In This Section |
Normal Farm Practices Protection Board
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| Author: |
OMAFRA Staff |
|---|---|
| Creation Date: |
07 February 2003 |
| Last Reviewed: | 28 June 2007 |
The Rules of Practice and Procedure are established by the Normal Farm Practices Protection Board (NFPPB) under section 25.1(1) of the Statutory Powers Procedure Act, to govern hearing proceedings before the Board.
Mediation Protocol: Before a matter is brought to the Board for a hearing under the Farming and Food Production Protection Act, it must have proceeded (unsuccessfully) through the Farm Practices Conflict Resolution Process established for NFPPB cases by the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA). This is addressed in Rule 65. (For further information on the conflict resolution process, please contact the OMAFRA Agricultural Information Contact Centre at 1-877-424-1300.)
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The intent of these Rules is to provide a fair, open and understandable process to facilitate and enhance public participation, to increase the efficiency and timeliness of proceedings and avoid unnecessary length and delay, and to assist the Board in fulfilling its statutory mandate.
1. In these rules:
(1) "Applicant" means a person who has by notice required a hearing by the Board under the Farming and Food Production Protection Act;
(2) "Board" includes a panel or individual member of the Normal Farm Practices Protection Board;
(3) "Document', in addition to written documentation, (i.e., letters, maps, charts, graphs, plans, etc.) includes videotapes, films, photographs, and other information recorded or stored by means of any device;
(4) "Fax" means telephone transmission of a facsimile of a document;
(5) "Hearing" is the proceeding before the Board for which a notice of hearing has been given;
(6) "Interrogatory" means a question posed in writing by one party to another seeking facts or information relevant to the hearing or seeking clarification or explanation of issues or of material provided by the party to whom the interrogatory is addressed;
(7) "Motion" includes an application for a stay or an interim stay of an order or decision of the Board;
(8) "Party" means the applicant who has required a hearing under the Farming and Food Production Protection Act, an agricultural operator whose operation is subject to the hearing, a municipality with a direct interest in the result of the hearing, and any person or unincorporated group of persons specified by the Board as having an interest in the proceedings;
(9) "Person" means a person as defined in the Statutory Powers Procedure Act and the Interpretation Act.
(10) "Record" includes the applicant's notice requiring a hearing, the order or decision being challenged, and supporting documents, notices of hearing, memoranda of agreement, any interrogatories, answers to interrogatories and witness statements that have been filed, notices of motion, affidavits filed in support of Motions, Board orders, transcripts, exhibits, and the Board's decision.
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(2) Those persons who are to receive notice of a hearing shall
include all those entitled to receive notice under sub-sections
6(9) or 7(7) of the Farming and Food Production Protection
Act.
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(2) The cost of giving notice of a pre-hearing conference and
the hearing shall be borne by the Board unless the Board otherwise
directs.
(3) The cost of giving notice of a motion shall be borne by the
person bringing the motion unless the Board otherwise directs.
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(1) Notice of all hearings held shall be given at least twenty-one
days before the hearing is to commence, unless otherwise directed
by the Board, to all other parties.
(2) A person bringing a motion shall give notice of the motion
to all other parties at least seven days before the hearing of
the motion is to commence, unless otherwise directed by the Board.
(3) The applicant, or if so directed by the Board, shall give
notice of a pre-hearing conference or settlement conference
to all other parties and to any other person the Board directs
at least seven days before the conference is to commence.
(3) If the party to be notified or served is represented by a lawyer, the notice or document shall be given to the lawyer rather than his or her client.
(4) (a) In addition, where the Board considers it appropriate
that the public be informed, the Board or the Board Secretary
may require a public notice to be issued in such manner as is
appropriate in the circumstances. This will usually be by publication
on at least one occasion in a newspaper having general circulation
in the locality of the property which constitutes the subject-matter
of the notice requiring a hearing.
(b) the public notice shall be published both in English and French
in those areas of the Province designated as bilingual.
(5) No document longer than ten pages may be served on the Board
or filed with the Board by fax without the prior consent
of the Board Secretary, Chair, or Vice-Chair.
