ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-1934
DATE: 2013/10/16

BETWEEN:

NATIONAL FARMERS UNION – ONTARIO
Applicant

– and –

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
Respondent

Sean P. Bawden, Counsel for the Applicant

Elisha C. Jamieson, Counsel for the Respondent

Sara Blake and Jon Bradbury, counsel for the Intervenor, the Minister of Agriculture and Food

HEARD: September 10, 2013 (Ottawa)

REASONS FOR DECISION

Beaudoin J.

[1] The Applicant, National Farmers Union – Ontario (the “NFU‑O”) seeks an order in the nature of certiorari setting aside the decision made by the Respondent, Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”), denying the NFU‑O accreditation as an “accredited farm organization” pursuant to the provisions of the Farm Registration and Farm Organizations Funding Act, 1993, S.O. 1993 c. 21 (“FRFOFA” or the “Act”). They also seek an order in the nature of mandamus directing the Tribunal to accredit the NFU‑O as an accredited farm organization.

[2] On consent, the Minister of Agriculture and Food (the “Minister”) was granted status as an intervener. The Minister has supported the Applicant throughout these proceedings and in this application for judicial review.

[3] This application was considered a matter of urgency as set out in section 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Pursuant to section 2 of the Act, any person carrying on a farming business in Ontario must file a “farming business registration form” (“FBR”) and include the prescribed fee. The Act sets out an accreditation process for identifying the organizations eligible to receive funding under the Act while allowing each farm business to choose which accredited organization will represent its interests. Funding is received via the annual registration fees paid by each registered farm business to an accredited organization which the farm business has chosen to represent it.

[4] As an organization that has been deemed an accredited farm organization since 2002, almost the entirety of the NFU‑O’s annual funding is dependent on the transfer of these sums estimated by the Tribunal to be close to $500,000 per year. The Applicant needs to learn if this Application for accreditation will be successful prior to the printing of the 2013 FBR so as to have time to ensure its name is included for election in the form. The 2013 FBR is expected to be sent to the printer in November 2013.

The Decision Under Review

[5] The Tribunal released its decision on December 19, 2012 (written reasons released on April 15, 2013) denying the NFU‑O accreditation.

[6] As preliminary matter, it is necessary to identify the various organizations referred to by the Tribunal in its decision. The National Farmers Union (“NFU”) is a national organization representing farmers. Until 2002, it carried out its activities in Ontario under the name of NFU, Region 3. As a federally incorporated farm organization the NFU does not qualify for accreditation under the Act. In order to access the funding provided under the Act, an affiliate organization, the NFU‑O, was incorporated in 2002 in order to comply with the provisions of the Act. The NFU and NFU‑O work closely together and share resources and personnel in pursuit of their stated objectives.

[7] In denying accreditation to NFU‑O, the Tribunal concluded that there were two issues to be decided:

1. whether the NFU‑O has standing to bring this application under section 4(1) of the Act; and

2. whether the NFU‑O meets the criteria for accreditation set out in section 5 of Ontario Regulation 723/93, as amended (the "Regulation").

The Standing Issue

[8] Section 4(1) reads as follows:

4. (1) Any organization representing farmers in the province may apply to the Tribunal to become an accredited farm organization for the purposes of this Act.

[9] In disagreeing with the Minister’s submission that section 4(1) was simply an enabling provision the Tribunal held at p. 5 of its decision:

The Tribunal does not agree with the Minister's submission. In the Tribunal's view, treating section 4(1) of the Act simply as an enabling provision fails to attach sufficient weight to the wording of that section. While section 4(1) does authorize persons to apply for accreditation (and, by implication, authorizes the Tribunal to accept applications for accreditation), the wording of that section also limits the class of persons who are authorized to apply for accreditation to "organizations representing farmers in the province." Those words have meaning and cannot be ignored. As with any standing provision, the Tribunal's role under section 4(1) of the Act is to ensure that only those persons who are authorized to apply for accreditation are permitted to have their applications proceed to a full consideration on the merits. If the Legislature had intended a different role for the Tribunal, it would have been a simple matter to reword section 4(1) of the Act to remove any restrictions on who may apply for accreditation under the Act.

[10] In arriving at its decision, the Tribunal relied on its fact‑finding powers codified in sections 26 and 27 of the Act which sections provide:

26. The Tribunal or an employee of the Tribunal at the Tribunal's request may gather information or inspect documents that it considers necessary and question any person in relation to a matter before it.

27. (1) In any hearing before it, the Tribunal may accept submissions from any person who is not otherwise entitled to make submissions under this Act if it gives the parties an opportunity to respond to those submissions.

