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

National Farmers Union (RE) 2013 ONAFRAAT 3

STATUTE:

Farm Registration and Farm Organizations Funding Act

HEARING:

July 18, 2012 and December 14, 2012

DATE OF DECISION:

April 15, 2013

2013-03

NEUTRAL CITATION:

2013 ONAFRAAT 3

National Farmers Union - Ontario

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:

Sean P. Bawden, Counsel for the NFU-O

Ann Slater, Ontario Coordinator/President, NFU-O

Sarah Bakker, Office Administrator, NFU-O

Kristopher Crawford-Dickinson, Counsel for the Minister

REASONS FOR DECISION

Introduction

This application was heard by the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) on July 18 and December 14, 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”).

At the conclusion of the hearing on December 14, 2012, counsel urged the Tribunal to release its decision immediately because the annual farming business registration forms referred to in section 21 of the Act needed to be finalized and printed in time for mailing in early January 2013. The forms could not be finalized until the Tribunal determined whether the NFU-O would be accredited under the Act. The Tribunal therefore released its decision on December 19, 2012, without reasons, and dismissed the NFU-O’s application for accreditation. As indicated in these reasons for decision, the Tribunal finds that the NFU-O does not have standing under section 4(1) of the Act to bring this application. Even if the NFU-O did have standing, the Tribunal finds that the NFU-O does not meet the requirements for accreditation under the Act.

The Minister of Agriculture, Food and Rural Affairs (the “Minister”) was given notice of the hearing in this matter pursuant to section 4(4) of the Act. There were no accredited farm organizations in Ontario when the notice of hearing was issued, and therefore no further notice was required under section 4(4) of the Act. The Minister did not appear at the hearing on July 18, 2012, and initially took no position on the NFU‑O’s application. The Minister did appear at the hearing on December 14, 2012, in support of the NFU-O’s application.

The NFU-O was unrepresented at the hearing on July 18, 2012. Subsequently, the NFU‑O retained counsel, who appeared with the NFU-O at the hearing on December 14, 2012.

The Issues

This application raises two issues:

1. whether the NFU-O has standing to bring this application under section 4(1) of the Act; and

2. whether the NFU-O meets the criteria for accreditation set out in section 5 of Ontario Regulation 723/93, as amended (the “Regulation”).

The Tribunal will discuss each of these issues in turn below. However, the Tribunal begins its discussion with an overview of the legislative scheme and the Tribunal’s fact-finding powers under the Act.

The Legislative Scheme

Pursuant to section 2(1) of the Act, every person who carries on a farming business whose annual gross income of the farming business equals or exceeds the prescribed amount (currently $7,000) is required to file with the Minister a completed farming business registration form (an “FBR Form”). Pursuant to section 21(1) of the Act, every person required to file an FBR Form must, when filing the form, provide to the Ministry of Agriculture, Food and Rural Affairs (the “Ministry”) payment of the prescribed amount (currently $195) payable to an accredited farm organization. Upon receiving the FBR Form and the payment, the Ministry then assigns a registration number (commonly known as an “FBR Number”) to the person filing as provided in section 21(4) of the Act. The Ministry is also required to forward the payments received to the appropriate organization along with the names, addresses, telephone numbers, and registration numbers of those who provided the payments, in accordance with section 21(3) of the Act. The FBR Number is important to farmers because, as set out in section 23(2) of the Act, only a person with a current FBR Number is entitled to benefit from certain programs provided by the Ministry.

The Act contemplates that some persons carrying on a farming business may not want to make payments to, or become members of, an accredited farm organization. Section 22 of the Act, for example, provides that persons carrying on a farming business who object to making payment to a farm organization or filing an FBR Form because of their religious convictions or beliefs may apply to the Tribunal for an order waiving those requirements. Section 21(7) of the Act provides that a person who files an FBR Form and provides the prescribed payment may apply to the appropriate organization for a refund of the amount paid. Finally, section 21(10) of the Act provides that payment under section 21 “does not confer membership in the farm organization.” Section 21(10) appears to be directed at persons who are required to register under section 21 of the Act, do not want to belong to an accredited farm organization, and do not qualify for a religious exemption under section 22 of the Act.

The Tribunal has found on several occasions that, as a result of section 21(10) of the Act, persons treated as members by a farm organization do not qualify as members under the legislative scheme. Although section 21(10) is not in issue on this application, the term “member” appears frequently in this decision. In order to avoid confusion, the Tribunal wishes to clarify at the outset that, for the purposes of these reasons for decision, the Tribunal uses the term “member” to refer to persons treated as members by the NFU-O, regardless of whether those persons would qualify as members under the legislative scheme. The term “membership” has a similar meaning in these reasons for decision.

The farming business registration process described above results in the transfer of funds, via Agricorp (an agency of the provincial government that administers the farming business registration process), from farmers to farm organizations. In the case of the NFU-O, those transfers are close to $500,000 per year. The farm organizations use those funds as operating revenues to carry out their objectives. As membership numbers generally do not change significantly from year to year, the registration process provides stable funding to the farm organizations so that they can plan their future operations.

Accreditation of farm organizations is central to this legislative scheme. While there are many farm organizations in the province, only accredited farm organizations are eligible to receive stable funding under the farming business registration process. If a farm organization wishes to avail itself of this funding, it must first apply for and obtain accreditation under the Act.

The legislation assigns responsibility for accrediting farm organizations to the Tribunal. Section 4(1) of the Act provides that applications for accreditation are to be made to the Tribunal. As discussed in greater detail below, section 4(1) grants standing to “[a]ny organization representing farmers in the province” to apply for accreditation. Section 5 of the Act requires the Tribunal to hold a hearing before determining whether a farm organization should be accredited. While the Minister has a statutory right to receive notice of the hearing and to make submissions at the hearing (as a result of sections 4(4) and 5(2) of the Act), the decision as to whether to accredit a farm organization lies solely with the Tribunal, acting within its jurisdiction. Pursuant to section 30 of the Act, the Tribunal’s decision is final.

In deciding whether to accredit a farm organization, the Tribunal is required to determine whether the applicant meets a number of criteria set out in section 5 of the Regulation. At the commencement of this hearing, there were fourteen criteria for accreditation set out in section 5 of the Act. Prior to the release of the Tribunal’s decision on this application, however, the Regulation was amended by Ontario Regulation 363/12, which came into force on November 22, 2012. As a result of that amendment, there are now five criteria for accreditation. The relevant provisions are:

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 an annual membership fee of at least $195, including applicable taxes.

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

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

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. 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.

(2) A farm organization does not meet the criterion prescribed in paragraph 3 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.

Pursuant to a transitional provision in section 5(3) of the amended Regulation, the amended criteria set out above apply to this application.

Assuming that a farm organization has standing under section 4(1) of the Act to apply for accreditation, the Tribunal has no discretion under section 6(1) of the Act in determining whether to accredit the farm organization. If the Tribunal determines that the farm organization meets the prescribed criteria, the Tribunal “shall” accredit the farm organization. If, on the other hand, the Tribunal determines that the farm organization does not meet the prescribed criteria, then the Tribunal “shall” refuse the accreditation. In each case, the Tribunal’s role is to interpret the legislation and to assess the evidence before the Tribunal in order to determine whether the legislative requirements for accreditation have been met. The onus is upon the applicant to satisfy the Tribunal that the applicant has met all of the legislative requirements.

Section 6(2) of the Act provides that accreditation is valid for three years. Once accredited, a farm organization may apply within a specified timeframe to renew its accreditation for a further three years pursuant to section 4(2) of the Act. Reaccreditation is not automatic, and the applicant must satisfy the Tribunal each time that it has met all of the legislative requirements for reaccreditation. The Tribunal also has the power under sections 8-10 of the Act to review the accreditation of a farm organization and, if appropriate, to remove or suspend that organization’s accreditation. In addition, a farm organization may apply to the Tribunal under section 11 of the Act to have its accreditation removed. In this way, the legislative scheme provides for regular oversight by the Tribunal of accredited farm organizations to ensure that those organizations continue to meet the legislative requirements for accreditation.

The Tribunal’s Fact-Finding Powers

Section 5(3) of the Act provides that “[t]he organization seeking accreditation . . . is a party to the hearing.” In a typical accreditation hearing, the applicant is the only party to the hearing. Although the Minister and any other accredited farm organizations have a statutory right to make submissions (pursuant to sections 4(4) and 5(2) of the Act), they are not normally parties and therefore do not normally have the right to call evidence, to cross-examine witnesses, to make objections, or otherwise to participate fully as a party to the proceeding. While any interested person may request party status (and the Tribunal may or may not grant that request), in most cases the only party before the Tribunal is the applicant.

Where the applicant is the only party before the Tribunal, the Tribunal has a number of significant challenges in evaluating the evidence provided by the applicant. In a proceeding with multiple parties, some of whom are adverse in interest to one another, the parties generally do a good job of placing all of the relevant evidence before the Tribunal with respect to the issues to be determined by the Tribunal. One of the advantages of the adversarial system is that it is effective at probing weaknesses in the evidence presented by a party and in providing additional evidence to contradict or explain the evidence presented by that party. The adversarial system is also effective at providing a decision-maker with all points of view on an issue as each party seeks to present its case in the most favourable light. These advantages are lost when the applicant is the only party to the proceeding.

The Act provides some assistance by expanding the fact-finding powers of the Tribunal. Sections 26 and 27 of the Act provide:

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.

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.

(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.

As these provisions make clear, the Tribunal’s role at an accreditation hearing goes beyond simply receiving evidence from the applicant and making a decision based on that evidence. The legislation contemplates that the Tribunal may take a more active fact-finding role in gathering evidence on its own initiative, hearing submissions from persons who would not otherwise have the right to make submissions, and considering any relevant information obtained by the Tribunal in addition to the evidence provided by the applicant. So long as the Tribunal gives the applicant an opportunity to respond, the Tribunal may exercise these fact-finding powers, if required, in order to obtain a proper evidentiary basis for its decision.

It is important to note that the Tribunal’s powers under section 26 of the Act to gather information, to inspect documents, and to question any person in relation to a matter before it are not restricted to third parties. The Tribunal also has the power under section 26 to gather information and to inspect documents from, and to question, the applicant in an accreditation hearing. This power allows the Tribunal to test the evidence presented by the applicant and to gather additional evidence from the applicant if required. In this way, the Tribunal is able to overcome some of the inherent limitations of a process in which, in most cases, the only party before the Tribunal is the applicant seeking accreditation.

The fact-finding powers granted to the Tribunal under section 26 of the Act are very broad. With respect to information and documents, the Tribunal may gather information or inspect documents “that it considers necessary”; with respect to questions, the Tribunal may question a person “in relation to a matter before it.” In both cases, the legislature has given the Tribunal broad fact-finding powers to go beyond the evidence presented to the Tribunal by the applicant.

The extent to which the Tribunal exercises its powers under sections 26 and 27 of the Act will vary with the circumstances. In an application in which the evidence is satisfactory, the issues are straightforward, and there is nothing in the record or in the submissions to cause the Tribunal any concern, the Tribunal may exercise its fact-finding powers sparingly, if at all. If, on the other hand, the evidence is unsatisfactory, the issues are complex, or the Tribunal has concerns arising from the record or the submissions, the Tribunal may exercise its fact-finding powers more broadly in order to satisfy itself that it has a proper evidentiary basis on which to reach a decision.

The Tribunal does not exercise its fact-finding powers lightly. If the Tribunal asks an applicant for additional information or documentation, or questions a witness, it does so because it is seeking clarification of the evidence or because it has a concern arising from the application for accreditation. While the Tribunal appreciates that an applicant may not wish to disclose certain information or documentation to the Tribunal, it is not entirely up to the applicant to decide which information or documentation comes to the Tribunal’s attention. A farm organization seeking the benefits of stable funding must also be prepared to accept the burdens of the accreditation process set out in the legislation. The Tribunal expects an applicant to be open and transparent in responding to the Tribunal’s requests for information and documentation and in responding to questions from the Tribunal.

If an applicant refuses to answer a question or to provide information or documentation requested by the Tribunal, the Tribunal may draw an adverse inference from that refusal. Other remedies may also be available depending on the circumstances.

Issue #1: Whether the NFU-O has standing to bring this application under section 4(1) of the Act (the “Standing Issue”)

A. Section 4(1) of the Act

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.” Section 4(1) is a routine standing provision that determines who is entitled to apply for accreditation under the Act. In this case, as the wording of section 4(1) makes clear, the applicant has to meet two requirements in order to have standing to apply for accreditation: (1) the applicant has to be an organization (as opposed to an individual, for example), and (2) the applicant has to represent farmers in the province. If these two requirements are met, the applicant has standing to apply for accreditation, and the application will be decided under the five criteria set out in section 5(1) of the Regulation. If even one of the requirements is not met, then the applicant does not have standing to apply for accreditation, and the application will be dismissed.

The Minister takes issue with the Tribunal’s approach to section 4(1) of the Act, as described above. The Minister submits that section 4(1) is simply an “enabling provision” that allows farm organizations to apply for accreditation and the Tribunal to accept applications for accreditation. Once the application has been filed and accepted, the Tribunal is required to render a decision based on the criteria set out in section 5(1) of the Regulation. The Minister submits that section 4(1) of the Act does not play a role in accreditation hearings and that the Tribunal has no jurisdiction to use section 4(1) to find that the NFU-O should not be accredited.

The Tribunal does not agree with the Minister’s submission. In the Tribunal’s view, treating section 4(1) of the Act simply as an enabling provision fails to attach sufficient weight to the wording of that section. While section 4(1) does authorize persons to apply for accreditation (and, by implication, authorizes the Tribunal to accept applications for accreditation), the wording of that section also limits the class of persons who are authorized to apply for accreditation to “organizations representing farmers in the province.” Those words have meaning and cannot be ignored. As with any standing provision, the Tribunal’s role under section 4(1) of the Act is to ensure that only those persons who are authorized to apply for accreditation are permitted to have their applications proceed to a full consideration on the merits. If the Legislature had intended a different role for the Tribunal, it would have been a simple matter to reword section 4(1) of the Act to remove any restrictions on who may apply for accreditation under the Act.

B. The NFU-O’s Application for Accreditation

Although standing is not usually in issue in an accreditation hearing, in this case the Tribunal became concerned at the initial hearing on July 18, 2012, that the NFU-O may not have standing to apply for accreditation. There is no issue in this case that the NFU‑O is an organization and therefore meets the first requirement for standing set out above. The issue is whether the NFU-O meets the second requirement for standing, i.e., whether it represents farmers in the province. At the hearing on July 18, 2012, it appeared to the Tribunal that a related organization, the National Farmers Union (the “NFU”) might be the organization representing farmers in the province rather than the NFU-O. The NFU is a national farm organization based in Saskatoon and operates in Ontario as “NFU Region 3.”

Although the Tribunal raised this issue at the hearing on July 18, 2012, the issue was not thoroughly explored at that hearing. Many of the Tribunal’s concerns arose from its detailed review of the evidence after the hearing on July 18, 2012. That evidence included a number of documents that were not produced until the hearing was already under way. The Tribunal had only a limited opportunity to review those documents at the hearing and to ask questions about them. The Tribunal therefore determined that, before reaching a decision on the standing issue, it should raise its concerns with the NFU-O and give the NFU-O an opportunity to respond to those concerns.

