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;

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

Appearances:

• Rein Minnema represented by agent, Elbert van Donkersgoed
• Huron County Pork Producers' Association represented by Grant Love and John Vander Burgt
• Districts 10, 11 and 12 Pork Producers represented by Bruce Hudson and Rob de Wolde
• Conestoga Meat Packers/Progressive Pork Producers (Conestoga 3P) represented by Bob Hunsberger, Arnold Drung, and Frank Devet
• Maple Leaf Consumer Foods (Maple Leaf) represented by Don Davidson, Cathy Aker
• Ontario Pork Producers' Marketing Board (Ontario Pork) represented by Wilma Jeffray, Ken Ovington, and counsel, Kim Mullin
• The Open Marketing Group (OMG) represented by Brian Simpson
• Quality Meat Packers represented by Dan Cohoe
• Synergy Swine, Paragon Farms, and RFW Farms (Synergy et al.) represented by Rob McDougall, James Reesor, and Mark Yungblut
• Zantingh Direct Inc. and Zantingh Swine Inc. (Zantingh) represented by Brad Zantingh and counsel, Nicholas Richter
• De Wetering Hill Farms represented by Teresa De Wetering
  
  

Interim Decision of the Tribunal

1. The first day of the Hearing of this matter with parties in attendance took place on Wednesday, August 12, 2009, at the Best Western Royal Brock Hotel and Conference Centre, in Guelph, Ontario.

Preliminary Matters

2. At the beginning of the session two members of the Tribunal appointed to hear the appeals of this matter, Vice Chairs Frank Handy and Paula Lombardi, disclosed their previous involvement with some of the organizations who have status in the appeals before the Tribunal.

3. Specifically, Vice Chair Handy advised that several years earlier he had conducted facilitations within the pork industry at the request of the Farm Products Marketing Commission, and that in 2006 he had conducted a mediation between Progressive Pork Producers, Conestoga Meat Packers, and the Ontario Pork Producers' Marketing Board. His involvement with these parties was in the capacity of a mediator, facilitating negotiations between the parties, not in the capacity of a decision-maker or advocate. In approximately 2002, the firm with which Vice Chair Lombardi was then employed was retained by Maple Leaf Foods to provide legal advice regarding environmental, emissions, and discharge compliance issues. Ms. Lombardi advised that she did not conduct litigation on behalf of Maple Leaf Foods.

4. The Tribunal offered parties an opportunity to voice any objections they might have to Vice Chairs Handy and Lombardi sitting on the Tribunal panel hearing these appeals. No objections were made by any of the parties.
   

Findings

5. In response to a query made previously by the Commission, the Tribunal advised that the Commission record will not be admitted into evidence by the Tribunal. Instead it will be available as a reference from which documents may be drawn for use by the parties. The same standards for admission into evidence will be employed by the Tribunal for documents from the Commission record as for other documents.

6. Parties seeking to rely on documents contained in the Commission record will not be required to provide copies of those documents to the other parties and the Tribunal. Instead, each party seeking to rely on documents in the Commission record will be required to identify those documents to all other parties and the Tribunal in advance. Parties have a copy of the Commission record and will be required to source the identified documents from their copy of the Commission record themselves. The Tribunal office will copy and provide the identified documents for the Tribunal.

7. Copies of documents not contained in the Commission record or documents amended since being entered into evidence by the Commission shall be provided to the parties and the Tribunal in the quantities specified in Rule 20 of the Tribunal Rules of Procedure.

8. The panel will not view documents prepared or filed by any party until the party seeking to have them admitted tenders them. At that time, any objections by others to their admission will be heard.

9. The Tribunal heard submissions from some parties about a need for clarification from the Ontario Pork Producers' Marketing Board about its position regarding the appeals, and finds that it will be of assistance to the Tribunal and the other parties to have a clear statement of the current position held by Ontario Pork regarding the appeals so that the other parties may align their interests effectively and know what case will be argued.

10. The Tribunal heard submissions regarding the order of presentation at the hearing. The majority of the parties submitted that the following order of presentation would be best:
    a. Appealing parties, and intervenors supporting the positions of the appealing parties, then
    b. Ontario Pork Producers' Marketing Board, then
    c. Other responding parties and intervenors supporting the positions of the responding parties.

