Agriculture, Food and Rural Affairs Appeal Tribunal Board of Negotiation Annual Report 2012-13
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, 2013. The report focuses on the Tribunal's achievements for the year.
The Tribunal serves as the adjudicative body for those who feel aggrieved by decisions made under various legislation under the auspices of the Ontario Ministry of Agriculture and Food and the Ministry of Rural Affairs. The BON serves as the body that negotiates settlements between parties under the provisions of section 172 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 2012-13.
In 2012, the Tribunal spent considerable time addressing accreditation applications from the Ontario Federation of Agriculture (OFA), the Christian Farmers Federation of Ontario (CFFO) and the National Farmers Union-Ontario (NFU-O). These applications followed applications for reaccreditation received from these organizations in 2011 which were denied. By the end of 2012, the OFA and CFFO received accreditation; however, this was not the case for the NFU-O. Due to the nature of the issues pertaining to the NFU-O, the reasons for the NFU-O decision were issued in April 2013.
The Tribunal acknowledges that it faced a challenge meeting decision timelines with respect to the reaccreditation and accreditation hearings due, in part, to the complexity of the issues before it. The Tribunal is very much aware of the public's expectations for decisions to be released in a timely manner. Accordingly, the Tribunal is developing new decision timelines to meet the public's expectations while balancing this with the goal of quality decision making in an increasingly complex administrative justice system.
The Tribunal continues to use a client survey to obtain feedback on the services it provides. In 2012-13, the Tribunal initiated a new process whereby a survey is sent to each party who participated in proceedings before the Tribunal at the time their hearing decision is released, rather than at the conclusion of the fiscal year. This new process will be monitored for its effectiveness in obtaining feedback. The results of the survey assist the Tribunal in its ongoing efforts to improve the delivery of its services, and to evaluate the Tribunal's performance. I am pleased to report that the ratings provided by clients in the key areas of services provided by the Tribunal remain at high levels.
On behalf of the Tribunal members, I look forward to continuing to serve the agriculture and food sectors, as well as rural communities, throughout Ontario.
The Agriculture, Food & Rural Affairs Appeal Tribunal (Tribunal) is an adjudicative agency of the Ontario government where decisions made by other bodies can be appealed or where applications and complaints can be heard pursuant to legislation that authorizes the Tribunal to hear those matters. Most Tribunal members also serve on the Board of Negotiation (BON) established under the Environmental Protection Act.
Some members of the Tribunal are also appointed to a special roster of members who may hear complaints and applications under the Agricultural Employees Protection Act, 2002.
All members are part time per diem appointees appointed by the Lieutenant Governor in Council.
The Tribunal's hearing room and offices are located in the Government Building at 1 Stone Road West, Guelph. The Tribunal also conducts hearings throughout Ontario, as necessary, to improve its accessibility to all parties that appear before it.
Constituted under Section 14 of the Ministry of Agriculture, Food and Rural Affairs Act, the mandate of the Tribunal is to provide an independent, accessible avenue of appeal on a variety of agricultural issues under the following provincial statutes and have them heard by an impartial and knowledgeable Tribunal: Agricultural Employees Protection Act, 2002; 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; and the Ministry of Agriculture, Food and Rural Affairs Act (for appeals of decisions made under the Farm Products Marketing Act and Milk Act).
To provide a fair and impartial hearing and decision process for those who are aggrieved by a direction, policy, order or decision, or who require the resolution of a dispute pursuant to legislation that falls under the mandate of the Agriculture, Food and Rural Affairs Appeal Tribunal.
Established under the authority of the Environmental Protection Act, the mandate of the BON is to negotiate a 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.
To provide a fair and impartial process for the negotiation of a settlement of claim where a party has served a notice of negotiation upon the Board of Negotiation in accordance with section 172 of the Environmental Protection Act.
The Tribunal values:
What can be Appealed to the Tribunal?
Any order, direction, decision or policy of the local marketing boards, or of a Director made under the Farm Products Marketing Act or the Milk Act may be appealed to the Tribunal. Regulations of commodity boards may also be appealed to the Tribunal. Orders, directions or decisions of the Ontario Farm Products Marketing Commission that apply specifically to the aggrieved person, a group of persons of which the aggrieved person is a member or with respect to a particular dispute or incident involving the aggrieved person can also be appealed to the Tribunal. However, regulations, policies, orders, directions or decisions of the Commission that are of general application are not appealable to the Tribunal.
