The tribunal has once again denied the Christian
Farmers Federation of Ontario application to be certified under the Farm
Registration and Farm Organizations Funding Act.
It means the CFFO remains stranded without access
to membership fees that are collected by government authority and held by
Agricorp.
Given the reasons cited by the Ontario
Agriculture, Food and Rural Affairs Appeal Tribunal, it seems likely that the
Ontario Federation of Agriculture and the Ontario branch of the National
Farmers Union will also fall short of meeting all of the criteria for
accreditation.
One of the chief stumbling blocks for the CFFO
arises out of the previous tribunal decision, issued in May, that left the three
organizations short of members who have paid a membership fee of at least $195
per year.
That problem arose because the tribunal ruled
that farmers are not members until the organization can provide proof that they
have explicitly applied to become members
The tribunal also notes that it made a decision
in May of 2010 related to McCrae
Farm Ltd. and made sure the CFFO had a copy because it spelled out this issue
about membership.
“It is unclear why the Tribunal's warning in the
McCrae decision went unheeded,” says the tribunal’s decision.
The tribunal also wrote that “there must be an
explicit membership agreement between the parties (consisting of an explicit
application for membership, an explicit acceptance of that application, and an
explicit communication of that acceptance to the applicant) before the person
making the payment can be treated as a member and before the payment can be
treated as a membership fee by the farm organization.
“Although not strictly required under the
legislation, it would be prudent for any farm organization seeking
accreditation to document all of its memberships in writing.”
Several related issues arise out of this
membership issue. The organization’s locals have elected executives who fail to
meet the criteria to be members.
The legislation says the executive board needs to
consider and respond to submissions from members and the tribunal says the CFFO
has failed to ensure that happens.
Without a process spelled out in the CFFO bylaws,
the tribunal says “submissions could be ignored rather than receiving the
consideration and response required by section 5(1)8 of the Regulation.
“While the Tribunal does not doubt the good faith
of the executive board, the Tribunal is not satisfied on the evidence before it
that there is an established process under which the executive board has a duty
to consider an individual member's submissions and to respond to them.
Accordingly, the second condition under section 5(1)8 of the Regulation has not
been met.”
On the issue of membership fees, the tribunal
says “the CFFO, in carrying out its calculations, has ignored the plain wording
of section 5(1)12.i, which requires the HST to be backed out of the $195
membership fee in arriving at the revenue number.
“The section specifically states that the number
of members is to be multiplied by ‘$195 less the amount that would be payable
in taxes if this amount were being charged as a membership fee.’
“Assuming HST of 13 per cent, the correct amount
for the revenue calculation is $172.57, since $22.43 of a $195, tax-inclusive
membership fee would be attributable to HST.
“The Tribunal appreciates that the CFFO adds HST
to its $195 membership fee, but section 5(1)12.i assumes a tax-inclusive
membership fee of $195 in parallel with section 5(1)3 of the Regulation,
regardless of the actual membership fee charged or tax treatment given by a
farm organization.
“Although using the $172.57 number would increase
the CFFO's percentages (assuming that they could be meaningfully calculated),
it is important to follow the plain wording of the legislation,” the tribunal
has ruled.
It ends its decision saying it has no choice but
to deny the CFFO application for accreditation because it has failed to meet
all of the criteria.
And the tribunal also notes that it has no
jurisdiction to grant the CFFO interim accreditation so it can get its hands on
the money that has been collected from farmers while it scrambles to meet the
requirements as spelled out in the legislation and interpreted by the tribunal.
The legislation gives the tribunal the final say
on accreditation; there is no right of appeal to the Minister of Agriculture or
to the courts.
