Regular readers of this blog will find this post a non sequitur; however I hope that some may also find it interesting. This past Friday I appeared before the Ontario Agriculture, Food and Rural Affairs Appeal Tribunal on behalf of the National Farmers Union – Ontario. While the word “Union” may lead some to believe that my work was within the usual realm of labour and employment, the NFU-O’s application is not the sort of “union” work as it is understood in the collective bargaining context.
I am writing this post primarily to help explain the situation from a legal perspective; I have noted a fair amount of interest in this topic. I also wish to highlight that although this blog’s focus is on labour and employment issues, my practice and indeed the lawyers at Kelly Santini LLP's practice includes more than just labour and employment. As I have joked with reference to my representation of the National Farmers Union – Ontario, I am more than a one-trick pony, some times I represent people who literally raise ponies.
For those familiar with how the accreditation process works, feel free to skip this section. Most of my usual readers, however, will likely benefit from an understanding of what is going on.
The National Farmers Union – Ontario has made application to the Agriculture, Food and Rural Affairs Appeal Tribunal (“the Tribunal”) to be accredited as a general farm organization” (a “GFO”) for the purposes of the Farm Registration and Farm Organizations Funding Act, 1993, SO 1993, c21.
Being accredited as a GFO has several positive benefits for a farming organization such as the NFU-O, not the least of which being that it provides that organization with a powerful voice to the Ontario government in its setting of agriculture policy.
Furthermore, under the Act every farm business in Ontario having a gross income greater than $7,000 is required to complete and submit a Farm Business Registration (“FBR”) form that recognizes that farm as a farm, which brings with it certain advantages to farmers. Every FBR registrant must also submit to the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) a fee of $195, which is then provided (less an administration fee) to the GFO of the farmer’s choice. The FBR form, as I understand it, has three possible GFOs from which one can select, one of which being the NFU-O. Given that there are roughly 47,000 FBRs in Ontario, that translates into a lot of money.
So, to generalize the situation, GFO applicants generally seek to be accredited as an GFO for two reasons: to obtain a seat at the table, and the ability to access funding to meet its mandate.
Pursuant to section 4 of the Act, “Any organization representing farmers in the province may apply to the Tribunal to become an accredited farm organization for the purposes of this Act.”
Section 5 of the Act provides for a hearing, and, critically, section 6 provides that:
If the Tribunal determines that the organization meets the prescribed criteria for accredited farm organizations, the Tribunal shall, by order, accredit the organization and, if the Tribunal determines that the organization does not meet those criteria, the Tribunal shall refuse the accreditation.
The prescribed criteria for accreditation are set out in section 5 of O. Reg. 723/93, as amended.
The NFU-O was incorporated under Ontario law in May of 2002. Since that time it has been an GFO. In 2011 it applied for reaccreditation under the Act, but that reaccreditation was denied by a decision of theTribunal rendered May 2012.
In that decision the Tribunal found that the NFU-O met five of the then dozen or so prescribed criteria.
In June of 2012 the NFU-O applied for accreditation under the Act, and in July the Tribunal held its first hearing of the NFU-O’s application.
Since the NFU-O’s first hearing the Tribunal has issued no fewer than four interim Orders (I believe it issued a fifth during the December 14th hearing, although it was not reduced to writing.) The interim Orders can be found here: http://www.omafra.gov.on.ca/english/tribunal/frfofa.htm
The December 14, 2012 Hearing
On December 14, 2012 I attended before the Tribunal on behalf of the NFU-O. The hearing was convened by the panel to address the Tribunal’s concerns as set out in their Fourth Interim Order and to ostensibly address the NFU-O’s accreditation application.
The first issue before the Tribunal was whether the documents ordered to be produced by the Tribunal in its Forth Interim Order ought properly to be sealed. Given the sensitive, personal and financial information contained within some of those documents I moved to have the documents sealed. What followed was a discussion as to whether all of the documents so produced should be sealed, whether even where documents contained sensitive information the entire document needed to be sealed or whether certain portions could simply be redacted. Given the volume of material submitted pursuant to the Forth Interim Order, and given the NFU-O’s interest in having a hearing with respect to its accreditation pragmatism had to carry the day with respect to what items would be requested sealed and what would have to be conceded. This exercise took the better part of 45 minutes to an hour. It should be noted that an initial objection as to the relevance of these documents was raised by the NFU-O and supported by counsel for OMAFRA; that objection was of no force or effect.
As is the Tribunal’s practice, the hearing then proceeded by way of having members of the NFU-O provide evidence, under oath, of the ways by which it meets the criteria for accreditation set out in O. Reg. 723/93, as amended. During the hearing, the panel of the Tribunal hearing the application agreed that the NFU-O met three of the six criteria, with a forth criterion (the membership fee) being more an argument about statutory interpretation than fact.
The Tribunal’s Concerns
Once that evidence was proffered the Tribunal informed the NFU-O that it wished to ask several questions. Those questions stemmed from concerns the Tribunal raised on its own initiative as to whether or not the NFU-O is an actual organization representing farmers. The concern, as expressly set out by the panel, is whether the NFU-O is the actor carrying out the organization’s activities or whether the activities are in fact carried out the NFU, a federally-incorporated, national organization.