On December 5, 2012, the Tribunal issued an interim order (the “Fourth Interim Order”) setting out the standing issue as follows:

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.

The Tribunal scheduled a continuation of the NFU-O’s accreditation hearing for December 14, 2012, to address this and other issues arising from the NFU-O’s application for accreditation. As part of the Fourth Interim Order, the Tribunal exercised its fact-finding powers under section 26 of the Act and requested a number of additional documents from the NFU-O (and, in some cases, from the NFU via the NFU-O) which the Tribunal considered necessary to reach a decision on the issues before it. The Tribunal warned the NFU-O in the Fourth Interim Order that “[t]he Tribunal may . . . draw an adverse inference, if appropriate, from any failure to provide the requested documents.”

Having squarely set out the standing issue in the Fourth Interim Order, and having indicated the types of documents that would assist the Tribunal in addressing the issue, the Tribunal expected the NFU-O to come to the hearing on December 14, 2012, prepared to provide additional oral and documentary evidence to satisfy the Tribunal that the NFU-O, and not the NFU, was the organization representing farmers in the province as required by section 4(1) of the Act. This is not what happened at the hearing. While the NFU-O produced most of the documents requested by the Tribunal in its Fourth Interim Order, the NFU-O refused to answer more than thirty questions from the Tribunal and also refused to produce certain documents requested by the Tribunal at the hearing.

The NFU-O generally gave one of two reasons for refusing to answer questions or to produce documents. First, the NFU-O questioned the Tribunal’s jurisdiction to ask questions and to request documents, particularly with respect to the relationship between the NFU and the NFU-O. Although the Tribunal pointed out its fact-finding powers under sections 26 and 27 of the Act, the NFU-O maintained its objection to the Tribunal’s jurisdiction. Second, the NFU-O expressed the view that many of the Tribunal’s questions, and many of the documents requested by the Tribunal, were not relevant to the issues in the accreditation hearing. This culminated, toward the end of the hearing, in a blanket refusal by the NFU-O to answer any questions regarding the relationship between the NFU and the NFU-O.

All of these refusals to answer questions and to produce documents were made by the NFU-O’s counsel, in consultation with his client. Counsel for the NFU-O was respectful in making his objections, and conducted himself professionally at all times. Faced with the NFU-O’s repeated refusal to answer questions and to produce documents, the Tribunal gave the NFU-O several verbal warnings at the hearing that the Tribunal might draw an adverse inference from the NFU-O’s refusals. Counsel for the NFU-O advised the Tribunal that he had advised his client of the potential ramifications of refusing to answer the Tribunal’s questions and that the questions were still being refused. With respect to certain documents requested by the Tribunal at the hearing, which the NFU-O refused to produce, counsel advised that if an adverse inference was going to be made that the NFU‑O would not be accredited, his client was prepared to accept that outcome. As indicated below, the Tribunal has drawn a number of adverse inferences from the NFU‑O’s repeated refusals to answer questions and to produce documents.

C. The NFU-O’s Request for a Confidentiality Order

The NFU-O requested a confidentiality order with respect to a large number of documents produced in response to the Fourth Interim Order. This request extended to such commonplace items as the NFU’s charter, constitution, and by-laws; audited financial statements for the NFU and the NFU-O; notices of meeting, agendas, and minutes of meetings with respect to the NFU, NFU Region 3, and the NFU-O; a service agreement between the NFU and the NFU-O; banking records; telephone bills; and an employment agreement between the NFU-O and its office administrator, Sarah Bakker. The NFU-O also requested that the public be excluded from any portion of the hearing addressing these documents.

The Tribunal, like the courts, operates on an “open courts” principle, as there is a strong public interest in allowing members of the public to attend Tribunal hearings and to review documents filed with the Tribunal. In this case, after hearing evidence from Ms. Bakker and submissions from counsel, the Tribunal ordered that Ms. Bakker’s employment agreement and related documents (at tab 11 of exhibit 8) should be sealed in their entirety, as Ms. Bakker provided satisfactory evidence that she would be prejudiced if the details of that agreement were made public, and it did not seem practical to edit those documents. The Tribunal also ordered that all but the last three digits of the account numbers appearing on the NFU-O’s banking records (at tabs 9 and 12 of exhibit 8) would be redacted, as well as the entire account number appearing on the NFU-O’s credit card statement (at tab 12 of exhibit 8). The balance of the documents produced by the NFU-O, including the redacted documents described above, remain part of the public record.

With respect to Ms. Bakker’s employment agreement, the Tribunal noted at the hearing on December 14, 2012, that it might be necessary to refer to the agreement during the hearing or in the Tribunal’s decision. The Tribunal indicated that, if it did refer to the agreement, it would be respectful of Ms. Bakker’s concerns about making the agreement public. Those concerns related primarily to salary, hours of work, benefits, severance policies, termination policies, and similar provisions in Ms. Bakker’s employment agreement.

D. Evidence and Analysis on the Standing Issue

On the issue of standing, and for the reasons set out below, the Tribunal finds that the NFU-O does not have standing to apply for accreditation under section 4(1) of the Act. In particular, the Tribunal finds that it is the NFU and not the NFU-O that represents farmers in the province. The NFU-O carries out very few activities on its own and is essentially a legal conduit through which the NFU accesses stable funding under the Act. It exists because the NFU cannot satisfy the requirement for incorporation under Ontario law, as set out in section 5(1)2 of the Regulation.

In reaching this conclusion, the Tribunal has reviewed and analyzed a large body of evidence with respect to the NFU, the NFU-O, and the relationship between those two organizations. The Tribunal has also, where appropriate, drawn adverse inferences from the NFU-O’s refusal to answer certain questions and to produce certain documents requested by the Tribunal.

In the reasons that follow, the Tribunal has organized its analysis of the standing issue under the following headings: (1) the NFU’s corporate structure; (2) incorporation of the NFU-O; (3) the NFU-O’s corporate structure; (4) the regional coordinator; (5) locals; (6) official statements, (7) agreements between the NFU and the NFU-O, (8) the NFU’s financial statements, (9) the NFU-O’s financial records, (10) the conduct of meetings, and (11) activities in the province. The evidence under these headings, taken together, leads the Tribunal to conclude that it is the NFU and not the NFU-O that represents farmers in the province.

(1) The NFU’s Corporate Structure

The NFU is a corporation incorporated under a special act of Parliament (“An Act to incorporate National Farmers Union,” S.C. 1969-70, c. 80, hereinafter referred to as the “NFU Act”). The NFU is based in Saskatoon and operates in a number of provinces, including Ontario. Section 6(1)(g) of the NFU Act empowers the NFU to make by-laws for “the establishment of regions, branches, locals or other divisions of the Union and the management and constitution thereof.” The NFU has exercised this power by providing in section 37 of its constitution and by-laws (hereinafter referred to as the “NFU’s by-laws”) that “[t]he board shall divide Canada into regions in such manner as they may from time to time determine.” In Ontario, the NFU operates under the name “NFU Region 3.” NFU Region 3 is not separately incorporated but is part of the NFU.

The NFU’s by-laws give the NFU significant authority and control over the regions, including NFU Region 3. For example:

1. section 11(a)(iv) gives the NFU’s board the authority to set the annual membership fee for any region that participates in a legislated provincial funding program;

2. section 38 requires each region to hold an annual convention at least 60 days prior to the NFU’s annual convention;

3. section 38(a) provides that any strategy or action developed at a regional convention must be consistent with national policy;

4. section 39 provides that the NFU’s executive is responsible for calling and publicizing the regional conventions;

5. section 44 provides that the NFU’s executive may establish offices in each region;

6. section 45 provides that the NFU’s executive “shall appoint a member of the board from each region as the regional coordinator for that region”;

7. section 46(a) provides that “[i]t shall be the duty of the regional coordinator to perform such duties as may be assigned by the executive”;

8. section 46(b) provides that “[i]t shall be the duty of the regional coordinator to convene meetings from time to time of the national board members and advisory members within the region to inform them and coordinate their activities into the general program of the union”;

9. section 66 provides that the NFU’s executive has the power to establish locals within each region;

10. section 67 provides that the NFU’s executive has to approve the name of each local;

11. section 87 requires each elected officer of the NFU (including the regional coordinator for Ontario, who sits on the NFU’s board) to sign a declaration “pledging to faithfully discharge the duties of such office, to abide by the constitution, and to loyally support and further the interests of the union”;

12. section 106 provides that the NFU’s board of directors is the policy-making body of the NFU between conventions; and

13. section 129 contemplates that any provincial farm union whose members vote to join the NFU will transfer its assets and liabilities to the NFU.

These by-laws give the NFU significant “top down” authority and control over the regions. It is not surprising that the NFU would want to maintain authority and control over the regions, given that the regions are part of the NFU and have no separate corporate existence of their own. By maintaining authority and control over the regions, the NFU is able to ensure that the regions are operating in a manner consistent with the objectives of the NFU. This approach recognizes that the NFU is legally responsible for the activities of its members carried out in its name.

As a federally incorporated farm organization, the NFU does not qualify for accreditation under the Act. This is because section 5(1)2 (previously, section 5(1)4) of the Regulation requires an accredited farm organization to be incorporated under Ontario law. Although the purpose of section 5(1)2 is not entirely clear, it appears to reflect at least two legislative objectives: (1) that Ontario farmers should be represented by local farm organizations based in Ontario, and (2) that only farm organizations based in Ontario should have access to stable funding under the Act. Regardless of what the legislative objectives are, as a practical matter section 5(1)2 prevents extra-provincial corporations such as the NFU from becoming accredited under the Act. This requirement has been in place since the Regulation was first enacted in 1993, and was of sufficient legislative importance that it was retained during the recent amendments to the Regulation in November 2012.

The NFU has addressed the requirement for incorporation under Ontario law in section 130 of its by-laws:

Where a region is participating in a provincial stable funding program, and a parallel organization/corporation is required by provincial legislation, the regional network (locals, districts, and regions) shall continue to be the policy making body within the region.

The wording of section 130 is important because it contemplates that a region of the NFU participates in a provincial stable funding program. This suggests that, from the NFU’s point of view, it is NFU Region 3 that participates in the stable funding program under the Act rather than the NFU-O. The NFU-O is simply a “parallel corporation” required by provincial legislation. Section 130 makes it clear that, while Ontario law may require a “parallel corporation,” the NFU’s intention is to continue to operate as before by using its own regional network to make policy within the province.

(2) Incorporation of the NFU-O

The NFU-O was incorporated under Ontario law on May 9, 2002. This was just prior to the NFU-O’s initial application for accreditation, which was dismissed by the Tribunal in a decision dated July 30, 2002. The NFU-O was subsequently accredited by the Tribunal in a decision dated September 20, 2002.

The timing of the NFU-O’s incorporation, just a few months before the NFU-O’s initial application for accreditation, suggests that the NFU-O was incorporated to allow the NFU to access stable funding under the Act. The NFU had already been operating in Ontario for many years as NFU Region 3, so there was no apparent reason to set up a different farm organization under the NFU banner. However, the NFU would not have been able to meet the legislative requirement for incorporation under Ontario law because of its federal incorporation, even if it could meet the other requirements for accreditation that were in force at the time. NFU Region 3 would not have been able to meet the requirement for incorporation under Ontario law because it was not incorporated at all. One way around this problem was to incorporate a “parallel corporation,” the NFU‑O, to apply for accreditation under the Act. The NFU could then access stable funding through this “parallel corporation,” allowing the NFU to do indirectly what it could not do directly.

The Tribunal finds support for this interpretation in the evidence of Ann Slater, who testified on behalf of the NFU-O. At the time of the hearing, Ms. Slater was the regional coordinator for NFU Region 3 and a member of the NFU’s board of directors. She was also the president of the NFU‑O and served as the NFU-O’s Ontario coordinator (a title which is used interchangeably with “regional coordinator” in the NFU-O’s by-laws). Ms. Slater testified that the members of the NFU in Ontario were not looking to become a different organization in 2002, as they had a long history with the NFU. She also testified that the intention in 2002 was to keep the two organizations as one organization as much as possible, but on a legal basis they had to incorporate in Ontario. This evidence suggests that the NFU-O was incorporated to meet the legislative requirements for accreditation under the Act, but that the intention was for the NFU to continue to operate in Ontario as before.

Ms. Slater gave this evidence at the hearing on July 18, 2013. When the Tribunal sought to explore this evidence further at the continuation of the hearing on December 14, 2012, Ms. Slater refused to answer the Tribunal’s question as to why the NFU-O was incorporated. It is unfortunate that Ms. Slater refused to answer the Tribunal’s question, as she was in a position to provide the Tribunal with historical context that might have assisted the Tribunal in understanding the circumstances surrounding the incorporation of the NFU-O. Given Ms. Slater’s refusal to assist the Tribunal on this issue, the Tribunal draws the adverse inference that Ms. Slater’s evidence on this issue would not have assisted the NFU-O’s case.

(3) The NFU-O’s Corporate Structure

The NFU-O’s corporate structure gives the NFU significant authority and control over the NFU-O. For example, the NFU-O’s letters patent create a dual membership requirement between the NFU and the NFU-O:

Any member of the National Farmers Union resident in Ontario shall be a member of the corporation. No person shall be a member of the corporation who is not a member of the National Farmers Union.

This dual membership requirement is repeated, with some variation, in the NFU-O’s by-laws, which provide in section 4(1):

Any member of the National Farmers Union resident in Ontario who meets the qualifications for membership and has paid the designated membership fee shall be a member of the [NFU-O]. No person shall be a member of the [NFU-O] who is not a member of the National Farmers Union.

The effect of these provisions is that only members of the NFU can be members of the NFU-O. This ensures a level of conformity between the NFU and the NFU-O. For example, it would prevent the NFU-O from acquiring members who are not members of the NFU and who may wish to take the NFU-O in a different direction than the NFU. The Tribunal heard evidence that the membership lists of NFU Region 3 and the NFU-O are identical, which is the expected outcome of the dual membership requirement described above.

In addition to the dual membership requirement, the structure of the NFU-O’s board of directors gives the NFU significant authority and control over the NFU-O. Section 6(1) of the NFU-O’s by-laws provides that the NFU’s board of directors, known as the “regional council,” consists of eight directors who are elected at the NFU-O’s annual general meeting. Of those eight directors, five are required by section 6(2) of the NFU‑O’s by-laws to hold official positions with the NFU. Three (including the Ontario coordinator, who is also the president of the NFU-O) are required to be directors of the NFU. The other two are required to be members, respectively, of the NFU’s Youth Advisory Committee and the NFU’s Women’s Advisory Committee. The effect of section 6(2) is that NFU directors and officials hold five of the eight positions on the NFU-O’s board, which gives the NFU majority control on the NFU-O’s board.

