O. Reg. 419/19: VEGETABLES FOR PROCESSING - MARKETING
filed December 10, 2019 under Farm Products Marketing Act, R.S.O. 1990, c. F.9
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made under the
Farm Products Marketing Act
Made: December 3, 2019
Filed: December 10, 2019
Published on e-Laws: December 11, 2019
Printed in The Ontario Gazette: December 28, 2019
Amending Reg. 440 of R.R.O. 1990
(VEGETABLES FOR PROCESSING - MARKETING)
1. (1) The definition of “associated producer” in subsection 1 (1) of Regulation 440 of the Revised Regulations of Ontario, 1990 is revoked.
(2) Clauses (b) and (c) of the definition of “processing” in subsection 1 (1) of the Regulation are amended by striking out “a contract” wherever it appears and substituting in each case “an agreement”.
2. Section 12 of the Regulation is revoked and the following substituted:
12. The delegation of the Commission’s powers under section 10 is subject to the following limitations:
1. The powers of the local board under clause 10 (1) (j) shall not be exercised in a way that is inconsistent with any terms, conditions and forms of agreement settled by a negotiating agency established under section 16, 17, 20 or 23.5 or awarded by an arbitration board under section 23.
2. The powers of the local board under clauses 10 (1) (b), (i), (j), (l), (m) and (n) and section 11 shall not be used to regulate the production and marketing of tomatoes or carrots.
3. Section 14 of the Regulation is amended by striking out “vegetables to be paid” and substituting “vegetables, with the exception of tomatoes or carrots, to be paid”.
4. Section 15 of the Regulation is amended by striking out “vegetables” at the end and substituting “vegetables, with the exception of tomatoes or carrots”.
5. The Regulation is amended by adding the following section:
Interpretation, Sections 15.1.0.1 to 26
15.1.0.1 In this section and in sections 15.1.1 to 26,
“annual agreement” means an agreement, within the framework of an associated producer agreement, between a processor or green shipper and an associated producer for the purchase and sale of vegetables in a particular crop year; (“accord annuel”)
“associated producer” means, in relation to a processor or green shipper, a producer who has entered into an associated producer agreement with the processor or green shipper; (“producteur associé”)
“associated producer agreement” means an agreement between a producer and a processor or green shipper for the purchase and sale of vegetables. (“accord de producteur associé”)
6. The heading immediately before section 15.1.1 and sections 15.1.1 and 15.1.2 of the Regulation are revoked and the following substituted:
Requirements for Associated Producer Agreements
15.1.1 Sections 15.1.2 and 15.1.2.1 apply to every associated producer agreement entered into on or after November 15, 2019.
15.1.2 (1) Every associated producer agreement shall have a minimum term of three years and provide for the negotiation of annual agreements.
(2) Every associated producer agreement shall provide, as a term of the agreement, that the agreement may be terminated,
(a) immediately by the processor or green shipper, for cause, if the associated producer fails to produce in a crop year the vegetable to which the agreement relates, unless the associated producer and the processor or green shipper agree that the associated producer will not produce the vegetable in the crop year;
(b) by either party to the agreement, as of the date determined in accordance with subsection (3); or
(c) at any time agreed upon by both of the parties in writing.
(3) If notice of termination of an associated producer agreement is given under clause (2) (b), the termination shall be effective,
(a) in the case of an agreement relating to tomatoes or carrots, on January 1 of the third year following the year in which the notice is given; or
(b) in the case of an agreement relating to all other vegetables, on January 1 of the second year following the year in which the notice is given.
15.1.2.1 (1) Every associated producer agreement for tomatoes or carrots shall be in writing and contain the following:
1. The minimum annual tonnage that the processor shall purchase from the associated producer in a crop year.
2. A dispute resolution mechanism to be used by the associated producer and the processor when directly negotiating an annual agreement pursuant to section 23.4 during the term of the associated producer agreement.
(2) Subject to subsection (3), the minimum annual tonnage set out in every associated producer agreement referred to in subsection (1) for the 2020, 2021 and 2022 crop years shall be, at a minimum, 90 per cent of the amount determined in accordance with the following rules:
1. For any of the 2017, 2018 and 2019 crop years in which an associated producer produced tomatoes or carrots, as the case may be, determine the average amount of tomatoes or carrots purchased by the processor from the associated producer during those crop years, represented as a percentage of the total amount of tonnage purchased by the processor during those crop years from all of its associated producers.
2. Multiply the percentage determined under paragraph 1 by the total tonnage of tomatoes or carrots, as the case may be, purchased by the processor in the 2019 crop year from all of its associated producers.
(3) Every associated producer agreement referred to in subsection (1) shall provide that the processor may reduce the minimum annual tonnage to be purchased from the associated producer for the 2020, 2021 or 2022 crop year provided that,
(a) the processor reduces the minimum annual tonnage to be purchased from each of its associated producers by the same percentage;
(b) the overall tonnage to be purchased by the processor in the crop year does not exceed the minimum annual tonnage as reduced by clause (a); and
(c) the processor provides notice to its associated producers of its intention to reduce the minimum annual tonnage to be purchased at or before the annual meeting held under section 23.3.
