Rein Minnema, Huron County Pork Producers Association, Toni and Rita Felder, and District 10, 11, and 12 Pork Producers,, respectively, vs. Ontario Farm Products Marketing Commission (Interim Decision)

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

And in the matter of: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal of a decision of the Ontario Farm Products Marketing Commission, dated October 6, 2008, regarding the Ontario Pork Producers' Marketing Board;

And in the matter of: A Pre-Hearing Conference pursuant to Rule 24 of the Tribunal's Rules of Procedure held March 9, 2009, at the Ramada Hotel, Guelph.

Before:
Marthanne Robson, Vice Chair

Appearances

• Ontario Farm Products Marketing Commission (Commission) represented by John Fitzgerald and counsel, Sara Blake

• Rein Minnema represented by agent, Elbert van Donkersgoed

• Fields Farms Ltd. represented by Rita Felder

• Huron County Pork Producers' Association represented by Grant Love, John Vander Burgt and counsel, Rob Shapiro

• Districts 10, 11 and 12 Pork Producers represented by Tom Watpool, Bruce Hudson and Rob de Wolde

• Conestoga Meat Packers/Progressive Pork Producers (Conestoga 3P) represented by Bob Hunsberger

• Maple Leaf Consumer Foods (Maple Leaf) represented by Don Davidson, Cathy Aker and Jeff Crosier

• Ontario Pork Producers' Marketing Board (Ontario Pork) represented by Curtiss Littlejohn and counsel, Sean Foran

• The Open Marketing Group (OMG) represented by Brian Simpson and counsel, Geoffrey Spurr

• Quality Meat Packers represented by Dan Cohoe

• Synergy Swine, Paragon Farms, and RFW Farms (Synergy et al.) represented by Rob McDougall, James Reesor and Wendy Fiefert

• Zantingh Direct Inc. and Zantingh Swine Inc. (Zantingh) represented by Brad Zantingh and counsel, Nicholas Richter

Interim Decision of the Tribunal

In July, 2008 the Commission held a hearing over four days to determine whether there should be some changes to the marketing of hogs in Ontario. The resulting Decision dated October 6, 2008, significantly changed the powers and role of the Ontario Pork Producer's Marketing Board (Ontario Pork) in the marketing of hogs.

Mr. Rein Minnema, Huron County Pork Producers' Association, Fields Farms Ltd., and Districts 10, 11 and 12 Pork Producers filed notices of appeal of the Decision with the Tribunal. An appeal operates as a stay to the decision, and the Tribunal may limit or define the scope of the stay (s. 16 (6) Ministry of Agriculture, Food and Rural Affairs (MAFRA) Act).

The Commission provided materials prior to the Pre-Hearing Conference seeking an order dismissing the appeals, in the alternative an order revoking the statutory stay and in the further alternative an order to limit or define the scope of the statutory stay. On the afternoon of Friday, March 6, 2009, Ontario Pork submitted over 200 pages of materials by e-mail in response to the Commission's submissions. Some in attendance at the Pre-Hearing Conference reported either not receiving the materials or having difficulty receiving them by e-mail.

The presiding Vice-Chair, Marthanne Robson, introduced the Tribunal's legal counsel, Carol Ann Witt, and the Tribunal Assistant, Alan Wiebe, and informed those in attendance of their roles at the Pre-Hearing Conference. Vice-Chair Robson also spoke to the role of Gloria Marco Borys, previously Secretary to the Commission and now the Tribunal Coordinator, and identified that due to Ms. Marco Borys's prior involvement with the Commission, any potential role she might have had in the administrative operations of the appeals on this matter are being delegated to the Tribunal Assistant. No concerns or objections were raised on this matter.

Time was spent identifying each of the parties at the Pre-Hearing Conference and asking what status they wished to have at the Tribunal appeal hearing. The OMG, Zantingh, Quality Meat and Conestoga 3P requested party status, which would include the opportunity to present evidence, examine witnesses and make submissions. Maple Leaf requested intervenor status. Synergy et al. requested the opportunity to make submissions, but were not sure whether they wanted full party status. There was no objection to any of these requests. They will therefore be granted.