It is important to note that, at the board level, the relationship between the NFU and the NFU-O is asymmetrical. While NFU directors and officials hold the majority of the seats on the NFU-O’s board, Ms. Slater testified that the NFU-O does not have majority influence on the NFU’s board. The practical result is that the majority of the persons entitled to vote at meetings of the NFU-O’s board owe legal duties of loyalty and good faith not only to the NFU-O but also to the NFU. This gives the NFU a high level of assurance that the NFU‑O will act in a manner consistent with the NFU’s corporate interests. The opposite does not hold true, however, as only a minority of the persons entitled to vote at meetings of the NFU’s board owe legal duties of loyalty and good faith to the NFU-O. This places the balance of power firmly in the hands of the NFU.

Even if the directors of the NFU-O were to revolt against the NFU, the NFU would still be firmly in control. Section 16 of the NFU’s by-laws gives the NFU’s board of directors the power to expel any member of the NFU who acts contrary to the NFU’s by-laws. The effect of such an expulsion for an NFU member in Ontario would be that the member would be ineligible for membership in the NFU-O. This follows from the dual membership requirement set out in the NFU-O’s letters patent and by-laws, which provides that no person shall be a member of the NFU-O who is not a member of the NFU. As the right to hold elected office is a right of membership (as per section 4(4) of the NFU-O’s by-laws), a director or officer who is ineligible for membership in the NFU‑O can no longer hold office. These provisions give the NFU ultimate authority and control over the NFU-O by effectively allowing the NFU to expel any dissenting member of the NFU-O, including a director or officer, who refuses to comply with the NFU’s by-laws. It is a powerful remedy held exclusively by the NFU.

The structure of the NFU-O’s board of directors raises a number of practical concerns. For example, section 38 of the NFU’s by-laws provides that the NFU directors and officials who sit on the NFU-O’s board are to be elected at the annual convention of NFU Region 3. This conflicts with section 6(2) of the NFU-O’s by-laws, which provides that all of the NFU-O’s directors are elected at the annual general meeting of the NFU-O. Although the NFU Region 3 convention and the NFU-O’s annual general meeting are held on the same date, as required by section 9(1) of the NFU-O’s by-laws, it is not clear from either set of by-laws which election goes first or which election prevails in case of a conflict. The latter issue is of particular concern because NFU Region 3 and the NFU-O have different voting structures which could lead to conflicting election results. NFU Region 3 uses a direct voting system, in which each member of a farm family (including spouses and dependent children aged 14 to 21) is entitled to vote. The NFU-O, on the other hand, uses a delegate system at its annual general meeting, and the delegates are elected using a voting system in which each farm family has a single vote.

There is a similar potential for conflict with respect to the regional coordinator for Ontario, who is also the president of the NFU-O. Section 45 of the NFU’s by-laws provides that the executive of the NFU appoints a member of its board from each region to serve as the regional coordinator for that region. This conflicts with section 6(2) of the NFU-O’s by-laws, which provides that the Ontario coordinator (a title which is used interchangeably with “regional coordinator” in the NFU-O’s by-laws) is elected by the delegates at the NFU‑O’s annual general meeting.

The Tribunal has previously expressed concern (in a decision dated May 23, 2012) that the choice of regional coordinator at the NFU-O’s annual general meeting may conflict with the choice of the NFU’s executive, as appears to have occurred in 2011. Although the events in 2011 occurred under the NFU-O’s previous by-laws, the potential for conflict remains under the NFU-O’s current by-laws so long as the NFU retains the power under its by-laws to appoint the regional coordinator. When the Tribunal asked Ms. Slater what would prevent the situation that occurred in 2011 from arising again, Ms. Slater said that there was a better understanding of the organization in Ontario and nationally and that there had been solid discussions within the membership about this issue. She acknowledged, however, that the situation could arise again, at one point saying “never say never” in response to questions from the Tribunal.

It is not clear how such potential conflicts would be resolved in the future. It is clear, however, that the NFU-O’s corporate structure gives the NFU all of the authority and control that it needs to control the outcome, should it choose to do so.

(4) The Regional Coordinator

Section 46(a) of the NFU’s by-laws requires the regional coordinator to perform the duties assigned to the regional coordinator by the NFU’s executive. Similarly, section 46(b) of the NFU’s by-laws requires the regional coordinator to “convene meetings from time to time of the national board members and advisory members within the region to inform them and coordinate their activities in the general program of the union.” Given that the regional coordinator for Ontario is also the most senior official of the NFU-O, these provisions give the NFU significant authority and control over the NFU-O, particularly when the NFU effectively has the power to expel the regional coordinator from both the NFU and the NFU-O.

When the Tribunal asked Ms. Slater whether her duties as regional coordinator were assigned to her by the NFU’s executive, as contemplated by section 46(a) of the NFU’s by-laws, Ms. Slater answered “no.” However, when the Tribunal attempted to explore this issue further by asking whether this by-law was not being followed in practice, Ms. Slater refused to answer the question on the ground that the question was not relevant. The Tribunal draws the adverse inference that at least some of Ms. Slater’s duties are assigned to her by the NFU’s executive. If the situation were otherwise, it would have been a simple matter to confirm for the Tribunal that section 46(a) of the NFU’s by-laws was not being followed in practice.

There are other ways in which the NFU has authority and control over the regional coordinator. The Tribunal heard evidence, for example, that the regional coordinator’s salary in Ontario is paid by the NFU rather than by the NFU-O. This provides the regional coordinator with an economic incentive to carry out the wishes of the NFU in the regional coordinator’s capacity as a director and officer of the NFU-O. In addition, section 87 of the NFU’s by-laws requires all elected officers of the NFU (including the regional coordinator) to sign a declaration “pledging to faithfully discharge the duties of such office, to abide by the constitution, and to loyally support and further the interests of the union.” Although the regional coordinator, as a director and official of the NFU, would have those duties in any event as a matter of law, requiring the regional coordinator to sign this declaration makes it clear that the NFU expects the regional coordinator to serve the interests of the NFU. Ms. Slater confirmed that she had signed this declaration in favour of the NFU. She said that she had signed a similar declaration in favour of the NFU-O.

All of these provisions place the regional coordinator in a position in which conflicts of interest are almost certain to arise. As a director and official of the NFU, the regional coordinator owes legal duties of loyalty and good faith to the NFU. As a director and officer of the NFU-O, the regional coordinator owes legal duties of loyalty and good faith to the NFU-O. The fact that the NFU pays the regional coordinator’s salary, and has the ability to expel the regional coordinator from both the NFU and the NFU-O, gives the regional coordinator a strong incentive to resolve such conflicts in favour of the NFU.

In response to a question from the NFU-O’s counsel, Ms. Slater testified that she did not perceive any conflict of interest in carrying out her two roles because, in Ms. Slater’s view, in both cases she is representing farmers in Ontario. The Tribunal accepts the sincerity of Ms. Slater’s statement, but not her perception that there is no conflict of interest. To cite just one example, the Tribunal was provided with copies of various agreements (discussed below under the heading, “Agreements between the NFU and the NFU-O”) with respect to the sharing of revenues, the allocation of expenses, and the provision of services between the NFU and the NFU-O. To any disinterested observer, it would be obvious that the negotiation of such agreements would place the regional coordinator in a conflict of interest, as the interests of the two corporations are almost certain to diverge at some point during the negotiation.

(5) Locals

Section 66 of the NFU’s by-laws empowers the NFU’s executive to establish locals within each region. Section 67 of the NFU’s by-laws provides that the name and number of each local must be approved by the NFU’s executive, and further provides that the NFU’s executive will issue a charter of authority to each local. As noted earlier, section 130 of the NFU’s by-laws provides that “[w]here a region is participating in a provincial stable funding program, and a parallel organization/corporation is required by provincial legislation, the regional network (locals, districts, and region) shall continue to be the policy making body within the region.” It appears from these provisions that in Ontario, which has a stable funding program and a requirement for incorporation under Ontario law, the NFU continues to operate in the province using its own regional network. In Ontario, that regional network consists of NFU Region 3 and NFU locals, as the Tribunal was advised that the NFU does not have districts in Ontario.

The NFU-O’s by-laws also provide for the establishment of locals. Section 5(1) of the NFU-O’s by-laws provides that a local may be constituted by a group of ten or more members. Section 5(1) further provides that the geographic location and boundaries of each local will be designated by the regional council, which is the NFU-O’s board of directors. This parallel provision in the NFU-O’s by-laws raises an issue as to whether the NFU‑O’s locals operate separate and apart from the NFU’s locals or whether they are “parallel locals” that exist to meet the legislative requirements for accreditation under the Act (there are currently no such requirements with respect to locals, but such requirements did exist throughout the period that the NFU-O was accredited under the Act, and are scheduled to come back into force on November 22, 2013).

The documentary evidence before the Tribunal supports the conclusion that the locals operating in Ontario are NFU locals rather than NFU-O locals. This is consistent with the approach taken by the NFU at the regional level, in which NFU Region 3 continues to be the policy-making body and the NFU-O operates as a “parallel corporation” under the NFU’s by-laws. The Tribunal notes that almost all of the references to locals in the documentary evidence are to NFU locals, with only the occasional reference to NFU-O locals. In addition, the financial records before the Tribunal indicate that, when funds are disbursed to locals, in all but a handful of cases the cheques are made payable to NFU locals rather than to NFU-O locals.

The oral evidence on this issue was less clear than the documentary evidence. In most cases, the NFU-O’s witnesses failed to distinguish between NFU locals and NFU-O locals, referring to them simply as “locals” or as “the local organization.” In some cases, the witnesses referred to locals in terms that would suggest that the locals were NFU locals, but in other cases the terms used by the witnesses suggested that the locals might be NFU-O locals. There was no clear or consistent usage from which the Tribunal could determine, based on the oral evidence, whether the locals operating in Ontario are NFU locals or NFU-O locals.

The Tribunal sought to clarify this issue at the hearing on December 14, 2012, by asking Ms. Slater whether the procedure for establishing locals set out in section 67 of the NFU’s by-laws was the practice with respect to Ontario locals. Ms. Slater refused to answer the question on the ground that the question was not relevant. Given this refusal, and taking into account the documentary evidence before the Tribunal, which strongly suggests that the locals are NFU locals, the Tribunal finds on a balance of probabilities that the locals operating in Ontario are NFU locals and that the NFU-O’s locals operate as “parallel locals” to satisfy any applicable legislative requirements under the Act.

(6) Official Statements

The documentary evidence before the Tribunal includes a number of published statements made by officials of the NFU and the NFU-O. In the Tribunal’s view, these official statements reflect the NFU’s and the NFU-O’s considered views regarding the relationship between the NFU and the NFU-O. These statements contradict some of the oral evidence provided by the NFU-O, which appeared to be aimed at persuading the Tribunal that the NFU-O was an active, autonomous organization that enjoyed a significant degree of independence from the NFU. Given that these official statements were made before the NFU-O’s accreditation was at stake, the Tribunal prefers the documentary evidence described below to the oral evidence given at the hearing where the evidence conflicts on these issues.

The first official statement appears in the NFU’s audited financial statements for the year ended September 30, 2010. Those financial statements include a letter dated December 2, 2010, from Joan Lange, the NFU’s Director of Finance and Administration, addressed to the members of the NFU. In that letter, Ms. Lange advises:

Membership in NFU has always provided our organization with the resources to operate. For the year ended September 30, 2010, membership income increased by $59,665. This is due to a modest increase in membership and an increased membership fee through the stable funding program in Region 3.

This statement reinforces the view expressed in section 130 of the NFU’s by-laws that it is NFU Region 3 that participates in the stable funding program under the Act. It also indicates that, from the NFU’s point of view, the stable funding program in Ontario is a source of membership income for the NFU, even though the payments made by farmers under section 21 of the Act are required to be made to the NFU-O and not to the NFU. The NFU-O is not mentioned anywhere in Ms. Lange’s letter or in the NFU’s 2010 financial statements, which suggests that, from the NFU’s point of view, the NFU-O plays no significant role other than to provide the NFU with stable funding under the Act.

The NFU’s audited financial statements for the year ended September 30, 2012, also contain a letter to the NFU’s members from Ms. Lange. In that letter, dated November 22, 2012, Ms. Lange writes:

In Ontario, Region 3 of the NFU is accredited as a General Farm Organization (GFO) under the Ontario Farm Registration and Farm Organizations Funding Act. GFOs must undergo a review every three years and the latest review started in June, 2011. On May 23, 2012, all three general farm organizations applying were denied reaccreditation under the Act. As of the time of writing, the situation has not been resolved, and the status of the program for 2013 is still unclear. However, the Minister has committed to working with the GFOs to resolve this situation.

The Tribunal is surprised to find this statement in the NFU’s audited financial statements. The statement is clearly and demonstrably incorrect. The Tribunal has never accredited NFU Region 3, nor has NFU Region 3 ever sought accreditation from the Tribunal. The statement confirms, however, that as recently as November 2012 the NFU’s official view, as reflected in Ms. Lange’s letter, was that NFU Region 3, rather than the NFU-O, was accredited under the Act. There is no mention of the NFU-O in Ms. Lange’s letter or in the 2012 financial statements, which again suggests that, from the NFU’s point of view, the NFU‑O plays no significant role other than to provide the NFU with stable funding under the Act.

Perhaps the most significant official statement in the documents filed with the Tribunal is a letter from Ms. Slater entitled “Letter from the Region 3 Coordinator,” which is addressed to NFU Region 3 members and forms part of a notice of meeting for the NFU Region 3 annual convention and the NFU-O’s annual general meeting on March 17, 2012. Section 9(1) of the NFU-O’s by-laws requires the NFU-O’s annual general meeting to be held concurrently with the NFU Region 3 annual convention. Ms. Slater’s letter is important because Ms. Slater is not only a director and official of the NFU but also a director and the most senior official of the NFU-O.

In her letter, Ms. Slater states:

The debate and discussions on the relationships between the national organization, the provinces (or regions), and grassroots locals have been ongoing since well before the founding convention of the NFU in 1969. The decision by the National Farmers Union to seek accreditation, as a General Farm Organization (GFO) in Ontario in 2000 brought with it changes in the relationship between regions and the national organization. The efforts for the NFU to be accredited in Ontario were supported financially, and otherwise, by NFU members across Canada. Any changes made to the organizational structure, to allow the NFU to become an accredited general farm organization in Ontario, were made through our democratic process of resolutions and debates among members at conventions.

One of the hurdles that the NFU faced in becoming an accredited GFO was the definition of a member. The NFU has always considered a membership to be a farm family membership—this gives both spouses/partners and resident children, fourteen to twenty-one a vote at local meetings, at regional conventions, and at the national convention if they are local delegates. In my mind, this is a powerful recognition and acknowledgement of the contributions young people, men and women give to a family farm. This family farm membership is at the core of NFU values. It speaks volumes of our commitment to young farmers. It speaks volumes to our recognition of the equality of all people.

To become an accredited GFO in Ontario, the NFU was required to set up an Ontario-based corporation with its own set of Bylaws. To satisfy the interpretations of the tribunal, we were required to change our definition of a member within the NFU Ontario Bylaws. Under the NFU Ontario bylaws membership is a farm business membership, giving only one member of the farm business (family) a vote. This takes power away from young people who are an integral part of a family farm, and often takes power away from women.

