Tribunal Hearing: CFO's Motion To Dismiss my Appeal

CFO's Motion to Dismiss hearing has been completed.  The Tribunal will take the next 30 days to decide whether our appeal will be allowed to proceed, or killed so as to maintain the chicken supply management status quo.

As Blogged previously (see SFPFC's Ball is in Tribunal's Court), I filed an appeal with the Ministry of Agriculture Appeals Tribunal of the actions, inactions, and decisions of Chicken Farmers of Ontario ("CFO") and Ontario Farm Products Marketing Commission ("OFPMC").

Shortly after receiving my Notice of Appeal, CFO notified the Tribunalthat they didn't want to discuss these issues raised, and would be filing a Motion to Dismiss my appeal.  The appeal was held in Guelph ON on May 14, 2014, from 9:30 AM to about 4:00 PM.

There were 3 lawyers who were assigned to the Tribunal.  These were lawyers who work in private practice, and have been appointed to hear the cases assigned to them for the Appeals Tribunal.  There were 2 lawyers (articling law students?) from London ON, a staff member from CFO, 2 Tribunal staff members, a staff member from OFPMC, and Jim Rohman, a Blogger and agriculturee reporter who was kind enough to come from Kitchener ON to cover this trial, then Blog on his perceptions (see link above).

The Tribunal Hearing was all very professional, cordial, and respectful.  I felt that our arguments were listened to by all members on the Tribunal Panel.

CFO went first, as it was their Motion To Dismiss.  The lawyer for CFO, Mr. Spurr, took about 1.5 hrs to present his arguments in favor of CFO's motion.

Since OFPMC was so closely aligned with CFO, Ms Michelle Ireland, lawyer for OFPMC, was allowed to go next.  She confirmed that OFPMC was in full agreement with everything that CFO said.

Finally it was my turn. The Tribunal offered to do an early lunch, and I start after lunch, or I start before lunch, and resume to finish after lunch. Calculating the importance of getting immediacy to respond to CFO's case before lunch could solidify these opposing views without the balance provided by my alternative views, I decided it best to do my prepared presentation before lunch, then argue against what CFO had presented.  I accepted the Tribunal's offer to get started on my arguments immediately, then call lunch, and finish my presentation after lunch. 

My viva voce [Latin for "live voice"] arguments are available as Appellant's Viva Voce Arguments.  The case law and other documents referred to in the foot notes are indexed and available in the Submissions Brief (see below) using the Footnote # sequence.

 I was required to submit copies of all the case law and other documents to which i referred and relied upon during my viva voce arguments that I presented at the Tribunal Hearing.  A copy of all these documents has been submitted to the Tribunal as the Appellant's Viva Voce Arguments Submissions Brief (Version A01) which you can download and review (Caution:  it's a 29.16 MByte Adobe Acrobat pdf, with 1,623 pages, so dialup Internet users will be a lifetime getting it downloaded).  In Adobe Reader, bookmarks are activated by clicking on a blue ribbon symbol near the top of the left margin of the Reader window.  The references are bookmarked in this file using the format:   XX_TitleDescription where XX is the Footnote # in the Appellant's Viva Voce Arguments, and TitleDescription is a short description of the document starting at that bookmark.

In this preliminary version of the submission's brief, I have been unable to obtain the following cases and reference documents:

• Footnote #4:   United Nations Committee on Economic, Social and Cultural Rights, Responses to the Supplementary Questions to Canada’s Third Report on the International Covenant on Economic, Social and Cultural Rights, 1998, UN Doc HR/CESCR/NONE/98/8       I have a request in to Heritage Canada to supply me this document.
• Footnote #19:   Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed., ISBN: 978-0-7798-4933-8 (Toronto:Thomson Reuters, 2012) at pg. 244.   I have an inter-library loan request for a copy of page 244 of this textbook submitted to Osgoode Law Library at York University.  In the interim, I have included a Book Review on the text, and the Table of Contents showing the item referenced on pg. 244.

Now we wait for the Tribunal's decision.

