R.R.O. 1990, Reg. 440: VEGETABLES FOR PROCESSING - MARKETING

Farm Products Marketing Act

R.R.O. 1990, REGULATION 440

VEGETABLES FOR PROCESSING — MARKETING

Historical version for the period March 17, 2005 to August 30, 2011.

Last amendment: O. Reg. 117/05.

This is the English version of a bilingual regulation.

1. (1) In this Regulation,

“local board” means Ontario Processing Vegetable Growers; (“commission locale”)

“plan” means The Ontario Vegetable Growers’ Marketing-for-Processing Plan; (“plan”)

“processing” means,

(a) canning, dehydrating, drying, freezing, pickling or processing with sugar or sulphur dioxide or any other chemical or by heat, and combining or mixing a vegetable with one or more other vegetables,

(b) entering into a contract for the purchase of vegetables for the purpose of performing on the vegetables any of the operations mentioned in clause (a), or

(c) entering into a contract for the purpose of having any of the operations mentioned in clause (a) performed on vegetables; (“transformation”)

“processor” means a person engaged in the business of processing vegetables; (“transformateur”)

“producer” means a person engaged in the production of vegetables; (“producteur”)

“vegetables” means the following vegetables produced in Ontario and used for processing:

green and wax beans, lima beans, red beets, cabbage other than cabbage used for coleslaw, carrots, cauliflower, sweet corn, cucumbers, green peas, peppers, pumpkin and squash or tomatoes. (“légumes”) R.R.O. 1990, Reg. 440, s. 1; O. Reg. 554/99, s. 1 (1); O. Reg. 247/04, s. 1.

(2) A person who brines cucumbers to extend their storage life so they may be sold for processing, but who does not do to cucumbers anything else described in the definition of “processing” in subsection (1), is not considered to be a processor of cucumbers for the purposes of this Regulation. O. Reg. 554/99, s. 1 (2).

2. This Regulation provides for the control and regulation in any or all respects of the producing and marketing within Ontario of vegetables, including the prohibition of such producing and marketing in whole or in part. R.R.O. 1990, Reg. 440, s. 2.

Licences

3. (1) No person shall commence or continue to engage in the processing of vegetables except under the authority of a licence from the Commission and except in compliance with the terms and conditions of the licence. R.R.O. 1990, Reg. 440, s. 3 (1).

(2) A licence expires on the date set out in the licence as the expiry date. O. Reg. 811/93, s. 1.

(2.1) If any expiry date is not set out in a licence, the licence expires when the licensee ceases to engage in the processing of vegetables. O. Reg. 811/93, s. 1.

(3) Where the Commission issues a licence to a processor, the Commission shall not charge a licence fee to the processor. R.R.O. 1990, Reg. 440, s. 3 (3).

4. The Commission may refuse to grant a licence or may suspend or revoke a licence,

(a) where the applicant or licensee is not qualified by experience or equipment to properly engage in the business for which the application was made or the licence granted; or

(b) where the applicant or licensee has failed to comply with or has contravened the Act, the regulations, the plan or any order or direction of the Commission. R.R.O. 1990, Reg. 440, s. 4; O. Reg. 167/92, s. 1; O. Reg. 811/93, s. 2.

5. The Commission may impose such terms and conditions upon a licence as the Commission considers proper. R.R.O. 1990, Reg. 440, s. 5.

6. Where, after a hearing, the Commission is of the opinion that the applicant or licensee has failed to comply with or has contravened any term or condition of the licence or the Act, the regulations, the plan or any order or direction of the Commission, the Commission may impose a penalty on the applicant or licensee. R.R.O. 1990, Reg. 440, s. 6.

7. (1) The Commission may require that a processor furnish security or a performance bond that shall not exceed 50 per cent of the price payable to producers for vegetables processed during the immediately preceding twelve-month period or proposed to be processed in the ensuring twelve-month period by the processor. O. Reg. 811/93, s. 3.

