Court File and Parties

CITATION: 2041219 Ontario Ltd. v. Agricorp, 2021 ONSC 1058

DIVISIONAL COURT FILE NO.: DC-19-420-0000

DATE: 20210211

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: 2041219 Ontario Ltd., Applicant

AND:

The Business Risk Management Review Committee and Agricorp, Respondents

BEFORE: Penny J

COUNSEL: Brendan Morrison and Adam Kanji for the Applicant

Ananthan Sinnadurai and Judie Im for the Respondent Agricorp

HEARD (by videoconference): February 9, 2021

ENDORSEMENT

Overview

[1] This is a “refusals motion”. It arises out of an application for judicial review seeking to quash a recommendation (Recommendation) issued by the Business Risk Management Review Committee (Committee) made June 28, 2019 and a July 12, 2019 decision of Agricorp (Decision) which followed the Recommendation. Both the Recommendation and the Decision reached the conclusion that the Applicant was ineligible for payments arising from livestock production outside Ontario applied for under the RMP Livestock Program (Program) administered by Agricrop. The Agricorp Decision reiterated its earlier decision (which was reviewed by the Committee in the Recommendation) that the Applicant’s request for payment under the Program based on ex-Ontario production be denied.

[2] In its application for judicial review, the Applicant relies on a number of alleged errors of law in the Committee’s Recommendation and in Agricorp’s final Decision. These errors include: incorrect interpretation of the Program’s eligibility criteria; improper reliance on the Order in Council; failure to apply the principle of contra proferetem; misapplication of the doctrine of estoppel and equitable reliance; (importantly for the issues on this motion) the denial of natural justice by relying on a legal argument based on the definition of “Farmer” in the Order in Council which was never raised by any party to the proceedings; that the Recommendation was only signed by the Chair, not all committee members as allegedly required by s. 7(11) of the Order in Council; and, Agricorp’s Decision simply adopted and reiterated the Committee’s Recommendation, including the “definition of Farmer” argument referred to above.

[3] The motion is two-fold:

(1) to require the Committee to provide answers to certain questions posed to the Committee by counsel to the Applicant following the release of the Recommendation; and

(2) to require Agricorp to answer certain questions on the public record (that is, so that the answers become part of the Record on this judicial review) which it has provided under reservation of rights by virtue of Rule 34.12(2) of the Rules of Civil Procedure.

In both cases, the questions involve a request for detailed information about things like: who wrote the Recommendation and/or the Decision, who was involved in the deliberative process at both agencies, and who raised the “definition of Farmer” argument at both agencies.

[4] The Applicant justifies these questions, and a Court order requiring that they be answered, on the basis of its natural justice/procedural fairness argument arising out of the reliance on the “definition of Farmer” argument in the Recommendation and the Decision. The Applicant says that because no one ever raised this argument as a basis for denying its application: a)it did not know the case it had to meet; and, b) because the Committee relied on this argument without it ever having been raised, the Applicant was denied the right to be heard on the point.

[5] But the Applicant goes further. In para. 42 of its factum, and in oral submissions, the Applicant argues that: “Fundamental to the applicant’s ability to raise this ground of judicial review is knowing the identity of the decision-makers; who was involved in making the decision; and, what information the decision-makers had before them.”

[6] Agricorp argues that these inquiries are nothing more than a fishing expedition. The answers are irrelevant to whether the Applicant was denied natural justice arising out of the “definition of Farmer” argument. That argument stands or falls on whether the Applicant did or did not not know the case it had to meet and was or was not denied the opportunity to be heard. It matters not from whom the “definition of Farmer” argument came, or who actually penned the Recommendation or the Decision on the point. Agricorp says the Applicant is really trying to attack the integrity or conduct of the Committee and Ms. Meneray, who signed the Agricorp Decision, in reaching their respective conclusions. But the notice of application for judicial review does not raise any basis for judicial review that would engage these considerations: the Applicant does not allege, for example, that either the Committee or Ms. Meneray were biased, improperly influenced by “outside actors”, lacked independence or improperly sub-delegated their functions, etc.

Background

[7] Agricorp is a provincial government agency that delivers crop insurance and other agricultural risk management programs. One such program is the Program referred to above. This is an insurance-like program to assist beef farmers to offset losses caused by fluctuating commodity prices. Payments are made to the cattle raisers if market prices fall below specified support levels based on the industry-average cost of producing livestock and the support level chosen by the individual participant.

[8] Any payments under the Program were calculated using volumes determined by livestock weight gain. Between 2011 and 2017, the Applicant reported weight gained on its cattle that included weight gained in Ontario and outside of Ontario. The Applicant’s applications for support under the Program were approved from 2011 to 2016. In 2017, following an audit, Agricorp took the position that only cattle weight actually gained in Ontario was eligible for support under the Program and that any cattle weight gained outside of Ontario was ineligible.