The Tribunal elected to first consider the request of the Commission seeking to have the Tribunal exercise its authority to refuse to hear all of the appeals. In her submissions Sara Blake, counsel for the Commission referenced Section 16(4) of the MAFRA Act, which states:

16(4) The Tribunal may refuse to hear the appeal or, after a hearing has commenced, refuse to continue the hearing or make a decision if it relates to any order, direction, policy, decision or regulation of which the appellant has had knowledge for more than one year before the notice is filed under subsection (1) or (2) or, if in its opinion,

(a) the subject-matter of the appeal is trivial;

(b) the appeal is frivolous or vexatious or is not made in good faith; or

(c) the appellant has not a sufficient interest in the subject-matter of the appeal.

It is also important to note that on appeal, the Tribunal may substitute its opinion for that of the Commission (s. 16(11) MAFRA Act). At the appeal hearing, the Tribunal may,for example, decide to rehear the case in its entirety (a hearing de novo), hear new evidence or hear arguments only.

Commission counsel drew the Tribunal's attention to the fact that none of the appellants had participated as parties at the Commission hearing. Further some of the appellants had little involvement in the hearing, participating as intervenors and making written or oral submissions; at least one appellant, Fields Farms, had no involvement of any kind in the hearing. Counsel detailed the extensive effort made by the Commission to provide all pork producers and processors with notice of the hearing and seek input from persons involved in the hog industry in Ontario.

Notices of both the pre-hearing conference and the hearing itself were sent, posted and published, and announced at meetings by the Commission in the two months prior to the hearing. The notices about the pre-hearing conference advised that any interested person could attend and participate in framing the issues the Commission would consider at the hearing. The notices were in plain language. In response to the communications of the Commission, 24 persons made submissions in writing and five of these gave oral submissions as well.

Ms Blake asserted that the persons aggrieved by the Commission Decision and who now seek status before the Tribunal knew about the case before the Commission and could anticipate its potential impact.

Not participating as parties before the Commission, counsel submitted, is evidence that the appeals to the Tribunal are frivolous and vexatious, not in good faith, and that the persons seeking status at the Tribunal in this matter do not have a sufficient interest in the subject matter of the appeal. Merely saying "I'm a pork producer", counsel submitted, does not qualify as "a sufficient interest in the appeal".

Commission counsel pointed out that the Legislature intended the Commission to have a defined purpose and authority as specified in the Farm Products Marketing Act (FPMA). She argued that permitting persons to deliberately forego participation in the hearings of the Commission but still retain a right to appeal the Commission's Decision interferes unduly with, and diminishes the authority of, the Commission and is inconsistent with the intent of the Legislature.

Further, Commission counsel submitted that there was unreasonable delay in appellants' requests for appeal of the Commission's Decision. Counsel submitted there is urgency to implement the Commission Decision and the industry cannot afford the delay that will be occasioned by the appeal. She also brought to the Tribunal's attention that many of the items listed in the requests for appeal do not form part of the Commission's Decision, or are otherwise not appropriate grounds for appeal.

The Commission cited the case of Victoria Wood Development Corporation Inc. and Jan Davies Ltd. et al., (1979) 25 O.R. 2d 774 (C.A.). She advised that the case arose out of a different legislative scheme but asked that it be taken as precedent for an administrative decision-making body determining that a person did not have a sufficient interest in a matter to qualify for party status.

The OMG, Conestoga 3P, Synergy et al., Quality Meat, Maple Leaf and Zantingh each made brief submissions to register their support of the Commission's request for an Order refusing to hear the appeals.

More than once, the Commission and its supporters in the request for Orders framed the matter of the appeal as one of private interests against public interests, with the appellants representing the private interest and the Commission's Decision representing the public interest.

The appellants were asked by the Tribunal to describe their involvement at the hearing before the Commission. Rein Minnema reported that he participated as an intervenor. Huron County Pork Producers' Association reported that it participated as an intervener and submitted written materials. Fields Farms Ltd. reported that it received notice of the hearing but did not participate. Of the Districts, 10 reported no involvement; 11, making written submissions; and 12 reported that oral submissions were made to the Commission.

