatory, and beyond OSF’s authority.
The Disclosure Sought
- The following disclosure (collectively called the “requests”) is sought by the appellants:
Documents between OSF and any out of province producer regarding OSF license fees on the purchase/sale of lambs, sheep or wool.
Documents between OSF and any other provincial sheep, lamb or wool organization regarding OSF license fees on the purchase/sale of lambs, sheep or wool.
Documents between OSF and the Ontario Farm Products Marketing Commission (OFPMC) regarding OSF license fees on the purchase/sale of lambs, sheep or wool in Ontario, but produced outside Ontario.
Documents between OSF and the Farm Products Council of Canada (FPCC) regarding OSF license fees on the purchase/sale of lambs, sheep or wool in Ontario, but produced outside Ontario.
Documents between OSF and any out of province producer regarding exemptions from OSF license fees on the purchase/sale of lambs, sheep or wool in Ontario.
Documents between OSF and any other provincial sheep, lamb or wool organization regarding exemptions from OSF license fees on the purchase/sale of lambs, sheep or wool in Ontario.
Documents related to any exemptions from OSF license fees provided to Ontario sheep, lamb and wool producers, including current or past members of the OSF Board of Directors.
Documents between Rod Stork (then Chair of the Ontario Farm Products Marketing Commission (“OFPMC”)), and/or Marilyn Sewell (then analyst with OFPMC) and OSF between 1999 and 2005 regarding OSF license fees or exemptions on the purchase/sale of lambs, sheep or wool in Ontario, but produced outside Ontario.
Documents between the Saskatchewan Sheep Development Board and OSF between 1999 and 2005 regarding OSF license fees and/or exemptions on the purchase/sale of lambs, sheep or wool in Ontario, but produced in Saskatchewan.
Documents between OSF and any regulatory authority in the province of Quebec regarding OSF license fees and/or exemptions on the purchase/sale of lambs, sheep or wool in Ontario, but produced in Quebec.
Factual Context
OSF is constituted under the Farm Products Marketing Act and Regulations 429 and 430 made under that statute. It has delegated authority in respect of the producing and marketing of sheep and wool within Ontario, including the prohibition of such producing and marketing in whole or in part.
Pursuant to the authority granted to it by Regulation 429, OSF has made General Regulations effective January 1, 2017.
Roger Albers is a sheep producer engaged in the production and marketing of sheep in the Province of Alberta and Matt Lynch is a sheep producer engaged in the production and marketing of sheep in the Province of Nova Scotia. Both also market lambs and/or sheep in the Province of Ontario.
The principal concerns identified by the appellants relate to the application of subsections 6(a) and 6(b) and exemptions under subsection 12(b) of the General Regulations and generally, the collection of license fees from out of province producers and the authority of OSF to do so.
The Position of the Appellants (Moving Parties)
At the commencement of submissions, counsel for the appellants withdrew request number 4 relating to documents between OSF and the Farm Products Council of Canada.
The appellants argue that the disclosure they request will enable them to know the case that they have to meet, and/or advance their case or provide documentation that may damage the respondent’s case.
To support that argument, they rely upon the motion decision of this Tribunal in Association of Ontario Chicken Processors v. Ontario Broiler Hatching Egg & Chick Commission4, which in turn followed the decision of the Ontario Court of Appeal in Ontario Human Rights Commission v. Dofasco5.
With the exception of requests 8 and 9, the balance of the requests are open-ended in time. During submissions, counsel for the appellants stated that from the nature of the appeal and his reply submissions, it should be clear that the temporal scope of the requests covered the period of January 1, 2017 forward; January 1, 2017 being the effective date of the subject General Regulations.
The appellants submit that based on the affidavit of Corlena Patterson, Executive Director of CSF, OSF historically made public the amount of annual exemptions, but now in its external reporting it reports only net license fees with no reporting on the annual exemptions. Further it does not report on the type of exemptions that are exempt, or the reasons why exemptions are granted or refused.
Ms. Patterson also provided evidence that around 2019-2020 OSF provided an “exemption/refund” to Les Eleveurs d’ovin du Quebec (“LEOQ”) which is the Quebec provincial agency that operates as a single sales desk for sheep over a certain weight; that at that time LEOQ had a significant livestock surplus in Quebec and sold a sizable number of animals into Ontario. OSF has not disclosed publicly details of that exemption or whether it has made similar exemption/refunds to out of province producers or provincial agencies such as LEOQ.
