Agriculture, Food and Rural Affairs Appeal Tribunal
2023 ONAFRAAT 21
IN THE MATTER OF THE Farm Implements Act, R.S.O. 1990, c. F.4
AND IN THE MATTER OF and an application to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) by Sunova Implement Ltd., under Section 5 of the Farm Implements Act regarding a dispute with CLAAS of America Inc.
AND IN THE MATTER OF A Motion held pursuant to Rule 30 of the Tribunal’s Rules of Procedure.
BETWEEN:
Sunova Implement Ltd.
Applicant
– and –
CLAAS of America Inc.
Respondent
Represented by Eric K. Gillespie and John May
Represented Steven Rosenhek and Montana Licari
HEARD: December 7, 2023 by Video Conference
Before:
Glenn C. Walker, Chair
Appearances:
Eric Gillespie, Counsel for the Applicant
John and Carmen Van Lierop, Representatives of the Applicant
Steven Rosenhek, Counsel for the Respondent
Montana Licari, Counsel for the Respondent
MOTION DECISION
- This is a motion seeking that I recuse myself in this matter. The Tribunal received written submissions from the parties and heard further oral argument on December 7, 2023. At the end of the submissions on December 7, 2023, I dismissed the motion with written reasons to follow. These are my reasons.
FACTS GIVING RISE TO THE MOTION
Each of the Applicant and the Respondent brought a motion for disclosure before me as Chair of the panel.
The motion brought by the Applicant (“Sunova Motion”) was heard on August 23, 2023. The motion brought by the Respondent (“CLAAS Motion”) was heard on September 5, 2023. Both motions (sometimes referred to as “the motions” or the “motion decisions”) were released by the Tribunal on September 22, 2023. The Sunova Motion was dismissed with reasons1. The CLAAS Motion was granted with reasons2.
ALLEGED GROUNDS FOR THE RECUSAL MOTION
- In its Factum3 the Applicant set out 4 grounds for the motion as follows:
(1) The Tribunal did not have regard for the factual submissions of the Applicant, particularly concerning the methodology for calculating damages, the need for an expert to testify to methodology, the relevance of the information sought regarding former Sunova employees now employed by GJ’s, and the prejudice to Sunova of granting the Respondent’s motion for production.
(2) The Tribunal did not have regard for the legal submissions of the Applicant, particularly regarding the effect of the case law relied upon by the Respondent and in turn by the Tribunal.
(3) The Tribunal did not have regard for settlement discussions between the parties.
(4) The Tribunal did not have regard for the purpose of the Farm Implements Act.
THE LAW OF RECUSAL
Both parties provided extensive case law citations with respect to the law to be applied on a recusal motion.
The law appears to be settled and I will briefly state the law and the test that I am to apply.
The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. What would an informed person, viewing the matter realistically and practically and having thought the matter through conclude.4
The threshold for a finding of actual or apprehended bias is high. Courts presume that judges will carry out their oath of office. Thus, to make out an allegation of judicial bias requires cogent evidence. Suspicion is not enough. The threshold is high because a finding of bias calls into question not just the personal integrity of the judge but the integrity of the entire administration of justice5.
ANALYSIS
The test to be applied in a recusal motion with respect to a court will also apply with respect to this Tribunal.
Applicant is dissatisfied with the results reached in each of the production motions. The grounds for recusal set out above are not evidence, let alone cogent evidence, which would support a conclusion that there was bias or an apprehension of bias. The alleged grounds are more akin to grounds for appeal of the motion decisions.
A reasonable, right-minded and informed person having read the motion decisions and considered the written and oral submissions on the production motions and then given the issue of bias due consideration both realistically and practically would not find that there was any actual or perceived bias on the part of the decision-maker.
In a previous matter under the Farm Implements Act, the Tribunal dealt with a similar issue. In Chesterman Farm Equipment Inc. v. CNH Canada Ltd.6, at the commencement of the hearing, counsel for the applicant raised a concern about the participation of a Vice-Chair as a member of the hearing panel where the Vice-Chair had made an interlocutory ruling on the applicant’s production and discovery motion that was unfavourable to the applicant. The applicant did not make a formal motion for the Vice-Chair to recuse himself but simply raised the issue as a concern for the panel’s consideration.
The Tribunal nevertheless felt obliged to address this concern in its decision where it stated:
Interlocutory motions frequently involve the tribunal making rulings that will be unfavourable to one of the parties before it. Making an unfavourable interlocutory decision does not mean that the tribunal member making that interlocutory decision has pre-judged the substantive dispute between the parties. Similarly, a reasonable apprehension of bias does not arise simply because a tribunal member has ruled in favour of one of the parties on a different issue.
The tribunal system and the court system would suffer if it precluded members making interim decisions from sitting on further related hearings.
I approve of and adopt this statement in the context of this motion.
The Respondent also referred the Tribunal to the decision of the Ontario Court of Appeal in R. v. Nero7, where the court held at paragraph 37:
Without more, the submission […] fails. Consider the context. An extensive application record. Lengthy written submissions. Two days of oral argument. An adjournment for a week. A further argument about spousal communication privilege. Then a ruling on the earlier motions. A decision not to call on the Crown for submissions on the spousal communication privilege issue followed shortly by brief written reasons. Scarcely the stuff of the substantial grounds required to rebut a strong presumption of judicial impartiality.
Counsel for the Respondent argues that the reasoning in the Nero case can readily be applied here where there were lengthy written submissions, 2 days of argument 2 weeks apart for the 2 motions and substantial written reasons.
I would agree that, as in the Nero case, there is no basis here to rebut the “strong presumption of judicial impartiality”.
Counsel for the Applicant admitted in oral argument that this motion was not the forum for the parties to re-argue the merits of the Tribunal’s motion decisions. He then set out 4 options that the Applicant had to obtain a different result for the motions. They are, first, a request for reconsideration of the decisions; second, this recusal motion; third, if the recusal motion is successful, the underlying motion decisions would not stand and could be heard by a differently constituted panel and fourth, an appeal to the Divisional Court.
This Tribunal does not have rules with respect to reconsideration of decisions as was recognized by counsel for the Applicant.
If this recusal motion is successful, the Applicant will rely upon the decision of the Supreme Court of Canada in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities)8, as grounds for setting aside the impugned motion decisions.
Lastly, the Applicant might seek an appeal of the motion decisions now rather than wait until a final decision after a possibly lengthy and costly hearing.
The Applicant’s rationale for bringing the recusal motion informs me that the purpose of the motion is not to challenge my impartiality but instead it is being used as a collateral attack on the motion decisions.
CONCLUSION
For these reasons, I find that the high bar established by the case law has not been met and that there are no grounds on which I should recuse myself in this matter. The motion is dismissed.
If costs are sought, counsel should refer to Rule 34 of the Tribunal’s Rules of Procedure.
Glenn C. Walker, Chair
Agriculture, Food and Rural Affairs Appeal Tribunal
Released: December 19, 2023
Footnotes
- Sunova Implement Ltd. V. CLAAS of America Inc., 2023 ONAFRAAT 13
- Sunova Implement Ltd. V. CLAAS of America Inc., 2023 ONAFRAAT 14
- Applicant’s Factum, paragraphs 5, 6, 7 and 8
- Committee for Justice & Liberty v. National Energy Board, 1976 CanLII 2, [1978] 1 S.C.R. 369 (S.C.C.) at p. 394 (per de Grandpre in dissent)
- R. v. S. (R.D.) 1997 CanLII 324 (SCC)
- CFEI v. CNH, 2011 ONAFRAAT 10
- 2016 ONCA 160
- 1992 CanLII 84 (SCC)```