As with all Region 3 Conventions/NFU Ontario Annual Meetings since 2002, when the concurrent Region 3 (Ontario) Convention/NFU Ontario Annual Meeting is held in Cobourg on March 17, the intent will be to run most of the meeting as a Region 3 convention. By running the meeting under the membership structure of the NFU Constitution, the full farm family will have the option to exercise their democratic power with a vote. Toward the end of the day, some farm family members will lose their power, when we take care of legal obligations during the NFU Ontario Annual Meeting.

This letter contains a number of surprising statements. First, the letter indicates that it was the NFU, rather than the NFU-O, that sought accreditation under the Act. Second, the letter suggests that it was the NFU, rather than the NFU-O, that was ultimately accredited under the Act. Third, the letter suggests that the NFU-O was incorporated in order to allow the NFU to become an accredited farm organization in Ontario, which provides further support for the Tribunal’s earlier conclusion that the NFU-O was incorporated to allow the NFU to access stable funding under the Act. Finally, the letter indicates that the meeting on March 17, 2012, will be run as a Region 3 convention and that the NFU‑O’s annual meeting will be held toward the end of the day to “take care of legal obligations.” This provides further support for the Tribunal’s earlier conclusion that the NFU’s intention was to continue to operate as before, with the NFU-O operating as a “parallel corporation” to meet the legislative requirements for accreditation.

Ms. Slater’s letter provides perhaps the clearest statement of the NFU’s views regarding the relationship between the NFU and the NFU-O. Given Ms. Slater’s position with the NFU-O, the letter also appears to reflect the views of the NFU-O. The underlying themes of Ms. Slater’s letter are (1) that the NFU is an accredited farm organization in Ontario, (2) that NFU Region 3 is the operating organization in Ontario, and (3) that the NFU-O exists to satisfy legal requirements so that the NFU can access stable funding under the Act. Those themes also appear in the other official statements described above. The Tribunal notes that it has never accredited the NFU, nor would the NFU qualify for accreditation given its extra-provincial incorporation. Cabinet has made it very clear, for as long as the Regulation has been in force, that it does not want extra-provincial corporations to be accredited under the Act. If Cabinet took a different view, it would have been a simple matter to amend or repeal section 5(1)2 (previously section 5(1)4) of the Regulation to remove the requirement for incorporation under Ontario law.

(7) Agreements between the NFU and the NFU-O

Not long after the NFU-O was first accredited in September 2002, the NFU and the NFU‑O entered into a memorandum of agreement governing the relationship between the two organizations (the “MOA”). Although the MOA is unsigned and undated, by its terms it came into force on January 1, 2003, for a period of three years. The NFU-O provided the Tribunal with minutes of various board meetings indicating that the MOA was extended in 2006 until March 15, 2009. For the period thereafter, the Tribunal was provided with an opinion in an e-mail dated July 23, 2011, from one Anders Bruun, who appears to be a lawyer, advising that the MOA “is clearly binding and in effect and will remain so until terminated in a proper manner.”

The Tribunal did not receive a copy of the MOA until part way through the hearing on July 18, 2012. It was one of the documents that caused the Tribunal concern about whether it was the NFU or the NFU-O that was representing farmers in the province of Ontario. The Tribunal was advised at the hearing on July 18, 2012, that the MOA was in the process of being renegotiated. The Tribunal therefore requested, in its Fourth Interim Order, “[c]opies of all agreements governing the relationship between the NFU, NFU Region 3, and the NFU-O.” This request was coupled with an order that “[i]f any of the requested documents are not provided, the NFU-O shall indicate why those documents are not being provided.”

In its written response to the Fourth Interim Order, the NFU-O advised the Tribunal, in part, as follows:

The Memorandum of Agreement submitted as Exhibit 4 on July 18, 2012 was replaced in November. On November 15, 2012, the NFU-O Regional Council approved a new Service Agreement with the NFU. On November 21, 2012 the NFU National Board approved the Service Agreement. Both sets of minutes, as well as, the Service Agreement are provided at Tab 8.

Tab 8 of the binder of documents filed by the NFU-O includes a document dated November 21, 2012, and described as a service agreement between the NFU and the NFU-O (the “Service Agreement”). The Service Agreement is signed by Ms. Slater on behalf of the NFU-O. It sets out how membership fees will be shared between the NFU and the NFU-O but does not include a number of provisions that were in the MOA and that caused the Tribunal concern. Some of those concerns were expressed by the Tribunal at the hearing on July 18, 2012.

At the hearing on December 14, 2012, the Tribunal asked questions about the Service Agreement. During this line of questioning, it became apparent to the Tribunal that there was another agreement between the NFU and the NFU-O that had not been provided in response to the Fourth Interim Order. When asked about this document, Ms. Slater said that it related to the NFU-O’s organizational relationships and that what the NFU-O thought was important was the services and the money, which are dealt with in the Service Agreement. Once the Tribunal learned of the other document, the Tribunal asked the NFU-O to produce it. The NFU-O’s counsel appeared not to have seen the document before, and the Tribunal therefore allowed counsel to review the document privately with his client. After that discussion, the document was provided to the Tribunal and marked as an exhibit. The document is entitled “Memorandum of Agreement between the National Farmers Union and the National Farmers Union - Ontario” (the “Amended MOA”). Like the Service Agreement, it is dated November 21, 2012, and is signed by Ms. Slater on behalf of the NFU-O. The Amended MOA states in the heading: “This document governs the relations between the National Farmers Union (“NFU”) and the National Farmers Union - Ontario (“NFU-O”).”

The Amended MOA clearly fell within the scope of the Tribunal’s request for “[c]opies of all agreements governing the relationship between the NFU, NFU Region 3, and the NFU-O.” This is obvious both from the heading and from the contents of the document. While the Fourth Interim Order did not require this document to be provided to the Tribunal, it did require the NFU-O, at a minimum, to identify the document to the Tribunal and to indicate why the document was not being provided. There can be no issue that the NFU-O understood this obligation because it followed the procedure set out in the Fourth Interim Order for other documents that were requested by the Tribunal but not provided by the NFU-O.

The Tribunal considers the failure to identify the Amended MOA in the NFU-O’s response to the Fourth Interim Order and to provide a reason for not disclosing the document to be a serious breach of the Tribunal’s order. The Tribunal is satisfied that the NFU-O’s counsel was not aware of the Amended MOA at the time, and this criticism is therefore not directed at the NFU-O’s counsel, who was professional in all of his dealings with the Tribunal.

The Amended MOA and the Service Agreement, taken together, are essentially the same as the original MOA but with some modifications. They govern all of the essential aspects of the relationship between the NFU and the NFU-O. For the purposes of these reasons for decision, the Tribunal will address the Amended MOA and the Service Agreement, which are currently in force, but will refer back to the MOA where appropriate.

The Amended MOA gives the NFU significant legal and administrative authority and control over the NFU-O. Among other things:

1. Part A, section 1 grants the NFU-O a licence to use the name “National Farmers Union - Ontario” at the pleasure of the Board of the NFU so long as the NFU-O abides by the terms and conditions of the Amended MOA;

2. Part A, section 2 requires the NFU-O to strive to make its by-laws consistent and compatible with the NFU’s constitution and by-laws;

3. Part A, section 3 requires the NFU-O to specify in its by-laws that “[a]ll NFU members residing in Ontario shall be members of the NFU-O, and all members of the NFU-O shall be NFU members”;

4. Part A, section 5 requires the NFU-O’s objects, as set out in its letters patent and by-laws, to be “those of the NFU Region 3 in Ontario”;

5. Part A, section 6 provides that “[t]he By-laws of the NFU-O shall specify that the NFU-O shall be governed by a Regional Council of eight directors which includes the Region 3 Youth Advisory member, the Region 3 Women’s Advisory member, and the Region 3 NFU board members.” This section goes on to provide that “[t]he remainder of the NFUO [sic] Regional Council shall consist of NFU Region 3/NFU-O members elected by NFU Region 3/NFU-O members”;

6. Part A, section 7 provides that “[t]he By-laws of the NFU-O shall specify that the management committee of the NFU-O shall be made up of four elected officials of the NFU’s Region 3”;

7. Part A, section 8 provides that “[m]ember participation in the annual National Convention of the NFU, in Region 3 conventions, at other regional meetings and at local levels shall be governed according to the Constitution of the NFU”; and

8. Part C, section 1 provides that “[w]ithin the province of Ontario, Region 3 of the NFU shall be responsible for policy development.” This section goes on to state that “[a]t all times, the policy of NFU-O shall be identical to the Policy Statement of the National Farmers Union and the policy developed by NFU Region 3.”

These provisions effectively strip the NFU-O of its autonomy and place the NFU-O squarely under the authority and control of the NFU. The NFU-O can only use its corporate name at the pleasure of the board of directors of the NFU. It cannot enact corporate by-laws that suit its own purposes but instead must strive to make its by-laws consistent with the NFU’s by-laws. The NFU-O is required to include a dual membership requirement in its by-laws, under which it is impossible for the NFU-O to have members who are not also members of the NFU. The NFU-O is required to make its corporate objects the same as the objects of NFU Region 3, which is part of the NFU. The NFU-O is required to structure its board of directors in such a way that five of the eight directors of the NFU-O are either directors or officials of the NFU. In addition, all four members of the NFU-O’s management committee are required to be elected officials of NFU Region 3 (this requirement does not appear to have been implemented yet in the NFU-O’s by-laws). All meetings within the region are to be governed by the NFU’s constitution. In all matters of policy, the NFU-O is required to make its policy identical to the policy of the NFU and NFU Region 3. These provisions effectively shackle the NFU-O to the NFU.

Notwithstanding these onerous provisions, set out in an agreement freshly renegotiated between the NFU and the NFU-O, Ms. Slater sought to persuade the Tribunal that the NFU-O has an active board of directors that implements policy in Ontario. She testified that policy resolutions are discussed at NFU Region 3 meetings, and the NFU-O in every case accepts those decisions. Once the policy decisions have been made, however, Ms. Slater said that the board of directors of the NFU-O implements the policy. She went on to say that the board of directors of the NFU-O is the only body that acts on behalf of the NFU in Ontario.

Ms. Slater’s evidence on this issue appears to conflict with the NFU’s by-laws. For example, section 38(a) of the NFU’s by-laws provides that the purpose of the NFU’s regional convention is, among other things, to “[d]evelop strategy and action on matters concerning the members residing in the region which is consistent with national policy.” Similarly, section 46(b) of the NFU’s by-laws provides that “[i]t shall be the duty of the regional coordinator to convene meetings from time to time of the national board members and advisory members within the region to inform them and coordinate their activities into the general program of the union.” These provisions suggest that it is the NFU’s regional network that sets and implements policy within Ontario. When the Tribunal asked Ms. Slater whether she carries out the duties set out in section 46(b) of the NFU’s by-laws, she said that she did carry out those duties but on behalf of the NFU-O.

In order to achieve some clarity on this issue, the Tribunal asked the NFU-O at the hearing on December 14, 2012, to produce copies of the minutes of the NFU-O’s board meetings for the preceding year. The Tribunal heard evidence that the NFU-O’s board meets every other week by conference call and that minutes are kept of those meetings, averaging 4-5 pages per meeting. In the Tribunal’s view, these minutes are necessary to determine the scope of the NFU-O’s activities, as opposed to NFU Region 3’s activities, which in turn would assist the Tribunal in determining whether it is the NFU or the NFU‑O that represents farmers in the province. In the Tribunal’s view, a year’s worth of minutes would provide the Tribunal with a reasonable snapshot as to how the NFU-O’s board operates over a period of time. The NFU-O refused to provide the minutes requested by the Tribunal, on the grounds that they were not relevant and that they were beyond the purview of the Tribunal. Counsel for the NFU-O said, with respect to these minutes, that if an adverse inference was going to be made that the NFU-O would not be accredited if it failed to provide these documents, his client was prepared to accept that outcome. The Tribunal draws the adverse inference that the minutes would not support Ms. Slater’s evidence and that it is the NFU’s regional network that both sets and implements policy in Ontario, in accordance with the NFU’s by-laws.

The Amended MOA also gives the NFU significant financial authority and control over the NFU-O:

B. Financial:

1. Region 3 (Ontario) Basic Farm Family membership fees and Farm Business Registration (FBR) payments (if applicable) will be forwarded to the NFU-O for deposit into an NFU-O bank account administered by a designate of the NFU-O Regional Council and a designate of the NFU board. Withdrawals from the NFU-O bank account shall be made by cheque only and will be allocated to the NFU and the NFU-O in accordance with the service agreement between NFU and NFU-O. Each cheque shall be co-signed by one person designated by the NFU-O and one person designated by the NFU. Signers on the NFU-O operating account will be designated by the NFU-O Regional Council.

2. All membership fees will be shared according to the service agreement whether the member has joined the NFU directly as a basic farm family member or through the FBR program. Revenue sharing will be applicable as long as the NFU-O is participating in a provincial stable funding program or if membership is [sic] Region 3 is over 750 members.

3. The NFU and NFU-O agree to freely share financial information. NFU-O agrees to recommend by resolution at its AGM to engage the auditor selected by the NFU at the Annual Convention of the NFU.

4. Nothing in this agreement will prevent the national board from expending other funds in Region 3 as may be determined from time to time by the NFU board, or the NFU-O from designating other funds to the NFU budget as may be determined by the Regional Council of NFU-O.

Section 1 above requires the NFU-O to hold the funds received under section 21 of the Act in a bank account administered jointly by a designate of the NFU and a designate of the NFU-O. Withdrawals from that account are to be made by cheque co-signed by a designate of the NFU and a designate of the NFU-O. This gives the NFU effective control over the stable funding received by the NFU-O under the Act, even though that funding belongs entirely to the NFU-O under the legislative scheme. The Tribunal finds it surprising, to say the least, that the NFU would have any control over these funds.

Section 2 above provides that membership fees will be shared according to the Service Agreement, which is further discussed below. Section 3 requires the NFU-O to share financial information with the NFU and to recommend the appointment of the NFU’s auditor at the NFU-O’s annual general meeting. This section allows the NFU to monitor the NFU-O’s finances and to provide consistent accounting between the two organizations. Section 4 is effectively an override clause that allows the NFU and the NFU-O to override the provisions of the Service Agreement. The override is asymmetrical, however, as the NFU is allowed to expend other funds in Region 3, which is part of the NFU, whereas the NFU-O is allowed to designate other funds to the NFU’s budget.

The Service Agreement provides for the disposition of the funds received by the NFU-O pursuant to Part B, section 1 of the Amended MOA. As noted above, these funds consist of “Region 3 (Ontario) Basic Farm Family membership fees and Farm Business Registration (FBR) payments.” The NFU-O’s evidence was that, as of May 23, 2012, the NFU-O had 2,247 farm business registration members and only 58 direct members, so as a practical matter the funds being divided between the NFU and the NFU-O under the Service Agreement are primarily funds received by the NFU-O under section 21 of the Act.