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Where notice of a motion, pre-hearing conference, or hearing has been given in accordance with these Rules and statutory requirements and a party does not attend the hearing of the motion, pre-hearing conference, or hearing, the Board may proceed in that party's absence and that party is not entitled to any further notice of that portion of the proceedings, unless the Board otherwise directs.
Motions may be made by the applicant and the agricultural operator and by any other person seeking to become a party prior to the commencement of the hearing and thereafter by any party, or with the Board's permission, by another person.
Except for motions to be heard at a hearing, before a notice of motion is served an appointment shall first be obtained from the Board for hearing the motion.
The Board, in hearing a motion, may permit oral evidence in addition to or instead of any affidavit or other supporting material accompanying the notice of motion. Any person wishing to adduce oral evidence on a motion shall satisfy the Board that this is necessary and will not prejudice any party, shall obtain the Board's permission, and shall arrange at his or her own expense for the presence of a court reporter. In deciding whether to give permission, the board may take into consideration any cost or inconvenience to the Board.
Any party wishing to depart from the procedures for motions specified by these Rules shall, at the earliest opportunity available, obtain the Board's leave to do so. Leave shall be sought either during the course of an already scheduled appearance before the Board at which all other parties are present, by written notice of motion, or by way of a telephone conference call with the Board or the Board Secretary and all other parties to the hearing. At the time leave is sought the other parties shall have an opportunity to make submissions regarding the propriety of the request and the need for the Board to impose terms and conditions in the event leave is granted in whole or in part.
Any affidavits filed in response to a motion shall be served and filed at least two days prior to the hearing of the motion, except where leave for an abridgment of the time has been granted pursuant to Rule 19.
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Where all parties and the member or panel before whom the motion is to be heard consent, or in urgent circumstances without the consent of all parties, the motion may be heard by means of a conference telephone call
(1) A date for a hearing, pre-hearing conference, settlement
conference or motion that has been fixed by the Board with
the agreement of all parties or counsel for the parties will be
considered peremptory to all consenting parties and counsel will
be considered to have committed themselves to be present on the
date fixed and to have undertaken to make no other commitments
that will render their attendance impossible.
(2) The Board may grant an adjournment during the course of the
hearing upon motion made orally and may add such terms and conditions
as the Board may deem appropriate.
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for any other purpose that the Board deems appropriate.
Whoever attends a pre-hearing conference on behalf of the parties or persons seeking party status must be authorized to take positions on and make decisions regarding the matters listed in Rule 23 and must be authorized to enter into a memorandum of agreement setting out the results of the conference.
Issues raised at a pre-hearing or settlement conference may be determined by the parties or their counsel signing a memorandum of agreement setting out the results of the conference or by the Board making an order, and the memorandum or order binds the parties to the memorandum or order unless the member or panel conducting the hearing orders otherwise to prevent injustice.
No communication shall be made to the member or panel presiding at the hearing or a motion with respect to any statement made at a settlement conference, except as disclosed in the memorandum or order under Rule 25.
A member who conducts a pre-hearing or settlement conference shall not participate in the hearing without the consent of all parties to the hearing.
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(1) The Board may order that interrogatories be exchanged among
the parties.
(2) When interrogatories and answers to interrogatories are ordered,
the parties upon which each party is to serve such interrogatories
and answers and the dates by which they are to be served
shall be determined by the Board.
serve a copy of the answers within the time limit and upon the parties as directed by the Board.
(5) Where a party is not satisfied with the responses given, the party may file a motion to have the matter settled by the Board.
(6) Where answers to interrogatories directed to the applicant are not served within the time ordered or do not answer the questions of the party submitting the interrogatories, a motion may be brought to compel a response or to dismiss the appeal and the Board may take any steps or make any order as is just.
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(1) The Board may, on its own initiative or at the request of
any party,order that witness statements be exchanged among the
parties and filed with the Board.
(2) When witness statements are ordered, the dates and parties
upon which each party is to serve such witness statements shall
be determined by the Board.
