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Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Sunday, 27 October 2013

Judge Orders NFU-O Accredited as GFO

In a decision released October 16, 2013, the Ontario Superior Court of Justice, under the pen of the Honourable Mr. Justice Robert N. Beaudoin, ordered the Ontario Agriculture, Food and Rural Affairs Appeal Tribunal to accredit the National Farmers Union - Ontario as a 'general farm organization' pursuant to the provisions of the Farm Registration and Farm Organizations Funding Act, 1993, S.O. 1993 c. 21. The full text of the decision can be found here: National Farmers Union - Ontario v. Ontario (Agriculture, Food and Rural Affairs Appeal Tribunal), 2013 ONSC 6452.

For those wondering why an employment law blog would consider such a case, there are two reasons: First, yours truly represented the National Farmers Union - Ontario; and second, the court's decision was based on judicial review. Judicial review is commonly used as a check on the decisions made by administrative tribunals such as the Human Rights Tribunal of Ontario (HRTO), the Workplace Safety and Insurance Appeals Tribunal (WSIAT), and the Ontario Labour Relations Board (OLRB), amongst many others. Indeed some of the precedents relied upon by the court were labour and employment cases and the court's decision in this case could be equally applicable in future judicial reviews of labour and employment cases.

What Happened - Chronology of Events


The saga of the NFU-O's application for accreditation is a long one. For those unfamiliar with the application process to become a GFO the case may be a little confusing and by necessity some details will have to be omitted, for that I apologize.

In general, an organization representing farmers in the province of Ontario is eligible to apply to become a general farm organization (a "GFO"). Provided that organization meets the prescribed criteria for accreditation as a GFO, the law (the aforementioned Farm Registration and Farm Organizations Funding Act, 1993, S.O. 1993 c. 21) requires the Ontario Agriculture, Food and Rural Affairs Appeal Tribunal to accredit the applicant. The law further allows organizations that have been previously accredited to apply for renewal. Those applying pursuant to the renewal provisions must still demonstrate that they meet the prescribed criteria.

On March 21, 2011, the NFU-O applied to the Tribunal for reaccreditation under Section 4(2) of the Act. For reasons given May 23, 2012, that application was refused: NFU-O 2011 Reaccreditation Decision. The other two GFO's reaccrediation applications were also denied at that time.

Shortly after receiving the Tribunal's decision on reaccredation the NFU-O applied for accreditation as an organization representing farmers in Ontario.

In August 2012 the Tribunal issued Interim Orders in the cases of all three GFO applicant's cases with respect to the meaning on the word "member." The Interim Order with respect to the NFU-O is available to be read here: NFU-O 2012 Accreditation - Interim Order (August 10, 2012).

In November 2012 the Tribunal dismissed the accreditation applications made by the Ontario Federation of Agriculture (decision) and the Christian Farmers Federation of Ontario (decision.) The two were accredited by the Tribunal a month later.

At the same time, the NFU-O considered withdrawing its pending application and filing a fresh application. The Tribunal responded with its second Interim Order, requesting submissions on whether doing so would be an abuse of process. The Tribunal invited the Minister of Agriculture, Food and Rural Affairs to make submissions on the issue if he wished to.

In response to the NFU-O's submissions a third Interim Order was issued against the NFU-O by the Tribunal on November 30, 2012. That Order provided the NFU-O the opportunity to withdraw its second application and proceed with its original application as made in June of that year.

The NFU-O acceded to the Tribunal's request and withdrew its second application. Pursuant to the Tribunal's fourth Interim Order, the NFU-O was required to serve and file several copies of numerous documents within six (6) days of the Tribunal's fourth Interim Order. The Tribunal further ordered the application hearing to be heard nine (9) days following the issuance of the fourth Interim Order.

The Tribunal thus heard the NFU-O's application for accreditation on December 14, 2012 during an all-day hearing. Yours truly appeared as counsel on behalf of the NFU-O at that hearing.

On December 19, 2012, the Tribunal released its decision denying the NFU-O accreditation, but without giving any reasons. The Tribunal's reasons for decision would take nearly four months, being released April 15, 2013.

The NFU-O requested that the Tribunal review its decision. Pursuant to a decision made June 7, 2013, by Tribunal Vice-Chair John O'Kane, the NFU-O's request for a review was denied.

The NFU-O thus applied to the Ontario Superior Court of Justice for a judicial review of the Tribunal's December 19, 2012 decision to deny the NFU-O accreditation as a GFO.

What Happened - Tribunal's Reasons for Denying Accreditation


The Tribunal's reasons for denying the NFU-O accreditation were lengthy. In summary, however, the Tribunal's primary concern appeared to be that the NFU-O was not an organization representing farmers in the province of Ontario and therefore lacked standing to apply for accreditation. As Justice Beaudoin noted in his reasons for decision on judicial review, "The Tribunal discussion of the standing issue takes up the first 27 pages of its 31‑page decision;" later observing "The issue of the NFU‑O’s standing has never been an issue on any of its prior applications for accreditation under the Act. This issue was not raised as a concern of the Tribunal until it issued its Fourth Interim Order on December 5, 2012 (over four months after the hearing began on July 18, 2012)."

