Agriculture, Food and Rural Affairs Appeal Tribunal Board of Negotiation Annual Report 2009-10
Table of Contents
I am pleased to present the Annual Report of the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) and the Board of Negotiation (BON) for the year ending March 31, 2010. The report focuses on the Tribunal's achievements for the year.
The Tribunal continues to serve as the adjudicative body for those who feel they have been aggrieved by decisions made under various pieces of legislation under the Ontario Ministry of Agriculture, Food and Rural Affairs. The BON serves as the body that negotiates settlements between parties under certain provisions of the Environmental Protection Act.
The Tribunal continues to work hard to carry out its adjudicative mandate and achieve its goals. We recognize the need to provide a fair and effective appeal mechanism to clients who come before us, and have endeavoured to meet clients' needs and expectations in the past year. No matters were brought to the BON in 2009-10.
In February 2010, the Tribunal held a meeting with Amish and Mennonite Bishops. This meeting is held every three or four years as a means to recognize Bishops, who are then able to sign in support of a congregation members' application for a religious exemption under the Farm Registration and Farm Organizations Funding Act, 1993.
The Tribunal continues to use a client survey to obtain feedback on its services. The survey is conducted annually among individuals and organizations who participated in proceedings before the Tribunal during the fiscal year. The results of the survey will assist the Tribunal in the delivery of its services and to evaluate the Tribunal's performance. I am pleased that the ratings provided by clients in key areas of service remain at high levels.
On behalf of the Tribunal members, I continue to look forward to the challenges ahead and to serving the agriculture and food sectors, as well as rural communities, throughout Ontario.
The Agriculture, Food & Rural Affairs Appeal Tribunal (Tribunal) is an amalgamation of the Farm Products Appeal Tribunal, the Farm Organizations Accreditation Tribunal, the Ontario Drainage Tribunal, the Crop Insurance Appeal Board, the Farm Tax Rebate Appeal Board and the appeal functions of the Farm Implements Board. Most Tribunal members also serve on the Board of Negotiation (BON) established under the Environmental Protection Act.
The mandate of the Tribunal is to provide citizens one place to file their appeals and applications on agricultural issues and have them heard by an impartial and knowledgeable Tribunal. The Tribunal is part of a regulatory process where decisions made by other bodies can be appealed, and where justice can be rendered after a proper hearing. It is an accessible venue that allows due process to occur.
The mandate of the BON is to negotiate a fair settlement of a claim where a contaminant is causing or has caused injury or damage to livestock or to crops, trees or other vegetation. Where a claimant has requested an investigation by the Minister of the Environment and a report is filed, and where the claimant and the person responsible for the injury or damage are not able to reach a settlement of the claim, either party may refer the matter to the BON for settlement. Settlements negotiated by the BON are non-binding.
The Tribunal's hearing room and offices are located in the Government Building at One Stone Road West, Guelph. The Tribunal also conducts hearings throughout Ontario, as necessary, to improve its accessibility to all parties that appear before it.
Provide to anyone affected by Agriculture, Food and Rural Affairs legislation who is aggrieved by a direction, policy, order or a decision, a fair and responsible appeal and decision process.
The Tribunal values:
Constituted under Section 14 of the Ministry of Agriculture, Food and Rural Affairs Act, the Tribunal provides an independent, accessible avenue of appeal in a variety of matters under the following provincial statutes: Agricultural Tile Drainage Installation Act, the Animals For Research Act, the Animal Health Act, 2009, the Assessment Act, the Beef Cattle Marketing Act, the Commodity Board Members Act, the Crop Insurance Act (Ontario), 1996, the Drainage Act, the Farm Implements Act, the Farm Registration and Farm Organizations Funding Act, 1993, the Food Safety and Quality Act, 2001, the Grains Act, the Livestock Community Sales Act, the Livestock and Livestock Products Act, the Livestock Medicines Act, the Livestock, Poultry and Honeybee Protection Act, and the Ministry of Agriculture, Food and Rural Affairs Act (for appeals of decisions made under the Farm Products Marketing Act and Milk Act).
