Ferri v. Ontario Apple Marketing Commission, 1997 ONAFRAAT 11

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

Ferri v Ontario Apple Marketing Commission

Ferri v OAMC 1997 ONAFRAAT 11

Ministry of Agriculture, Food and Rural Affairs Act

April 15, 1997

DATE OF DECISION:

April 30, 1997

1997-11

1997 ONAFRAAT 11

Ferri v Ontario Apple Marketing Commission

IN THE MATTER OF: THE FARM PRODUCTS MARKETING ACT AND SECTION 16 OF THE MINISTRY OF AGRICULTURE AND FOOD ACT.

AND IN THE MATTER OF: An appeal to the Farm Products Appeal Tribunal by Mr. Quinto Ferri from the November 20, 1996 decision of the Ontario Apple Marketing Commission denying his request for a list of the names and addresses of apple growers who contribute acreage fees to the Ontario Apple Marketing Commission.

Before: Mr. Jim Rickard, Chair; Dr. Denis O'Connor, Vice-Chair; Mrs. Moira Connell, Member; Mrs. Karen Ratcliffe, Member.

Appearances: Mr. Nigel Eves for the appellant, Quinto Ferri.

Mr. Mac Ferri for the appellant, Quinto Ferri.

Mr. Crosby Mitchell, on behalf of the respondent, the Ontario Apple Marketing Commission.

Mr. Geoffrey Spurr, counsel to the respondent.

Mr. Tom Graham, counsel to the Tribunal.

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario on Tuesday, April 15, 1997. Mr. Quinto Ferri appealed to the Farm Products Appeal Tribunal (the Tribunal) from the November 20, 1996 decision of the Ontario Apple Marketing Commission (the OAMC) denying his request for a list of the names and addresses of apple growers who contribute acreage fees to the OAMC.

The Regulation that applies to this appeal is Clause 13 (a) and (b) of Regulation 387 and is as follows:

"13. The Commission delegates to the Apple Commission the power,

(a) to require persons engaged in producing or marketing apples to register their names, addresses and occupations with the Apple Commission;

(b) to require persons engaged in producing or marketing apples to furnish such information relating to the production or marketing of apples, including the completing and filing of returns, as the Apple Commission determines;"

Mr. Ferri is asking the OAMC to provide him with a listing of the names and addresses of all persons registered with the OAMC as persons engaged in the producing of apples. The OAMC has refused to release the list to Mr. Ferri but has offered to facilitate a mailing of information provided by Mr. Ferri to all the registered producers, subject to:

payment of postage and a service fee, and
review of the material to be sent.

The Issue

The issue before the Tribunal is whether or not the OAMC should be directed to release the list of registered producers to Mr. Ferri?

The Evidence and the Findings

Mr. Nigel Eves spoke to the Tribunal on behalf of the appellant, Mr. Quinto Ferri. Mr. Eves told the Tribunal that he desired the list of producers so that he could have fast, open and frequent communication with fellow producers. He said that currently small problems and misunderstandings that could easily be solved by communication grow into larger issues because the growers have been denied access to the best method of open communication among the growers. Mr. Eves said that he utilizes the internet for communication and education and if he knows who the other growers are, he can share the knowledge he gains with other growers. He used the example of summer oil that is used for mite control in New York State. Mr. Eves said that, since the cut backs in the Ministry extension service, he has to rely on other sources of information to keep current. According to Mr. Eves, one farmer with information does not have an impact on the industry. He feels that all the growers have to work together in order to have a competitive industry. Mr. Eves said that the policy of the OAMC has to change and that is why the offer of a supervised mailing was declined. Mr. Eves argued that if growers are aware and able to communicate, positive changes would occur in the industry. If the primary producer does not prosper, the industry dies.