Tribunal Time

It's off to the Tribunal we go!

Yesterday, I received the Tribunal's acknowledgement of receipt of our Notice of Appeal from the Ontario Ministry of Agriculture and Food Appeal Tribunal. I agreed to all of their proposed dates, but somehow, the Tribunal scheduled us to different dates.  The Motion Hearing is scheduled at Tribunal's offices at 1 Stone Road West, Guelph, Ontario Canada (45 minutes from Toronto ON Canada), beginning at 9:30 a.m. on Wednesday May 14, 2014.

This motion is likely a preliminary ploy by Chicken Farmers of Ontario ("CFO") to stop the appeal before it gets started.

As CFO sees it, I have no rights whatsoever, and they are the mighty and powerful CFO, and don't appreciate me questioning their actions and authority.

If you don't mark this date on your calendar and show up at the appointed time, I will likely be there all by myself, staring into the hungry, snarling, foaming mouths of CFO's lawyers; from 1 to 6 Toronto lawyers who will attempt to rip me apart and feed me to their young; all while being paid $500 per hour for each of these legal wolf-mercenaries.

Bring popcorn and your smart phone for live video opportunities.  This will likely be interesting.

This hearing, and if we ever get to the Tribunal, could cost up to $3,000 per hour that CFO has to pay their lawyers.  Of course, CFO will fund the protection of their monopoly by raising CFO chicken levies that are charged to quota-based chicken farmers.  Ontario's factory chicken farmers who pay those levies will, in turn, be reimbursed by raising the farm gate chicken prices that the farmers enjoy.  Chicken processors will be forced to pay these higher farm gate chicken prices, so the retail price of chicken will eventually be raised accordingly.

So again, the consumer gets shafted by trying to seek an end to the previous and ongoing shafting of consumers.

My apologies to all Canadians for increasing your pain through higher chicken prices in the short term.  Hopefully, there is a rainbow and pot of gold that will eventually be found through this appeal process.

What will we be discussing at this motion hearing?  CFO likely feels I have no right to appeal, the Tribunal has no authority to hear my complaints, and I have been scandalous, frivolous, vexatious, trivial, my appeal has no merit, it's an abuse of the judicial process, moot, bad faith, have an improper purpose, or discloses no reasonable cause of action, and therefore I lose any right to appeal.

As to the Tribunal appeal itself, there is a short and long version available.  Take your pick:

The Long Version:  The Gory Details of my Appeal

Notice of Appeal   272 pages, Adobe Acrobat pdf, 5.63 MB

The Short Version:   7 Questions

Suggested Questions for the OMAF Tribunal to Answer

Glenn Black
vs.
Chicken Farmers of Ontario (“CFO”) &
Ontario’s Farm Products Marketing Commission (“OFPMC”)

1. Currently, small flock (ie. non-quota) chicken farmers are subject to government authority and powers that have been delegated to, or vested in Chicken Farmers of Ontario (“CFO”). Since these delegated and vested powers imposed on Small Flockers originated from the governments of a free and democratic country, does the Appellant and other Small Flockers have the legal right to membership in CFO, to attend CFO meetings, to receive CFO information, to run for a CFO elected office, and vote in CFO elections so as to have democratic representation at the CFO Board?


2. If the answer to Q #1 is no, then should Small Flockers be exempt from the By-laws, rules, policies, procedures, powers, authority, rulings, invasion of privacy, and threat of enforcement currently planned and practiced by CFO?


3. Are there other responsibilities, duties, and constraints owed by the Defendants (ie. both CFO and OFPMC) for the benefit of the Appellant or others, that irrevocably flow with the government powers that are delegated and vested in the Defendants, above and beyond those expressly enumerated in the Farm Products Marketing Act and Regulations?


4. Under Section 1.01 of the Federal-Provincial Agreement-Chicken 2001, all members of the chicken Supply Management system agreed “to work in the balanced interest of producers, industry stakeholders and consumers”. Have the Defendants breached these duties under this agreement? If yes, does the Appellant, Small Flockers, the consumer, and/or the general public have vested third party rights, either under this agreement or otherwise, that they can use to seek legal redress from the Defendants?