(2) In any hearing before it, the Tribunal may consider any relevant information obtained by the Tribunal in addition to the evidence given at a hearing if it first informs the parties of the additional information and gives them an opportunity to respond to it.

[11] The Tribunal found that the NFU‑O met the first requirement of section 4(1) of the Act, in that it was an “organization” but not the second requirement that it was “representing farmers in the province”. The Tribunal’s finding with respect to the second requirement is based on its own interpretation of the word “representing”, which the Tribunal explained as follows:

[T]he Tribunal finds that the NFU‑O does not have standing to apply for accreditation under section 4(1) of the Act because it does not represent farmers in the province as required by that section. Although the term "representing" is not defined in the legislation, in the Tribunal's view it implies an active rather than a passive role. A person who represents another person takes an active role in advancing that other person's interests: the representative "acts" for the person who is represented. In the context of a farm organization, the Tribunal finds that an organization representing farmers in the province is an organization that takes an active role in advancing the interests of Ontario farmers; it is not a passive organization that leaves the representation of farmers to another farm organization. [at p. 6-7]

[12] The Tribunal examined the role of the national organization, the flow of funds between the NFU and the NFU‑O, how each of these organizations carried out their responsibilities, the corporate structures of each organization, and the legal agreements between the NFU and the NFU‑O. Based on these examinations, the Tribunal concluded at p. 27 of its decision that:

All of these factors, taken together, lead the Tribunal to find that the NFU‑O does not represent farmers in the province. It is clear from the evidence before the Tribunal that the NFU and NFU Region 3 are the operating organizations in the province and that the NFU‑O has a passive role that consists primarily of obtaining stable funding under the Act and transferring the majority of that funding to the NFU and the NFU's locals. On the evidence before the Tribunal, the NFU‑O falls far short of satisfying the Tribunal, as it is required to do, that it represents farmers in the province. Accordingly, the NFU‑O does not have standing to seek accreditation under section 4(1) of the Act.

[13] The Tribunal did say this before arriving at its conclusion on the issue of standing:

This is not to say that a farm organization in Ontario cannot affiliate with a national farm organization. Such affiliations are common throughout the agriculture industry and can provide benefits to Ontario farmers on issues of national concern. Those affiliations, however, are typically "bottom up" rather than "top down." The provincial organization operates with a significant degree of autonomy and voluntarily associates with the national organization. The situation is reversed in the NFU‑O's case, where the NFU‑O functions with very little autonomy and is effectively shackled to the NFU. [at p. 27]

[14] The Tribunal discussion of the standing issue takes up the first 27 pages of its 31‑page decision. The Tribunal then went on to consider the accreditation issue pursuant to section 5 of the Act and the governing regulations. The relevant legislative provisions are as follows:

Hearing on application

5. (1) The Tribunal shall hold a hearing before determining whether an organization is to be accredited or whether an organization’s accreditation is to be renewed.

Submissions

(2) Any person or organization entitled to notice of an application may make submissions in a hearing relating to the accreditation of a farm organization.

Party

(3) The organization seeking accreditation or renewal of accreditation is a party to the hearing.

Order on application

6. (1) If the Tribunal determines that the organization meets the prescribed criteria for accredited farm organizations, the Tribunal shall, by order, accredit the organization and, if the Tribunal determines that the organization does not meet those criteria, the Tribunal shall refuse the accreditation.

7. (1) The Lieutenant Governor in Council may make regulations, respecting the criteria to be used for accrediting farm organizations, …

[15] The criteria referred to in section 33(1) are found in section 5(2) of O. Reg. 723/93 which provides:

5. (1) Subject to the other provisions of this section, a farm organization qualifies for accreditation if it meets the following criteria:

6. It has an annual membership fee of at least $195, including applicable taxes.

7. It is incorporated under a general or special Act of the Legislature.

8. Its purpose is to represent persons carrying on farming businesses.

9. It provides advice and analysis to governments, administrative tribunals or advisory bodies concerning agricultural issues and the development of programs or policies that are of interest to persons carrying on farming businesses.

10. It has entered into, or agreed to enter into, an agreement with the Minister and the accredited farm organizations to provide special funding to the francophone organization that is eligible for special funding under section 12 or 13 of the Act. O. Reg. 363/12, s. 1 (1).

[16] Before approaching the issue of accreditation, the Tribunal wrote at p. 27:

Given the Tribunal's finding with respect to standing, the Tribunal would not normally go on to consider whether the NFU O meets the criteria for accreditation set out in section 5 of the Regulation. In this case, however, the NFU‑O and the Minister have both challenged the Tribunal's jurisdiction with respect to the Standing Issue, and the Tribunal therefore considers it appropriate, in the unique circumstances of this case, to provide its ruling with respect to the criteria for accreditation set out in section 5 of the Regulation. If, as the NFU‑O and the Minister allege, the Tribunal does not have jurisdiction to dismiss this application under section 4(1) of the Act, the Tribunal would rule as follows with respect to the five criteria for accreditation set out in section 5 of the Regulation.