Sean Foran, counsel for Ontario Pork made submissions opposing the Commission's request for an order dismissing the appeals. All pork producers market hogs in Ontario and the Commission Decision affects the marketing of hogs in Ontario, therefore, he submitted, the appellants have sufficient interest to support their appeal of the Commission Decision.

Further, he submitted that the Commission's argument that an appellant must have participated at the Commission hearing to appeal that decision is not supported by the Legislation. He noted that for appeals of local board decisions the Legislature did insert an extra condition in the MAFRA Act. Persons aggrieved by a local board decision must request that the local board conduct a reconsideration hearing and receive its decision as a precondition for an appeal to the Tribunal. This extra requirement for local board decisions to qualify for appeal signals that the Legislation likely did turn its mind to imposing additional qualifying conditions on appeals of Commission decisions and elected not to do so.

Ontario Pork counsel commented about the Victoria Wood case cited by Commission counsel. He pointed out that the case is an Ontario Municipal Board case about a minor variance. He submitted that issues in that case did not in any way compare with the magnitude of issues appealed in this case. He submitted that the case should be distinguished and asked the Tribunal to note that the Commission had cited no Tribunal case in support of its position that a person must have participated at the Commission hearing to qualify as an appellant before the Tribunal.

In reply, Commission counsel pointed out that no person who participated as a party at the Commission hearing has appealed the decision. She submitted it was unfair to those parties to permit party status to these appellants at the Tribunal. On inquiry from the Tribunal, Ms Blake advised that the kind of review conducted by the Commission in the case under appeal is not a frequent occurrence but an unusual and therefore notable occurrence within the Ontario hog industry.

Stay of the Commission's Decision

The Tribunal declined to hear the motion about the statutory stay on March 9th, indicating that it would be heard at a continuation of the Pre-Hearing Conference. The Tribunal noted that the statutory stay had been in effect since the first appeal was properly filed in mid-December, 2008.

The Tribunal was nonetheless urged by the Commission and Ontario Pork to provide some direction about the statutory stay that could provide guidance until the motion can be heard. Concerns were expressed that members of the Ontario hog industry are refusing to participate in consultations. Ontario Pork pointed out that there is an overlap between the Commission Decision and work that Ontario Pork was already doing, leaving Ontario Pork unsure of what activities it can move forward on without breaching the stay.

The Tribunal asked participants in the Pre-Hearing Conference to consult during a break to see whether some agreement could be reached about what activities of Ontario Pork covered in the Commission Decision could continue pending a decision on the issue of the statutory stay. Participants reported no agreement could be reached and the Tribunal therefore declined to provide direction regarding the stay until the Pre-Hearing Conference resumes.

Decision

The Tribunal has considerable discretion to decide who may or may not appeal a decision. Section 16(4) is not drafted as a condition precedent to qualifying as an appellant or a bar to an appeal. It provides some framework for limiting what the Tribunal may hear, before or during the hearing.

The Victoria Wood Development decision is not helpful in the case before us.

Those making submissions in support of the Commission urged the Tribunal to consider the balancing of the public interests of the Commission's Decision versus the private interests of the appellants. That is not a fair characterization of the interests of the parties at the Pre-Hearing Conference. Clearly all those seeking party status before the Tribunal had their private interests very much at heart both at the Commission hearing and in their desire to participate in a Tribunal hearing.

The Commission argues that in order to have a right to appeal to the Tribunal, a party must not merely have provided submissions at their hearing (intervenor status) but must have actively presented evidence and cross-examined witnesses.

Counsel for the Commission repeatedly stressed the efficiency of the hearing process before it. In the Notice of Hearing itself, interested parties were encouraged to group together. The hearing took place over four very long and full days. It would appear that efficiency at the Commission level was achieved. Arguably, if the Commission had advised parties of the extent of participation necessary to preserve a right of appeal, their hearing might not have been quite so efficient.