(2) The Commission may determine that the security or performance bond is forfeited when the processor who furnished the security or bond fails to comply with or contravenes any term or condition of the processor’s licence or the Act, the regulations, the plan or any order or direction of the Commission. O. Reg. 811/93, s. 3.

8. (1) If a penalty is imposed under section 6 or security or a performance bond is forfeited under subsection 7 (2), the Commission shall pay the penalty or the proceeds of the security or performance bond to the local board for distribution proportionately among the producers of vegetables who sold vegetables to the processor and who did not receive the minimum price for the vegetables, to the extent of the money owing to them. O. Reg. 811/93, s. 3.

(2) If there are no producers as described in subsection (1) or if there is an excess balance of penalty or proceeds, the Commission shall pay the penalty, proceeds or excess balance into the Consolidated Revenue Fund. O. Reg. 811/93, s. 3.

Powers of Local Board

9. The Commission delegates to the local board the power,

(a) to require persons engaged in producing or marketing vegetables to register their names, addresses and occupations with the local board;

(b) to require persons engaged in producing or marketing vegetables to furnish such information relating to the production or marketing of vegetables, including the completing and filing of returns, as the local board determines;

(c) to appoint persons to inspect the books, records, documents, lands and premises and any vegetables of persons engaged in producing or marketing vegetables;

(d) to appoint persons to enter on lands or premises used for the producing of vegetables and measure the area of land used to produce vegetables;

(e) to stimulate, increase and improve the marketing of vegetables by such means as it considers proper;

(f) to co-operate with a marketing board, local board, marketing commission or marketing agency of Canada or of any province in Canada for the purpose of marketing vegetables; and

(g) to do such acts and make such orders and issue such directions as are necessary to enforce the due observance and carrying out of the Act, the regulations and the plan. R.R.O. 1990, Reg. 440, s. 9.

10. The Commission delegates to the local board its powers to make regulations with respect to vegetables,

(a) providing for the licensing of any or all persons before commencing or continuing to engage in the producing or marketing of vegetables;

(b) prescribing or providing for classes of licences and the imposition of terms and conditions on any class of licence;

(c) prohibiting persons from engaging in the producing or marketing of vegetables except under the authority of a licence and except in compliance with the terms and conditions of the licence;

(d) providing for the refusal to grant or renew a licence or for the suspension or revocation of a licence,

(i) where the applicant or licensee is not qualified by experience, financial responsibility or equipment to properly engage in the business for which the application was made or the licence granted, or

(ii) where the applicant or licensee has failed to comply with or has contravened the Act, the regulations, the plan or any order or direction of the Commission, Director or local board or of a marketing agency of Canada;

(e) providing for the imposition, amount, disposition and use of penalties where, after a hearing, the local board is of the opinion that the applicant or licensee has failed to comply with or has contravened any term or condition of the licence or the Act or the regulations, the plan or any order or direction of the local board;

(f) providing for the fixing of licence fees and the payment thereof by any or all persons who are engaged in the producing or marketing of vegetables and the collecting of the licence fees and their recovery by suit in a court of competent jurisdiction;

(g) prescribing the form of licences;

(g.1) providing for the exemption from any or all of the regulations, orders or directions under the plan of any class, variety, grade or size of vegetables, or any person or class of persons engaged in the producing or marketing of vegetables or any class, variety, grade or size of vegetables;

(h) authorizing the fixing of prompt payment discounts, delayed payment penalties and interest on licence fees and service charges owing by any producer or processor or by any person engaged in the marketing of vegetables;

(i) providing for the control and regulation of the producing or marketing of vegetables, including the times and places at which vegetables may be produced or marketed;

(j) providing for the control and regulation of agreements entered into by producers of vegetables with persons engaged in marketing or processing vegetables and the prohibition of any provision or clause in such agreements;

(k) requiring any person who produces and processes vegetables to furnish to the local board statements of the amounts of vegetables that he produced in any year and used for processing;