[17] The Tribunal found that the NFU‑O satisfied the first, second, fifth, and sixth criteria prescribed by the Regulation, but found at p. 30 that:

• the NFU‑O’s purpose was not to represent farmers in Ontario but rather to allow the NFU and NFU Region 3 to access stable funding under that Act; and

• it was the NFU and NFU Region 3 and not the NFU‑O that provided advice and analysis to governments.

[18] In coming to that conclusion, at p. 30, the Tribunal simply reiterated its negative findings on the standing issue without any further or “in the alternative” analysis:

… On that basis, the Tribunal finds that it is the NFU's regional network, as contemplated by the NFU's by‑laws, that carries out the NFU's activities in Ontario and that it is the NFU that represents persons carrying on farming businesses. The Tribunal is not persuaded by the NFU‑O's evidence that the NFU‑O's actual purpose, as opposed to its stated purpose, is to represent persons carrying on farming businesses. The Tribunal finds that the NFU‑O's actual purpose is to allow the NFU to access stable funding under the Act, as discussed under the Standing Issue above. This criterion therefore has not been met.

For the reasons set out under the Standing Issue, the Tribunal finds that it is the NFU and not the NFU‑O that is the operating organization in Ontario. The evidence before the Tribunal indicates that the advice and analysis provided to governments and others was provided by the NFU, on its own and through NFU Region 3, rather than by the NFU‑O. This criterion therefore has not been met.

Background

[19] There are approximately 45,000 farm businesses registered in Ontario. Given these numbers, the Ontario government concluded that it would be more practical to consult representative organizations rather than each of these businesses individually. In addition, it is recognized that the organizations are better able to provide effective representation if they have a stable source of funding. In order to secure a source of funding for general farm organizations, the Legislature enacted the Farm Registration and Farm Organizations Funding Act, 1993.

[20] Under that legislative scheme, every person who carries on a farming business, and whose annual gross income equals or exceeds the prescribed amount, is required to file with the Ministry a completed FBR and pay the prescribed amount to an accredited farm organization. A farmer may apply for an exemption under the Act.

[21] The Act sets out an accreditation process for identifying the organizations eligible to receive funding under the Act while allowing each farm business to choose which accredited organization will represent its interests. Funding is received via the annual registration fees paid by each registered farm business to an accredited organization, which the farm business has chosen to represent it. No government funding is involved.

[22] The NFU, via its “Region 3” members, has been active in the province since well before the Act came into force in 1993 and, in fact, was consulted by the Government as part of the process of drafting the legislation: Ontario, Legislative Assembly of Ontario, Standing Committee on Resources Development, hearing on Bill 42, Farm Registration and Farm Organizations Funding Act, 1993, 35th Parliament, 3rd Session, 35th Parliament, (1 September, 1993), at 1120. A news release entitled “Stable Funding Legislation Re‑Introduced in Ontario” from the Ministry of Agriculture and Food dated June 3, 1993 referred to the new legislation that was being tabled and concluded as follows:

Legislation was drafted after consultation with farmers and representatives of several farm organizations… The Stable Funding Committee included representatives from OMAF, the NFU and the OFA…

[23] In a backgrounder entitled “Farm Registration and Farm Organizations Funding Bill” that accompanied the news release, the Ministry added:

The legislation will initially recognize three accredited general farm organizations: the Christian Farmers Federation of Ontario (CFFO), the Ontario Region of the National Farmers Union (NFU) and the Ontario Federation of Agriculture (OFA).

[24] Other materials published by the Ministry of Agriculture and Food in 1993 mentioned that Region 3 (Ontario) of the NFU would be automatically accredited for the first three years of the legislation coming into force. For reasons that are not clear, the NFU declined the offer to be “grandfathered” into the legislation. In 2002 when the NFU‑O was incorporated, it was accredited later that year by the Tribunal as an “accredited farm organization”. In particular, it was successful on applications for accreditation in September 2002, October 2005 and again, in June 2008.

[25] At the time of this application, the NFU‑O had 2, 247 farm business registration members plus an additional 58 direct members.

[26] The issue of the NFU‑O’s standing has never been an issue on any of its prior applications for accreditation under the Act. This issue was not raised as a concern of the Tribunal until it issued its Fourth Interim Order on December 5, 2012 (over four months after the hearing began on July 18, 2012).

