The Milk Producer - November 2009 - (Page 8)

DAIRYUPDATE Tribunal decision set aside Errors in all legal matters under judicial review cited as reason for Superior Court ruling judicial review has set aside a ruling by the Ontario Agriculture, Food and Rural Affairs Tribunal that granted exemptions to the former Dairy Farmers of Ontario (DFO) quota policy. The Ontario Superior Court of Justice decision found the tribunal had erred in all legal matters under judicial review. In setting aside the tribunal ruling, the justices turned the case back to the tribunal. At press time, it was unknown whether the tribunal would hear the case again. The court’s decision could also have implications for several other cases involving appeals of the quota policy approved by DFO’s board in November 2006. The board will be consulting with its legal counsel, said John Karn, DFO board secretary. At issue were exemptions from transfer assessments granted by the tribunal to members of the so-called Denby group. They were identified as William, John and Betty Denby, Keith and Ron Jarvis, and Dale McFeeters. All sold their quota and exited the industry in 2007, according to documents filed with the court. The board implemented a new quota policy on Aug. 1 as part of P5 harmonization. Eliminating the 15 per cent transfer assessment was one of several key elements in the new policy. In a 22-page written judgment released mid-October, Madam Justice Sandra Chapnik, Mr. Justice Lee K. 8 | November 2009 | MilkPRODUCER Court turns case back to Tribunal. It is unknown whether the case will be heard again. Ferrier and Madam Justice Anne M. Molloy listed four reasons for not allowing the tribunal decision to stand: • the tribunal granted the exemptions without stating reasons why these producers should be treated differently from all other producers subject to the November 2006 quota policy. “The failure to state any reasons for interfering with the DFO decision refusing the exemptions, or for its own decision to grant the exemptions, is a breach of procedural fairness and grounds for setting aside the decision,” the justices stated. • the tribunal erred in law by holding that DFO was subject to a common law duty of procedural fairness regarding the decision to implement the new quota policy without advance notice to producers. “This DFO deci- sion was of a legislative nature and not subject to the rules of procedural fairness,” they stated. • the tribunal erred in its interpretation of a Milk Act provision regarding procedural fairness. “That provision does not impose an obligation of procedural fairness when DFO is engaged in enacting broad-based policy decisions, such as the changes to the quota system at issue here,” they stated. • “The tribunal’s determination that the DFO policy decision to implement the new quota system without advance notice to producers was not fair or reasonable is not severable from the tribunal’s erroneous conclusion that DFO owed a duty of procedural fairness and is, thus, fatally flawed,” the justices wrote in their decision. The Denby group requested exemptions from transfer assessments in early 2007. DFO’s board rejected all the requests. In June 2007, group members filed a notice of appeal to the tribunal, and the tribunal released its decision granting the exemptions in June 2008. DFO’s board requested a ministerial review of the tribunal decision. In August 2008, Agriculture Minister Leona Dombrowsky returned the decision to the tribunal. She requested more comprehensive reasons for the decision. The tribunal released a second decision in December 2008, confirmed by the minister in January. DFO subsequently sought the judicial review of the tribunal decision.

Table of Contents for the Digital Edition of The Milk Producer - November 2009

The Milk Producer - November 2009
Contents
Editor's Notes
DFO Chair's Message
Dairy Update
National Policy
Farm Finance
DFC Promotion
CQM On Its Way
Research
Applied Science
Ruminations
Markets
New 'N' Noted
Back Forty

The Milk Producer - November 2009