Jack Shaw vs. Dairy Farmers of Ontario (DFO)

 

In the matter of the Milk Act and 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 Jack Shaw, of Kinburn, Ontario, from a decision of the Dairy Farmers of Ontario to deny his request for an exemption from the November 17, 2006 Quota Policy on Transfer Assessments.

And in the matter of: A request for review by Jack Shaw from a decision of the Tribunal dated November 9, 2009 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.

Before:
John O'Kane, Vice-Chair

Appearances:
None

Background to the Review Request

In 2005, after close to 50 years operating a dairy farm, Jack Shaw (Shaw) decided to retire from the dairy industry.

In June 2007, Shaw sold his milk production quota and left the milk production industry. Shaw sold his quota at the prevailing exchange (market) price.

Dairy Farmers of Ontario (DFO) is the legislated regulator of the dairy producer industry (dairy farmers). DFO allocates production quota to dairy farmers.

DFO has a quota transfer policy (Policy). A dairy farmer's sale of milk quota engages the Policy. The Policy imposes a minimum assessment of 15% on all but a farmer's last 10 kilogams (kgs) of quota.

Applying the Policy, DFO imposed an assessment on Shaw's quota sale equivalent to 3.658 kgs. That translates to $98,169.75 based on the prevailing market price.

In other words, Shaw received a market price for his milk quota, less the transfer assessment of $98,169.75 that went to DFO.

DFO considers special circumstance exemptions from the Policy. Section H. 2 of the DFO Quota Policies reads, in part, as follows:

1. Requests for Special Consideration

If a producer requires special consideration for reasons of not being able to comply with a particular policy(s) in Part I, DFO's Quota Committee should be advised of the problems, in writing, providing all the pertinent details as to why special consideration has been requested.

Medical conditions with not be accepted as the basis for any exemption requests. Producers must remain solely responsible for taking whatever steps they deem appropriate, including acquiring insurance, to protect against unforeseen circumstances, including medical challenges.

The Quota Committee will consider a request and make a recommendation to DFO. DFO, in turn, will reach a decision on the matter and the producer will be so advised.

On July 21st, 2008, Shaw asked DFO to grant him an exemption from the transfer assessment based on special circumstances that included his age and his planned departure from the dairy industry. On September 15th, 2008, DFO refused Shaw's exemption request.

Shaw asked DFO to reconsider that decision. DFO held a hearing December 16th, 2008 to consider Shaw's reconsideration request. DFO denied Shaw's reconsideration request.

Shaw then appealed to the Tribunal under section 16 of the Ministry of Agriculture, Food and Rural Affairs Act (the Act).

On August 20th, 2009, the Tribunal held an appeal hearing from DFO's denial to grant Shaw an exemption from the milk quota transfer assessment.

The Tribunal appeal panel (Panel) defined the following three issues for its determination:

1. Does the Tribunal have jurisdiction to consider grounds for appeal which were not raised before the DFO board?
2. On what basis should an exemption request be granted?
3. Is an exemption warranted in this case?
   

In addition to those three issues, the Panel dismissed DFO's preliminary challenge about the impartiality of the Panel. That challenge arose because the three Panel members had been members of earlier Tribunal appeal panels that rendered decisions in three cases involving DFO's Policy.

Those previous cases are Cayer #1, Cayer #2 and Denby. Cayer and Denby were both dairy farmers subject to the DFO's transfer assessment policy on their departure from the dairy industry and both appealed to the Tribunal from DFO's refusal to grant them an exemption. The Tribunal in those cases granted exemptions to Cayer and Denby.

Under section 16 of the Act, on an appeal from any "order, direction, policy or decision" of DFO, the Tribunal conduct a hearing de novo and essentially stands in the shoes of DFO and can make any decision DFO could make.

The Tribunal released its reasons for decision on November 9th, 2009 denying Shaw an exemption from the quota transfer assessment.

On December 1st, 2009, Shaw requested a review of the Tribunal decision and asked for a reversal of that decision.

The Tribunal's Rules of Procedure

Pursuant to section 25.1 of the Statutory Powers Procedure Act, the Tribunal has established Rules of Procedure that includes Rule 29, which is entitled "Review of a Decision".

Rule 29.09 provides that in considering the advisability of a review I can consider any relevant circumstance including those listed in subsections (a) to (e) of that Rule.

Although the Rules permit me to confer with the members of the appeal panel, I elected not to seek out their explanation, preferring to allow the decision to "speak for itself".

In the course of my review, I considered the materials listed in the endnote as the record of the proceedings under Rule 29.16.

Shaw's Reasons For The Request For Review

Shaw asserts the Panel made material errors of law and fact.