Counsel for the Commission argued that many of the appellants did not set out proper grounds for appeal. They were essentially complaints about how Ontario Pork operated, and, in particular, consulted and made decisions. Counsel suggested that the appellants should wait for Ontario Pork to make a decision, and then appeal that decision.

In its Decision, the Commission ordered Ontario Pork to consult with its membership and industry stakeholders about the nature and scope of its mandate for industry services (paragraph 11). The Commission further ordered Ontario Pork to consult regarding its governance model and submit a proposal (paragraph 12). The Commission cannot now argue that those aspects of its Decision are not subject to appeal.

As to questions of evidence raised in some of the notices of appeal, the Tribunal may choose to have a hearing de novo, at which new evidence could be admitted; the Tribunal may choose to review and weigh the evidence submitted at the Commission hearing. It would be premature at this point to determine that such issues are not properly grounds of appeal.

The Tribunal declines to exercise its discretion to deny parties who participated as intervenors at the Commission, status as parties or intervenors before the Tribunal. Accordingly, Mr. Minnema and Huron Country Pork Producers will remain as appellants. District 11 and 12 participated as intervenors, and will remain as appellants. District 10 wishes to appear together with Districts 11 and 12. If they wish to appear together, they may do so.

The situation of Fields Farms is different. Ms. Felder admitted she had seen the notice of the pre-hearing before the Commission. She described active participation by herself and her husband in the industry beyond their own operation. While her submissions were not made under oath, there was no challenge or objection made. Ms Felder advised that the timing of the hearing in late July was a difficult time for farmers to participate. Counsel for the Commission replied that no request was made for an adjournment because of farm work.

Mr. Richter, acting for Zantingh invited the Tribunal to provide direction on its interpretation of s. 16(4). He shared that as a prudent legal practitioner, he advised his clients to participate at the Commission level in order to preserve the potential for subsequent appeal.

Counsel for the Commission and OMG invited the Tribunal to consider the context of the Commission hearing. Substantial effort was made by the Commission to encourage participation by any interested party - in an efficient way. The Commission determined that the matter was important and everyone involved in the pork industry in Ontario required notice.

The Tribunal is also mindful of the Commission's policy role and concern that persons may feel free to sit out a consultative and hearing process at the Commission and then request party status when they don't like a decision. That is what appeals are about; someone does not agree with a decision.

Commission counsel admitted that this type of hearing is exceptional. The proposed changes are province-wide, and most, if not all hog producers and processors in the province are affected, if not necessarily "aggrieved" by the Decision. It was argued that it is not enough to say "I'm a producer" and therefore be entitled to appeal the decision.

Nothing in the legislation requires participation at the Commission level in order to qualify as an appellant to the Tribunal. Fields Farms will be granted party status as requested.

The term "intervenor" was used at the Pre-Hearing Conference and in this decision. At the Commission hearing, intervenor meant a party who made submissions, either orally, in writing or both. The Tribunal Rules do not use the term "intervenor". Rule 30.01 provides:

Where persons who were not parties to a proceeding wish to make submissions, the Tribunal will, by way of preliminary matters, determine the issues that these persons wish to address and establish the time in the proceedings that the Tribunal will hear these persons, but no such person will be heard unless willing to undergo cross examination by the parties to the hearing. (Emphasis added.)

The requirement to be open to cross examination is not usually part of intervenor status. The Tribunal did refer parties to this rule during the course of the Pre-Hearing Conference, and thought it useful to include the reference as a reminder in these reasons. For lack of a better term, "intervenor" will be used, understanding that the term it is defined in a particular way in the Tribunal Rules.

Statutory Stay

The Notice of Pre-Hearing Conference invited interested parties to address the issue of the statutory stay, and they did.

There was insufficient time on the one day scheduled for the Pre-Hearing Conference to hear arguments on the issue of the stay. More importantly, the materials submitted by Ontario Pork did not allow sufficient time to be properly reviewed and considered.

Given the complexity of the Commission Decision and the variety of work Ontario Pork was directed to undertake, the scope of the stay or its lifting, merits due consideration. The issues regarding the stay are more appropriately dealt with by way of motion, as provided for under s. 25 or the Tribunal Rules.

