Agriculture, Food and Rural Affairs Appeal Tribunal Board of Negotiation Annual Report 2015-16
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, 2016. 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, Food and 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 2015-16.
In June 2015, the Tribunal held hearings to consider applications for reaccreditation from the Ontario Federation of Agriculture, the Christian Farmers Federation of Ontario and the National Farmers Union-Ontario (NFU-O). Decisions arising from those hearings resulted in all three organizations being reaccredited for a three year period.
The Tribunal continues to use a client survey to obtain feedback on the services it provides. 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 and 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. All Tribunal members also serve on the Board of Negotiation (BON) established under section 172 of 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; the Agricultural Products Insurance Act, 1996; 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 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 Community Sales Act, 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 Agricultural Products Insurance Act, 1996, formerly the Crop Insurance Act, 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 2015-16, the Tribunal received a total of 11 appeals under the Ministry of Agriculture, Food and Rural Affairs Act. Hearings were held for four of those matters during the fiscal year with two of the appeals being granted and two denied. Six out of the remaining seven appeals were requested to be held in abeyance until the outcome of a seventh appeal is known. In the meantime, the parties to the seventh appeal are attempting to resolve their issues. However, if a resolution cannot be reached, the Tribunal will proceed to hear their issues in 2016-17.
Two other appeals, one received in 2011 and the other in 2013, were withdrawn by the appellants in 2015-16.
Number of decisions issued by commodity is as follows:
Agricultural Products Insurance Act, 1996
No appeals were received by the Tribunal under this Act, formerly the Crop Insurance Act, in 2015-16.
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 2015-16, the Tribunal received 104 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 2015-16.
The Tribunal granted a total of 101 religious exemptions - 90 exemptions from both registering and paying the prescribed fee, and 11 exemptions from paying the fee only. Three applicants did not meet the application criteria as their gross farm income was less than $7,000, so a total of three applications were dismissed.
Under the Farm Registration and Farm Organizations Funding Act, 1993, the Tribunal is also required to accredit general farm organizations and determine the eligibility of a Francophone farm organization to receive special funding every three years.
In 2015-16, the Tribunal held reaccreditation hearings for the Ontario Federation of Agriculture, the Christian Farmers Federation of Ontario and the National Farmers Union - Ontario under Section 4(2) of the Act. All three organizations were reaccredited for a three year period.
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.
In 2015-16, the Tribunal held 13 drainage hearings and continued two hearings that were not completed in the previous fiscal year. Thirteen decisions were issued in 2015-16 arising from these hearings, and an additional decision was issued arising from a hearing held in the previous fiscal year. Of the 14 hearing decisions issued in 2015-16, five were granted, four were granted in part, and five were denied.
The Tribunal also received appeals on 20 other drainage matters in 2015-16. Two of those matters were heard in 2015-16 but decisions will be released in the next fiscal year. Nine will be dealt with in the next fiscal year and another will be heard after issues before the Drainage Referee are decided upon. Three of the appeals received were subsequently withdrawn; in the case of four appeals, the Tribunal determined it had no jurisdiction to hear those matters; and in one other matter, the Tribunal was not prepared to grant an extension of time for the filing of the appeal.
Agricultural Employees Protection Act, 2002
The purpose of this Act is to protect the rights of agricultural employees while having regard to the unique characteristics of agriculture, including, but not limited to, its seasonal nature, its sensitivity to time and climate, the perishability of agricultural products and the need to protect animal and plant life.
These rights include the right to form or join an employees' association; the right to participate in the lawful activities of an employees' association; the right to assemble; the right to make representations to their employers, through an employees' association, respecting the terms and conditions of their employment; and the right to protection against interference, coercion and discrimination in the exercise of their rights.
The Tribunal has the authority to hear complaints and applications under the Agricultural Employees Protection Act, 2002 (AEPA). These may involve requests for access to employees on properties controlled by the employer or complaints regarding non-compliance with the Act.
In March of 2016, the United Food and Commercial Workers International Union (UFCW) and ten former employees of MedReleaf Corp filed complaints with the Tribunal alleging that MedReleaf was in contravention of the AEPA. Constitutional issues related to the legislation were also raised by the complainants. Matters relating to the complaints will be heard by the Tribunal in the next fiscal year.
