National Farmers Union – Ontario Accreditation (Re), 2012 ONAFRAAT 38

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 Courriel: appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: National Farmers Union – Ontario Accreditation

NFU-O Accreditation (RE) [Fourth Interim Order] 2012 ONAFRAAT 38

STATUTE: Farm Registration and Farm Organizations Funding Act, 1993

HEARING: July 18, 2012

DATE OF DECISION: December 5, 2012

2012-38

NEUTRAL CITATION: 2012 ONAFRAAT 38

National Farmers Union – Ontario Accreditation [Fourth Interim Order]

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

AND IN THE MATTER OF: An application to the Agriculture, Food and Rural Affairs Appeal Tribunal by the National Farmers Union - Ontario (NFU-O) for accreditation under Subsection 4(1) of the Act.

Before: Nicholas Richter, Vice-Chair; Jane Sadler Richards, Member; Mary Field, Member

Appearances:

Ann Slater, Ontario Coordinator/President, NFU-O

Sarah Bakker, Office Administrator, NFU-O

FOURTH INTERIM ORDER OF THE TRIBUNAL

This matter was heard by the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) on July 18, 2012, in the Tribunal Boardroom, Guelph, Ontario. The National Farmers Union - Ontario (the “NFU-O”) applied to the Tribunal to become an accredited farm organization pursuant to section 4(1) of the Farm Registration and Farm Organizations Funding Act, 1993 (the “Act”).

In an order dated November 30, 2012 (the “Third Interim Order”), the Tribunal ordered the NFU-O, among other things, to serve on the Minister of Agriculture, Food and Rural Affairs (the “Minister”) and to file with the Tribunal a written notice by December 4, 2012, if the NFU-O wished to withdraw, without condition, two letters dated November 22, 2012, in which the NFU-O sought to withdraw its existing application for accreditation and to commence a fresh application for accreditation under section 4(1) of the Act. The Tribunal’s concerns about those letters are set out in an order dated November 23, 2012 (the “Second Interim Order”) and need not be repeated here.

In response to the Third Interim Order, the NFU-O filed a letter with the Tribunal on December 3, 2012, withdrawing its two letters dated November 22, 2012, without condition, thereby addressing the Tribunal’s concerns and allowing the Tribunal to continue its work on the NFU-O’s existing application for accreditation. The Tribunal thanks the NFU-O for its prompt response to the Third Interim Order. As indicated in paragraph 2 of the Third Interim Order, the NFU-O’s existing application for accreditation will now proceed as though the NFU-O’s letters dated November 22, 2012, had not been filed.

Also on December 3, 2012, the NFU-O filed a letter with the Tribunal advising the Tribunal that it intended to file additional written evidence with the Tribunal and was also prepared to make further oral submissions if required. While this letter is not in the form of a request as contemplated by paragraph 2 of the Third Interim Order, the Tribunal is prepared to allow the NFU-O to provide additional evidence to the Tribunal and to make additional submissions in this matter.

In a letter dated December 3, 2012, counsel for the Minister requested an opportunity to provide the Tribunal with both written and oral submissions on the NFU-O’s application for accreditation. The Tribunal grants the Minister’s request.

In reviewing and analyzing the evidence provided by the NFU-O to date, the Tribunal has identified four areas of concern under the current legislative scheme for accrediting farm organizations:

1. Section 4(1) of the Act provides that “[a]ny organization representing farmers in the province may apply to the Tribunal to become an accredited farm organization for the purposes of this Act.” Based on the evidence provided to date, the Tribunal has been unable to satisfy itself that the NFU-O is an organization “representing farmers in the province” as required under section 4(1) of the Act. It is unclear to the Tribunal whether the activities claimed by the NFU-O as representing farmers in Ontario are in fact carried out by the NFU-O, an Ontario corporation, or by the National Farmers Union (the “NFU”), a federal corporation based in Saskatoon with which the NFU-O is affiliated. The NFU appears to operate in Ontario through a regional organization known as “NFU Region 3,” which appears legally to be part of the NFU and not part of the NFU‑O. In addition, it is not clear to the Tribunal whether the NFU-O’s activities, separate and apart from any activities of the NFU or NFU Region 3, consist of much more than accessing funding under the Act and then disbursing those funds to various entities, with the majority of the funds apparently being disbursed to the NFU pursuant to a memorandum of agreement between the NFU and the NFU-O.

2. A related concern arises under section 5(1)3 of Ontario Regulation 723/93, as amended (the “Regulation”), which requires a farm organization seeking accreditation to have as its purpose “to represent persons carrying on farming businesses.” While the NFU-O’s stated purpose may be to represent persons carrying on farming businesses, it is not clear to the Tribunal whether this is the NFU‑O’s actual purpose or whether the actual purpose is to access funding under the Act in order to allow the NFU and NFU Region 3 to carry on their activities.

3. Similarly, section 5(1)4 of the Regulation requires a farm organization seeking accreditation to provide “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.” It is not clear to the Tribunal from the evidence provided to date whether the NFU-O, as opposed to the NFU or NFU Region 3, provides advice and analysis to governments, administrative tribunals, or advisory bodies as required under section 5(1)4 of the Regulation.

