Normal Farm Practices
Protection Board
1Stone Road West, 2nd Floor
Guelph, Ontario N1G 4Y2
Tel: (519) 826-3433, Fax: (519) 826-4232
Email: NFPPB@ontario.ca
Commission de protection des pratiques agricoles normales
1 Stone Road West, 2e étage
Guelph (Ontario) N1G 4Y2
Tél.: (519) 826-3433, Téléc.: (519) 826-4232
Courriel: NFPPB@ontario.ca
2023 ONNFPPB03
IN THE MATTER OF the Farming and Food Production Protection Act, 1998
AND IN THE MATTER OF an application to the Normal Farm Practices Protection Board (“Board”) under Section 5 of the Farming and Food Production Protection Act, 1998 for a determination as to whether disturbances are a result of normal farm practices
AND IN THE MATTER OF a request for review pursuant to Rule 64 of the Board’s Rules of Practice and Procedure of the Board’s costs decision of December 22, 2022.
BETWEEN:
Jacqueline and Claudio Rocca
Applicants
– and –
Roy and Doris Bayer
Respondents
Represented by Eric Gillespie
Represented by Devan J. Munch
Submissions in writing from:
Eric Gillespie
Devan J. Munch
Before:
Brandi Neil, Vice-Chair
DECISION
Overview
1The Applicants, Jacqueline Rocca and Claudio Rocca, brought an application under section 5 of the Farming and Food Production Protection Act, 1998 (the “Act”) for a determination as to whether nuisances are as a result of normal farm practices. There was a seven-day hearing after which the Board rendered a decision on August 16, 2022, in favour of the Respondents, Roy Bayer and Doris Bayer. The Respondents made a claim for costs against the Applicants, Jacqueline and Claudio Rocca. Further to the Board’s request, the parties served and filed written submissions on the issue of costs. On December 22, 2022, the Board rendered its decision on costs and ordered the Applicants to pay the sum of $40,000 together with interest after 30 days. The Applicants requested a review of that decision. An interim decision on that request for review was released on April 20, 2023, which requested further submissions from the parties on two issues: conflict of interest (reasonable apprehension of bias) and quantum of costs.
Statutory Jurisdiction for a Review
2Subsection 21.2(1) of the Statutory Powers Procedure Act (SPPA) provides that, “A Tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.”
3Rule 64 of Board’s Rules of Practice and Procedure that were in place at the time the Request for Review was made provided for such a review of its own decisions and provided that it shall take place within a reasonable time after the decision or order is made. As indicated in the interim decision, the request for review the costs decision was made within a reasonable time after the decision was released. I would note that the Board’s Current Rules of Practice and Procedure that came into effect on May 30, 2023, no longer include a Review provision.
4I have reviewed the following documents and proceedings in considering if a remedy is warranted:
a) The Decision of the Board on the Section 5 application dated August 16, 2022;
b) The Respondents’ Submissions for Costs, dated September 30, 2022;
c) The Applicants’ Submissions on Costs, dated October 17, 2022;
d) The Respondents’ reply submissions on Cost, dated October 27, 2022;
e) The affidavit of Matthieu Butler, sworn on September 30, 2022;
f) The Decision of the Board on costs, dated December 12, 2022;
g) The Applicants’ Request for Review, dated February 13, 2023 ;
h) The Affidavit of Jacqueline Rocca, affirmed February 12, 2023, in support of the Request to Review;
i) The Board’s five Motion Decisions, dated:
a. March 18, 2020 (heard March 13, 2020);
b. June 29, 2020 (heard June 25, 2020);
c. August 17, 2020, and Nov 2, 2020 (heard August 11, 2020);
d. March 19, 2021 (heard March 4, 2021);
i. Affidavit of Jacqueline Rocca, dated February 22, 2021
ii. Affidavit of Respondent Roy Bayer, dated February 10, 2021
j) The Pre-Hearing Conference Order, dated November 15, 2019 (Pre-Hearing Conference held on August 9, 2019);
k) The Pre-Hearing Conference Order of the Board, dated February 18, 2021 (Pre-Hearing Conference held on January 26, 2021);
l) The section 5 Application by Jacqueline Rocca, dated April 22, 2019;
m) A letter to both parties from Chair Walker, dated February 21, 2023, regarding the Request for Review;
n) The order staying the costs decision pending the review, dated February 21, 2023;
o) The submissions of the Respondents dated May 23, 2023, further to the Interim Decision on the Request for Review dated April 20, 2023;
p) The submissions of the Applicants dated June 7, 2023, further to the Interim Decision on the Request for Review dated April 20, 2023 and Affidavit of Jacqueline Rocca dated June 7, 2023.