Issues

[27] The issues to be decided on this application for judicial review are:

(a) What is the appropriate standard of review?

(b) Is the Tribunal’s decision reasonable?

(c) If not, what is the appropriate remedy?

Standard of Review

[28] The Applicant submits the appropriate standard of review on this Application with respect to the Tribunal’s jurisdiction is that of correctness.

[29] NFU‑O submits, firstly, that the Tribunal made a reversible error of law in concluding that it had the jurisdiction to consider whether applicants for accreditation “represent” farmers in the province. Secondly, the NFU‑O submits that the Tribunal made a reversible error in interpreting its information‑gathering powers.

[30] The Tribunal disagrees with the NFU‑O’s submission that correctness is the appropriate standard of review, and submits that the proper standard of review is reasonableness. The Tribunal argues that this case involves the judicial review of a Tribunal’s decision concerning the interpretation of its home statute and the application of that statute to the evidence before it. For those reasons, it argues that the Court should defer to a Tribunal’s interpretation of its home statute or a statute which is closely connected to its function.

[31] The Tribunal maintains that courts should hesitate to analyze the decisions of specialized tribunals through the lens of “jurisdiction” as the Applicant is suggesting unless it is clear that the tribunal exceeded its statutory powers by entering into an area of inquiry outside of what the legislature intended. The Tribunal cites the following comment from the decision in Toronto Hydro-Electric System Limited v. Ontario (Energy Board), 2010 ONCA 284, 99 O.R. (3d) 481 (at para. 24): “If the decision of a specialized tribunal aims to achieve a valid statutory purpose, and the enabling statute includes a broad grant of open‑ended power to achieve that purpose, the matter should be considered within the jurisdiction of the tribunal”.

[32] The Tribunal notes that the Applicant bears the burden of demonstrating why the court should not review the Tribunal’s interpretation of its home statute on the deferential standard of reasonableness.

[33] Finally, the Tribunal cites the factors enumerated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 that strongly support a reasonableness standard. First, there is a privative clause found in section 30 of the Act that reads “A decision of the Tribunal is final.” Second, the clear purpose of the Tribunal is to determine whether or not a farming organization should be accredited for farming registration purposes. Third, the nature of the question of law is not of central importance to the legal system or outside of the expertise of the Tribunal.

[34] The Intervenor agrees that the standard of review is one of reasonableness and I accept that this is indeed the applicable standard. While the Applicant’s arguments have some merit, the questions of law that arise from the Tribunal’s decision are not of central importance to the legal system. As was said in Dunsmuir at para. 56:

There is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness. It simply means giving the adjudicator's decision appropriate deference in deciding whether a decision should be upheld, bearing in mind the factors indicated.

The Reasonableness Standard

[35] In Dunsmuir, the court defined the reasonableness standard as follows at para. 47:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. … A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[36] Relying on the Supreme Court’s decision in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 48, the Tribunal emphasizes that a decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal to the conclusion at which it arrived based on the evidence before it. Citing Ryan further, the Tribunal argues that “[t]his means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling”: at para. 55.

[37] Cases since Dunsmuir have confirmed that the reasonableness standard is not a sliding scale of deference but rather one fixed standard in which the courts will grant deference to the decision maker. In applying this deferential approach, courts must analyze the context in which the decision was made to determine what was reasonable. In Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436, 237 O.A.C. 71, the Ontario Court of Appeal confirmed that the new reasonableness standard is not to be interpreted as varying degrees of deference but rather as one standard interpreted in a contextual manner:

Applying the reasonableness standard will now require a contextual approach to deference where factors such as the decision-making process, the type and expertise of the decision-maker, as well as the nature and complexity of the decision will be taken into account. Where, for example, the decision-maker is a minister of the Crown and the decision is one of public policy, the range of decisions that will fall within the ambit of reasonableness is very broad. In contrast, where there is no real dispute on the facts and the tribunal need only determine whether an individual breached a provision of its constituent statute, the range of reasonable outcomes is, perforce, much narrower. [para. 22]

[38] Similarly, in the 2009 decision of the Supreme Court in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, Binnie J. writing for the majority, described the reasonableness standard generally as “a single standard that takes its colour from the context”: at para. 59.

The Standing Issue

[39] As noted above, prior to the decision at issue, an applicant’s standing as an organization “representing” farmers under section 4(1) of the Act has never been in issue in accreditation hearings. The only material change of circumstances between earlier applications and the decision at issue was the amendment to the Regulation in November 2012, which reduced the number of accreditation criteria from fourteen to five.

[40] Although the Applicant has argued that a standard of correctness should be applied, its arguments are equally applicable in applying standard of reasonableness.