The Service Agreement provides that, after making deductions for Agricorp’s administration fee, the payment to the eligible francophone organization under sections 12 and 13 of the Act, and the payment of refunds requested under sections 21(7) and 21(8) of the Act, 50% of the remaining funds after taxes will be allocated to the NFU and 50% will be retained by the NFU-O. The Service Agreement states that the funds received by the NFU under the Service Agreement will be used to provide the following services:

• $12,000 share of Regional Office Administrator’s salary

• 1200 [sic] NFU-O office photocopier

• $4600 NFU-O/Region 3 newsletters

• payroll services for NFU-O staff

• regional coordinator’s salary

• handling of membership fees, maintenance of database and membership cards

• costs for national officials and national staff to visit Ontario, attend Region 3 conventions and other meetings

• drafting, editing and distribution of press releases and briefs in consultation with NFU-O Regional Council

• Union Farmer Quarterly and Union Farmer Monthly, including Ontario content when possible

• maintenance of national website, including Ontario page

• national convention and speakers

• national and international lobbying and policy-related work

• special national events/activities

• IPC and Via Campesina work

• NFU board email, NFU board travel to national meetings, minutes of NFU board and executive meeting to Ontario board members, NFU policy books, Constitution and Bylaws of NFU

The Service Agreement states that the NFU-O will use the funds retained by it to provide the following services:

• designation of 25% of total membership fee, after taxes, to the member’s local, if such a local is established in his or her county/region

• support to Region 3 locals

• balance of Regional Office Administrator’s salary and expenses

• NFU-O monthly newsletter, additional regional newsletters and communication material for members, locals and public

• Regional Council expenses

• membership recruitment

• regional organizing/education/events/activities

• region 3 convention/NFU-O AGM expenses and speakers

• provincial lobbying and policy-related work

• NFU-Ontario website maintenance

• distribution of Ontario e-news

This allocation of services gives the NFU significant authority and control over the NFU‑O. For example, Ms. Slater, as regional coordinator, is paid by the NFU and not by the NFU-O. As noted earlier, this arrangement gives Ms. Slater an economic incentive to carry out the wishes of the NFU in her capacity as a director and officer of the NFU-O. With respect to Ms. Bakker, the NFU-O’s office administrator, the NFU funds a significant portion of her salary and issues her paycheque. The NFU maintains the membership database and handles the issuance of membership cards. This gives the NFU significant authority and control over membership in the organization, including membership in the NFU-O.

The lists of services to be provided by the NFU and the NFU-O under the Service Agreement significantly blur the lines between the NFU and the NFU-O. For example, some of the services to be provided by the NFU, such as paying for national officials and staff to attend Region 3 conventions, benefit the NFU. Other services, such as providing the NFU-O with a photocopier, benefit the NFU-O (assuming that the photocopier is used for NFU-O rather than NFU Region 3 business). Similarly, some of the services to be provided by the NFU-O, such as paying for NFU-O publications and the NFU-O website, benefit the NFU-O. Other services, such as providing support to NFU Region 3 locals, benefit the NFU. Fully half the funds retained by the NFU-O (25% of the total membership fees, after taxes and deductions) are required to be paid to the members’ locals. If, as the Tribunal concluded earlier, the locals operating in Ontario are NFU locals, then an additional 25% of the funds received by the NFU-O under section 21 of the Act (after taxes and deductions) goes to the benefit of the NFU.

Under the old MOA, the 25% payment to locals was deducted from the total membership fees before those fees were divided by the NFU and the NFU-O. The remaining funds, after taxes and deductions, were then split 75% to the NFU and 25% to the NFU-O. This arrangement gave the NFU 75% of the 75% that was left after the 25% payment to locals was made, or approximately 56% of the total. It appears that the Amended MOA and the Service Agreement will leave some additional funds in the hands of the NFU-O, as the NFU now only gets 50% of the total funds received (after taxes and deductions) rather than the approximately 56% that it received under the old MOA. Under both the old MOA and the Amended MOA, however, approximately 25% of the total funds received by the NFU-O under section 21 of the Act goes to locals that the Tribunal has concluded are NFU locals, so the NFU still receives the majority of the funds, directly or indirectly. In addition, as noted earlier, the parties have inserted an override clause into the Amended MOA, which allows the NFU-O to provide additional funds to the NFU. It remains to be seen whether the NFU-O chooses to exercise this clause and whether, if it does, there is any change in the percentage of funds transferred to the NFU by the NFU‑O.

(8) The NFU’s Financial Statements

The NFU’s audited financial statements for the year ended September 30, 2012, indicate that the NFU had membership income (excluding voluntary contributions) of $420,301, of which $240,560 or 57.2% came from NFU Region 3 (which, as noted earlier, the NFU considers to be participating in the stable funding program under the Act even though the payments under section 21 of the Act are made to the NFU-O). The financial statements do not indicate what portion of the contribution from NFU Region 3 came from farming business registration payments under section 21 of the Act as opposed to direct membership fees. As noted earlier, however, as of May 23, 2012, the NFU-O had 2,247 farming business registration members and only 58 direct members, so it is reasonable to conclude that the overwhelming majority of these funds came from payments made under section 21 of the Act. This conclusion is supported by the following notes appearing in the NFU’s financial statements under the heading “Contingency”:

During 2011 the regular review of the accreditation of general farm organizations under the Ontario Farm Registration and Farm Organizations Funding Act, 1992 [sic] was initiated.

The revenue of Region 3 generated by the registration fee required by the Farm Business Registration program consists of a significant percentage of this organization’s membership fees.

To date the review has not been completed and at present without a decision by the Province of Ontario, the future financial impact of the review on this Organization cannot be reasonably estimated.

This note confirms that the NFU and its auditors consider the funds received by the NFU‑O under the Act to be revenue of NFU Region 3, which is part of the NFU. The note also confirms that the funds received by the NFU-O under the Act constitute a significant percentage of the NFU’s membership fees.

Although the MOA, which was in force at the time of these financial statements, contemplated that the NFU would provide services to the NFU-O, the Tribunal heard evidence that no accounting records are kept of the value of any of the services provided by the NFU to the NFU-O. There is no record in the NFU’s 2012 financial statements of any payments made or services provided to the NFU-O. The financial statements do disclose direct regional expenses of $18,333 to NFU Region 3 and operational expenses of $16,408 to the regional coordinator for NFU Region 3.

The NFU’s financial statements for the 2011 fiscal year show a similar pattern. Excluding voluntary contributions, the 2011 financial statements indicate that NFU Region 3 generated $265,859 or 57.0% of the NFU’s $466,093 in membership income for the year (even though those funds came from the NFU-O). The financial statements do not disclose any payments made or services provided to the NFU-O but do disclose direct regional expenses of $18,468 to NFU Region 3 and operational expenses of $16,257 to the regional coordinator for NFU Region 3.

The NFU’s financial statements for the 2010 fiscal year do not provide a breakdown of membership income by region. As for expenses, they do not disclose any payments made or services provided to the NFU-O but do disclose direct regional expenses of $13,558 to NFU Region 3 and operational expenses of $16,701 to the regional coordinator for NFU Region 3.

These financial statements disclose that almost 60% of the NFU’s membership income comes from the NFU-O (although the financial statements erroneously indicate that these funds come from NFU Region 3). However, there is no way to determine from these financial statements how much of that funding, if any, goes back to the NFU-O in the form of payments or services that benefit the NFU-O (as opposed to NFU Region 3, which is part of the NFU).

(9) The NFU-O’s Financial Records

The NFU-O’s audited financial statements for the year ended September 30, 2012, were still being prepared by the date of the hearing on December 14, 2012, and are therefore not in evidence. The Tribunal did review the NFU-O’s audited financial statements for the 2011 and 2010 fiscal years in order to compare them to the NFU’s audited financial statements for the same periods.

The NFU-O’s audited financial statements for the 2011 fiscal year disclose that the NFU‑O had net membership revenue (after refunds under sections 21(7) and 21(8) of the Act) of $471,510, of which the NFU-O paid $245,970 or 52.2% to the NFU (which is 92.5% of the membership income, excluding voluntary contributions, recorded by the NFU from Region 3 in the same fiscal year). The NFU-O paid $135,432 or 28.7% of its net membership revenue to local affiliates, presumably in order to comply with section 5(1)12 of the Regulation (as it then was), which required a 25% contribution to local affiliates, calculated in accordance with the Regulation. The NFU-O had additional expenses of $122,241 for advertising, the Agricorp administration fee, amortization, bank charges, interest, books, regional council expenses, payments to the eligible francophone organization under the Act, rent, local support, office expenses, organization, planning, professional fees, travel, conventions, trade shows, wages, and benefits. The financial statements do not indicate what services, if any, the NFU-O received from the NFU during the fiscal year, nor do they indicate whether any of the expenses paid by the NFU‑O were for the benefit of the NFU or NFU Region 3.

The NFU-O’s audited financial statements for the 2010 fiscal year are similar to its financial statements for the 2011 fiscal year. In 2010, the NFU-O had net membership revenue (after refunds) of $471,765, of which the NFU‑O paid $242,892 or 51.5% to the NFU. The NFU-O paid $86,062 or 18.2% of its net membership revenue to local affiliates, which appears on its face to be less than what was required under section 5(1)12 of the Regulation at the time. The NFU-O had additional expenses of $131,604 allocated to the same categories as in the 2011 fiscal year. The financial statements do not indicate what services, if any, the NFU‑O received from the NFU during the fiscal year, nor do they indicate whether any of the expenses paid by the NFU-O were for the benefit of the NFU or NFU Region 3.

These financial statements disclose that, during the 2011 and 2010 fiscal years, the NFU‑O paid more than half of its net membership revenue to the NFU. Substantially all of those funds came from payments received by the NFU-O under section 21 of the Act. Of the funds retained by the NFU-O, the biggest share was paid to local affiliates, which the Tribunal has concluded are NFU locals. The balance of the funds was used to pay a variety of expenses, with no clear indication whether those expenses were for the benefit of the NFU or the NFU-O.

The NFU-O has two bank accounts with Kawartha Credit Union. One of those accounts (the “983 account”) is in the name of “National Farmers Union Ontario,” according to the bank statement provided for this account. The Tribunal was advised that this account receives the funds paid to the NFU-O under section 21 of the Act, less Agricorp’s administration fee. A portion of those funds are then paid to the NFU out of the same account. This account showed only a minimal balance and no transactions during the month of October 2012, which was the period covered by the bank statement filed with the Tribunal.

There was conflicting evidence with respect to how funds are withdrawn from the 983 account. The Amended MOA requires all cheques on this account to be co-signed by a designate of the NFU (there was a similar provision in the original MOA). However, Ms. Bakker testified at the hearing on July 18, 2012, that, while two signatures were required on each cheque, it was not necessary for one of the signers to be a designate of the NFU. It was not clear from Ms. Bakker’s evidence whether she was referring to the bank’s requirements for signatures on cheques drawn on this account or whether she was indicating that the requirements set out in the Amended MOA and its predecessor were not being followed in practice. In order to clarify this issue, the Tribunal ordered the NFU-O in its Fourth Interim Order to provide a list of signing authorities over the NFU-O’s bank accounts. Although the NFU-O provided the required list, it was not clear from that list who had signing authority on behalf of which organization. When the Tribunal asked the NFU-O at the hearing on December 14, 2012, to indicate which persons on the NFU-O’s list had signing authority on behalf of which organization, the NFU-O refused to answer the Tribunal’s question on the ground that the question was not relevant. This refusal suggests that the information requested by the Tribunal, if provided, would not assist the NFU-O’s case. To the extent that Ms. Bakker’s evidence conflicts with the Amended MOA and its predecessor, the Tribunal prefers the documentary evidence on this issue, as the Amended MOA was just recently renegotiated and, in the Tribunal’s view, reflects the parties’ considered intention that all withdrawals from the 983 account must be co-signed by a designate of the NFU.

The NFU-O’s other account (the “727 account”) is in the name of “National Farmers Union, Region 3/NFU-Ontario” according to the bank statements provided to the Tribunal. However, the cancelled cheques that were provided for this account list the NFU-O as the account holder. The Tribunal heard evidence that this account is owned by the NFU-O, notwithstanding that the account statements indicate NFU Region 3 as an owner of the account. The NFU-O’s evidence is that the 727 account is the NFU-O’s operating account and that funds for the NFU-O are transferred to the 727 account from the 983 account.

A review of the bank statements and cancelled cheques for the 727 account for the months of August, September, and October 2012 indicates that the 727 account was used to make a variety of payments, including payments to the NFU, local affiliates, the eligible francophone organization under the Act, various government agencies, individuals receiving refunds of their farming business registration payments, and to pay rent and other office expenses. One of the cheques to the NFU indicates that it is to reimburse the NFU for “ROA salary,” which appears to be a reference to Ms. Bakker’s salary as the regional office administrator. There is a payment in July 2012 to the NFU of $10,920.00 for “membership services.” The NFU-O refused to explain what this payment was for, on the ground that the question was not relevant. Of the twenty-one payments to local affiliates during the months in question, seventeen are made payable to NFU locals and four are made payable to NFU-O locals. The Tribunal referred to this evidence earlier in concluding that the locals in Ontario are NFU rather than NFU-O locals.

The NFU-O’s credit card account is in the name of “National Farmers Union - Ont,” according to the statement provided to the Tribunal. That statement indicates that the NFU-O made several minor purchases in November 2012, one of which appears to be in payment of the NFU-O’s telephone bill. The NFU-O’s telephone bill is in the name of “National Farmers Union” according to the most recent telephone bill provided by the NFU-O.

As noted earlier, Ms. Bakker’s employment agreement and related documents were sealed by the Tribunal. Accordingly, the Tribunal will not disclose any details regarding Ms. Bakker’s salary, hours of work, benefits, severance policies, termination policies, or similar provisions in Ms. Bakker’s employment agreement that could be used to her prejudice in negotiating with other employers. At a general level, the employment agreement indicates that Ms. Bakker holds the position of “Regional Office Administrator.” The employment agreement provides that Ms. Bakker’s employment is with the NFU-O but that her paycheques will be issued by the NFU. Ms. Bakker’s pay stub for her most recent pay period confirms that the paycheque was issued by the NFU. The employment agreement incorporates by reference a revised personnel policy for the NFU-O, which indicates that the NFU-O will pay the required employer remittances and that the NFU will make the required source deductions from Ms. Bakker’s paycheque. The employment agreement is signed by Ms. Slater on behalf of the NFU-O.

Attached to the employment agreement is a job description for Ms. Bakker’s position, which provides, in part:

• Receive and respond to requests of a membership nature from members, locals, prospective members and regional council, including providing up-to-date membership lists to locals.

• Assist with planning, organization and execution of meetings, special events and Region 3 Convention. Provide assistance, as necessary, for National Activities in Ontario including the National Convention, National Official tours and meetings of the youth, international and women’s programs.

• Be the contact point for Agricorp, in relation to the Farm Business Registration program.

• Maintain an ongoing record of NFU activities in Ontario, including within locals, to be used for re-accreditation hearings. Prepare material for re-accreditation hearings, as needed.

• Help facilitate NFU representation at events, meetings and trade shows.

• Ensure the NFU Ontario website is current, accurate and functioning. Work with the national office to update the Region 3 pages on the national website.

• Work from home office or NFU office in Guelph.

