Fair is fair: where statutory interpretation is the core issue decided upon following written and oral submissions, it is not procedurally unfair for the decision maker to rely on a particular term contained in the regulations being interpreted about which submissions were not specifically made

Administrative law – Decisions reviewed – Business Risk Management Review Committee – Judicial review – Applications – Statutory interpretation – Legislation – Natural resources – Agriculture – Farm operations

2041219 Ontario Ltd. v. Business Risk Management Review Committee, [2021] O.J. No. 5968, 2021 ONSC 6696, Ontario Superior Court of Justice, October 21, 2021, L.G. Favreau, D.R. Aston and N.L. Backhouse JJ.

The applicant, a numbered company involved in cattle production in Ontario, brought an application for judicial review of a decision made by the respondent Agricorp. Agricorp is an organization that administers programs established by the Ontario government for agricultural producers. One such program is the Risk Management Program for Cattle Farmers (the “Program”). The Program provides benefits to cattle farmers where their production costs exceed the market value of their product. Both production costs and market value are based on cattle’s weight gain.

In its decision, Agricorp accepted a recommendation made by the Business Risk Management Review Committee (the “Committee”) that weight gain for the applicant’s cattle that occurred outside of Ontario is not eligible for the Program.

The Program was established in 2011 through an Order in Council titled the Ontario Risk Management Program (the “OIC”). The OIC sets out eligibility criteria for the Program. Eligibility criteria is also set out in guidelines published by the Ontario Government, and a handbook published by Agricorp. As stated, the Program is administered by Agricorp, and where there is a disagreement between the farmer and Agricorp as to the amount owed under the Program, the farmer can request a review by the Committee, which in turn makes non-binding recommendations to Agricorp.

At the relevant time, the applicant had placed some of its cattle with farmers outside of Ontario for the earlier stages of the weight gain process. Agricorp subsequently conducted an audit of the applicant’s applications from 2014-2017 and found the applicant had received benefits due in part to out of province weight gain which was not eligible for the Program. The applicant requested a review by the Committee. An oral hearing was held on June 12, 2019, and both the applicant and Agricorp made written and oral submissions regarding the interpretation of the OIC and the issue of out of province weight gain. The Committee made a recommendation in agreement with Agricorp’s initial decision, and Agricorp wrote to the applicant on July 12, 2019, advising it accepted the Committee’s recommendation (the “Decision”).

On judicial review, the applicant argued the Decision was unreasonable because the published materials (the OIC, the guidelines, and the handbook) did not explicitly state at the time that only weight gain in Ontario was eligible for the Program. The applicant also argued the Decision was procedurally unfair because the Committee and Agricorp came to its decision in reliance on a legal issue the applicant had not provided submissions on, that being the interpretation of the term “Farmer” in the OIC.

The parties agreed the standard of review was reasonableness, and that no standard of review applies to procedural fairness. Rather, as held in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Court is to apply the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, to determine the level of procedural fairness required in the circumstances of the case, and whether it was met.

When Agricorp initially found the weight gain at issue was not eligible for the Program, it had relied on the definition of “Cattle” in the OIC: “a bovine of a beef-type whose main characteristic is meat that is produced in Ontario for a minimum of 120 days.” In making its recommendation to Agricorp on review, the Committee relied on the definition of “Farmer” in the OIC: “a Person engaged in production of” various products including cattle “within Ontario.” The Committee rejected the applicant’s submission that the definition of “Cattle” only required the cattle be present in Ontario for 120 days in order to be eligible for the Program. Agricorp agreed with the Committee’s interpretation.

The applicant argued the Decision was unreasonable based on its interpretation of the published materials regarding eligibility criteria. The Court held that the applicant’s arguments appeared to be an attempt to argue the issues de novo. The role of a court on judicial review is to assess whether the decision below ought to be upheld, not to decide the issues afresh.

The Court found the Decision was reasonable, having regard to Agricorp’s reasoning for its interpretation, the purpose and wording of the relevant provisions, and the policy objectives of the regulation. Further, while the applicant claimed the Decision was procedurally unfair as the applicant had not made submissions regarding the definition of the term “Farmer” in the OIC, the Court held the OIC and its interpretation were at the heart of the issues between the parties, and as the applicant had an opportunity to make full written and oral submissions on the interpretation of the OIC, there was no breach of procedural fairness. There also was some discussion of the term “Farmer” during the hearing, indicating that definition was in play. In any event, the Court found that even if Agricorp had been required to put the applicant on notice of its reliance on that term, it would not have made a difference to the outcome. The application for judicial review was dismissed.

This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Mollie A. Clark at [email protected].

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