5. Do the Defendants have a duty to be open, transparent, accountable, prudent, and reasonable; and to consider, accommodate, and be responsive to the rights, needs, expectations, complaints, and suggestions from:   (a) the Defendant’s respective stakeholders?   (b) The Appellant?   (c) Small Flockers?   (d) the consumer? and (e) the general public?


6. Is there sufficient objective, unbiased evidence to conclude that the Defendants have fully, faithfully, consistently, effectively, and efficiently:   (a) developed plans;   (b) avoided risks;   (c) implemented their express and implied duties in a timely and good faith manner for the greater good of the consumer, the general public and the Defendant’s respective stakeholders;   (d) periodically assessed their own performance, promptly took corrective action as needed, and continuously improved their performance?


7. If the answer to Q #6 is no, what duties do the Defendants have to assess their past performance, identify the cause of their inadequate past performance, determine the optimum solutions, take immediate corrective actions, verify and validate that their remedial actions are fully implemented and effective, and ensure their prior poor conduct (as well as all similar potentials) are avoided forevermore?

SFPFC's Ball is in Tribunal's Court

The dirty deed is done!  After almost a year in preparing our case, the Notice of Appeal has been filed with the Ontario Ministry of Agriculture Tribunal.

I previously posted about our draft Notice of Appeal (see SFPFC's Appeal at the OMAF Tribunal ), and requested suggestions to further improve it.

As usual, sober second thought, eagle eyes and dedication spotted a few mistakes in the draft versions, and raised some additional ideas for putting a few more nails into CFO's coffin.  This process added 14 additional pages to our docket for submission.  I'm sure we could have continued that improvement process for 5 to 7 more rounds, but our time was limited to get in under the 1 year deadline.

Final Version:  SFPFC's Notice of Appeal to OMAF Tribunal, 272 pages, 4.73 MB

The Tribunal is created and controlled under Section 16 of the Ministry of Agriculture, Food and Rural Affairs Act.  The Tribunal thereby created is authorized and has all the necessary powers under Ontario's Statutory Powers Procedure Act.

Here is the email transmitting and submitting our Notice of Appeal

As stated in the email, I have been informed that there are a number of other interested parties who likely will want to be added as parties to this appeal, intervenors, or attend the hearing, so I have requested that the hearings be held in or near Guelph ON with a hearing room suitable for 200 people.

I assume that CFO will create a huge financial war chest to fund their attack.  According to CFO's 2013 financial statements on page 28, CFO has  $8.8 Million is assets, and a net worth of $6.73 million.  By borrowing from banks or passing an emergency levy to all #ChickenMafia members and friends, they can get a lot more money to fight for a very long time, using the most expensive mercenaries money can buy.

SFPFC has its legal defense fund too.  We have been selling memberships, cutting expenses to the bone to save our pennies, cashing in aluminum cans and glass bottles, etc..  We are proud to announce that we have amassed a grand total of $26.00 ready to apply to financing this important issue.  As you can see, this is truly a David vs. Goliath battle.  Additional donations to SFPFC's legal defense fund can be made if you are so inclined.

If we can achieve more than $100.00 it might be worth opening a SFPFC bank account, rather than using the recycled coffee can sitting on the kitchen counter. 

Typically, these David vs. Goliath legal battles require an almost endless series of roadblocks that will be erected by Goliath (ie. CFO and the #ChickenMafia), and we will be required to provide strict proof and justification of every single point whined about.

CFO has already stated that they plan to contest our right to request a Tribunal hearing, as they see us as frivolous, vexatious, acting in bad faith, raising trivial matters of no importance, and that we have no right or legally justified interest in the matters complained about.  They also mentioned something about my Mom wearing army boot.

If CFO can prove any of those allegations against SFPFC, then the hearing will be over before it starts.

It may go as far as CFO denying that Planet Earth exists, as you can't have a Tribunal hearing if Planet Earth cannot be proven to exist.  Similarly, they may try to deny the existence of such things as chickens, me as a person, SFPFC, and all similar arguments that could possible delay or deny existence or responsibility for their actions.