The evidence of Ms. Patterson was stated by counsel to be uncontradicted. Counsel for the appellants argues that this evidence establishes the relevance of the material sought in requests numbers 1, 2, 5 and 6.
Allan Ribbink is a long-time Ontario lamb and sheep producer. He gave evidence on the motion by way of an affidavit that OSF directors have received exemptions from paying license fees on lambs brought into Ontario from outside the province.
This evidence was allegedly uncontradicted. Counsel for the appellants submits that this evidence establishes relevance with respect to requests numbers 1, 2, 5, 6 and 7 and that the information relating to license fees and exemptions are related, being two sides of the same coin.
The affidavit evidence of Catherine Holmes, a long-time employee of the Canadian Cooperative Wool Growers, which purchases wool from across Canada, shows that the OSF license fee is deducted from wool purchases from Ontario wool producers but not from wool purchases from out of province wool producers.
This evidence also was alleged to be uncontradicted and alleged to establish the relevance of information sought in requests numbers 1, 2, 5, 6 and 7.
The appellants also seek documents relating to the purchase of lamb or sheep from out of province producers where the license fee was not collected by OSF.
Fred Baker, a veteran Ontario sheep producer and past member and chair of OSF states in his affidavit that until his departure from OSF’s Board of Directors in 2006 the OSF Manager produced and distributed to all 11 District Committees detailed minutes of all Board meetings to keep the producers in the province informed.
He also provided evidence that around 2004-2005 the Saskatchewan Sheep Development Board (“SSDB”) challenged the authority of OSF to apply the license fee to sheep and lambs produced in Saskatchewan and sold in Ontario. Rod Stork, then Chair of the Ontario Farm Products Marketing Commission and Marilyn Sewell, an analyst with the Commission, advised the OSF Board that it was operating illegally by applying the license fees to out of province livestock.
He stated that in order to avoid a formal challenge at the Commission level, a “gentleman’s agreement” was arrived at that provided that if SSDB did not make a formal challenge, OSF would agree to devote the equivalent of the license fees collected on out of province sheep and lamb on market expansion, promotion, and market information and provide information and promotional resources to other provincial sheep organizations. This gentleman’s agreement was unilaterally cancelled by OSF in approximately 2013-2014.
The evidence of Fred Baker was alleged to be uncontradicted and supported by the affidavit evidence of Gord Schroeder, the Executive Director of SSDB. This evidence, it was submitted, is relevant to request numbers 8 and 9.
The Position of the Respondent
- OSF contests all the requests for disclosure. For the purpose of this decision, its objections can be categorized as follows:
a. The requests are open-ended and too broad and amount to the archetype of the notorious “fishing expedition”.
b. The requests, specifically numbers 1, 2, 8, 9, 10, are not relevant to the central legal issue raised by the appeal.
c. Requests with respect to the exemption policy relate to information that has already been provided to the appellants.
d. Request number 8 relates to a timeframe beyond any reasonable temporal relevance to the current appeal.
e. The requests generally fail to delineate between events prior to 2017 and subsequent to the adoption of the present General Regulations.
f. The appellants should not be permitted to use a disclosure request as a means of trying to buttress their case by a wide-ranging fishing expedition tantamount to an examination for discovery.
g. The request for disclosure is driven by CSF and it is an abuse of process to allow CSF to now attempt to subject OSF to a wide-ranging disclosure. Much of the information requested should be available through CSF and the affiants of the affidavits filed by the appellants.
In his response document, counsel for OSF points out that only 2 of the 10 requests, namely request numbers 8 and 9, have any timeframe associated with them and that such unlimited requests for disclosure constitute the notorious “fishing expedition” which courts and tribunals must guard against when disclosure requests are made.
In its Reply Document, dated September 28, 2023, 6 days before the hearing of the motion, the appellants clarified their requests to add a timeframe commencing January 1, 2017, the date that the present General Regulations came into effect.
