Denby et al. v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al., (2006) 216 O.A.C. 130 (DC)

• Judge: Cunningham, A.C.J., Cusinato and Reilly, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 03, 2006
• Jurisdiction: Ontario
• Citations: (2006), 216 O.A.C. 130 (DC)

Denby v. Agriculture Appeal Tribunal (2006), 216 O.A.C. 130 (DC)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. MY.121

Betty Denby, John Denby, William Denby, Isobel Hope, Wayne Hope, Dale McFeeters and Darmar Farms Inc. (applicants) v. Agriculture, Food and Rural Affairs Appeal Tribunal and Dairy Farmers of Ontario and Minister of Agriculture and Food (respondents)

(04-DV-974)

Indexed As: Denby et al. v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Cunningham, A.C.J., Cusinato and Reilly, JJ.

May 17, 2006.

Summary:

The Dairy Farmers of Ontario (DFO) found the applicants in violation of s. 3 of Regulation 08/03 passed pursuant to the Milk Act for "marketing" milk other than through the DFO. The applicants were penalized by loss of milk quota and by the cancellation of their licences to produce milk. The applicants were directed to dispose of their remaining milk quota or to surrender it to the DFO. The Agriculture, Food and Rural Affairs Appeal Tribunal upheld the decision, as did the Minister of Agriculture and Food. The applicants applied for judicial review.

The Ontario Divisional Court allowed the application to the extent that the applicants were not required to offer for sale or to sell their remaining quota on the DFO quota exchange and neither was the DFO to cancel their producer licences as a result of the violation. The application was otherwise dismissed.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Dairy Farmers of Ontario (DFO) found the applicants in violation of s. 3 of Regulation 08/03 passed pursuant to the Milk Act for "marketing" milk other than through the DFO - The Agriculture, Food and Rural Affairs Appeal Tribunal upheld the decision, as did the Minister of Agriculture and Food - The applicants applied for judicial review - They argued that there was a reasonable apprehension of bias on the part of the tribunal, specifically with respect to O'Connor, a member and vice-chair of the tribunal, whose brother was a dairy farmer, and by permitting Coukell, the chair of the DFO board hearing, to testify before the tribunal - The Ontario Divisional Court dismissed the application - The mere fact that O'Connor had a brother who was a dairy farmer, was no basis for suggesting a reasonable apprehension of bias - The fact that Coulkell testified before the tribunal did not lead to a reasonable apprehension of bias - Coulkell testified principally to the policies of the DFO - Given the applicants' admission of facts, Coulkell's conduct at the tribunal hearing could not have affected the tribunal's determination - See paragraph 46.

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - The Dairy Farmers of Ontario (DFO) found the applicants in violation of s. 3 of Regulation 08/03 passed pursuant to the Milk Act for "marketing" milk other than through the DFO - The Agriculture, Food and Rural Affairs Appeal Tribunal upheld the decision, as did the Minister of Agriculture and Food - The applicants applied for judicial review - They argued that the tribunal considered evidence of impropriety or violations beyond the scope of the date as set out in the notices of hearing - The Ontario Divisional Court dismissed the application - There might have been evidence put before the tribunal of events beyond the specific dates stated in the notices of hearing as served upon the applicants - However, any evidence related to events outside the dates specifically stated was simply to provide context - See paragraphs 47 and 48.

Administrative Law - Topic 2481

Natural justice - Procedure - At hearing - General - The Dairy Farmers of Ontario (DFO) found the applicants in violation of s. 3 of Regulation 08/03 passed pursuant to the Milk Act for "marketing" milk other than through the DFO - The Agriculture, Food and Rural Affairs Appeal Tribunal upheld the decision, as did the Minister of Agriculture and Food - The applicants applied for judicial review - They argued that since this was a quasi-criminal proceeding and since the hearing before the tribunal was a "trial de novo", the DFO should have been required to produce its case first, with the applicants responding - Instead, the tribunal required the applicants to proceed first - The Ontario Divisional Court dismissed the application - As long as the applicants were given a fair opportunity to present their case to the tribunal, whether they proceeded first or second, and if they proceeded first with a fair right of reply, then they could not complain of procedural unfairness - There was nothing in the material submitted on the application which suggested that the applicants received less than a fair hearing before the tribunal - See paragraph 45.