[41] The NFU‑O submits that the answer to the question of whether the Tribunal is authorized to consider sub‑section 4(1) of the Act in its determination of accreditation is answered with reference to section 6(1) of the Act that provides that:

If the Tribunal determines that the organization meets the prescribed criteria for accredited farm organizations, the Tribunal shall, by order, accredit the organization and, if the Tribunal determines that the organization does not meet those criteria, the Tribunal shall refuse the accreditation. [Emphasis added.]

[42] The criteria prescribed by section 5 of the Regulation do not include a requirement that applications represent farmers in the province; organizations must only have as their “purpose” the representation of persons carrying on farming businesses.

[43] In deciding that section 4(1) of the Act along with sections 26 and 27 gave it broad powers to consider the issue of standing, the Applicant maintains that the Tribunal defeated the purpose of the legislation and made the application process contemplated by section 5 of the Act meaningless. The Applicant stresses that it is at the hearing contemplated by section 5 where the analysis of representation should take place.

[44] The Intervenor joins the Applicant in arguing that the Tribunal interpreted section 4(1) as giving it a discretion that the Act does confer upon it. Section 5 of the Act requires the Tribunal to have a hearing.

[45] To the extent that section 4(1) does allow the Tribunal to consider any threshold issue of standing, the Minister argues that the Tribunal was required to give effect to section 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21. Sched. F which provides that an Act “shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”

[46] The Minister argues that the Tribunal failed to conduct an analysis consistent with section 64(1) of the Legislation Act, 2006 or the modern approach to statutory interpretation as set out in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at paras. 26‑27. These legal precepts required the tribunal to interpret the word “representing” in light of the purposes of the Act, including the purposes of accreditation, and then review the evidence to determine whether the NFU‑O meets the requirements.

[47] The Minister states that purpose of accreditation under the Act is to provide a stable source of funding to general farm organizations in Ontario so that that farmers will continue to have a voice in provincial agricultural policy development. While the Tribunal recognized in its Reasons for Decision that the “accreditation of farm organizations is central to this legislative scheme” (at p. 2), the Minister argues that the Tribunal focused on the monetary interests of farm organizations in being accredited rather than the broader public purposes of the Act.

[48] Furthermore, the Minister argues that the Tribunal’s conclusions on standing conflict with its own factual findings. The Tribunal accepted evidence that the NFU‑O had 2247 farm business registration members plus an additional 58 direct members. The Minister submits that the Tribunal’s conclusion that NFU‑O does not represent Ontario farmers is unreasonable in light of the fact that the Tribunal accepted evidence that the NFU‑O is comprised almost entirely of Ontario farmers who have purposefully chosen that organization as their representative under the Act. The Minister submits that the Tribunal’s decision was unreasonable because it applied criteria that are not prescribed in the legislation and went beyond the criteria set out in section 5 of the Regulation.

[49] The Tribunal submits that its interpretation is within the range of reasonable, acceptable interpretations because it read the words in their ordinary sense. The Tribunal’s interpretation not only gives the words of the provision meaning, but it also approaches section 4(1) in a logical and common sense way.

[50] Although all words in the Act have meaning and are not to be ignored, the words should equally not be used to imply a meaning that detracts from the overall purpose of the legislative scheme.

Conclusion on Standing

[51] I agree with the Applicant and the Intervenor that the Tribunal’s decision on the issue of standing was unreasonable. By giving section 4(1) a deeper significance than was required by the legislation, the Tribunal exercised a discretion that is not conferred on it by the Act. By elevating the significance of section 4(1), the Tribunal undermined the very purpose of the legislation as well as the purpose of the hearing process prescribed by the Act. In raising an issue of standing, the Tribunal allowed itself to bypass section 5 of the Act. The Tribunal’s decision confirms this. After devoting 27 pages of it decision on standing, the Tribunal had nothing to add in its analysis of the accreditation issue.

[52] The legislation is clear that the Tribunal has no discretion; if the enumerated criteria are satisfied, accreditation shall be given. The identification of the substantive criteria for accreditation falls solely within the jurisdiction of the Lieutenant Governor in Council pursuant to section 33(1) 9 of the Act. By expanding on the meaning of “represents”, the Tribunal granted itself a jurisdiction to consider criteria that are not found anywhere in the Act.