That system of delay tactics may take a while to get through, including a multitude of preliminary motions, arguments against disclosing documents to us, and many other legal maneuvers; all before we can get to the hearing proper.

While it may seem endless at the time, the delaying tactics by CFO and the #ChickenMafia will eventually come to an end.

While all of the above is likely their plan, we may be pleasantly surprised by their willingness to get right to the meat of the matters.  We'll have to wait and see.

Hopefully, the Tribunal is well aware of their tricks, and won't tolerate them for long.

As soon as I know the date for the hearing, I'll let you know.

In the interim, please pass the word to everyone who might be interested.  Share with them your reasons for being interested.  Help them to understand what is at stake, and what the benefits might be from a positive ruling at this appeal.  We seek justice for small flockers, and to make a better world for all residents of Ontario.

Plan on coming to the hearing.  Bring your popcorn.  It should be an interesting show.

Off to the Tribunal we Go!

Slowly but surely, we are moving on my complaint against Chicken Farmers of Ontario ("CFO").

Quick Recap

Feb. 5, 2013     I filed my complaint with CFO
Feb. 25, 2013   CFO thanks me for my feedback.
                         To me, it seems CFO has filed it in the round filing cabinet on the floor (ie. garbage can)
Feb. 25, 2013    I request hearing of my complaint before CFO Board
Mar. 1, 2013      CFO acknowledges my request, Board will consider my request
Mar. 21, 2013    CFO Board decides to decline hearing, and waive their right to hear my complaint
Mar. 26, 2013    I send letter asking FPMC to intercede on my behalf with my complaint against CFO
May 23, 2013     FPMC refuses to intercede with CFO, refers me to OMAF Tribunal
June 6, 2013      I send email to Tribunal asking for information on how to proceed with complaint.

Four months of bureaucracy and delays.  It seems Canada grows some of the best bureaucracies and red tape in the world.

I'm going to need lots of help & advice on this Tribunal.  I assume we have one chance to get it right.  I've never done a Tribunal before so I'm looking forward to suggestions from all the jailhouse lawyers out there to advise & guide me on how to make this effort successful.

Questions for FPCC and PGC

In my last Blog posting, I discussed the application of Pullet Growers of Canada ("PGC") to become another one of Canada's infamous Supply Management Mobsters.  I have read all of the info presented by PGC, and the questions asked by FPCC (Farm Products Council of Canada), all available here

PGC might thank their fortunes that I didn't find out about their application until the public commenting deadline had closed.  At this point, we have to hope that FPCC does the right thing, or somebody who is attending the Winnipeg public hearing finds these notes and submits one or more of them into the public record.

So here goes.  Does PGC have answers for any of these?

