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The Agricultural Producers' Organization Funding Act
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This version is current as of June 22, 2017.
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C.C.S.M. c. A18

The Agricultural Producers' Organization Funding Act

(Assented to December 20, 1988)

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

PART 1

DEFINITIONS AND PURPOSE

Definitions

1(1)        In this Act,

"agency" means the Manitoba Farm Products Marketing Council continued by subsection 12(1) of The Farm Products Marketing Act; (« Bureau »)

"agricultural product" means

(a) agricultural produce grown or harvested in Manitoba;

(b) livestock or poultry raised or kept in Manitoba, whether alive or slaughtered; and

(c) milk, eggs and honey or any product of agricultural produce, livestock or poultry produced in Manitoba; (« produit agricole »)

"certified organization" means the organization certified by the agency under Part 3; (« organisme accrédité »)

"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence; (« conjoint de fait »)

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

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"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 »)

"person" includes a partnership, limited partnership, syndicate, trustee, joint venture, and any association of persons; (« personne »)

"producer" means a person who produces and markets an agricultural product in Manitoba; (« producteur »)

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

"qualified organization" means an organization determined by the agency to be a qualified organization under section 14; (« organisme admissible »)

"regulations" means the regulations made under this Act. (« règlements »)

Registered common-law relationship

1(2)        For the purposes of this Act, while they are cohabiting, persons who have registered their common-law relationship under section 13.1 of The Vital Statistics Act are deemed to be cohabiting in a conjugal relationship of some permanence.

S.M. 1995, c. 18, s. 3; S.M. 2002, c. 24, s. 2; S.M. 2002, c. 48, s. 28; S.M. 2013, c. 48, s. 1.

Purpose of the Act

2           The purpose of this Act is to facilitate the funding of

(a) a certified organization; and

(b) other organizations that represent producers of specific agricultural products;

by requiring the purchasers of agricultural products to assist in the collection of fees for those organizations.

PART 2

RESPONSIBILITIES OF THE AGENCY AND RELATED MATTERS

3           [Repealed]

S.M. 1999, c. 33, s. 12; S.M. 2013, c. 48, s. 1.

4 to 8      [Repealed]

S.M. 2013, c. 48, s. 1.

Responsibilities

9           The agency is responsible for the following:

(a) determining what organizations are qualified organizations under Part 3;

(b) determining a certified organization under Part 3;

(c) recommending the designation of organizations under Part 4; and

(d) exercising and performing any other powers and duties assigned to it by this Act and the regulations.

S.M. 1995, c. 18, s. 4.

Application of Farm Products Marketing Act

9.1         When performing a duty or function or exercising a power under this Act, the agency has the same powers as it has in its role under The Farm Products Marketing Act.

S.M. 2013, c. 48, s. 1.

Definition of "dependant"

10(1)       In this section, "dependant" means a person who resides with a member of the agency and who is

(a) the spouse of a member;

(a.1) the common-law partner of a member; or

(b) a child of the member.

Disqualification of agency members

10(2)       No member of the agency shall participate in a determination by the agency under Part 3 that an organization is a qualified organization or that a qualified organization is the certified organization if

(a) the member is, or has been within a period of six months immediately preceding the date on which the determination or certification is to be made by the agency, a member of the executive, or an employee of the organization or any qualified organization that is being considered for certification;

(b) any of his or her dependants is a member of the executive, or is an employee of the organization or any qualified organization that is being considered for certification; or

(c) the member has, within a period of six months immediately preceding the date on which the determination or certification is to be made by the agency, acted as solicitor, counsel or agent for the organization or any qualified organization that is being considered for certification.

S.M. 1995, c. 18, s. 5; S.M. 2002, c. 24, s. 2.

Immunity from liability

11          No member or employee of the agency or of the government is personally liable for anything done or omitted to be done in good faith and without negligence in the exercise of any power or the performance of any duty under the authority or supposed authority of this Act or the regulations.

Report to the minister

12(1)       The agency shall advise the minister

(a) of a determination of an organization as a qualified organization;

(b) of a determination that an organization is no longer a qualified organization; and

(c) of a certification of a qualified organization as the certified organization;

(d) [repealed] S.M. 1995, c. 18, s. 6;

within seven days of making a determination or certification.

Report to the legislature

12(2)       Each report provided to the minister under subsection (1) shall be laid before the Legislative Assembly within 15 days after its receipt by the minister if the Legislative Assembly is then in session or, if it is not then in session, within 15 days after the commencement of the next ensuing session.

