COURT OF APPEAL FOR ONTARIO

CITATION: Ontario Pork Producers' Marketing Board v. Hunter, 2012 ONCA 308

DATE: 20120514

DOCKET: C52220

Goudge, MacPherson and Gillese JJ.A.

BETWEEN

Ontario Pork Producers’ Marketing Board

Plaintiff (Appellant)

and

Roy Hunter, c.o.b. as Hunter’s Dressed Meats and 566735 Ontario Inc.

Defendants (Respondents)

Sean G. Foran and Raivo Uukkivi, for the appellant

Donald Good, for the respondent

Heard: May 7, 2012

On appeal from the judgment of Justice Casimir N. Herold of the Superior Court of Justice, dated May 4, 2010.

ENDORSEMENT

[1] The parties had a dispute about whether an abattoir (“Hunter’s”) paid the appropriate fees to a provincial agency that assisted with the marketing of pork products (“the board”). The dispute centered on three exemptions to the prescribed fees and whether some of the hogs slaughtered by Hunter’s came within those exemptions: (1) the ‘barbecue’ or ‘Chinese’ hog exemption; (2) the extraprovincial (Quebec) exemption; and (3) the ‘partially condemned’ hog exemption.

[2] The board claimed that Hunter’s had improperly claimed exemptions in all three categories and sought an accounting and, ultimately, payment of the full fees owing.

[3] Following a three-day trial in Guelph which saw eight witnesses testify, four for the plaintiff board and four for the defendant Hunter’s, the trial judge held:

(1) Hunter’s had established its entitlement to claim the barbecue and Quebec hog exemptions;

(2) Hunter’s had not established its entitlement to the partially condemned hog exemption (except for nine hogs and $20.70) and owed the board $27,960.97 in fees; and

(3) The board was entitled to costs of $15,000.

[4] The board appeals the first conclusion. Hunter’s cross-appeals the second and third conclusions.

The board’s appeal

[5] The board’s principal submission is that the trial judge ignored the statutory definition of exempt hogs – “hogs... that weigh less than 125 lbs. live weight” (Agreed Statement of Facts, para. 14(f)) – and created his own definition, ‘barbecue hog’ or ‘Chinese hog’, that improperly focusses on the slaughtered hog’s market destination. According to the board, this substitute definition is completely outside the statutory definition.

[6] We do not accept that the trial judge’s conclusion was in error. It is true that the trial judge was in error in saying that it was not in dispute that barbecue hogs are exempt. It is also true that the regulation contained no exemption for barbecue hogs. However, Hunter’s position was based on the understanding it had formed over the years that fees were not owed for these hogs. That understanding was grounded in a constellation of factors covered in the evidence: (1) what Hunter was told over the years by the board and the practice it engaged in as a result which went without comment by the board until this case; (2) the wording of some of the board’s documents relating to market hogs and exempt hogs, including the use of terms like ‘Barbecue Hogs’ juxtapositioned with ‘market hogs’ and ‘BBQ’s’ excluded from the ‘125 lbs. live or 100 lbs. dressed weight’ category of market hogs; (3) the testimony of Mr. Roy Hunter, President of Hunter’s, and Ms. Dawn Angle, bookkeeper of Hunter’s, which the trial judge believed, about their efforts to ascertain and comply with the relevant regulations and pay the proper fees; and (4) the fact that the board was not actively involved in the marketing of barbecue hogs. Given Hunter’s understanding and the basis for it, we cannot say that the trial judge erred in his conclusion that the board was not entitled to collect the fees it sought for barbecue hogs.

[7] The board’s second argument is that the trial judge erred by concluding in the absence of evidence that Hunter’s was able to satisfy its onus to prove that some of the hogs slaughtered at its facility were produced outside Ontario.

[8] We disagree. On this issue, the trial judge explicitly accepted the evidence of Mike Hartstein, the livestock dealer who supplied pork to Hunter’s, and Ms. Angle to support his analysis of the Quebec exemption. We can see no error in the trial judge’s analysis or conclusion.

Hunter’s cross-appeal

[9] Hunter’s contends that the trial judge erred by concluding that it had not established that it was entitled to exemptions from fees for partially condemned hogs.

[10] We do not accept this submission. Hunter’s essential argument is that the trial judge erred by ordering an accounting with respect to this category of hogs in his Judgment dated May 4, 2010. However, Hunter’s did not appeal this judgment and the accounting took place and led to a Judgment on December 14, 2010 in favour of the board in the amount of $27,960.97. It is too late now for Hunter’s to argue that an accounting should not have been ordered.

[11] Hunter’s also cross-appeals the costs award of $15,000 in favour of the board. We would not interfere with this modest award for a party that gained a modest result after a three-day trial.

Disposition

[12] The appeal and cross-appeal are dismissed. Although success is divided, the appeal presented the more substantial issues. Accordingly, the respondent is entitled to costs fixed at $5,000 inclusive of disbursements and applicable taxes.

“S.T. Goudge J.A.”

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”