COURT FILE NO.: 04-DV-974

DATE: 2005/11/22

ONTARIO

SUPERIOR COURT OF JUSTICE

(Divisional Court)

B E T W E E N:

BETTY DENBY, JOHN DENBY, WILLIAM DENBY, ISOBEL HOPE, WAYNE HOPE, DALE McFEETERS and DARMAR FARMS

Donald R. Good, for the Applicants

Applicants

• and -

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL and DAIRY FARMERS OF ONTARIO and MINISTER OF AGRICULTURE AND FOOD

Geoffrey P. Spurr, for the Respondent, Dairy Farmers of Ontario

Respondents

HEARD: November 18, 2005

REASONS FOR DECISION

POWER J.

1In this Judicial Review Application, Dairy Farmers of Ontario seek, by way of interim motion, an order dismissing the Application “due to the failure of the Applicants to file the Consent necessary to have the Application listed by the Court for a hearing”. In the alternative, Dairy Farms of Ontario (“DFO”) seek an order scheduling the Judicial Review Application to be heard at the earliest reasonable time. By way of cross-motion, the Applicants seek an order to admit as evidence on the Judicial Review hearing the affidavits of William Denby, Dale McFeeters, Wayne Hope and John Tripp. These four affidavits were sworn in May and June of 2004. The Applicants also seek to admit as evidence at the hearing an affidavit sworn by William Denby on June 13, 2005. In addition, they seek an order setting down the Application for hearing.

2In January 2004, the Applicants moved by way of this proceeding seeking judicial review of the decision of the Minister of Agriculture and Food, dated January 12, 2004; the revised decision of the Agriculture, Food and Rural Affairs Appeal Tribunal, dated December 4, 2003; and the decisions of the DFO dated May 5, 2003.

3The hearing of the Judicial Review Application has been adjourned, on consent, on two occasions – November 2004 and June 2005. The reason for the adjournments was the possible impact of another case which was pending before the Ontario Courts. The Court of Appeal released its decision on July 8, 2005, following which the Applicants failed to cooperate with the Respondents in setting down this Application for hearing.

4One of the many issues in this proceeding concerns the nature of the relationship between William Denby and International Dairy Direct Brokers Agent (“IDDBA”), an unincorporated business entity. It is the Applicants’ position that IDDBA is a milk brokerage business owned and operated by William Denby – i.e., they are not “separate” entities.

5Another issue to be considered on the Judicial Review hearing is the scope of the jurisdiction of the Tribunal (The Agriculture, Food and Rural Affairs Appeal Tribunal) and, as well, the correctness of some of its additional findings of fact and credibility. The Applicants argue, and wish to argue at the hearing of the Application for Judicial Review, that the Tribunal failed to consider relevant evidence and misconstrued other evidence.

6Proceedings before the Tribunal are not formerly recorded, either by an audiotape or by a shorthand reporter. The Applicants seek, as aforesaid, to file five affidavits as part of the court record. The first four of these affidavits are, in fact, already contained in the Application Record before this Court. All four of these affidavits, as aforesaid, were sworn in 2004. The fifth affidavit, sworn last June, relates to alleged misconduct by one Ms. G., a former DFO inspector. Mr. Good submits that his purpose in filing this fifth affidavit is to ensure that the panel of the Divisional Court that will hear the Judicial Review Application will not draw any negative inferences against the Applicants for failure to challenge the evidence of Ms. G. that was before the hearing conducted by the DFO. Mr. Good wishes to ensure that the panel understands that no issues were raised about the possible misconduct of Ms. G., because the Applicants were not, until after this Application for Judicial Review was filed, aware of the alleged misconduct. In other words, he submits that should the Divisional Court panel that hears this matter ask the Applicants why they did not raise this alleged misconduct at an earlier time, counsel will be able to respond by referring to this fifth affidavit as evidence that they were, at the relevant times, unaware of the misconduct. Their position is that the Applicants instructed counsel not to challenge Ms. G.’s reports and notes submitted to the DFO hearing which preceded the hearing before the Tribunal.