S.M. 1995, c. 18, s. 6; S.M. 1996, c. 64, s. 1.

PART 3

DETERMINATION OF THE CERTIFIED ORGANIZATION

DIVISION 1

QUALIFICATION

Application for qualification

13(1)       An organization that considers itself entitled to be determined a qualified organization may apply to the agency in writing for such a determination.

Consideration of application

13(2)       Upon receipt of an application under subsection (1), the agency shall

(a) review the charter and by-laws of the organization; and

(b) take whatever steps or proceedings it considers necessary or desirable to determine whether or not the organization meets the requirements of a qualified organization set out in section 14.

Determination of qualified organization

14          If an organization is a corporation without share capital incorporated under The Corporations Act, and in the opinion of the agency

(a) includes in the restrictions to its undertaking, the promotion of the interests of Manitoba producers and the development and promotion of a unified policy voice for Manitoba producers;

(b) is generally prepared to accept into its membership all individuals actively engaged in farming in Manitoba upon the payment of an annual membership fee; and

(c) is not a purchaser;

the agency shall determine that the organization is a qualified organization.

Loss of qualification

15(1)       It is a condition of maintaining its status as a qualified organization that a qualified organization,

(a) in the opinion of the agency, continues to meet the requirements of section 14; and

(b) submits any changes in its charter or by-laws to the agency immediately following the making of any such change.

Agency to determine loss of qualification

15(2)       For the purpose of subsection (1), the agency shall determine whether an organization is no longer a qualified organization.

DIVISION 2

CERTIFICATION

Application for certification

16(1)       A qualified organization may apply to the agency for certification as the certified organization.

Certification limited

16(2)       Only one qualified organization may be certified as the certified organization at any one time.

Automatic certification

17(1)       If on October 1 in any year

(a) no qualified organization has been certified as the certified organization; and

(b) the agency has received only one application under subsection 16(1);

the agency shall, prior to October 31 of that year, certify that qualified organization as the certified organization.

Effective date of certification

17(2)       The certification under subsection (1) shall be effective from January 1 of the following year.

More than one application

18(1)       If on October 1 in any year

(a) no qualified organization has been certified as the certified organization; and

(b) the agency has received more than one application under subsection 16(1);

the agency shall, prior to November 30 of that year, certify as the certified organization the qualified organization which in the opinion of the agency represents the greatest number of producers in Manitoba.

Effective date of certification

18(2)       The certification under subsection (1) shall be effective from January 1 of the following year.

Review by agency

18(3)       Before certifying a qualified organization under subsection (1), the agency

(a) shall review lists of persons who have currently paid annual membership fees to the applicants; and

(b) may take whatever steps or proceedings that it considers necessary or desirable to make its decision, including holding hearings or conducting a referendum.

Term of certification

19(1)       Any certification shall be valid for a period of two years from the effective date of the certification.

Automatic renewal of certification

19(2)       A certified organization shall automatically continue to be certified for subsequent consecutive two year terms unless the agency receives an application for certification from one or more other qualified organizations under subsection 20(1).

Challenges to certification

20(1)       If the agency receives an application for certification from one or more qualified organizations prior to October 1 of the second year of the term of certification of the certified organization, the agency shall prior to November 30 of that year certify from among

(a) the applicant qualified organizations; and

(b) the certified organization;

that organization as the certified organization which in the opinion of the agency represents the greatest number of producers in Manitoba.

Effective date of certification

20(2)       A certification under subsection (1) shall be effective from January 1 of the following year.

Review by agency

20(3)       Before certifying a qualified organization under subsection (1), the agency

(a) shall review lists of persons who have currently paid annual membership fees to the applicants; and

(b) may take whatever steps or proceedings which it considers necessary or desirable to make its decision, including holding hearings or conducting a referendum.

Loss of certification

21          otwithstanding subsections 19(1) and 22(3), certification under this Part shall automatically cease immediately upon the certified organization ceasing to be a qualified organization under section 15.

Interim certification

22(1)       Notwithstanding sections 17, 18, and 19,

(a) if 90 days after this Act comes into force, the agency has received only one application under subsection 16(1), the agency shall certify that qualified organization as the certified organization; and

(b) if 90 days after this Act comes into force, the agency has received more than one application under subsection 16(1), the agency shall, within 120 days after this Act comes into force, certify the qualified organization that in the opinion of the agency represents the greatest number of producers in Manitoba as the certified organization.