Administrative Law - Topic 2602

Natural justice - Evidence and proof - Burden of proof - The Dairy Farmers of Ontario (DFO) found the applicants in violation of s. 3 of Regulation 08/03 passed pursuant to the Milk Act for "marketing" milk other than through the DFO - The Agriculture, Food and Rural Affairs Appeal Tribunal upheld the decision, as did the Minister of Agriculture and Food - The applicants applied for judicial review - They argued that the tribunal failed to apply a higher "standard of proof" beyond a mere "balance of probabilities" given that the applicants were accused of "quasi-criminal" conduct with potential severe consequences - The Ontario Divisional Court dismissed the application - The conduct which formed the basis for the decision by the Tribunal was essentially admitted by the applicants from the onset - Either on a preponderance of the evidence or beyond a reasonable doubt, the applicants essentially admitted that they had done so - Thus, the issue of standard of proof became academic- See paragraph 44.

Administrative Law - Topic 6114

Judicial review - Statutory appeal - General - Appeals - Effect of - The Dairy Farmers of Ontario (DFO) found the applicants in violation of s. 3 of Regulation 08/03 passed pursuant to the Milk Act for "marketing" milk other than through the DFO - The Agriculture, Food and Rural Affairs Appeal Tribunal upheld the decision, as did the Minister of Agriculture and Food - The applicants applied for judicial review - They argued that pursuant to s. 16(6) of the Ministry of Agriculture, Food and Rural Affairs Act (MAFRA) and s. 25 of the Statutory Powers Procedure Act (SPPA), a statutory appeal launched by another company owned by one of the applicants dealing with the Regulation stayed the Regulation's effect, i.e., suspended the restrictions or obligations imposed by s. 3 or any other provision of the Regulation - The Ontario Divisional Court rejected the argument - A "stay in the matter", as intended by s. 25 of the SPPA and by s. 16(6) of the MAFRA did not mean that a Regulation or any other legislation validly passed was suddenly rendered inoperative simply by virtue of an appeal launched by a litigant before an administrative tribunal - Otherwise expressed, such an appeal did not create a "legal vacuum" within which the litigant could operate with impunity in violation of the statute or regulation in question - See paragraphs 31 to 41.

Trade Regulation - Topic 3611

Marketing of agricultural products - Dairy products - Decisions of board or commission - Appeals and judicial review - The Dairy Farmers of Ontario (DFO) found the applicants in violation of s. 3 of Regulation 08/03 passed pursuant to the Milk Act for "marketing" milk other than through the DFO - The applicants were penalized by loss of milk quota and by the cancellation of their licences to produce milk - The applicants were directed to dispose of their remaining milk quota or to surrender it to the DFO - The Agriculture, Food and Rural Affairs Appeal Tribunal upheld the decision, as did the Minister of Agriculture and Food - The applicants applied for judicial review - The Ontario Divisional Court held that the standard of review applied to a pure question of law was correctness and that the standard of review applied to questions of mixed fact and law was reasonableness simpliciter - See paragraphs 27 to 30.

Trade Regulation - Topic 3611

Marketing of agricultural products - Dairy products - Decisions of board or commission - Appeals and judicial review - [See Administrative Law - Topic 2088 , Administrative Law - Topic 2444 , Administrative Law - Topic 2481 , Administrative Law - Topic 2602 and Administrative Law - Topic 6114 ].

Cases Noticed:

Allan et al. v. Ontario (Attorney General) et al. (2005), 201 O.A.C. 18; 70 O.R.(3d) 616 (Div. Ct.), refd to. [para. 25].

Stetler et al. v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al. (2005), 200 O.A.C. 209 (C.A.), refd to. [para. 27].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 27].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 27].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201, refd to. [para. 27].

Cartaway Resources Corp. et al., Re, [2004] 1 S.C.R. 672; 319 N.R. 1; 195 B.C.A.C. 161; 319 W.A.C. 161; 2004 SCC 26, refd to. [para. 27].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2004] 2 S.C.R. 427; 322 N.R. 306, refd to. [para. 27].

Metropolitan School Board v. Ontario (Minister of Education), [1985] O.J. No. 1008, refd to. [para. 36].

Morgentaler v. Ackroyd (1983), 42 O.R.(2d) 659 (H.C.), refd to. [para. 36].

Canada (Attorney General) v. Gould, [1984] 1 F.C. 1133; 54 N.R. 232, affd. [1984] 2 S.C.R. 124; 53 N.R. 394, refd to. [para. 36].

Counsel:

Donald R. Good, for the applicants;

Geoffrey P. Spurr, for the Agriculture, Food and Rural Affairs Appeal Tribunal and Dairy Farmers of Ontario;

D. Kloeze, for the Minister of Agriculture and Food.

This application was heard on April 3, 2006, by Cunningham, A.C.J., Cusinato and Reilly, JJ., of the Ontario Divisional Court. The following judgment of the Divisional Court was delivered on May 17, 2006.