Wednesday, September 24, 2014

Case Dismissed: The Appeal Tribunal has Spoken

The Ontario Ministry of Agriculture Appeal Tribunal has refused to hear Small Flockers' appeal of the Small Flock Exemption Regulation as it is judged to be "frivolous, vexatious, and made in bad faith."

The Tribunal has consistently complained about lack of powers and jurisdiction for finding liability against Chicken Farmers of Ontario, and similar issues that were requested as relief for Small Flockers.  In response to the Tribunal's alleged limitations, both Versions 3 and 4 of our appeal had those contentious issues removed.  For some unknown reason, the Tribunal got hung up on Version 2, and would consider neither Versions 3 nor 4. 

In addition, I supplied the Tribunal with over 23 different legal precedents that supported the contentious relief that I requested from the oppressive and unconstitutional parts of the Small Flock Regulation; including a number of Supreme Court rulings that directly supported our case.

The other Respondent parties refuted neither our legal arguments, nor the case law presented, nor offered case law in support of the Respondent's position.  In spite of that, the Tribunal is silent about all of the case law presented except one, and then decided against us in what appears to be a contradiction of the case law.

How that can occur is a mystery to me, but that's where we are at.

The Tribunal mentioned in their decision that there was significant animosity between Small Flockers and CFO.  It seems that the Tribunal felt that this was one more reason not to allow the appeal, for they discussed it in this decision, as well as the previous two decision; obviously sufficiently important to bear repeating three times.  Does the Tribunal expect that if litigants are not the best of friends, they shouldn't be allowed access to the Tribunal?  I find this very strange.

The Tribunal said that I acted in bad faith because I had a "personal political manifesto".  That was the accusation made against me by CFO, but I don't remember agreeing to that accusation, so it seems the Tribunal leaped to assume CFO's accusation was true; no evidence required.  It appears that the Tribunal wants and expects me to be a cold fish, a dis-interested party, with no stake in the outcome.  To me, that doesn't make any sense whatsoever.  If fact, Section 16.(4).(c) of MAFRAA says that one of the reasons that the Tribunal can dismiss an appeal is that "the appellant has not a sufficient interest in the subject-matter of the appeal".  So the Tribunal dismisses my appeal because I'm too interested, but can dismiss my appeal because I have insufficient interest.  Appellants must need to be like Goldilocks, not too much, not too little, just the right amount of interest.  Sounds pretty arbitrary to me.

I asked in writing before the Tribunal got started, and was assured by the Tribunal's Administrator that the Tribunal would provide full written reasons for their decision.   At the very start of the hearing, I asked again, and the Tribunal Panel themselves again reassured me that they would be providing full written reasons for their decision. In spite of these assurances, the Tribunal's decision is scant on the reasons for their decision.  My budding understanding of court proceedings, based on what I've been told and read, is that the court's decision should speak to all of the arguments presented by both sides, clearly state whether the Tribunal agrees or disagrees with those arguments, and the reasons why.  For virtually all of my reasons and arguments presented, it seems the Tribunal ignored them, like they were never made.  The Tribunal's decision mentions just one of my arguments, but even there, it offers no reasons why it was dismissed.  With incomplete reasons, it is difficult to impossible to appeal the Tribunal's decision, as there is nothing to appeal.  There is no record kept of what was said during the appeal, so we can't even go there to fill the holes in the Tribunal's records.  Unfortunately, it doesn't seem that I got what I was promised.  The Tribunal seems like it's trying to hide in a fog of ambiguity they have purposefully created.

To see for yourself, here is the Tribunal's decision to dismiss our appeal before it gets started.

So you can see for yourself what the Tribunal is referring to, here are my arguments for allowing our appeal to go forward:
Appellant's Answer to Tribunal's Allegation and Threat to Dismiss our Appeal 
10 pages, 171 kB, Adobe Acrobat X pdf file

Appellant's Submission Brief (case law, statutes, regulations, documents, and 375 signatures on Petitions requesting the Tribunal to allow appeal to proceed to full hearing), 27.35 MB, 1,085 pages, Adobe Acrobat X pdf file.  (It a BIG file, so it takes a few minutes to download.  Be patient)

Here is CFO's submission to Tribunal in response to my Answer

Unlike our answer, CFO presented no facts, no legal references, no case law that supports their position.  All CFO did was issue 5 pages of rhetoric.

It appears that CFO's rhetoric is pretty powerful stuff, as it trumps a number of Supreme Court of Canada cases that supported our position.

I understand that I can ask the Tribunal for re-consideration of their decision.  My estimate of success is I'd have better luck buying a 6-4-9 ticket.

I can also ask the Minister of Agriculture to intercede.  Assessment of success?  I have no idea.  What are your thoughts?

If neither of these work, I can ask the ON Superior Court for a Judicial Review.  However, that puts me at risk for having costs awarded against me, perhaps risking thousands of dollars to pay for CFO's lawyers if I lose. Pretty risky step.

What do you think Small Flockers should do?


