Small Flock Exemption Q&A

Anna, a wanna-be Small Flocker has some questions, and isn't getting the answers from the Chicken Mafia.  Finally, she contacted somebody who cares and answers promptly to the best of their knowledge.  Here is Anna's question:

Good Morning,

I've been trying to email the Ontario Agricultural Ministry but they're not really getting back to me with a question I had and I was hoping that maybe you could help clarify.

 I know the limit if 300 meat chickens per farm per year, but my question is what qualifies as a 'farm'? Does this mean your are limited to 300 birds per farmer or individual adult, or per physical address? Can you have two separate operations leasing land on the same physical address with 300 birds each? (Taxes and operations completely separate) Or can I act as manager for 3 different farms at separate physical locations with 300 birds each?

Thanks so much for all of your help!

My understanding of the important & relevant parts of CFO's (Chicken Farmers of Ontario) Small Flock Regulation are as follows:

Section 1.f says:

“Premises” means  a  parcel  or  lot  of  real  property  as  identified  by  a Property Identification  Number or, in the absence thereof, by another legal description by lot and/or   parcel   number   or   similar legal description   or   by   other   appropriate description using metes and bounds coordinates including the buildings existing on such  real property upon  which  chicken  is  produced  and  from  which  chicken is marketed by a Small Flock Grower;

Section 1.j says:

“Small Flock Grower” means a person registered with the Board and permitted by the Board to produce and market no more than 300 chickens on an annual basis while being exempted from the requirement of being allotted a quota by the Board for the producing and marketing of chicken;

Section 8 says:

"No more than 300 chickens may be produced by the Small Flock Grower in each calendar year."

Section 9 says:

"Once a premises has been utilized for the production of chicken in accordance with this regulation in  a  calendar  year,  it  may  not  be used  again for  such  purpose  by  the Small Flock Grower or any other person until the following calendar year."

CFO are the ones who passed this regulation, and are the ones who define, interpret it, and if they so choose, lay charges under that regulation.  The Courts will then decide if CFO's interpretation is the correct one.  CFO decides if you will be hassled, so in the frustration factor, their opinion, whether dysfunctional or not, is important to understand.

Therefore there seems to be two (2) limitations:

• the Small Flock Grower
• the Premises used

Each Small Flock Grower is limited to 300 birds per year.  Each Premise is limited to 300 birds.  Since CFO controls their database, they can choose who and how a "person" is defined.


For example:

1. A corporation is generally defined as a legal "person".  Does CFO follow this definition?  If you incorporate a company under Ontario law (eg. 123456 Ontario Ltd.) and you are the sole owner of that corporation, can that corporation have 300 birds/yr, and you personally have 300 birds/yr too if you and the corporation use separate premises?
   
   
2. Under Ontario's Planning Act, real property lots adjacent to each other will automatically merge to one property when the ownersof the two lots are the same person.  That owner must get special permission to subsequently separate those lots back into two separate lots.  This doesn't happen if Lot 1 (adjacent to both Lot 1 and Lot 2) is owned by "Bill Smith", Lot 2 (adjacent to both Lot 1 and Lot 3) is owned by "Bill and Mary Smith", and Lot 3 (adjacent to both Lot 1 and 2) is owned by "Mary Smith"; whether or not Bill and Mary are spouses, brother & sister, or total strangers.  Can this legal concept be used for "Small Flock Grower" definition, and Premises ownership?
   

The answers to these specific situations for CFO and their Small Flock Regulation is unclear in the regulation.

CFO (Chicken Farmers of Ontario) are the ones who passed this regulation, and are the ones who define, interpret it, and if they so choose, lay charges under that regulation.  The Courts will then decide if CFO's interpretation is the correct one.

CFO decides if a Small Flocker will be hassled, so the Small Flocker's frustration factor is highly dependent upon the mindset of CFO, regardless of CFO being right or wrong.

