National Farmers Union - Ontario Reaccreditation, 2012 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, chemin Stone Ouest

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

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

National Farmers Union - Ontario Reaccreditation

NFU-O Reaccreditation (RE) 2012 ONAFRAAT 11

STATUTE:

Farm Registration and Farm Organizations Funding Act, 1993

HEARING:

September 15, 2011

DATE OF DECISION:

May 23, 2012

2012-11

NEUTRAL CITATION:

2012 ONAFRAAT 11

NFU-O 2011 REACCREDITATION DECISION

IN THE MATTER OF: SECTIONS 4 AND 5 OF THE FARM REGISTRATION AND FARM ORGANIZATIONS FUNDING ACT, 1993 (the Act).

AND IN THE MATTER OF: An application to the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) by the National Farmers Union - Ontario (NFU-O), under section 4(2) of the Act for renewal of its accreditation (reaccreditation) under the Act.

Before: Kirk Walstedt, Chair; Jane Sadler Richards, Member; Mary Field, Member

Appearances:

Peter Dowling – NFU-O board member

Ann Slater – NFU-O board member

Alvaro Venturelli – NFU-O board member

Don Mills – 2^nd Vice-President (Operations) National Farmers Union (NFU)

John Sutherland – President of Waterloo Wellington local NFU-O

Sean McGivern – NFU-O board member (resigned)

Steve Dick – NFU-O board member (subsequently resigned)

Rae MacIntyre – NFU-O board member (resigned)

Michael Schmidt – NFU-O board member (resigned)

INTRODUCTION

On March 21, 2011, the NFU-O applied to the Tribunal for reaccreditation under Section 4(2) of the Act. Written notices for the hearing of the application were sent to the NFU-O, the Ontario Federation of Agriculture (OFA), the Christian Farmers Federation of Ontario (CFFO), the Union des cultivateurs franco-ontariens (UCFO), the Minister of Agriculture, Food and Rural Affairs (Ministry) and the Administrator, Farm Business Registration (FBR) Program (Administrator). A hearing occurred on June 22, 2011 at the Tribunal offices at 1 Stone Rd W., Guelph, Ontario, and continued to be heard on September 15, 2011 in accordance with section 27 of the Act as a result of concerns raised by one current and three former NFU-O board members (objectors). Supplementary documents pertaining to the NFU-O application for reaccreditation were received by the Tribunal up to October 18, 2011, at which time no further submissions were accepted.

On June 29, 2011, the Tribunal issued an Interim Order that the OFA, NFU-O, CFFO and the Ministry, including its agencies, file with the Tribunal and serve on each other by July 29, 2011, their submissions, if any, regarding the Tribunal’s concern with the treatment of the payment to be provided to the Ministry under section 21(1) of the Act as a membership fee. The Tribunal subsequently granted an extension to the filing date.

On August 26, 2011, a joint submission from the OFA, NFU-O and CFFO was filed with the Tribunal and on August 29, 2011, a submission by the Ministry, including its agencies, was filed with the Tribunal regarding the Tribunal’s concern with the treatment of the payment to be provided to the Ministry under section 21(1) of the Act as a membership fee.

The Tribunal reviewed the submissions provided by the OFA, NFU-O and CFFO and the Ministry regarding the Tribunal’s concern with the treatment of the payment to be provided to the Ministry under section 21(1) of the Act as a membership fee, and the evidence related to the NFU-O’s application for a renewal of its accreditation. The Tribunal decided it would issue its decision to each of the organizations i.e., OFA, NFU-O and CFFO, on the same date because the findings and outcome related to membership fee affect all accredited farm organizations. This circumstance resulted in a longer-than-normal period of time between the initial reaccreditation hearing for each organization and the issuance of this decision.

The issues before the Tribunal are as follows:

1. Can the payment of the prescribed amount payable to an accredited farm organization to be provided to the Ministry under section 21(1) of the Act be treated as a membership fee?

2. Does the NFU-O meet the prescribed criteria for accredited farm organizations?

OVERVIEW

1. Can the payment of the prescribed amount payable to an accredited farm organization to be provided to the Ministry under section 21(1) of the Act be treated as a membership fee?

Tribunal’s Concern

In the Interim Order dated June 29, 2011, the Tribunal expressed concern about the treatment of the payment to be provided to the Ministry under section 21(1) of the Act as a membership fee. The three reasons for the Tribunal’s concern are as follows:

1. Section 21(10) of the Act states that payment under this section does not confer membership in the farm organization.

2. The different language used in the Regulation and the Act describing what appears to be two separate fees. Section 21(1) under the Act states, Every person required to file an annual farming business registration form with the Ministry must, when filing the form, provide to the Ministry payment of the prescribed amount payable to an accredited farm organization. Section 3(2) of the Regulation states, The amount of the payment to be provided to the Ministry under subsection 21(1) of the Act is $195.

A membership fee, on the other hand, is clearly referred to in the following sections of the Regulation: Section 5(1) states, Subject to the other provisions of this section, a farm organization qualifies for accreditation if it meets the following criteria:

1. It has at least 250 members who,

i. carry on a farming business in Ontario, and

ii. have paid the membership fee.

3. It has an annual membership fee, including applicable taxes, of at least $195 for each member.

4. It contributes to the local affiliates referred to in paragraph 11 an amount that equals or exceeds 25 per cent of,

ii. in the case of a farm organization that is accredited, the amount that is obtained in the most recent completed fiscal year under subsection 21(3) of the Act for which no refund was given under subsection 21(5) of the Act less the amount that would be payable in taxes if this amount were being charged as a membership fee.

Section 5(4) states, A farm organization does not meet the criterion prescribed in paragraph 11 of subsection (1) unless each local affiliate,

(a) has at least ten members, each of whom has paid the membership fee, carrying on farming businesses in the area concerned;

3. The apparent different tax treatment of the amount of the payment to be provided to the Ministry under section 21(1) of the Act and membership fees in sections 5(1)3 and 5(1)12 of the Regulation.

Additionally, the Tribunal notes that an organization seeking to be accredited for the first time could not have any farm business registration monies designated to it by the express language of section 21(1) of the Act, but still would need to meet the criteria in the Regulation, including having at least 250 members who carry on a farming business in Ontario and who have paid a membership fee.

The Tribunal invited submissions from the three farm organizations seeking re-accreditation under the Act i.e., OFA, NFU-O and CFFO, and the Ministry, including its agencies, as to the proper interpretation of the Act and Regulation regarding the payment to be provided to the Ministry under section 21(1) of the Act and membership fees.

Submissions

The accredited farm organizations¹ provided a joint submission to the Tribunal on the intent of the Act and Regulation as they relate to the distinction between the payment to the Ministry and a membership fee. The accredited farm organizations submitted that the payment is not a membership fee and that the payment becomes a membership fee on acceptance of the terms of membership by both parties.

The Ministry submitted that it is appropriate for an accredited farm organization to use the “prescribed annual amount payable payment” it receives from a farm business toward paying its annual membership fee should the farm business wish to be a member of the accredited farm organization.

2. Does the NFU-O meet the prescribed criteria for accredited farm organizations?

The NFU-O is an accredited farm organization representing farmers in Ontario. The Act and Ontario Regulation 723/93 (Last amendment: O. Reg. 442/09) (the Regulation) set out the requirements for renewal of a farm organization’s accreditation (Appendix A). The NFU-O must apply to the Tribunal for reaccreditation under the Act no sooner than nine months and no later than six months before the expiry of its accreditation as prescribed in section 6 of the Regulation. In 2008, the Tribunal ordered that the NFU-O would be reaccredited “for a period of three years commencing October 18, 2008”. The Tribunal is required to hold a hearing to determine whether an organization’s accreditation is to be renewed. The Act specifies in section 6(1) the legal test the Tribunal must use when considering an application for reaccreditation: If the Tribunal determines that the organization meets the prescribed criteria for accredited farm organizations, the Tribunal shall, by order, accredit the organization and, if the Tribunal determines that the organization does not meet those criteria, the Tribunal shall refuse the accreditation. The details of the prescribed criteria are listed in sections 5(1), (2), (3) and (4) of the Regulation. Furthermore, the Act and Regulation do not bestow the Tribunal with any discretion in this matter.

ANALYSIS

1. Can the payment of the prescribed amount payable to an accredited farm organization to be provided to the Ministry under section 21(1) of the Act be treated as a membership fee?

The accredited farm organizations submitted “that there is no conflict or confusion between the payment and the fee as referenced in the Act and Regulation”. In the Ministry’s submission, the Administrator of the FBR Program submitted that, although problematic, in his opinion it is possible to interpret the Act and Regulation as requiring the payment of two fees. The Tribunal agrees with the Administrator, having raised our concern in this matter. The Tribunal finds the language and the intent of the Act and Regulation are open to alternate interpretations when read without the illumination provided in the submissions from the accredited farm organizations and the Ministry.