As with the lists of services in the Service Agreement, there is considerable blurring of the lines between the NFU and the NFU-O in the regional office administrator’s job description. Some of the duties listed, such as assisting with the Region 3 Convention, are clearly for the benefit of the NFU. Other duties, such as preparing materials for re-accreditation hearings, appear at least nominally to be for the benefit of the NFU-O (keeping in mind that more than half of the funds received by the NFU-O under the Act are paid to the NFU, with an additional 25% or so being paid to NFU locals). The Tribunal notes that, in preparing materials for re-accreditation hearings, the regional office administrator is required to maintain an ongoing record of NFU activities in Ontario, which again suggests that the NFU, through NFU Region 3, is the operating entity in Ontario. The Tribunal also notes that the office in Guelph, for which the NFU-O pays rent, is described as the “NFU office.”

(10) Conduct of Meetings

As noted earlier, the NFU-O’s by-laws require the NFU-O to hold its annual general meeting in Ontario concurrently with the NFU’s Region 3 convention. The 2012 NFU Region 3 convention and NFU-O annual general meeting were held on March 17, 2012. Prior to that event, a notice of meeting was sent out on the letterhead of NFU Region 3, indicating an office address in Guelph and a national office address in Saskatoon. The document bears the heading “NFU Region 3 Newsletter and Call to Convention, February, 2012”. The document indicates that the “2012 Region 3 (Ontario) Convention/NFUO Annual Meeting” will be held on Saturday, March 17, 2012, from 8:30 a.m. to 4:30 p.m. at the Columbus Community Centre in Cobourg.

The notice of meeting includes a section entitled, “How is your membership fee allocated within the NFU?” The title of this section suggests that the NFU is the operating organization in Ontario and that the stable funding under the Act is for the benefit of the NFU. This section discloses that, out of the $195 paid to Agricorp (this payment is described as being for “NFU Membership”), $10.06 goes to pay the Agricorp administration fee, $2.92 goes to the eligible francophone organization under the Act, $48.75 is paid to locals, $33.32 is allocated to “Region 3 (Ontario),” and $99.95 is allocated to the national office. When asked why the $33.32 is allocated to Region 3 (Ontario) rather than to the NFU-O, Ms. Bakker advised the Tribunal that this money went into the NFU-O’s bank account. The use of the term “Region 3 (Ontario)” to describe what is left of the NFU-O’s stable funding after deducting payments to Agricorp, the eligible francophone organization, the NFU, and locals (which the Tribunal has concluded are NFU locals) supports the inference that those funds are used, at least in part, to benefit NFU Region 3. For example, one of the uses of the funds described in this section is “expenses to represent the NFU at meetings and events with government, the public or other organizations.” This description supports the inference that the NFU is the operating organization in Ontario and that funds allocated to the NFU-O under the Amended MOA and its predecessor are being used for the benefit of the NFU.

The notice of meeting includes the letter to members from Ms. Slater quoted earlier, in which Ms. Slater advises that “[a]s with all Region 3 Conventions/NFU Ontario Annual Meetings since 2002, when the concurrent Region 3 (Ontario) Convention/NFU Ontario Annual Meeting is held in Cobourg on March 17, the intent will be to run most of the meeting as a Region 3 Convention.” This intention is reflected in the minutes of the meeting, which disclose that the meeting commenced at 9:00 a.m. and was run as a NFU Region 3 convention for 6½ hours until 3:30 p.m., at which point the NFU Region 3 convention was recessed. At 3:45 p.m., the NFU-O annual general meeting commenced, and it was completed in 40 minutes, ending at 4:25 p.m. At that point, the NFU Region 3 convention was reconvened for 5 minutes, after which the meeting was adjourned at 4:30 p.m.

As noted earlier, Ms. Slater’s letter described the NFU-O portion of the meeting as “[taking] care of legal obligations.” During that portion of the meeting, all of the policy resolutions debated and adopted individually during the NFU Region 3 portion of the meeting were adopted as a block on a single motion at the end of the NFU-O meeting, with no meaningful opportunity for NFU-O delegates to debate the policy resolutions one at a time or to take a different policy position from the NFU. The Tribunal notes that the MOA that was in effect at the time required the NFU-O’s policy to be “identical to the policy developed by NFU Region 3.” The Amended MOA, which is currently in force, has a similar clause that requires the NFU-O’s policy to be identical to the policy developed by NFU Region 3 and to the policy statement of the NFU. These provisions, and the way they are exercised by the NFU and the NFU-O, effectively strip the NFU-O of its autonomy to develop its own policy and place the NFU-O under the authority and control of the NFU.

The notice of meeting for the NFU Region 3 convention and the NFU-O annual meeting in March 2012 includes a report from the chair of the by-law review committee. This committee was struck in November 2011 pursuant to a resolution that provides, in part:

Therefore be it resolved that the NFU Region 3 elect a five-member committee to review the NFUO Bylaws with the intent to:

1. strengthen both Region 3 (Ontario) and the national organization so that we can enhance our ability to work together to address the issues of concern to Ontario family farmers;

2. review the NFUO bylaws in relation to the new Ontario Not-for-Profit Corporations Act, 2010;

3. consider options to make the NFUO Bylaws and the NFU Constitution more mutually consistent;

4. bring recommended changes to the NFUO Bylaws or the NFU Constitution to the appropriate membership to approve or decline.

This resolution indicates the extent of the NFU’s authority and control over the NFU-O. Rather than having the NFU-O strike a committee to review its own by-laws, the NFU, through NFU Region 3, takes on that task. The stated purpose of that review includes strengthening NFU Region 3 and the NFU so that those two organizations can work together to address issues of concern to Ontario farmers. There is no mention of the NFU-O in addressing those issues. It would be hard to find a clearer statement that it is the NFU, rather than the NFU-O, that represents farmers in the province.

The minutes of the meeting in March 2012 indicate that the by-law review committee gave its report during the NFU Region 3 Convention. After the report was received by the members, each of the proposed amendments was voted upon by the NFU Region 3 members during the NFU Region 3 Convention, even though those members had no legal authority to pass by-laws on behalf of the NFU-O. All of the proposed amendments were voted on individually, and each of the amendments was carried by the NFU Region 3 members. A blanket motion was then passed during the NFU-O portion of the meeting to adopt the amendments to the NFU-O’s by-laws that were passed by NFU Region 3. This procedure deprived the NFU-O’s voting delegates of any meaningful opportunity to debate the proposed amendments one at a time during the NFU-O’s annual general meeting or to accept some of the proposed amendments while rejecting others. It once again demonstrates the extent to which the NFU-O is under the authority and control of the NFU.

As noted earlier, NFU Region 3 and the NFU-O have different voting structures. The Tribunal heard evidence that the vote to pass the proposed amendments to the by-laws during the NFU Region 3 portion of the meeting was very close. The vote was less close during the NFU-O portion of the meeting. It is not clear what would have happened if the members of NFU Region 3 had voted against the amendments and the NFU-O’s delegates had voted to pass them. This is more than a theoretical possibility, given the different voting structures of NFU Region 3 and the NFU-O. As noted earlier, NFU Region 3 uses a direct voting system, in which each member of a farm family (including spouses and dependent children aged 14 to 21) is entitled to vote. The NFU-O, on the other hand, uses a delegate system at its annual general meeting, and the delegates are elected using a voting system in which each farm family has a single vote.

Elections were also held at the 2012 NFU Region 3 convention and NFU-O annual general meeting. The minutes of the meeting indicate that nominations for Region 3 officials and councillors-at-large were opened at the start of the NFU Region 3 meeting. During the NFU-O portion of the meeting, under the heading “Nominations of Regional Council Positions” (the Regional Council being the NFU-O’s board of directors), the minutes indicate that “[n]ominations for Region 3 officials closed and the nominating committee presented their nominations.” The minutes provide that Ms. Slater was nominated for the position of Regional Coordinator and won by acclamation. Two other members were nominated as “National Board representatives” and won by acclamation. There followed nominations and elections of an NFU youth advisor, a women’s advisor, and three councillors-at-large. After the NFU-O portion of the meeting was completed, the NFU Region 3 meeting was reconvened. NFU Region 3 then passed a motion “to accept the Region 3 Officials to Regional Council.”

It is unclear to the Tribunal why nominations for Region 3 officials would close during the NFU-O portion of the meeting. It is also unclear from the minutes of the meeting whether the nominating committee was appointed by NFU Region 3 or by the NFU-O. Further, it is unclear whether the nominations presented by the nominating committee at the NFU-O annual meeting were for NFU Region 3 positions, NFU-O positions, or both. It appears from the motion passed by the members of NFU Region 3, after the close of the NFU-O’s annual meeting, “to accept the Region 3 Officials to Regional Council” that the members of NFU Region 3 thought that Region 3 officials had been elected during the NFU-O’s annual meeting. It is hard to see how this could be legally possible, particularly given the different voting structures of NFU Region 3 and the NFU-O. It is also unclear why the members of NFU Region 3 would have any authority to accept any elected officials to regional council if, as indicated in the NFU-O’s by-laws, the regional council is the board of directors of the NFU-O.

The Tribunal has reviewed minutes from a number of meetings of NFU Region 3 and the NFU-O dating back to 2010, which were provided to the Tribunal in this hearing. As with the 2012 Region 3 convention and NFU-O annual general meeting, those meetings were run primarily as NFU Region 3 meetings. The NFU-O portions of those meetings were used primarily to adopt decisions made by NFU Region 3 and to “take care of legal obligations,” to use Ms. Slater’s phrase. The minutes of those meetings support the inference that, in practice, the NFU, through NFU Region 3, is the operating organization in the province.

(11) Activities in the Province

The NFU-O provided the Tribunal with a number of documents purporting to indicate activities carried out by the NFU-O on behalf of Ontario farmers. For example, the Tribunal was provided with copies of the NFU-O newsletter, which is an insert to The Rural Voice magazine. Although the NFU-O newsletter bears the NFU-O’s name at the top, it reports almost exclusively on activities and policies of the NFU. One portion of the newsletter bears the heading “Upcoming NFU Events,” which lists a number of events scheduled for Ontario. With only a few exceptions, the events listed under this heading (which include workshops and meetings of locals) are described as NFU rather than NFU-O events, and the locals are described as NFU locals.

The NFU-O also provided the Tribunal with copies of press releases issued on behalf of Ontario farmers. Most of those press releases are on the letterhead of the NFU and bear the address of the NFU’s head office in Saskatoon. The positions set out in the press releases are the positions of the NFU (the Tribunal was unable to find any reference to the NFU-O in the text of these press releases). Although Ms. Slater’s name appears at the bottom of a number of these press releases, in most cases she is listed as an NFU board member. One of the press releases is from the Renfrew County local and bears the heading, “Renfrew County NFU Sponsoring Information Meeting.” There is no mention of the NFU-O in the text of this press release.

Another publication provided to the Tribunal is the Food Down the Road newspaper, which is published by Local 316 and discusses local food issues in the Kingston area. This newspaper bears the logo of the NFU. The masthead indicates that the newspaper is “a publication of NFU Local 316.” There is an article by the president of NFU Local 316 entitled “A Message from the National Farmers Union” and another article by an NFU member about the benefits of membership in the NFU. The Tribunal could not find any reference to the NFU-O in any of the articles. On the back page, there is a listing of “NFU Projects in our Area.” There is also an invitation to join the NFU.

The NFU-O provided the Tribunal with two issue-specific newsletters that were distributed to Ontario farmers. Both bear the logo of the NFU. One bears the heading, “National Farmers Union May, 2011, Update and Suggested Actions” and lists the “NFU Ontario office” and Ms. Slater as contacts. The other (dealing with trade issues) encourages readers to join or donate to the NFU and provides the NFU’s address in Saskatoon. It also encourages readers to write to provincial and municipal leaders and to send a copy of those letters to the NFU’s office in Saskatoon. All of the contact information on this newsletter is for the NFU in Saskatoon.

Another publication provided to the Tribunal is The Union Farmer Quarterly, which indicates on its masthead that it is the official publication of the NFU. This publication includes reports from the various regions, including NFU Region 3. The most recent NFU Region 3 report is written by Ms. Slater. It refers only to the NFU and makes no mention of the NFU-O. Ms. Slater also authored several articles for The Union Farmer Quarterly over the last several years, none of which makes any reference to the NFU-O. Ms. Slater also authored an article on Ontario’s Green Energy and Green Economy Act for the NFU’s monthly newsletter, and it too refers only to the NFU and not to the NFU-O.

The NFU-O provided the Tribunal with a number of letters written to governments on behalf of Ontario farmers. For example, on April 11, 2011, Ms. Slater wrote to Yves Tremblay, policy advisor at the Ministry, regarding the Environmental Bill of Rights registry. Ms. Slater specifically cited this letter in her testimony as evidence of the work of the NFU-O in providing advice and analysis to governments. She also testified that the NFU-O had appointed a member to sit on the Agriculture-Wildlife Conflict Strategy Working Group, which is referred to in the letter. The Tribunal notes, however, that the letter is on the letterhead of the NFU (bearing the Guelph address) and opens with the following sentence: “The National Farmers Union welcomes this opportunity to share our comments on the Agriculture-Wildlife Strategy presently posted on the Environmental Bill of Rights Registry.” All of the policy positions set out in the letter are ascribed to the NFU. With respect to the member appointed to sit on the Agriculture-Wildlife Conflict Strategy Working Group, the letter states that the appointment was made by “the NFU in Ontario,” which is ambiguous at best and could be construed as a reference to NFU Region 3 or to the NFU-O. Ms. Slater signed the letter with the title, “National Farmers Union, National Board Member for the NFU Region 3 (Ontario) Regional Council.” Substantially all of the indications in this letter are that it is the NFU, through NFU Region 3, that is providing advice and analysis to the government and representing farmers in Ontario. Given that this letter was prepared before the NFU-O’s accreditation was at risk, the Tribunal prefers the documentary evidence over Ms. Slater’s evidence with respect to this letter.

There is a similar letter dated December 13, 2011, regarding Ontario’s microFIT program, again written by Ms. Slater on the NFU’s letterhead. The letter sets out policy positions of the NFU and makes no mention of the NFU-O. Ms. Slater signed this letter “on behalf of the National Farmers Union Region 3 (Ontario).

In some cases letters are on a hybrid letterhead bearing the NFU’s logo but the name “National Farmers Union Ontario,” which could be construed as a reference to NFU Region 3 in Ontario or to the NFU-O. In one such letter dated March 20, 2012, and addressed to the Hon. Dwight Duncan, Minister of Finance, Ms. Slater opens her letter with the following sentence: “The National Farmers Union (NFU) is an accredited general farm organization in Ontario.” That statement is clearly and demonstrably incorrect. The letter goes on to express concerns on behalf of the NFU and is signed by Ms. Slater, somewhat ambiguously, as “Coordinator, National Farmers Union in Ontario.” There is a similar letter dated April 25, 2012, addressed to Premier Dalton McGuinty. This letter opens with a reference to the “National Farmers Union in Ontario” but then goes on to make requests from the government in the name of the NFU. This letter is signed by Ms. Slater as “Ontario NFU Coordinator.”

The NFU-O also provided the Tribunal with a letter from the Renfrew County local addressed to the local MPP. This letter bears the NFU’s logo and opens with the following sentence: “First, the Executive of the Renfrew County National Farmers Union wishes to thank you for responding to its request to meet with you to discuss the issues affecting family farms in Renfrew County/Ontario/Canada.” The letter is signed by Dave Mackay as “President, Renfrew County National Farmers Union.” This letter supports the Tribunal’s earlier conclusion that the locals operating in Ontario are NFU locals rather than NFU-O locals.