7The first four affidavits were sworn with the purpose of creating a record of the detail of the proceedings before the Tribunal, including the testimony heard by it. The affidavits do not purport to be a complete record. Mr. Spurr, counsel for DFO, submits that the affidavits are selective and self-serving. The affidavits are based on the recollection of the Applicants and their counsel as to what transpired before the Tribunal and, as well, on unofficial notes of the proceeding before the Tribunal authored by Ms. Gillespie, General Manager of the Tribunal.

8Neither DFO nor the Minister has filed affidavits purporting to summarize the evidence before the DFO or the Tribunal and both object to any of the five affidavits being used by the Divisional Court. DFO’s position is that the general rule (the Keeprite rule) is that such affidavits are inadmissible on a Judicial Review hearing. In particular, it argues that the affidavits constitute an “attempt to recreate or re-express evidence”. In Keeprite Workers’ Independent Union et al and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513, the Court of Appeal held that the admission of affidavits on a Judicial Review hearing should be “very exceptional”. In other words, affidavits should be admitted only to the extent that they show jurisdictional error or absence of evidence. The court said: “I would think that the occasions for the legitimate use of affidavit evidence to demonstrate the exacting jurisdictional test of a complete absence of evidence on an essential point would, indeed, be rare.”

9Counsel for DFO also argues that the June 10, 2004 affidavit of William Denby was initially made for the purpose of obtaining an interim stay of proceedings; that the Tribunal’s decision, rendered following a de novo hearing before it, contains an extensive recital of the evidence; that the Applicants are seeking to have the Divisional Court re-hear the matter, rather than review the Tribunal’s decision; and that the affidavits provide the Applicants with an after-the-fact opportunity to “restate and rethink” their evidence.

10The Tribunal’s decision upholds the DFO findings, but varies the penalty portion of its decision. The Applicants appealed the Tribunal’s decision to the Minister. They submit that the Minister did not, because he had no transcript of the proceedings before the Tribunal, “have the opportunity to hear all the evidence on the stay and provided no reasons by which the court can determine how he dealt with the whole evidence.” (It should be noted that DFO agreed that it would not implement the Tribunal’s decision provided the Applicants moved expeditiously to have the Judicial Review Application heard).

11I pause to note that, subsequent to the release of the Court of Appeal’s decision in the related matter, there has been some delay on the part of the Applicants in proceeding with this Application. However, I find that the delay was not deliberate and, as well, is not great. I further find that, in any event, the Respondents have not been meaningfully prejudiced because of the delay.

12In my opinion, the panel of the Divisional Court that will determine this Judicial Review Application will, indeed, be required to consider the evidence that was placed before the Tribunal and upon which it made certain findings of fact and credibility. In my opinion, the Applicants will be prejudiced in their endeavour to argue the correctness, or lack of correctness, of the Tribunal’s decision because of the lack of an official transcript or an audio recording of the proceedings. The court will also be required to determine whether the Tribunal erred in holding that the Applicants “had not been acting under a stay of DFO General Regulation 08/03 such that the regulation was not in effect.” (See Applicants’ Factum, Tab 1, para. 14(2)).

13It is not my task on this motion to attempt to determine the merits of the Judicial Review Application or whether the affidavits are fair – i.e., are a reasonable substitute for the lack of a transcript. It will be for the panel hearing the Application to determine these things. I am, however, satisfied that this case qualifies as an exception to the general rule that affidavits are inadmissible on Judicial Review Applications. In my view, the Applicants must be given a chance to effectively argue their case, something they will not be able to do effectively without some evidence of what actually transpired before the Tribunal.

14Because DFO submits that the five affidavits may be, or are, unreliable, it shall have sixty (60) days from the date of release of these Reasons for Decision to file evidence by way of an affidavit or affidavits to “complete” the record. I appreciate that this ruling could have the effect of creating a contentious record; however, once again, the Applicants simply cannot effectively argue the merit of their Application without some evidence of what transpired before the Tribunal.

15In reaching these conclusions I rely, not only on the Keeprite principles, but as well, on s. 2(3) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, which states as follows:

Lack of Evidence

(3) Where the findings of fact of a tribunal made in the exercise of a statutory power of decision are required by any statute or law to be based exclusively on evidence admissible before it and on facts of which it may take notice and there is no such evidence and there are no such facts to support findings of fact made by the tribunal in making a decision in the exercise of such power, the court may set aside the decision on an application for judicial review.