Some members of the Tribunal are appointed to a special roster of members who may hear complaints and applications under the Agricultural Employees Protection Act, 2002.
What Can Be Appealed To the Agriculture, Food and Rural Affairs Appeal Tribunal?
Any order, direction, decision or policy of the local marketing boards, a Director, or the Ontario Farm Products Marketing Commission under the Farm Products Marketing Act or the Milk Act may be appealed to the Tribunal. Regulations of commodity boards may be appealed to the Tribunal; however, regulations made by the Ontario Farm Products Marketing Commission cannot be directly appealed.
A producer or commodity board who is of the opinion that a member of the commodity board has contravened the Commodity Board Members Act may apply to the Tribunal to determine whether or not the member has contravened the Act.
A decision that results in the refusal to issue a licence, the refusal to renew a licence, the suspension or revocation of a licence issued under the Agricultural Tile Drainage Installation Act, the Animals For Research Act, the Animal Health Act, 2009, the Grains Act, the Food Safety and Quality Act, 2001, the Livestock and Livestock Products Act, and the Livestock Medicines Act can be appealed to the Tribunal. Under the Beef Cattle Marketing Act, the Tribunal can hear appeals from decisions of a Director to not include or remove plants from a list of plants that comply with the Act and regulations.
Under the Drainage Act the Tribunal's jurisdiction ranges from complaints about assessment and allowances, to requests for modification of the drainage works including complaints of quality of construction and directing a municipal council to proceed with drainage works after a petition for drainage has been filed. Its powers relate more to the operational or remedial provisions of the Act.
Under the Farm Registration and Farm Organizations Funding Act, 1993, the Tribunal accredits general farm organizations; determines the eligibility of a Francophone farm organization to receive special funding, and decides on applications for exemption from registration and/or payment as required by the Act where individuals or farm businesses object to payment and/or registration because these actions would be in contravention of their genuinely held religious convictions and beliefs.
Under the Assessment Act, the Tribunal hears appeals regarding the eligibility of agricultural properties for the farm property class designation.
Under the Crop Insurance Act (Ontario), 1996, the Tribunal has the mandate to resolve all disputes arising out of the adjustment of loss under contracts of insurance between AgriCorp and an insured person, provided the person has filed an appeal within the time allowed. It can also rule on whether or not a person qualifies for a contract of insurance, if AgriCorp has denied coverage.
The Tribunal hears applications and appeals arising out of the application of the Farm Implements Act. Applications may arise from disputes between manufacturers or distributors and dealers of farm equipment, or between an end buyer and a dealer, distributor, or manufacturer. Appeals may arise from a decision of a Director related to the registration of a dealer or distributor.
Under the Livestock, Poultry and Honeybee Protection Act the Tribunal may be called upon to determine the cause of predator damage to livestock and poultry (wolf or non-wolf).
The Tribunal has the authority to hear complaints and applications under the Agricultural Employees Protection Act, 2002. These may involve requests for access to employees on properties controlled by the employer or complaints regarding non-compliance with the Act.
Who Can Appeal
An appellant can be a landowner, a producer, a processor, a consumer, an employee, a transporter, a dealer, a manufacturer, a distributor, an unincorporated association or any other person or group of individuals who has a statutory right to appeal or make application to the Tribunal.
Powers of the Minister
Within 30 days after receipt by the Minister of a decision of the Tribunal made under the Farm Products Marketing Act or the Milk Act and the reasons therefore, if any, or within such longer period as may be determined by the Minister within such 30-day period, the Minister may:
Powers of the Courts
Decisions of the Tribunal with respect to licensing issues under the Agricultural Tile Drainage Installation Act, the Animals For Research Act, the Beef Cattle Marketing Act, the Grains Act, the Livestock Community Sales Act, the Livestock and Livestock Products Act and the Livestock Medicines Act may be appealed to the Superior Court of Justice (Divisional Court) in accordance with the rules of the Court. Decisions of the Tribunal under the Assessment Act and the Farm Implements Act may be appealed to Divisional Court on matters of law. All decisions of the Tribunal may be subject to judicial review.