In response to questions from the panel, Mr. Eves indicated that he does receive the OAMC newsletter but does not read it as he feels the information contained in the newsletter is not relevant to growers but it is relevant to packers and wholesalers. He said that he does not attend local growers' meetings or the annual general meeting of the OAMC. He has not submitted any article or opinion to the Grower's Forum in the OAMC newsletter because he believes the growers do not read the newsletter. Mr. Eves said he believes that only the Directors and Committeemen attend the growers' meetings and the annual general meeting.

Mr. Eves pointed out that the OAMC is inconsistent in their policies. He said that the OAMC refuses to publish a list of all registered growers but prints a list of those who are delinquent in payment of fees. Mr. Eves argued that this information is much more personal than the information he is seeking and has been refused. He said that those registered growers who wish to apply for a marketing licence and meet the criteria are licensed by the OAMC. Any one can obtain a list of licensed marketers by requesting one from the OAMC.

Mr. Mac Ferri told the Tribunal that he has been involved in the apple industry since before the formation of the OAMC. He said that the OAMC directors include growers, packers, wholesalers, retailers and consumers. This is the only local board established under the Farm Products Marketing Act that has such a wide representation. According to Mr. Ferri, shortly after the OAMC was formed, the retailers began to make demands on the growers for reduced prices and for this reason, the growers need representatives whose primary responsibility is to the growers. He said he has been asking for the growers' list so he can communicate openly with fellow growers. He argued that doctors, lawyers and trade unions publish membership lists and he can see no reason why the OAMC should not also publish its membership list.

Mr. Crosby Mitchell, secretary and statistician for the OAMC since May 1, 1985, on a contract basis, spoke on behalf of the OAMC. Mr. Mitchell said that the statistical data that the OAMC prepares is not secret as Mr. Eves claims. In fact, it is sent to the Committeemen, Directors and horticultural advisors. The OAMC communicates with the growers, directors, committeemen, other marketing organizations in other jurisdictions and anyone who has indicated an interest in the industry, through the newsletter. He indicated that although growers are invited to the annual general meeting, the attendance is very low, usually less than five growers who are not committeemen or directors. The annual general meeting format has a morning session which is open only to the grower directors. The afternoon is an open meeting. There is a time in the afternoon to discuss resolutions.

Mr. Mitchell told the Tribunal that the OAMC has hired Price Waterhouse to do a study of the structure of the OAMC and make recommendations. He said that the growers have the opportunity to input into this study either through their Committeeman, Director or directly to the Price Waterhouse study team by means of a questionnaire.

Mr. Mitchell said that Regulation 387 is the authority for the OAMC to collect the list of names of producers. The data is collected on the annual acreage reporting form, Form 1. If a grower fails to file a Form 1, the OAMC staff follow up, write letters/telephone calls and eventually take the grower to court if Form 1 is not filed. Before taking the grower to court, a list of delinquent growers is given to the Committeemen and Directors so these people can talk to the delinquent growers to try to convince them to file the forms and avoid the cost of a court action. This list is not published and distributed but is given only to the Committeemen and Directors.

Mr. Mitchell said that the policy of not releasing the list of registered growers was first made official policy in 1970 and was an unwritten policy prior to that time. He told the Tribunal of an instance where the OAMC mailed information on behalf of a company that subsequently went bankrupt still owing several growers. The OAMC wants to avoid a repeat of this situation. He also said that the OAMC has conducted mailings on behalf of grower organizations after a review of the information by the Directors. This is the offer made to Mr. Eves.

Mr. Mitchell filed copies of minutes of meetings during which the Directors of the OAMC discussed Mr. Eves' request to have the list of registered growers released to him. The minutes indicate that a motion was made to release the list of names but was subsequently tabled until the next meeting to give the Directors time to consider the matter. At the next meeting (January 1997), the motion was defeated.

Mr. Mitchell said that if a grower indicates they want their name released, on request, the OAMC would do that. To find out the desire of the growers, the OAMC would have to contact every grower for permission to release their name. He indicated this could be accomplished by putting a notice in the newsletter to ask this question of the growers.