(l) requiring that no charges, costs or expenses relating to the production or marketing of a vegetable shall be made other than such charges, costs or expenses as are provided in the agreement or award or renegotiated agreement or award in force for the marketing of the vegetable;

(m) requiring any person who produces vegetables to offer to sell and to sell the vegetables through the local board;

(n) prohibiting any person from processing, packing or packaging any vegetables that have not been sold by or through the local board; and

(o) requiring any person who receives vegetables to deduct from the money payable for the vegetables, any licence fees payable to the local board by the person from whom the vegetables are received, and to forward the licence fees to the local board. R.R.O. 1990, Reg. 440, s. 10; O. Reg. 27/93, s. 1; O. Reg. 554/99, s. 2.

11. The local board may impose such terms and conditions upon a licence as the local board considers proper. R.R.O. 1990, Reg. 440, s. 11.

12. The Commission limits the powers of the local board under clause 10 (j) to matters that are not inconsistent with terms, conditions and forms of agreement settled under clause 18 (b) by a negotiating agency or awarded under subsection 21 (10) by an arbitration board. R.R.O. 1990, Reg. 440, s. 12; O. Reg. 177/91, s. 1.

13. (1) The Commission authorizes the local board to use any class of licence fees, service charges and other money payable to it, for the purposes of paying the expenses of the local board, carrying out and enforcing the Act and the regulations and carrying out the purposes of the plan. R.R.O. 1990, Reg. 440, s. 13 (1).

(2) The Commission authorizes the local board to establish a fund in connection with the plan for the payment of any money that may be required for the purposes mentioned in subsection (1). R.R.O. 1990, Reg. 440, s. 13 (2).

14. The Commission authorizes the local board to require the price or prices payable or owing to the producers for vegetables to be paid to or through the local board. R.R.O. 1990, Reg. 440, s. 14.

15. The Commission authorizes the local board to prohibit the marketing locally within Ontario of any class, variety, grade or size of vegetables. R.R.O. 1990, Reg. 440, s. 15.

Fund

15.1 The local board shall establish a fund with the money transferred to it under Ontario Regulation 672/92 and shall administer the fund in accordance with the following terms:

1. The capital may be invested in securities referred to in section 26 of the Trustee Act, other than first mortgages, charges or hypothecs upon real estate in Canada.

2. The capital of the fund shall not be spent.

3. The income of the fund may be spent for purposes of research, market development and education relating to vegetables.

4. The fund shall be audited annually and the auditor’s report shall be submitted to the Commission as part of the audit of the accounts of the local board. O. Reg. 673/92, s. 1.

Negotiating Agencies

16. (1) The Ontario Food Processors’ Association may appoint processors to,

(a) one negotiating agency for each vegetable, except cauliflower, peppers and tomatoes, listed in Column I of the Schedule;

(b) two negotiating agencies for each of cauliflower and peppers; and

(c) three negotiating agencies for tomatoes. O. Reg. 233/94, s. 1 (1).

(2) The Ontario Food Processors’ Association shall notify the local board and the Commission of the names of the processors appointed to each negotiating agency by November 15 of each year. O. Reg. 233/94, s. 1 (1).

(3) The local board may establish negotiating agencies for any vegetable in addition to the agencies referred to in subsection (1) by appointing one processor to each agency established. O. Reg. 233/94, s. 1 (1).

(4) The local board must give written notice of every appointment to the processors appointed, the Ontario Food Processors’ Association and the Commission by December 7 in each year. O. Reg. 233/94, s. 1 (1).

(5) A negotiating agency shall be composed of not more than twenty persons of whom the processors and the local board may each appoint a maximum of ten. O. Reg. 46/91, s. 1.

(6) The processors and the local board shall notify the Commission in writing of the names and addresses of the persons appointed under subsection (5) not later than the 15th day of January in each year. O. Reg. 46/91, s. 1.

(7) If the local board or the processors do not appoint members to a negotiating agency, the Commission shall appoint such members as are necessary. O.Reg. 233/94, s. 1 (2).