7. The Regulation is amended by adding the following section:
Annual Meetings in Advance of Negotiations
15.1.2.2 Except as provided for in sections 23.1 to 23.10, sections 15.1.3 to 23 do not apply with respect to tomatoes or carrots.
8. (1) Subsection 15.1.3 (1) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:
(1) The local board shall hold an annual meeting for each processor and green shipper that has entered into associated producer agreements and invite the processor or green shipper, as the case may be, and its associated producers to the meeting for the purpose of,
. . . . .
(2) Clause 15.1.3 (1) (a) of the Regulation is amended by striking out “their” and substituting “its”.
(3) Subsection 15.1.3 (5) of the Regulation is revoked and the following substituted:
(5) The meeting shall be held at any time before the deadline set out for the relevant vegetable in Column 2 of the Schedule to this Regulation.
9. The English version of section 15.2 of the Regulation is amended by striking out “Every” at the beginning of the portion before paragraph 1 and substituting “Each”.
10. (1) Subsection 16 (2) of the Regulation is revoked.
(2) Subsection 16 (5) of the Regulation is revoked and the following substituted:
(5) On or before the deadline set out for the relevant vegetable in Column 2 of the Schedule to this Regulation, the local board and the processor or green shipper shall give notice of the appointment of their members to each other and to the Commission.
(3) Clause 16 (6) (b) of the Regulation is revoked and the following substituted:
(b) for each member, his or her name, address, email address and phone number.
11. (1) Subsection 17 (2) of the Regulation is amended by striking out “(2)” in the portion before paragraph 1 and substituting “(3)”.
(2) The French version of subparagraph 1 i of subsection 17 (2) of the Regulation is amended by striking out “assemblées” wherever it appears and substituting in each case “réunions”.
(3) The French version of subparagraph 1 ii of subsection 17 (2) of the Regulation is amended by striking out “assemblée” and substituting “réunion”.
12. (1) Subsection 19 (2) of the Regulation is amended by striking out “A party to a” at the beginning of the portion before clause (a) and substituting “The members of a”.
(2) Subsection 19 (4) of the Regulation is revoked.
13. (1) Subsection 20 (2) of the Regulation is revoked and the following substituted:
(2) If notice is given under subsection (1) by a processor or green shipper, a negotiating agency shall be established.
(2) Subsection 20 (3) of the Regulation is amended by striking out the portion before paragraph 1 and substituting the following:
(3) Within five days after a notice of intention to negotiate is given under subsection (1), the local board and the processor or green shipper shall determine the following dates and give the Commission written notice of them:
. . . . .
(3) Subsection 20 (4) of the Regulation is amended by striking out “the parties to the negotiating agency of them” at the end and substituting “the local board and the processor or green shipper”.
(4) Subsection 20 (7) of the Regulation is revoked.
14. Clause 21 (3) (b) of the Regulation is amended by striking out “48 hours” and substituting “five business days”.
15. (1) Subsection 22 (1) of the Regulation is amended by striking out “Either party to a” at the beginning and substituting “The associated producer or processor or green shipper members of a”.
(2) Clause 22 (4) (a) of the Regulation is amended by striking out “to effect” and substituting “to reach an”.
(3) Clause 22 (4) (b) of the Regulation is amended by striking out “effected” and substituting “reached”.
16. The Regulation is amended by adding the following sections:
Tomato and Carrot Negotiations
23.1 Sections 23.2 to 23.10 apply only with respect to tomatoes and carrots.
23.2 (1) Each year, an associated producer shall negotiate certain terms and conditions of the associated producer’s annual agreement with the processor by,
(a) negotiating, at a minimum, the terms and conditions set out in section 23.4 directly with the associated producer’s processor; or
(b) negotiating the matters set out in subsection 23.5 (1) through a negotiating agency established in accordance with that section.
(2) The associated producers of each processor shall negotiate through a negotiating agency unless, during an annual meeting held under section 23.3, a majority of the associated producers present at the meeting vote to negotiate directly with the processor.
(3) The vote shall be by secret ballot and conducted by a representative of the Commission.
(4) If negotiations are conducted through a negotiating agency established under section 23.5, no charges, costs or expenses relating to the production or marketing of tomatoes or carrots, as the case may be, shall be made other than the charges, costs or expenses provided for in any agreement entered into following the negotiations or, if the negotiating agency is unable to reach a comprehensive settlement, the charges, costs or expenses provided for in an award of an arbitration board.
Annual Meetings in Advance of Negotiations — Tomatoes and Carrots
23.3 (1) Each processor shall hold an annual meeting and invite its associated producers to the meeting for the purposes of,
(a) giving the processor’s associated producers an opportunity to conduct a vote as to whether to negotiate directly with the processor;
(b) allowing the processor and its associated producers to discuss anything relevant to the matters that are to be negotiated as part of an annual agreement; and
(c) if negotiations are to be conducted through a negotiating agency, allowing the associated producers to elect, from among themselves, by secret ballot, up to three individuals as members of the negotiating agency for the processor.
