Rein Minnema v Ontario Pork Producers Marketing Board, 2024 ONAFRAAT 3

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Rein Minnema v Ontario Pork Producers Marketing Board (RE)

Rein Minnema v Ontario Pork Producers Marketing Board (RE) 2024 ONAFRAAT 3

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

January 24-25, 2024

DATE OF DECISION:

February 20, 2024

005Minnema23

NEUTRAL CITATION:

2024 ONAFRAAT 3

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 Rein Minnema regarding a decision of the Ontario Pork Producers Marketing Board dated June 1, 2023.

AND IN THE MATTER OF an electronic hearing to be held pursuant to Rule 18 of the Tribunal’s Rules of Procedure.

BETWEEN:

Rein Minnema Appellant

– and –

Ontario Pork Producers Marketing Board Respondent

Represented by Paul Hendrikx

Represented by Sean Foran

Heard: January 24 and 25, 2024, by video conference

Before: Robert Fuller, Vice-Chair; Katie DeBlock-Boersma, Vice-Chair; and Judy Dirksen, Member.

Appearances:

Rein Minnema, Appellant

Paul Hendrikx, Counsel for the Appellant

Sean Foran, Counsel for the Respondent

Max Skrow, Counsel for Respondent

Witnesses:

Johan “Joe” Minnema, Witness for the Appellant

Maaike Campbell, Witness summoned by the Appellant, called by the Respondent

Lyle Campbell, Witness summoned by the Appellant, called by the Respondent

Olga Klashtorny, Witness summoned by the Appellant, called by the Respondent

DECISION

1. This is an appeal by Rein Minnema (the “Appellant”) from a decision of the Ontario Pork Producers Marketing Board (the “OPPMB”) dated June 1, 2023.

Preliminary Matters

2. The Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) held this appeal hearing by Zoom video conferencing over two (2) days on January 24 and 25, 2024.

3. At the start of the hearing, prompted by Mr. Foran, Counsel for the Respondent, upon consent, the Tribunal ordered the exclusion of witnesses and the Appellant during opening statements.

Background

4. This is an appeal pursuant to Section 16 of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, Chapter M.16, as amended (“MAFRAA”).

5. The Appellant, through a corporation called Minnema Farms Limited together with his sons, operates a farrow to finish swine operation in Glencoe, Ontario in the County of Lambton, which is designated as Zone 1 by the OPPMB.

6. The Appellant, as a delegate of the OPPMB, stood for election from Zone 1 to the Board of Directors of the OPPMB in an election held on February 23, 2023. There were four delegates vying for three positions on the Board of Directors of OPPMB in Zone 1.

7. The Appellant was not elected to the Board of Directors of the OPPMB and appealed the results of the election to the OPPMB on the basis of ineligibility of one of the delegates.

8. By hearing on May 23, 2023, the OPPMB denied the appeal of the Appellant.

9. The Appellant has appealed the election and the denial of appeal to the Tribunal.

The Issue

10. The issue for determination is whether Ms. Campbell, a delegate standing for election to the Board of Directors of OPPMB on February 23, 2023, was eligible to stand for election and was properly elected to the Board of Directors of OPPMB.

The Evidence

The Appellant

11. The Appellant testified that he had been in the hog business for 60 years, approximately 45 years in Canada and prior to that in Holland. The Appellant is the majority shareholder of a corporation which he owns together with his sons named Minnema Farms Limited managing a 1,300 sow farrow to finish operation which ships approximately 20,000 hogs per year.

12. The Appellant became a delegate for his zone, Zone1, on the OPPMB. As a delegate, the Appellant attended the election for the Board of Directors of the OPPMB for Zone 1 on February 23, 2023 at the OPPMB offices (the “Election”).

13. The Election was held at the OPPMB offices together with online Zoom participation. Attending in person at the OPPMB offices was the OPPMB Chair, John DeBruyne, OPPMB Board liaison, Olga Klashtorny, and senior staff members. Numerous Zoom participants attended the Election as well.