(8) The members of the negotiating agencies appointed under subsection (5) are members until their successors are appointed or until January 15 of the year following the year in respect of which they are appointed, whichever comes sooner. O.Reg. 233/94, s. 1 (2).

(9) If a member is unable or unwilling to act, the local board or the processor who appointed the member shall appoint a replacement. O.Reg. 233/94, s. 1 (2).

(10) Where the local board or the processors fail to make an appointment under subsection (9) within seven days after a vacancy occurs, the Commission shall appoint such persons as are necessary to complete the negotiating agency. O. Reg. 46/91, s. 1.

(11) The negotiating agencies shall conduct an initial round of negotiations that ends at 4 p.m. on the day set out in Column II of the Schedule or such earlier time at which an agreement is reached. O. Reg. 233/94, s. 1 (3).

17. (1) Upon completion of the initial round of negotiations, every processor that did not take part in the initial round, together with the local board, is constituted as a separate negotiating agency for each vegetable intended to be processed by the processor. O. Reg. 233/94, s. 2.

(2) Not later than the day set out in Column III of the Schedule, the local board shall send to each processor, for each vegetable,

(a) a proposed agreement; or

(b) a notice of intent to negotiate. O. Reg. 233/94, s. 2.

(3) Not later than the day set out in Column IV of the Schedule, a processor may,

(a) sign and return the proposed agreement;

(b) send to the local board a notice of intent to negotiate; or

(c) advise the local board of its agreement to be bound by one of the settled agreements or awards achieved or to be achieved in the initial round. O. Reg. 233/94, s. 2.

(4) Clause (3) (c) does not apply to processors of tomatoes. O. Reg. 233/94, s. 2.

(5) If a processor does not take any action set out in subsection (3), the local board may impose one of the settled agreements or awards achieved or to be achieved in the initial round on the processor. O. Reg. 233/94, s. 2.

(6) An imposed settlement under subsection (5) is not valid unless the local board notifies the processor of the settlement not later than three days before the day set out in Column V of the Schedule. O. Reg. 233/94, s. 2.

(7) A settlement referred to in clause (3) (c), subsection (6) or clause 19 (1) (a) shall be deemed to be an agreement for the purposes of subsection 7 (4) of the Act. O. Reg. 233/94, s. 2.

(8) The second round of negotiations ends at 4 p.m. on the day set out in Column V of the Schedule or such earlier time at which an agreement is reached. O. Reg. 233/94, s. 2.

18. Each negotiating agency established under this Regulation is empowered to adopt or settle by agreement in respect of the vegetable or vegetables for which it was appointed,

(a) minimum prices for the vegetable or vegetables or for any class, variety, grade or size thereof;

(b) terms, conditions and forms of agreement relating to the producing or marketing of the vegetable or vegetables; and

(c) any charges, costs or expenses relating to the production or marketing of the vegetable or vegetables. O. Reg. 46/91, s. 2; O. Reg. 233/94, s. 3.

19. (1) If a processor does not have an agreement or award and requests one after the day set out in Column V of the Schedule, the local board shall,

(a) impose an agreement or award on the processor; or

(b) notify the processor and the Commission of its intention to negotiate. O. Reg. 233/94, s. 4.

(2) If clause (1) (b) pertains, that processor and the local board constitute a negotiating agency and the Commission shall determine the deadline date for negotiation. O. Reg. 233/94, s. 4.

Arbitration

20. (1) A negotiating agency for a vegetable may refer matters to conciliation in accordance with this section at any time,

(a) during the initial round of negotiations, before the date set out in Column II of the Schedule;

(b) during the second round of negotiations, before the date set out in Column V of the Schedule. O. Reg. 46/91, s. 4; O. Reg. 233/94, s. 5.

(2) The Commission shall appoint a conciliator acceptable to both the members appointed by the processor and those appointed by the local board. O. Reg. 46/91, s. 4.