In addition to these letters, the NFU-O supplied the Tribunal with a number of submissions made to governments and agencies on issues of concern to Ontario farmers. One submission, on the letterhead of the NFU and dated May 14, 2012, is to the Standing Committee on General Government at the Ontario Legislature and addresses issues arising from the Aggregate Resources Act. That submission begins: “The National Farmers Union is an accredited General Farm Organization with over 2400 members in Ontario.” Once again, that statement is clearly and demonstrably incorrect. The submission articulates the position of the NFU on the use of farmland in Ontario without once making any mention of the NFU-O. The submission is signed by Ms. Slater “on behalf of the National Farmers Union in Ontario, Ontario NFU Coordinator.”

Another submission, dated February 1, 2011, and entitled “Investing in Rural Local Economies: Energy, the Environment, and Infrastructure,” is addressed to the Standing Committee on Finance and Economic Affairs at the Ontario Legislature. The submission bears a prominent NFU logo and states on the cover page, “Presented by the National Farmers Union.” The introduction begins with the following sentence: “The National Farmers Union (NFU) welcomes this opportunity to bring the view of its family farm members to the Standing Committee on Finance and Economic Affairs for its pre-Budget Consultations.” All of the policy positions set out in this submission are attributed to the NFU; there is no mention of the NFU-O.

The only submission that makes any reference to the NFU-O is a submission to Sustain Ontario entitled, “Comments from the National Farmers Union – Ontario, Submitted to Sustain Ontario, June 2, 2012, on the Draft Food and Nutrition Strategy: A Plan for Healthy Food and Farming.” This letter is not on any letterhead. Notwithstanding the reference to the NFU-O in the title of the document, the actual submission begins: “The National Farmers Union (NFU) is a direct-membership, non-partisan national farm organization which works toward the development of economic and social policies that will maintain family farms as the primary food-producers in Ontario and in Canada.” All of the policy positions set out in this document are attributed to the NFU and not to the NFU-O.

It appears from the evidence before the Tribunal that the NFU-O has only very recently prepared letterhead bearing the proper corporate name for the organization. For example, there is a letter to the Minister dated July 16, 2012, regarding the drought situation in Ontario. This letter bears the NFU’s logo but indicates on the letterhead that the sender is the “National Farmers Union - Ontario.” The policy positions set out in the letter, however, are attributed to the NFU. The letter is signed by Ms. Slater as “NFU Ontario Coordinator.” The Tribunal notes that the Minister responded to this letter on July 20, 2012, and addressed his letter to the NFU-O.

There is also a submission to the federal and provincial governments dated September 24, 2012, regarding the drought situation in Ontario. That submission also bears the NFU’s logo but indicates on the letterhead that the sender is the “National Farmers Union - Ontario.” The submission starts with a reference to a survey sent to members by the NFU-O, but then advises the two levels of government that “NFU members are deeply concerned about the long term impact of the drought.” The submission is unsigned.

Finally, the NFU-O provided the Tribunal with two letters from the Minister inviting Ms. Slater to attend several round table discussions on issues of concern to Ontario farmers. The first letter, dated February 1, 2012, is addressed to Ms. Slater as “Region 3/NFU-O Coordinator, National Farmers Union,” which is ambiguous at best. The second letter, dated August 10, 2012, is addressed to Ms. Slater as “Coordinator, National Farmers Union - Ontario.” Ms. Slater relied on these letters to show that the NFU-O was involved in providing advice and analysis to governments. The Tribunal notes, however, that Ms. Slater’s salary is paid by the NFU, and policy in Ontario is set by NFU Region 3, so it appears to the Tribunal that in all likelihood Ms. Slater’s attendance at these meetings was on behalf of the NFU. This is consistent with the overwhelming majority of letters and written submissions filed with the Tribunal.

If there were one or two inconsistencies with letterheads and titles on documents, the Tribunal might be willing to excuse this inconsistency as an oversight or lack of attention to detail. In this case, however, the overwhelming weight of the documentary evidence before the Tribunal is that it is the NFU, on its own and through NFU Region 3, that has been representing farmers in the province of Ontario. Only very recently has the NFU‑O’s name appeared on any of the documents submitted by the NFU-O as evidence of its work on behalf of farmers in Ontario, and then almost always in conjunction with the NFU. The consistent practice over the last several years, with only a few exceptions, is that the NFU puts out documents on behalf of farmers in Ontario and makes no mention of the NFU-O.

Ms. Slater testified that the use of the NFU’s name on all of these documents was similar to using a name for marketing purposes that is different from an organization’s legal name. The Tribunal does not accept this argument. The original MOA and the Amended MOA only give the NFU‑O legal rights to use the NFU-O’s name and not the NFU’s name. If the intention were for the NFU-O to use the NFU’s name for marketing purposes, it would have been a simple matter to include that right in the MOA and the Amended MOA. Moreover, the NFU’s name already appears as part of the NFU-O’s name, so it is unclear why it would be necessary to use the NFU’s name instead of the NFU-O’s name in order to associate the NFU-O with the NFU.

Ms. Slater also sought to explain the appearance of the NFU’s name throughout these documents by saying that the NFU-O outsources research and policy work to the NFU. She said that the NFU-O had only limited resources and that there were efficiencies in having the NFU do this work rather than trying to do it locally. There are several difficulties with this explanation. First, in the Tribunal’s view, the NFU-O’s resources would not be limited if the NFU-O did not give more than half of the stable funding it receives to the NFU, with an additional 25% or so paid to NFU locals. In 2011, the NFU-O received almost $500,000 in stable funding, which in the Tribunal’s view is sufficient to allow the NFU-O to do its own research and policy work. Second, even if it were necessary to outsource this work, there is no reason why the NFU’s name would have to appear on work commissioned and paid for by the NFU‑O.

Another justification given by Ms. Slater for having this work done by the NFU is that many of the issues that affect the NFU-O’s members, such as trade, are national or international. Ms. Slater said that the NFU-O’s members see benefits from belonging to a national organization. The Tribunal accepts that some of the issues affecting farmers in Ontario are federal rather than provincial and that the NFU-O may wish to join with other organizations at the national level in order to address those issues. There is nothing in the legislative scheme that prohibits an accredited farm organization from belonging to a national organization that benefits farmers in Ontario. In this case, however, the NFU-O turns over more than half of the stable funding that it receives under the Act to the NFU, and also pays approximately half of the remaining funds to locals which the Tribunal has concluded are NFU locals. These arrangements suggest that the NFU is the operating entity in Ontario and that the NFU-O is merely the legal conduit through which the NFU accesses stable funding under the Act.

E. Conclusion on the Standing Issue

The Tribunal finds that the NFU-O does not have standing to apply for accreditation under section 4(1) of the Act because it does not represent farmers in the province as required by that section. Although the term “representing” is not defined in the legislation, in the Tribunal’s view it implies an active rather than a passive role. A person who represents another person takes an active role in advancing that other person’s interests: the representative “acts” for the person who is represented. In the context of a farm organization, the Tribunal finds that an organization representing farmers in the province is an organization that takes an active role in advancing the interests of Ontario farmers; it is not a passive organization that leaves the representation of farmers to another farm organization.

In finding that the NFU-O does not represent farmers in the province, the Tribunal has relied on a number of factors. First, it is clear from the evidence that the intention in 2002 was for the NFU to remain the operating organization in Ontario. As Ms. Slater testified, the NFU’s members in Ontario were not looking to become a different organization. Rather, the NFU was seeking stable funding under the Act and required a provincial corporation to meet the requirements for accreditation under the Act. This is evident from Ms. Slater’s letter to members, in which she states that, in order to become accredited in Ontario, “the NFU was required to set up an Ontario-based corporation with its own set of Bylaws.” This “parallel corporation,” to use the NFU’s phrase, is the vehicle through which the NFU accesses stable funding under the Act. It is a largely passive organization whose main function is to receive stable funding under the Act and then to disburse the majority of that funding to the NFU and its locals. The NFU remains the operating organization in Ontario.

The second factor relied upon by the Tribunal is that the NFU-O turns over more than half the stable funding it receives under the Act to the NFU. In addition, the NFU-O pays another 25% or so of the funds it receives to locals which, the Tribunal finds, are NFU locals. Having thus starved itself of cash, the NFU-O then outsources its important research and policy work to the NFU because, the NFU-O claims, it has only limited resources and cannot do this work on its own. In the Tribunal’s view, when the NFU-O turns over more than half of its stable funding to the NFU, pays another 25% of its stable funding to the NFU’s locals, and then outsources its important research and policy work to the NFU, it cannot plausibly claim to be an active farm organization representing farmers in the province. In substance, the NFU-O is little more than a legal conduit that accesses stable funding under the Act and then turns over the majority of those funds to the NFU.

The funds flowed to the NFU by the NFU-O are extensive, constituting almost 60% of the NFU’s membership income (excluding voluntary contributions). In the 2011 fiscal year, the NFU-O paid $245,970 to the NFU and another $135,432 to locals that the Tribunal finds are NFU locals, for a total of $381,402. In the 2010 fiscal year, the NFU-O paid $242,892 to the NFU and another $86,062 to NFU locals, for a total of $328,954. Assuming similar payments in previous years (all of which would have been made under the same formula set out in the MOA), it is reasonable to conclude that the NFU has received, or benefitted from, millions of dollars in payments out of the stable funding received by the NFU-O.

The Tribunal acknowledges that the NFU provides some services to the NFU-O, but there are no accounting records to determine the value of those services. It also appears to the Tribunal that many of those services are actually provided to NFU Region 3 rather than to the NFU-O. As NFU Region 3 is part of the NFU, those payments benefit the NFU and not the NFU-O. In addition, many of the expenses paid by the NFU-O appear to benefit the NFU and its locals, so it is difficult to determine whether there is any net benefit to the NFU-O after these payments have been made. The Tribunal notes that, in the notice of meeting for the 2012 NFU Region 3 convention and NFU-O annual general meeting, under the heading “How is your membership fee allocated within the NFU?”, the remaining funds available to the NFU-O after the NFU and the locals received their share were described as being allocated to NFU Region 3 rather than to the NFU-O, which suggests that those funds are also used for the benefit of the NFU.

The third factor relied upon by the Tribunal is the manner in which the NFU and the NFU-O have carried out their relationship over the past few years. Other than flowing funds to the NFU and its locals, paying some expenses (some of which benefit the NFU), and holding brief meetings from time to time in order to “take care of legal obligations” (to use Ms. Slater’s phrase), the NFU-O carries out very few activities on its own. Meetings are run almost entirely as NFU Region 3 meetings, with the NFU-O annual general meeting appearing as a footnote at the end of each meeting. Under the Amended MOA, the NFU-O is required to make its policy identical to the policy of the NFU and NFU Region 3. Policy resolutions that are debated and voted upon individually during the NFU Region 3 portion of the meetings are then moved as a blanket resolution at the end of the day, during the NFU-O annual general meeting. Even more troubling, proposed amendments to the NFU-O’s by-laws are prepared by a committee struck by NFU Region 3, voted upon in the NFU Region 3 portion of the meeting, and only then presented to the members of the NFU-O for approval, again as a blanket motion at the end of the day during the NFU‑O portion of the meeting. Similarly, the numerous letters, submissions to governments, and other publications provided by the NFU-O make it clear that the NFU is the operating organization in Ontario. Virtually all of those written communications are in the name of the NFU, and only in rare cases is there any mention of the NFU-O. All of this evidence leads the Tribunal to conclude that the NFU, through NFU Region 3, is the operating organization in Ontario. A key piece of evidence that might have assisted the Tribunal in coming to a different conclusion would have been the minutes of the meetings of the NFU-O’s board of directors for the preceding year, but the NFU-O refused to provide those documents to the Tribunal.

The final factor relied upon by the Tribunal is the corporate structure and legal agreements between the NFU and the NFU-O, which place the NFU-O firmly under the authority and control of the NFU. From the NFU’s point of view, this may be desirable because it provides the NFU with a high level of assurance that funds constituting almost 60% of the NFU’s membership income (excluding voluntary contributions) will continue to flow from Ontario. From the NFU-O’s point of view, however, this arrangement deprives the NFU‑O of its autonomy as a farm organization and binds it to the policies and interests of the NFU. The NFU-O cannot have any members that are not NFU members. The NFU has majority control on the NFU-O’s board of directors, but the NFU-O has no corresponding control on the NFU’s board. The NFU has the right in its by-laws to expel members from the NFU, which, by operation of the dual membership requirement in the NFU-O’s letters patent and by-laws, gives the NFU the power to expel members (including directors and officers) from the NFU-O. The NFU-O uses its corporate name at the pleasure of the NFU’s board. The NFU-O is required to make its by-laws consistent with the NFU’s by-laws. The NFU-O is required to make its corporate objects the same as the objects of NFU Region 3. All meetings within Ontario must be governed by the NFU’s by-laws. The NFU-O is required to make its policy identical to the policy of the NFU and NFU Region 3. The NFU-O is required under the Amended MOA to transfer approximately 75% of the stable funding that it receives under the Act to the NFU and the NFU’s locals. The NFU-O cannot disburse even a dollar of the stable funding it receives under the Act from the bank account that receives the funds without the signature of a designate of the NFU.

The NFU’s authority and control over the NFU-O extends to the regional coordinator, who is the most senior official of the NFU-O. Although the NFU-O’s by-laws provide that the regional coordinator is elected by the delegates to the NFU-O’s annual general meeting, the NFU’s by-laws give the NFU the power to appoint the regional coordinator (and the NFU-O was unable to satisfy the Tribunal’s concern that this power might be exercised in the future). The NFU’s by-laws require the regional coordinator to perform the duties assigned to the regional coordinator by the NFU’s executive. The NFU pays the regional coordinator’s salary and also requires the regional coordinator to sign a declaration of loyalty to the NFU. All of these provisions place the regional coordinator in a position in which conflicts of interest are almost certain to arise between the regional coordinator’s legal duties as a director and official of the NFU and the regional coordinator’s duties as a director and officer of the NFU-O. Given the extent of the NFU’s authority and control over the regional coordinator, there is a strong incentive for the regional coordinator to resolve such conflicts in favour of the NFU.

In the Tribunal’s opinion, a farm organization that is so completely dominated and controlled by another farm organization does not represent farmers in the province. To the extent that the NFU-O carries out any activities on its own, the Tribunal finds that those activities are, in substance, the activities of the NFU operating through the NFU-O. The clearest example of the NFU’s domination and control of the NFU-O is when the NFU-O’s by-laws were amended. Not only were the proposed amendments to the NFU‑O’s by-laws drafted by a committee of NFU Region 3, but the amendments were first debated and voted upon by NFU Region 3 before being put to a vote in a blanket resolution at the annual general meeting of the NFU-O. Similarly, the NFU-O cannot make its own policy but is required under the Amended MOA to make its policy identical to the policy of the NFU and NFU Region 3. Policy resolutions are debated and voted upon by NFU Region 3, after which they are put to a vote in a blanket resolution at the annual general meeting of the NFU-O. In this way, the NFU remains the operating organization in Ontario, while the NFU-O plays a passive role in adopting whatever decisions are made by the NFU.

