Tribunal delays chicken hearing

Monday, June 28, 2010

by BRIAN LOCKHART

The Ontario Agriculture, Food and Rural Affairs Tribunal is delaying a Stevensville chicken farmer’s appeal over a moratorium on interprovincial chicken marketing so he can decide how to proceed on other legal implications his complaint has raised.

Henry Bos had appealed to the Tribunal to lift a Chicken Farmers of Ontario (CFO) moratorium on Ontario farmers shipping their birds to Quebec. But at a pre-hearing earlier this month the Tribunal observed that his appeal raised a question about who held the authority to make interprovincial trade decisions.

In its pre-hearing decision, the Tribunal notes that Bos “challenges the authority of the CFO to issue supply allocation orders” and that challenge also “questions whether such orders conflict with federal licensing regulations.”

It has delayed the hearing because “it would be premature for the Tribunal to consider the broader policy issues” without giving Bos and the marketing board an opportunity to address them. Instead, the Tribunal will hold another pre-hearing July 8 to determine how Bos will proceed on the related issues.

“I’m required to inform them of whether I wish to make a constitutional argument,” Bos says. On June 24 he had not yet decided whether to proceed.

At the pre-hearing, Bos learned that if he does proceed, he would have to file notice with the provincial and federal attorneys general.

Bos was aware that his appeal had greater implications but says he had initially decided to appeal only the regulations concerning the moratorium. “Because, my logic was if I won, to overturn the regulation the policy would have to come into line,” he says.

He hadn’t thought a constitutional challenge was possible. Instead, he anticipated his appeal would result in an automatic stay on the moratorium. The Tribunal decided, however, that “a stay in the matter does not result in the automatic suspension of validly enact legislation.”

The Tribunal recommended Bos seek legal advice when considering how to proceed. But Bos says he has been ”dealing with this stuff for twenty years,” and the costs associated with a legal challenge are just too much. “I’m done with that.”

Mary Fearon, Chicken Farmers’ manager of communications says the marketing board would withhold comment until after the hearing is completed. “We wouldn’t want to comment on something that is specific to a tribunal hearing because it is still in process,” she says.

Fearon says the moratorium is “reviewed on a quota period by quota period basis.” Quota periods are based on an eight-week time frame with the current period ending November 8. BF