Français

S.M. 1988-89, c. 17

Bill 28, 1st Session, 34th Legislature

The Agricultural Producers' Organization Funding Act

Table of contents

(Assented to December 20, 1988)

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

PART I

DEFINITIONS AND PURPOSE

Definitions

1 In this Act,

"agency" means the Agricultural Producers' Organization Certification Agency established under section 3; («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 III; («organisme accrédité»)

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

"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" means a person who purchases an agricultural product for resale or processing; («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»)

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 II

AGRICULTURAL PRODUCERS' ORGANIZATION CERTIFICATION AGENCY

Establishment of agency

3(1)

There is hereby established an agency known as the Agricultural Producers' Organization Certification Agency.

Membership

3(2)

Except as provided in subsection (3), the agency shall consist of not less than four and not more than five members appointed by the Lieutenant Governor in Council who shall include the following persons:

(a) the Dean of the Faculty of Agriculture of the University of Manitoba;

(b) the Director of the School of Agriculture of the University of Manitoba;

(c) the President of the Manitoba Institute of Agrologists; and

(d) the President of the Union of Manitoba Municipalities;

or the person holding the equivalent office, unless any of those persons is unwilling to accept the appointment.

Membership

3(3)

Where not all of the persons referred to in subsection (2) are willing to accept an appointment, the agency shall consist of those persons willing to accept an appointment under subsection (2) and such additional persons appointed by the Lieutenant Governor in Council as are necessary to constitute an agency of not less than three members.

Term of office

3(4)

The term of office of a member of the agency shall be the period specified in the order appointing the member, and where that period has passed, the member shall continue to hold office until a successor is appointed.

Remuneration

3(5)

The members of the agency shall be paid remuneration determined by the Lieutenant Governor in Council, and such reasonable expenses as the minister may approve.

Agency is corporation

4

The agency is a corporation.

Chairperson and vice-chairperson

5(1)

The Lieutenant Governor in Council shall designate one member of the agency as the chairperson and another member as the vice-chairperson of the agency.

Duties of chairperson

5(2)

The chairperson shall preside at meetings of the agency.

Duties of vice-chairperson

5(3)

The vice-chairperson shall act as chairperson when the office of chairperson is vacant or when the chairperson is absent or unable to act.

Quorum

6(1)

A quorum at meetings of the agency is three.

Majority decision

6(2)

A decision of the majority of the members present and voting at a duly constituted meeting is a decision of the agency.

Procedures

7

The agency may determine its own procedures in performing its responsibilities and exercising its powers.

Employees

8

Such employees as are necessary for the proper administration of the agency may be appointed under The Civil Service Act.

Responsibilities

9

The agency is responsible for the following:

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

(b) determining a certified organization under Part III;

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

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

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, including a person who is not married to the member but whom the member represents as his or her spouse; 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 III 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.

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;

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

(d) of an approval for fees of the certified organization under section 26;

within seven days of making a determination or certification or granting an approval of fees.

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.

PART III

FUNDING OF THE CERTIFIED ORGANIZATION

DIVISION I

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 II

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

Notwithstanding 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.

DIVISION III

COLLECTION OF MEMBERSHIP FEES

Purchasers to keep books and records

23(1)

Each purchaser shall keep and maintain complete and accurate books and records which set out for each person who sells an agricultural product to the purchaser

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

(b) the type of agricultural product sold by that person;

(c) the amount of the annual membership fee collected from time to time by the purchaser from that person under subsection 25(1);

(d) the date of the annual membership fee collection; and

(e) the date of remittance of the annual membership fee to the certified organization.

Retention of books and records

23(2)

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

Purchasers to supply information

24

Within 30 days of receipt of a written request from a certified organization, every purchaser shall provide the certified organization with

(a) the name and address of each person who has sold agricultural product to the purchaser of a value of $500 or more during the preceding 12 months; and

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

Purchasers to collect fees

25(1)

A purchaser who receives from a certified organization

(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 any amounts payable or to become payable by the purchaser to a person named on that list;

shall comply with the request during a period of one year beginning 45 days following the date of receipt of the list and request.

Remittance within 30 days

25(2)

A purchaser shall remit to the certified organization any amounts withheld under subsection (1) within 30 days of the date of withholding, 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 the person from whom the amount was withheld.

Maximum membership fee

26

For the purpose of section 25, the maximum annual membership fee of a certified organization shall be $75. or such greater amount as may be approved from time to time by the agency.

Membership fees

27

The certified organization shall treat the monies remitted to it under section 25 or paid to it under subsection 37(2)

(a) as an application for membership or a renewal of membership in the certified organization; and

(b) as payment of the annual membership fee in the certified organization;

by the person from whom the monies were withheld or ought to have been withheld.

Notification to producers

28

At the same time that the certified organization forwards 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 that the purchaser deduct and remit to the certified organization an amount equal to the annual membership fee of the certified organization from the monies otherwise payable to that person by that purchaser; and

(b) that the person has a right to object to the deduction of the annual membership fee.

Objection to deduction of fees

29(1)

A person who objects to the deduction of an annual membership fee shall advise the certified organization in writing of his or her objection.

Where objection received

29(2)

Upon receipt of 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 a period of two years from the receipt of the objection without the prior written consent of that person; and

(d) refund to a person who files an objection any fee that is withheld by a purchaser and remitted to the certified organization after the date the objection is received.

Purchaser to allow inspection

30

Each 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 section 23, and shall otherwise facilitate an inspection.

PART IV

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 Natural 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.

Referendum

32(1)

Where the agency is satisfied that

(a) a sufficient number of producers might favor the designation of an organization as the representative organization for that agricultural product; and

(b) the proposed program of the organization is not appropriately funded within a marketing plan under The Natural Products Marketing Act;

it may cause a referendum to be held of the producers of that product to determine if the organization should be designated under this Part.

60% majority required

32(2)

A referendum 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.

Recommendation of designation

33

If a vote in a referendum is in favour of the designation of an organization, the agency may recommend to the minister the designation of the organization as the representative organization of all producers of the agricultural product and the establishment of the proposed program of the organization for stimulating, increasing and improving the production or marketing of the agricultural product.

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.

Authorization number

34(2)

Every regulation made under subsection (1) shall provide

(a) that a producer who objects to the payment of fees to the organization may obtain from the organization an authorization number; and

(b) that no purchaser shall deduct from moneys payable to the producer a fee imposed by regulation upon being advised by the producer at the time of sale of the producer's authorization number.

Number valid until cancelled

34(3)

An authorization number is valid until the person to whom it is assigned requests that it be cancelled.

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.

PART V

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 a regulation made under clause 33(2)(e), 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.

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 any time within 6 months after the date on which the misrepresentation or the fraud becomes known to the minister.

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 III on such terms and conditions as the Lieutenant Governor in Council considers appropriate;

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

(c) respecting compensation to be paid by the certified organization to purchasers for the reasonable costs incurred by purchasers in the collection of fees under Part III; and

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

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.