Despite the application of the timeframe, OSF alleges that the appellants are still on a fishing expedition based on the fact that they are still looking for evidence and documentation which they already have, is available to them through CSF or is completely irrelevant.
Analysis
- For the purposes of this decision, I will restate the issues raised on this appeal by the appellants and set out in paragraph 4 above. They are:
a. OSF has not implemented any licensing regime. This is a mere statement. The question raised, I believe, is does OSF have a licensing regime, and if it does not, why? The appellants do not expand on what they mean by a “licensing regime”.
b. The second and third issues are related. They relate to the question of whether OSF has the authority to license and to collect license fees from non-resident producers. I say that they are related as Section 5 of the General Regulations provides that anyone who pays a license fee is deemed to hold a license. Again, for the purposes of this motion alone, the question is whether section 6 of the General Regulations should apply to non-resident producers.
c. The fourth issue raises the question whether purporting to collect license fees from some but not all producers is arbitrary, unreasonable, unfair, discriminatory and beyond OSF’s authority.
d. The fifth issue requires an investigation into whether OSF’s license fee exemption policy is arbitrary, unreasonable, unfair, discriminatory, and beyond OSF’s authority.
In addition to the requirement that each party deliver to the other all documents that the party will produce or seek to have entered as evidence at the hearing6, the Tribunal may at any stage of a proceeding order a party to disclose to the other party documents relevant to the issues in the proceeding.7
Subsection 16(7) of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16 (“MAFRAA”) also requires OSF to provide the Tribunal with all relevant by-laws, documents or other materials of any kind whatsoever in its possession. Those documents would be shared with the appellants.
The test for disclosure is arguable relevance. The threshold for disclosure is not a very high one but there must be some relevance to the issues before the Tribunal.
Request Number One
The appellants are requesting that OSF search its records and provide copies of any documents between OSF and any out of province producer regarding OSF license fees on the purchase/sale of lambs, sheep or wool for the period between January 1, 2017 and the present.
OSF argues that such information is not relevant to the issues on appeal and that it matters not whether 200 or 2 out of province producers have been charged a license fee.
The information that would be disclosed if this request were granted would be of little relevance to issues (a) and (b). The appellants as out of province producers can give evidence that license fees are being charged to them. This will then be sufficient evidence to engage the legal issue with respect to OSF’s authority.
It is also highly speculative how any such information disclosed would be relevant to issues (c) and (d). This, in my estimation, would amount to a fishing expedition.
Request Number Two
The appellants are requesting that the respondent search its records for documents between it and any other provincial sheep, lamb or wool organization regarding OSF license fees on the purchase/sale of lambs, sheep or wool for the period between January 1, 2017 and the present.
Firstly, I am not convinced of the relevance of the information sought nor have the appellants explained how it would be relevant to any of the issues raised.
Secondly, much of this information, if the appellants wish to argue its relevance at the hearing, will be available to them through the CSF, a participant in this proceeding, and its member organizations.
Request Number Three
In this request, the appellants seek to have OSF search its records and provide copies of documents between OSF and OFPMC regarding OSF licensing fees on the purchase/sale of lambs, sheep or wool in Ontario but produced outside Ontario for the period between January 1, 2017 and the present.
I do not see the relevance of any information that might be forthcoming as a result of this request. Any opinion that OFPMC has or may have had on the application of the provisions of the General Regulations with respect to licensing fees or exemptions under the previous or the present General Regulations is irrelevant in this proceeding. It is the Tribunal’s role to assess the evidence and the law and come to its own conclusion on this issue.
Request Number Four
- This request has been withdrawn.
Request Number Five
The appellants seek to have OSF search its records and produce copies of documents between OSF and any out of province producer regarding exemptions from OSF license fees on the purchase/sale of lambs, sheep or wool in Ontario for the period between January 1, 2017 and the present.
This request could produce relevant data with respect to issues (c) and (d) in that there might be documentation showing that some out-of-province producers were granted an exemption whereas we know that the appellants were not.
There appears to be some misunderstanding or dispute between the parties about how the exemption policy works. This is an issue for the merits hearing.
Request Number Six
The appellants seek an order that OSF search its records and provide to the appellants copies of documents between OSF and any other lamb, sheep or wool organization regarding exemptions from OSF license fees on the purchase and sale of lambs, sheep or wool in Ontario for the period between January 1, 2017 and the present.
