How Administrative Tribunals Should Deal with Expert Evidence: Ontario Association of Chicken Processors v. Ontario Broiler Hatching Egg & Chicken Commission, 2025 ONSC 4174

I had the unique pleasure of being counsel to the applicant in a judicial review application that was allowed from the Bench: Ontario Association of Chicken Processors v. Ontario Broiler Hatching Egg & Chicken Commission, 2025 ONSC 4174.

This was an application in respect of a decision made after a de novo hearing before Ontario’s Agriculture, Food and Rural Affairs Appeal Tribunal.

There were a variety of complex issues relating to the supply management regime for the setting of prices for chicks (at para. 6), on which the Tribunal received extensive expert evidence. The Tribunal commented as follows:

This appeal might be sub-titled “The Battle of the Experts”; between the experts who testified on behalf of the [Applicant], urging changes to the present OBHECC COPF, and the experts who gave evidence on behalf of the respondent, supporting the present OBHECC COPF, and the experts called by the Third Party, who also supported the present OBHECC COPF.

The members of this Tribunal are not accountants, business valuators or economists. The Tribunal’s role is not to decide which of the opinions is correct. If that were the case, then expert opinions would not be necessary as the Tribunal could give its own opinion.

The task of the Tribunal is to decide which of the expert reports are the most reliable and acceptable on each issue based on the following points (“Consideration Points”):

1)      The credentials and experience of the expert;

2)      The reasonableness of both the analysis and result;

3)      Compliance with the pillars of the COPF and the guidelines of the COPF Committee; and

4)      Whether the affect (sic) of the change to the COPF was just and reasonable.

Each of the expert witnesses has provided a written report and given oral testimony. After considering the testimony of the expert and his/her expert report(s), the Tribunal must decide which expert reports are the most reliable and acceptable on each issue.

The appellant has the onus of proof on this appeal. The appellant’s expert reports and testimony must be considered the most reliable and acceptable to the Tribunal in order for the appellant to be successful on each issue.

The Tribunal then set out its conclusions applying these consideration points and saying it preferred one expert over the other. The court commented that it would be “hard to imagine more conclusory reasons” (at para. 10):

Long gone are the days where the authoritative claim of an expert may be accepted just because of the expert’s expertise: Hon. Stephen T. Goudge, The Report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen’s Printer for Ontario, 2008). It is the expert’s analysis that is the substance of their evidence, and where there are competing expert opinions, it is the task of the Tribunal to roll up its sleeves, analyse the substance of the expert evidence, and in particular, the points of difference between competing expert opinions, and then to explain – with reference to the expert evidence – why one analysis is preferred over another.  Listing the analytical tools used to assess expert evidence, saying that these points have been considered, and then announcing the Tribunal’s conclusion, fails to explain why an application of the “Consideration Points” to the evidence leads to the Tribunal’s findings (at para. 11).

The court did briefly provide helpful guidance to Tribunals that find themselves in similar situations, faced with conflicting and persuasive expert evidence on highly complex points:

It is, of course, not the task of the Tribunal to come to its “own opinion” on matters in issue requiring expert evidence. Rather, it is the task of the Tribunal to make findings of fact on the basis of evidence that it accepts. Where a factual issue is contested, the Tribunal’s task is to explain its finding.  It very much is the Tribunal’s role to decide which facts are “correct” – that is, which facts the Tribunal accepts on the basis of the evidence before it.  As stated by the Supreme Court of Canada, a proceeding should not become “a contest of experts with the trier of fact acting as a referee in deciding which expert to accept” (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, para. 18. See also R. v. J.-L.J., 2000 SCC 51, para. 56, Canada v. Piot, 2019 FCA 53, para. 38) (at para. 12).

Ultimately, the losing party is entitled to a “reasoned explanation” as to why it lost (at para. 13).

This was a very interesting case to be involved in, with senior counsel Herman Turkstra, and should be useful for Tribunal members and staff dealing with expert evidence.

This content has been updated on July 18, 2025 at 20:34.