(2) A formal report prepared by the witness for the purpose of the hearing may be utilized as a witness statement, provided that the required information is contained therein or supplied by way of addendum.
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(1) The Board may order any party to provide such further information,
particulars or documents as the Board considers necessary for
a full understanding of the issues.
(2) The Board of the Board Secretary may require that any list
of documents, interrogatory, answer to an interrogatory, witness
statement or other information, particulars or documents provided
by the parties to each other be filed if in the Board's opinion
this is necessary for the fair, efficient, or timely disposition
of any portion of the proceedings.
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(2) Nothing herein shall preclude the presentation of submissions
or evidence in either the French or English languages.
(3) Where a hearing is to be conducted in the French language,
the notice of such hearing shall specify that the hearing is to
be so conducted and shall further specify that English may also
be used.
(4) Where a written submission or written evidence is provided
in either French or English, the Board may order any party or
person presenting such written submission or written evidence
to provide it in the other language if the Board considers it
necessary for the fair disposition of the matter.
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(1) Where it is brought to the Board's attention that a party
would prefer to give evidence in another language and to have
the evidence of others interpreted into that other language, a
witness would prefer to give evidence in another language, or
services are required to assist persons who are visually or hearing
impaired to participate in the proceedings, the Board may provide
such interpretation or other services at its own or the applicant's
expense.
(2) Prior to a notice of hearing being given, the Board may determine
that notice should be given in a language other than French or
English and may provide such notice at its own expense.
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(1) The Board shall maintain a record for each of its hearings
and pre-hearing conferences.
(2) One copy of the record shall be maintained and shall be available
upon reasonable time requests for perusal by any person during
normal business hours at the Board's office.
(3) A person may examine any document filed with the Board and
forming part of the public record and, upon payment of the Board's
fee, take copies of such document unless a statute, an order of
the court or an order of the Board provides otherwise.
(4) Subject to the Freedom of Information Act, the Board may order
that any document or part of a document filed with an application
or at a hearing or any transcript or oral evidence given in settlement
conferences or prehearing conferences is to be treated as confidential,
be sealed and not be subject to public disclosure.
(5) Any order under subrule (4) shall be made only after all interested
parties have had an opportunity to make submissions to the Board
in respect of the confidentiality claim.
(6) Any order under subrule (4) shall be made only if required
by statute or if the Board is satisfied that the person making
the claim will be substantially harmed if the document is not
treated as confidential, and the reasons for such an order shall
be provided, if a party so requests.
(1) The Board or any party to the proceeding may require that
a court reporter attend hearings, pre-hearing conferences and
motions of the Board. The Board Secretary or the party requiring
the attendance of the court reporter shall provide a copy of this
Rule to the said court reporter before the commencement of the
hearing.
(2) When a court reporter is required to attend by the Board or
a party the reporter shall record all testimony and argument.
(3) All transcripts and all electronic records requested by a
party to the proceedings shall be paid for by that party. If the
request is made by the Board the Board shall bear those costs.
(4) The recording of evidence and argument and the production
of transcripts thereof shall be done is accordance with Section
5 of the Evidence Act, RSO 1990 c. E.23, as amended and the Regulations
there under and Rule 4.09 of the Rules of Civil Procedure, as
amended from time to time, mutatis mutandis.
(5) Where a party orders a transcript of all or part of the proceedings
in an application, it shall provide one copy of the same to the
Board to be part of the Board's record pursuant to Section 20
of the Statutory Powers Procedure Act, RSO 1990 c. S.22, as amended
and one copy to any other party (as defined herein), as the case
may be, without charge.
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(1) Where the Board is satisfied with the authenticity of a copy
of a document or other material, it may be admitted as evidence
at a hearing.
(2)Copies of official or public documents or documents purporting
to be certified under the hand of the proper officer, or the person
in whose custody they are placed, shall be documents receivable
in evidence by the Board as prima facie proof of the original
without proof of the signature or official position of the person
appearing to have signed it.