4. Section 5(1)1 of the Regulation requires a farm organization seeking accreditation to have an annual membership fee of at least $195, including applicable taxes. The evidence to date indicates that the NFU-O has “associates” who pay an annual fee of less than $195. The evidence is unclear as to whether the NFU-O’s associates are members or have some other status that does not amount to membership in the NFU-O.

The Tribunal has not reached any conclusions on any of the issues set out above, but would benefit from additional evidence that may assist in clarifying those issues. The Tribunal therefore exercises its power under section 26 of the Act to request the following additional documents from the NFU-O:

1. Copies of all of the following documents (assuming they exist): the NFU’s incorporating documents, charter, constitution, by-laws, and any similar documents governing the NFU.

2. Copies of all of the following documents (assuming they exist): NFU Region 3’s incorporating documents, charter, constitution, by-laws, and any similar documents governing NFU Region 3.

3. Copies of the NFU’s audited financial statements for the past three fiscal years.

4. Copies of any financial statements for NFU Region 3 for the past three fiscal years.

5. Copies of the NFU-O’s audited financial statements for the past three fiscal years.

6. A breakdown by province (including NFU Region 3) of the number of NFU members in each membership category and the basis on which those membership numbers are calculated (i.e., per farm, per farmer, or on some other basis).

7. Notices of meetings, agendas, and minutes of meetings for all annual and all special meetings held by the NFU, NFU Region 3, and the NFU-O in the past three years.

8. Copies of all agreements governing the relationship between the NFU, NFU Region 3, and the NFU-O (including a complete copy of the document filed as exhibit 4, if there is one, as exhibit 4 appears to be unsigned and may be missing one or more pages). If any such agreements were amended within the past three years, then this request extends to copies of the old agreements.

9. Copies of any available accounting records indicating the value of any goods or services provided by the NFU to the NFU-O in each of the past three years.

10. A list of the NFU-O’s bank accounts (including joint accounts) and the signing authorities over those accounts.

11. A copy of the most recent bank statements for each of the accounts listed under paragraph 10 above indicating the name(s) of the account holder(s).

12. A copy of the lease or rental agreement for the NFU-O’s office in Guelph and any other office used or paid for by the NFU-O.

13. A copy of the NFU-O’s most recent telephone bill(s) showing the name(s) of the account holder(s).

14. Copies of employment agreements or other records showing who employs the NFU-O’s staff.

15. With respect to paragraphs 12-14 above, copies of cancelled cheques, bank statements, or other relevant documents indicating who pays the NFU-O’s rent, telephone bill, and employees and out of which account(s) those payments are made.

16. If the NFU or NFU Region 3 pays any of the expenses listed in paragraphs 12-14 above, or reimburses the NFU-O for any of those expenses, directly or indirectly, copies of cancelled cheques, bank statements, or other relevant documents indicating to whom those payments or reimbursements are made.

17. Samples of the membership documents exchanged between the NFU or NFU-O (as the case may be) and a person applying to become an associate of the NFU-O.

18. Any other documents that may assist the Tribunal in determining the issues set out in this order.

The Tribunal appreciates that some of the documents requested by the Tribunal may be in the possession or control of the NFU. The Tribunal therefore orders the NFU-O to provide a copy of this order to the NFU promptly upon receipt. The Tribunal requests the NFU’s cooperation and assistance in providing the NFU-O with copies of any of the requested documents that are in the NFU’s possession or control. If this procedure proves unsuccessful, the Tribunal may, if appropriate, exercise its powers to obtain evidence under the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, the Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal, or any other applicable law. The Tribunal may also draw an adverse inference, if appropriate, from any failure to provide the requested documents.

The Tribunal has scheduled a further hearing in this matter on December 14, 2012, beginning at 9:30 a.m. in the Tribunal Boardroom, Ontario Government Building, 1 Stone Road West, Guelph, Ontario. At that hearing, the NFU-O and the Minister will have an opportunity to provide additional evidence or submissions with respect to the NFU‑O’s application for accreditation, including the issues raised in this order. The NFU-O should also be prepared to answer questions from the Tribunal with respect to the issues raised in this order and any documents provided by the NFU-O in response to this order.

Order of the Tribunal

The Tribunal therefore orders that:

1. The NFU-O and the Minister shall serve one copy on each other and then file five copies with the Tribunal of any additional documentary evidence they may wish to provide to the Tribunal with respect to the NFU-O’s application for accreditation, including the issues raised in this order, by no later than 12:00 noon on December 11, 2012.

2. The NFU-O shall serve on the Minister one copy and file with the Tribunal five copies of any of the documents requested in this order that the NFU-O is prepared to provide to the Tribunal, by no later than 12:00 noon on December 11, 2012. If any of the requested documents are not provided, the NFU-O shall indicate why those documents are not being provided.

3. The NFU-O and the Minister shall serve one copy on each other and then file five copies with the Tribunal of any written submissions they may wish to make with respect to the NFU-O’s application for accreditation, including the issues raised in this order, by 12:00 noon on December 11, 2012.

4. The NFU-O shall provide a copy of this order to the NFU promptly upon receipt.

5. The hearing of the NFU-O’s application for accreditation shall resume at 9:30 a.m. on December 14, 2012, in the Tribunal Boardroom, Ontario Government Building, 1 Stone Road West, Guelph, Ontario.

6. This panel shall remain seized of this matter.

Dated at Hamilton, Ontario this 5th day of December, 2012.