The Tribunal agrees with the submission of the accredited farm organizations that “the payment becomes the membership fee on acceptance of the terms of membership by both parties”. Also, the Tribunal agrees with the Administrator of the FBR Program that Hansard shows that in 1993, when the legislation was debated in parliament, “everyone was of the opinion that a … payment [to the Ministry] could be set-off against the AFO’s AMF [accredited farm organization’s annual membership fee], provided the farm business wanted to be a member”.

The Tribunal’s review of Hansard² was most helpful in developing the basis of its agreement with the submissions from the accredited farm organizations and the Ministry. The Hansard transcripts document the original understanding and intent of key participants i.e., farm organization representatives, government staff members, and elected members of the provincial parliament, involved in developing and reviewing the proposed Act in 1993. The Tribunal found it was difficult to identify one or two excerpts from Hansard that, taken in isolation, clearly indicate a consensus on the intent at the time; however, a review of the text in its entirety persuaded us that the overriding intention was that the payment could be used as a membership fee provided the person or farm business requests membership and the accredited farm organization accepts the person or farm business as a member. On this latter point, Hansard shows that the Director of Legal Services Branch of the Ministry indicated a separate membership step was necessary during her explanation of section 21(10) to the Act:

Ms. Stratford [the Director]:

Subsection [21] (10) is new. This is to clarify a point that seemed not to be very clear, that being that payment under this section does not confer membership in the farm organization. Membership in the organization would be a separate step that a farm business would choose or not choose to take. If they requested their refund, then presumably they wouldn’t be interested in membership and would so notify the organization. If they didn’t request the refund, the farm organization would presumably then ask if they wish to become a member and they could advise them as they saw fit.³

After careful consideration of the submissions, the Tribunal finds that the payment of the prescribed amount payable to an accredited farm organization, which is provided to the Ministry, can be treated as a membership fee paid by a person or farm business to an accredited farm organization after an explicit membership agreement is completed between the parties as follows:

i) the person or farm business providing the payment of the prescribed amount payable to an accredited farm organization to the Ministry explicitly applies to become a member of the accredited farm organization in whose name the prescribed amount payable is made; and

ii) the accredited farm organization in whose name the prescribed amount payable is made explicitly accepts the membership application and communicates this to the person or farm business providing the payment of the prescribed amount payable to an accredited farm organization to the Ministry.

The Tribunal recommends that confirmation or rejection of an explicit membership agreement should be completed within the first 60 days of the 90 day refund period prescribed in section 11 of the Regulation. This would allow the person or farm business providing the payment of the prescribed amount payable to an accredited farm organization a further 30 days to request a refund under section 11 of the Regulation if the membership agreement is rejected by an accredited farm organization.

2. Does the NFU-O meet the prescribed criteria for accredited farm organizations?

General comments

The Tribunal had difficulty determining the facts relevant to the NFU-O’s application for a renewal of its accreditation under the Act and Regulation due to inconsistencies and deficiencies in the material and/or testimony submitted by the NFU-O. At times, information related to the National Farmers Union (NFU), NFU Region 3 (Ontario) and NFU-O was so intertwined within the evidence that the relevant facts were barely distinguishable from information about the national organization. Also, the Tribunal was concerned by: the inability of directors to obtain key governance and management documents; objections about the process used to fill the position of Regional Coordinator (equivalent to the position of President) of the NFU-O in 2011; and the lapse, since 2006, of a service agreement between the NFU-O and the National Farmers Union (NFU). The Tribunal’s overriding concern is that if the NFU-O is to be reaccredited as a farm organization under the Act, then it must conduct its affairs in accordance with the Act and Regulation. The Act and Regulation require that NFU-O members - and only NFU-O members - determine how they run their affairs and who will represent their interests.

The Tribunal’s analysis of this issue, which was guided by the legal test the Tribunal is required to apply, resulted in the prescribed criteria for accredited farm organizations being separated into two groups. The first group includes those prescribed criteria where the Tribunal determined that the organization meets the prescribed criteria for accredited farm organizations. The second group includes those prescribed criteria where the Tribunal determined that the organization does not meet those criteria for accredited farm organizations. The second group is further divided into three sub-groups i.e., those criteria associated with the Tribunal’s finding for issue 1 and confirmation of a membership agreement, those criteria associated with financial statements and reports, and one criterion associated with electoral process.

Group 1: The organization meets the prescribed criteria

The Tribunal determined the NFU-O meets the prescribed criteria under sections 5(1)3-6, 8, 9, 14; section 5(2); section 5(3)(a); and sections 5(4)(b), (c) and (d) of the Regulation. Our analysis and findings follow.

5(1)3. It has an annual membership fee, including applicable taxes, of at least $195 for

each member.

The NFU-O membership fee was $150 plus applicable tax for 2008 and 2009, and was $195 plus applicable tax in 2010. Membership arising from payment of the FBR fee is the only type of membership available in the NFU-O. All other membership options for Ontario residents are offered through the NFU and are referred to as “direct members”.

5(1)4. It is incorporated under a general or special Act of the Legislature.

The Tribunal was provided with a copy of the Letters Patent from the Ontario Ministry of Consumer and Business Services as evidence showing that the NFU-O was incorporated on May 9, 2002, number 1506907.

5(1)5. Its purpose is to represent persons carrying on farming businesses.

The NFU-O’s purpose is to represent persons carrying on farming businesses as indicated in its Letters Patent and the by-laws.

5(1)6. It provides education or training in respect of agricultural matters.

The organization provides education or training in respect of agricultural matters within Ontario and Canada, for example:

• The NFU-O provides its members with the NFU-O Newsletter each quarter

• The NFU-O has a new web page at http://nfuontario.ca/

• The NFU-O Annual General Meeting is coupled with the NFU Region 3 (Ontario) Convention which includes speakers and topics of interest to NFU-O members

• The NFU-O supported the publications:

♦ The Farm Update 2010: a New Decade of Genetically Modified Crops in Ontario

♦ Why your food choices matter A guide to buying local and ecologically grown food

♦ Several commentaries on various agricultural topics

• The NFU-O submitted the following NFU publications and other information in evidence of the NFU-O’s provision of education or training on agricultural matters in Ontario and Canada:

♦ The Union Farmer Quarterly, the official publication of the NFU

♦ NFU 40^th annual convention in Ottawa, Ontario, 2009

♦ Six meetings in Ontario regarding the NFU Cattle Sector Report, 2009

5(1)8. It has an established process whereby individual members have the right to make

submissions on relevant issues of concern and the executive body has the duty to

consider the submissions and respond.

The by-laws of the NFU-O indicate individual members, including members of the executive body (called the Regional Council), “have the right to make submissions on relevant issues of concern and the executive body has the duty to consider the submissions and respond”. The Tribunal heard testimony and read submissions including the minutes of Regional Council meetings, which showed an inability or reluctance by some members of the Regional Council to address organization governance and management issues in a timely fashion. The Tribunal finds that the NFU-O has an established process per the requirements of this criterion but also finds that the existing process is inadequate for ensuring issues of organizational governance and management are dealt with in an effective and timely fashion.

5(1)9. It provides advice and analysis to governments, administrative tribunals or

advisory bodies concerning agricultural issues and the development of programs

or policies that are of interest to persons carrying on farming businesses.

The NFU-O together with the NFU provides advice and analysis concerning agricultural issues and the development of programs or policies that are of interest to persons carrying on farming businesses, for example:

• letters to agencies and organizations: to the Chicken Farmers of Ontario on the consultation on small flock policy; to Health Canada on the Hemp Industry Review Project

• letters to government: to OMAFRA on the COFSP funds and microFITS; to Ministry of Energy and Infrastructure on renewable energy

• Submissions: to Ontario Farm Products Marketing Commission on the Review of the Ontario Hog Producers’ Marketing Board; on the Provincial Policy Statement – 5 year review; to the Standing Committee on Finance and Economic Affairs on Investing in Rural Local Economies: Energy, the Environment and Infrastructure

5(1)14. It has entered into, or agreed to enter into, an agreement with the Minister and the accredited farm organizations to provide special funding to the francophone organization that is eligible for special funding under section 12 or 13 of the Act.

NFU-O has a commitment to support the funding agreement it has entered into with the UCFO and the Minister.

5(2) A farm organization does not meet the criterion prescribed in paragraph 5 of

subsection (1) if it represents only persons carrying on a farming business in which

only certain crops, livestock or poultry are raised or in which only certain

agricultural products are produced.

The NFU-O represents a wide variety of farmers carrying on business in a range of commodities. The NFU-O by-laws do not include any exclusionary language. The material submitted covered issues across a range of commodities from hemp and tobacco to poultry and beef production.