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 2015-16, the Tribunal heard 61 farm property class appeals over two separate hearing days. For the 35 appeals heard on June 16, 2015, 14 were granted and 21 were denied. Twenty-six appeals were heard on March 22, 2016 and decisions arising from those matters will be released in the next fiscal year.
There was one request for review from a June 16, 2015 hearing decision. The request for review was denied.
Farm Implements Act
The Tribunal received one appeal under this statute in 2015-16 which was subsequently withdrawn.
Food Safety and Quality Act, 2001
No appeals were received by the Tribunal under this statute in 2015-16.
Summary of Hearings Held/Applications Considered under Active Statutes
* Although no new hearings held, 2 short motion hearings were held to deal with a request to dismiss an older appeal matter.
Recent History of Applications for Religious Exemption
No parties asked to appear before the BON in 2015-16.
The Tribunal and the BON operate under a budget allocated by the 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.
Operating expenses vary from year to year based on the number, location and complexity of appeals brought before the Tribunal. In 2015-16, overall, the Tribunal operated 3.65% over its budgeted allocation. This was due to a maternity leave and the associated costs of filling the staff position for the duration of the leave. Without those additional costs, the Tribunal would have operated 2.78% under budget. Expenses incurred for Transportation and Communications were under budget by 26.13%. This was due to fewer hearings held in 2015-16 compared to the previous fiscal - 29 hearing days in 2015-16 compared to 38 hearing days in 2014-15 and, therefore, reduced costs for travel and accommodations for members and staff required for those hearings.
The total remuneration paid to Tribunal members for adjudicative services rendered during 2015-16 was $229,709 compared to $260,856 in 2014-15.
The ministry has three full-time employees that 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, Food and Rural Affairs.
1. Timeliness for Releasing Written Decisions after Hearings
Ministry of Agriculture, Food and Rural Affairs Act
Agricultural Products Insurance Act (Ontario), 1996
Assessment Act (Farm Property Class)
* does not include 3 applications considered by means of a written hearing
** 4 day hearing involving multiple parties
Farm Implements Act
Food Safety and Quality Act, 2001
Farm Registration and Farm Organizations Funding Act, 1993 - Accreditation & Religious Exemptions
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.
** Average of 20 survey questions with rating scale of very satisfied, satisfied, neutral, dissatisfied and very dissatisfied.
3. Performance Measures, Targets and Analysis
Access to Information
77.3% of survey respondents who accessed the Tribunal's website were either satisfied or very satisfied with the information found on the website, while 4.6% were dissatisfied with the information on the website. An additional 18.2% of respondents were neutral on this issue. 81% of respondents who accessed the website were either satisfied or very satisfied that the information on the website was easy to find, while 4.8% were dissatisfied with the Tribunal's information on this point. 29% of the respondents indicated the question about the Tribunal's website was not applicable to them or did not respond to the question, suggesting those respondents did not use the Tribunal's website.
96.1% of respondents rated the response time of staff to information requests as neutral or higher with the same percentage of the respondents indicating they were either satisfied or very satisfied with the response time of staff.
93.3% of respondents rated the response time for the acknowledgement of their appeal as neutral or higher, with 83.3% of respondents either being satisfied or very satisfied with the response time. 83.3% of respondents indicated they were neutral to very satisfied with the selection of hearing dates, with 93.3% indicating they were either satisfied or very satisfied on this point.
Overall, respondents were satisfied with the hearing process provided by the Tribunal.
92.9% of respondents were either satisfied or very satisfied with the location of Tribunal hearings, and 88.2% of those who responded to the question were satisfied to very satisfied that the location accommodated persons with disabilities.
76.7% 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, which is down considerably from 2014-15 when 95.7% of respondents were satisfied or very satisfied on this point. 89.7% of respondents were satisfied or very satisfied with the information about the hearing process outlined by the Chair at the start of the hearing, with 90% being satisfied and very satisfied with the information provided by Tribunal staff in advance of the hearing.