[9] Following an internal process of review and an iterative process with the Applicant, Agricorp declined the Applicant’s application for support in respect of any cattle weight gain that took place outside Ontario. Agricrop subsequently conducted a retroactive three-year review of the Applicant’s prior payments. This process resulted in a claim for a claw-back of about $26,000 for the prior three years.

[10] Under the relevant Order in Council, a review of Agricorp’s decision was available to the Applicant from the Committee, which can issue a non-binding recommendation. The Applicant sought that review from the Committee and sought a recommendation from the Committee that Agricorp’s interpretation of the Program’s eligibility criteria was incorrect and not supported by the Program’s terms and conditions.

[11] Following the filing of extensive written material, the Committee, consisting of five members, held a hearing in June 2018. Both sides were represented by counsel; the Committee also had the benefit of its own counsel. Later the same month, the Committee issued its Recommendation, signed by the Committee Chair. The Committee, in the Recommendation, concluded that the weight gain of cattle while outside Ontario was not eligible for financial support under the Program. Among other things, the Recommendation relied on a definition of “Farmer” in the Order in Council which governed the Program. “Farmer” was defined as a person engaged in the production of a commodity in Ontario. Based on the Committee’s interpretation, production (weight gain) outside Ontario could not accrue to a “Farmer”, being someone engaged in beef production in Ontario, such that no production outside Ontario could qualify for support under the Program.

[12] The Applicant takes the position that this argument was never made or raised by either party in the proceedings before the Committee. (This, I should note, is not accepted by Agricorp which will argue, on the merits of the judicial review itself, that the “definition of Farmer” issue was raised during the course of the hearing.)

[13] The Applicant further takes the position that it is entitled to know who was involved in drafting the Recommendation and where the argument based on the “definition of Farmer” came from. Following release of the Recommendation, counsel for the Applicant, by written correspondence, asked a number of questions about who wrote the Recommendation, whether other Committee members besides the Chair were involved, whether lawyers or other representatives from the hearing were involved and whether there were any internal policies in place governing the Committee’s decision-making process.

[14] Without conceding it was obliged to do so, the Committee had its staff respond to the effect that the Recommendation was unanimously reached by the Committee who were all present at the hearing, and that no representatives of Agricorp or the Ministry of Agriculture participated in the Committee’s deliberations or in drafting the Recommendation. The Committee also confirmed that there were no internal policies governing its deliberative process. Legal counsel to the Committee also advised that while legal counsel was engaged and advised the Committee during its deliberations and in the drafting of its Recommendation, the Committee’s deliberative process and the seeking and giving of legal advice from and to the Committee were subject to deliberative and/or solicitor client privilege which the Committee did not waive.

[15] Counsel for the Applicant was not satisfied with these answers and seeks further, more detailed responses to his questions.

[16] Following release of the Committee’s Recommendation, Agricorp, in the person of Ms. Meneray, an Agricorp employee, issued a letter in which she recited the conclusions of the Committee from the Recommendation, reiterated Agricorp’s earlier decision that weight gain of cattle while outside Ontario was not eligible for support under the Program and confirming Agricorp’s earlier denial of the application for support in relation to any ex-Ontario weight gain. Specifically, Agricorp Decision recited the “definition of Farmer” argument in its summary of the Committee’s analysis in the Recommendation.

[17] The Applicant also claims an entitlement to know where the “definition of Farmer” argument in Agricorp’s Decision came from, who was involved in advancing it, who wrote the Agricorp Decision and who else was involved. Ms. Jones, another employee of Agricrop who had been involved in the original decision to deny support under the Program and served as Agricorp’s representative at the hearing before the Committee, filed an affidavit on behalf of the Respondent Agricorp in the judicial review. During her cross examination, questions asked about the authorship of and input into Agricorp’s Decision were taken under advisement. As noted earlier, in subsequent written answers, the the Applicants’ questions on this theme that now make up the focus of this motion, were answered under reservation of rights under Rule 34.12(2).

Analysis

The Questions of the Committee

[18] I cannot accept the Applicant’s argument that fundamental to its ability to raise the natural justice ground of judicial review based on the “definition of Farmer” argument, is knowing who came up with the “definition of Farmer” argument, who wrote the Recommendation and what consultations or deliberations the Committee had about this argument. Answers to these types of questions are not necessary, or even relevant, to the Applicant’s ability to raise and argue its position on denial of natural justice as articulated in the notice of application for judicial review.

[19] If the Applicant is right that the “definition of Farmer” argument was never raised by either party, such that the Applicant was deprived of knowing the case it had to meet and the opportunity to respond, then it matters not where this idea came from, who suggested the Committee rely upon it or who actually penned the text of the Recommendation which raised and relied upon this argument. Likewise, if the Applicant is not correct that this argument was never raised prior to surfacing in the Recommendation, then, equally, it matters not who penned the text of the Recommendation or what deliberations the Committee had upon the issue. Whether this argument was raised by a Committee member, a Committee staff person or by the Committee’s legal counsel can have no impact on the resolution of the natural justice question that has been raised.

