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The Agricultural Producers' Organization Funding Amendment Act

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S.M. 1995, c. 18

The Agricultural Producers' Organization Funding Amendment Act

(Assented to November 3, 1995)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. A18 amended

1           The Agricultural Producers' Organization Funding Act is amended by this Act.

2           Parts I, II, IV and V are renumbered as Parts 1, 2, 4 and 5.

3           Section 1 is amended

(a) by adding the following definitions in alphabetical order:

"designated purchaser" means a purchaser designated by a regulation made under clause 30(b); (« acheteur désigné »)

"percentage of the value of agricultural product" means a percentage of the gross selling price payable by a purchaser for an agricultural product as specified by a regulation made under clause 30(c); (« pourcentage de la valeur du produit agricole »)

(b) in the definition "certified organization", by striking out "Part III" and substituting "Part 3"; and

(c) by repealing the definition "purchaser" and substituting the following:

"purchaser" includes a designated purchaser and any person who acquires title to or possession of an agricultural product as principal or as agent; (« acheteur »)

4           Section 9 is amended

(a) in clauses (a) and (b), by striking out "Part III" and substituting "Part 3"; and

(b) in clause (c), by striking out "Part IV" and substituting "Part 4".

5           Subsection 10(2) is amended by striking out "Part III" and substituting "Part 3".

6           Subsection 12(1) is amended by adding "and" at the end of clause (b), by repealing clause (d) and by striking out everything after "certification" in that part of the subsection after clause (d).

7           The Part and Division headings preceding section 13 are repealed and the following is substituted:

PART 3

DETERMINATION OF THE CERTIFIED ORGANIZATION

DIVISION 1

QUALIFICATION

8           The Division heading preceding section 16 is renumbered as Division 2.

9           The Division heading preceding section 23 and sections 23 to 30 are repealed and the following is substituted: PART 3.1

COLLECTION OF ANNUAL MEMBERSHIP FEES OF THE CERTIFIED ORGANIZATION

DIVISION 1

GENERAL

Maximum amount of fee

23(1)       The maximum annual membership fee of the certified organization is $100., unless a higher amount is set by a regulation made under clause 30(a).

Amounts remitted are payments for membership

23(2)       The certified organization shall treat the amounts remitted to it under this Part as an application for membership or renewal of membership in the certified organization and as payment of, or on account of, the organization's annual membership fee by the person for whom the amount is remitted.

Purchaser to keep books and records

23.1(1)     A purchaser shall keep and maintain complete and accurate books and records that set out the following:

(a) the name and address of each person who sells an agricultural product to the purchaser;

(b) the type of agricultural product purchased from that person;

(c) the amounts withheld from time to time by the purchaser from that person under this Part;

(d) the date each amount is withheld;

(e) the date each amount is remitted to the certified organization.

Retention of books and records

23.1(2)     A purchaser shall retain the books and records described in subsection (1) for at least two years after the date they are made.

Purchaser to allow inspection

23.1(3)     A purchaser shall at all reasonable times permit an inspector appointed under this Act to inspect the books and records required to be kept and maintained under this section, and shall otherwise facilitate an inspection.

DIVISION 2

COLLECTION BY PURCHASERS OTHER THAN DESIGNATED PURCHASERS

Application

24          This Division applies to the collection of annual membership fees by all purchasers other than designated purchasers.

Purchaser to supply information

24.1        Within 30 days after receiving a written request from the certified organization, a purchaser shall provide to the certified organization

(a) the name and address of each person from whom the purchaser has acquired agricultural products of a value of $500. or more during the preceding 12 months; and

(b) the type of agricultural product acquired from that person.

Purchaser to withhold fees

25(1)       The certified organization may provide to a purchaser

(a) a list containing the names of persons; and

(b) a request that the purchaser withhold an amount equal to the annual membership fee of the certified organization from amounts that are payable or that become payable by the purchaser to each person named on that list.

Requirement to withhold

25(2)       A purchaser shall comply with a request made under subsection (1) during the 12 months beginning 45 days after the date the list and request are received.

When remittance to be made

25(3)       A purchaser shall remit to the certified organization any amount withheld under this section within 15 days after the end of the month in which the amount is withheld, together with

(a) the name and address of the person from whom the amount was withheld; and

(b) the type of agricultural product purchased from that person.

Notice to producer

25.1        At the same time that the certified organization provides a list and request to a purchaser under subsection 25(1), the certified organization shall, in writing, advise each person whose name appears on the list and who is not a member of the certified organization at that time

(a) that it has requested the purchaser to withhold and remit to the certified organization an amount equal to the annual membership fee of the certified organization from the amounts otherwise payable by the purchaser to that person; and

(b) that the person has a right to object to the withholding of that amount.

Objection

26(1)       A person who objects to the withholding of the amount of the annual membership fee may advise the certified organization in writing of his or her objection.