This is not to say that a farm organization in Ontario cannot affiliate with a national farm organization. Such affiliations are common throughout the agriculture industry and can provide benefits to Ontario farmers on issues of national concern. Those affiliations, however, are typically “bottom up” rather than “top down.” The provincial organization operates with a significant degree of autonomy and voluntarily associates with the national organization. The situation is reversed in the NFU-O’s case, where the NFU-O functions with very little autonomy and is effectively shackled to the NFU.

All of these factors, taken together, lead the Tribunal to find that the NFU-O does not represent farmers in the province. It is clear from the evidence before the Tribunal that the NFU and NFU Region 3 are the operating organizations in the province and that the NFU-O has a passive role that consists primarily of obtaining stable funding under the Act and transferring the majority of that funding to the NFU and the NFU’s locals. On the evidence before the Tribunal, the NFU-O falls far short of satisfying the Tribunal, as it is required to do, that it represents farmers in the province. Accordingly, the NFU-O does not have standing to seek accreditation under section 4(1) of the Act.

Issue #2: Criteria for Accreditation

Given the Tribunal’s finding with respect to standing, the Tribunal would not normally go on to consider whether the NFU‑O meets the criteria for accreditation set out in section 5 of the Regulation. In this case, however, the NFU-O and the Minister have both challenged the Tribunal’s jurisdiction with respect to the Standing Issue, and the Tribunal therefore considers it appropriate, in the unique circumstances of this case, to provide its ruling with respect to the criteria for accreditation set out in section 5 of the Regulation. If, as the NFU-O and the Minister allege, the Tribunal does not have jurisdiction to dismiss this application under section 4(1) of the Act, the Tribunal would rule as follows with respect to the five criteria for accreditation set out in section 5 of the Regulation.

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

The wording of this criterion was amended during the recent amendments to the Regulation in November 2012. The old version read: “It has an annual membership fee, including applicable taxes, of at least $195 for each member.” The changes from the old version to the new version are (1) the phrase “including applicable taxes” was moved from the middle of the section to the end, and (2) the phrase “for each member” was removed from the section altogether. The Tribunal attaches no significance to the first change, as the meaning of the phrase “including applicable taxes” has not changed and the relocation of that phrase to the end of the section appears to be purely stylistic. The second change is more significant, as the Tribunal has attached a specific meaning to the word “member” in several recent Tribunal decisions. In addition, the Tribunal has ruled in the past that the prescribed membership fee is a minimum membership fee that must be paid by all members of an accredited farm organization.

The Tribunal attaches some significance to the removal of the phrase “for each member” from the legislation. In the Tribunal’s opinion, the removal of this phrase indicates a legislative intention to relax the earlier requirement that each member of a farm organization pay a membership fee of at least $195. The Minister submits that a plain reading of section 5(1)1 of the Regulation, in its current form, requires a farm organization to have, at a minimum, one membership fee of $195. The Tribunal does not accept this submission if the suggestion is that a farm organization could have a single member who pays $195 while all other members pay some lesser fee. In the Tribunal’s view, a better interpretation is that section 5(1)1, in its current form, requires a farm organization seeking accreditation to have a standard membership fee for its full, voting members of at least $195, while allowing some flexibility to farm organizations to have a lower fee for members who do not have all of the rights and privileges of full membership. This interpretation gives effect to the removal of the phrase “for each member” from the predecessor to section 5(1)1, while avoiding an excessively narrow interpretation under which section 5(1)1 could potentially apply to just one member of a farm organization that has several thousand members.

The NFU-O’s by-laws provide for a single category of membership, which is restricted in section 4(2) of the by-laws to “any person engaged in farming in Ontario, including the resident spouse or children of that person, and any retired or displaced farmer until such person has been employed for two years in any other industry.” Section 4(4) of the NFU‑O’s by-laws provides, among other things, that all members have the right to vote and to stand for elected office, so these are full, voting memberships. Section 4(3) of the NFU‑O’s by-laws fixes the amount of the annual membership fee as the amount prescribed by the Regulation (currently $195), plus applicable taxes. Given that the NFU-O has a standard membership fee for its full, voting members of at least $195, the Tribunal finds that this criterion has been met.

The Tribunal notes that the NFU-O’s by-laws provide in section 4(5) that non-farm individuals may become an “associate” of the NFU-O by paying an annual fee of $50. Although associates are not treated as members in the NFU-O’s by-laws, they are treated as members in the NFU’s by-laws. As NFU members, they arguably have a right to NFU-O membership, regardless of what the NFU-O’s by-laws say, because of the dual membership requirement set out in the NFU-O’s letters patent, which provide that “[a]ny member of the National Farmers Union resident in Ontario shall be a member of the corporation.” Although the membership status of associates within the NFU-O is not in issue on this application, the Tribunal notes that the phrase “for each member” is scheduled to be added back to the criterion set out in section 5(1)1 of the Regulation pursuant to legislative amendments that come into force on November 22, 2013. As a result, it would be prudent for the NFU-O to clarify the membership status of associates prior to that date if it intends to seek accreditation in the future.

5(1)2. It is incorporated under a general or special Act of the Legislature.

The NFU-O filed a copy of its letters patent dated May 9, 2002, confirming that the NFU‑O was incorporated under the Corporations Act, R.S.O. 1990, c. C.38, which is a general act of the legislature. This criterion has therefore been met.

5(1)3. Its purpose is to represent persons carrying on farming businesses.

5(2) A farm organization does not meet the criterion prescribed in paragraph 3 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.

Assuming that the NFU-O’s purpose is to represent persons carrying on farming businesses, there is no issue with respect to the requirements set out in section 5(2) of the Regulation. The evidence before the Tribunal indicates that the NFU-O’s members produce a wide variety of agricultural products including, but not limited to, beef, pork, chicken, goats, rabbit, fruits, nuts, vegetables, grains, honey, tobacco, and forage.

With respect to section 5(1)3 of the Regulation, the NFU-O’s stated purpose is set out in its letters patent and its by-laws. As noted earlier, the NFU-O is required under the MOA and the Amended MOA to have as its objects the objects of NFU Region 3. The Tribunal was not provided with the objects of NFU Region 3, but presumably they are the same as the objects of the NFU, which are set out in section 3 of the NFU Act and in section 3 of the NFU’s by-laws. Those objects appear in substantially the same form in the NFU-O’s letters patent and in section 3 of the NFU-O’s by-laws. As set out in section 3 of the NFU‑O’s by-laws, the NFU-O has the following objects:

3. Objects:

The Objects of the Organization shall be: to represent persons carrying on farming businesses in Ontario, so as:

1. to promote the betterment of farmers in the attainment of their economic and social goals;

2. to conduct projects for the benefit of farmers in the development of markets for and marketing of farm products;

3. to achieve the reduction of costs and other measures designated to increase the economic benefits of farming;

4. to conduct educational and research projects for the benefit of farmers;

5. to promote and secure legislation and other forms of government action for the benefit of farmers;

6. to promote a higher standard of community life in agriculture; and

7. to provide services for its members consistent with its objects and to work jointly with any other persons or organizations for the attainment of its objects.

These types of purpose statements are frequently filed at accreditation hearings, and the Tribunal normally accepts them at face value so long as the evidence at the hearing is consistent with the purpose statement. Usually, this is not an issue. In this case, however, the Tribunal became concerned at the hearing on July 18, 2012, that the stated purpose set out in section 3 of the NFU-O’s by-laws might not be its actual purpose. It appeared to the Tribunal that the NFU-O’s actual purpose was to access stable funding under the Act in order to allow the NFU and NFU Region 3 to carry on their activities. The Tribunal therefore raised this issue in its Fourth Interim Order and invited the NFU‑O to provide additional evidence to the Tribunal in order to address this issue.

Ms. Slater sought to address the Tribunal’s concerns at the hearing on December 14, 2012, making five points in her evidence on this issue. First, she noted that the stated purpose of the NFU-O, as set out in the NFU-O’s letters patent and by-laws, indicates that the NFU-O’s purpose is to represent persons carrying on farming businesses in Ontario. Second, she testified that, if farmers in Ontario did not feel that the NFU-O represented their interests, they were free to choose another farm organization. Third, Ms. Slater relied upon the documents discussed above under the heading “Activities in the Province” as evidence that the NFU-O represents persons carrying on farming businesses. Fourth, she referred to a document previously filed with the Tribunal containing excerpts of responses that she said the NFU-O had provided to members who had raised issues of concern with the NFU-O. Finally, Ms. Slater testified that all of the NFU’s activities in Ontario are carried out under the direction of the NFU-O’s regional council.

With respect to Ms. Slater’s first point, as previously noted, the stated purpose in this case is not sufficient, by itself, to satisfy the Tribunal that the NFU-O’s actual purpose is to represent persons carrying on farming businesses, as required by section 5(1)3 of the Regulation. The Tribunal requires further evidence where, as in this case, the Tribunal has a concern that the farm organization seeking accreditation might have a different purpose from what is set out in the farm organization’s purpose statement.

With respect to Ms. Slater’s second point, while it is true that farmers in Ontario can choose another farm organization if they do not feel that the NFU-O represents their interests, it is not clear based on the evidence before the Tribunal whether the farmers in question believe that they are being represented by the NFU or by the NFU-O. In the Tribunal’s view, the documents filed with the Tribunal such as newsletters, magazines, and other documents that would be sent to farmers in Ontario would overwhelmingly indicate to a farmer that the farmer is being represented by the NFU rather than by the NFU-O. The NFU-O’s name rarely appears in those documents. Similarly, policy in Ontario is made by NFU Region 3 rather than the NFU-O, and policy is debated and passed at the NFU Region 3 annual convention before being passed on a blanket motion at the end of the day in the NFU-O’s annual general meeting. All of this evidence suggests that the NFU and not the NFU-O represents persons carrying on farming businesses.

With respect to Ms. Slater’s third point, the documents described above under the heading “Activities in the Province,” in the Tribunal’s view, overwhelmingly support the conclusion that it is the NFU and not the NFU-O that represents persons carrying on farming businesses. Almost all of the references in those documents are to the NFU, and the NFU-O’s name appears only occasionally, and then usually in conjunction with the NFU.

With respect to Ms. Slater’s fourth point, the Tribunal has reviewed the excerpts of responses provided to members on issues of concern. These excerpts appear on a single page which appears to be a cut and paste from NFU-O regional council minutes and from an e-mail sent by a member of the NFU-O’s regional council to a member. They do not appear to be copies of original documents, and the captions for each excerpt appear to have been added by the person who created this document. While the captions indicate that these excerpts are responses to members from the NFU-O, the Tribunal notes that the three excerpts all contain references to the NFU and contain no references to the NFU‑O. Among other things, there are references to “the NFU,” “NFU elected officials,” “the NFU position,” “NFU leaders and members,” and “NFU comments to the Minister’s office.” It appears from these excerpts that the NFU-O’s regional council was purporting to conduct business regarding the affairs of the NFU, which is puzzling because the NFU‑O’s regional council would have no legal authority to conduct NFU business. Each corporation has its own board of directors, and one board of directors cannot carry out the other board’s functions.

Although the evidence provided to the Tribunal by the NFU-O is unsatisfactory at best, the Tribunal concludes that these excerpts refer to activities of the NFU rather than the NFU-O. Other than the captions, there is nothing in these excerpts to indicate that the activities described relate to the NFU‑O. On the contrary, the excerpts strongly suggest that the activities described in the excerpts relate to the affairs of the NFU and that it is the NFU that is representing persons carrying on farming businesses.

Finally, with respect to Ms. Slater’s fifth point, it is hard to see how all of the NFU’s activities in Ontario could be carried out by the NFU-O’s regional council. The NFU has its own board of directors, and the NFU’s by-laws contemplate that the NFU’s regional network is the operating organization in the province, as discussed above under the heading, “Agreements between the NFU and the NFU-O.” As noted under that heading, the NFU-O has refused to produce copies of the minutes of the NFU-O’s board of directors for the past year, which would assist the Tribunal in determining the scope of the NFU-O’s activities as opposed to the NFU’s activities. As before, the Tribunal draws an adverse inference that these minutes would not support Ms. Slater’s evidence. On that basis, the Tribunal finds that it is the NFU’s regional network, as contemplated by the NFU’s by-laws, that carries out the NFU’s activities in Ontario and that it is the NFU that represents persons carrying on farming businesses.

The Tribunal is not persuaded by the NFU-O’s evidence that the NFU-O’s actual purpose, as opposed to its stated purpose, is to represent persons carrying on farming businesses. The Tribunal finds that the NFU-O’s actual purpose is to allow the NFU to access stable funding under the Act, as discussed under the Standing Issue above. This criterion therefore has not been met.

5(1)4. 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.

For the reasons set out under the Standing Issue, the Tribunal finds that it is the NFU and not the NFU-O that is the operating organization in Ontario. The evidence before the Tribunal indicates that the advice and analysis provided to governments and others was provided by the NFU, on its own and through NFU Region 3, rather than by the NFU-O. This criterion therefore has not been met.

5(1)5. 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.

The NFU-O filed a copy of a signed letter between the Ministry and the NFU-O dated November 29, 2012, in which the NFU-O agreed to enter into an agreement with the Minister to provide special funding to the francophone organization that is eligible for special funding under section 12 or 13 of the Act. At the time that the letter was signed, there were no accredited farm organizations in Ontario. By the time of the hearing on December 14, 2012, however, there were two accredited farm organizations in Ontario. The letter filed with the Tribunal fails to address this possibility, but section 5(1)5 does require an applicant for accreditation to enter into, or agree to enter into, an agreement not only with the Minister but with the other accredited farm organizations. The Tribunal raised this issue with the NFU-O at the hearing on December 14, 2012, and the NFU-O confirmed its intention to enter into an agreement with both the Minister and the two farm organizations that had been accredited by that date. On this basis, the Tribunal finds that this criterion has been met.

Conclusion

In summary, the Tribunal finds that the NFU-O fails on both issues before the Tribunal. It does not have standing under section 4(1) of the Act to apply for accreditation, and it does not meet all of the criteria for accreditation set out in section 5(1) of the Regulation.

The Tribunal appreciates that the NFU-O has been accredited by the Tribunal in the past, and that previous Tribunal decisions have not raised specific concerns about standing or about some of the criteria which caused the Tribunal concern on this application. The Tribunal notes that, as a matter of law, it is not bound by its previous decisions. In each case, the Tribunal is required to interpret the applicable law and then to apply that law to the evidence before the Tribunal. Each application for accreditation proceeds on a different evidentiary record, and there may well have been evidence before the Tribunal in this case that was not before the Tribunal on previous applications. For example, there is nothing in any of the Tribunal’s previous decisions to indicate that key documents such as the NFU’s by-laws, the NFU’s financial statements, and the legal agreements between the NFU and the NFU-O were in evidence before the Tribunal on previous applications. In any event, based on the Tribunal’s review of the facts and the law in this case, the Tribunal is unable to accredit the NFU-O on this application.

For all of the above reasons, the Tribunal issued its order on December 19, 2012, dismissing the NFU-O’s application for accreditation.

Dated at Hamilton, Ontario, this 15^th^ day of April, 2013.