Stetler v. Agriculture Appeal Tribunal, (2005) 200 O.A.C. 209 (CA)

• Judge: Borins, Feldman and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 16, 2004
• Jurisdiction: Ontario
• Citations: (2005), 200 O.A.C. 209 (CA)

Stetler v. Agriculture Appeal Tribunal (2005), 200 O.A.C. 209 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. JL.025

Wyatt Stetler and 934671 Ontario Limited (respondent) v. The Ontario Flue-Cured Tobacco Growers' Marketing Board (appellant) and The Agriculture, Food and Rural Affairs Appeal Tribunal (respondent) and The Attorney General for Ontario (Intervenor)

(C41821)

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

Ontario Court of Appeal

Borins, Feldman and Cronk, JJ.A.

July 8, 2005.

Summary:

A tobacco farmer and his corporation sought judicial review from a decision of the Agriculture, Food and Rural Affairs Tribunal, which affirmed the decision of the Ontario Flue-Cured Tobacco Growers' Marketing Board that the farmer and his corporation had engaged in illegal tobacco sales and that their quota be cancelled.

The Ontario Divisional Court, in a decision reported at 179 O.A.C. 398, allowed the application and quashed the decisions of the Board and the Tribunal. The Board obtained leave to appeal. In the event the appeal was successful, the farmer and his corporation requested that the penalty imposed by the Tribunal be reduced.

The Ontario Court of Appeal allowed the appeal, set aside the decision of the Divisional Court, reinstated the decision of the Tribunal on the findings respecting liability, and remitted the matter to the Tribunal to reconsider, as it deemed appropriate, the issue of penalty.

Administrative Law - Topic 624

The hearing and decision - Evidence and proof - Hearsay evidence - A tobacco farmer and his corporation sought judicial review from a decision of the Agriculture, Food and Rural Affairs Tribunal, which affirmed the decision of the Ontario Flue-Cured Tobacco Growers' Marketing Board that the farmer and his corporation had engaged in illegal tobacco sales - The farmer argued that he could only be found guilty as a co-conspirator and, on that basis, the Tribunal could only admit the hearsay evidence contained in the transcripts of wiretapped conversations obtained by the RCMP after applying the Carter test for the admission of hearsay evidence of a co-conspirator - The Ontario Court of Appeal rejected the argument - The Carter test allowed hearsay evidence to be used to prove beyond a reasonable doubt that a person was a member of a conspiracy - That standard of proof was not applicable in an administrative proceeding - Also, under the Statutory Powers Procedures Act, an administrative tribunal was entitled to admit and rely on hearsay evidence - Further, the farmer and corporation had agreed all this evidence would be submitted in the proceeding - See paragraphs 72 to 73.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - A farmer and his corporation sought judicial review from a decision of the Agriculture, Food and Rural Affairs Tribunal, sitting on appeal from a decision of the Ontario Flue-Cured Tobacco Growers' Marketing Board - Before the Tribunal, Godelie, Vice-Chair of the Board at first instance, was called as a prosecution witness - He had previously participated as an adjudicator upon the charges, which were the subject of the appeal - Godelie's evidence was relied upon to support his own decision - The Tribunal accepted his evidence and relied upon it in rendering its decision - The farmer and the corporation failed to raise this issue before the Tribunal - The Ontario Court of Appeal held that Godelie's testimony did not create a reasonable apprehension of bias - Godelie was not called as a witness in his capacity as a Board member but, rather, to give evidence within the domain of his extensive experience as a tobacco grower - Further, any objection was waived by the farmer and his corporation when they did not raise any issue regarding this witness before the Tribunal - The doctrine of implied waiver and deemed acquiescence applied - See paragraphs 89 to 100.

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Waiver - [See Administrative Law - Topic 2088 ].

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - [See Administrative Law - Topic 2088 ].

Evidence - Topic 102

Degree, standard or burden of proof - Standard or degree of proof - Proof in civil cases - A tobacco farmer and his corporation sought judicial review from a decision of the Agriculture, Food and Rural Affairs Tribunal, which affirmed the decision of the Ontario Flue-Cured Tobacco Growers' Marketing Board that the farmer and his corporation had engaged in illegal tobacco sales - The farmer and corporation argued that the Tribunal failed to apply the correct standard of proof - They argued that the standard should have been higher than the balance of probabilities (i.e. proof by "clear, cogent and convincing evidence") - The Ontario Court of Appeal rejected the argument - The higher standard was an evidential standard only - The case law in Ontario had been consistent in requiring this high evidential standard in disciplinary cases, where a party's established means of livelihood could be at risk - Although the Tribunal did not articulate a requirement for clear, cogent and convincing evidence, it applied this exacting evidential standard before making its findings - See paragraphs 75 to 88.

