COURT FILE NO.: 401/02

DATE: 20031217

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DUNNET, JENNINGS AND C. CAMPBELL JJ.

B E T W E E N:

WYATT STETLER and 934671 ONTARIO LIMITED

Applicants

• and -

THE AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL and THE ONTARIO FLUE-CURED TOBACCO GROWERS’ MARKETING BOARD

Defendants

F. Paul Morrison and Meghan Scott, for the Applicants

Freya Kristjanson, for the Respondent, The Ontario Flue-Cured Tobacco Growers’ Marketing Board

HEARD: December 17, 2003

DUNNET J.: (Orally)

1The applicants seek judicial review from the decision of the Agriculture, Food and Rural Affairs Tribunal, dated April 25, 2002, sitting on appeal from the decision of the Ontario Flue-Cured Tobacco Growers’ Marketing Board, dated November 30, 2001.

2Following a hearing, the Board ordered that the tobacco production quota allotted to the applicants should be cancelled on the grounds that they had engaged in the illegal sale of tobacco. They appealed to the Tribunal, which heard evidence called by both the applicants and the Board. The Tribunal held that the applicants had engaged in illegal tobacco sales and determined that cancellation of the applicants’ quota was the appropriate penalty.

3The applicants raise five issues: (a) the standard of review (b) the procedure adopted by the Tribunal (c) errors of law committed by the Board and the Tribunal in failing to apply the proper test to the evidence of the actions of the alleged co-conspirators and in applying the wrong standard of proof (d) reasonable apprehension of bias and (e) the penalty imposed.

4Section 18(2) of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c.M.16, states that a decision of the Tribunal is “final” unless the Minister decides to intervene. Section 18(3) states that if the Minister confirms a Tribunal decision, the Tribunal decision is “final”. Although the privative clause suggests a deferential standard of review, the issues in this case concern the law of evidence and the burden of proof, unrelated to tobacco farming. The decision involved the adjudication of quasi-criminal allegations of breaches of a regulation with penal consequences. It did not engage the specialized nature of the decision-makers. We are of the view, therefore, that the decision should be measured against the standard of correctness.

5The Tribunal heard evidence and submissions from counsel. It accepted into evidence written documents filed by both the applicants and the Board. The Tribunal made findings of fact based on the evidence and gave reasons for its decision. Thus, the Tribunal conducted a hearing de novo and was entitled to do so.

6Having properly identified the issue as whether or not the applicant Wyatt Stetler participated in the illegal sale of tobacco, the only finding made by the Tribunal was that Stetler was aware that tobacco was being shipped from his farm to Quebec. The Tribunal failed to answer the question it asked itself.

7While we agree with the respondent that the standard of proof before an administrative tribunal is on a balance of probabilities, this matter involved a potential penalty of licence revocation relating to an individual’s livelihood and the allegations were quasi-criminal in nature. Consequently, the Tribunal was required to use the standard of clear and convincing proof, based upon cogent evidence. We find that the evidence was not sufficient to entitle the Tribunal to make its findings.

8Before the Tribunal, Gary Godelie, Vice-Chair of the Board at first instance, was called as a prosecution witness. He had previously participated as an adjudicator upon the very charges, which were the subject of the appeal. The evidence provided by Godelie was relied upon to support his own decision - for example, evidence as to whether the factual allegations regarding the timing of the loading of the van were supportable. The Tribunal accepted his evidence and relied upon it in rendering its decision. The respondent states that the applicants failed to raise this issue before the Tribunal and are, therefore, precluded from raising it now. We are of the view that the Tribunal permitted itself to be tainted by a clear apprehension of bias, despite the failure of the applicants to raise the issue in a timely manner.

9We accept that penalty is a discretionary matter generally within the expertise of the Tribunal. However, in view of our findings, it is not necessary for us to deal with this issue.

10For these reasons, the errors of law made by the Tribunal are sufficient to persuade us to quash the decisions of the Board and the Tribunal. Given our view of the evidence presented to the Tribunal, we see no reason to remit the matter to a differently constituted panel.

11The application is allowed. The decisions of the Board and the Tribunal are quashed. Costs are payable to the applicants and are fixed at $30,000 inclusive of disbursements and GST.

DUNNET J.

JENNINGS J.

C. CAMPBELL J.

Date of Reasons for Judgment: December 17, 2003

Date of Release: December 18, 2003

COURT FILE NO.: 401/02

DATE: 20031217

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT