Ministère de l'Agriculture, de l'Alimentation et des Affaires Rurales

Agriculture, Food and Rural Affairs Appeal Tribunal(Tribunal) and Board of Negotiation (BON)

I am pleased to present the Annual Report of the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) and the Board of Negotiation (BON) for the year ending March 31, 2012. The report focuses on the Tribunal's achievements for the year.

The Tribunal serves as the adjudicative body for those who feel aggrieved by decisions made under various legislation under the auspices of the Ontario Ministry of Agriculture, Food and Rural Affairs. The BON serves as the body that negotiates settlements between parties under the provisions of section 172 of the Environmental Protection Act.

The Tribunal continues to work hard to carry out its adjudicative mandate and achieve its goals. We recognize the need to provide a fair and effective appeal mechanism to clients who come before us, and have endeavoured to meet clients' needs and expectations in the past year. No matters were brought to the BON in 2011-12.

In June 2011, the Tribunal held hearings to consider applications for reaccreditation from the Ontario Federation of Agriculture, the Christian Farmers Federation of Ontario and the National Farmers Union-Ontario (NFU-O). In the case of the NFU-O, the hearing was continued for a second day in September 2011 as a result of concerns raised by a board member and three former board members of the NFU-O about the NFU-O's ability to meet the criteria for reaccreditation. A hearing was also held in June 2011 to consider the eligibility of the Union des cultivateurs franco-ontariens for special funding. Decisions arising from those hearings were released in the next fiscal year.

The Tribunal addressed the requirements under the new Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 during the course of 2011-12 by preparing various governance accountability documents as required in the legislation for the approval of the Minister; and one document, the Ethics Plan, for the approval of the Conflict of Interest Commissioner.

The Tribunal continues to use a client survey to obtain feedback on the services it provides. The survey is conducted annually among individuals and organizations who participated in proceedings before the Tribunal during the fiscal year. The results of the survey assist the Tribunal in its ongoing efforts to improve the delivery of its services, and to evaluate the Tribunal's performance. I am pleased that the ratings provided by clients in the key areas of services we provide remain at high levels.

On behalf of the Tribunal members, I look forward to continuing to serve the agriculture and food sectors, as well as rural communities, throughout Ontario.

Yours truly,

Kirk Walstedt
Chair

The Agriculture, Food and Rural Affairs Appeal Tribunal

The Agriculture, Food & Rural Affairs Appeal Tribunal (Tribunal) is an adjudicative agency of the Ontario government where decisions made by other bodies can be appealed or where applications and complaints can be heard pursuant to legislation that authorizes the Tribunal to hear those matters. Most Tribunal members also serve on the Board of Negotiation (BON) established under the Environmental Protection Act.

Some members of the Tribunal are also appointed to a special roster of members who may hear complaints and applications under the Agricultural Employees Protection Act, 2002.

The Tribunal's hearing room and offices are located in the Government Building at 1 Stone Road West, Guelph. The Tribunal also conducts hearings throughout Ontario, as necessary, to improve its accessibility to all parties that appear before it.

Mandate of Tribunal

Constituted under Section 14 of the Ministry of Agriculture, Food and Rural Affairs Act, the mandate of the Tribunal is to provide an independent, accessible avenue of appeal on a variety of agricultural issues under the following provincial statutes and have them heard by an impartial and knowledgeable Tribunal: Agricultural Employees Protection Act, 2002; Agricultural Tile Drainage Installation Act; the Animals for Research Act; the Animal Health Act, 2009; the Assessment Act; the Beef Cattle Marketing Act; the Commodity Board Members Act; the Crop Insurance Act (Ontario), 1996; the Drainage Act; the Farm Implements Act; the Farm Registration and Farm Organizations Funding Act, 1993; the Food Safety and Quality Act, 2001; the Grains Act; the Livestock Community Sales Act; the Livestock and Livestock Products Act; the Livestock Medicines Act; and the Ministry of Agriculture, Food and Rural Affairs Act (for appeals of decisions made under the Farm Products Marketing Act and Milk Act).

Mission Statement of Tribunal

To provide a fair and impartial hearing and decision process for those who are aggrieved by a direction, policy, order or decision, or who require the resolution of a dispute pursuant to legislation that falls under the mandate of the Agriculture, Food and Rural Affairs Appeal Tribunal.

Mandate of the Board of Negotiation

Established under the authority of the Environmental Protection Act, the mandate of the BON is to negotiate a settlement of a claim where a contaminant is causing or has caused injury or damage to livestock or to crops, trees or other vegetation. Where a claimant has requested an investigation by the Minister of the Environment and a report is filed, and where the claimant and the person responsible for the injury or damage are not able to reach a settlement of the claim, either party may refer the matter to the BON for settlement. Settlements negotiated by the BON are non-binding.