14. The persons standing for election for Zone 1 were allowed to do a presentation to the voters. At such time the only question asked of the delegates standing for election was how many hogs they were shipping. The Appellant advised that Ms. Campbell stated that “she was out”. The Appellant was concerned that, because the OPPMB represents the industry, he was not confident in having members of the Board of Directors that were not involved in the hog industry.

15. The Appellant advised that there were always hogs in his barn other than one instance when the barn was depopulated many years ago.

16. Upon cross-examination the Appellant confirmed that the basis on which he appealed the election of Ms. Campbell to the Board of Directors of the OPPMB was that she did not fit within the definition of “Producer” in Regulation 403/10 under the Farm Products Marketing Act, R.S.O. 1990, C. F. 9 (the “Act”).

17. The Appellant stated that Ms. Campbell had ceased producing hogs the year before.

18. The Appellant reviewed the Pig Trace Move Out List of Ms. Campbell. This record showed a shipment of 5 hogs by Ms. Campbell on May 31, 2023 at market weight. On questioning, the Appellant confirmed that if Ms. Campbell were raising such hogs, the hogs would have been in her barn on the election date. On redirect, the Appellant testified that hogs can be purchased at any weight.

Joe Minnema

19. The witness Johan Minnema (“Joe”) attended the Election virtually and confirmed the evidence of the Appellant relating thereto, including that the question at the time of the Election that was asked was how many sows each of the candidates had in their herds and proceeded to relate the numbers for each.

20. Joe gave evidence of a social media post from Lyle Campbell, spouse of Ms. Campbell, evidencing the offer and sale of a sow barn by June 1, 2022, together with a later listing for sale of a piece of hog farm equipment.

21. On cross-examination Joe acknowledged that he was unaware if Mr. Lyle Campbell and Ms. Campbell carried on hog operations at any other farm.

Maaike Campbell

22. The witness Ms. Campbell is and has been a member of the Board of Directors of OPPMB since 2020 for Zone 1. She is also a former Vice-Chair of OPPMB. Ms. Campbell was re-elected to the Board of the OPPMB on February 23, 2023 at the Election after being elected as a delegate in January, 2023.

23. Ms. Campbell testified that hog barns were often empty at different times for different types of hog producers, depending on, among other things, the timing of their production cycles.

24. Ms. Campbell testified she ran a hog operation from 2011 to 2022 when her farrow to wean operation in Brooke Township was sold after an unexpected offer. Ms. Campbell advised she shipped hogs numerous times from her Brooke Township operations in 2022.

25. After the sale of the Brooke Township operation, Ms. Campbell testified she thereafter has been involved in farmgate sales from her barn in Arkona. Ms. Campbell explained that farmgate sales for her operation consists of backyard production of purchased piglets raised on straw and brought to a local abattoir. Once butchered the hogs are sold directly to consumers.

26. Ms. Campbell’s Pig Trace records show the shipment of 5 hogs by Ms. Campbell on May 31, 2023 from her Arkona location. She does not reside on the Arkona property. Ms. Campbell testified that she was involved in raising market hogs through her corporation for farmgate sales from January 4, 2023 through the date of the Election until shipping on May 31, 2023.

27. Ms. Campbell stated that in answer to the question of her production at the Election, she advised she had not marketed hogs in 2023 but intended to market freezer pigs later that year.

28. Ms. Campbell testified that she purchased 5 more hogs in June 2023 which were raised at the Arkona location and subsequently marketed in October, 2023.

Lyle Campbell

29. The witness Lyle Campbell has been involved in hog farming for 30 years, including 20 years with Ms. Campbell. He is married to Ms. Campbell. Lyle Campbell independently verified Ms. Campbell’s evidence regarding their farming operation.

30. Lyle Campbell posted on social media on February 15, 2022 offering the farm for sale as a joke in response to the invocation of the Emergencies Act R.S.C. 1985, c 22 (4th Supp). Lyle Campbell testified the posting resulted in an unanticipated offer and the sale of the Brooke Township hog operation on June 1, 2022. Unnecessary used equipment was thereafter sold, including the equipment referred to by Joe in his testimony.

