Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2nd Floor NW
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2e étage NW
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
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Ronald Van Loon and Sandy Lane Farms Inc. v Dairy Farmers of Ontario (RE) [RECONSIDERATION DECISION OF DFO]
Ronald Van Loon and Sandy Lane Farms Inc. v Dairy Farmers of Ontario (RE) 2024 ONAFRAAT 13
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
April 30 and May 1, 2024
DATE OF DECISION:
May 16, 2024
006VanLoon23
NEUTRAL CITATION:
2024 ONAFRAAT 13
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 Ronald Van Loon and Sandy Lane Farms Inc. regarding a decision of the Dairy Farmers of Ontario dated July 28, 2023.
AND IN THE MATTER OF an electronic hearing held pursuant to Rule 18 of the Tribunal’s Rules of Procedure.
BETWEEN:
Ronald Van Loon and Sandy Lane Farms Inc. Appellants
– and –
Dairy Farmers of Ontario Respondent
Self-Represented
Represented by Geoffrey P. Spurr
Heard: April 30 and May 1, 2024, by video conference
Before: Glenn C. Walker, Chair; David Stevens, Member; and Judy Dirksen, Member.
Appearances:
Ronald Van Loon, Appellant and representing Sandy Lane Farms Inc.
Geoffrey P. Spurr, Counsel for Respondent
Arlene Minott, General Counsel & Corporate Secretary, Dairy Farmers of Ontario
Witnesses:
Ronald Van Loon, Appellant Witness
Aimee Norman, Appellant Witness
Jack Zakaria, Dairy Farmers of Ontario Witness
Steve Runnalls, Dairy Farmers of Ontario Witness
Jason Théorêt, Dairy Farmers of Ontario Witness
DECISION
1Ronald Van Loon and Sandy Lane Farms Inc. appeal the Reconsideration Decision of the Dairy Farmers of Ontario (“DFO”) dated July 28, 2023, pursuant to Section 16 of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16 (“Act”).
Factual Background
2Sandy Lane Farms Inc. (“Sandy Lane”) is licensed by DFO to produce milk under Licence Number 597775. Sandy Lane is operated by Ronald Van Loon (“Van Loon”), his wife Kimberly and daughter Aimee Norman at R.R. 1, Berwick, Ontario.
3The milk transporter assigned by DFO to pick up milk from Sandy Lane is S. D. & G. Milk Transport Ltd. (“SD&G”) operated by Raymond Théorêt, his wife, Nicole Théorêt and son Jason Théorêt.
4On December 25, 2022, SD&G was not able to pick up milk because of a major storm system and Van Loon was forced to dump approximately 10,000 litres of milk from his bulk tank. Approximately 40 per cent of the producers in the province were forced to do the same and DFO later compensated them for their loss.
5At this time, the Bulk Tank Milk Grader (“BTMG”) assigned by SD&G to the route which serviced the Sandy Lane farm was Paul Legault (“Legault”).
6On January 4, 2023, Legault attended at the Sandy Lane farm to collect the milk from its bulk milk tank in the milkhouse. During this time, he and Van Loon were in the milk house together and had a heated discussion which resulted in Legault asking Van Loon to leave the milkhouse.
7When Van Loon refused to leave, eventually Legault told him that he was harassing him, and he would reject his tank of milk. Legault called his employer and left the Sandy Lane farm without finishing the pickup.
8Van Loon felt threatened by Legault due to the fact that he could reject his tank of milk and cause him a financial loss.
9In a written, unsigned statement from Legault1, Legault states that he was being harassed by Van Loon and that this was the reason that the tank of milk was rejected. The Tribunal notes that Legault did not testify at the hearing, that the statement was unsworn and that Legault was not subjected to cross-examination.
10After Legault had left the premises, Van Loon called Raymond Théorêt at SD&G who advised him that SD&G was not coming back to his farm to collect the milk and to talk to DFO. Van Loon also went to see Raymond Théorêt in person but went to the wrong house where he was told by Jason Théorêt to leave or he would call the police.
11As a result of the milk not being picked up on January 4, 2023, Sandy Lane was again forced to dump the milk tank resulting in a loss of approximately $4,500.
12After multiple calls with DFO staff, Van Loon was told by DFO that SD&G would not come back to his farm until he signed an undertaking to DFO which required that he, any member of his family, any employee or other authorized person, on or off his farm property, would comply with the following conditions:
i. The BTMG will not in any way be threatened, harassed, harmed or otherwise interfered with while conducting their duties.
ii. To not be near or in the milk house or communicate with the BTMGs as they are conducting their duties.
iii. To not attend the offices of SD&G nor the personal property of Jason Théorêt, Nicole Théorêt or Raymond Théorêt.
iv. To not contact the staff or owners of SD&G. All communications and concerns shall be directed to the DFO Representative.
13Van Loon signed the undertaking on January 5, 2023, as he believed that it was the only way that he could continue to have milk collected and continue to operate his dairy farm. SD&G then recommenced to pick up Sandy Lane’s milk and until April 23, 2023, Legault continued to be the BTMG attending his farm.
14Before April 23, 2023, there were 3 occasions when Van Loon was alleged to have breached the undertaking. For each occasion Van Loon gave a reasonable explanation for the breach.
15On December 14, 2023, the DFO Board approved the withdrawal of the undertaking effective December 1, 2023, noting that Van Loon had been in full compliance with the terms of the undertaking since April 19, 2023.
Regulatory Scheme for Milk Transportation
16DFO is the entity constituted under the Milk Act with exclusive delegated authority to control and regulate, in any and all respects, the producing or marketing of milk within Ontario.2
17The term “marketing” includes inter alia “transporting”.3 DFO therefore has the exclusive authority to control and regulate the transportation of milk.
