Laplante Poultry Farms Ltd. v. Ontario (Agriculture, Food and Rural Affairs Appeal Tribunal), Chicken Farmers of Ontario and Riverview Poultry Ltd., 2015 ONSC 3978

DIVISIONAL COURT FILE NO.: 352/14 DATE: 20150618

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SANDERSON, RADY AND D. L. CORBETT JJ.

BETWEEN:

LAPLANTE POULTRY FARMS LTD. Applicant

– and –

ONTARIO (AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL), CHICKEN FARMERS OF ONTARIO AND RIVERVIEW POULTRY LTD. Respondents

Alyssa A. Tomkins and Anne M. Tardif, for the Applicant Geoffrey P. Spurr, for the Respondent, Chicken Farmers of Ontario Arlen K. Sternberg and Vitali Berditchevski, for the Respondent, Riverview Poultry Ltd.

HEARD at Toronto: June 18, 2015

ORAL REASONS FOR JUDGMENT

D. L. CORBETT J. (ORALLY)

[1] This case concerns supply side management of the chicken market. “Calculated base” is the term used to refer to a chicken processor’s quota. The applicant Laplante sought an increase in its calculated base and a corresponding decrease in the calculated base of the competitor, Riverview.

[2] Laplante asserted its claim before the respondent Chicken Farmers of Ontario (“CFO”), the industry regulator responsible for setting these quotas. CFO found against Laplante and dismissed its request. Laplante appealed to the Ontario Agriculture, Food and Rural Affairs Appeal Tribunal. The Tribunal heard the appeal by way of a hearing de novo and found against Laplante and again dismissed its request. Laplante now seeks judicial review before this Court.

[3] There is one preliminary issue that can be disposed of summarily. Laplante brings judicial review of both the decision of the CFO and the decision of the Tribunal. This is misconceived – judicial review is not available where there is an adequate alternate remedy, in this case, an appeal from the CFO to the Tribunal. (See Volochay v. Massage Therapists of Ontario, 2012 ONCA 541 at paras. 63-70; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3). No judicial review is available from the CFO’s decision.

Standard of Review

[4] The standard of review of the Tribunal’s decision is reasonableness. (See Association of Ontario Chicken Processors v. Agriculture, Food and Rural Affairs Appeal Tribunal, 2003 CarswellOnt 323 (Div. Ct.); National Farmers Union Ontario v. Agriculture, Food and Rural Affairs Appeal Tribunal, 2013 ONSC 6452 at paras. 28-34).

[5] Reasons are not reviewed in isolation from a decision: “if the reasons allow the reviewing Court to understand why the Tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. (See Newfoundland Nurses Union v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, 2011 S.C.C. 62. A decision is reasonable if there is justification, transparency and intelligibility within the decision-making process and the decision falls within a range of possible outcomes which are defensible in respect of the facts and the law. (See Dunsmuir v. New Brunswick, [2008] S.C.C. 9, para. 47). Where, as in this case:

The decision-maker is considering a discretionary matter based primarily on factual and policy matters having very little legal content, the range of possible acceptable outcomes open to the decision-maker can be expected to be quite broad. As a practical matter, the breadth of the range in that sort of case means that it will be relatively difficult for a party applying for judicial review of the decision to show that it falls outside the range.

Canada (Attorney General) v. Abraham, 2012 FCA 266 at para. 44

[6] The applicants raise two issues before us in oral argument: (i) the decision to allocate rebasing took place in June 2012 at the earliest rather than April 16, 2012 as found by the Tribunal and (ii) the September 2010 contract created contingent rights in Laplante which were triggered when two conditions were met.

Issue #1: The Date of Rebasing

[7] The Tribunal found as a matter of fact that the rebasing took place effective April 16, 2012. This determination attracts deference and may not be disturbed by us absent a palpable and overriding error, of which there is none.

[8] The applicant’s argument on this point conflates the calculation of calculated base with periodic supply calculations, two distinct exercises. The applicant argues that there is no evidence that the rebasing was calculated in April. There is evidence. Testimony established that rebasing was approved by the Board in April 2012. This evidence was not challenged in cross-examination.

[9] The evidence before the Tribunal establishes a sufficient record to support the Tribunal’s finding. We see no error.

Issue No. 2: The September 2010 Contract

[10] The applicant withdrew its reliance on the September 2010 contract before the Tribunal. It did so clearly and unequivocally. Therefore, the Tribunal made no reviewable error in failing to consider the September 2010 contract or to give reasons why that contract did not assist the applicant.

[11] In this judicial review the applicant now seeks to rely upon this contract. It may not do so. This is not a hearing de novo but rather is a review of the proceedings that took place before the Tribunal. The applicant may not now resurrect an issue that it expressly abandoned before the Tribunal. (See Pedwell v. Pelham (Town) (2003), 2003 7488 (ON CA), 174 O.A.C. 147 at paras. 50-51 (C.A.); Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association [2011] S.C.C. 61 at paras. 23-25.

[12] In addition to these two issues, the applicant focused in its factum extensively on the absence of reasons from the Tribunal for its failure to apply s.103 of the CFO Supplementary Quota Policy No. 182, to “alter its approach” in order to award rebased calculated base to Laplante.

[13] There is no need for the Tribunal to give reasons for why it did not depart from its usual practices and policies. Only something that requires explanation in order to render a decision that is intelligible need be included in the reasons. The Tribunal need not explain why it is not “altering its approach.”

[14] Finally, we note that the respondent’s submission that the applicant’s case seems to be a different set of arguments at each turn. We wish to be clear that we have decided this application on the basis on which it was argued before us today, and on that basis the application is dismissed.

[15] In accordance with the agreement between the parties, the applicant shall pay costs to Riverview of $25,000 inclusive and to the Chicken Farmers of Ontario of $10,000 inclusive, all payable within 30 days.

___________________________ D. L. CORBETT J.

SANDERSON J.

RADY J.

Date of Reasons for Judgment: June 18, 2015

Date of Release: June 30, 2015

CITATION: Laplante Poultry Farms Ltd. v. Ontario (Agriculture, Food and Rural Affairs Appeal Tribunal), Chicken Farmers of Ontario and Riverview Poultry Ltd., 2015 ONSC 3978

DIVISIONAL COURT FILE NO.: 352/14 DATE: 20150618

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SANDERSON, RADY AND D. L. CORBETT JJ.

BETWEEN:

LAPLANTE POULTRY FARMS LTD. Applicant

– and –

ONTARIO (AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL), CHICKEN FARMERS OF ONTARIO AND RIVERVIEW POULTRY LTD. Respondents

ORAL REASONS FOR JUDGMENT

D. L. CORBETT J.

Date of Reasons for Judgment: June 18, 2015

Date of Release: June 30, 2015