  1. Take them all the way. Superior court. Look what it did for BC.

    1. Thanks for your comments.

      Yes, that is my first inclination too. However, the risk and cost to me if I lose could be severe. Researching the options, I see that there is something called "Public Interest Litigation" ("PIL") where you are allowed to be exempt from court costs if you lose, but can get your costs if you win.

      The difficulty is that there is no way I can find that I can get accepted as a "Public Interest Litigant" before starting that ball to roll. If I get turned down as a PIL, it will be too late and I get stuck with the bill.

      Is it possible, is there sufficient support, that people would be willing to Crowd Fund this cause? For example, Indegogo

      It is unclear how much to raise. Court costs could $500 (not likely this low) to 5,000 (probable) to 50,000 (worst case?). I assume CFO's lawyer is $500 to 700 per hour, so the bills can run up pretty quickly (ie. 1 week of lawyer @$700/hr is $28,000).

      Let's assume people would be willing to contribute $10 each on average. We would need 2,800 people to pay for that $28,000 potential bill.

      Blog running since Feb. 2013 and we just cleared 90,000 pageviews. I assume that is 10,000 people worldwide who came back multiple times. That's 10,000 people in 19 months, or 526 per month. If we got 3% of them to contribute (typical charity contribution rate), we'd have 16 contributions per month, or $160 per month. We have very limited time to get ready to file Judicial Review. This Blog won't achieve adequate crowdfunding all by itself.

      We would need everybody who comes here to take this on as a project to fund it, and notify all their family friends and business contacts, ask them to consider funding us too, and spread the word to their family and friends. Is that feasible?

    2. If you ask me you approached this incorrectly. Too many points to argue in a single case. You’re asking the Tribunal to re-write all marketing board constitutions, laws, and regulations not to mention decry liability, damages and forced public apologies. It’d be like suing Canada for not being Communist.

      BTW, just have to say, by saying you only raised 1 chicken (assuming that is true) you can’t say the limit needs to be increased…you’re not being harmed by the 300 bird limit. OTOH, if you simply had presented a business plan that involved raising 2000 chickens, you wouldn’t seem frivolous.

      My suggestion is, if you want to change the law, do it one item at a time. That’s what the Tribunal appeared to be saying all along.
      FWIW, I too would love to see an increase in the quota-exempt number.

      I don’t know if you’ve read it or not, but is an interesting read and potentially a source of a better argument about the Tribunal refusing to hear the appeal.


    3. Thanks for your comments.

      You are likely correct.

      I wish I had heard from you sooner.

      I knew about the Code of Conduct for Tribunal Members. I used a few items from it to justify the remedies I was seeking, but not even that worked; they violated their own rules.

      So what do we do now?

  2. Sorry my name is showing up as "Unknown", don't know how to fix that.

    Anyway, I just came across the issue today in my search for more contacts in Ontario raising chickens. I've no idea how you managed to present the idea that the Tribunal should force the CFO to raise its limit...but assuming that could be done again, and that was the one and only issue/remedy in the case...I'd start there.

    Since there is severe financial risk in actually ordering, say, 2000 chicks, I say stick with the idea of a business plan that shows raising and selling 2000 in a year. It should be done by someone other than you (sorry, but it would stand a better chance atm), and by someone who has previously raised and sold chickens (preferably someone who already does the 300 limit). That way you have an interested party, a demonstration of the real income they're being denied, and the plausibility that the party would go ahead if they were only allowed to by the CFO.

    The only other point that might get mentioned in such a brief would be a question as to the original 300 number. How was it chosen? What year was that done, and so what has happened to the viability of companies in that time? IOWs, is the profitability of a 300 chicken company still viable today? Chances are it can be proven it isn't viable.

    One last need to be careful in presenting reasons to increase the limit. You have to be able to argue why a quota over 300, but 2,000 or less is necessary and safe. The CFO is likely going to say all sorts of things about regulating ops with > 300 chickens, be they 301, 2,000 or more.

    Russ - Kirkfield, ON

    1. Anyone who is willing to appeal has to do so within 1 year of becoming a chicken farmer, or appeal will be denied under statute. The Notice of Appeal, with all my arguments is discussed and available here:

      There are 6.5 grow periods during year, so you'd build a chicken coop for 308 chickens at one time; a manageable number. If you want energy efficiency and avoiding chicks in the winter, there is a 7 month grow season (April 1 to Oct. 31), with an 8 week grow period gives 3.5 grow sessions per year, so a 2,000 limit/yr means growing 571 chickens at the same time.

      I presented the COP (Cost of Production) for 57 (the Ontario average Small Flocker), 300, and 2,000 limit here:

      The average Small Flocker at 57 birds cannot economically compete. At 2,000 birds per yr., we can compete.

      The 300 limit was negotiated by SM's Hatchery with SM CFO so as to give Hatcheries more business. The 300 limit ensure extra income, but ensures the Small Flockers are chained on short leash that ensures they are no threat to #ChickenMafia.

      A Small Flocker with 2,000 bird exemption will have 0.001% market share of Ontario chicken. Doesn't seem like much.


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