[20] The sole basis upon which the Applicant seeks to justify going behind the Recommendation itself and to probe the source, deliberations and drafting of the “definition of Farmer” argument in the Recommendation, is the alleged lack of prior knowledge about this argument which, the Applicant says, resulted in a deprival of natural justice. The Applicant has not raised in its application for judicial review any allegation of bad faith or other misconduct, bias, lack of independence or improper sub-delegation by the Committee which might warrant further exploration of the deliberation process. These questions, in the circumstances, amount to little more than a fishing expedition for procedural error neither alleged nor apparent on the face of the record. They are also an unwarranted attempt to intrude into the Committee’s solicitor client and deliberative privilege.

[21] I would also add that to the extent the Applicant might have had any legitimate concern about the deliberative process (arising, for example, from the fact that only the Chair signed the Recommendation) or the role of staff seconded to the Committee, those questions have been answered. The Recommendation was unanimously made by the Committee members; neither Agricorp nor the government was involved in the Committee’s deliberations or drafting of the Recommendation in any way.

[22] The motion for answers to the Applicant’s questions to the Committee is dismissed.

The Questions of Agricorp

[23] The issue with respect to the Agricorp Decision has an added nuance because the answers to the questions the Applicant cares about were, in fact, answered and pulled together in a letter from Agricorp’s counsel of February 1, 2021, which was filed on the motion. These answers were, however, provided under Rule 34.12(2) of the Rules, which provides that a question that is objected to may be answered with the objector’s consent and where the question is answered, a ruling shall be obtained from the court before the evidence is used at a hearing.

[24] Mr. Sinnadurai submitted that, with respect to these questions (and answers), under Rule 34.12(2), the proper course was to leave the court ruling contemplated under the Rule to the judge (or in this case, the judges) at the merits hearing, rather than it being resolved on an interlocutory motion by someone else. Counsel cited the decision of Myers J. in 2287913 Ontario Inc. v. ERSP International Enterprises Ltd., 2017 ONSC 7185, who held in that case (para. 8) that Rule 34.12(2) “puts the ruling on admissibility in the hands of the trier of fact rather than another judicial officer who must make rulings with an idea of the merits but lacking the detailed record and argument to assess the admissibility of the evidence proffered with the precision and nuance of the trier of fact.” Mr. Morrison pointed to other decisions which did not interpret the Rule in quite the same way.

[25] I do not find it necessary to resolve this particular issue in this case because, having raised the issue, Mr. Sinnadurai did not insist upon this approach but conceded that, in spite of Justice Myer’s words, it would be helpful to have this court’s “guidance” on the relevance of the questions in any event. (I certainly agree, however, that the admissibility of evidence is, ultimately, a question for the trier of fact.)

[26] The more important point, from my perspective, is that, as discussed in the analysis of the Applicant’s questions to the Committee, the only issue raised in the notice of application for judicial review remotely connected with Agricorp’s process or deliberations is the natural justice question of whether the Applicant had notice of and the opportunity to respond to the “definition of Farmer” argument. As with the allegations against the Committee, there is no hint or suggestion that Agricorp’s process involved bad faith or other misconduct, conflicts of interest, bias, lack of independence or improper sub-delegation, etc. As Mr. Sinnadurai submitted, if these allegations had been made, Agricorp would have been put on notice of these issues and its entire evidentiary record would most certainly have been very different.

[27] While some of the evidence filed under reservation of rights in Rule 34.12(2) might be characterized as useful background information about Agricorp’s processes, it is only strictly relevant to what seems to be unpleaded allegations of impropriety about Agricorp’s deliberative process and whether the Agricorp Decision might be attacked on some other grounds. The questions in issue, therefore, are, as with the questions posed to the Committee, essentially a fishing expedition for procedural error neither alleged nor apparent on the face of the record. This is particularly the case here because Agricorp had already made its original decision to deny any financial support under the Program for ex-Ontario weight gain. Following the Recommendation from the Committee, essentially agreeing with Agricorp’s original decision, Agricorp reiterated its decision to deny any payments based on ex-Ontario production. This can hardly have been a surprise to the Applicant in the circumstances.

[28] There was, on the face of the record, no further substantive review by Agricorp of the Applicant’s case following the release of the Recommendation nor is there any argument that there ought to have been yet another substantive review. Again, that is not the basis of the Applicant’s pleaded natural justice complaint. The natural justice complaint is restricted to the repetition of the “definition of Farmer” argument in the recitation and summary of the Committee’s Recommendation which forms part of the Agricorp Decision. As noted earlier, it matters not where this idea came from (although it is, in this case, obvious – it came from the Recommendation), who suggested Agricorp/Meneray rely upon it or who actually penned the text of the Decision which summarized this argument taken from the Recommendation.

[29] For these reasons, the motion with respect to the Agricorp questions is also dismissed.

Conclusion/Costs

[30] For the forgoing reasons the Applicant’s motion is dismissed. Costs were agreed to be fixed at $5,000 to the winning party. It is so ordered.

Penny J.

Date: February 11, 2021