Review of the Costs Decision:
5The Applicant’s allege two different conflict of interest issues by panel member Dirksen. As set out in the interim decision, although the Respondents have phrased the issues with the panel member as conflict of interest, the standard by which this issue will be considered is whether there is a reasonable apprehension of bias. The other area for consideration in this Review is the quantum of the costs. Each issue will be discussed below.
- Reasonable Apprehension of Bias
6Before I review the relevant facts, I will first provide a summary of the law on reasonable apprehension of bias.
7The test for reasonable apprehension of bias in Canadian law was set out by de Grandpré J., writing in dissent, in Committee for Justice & Liberty v. Canada (National Energy Board) (1976), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 (S.C.C.) at p. 394:
“...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is "what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."
8More recently, in the case Kivisto v. Law Society of Ontario, 2021 ONSC 6394 at paragraph 5 Justice Corbett sites his own decision in R. v. Musselman, that sets out the relevant law surrounding reasonable apprehension of bias,
“The right to trial before an independent and impartial tribunal is fundamental. It is enshrined expressly in s. 11(d) of the Charter; it is inherent in the principles of fundamental justice guaranteed in Section 7 of the Charter; it is likewise enshrined in the Canadian Bill of Rights, s.2(e) and (f) and in Article 14 of the International Covenant on Civil and Political Rights, to which Canada has been a signatory since 1976. See R. v. Lippe et al. (1991), 1990 CanLII 18 (SCC), 64 CCC (3d) 513 (SCC).
Impartiality is assessed on both a subjective and objective basis, as reflected in the time-honoured principle restated by Cory J. in R. v. R.D.S. (1997), 1997 CanLII 324 (SCC), 118 CCC (3d) 353 at 384: “In order to fulfill this duty [of fairness] the decision-maker must be and appear to be unbiased.”
A writ of prohibition may issue where an applicant establishes a reasonable apprehension of bias on the part of the Judge: R. v. Steele (1895), 1895 CanLII 124 (ON SCJ), 26 OR 540 (CA); R. v. Handley (1921), 1921 CanLII 427 (NS CA), 54 NSR 470 (CA); Nichols v. Graham (1937), 1937 CanLII 229 (MB KB), 68 CCC 349 (Man. KB).
A “mere possibility” of bias is not sufficient to establish a reasonable apprehension of bias: Ex parte Victory (1893), 1893 CanLII 162 (NB SC), 32 NBR 249 (CA); Campbell v. Walsh (1910), 1910 CanLII 225 (NB SC), 40 NBR 186 (CA). Rather, the likelihood of bias must be real and substantial: Childs v. The Queen (1958), 1958 CanLII 473 (NB CA), 122 CCC 126 (App. Div.); R. v. Menzies; ex parte Skoff, 1969 CanLII 1014 (ON HCJ), [1970] 1 CCC 345 (Ont. HC); R. v. Camborne Justices, ex parte Pearce, [1954] 3 WLR 415 (Div. Ct.).
There is a strong presumption that Judges will carry out their judicial functions fairly, independently, and impartially. The threshold for a successful allegation of apprehended bias is high. “However, despite this high threshold, the presumption can be displaced with ‘cogent evidence’ that demonstrates that something the Judge has done gives rise to a reasonable apprehension of bias.” See: R. v. R.D.S. (1997), 1997 CanLII 324 (SCC), 118 CCC 353 (SCC); R. v. Curragh Inc. (1997), 1997 CanLII 381 (SCC), 113 CCC (3d) 481 (SCC).
“Bias as applied to a person or tribunal… is a state of mind disqualifying the person affected from adjudicating impartially in respect of the subject-matter under consideration. It is not a concrete fact but is an inference to be drawn from relevant facts”: Ex parte Perry (1929), 1929 CanLII 432 (PE SCAD), 51 CCC 105 (PEI SC), per Mathieson C.J. As reflected in this statement, bias is not solely circumscribed by a subjective animus towards a participant in the proceedings, or some personal interest in the outcome. “Bias” refers to anything that may reasonably lead the adjudicator to decide the case on some basis other than the evidence before the tribunal and the law. “Apprehended bias” refers to anything that may lead the informed and reasonable observer to form a reasonable apprehension that the adjudicator might decide the case on some basis other than the evidence and the law.