[53] As noted in Mills and Khosa, the reasonableness analysis is contextual. In a 2013 article, Justice Evans explains the reasonableness standard as it relates to a “range of defensible outcomes”. Justice Evans states:

[W]hether a decision is reasonable depends on the statutory scope of the decision-maker’s range of choice. The narrower the range, the easier it will be to prove that the decision fell out-side the range of possible decisions… An assessment of the scope of the range of decisions reasonably open to an administrative decision-maker must ultimately be based on an interpretation of the statute… it is generally more difficult to persuade a court that a tribunal unreasonably exercised a broad discretion… or made unreasonable findings of fact, than that its interpretation of the enabling statute was unreasonable… The ease or difficulty of proving unreasonableness may also depend on the seriousness of the impact that an administrative decision is likely to have an on individual.

(The Hon. Justice John M. Evans (Federal Court of Appeal), “Standards of Review in Administrative Law” (2013) 26 Can. J. Admin. L. & Prac. 67 at 77.)

[54] In this case, the Tribunal’s discretion was narrow, and the impact on the NFU‑O is significant. For 10 years the Tribunal has accepted that the Applicant is an organization representing farmers in the province and did not, in the decision under review, identify any change in circumstances that warranted a change in this finding. The Tribunal erred in requiring that the organization be exclusively devoted to representing farmers in the province and in focussing critically on the Applicant’s affiliation with a national organization. These are not prescribed criteria. These new restrictions do not serve the statutory purposes and are not authorized by the Act.

The Application For Accreditation

[55] The NFU‑O highlights that the legislative purpose behind the Act was to decide accreditation, not to have the Tribunal raise questions of its own initiative. It refers to the evidence of Ms. Louise Stratford, Director, Legal Services for the Ministry of Agriculture and Food in explaining the role of the Tribunal to the Standing Committee on Resources Development during the Committee’s review of the Act. Ms. Stratford explained that:

Those people will be making findings on some very important matters, but within, I suggest, some quite narrow confines in terms of issues that they'll be looking at when you consider what they'll be deciding.

They'll be deciding accreditation. How will they be deciding that? They'll be looking at a set of criteria and they will be asking themselves, "Are these criteria met or not?" If the answer is yes, they are told to grant the accreditation. If the answer is no, they are told not to. There is no residual discretion to ask themselves other questions. The issues are narrow.

(Ontario, Legislative Assembly of Ontario, Standing Committee on Resources Development, hearing on Bill 42, Farm Registration and Farm Organizations Funding Act, 1993, 35th Parliament, 3rd Session, 35th Parliament, (2 September, 1993), at 1150.)

[56] In support of its application for accreditation, NFU‑O provided the Tribunal with its by‑laws. Pursuant to those by‑laws the stated objects of the organization are as follows:

3. Objects:

The Objects of the Organization shall be: to represent persons carrying on farming businesses in Ontario, so as:

1. to promote the betterment of farmers in the attainment of their economic and social goals;
2. to conduct projects for the benefit of farmers in the development of markets for and marketing of farm products;
3. to achieve the reduction of costs and other measures designated to increase the economic benefits of farming;
4. to conduct educational and research projects for the benefit of farmers;
5. to promote and secure legislation and other forms of government action for the benefit of farmers;
6. to promote a higher standard of community life in agriculture; and
7. to provide services for its members consistent with its objects and to work jointly with any other persons or organizations for the attainment of its objects.

[57] The Applicant that maintains that these stated objectives are sufficient and the Tribunal did not have to go behind its by‑laws given its history of accreditation and the fact that the Minister supported the Application for accreditation.

[58] The Minister argues that the Tribunal considered factors that are not among the prescribed criteria for accreditation applications. The Tribunal considered:

• the corporate structure of both the NFU and the NFU‑O;
• the circumstances of the NFU‑O’s incorporation in 2002;
• the roles and functions of corporate officers of each organization;
• legal agreements between the two organizations;
• financial statements of the NFU; and
• the manner in which annual general meetings are conducted.

[59] The Minister submits that none of these factors have ever been included in the prescribed criteria for accreditation under the Act and there is nothing in the Act or the Regulation which authorizes or requires the Tribunal to investigate or make findings in relation to these factors. This is particularly true with respect to the Tribunal’s specific inquiries and findings relating to the NFU, which was not a party to the application before the Tribunal. There is nothing in the Act that precludes an accredited organization from being affiliated with a national organization. Nothing in the Act requires that an organization’s mandate be exclusively devoted to representing farmers in the province.

[60] The Minister notes that since 2002, the NFU‑O has made several applications for accreditation before the same Tribunal, and on each occasion has been found to meet the criteria currently listed at sections 5(1) 3 and 5(1) 4 of the Regulation. This has been the case even as late as May 2012 and even on applications where the NFU‑O had, for other reasons, not been granted accreditation.

[61] The Minister acknowledges that as a matter of law, the Tribunal is not bound by its own previous decisions however, the Tribunal’s consideration of unauthorized criteria has the effect of creating the very type of financial uncertainty that the Act was intended to eliminate.