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, or 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 assessments 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/or 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 also arise from a decision of a Director related to the registration of a dealer or distributor.
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 to the Tribunal?
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 Ministry of Agriculture, Food and Rural Affairs Act (arising from appeals of decisions 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 only. There are also limited appeals to the Referee under the Drainage Act. 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 2012-13, the Tribunal completed a total of five hearings arising from appeals under the Ministry of Agriculture, Food and Rural Affairs Act. The Tribunal denied four of the appeals heard and granted one. Seven appeals filed under this Act were also withdrawn in 2012-13 and an additional two appeals were requested to be put on hold.
The Tribunal received no requests for review of a decision under this Act in 2012-13.
Number of decisions issued by commodity is as follows:
Crop Insurance Act (Ontario), 1996
No appeals were received by the Tribunal under this statute in 2012-13.
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 also made for individuals to be granted exemptions from registering and/or making payment under the Act on the basis of religious beliefs and convictions.
In 2012-13, the Tribunal received 115 applications for a religious exemption under the Act. 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 an application is 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. No hearings were held in 2012-13.
The Tribunal granted a total of 114 religious exemptions - 103 exemptions from both registering and paying the prescribed fee, and 11 exemptions from paying the fee only. One application received was subsequently withdrawn.
In May 2012, the Tribunal released decisions related to the reaccreditation hearings held in 2011. The Ontario Federation of Agriculture, the Christian Farmers Federation of Ontario and the National Farmers Union-Ontario had each applied for reaccreditation under Section 4(2) of the Act. The Union des cultivateurs franco-ontariens had applied to renew its eligibility for special funding under Section 17 of the Act. The applications for reaccreditation were denied while the application for special funding was granted. Due to the complex nature of the issues involved in those hearings, the Tribunal was unable to render decisions in accordance with its decision timelines.
During the course of 2012, the Tribunal spent considerable time addressing new accreditation applications from the Ontario Federation of Agriculture, the Christian Farmers Federation of Ontario and the National Farmers Union-Ontario (NFU-O).
The July 2012 accreditation applications from the CFFO, OFA and NFU-O were also denied. In November 2012, the Ontario government amended Ontario Regulation 723/93 under the Farm Registration and Farm Organizations Funding Act, 1993 to revise the criteria for accreditation. This led to the OFA and CFFO subsequently re-applying for accreditation under the revised criteria in late November 2012. Those applications resulted in the OFA and CFFO being granted accreditation in December 2012. The amendment to Ontario Regulation 723/93 provided that the criteria for accreditation as read on and after November 22, 2012 applied to any application made to the Tribunal before that date. Therefore, the 2012 application from the NFU-O that was still before the Tribunal as of November 22, 2012 was considered pursuant to the revised criteria in Ontario Regulation 723/93. Following the completion of the NFU-O hearing on December 14, 2012, the Tribunal issued a decision without reasons on December 19, 2012 denying the NFU-O's application and subsequently issued detailed reasons for the denial on April 15, 2013. Due to the complex nature of the facts, the legal issues and the change to the regulation, the Tribunal was unable to render decisions in accordance with its decision timelines.
The Tribunal provides a readily accessible forum for appeals and applications under the Drainage Act. Matters heard include appeals pertaining to the engineer's report and assessments under sections 48 and 54 of the Act; appeals pertaining to the quality of the construction of a drainage works under section 64 of the Act; appeals from decisions of a Municipal Council to not proceed with a petition for drainage works, or where the municipality has not decided within 30 days after the filing of a petition to proceed with a drainage works under Section 5 of the Act; and applications to correct an error in an engineer's report or to vary assessments under sections 58(4) and 76 of the Act.
Tribunal hearings are held throughout Ontario, usually in the municipal office of the municipality where the appeal is filed. 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.
The Tribunal held 11 hearings and considered one application under Section 58(4) of the Act and two applications under Section 76 of the Act by way of a written hearing, for a total of 14 hearings held in 2012-13. Of the 14 decisions issued, four were granted, one was granted in part, eight were denied, and in the case of one matter, the Engineer's Report was set aside. Seven other appeals were withdrawn and two adjourned in 2012-13. An additional eight appeals currently before the Tribunal will be heard in the next fiscal year.
Agricultural Employees Protection Act, 2002
No new complaints or applications were received by the Tribunal under this Act in 2012-13
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 2012-13, the Tribunal heard 38 farm property class appeals over two days. For the appeals heard and decisions issued during the year, the farm property class was granted 17 times and denied 21 times. In addition, twenty four appeals from one appellant, which were dealt with by the Tribunal in the previous fiscal year through Motion hearings and then subsequently referred to the Divisional Court on a question of law, were withdrawn by the appellant in 2012-13. One additional appeal received in 2012-13 was withdrawn as well.