(1) The Board may issue a summons to a witness on its own initiative
or upon request of a party.
(2) The Board may by summons require any person, including a party:
(3) Any summons issued shall be served personally on the person
summoned, and the person shall be paid the same fees and allowances
as a witness summoned to appear before the Ontario Court of Justice
(General Division). The fees and all allowances need not be paid
in advance, but must be paid before the witness testifies, if
requested.
(4) The summons may be in Form I or in any other form substantially
conveying the same information as that form.
Notwithstanding any time limits specified in the rules for motions, any party intending to bring a motion at a hearing shall do his or her best to give all other parties adequate opportunity to prepare for the hearing of the motion, including providing as much notice as possible and providing copies of cases and statutes relied on.
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(1) Unless the Board otherwise directs, at the beginning of each hearing, each party will give a brief opening statement that describes the issues that party will address at the hearing. The statement should include an outline of the evidence the party intends to call, a list of witnesses, the topics to be covered, and the amount of time required.
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Evidence at a hearing shall be presented by parties as the Board may direct and, in the absence of any such direction in the following order:
Witnesses who appear personally at a Board hearing shall be examined orally after affirming that their evidence will be true.
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The Board may, upon motion, order a witness or witnesses to be excluded from the hearing until called to give evidence.
(2) Any party may challenge the qualifications of a witness having technical or special knowledge, before or during the course of his or her testimony. However, it is not normally the Board's practice to hold a formal hearing to qualify a witness as an expert, provided that a degree of specialized knowledge is shown on the curriculum vitae.
(3) The Board, in its discretion, will determine the weight to be given each witness' testimony and the witness' qualifications and experience will be a factor in determining the weight to be given such testimony.
(1) any such request shall be made by motion to the Board as soon as practicable after the appointment of the hearing panel or at a pre-hearing conference if one is held, and otherwise as soon as practicable after the need for such a witness is recognized by the party;
(2) the Board must be satisfied that the proposed witness will be of assistance to the Board in understanding the issues before it;
(3) the Board shall decide who shall be appointed;
(4) the Board shall retain the right to settle all terms of any such appointment, including remuneration and the scope of any inquiry, and may direct that such witness:
(5) Any witness retained by the Board shall testify orally and
be subject to cross-examination.
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(1) The Board may permit evidence to be given by a number of
witnesses sitting as a panel, provided that the Board is satisfied
that in the particular case the tendering of evidence in this
manner will result in a full and fair hearing and is in the public
interest.
(2) Questions addressed to a witness panel may be directed to
specific members of the panel or to the panel in general.
(3) Where a question is directed to a specific member of a panel
and he or she asserts an inability to answer due to lack of knowledge
or qualifications, the Board may permit another member of the
panel to provide the answer.
The Board may receive and act upon any facts agreed upon by the parties without proof or evidence.
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Where any document or thing is filed as an exhibit, the Board may release the exhibit to any party at any time during or after the hearing on consent of the parties. In the absence of consent, the Board may return the exhibit to the party tendering it after the disposition of any appeal or, where an appeal is not taken, after the expiration of the time for appeal.
Any person having relevant testimony may, with the Board's permission, testify without becoming a party to the hearing or being called as a witness by a party.
(1) The Board prefers evidence to be given orally at the hearing
so that the evidence given may be tested by cross-examination.
However, where notice of a hearing has been given, any person
who does not wish to be a party to the hearing or testify but
who wishes to make his or her views regarding the hearing known
to the Board may file with the Board a written submission commenting
on the hearing, which describes the nature of the person's interest
in the hearing and states clearly his or her views regarding the
hearing, together with any relevant information that may be useful
in explaining or supporting those views.
(2) Before a written submission is made part of the record, the
Board shall make it available to all other parties to the hearing
and provide an opportunity for parties to comment on its relevance,
admissibility, and whether it would be unfair to make the submission
part of the record without an opportunity to cross-examine the
person making the written submission.
(3) The Board may take into account any such written submission
unless, after hearing submissions, it determines that accepting
it as evidence would unduly prejudice any party.