18DFO exercises this authority by appointing milk transporters as its agents for the purpose of transporting milk from producers to plants pursuant to a Board Order which is renewed every 2 years. The Board Order specifies the producers assigned to the transporter and the plants to which the milk is to be delivered.
19In order to maximize fiscal economy in servicing approximately 3200 dairy farms across Ontario using approximately 32 transporters with about 560 routes, DFO exercises the discretion given to it by the Milk Act and its regulations in assigning producers to transporters.
20The cost of transportation is pooled and borne equally by all producers in Ontario by deduction from their milk cheques.
21Once a producer is assigned to a transporter, the transporter designs the routes to minimize kilometres travelled and to ensure as full a load as possible before going to the assigned plant. The transporter then assigns BTMGs to each route.
22BTMGs receive training from and are certified by DFO. The training includes practical grading experience and instruction on the duties and responsibilities of a BTMG. A BTMG may refuse to perform his/her duties relating to the pickup of milk if they are concerned that their safety, such as threats, are concerned.
23If a BTMG feels threatened or harassed, he/she may inform the producer that they are refusing to pick up the milk, leave the farm premises and inform their transporter.
24By Board Order 3-23-38393, DFO appointed SD&G as its agent with respect to the producer Sandy Lane.
Procedural Background
25Ronald Van Loon and Sandy Lane Farms Inc. filed a Notice of Appeal dated August 28, 2023, appealing the Reconsideration Decision of DFO. This Notice of Appeal sought to set aside “item #5 of the Decision”. This item is in respect to Van Loon’s request to the DFO Board that all sanctions against him, referring to the undertaking that he was required to sign, be immediately dropped. DFO declined to do so.
26At a Pre-Hearing Conference held on September 29, 2023, there was discussion as to the lack of clarity regarding the scope of the appeal and there was consensus that the scope of the appeal would be the entire Reconsideration Decision.
27The appellants filed an Amended Notice of Appeal on December 18, 2023. By this time the undertaking which was the subject of “item # 5” in the original Notice of Appeal had been withdrawn and the appellants raised the four other issues emanating from the Reconsideration Decision as issues to be decided by the Tribunal.
28DFO brought a motion to dismiss the appeal on all these issues. The Tribunal in a decision dated February 1,2024 found that it did not have jurisdiction to deal with two of the additional issues and that the issue concerning the removal of the undertaking was now moot.
29The two remaining issues were the removal of Legault from picking up milk at the Sandy Lane farm and the replacement of SD&G as the milk transporter for Sandy Lane.
30Prior to the hearing of this matter, DFO advised that SD&G had agreed not to use Legault on the Sandy Lane route “save for an extreme emergency”. Subsequently, before the commencement of the hearing, DFO advised that SD&G had agreed not to use Legault on the Sandy Lane route unconditionally. SD&G has now provided to DFO a letter dated May 2, 2024, to that effect.
31The hearing then proceeded on the sole issue of the removal of SD&G as the milk transporter for Sandy Lane.
Analysis
32With Legault now permanently removed from the Sandy Lane route, the appellants’ argument to have SD&G removed is significantly diminished. Whatever happened between Van Loon and Legault will not happen again.
33Much of Van Loon’s testimony dealt with the terms of the undertaking and his argument that it was only Legault’s perception of harassment that led to the undertaking. This evidence was no longer relevant as both these issues are now academic.
34The appellants essentially argue that they feel uncomfortable continuing to work with this transporter and that they have been treated unfairly by it.
35In the Amended Notice of Appeal, the appellants made a claim for compensation for their loss in having to dump milk as a result of the January 4, 2023 altercation. This claim was dismissed by the Tribunal in the Dismissal Motion Decision as the Tribunal has no jurisdiction to award compensation or damages.
36Van Loon indicated in argument that he intended to seek damages against SD&G in the courts. If he did so, he submitted that that would constitute some sort of conflict of interest between the appellants and SD&G.
37There is no evidence before the Tribunal that the relationship between Sandy Lane and its transporter, SD&G would change in that event. This argument is pure speculation. Since Legault ceased to attend at the Sandy Lane farm after April 23, 2023, there have been no issues between the producer and the transporter and there is no reason to believe that this situation will change in the future.
38DFO is charged by the Milk Act and regulations with the responsibility of assigning producers to milk transporters. In doing so, it must consider various factors such as location and the ability of nearby transporters to handle an additional producer. DFO takes this responsibility seriously, exercising its discretion to minimize the cost of transportation province wide.
39The Tribunal was told that occasionally producers do ask DFO for a change in transporters, but these requests have always been denied; no doubt as such changes might have the effect of increasing transportation costs which are shared by all producers in the province.
40The Tribunal must balance the reasons for the appellants’ request against the possible effects on the milk transportation system.
41The Tribunal therefore finds that the appellants have failed to prove on the balance of probabilities that SD&G should be replaced as the milk transporter for Sandy Lane.
Conclusion and Order
42With respect to the issue of Legault being excluded from picking up milk at the Sandy Lane farm, the Tribunal acknowledges that pursuant to a letter from SD&G to DFO dated May2, 2024 and signed by the President (Raymond Théorêt), Secretary/Treasurer (Nicole Théorêt) and General Manager (Jason Théorêt), Legault will not at any time be utilized to perform milk pickups pursuant to the Milk Act and Regulations at the Sandy Lane farm located at 15393 Concession 4-5. RR1 Berwick, Ontario.
43With respect to the issue of the replacement of SD&G as milk transporter for Sandy Lane, the appeal is dismissed.
44In all other respects, this appeal is dismissed.
Dated at Chatham, this 16th day of May 2024.
Footnotes
- Exhibit 2 to the Hearing
- DFO Reconsideration Decision, July 28, 2023
- Milk Act R.S.O.1990, c.M.12, Section 1