My summary of the Shaw reasons for the request for review is below.
1. The decision was influenced by DFO's threat to appeal an unsatisfactory decision.
2. The decision is contrary to established transfer assessment exemption jurisprudence.

Review Findings

1. DFO's Appeal Threat - Reasonable Apprehension of Bias

Long before setting an appeal hearing date, each proposed Panel member receives the names of the parties, the counsel and identification of the issue under appeal.

Each Panel member is obliged to confirm: (1) if they have any conflict of interest participating in the appeal; and, (2) if they are aware of any circumstance arising from their participation that might give rise to a reasonable apprehension of bias. If a member identifies a conflict or reasonable apprehension of bias, the Tribunal searches out other members who are unencumbered by conflict or bias.

Despite those measures, issues of conflict or bias sometimes still arise before, during or even after a hearing.

Confronted with DFO raising this issue at the hearing the Panel considered submissions from both parties. Shaw supported the DFO request for a new hearing panel. The Panel then adjourned to deliberate and consulted with legal counsel to the Tribunal. Although the reasons for decision do not reflect that each member of the Panel searched their conscience to resolve the apprehension of bias issue, it is a reasonable and fair inference that they did so before their decision to proceed notwithstanding DFO's objection.

Shaw's review argument and the synopsis in the Decision of counsels' submissions on apprehension of bias suggest that the concern raised was attitudinal apprehension of bias rather than relational or informational apprehension of bias.

In my view, the question then is whether participation in other cases involving exemptions from DFO's transfer assessment policy creates a reasonable apprehension of bias to disqualify the three Panel members.

Does a reasonable and informed person believe that a decision-maker cannot bring an impartial mind to bear simply because they have previously considered the same issue or previously ruled for or against a party? I do not think so.

As the Panel correctly observed it is inevitable that issues and even parties will appear on a recurrent basis before some Tribunal members. However, deciding one way or the other about granting exemptions from a DFO policy that contemplates exemptions, in the context of a unique set of facts does not, in my view create a reasonable apprehension of bias. I agree with the Panel, something more is required for a reasonable apprehension of bias to exist. Here, there is no evidence that any member of the Panel had developed any particular attitude about either DFO or Shaw.

One additional aspect of this ground for review is the suggestion the threat of an appeal somehow influenced the Appeal Panel. The Ministry of Agriculture, Food and Rural Affairs Act, the Judicial Review Procedure Act and the Tribunal's own Rules of Practice and Procedure all contemplate the review of a Tribunal decision by the Minister, the Divisional Court, or a Tribunal Vice-Chair or Chair. Those review rights exist for all parties appearing before the Tribunal.

Therefore, there is no "threat" associated with the review of a Tribunal decision. I remain unconvinced that the Panel was somehow influenced by the DFO threat to appeal an adverse decision.

2. Misapplication of Exemption Jurisprudence (Error of Fact or Law)

Standing as it does in the shoes of the DFO, the Panel was entitled to define for itself criteria to assist in exercising DFO's broad "special consideration" discretion.

While a decision by one panel of this Tribunal does not bind a different panel of this Tribunal, the Shaw Panel found the reasoning from the Cayer #2 case persuasive and adopted three criteria from Cayer #2 as the bases for considering the Shaw exemption request.

The Panel then focused on whether the Shaw facts engaged any of the three Cayer #2 criteria as a basis to provide a discretionary exemption to Shaw. That, in my view is a matter of weighing evidence and finding facts.

How can I second-guess the findings of fact made by the Panel who had the benefit of hearing the oral evidence?

In my view, the only way I could second-guess those findings is if Shaw convinces me, that there was no evidence on which the Panel could have concluded as it did. (my emphasis added)

The Panel accepted that Shaw had a medical condition but found as a fact that it was treatable and allowed him to return to work, unlike Mr. Cayer.

The Panel accepted that Shaw suffered from the death of his daughter-in-law but found as a fact that loss did not leave him with the added responsibilities of raising four young children, as did the death of Mr. Cayer's wife.

The Panel accepted that Shaw was planning an exit strategy from the dairy industry but, after weighing the evidence, found, as a fact, that the plans were exploratory rather than imminent, unlike Mr. Cayer.

In respect of Shaw's review request argument about errors and omissions in DFO's procedures I find no discussion in the Panel's decision about any evidence on that point nor any finding that DFO's procedures contained errors or omissions. Even if DFO testified there has been no change to its procedures since the Cayer decision, that is not, in my view, evidence of "errors and omissions" in the procedures.

Therefore, Shaw's arguments do not convince me there was no evidence to support those findings.

Decision of the Tribunal

In these circumstances, I refuse to grant Mr. Shaw's request for a review.

Dated at Brampton, Ontario this 8th day of February, 2010.