5(3) A farm organization does not meet the criteria prescribed in paragraphs 10 and 13

of subsection (1) unless,

(a) the financial statements include a balance sheet, a statement of members’ equity,

a statement of revenues and expenses and a statement of changes in financial

position, however those statements are entitled;

The NFU-O financial statements for the fiscal years ending September 30, 2008, 2009 and 2010 included the required statements. The balance sheet is called the Balance Sheet. The statement of members’ equity is provided in the second last line of the Balance Sheet. The statement of revenues and expenses is called Statement of Revenues, Expenses and Equity, and the statement of changes in financial position is provided in the second last line of Statement of Cash Flow.

5(4) A farm organization does not meet the criterion prescribed in paragraph 11 of

subsection (1) unless each local affiliate,

(b) has a local affiliate executive elected by the affiliate’s members;

(c) has an annual general meeting; and

(d) is entitled to send a representative to any meeting of the farm organization to

which representatives of local affiliates are invited.

The NFU-O submitted relevant by-laws, lists of actual local affiliate executives and dates on which annual general meetings were held.

Group 2: The organization does not meet the prescribed criteria

Per finding for issue 1 and confirmation of a membership agreement

The prescribed criteria in this sub-group include: sections 5(1)1, 2 and 11; and section 5(4)(a). Each criterion refers to members that carry on a farming business.

The Tribunal reviewed the submitted evidence to determine if the person or farm business providing the payment of the prescribed amount payable to an accredited farm organization to the Ministry explicitly applied to become a member of the NFU-O and the NFU-O explicitly accepted the membership application and communicated this to the person or farm business providing the payment of the prescribed amount payable to an accredited farm organization to the Ministry before the payment is treated as a membership fee by the NFU-O.

The Tribunal found no evidence of a process leading to the explicit confirmation or rejection of a membership agreement between the person or farm business providing the payment of the prescribed amount payable to an accredited farm organization to the Ministry and the NFU-O.

The Tribunal noted that the Ministry (and its agency AgriCorp) and the accredited farm organizations currently assume that the absence of a request for a refund by the person or farm business providing the payment of the prescribed amount payable to an accredited farm organization to the Ministry serves as an application to become a member in the accredited farm organization to which the payment is made payable. For example, AgriCorp states in its factsheet⁴ “There are three accredited General Farm Organizations (GFO) offering a membership with registration.” The NFU-O web site⁵ states that “The National Farmers Union is a certified general farm organization under the Ontario Farm Business Registration (FBR) program. If you choose to join the NFU through this program, you must complete the Ontario FBR application form available on the AgriCorp website.” The Tribunal finds that these statements by the NFU-O are inaccurate. The NFU-O, not the NFU, is an accredited farm organization under the Act. The NFU has no standing under the Act. Also, completion of the FBR application, which includes payment of the prescribed amount payable to an accredited farm organization under section 21(1) of the Act, does not confer membership in the farm organization as per section 21(10) of the Act. The Tribunal notes that the current process results in negative option membership for the person or farm business making the payment and is not in compliance with section 21(10) of the Act.

After careful consideration of the evidence, the Tribunal finds that the payment of the prescribed amount payable to an accredited farm organization, which is provided to the Ministry, cannot be treated as a membership fee paid by a person or farm business to the NFU-O because an explicit membership agreement (as described in (i) and (ii) below) is not completed between the parties before the payment is treated as a membership fee by the NFU-O:

i) the person or farm business providing the payment of the prescribed amount payable to an accredited farm organization to the Ministry does not explicitly apply to become a member of the accredited farm organization in whose name the prescribed amount payable is made; and

ii) the accredited farm organization in whose name the prescribed amount payable is made does not explicitly accept the membership application and communicate this to the person or farm business providing the payment of the prescribed amount payable to an accredited farm organization to the Ministry.

In plain language, an explicit membership agreement between the parties does not exist before the payment is treated as a membership fee.

As a result, the person or farm business making the payment of the prescribed amount payable to an accredited farm organization to the Ministry does not qualify under the Act and Regulation as a member of NFU-O, and therefore the NFU-O does not meet the requirements of those prescribed criteria listed above.

The Tribunal identified language that indicated or implied membership in an accredited farm organization is an automatic result of payment of the prescribed amount payable to an accredited farm organization to the Ministry to obtain a farm business registration number. The Tribunal recommends that AgriCorp review and revise its documentation to ensure it aligns with the requirements of the Act and Regulation.

Per audited financial statements and audited reports

The prescribed criteria in this group include sections 5(1)12(ii) and 13; and sections 5(3)(b) and (c). The NFU-O, which is an accredited farm organization under the Act and Regulation, is required to prepare and submit, according to details prescribed in the Regulation, its audited financial statements and audited report to the Tribunal on an ongoing basis during the period of its accreditation. The following analysis addresses the prescribed criteria in this group.

5(3) A farm organization does not meet the criteria prescribed in paragraphs 10 and 13

of subsection (1) unless,

(b) the financial statements and auditor’s report are prepared in accordance with the

standards set forth in the Handbook of the Canadian Institute of Chartered

Accountants

The auditor, Twigg and Company, Chartered Accountants, indicated in the Auditor’s Report that “Except as explained in the following paragraph, we conducted our audit in accordance with Canadian generally accepted auditing standards.” The auditor explained the exception as follows: “In common with many charitable organizations, the organization derives revenue from memberships and donations, the completeness of which is not susceptible of satisfactory audit verification. Accordingly, our verification of these revenues was limited to the amounts recorded in the records of the organization and we were not able to determine whether any adjustments might be necessary to revenues, net revenues, assets and equity.” The Tribunal accepts the auditor’s statements that they conducted their audits “in accordance with Canadian generally accepted auditing standards” as an indication that the financial statements and auditor’s report were prepared in accordance with the standards set forth in the Handbook of the Canadian Institute of Chartered Accountants, subject to one exception identified by the auditor. Since the prescribed criterion in section 5(3)(b) does not allow for exceptions, the Tribunal finds the NFU-O does not meet the prescribed criterion in section 5(3)(b).

The Tribunal finds that the NFU-O should have developed accounting processes that ensure the auditor can conduct the audit of the financial statements and prepare the report in accordance with the standards set forth in the Handbook of the Canadian Institute of Chartered Accountants without any exceptions.

5(3) A farm organization does not meet the criteria prescribed in paragraphs 10 and 13

of subsection (1) unless,

(c) the financial statements show the amount received under subsection 21 (3) of the

Act and the number of refunds made by the organization under subsection 21 (8)

of the Act during the fiscal year and the per cent of the applicable amounts

received under paragraph 12 of subsection (1) that the organization has

contributed to branches referred to in paragraph 11 of subsection (1) during the

fiscal year. And,

5(1)12. It contributes to the local affiliates referred to in paragraph 11 an amount that

equals or exceeds 25 per cent of,

ii. in the case of a farm organization that is accredited, the amount that is

obtained in the most recent completed fiscal year under subsection 21 (3) of the

Act for which no refund was given under subsection 21 (5) of the Act less the

amount that would be payable in taxes if this amount were being charged as a

membership fee.

The NFU-O audited financial statements for the fiscal years ending September 30, 2008, 2009 and 2010 included “Membership revenue received” as a line item in the Statement of Revenue, Expense and Equity; however, the source(s) of the membership dollars were not identified. The Tribunal could not determine whether the membership revenue included amounts paid by “direct members”, who in fact are members of the NFU/NFU Region 3 (Ontario) and not the NFU-O. Also, the amount received under subsection 21 (3) of the Act during the fiscal year was not identifiable, in spite of the exception noted in the auditor’s report.

The NFU-O audited financial statements for the fiscal years ending September 30, 2008, 2009 and 2010 included “Memberships refunded” as a line item in the Statement of Revenue, Expense and Equity; however, the number of refunds made by the organization under subsection 21 (8) of the Act during the fiscal year was not identifiable. The Tribunal could not calculate the number of refunds with certainty since the treatment of the taxes associated with each amount was not indicated in the financial statements.

The NFU-O audited financial statements for the fiscal years ending September 30, 2008, 2009 and 2010 did not include the per cent of the applicable amounts received under paragraph 12 of subsection (1) that the organization has contributed to branches referred to in paragraph 11 of subsection (1) during the fiscal year. The NFU-O audited financial statements included “NFUO allocation to locals” as a line item in the Statement of Revenue, Expense and Equity but there were no notes to indicate what proportion of these direct (cash) amounts were allocated to local affiliates that qualify under the Act and Regulation. The Tribunal noted the NFU-O includes “organized” local affiliates, which qualify under the Act and Regulation, and “unorganized” locals, which do not qualify under the Act and Regulation. Therefore the Tribunal could not, with certainty, determine the amount nor calculate the per cent of the applicable amounts contributed to “organized” local affiliates which qualify under the Act and Regulation.

The Tribunal was unable to determine whether the NFU-O met the prescribed criteria in section 5(1)12(ii) due to deficiencies in the audited financial statements for fiscal years 2008, 2009 and 2010 as described above.