79.3% of respondents were either satisfied or very satisfied with the industry specific knowledge displayed by the panel and 82.7% of respondents were also satisfied or very satisfied by the types of question asked by the panel. 86.2% of respondents were either satisfied or very satisfied with the impartiality displayed by panel members at the hearing; 82.8% of respondents were either satisfied or very satisfied with the respect and consideration for participants displayed by the panel at the hearing, and 85.7% of respondents were either satisfied or very satisfied with the overall conduct of those in attendance at the hearing.
90.1% of respondents were neutral to very satisfied with the reasoning provided in the Tribunal's decisions with 83.4% of respondents being either satisfied or very satisfied with the reasoning provided in the decision. 86.7% of respondents were neutral to very satisfied that the hearing decision reflected the evidence presented at the hearing while 83.4% were satisfied or very satisfied on this point. However, 13.3% of respondents were either dissatisfied or very dissatisfied on this point. 93.3% of respondents were neutral to very satisfied with the impartiality of the panel as reflected in the decision, with 83.3% of respondents being either satisfied or very satisfied on this point. 6.7% of respondents indicated they were very dissatisfied on this point.
The Tribunal's target is 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 (MAFRA Act)]. However, the Tribunal's performance in meeting its decision timelines declined in 2015-2016 for decisions issued under the MAFRA Act, the Drainage Act and the Assessment Act. 75% of decisions (3 out of 4) issued under the MAFRA Act in 2015-16 were issued within 20 days of the completion of a hearing, which is down from 83% (5 out of 6) in 2014-15. However, there were fewer hearings under the MAFRA Act in 2015-16 which accounts for the decrease in the percentage of decisions issued within the required timeline. In 2015-16, only 57% of drainage decisions were issued within 30 days of the completion of a hearing which is down from 67% in 2014-15. The key reason for the decline was that several of the drainage matters heard in 2015-16 involved more complicated issues that required more time for the hearing panel to review the evidence in those cases and draft the decision.
For all hearing decisions issued under Farm Registration and Farm Organizations Funding Act (FRFOF Act) in 2015-16, all decisions were issued within 15 days of the completion of the hearing.
With respect to farm property class hearings held under the Assessment Act, 35 hearings were held over one day in 2015-16 compared to 18 held in 2014-15. As a result of the increase in number of appeals heard under this Act in 2015-16, it took a longer period of time to complete all of the decisions within 30 days. This resulted in 17% of the decisions requiring more than 30 days to complete.
86.2% of respondents were neutral to very satisfied with the timeliness of the release of Tribunal decisions in 2015-16, with 79.3% of respondents being either satisfied or very satisfied on this point. This is down from results received in 2014-15 of 95.8% of respondents being neutral to very satisfied with the timeliness for release of decisions and 87.5% of respondents being either satisfied or very satisfied with the timeliness for the release of decisions.
In response to the question about overall satisfaction with the Tribunal's appeal process, 87.2% of survey respondents were neutral to very satisfied with the Tribunal's appeal process, with 80.7% of respondents being satisfied and very satisfied with the appeal process. 12.9% of respondents indicated they were very dissatisfied or dissatisfied with the Tribunal's 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 by having in place governance and public accountability documents which include a Memorandum of Understanding, Business Plan and Annual Report; and a Mandate and Mission Statement, Consultation Policy, Service Standard Policy, Ethics Plan and Member Accountability Framework by April 1, 2012. The Tribunal met those requirements.
In accordance with ATAGAA, the Tribunal and Board of Negotiation reviewed their public accountability documents in November of 2015 to determine whether they required any amendments. The Tribunal and Board of Negotiation were satisfied with the documents as written.
For the period April 1, 2015 to March 31, 2016, Stan Benda, Edward Dries, Jeffrey Hewitt, Andrew McBride and Glenn Walker were reappointed to the Tribunal and Board of Negotiation. In addition, during this period the following new members were appointed for an initial two year term: Sarah Judd, Fred Stulp, Lee Holling and Ronald O'Connor. Replacements continue to be sought for members whose term expired during the previous fiscal year and the current fiscal year.
* Member's term completed.
For more information:
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