Where objection received

26(2)        On receiving an objection, the certified organization shall,

(a) within seven days, remove the name of the person who objects from any list prepared by the certified organization for distribution to a purchaser;

(b) within seven days, advise a purchaser who has received a list under subsection 25(1) on which the name of the person who objects appeared, that no amount is to be withheld;

(c) not add the name of the person who objects to any other list distributed by that certified organization under subsection 25(1) for two years after receiving the objection without the prior written consent of that person; and

(d) refund to the person who objects any amount withheld by a purchaser and remitted to the certified organization after the objection is received.

DIVISION 3

COLLECTION BY DESIGNATED PURCHASERS

Application

26.1        This Division applies to the collection of annual membership fees by designated purchasers.

Purchaser to withhold amounts

27(1)       The certified organization may request a designated purchaser to withhold, from amounts that are payable to or that become payable to every person delivering agricultural product to the designated purchaser, the percentage of the value of agricultural product that is specified by a regulation made under clause 30(c).

Requirement to withhold

27(2)       A designated purchaser shall comply with a request made under subsection (1) during the 12 months after the date the request is received.

When remittance to be made

27(3)       A designated purchaser shall remit to the certified organization any amount withheld under this section within 15 days after the end of each month in which an amount is withheld, together with

(a) the name and address of the person from whom the amount was withheld; and

(b) the type of agricultural product delivered by that person.

Refund of underpayments

28(1)       If, during a fiscal year of the certified organization, the amount remitted for a person under section 27 is less than the annual membership fee of the certified organization, the certified organization shall refund to the person from whom it was withheld the total amount that was remitted.

Refund of overpayments

28(2)       If, during the fiscal year of the certified organization, the amount remitted for a person under section 27 is more than the annual membership fee of the certified organization, the certified organization shall refund the excess amount to the person from whom it was withheld.

When refund to be made

28(3)       A refund under this section shall be made at the time or times specified in a regulation made under clause 30(d).

Right to a refund

29(1)        On receiving a written request from a person from whom an amount has been withheld under section 27, the certified organization shall refund to the person any amount remitted to it by a designated purchaser for that person during the organization's fiscal year.

When refund to be made

29(2)       A refund under this section shall be made at the time or times specified in a regulation made under clause 30(d).

DIVISION 4

AGENCY REGULATIONS

Agency regulations

30          The agency may make regulations,

(a) for the purpose of section 23, setting the maximum annual membership fee of the certified organization at an amount higher than $100.;

(b) designating purchasers to whom Division 3 of this Part applies;

(c) specifying the percentage of the value of agricultural product that must be withheld under section 27;

(d) specifying the time or times when the certified organization is required to make refunds under sections 28 and 29;

(e) respecting the compensation to be paid by the certified organization to purchasers for the reasonable costs incurred by purchasers in the collection of amounts under this Part.

10(1)       Subsection 32(1) is repealed and the following is substituted:

Referendum may be held

32(1)       After assessing the petition, the agency may, if it considers it necessary to do so to determine the representative nature of the organization and its proposed program, cause a referendum to be held of the producers of the agricultural product to determine if the organization should be designated under this Part.

10(2)       Subsection 32(2) is amended by striking out "A referendum" and substituting "If a referendum is held, it".

11          Section 33 is repealed and the following is substituted:

Recommendation of designation

33          The agency may recommend to the minister the designation of an organization under this Part if

(a) the agency is satisfied that the organization's proposed program is not appropriately funded within a marketing plan under The Natural Products Marketing Act; and

(b) the agency is satisfied of the representative nature of the organization and its proposed program or, in a case where a referendum is held, the vote in the referendum is in favour of the designation.

12          Subsections 34(2) and (3) are repealed and the following is substituted:

Fees are refundable

34(2)       A regulation made under subsection (1) must provide that any fees collected will be refundable on the request of a producer on such terms as the regulation may specify.

13          The following is added after section 34:

Referendum if 30% of producers request refund

34.1(1)     When an organization is designated by regulation under subsection 34(1) and, within any year, the producers requesting a refund of the fees

(a) comprise more than 30% of the producers of the agricultural product; and

(b) account for at least 30% of the fees collected from producers during the year;

the agency shall conduct a referendum of the producers of the agricultural product to determine whether the organization should continue to be designated.

Recommendation to revoke designation

34.1(2)     When in a referendum held under subsection (1)  a majority of the producers voting on the question vote against continuing the designation, the agency shall recommend to the minister that the designation be revoked.

14(1)       Subsection 37(2) is amended by adding "or 27" after "section 25".

14(2)       The following is added after subsection 37(2):

Payment deemed to be withheld under Part 3.1

37(2.1)     An amount paid pursuant to an order under subsection (2) is deemed to have been withheld and remitted in accordance with Part 3.1.

15          Section 38 is amended

(a) in clause (a), by striking out "Part III" and substituting "Part 3.1"; and

(b) by repealing clause (c).

Coming into force

16          This Act comes into force on the day it receives royal assent.