NFU-O stumped again

Friday, June 14, 2013

by SUSAN MANN

The National Farmers Union – Ontario Council was planning to meet by conference call Thursday night to determine its next steps now that an agricultural tribunal won’t review its decision to deny reaccrediting the organization.

NFU-O president John Sutherland says they have many different options and council must decide “which way they would like to go.” Some of the options include pursuing a judicial review, dropping the process to get reaccredited or putting the organization under another name. “You name it and the options are there.”

Sutherland says he suspects “we will continue the fight.”

In a June 7 written decision, the Agriculture, Food and Rural Affairs Appeal Tribunal says it denied the NFU-O request for a review of its decisions (Dec. 19, 2012 without reasons and April 15 with reasons) turning down reaccreditation for the organization.

In Ontario, it is mandatory for farmers acquiring farm registration to belong and pay membership dues to an accredited general farm organization. The process is also linked to farmers’ eligibility to enroll in business risk management programs. In turn, farm organizations must go through an accreditation process to collect the membership dues, which form a major portion of their funding.

The NFU-O review request, made on May 14, was supported by a submission from the Ontario agriculture ministry, made on May 17.

“We feel they (the tribunal) are on the wrong track, of course,” Sutherland says. “We feel they’ve just continued where they left off for the reasons of dismissal and they’re erring in law.”

Ontario Ministry of Agriculture and Food spokesperson Gabrielle Gallant says by email the ministry agreed with NFU-O that the tribunal’s decision should be reviewed and “so we provided a submission to support that request.”

In response to the tribunal’s decision to deny reviewing its original decision, Gallant says “it falls to the NFU-O to decide what action it will take in response to the tribunal.”

The tribunal is an independent body and Agriculture Minister Kathleen Wynne, who is also the premier, doesn’t have the ability to overturn its decisions, Gallant explains. But the “ministry will be working with the industry to review the accreditation process in light of the tribunal decisions received to ensure that the needs of Ontario’s farmers and the government continue to be met.”  

Losing its accreditation has cost NFU-O members. Sutherland says he doesn’t have the number of members it lost but farmers who wanted to retain NFU-O membership had to go through several steps to do that. They had to register with Agricorp and submit a cheque made out to one of the two accredited organizations, Ontario Federation of Agriculture or Christian Farmers Federation of Ontario. After paying the fee, they could ask the group they wrote their cheque to for a refund. Sutherland says the deadline for requesting refunds, May 31, has passed.

In the June 7 written decision, vice chair John O’Kane says the tribunal refused to reaccredit NFU-O because it determined the organization didn’t have standing to apply for accreditation under the Farm Registration and Farm Organizations Funding Act. The tribunal concluded that while NFU-O was an organization, it wasn’t representing farmers in the province and therefore didn’t have the required standing for accreditation.

In their submissions, both the NFU-O and the agriculture ministry asserted the tribunal made legal and factual errors along with not following procedural fairness.

But in reviewing those assertions, O’Kane says he’s not convinced NFU-O and the ministry made an arguable case that the tribunal committed errors in law, factual mistakes or wasn’t fair in its procedure.

For example, NFU-O  “asserts the tribunal wrongfully determined that it had jurisdiction to determine standing and asserts that determination was a material error of law.” But “if the tribunal had not made that error it would likely have reached a different decision,” the tribunal’s decision states. The ministry’s submission made a similar assertion.

But O’Kane said he was satisfied the tribunal had the necessary jurisdiction under the Act to determine whether NFU-O had standing to apply for reaccreditation. He also said he wasn’t convinced NFU-O or the ministry made a compelling argument that the tribunal made a legal mistake in determining standing.

Another example is the NFU-O said in its review request the tribunal made material errors in law and those related to the tribunal’s inquiries and investigations of NFU-O. The review request “characterized these material errors of law as the tribunal raising matters on its own initiative,” the decision states. But under the Act, the tribunal has the power to investigate and inquire in the context of an accreditation application.

Once again, O’Kane concluded he wasn’t convinced NFU-O made an arguable case that the tribunal’s inquiries and investigations were material errors of law. BF