Agriculture, Food and Rural Affairs Appeal Tribunal

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

1 Stone Road West Guelph, Ontario N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

2023 ONAFRAAT 09

FILE NO.: 004Albers22

DATE: 2023/07/10

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; Katie DeBlock Boersma, Vice-Chair; Steve Moutsatsos, Vice-Chair

MOTION DECISION

Background

1Roger 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”).

2Roger 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.

3OSMA, 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 (“Commission”) to regulate the production and marketing of sheep and wool in Ontario.

4The 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.

5The 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.

6OSF brings this preliminary motion for:

1. An order dismissing the appeal pursuant to subsection 16(4) of the MAFRAA, on the basis that the prospective appellants lack a sufficient interest in the subject matter of the appeal;
2. In the alternative, if the Appellants are found to have a sufficient interest, then an Order dismissing the appeal on the basis that the Appellants have established, by having a sufficient interest, that they are subject to OSF’s General Regulations and in particular the imposition of a marketing license fee of $1.80 plus HST on each cheep sold by them in Ontario;
3. In the further alternative, an Order denying the application for party status to the appeal of Roy Leitch, Manitoba Sheep Producers, New Brunswick Sheep Breeders Assoc. Inc., PEI Sheep Breeders Association, Saskatchewan Sheep Development Board, Ontario Lamb Producers Caucus (OLPC), BC Sheep Federation, Sheep Producers Association of Newfoundland and Labrador, and Sheep Producers Association of Nova Scotia on the basis that they lack a sufficient interest in the subject matter of the appeal as required by subsection 16(10) of the MAFRAA.

7On March 23, 2023, the Tribunal ordered that this motion for standing would be heard in writing by a panel of the Tribunal and that a proposed motion for participant standing would be heard in writing by the Chair sitting alone.

8Consequently, only the first two issues raised by OSF in its Notice of Motion will be addressed in this decision.

The Appellants Do Not Lack a Sufficient Interest

9Standing to bring this appeal is governed by subsection 16(1) of the MAFRAA which states as follows:

Subject to subsections (4) and (5), a person who is aggrieved by any of the following orders, directions, decisions, policies or regulation made under the Farm Products Marketing Act and the Milk Act may appeal the matter to the Tribunal:

1. Any order, direction or policy made by a Director.
2. Any order, direction, decision, policy or regulation made by a local board or marketing board.
3. An order, direction or decision made by the Commission that applies specifically to the aggrieved person, to a group of persons of which the aggrieved person is a member or with respect to a particular dispute or incident involving the aggrieved person.

Each of the Appellants is an Aggrieved Person

10In their written submissions, the Appellants referred to several definitions for the word “aggrieved”. Merriam-Webster online dictionary defines it as an adjective that includes “suffering from a denial or infringement of legal rights”. Cambridge dictionary online defines it as an adjective “unhappy and angry because of unfair treatment”. The Tribunal accepts those definitions.

11Each of the Appellants were required to pay license fees to OSF for sheep they produced out of province but marketed in Ontario. They expressed the fact that they were unhappy with this and feel that as non-resident sheep producers they are being treated unfairly.

12As a result, the Tribunal finds that they are persons who are aggrieved by the decision, regulation and or policies of OSF.

Each of the Appellants Has a Sufficient Interest

13OSF submits that the Appellants do not have a sufficient interest in the subject-matter of the appeal and that the Tribunal should refuse to hear the appeal on the basis of subsection 16(4)(c) of the MAFRAA.

14That subsection provides as follows:

(4) The Tribunal may refuse to hear the appeal or, after a hearing has commenced, refuse to continue the hearing or make a decision if it relates to any order, direction, policy, decision or regulation of which the appellant has had knowledge for more than one year before the notice is filed under subsection (2.1) or, if in its opinion,

(a) the subject-matter of the appeal is trivial;

(b) the appeal is frivolous or vexatious or is not made in good faith; or

(c) the appellant has not a sufficient interest in the subject-matter of the appeal.

15OSF argues that since the Appellants take the position that they do not have a sufficient connection to Ontario to be subject to OSF’s regulations, they cannot have a sufficient interest in the subject matter of the appeal.

16In response to this argument, the Appellants state:

OSMA’s dismissal motion argument conflates the “sufficient interest in the subject-matter of the appeal” consideration of the Tribunal’s discretionary authority in subsection 16(4) of the Act, with the substantive test for “sufficient connection” developed in the jurisprudence regarding the extra-territorial application of provincial regulatory regimes.²

17This is exactly the point. These are two separate and distinct issues. The first issue of “sufficient interest” requires the Tribunal to consider whether to exercise its discretion to hear the appeal based on the Appellants interest in the subject matter of the appeal. The second issue of “sufficient connection” is a substantive issue and the basis for the appeal. It is not discretionary, and the Tribunal will consider the jurisprudence dealing with that issue at a full hearing.

18OSF cites several cases where non-appellants sought party status in an appeal (Bos v. CFO³, AOCP v. CFO⁴ and 2343193 Ontario Inc. (Senn) v. Dairy Farmers of Ontario⁵) pursuant to subsection 16(10) of the MAFRAA which equates party with a person with a sufficient interest in the subject matter of the appeal. The Tribunal finds these cases of little assistance on this issue as they deal with party status, not participant status, and are factually very different from the instant case.

19In Sweda Farms Ltd. v. Egg Farmers of Ontario and Ontario Farm Products Marketing Commission⁶ the Tribunal found that the appellant was an aggrieved person with a sufficient interest in the subject matter of the appeal setting a fairly low bar on this issue.

20The Tribunal finds that each of the Appellants have a sufficient interest in the subject matter of the appeal for the same reasons that qualify them as aggrieved persons and that they are entitled to a hearing on the substantive issues.

The Appeal Should Not be Dismissed

21OSF further asserts that, if the Appellants are found to have a sufficient interest, then the Tribunal should dismiss the appeal on the basis that the Appellants have established, by having a sufficient interest, that they are subject to OSF’s General Regulations.

22The Appellants argue that this request in this motion is tantamount to a motion for summary judgment.

23There is nothing in the Statutory Powers Procedure Act, R.S.O. 1990, c. S-22 which provides for the disposition of a matter without a hearing unless on consent.

24Subsection 16(4) of the MAFRAA provides for the Tribunal to refuse to hear the appeal if it finds that the appeal is trivial, frivolous, vexatious or not made in good faith. No such allegations have been raised here.

25There are no allegations made by OSF that would engage either Rules 33.01 or 33.02 of the Tribunal’s Rules of Procedure, other than the allegation of no sufficient interest, and permit the Tribunal to dismiss this appeal at this juncture.

26The Tribunal finds that it has no jurisdiction to dismiss the appeal on the grounds argued by OSF.

27Even if it had such authority, the Tribunal would exercise its discretion to hear the appeal on the merits. Having met the threshold of aggrieved persons with a sufficient interest, the Appellants are entitled to a hearing.

Order

28For these reasons, the motion is dismissed.

Footnotes

1. 1Farm Products Marketing Act, R.S.O. 1990, Regulations 429 and 430
2. 2Appellants’ Written Submissions, para. 21
3. 3Bos v. CFO, 2011 ONAFRAAT 9
4. 4Association of Ontario Chicken Processors v CFO [Motion Decision] (With Reasons), 2013 ONAFRAAT 18
5. 5Senn v Dairy Farmers of Ontario, 2014 ONAFRAAT 27 (reported as)
6. 6Sweda Farms Ltd. v Egg Farmers of Ontario, 2022 ONAFRAAT 15