Ontario Quota Rights Organization vs. Dairy Farmers of Ontario (Interim Decision)

In the matter 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 (Tribunal) by the Ontario Quota Rights Organization, Jean-Marie Menard, of Embrun, Ontario, Jacques Lamarche, of Lefaivre, Ontario, and Doyle Harrigan, of Curran, Ontario (OQRO, et al.), of a decision of the Dairy Farmers of Ontario (DFO), to deny their request for reconsideration of the DFO quota policy of March 2009;

And in the matter of: a Pre-Hearing Conference pursuant to Rule 24 of the Tribunal's Rules of Procedure;

And in the matter of: the hearing of the motion by DFO to have the stay lifted or defined by the Tribunal, pursuant to Rule 25 of the Tribunal's Rules of Procedure;

Before:
Frank Handy, Vice Chair

Appearances:
Donald Good, counsel to the appellants, OQRO, et al.
Doyle Harrigan, appellant
Jean-Marie Menard, appellant
Geoffrey Spurr, counsel to the respondent, DFO
George MacNaughton, representative of the respondent

Interim Decision of the Tribunal

This Pre-Hearing Conference was heard in the Tribunal Boardroom, in Guelph, Ontario, on Monday, July 20, 2009.

The Issues

There were three aspects of this appeal to deal with today:

1. A Pre-Hearing Conference to deal with procedural matters in the main appeal;
2. A motion brought by the DFO to lift or vary the stay that is automatically imposed by virtue of section 25(1) of the Statutory Powers Procedure Act (SPPA) and section 16(6) of the Ministry of Agriculture, Food and Rural Affairs Act (MAFRA Act); and
3. A motion to adjourn the motion brought by the DFO.

Findings and Analysis

Issue a)

This issue is dealt with by way of a Procedural Order of the Tribunal, dated July 20, 2009.

Issues b) and c)

I have reviewed the record and history of this matter carefully, and in my view there are significant problems in not hearing this matter promptly, for the following reasons:

1. All participants in this hearing knew the effective date of the policies;
2. They were implemented in March 2009 with an effective date August 1, 2009; and
3. The exchange bids under this policy can commence as of today, July 20, 2009.

In an ideal world, all parties would know the status of the policies and be able to make decisions accordingly. In the current situation, these policies could be those under the old system if the stay is maintained, or could be under the new policies if the stay is partially or fully lifted. A third possibility would be that the stay applies to the appellants but not to other producers. DFO submits that this third possibility is the broadest possible application of the stay in any event, while OQRO submitted that it is not practical to run parallel regimes with some producers following one set of rules and another following another set. Regardless of the outcome of the stay motion and the appeals, it would be better to have a clear determination of what policies apply to whom. Therefore, a decision on the stay is preferable before August 1.

Second, I do not place any great weight on the timing of how the issues were dealt with prior to the appeal. Before July 3, 2009, when the appeal was filed by OQRO, there was no stay in force. There was also no jurisdiction for the Tribunal to deal with a stay, nor was there an issue for the DFO to respond to regarding the timing of the implementation of the policies under appeal. The need to consider the impact of the policies, the preparation of the appeal, the need for reconsideration by the DFO, the nature of the evidence to be collected and expert evidence to be prepared, and the timing of matters before the Tribunal would likely have collided with the implementation date anyway. While all the parties may have anticipated an appeal, I do not fault either party for its actions prior to July 3. I find that the DFO has moved promptly since the filing of the appeal to deal with the stay issue and seek to have its motion determined.

Third, in providing its material and bringing the motion, the DFO in my view complied with the time limits set out in the Tribunal's procedure. In addition, the DFO did not refuse to have Mr. Gould cross-examined, it merely insisted that it understand the substance of the OQRO position and evidence before presenting him. Instead of filing its materials within the time frame of the motion rules and then seeking an adjournment, the OQRO first sought its adjournment or cross-examination.

In light of these reasons, I was inclined to deny the motion to adjourn.

However, the issue of stays of policy matters is a very significant issue, with significant impacts, and one that the Tribunal is being asked to deal with in a variety of contexts with differing particulars. It is very important that the Tribunal have a full record and the benefit of evidence and argument from all parties.

I acknowledge that the time frame for such an important motion is challenging, and that the OQRO also has the right to seek an adjournment if it does not consider that it will be able to present its argument effectively without cross-examination.

Order of the Tribunal

In all of the circumstances, I make the following order:

1. The hearing of the motion regarding the stay is adjourned until 1:00 p.m. on Monday, July 27, 2009.
2. OQRO will provide its affidavit and all other material to the DFO today, July 20, 2009, and file it with the Tribunal as soon as the affidavits are properly sworn.
3. Cross-examinations, if any, will be completed by 4:30 p.m. on Friday, July 24, 2009.
4. The Tribunal will hear oral argument from counsel regarding lifting the stay beginning at 1:00 p.m. on Monday, July 27, 2009. No viva voce evidence will be necessary or permitted.
5. I expressly do not make any findings on any of the arguments presented today that touched on the stay issues while dealing with the adjournment motion.

Dated at Guelph, Ontario this 20th day of July, 2009.