



COURT OF APPEAL FOR ONTARIO

CITATION:
Ontario Pork Producers' Marketing
    Board v. Hunter, 2012 ONCA 308

DATE: 20120514

DOCKET: C52220

Goudge, MacPherson and Gillese JJ.A.

BETWEEN

Ontario Pork Producers Marketing Board

Plaintiff (Appellant)

and

Roy Hunter, c.o.b. as Hunters Dressed Meats and
566735 Ontario Inc.

Defendants (Respondents)

Sean G.  Foran and Raivo Uukkivi, for the appellant

Donald Good, for the respondent

Heard: May 7, 2012

On appeal from the judgment of Justice Casimir N. Herold
    of the Superior Court of Justice, dated May 4, 2010.

ENDORSEMENT

[1]

The parties had a dispute about whether an abattoir (Hunters) paid
    the appropriate fees to a provincial agency that assisted with the marketing of
    pork products (the board).  The dispute centered on three exemptions to the
    prescribed fees and whether some of the hogs slaughtered by Hunters came
    within those exemptions: (1) the barbecue or Chinese hog exemption; (2) the
    extraprovincial (Quebec) exemption; and (3) the partially condemned hog
    exemption.

[2]

The board claimed that Hunters had improperly claimed exemptions in all
    three categories and sought an accounting and, ultimately, payment of the full
    fees owing.

[3]

Following a three-day trial in Guelph which saw eight witnesses testify,
    four for the plaintiff board and four for the defendant Hunters, the trial
    judge held:

(1)

Hunters had established its
    entitlement to claim the barbecue and Quebec hog exemptions;

(2)

Hunters had not established its
    entitlement to the partially condemned hog exemption (except for nine hogs and
    $20.70) and owed the board $27,960.97 in fees; and

(3)

The board was entitled to costs of
    $15,000.

[4]

The board appeals the first conclusion.  Hunters cross-appeals the
    second and third conclusions.

The boards appeal

[5]

The boards principal submission is that the trial judge ignored the
    statutory definition of exempt hogs  hogs... that weigh less than 125 lbs.
    live weight (Agreed Statement of Facts, para. 14(f))  and created his own
    definition, barbecue hog or Chinese hog, that improperly focusses on the
    slaughtered hogs market destination.  According to the board, this substitute
    definition is completely outside the statutory definition.

[6]

We do not accept that the trial judges conclusion was in error.  It is
    true that the trial judge was in error in saying that it was not in dispute that
    barbecue hogs are exempt.  It is also true that the regulation contained no
    exemption for barbecue hogs. However, Hunters position was based on the
    understanding it had formed over the years that fees were not owed for these
    hogs.  That understanding was grounded in a constellation of factors covered in
    the evidence: (1) what Hunter was told over the years by the board and the
    practice it engaged in as a result which went without comment by the board
    until this case; (2) the wording of some of the boards documents relating to
    market hogs and exempt hogs, including the use of terms like Barbecue Hogs
    juxtapositioned with market hogs and BBQs excluded from the 125 lbs. live
    or 100 lbs. dressed weight category of market hogs; (3) the testimony of Mr.
    Roy Hunter, President of Hunters, and Ms. Dawn Angle, bookkeeper of Hunters,
    which the trial judge believed, about their efforts to ascertain and comply
    with the relevant regulations and pay the proper fees; and (4) the fact that the
    board was not actively involved in the marketing of barbecue hogs.  Given
    Hunters understanding and the basis for it, we cannot say that the trial judge
    erred in his conclusion that the board was not entitled to collect the fees it
    sought for barbecue hogs.

[7]

The boards second argument is that the trial judge erred by concluding
    in the absence of evidence that Hunters was able to satisfy its onus to prove
    that some of the hogs slaughtered at its facility were produced outside
    Ontario.

[8]

We disagree.  On this issue, the trial judge explicitly accepted the
    evidence of Mike Hartstein, the livestock dealer who supplied pork to Hunters,
    and Ms. Angle to support his analysis of the Quebec exemption.  We can see no
    error in the trial judges analysis or conclusion.

Hunters cross-appeal

[9]

Hunters contends that the trial judge erred by concluding that it had
    not established that it was entitled to exemptions from fees for partially
    condemned hogs.

[10]

We
    do not accept this submission.  Hunters essential argument is that the trial
    judge erred by ordering an accounting with respect to this category of hogs in
    his Judgment dated May 4, 2010.  However, Hunters did not appeal this judgment
    and the accounting took place and led to a Judgment on December 14, 2010 in
    favour of the board in the amount of $27,960.97.  It is too late now for
    Hunters to argue that an accounting should not have been ordered.

[11]

Hunters
    also cross-appeals the costs award of $15,000 in favour of the board.  We would
    not interfere with this modest award for a party that gained a modest result
    after a three-day trial.

Disposition

[12]

The
    appeal and cross-appeal are dismissed.  Although success is divided, the appeal
    presented the more substantial issues.  Accordingly, the respondent is entitled
    to costs fixed at $5,000 inclusive of disbursements and applicable taxes.

S.T.
    Goudge J.A.

J.C.
    MacPherson J.A.

E.E.
    Gillese J.A.