Mission Statement of Board of Negotiation

To provide a fair and impartial process for the negotiation of a settlement of claim where a party has served a notice of negotiation upon the Board of Negotiation in accordance with section 172 of the Environmental Protection Act.

Values/Operating Principles

The Tribunal values:

Any order, direction, decision or policy of the local marketing boards, or of a Director made under the Farm Products Marketing Act or the Milk Act may be appealed to the Tribunal. Regulations of commodity boards may also be appealed to the Tribunal. Orders, directions or decisions of the Ontario Farm Products Marketing Commission that apply specifically to the aggrieved person, a group of persons of which the aggrieved person is a member or with respect to a particular dispute or incident involving the aggrieved person can also be appealed to the Tribunal. However, regulations, policies, orders, directions or decisions of the Commission that are of general application are not appealable to the Tribunal.

A producer or commodity board who is of the opinion that a member of the commodity board has contravened the Commodity Board Members Act may apply to the Tribunal to determine whether or not the member has contravened the Act.

A decision that results in the refusal to issue a licence, the refusal to renew a licence, the suspension or revocation of a licence issued under the Agricultural Tile Drainage Installation Act, the Animals For Research Act, the Animal Health Act, 2009, the Grains Act, the Food Safety and Quality Act, 2001, the Livestock and Livestock Products Act, and the Livestock Medicines Act can be appealed to the Tribunal. Under the Beef Cattle Marketing Act, the Tribunal can hear appeals from decisions of a Director to not include or remove plants from a list of plants that comply with the Act and regulations.

Under the Drainage Act, the Tribunal's jurisdiction ranges from complaints about assessments and allowances, to requests for modification of the drainage works including complaints of quality of construction and directing a municipal council to proceed with drainage works after a petition for drainage has been filed. Its powers relate more to the operational or remedial provisions of the Act.

Under the Farm Registration and Farm Organizations Funding Act, 1993, the Tribunal accredits general farm organizations; determines the eligibility of a Francophone farm organization to receive special funding, and decides on applications for exemption from registration and/or payment as required by the Act where individuals or farm businesses object to payment and/or registration because these actions would be in contravention of their genuinely held religious convictions and/or beliefs.

Under the Assessment Act, the Tribunal hears appeals regarding the eligibility of agricultural properties for the farm property class designation.

Under the Crop Insurance Act (Ontario), 1996, the Tribunal has the mandate to resolve all disputes arising out of the adjustment of loss under contracts of insurance between AgriCorp and an insured person, provided the person has filed an appeal within the time allowed. It can also rule on whether or not a person qualifies for a contract of insurance, if AgriCorp has denied coverage.

The Tribunal hears applications and appeals arising out of the application of the Farm Implements Act. Applications may arise from disputes between manufacturers or distributors and dealers of farm equipment, or between an end buyer and a dealer, distributor, or manufacturer. Appeals may also arise from a decision of a Director related to the registration of a dealer or distributor.

The Tribunal has the authority to hear complaints and applications under the Agricultural Employees Protection Act, 2002. These may involve requests for access to employees on properties controlled by the employer or complaints regarding non-compliance with the Act.

Who Can Appea to the Tribunal

An appellant can be a landowner, a producer, a processor, a consumer, an employee, a transporter, a dealer, a manufacturer, a distributor, an unincorporated association or any other person or group of individuals who has a statutory right to appeal or make application to the Tribunal.

Within 30 days after receipt by the Minister of a decision of the Tribunal made under the Ministry of Agriculture, Food and Rural Affairs Act (arising from appeals of decisions made under the Farm Products Marketing Act or the Milk Act) and the reasons therefore, if any, or within such longer period as may be determined by the Minister within such 30-day period, the Minister may:

Powers of the Courts

Decisions of the Tribunal with respect to licensing issues under the Agricultural Tile Drainage Installation Act, the Animals For Research Act, the Beef Cattle Marketing Act, the Grains Act, the Livestock Community Sales Act, the Livestock and Livestock Products Act and the Livestock Medicines Act may be appealed to the Superior Court of Justice (Divisional Court) in accordance with the rules of the Court. Decisions of the Tribunal under the Assessment Act and the Farm Implements Act may be appealed to Divisional Court on matters of law. All decisions of the Tribunal may be subject to judicial review.

