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
2023 ONAFRAAT 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 (“Tribunal”) by Roger Albers and Matt Lynch, regarding a decision of the Ontario Sheep Marketing Agency dated June 1, 2022
AND IN THE MATTER OF a motion in writing held pursuant to Rule 30 of the Tribunal’s Rules of Procedure.
BETWEEN:
Roger Albers and Matt Lynch Appellants
– and –
Ontario Sheep Marketing Agency (now known as Ontario Sheep Farmers) Respondent
Represented by John O’Kane
Represented by Geoffrey P. Spurr
Before: Glenn C. Walker, Chair
MOTION DECISION
Background
Roger Albers and Matt Lynch (the “Appellants”) appeal the June 1, 2022 decision of the Ontario Sheep Marketing Agency (“OSMA”) to the Tribunal pursuant to section 16(1) of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M-16 (“MAFRAA”).
Roger Albers is a sheep producer in Alberta and Matt Lynch is a sheep producer in Nova Scotia. Both market sheep in Ontario and pay a licence fee of $1.80 (plus tax) per head of sheep to OSMA as required by section 6 of OSMA’s General Regulations.
OSMA, now known as Ontario Sheep Farmers (“OSF”), 1 is a local board created under the Farm Products Marketing Act, R.S.O. 1990, c. F-9 (“FPMA”) with powers and authority delegated to it by the Ontario Farm Products Marketing Commission to regulate the production and marketing of sheep and wool in Ontario.
The issues on the appeal are that OSF has acted outside its regulatory authority (jurisdiction) in the following ways:
- 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 Appellants request the following relief from the Tribunal:
- A determination that OSF, in the impugned orders, directions, decisions, policies or regulations has acted outside the scope of its jurisdiction;
- That the Tribunal direct OSF to issue a directive to every person, including a broker/dealer, an auction market, or a processor, who receives sheep or wool to immediately stop deducting the license fee from the sale proceeds payable to non-resident producers.
- The Canadian Sheep Federation, the BC Sheep Federation, the Saskatchewan Sheep Development Board and the Manitoba Sheep Association bring this preliminary motion seeking participant status under Rule 8 of the Tribunal’s Rules of Procedure.
The Moving Parties
The Canadian Sheep Federation (“CSF”) is a national not-for-profit organization comprised of eight provincial sheep producer organizations and two affiliated sheep organizations, namely: BC Sheep Federation, Saskatchewan Sheep Development Board, Manitoba Sheep Association, Ontario Lamb Producers Caucus, Sheep Producers Association of New Brunswick, Sheep Producers Association of Nova Scotia, PEI Sheep Breeders’ Association and Sheep Producers Association of Newfoundland and Labrador.
The BC Sheep Federation (“BCSF”) is a provincial sheep producers’ organization whose mandate is to promote growth and development of a unified, market responsive, profitable and commercially viable sheep and wool industry in British Columbia.
The Saskatchewan Sheep Development Board (“SSDB”) is a development board authorized by provincial regulation to promote and develop the production, marketing and production of sheep, lambs, and wool in the Province of Saskatchewan.
The Manitoba Sheep Association (“MSA”) is authorized by the Manitoba provincial government to regulate and impose a levy on sheep and lamb producers in the province.
The Moving Parties Interest in and Contribution to the Appeal
The moving parties submit that this appeal presents a first instance consideration by this Tribunal of OSF’s license fee and exemption policy embodied in OSF’s General Regulations, which apply to all sheep producers in Ontario and to any out of province sheep producers marketing their sheep, lambs, or wool in Ontario. As such, the appeal is of significant interest to out of province producers represented by the moving parties.
The moving parties further submit that they can provide the Tribunal with a broader perspective about the implications of the OSF’s license fee and exemptions to producers in other provinces, as well as some historical context about the issue.
CSF states that one of its key initiatives is to mitigate inter-provincial trade barriers. CSF and its provincial members view OSF’s license fee and exemption policy as a type of domestic trade barrier that requires action to resolve. It can provide contextual evidence about the impact of the OSF license fee and exemption policy on its members.
BCSF represents British Columbia (“BC”) producers who market lambs into feedlots in Alberta, from where they are fed up and marketed in Ontario. It asserts that the license fee charged by OSF directly affects the price the middleman (feedlot owner) is willing to pay the BC producer. This results in a loss of income to the BC producer.
BCSF also argues that many BC breeders of sheep sell purebred breeding stock to Ontario buyers resulting in a license fee charge by OSF and a corresponding loss to the BC producer without any benefit to the development or support of the BC sheep industry.
SSDB maintains that Saskatchewan sheep producers sell lambs and sheep in Ontario and pay the OSF license fee and feel that it unfairly impacts out of province producers. It states that it can provide historical contextual evidence about the license fee issue.