That is a clear sign of arbitrary law, and bad regulation.

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?

Appeal #2 Submitted

I finally finished drafting my Notice of Appeal #2, or more correctly, it finished me.  Now the ball is in the court of Chicken Farmers of Ontario, and the Ontario Ministry of Agriculture Appeals Tribunal.

The Tribunal said the only issue I was allowed to bring up was the small flock regulation.  Today, the average small flock in Ontario is just 57 birds.  That 57 birds will feed one family for a year.  Few small flockers bother growing for their neighbours anymore.  Too many regulations, and at 300 birds maximum, it isn't worth the effort to try and run it as a business for most sane people.

This appeal is about freedom for small flockers.  We want our freedom from CFO, but will settle for 2,000 birds per year limit.

Here are the files:

Notice of Appeal      98 pages, 816 kB, Adobe Acrobat X pdf

Affidavit of Glenn Black      5 pages, 592 kB, Adobe Acrobat X pdf

Notice of Constitutional Questions      6 pages, 26 kB, Adobe Acrobat X pdf

I had 60 days to re-draft all of this.  I invested the first bit of that time to decompress, assess if I was ready to try again, and get some personal stuff done that had been abandoned in favor of this project.

I had limited time, knowledge, and budget, so others may have been able to have done a better job, but I tried my best.  Now we have to wait to see what happens next.

Thanks to all of you that reviewed the previous drafts, and made suggestions to help.  I even received a few links for case law that were included in the final version.

Have a tall cold one on me.  I know I will!

Ontario Small Flock Chicken Appeal Re-launched

The decision has been made.  I will be re-filing my appeal of CFO's small flock regulation to the Ministry of Agriculture Appeals Tribunal.

When I received the ruling from the Tribunal on my appeal, I immediately sent a copy of the ruling to the various agriculture publications and reporters.  Among others, Susan Mann of Better Farming did an interview of me, and wrote an article on the appeal and the Tribunal's decision.

Since that time, there has been a lively debate on BF's website about the issues; making it the most lively issue on BF's website.

That prompted me to make the following posting on BF today, announcing my decision:

Eighteen days have passed since BF's posted this article on May 22, 2014.  In that time interval, a total of 81 comments have been made by numerous people.

My original appeal to the Ontario Ministry of Agriculture Appeals Tribunal presented evidence on all of the wrongful acts of Chicken Farmers of Ontario ("CFO") and the chicken Supply Management system overall.  While that comprehensive appeal was rejected by the Tribunal, the Tribunal invited me to re-file my appeal on the limited grounds of the 300 bird small flock exemption Regulation.

I have monitored all the comments made here, and attempted to respond, question, or defend the principles behind the appeal I filed with the Tribunal, complaining against the alleged illegal, negligent, and mis-guided actions of Chicken Farmers of Ontario ("CFO").

After the ruling of the Tribunal was released, I asked for opinions on what should be done next (if anything).  I received nothing but encouragement to continue.  In spite of this encouragement, I do not look forward to another appeal, for I see it as sticking my head into the gaping jaws of a hungry lion.

Some comments made here were off topic, but most expressing worthy opinions on this important issue.

The debates held here have assisted me in considering and preparing the necessary arguments and reasons as to whether a renewed appeal should be made.

In my opinion, there have been no arguments presented here that have persuaded me to change or abandon my principles and logic behind the original appeal.

I thank everybody for your input, and for providing me the ability to defend, practice, and hone my skills and persuasive arguments.

In spite of my reluctance and reservations, I believe that re-filing my appeal must be done for the greater good of all.

I therefore hereby announce that I will be re-filing my appeal within the 60 days allowed by the Tribunal.  I have already started re-drafting the Notice of Appeal this weekend.  When the draft is ready, I will post it on SFPFC's Blog for review and comments before the final version is submitted to the Tribunal.

Glenn Black
Small Flock Poultry Farmers of Canada ("SFPFC")