2011-12 Highlights

Ministry of Agriculture, Food and Rural Affairs Act (Appeals of Decisions made under Farm Products Marketing Act or Milk Act)

In 2011-12, the Tribunal completed a total of six hearings and one pre-hearing conference arising from appeals under the Ministry of Agriculture, Food and Rural Affairs Act. The Tribunal denied five of the appeals heard and granted one in part. One decision from a hearing held in 2010-11 was also released in 2011-12. This appeal was denied. Five appeals under this Act were also withdrawn in 2011-12.

The Tribunal received no requests for review of a decision in 2011-12. However, a decision from a request for review received in 2010-11 was issued in 2011-12. The request for review was denied.

Number of decisions by commodity is as follows:

Crop Insurance Act (Ontario), 1996

In 2011-12, the Tribunal received one appeal from a decision of AgriCorp denying a producer's claim with respect to a crop of peas. The matter was resolved between AgriCorp and the claimant prior to the hearing, resulting in the appeal being withdrawn. The Tribunal also heard one appeal received in the previous fiscal year involving a claim on a crop of grapes. The appeal was granted.

Farm Registration and Farm Organizations Funding Act, 1993

The Farm Registration and Farm Organizations Funding Act, 1993 established a system which provides general farm organizations with a reliable source of funding. Under the Act, farm businesses with a gross farm income of $7,000 per annum or higher are required to register and to direct an annual registration fee to a farm organization that is accredited under the Act. Provision is also made for individuals to be granted exemptions from registering and/or making payment under the Act on the basis of religious beliefs and convictions.

In 2011-12, the Tribunal received 91 applications for a religious exemption under the Act. Each valid application was forwarded to the accredited farm organizations and reviewed by the Tribunal. When, after review of an application, it is not clear to the Tribunal that an application is based on a genuinely held religious belief or conviction, the Tribunal schedules a hearing. The Tribunal also holds a hearing if there is an objection by one of the accredited farm organizations. No hearings were held in 2011-12.

The Tribunal granted a total of 81 religious exemptions - 77 exemptions from both registering and paying the prescribed fee, and four exemptions from paying the fee only. The Tribunal did not consider eight applications as the applicants were not required to register their farm businesses or pay the prescribed fee since their businesses did not meet the $7,000 per annum income threshold. Two applications were subsequently withdrawn.

During the year, the Tribunal also held reaccreditation hearings for the Ontario Federation of Agriculture, the Christian Farmers Federation of Ontario and the National Farmers Union - Ontario under Section 4(2) of the Act. In addition, the Tribunal held a hearing for the Union des cultivateurs franco-ontariens under Section 17 of the Act with respect to renewal of its eligibility for special funding. Decisions arising from these hearings were released in the next fiscal year.

Drainage Act

The Tribunal provides a readily accessible forum for appeals and applications under the Drainage Act. Matters heard include appeals pertaining to the Engineer's Report and Assessments under sections 48 and 54 of the Act; appeals pertaining to the quality of the construction of a drainage works under section 64 of the Act; appeals from decisions of a Municipal Council to not proceed with a petition for drainage works, or has not decided within 30 days after the filing of a petition to proceed with a drainage works under Section 5 of the Act; and applications to correct an Error in an Engineer's Report or to vary assessments under sections 58(4) and 76 of the Act.

Tribunal hearings are held throughout Ontario, usually in the municipal office of the municipality where the appeal is filed. The Tribunal's practice is to hold a single hearing for all appeals made with respect to a single drainage works. Typically, there is more than one appellant on drainage appeals.

The Tribunal held six hearings and considered one application under Section 58(4) of the Act by way of a written hearing, and also held two motion hearings in 2011-12 for a total of nine hearings. The Tribunal issued a total of 11 decisions under the Act in 2011-12. Seven of those decisions were from the hearings and written hearing held in 2011-12 while one decision was from an appeal heard in the previous year. The two motion hearings resulted in two motion decisions and a costs of motion decision. The costs of motion decision resulted in a request for review which was denied. Of the eleven decisions issued in 2011-12, eight were denied, two were granted, and one was granted in part. Appeals relating to two other drainage matters were withdrawn.

Agricultural Employees Protection Act, 2002

No new complaints or applications were received by the Tribunal under this Act in 2011-12.

Assessment Act

The Tribunal hears appeals referred to it by the Assessment Review Board regarding the eligibility of properties for the farm property class tax rate. Properties which receive the farm property class are assessed at 25% of the residential tax rate.

In 2011-12, the Tribunal heard 58 farm property class appeals over three days. For the appeals heard and decisions issued during the year, the farm property class was granted 32 times and denied 23 times, with three decisions granted in part. Decisions from 11 appeals heard in the previous year were also issued in 2011-12. Of those 11 appeals, seven were granted and four were denied. The Tribunal also received three request for reviews of farm property class tax decisions in 2011-12. Two of the requests were granted and one was denied.