Review by agency

22(2)       Before certifying a qualified organization under subsection (1), the agency

(a) shall review lists of persons who have currently paid annual membership fees to the applicants; and

(b) may take whatever steps or proceedings which it considers necessary or desirable to make its decision, including holding hearings or conducting a referendum.

Term of certification

22(3)       A certification made under this section shall be valid for a term to expire December 31, 1990, and the year 1990 is then deemed to be the second year of the term of certification of the certified organization for the purpose of section 20.

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.

S.M. 1995, c. 18, s. 9.

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.

S.M. 1995, c. 18, s. 9.

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.

S.M. 1995, c. 18, s. 9.

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.

S.M. 1995, c. 18, s. 9.

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.

S.M. 1995, c. 18, s. 9.

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.

S.M. 1995, c. 18, s. 9.

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.

S.M. 1995, c. 18, s. 9.

DIVISION 3

COLLECTION BY DESIGNATED PURCHASERS

Application

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

S.M. 1995, c. 18, s. 9.

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.

S.M. 1995, c. 18, s. 9.

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).

S.M. 1995, c. 18, s. 9.

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).

S.M. 1995, c. 18, s. 9.

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.

S.M. 1995, c. 18, s. 9.

PART 4

FUNDING OF DESIGNATED PRODUCER ORGANIZATIONS

Petition for designation of organization of producers

31(1)       An organization of producers of an agricultural product may submit a petition to the agency requesting that the organization be designated as the representative organization for producers of that agricultural product if the organization,

(a) is a corporation without share capital or a cooperative incorporated under the laws of the province; and

(b) is prepared to accept into its membership all persons actively engaged in the production of the agricultural product in Manitoba upon payment of a membership fee or other charge required to establish and maintain membership.

Petition to contain information

31(2)       The petition shall set out the following information:

(a) the agricultural product that is the subject of the petition;

(b) the objects of the organization, including its proposed program for commencing, stimulating or improving the production or marketing of the agricultural product;

(c) whether the program is to apply to all of Manitoba or only certain parts of Manitoba;

(d) if the program is to apply to parts of Manitoba, those parts of Manitoba to which the program will apply;

(e) any class, variety, grade or kind of the agricultural product that is to be exempted from the program;

(f) the persons, if any, that are to be exempted from the program;

(g) the method by which the organization is to be financed, including the amount or method of determining fees payable by producers of the agricultural product;

(h) whether other alternatives are available for the funding of the program within a marketing plan under The Farm Products Marketing Act.

Agency to study petition

31(3)       The agency shall assess the petition and may require such further information concerning the organization and its proposed program and operation as the agency considers necessary.

S.M. 2001, c. 16, s. 37.

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.

60% majority required

32(2)       If a referendum is held, it shall be considered to be in favour of designation of an organization as the representative organization if at least 60% of the producers voting on the question vote in favour of the designation.

Eligibility to vote in referendum

32(3)       For the purpose of this section, the agency shall determine all matters respecting the conduct of a referendum including what producers are eligible to vote.

S.M. 1995, c. 18, s. 10.

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 Farm 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.

S.M. 1995, c. 18, s. 11; S.M. 2001, c. 16, s. 37.

Regulations

34(1)       If a recommendation is made under section 33, the Lieutenant Governor in Council may make regulations

(a) designating an organization of producers of an agricultural product, if the organization is a corporation without share capital or a cooperative incorporated under the laws of the province, as the representative organization of all producers of the agricultural product;

(b) establishing, amending, and revoking any program for stimulating, increasing and improving the production or marketing of an agricultural product;

(c) requiring producers of the agricultural product to pay fees to the organization for the purpose of funding the program of the organization;

(d) designating the amount or method of determining fees and the manner in which they are to be paid;

(e) requiring purchasers who buy the agricultural product from a producer to deduct from moneys payable to the producer any fees payable by the producer and to forward those fees to the organization;

(f) authorizing the organization to use the fees for the purposes of defraying the expenses of the organization in the carrying out of its program;

(g) requiring purchasers to keep books and records respecting the purchase of agricultural products and to furnish copies of them when requested to do so by the agency;

(h) requiring the organization to furnish to the agency such information and financial statements as the agency determines; and

(i) respecting methods to ensure that the fees paid to the organization are properly used for the program of the organization.

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.