1. Why can the PGC Board arbitrarily decide that somebody raising pullets can't be a member of PGC, according to PGC's current Bylaws?  To me, this seems ready for abuse and unfair use.
2. Why can somebody who is currently a PGC member be voted out on a 2/3rd majority?   Now, when PGC is a voluntary club, this power doesn't mean much, but if PGC membership becomes mandatory to hold quota, it could be used for unfair purposes.  Please explain.
3. PGC's Mission, Vision, and Values talk about serving and helping its members.  You are now asking Canadians to give you a monopoly.  That monopoly is obviously very valuable, or you wouldn't have spent over $150,000 trying to get it.  What assurances do Canadians have that PGC will serve Canadians well?  Shouldn't your Mission Statement recognize your duty to serve Canadians, rather than just yourselves?
4. PGC's Mission talks about producing high quality pullets.  Unfortunately, it makes no commitments about affordability, availability, on-time delivery, continuous improvement, understanding & serving the customer's needs, or risk.  Why not, PGC?
5. The PGC Vision speaks of communication, but what are you going to communicate: lies or the truth?  Why not some commitment about openness, transparency, and accountability?
6. In your roadshow slides, PGC talks about continual improvement in price efficiency.  In the official documents (eg. By-laws, Mission Statement, etc.), nothing on this could be found.  Is this "bait & switch" marketing propaganda, or does PGC actually commit to these essential elements?
7. PGC states that quality assurance and cost/benefit analysis will be considered down the road.  Why shouldn't FPCC consider these as mandatory, with PGC having a proven track records in implementation prior to application for Part II acceptance?
8. In the early documents and PGC's road show, you mention a cost to consumer of 0.25 cents per dozen for PGC to enter supply management, then it became 0.5 cents per dozen, and in the most recent answers provided to FPCC, you claim 2 cents per dozen.  That's 800% cost inflation in 2 years, or 282% per year; clear evidence demonstrating that PGC understands how Supply Management works.  How do we know that the acceptance of PGC's plan by those early supporters wasn't conditional on the 0.25 cents per dozen cost, and whether members/stakeholders of PGC would totally reject their proposal if they knew it was going to be a 2 cents per dozen hike in prices?  Secondly, please explain the inconsistency in these prices.  Are we to expect 282%/yr. price inflation from PGC from now on?
9. PGC states that pullet quota will be owned by PGC, and once a farmer no longer raises quota, the quota is surrendered back to PGC at no cost.  The exception is transfer to immediate family members or to shareholder in corporation, or an immediate family member of a shareholder.  Can we not assume that farmers will incorporate, bring in a new shareholder, transfer the quota, and then cash out; thereby eliminating any quota that gets surrendered to PGC at no value?  Please explain what you foresee here.
10. PGC states that they want to participate in and protect Supply Management.  Why is there no commitment from PGC that they will improve Supply Management for themselves and all Canadians?
11. PGC notes that there are 550 pullet farmers in Canada, but had only 32 attend their AGM in 2009, 24 in 2010, 10 in 2011, and 18 in 2012; for a geometric average of 19.  These numbers include the PGC Executive and Board Members.  It appears that there are 19 or so committed members of PGC, which is just 3.45% of the total pullet growers.  I also note that the Minutes of the PGC Board are secret, not to be shared with members.  Please provide objective evidence that a majority of PGC members are truly supporting this group of 19 activists and their plans for Supply Management.
12. BC and Saskatchewan are against PGC's plans, Alberta is doubtful.  EFA is hesitant.  PGC members in only 4 provinces have a majority of support for joining Supply Management.  With 10 provinces and 3 territories, that is just 30.7% of the jurisdictions that support.  By PGC's own figures, there is just 51.456% of the current pullet growers who support this plan.  Why does PGC feel this is adequate to proceed at this time?
13. The PGC Directors are indemnified for everything.  I assume that this includes criminality such as fraud, bad faith, and negligence.  All of these costs for a wayward director will eventually be paid by the Canadian consumer.  Why is this blanket coverage necessary?
14. During the PGC's roadshows, they were asked about the impact of this plan on small flockers.  No answer was provided.  Why was this relevant question not answered?  Secondly, what is the full answer to this question?
15. Similar to the previous question, there were a number of other questions that were asked, recorded in the minutes, but no answer was recorded.  Will PGC supply answers to all of these unanswered questions before the end of the hearing?
16. In one diagram in the PGC submission package, it shows the Hutterite communities as needing to be approached for input.  Was this ever done?  If yes, what was the outcome?  If not done, why not?  Will PGC be doing this prior to the end of these hearings?