Farm Implements Act

The Tribunal completed one hearing under this statute in 2011-12 which commenced in the previous year. The appeal was granted. A decision issued by the Tribunal in 2010-11 pertaining to liability issues in the matter under appeal, was appealed by the responding party to the Court of Appeal. A decision from the Court of Appeal in this matter has not yet been issued. The Tribunal received one new appeal in 2011-12.

Food Safety and Quality Act, 2001

The Tribunal completed one hearing on a licensing matter under this statute in 2011-12 which commenced in the previous year. The appeal was denied.

Livestock Medicines Act

The Tribunal held one hearing under this statute over a period of two days in 2010-11 concerning a decision of a Director appointed under the Act on a licensing matter. The decision arising from that appeal was granted in 2011-12. The Ministry subsequently requested a review of the decision which was granted. The decision arising from the request for a review ordered that the review proceed by way of a written hearing which was completed in 2011-12. The decision arising from the written hearing will be issued in the next fiscal year.

Summary of Hearings Held/Applications Approved under all Statutes

Historic Data

History of Appeals under the Farm Products Marketing Act and the Milk Act - last five years

 ^{* 2 additional appeals received prior to April 1, 2011were also withdrawn in 2011-12}

Recent History of Applications for Religious Exemption

 ^{*Decision issued in 2010-11}

2011-12 Highlights - Board of Negotiation

No parties asked to appear before the BON in 2011-12.

Financial Performance

The Tribunal and the BON operate under a budget allocated by the Ontario Ministry of Agriculture, Food and Rural Affairs and as such do not have their own audited financial statements. The Tribunal and BON resource requirements are incorporated under the ministry's business plan.

Operating Expenditures

In 2011-12, overall, the Tribunal operated approximately 4% over its budgeted allocation. This minor shortfall was covered through allocations from the Ministry of Agriculture, Food and Rural Affairs. Costs attributed to transportation and services for conducting Tribunal hearings were down 11.4% from the previous fiscal as a result of having 14 less hearing days in 2011-12 compared to 2010-11.

Staff Resources

The ministry has three full-time employees to support and provide services to the Tribunal and BON. The positions are two Tribunal Coordinators, and a Bilingual Administrative Service Representative. The ministry provides administrative and financial support through the Business Services Branch, Research and Corporate Services Division. Legal services to the Tribunal and BON are provided by the Ministry of Attorney General through the Legal Services Branch of the Ministry of Agriculture, Food and Rural Affairs.

Operational Performance

Expected Outcomes:

Milk Act and/or Farm Products Marketing Act

Crop Insurance Act (Ontario), 1996

Drainage Act

Farm Implements Act

Food Safety and Quality Act, 2001

Notes:

* Survey questions changed and increased from 16 to 19 in 2009
** Survey questions modified and increased from 19 to 20 in 2010. Rating scale was also modified in 2010 from unsatisfactory, needs improvement, satisfactory, good and excellent to very satisfied, satisfied, neutral, dissatisfied and very dissatisfied.

In 2010-11, changes to the rating scale for the annual client survey were made to reflect government evaluation standards. As a result, survey questions were also modified to reflect the use of the required rating scale while maintaining the intent to seek feedback from parties to hearings in four key areas - access to information from the Tribunal, the appeal process, the hearing process and the decision. The results from the client survey are captured in the performance measures section below and are used to evaluate the performance of the Tribunal against its function, commitments and strategies. Due to the changes in the questions over the past two years and the changes in the rating scale between 2009 and 2010, direct comparison of survey results from previous years cannot be made. However, the Tribunal and BON target is still to achieve an 80% satisfaction rate.

Access to Information

95.8% of survey respondents who accessed the Tribunal's website rated the information found on the website as neutral or higher with 58.3% of that group indicating they were either satisfied or very satisfied with the information. A similar number of respondents, 95.7%, were neutral or higher that the information on the website was easy to find, while 60.9% were either satisfied or very satisfied that the information was easy to find. 25.0% of the respondents indicated the question about the Tribunal's website was not applicable to them suggesting those respondents did not use the Tribunal's website.

93.6% of respondents rated the response time of staff to information requests as neutral or higher with 87.1% of respondents indicating they were either satisfied or very satisfied with the response time.

Appeal Process

87.6% of respondents rated the response time for the acknowledgement of their appeal as neutral or higher with 78.2% of those indicating they were either satisfied or very satisfied with the response time. 91.2% of respondents indicated they were neutral to very satisfied with the selection of hearing dates, with 67.7% indicating they were either satisfied or very satisfied.