Trade Regulation - Topic 3532

Marketing of agricultural products - Boards or tribunals - Decisions or appeal - Scope of review - A farmer and his corporation sought judicial review from a decision of the Agriculture, Food and Rural Affairs Tribunal, sitting on appeal from a decision of the Ontario Flue-Cured Tobacco Growers' Marketing Board - The central issue before the Tribunal was whether the farmer and his corporation engaged in the unlawful sale of tobacco outside the auspices of the Board and the quota system - Conducting a pragmatic and functional analysis addressing the four contextual factors required by Dr. Q. v. College of Physicians and Surgeons (B.C.) (S.C.C.), the Ontario Court of Appeal held that the Tribunal's decision should be reviewed on a standard of reasonableness - The reviewing court was therefore required to ask whether the conclusion reached by the Tribunal was unreasonable, considering the record before it and applying the proper standard of proof - However, on pure questions of law that did not involve the discretion or expertise of the Tribunal, the Tribunal had to be correct - See paragraphs 59 to 71.

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 45].

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. 45].

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; 242 D.L.R.(4th) 193, refd to. [para. 45].

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, refd to. [para. 45].

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. 45].

Housen v. Nickolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577, refd to. [para. 50].

H.L. v. Canada (Attorney General) et al. (2005), 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1, refd to. [para. 50].

Martineau v. Ministre du Revenu national, [2004] 3 S.C.R. 737; 328 N.R. 48, refd to. [para. 63].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 209 D.L.R.(4th) 1; 2002 SCC 11, refd to. [para. 68].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 68].

Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241; 144 D.L.R.(4th) 385, refd to. [para. 68].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291, refd to. [para. 68].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 31 C.R.(3d) 97; 67 C.C.C.(2d) 568, refd to. [para. 69].

Bernstein v. College of Physicians and Surgeons (Ont.) (1977), 76 D.L.R.(3d) 38 (Ont. Div. Ct.), refd to. [para. 76].

Persaud v. Society of Management Accountants (Ont.) (1997), 98 O.A.C. 216; 144 D.L.R.(4th) 375 (Div. Ct.), refd to. [para. 76].

Guthrie v. Ontario Association of Architects et al. (1988), 29 O.A.C. 146 (Div. Ct.), refd to. [para. 76].

College of Chiropractors (Ont.) v. Kovacs (2004), 191 O.A.C. 88 (Div. Ct.), refd to. [para. 76].

Carruthers v. College of Nurses (Ont.) (1996), 96 O.A.C. 41; 31 O.R.(3d) 377 (Div. Ct.), refd to. [para. 76].

Markandey v. Board of Opthalmic Dispensers (Ont.), [1994] O.J. No. 2913 (Gen. Div.), refd to. [para. 76].

Abji v. College of Pharmacists (Ont.), [2001] O.A.C. Uned. 280 (Div. Ct.), refd to. [para. 76].

Brett et al. v. Board of Directors of Physiotherapy (Ont.) (1988), 48 O.A.C. 24 (Div. Ct.), refd to. [para. 76].

Coates et al. v. Registrar of Motor Vehicle Dealers and Salesmen (Ont.) (1988), 28 O.A.C. 307; 65 O.R.(2d) 526 (Div. Ct.), refd to. [para. 76].

Robinson et al. v. Ontario Securities Commission, [2000] O.A.C. Uned. 61 (Div. Ct.), refd to. [para. 76].

Rak v. Superintendent of Brokers (B.C.) (1990), 74 D.L.R.(4th) 725 (B.C.C.A.), refd to. [para. 78].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 91].

Wewaykum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 91].

Children's Lawyer for Ontario v. Goodis et al. (2005), 196 O.A.C. 350 (C.A.), refd to. [para. 92].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449; 89 D.L.R.(3d) 161, refd to. [para. 92].

Man O'War Station Ltd. v. Auckland City Council (Judgment No. 1), [2002] 3 N.Z.L.R. 577; 2002 UKPC 28, refd to. [para. 96].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 98].

Energy and Chemical Workers' Union and Atomic Energy of Canada Ltd., Re (1986), 64 N.R. 126; 24 D.L.R.(4th) 675 (F.C.A.), refd to. [para. 98].

Zündel v. Canadian Human Rights Commission et al. (2000), 264 N.R. 174 (F.C.A.), refd to. [para. 99].

Ontario Provincial Police v. Favretto (2004), 191 O.A.C. 3; 72 O.R.(3d) 681 (C.A.), refd to. [para. 108].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (3rd Ed. 2001), pp. 66, 67 [para. 79]; 190 [para. 60].

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998 Looseleaf Ed.), vol. 3, p. 12:3200 [paras. 76, 79].

Halsbury's Laws of England (4th Ed.), vol. 1, p. 87, para. 71 [para. 99].

MacAulay, Robert W., and Sprague, James L.H., Practice and Procedure Before Administrative Tribunals (1988 Looseleaf), vol. 2, p. 17-8 [para. 76].

Counsel:

Barry Bresner and Freya Kristjanson, for the appellant;

F. Paul Morrisson and Jacob Glick, for the respondents, Stetler and 934671 Ontario Limited;

David Vickers, for the respondent, The Agriculture, Food and Rural Affairs Appeal Tribunal and for the intervenor, The Attorney General for Ontario.

This appeal was heard on December 16, 2004, before Borins, Feldman and Cronk, JJ.A., of the Ontario Court of Appeal. Feldman, J.A., delivered the following judgment for the court on July 8, 2005.