Judge's Decision


In deciding that the Tribunal had exceeded its jurisdiction Justice Beaudoin wrote that:
[52] The legislation is clear that the Tribunal has no discretion; if the enumerated criteria are satisfied, accreditation shall be given. The identification of the substantive criteria for accreditation falls solely within the jurisdiction of the Lieutenant Governor in Council pursuant to section 33(1) 9 of the Act. By expanding on the meaning of “represents”, the Tribunal granted itself a jurisdiction to consider criteria that are not found anywhere in the Act.
...
[54] In this case, the Tribunal’s discretion was narrow, and the impact on the NFU‑O is significant. For 10 years the Tribunal has accepted that the Applicant is an organization representing farmers in the province and did not, in the decision under review, identify any change in circumstances that warranted a change in this finding. The Tribunal erred in requiring that the organization be exclusively devoted to representing farmers in the province and in focussing critically on the Applicant’s affiliation with a national organization. These are not prescribed criteria. These new restrictions do not serve the statutory purposes and are not authorized by the Act.

Justice Beaudoin, having decided that the NFU-O had sufficient standing to apply for accreditation then proceeded to consider whether the NFU-O met the prescribed criteria for accreditation. In resolving that it did, His Honour wrote that:
[67] Although the organizations’ paperwork could be more clear in delineating which affiliated organization is being represented by which individuals on each occasion, there was ample evidence before the Tribunal that the Ontario members of both NFU‑O and NFU Region 3 provide advice to Ontario government bodies with respect to agricultural issues as required by criteria number four. The Tribunal’s finding that the NFU‑O does not provide such advice was based solely on the fact that the NFU is a separate entity from the NFU‑O. The Tribunal’s approach was not reasonable given that affiliations with national organizations are not precluded by the Act. The Tribunal recognized this argument and considered that such an affiliation would be acceptable if these organizations were “bottom up” as opposed to “top down”. The Tribunal focused on organizational structure rather than determining whether the interests of Ontario farmers were being served.
...
[69] The evidence disclosed no attempt by the NFU‑O to misrepresent to the Tribunal its membership, its organizational structure, or its close affiliation with the NFU. The NFU-O’s witness testified that, from the outset, “[t]he NFU's members in Ontario were not looking to become a different organization. Rather, the NFU was seeking stable funding under the Act and required a provincial corporation to meet the requirements for accreditation under the Act”: Reasons for Decision, at p. 25. The NFU‑O’s letters of patent and by‑laws require dual membership. The NFU‑O membership application form states that by joining NFU‑O by way of the farm business registration, a farm business automatically becomes a member of the NFU. The membership application form’s description of the subjects on which it advocates includes subjects that are within the jurisdiction of the provincial government and its agencies, as well as those within the jurisdiction of the federal government and its agencies. Thus, the national affiliation is a selling point used to attract members.

[70] I agree with the Minister’s submission that the accreditation of an organization representing farmers was never meant to constrain how its members might choose to engage government or how they chose to have their views best represented.
...
[74] There is nothing in the enumerated criteria that prevents the NFU‑O relying on the national organization to provide analysis to governments. Moreover, there was ample evidence that Ontario members were involved in developing and making these representations.

[75] The new restrictions imposed by the Tribunal do not serve the statutory purposes and the decision on accreditation is not reasonable.

Relying on the oft-cited decision of the Federal Court of Appeal in Apotex Inc. v. Canada (Attorney General) (1993), 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742 (C.A.), Justice Beaudoin ordered the Tribunal to accredit the NFU-O as a GFO.

On October 21, 2013, the Tribunal issued an Order accrediting the NFU-O as a GFO for three years.

Commentary


First, my congratulations to the NFU-O on their success and my kudos to them for sticking it out throughout this process. My thanks as well for their continued trust throughout this process.

There are really two ways to approach commenting on this case, one would be to enter into the fray by discussing the facts of this case and whether I feel that there was something amiss with how the situation was handled. Given John Sutherland's comments in Better Farming, however, I think I will decline to do so publicly; at least for now.

More generally then, what this case demonstrates is that there may be occasions where, for any number of reasons, an administrative tribunal will get a decision wrong. In those cases, one is not necessarily 'stuck' with the decision made, but rather can seek a judge's opinion on whether the decision was correctly made or reasonable.

Takeaways for those Affected by Decisions of Administrative Bodies


The takeaway for those affected by a decision of an administrative body, such as the HRTO, WSIAT, or OLRB, is that if you believe the decision was incorrectly made you may have options to have that decision reviewed and potentially set aside. While Justice Beaudoin's decision to order the Tribunal to simply accredit the NFU-O as a GFO, rather than granting it a new hearing, was welcomed by the NFU-O and reasonable under the circumstances, readers of this blog should be mindful that such a remedy is more of the exception rather than the rule.

If you are in Ontario and find yourself with a final decision from an administrative body that you believe is wrong, it may be prudent to seek professional legal advice. The employment lawyers at Ottawa's Kelly Santini LLP have experience in such cases and would be pleased to be of service to you or your organization.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.


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