“The scope of this duty [of fairness] and the rigour with which it is applied will vary with the nature of the tribunal in question. For very good reason it has long been determined that the courts should be held to the highest standard of impartiality.” See: R. v. R.D.S. (1997), 1997 CanLII 324 (SCC), 118 CCC (3d) 353 at 384, per Cory J.
To establish a reasonable apprehension of bias, the applicant must establish that the reasonable person, with knowledge of the relevant circumstances, would have a reasonable apprehension of bias: R. v. Moore, ex parte Brooks (1969), 1969 CanLII 425 (ON HCJ), 6 DLR (3d) 465 (Ont. HC); R. v. McCelvis, ex parte Robbins (1970) 1970 CanLII 1100 (ON HCJ), 1 CCC (2d) 238 (Ont. HC); Committee for Justice and Liberty v. National Energy Board (1976), 1976 CanLII 2 (SCC), 68 DLR (3d) 716. “
9Although many of the principles in this area are derived from criminal cases, the court in Kivisto went on to state at the end of paragraph 5, that “The expectation of independence and impartiality applies equally in the context of civil regulatory proceedings”. All of these principles surrounding reasonable apprehension of bias to apply to adjudicators of this Board.
a. Involvement with the Ontario Federation of Agriculture
10The Applicant’s raise issues with panel member Dirsken’s involvement with the Ontario Federation of Agriculture (hereinafter the OFA) as a member and as a policy advisor. The specific issues raised by the Applicants are:
a) The Board previously changed three panel members after the Applicants raised an issue with OFA involvement. The only reasonable explanation for the previous removals is reasonable apprehension of bias so member Dirksen should not have been on the panel;
b) Ms. Dirksen was an OFA member and she also served as an OFA Policy Advisor during the time period of this matter. The OFA gave a letter of support in this matter for the Respondents who are OFA members in June of 2020; and
c) The OFA had previously sent a letter to Glenn C. Walker in 2012 inquiring as to how legal costs may be awarded for OFA members at hearings. The precedent setting amount of costs awarded against the Rocca’s are exactly the type of award the OFA spoke of in its letter to the Chair.
11In response to Ms. Rocca’s allegation that one or more panel members on the motions may be biased or conflicted in connection with the OFA, the Chair of the Board sent the Applicants a letter. The letter explained that to further the purpose of the Act, seven of the ten members of the Board are current or retired farmers or other participants in the agriculture industry and that most farmers belong to a general farm organization. The letter went on to explain there are three lawyers who serve as Vice Chairs and Chair and that the Board sits in panels of three led by a lawyer and two other members so often panels will have at least one member of a general farm organization. The letter also stated that the there will be a hearing panel with three different members than the motions panel. Panels frequently change from the time of a motion to the hearing often related to members’ scheduling issues. There was nothing in the letter that acknowledges there was any bias or conflict in the original motions related to OFA involvement
12As previously stated in the Interim Order, a member’s association with a general farm organization does not give rise to a reasonable apprehension of bias. The OFA sending a letter of support for one of the Respondents does not change this. According to their web site, the OFA has approximately 38,000 members. It serves many purposes for those involved in agriculture including facilitating specialized property tax rates for farmed property, providing farmers with up-to-date information about their industry, and lobbying the government for laws and programs that assist the agricultural industry.
13The Applicants also allege that Member Dirksen served as a policy advisor during the period. A Board staff member confirmed with Member Dirksen that she was on the policy advisory council for the OFA in 2009, 2010 and 2012. The staff member also learned from Member Dirksen that her role involved the interests of veal farmers and that she attended a total of four meetings over the course of these three years .
14In the Committee for Justice majority decision, supra, there is some discussion about the passage of time, that suggests in certain circumstances, time may be a consideration of the apprehension of bias analysis.
15Member Dirksen’s role as an OFA policy advisor in the area of veal farming over ten years ago did not present any reasonable apprehension of bias for determining the issues alleged by the Applicants. Those issues related to manure storage, application and odours, manure laden dust as well as deadstock disposal from the Respondent’s cow calf operation.