31. Lyle Campbell testified that the purchase of a new farrow to finish operation was not viable at the time of the sale and other farming operations were subsequently commenced in 2022, including hog farming for farmgate sales at 6684 Brooksby Line, otherwise known as the Arkona location, in Lambton County.

Olga Klashtorny

32. The witness Olga Klashtorny has been an employee of the OPPMB since December, 2012. She is presently the Board Liaison and Governance Officer for the OPPMB since December, 2022. She assists in the election of delegates in each association and assists at the election of the Board of Directors of the OPPMB.

33. Ms. Klashtorny testified as to Ontario Regulation 403/10 which was in force at the time of the Election (the “Regulation”).

34. Ms. Klashtorny testified that the delegates for Zone 1, including the Appellant and Ms. Campbell, were elected on January 24, 2023.

35. Ms. Klashtorny read the eligibility requirements under subsection 17(1) of the Regulation to become a delegate. She testified that in order to be a delegate, the person had to be a producer. She further testified that only delegates of a Zone are eligible to run to become a Director of the OPPMB for that Zone. The eligibility of a delegate to stand for a position on the Board is verified by OPPMB prior to the election, including determining that they are “producers” pursuant to the Regulation.

36. Ms. Klashtorny testified that the OPPMB finds it difficult to determine a producer from the definition of producer in the Regulation and so the OPPMB uses the previous statistical year and the next statistical year to determine whether there is movement from that producer. Ms. Klashtorny referred to the Election Handbook from the OPPMB (the “Election Handbook”) which is created by the OPPMB for its members to assist with information on elections.

37. The Election Handbook, as read by Ms. Klashtorny, defines eligibility as follows: “Applicants who have produced hogs during the previous statistical year or are planning to produce hots in the next statistical year are eligible to register as a member with voting privileges.” Ms. Klashtorny advised that eligibility is based on hog movement.

38. On cross-examination, Ms. Klashtorny advised that the quoted terms of the Election Handbook were not contained in the Regulation but rather these terms were determined by the OPPMB Board, including in previous versions.

39. Ms. Klashtorny testified that utilizing the eligibility criteria in the Election Handbook, the OPPMB verified Ms. Campbell’s eligibility prior to the election by reviewing the OPPMB year commencing December 4, 2022. This was based on the fact that on July 13, 2022 records show that 14 market hogs were shipped from Ms. Campbell’s property.

40. Ms. Klashtorny referenced Section 19(1) of the Regulation which states Board members are to be elected from among the delegates, who must be producers under the Regulation.

41. Ms. Klashtorny confirmed records prepared by the finance department which reflect a hog shipment of Ms. Campbell on May 31, 2023.

42. Ms. Klashtorny testified that the May 31, 2023 shipment was in the same statistical year of the OPPMB as the Election.

Nature and Scope of the Tribunal’s Jurisdiction

43. The jurisdiction for an appeal of this nature is found in subsection 16(1) of MAFRAA, which provides as follows:

16 (1) 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 appeal the matter to the Tribunal:

1. Any order, direction, decision 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.

4. Subsection 16(5) of MAFRAA sets out pre-conditions for an appeal:

(5) No appeal may be taken from an order, direction, policy, decision or regulation of a local board or a marketing board unless,

(a) the appellant has first applied to the local board or marketing board for a hearing and the local board or marketing board has refused to grant, in whole or in part, the relief requested by the appellant or has not decided the matter within sixty days of the application for a hearing; or

(b) the appellant and the local board or marketing board have waived their respective rights under clause (a) in writing.

45. Subsection 16(11) of MAFRAA describes the powers of the Tribunal on an appeal:

(11) Upon an appeal to the Tribunal under subsection (1), the Tribunal may by order direct the Commission, the local board, the marketing board or the Director, as the case may be, to take such action as it or he or she 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 the Commission, the local board, the marketing board or the Director.

