Tribunal upholds limit on chicken production without quota

Wednesday, May 21, 2014

by SUSAN MANN

Manitoulin Island farmer Glenn Black is uncertain if he will resubmit an appeal to an Ontario agricultural tribunal just on the challenge to Chicken Farmers of Ontario’s rules on the 300 annual limit on chickens farmers can produce without quota.

Asked what he is going to do now, Black says “there’s the million dollar question.”

In a May 21 written decision, the Ontario Agriculture, Food and Rural Affairs Appeal Tribunal says it would allow Black, who is president of the Small Flock Poultry Farmers of Canada, to resubmit his appeal on that one matter only. But it must be filed by 60 days from the date the ruling was handed down.

Black says he hasn’t yet decided if he will file the amended appeal notice. “If I quit now, then I will have failed. I will have achieved nothing in the short term and who knows what might come out in the long term.”

The tribunal’s decision was released a week after it held a hearing on May 14 to consider a motion by Chicken Farmers to dismiss Black’s appeal or alternatively limit its scope. Michael Edmonds, Chicken Farmers communications and government relations director, says they don’t comment on tribunal decisions “so we wouldn’t be making a comment on the latest decision.”

Black’s appeal sought “tribunal orders overturning or amending policies, regulations, statutes, declaratory orders and monetary damages under many different headings,” the tribunal’s decision says. “The appeal seeks a broad ranging investigation into the current regulation system” and, in fact, Black “seeks nothing less than a paradigm shift in the regulatory regime.”

But the tribunal says “while safe and affordable food is undoubtedly a laudable goal, the tribunal does not have the jurisdiction to embark on a public inquiry into that issue even when that public inquiry is clothed as an appeal related to the regulatory regime for chicken in Ontario.”

Black says he’s disappointed and perplexed in how the tribunal ruled. About monetary damages, he says in a recent decision on a farm equipment matter, the tribunal was able to award damages and yet in his decision it says it doesn’t have that authority. The farm equipment matter Black was referring to involved farm equipment distributor CNH Canada Ltd., which was ordered to pay damages to its former Tillsonburg-area dealer for breaching its contract with the dealership.

The tribunal says in its decision regarding Black it has the authority to award monetary damages under the Drainage Act and the Farm Implements Act but not under the Ministry of Agriculture, Food and Rural Affairs Act unless the authority was “expressly granted” in that Act. Black’s appeal was being heard under the Ministry of Agriculture, Food and Rural Affairs Act.

“Black says “they choose to have a very narrow definition as to their jurisdiction.”

The tribunal says Black has access to the courts and to class action proceedings for damage claims. About his concerns with the supply management system, he may also consider public inquiry legislation at the provincial or federal level to address “his issues of broader policy or public interest,” the decision says.

Black laughed at the suggestion to pursue a public inquiry. “How many public inquiries have we had?”

About Black’s concern with not being able to be a Chicken Farmers of Ontario member nor have voting rights, the tribunal says he can go to the Ontario Farm Products Marketing Commission with that one and if he’s not satisfied he can seek a review of that decision by the agriculture and food minister.

Black says he went to the commission in March 2013 about his membership and other concerns “when the Chicken Farmers of Ontario refused to hear me” and “they (the commission) refused at that time but it says in the Act (the Ministry of Agriculture, Food and Rural Affairs Act) they must hold a hearing.”

Regulation 403 of the Farm Products Marketing Act says a chicken producer is defined as someone who is fixed and allotted quota under the Chicken Plan, the tribunal decision says, noting that definition would exclude Black as a producer since he hasn’t been fixed or allotted quota. But another section of the same regulation “sets out rules on voting entitlement and uses somewhat broader wording to describe a producer that Mr. Black asserts he satisfies.”

Black says the one matter the tribunal agreed to hear concerning the number of chickens farmers can raise without holding quota isn’t as important to him personally as the question he raised on whether Chicken Farmers of Ontario is “a power unto themselves or do they have a responsibility of working to the best interests of Ontario.”

There are federal and provincial powers delegated and invested into Chicken Farmers of Ontario, Black says. That “is a huge responsibility or gift that has been given to them and then they use that, in my opinion, to run roughshod over everyone else in Ontario and feather their own nest with those powers that have been delegated to them.”

In response, Michael Edmonds, Chicken Farmers' director of communications and government relations, says;“it’s not the kind of thing we comment on at this stage.”

Black and other groups in Ontario, such as the Practical Farmers of Ontario, have been seeking an increase amount of chickens farmers can raise annually without quota to 2,000 from 300. BF