Matthew and Janice Dick v. Turkey Farmers of Ontario

In the matter of Section 16 of the Ministry of Agriculture, Food and Rural Affairs Act.

And in the matter of:
An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Matthew and Janice Dick, in Markdale, Ontario, from point 10 in the Turkey Farmers of Ontario ("TFO") Regulations, distributed on May 12, 2008, regarding the "non-confinement or open-air" raising of turkeys.

Before:
Kirk Walstedt, Chair; William Schaefer, Member; Denis Perrault, Member

Appearances:
Matthew Dick, the appellant
Ted Zettel, witness for the appellant
Ted Soudant, witness for the appellant
Dr. Waltner Toews, witness for the appellant
Geoffrey Spurr, counsel to the respondent, Turkey Farmers of Ontario
Ingrid DeVisser, witness for the respondent
Greg Morrisson, witness for the respondent

This appeal was heard in Guelph, Ontario, on November 5, 2008.

Decision of the Tribunal

Preliminary Matters

At the onset of the hearing, Mr. Dick raised a matter to the Tribunal regarding his being represented by Mr. Ted Zettel, whom he intended to call as a witness. After questions of clarification of Mr. Zettel's role in the hearing, Mr. Dick stated his preference of having Mr. Zettel as a witness and not as his representative.

Overview

Mr. Matthew Dick farms turkeys with his wife Janice, near Markdale, They decided to produce organically certified turkey as a way of increasing their revenues and responding to increasing consumer demand for this product. They have obtained organic certification through one of the national certifying entities and have sold organically certified turkeys since their entry into this market.

On May 12, 2008, the Turkey Farmers of Ontario (TFO) distributed a regulation that addressed, among other items, the production and allocation of turkeys. Specifically, point 10 in this regulation requires "producers who raise turkeys using non-confinement or open-air systems [to] ensure that: a) all outdoor enclosures [be] covered by a solid roof and have walls of either solid construction or wire mesh having openings of no more than .25 centimeters in diameter; [and] b) feed and water [be] provided to turkeys only under an area covered by a solid roof."

Mr. and Mrs. Dick are concerned that this regulation made by the TFO, which came into effect in May 2008, will negatively effect their operations by making their flocks ineligible for organic certification through the national certifying entity they currently use. Mr. Dick's concern is that he cannot simultaneously comply with the requirements of the TFO's regulation in addition to those of the relevant national certification entity, Pro-Cert Canada.

Issue

Should point 10 from the Turkey Farmers of Ontario's Regulations, distributed on May 12, 2008, regarding the "non-confinement or open-air" raising of turkeys, be rescinded?

Evidence

Mr. Dick explained that he is a relatively new producer in the turkey industry and, since December 2006, he has marketed a total of four crops with quota allotted to his wife's parents. He markets two crops a year, intended for the thanksgiving and Christmas markets. The quota held by his parents-in-law allows him to produce 400 turkeys per year.

Mr. Dick currently markets his turkeys to Fieldgate Organic, who sells his turkeys within Ontario only. He noted that organic turkeys sell for approximately twice the price of non-organic turkeys. In 2007, he raised birds indoors and obtained organic certification through OCPP and Pro-Cert Canada; however, there have been changes in the national standards used for organic turkey certification, of which, producers have had 2 years of notice. These changes will come into effect in June 2009. He added that Pro-Cert Canada follows certification standards imposed by the Canadian General Standards Board (CGSB). Mr. Dick stated that national standards for organic certification are only required when turkeys are produced for export to other provinces, and that provincial standards can be used for the marketing of organically certified turkeys within the producers' respective province.

Mr. Dick submitted to the Tribunal that he has made attempts to work with Pro-Cert Canada to ensure that he complies with their requirements in addition to those of the TFO. The requirements of the Canadian Organic Standards, he stated, would lead to significant costs to be borne by producers. He added that, if they don't obtain certification, their place in the market will be lost and their livelihood will be disrupted. He requested the Tribunal set aside the requirement imposed by the TFO, that turkeys be raised under a solid roof. Mr. Dick stated that his ability to grow organically certified turkey should not be inhibited by the requirement to raise turkeys beneath a solid roof.

Mr. Soudant operates Fieldgate Organic, which has been marketing organic turkey for approximately 3 years and currently markets between 1,200 and 1,400 organic turkeys per year. These turkeys are provided to them by multiple producers. He noted that Fieldgate is certified at the national level for the processing of organic meat. Mr. Soudant told the Tribunal that consumers expect organically certified turkeys to be raised outdoors. He noted that it is his intention to ensure that all turkeys processed through Fieldgate be certified organic through national standards.

Mr. Zettel testified regarding the process for organic certification at the national level. He is involved in an organization that promotes organic food in Ontario and he is an organic producer himself. He noted that national certifying entities are moving from a voluntary certification system to a mandatory certification system to be enforced by the Canadian Food Inspection Agency (CFIA). This move, he noted, is to be enforced in June 2009. Under the old system, he added, entities such as Pro-Cert Canada were responsible for interpreting the standards for organic production, whereas the new system requires certifying entities to submit their interpretation to a new committee. He further noted that the TFO's policy will make it impossible for quota holding turkey producers to raise their flocks with organic certification that is recognized at the national level. To support this, Mr. Zettel made reference to a letter from OCPP/Pro-Cert Canada Inc. dated October 7, 2008.