During its analysis of this issue, the Tribunal considered whether the contribution of an indirect (in-kind) amount to the local affiliates meets the requirements of the Act and Regulation. The Tribunal finds that if an accredited farm organization includes an indirect (also called in-kind) amount in its audited financial statements to meet the requirements of section 5(1)12(ii), then the accredited farm organization should ensure:

i) the indirect amount is directly comparable to the amounts prescribed in section 5(1)12(ii) (e.g., same timeframe, same tax treatment, etc.);

ii) the audited financial statements clearly indicate what portion of the per cent of the applicable amounts received under paragraph 12 of subsection (1) that the organization has contributed to branches referred to in paragraph 11 of subsection (1) during the fiscal year is attributed to the indirect amount; and

iii) it has a relevant documented arrangement with each of the local affiliates to which the indirect amount is attributed. Furthermore, the accredited farm organization should ensure that a copy of each arrangement is submitted along with its audited financial statements and audited report on an ongoing basis during the period of its accreditation to meet the prescribed criterion in section 5(1)13.

The Tribunal recognizes adopting the above practices may present administrative and accounting challenges for an accredited farm organization. Alternatively, the accredited farm organization could contribute only direct (cash) amounts to its local affiliates and arrange for each local affiliate to pay for the services they receive from the accredited farm organization.

5(1)13. If it is an accredited organization, it has submitted to the Tribunal, on an

ongoing basis during the period of its accreditation, its audited financial

statements and audited report within ten days after each annual general meeting.

The Regulation specifies that the NFU-O cannot meet the requirements of section 5(1)13 because it did not meet the requirements of section 5(3)(c).

Also, the evidence established that the NFU-O cannot meet the requirements of section 5(1)13 because the submissions of their audited financial statements and auditor’s report in 2008, 2009 and 2010 were not within the prescribed timeframe. In 2009, the NFU-O annual convention was held on April 4, 2009 and the Tribunal received the NFU-O audited financial statements and auditor’s report on April 17, 2009. In 2010, the NFU-O annual convention was held on March 20, 2010 and the Tribunal received the NFU-O audited financial statements and auditor’s report on February 17, 2011. In 2011, the NFU-O annual convention was held on March 5, 2011 and the Tribunal received the NFU-O audited financial statements and auditor’s report on March 31, 2011.

The Tribunal considered whether deficiencies in the content and submission of the NFU-O’s audited financial statements and audited reports could be remedied. The Tribunal determined that even if the NFU-O revises its financial statements and reports for the 2008, 2009 and 2010 fiscal years to meet the prescribed criteria in section 5(3)(c), they can never meet the prescribed criteria in section 5(1)13. The latter requires the submission of documents that first meet the prescribed criteria in section 5(3)(c) and then meet the prescribed criteria in section 5(1)13. In plain language, the NFU-O must submit compliant documents within the prescribed 10 day window on an ongoing basis during the period of its accreditation. Therefore, there is no remedy because the window of time when the NFU-O can submit compliant documents closes each year and cannot be re-opened. Furthermore, the Regulation does not bestow the Tribunal with any discretion in this matter.

The Tribunal finds that the content of the NFU-O’s audited financial statements and report and the NFU-O’s submission process do not meet the prescribed criteria.

Per electoral process

5(1)7. It has an executive body at the provincial level that is elected by its members or by

electors chosen by members.

The by-laws submitted to the Tribunal by the NFU-O were not signed or dated and did not include any amendments. The Tribunal noted the minutes of the 2008, 2009, 2010 and 2011 NFU-O annual general meetings (AGMs) show that members of the NFU-O passed motions that changed requirements specified in the NFU-O’s by-laws; however, there was no evidence these motions followed the amendment process outlined in NFU-O By-law section 11 Amendment of By-laws nor were these changes included in the set of by-laws provided to the Tribunal by the NFU-O. Notwithstanding these deficiencies, the by-laws provided to the Tribunal by the NFU-O indicate the following:

• the Regional Council is the board of directors and the governing body of the NFU-O (By-law section 6. Council, 1. General);

• the Regional Council includes 7 directors elected by the delegates at the NFU-O AGM (By-law section 6. Council, 2. Election); and

• the positions on the Regional Council include: President (also called the Regional Coordinator), Vice President⁶, Women’s Advisor, Youth Advisor, and three Directors-at-large (By-law section 6. Council, 2. Election).

The minutes of the NFU-O AGM in 2008, 2009, 2010 and 2011 show that positions on the Regional Council of the NFU-O were filled by elections of Directors-at-large (also called Regional Council members) and by carried motions to accept NFU Region 3 (Ontario) national board members/advisory committee members to the Regional Council of the NFU-O.

The Tribunal heard conflicting testimony regarding the election of the NFU-O Regional Council and especially the position of Regional Coordinator at the NFU-O AGM held on March 5, 2011. The Tribunal determined that, first, the NFU Region 3 (Ontario) Convention minutes dated March 5, 2011 show three persons, including Mr. Sean McGivern and Mr. Joe Dama, were elected as national board members of the NFU representing the interests of NFU Region 3 (Ontario) by members of the NFU Region 3 (Ontario). Second, the NFU-O AGM minutes dated March 5, 2011 show that subsequently, on the same day, the newly elected national board members of the NFU representing the interests of NFU Region 3 (Ontario) were all accepted on the Regional Council of the NFU-O in one carried motion by the members of the NFU-O at the NFU-O AGM. Third, the NFU-O AGM minutes show the members of the NFU-O then recommended by carried resolution that the national board of the NFU appoint Mr. Sean McGivern as Regional Coordinator in 2011. The process involved a “recommendation” instead of a binding election by the members of the NFU-O. Finally, contrary to the NFU-O recommendation, the national executive of the NFU appointed a different person as Regional Coordinator of the NFU-O. The Tribunal reviewed the web site listed in the NFU-O submission⁷. A notification dated April 11, 2011 was posted on the web site indicating “The Executive of the National Farmers Union (NFU) is pleased to announce that Joe Dama has been appointed the Regional Coordinator for Ontario.”

After careful consideration of the evidence, the Tribunal finds that the process used to elect Regional Council members of the NFU-O does not meet the prescribed criteria in section 5(1)7 of the Regulation. The minutes of the 2011 NFU-O AGM show that NFU Region 3 (Ontario) national board members and advisory committee members were all accepted by the members of the NFU-O in one carried motion to the Regional Council of the NFU-O. This occurred after the NFU Region 3 (Ontario) election took place and despite the direction provided in NFU-O By-law 6.2, which states “The seven directors shall be elected by the delegates at the Annual General Meeting of the Organization”.

Furthermore, the Tribunal finds that the members of the NFU-O or electors chosen by members of the NFU-O - not the national executive of the NFU - are responsible for determining who will hold the positions of Regional Coordinator (also called President), Vice President, Women’s Advisor, Youth Advisor, and Directors-at-large on the executive body of the NFU-O. This and related responsibilities are stated in NFU-O By-law section 6 Council and NFU-O By-law section 7 Officers and Management Committee. The involvement of the national executive of the NFU in the appointment of a person to the position of Regional Coordinator on the executive body of the NFU-O that was not elected by the members of the NFU-O or electors chosen by members of the NFU-O is inconsistent with the responsibilities that should be exercised by members of the NFU-O or electors chosen by members of the NFU-O. In plain language, only NFU-O members should determine who will hold the various positions on the executive body of their organization.

In summary, the Tribunal finds that the NFU-O should have adopted electoral processes that ensure the NFU-O members or … electors chosen by members unequivocally elect (or acclaim as the case may be) an executive body at the provincial level as provided for

in the NFU-O by-laws. The Act and Regulation require that NFU-O members - and only NFU-O members - determine how they run their affairs and who will represent their interests as the executive body of their organization.

CONCLUSION

The Act specifies in section 6(1) the legal test the Tribunal must use when considering an application for reaccreditation. It is incumbent on any accredited farm organization to ensure it meets [all of] the prescribed criteria for accredited farm organizations if it also wants to ensure it maintains its accreditation under the Act. The Tribunal reviewed the submissions provided by the OFA, NFU-O and CFFO and the Ministry regarding the Tribunal’s concern with the treatment of the payment to be provided to the Ministry under section 21(1) of the Act as a membership fee, and the evidence related to the NFU-O’s application for a renewal of its accreditation. Based on the reasons provided in the analysis of issue 1, the Tribunal finds that the payment of the prescribed amount payable to an accredited farm organization to be provided to the Ministry under section 21(1) of the Act can be treated as a membership fee if there is an explicit membership agreement between the parties as described in the analysis for issue 1. Also, based on the reasons provided in the analysis of issue 2, the Tribunal finds that the NFU-O does not meet the prescribed criteria in sections 5(1)1, 2, 7, 11, 12(ii) and 13, sections 5(3)(b) and (c), and section 5(4)(a).

