Tuesday, August 26, 2014

CFO's Gorilla Dust

On the last available day, we finally have CFO’s reply to our appeal and the Tribunal’s threat to dismiss our appeal.

Our last ditch effort to save our appeal from CFO's fatal propaganda is described in Blog posting It Is Done

I was always told to first find the good in all things before criticizing, so that is where I will start.  CFO, to the best of my abilities to detect, has no spelling mistakes, and their sentence structure shows intelligence, education, and strong  rhetorical arguments.  It appears that CFO's lawyer did the best he could with the weak hand that he was given.  He was unable to present any evidence or case law in support of CFO's position; perhaps because there aren't any available.

On page 7 of the Tribunal's May 21, 2014 decision, the Tribunal said:
"Mr. Black's Amended Notice of Appeal is restricted to challenging CFO Regulation No. 2425-2013 and the 300 bird chicken exemption policy;"
Why then, is CFO repeatedly hammering away about Small Flockers' complaints against the Small Flock Regulation?  In our Revised Notice of Appeal, we complain that this Small Flock Regulation (the "Impugned Regulation") is:
  • Unconstitutional;
  • Ultra Vires the powers and authority delegated to CFO;
  • Violates the Canadian Charter of Rights and Freedoms;
  • Excessive, arbitrary, unjustifiable, draconian, and an abuse of powers; far beyond what is necessary and justifiable to achieve the stated Objectives of the Chicken Supply Management System;
  • Not applicable to Northern Ontario, and other under-serviced or remote areas of Ontario.
If the Revised Notice of Appeal is to be limited to the impugned Small Flock Regulation, why does CFO complain that "...the small flock regulation continues to serve as the toe-hold for the advancement of Mr. Black's broader concerns and agenda."

In my Revised Notice of Appeal, I gave evidence on why my appeal of the Small Flock Regulation should be allowed.  CFO takes exception to me being allowed to present evidence against the Small Flock Regulation.

Apparently CFO feels I am only allowed to appeal if I don't present any evidence to support my case.  That would certainly be an interesting appeal process.

In the Tribunal's July 31st, 2014 decision, the Tribunal  invited me to convince them that they have the powers and jurisdiction for the relief I sought in my Revised Notice of Appeal:

"In addition, the Tribunal gives Mr. Black the opportunity to persuade it that it has the jurisdiction to grant the relief set out in section 11 (p. 96-97) of the RNOA."

In my arguments to support our appeal and prevent the dismissal without a hearing, I gave it my best shot to convince the Tribunal in 10 pages or less.  I also said that if I was not fully successful in my arguments to convince the Tribunal, I offered to withdraw all contentious points, defaulting to exactly what the Tribunal has already agreed to (ie. the Small Flock regulation, and the 300 bird limit).

Still, CFO is not satisfied.  CFO spends 5 pages complaining that I improperly persist in my claims, even though the Tribunal gave me the opportunity to make final convincing arguments on those points.

I found numerous previous cases decided by Ontario Superior Court, Court of Appeal, and Supreme Court of Canada that seemed exactly on point in support of my Notice of Appeal.  I understand that the typical arguments against previous case law are:
  • Try showing that I've misinterpreted what my case law is saying, or how it should be applied;
  • Try finding other case law that supersedes or overrules my case law;
CFO does none of this.  CFO presents mere rhetoric against the claims made, but makes no attempt to diminish the legal precedents I presented.  Perhaps that's because the Supreme Court of Canada cases are the law of the land, and cannot be attacked in any reasonable way.

Perhaps CFO has no case, and they know it.  Perhaps CFO is like a scared gorilla, who throws dust in the air as a smoke screen so as to distract attention, blind the opponent, or cover their retreat without being seen.  The best that CFO can come up with is gorilla dust.

We will soon see how far the Tribunal is willing to stretch out their neck in favor of CFO's position.

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