Mr. Mitchell told the Tribunal that the OAMC had contacted the other marketing boards under the Farm Products Marketing Act to determine their policy on releasing the names of producers. All of the Boards that responded to the inquiry have the same policy as OAMC; they do not release their list of growers/producers.

In response to questions from the panel, Mr. Mitchell indicated that a majority vote of the Directors could change the policy and this issue had just been before the Directors and defeated.

Mr. John Ardiel, Director of the OAMC, told the Tribunal that there is a voluntary organization of growers in his district that has about 140 grower members. When this organization wants information mailed to all growers in the district, it asks the OAMC to conduct the mailing so both members and non-members of the voluntary association get the information. He said that the policy of this voluntary organization is not to release a membership list.

In summation, Mr. Eves argued that reference to the old bankruptcy case was irrelevant. He said there was no evidence that the people involved would not have been able to purchase apples had they not been given access to the mailing list. He saw no liability on the OAMC for providing a list to someone who then offers a business opportunity to growers. In Mr. Eves' opinion, the responsibly is on the grower to make his/her own decision. He also argued that just because everyone else has the same policy that does not make the policy right. Mr. Eves argued that the OAMC had failed to provide a convincing argument as to why he should be denied access to what he feels is an important business communication tool.

Mr. Geoffrey Spurr, counsel to the OAMC, summed the position of the OAMC by saying that the OAMC is obliged to keep in confidence information on growers that they are compelled by statute to gather. He argued that the Board of Directors, the majority of whom are growers, could vote to change the policy and had, after consideration of the issue, decided to maintain the policy. He also argued that a reasonable offer had been made by the OAMC to mail to all registered growers information provided by the appellants subject only to review by the Directors for accuracy of the information provided.

The Tribunal agrees that growers should have the opportunity to communicate with their fellow growers either for technical or political reasons. However, in the opinion of the Tribunal, there are ways of facilitating this within the present policies of the OAMC.

The Tribunal also recognizes there is a difference between a grower that is compelled by statute to register with the OAMC in order to produce apples and a person who chooses to apply for a marketing licence and meet the criteria for that licence. At this point in time, the growers wish their names and information to be protected because the people they elect to carry on their business, the Board of Directors of the OAMC, have decided that.

The practise of the OAMC is that it publishes lists of delinquent growers and releases this list to Directors and Committeemen but does not publish the complete growers' list. A grower apparently is able to submit an article of less than 250 words to the Grower's Forum section of the newsletter and have it printed without editorial comment but on the other hand, a mailing to growers from a person or group is subject to editorial control.

The evidence and arguments presented at the hearing indicate that there are many growers who have concerns about the state of the industry in Ontario, including the fact that some apples are being sold at less than the cost of production. These growers are concerned about the impact the OAMC is having on the industry. The Tribunal recognizes that the OAMC has contracted with Price Waterhouse for a study.

In the opinion of the Tribunal, the supervised mailing offered by the OAMC is a reasonable beginning for Mr. Eves to start assembling a list of growers who, like him, wish additional communication. The present policy has been in place since 1972 so Mr. Eves has not been caught in a change in policy. If Mr. Eves wishes to change the direction or policies of the OAMC, there are more appropriate avenues to accomplish this rather than through an appeal to the Tribunal.

Decision and Reasons

After careful consideration of the evidence filed and the submissions made, the Tribunal decided to deny the appeal of Mr. Ferri.

The reasons for this decision are:

The Tribunal was not convinced by the evidence that the appellant could not obtain the information he desired by working within the current policies of the OAMC and, therefore, there is no compelling reason to change the policy at this time.
There is a method for electing Directors and Committeemen to represent their producers and this system has to be respected. No information was placed before the Tribunal to indicate that the Directors or Committeemen were negligent in the performance of their duties at the Board.

Dated at Guelph, Ontario this 30th day of April, 1997.