ORDER OF THE TRIBUNAL

The Tribunal orders that the application of the NFU-O for renewal of its accreditation is refused. The Tribunal determined the NFU-O does not meet all of the prescribed criteria for accredited farm organizations for the reasons described in the analysis and conclusion above.

Dated at Maidstone, Ontario, this 23^rd day of May, 2012.

APPENDIX A

Farm Registration and Farm Organizations Funding Act, 1993

S.O. 1993, CHAPTER 21

Consolidation Period: From June 22, 2006 to the e-Laws currency date.

Last amendment: 2006, c.19, Sched.A, s.8.

Skip Table of Contents

CONTENTS

Definitions

Farming Business Registration Form

Farming business registration form

Use of information

Accredited Farm Organizations

Application for accreditation

Hearing on application

Order on application

Organizations deemed accredited

Tribunal may review accreditation

Hearing on review

Order on review

Relinquishing accreditation

Eligible Francophone Organization

Francophone organization

Organization deemed eligible

Tribunal may review eligibility

Hearing on review

Order on review

Application for renewal

Hearing on application

Order on application

Organization is accredited

Registration

Payment

Religious objection, individual

Current registration

Procedure on Appeal

Gather information

Submissions accepted

Reconsider orders

Decision of Tribunal final

Notice of orders

General

Protection from liability

Regulations

Definitions

1. In this Act,

“farming business” means a farming business within the meaning of the Income Tax Act (Canada); (“entreprise agricole”)

“Minister” means the Minister of Agriculture, Food and Rural Affairs, and “Ministry” has a corresponding meaning; (“ministre”, “ministère”)

“prescribed” means prescribed by the regulations made under this Act; (“prescrit”)

“Tribunal” means Agriculture, Food and Rural Affairs Appeal Tribunal continued under the Ministry of Agriculture, Food and Rural Affairs Act. (“Tribunal”) 1993, c. 21, s. 1; 1999, c. 12, Sched. A, s. 12 (1).

Farming Business Registration Form

Farming business registration form

2. (1) A person shall file with the Minister a completed farming business registration form if,

(a) the person carries on a farming business; and

(b) the annual gross income of the farming business, as determined in accordance with the regulations, is equal to or greater than the prescribed amount. 1993, c. 21, s. 2 (1).

One registration

(2) If two or more persons carry on a farming business together, only one registration form need be filed for the farming business and each of the persons carrying on the business is responsible for ensuring that it is filed. 1993, c. 21, s. 2 (2).

Contents of registration form

(3) The farming business registration form must be in a form provided by the Minister and must contain the name and address of the farming business and the prescribed information concerning the farming business. 1993, c. 21, s. 2 (3).

Time for registration

(4) The farming business registration form shall be filed on the dates prescribed, or ascertained by a method or under criteria prescribed, by a regulation made under this section. 1993, c. 21, s. 2 (4).

Regulations

(5) The Minister may make regulations prescribing,

(a) dates or methods of ascertaining dates for filing farming business registration forms;

(b) criteria for selecting different filing dates;

(c) classes of registrants. 1993, c. 21, s. 2 (5).

Same

(6) A regulation made under subsection (5) may prescribe,

(a) different dates for different registrants or classes of registrants based on any criteria that are prescribed;

(b) different methods of determining dates for different registrants or classes of registrants. 1993, c. 21, s. 2 (6).

Use of information

3. The Minister may use the information received from farming business registration forms to develop agricultural policies and programs for the Ministry, to develop and implement methods of distributing information about the policies and programs, to develop mailing lists and for the prescribed purposes. 1993, c. 21, s. 3.

Accredited Farm Organizations

Application for accreditation

4. (1) Any organization representing farmers in the province may apply to the Tribunal to become an accredited farm organization for the purposes of this Act. 1993, c. 21, s. 4 (1); 2006, c. 19, Sched. A, s. 8 (1).

Renewal

(2) Any accredited farm organization may apply to the Tribunal for a renewal of its accreditation if it does so during the period prescribed. 1993, c. 21, s. 4 (2); 2006, c. 19, Sched. A, s. 8 (1).

Preserving status

(3) The accreditation of a farm organization that applies for a renewal of the accreditation during the prescribed period remains in effect until the Tribunal makes its order pursuant to the application. 1993, c. 21, s. 4 (3); 2006, c. 19, Sched. A, s. 8 (1).

Notice

(4) The Tribunal shall give written notice of all applications under this section to the Minister and to all of the accredited farm organizations. 1993, c. 21, s. 4 (4); 2006, c. 19, Sched. A, s. 8 (1).

Hearing on application

5. (1) The Tribunal shall hold a hearing before determining whether an organization is to be accredited or whether an organization’s accreditation is to be renewed. 1993, c. 21, s. 5 (1); 2006, c. 19, Sched. A, s. 8 (2).

Submissions

(2) Any person or organization entitled to notice of an application may make submissions in a hearing relating to the accreditation of a farm organization. 1993, c. 21, s. 5 (2).

Party

(3) The organization seeking accreditation or renewal of accreditation is a party to the hearing. 1993, c. 21, s. 5 (3).

Order on application

6. (1) If the Tribunal determines that the organization meets the prescribed criteria for accredited farm organizations, the Tribunal shall, by order, accredit the organization and, if the Tribunal determines that the organization does not meet those criteria, the Tribunal shall refuse the accreditation. 1993, c. 21, s. 6 (1); 2006, c. 19, Sched. A, s. 8 (3).

Term of accreditation

(2) The accreditation of a farm organization is in effect for three years starting at the prescribed time. 1993, c. 21, s. 6 (2).

Organizations deemed accredited

7. The following farm organizations shall be deemed to be accredited for three years starting at the prescribed time:

8. Christian Farmers Federation of Ontario.

9. Ontario Federation of Agriculture. 1993, c. 21, s. 7.

Tribunal may review accreditation

8. (1) If a panel of at least three members of the Tribunal believes that the organization no longer qualifies for the accreditation, the chair may start a review of the accreditation. 1993, c. 21, s. 8 (1); 2006, c. 19, Sched. A, s. 8 (1).

Notice

(2) The Tribunal shall give written notice of any review under this section to the accredited farm organization that is the subject of the review, to the Minister and to all of the other accredited farm organizations. 1993, c. 21, s. 8 (2); 2006, c. 19, Sched. A, s. 8 (1).

Where no review

(3) An organization named in section 7 cannot be reviewed during the three years of deemed accreditation. 1993, c. 21, s. 8 (3).

Hearing on review

9. (1) If a review is started, the Tribunal shall hold a hearing before determining whether an accredited farm organization continues to qualify for accreditation. 1993, c. 21, s. 9 (1); 2006, c. 19, Sched. A, s. 8 (1).

Party

(2) The accredited farm organization that is the subject of the review is a party to the review. 1993, c. 21, s. 9 (2).

Submissions

(3) Any person or organization entitled to notice of the review may make submissions in a hearing relating to the accreditation of a farm organization. 1993, c. 21, s. 9 (3).

Order on review

10. (1) If the Tribunal determines that the accredited farm organization no longer meets the prescribed criteria for an accredited farm organization, the Tribunal may, by order,

(a) remove the accreditation of the organization; or

(b) require the organization to meet specified conditions within a specified period of time in order to maintain its accreditation. 1993, c. 21, s. 10 (1); 2006, c. 19, Sched. A, s. 8 (4).

Suspension of accreditation

(2) If the Tribunal requires an organization to meet specified conditions, it may suspend the accreditation of the organization and subsection 21 (3) does not apply until those conditions are met. 1993, c. 21, s. 10 (2); 2006, c. 19, Sched. A, s. 8 (4).

Further hearing

(3) If an order is made under clause (1) (b) and the organization does not meet the specified conditions within the specified time, the Tribunal may, after holding a hearing under section 9, make a further order under subsection (1). 1993, c. 21, s. 10 (3); 2006, c. 19, Sched. A, s. 8 (1).

Removing accreditation

(4) An order to remove the accreditation of an organization takes effect on the date set out in the order. 1993, c. 21, s. 10 (4).

Relinquishing accreditation

11. (1) An accredited farm organization may apply to the Tribunal to have its accreditation removed. 1993, c. 21, s. 11 (1); 2006, c. 19, Sched. A, s. 8 (1).

Notice to Ministry

(2) The Tribunal shall give the Ministry notice of every application that it receives under this section. 1993, c. 21, s. 11 (2); 2006, c. 19, Sched. A, s. 8 (5).

Revocation by Tribunal

(3) The Tribunal, on receiving an application under subsection (1), shall, without a hearing, make an order removing the accreditation of the organization. 1993, c. 21, s. 11 (3); 2006, c. 19, Sched. A, s. 8 (1).

Service

(4) The Tribunal shall serve a copy of the order on the Ministry, the organization that made the application and the remaining accredited farm organizations. 1993, c. 21, s. 11 (4); 2006, c. 19, Sched. A, s. 8 (1).