Hearing Process

Overall, respondents were satisfied with the hearing process provided by the Tribunal. 88.3% of respondents were either satisfied or very satisfied with the location of Tribunal hearings, and all those who responded to the question were neutral to very satisfied that the location accommodated persons with disabilities.

79.4% of respondents were either satisfied or very satisfied with the process and timing for the exchange of hearing documents between parties in advance of the hearing. Over 80% of respondents were satisfied or very satisfied with the information about the hearing process outlined by the Chair at the start of the hearing (87.1%); respect and consideration given to participants at the hearing (83.3%); types of questions asked by the panel (75%); and the overall conduct of those in attendance at the hearing (83.9%).

75% to 77.7% of respondents were satisfied to very satisfied with the types of questions asked by the panel (75%); the level of industry specific knowledge displayed by panel members (75%); and the impartiality displayed by panel members at the hearing (77.7%).

90.9% of respondents were neutral to very satisfied with the information provided by staff about the hearing process in advance of the hearing, with 72.7% of respondents indicating they were satisfied or very satisfied with this information.

The Decision

75% and 75.8% of respondents respectively were neutral to very satisfied that the hearing decision reflected the evidence presented at the hearing and neutral to very satisfied with the reasoning in the decision. Approximately 66% of respondents were satisfied or very satisfied with the decision on these two issues. 87.8% of respondents were neutral to very satisfied that the decision reflected the impartiality of the panel, while 63.6% were satisfied or very satisfied on this point.

While the Tribunal's target to release decisions within 30 days of completion of a hearing did not improve in 2011-2012, 87.6% of respondents were still neutral to very satisfied with the timeliness of the release of the decision, which is up from a neutral to very satisfied rating of 82.1% in 2010-2011. 68.8% of respondents were either satisfied or very satisfied on this issue, compared to 60.8% being satisfied or very satisfied in 2010-11. In many cases, decisions that took longer than 30 days after completion of the hearing to be released required additional time due to either the complexity of the matter under appeal, and/or the volume of evidence to consider.
Overall Satisfaction

Overall, 89.6% of survey respondents were neutral to very satisfied with the Tribunal's appeal process, with 74.1% of respondents being satisfied and very satisfied with the appeal process.

The Tribunal and BON also monitor the number of days between the receipt of an appeal, application or complaint to the release of the decision. It does not set performance targets in this regard as delays in setting hearing dates are largely due to external factors.

The Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (ATAGAA) came into force (in part) on April 7, 2010. The purpose of the ATAGAA is to ensure that adjudicative tribunals are accountable, transparent and efficient in their operations. In addition to the requirement under the Agency Establishment & Accountability Directive to prepare governance accountability documents - Memorandum of Understanding, Business Plan and Annual Report, the new ATAGAA requires that adjudicative agencies develop public accountability documents - Mandate and Mission Statement, Consultation Policy, Service Standard Policy, Ethics Plan and Member Accountability Framework by April 1, 2012. The Tribunal met those requirements during 2011-12.

Representation at Tribunal Hearing

In 2011-12, Tribunal staff looked at the proportion of parties appearing before it who used legal counsel or some other agent, and the proportion of parties who represented themselves. This was a follow up analysis to a study initiated in 2002. The majority of appeals and applications heard by the Tribunal fall under the Ministry of Agriculture, Food and Rural Affairs Act and the Drainage Act. Consequently, the information provided below pertains to those statutes. The Tribunal normally receives no more than one or two appeals per year under other statutes.

Ministry of Agriculture, Food and Rural Affairs Act

For appeals heard under the Ministry of Agriculture, Food and Rural Affairs Act Act (Appeals of decisions made under the Milk Act or Farm Products Marketing Act), the proportion of appellants using legal counsel over the period 2002-2011 was 51.3% versus 35.7 % over the period 1992-2001. In 2011-12, 50% of the appellants were represented by legal counsel which is a decrease from 75% of appellants using legal counsel in the previous year. The proportion of respondents using legal counsel versus representing themselves continues to increase as well. While 62.6% of respondents on average used legal counsel from 1992 -01, this percentage increased to 80% in the period 2002-11. In 2011-12 and the previous year, all respondents were represented by counsel.

Drainage Act

For appeals heard under the Drainage Act, on average, most appellants represented themselves both in the ten-year period 2002-11 and the previous five-year period 1997-01. Where a representative was used, on average, there was no clear preference for either agents or legal counsel. Municipalities, the respondents in drainage matters, normally had the engineer who prepared the report under appeal defend the report; on occasion legal counsel was retained. For this analysis, where both legal counsel and an engineer were used, this was recorded as representation by legal counsel, not by an agent.

Members 2011-12