(3) The negotiating agency shall submit to the conciliator a statement of matters in dispute. O. Reg. 46/91, s. 4.

(4) The conciliator shall,

(a) endeavour to effect agreement on any matter referred to the conciliator under subsection (3); and

(b) recommend adoption of any agreement effected under clause (a) to the negotiating agency. O. Reg. 46/91, s. 4.

21. (1) If a negotiating agency has not arrived at a comprehensive settlement of matters set out in section 18 by 4 p.m. on the relevant deadline date shown in the Schedule, it shall immediately notify the Commission of the fact. O. Reg. 46/91, s. 5.

(2) The notice shall be accompanied by a statement or statements of the matters in dispute and a statement of the final positions of the members appointed by the local board and the members appointed by the processors. O. Reg. 46/91, s. 5.

(3) The Commission shall refer the matters in dispute to arbitration. O. Reg. 46/91, s. 5.

(4) The arbitration shall be conducted by an arbitration board consisting of,

(a) three members, if all the members of the negotiating agency consent; and

(b) one member, in every other case. O. Reg. 46/91, s. 5; O. Reg. 233/94, s. 6 (1).

(5) If more than one arbitration is required for the same vegetable, the same arbitration board shall conduct the arbitrations. O. Reg. 46/91, s. 5.

(6) The members of a negotiating agency that requires arbitration shall appoint the member or members of the arbitration board. O. Reg. 46/91, s. 5.

(7) If the members of a negotiating agency cannot agree on the member or members of the arbitration board within forty-eight hours after 4 p.m. on the relevant deadline date shown in the Schedule, the Commission shall appoint the arbitration board. O. Reg. 46/91, s. 5.

(8) If a member of an arbitration board dies, resigns or is unable to act because of injury, illness or circumstances beyond the member’s control before it has made an award, the vacancy shall be filled by the Commission and the arbitration shall be continued and completed by the arbitration board as newly constituted. O. Reg. 46/91, s. 5.

(9) An arbitration board shall not make an award on a matter until at least three days after the hearing has been completed. O. Reg. 48/97, s. 1.

(9.1) If the parties to an arbitration reach agreement on a matter before an award on the matter is made, the agreement forms part of the arbitration board’s award. O. Reg. 48/97, s. 1.

(9.2) If the parties to an arbitration reach agreement on all matters before an award is made, the board shall not make an award. O. Reg. 48/97, s. 1.

(10) An arbitration board shall, in making an award, select without modification one of the statements of final position filed with the Commission under subsection (2), except that, if the parties to an arbitration agree, the arbitration board may make individual awards with respect to one or more matters in dispute by selecting the final position of either party on the matter or matters. O. Reg. 46/91, s. 5.

(11) If only one statement of final position has been filed with the Commission under subsection (2), subsection (5) does not apply and the arbitration board shall select that statement as the award. O. Reg. 233/94, s. 6 (3).

SCHEDULE

Column I		Column II	Column III	Column IV	Column V
Vegetable		Initial Round Deadline	Local Board Offer Deadline	Processor Determination Deadline	Second Round Deadline
1.	Peas	February 15	February 24	March 3	March 15
2.	Cucumbers	February 16	February 25	March 4	March 16
3.	Sweet Corn	February 22	March 3	March 13	March 22
4.	Tomatoes	March 1	March 13	March 20	April 1
5.	Green and Waxed Beans	March 21	March 28	April 4	April 11
6.	Peppers	March 8	March 15	March 22	March 29
7.	Cabbage	March 7	March 14	March 21	March 28
8.	Carrots	March 6	March 13	March 23	March 29
9.	Pumpkin and Squash	March 22	March 29	April 5	April 12
10.	Cauliflower	March 19	March 26	April 2	April 9
11.	Lima Beans	March 22	March 29	April 5	April 12
12.	Beets	March 19	March 26	April 2	April 9

O. Reg. 554/99, s. 3; O. Reg. 47/02, s. 1.