Order of the Tribunal

The Tribunal hereby Orders that:

Request by the Commission

1. The request by the Commission for the Tribunal to refuse to hear all appeals is denied.

Parties and Intervenors

2. The following individuals and groups are granted status as appellants:

   1. Rein Minnema;

   2. Fields Farms Ltd.;

   3. Huron County Pork Producers' Association; and

   4. District 10, 11, and 12 Pork Producers.
      

3. The following groups are granted party status in the appeals to the Tribunal:

   1. Conestoga Meat Packers (3P)

   2. Ontario Pork Producers' Marketing Board

   3. The Open Marketing Group

   4. Zantingh Direct Inc. and Zantingh Swine Inc.

   5. Quality Meat Packers

4. The following groups are granted intervenor status, within the meaning of Rule 30.01, on the appeals to the Tribunal:

   1. Maple Leaf Consumer Foods

   2. Synergy Swine, Paragon Farms, and RFW Farms

Statutory Stay

5. The appeals to the Tribunal will continue to operate as a stay of the Commission's decision, pending the next day of the Pre-Hearing Conference at which submissions on this issue will be heard.

Filing of Documents and Motions

6. The Commission shall provide a copy of its record from its hearing in July 2008 to all parties and intervenors noted above by March 24, 2009. The Commission will notify the Tribunal, in writing, once all parties and intervenors have received a copy of its record. The Commission shall also make available for inspection by any person, a copy of its record of Decision at its offices or by such other alternate means requested by the Commission and ordered by the Tribunal.

7. Copies of documents filed with the Tribunal or issued by the Tribunal, other than the Commission record, noted in point 1, will be provided by the Tribunal office to all parties and intervenors noted above by March 20, 2009, except as provided below. The Tribunal shall make available for inspection by any person, upon written request, a copy of all documents filed with the Tribunal pursuant to Rule 5 of its Rules of Procedure.

8. Moving parties intending to file a notice of motion will do so by March 24, 2009.

   1. Three copies of such notice of motion will be filed with the Tribunal by the above date.

   2. One copy of such notice of motion will be provided to each other party and intervenor by the above date.

   3. With the consent of the party or intervenor served, moving parties need not reserve supporting documents, books of authorities, etc.

   4. Attention is drawn to Rule 25 of the Tribunal's Rules of Procedure.

   5. Proof of service of the notice of motion shall be provided to the Tribunal as required under Rule 25.06 of the Tribunal's Rules.

9. Any party or intervenor wishing to reply to a motion, shall file a reply by April 3, 2009.
   
   6. Joint submissions are encouraged.
   7. Three copies of such replies will be filed with the Tribunal by the above date.
   8. One copy of such replies will be provided to each other party and intervenor by the above date.
   9. Attention is drawn to Rule 25 of the Tribunal's Rules of Procedure.
   10. Proof of service of the notice of motion shall be provided to the Tribunal as required under Rule 25.11 of the Tribunal's Rules.
   11. There shall be no filing of responses to the reply.
       

Other Matters

10. Parties shall advise the Tribunal, no later than March 24, 2009, of all items identified in the "Revised Notice of Pre-Hearing Conference" dated February 23, 2009, they wish to have discussed during the continuation of the March 9, 2009, Pre-Hearing Conference.

11. Parties shall file a list of issues to be dealt with at the Hearing of the appeals, no later than Friday, April 10, 2009. Parties are encouraged to consult amongst themselves in the identification of issues.

Oral Submissions

12. Parties or intervenors wishing to make oral submissions at the continuation of the Pre-Hearing Conference shall advise the Tribunal in writing of the amount of time they wish to be granted, no later than April 10, 2009, bearing in mind that one day is scheduled.

Continuation of Pre-Hearing

13. This Pre-Hearing Conference is adjourned and will be continued on Friday, April 17, 2009 at 9:00 a.m., in the Pinetree A conference room, at the Ramada Hotel and Conference Centre, 716 Gordon Street, Guelph, Ontario.

Dated at Ottawa, Ontario, this 13th day of March, 2009.