Farm Implements Act
In 2012-13, the Tribunal continued to deal with an appeal originally filed with the Tribunal in 2008. A decision issued by the Tribunal in 2010-11 pertaining to the liability portion of this matter was appealed to the Court of Appeal, and in 2012 the Court of Appeal remitted certain of the matters to the Tribunal on the consent of the parties, and provided the Tribunal with specific directions to guide the Tribunal's further consideration or reconsideration of those matters. Two days of hearing were required in early 2013 to hear submissions on those remitted liability matters. The damages portion of this appeal will be heard in 2013-14. The Tribunal also had one new appeal received in 2011-12 which was withdrawn in 2012-13.
Food Safety and Quality Act, 2001
No appeals were received by the Tribunal under this statute in 2012-13.
Livestock Medicines Act
As a result of a request for review of a decision issued under this Act in 2011-12, the Tribunal ordered that a review of the decision proceed by way of a written hearing. The decision arising from the written hearing was issued in 2012-13 and resulted in the Tribunal cancelling two orders issued in the original hearing decision issued in 2011-12.
No new appeals were received by the Tribunal under this statute in 2012-13.
Summary of Hearings Held/Applications Considered under Active Statutes
Recent History of Applications for Religious Exemption
* Decision issued in 2010-11
No parties asked to appear before the BON in 2012-13.
The Tribunal and the BON operate under a budget allocated by the Ministry of Agriculture and Food and the Ministry of Rural Affairs and as such do not have their own audited financial statements. The Tribunal and BON resource requirements are incorporated under the ministries' business plan.
Operating expenses vary from year to year based on the number, location and complexity of appeals brought before the Tribunal. In 2012-13, overall, the Tribunal operated approximately 2% below its budgeted allocation. Expenses incurred for Transportation and Communications were below budget by approximately 34%, but comparable to expenses incurred in 2011-12.
The ministry has three full-time employees to support and provide services to the Tribunal and BON. The positions are two Tribunal Coordinators, and a Bilingual Administrative Service Representative. The ministry provides administrative and financial support through the Business Services Branch, Research and Corporate Services Division. Legal services to the Tribunal and BON are provided by the Ministry of Attorney General through the Legal Services Branch of the Ministry of Agriculture and Food and Ministry of Rural Affairs.
1. Timeliness for Releasing Written Decisions after Hearings
Ministry of Agriculture, Food and Rural Affairs Act
Crop Insurance Act (Ontario), 1996
Assessment Act (Farm Property Class)
*does not include 3 applications considered by means of a written hearing
Farm Implements Act
Food Safety and Quality Act, 2001
Farm Registration and Farm Organizations Funding Act, 1993
Note: For performance tracking purposes, the date a decision is released is used to designate the fiscal year in which it is tracked, rather than the date of the hearing.
2. Client Satisfaction
As part of the Tribunal's efforts to improve the delivery of its services, a client survey is offered to all clients who come before the Tribunal. The survey focuses on 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 and BON target is to achieve an overall 80% client satisfaction rate.
** Survey questions modified and increased from 19 to 20 in 2010. Rating scale was also modified in 2010 from unsatisfactory, needs improvement, satisfactory, good and excellent to very satisfied, satisfied, neutral, dissatisfied and very dissatisfied.
3. Performance Measures, Targets and Analysis
Access to Information
92.8% of survey respondents who accessed the Tribunal's website rated the information found on the website as neutral or higher with 71.4% of that group indicating they were either satisfied or very satisfied with the information. A similar number of respondents, 92.3%, were neutral or higher that the information on the website was easy to find, while 69.2% were either satisfied or very satisfied that the information was easy to find. 45% of the respondents indicated the question about the Tribunal's website either was not applicable to them, or noted that they did not have a computer or did not know the website existed, suggesting those respondents did not use the Tribunal's website.
94.4% of respondents rated the response time of staff to information requests as neutral or higher with 83.3% of respondents indicating they were either satisfied or very satisfied with the response time.
95.3% of respondents rated the response time for the acknowledgement of their appeal as neutral or higher with 90.5% of those indicating they were either satisfied or very satisfied with the response time. 85.7% of respondents indicated they were neutral to very satisfied with the selection of hearing dates, with 80.9% indicating they were either satisfied or very satisfied.