17. On numerous occasions and for assorted subjects, PGC has stated that they have nothing in place (ie. no policies, no plans, etc.) as of yet, but that once PGC is approved for Part II Supply Management, they intend to work on that issue.  Isn't that counting your chickens before they hatch, or perhaps asking FPCC to buy a "pig in a poke"?  With so many outstanding issues, there is a significant probability that one of these issues will not go as the stakeholders assume and expect.  What makes PGC feel that this is an acceptable approach?  Why not wait until PGC has worked out all of these issues, and then PGC can decide if they wish to re-submit their Part II application?
18. PGC has stated that all pullet growers have been consistently and continually unable to recoup their true cost of production ("COP"), and this is the reason supply management must be sought and granted.  Yet in their submission package, a group of pullet growers on the East Coast questioned the need for this proposal as things were going quite well and profitable.  Evidence from Manitoba's pullet growers in the evidence currently before the Hearing Panel was of a similar nature.  If PGC's assertions were true, we would expect a rising tide of churn in the industry (ie. people selling out after they lose hope of a reasonable income), or go bankrupt, or price wars, and similar artefacts.  Have these occurred?  Can PGC provide collaborative evidence to support its assertions on COP?
19. No where in PGC's submissions is there clear support for considering allocation of production to the lowest marginal cost producers.  PGC has repeatedly avoided answering this question, in spite of it being asked on many different occasions.  How does PGC see that they will meet this statue-imposed requirement?
20. In the Apr. 26/12 answers provided by PGC, PGC declares itself as 1st Receiver for pullet imports into Canada (ie. only PGC can import at the reduced duty of 6% or so, while all others would pay exorbitant duties, 300% or more).  What does PGC feel are the pros and cons of this approach, other alternative considered, and how do you justify this as the best solution?
21. For farmers who raise their own pullets (ie. closed loop), PGC proposes they would be exempt from supply management quota and levies.  Is this an escape loophole available for all?  What prevents a growing number of customers who are disillusioned with PGC from taking this approach?
22. PGC provided a Risk Assessment in their filings.  On reading the risk assessment, it was mainly directed at PGC's success with its Part II application.  Little or nothing was done on the risks for the Canadian public, upstream suppliers, downstream customers, exporters, importers, or any other stakeholder groups.  Why was PGC excluding all of these important stakeholders from consideration in their meager risk assessment?
23. In PGC's draft Federal-Provincial Agreement, PGC proposes that pullet growers in non-SM provinces would have to charge the highest of two prices.  Under some or most circumstances, this can result is all competitive advantage being lost by the best supplier, and artificial shelter provided for the worst suppliers.  This seems to defeat the mandatory consideration of a balanced approach which considers the interests of the consumer.  It also seems to defeat the preference for the best and lowest marginal cost producer.  Please explain PGC's rationale for this pricing restriction. 
24. On numerous occasions, PGC stated that pullet growers in SM provinces can ship everywhere, but pullet growers in non-SM provinces cannot ship to SM provinces.  That does not seem to be described anywhere in the official documents.  Please explain where this is part of the formal system, rather than just rhetoric.  Please describe the pros and cons of this approach, other options considered, and the justification for choosing this option.
25. In PGC's submission package, it appears that PGC was encouraged to make a Part II application by one or more speeches by FPCC, which I assume refers to Mr. Laurant Pellerin, FPCC's Chairperson.  If Mr. Pellerin has been actively encouraging Part II applications, how is FPCC supposed to make an objective, unbiased decision to recommend or reject PGC's application?  Some might consider this encouragement to be similar to a criminal court judge advocating for drug dealers to step up their criminal activity so that the Judge and other courts have sufficient work and job security.  Should Mr. Pellerin and all other FPCC personal who actively promoted Part II applications from PGC or others, recuse themselves from involvement in the PGC hearings and decision process?

CFO Chickens Out, Denies Hearing

CFO has decided that running away is better than facing the issues head on.  On March 21, 2013 Chicken Farmers of Ontario issued me a letter stating that the CFO Board had decided to not hear my complaint against CFO and the chicken supply management system.  See Hearing Denied

This clears my way forward to seek the intervention of the FPMC (Farm Products Marketing Commission, CFO's boss), or the Agriculture, Food and Rural Affairs Appeal Tribunal ("Tribunal").

CFO has reserved the right to request that the Tribunal refuse to hear my complaint, because they feel my complaint is trivial, frivolous, vexatious, not made in good faith, or similar grounds.  If the system is as corrupt as some believe it is, CFO may be successful in stopping me before I get started.

If anybody has experience with FPMC or Tribunal, and is willing to share their experience, or to help our cause, we encourage and welcome your help.