Ministry of Agriculture, Food and Rural Affairs Act (Appeals of Decisions made under Farm Products Marketing Act or Milk Act)
In 2009-10, the Tribunal completed a total of ten hearings and eight pre-hearing conferences under the Farm Products Marketing Act and/or the Milk Act. Of the ten hearings held, the Tribunal denied six appeals, granted one appeal, and granted two appeals in part. One decision will be released in the next fiscal year.
The Tribunal received requests for a review of two decisions made under these statutes in 2009-10. Both requests were denied.
Number of decisions by commodity is as follows:
Crop Insurance Act (Ontario), 1996
In 2009-10 the Tribunal heard one appeal from a decision of AgriCorp to deny a producer's claim of insurance on a crop of processing peas. The Tribunal denied the producer's appeal thereby upholding AgriCorp's decision with respect to the denial of the claim.
Number of appeals of claim adjustments, by commodity, is as follows:
Farm Registration and Farm Organizations Funding Act, 1993
The Farm Registration and Farm Organizations Funding Act, 1993 established a system which provides general farm organizations with a reliable source of funding. Under the Act, farm businesses with a gross farm income of $7,000 per annum or higher are required to register and to direct an annual registration fee to a farm organization that is accredited under the Act. Provision is made for individuals to be granted exemptions from registering and/or making payment under the Act on the basis of religious beliefs and convictions.
The Tribunal received 114 applications for religious exemption under the Act in 2009-10. Each valid application was forwarded to the accredited farm organizations and reviewed by the Tribunal. When, after review of an application, it is not clear to the Tribunal that the application was based on a genuinely held religious belief or conviction, the Tribunal schedules a hearing. The Tribunal also holds a hearing if there is an objection by one of the accredited farm organizations. One hearing was heard in 2009-10 with the decision released in the next fiscal year.
In 2009-10, the Tribunal granted a total of 106 religious exemptions - 102 exemptions from both registering and paying the prescribed fee, and four exemptions from paying the fee only. No applications were received for exemption only from registering a farm business. The Tribunal did not consider seven applications as the applicants were not required to register their farm businesses or pay the prescribed fee since their businesses did not meet the $7,000 per annum income threshold.
In February, 2010 a panel of Tribunal members met with Amish and Mennonite bishops in order to recognize Bishops from various congregations. Once recognized by the Tribunal, these Bishops are able to sign in support of an application for a religious exemption for consideration by the Tribunal. This periodic meeting with Bishops facilitates the expeditious consideration of applications for religious exemptions from registering farm businesses and/or paying a prescribed fee.
The Tribunal provides a readily accessible forum for appeals and applications under the Drainage Act. Tribunal hearings are held throughout Ontario, usually in the municipal office of the municipality where the appeal is filed.
The Tribunal held six hearings and considered one application in 2009-10. One of the hearings involved a number of appeals to a significant drainage project to be undertaken in the Holland Marsh area which required four days of hearings to complete. The Tribunal also received two requests for review of a decision which were denied. Seven additional appeals received by the Tribunal were subsequently withdrawn during 2009-10.
The Tribunal's practice is to hold a single hearing for all appeals made with respect to a single drainage works. Typically, there is more than one appellant on drainage appeals.
Summary of appeal types heard is listed below:
Agricultural Employees Protection Act, 2002
In 2006-07 the Tribunal received its first complaint under the Agricultural Employees Protection Act, 2002 (AEPA). A pre-hearing conference was held to deal with several issues raised by the parties. Two parties to the appeal subsequently took the Tribunal's decisions to the Divisional Court for judicial review. The Divisional Court rendered its decision in early 2008. The Union applicant then sought leave to appeal the Divisional Court's finding that there was no reasonable apprehension of bias on the part of the Tribunal. The Ontario Court of Appeal granted the Union leave to appeal. In order to remove any potential concerns around the matter of apprehension of bias, in 2009 the Tribunal reconstituted the panel to hear the matter. A settlement was reached with the Union applicant and the appeal to the Court of Appeal was withdrawn. Whether the complainants wish to proceed with a hearing is dependent upon a number of factors, including the outcome of a challenge to the Supreme Court of Canada regarding the AEPA.