34(3)       [Repealed] S.M. 1995, c. 18, s. 12.

Limitations and exceptions

34(4)       A regulation made under subsection (1) may

(a) be limited as to time and place;

(b) exempt from the regulation any person or class of persons or any class, variety, grade or kind of the agricultural product;

(c) fix fees of different amounts for different classes, varieties, grades or kinds of the agricultural product.

S.M. 1995, c. 18, s. 12.

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.

S.M. 1995, c. 18, s. 13.

PART 5

GENERAL PROVISIONS

Appointment of inspectors

35          The Lieutenant Governor in Council may appoint persons as inspectors for the purpose of enforcing this Act and the regulations.

Powers of inspectors

36          An inspector may at any reasonable time and upon presentation of identification,

(a) enter any place where books and records of a purchaser are required to be kept under the Act or the regulations; and

(b) inspect and make copies of the books and records of a purchaser and any other documents of that purchaser or of any other person that relate or may relate to the information that is or should be in the records of the purchaser.

Offences

37(1)       A person who contravenes a provision of this Act or the regulations is guilty of an offence and is liable on summary conviction to a fine of not more than $1000.

Payment in addition to fine

37(2)       In addition to the fine provided for in subsection (1), the justice shall order a purchaser who is guilty of an offence under section 25 or 27, or a regulation made under subsection 34(1), to pay to the organization to whom the fees were required to be paid an amount equal to the fees that the purchaser failed to withhold or remit, or both, as the case may be, together with interest on that amount at a rate determined by the court.

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.

Prosecution of offences

37(3)       Notwithstanding the provisions of any other Act of the Legislature, a prosecution for an offence under this Act may be commenced at any time within 6 months after the date of the alleged offence and, where an alleged offence under this Act relates to or arises out of a misrepresentation or fraud on the part of the accused, a prosecution for an offence under this Act may be commenced at any time within 6 months after the date on which the misrepresentation or the fraud becomes known to the minister.

S.M. 1995, c. 18, s. 14; S.M. 1996, c. 64, s. 1.

Regulations

38          The Lieutenant Governor in Council may make regulations

(a) exempting any person or class of persons from the application of any of the provisions of Part 3.1 on such terms and conditions as the Lieutenant Governor in Council considers appropriate;

(b) exempting any agricultural product or any class of agricultural product from the definition of "agricultural product" as defined in this Act;

(c) [repealed] S.M. 1995, c. 18, s. 15;

(d) generally for the purpose of carrying out the provisions of this Act.

S.M. 1995, c. 18, s. 15.

DISSOLUTION OF FORMER AGENCY AND TRANSITIONAL PROVISIONS

Definitions

38.1(1)     The following definitions apply in this section.

"former agency" means the Agricultural Producers' Organization Certification Agency provided for in this Act as it read immediately before the coming into force of this section. (« ancien bureau »)

"new agency" means the Manitoba Farm Products Marketing Council. (« nouveau bureau »)

Dissolution of former agency

38.1(2)     On the coming into force of this section,

(a) the former agency is dissolved;

(b) the appointments of the members of the former agency are terminated, and all rights and obligations of the members in relation to or under those appointments are extinguished;

(c) the rights and property of the former agency are vested in the government; and

(d) all liabilities and obligations of the former agency are assumed by the government.

Continuation of proceedings

38.1(3)     A legal proceeding or action commenced by or against the former agency may be continued by or against the new agency as if it were the former agency.

Judicial review of former agency's decisions

38.1(4)     If a person commences a legal proceeding for judicial review of a decision or action of the former agency, the proceeding must be taken against the new agency.

Transitional — regulations

38.1(5)     A regulation made by the former agency that is in effect on the coming into force of this section remains in effect and may be amended, repealed or enforced by the new agency.

Transitional — applications and petitions

38.1(6)     If the former agency has not completed its consideration of an application under Part 3 of the Act or a petition under Part 4 of the Act, the new agency must deal with the application or petition as if it had been made to the new agency.

Transitional — determinations and certifications

38.1(7)     Nothing in this section affects a determination or certification made by the former agency.

S.M. 2013, c. 48, s. 1.

C.C.S.M. REFERENCE AND COMING INTO FORCE

Reference in C.C.S.M.

39          This Act may be referred to as chapter A18 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force of Act

40(1)       This Act, except section 23, comes into force on the day it receives the royal assent.

Coming into force of section 23

40(2)       Section 23 comes into force on January 1, 1989.