(2) The processor shall give at least two weeks’ notice of the meeting to its associated producers.
(3) The notice shall be given electronically or by telephone, at the associated producer’s email address or telephone number set out in the associated producer agreement.
(4) The meeting shall be held at any time before the deadline set out for tomatoes or carrots, as the case may be, in Column 2 of the Schedule to this Regulation.
Direct Negotiations
23.4 At a minimum, the following terms and conditions must be included in an annual agreement negotiated directly by a processor and its associated producer:
1. Minimum prices for tomatoes or carrots, including for any class, variety, grade or size.
2. The payment schedule for payments by the processor to the associated producer.
3. Any charges, costs or expenses relating to the production or marketing of tomatoes or carrots.
Negotiating Agencies — Tomatoes and Carrots
23.5 (1) Each year in which negotiations are to be conducted through a negotiating agency, a negotiating agency shall be established for the processor to adopt or settle the following matters by agreement:
1. Minimum prices for tomatoes or carrots, including for any class, variety, grade or size.
2. Terms, conditions and forms of agreements relating to the producing and marketing of tomatoes or carrots.
3. Any charges, costs or expenses relating to the production or marketing of tomatoes or carrots.
(2) The members of the negotiating agency for the processor shall be determined in accordance with the following rules:
1. The associated producers of the processor who were elected under clause 23.3 (1) (c) are members of the negotiating agency.
2. The processor shall appoint individuals as processor members of the negotiating agency.
3. Subject to paragraph 4, the processor may appoint up to three associated producer members to the negotiating agency.
4. The associated producer members of the negotiating agency appointed by the processor under paragraph 3 shall not be a majority of the associated producer members of the negotiating agency.
(3) On or before the deadline set out for tomatoes or carrots, as the case may be, in Column 2 of the Schedule to this Regulation, a notice of the appointment of the members to the negotiating agency shall be given to the local board and the Commission.
(4) The notice of the appointment of the members of the negotiating agency shall include,
(a) the name of each member; and
(b) for each member, his or her name, address, email address and phone number.
(5) If no members have been elected under clause 23.3 (1) (c) or if no members have been appointed by the processor under paragraph 3 of subsection (2) on or before the relevant deadline, the Commission shall appoint members to the negotiating agency in a manner that permits balanced representation on the negotiating agency.
Negotiations — Tomatoes and Carrots
23.6 Section 19 applies, with necessary modifications, to negotiations respecting tomatoes and carrots.
Late Negotiations — Tomatoes and Carrots
23.7 (1) A processor of tomatoes or carrots that is not operating in Ontario at the time negotiating agencies are established under section 23.5 for any given year may enter into associated producer agreements and annual agreements with producers of tomatoes or carrots, as the case may be.
(2) In the first year of operation of the processor referred to in subsection (1), the associated producers of the processor shall negotiate directly with the processor.
Producers Meetings — Tomatoes and Carrots
23.8 (1) Subject to subsection (2), section 21 applies, with necessary modifications, to meetings of associated producers respecting tomatoes and carrots.
(2) Only associated producers negotiating through a negotiating agency established under section 23.5 are eligible to attend producer meetings.
Conciliation and Arbitration — Tomatoes and Carrots
23.9 (1) Subject to subsection (2), the Commission shall appoint a conciliator acceptable to the members of the negotiating agency two weeks before the deadline set out for tomatoes or carrots, as the case may be, in Column 4 of the Schedule to this Regulation.
(2) The Commission shall not appoint a conciliator where the members of a negotiating agency provide written notice to the Commission that they do not wish to refer the agreement to conciliation.
(3) Any conciliator appointed under subsection (1) shall,
(a) endeavour to reach agreement on the matters set out in subsection 23.5 (1); and
(b) recommend adoption of any agreement reached under clause (a) to the negotiating agency.
23.10 (1) Where a negotiating agency has not reached a comprehensive settlement of the matters set out in subsection 23.5 (1) by 4:00 p.m. on the deadline set out for tomatoes or carrots in Column 4 of the Schedule to this Regulation, section 23 applies with necessary modifications, subject to subsection (2).
(2) If the Commission appointed a conciliator under subsection 23.9 (1), the arbitration board referred to in section 23 shall consist of one member who shall be the individual who was appointed as conciliator, despite subsection 23 (4).
17. The French version of subsection 24 (3) of the Regulation is amended by striking out “assemblée” and substituting “réunion”.
18. Section 27 of the Regulation is revoked.
19. Section 28 of the Regulation is amended by striking out “March 31, 2020” at the end and substituting “June 30, 2023”.
20. Section 29 of the Regulation is revoked.
Commencement
21. This Regulation comes into force on the day it is filed.
Made by:
Pris par :
Ontario Farm Products Marketing Commission:
La Commission de commercialisation des produits agricoles de l’Ontario :
Jim Clark
Brendan Mckay
Secretary to the commission / Secrétaire de la Commission
Date made: December 3, 2019
Pris le : 3 décembre 2019