Overall, respondents were satisfied with the hearing process provided by the Tribunal. 90% of respondents were either satisfied or very satisfied with the location of Tribunal hearings, and 78.6% of those who responded to the question were satisfied to very satisfied that the location accommodated persons with disabilities.
90% of respondents were either satisfied or very satisfied with the process and timing for the exchange of hearing documents between parties in advance of the hearing. 90% of respondents were satisfied or very satisfied with the information about the hearing process outlined by the Chair at the start of the hearing; 83.4% of respondents were satisfied or very satisfied with the respect and consideration given to participants by the panel at the hearing; 85% of respondents were either satisfied or very satisfied with the types of questions asked by the panel; 80% of respondents were either satisfied or very satisfied with the level of industry specific knowledge displayed by panel members; 78.9% of respondents were either satisfied or very satisfied with the impartiality displayed by panel members at the hearing; and 84.2% of respondents were either satisfied or very satisfied with the overall conduct of those in attendance at the hearing.
95% of respondents were either neutral to very satisfied with the information provided by staff about the hearing process in advance of the hearing, with 90% of respondents indicating they were satisfied or very satisfied with this information.
81% of respondents were neutral to very satisfied that the hearing decision reflected the evidence presented at the hearing and with the reasoning in the decision while 76.2% of respondents were satisfied or very satisfied with the decision on these two issues. 81% of respondents were also neutral to very satisfied that the decision reflected the impartiality of the panel, while 76.2% were satisfied or very satisfied on this point.
While the Tribunal's target to release decisions within 30 days of completion of a hearing [20 days for decisions under the Ministry of Agriculture, Food and Rural Affairs Act (MAFRAAct)] did not appear to improve in 2012-2013 for decisions issued under the Drainage Act and MAFRA Act, 95.5% of respondents were still neutral to very satisfied with the timeliness of the release of the decision, which is up from a neutral to very satisfied rating of 87.6% in 2011-2012. 86.4% of respondents were either satisfied or very satisfied on this issue, compared to 68.8% being satisfied or very satisfied in 2011-12. However, in 2012- 2013, all farm property tax decisions issued under the Assessment were issued within the 30 days of completion of the hearing, with the average days to release a decision being 6 days.
In the case of one Drainage Act hearing, three days were required to hear the matters under appeal which involved multiple parties and required a significant amount of time to address pertinent issues in the decision and, as a result, required 85 days from the completion of the hearing to release the decision. In the case of the MAFRA Act, one decision required additional time for consideration and drafting, while another required translation into French before releasing, which also extended the timeline to release the decision for each to 84 days and 86 days respectively.
Under the Farm Registration and Farm Organizations Funding Act, 1993, accreditation and special funding applications are typically heard every three years. A total of eight decisions under this Act were issued in 2012-2013 with only 25% of those decisions falling within the target of releasing decisions within 30 days of the completion of the hearing. A number of events occurred which affected the ability of the panel members to release their decisions in a more timely manner.
Based on responses to all survey questions, 90.6% of survey respondents were neutral to very satisfied with the Tribunal's appeal process, with 82.1% of respondents being satisfied and very satisfied with the appeal process.
4. Compliance with Requirements of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009
The Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (ATAGAA) came into force (in part) on April 7, 2010. The purpose of the ATAGAA is to ensure that adjudicative tribunals are accountable, transparent and efficient in their operations. In addition to the requirement previously found only in the Agency Establishment & Accountability Directive for agencies to prepare governance accountability documents - Memorandum of Understanding, Business Plan and Annual Report, the new ATAGAA required that adjudicative agencies develop both governanace accountability documents and public accountability documents - Mandate and Mission Statement, Consultation Policy, Service Standard Policy, Ethics Plan and Member Accountability Framework by April 1, 2012. The Tribunal met those requirements.
For the period April 1, 2012 to March 31, 2013, the following members were reappointed to the Tribunal and Board of Negotiation: Mary Field, Euclid Mailloux, Corry Martens, Denis Perrault, and Jane Sadler Richards for a further two year term; and Richard Smelski for a further five year term.
* Member's term expired and did not wish to be reappointed.
** Vice-Chair, Gene Trotman, passed away on January 31, 2013.
*** Vice-Chair, Susan Whelan, resigned on January 29, 2013 as a result of being appointed a Justice of the Peace for the province of Ontario.
For more information:
Toll Free: 1-888-466-2372 ext. 519-826-3433