Acting for the NFU-O I moved that the panel identify if there was any outside party (i.e. other than the NFU-O or the OMAFRA) who was raising the concerns noted by the Tribunal. The panel confirmed that the issues had been raised on its own initiative based on their review of the evidence submitted.
The Tribunal then sought information as to how the NFU-O and the NFU were integrated, how the NFU’s finances and by-laws work and are to be interpreted, etc. The NFU-O objected to this line of questioning, through and on the advice of counsel. What then followed was approximately two hours of questions being asked by the panel, to which the response from counsel was almost universally an objection on the basis of relevance; an explanation as to why such a position was taken will follow. Counsel for the OMAFRA supported this position.
On behalf of the NFU-O I submitted that for the purposes of the accreditation hearing, the Tribunal’s focus is to solely be upon the question of whether the NFU-O meets the prescribed criteria, and not how or to what extent they meet those criteria.
The six criteria for accreditation as a GFO are:
1. It has an annual membership fee of at least $195, including applicable taxes.
2. It is incorporated under a general or special Act of the Legislature.
3. Its purpose is to represent persons carrying on farming businesses.
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.
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.
6. It represents persons carrying on farming businesses in which more than one type of agricultural product is produced.
The Tribunal agreed that criteria 2 and 5 were met, and that if the NFU-O represented farmers at all, that it met the broad-breadth requirement of criterion 6.
At the hearing a plethora of evidence was marshalled showing that: the NFU-O had a membership of $195 inclusive of tax, its purpose is to represent persons carrying on farming businesses, and that it provides advice and analysis to governments, etc.
On the issue of the fee, the Tribunal appears concerned that the NFU-O by-laws permit for associate ‘members,’ and those associates pay less than $195. It was submitted by both the NFU-O and OMAFRA that the regulation only requires an annual membership fee of at least $195, and that if it has other membership fees, that it permissible. The evidence from the NFU-O was that all NFU-O “members” pay a fee of $195 plus HST.
On the issue of purpose, the by-laws and incorporation documents of the NFU-O demonstrate that the purpose of the NFU-O is to represent persons carrying on farming businesses in Ontario. (Note that “in Ontario” is not a criterion of the Regulation; a fact I highlighted for the Tribunal.) Although no one has impugned the NFU-O’s evidence, the panel has taken the position that it must find the NFU-O’s “true purpose.” This position was objected to by both the NFU-O and the OMAFRA as no one has questioned that the "true purpose" is anything other than the "stated purpose."
In the result, the submission of the NFU-O was that the Tribunal must look only at “if” the criteria of the Regulation are met, and not how or to what extent they are met. For that reason, it was submitted that the NFU-O’s relationship with the NFU is simply beyond the purview of the Tribunal. This position was repeated several times during the December 14th hearing. Counsel for the OMAFRA supported the NFU-O’s position.
Furthermore, the NFU-O submitted that in the Tribunal’s May 23, 2012 decision concerning reaccreditation the Tribunal had found that the NFU-O met all the criteria that are now contained within the Regulation as amended in November 2012. Of note, two of the three members of the current panel were on the panel that made such a finding not seven months ago. It was submitted that nothing has changed over the past seven months, and that no one is objecting to the NFU-O’s application for accreditation, such that it is very peculiar as to why the Tribunal is now raising such concerns.
Both the NFU-O and OMAFRA asked for an oral decision on the date of hearing with reasons for the decision to follow. Notwithstanding the request, the Tribunal declined to do so, as is their right.
Pursuant to the Tribunal’s own rules, a decision is to be made within 20 days of the hearing, which would put the last possible day upon which a decision could be reached some time in early January 2013. Whether or not that will happen is to be seen.
Given that this matter is still before the Tribunal I must be careful as to what I say here.
The submissions of the NFU-O and the OMAFRA were sound. A plain reading of section 6 of the Act provides that the limits of the Tribunal’s jurisdiction are in finding “if” the prescribed criteria are met, and no more.
I furthermore have concerns about the Tribunal raising issues of its own initiative without any allegation or evidence of any allegation before it. While section 26 of the Act does provide that, “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,” I must honestly question whether this is the scope of investigatory power envisioned by the Legislature. Given the submissions of counsel for the OMAFRA, it would appear not.
Most importantly, it is important that this matter be resolved for all concerned. This matter has taken too long (a review of the Tribunal’s Rules provide that this entire process is to take 45 days); the ambiguity and uncertainty is of great detriment to the NFU-O and Ontario farmers. Regardless of the decision that the Tribunal might take, that decision must be taken as soon as justly possible.
Why I Took This Case On
For those wondering why a self-styled labour and employment lawyer would take on this matter, the answer is because I have always had an interest in Ontario agriculture. Although not a farmer, throughout both my undergraduate and law school experience I held a keen interest in farming, especially the future of it.
Furthermore, it should be noted that I am, first and foremost, an advocate. While this blog and my practice is directed towards labour and employment, neither I nor especially the lawyers at Kelly Santini LLP, are limited to just that practice area.
If you have a dispute in any of the broad range of areas in which Kelly Santini LLP practices, or if you are looking for regulatory assistance, or assistance with your not-for-profit organization, or for-profit business, the lawyers at Kelly Santini LLP would be happy to be of service to you.
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.
Sean Bawden is an Ottawa, Ontario lawyer practicing with Kelly Santini LLP. He tweets from @SeanBawden.