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The Board may, at its discretion, hold one or more evening sessions during the course of the hearing.
The Board may appoint and direct its own counsel to:
(1) advise the Board on matters of law and procedure and on such
other matters as the Board requests;
(2) conduct the examination-in-chief of Board-appointed witnesses
if the Board has retained such witnesses;
(3) cross-examine witnesses; and
(4) provide liaison with counsel acting on behalf of parties,
and parties that are unrepresented by counsel.
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(1) The Board may order the parties to submit written argument
in addition to, or instead of, oral argument.
(2) All parties shall be given an adequate opportunity to respond
to any written arguments and/or written submissions.
(3) In both written and oral argument, facts or quotations from
the oral evidence on which the argument is based are to be referenced
with the transcript volume and page number, if transcripts are
available and, if the fact or quotation is from documentation
filed as an exhibit, the exhibit number and page.
(4) Parties should, at the time of delivering argument, make known
to the Board any terms and conditions, that they would like the
Board to include to its order. Copies of draft terms and conditions,
should be distributed to other parties a sufficient time before
argument is delivered to allow them to be addressed in their argument.
Any Board Order is effective from the date upon which it is pronounced orally or upon which it is signed, whichever is earlier, unless the Board states otherwise.
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A party may make an application for a stay of the Board's decision immediately following the pronouncement of the decision at the end of the hearing for the purpose of an anticipated appeal to the Divisional Court. Thereafter, any application for a stay shall be made to the Divisional Court unless the Board determines that it is in a better position than the Divisional Court to determine the issues raised in the application.
After a decision or order has been issued, if the Board considers it advisable, the Board may review all or part of its decision or order, and may confirm, vary, suspend or cancel the decision or order. Such review shall take place within a reasonable time after the decision or order is made.
Within 35 days of the Board's direction, file written submissions on the Application for costs and serve each party against whom costs are sought, provided that, in addition to any other document the Board directs be provided, the documentation shall include:
Within 35 days of the Board's direction, file and serve a Notice of Motion for costs in accordance with the Board's Rules of Practice and Procedure. A Motion for costs shall proceed as an oral or electronic hearing as directed by the Board. If the Board directs the party or parties to bring a Motion for costs the Notice of Motion must contain the following information, in addition to such other information that the Board directs:
(3) Where the Board directs a proceeding in writing in accordance
with Rule 66 (3) (ii) or (iii), the party or parties against whom
the Motion is made shall provide a written response to the Board
and the other parties to whom the request for costs related within
15 days of service of the documentation from the party requesting
costs.
(4) Where the Board directs a proceeding in accordance with Rule
66 (3) (ii) or (iii), the party requesting costs may provide to
the Board and to other parties to whom the request for costs relates,
a reply to a written response within 10 days of the date of service
of the response.
(5) The Member who conducted the hearing on the merits will make
the decision on the request for costs. If that Member is, for
any reason, unable to hear the Motion, the Chair will direct another
Member to hear the Motion.
(6) The Board may make a costs award for conduct at any time during
a proceeding.
(7) The Board may deny or grant the request or award a different
amount.
(8) Clearly unreasonable, frivolous, vexatious, or bad faith conduct
can include, but is not limited to:
(9) The Board will consider the seriousness of the misconduct.
If a party requesting costs has also conducted itself in an unreasonable
manner, the Board may decide to reduce the amount awarded; the
quantum of costs awarded shall be in the discretion of the Board.
In determining the quantum the Board may take into consideration
the concept of partial and substantial indemnity, and the Rules
and Regulations regarding the quantum of costs awarded in the
Ontario Superior Court of Justice.
(10) Awards of costs will bear interest at the post-judgment interest
rate as determined under Section 129 of the Courts of Justice
Act.
Amended June 21, 2007
……………………………………………………………
Glenn C. Walker, Chair
First established December 19, 1991
First amendment October 13, 1998
Second amendment February 28, 2001
Third amendment March 3, 2003
Fourth amendment February 14, 2005
Fifth amendment May 11, 2007
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