The Tribunal hears appeals referred to it by the Assessment Review Board regarding the eligibility of properties for the farm property class tax rate. Properties which receive the farm property class are assessed at 25% of the residential tax rate.
In 2009-10, the Tribunal heard 37 farm property class appeals over four and a half days. The farm property class was granted 25 times and denied 11 times. For one appeal, only an interim decision was released by the end of the fiscal year. The Tribunal received two requests for reviews of decisions that were made. One request was denied and the other request was granted resulting in a new hearing for the appellant in which his appeal was then granted.
Farm Implements Act
The Tribunal held two hearings under this statute in 2009-10. One hearing, held over five days, dealt with three pieces of farm equipment. The Tribunal decided in favour of the applicant for one piece of equipment but denied the relief sought for the other two. The relief sought in the second hearing was denied. The Tribunal received one request for review of a decision which was denied. One appeal received in 2007-08, which was scheduled to be heard in 2008-09, was held over to 2010-11 as a result of the Tribunal having to deal with a number of preliminary matters raised by the parties.
Food Safety and Quality Act, 2001
The Tribunal heard three appeals and considered one request for review under this statute in 2009-10. The three appeals and the request for review were denied.
History of Appeals under the Farm Products Marketing Act and the Milk Act - last five years
Recent History of Applications for Religious Exemption
Most members of the Agriculture, Food and Rural Affairs Appeal Tribunal are also appointed to the BON (established under the Environmental Protection Act) to negotiate with the parties involved when a contaminant is released into the environment.
Where crops, trees, other vegetation and/or livestock are damaged by the release of a contaminant, the affected parties may ask for the BON to attempt to settle any claim arising from the incident. Before the issue can come before the BON, the Minister of the Environment must have commissioned a report in the matter, and the parties allowed 30 days to settle the claim.
No parties asked to appear before the BON in 2009-10.
The Tribunal and the BON operate under the budget of the Ontario Ministry of Agriculture, Food and Rural Affairs and as such do not have their own audited financial statements. The Tribunal and BON resource requirements are incorporated under the ministry's business plan.
The ministry has three full-time employees to support and provide services to the Tribunal/ BON. The positions are Tribunal Coordinator, Tribunal Assistant and Bilingual Administrative Service Representative. The ministry provides management support through Business Services Branch, Research and Corporate Services Division. Legal services to the Tribunal/BON are provided by the Ministry of Attorney General through the Ministry's Legal Services Branch.
1. Timeliness for Releasing Written Decisions after Hearings
Milk Act and/or Farm Products Marketing Act
Crop Insurance Act (Ontario), 1996
Farm Implements Act
Food Safety and Quality Act, 2001
2. Client Satisfaction
* Survey questions changed and increased to 19 in 2009
In 2009-10, changes to the annual client survey were made to better reflect feedback from parties to hearings in four key areas - access to information from the Tribunal, the appeal process, the hearing process and the decision. The results from the client survey are captured in the performance measures section below and are used to evaluate the performance of the Tribunal against its function, commitments and strategies. The Tribunal/BON target is an 80% satisfaction rate.
3. Performance Measures
Access to Information
50% of survey respondents rated the information found on the Tribunal's website as satisfactory or higher with 37.7% of that group finding the information to be good or excellent. 46.4% of the respondents responded to the question about the website as being not applicable suggesting those respondents have not used the Tribunal's website.
83.9% of respondents rated the responsiveness of staff and information provided by staff as satisfactory or higher with over 70% of the respondents finding staff responsiveness and information provided by staff as being excellent or good.
While 67.8 % of respondents were satisfied with the timeliness for the processing of their appeal, 80.6% of respondents were satisfied with their involvement in the selection of dates for their appeal.