Dr. Waltner Toews told the Tribunal that he has been teaching epidemiology since 1987, and has been following avian influenza (AI) issues since the outbreak in Hong Kong. He stated that some strains of AI are more able to transfer to poultry than others, and added that the policy of the TFO may have negative impacts on farmers due to speculation about the transfer of AI to domestic turkey flocks. In his opinion, the measures imposed by the TFO's policy aren't necessary to prevent the spread of AI. He noted that, although testing for AI is taking place in North America, nothing has been found to relate strains of AI in wild birds to domestic flocks. However, he added, there is no way of confirming that no risk exists.

Ms. DeVisser, Chair of the Turkey farmers of Ontario, told the Tribunal that there are currently 189 quota holding producers in Ontario, out of a total of 560 producers in Canada. Ontario, she said, represents approximately 46% of Canadian turkey production. She noted that she is the TFO's representative on the the Canadian Turkey Marketing Agency (CTMA), which is the national agency for regulation of the turkey market whose mandate it is to set production numbers for every production period on the basis of consumer demand and market trends. She noted the CTMA does not set policies for every province, which is covered under provincial legislation.

In November 2005, the Canadian Poultry and Egg Processors Council (CPEPC) issued a letter to the CTMA and other national agencies, requesting support for an initiative to bring an end to the outdoor production of poultry, in an attempt to reduce the risks of the spread of AI to domestic poultry flocks. Following receipt of this letter, the CTMA, Ms. DeVisser stated, encouraged all provincial members to implement policies that support the initiative recommended by the CPEPC. With this direction, the TFO undertook a process of notifying producers and requesting feedback before ultimately implementing its policy in May 2008. She noted that this policy was not aimed at organic producers; they were intended to protect the interests of the industry as a whole. She added, however, that the TFO's policies only apply to quota holding producers, to those producers who raise more than 50 turkeys annually. Those producers raising fewer than 50 turkeys annually are exempt from TFO policies.

The CFIA, Ms. DeVisser noted, recognizes possible roots of transmission of AI to include wild birds and water, a position which, she believes has not changed. The individual producer, Ms. DeVisser stated, should not be able to make risk assessments that can affect the entire industry.

Mr. Morrison, a Senior Field Inspector for the TFO, noted that the CFIA generated a report in 1995 following an outbreak of AI in British Columbia which was caused by the failure of a fountain chlorinator. This report eventually led to the prohibition of raising poultry outdoors.

In his summation, Mr. Spurr stated that the regulation distributed by the TFO in May 2008, was produced on the basis of discussion that took place between organizations involved in the regulated marketing of poultry and eggs at the national level, as well as recommendations made by the Canadian Turkey Marketing Agency (CTMA). He stated that, through that process, an initiative was developed for turkeys to be raised indoors. This initiative, he added, was in recognition of the risk posed by migratory birds on the spread of avian influenza in domestic flocks, which may have enormous and irreparable harm on the turkey industry in Ontario. In an attempt to mitigate this risk, the TFO has implemented the policy under appeal by Mr. Dick. Mr. Spurr explained that the TFO is acting in the best interest of the industry by trying to protect the interests of 189 producers in Ontario, in a manner that is deferential to organic standards. He noted that these requirements are not targeting organic producers. They are intended to ensure the security of the industry as a whole. He requested the Tribunal uphold the TFO's decision to maintain the policy, and dismiss the appeal.

Analysis and Findings

In analyzing the issue and evidence before us, it is important to note that the implementation of the regulation in question was a result of the concern by the Canadian Turkey Marketing Agency with respect to the worldwide spread of avian influenza. Although, outbreaks had been restricted to other countries, Canada experienced its first outbreak in September 2004. Despite the fact that the cause of the outbreak was traced to a faulty poultry fountain chlorinator, the Canadian Poultry and Egg Processors Council realized the seriousness of this disease and the catastrophic effect it can have on a nation's poultry industry. In November 2004, it urged all other national agencies to support its initiative to end outdoor production of poultry in order to reduce the risk of the spread of avian influenza to domestic poultry flocks.

Also realizing the seriousness of this disease, the CTMA encouraged all its provincial members to implement the same policy. The Turkey Farmers of Ontario took this direction very seriously and following a process whereby its producers were notified of the possible enactment of the regulation and feedback was received, the regulation was put in place in May 2008.

Mr. Dick has put forth the argument that the regulation, which requires turkeys to be kept under a solid roof, will make organic turkey production financially unviable due to the high cost of building a covered structure for his flock.

The only scientific evidence brought forth by the appellant was from Dr. Toews. Dr. Toews provided the opinion that although testing for the avian influenza in North America to date has found no strains in wild birds that have been passed on to poultry flocks, there is no way of confirming that no risk exists.

Based on these findings, we conclude that the TFO was indeed justified in implementing the regulation to prohibit the "non-confinement" or "open-air" raising of turkeys in its attempt to reduce the risk of the avian influenza virus. We believe that instituting such a preventative measure can only be considered as the exercising of good due diligence when compared to the devastating effect an avian influenza outbreak would have on Ontario's poultry industry.

At the same time we recognize the importance of the organic poultry industry and the high public demand for its product. However, it is our determination that the added cost of providing a covered structure for turkeys is far out weighed by the additional safety the TFO has put in place for the industry with the implementation of this regulation.

Order of the Tribunal

After careful consideration of the evidence filed and the submissions made the Tribunal hereby denies the appeal.

Dated at Maidstone, Ontario, this 17th day of December, 2008.