[62] The Tribunal argues that its finding that the NFU‑O did not meet two of the criteria of section 5(1) of the Regulation is also reasonable. The Tribunal submits that this decision was based on detailed oral and documentary evidence that was adduced over the course of two days of hearing.

[63] In regard to criteria number three contained in section 5(1) of the Regulation, the Tribunal concluded that NFU‑O’s stated purpose was not sufficient to pass the statutory test when it appeared from the evidence that there may be another purpose for the organization, i.e. to allow the NFU to access stable funding under the Act.

[64] In addition, the Tribunal adds that the NFU‑O refused to answer certain questions and produce certain documents in relation to its relationship with the NFU. The Tribunal submits that it was appropriate for it to draw adverse inferences from these refusals, particularly given its warnings to counsel for the NFU‑O about the consequences of these refusals.

Analysis and Conclusion

[65] Even though the Act does not preclude an accredited organization from having an affiliation with a national organization, the Tribunal regarded the relationship between the NFU and the NFU‑O as pivotal and characterized it in negative terms. The Tribunal found that the NFU‑O is “shackled to” and “completely dominated” by the NFU and the NFU Region 3. In its Reasons for Decision, the Tribunal frequently refers to the NFU, NFU Region 3 and the NFU‑O as if they are discrete entities. The Tribunal constructed a false dichotomy between the NFU‑O on one hand and the NFU/NFU Region 3 on the other, implying that the latter were engaged in some improper purpose and taking advantage of the former to accomplish it.

[66] At the same time, the Tribunal accepted that every member of the NFU‑O is also a member of the NFU, and also accepted that the membership lists of NFU Region 3 (Ontario) and the NFU‑O are identical. The figures suggest that a large proportion, if not an outright majority, of NFU members are in fact Ontario farmers.

[67] Although the organizations’ paperwork could be more clear in delineating which affiliated organization is being represented by which individuals on each occasion, there was ample evidence before the Tribunal that the Ontario members of both NFU‑O and NFU Region 3 provide advice to Ontario government bodies with respect to agricultural issues as required by criteria number four. The Tribunal’s finding that the NFU‑O does not provide such advice was based solely on the fact that the NFU is a separate entity from the NFU‑O. The Tribunal’s approach was not reasonable given that affiliations with national organizations are not precluded by the Act. The Tribunal recognized this argument and considered that such an affiliation would be acceptable if these organizations were “bottom up” as opposed to “top down”. The Tribunal focused on organizational structure rather than determining whether the interests of Ontario farmers were being served.

[68] The accreditation criteria do not restrict an organization’s activities to Ontario. Criteria number four in section 5(1) if the Act refers to governments:

It provides advice and analysis to governments, administrative tribunals or advisory bodies concerning agricultural issues and the development of programs or policies that are of interest to persons carrying on farming businesses. [Emphasis added.]

[69] The evidence disclosed no attempt by the NFU‑O to misrepresent to the Tribunal its membership, its organizational structure, or its close affiliation with the NFU. The NFU-O’s witness testified that, from the outset, “[t]he NFU's members in Ontario were not looking to become a different organization. Rather, the NFU was seeking stable funding under the Act and required a provincial corporation to meet the requirements for accreditation under the Act”: Reasons for Decision, at p. 25. The NFU‑O’s letters of patent and by‑laws require dual membership. The NFU‑O membership application form states that by joining NFU‑O by way of the farm business registration, a farm business automatically becomes a member of the NFU. The membership application form’s description of the subjects on which it advocates includes subjects that are within the jurisdiction of the provincial government and its agencies, as well as those within the jurisdiction of the federal government and its agencies. Thus, the national affiliation is a selling point used to attract members.

[70] I agree with the Minister’s submission that the accreditation of an organization representing farmers was never meant to constrain how its members might choose to engage government or how they chose to have their views best represented.

[71] The statutory purpose of requiring Ontario incorporation of the organization is to impose on the organization the requirements such as those under the Corporations Act, R.S.O. 1990, c. C.38, ss. 119, 133 that are applicable to corporations without share capital, including the requirements that it have its Head Office in Ontario and that it produce annual audited financial statements. I agree that this requirement for Ontario incorporation was not intended to restrict the members’ advocacy of their interests.

[72] Prior to the amendment to the Regulation, the criteria contained prescriptive details about how organizations would represent Ontario farmers. In particular, one criterion required an applicant to have at least 250 members who carry on a farming business in Ontario; another required a majority of the applicant’s members to have a current farming business registration under the Act; and another required the applicant to have at least 12 local affiliates each of which represents members carrying on farming businesses in a different area of Ontario. These particular criteria (the “Representation Criteria”) and others, were revoked on November 22, 2012 and were not applicable at the time of the Tribunal’s decision.