In view of the evidence provided with respect to the alleged LEOQ exemption, I find that the documents requested are arguably relevant to issue (d).
Request Number Seven
The appellants wish to have OSF search its records and provide to the appellants documents related to any exemption from OSF license fees provided to Ontario sheep, lamb or wool producers, including current or past members of the OSF Board of Directors for the period between January 1, 2017 and the present.
Subsection 12(b) of the General Regulations provides for an application for an exemption. Therefore, there should be a record of an application and some record of its being granted or refused. This information is relevant to issue (d) with respect to whether the application of the exemption policy is arbitrary, unreasonable, unfair or discriminatory.
Request Number Eight
This is a request for documents between Rod Stork, former Chair of the OFPMC, and Marilyn Sewell, then an analyst with OFPMC for the period 1999 and 2005 regarding OSF license fees and exemptions on the purchase/sale of lambs, sheep or wool in Ontario, but produced outside of Ontario.
This request appears to relate to an opinion allegedly given by OFPMC to OSF with respect to its authority based on previous General Regulations. As I have indicated8 above, whatever opinion OFPMC had with respect to the General Regulations in force at that time is not relevant to these proceedings.
Request Number Nine
The appellants seek production of documents between the Saskatchewan Sheep Development Board (“SSDB”) and OSF for the period 1999 and 2005 regarding OSF license fees and/or exemptions on the purchase/sale of lambs, sheep or wool in Ontario, but produced in Saskatchewan.
The evidence shows that SSDB challenged the authority of OSF to apply these license fees to lambs and sheep produced in Saskatchewan but sold in Ontario and threatened to take the issue to the OFPMC.
The information requested is, in my opinion, “ancient history” and of no relevance to the issues in this appeal based on the 2017 General Regulations. In any event, the appellants have access to documents of this nature through CSF, of which SSDB is a member.
Request Number Ten
This request is for documents between OSF and any regulatory authority in the province of Quebec regarding OSF license fees and/or exemptions on the purchase/sale of lambs, sheep or wool in Ontario, but produced in Quebec for the period between January 1, 2017 and the present.
This request appears to be based on the evidence of Corlena Patterson with respect to an alleged exemption granted to LEOQ during the period 2019 – 2020. As it is based on the 2017 General Regulations, this information would be relevant to issue (d).
Order
The motion of the appellants is granted in part.
OSF shall search its records and produce to the appellants copies of documents between OSF and any out of province producer regarding exemptions from OSF license fees on the purchase/sale of lambs, sheep or wool in Ontario for the period between January 1, 2017 and the present.
OSF shall search its records and provide to the appellants copies of documents related to any exemption from OSF license fees provided to Ontario sheep, lamb or wool producers, including current or past members of the OSF Board of Directors for the period January 1, 2017 to the present.
OSF shall search its records and provide to the appellants copies of documents between OSF and any regulatory authority in the province of Quebec, including LEOQ, regarding OSF license fees and/or exemptions on the purchase/sale of lambs, sheep or wool in Ontario, but produced in Quebec.
OSF shall search its records and provide to the appellants copies of documents between OSF and any other provincial lamb, sheep or wool organization regarding exemptions from OSF license fees on the purchase/sale of lambs, sheep or wool in Ontario.
The term “documents” used in this order shall be interpreted in accordance with the definition contained in the Tribunal’s Rules of Procedure.
All productions so ordered shall be delivered on or before December 15, 2023.
OSF shall comply with subsection 16(7) of the MAFRAA on or before December 15, 2023 if it has not already done so.
Dated at Chatham, this 2nd day of November, 2023.
Glenn C. Walker, Chair
Released: November 2, 2023
Footnotes
- Rule 8.07(iv), Tribunal’s Rules of Procedure
- Rule 8.04(vii), idem
- Farm Products Marketing Act, R.S.O. 1990, c. F.9, Regulation 430, section 2.
- 2020 ONAFRAAT 11
- 2001 CanLII 2554
- Rule 24.01, Tribunal’s Rules of Procedure
- Rule 24.02, idem
- See paragraph 42 above.