MSA contends that most of the lambs produced in Manitoba are destined for Ontario resulting in the payment by Manitoba producers of what it considers to be the improper collection of license fees by OSF. It can provide contextual evidence about the application of the OSF license fee on Manitoba livestock and how Ontario livestock is marketed in Manitoba free of any similar charges.
All four moving parties were recognized as observers, but not participants, at the hearing before OSF.
Participant Status
Rule 8 of the Tribunal’s Rules of Procedure distinguishes between a “party” and a “participant”. In this motion the moving parties seek only participant status in this appeal.
On motion, the Tribunal may name persons to be part of all or part of the proceeding on such conditions as the Tribunal considers appropriate. In deciding whether to name a person as a participant, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than that of a party.2
A participant in a hearing may:
i. Be a witness at the hearing. ii. Be questioned by the parties when acting as a witness. iii. Make oral or written submissions to the Tribunal at the commencement and at the end of the hearing. iv. Upon request, receive a copy of documents exchanged by the parties that are relevant to the participant’s interests.3
- A participant in a hearing may not:
i. Raise issues that have not already been raised by a party. ii. Call witnesses. iii. Cross-examine witnesses. iv. Bring motions. v. Claim costs or be liable for costs.4
The Position of the Parties on the Motion
- The Appellants support the motion brought by the moving parties. OSF objects to the moving parties being made participants.
Analysis
CSF will be granted participant status in this appeal while the motion made by BCSF, SSDB and MSA is dismissed for the following reasons.
The test for a tribunal to use in deciding whether a person is entitled to party status is to be found in the Divisional Court decision in McFadyen v. Mining and Lands Commissioner5. The Court found that the appropriate framework considers the nature of the case, the issues which arise and the likelihood the moving parties can make a useful contribution to the resolution of the appeal without causing injustice to the Parties.
Rule 8.05(i) suggests that the participant’s interest in the subject matter of the proceeding may be more remote than that of a party, leading to the logical conclusion that the test for participant status is less demanding than the test for party status.
This appeal raises important questions concerning alleged inter-provincial trade barriers and the effect of OSF’s General Regulations on out of province sheep producers. CSF represents sheep producer organizations whose members are allegedly adversely affected by these regulations.
The Tribunal finds that CSF will be able to provide contextual and historical evidence relating to the issues before it, as well as providing submissions that may be of assistance to the Tribunal in reaching its decision.
Granting participant status to CSF will not cause any injustice to OSF for the following reasons:
CSF is represented by the same counsel as the Appellants.
As a participant, CSF is entitled to call only one witness and is not entitled to cross-examine other witnesses.
As a participant, CSF’s role is also proscribed by Rule 8.07.
The Tribunal may also further limit the scope of CSF’s participation by order pursuant to Rule 8.05.
Because of the above reasons, the hearing will not be unduly prolonged.
There is no need for the Tribunal to resort to analogizing participant status with the role of amicus curiae. The Tribunal already has a rule dealing with this issue.
OSF argues that there is no need for participant status as the Appellants have indicated that if it is not granted, they intend to call witnesses from the out of province organizations as witnesses. That may be true, but it will not provide the Tribunal with a voice by way of submissions from CSF.
BCSF, SSDB and MSA are members of CSF and will have a voice at the hearing through that organization. CSF states that it is financially supporting the appeal and has been the point of contact between its member organizations and legal counsel. There is no need for BCSF, SSDB and MSA to be added as separate participants.
The Scope of CSF’s Participation
The Tribunal is entitled to define the scope of CSF’s participation pursuant to Rule 8.05.
CSF’s participation will be defined as follows:
a. CSF will be entitled to call one witness. b. CSF will provide a witness statement for the witness chosen in the same manner as for all other witnesses for the parties. c. The CSF witness will give his/her viva voce evidence-in-chief remotely. d. The CSF witness may be cross-examined by counsel for OSF as provided for in Rule 8.07 with re-direct by counsel for CSF. e. There will be no cross-examination on any affidavit submitted by the CSF witness by way of disclosure as this might unduly delay the hearing. f. CSF will be represented by the same counsel as the Appellants. g. CSF will not raise any issues not already raised in the December 2, 2022 Notice of Appeal letter to the Tribunal. h. CSF may make oral and written submissions at the commencement and end of the hearing. i. CSF will not make any additional or different legal arguments than those of the Appellants. j. CSF will abide by the restrictions in Rule 8.07 unless otherwise stipulated in this paragraph.
Order
CSF is granted participant status in this appeal subject to the conditions set out in paragraph 34 above.
The motion for participant status by BCSF, SSDB and MSA is denied.
Dated at Chatham, this 10th day of July, 2023.
Footnotes
- Farm Products Marketing Act, R.S.O. 1990, Regulations 429 and 430
- Tribunal’s Rules of Procedure, Rule 8.05
- Id., Rule 8.07
- ibid
- 2007 CanLII 54672 (SCDC)