16As set out in the Interim Decision, the purpose of the Act is to promote and protect agricultural uses and normal farm practices in a way that balances the needs of the agricultural community with provincial health, safety, and environmental concerns. As such it is essential that the Board have some members that have an understanding of the agricultural industry. Members with this background advance the objectives of the Act, it does not create a bias. The purpose of specialized tribunals and boards is to ensure they have a detailed understanding of the topical area over which they adjudicate. The boards and tribunals that deal with agricultural matters will have members with that background, which inevitably will include members who are also members in a general farm organization.
17I disagree with the Applicant’s submission that the type of costs awarded in this case are “exactly the type of award that the OFA spoke of in its letter” from January 9, 2012 to the Chair of the Board. The letter was seeking general information for the purpose of working with the Ontario government on regulatory modernization. The OFA had identified that demographic changes may give rise to increasing number of complaints before the Board and they were seeking information in identifying the process followed by the Board. They inquired specifically about: the process when a complaint is made, the pre-hearing process that resolves or eliminates complaints, if complaints are sometimes deemed frivolous or vexatious and the circumstances in which costs might be awarded. The OFA noted the complexity of farm practices is increasing so the stakes of losing a hearing will increase the potential costs of defending or launching a complaint. This letter makes no mention of excessive or precedent setting costs.
18The facts in the cases raised by the Applicants can be distinguished from the current case. The Ontario Court of Appeal Case of Benedict v. Ontario, 2000 CanLII 16884 (ON CA), involved the appeal of a dismissed motion for an order staying an application for severance pay against Ontario. The Judge hearing the motion was engaged herself in ongoing litigation that was similar to the case before her involving an action against the Crown arising from the Judge’s previous employment as a lawyer of the Ontario Human Rights Commission. Ms. Dirksen’s role as a policy advisor to the OFA (who was not a party to this matter) on completely unrelated matters ten years prior is very different from the facts of Benedict. The matter of Cayers v Dairy Farmers of Ontario 2008 ONAFRAAT 28, involved a panel member who was a diary producer deciding a case that involved an appeal from a decision of the Diary Farmers of Ontario. This is significantly different from the situation in this matter.
b) Member Dirksen’s co-panelist Marc Huneault on an AFRAAT matter
19The Applicant's further allege a conflict of interest related to member Dirksen sitting on a panel for the Agriculture, Food and Rural Affairs Appeal Tribunal (hereinafter AFRAAT) on an unrelated file with Marc Huneault, a senior partner at the law firm representing the Bayers in this matter.
20The relevant facts are the following:
a. The Rocca’s hearing before this Board proceeded on April 25 - 29 and May 16 and 17, 2022;
b. The Respondents, the Bayers, were represented by Devon J. Munch from the firm Weaver Simmons LLP;
c. Marc Huneault was and is a senior partner at Weaver Simmons LLP;
d. Marc Huneault is a Vice Chair on the AFRAAT;
e. Panel member Dirksen is also a member of the AFRAAT; and
f. On May 9 and 10 and June 1 and 15, 2022, Marc Huneault and Judy Dirksen sat together as co-panelists on the AFRAAT in the matter of Van Loo v. Dairy Farmers of Ontario: and
g. Member Dirksen was a panelist on both the hearing of the original application and the costs motion.
21The Respondents argue that the Applicants have failed to establish an apprehension of bias on the part of Ms. Dirksen and submit that:
a. The sole fact Ms. Dirksen and Mr. Huneault are members of AFRAAT and rendered a decision in Van Loo is insufficient to meet the high bar required to demonstrate a reasonable apprehension of bias on Ms. Dirksen;
b. Any connection between Ms. Dirksen and Mr. Huneault is too remote to establish that there is a reasonable apprehension of bias on the part of Ms. Dirksen. In this regard, the respondents submit that AFRAAT is a completely separate tribunal and Van Loo is a completely unrelated matter to this matter before the Board;
c. The Respondents further submit that there is a strong presumption that Ms. Dirksen has carried out her judicial (or quasi-judicial) function fairly, independently and impartially;
d. The Respondents submit that there is no evidence or indicia that Ms. Dirksen treated the applicants unfairly throughout the 7-day hearing of the application or with respect to the Costs Decision.
22The sole fact Ms. Dirksen and Mr. Huneault are members of AFRAAT and rendered a decision in Van Loo would not necessarily create a reasonable apprehension of bias if Mr. Huneault’s affiliation with the Respondents was something other than being a lawyer at the firm representing them. I will discuss this further below.
