Ronald Van Loon and Sandy Lane Farms Inc. v. Dairy Farmers of Ontario, 2024 ONAFRAAT 2

Agriculture, Food and Rural Affairs Appeal Tribunal

APPEAL: Ronald Van Loon and Sandy Lane Farms Inc v Dairy Farmers of Ontario (RE) [DISMISSAL MOTION] 2024 ONAFRAAT 2

STATUTE: Ministry of Agriculture, Food and Rural Affairs Act

HEARING DATE: January 12, 2024

DATE OF DECISION: February 1, 2024

006VanLoon23

NEUTRAL CITATION: 2024 ONAFRAAT 2

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 a Motion held pursuant to Rule 30 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: January 12, 2024 by video conference

Before: Glenn C. Walker, Chair; Judy Dirksen, Member; Dave Stevens, Member

MOTION DECISION

1. The Appellants appeal from the decision of Dairy Farmers of Ontario (“DFO”) dated July 28, 2023, denying in part their requests for relief.

Issues on the Appeal

2. The four issues raised by the Appellants and for which relief is requested from the Tribunal are set out in the Amended Notice of Appeal dated December 18, 2023 and are repeated verbatim here:

3. “I wish to issue a formal complaint of harassment against BTMG Paul Legault and SD&G Milk Transport. Their actions on January 4th and to date have been intimidating, it has threatened my livelihood which has resulted in a substantial loss of income.”

4. “I wish to have BTMG Paul Legault permanently removed from picking up milk at my farm. As a result of the incidences that have occurred I fear for retaliation resulting in a loss of my income. In January I requested Paul Legault not return to my farm to prevent further incidences but SD&G continued to send this driver to my farm 18 more times of which he lodged 3 more complaints against me. No other driver in this period of time launched any complaints against me. It is evident that Paul Legault has a personal issue with me and I fear that this could lead to my product being rejected or my product not being picked up. DFO's policy clearly states that the BTMG grading is absolute and final which would allow me no recourse should he decide to reject my product.”

5. “I wish to be removed from the SD&G transport service and placed with another company. I receive [sic] a call from Board Member Steve Runnalls asking me to sign a letter of compliance to ensure my milk would continue to get picked up. My interpretation was that if I did not sign the letter and continued to pursue the matter further SD&G had threatened to not pick my milk up and other neighboring transport companies as well. On Jan 5 I had Thurler transport ready to pick up my milk and SD&G refused to allow this to happen. This phone call from Steve has lead me to believe that SD&G has influenced other transport companies as previously there was no issue coming to my farm.”

6. “I wish to be compensated for my loss of product from Jan 4/5. A total of 5000 L was lost that day. Additionally I wish to be compensated for the time I have spent repeatedly defending myself because a proper and complete investigation has never been performed by SD&G Milk Transport or DFO. I now have mounting legal fees due to this issue.”

Factual Background

3. Sandy Lane Farms Inc. (“Sandy Lane”) is licensed by DFO to produce milk under the Milk Act, R.S.O. 1990, c. M.12, License #5977750. Ronald Van Loon (“Van Loon”) is a principle of Sandy Lane.

4. On or about January 4, 2023, Van Loon had an altercation with Paul Legault in the milkhouse at the Sandy Lane farm resulting in Sandy Lane’s milk not being picked up that day. As a result of the milk not being picked up, the Appellants allege that it was necessary to dump 5000 litres of milk.

5. Paul Legault (“Legault”) is a Bulk Tank Milk Grader (“BTMG”) employed by SD&G Milk Transport Ltd. (“SD&G”), who is under contract with DFO to pick up milk from various dairy farms including the Sandy Lane Farm. To be clear, although DFO is responsible for training the BTMG’s, Legault is not an employee of DFO but an employee of SD&G.

6. In order to have his milk picked up going forward, DFO required Van Loon and his wife, Kimberly, to execute an undertaking to DFO acknowledging and agreeing that they, or any member of their family, employee or authorized person on or off the farm property would comply with the following conditions:

a. That BTMG’s will not in any way be threatened, harassed, harmed or otherwise interfered with while conducting their duties;

b. To not be near or in the milkhouse or communicate with the BTMG’s as they are conducting their duties;

c. That they shall not attend the offices of S.D.& G. Milk Transport Ltd. nor the personal property of Jason Theoret, Nicole Theoret or Raymond Theoret.

d. That they shall not contact the staff or owners of S.D. & G. Milk Transport Ltd. All communications and concerns shall be directed to the Dairy Farmers of Ontario representative.

7. The said Undertaking was initially open-ended. On December 14, 2023, DFO advised Sandy Lane and Van Loon that the Undertaking was withdrawn effective December 1, 2023.

8. Once the Undertaking was signed, Legault continued to be the employee of SD&G who attended at the Sandy Lane farm to pick up milk until approximately April 22, 2023.

Legal Authority for the Appeal

9. This appeal is made pursuant to section 16 of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16 (“MAFRAA”). Under this section the Tribunal may order DFO to take such action as it is authorized to take under the Farm Products Marketing Act or the Milk Act and as the Tribunal considers proper, and for this purpose the Tribunal may substitute its opinion for that of DFO.

