Tribunal hears milk election dispute

Sunday, December 29, 2013

by BETTER FARMING STAFF

Mitchell-area dairy farmer Dave Murray argues that a small difference in the wording between the Ontario Milk Act, which gives powers to Dairy Farmers of Ontario, and the regulations that the marketing board applies to elections gives room for an additional 10 ballots to be counted; ballots Murray thinks might give him back his position as director for Huron and Perth Counties.

“No one has challenged (the difference) before,” Murrays says. “There has never been an election so close.”

Murray, the incumbent, lost a mail-in ballot vote to represent Huron and Perth County producers to challenger Henry Wydeven of St. Marys by a mere two votes in November. He wants a recount, with those 10 rejected ballots added in. He took his case to the Ontario Ministry of Agriculture, Food and Rural Affairs Appeal Tribunal in Guelph Monday.

Graham Lloyd, DFO’s general counsel, director of communications and also returning officer for the elections, told the Tribunal 289 ballots were counted in the first decision. In addition, 12 were rejected because they were late. Ten were date-stamped Oct. 30 and the ballot envelopes remain unopened. The deadline, according to Lloyd is the last Tuesday of the month. In 2013 that was Oct. 29.

(In addition, 17 ballots were rejected because they were improperly filled out. In all, 545 dairy farmers in Huron and Perth counties were eligible to vote for one of three candidates.)

Murray, who has been a board member for eight years, said “I believe the returning officer erred.”

Murray says the applicable regulation says “mailed or consigned” and there is no reference to “post marked.”  Farmers could have dropped off the mail in ballot at their local post office after mail had been processed for the day. At the Mitchell post office, for example, the cutoff hour is 3:30 pm. Letters could have been received in the late afternoon of Oct. 29 and not be post marked until Oct. 30. “I believe you should give the producers the benefit of the doubt,” Murray said.

Lloyd disagreed. The voting instructions sent to producers made it clear that ballots should be mailed early, he said. Lloyd argued, the regulations do not allow for doubt. The returning officer must be absolutely certain that the ballots were mailed on or before the last Tuesday of October.

The hearing was finished by noon Monday, in spite of procedural wrangling. Tribunal chair Harold McNeely, a lawyer from Ottawa, questioned whether Lloyd could act as both representative of the marketing board and be a witness in the hearing. The Tribunal retired to a back room to discuss that issue for 40 minutes before deciding it was proper as long as Lloyd did not testify. The Tribunal retired again, for 10 minutes, to consider Lloyd’s statement of facts.

Because of the appeal, Murray remains a board member at least until the Tribunal renders a decision. Lloyd stressed to the Tribunal that a decision on the recount was necessary shortly. 

“The timing of this is extremely sensitive.” Jan. 9, the day after the Dairy Farmers of Ontario annual general meeting is a key date, Lloyd said.  That is when the board selects its executive, including a chair, and committees are formed. A delay “is highly prejudicial and could be damaging to the operation of the board.” BF