16I rely as well on the following precedents: Mr. Shredding Waste Management v. New Brunswick (Minister of Environment and Local Government) (2004), 1980 1877 (ON CA), 29 O.R. (2d) 513; and TNL Industrial Contractors Ltd. v. International Brotherhood of Electrical Workers Local Union 424, 1998 ABQB 241, [1998] A.J. No. 449.

17Counsel for DFO relies on the decision of Ground J. in Ontario Secondary School Teachers’ Federation v. Thames Valley District School Board (2004), 2004 66342 (ON SC), 73 O.R. (3d) 590. The Applicant, in that case, brought an application for judicial review of an arbitration award upholding the termination of a teacher’s employment. In support of its application it filed an affidavit.

18At page 592 of the decision, Ground J. said:

[4] In my view, it is clear from the award that the decision of the Board was based upon its findings of credibility as between S and X particularly with respect to the conversation in the corridor and, whether the standard review is patent unreasonableness or is reasonableness simpliciter, this court must extend a high degree of deference to findings of fact of the Board based upon its determination as to the credibility of the witnesses appearing before it.

[5] It is the submission of Thames Valley that affidavit evidence will only be admissible on an application for judicial review in unusual circumstances where it is submitted for the purpose of establishing that the arbitrator lacked jurisdiction or that there was complete absence of evidence to support a finding of a material fact by the arbitrator. Thames Valley submits that OSSTF does not allege that the Board committed a jurisdictional error or made a finding of a material fact unsupported by any evidence but that OSSTF challenges the Board's findings of fact and credibility as being unreasonable and patently unreasonable. Thames Valley further submits that the Fellows affidavit is an attempt to expand the record to undermine the findings of fact and credibility on which the decision of the Board was based, that the Fellows affidavit selectively edits the testimony to skew the testimony in favour of X and that the admission of such affidavit would only lead to responding affidavits from Thames Valley an d cross examinations and warring affidavits as to testimony before the Board in respect of which there is no transcript and no reference in the award.

19I agree that findings of credibility must be accorded significant respect. However, as aforesaid, a party should not be denied the opportunity to effectively challenge credibility findings or, for that matter, any finding of fact.

20I note Ground J.’s comment that the Teachers Federation did not allege that the Board committed a jurisdictional error or made a finding of a material fact unsupported by any evidence but that, rather, it, the Federation, “challenges the Board’s findings of fact and credibility as being unreasonable and patently unreasonable.” I must admit that I am not sure of the significance of this distinction. I appreciate the evil which Ground J. was attempting to avoid; however, as aforesaid, in this case, I am satisfied that the Applicants must be given an opportunity to meet the high burden on it to satisfy the court that reviewable errors were made by the Tribunal. The lack of some sort of transcript will deter, if not destroy, any chance the Applicants have of persuading the court that the decision was wrong.

21In my view, regardless of what is the correct scope of review to be applied by the Divisional Court, it is axiomatic that the court be furnished with the best possible record in the circumstances. I am satisfied that the panel hearing the Application for Judicial Review can filter out from the affidavits any parts which it feels are inappropriate.

22I also order that should any party to the Judicial Review Application wish to cross-examine any of the deponents, he/she or it may do so.

23Although he did not appear on the argument of the motion before me, counsel for the Ministry of the Attorney General has advised that he supports the position of DFO. Therefore, the Attorney General should also have an opportunity of filing affidavit evidence concerning what transpired before the Tribunal and of cross-examining, if so advised.

24In the result, therefore, the motion of DFO for an order dismissing this Judicial Review Application is dismissed and the cross-motion of the Applicants is allowed. The Judicial Review Application should be perfected as soon as possible. In the meantime, the Registrar is directed to schedule the Judicial Review Application for hearing at the Divisional Court sittings commencing on April 3, 2006.

Costs

25If within forty-five (45) days from the release of these Reasons for Decision, the parties have been unable to conclude an agreement concerning entitlement to and the quantum of costs, they may make brief written submissions to me. In this regard I would note that, at the hearing on November 18, 2005, I instructed both counsel to forthwith mail to me their Form 57B’s.

Power J.

Released: November 22, 2005

COURT FILE NO.: 04-DV-974

DATE: 2005/11/22

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)