Tribunal upholds DFO election results

Sunday, January 5, 2014

by BETTER FARMING STAFF

Henry Wydeven of St. Marys will be taking a chair at the Dairy Farmers of Ontario board table later this week, following an Ontario Ministry of Agriculture Food and Rural Affairs Tribunal ruling Monday that upholds his election in a tight race last fall.

Wydeven beat incumbent David Murray of Mitchell by two votes to become director for Huron and Perth Counties (District 10) for a four year term. Late December, the Tribunal heard Murray’s appeal for a recount, which was based on DFO’s rejection of 10 ballots postdated Oct. 30, the day after the last Tuesday of the month, the deadline stated in Section 14(4) of Reg. 760 of the Milk Act.

Murray asked the board for a reconsideration of its decision to accept the returning officer’s recommendations, which was denied, and Murray appealed to the Tribunal, arguing that conceivably the ballots could have been deposited with the post office late the day before and producers’ rights to participate in the election process were being denied.

The Tribunal thought otherwise, noting that in correspondence last September, candidates were advised ballots mailed to each eligible producer must be filled out and returned, postmarked by Oct. 29. The board noted that Sec. 14(4) of the Milk Act states, “the Returning Officer shall not accept an envelope unless he or she is satisfied it was mailed or consigned for delivery not later than the last Tuesday in October.”

“To rule otherwise would be to allow the returning office to speculate as to whether a ballot postmarked the day after the deadline was in fact consigned to the post office the day before . . . or was cast late and therefore non-compliant. This exercise would introduce a subjective element in what is otherwise an objective exercise . . . The postmark affixed by a neutral third party is the confirmation the ballot was consigned by the deadline imposed by the regulation.”

Neither Murray nor Wydeven were immediately available Monday afternoon to comment.

Lloyd Graham, DFO’s general counsel, director of communications, and also the returning officer, says all ballots, unopened or otherwise, will be destroyed “once all time for appeal has been elapsed.”

Graham’s role in the Tribunal hearing itself was controversial because of his joint role as both general counsel representing the marketing board and as a witness as the chief returning officer.  The Tribunal wrote that it used its discretion in allowing Graham to take part in both roles and adding, “it should be said that the circumstances in which a lawyer is allowed to testify and act as counsel are very limited.” BF