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Ont. orders “negative option” for hog marketing

The order ending Ontario Pork’s days as a mandatory single-desk hog marketing agency has been overturned — that is, if the province’s hog producers want it to be.

A ruling Tuesday from the province’s Agriculture, Food and Rural Affairs Appeal Tribunal reinstates sections of the Ontario Farm Products Marketing Regulations that were revoked in October 2008 by the Ontario Farm Products Marketing Commission.

The commission’s 2008 ruling — which directed Ontario Pork to convert itself from a mandatory single-desk model to an optional marketing agency for Ontario hog farmers, and to put a plan in place by March 2009 to do so — was stayed by the tribunal after some farmers and other industry players appealed.

The tribunal’s decision Tuesday restores the single desk, but exempts all Ontario hog producers from it for a minimum of 18 months. Those who want to market through the single desk will then have to apply to waive the exemption.

Hog farmers consenting to the waiver will then have to market their production through Ontario Pork for “a minimum period of 18 months.”

Writing for the tribunal, vice-chair Francis Handy said the members “dislike the negative option” but consider it “the practical approach” in these circumstances.

The tribunal said this option would allow Ontario Pork to complete its consultations, strategic planning and governance reviews toward a new structure “while allowing those who wish to operate outside of the mandatory marketing regime to do so, but without making permanent changes that may be unwise to implement without further review and consideration by those most affected.”

In the next 18 months, Ontario Pork “will be required to consult and to provide a plebiscite or similar mechanism to ensure its recommendations have support in the industry,” the tribunal ordered.

“In the event that Ontario Pork is unable to accomplish these goals, exempt producers will have six-month renewals of their exemptions.”

Ontario Pork would be able to supply marketing services for exempted producers, as long as an exempted producer wanting the agency’s services first agrees to revoke his or her exemption until the end of this 18-month period.

The appeal tribunal also overturned the commission’s decision on fee collection, restoring Ontario Pork’s authority to collect fees on all classes of domestic swine produced in Ontario, not just slaughter hogs.


Handy, a mediator and arbitrator by profession, noted in the tribunal’s ruling that “adversarial style hearings are a poor way to make policy decisions.”

For example, he wrote, “there was not a comprehensive review of data about the industry as a whole from anyone: each party’s presentation was based on its own particular goals rather than an effective structure for the industry. Many who will be affected by this decision did or could not participate and were not sought out for their views.”

By the time the appeal tribunal’s hearing was over, he wrote, “there were many gaps in information, gaps that create enormous uncertainty about the impact of requested changes and the rationale for positions taken by parties.”

Furthermore, he wrote, “we do not find the anecdotal and hearsay data from the respondents or appellants about conversations with other producers sufficient to make a finding about the views of producers in general.”

While not aiming to criticize anyone appearing before the tribunal, Handy noted that one of the appellants, southwestern Ontario hog farmer Rein Minnema, and fellow producer Jasper Vanderbas “offered many conclusions based on suppositions and hearsay views without any data.”

The hearing, Handy wrote, saw very little in the way of expert testimony, and “most of what the tribunal heard was argument rather than evidence, even during the evidentiary phase of the hearing.”

The ruling acknowledged that “from the perspective of many participants in the industry, Ontario Pork was not responding effectively to market conditions, was not supporting alternative approaches to dealing with the crisis (in hog prices), was not creating or supporting good relationships with processors, and was seeking to maintain a particular way of handling hog sales that did not respond to the opportunities and challenges that some in the industry wanted to pursue.”

However, Handy wrote, “we must also acknowledge that for a significant number of hog producers, Ontario Pork’s actions were seen as protecting a hard fought and significant balancing of powers that in their view needed to be maintained, regardless of the ups and downs of market conditions and prices over the years.”

Ultimately, he wrote, in the lead-up to the commission’s original decision, “no fully comprehensive consultative process including a direct consideration by all producers has been completed.”

There appears to be a “radical” split between philosophies, perspectives and prognoses in the province’s hog industry, he wrote and “the entity now best suited and making the most comprehensive effort to develop a consensus is Ontario Pork.”

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