11. No parties objected to De Wetering Hill Farms being granted status as an intervenor.

12. The Ontario Farm Products Marketing Commission, which made the decision being appealed, has indicated that it will not participate in the hearing unless the Tribunal requests specific information from it. The Commission has supplied the parties and Tribunal with the record of the previous hearing. The Commission has requested, however, that it receive a copy of all materials put into evidence.

13. The Tribunal acknowledges notice from Fields Farms Ltd. that it will not participate further in the appeals.

14. No parties objected to the consolidation or hearing together of the appeals of the three appellants: Rein Minnema, Huron County Pork Producers' Association, and District 10, 11, and 12 Pork Producers.

15. With respect to the duration of the hearing, the accumulated estimates of time required for all parties to present evidence-in-chief is the equivalent of approximately 4 to 5 days. The Tribunal finds it appropriate at this time to schedule 6 days of hearing and will assess the number of additional days required at the conclusion of portion of the hearing.

16. With respect to the scheduling of future dates for the hearing of the appeals, several parties preferred its continuation in August but failing that, November and/or December 2009, in order not to interfere unduly with harvest.

Order of the Tribunal

17. Therefore, the Tribunal Orders as follows:

A. De Wetering Hill Farms shall be added as an intervenor in the appeals before the Tribunal.

B. The Ontario Farm Products Marketing Commission will be notified in the event the Tribunal seeks its participation. The Commission may request copies of documents from the Tribunal after they have been accepted as evidence.

C. The appeals by Rein Minnema, Huron County Pork Producers' Association, and District 10, 11, and 12 Pork Producers shall be heard together.

D. During the continuation of the Hearing of the Appeals the order of presentation of the parties shall be as follows:

1. Appellants and Supporting Intervenors
2. Ontario Pork Producers' Marketing Board
3. Respondents and Supporting Intervenors

E. By Friday, August 21, 2009, the Ontario Pork Producers' Marketing Board shall provide to all other parties one copy and to the Tribunal five copies of its current written position on the issues in the appeals of the decision of the Commission dated October 6, 2008. Ontario Pork is not barred from amending its position after hearing the Appellants' cases.

F. By Friday, August 28, 2009 each party shall provide to all other parties one copy and to the Tribunal five copies of its comments, if any, on the August 21st position of Ontario Pork. Parties may include the following additional items in their comments:

a. Amendment of their statement of issues
b. Their opinion or preference on the order in which they wish to make their presentation within the appellant or respondent group during the hearing of the appeals, and
c. Any request for a change in status (e.g., intervenor to party) with respect to the appeals before the Tribunal.

G. By Friday, September 11, 2009, the Tribunal shall provide to all parties a list of the issues to be considered during the hearing of the appeals and a final order of appearance for all parties.

H. By Friday, November 6, 2009, each party shall deliver to each other party one copy and to the Tribunal five copies of

a. a list with clear identification including volume number and tab number of each document from the Commission record that the party seeks to submit to the Tribunal in evidence;
b. all other documents that the party seeks to submit to the Tribunal in evidence. This order for disclosure includes any expert report upon which a party seeks to rely;
c. a list of all witnesses and a summary of the testimony of each witness that the party intends to call.

I. By Friday, November 13, 2009, each party shall deliver to each other party one copy and to the Tribunal five copies of its reply documents, if any, to the documents received from other parties as ordered in point G above. By this same date parties who intend to submit a responding expert report to the Tribunal in evidence shall provide written notice of that intention to each other party and to the Tribunal.

J. By Wednesday, November 17, 2009 parties who gave notice of their intention to submit a responding expert report to the Tribunal in evidence shall provide to each other party one copy and to the Tribunal five copies of said responding expert report.

K. The Hearing of the appeals shall continue on the dates and times noted below, at a location in Guelph to be confirmed in an upcoming Notice of Hearing:

a. Wednesday, November 25, 2009, from 12:00 p.m. until 9:00 p.m.
b. Thursday, November 26, 2009, from 9:30 a.m. until 6:00 p.m.
c. Friday, November 27, 2009, from 9:30 a.m. until 6:00 p.m.
d. Wednesday, December 2, 2009, from 12:00 p.m. until 9:00 p.m.
e. Thursday, December 3, 2009, from 9:30 a.m. until 6:00 p.m.
f. Friday, December 4, 2009, from 9:30 a.m. until 6:00 p.m.

Dated at Guelph, Ontario, this 17th day of August 2009.