[73] There is nothing in the enumerated criteria that prevents an organization representing farmers in Ontario from being affiliated with a national organization, whether it is “bottom up” or “top down” or “active” as opposed to “passive”. The 2247 members of the NFU‑O have accepted the affiliation with the NFU and have chosen the NFU‑O to represent them. The NFU‑O’s corporate objects are to represent farmers in Ontario. There is no evidence that the members have been misled or are unaware of the role of the national organization. No one opposed the NFU‑O’s application for accreditation. The only intervenor was the Minister who supported the application for accreditation.

[74] There is nothing in the enumerated criteria that prevents the NFU‑O relying on the national organization to provide analysis to governments. Moreover, there was ample evidence that Ontario members were involved in developing and making these representations.

[75] The new restrictions imposed by the Tribunal do not serve the statutory purposes and the decision on accreditation is not reasonable.

The Appropriate Remedy

[76] Both the Applicant and the Intervenor argue that the appropriate remedy is an order in the nature of mandamus directing the Tribunal to accredit the NFU‑O. They both cite the matter of urgency. The Tribunal submits that if I should conclude the Tribunal’s decision was unreasonable, that the matter should be referred back to a different panel of the Tribunal.

Legislation

[77] Pursuant to subsection 2 (1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Court has jurisdiction to grant any relief that an applicant would be entitled to in: (1) proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari, or (2) proceedings by way of an action for a declaration or for an injunction or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

The Legal Test

[78] The eight‑step test to determine whether an award of mandamus can be made was set out by the Federal Court of Appeal, affirmed by the Supreme Court of Canada, 1994 47 (SCC), [1994] 3 S.C.R. 1100 in Apotex Inc. v. Canada (Attorney General)(1993), 1993 3004 (FCA), [1994] 1 F.C. 742 (C.A.) at para. 45:

1. There must be a public legal duty to act:

2. The duty must be owed to the applicant:

3. There is a clear right to performance of that duty, in particular:

(a) the applicant has satisfied all conditions precedent giving rise to the duty;

(b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay;

4. Where the duty sought to be enforced is discretionary, the following rules apply:

(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair", "oppressive" or demonstrate "flagrant impropriety" or "bad faith";

(b) mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or "unfettered";

(c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations;

(d) mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way; and

(e) mandamus is only available when the decision-maker's discretion is "spent"; i.e., the applicant has a vested right to the performance of the duty.

5. No other adequate remedy is available to the applicant.

6. The order sought will be of some practical value or effect.

7. The Court in the exercise of its discretion finds no equitable bar to the relief sought.

8. On a "balance of convenience" an order in the nature of mandamus should (or should not) issue.

[Citations and footnotes omitted.]

[79] This test has been adopted and applied by all levels of court throughout Canada. The Applicant submits that the record supports the conclusion that it satisfies all the applicable criteria for accreditation. Furthermore, NFU‑O maintains that it would be inefficient to require the NFU‑O to re‑apply for accreditation when the evidence before this Court clearly demonstrates an entitlement to accreditation.

[80] The Minister agrees and submits that had the Tribunal not erred, the proper application of the prescribed criteria could only have resulted in a decision granting accreditation. Section 6 of the Act does not grant the Tribunal any discretion to decide otherwise.

[81] There is a public duty to act in this case and the duty was owed to the Applicant. Having concluded that the Tribunal relied on irrelevant criteria in denying the Applicant standing to apply for accreditation, there is a clear right on the part of the NFU‑O to accreditation as has been recognized since 2002. There was no discretion on the part of the Tribunal to deny accreditation so long as the Applicant has satisfied the five prescribed criteria as I have concluded it had done. There is no other adequate remedy available to the Applicant. Because of the delay in dealing with the NFU‑O’s application in 2012, the NFU‑O’s name did not appear on the 2013 registration forms and the NFU‑O received very little revenue for this calendar year. If accreditation is denied, the NFU‑O will not receive funding for a second year and will not be able to continue to operate. There is no equitable bar to the relief sought and, on a balance of convenience, an order in the nature of mandamus directing the Tribunal to accredit the NFU‑O should be issued.

Mr. Justice Robert N. Beaudoin

Released: October 16, 2013

COURT FILE NO.: 13-1934
DATE: 2013/10/16

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

NATIONAL FARMERS UNION – ONTARIO
Applicant

– and –

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
Respondent

REASONS FOR decision

Beaudoin J.

Released: October 16, 2013