10. The Tribunal may refuse to hear an appeal in certain circumstances where:

a. It determines that it has no jurisdiction;

b. The appellant is not an aggrieved person¹;

c. The subject-matter of the appeal is trivial²;

d. The appeal is frivolous or vexatious or is not made in good faith³; or

e. The appellant has not a sufficient interest in the subject-matter of the appeal⁴.

Issue One: Formal Complaint Against Legault and SD&G

11. The Appellants wish to issue a formal complaint of harassment against Legault and SD&G based on their actions on January 4, 2023. In its decision DFO denied this request on the grounds that it considered this to be an employer/employee disciplinary matter that fell within the purview of SD&G and not DFO.

12. The Tribunal agrees and finds that it has no jurisdiction to require DFO to take any kind of disciplinary action regarding the employer/employee relationship of these non-parties.

13. Van Loon filed complaints of harassment against Legault and SD&G with DFO on or about January 9, 2023, but admits that they were given to DFO because he was unable to contact Legault or SD&G directly due to the Undertaking that had been signed.

14. Now that the Undertaking has been lifted the Appellants are free to take any steps that they feel are appropriate directly with the BTMG or the milk transportation company. This is not an issue where the Tribunal has any remedy for the Appellants.

Issue Two: Removal of Legault from Picking up Milk

15. The Appellants seek to have DFO permanently bar Legault from picking up milk at the Sandy Lane farm. In its decision DFO stated that it had made a request of SD&G and received agreement from it that, save for an extreme emergency, Legault would be permanently removed from the Appellants’ route.

16. The Appellants are concerned about the exception “save for an extreme emergency” and argue that it is vague and needs definition.

17. DFO states that this sole issue is not one deserving of a hearing. In essence it is arguing that the issue is trivial or frivolous in view of the fact that SD&G has undertaken to DFO that it will not assign Legault to the Sandy Lane route save for an extreme emergency. It also states that this issue is an alternate to the replacement of the milk transporters (Issue Three).

18. The Tribunal disagrees. There is not a sufficient record before it on this issue to make a determination that the issue is trivial or frivolous. For example, there is no evidence before us as to the likelihood of Legault having to attend at the Sandy Lane farm in an extreme emergency.

Issue Three: Replace SD&G as the Milk Transporter for Sandy Lane

19. The Appellants seek to have DFO provide them with a different milk transporter. DFO denied this request in its decision stating that transportation is a complex and critical part of DFO’s mandate and that changes may have financial implications for all producers in Ontario and the operation of the milk pool and, furthermore, that enabling producers to change transporters and transportation routes will create a precedent that could have the potential of impairing both effectiveness and sustainability.

20. As with Issue Two, DFO does not argue that the Tribunal lacks jurisdiction in regard to these issues but that this issue has become either moot or trivial in view of the undertaking given by SD&G to DFO not to use Legault on the Sandy Lane route.

21. On this issue the Tribunal is also of the opinion that it does not have a sufficient evidentiary record to dispose of this issue at this point. Both Issues Two and Three need to go to a full hearing.

Issue Four: Compensation for Loss of Product

22. The Appellants seek compensation for loss of product, time spent in dealing with these issues and legal costs. They do not specify the amount of compensation they are seeking or from whom. In its decision, DFO denied their request stating that this was a civil matter between the Appellants and SD&G.

23. There is nothing in the MAFRAA or the Milk Act that gives the Tribunal jurisdiction to award monetary damages or compensation. No authority to do so was provided to the Tribunal by either party. As a creature of statute the Tribunal has no inherent jurisdiction.

24. This position is consistent with previous decisions of the Tribunal, and we rely upon the rationale in these decisions.⁵

25. The Tribunal therefore finds that it has no jurisdiction to award compensation to the Appellants.

Issue Five: Removal of Sanctions

26. In their original Notice of Appeal the Appellants sought the removal of all sanctions imposed by DFO. This refers to the Undertaking outlined above. This issue was not included in the Amended Notice of Appeal which was filed after the Undertaking had been withdrawn.

27. In the event that this remains a “live” issue, the Tribunal finds that the issue is now moot and therefore frivolous as a result of the Undertaking having been withdrawn.

Conclusion and Order

28. The Tribunal finds that it lacks jurisdiction to hear Issues One and Four as above and that Issue Five is now moot and thus frivolous.

29. A hearing will proceed with respect to Issues Two and Three.

30. The parties are reminded that it will be incumbent upon them to provide relevant evidence concerning only those two issues in order to permit the Tribunal to come to an informed decision.

31. In particular, the Tribunal wishes to point out that it has not made any decision with respect to the merits of Issues Two and Three but only decided that these two issues will proceed to a hearing.

32. This panel remains seized of the appeal

Released: February 1, 2024

Glenn Black v. Chicken Farmers of Ontario, 2014 ONAFRAAT 12 Howe Farms et al. v. CFO 2016 ONAFRAAT 17

Footnotes

1. 1MAFRAA subsection 16(1)
2. 2MAFRAA subsection 16(4)(a)
3. 3MAFRAA subsection 16(4)(b)
4. 4MAFRAA subsection 16(4)(c)
5. 5Jeffrey French v. DFO, 2017 ONAFRAAT 21