Effective date

(5) An order to remove the accreditation takes effect on the date set out in the order. 1993, c. 21, s. 11 (5).

Return of payment

(6) The Ministry shall return, to the persons submitting them, any payments that are payable to an organization making an application under this section that the Ministry receives after it gets the notice of the application. 1993, c. 21, s. 11 (6).

Resubmitting payment

(7) A person whose payment is returned shall, within the prescribed time, resubmit the payment payable to one of the remaining accredited organizations. 1993, c. 21, s. 11 (7).

Registration number

(8) A registration number that has been assigned to a person to whom payment is returned remains current only until the prescribed time for resubmitting payment has expired unless the payment is resubmitted within the prescribed time. 1993, c. 21, s. 11 (8).

Eligible Francophone Organization

Francophone organization

12. One francophone organization representing farmers in the Province may be eligible for special funding under this Act if,

(a) it serves the socioeconomic and cultural interests of francophone farmers;

(b) it offers its services to farming businesses in the French language; and

(c) it meets the prescribed criteria for eligibility. 1993, c. 21, s. 12.

Organization deemed eligible

13. (1) The prescribed francophone organization is eligible for special funding for a period of three years starting at the prescribed time. 1993, c. 21, s. 13 (1).

Allocation

(2) The special funding shall be allocated to the eligible organization in the prescribed manner. 1993, c. 21, s. 13 (2).

Tribunal may review eligibility

14. (1) If, during the period of eligibility of an organization, a panel of at least three members of the Tribunal believes that the organization no longer qualifies for special funding under this Act, the chair may start a review of its eligibility. 1993, c. 21, s. 14 (1); 2006, c. 19, Sched. A, s. 8 (1).

Notice

(2) The Tribunal shall give written notice of any review under this section to the francophone organization that is the subject of the review, to the Minister and to all of the accredited farm organizations. 1993, c. 21, s. 14 (2); 2006, c. 19, Sched. A, s. 8 (1).

Where no review

(3) An organization prescribed in the regulations cannot be reviewed during the three years of deemed eligibility. 1993, c. 21, s. 14 (3).

Hearing on review

15. (1) If a review is started, the Tribunal shall hold a hearing before determining whether the francophone organization continues to qualify for special funding. 1993, c. 21, s. 15 (1); 2006, c. 19, Sched. A, s. 8 (1).

Party

(2) The francophone organization that is the subject of the review is a party to the review. 1993, c. 21, s. 15 (2).

Submissions

(3) Any person or organization entitled to notice of the review may make submissions in a hearing relating to the francophone organization’s eligibility for special funding. 1993, c. 21, s. 15 (3).

Order on review

16. (1) If the Tribunal determines that the eligible francophone organization does not meet the conditions for special funding, the Tribunal may, by order,

(a) remove the eligibility of the organization; or

(b) require the organization to meet specified conditions within a specified period of time in order to maintain its eligibility. 1993, c. 21, s. 16 (1); 2006, c. 19, Sched. A, s. 8 (6).

Suspension of eligibility

(2) If the Tribunal requires the organization to meet specified conditions, it may suspend the eligibility of the organization until those conditions are met. 1993, c. 21, s. 16 (2); 2006, c. 19, Sched. A, s. 8 (6).

Further order

(3) If an order is made under clause (1) (b) and the organization does not meet the specified conditions within the specified time, the Tribunal may, after holding a hearing under section 15, make a further order under subsection (1). 1993, c. 21, s. 16 (3); 2006, c. 19, Sched. A, s. 8 (1).

Removing eligibility

(4) An order to remove the eligibility of an organization takes effect on the date set out in the order. 1993, c. 21, s. 16 (4).

Application for renewal

17. (1) The eligible francophone organization may apply to the Tribunal for a renewal of its eligibility under this Act if it does so during the period prescribed. 1993, c. 21, s. 17 (1); 2006, c. 19, Sched. A, s. 8 (1).

Preserving status

(2) The eligibility of a francophone organization that applies for a renewal of the eligibility during the prescribed period remains in effect until the Tribunal makes its order pursuant to the application. 1993, c. 21, s. 17 (2); 2006, c. 19, Sched. A, s. 8 (1).

Application for eligibility

(3) If the Tribunal makes an order removing the eligibility of an organization for special funding or if an organization’s eligibility for special funding expires and is not renewed, any francophone organization representing farmers in the province may apply to the Tribunal to receive special funding for the purposes of this Act. 1993, c. 21, s. 17 (3); 2006, c. 19, Sched. A, s. 8 (1).

Notice

(4) The Tribunal shall give written notice of all applications under this section to the Minister and to all of the accredited farm organizations. 1993, c. 21, s. 17 (4); 2006, c. 19, Sched. A, s. 8 (1).

Hearing on application

18. (1) The Tribunal shall hold a hearing before determining whether an organization is to be eligible for special funding or whether an organization’s eligibility is to be renewed. 1993, c. 21, s. 18 (1); 2006, c. 19, Sched. A, s. 8 (1).

Submissions

(2) Any person entitled to notice of an application may make submissions in a hearing relating to the eligibility of a francophone organization. 1993, c. 21, s. 18 (2).

Party

(3) The applicant for funding is a party to the hearing. 1993, c. 21, s. 18 (3).

Order on application

19. (1) If one or more organizations apply for eligibility and the Tribunal determines that only one organization meets the conditions for special funding, the Tribunal shall, by order, declare it to be the organization that is eligible for special funding. 1993, c. 21, s. 19 (1); 2006, c. 19, Sched. A, s. 8 (1).

Several applicants

(2) If more than one organization applies for eligibility and the Tribunal determines that more than one organization meets the conditions for special funding, the Tribunal shall, by order, declare the organization that, in the Tribunal’s opinion, best meets the conditions to be the organization that is eligible for special funding. 1993, c. 21, s. 19 (2); 2006, c. 19, Sched. A, s. 8 (1).

Term of eligibility

(3) The eligibility of a francophone organization is in effect for three years starting at the prescribed time. 1993, c. 21, s. 19 (3).

Organization is accredited

20. (1) If the organization that is eligible for special funding is accredited under this Act, it is no longer eligible for special funding. 1993, c. 21, s. 20 (1).

One accreditation

(2) No other francophone organization is eligible for special funding while an organization referred to in subsection (1) is accredited. 1993, c. 21, s. 20 (2).

Registration

Payment

21. (1) Every person required to file an annual farming business registration form with the Ministry must, when filing the form, provide to the Ministry payment of the prescribed amount payable to an accredited farm organization. 1993, c. 21, s. 21 (1).

Same

(2) The payment to an accredited farm organization must be in the form of a cheque or in another form acceptable to the Ministry. 1993, c. 21, s. 21 (2).

Forwarding payments

(3) The Ministry shall promptly forward the payments to the appropriate organization along with the names, addresses, telephone numbers and registration numbers of those who provided the payments. 1993, c. 21, s. 21 (3).

Registration number

(4) The Ministry, on receiving the annual registration form and the payment, shall assign a registration number, for the year of registration, to the person filing. 1993, c. 21, s. 21 (4).

Revoking registration

(5) If the organization is unable to collect the payment and notifies the Ministry that the payment has not been honoured, the Ministry may revoke the registration number of the person who provided the payment. 1993, c. 21, s. 21 (5).

Restoring registration

(6) After a registration is revoked, if payment is remade that is collected by the organization, the Ministry shall restore the registration number. 1993, c. 21, s. 21 (6).

Refund

(7) A person may apply, within the prescribed time, to the appropriate organization for a refund of the amount paid. 1993, c. 21, s. 21 (7).

Same

(8) Subject to subsection (9), an organization shall promptly refund, to any person applying for the refund, the amount of the payment collected by the organization from the person. 1993, c. 21, s. 21 (8).

Same

(9) A refund shall not be paid to a person who does not have a current registration number. 1993, c. 21, s. 21 (9).

No membership

(10) Payment under this section does not confer membership in the farm organization. 1993, c. 21, s. 21 (10).

Religious objection, individual

22. (1) If an individual carries on a farming business and objects to making payment to a farm organization or filing a farming business registration form because of his or her religious conviction or belief, the individual may apply to the Tribunal for an order that payment or filing be waived. 1993, c. 21, s. 22 (1); 2006, c. 19, Sched. A, s. 8 (1).

Religious objection, corporation

(2) If a corporation carries on a farming business and an individual who is a shareholder or member of the corporation objects to the corporation making payment to a farm organization or filing a farming business registration form because of his or her religious conviction or belief, the corporation may apply to the Tribunal for an order that payment or filing be waived. 1993, c. 21, s. 22 (2); 2006, c. 19, Sched. A, s. 8 (1).

Religious objection, other entity

(3) If an entity other than a corporation carries on a farming business and an individual who is a member of the entity objects to the entity making payment to a farm organization or filing a farming business registration form because of his or her religious conviction or belief, the entity may apply to the Tribunal for an order that payment or filing be waived. 1993, c. 21, s. 22 (3); 2006, c. 19, Sched. A, s. 8 (1).