23While I agree that the AFRAAT is a completely separate Tribunal from the Board, they are somewhat connected. They are governed by different statutes but they share several members, two Vice Chairs and a Chair. They also do training together once or twice a year. Since 2020 this training has been done by way of virtual meetings. This connection alone likely would be considered too remote if Vice Chair Huneault’s business affiliation with the Bayer’s was something other than being a lawyer at the law firm representing them.
24I would agree with the Respondent’s submission that there is a strong presumption that member Dirksen carried out her quasi-judicial function fairly, independently and impartially. However, this can be refuted as the legal relationship that Mr. Huneault has with the Respondents is cogent evidence. This is discussed further below.
25In the materials I have reviewed, there is nothing to suggest that panel member Dirksen treated the applicants unfairly throughout the 7-day hearing of the application or with respect to the Costs Decision.
26There is also nothing to suggest panel member Dirksen was aware of the law firm connection between the Respondent’s lawyer and AFRAAT Vice Chair Huneault. Panel members are not always aware in advance of who their co-panelists will be.
27However, even if member Dirksen was not aware of the law firm connection, the legal standard is not just demonstrating an actual bias, it can also be the appearance of bias. As set out above from R. v. R.D.S., “the decision-maker must be and appear to be unbiased.”
28Panel members do not and cannot be expected to know all the business affiliations of co-panelists. However, this is not a situation of a simple business affiliation, this is a situation involving lawyers at the same firm.
29The Law Society of Ontario (hereinafter LSO) regulates all lawyers in the province of Ontario. In the LSO’s Rules of Professional Conduct, Rule 1.1-1’s definitions, states that a client includes:
“a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client's work”
30When considering this definition of client, that all lawyers are bound to accept, the Respondents were in fact considered to be clients of AFRAAT Vice Chair Huneault. This is the crux of the issue.
31The LSO does permit in some limited circumstances for two lawyers from the same firm to represent separate clients, the buyer and the seller in a real estate transaction. In that case there are very detailed rules setting out the steps and protocols that must be taken to prevent the flow of information within the firm and behave as though they are separate law offices in relation to that one real estate transaction file. There has been no evidence to suggest anything like that has happened in this matter. This is not surprising as Vice Chair Huneault may not have even been aware member Dirksen was sitting as a panelist on a file that involved a client of his firm.
32Although AFRAAT Vice Chair Huneault may not have been involved in or aware of the Bayer file, they were clients of his firm so in essence his clients.
33During the same time period that the original Rocca v. Bayer hearing was happening at the Board, panel member Dirksen was co-panelist on an AFRAAT matter with one of the Bayer’s lawyers.
34When viewed from that perspective, an informed reasonable person viewing the matter realistically and practically, would conclude that the decision maker whether consciously or unconsciously would not decide fairly. There is the appearance of bias at the original hearing that would continue to exist for the subsequent costs decision.
35After reviewing the further submissions requested in the Interim Decision dated April 20, 2023, and considering the relevant case law, I have determined that the Request for Review shall be granted based on a finding of a reasonable apprehension of bias of panel member Dirksen.
36The only appropriate remedy for this issue is a rehearing of the costs motion before a full panel of the Board. The Request to Review was only brought with respect to the costs decision so that is all I can address.
- Quantum of the Bill of Costs
37As rehearing on costs is being ordered, the issue of quantum of costs will not be considered further at this time. A full determination of costs will be made at a new costs hearing before a full panel.
Order
38The Board makes the following order:
The request for review is granted based on a finding of reasonable apprehension of bias related to panel member Dirksen sitting as a co-panelist on an Agriculture Food and Rural Affairs Appeal Tribunal panel with Marc Huneault, a senior partner at the firm representing the Respondents, the Bayers, during the time period this matter was heard;
A new costs hearing is ordered to take place in writing;
The Respondents shall file and serve written submissions for costs within 45 days of this order;
The Applicants shall file and serve a response, if any, within 30 days of receipt of the Respondent’s submission;
The Respondents shall file a reply, if any, within 15 days of receipt of the Applicant’s response;
Such submissions may include any relevant affidavit evidence and caselaw.
Brandi Neil, Vice Chair
Normal Farm Practices Protection Board
Released: August 1, 2023