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 continued April 17, 2009, at the Ramada Hotel, Guelph.

Before:
Frank Handy, Vice Chair; Kirk Walstedt, Chair; Paula Lombardi, Vice Chair

Appearances:

None
Opportunity for written submissions provided

Interim Decision of the Tribunal

1. The Chair of the Tribunal has determined that Vice-Chairs Frank Handy and Paula Lombardi, and Chair, Kirk Walstedt will form the panel to hear these Appeals. Frank Handy will Chair the Hearing.
2. The Tribunal thanks all those who submitted materials to the Tribunal to assist it in determining the most appropriate manner of hearing the Appeals. The Tribunal received submissions from those listed on Schedule "A" to this decision.
3. The Tribunal reviewed the submissions and met to determine the most appropriate manner of hearing. In making its decision the Tribunal considered the issues identified in the written submissions, the importance of the matters under appeal, and the usual practices of the Tribunal.
4. The Tribunal notes that in accordance with Sections 16(1), (10) and (11) of the MAFRA Act there is a statutory right to bring and participate in an appeal, and a statutory power for the Tribunal to exercise: these rights and powers are independent of the Commission's procedure in reaching a decision or the scope of the decision rendered by the Commission. Parties may appeal "an order, direction, policy or decision of the Commission" by which they are "aggrieved". Any party with "sufficient interest in the subject-matter of the appeal may be a party to the appeal". Finally, the Tribunal stands in the place of the Commission in that it has the authority "by order to direct the Commission, local board [in this situation, the Ontario Pork Producers' Marketing Board], the marketing board or the Director . . . to take such action as it or he or she is authorized to take" and "for this purpose the Tribunal may substitute its opinion for that of the Commission, the local board, the marketing board or the Director."
5. There is nothing in the legislation that obligates the Tribunal to accept or assume the Commission's hearing procedure, the evidence previously submitted, earlier decisions on standing or the scope of participation or lack thereof by parties who now seek to appeal or participate in the appeal hearing. These types of limitations are explicit in other appeal procedures, such as under the Planning Act, and the scope of the appeal rights granted and the Tribunal's authority under the MAFRA Act are not fettered in such a manner.
6. Given the opposing submissions of the parties about how to proceed, the Tribunal must look to its primary obligation to provide a full and proper opportunity pursuant to the Statutory Powers and Procedure Act and the requirements of natural justice to hear the merits of the appeals of the decision of the Commission.
7. The Tribunal wishes to ensure that the scope of the issues in the appeal is properly identified, that the evidence will be fully and fairly presented and tested, and that both those in support of and those aggrieved by the decision will have an equal opportunity to make their best arguments. At the same time, the Tribunal is aware of the investment of time and effort required to hold a hearing, and therefore wishes to provide guidance for the parties to prepare for the remainder of the hearing.
8. Therefore, the Tribunal Orders as follows:
   1. The Tribunal will hold a de novo hearing of the Appeals. Parties will be permitted to submit and prove material from the hearing that was presented before the Commission, to update and submit revised material or to submit new material as required. Parties are encouraged to consolidate their submissions and evidence where their particular interests are congruent with those of others.
   2. A written list of proposed issues to be considered on the Appeals will be prepared by each person who receives a copy of this order and who wishes to participate in the Appeals, along with a final confirmation or statement of what status the person wishes to have in the Appeal.
   3. The list of proposed issues must arise from the decision of the Commission that has been appealed. Each Party will circulate its list of issues to all those circulated with this decision, and submit a copy to the Tribunal by 4 pm on August 5, 2009.
   4. The first day of hearing for the Parties to attend in person will be on August 12, 2009. On this day the Tribunal will hear from the parties and determine:
      
      1. Standing of participants in the Appeals;
      2. The specific issues to be considered by the Tribunal on the Appeals;
      3. Consolidation and/or order of hearing of the remaining Appeals;
      4. The order of presentation by parties;
      5. Any other issues to enhance the efficient presentation of evidence and submissions;
      6. Expected length of the remainder of the hearing;
      7. Schedule of dates for the remainder of the hearing.
   5. Each Party will come to the hearing prepared to make submissions on the issues listed in paragraph IV above.
   6. The Tribunal will provide a further notice regarding the location and start time of proceedings on August 12.

Dated at Guelph, Ontario, this 14th day of July 2009.