Parties

(4) The applicant and any accredited farm organization that the Tribunal determines has an interest in the hearing are parties to the hearing. 1993, c. 21, s. 22 (4); 2006, c. 19, Sched. A, s. 8 (1).

Hearing required

(5) The Tribunal shall hold a hearing before making an order in an application under this section if,

(a) a party opposes the application; or

(b) the Tribunal is not satisfied without holding a hearing that the applicant is entitled to the order applied for. 1993, c. 21, s. 22 (5); 2006, c. 19, Sched. A, s. 8 (1).

Order of Tribunal

(6) If the Tribunal is satisfied that an individual referred to in subsection (1), (2) or (3) objects to making payment to a farm organization or filing a farming business registration form because of his or her genuinely held religious conviction or belief, it shall order that payment or filing be waived. 1993, c. 21, s. 22 (6); 2006, c. 19, Sched. A, s. 8 (7).

Non-application of subs. 23 (2)

(7) Subsection 23 (2) does not apply to an individual, corporation or entity for which filing is waived by an order under this section. 1993, c. 21, s. 22 (7).

Current registration

23. (1) A registration number is current until the next annual registration form is required to be filed. 1993, c. 21, s. 23 (1).

Registration required for entitlement

(2) Only a person with a current registration number is entitled to benefit from designated programs of or subsidies from the Ministry. 1993, c. 21, s. 23 (2).

Procedure on Appeal

24., 25. Repealed: 1999, c. 12, Sched. A, s. 12 (3).

Gather information

26. The Tribunal or an employee of the Tribunal at the Tribunal’s request may gather information or inspect documents that it considers necessary and question any person in relation to a matter before it. 1993, c. 21, s. 26; 2006, c. 19, Sched. A, s. 8 (8).

Submissions accepted

27. (1) In any hearing before it, the Tribunal may accept submissions from any person who is not otherwise entitled to make submissions under this Act if it gives the parties an opportunity to respond to those submissions. 1993, c. 21, s. 27 (1); 2006, c. 19, Sched. A, s. 8 (8).

Additional evidence

(2) In any hearing before it, the Tribunal may consider any relevant information obtained by the Tribunal in addition to the evidence given at a hearing if it first informs the parties of the additional information and gives them an opportunity to respond to it. 1993, c. 21, s. 27 (2); 2006, c. 19, Sched. A, s. 8 (8).

28. Repealed: 1999, c. 12, Sched. A, s. 12 (3).

Reconsider orders

29. The Tribunal may reconsider any order it has made and may affirm or replace the order. 1993, c. 21, s. 29; 2006, c. 19, Sched. A, s. 8 (9).

Decision of Tribunal final

30. A decision of the Tribunal is final. 1993, c. 21, s. 30; 2006, c. 19, Sched. A, s. 8 (1).

Notice of orders

31. The Tribunal shall give written notice of any order it makes relating to a farm organization to that organization, to the Minister and to every person who made submissions in the proceeding and asked for notice. 1993, c. 21, s. 31; 2006, c. 19, Sched. A, s. 8 (10).

General

Protection from liability

32. Members and employees of the Tribunal are not liable for any act done or decision or omission made in good faith by them in the performance of their duties or exercise of their powers under this Act. 1993, c. 21, s. 32; 2006, c. 19, Sched. A, s. 8 (1).

Regulations

33. (1) The Lieutenant Governor in Council may make regulations,

34. respecting the manner of determining the annual gross income of a farming business and the period for which it is to apply;

35. prescribing the amount of annual gross income for the purposes of section 2;

36. prescribing the information to be included in a farming business registration form;

37. prescribing anything that the Act requires or authorizes to be prescribed, or refers to as prescribed;

38. prescribing the annual registration period;

39. prescribing purposes for which the Minister may use information under section 3;

40. respecting the question of whether a farm organization offers its services to farming businesses in the French language and serves the socioeconomic and cultural interests of francophone farmers;

41. prescribing the period during which an application must be filed for the purposes of subsections 4 (2) and 17 (1);

42. respecting the criteria to be used for accrediting farm organizations;

43. respecting the time at which accreditation of farm organizations starts for the purposes of subsection 6 (2);

44. prescribing the francophone organization eligible for special funding under section 13 and the time at which that eligibility starts;

45. respecting criteria for eligibility for special funding;

46. prescribing the amount of payment to an accredited farm organization;

47. Repealed: 1999, c. 12, Sched. A, s. 12 (4).

48. defining any word or expression used in this Act that has not already been expressly defined in this Act;

49. prescribing forms and providing for their use;

50. respecting allocation of money to the francophone organization eligible for special funding. 1993, c. 21, s. 33 (1); 1999, c. 12, Sched. A, s. 12 (4).

Same

(2) A regulation under paragraph 1 of subsection (1) may provide that the manner of determining income be based on the calculations required to be made under the Income Tax Act (Canada). 1993, c. 21, s. 33 (2).

34. Repealed: 1999, c. 12, Sched. A, s. 12 (5).

35. Omitted (provides for coming into force of provisions of this Act). 1993, c. 21, s. 35.

36. Omitted (enacts short title of this Act). 1993, c. 21, s. 36.

Farm Registration and Farm Organizations Funding Act, 1993

ONTARIO REGULATION 723/93

GENERAL

Consolidation Period: From January 1, 2010 to the e-Laws currency date.

Last amendment: O. Reg. 442/09.

This is the English version of a bilingual regulation.

1. (1) A person who carries on a farming business shall file with the Minister a completed farming business registration form in every year in respect of which the annual gross income of the farming business equals or exceeds $7,000. O. Reg. 723/93, s. 1 (1).

(2) The annual gross income of a farming business shall be determined in the same manner as the gross income from farming of the farming business is determined under the Income Tax Act (Canada) for the most recent taxation year for which a tax return was filed in relation to the farming business during the eighteen-month period preceding the date on which the annual registration form is required. O. Reg. 723/93, s. 1 (2).

2. A farming business registration form, in addition to the information mentioned in subsection 2 (3) of the Act, must contain the following information:

3. The name, location, address, fax number, e-mail address and emergency/fire/911 numbers of a home farm operated by the farming business as designated by the person filing the farming business registration form for the farming business.

4. The name, address, telephone number, fax number and e-mail address of an individual who can be contacted concerning the contents of the registration form and the operation of the farming business.

5. The form of business organization that is used in carrying on the farming business.

6. If an individual carries on the farming business, his or her name, address, telephone number, fax number, e-mail address, approximate age with reference to the age ranges specified in the form and educational background.

7. If a partnership carries on the farming business, the name, address, telephone number, fax number, e-mail address, approximate age with reference to the age ranges specified in the form, proportionate interest and educational background of the partner who is the most active in the farming business and the names of the other partners.

8. If a corporation carries on the farming business,

i. in the case of a business corporation that does not offer its shares to the public, the name, address, telephone number, fax number, e-mail address, approximate age with reference to the age ranges specified in the form and educational background of the shareholder holding the largest number of shares and the names of the other shareholders, and

ii. in the case of a business corporation that offers its shares to the public, a co-operative corporation incorporated under the Co-operative Corporations Act or a non-profit corporation incorporated under Part III of the Corporations Act, the name, address, telephone number, fax number, e-mail address, approximate age with reference to the age ranges specified in the form and educational background of the officer acting as the corporation’s representative for the filing of the farming business registration form and the names of the other officers.

7. The approximate annual gross income of the farming business with reference to the income ranges specified in the form.

8. The approximate number of individuals employed on a part-time, regular full-time and seasonal full-time basis with reference to the ranges specified in the form.

9. The type of crops, livestock or poultry raised or the type of animal or other agricultural products produced in the farming business.

9.1 The three agricultural products, listed in descending order, that make the greatest contribution to gross farm income.

10. The area of the land used in the farming business, the amount, if any, of that area that is cultivated, the amount, if any, that is owned and the amount, if any, that is rented.

11. The name and position within the farming business of the individual signing the form.

12. On request, for the purpose of verifying the farming business’s eligibility for the Class 6-farmlands property tax rate under the Assessment Act and for registration under the Act, additional financial, inventory and business information and records sufficient to establish that the eligibility criteria are met, including the gross income from farming of the farming business for the year. O. Reg. 723/93, s. 2; O. Reg. 446/97, s. 1; O. Reg. 42/99, s. 1.

13. (1) For the purposes of subsection 21 (1) of the Act,

“cheque” has the same meaning as in the Bills of Exchange Act (Canada), but does not include an undated, stale-dated or post-dated cheque. O. Reg. 723/93, s. 3 (1).

(2) The amount of the payment to be provided to the Ministry under subsection 21 (1) of the Act is $195. O. Reg. 723/93, s. 3 (2); O. Reg. 442/09, s. 1.