46. The Appellant has appealed a decision of the Board dated June 1, 2023 to the Tribunal.

Discussion and Analysis

47. The Act provides in subsection 7(1) for the making of regulations of Marketing Boards, including the OPPMB.

48. Ontario Regulation 403/10 of the Act governs the election of members to the Board of Directors of the OPPMB. The Tribunal applies the historical version of this Regulation which was in force for the period from March 4, 2011 to September 28, 2023, which includes the time period in which the dispute occurred.

49. Subsection 3(1) of the Regulation establishes a local board known as the “Ontario Pork Producers’ Marketing Board”.

50. Subsection 5(1) of the Regulation provides that the local board shall be composed of nine board members and provides in subsection 5(2) that there are to be three members elected from Zone 1 which is composed of the geographic areas of Chatham-Kent, Elgin, Essex, Huron, Lambton and Middlesex, the area in issue.

51. Section 10 of the Regulation provides for the allotment of delegates to each Zone. Delegates are required to be members of the OPPMB.

52. Subsection 11(2) of the Regulation provides that to be a member of the OPPMB it states:

(2) A producer is eligible to register as a member of an approved association if the producer is connected to the association’s association area in any of the following ways:

1. The producer is an individual who resides in the association area.

2. The producer owns hogs produced on a property in the association area.

3. The producer owns or is the tenant of property in the association area and,

i. hogs are produced on the property by the producer, or

ii. hogs are produced on the property under contract for a third party.

53. Subsection 19(1) of the Regulation provides:

54. (1) The zone council for each hog producing zone shall elect the board members from among its delegates.

55. The conclusion from the various sections referenced together with other sections of the Regulation is that in order to be elected to the Board of the OPPMB, a Board member must be a producer as specified in subsection 11(2) of the Regulation.

56. The Appellant objects to the election of Ms. Campbell to the Board of the OPPMB on February 23, 2023 on the basis that she was not a Producer as set out in the Act and Regulation.

57. On the evidence provided, the Tribunal finds that Ms. Campbell raised 5 hogs during the period from January 4, 2023 to May 31, 2023 at which time the hogs were shipped to an abattoir and thereafter marketed.

58. The Tribunal was not referred to caselaw defining “producer”. The Farm Products Payments Act, R.S.O. 1990, c. F.10 in its definition of “producer” refers back to the Act. The definition in Ontario Regulation 560/93 under that Act is similarly unhelpful. The Protecting Farmers from Non-Payment Act (Regulating Agricultural Product Dealers and Storage Operators), 2023, S.O. 2023, c. 9, Sched. 30 defines a “producer” as “a person who is engaged in the production of a designated product.” The Oxford English Dictionary provides a definition of “producer” as “A person, company, or country that makes, grows, or supplies goods or commodities for sale.”

59. The Tribunal finds on the evidence before it that:

a. Ms. Campbell is an individual who at the time of the Election resided in Zone 1;

b. Ms. Campbell owned more than one hog produced on a property that was in Zone 1 at the time of the Election; and

c. Mr. Campbell owned a property in Zone 1 at the time of the Election and hogs were being produced on that property by Ms. Campbell at the time of the Election.

59. The Tribunal notes the word “hogs” in the Regulation is plural and finds on the evidence before it that Ms. Campbell fulfills the requirement of being a producer at the time of the Election, having produced two or more hogs during such time.

60. The Appellant has requested that the Tribunal provide guidance and a better determination of the requirements of an individual to be a “producer” under the Act. This is beyond the jurisdiction of this Tribunal on this appeal.

Order

61. The Appeal by the Appellant Rein Minnema of the decision of the Ontario Pork Producers’ Marketing Board is denied.

62. There shall be no order as to costs.

63. The Tribunal wishes to thank all counsel for their professional presentations and co-operation during this hearing.

Dated at Simcoe, this 20th day of February, 2024.