Overall, respondents were quite satisfied with the hearing process provided by the Tribunal. Over 90% of the respondents (90.3% to 93%) were satisfied with the location and accessibility of the hearing location, the comfort of the hearing process as outlined by the Chair at the start of the hearing, and the conduct of the panel at the hearing.
Over 80% of respondents (83.3% to 87.1%) were satisfied with the process and timing of exchange of information between the parties, the information received about the hearing process in advance of the hearing, the questions asked by the panel at the hearing and the overall conduct of all in attendance at the hearing.
76.7% of the respondents were satisfied that the hearing decision reflected the evidence presented at the hearing while 73.3% were satisfied with the reasoning in the decision. 80% of the respondents were satisfied that the panel's impartiality in the matter was reflected in the decision.
The Tribunal's target to release decisions within 30 days of completion of a hearing continued to be a challenge in 2009-10. 76.6 % of respondents were satisfied with the timeliness of the release of the decision of which 53.3% of those respondents felt the Tribunal's timeliness was either excellent or good. While the Tribunal has made improvements in the timelines for releasing decisions under most Acts, some situations arose in 2009-10 after a few hearings that caused a delay in the release of those decisions. One decision under the Ministry of Agriculture, Food and Rural Affairs Act required 203 days to release due to a medical issue that arose with one member, thereby delaying the panel's ability to discuss and write the decision. One drainage hearing required 97 days for the release of the decision due in part to further information the Tribunal required from two of the parties to the hearing who were trying to resolve some of their issues, the number of appellants involved in the hearing, and the time required to write a lengthy decision involving significant technical detail. In the case of one decision under the Farm Implements Act, the matter involved three separate farm implements and contractual matters that required considerable deliberations by the hearing panel, and involved a significant amount of time for the writing of the decision.
The 203 day period required to release one particular decision under the Ministry of Agriculture, Food and Rural Affairs Act caused a significant increase in the average number of days taken to release decisions for all appeals.
The Tribunal/BON also monitors the number of days between the receipt of an appeal, application and complaint to the release of the decision. It does not set performance targets in this regard as delays in setting hearing dates are largely due to external factors.
In 2009-10, Tribunal staff looked at the proportion of parties appearing before it who used legal counsel or some other agent, and the proportion of parties who represented themselves. This was a follow up analysis to a study initiated in 2002.
Ministry of Agriculture, Food and Rural Affairs Act
For appeals heard under the Ministry of Agriculture, Food and Rural Affairs Act (Appeals of decisions made under the Milk Act or Farm Products Marketing Act), the proportion of appellants representing themselves has not changed significantly between the 1992-01 period and the 2002-09 period although this varies in some years. The proportion of respondents using legal counsel versus representing themselves continues to increase. While 62.6% of respondents used legal counsel from 1992 -01, this percentage has increased to 76.3% from 2002-09.
Crop Insurance Act (Ontario), 1996
The Tribunal hears relatively few appeals under the Crop Insurance Act (Ontario), 1996. In general, insured growers prefer to either represent themselves or be represented by another insured grower with a similar appeal. AgriCorp, an agency of government, is the respondent in all crop insurance appeals. Generally, AgriCorp staff represents the agency. There was an increase in the use of legal counsel by both the appellants and AgriCorp in the eight-year period 2002-2009, relative to the previous five-year period 1997-01.
For appeals heard under the Drainage Act, for the most part appellants represented themselves both in the eight-year period 2002-09 and the previous five-year period 1997-01. Where a representative was used, there was no clear preference for either agents or legal counsel in either time frame. Municipalities, the respondents in these matters, normally had the engineer who prepared the report under appeal defend the report; on occasion legal counsel was retained. For this analysis, where both legal counsel and an engineer were used, this was recorded as representation by legal counsel, not by an agent.
No analysis was undertaken for parties making appeals or applications under the Farm Registration and Farm Organizations Funding Act, 1993 or the Assessment Act as most parties are self represented. The Tribunal normally receives no more than one or two appeals per year under other statutes.
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