4. The accreditation of the Christian Farmers Federation of Ontario and of the Ontario Federation of Agriculture is in effect for the three-year period starting on November 8, 1996. O. Reg. 480/96, s. 1.

5. (1) Subject to the other provisions of this section, a farm organization qualifies for accreditation if it meets the following criteria:

6. It has at least 250 members who,

i. carry on a farming business in Ontario, and

ii. have paid the membership fee.

2. The majority of the members of the farm organization carry on a farming business for which there is a current farming business registration.

3. It has an annual membership fee, including applicable taxes, of at least $195 for each member.

4. It is incorporated under a general or special Act of the Legislature.

5. Its purpose is to represent persons carrying on farming businesses.

6. It provides education or training in respect of agricultural matters.

7. It has an executive body at the provincial level that is elected by its members or by electors chosen by members.

8. It has an established process whereby individual members have the right to make submissions on relevant issues of concern and the executive body has the duty to consider the submissions and respond.

9. It provides advice and analysis to governments, administrative tribunals or advisory bodies concerning agricultural issues and the development of programs or policies that are of interest to persons carrying on farming businesses.

10. If it is an unaccredited organization, it has submitted to the Tribunal audited financial statements for its most recent completed fiscal year and the auditor’s report on those financial statements.

11. It has at least twelve local affiliates each of which represents members carrying on farming businesses in a different area of Ontario.

12. It contributes to the local affiliates referred to in paragraph 11 an amount that equals or exceeds 25 per cent of,

i. in the case of a farm organization that is not accredited, the amount that is obtained when the number of members it had in the most recent completed fiscal year before the day in which application for accreditation is made is multiplied by $195 less the amount that would be payable in taxes if this amount were being charged as a membership fee, or

ii. in the case of a farm organization that is accredited, the amount that is obtained in the most recent completed fiscal year under subsection 21 (3) of the Act for which no refund was given under subsection 21 (5) of the Act less the amount that would be payable in taxes if this amount were being charged as a membership fee.

13. If it is an accredited organization, it has submitted to the Tribunal, on an ongoing basis during the period of its accreditation, its audited financial statements and audited report within ten days after each annual general meeting.

14. It has entered into, or agreed to enter into, an agreement with the Minister and the accredited farm organizations to provide special funding to the francophone organization that is eligible for special funding under section 12 or 13 of the Act. O. Reg. 723/93, s. 5 (1); O. Reg. 442/09, s. 2.

(2) A farm organization does not meet the criterion prescribed in paragraph 5 of subsection (1) if it represents only persons carrying on a farming business in which only certain crops, livestock or poultry are raised or in which only certain agricultural products are produced. O. Reg. 723/93, s. 5 (2).

(3) A farm organization does not meet the criteria prescribed in paragraphs 10 and 13 of subsection (1) unless,

(a) the financial statements include a balance sheet, a statement of members’ equity, a statement of revenues and expenses and a statement of changes in financial position, however those statements are entitled;

(b) the financial statements and auditor’s report are prepared in accordance with the standards set forth in the Handbook of the Canadian Institute of Chartered Accountants; and

(c) the financial statements show the amount received under subsection 21 (3) of the Act and the number of refunds made by the organization under subsection 21 (8) of the Act during the fiscal year and the per cent of the applicable amounts received under paragraph 12 of subsection (1) that the organization has contributed to branches referred to in paragraph 11 of subsection (1) during the fiscal year. O. Reg. 723/93, s. 5 (3).

(4) A farm organization does not meet the criterion prescribed in paragraph 11 of subsection (1) unless each local affiliate,

(a) has at least ten members, each of whom has paid the membership fee, carrying on farming businesses in the area concerned;

(b) has a local affiliate executive elected by the affiliate’s members;

(c) has an annual general meeting; and

(d) is entitled to send a representative to any meeting of the farm organization to which representatives of local affiliates are invited. O. Reg. 723/93, s. 5 (4).

6. An accredited farm organization may apply for renewal of its accreditation only during the period that is no sooner than nine months and no later than six months before the expiry of its accreditation. O. Reg. 723/93, s. 6.

7. Union des cultivateurs franco-ontariens is eligible for special funding for three years starting on November 8, 1996. O. Reg. 480/96, s. 2.

8. (1) Subject to the other provisions of this section, a francophone organization representing farmers in Ontario may be eligible for special funding if, in addition to meeting the criteria set out in clauses 12 (a) and (b) of the Act, it meets the following criteria:

9. It promotes knowledge of agriculture and agricultural issues amongst francophones in agricultural and rural areas of Ontario.

10. It provides advice and analysis to governments, administrative tribunals or advisory bodies concerning agricultural issues and the development of programs or policies that are of interest to francophones carrying on farming businesses in Ontario.

11. It provides education or training in respect of agricultural matters or provides information on obtaining such education or training to francophones carrying on farming businesses in Ontario.

12. It plans, promotes or implements or assists in planning, promoting or implementing economic development projects in agricultural and rural areas of Ontario.

13. It maintains a liaison with the accredited organizations and other francophone organizations representing farmers.

14. It has an executive body that is elected by its members or by electors chosen by members.

15. If it is an organization that is eligible for special funding, it has submitted to the Tribunal, on an ongoing basis during the period of its eligibility, within ten days after each annual general meeting,

i. an annual report describing its objectives and activities and the number of members it has during its most recently completed fiscal year, and

ii. its audited financial statements and audited report for its most recently completed fiscal year.

8. If it is an organization that is not eligible for special funding, it has submitted to the Tribunal,

i. an annual report describing its objectives and activities and the number of members it has during its most recently completed fiscal year, and

ii. its audited financial statements and audited report for its most recently completed fiscal year.

9. It is incorporated under a general or special Act of the Legislature.

10. It has at least forty members who,

i. carry on a farming business in Ontario, and

ii. have paid the membership fee.

11. It has at least twenty-one members who carry on a farming business for which there is a current farming business registration. O. Reg. 723/93, s. 8 (1); O. Reg. 442/09, s. 3.

(2) A francophone organization does not meet the criteria prescribed in paragraphs 7 and 8 of subsection (1) unless,

(a) the financial statements include a balance sheet, a statement of members’ equity, a statement of revenues and expenses and a statement of changes in financial position, however those statements are entitled; and

(b) the financial statements and auditor’s report are prepared in accordance with the standards set forth in the Handbook of the Canadian Institute of Chartered Accountants. O. Reg. 723/93, s. 8 (2).

9. A francophone organization eligible for special funding may apply for renewal of its eligibility only during the period that is no sooner than nine months and no later than six months before the expiry of its eligibility. O. Reg. 723/93, s. 9.

10. In the Act and this Regulation,

“special funding” means the funding accredited organizations have agreed to pay to the eligible francophone organization. O. Reg. 723/93, s. 10.

11. For the purpose of subsection 21 (7) of the Act, the time prescribed for applying for a refund is the ninety-day period starting with the day the registration form is required to be filed. O. Reg. 723/93, s. 11.

12. For the purpose of subsection 11 (7) of the Act, the time prescribed for resubmitting a payment is the thirty-day period starting with the day the Ministry returns the first payment pursuant to subsection 11 (6) of the Act. O. Reg. 723/93, s. 12.

13. In addition to the information that the Minister must provide under subsection 21 (3) of the Act, the Minister may, under section 3 of the Act, for the purpose of promoting the efficient administration of the Act, provide to the appropriate farm organizations the fax numbers and e-mail addresses provided in the farming business registration forms of those who have provided payments under subsection 21 (1) of the Act. O. Reg. 42/99, s. 2.

Footnotes

1. 1The Tribunal noted that the joint response from the accredited farm organizations indicated the National Farmers Union as one of the parties supporting the submission and that the submission was signed by Mr. Joe Dama, Ontario Coordinator, National Farmers Union. The Tribunal interpreted this to mean the National Farmers Union – Ontario since an Interim Order of the Tribunal was issued to the National Farmers Union – Ontario.
2. 2Official Report of Debates (Hansard), Legislative Assembly of Ontario, 3rd session, 35th Parliament, various dates June to October, 1993; provided in the Ministry submission
3. 3Official Report of Debates (Hansard), Legislative Assembly of Ontario, 3rd session, 35th Parliament, Standing Committee on Resource Development, No. R11, September 1, 1993 at pp. R-229 to R-230; provided in the Ministry submission
4. 4AgriCorp 2010 Farm Business Registration Information Sheet as quoted by the Canada Revenue Agency; provided in the Ministry submission
5. 5NFU-O web site; address provided in the NFU-O submission, accessed 16Nov2011 and 29Jan2012
6. 6Section 6. 2) of the by-laws states the President or Vice President may be the Regional Coordinator but section 7. 1) states the Regional Coordinator is the President and Chair of the organization.
7. 7NFU-O web site; address provided in the NFU-O submission, accessed 16Nov2011