Henry Bos c. Chicken Farmers of Ontario (CFO) PHC - Motion Hearing re: Personal Stay

In the matter of Section 16 of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990 Chapter M. 16, as amended.

And in the matter of: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Henry Bos, Stevensville, Ontario, from a decision of the Chicken Farmers of Ontario declining his request for the revocation of Chicken Farmers of Ontario Regulation 2274-2009.

And in the matter of: A Pre-hearing Conference held July 19th, 2009 pursuant to Rule 24 of the Tribunal's Rules of Procedure, for the purpose of considering Henry Bos' motion for a stay of Chicken Farmers of Ontario Regulation 2274-2009 and Policy 175-2009.

Before:
John O'Kane, Vice Chair; Kirk Walstedt, Chair;

Appearances:
Henry Bos, appellant
Geoff Spurr, counsel for the respondent

Pre-Hearing Conference Decision of the Tribunal

Overview and Background

Mr. Henry Bos filed a motion under section 25 of the Ministry of Agriculture, Food and Rural Affairs Act (the MAFRAA) for a stay of the Chicken Farmers of Ontario (CFO) Regulation 2274-2009 (the Regulation) and Policy 175-2009 (the Policy).

Mr. Bos proposes the stay operate until the Tribunal disposes of his appeal, and that the stay operate to exempt all kilograms allocated to him by CFO.

The Regulation imposed a moratorium on approval for any new processing contracts between Ontario chicken producers like Mr. Bos and out of province chicken processors.

The Policy suspended chicken production quota allocations to Ontario chicken producers who entered into new processing contracts with out of province chicken processors.

As part of the moratorium, CFO grandfathered any existing processing contracts between Ontario chicken producers and out of province processors.

On May 5th, 2010 the Tribunal dismissed a motion by Mr. Bos to stay the Regulation (the First Stay Motion). At the time of the First Stay Motion, Mr. Bos sold about 80% of his chicken quota allocation to an Ontario processor and about 20% to a processor in Quebec. At the time of the First Stay Motion, Mr. Bos's Quebec processing contract was grandfathered under the CFO moratorium. Mr. Bos's objective with the First Stay Motion was to obtain a general stay of the Regulation, as opposed to a stay in respect of his own specific activities. The Tribunal dismissed the First Stay Motion for the reasons released on May 5th, 2010.

The Current Situation

Mr. Bos now seeks to stay both the Regulation and the Policy because he submits that his personal circumstances have changed since the First Stay Motion.

During June 2010, Mr. Bos learned that his chicken processing contract with the processor that processed about 80% of his production was being transferred to another processor. This other processor subsequently notified Mr. Bos it was cancelling his chicken processing contract, effective June 30th, 2010. As a result, Mr. Bos needs to find a new processor.

Mr. Bos seeks the stay so that he can pursue what he describes as his "entitlements". Mr. Bos's evidence is that he "may wish to consolidate my production with my Quebec processor. A stay of CFO Regulation 2274-2009 and Policy 175-2009 would be necessary for me to exercise those entitlements." By "entitlements", the Tribunal understands Mr. Bos to mean the freedom to sell his chicken production where he chooses, be it to Ontario processors or out of province processors.

CFO submitted copies of its General Regulation 2293-2010 and directed the Tribunal specifically to sections 7.11 and 7.12. CFO explained that its regulations require CFO, where a chicken producer is unable to find a processor, to designate a processor that will buy the producer's chicken. In other words, no chicken producer is left without a processor in Ontario to buy its production. CFO confirmed to the Tribunal that the chicken producer receives a guaranteed market price in such circumstances.

Analysis and Conclusions

The Tribunal previously concluded in its reasons on the First Stay Motion that Mr. Bos's appeal of the Regulation operated as a "stay of the matter" under section 16(6) of the MAFRAA and section 25(1) of the Statutory Powers Procedure Act (SPPA). However, the Tribunal concluded that such a stay did not automatically suspend a presumptively valid regulation. The Tribunal concluded that the stay sought in the First Stay Motion was academic given Mr. Bos's concession that an exemption from the Regulation was of no benefit to him, since his out of province contract was grandfathered under the CFO moratorium. As a result, in the First Stay Motion reasons, the Tribunal declined to engage in the academic exercise of defining the scope of the stay.

Given the present stay motion and the evidence from Mr. Bos of his altered circumstances, as well as information concerning CFO's General Regulations, some additional comments from the Tribunal are required about the "stay in the matter" provided for in section 16(6) of the MAFRAA.

The parties appear to agree that the controlling authority in Ontario in a fact situation with some parallels is the Divisional Court decision in Denby v. Ontario 2006 CanLII 63736. At paragraph 40, the Court stated:

A "stay in the matter" may refer to a maintenance of a status quo in terms of the conduct or entitlement of a party. It does not, to repeat ourselves for emphasis, result in the automatic "suspension" of legislation validly enacted or to be enacted in the future. To suggest otherwise would be patently illogical.

It is clear from that authority, that a stay is intended to preserve a "status quo". The Tribunal finds the corollary of that principle is that a stay is not intended to expand beyond the status quo prevailing when the appeal was commenced.

The status quo at the time of Mr. Bos's appeal was that he sold 20% of his production to a Quebec processor and 80% to an Ontario processor. The evidence on this motion confirms that Mr. Bos continues to sell 20% of his production to a Quebec processor, and despite his Ontario processor cancelling the contract, Mr. Bos will sell 80% of his production to a yet unnamed Ontario processor(s). Nothing has changed since the First Stay Motion except the identity of the Ontario processor. In the Tribunal's view, the change in the Ontario processor's identity is not a change in the "status quo". Therefore, since the status quo as it existed at the time of Mr. Bos's appeal continues, there is no basis for the Tribunal to define a greater scope for the section 16(6) stay. Mr. Bos submitted that if the Tribunal denied his stay request in respect of the Regulation, his stay request in respect of the Policy was moot.

CFO submitted that the stay request in respect of the Policy raised a bigger issue related to the Tribunal's jurisdiction since Mr. Bos did not first seek an exemption from the Policy from CFO as he is obliged to do under section 16(5) of the MAFRAA.

Therefore, the Tribunal denies Mr. Bos's motion for a stay of the Regulation and the Policy for the following reasons:

• A stay is intended to preserve a "status quo";
• The "status quo" existing when CFO enacted the Regulation and when Mr. Bos appealed the Regulation has not changed;
• The only change in Mr. Bos's "conduct or entitlement" from when CFO enacted the Regulation and Mr. Bos appealed, is the impending change in identity in Mr. Bos's Ontario processor(s) and that change does not amount to a change in the "status quo";
• There is no appeal pending before the Tribunal about the Policy;
• Mr. Bos has not yet sought an exemption from the Policy from CFO as he is obliged to do under s. 16(5) of the MAFRAA;
• Mr. Bos conceded that his request for a stay of the Policy would be academic if the Tribunal denied his stay of the Regulation.

Order of the Tribunal

Therefore, the Tribunal Orders that Mr. Bos's stay motion is denied.

Dated at Brampton, this 26th day of July, 2010