Stetler et al. v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al., (2007) 234 O.A.C. 366 (DC)

• Judge: Gans, Hoilett and Swinton, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 23, 2007
• Jurisdiction: Ontario
• Citations: (2007), 234 O.A.C. 366 (DC)

Stetler v. Agriculture Appeal Tribunal (2007), 234 O.A.C. 366 (DC)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. FE.080

Wyatt Stetler and 934671 Ontario Limited (applicants) v. The Ontario Flue-Cured Tobacco Growers' Marketing Board and the Agricultural Food and Rural Affairs Appeal Tribunal (respondents)

(450/06)

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

Court of Ontario

Superior Court of Justice

Divisional Court

Gans, Hoilett and Swinton, JJ.

November 23, 2007.

Summary:

A tobacco farmer and his corporation sought judicial review from a decision of the Agriculture, Food and Rural Affairs Appeal 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 Appeal 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 Appeal Tribunal be reduced.

The Ontario Court of Appeal, in a decision reported at 200 O.A.C. 209, 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 Appeal Tribunal to reconsider, as it deemed appropriate, the issue of penalty. Leave to appeal was refused by the Supreme Court of Canada (see 352 N.R. 196). A penalty hearing was conveyed by the Appeal Tribunal. The Appeal Tribunal ordered that the Board cancel all of the farmer's Basic Production Quota as of April 25, 2002 subject to some right, to purchase quota in future. The farmer and his corporation sought judicial review.

The Ontario Divisional Court, Swinton, J., dissenting, allowed the application and directed that the matter be sent back for a rehearing.

Trade Regulation - Topic 3697

Marketing of agricultural products - Tobacco - Offences - Penalties - After a lengthy period of appeals and judicial review, a farmer and his corporation were found to have engaged in the unlawful sale of tobacco outside the auspices of the Ontario Flue-Cured Tobacco Growers' Marketing Board and the quota system - The Agriculture, Food and Rural Affairs Appeal Tribunal ordered that the Board cancel all of the farmer's Basic Production Quota as of April 25, 2002 subject to some right to purchase quota in future - The Ontario Divisional Court allowed the farmer's and his corporation's judicial review application and directed that the matter of penalty be sent back for a rehearing - The court held that the Appeal Tribunal's decision was unreasonable - The Appeal Tribunal seemed to have placed an inordinate emphasis on the principle of general deterrence, almost to the exclusion of any other factor routinely considered in regulatory offence cases - It failed to consider, or thought it was precluded from considering, the farmer's "post offence" circumstances and conduct - These circumstances included evidence up to the date of the imposition of penalty, which in this case was long after the events giving rise to the prosecution at first instance - The court stated that the personal circumstances of the offender were relevant and important factors to take into account when imposing a penalty, which were not diminished when a penalty decision was reconsidered as in this case - The Appeal Tribunal also erred in failing to adequately acknowledge that the quantum of illegally sold tobacco was or could be relevant to the penalty fashioned - See paragraphs 13 to 21.

Trade Regulation - Topic 9165.1

Offences - Sentencing - General - Post-offence conduct - [See Trade Regulation - Topic 3697 ].

Cases Noticed:

Denby v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al. (2006), 216 O.A.C. 130 (Div. Ct.), refd to. [paras. 6, 45].

Pottie v. Nova Scotia Real Estate Commission (2005), 234 N.S.R.(2d) 332; 745 A.P.R. 332; 37 Admin. L.R.(4th) 131 (S.C.), refd to. [para. 14].

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. [paras. 14, 43].

Carruthers v. College of Nurses (Ont.) (1996), 96 O.A.C. 41 (Div. Ct.), refd to. [para. 15].

John Doe v. Institute of Chartered Accountants of Ontario - see Former Student of the Institute of Chartered Accountants of Ontario v. Institute of Chartered Accountants of Ontario.

Former Student of the Institute of Chartered Accountants of Ontario v. Institute of Chartered Accountants of Ontario (2005), 200 O.A.C. 293 (Div. Ct.), refd to. [para. 15].

Duval v. College of Nurses (Ont.) (2007), 230 O.A.C. 193 (Div. Ct.), refd to. [para. 16].

McKee v. College of Psychologists (B.C.) (No. 2) (1994), 47 B.C.A.C. 189; 76 W.A.C. 189; 116 D.L.R.(4th) 555 (C.A.), refd to. [para. 48].

Université du Québec à Trois-Rivières v. Larocque - see Université du Québec à Trois-Rivières v. Syndicat des employés professionnels de l'Université du Québec à Trois-Rivières et al.

Université du Québec à Trois-Rivières v. Syndicat des employés professionnels de l'Université du Québec à Trois-Rivières et al., [1993] 1 S.C.R. 471; 148 N.R. 209; 53 Q.A.C. 171, refd to. [para. 50].

Counsel:

Raj Anand, for the applicants;

Barry Bresner and Freya Kristjanson, for the respondent, The Ontario Flue-Cured Tobacco Growers' Marketing Board.

This application was heard at Toronto, Ontario, on November 23, 2007, by Gans, Hoilett and Swinton, JJ., of the Ontario Divisional Court. The decision of the court was delivered on November 23, 2007, when the following opinions were filed:

Gans, J. (Hoilett, J., concurring) - see paragraphs 1 to 21;

Swinton, J., dissenting - see paragraphs 22 to 54.