Minister's Order: Ontario Edible Horticultural Support Program [0001/2018]

Whereas the Government of Ontario recognizes the important economic and social contribution agriculture plays within Ontario;

And whereas the edible horticultural sector is a significant contributor to Ontario's economy;

And whereas the edible horticultural sector as a whole is experiencing increased cost pressures arising from circumstances beyond their control, such as the increasing costs related to energy and labour;

And whereas those operating within the edible horticultural sector have experienced unexpected increasing price risks associated with the production of Eligible Commodities and are not in a position to pass the full cost of those increased prices to the consumer;

And whereas small and medium-sized operators within the edible horticultural sector are particularly vulnerable to increased operational costs;

And whereas it is in Ontario's economic interest to provide financial assistance to help those small and medial-sized operators within the edible horticultural sector adjust to the increased cost pressures they are currently experiencing;

And whereas section 4 of the Ministry of Agriculture, Food and Rural Affairs Act provides the Minister with the authority in relation to the administration of laws relating to agriculture, food and rural affairs and all of their branches;

And whereas section 6.2(1) of the Ministry of Agriculture, Food and Rural Affairs Act provides the Minister of Agriculture, Food and Rural Affairs with the authority to establish programs for the encouragement of agriculture, food and rural affairs within Ontario;

And whereas I believe that a program aimed at helping small and medium-sized operators within the edible horticultural sector adjust to the increased cost pressures they are currently experiencing should be established to encourage agriculture, food and rural affairs within Ontario;

Now therefore and pursuant to my authority under sections 4 and 6.2(1) of the Ministry of Agriculture, Food and Rural Affairs Act, the program known as the

Ontario Edible Horticultural Support Program

is hereby established for the encouragement of agriculture, food and rural affairs within Ontario, as of the date this Order is signed.

Part I – Interpretation

Interpretation

  1. For the purposes of interpreting this Order:
    1. Words in the singular include the plural and vice versa;
    2. Words in one gender include all genders;
    3. The headings do not form part of this Order; they are for reference purposes only and will not affect the interpretation of this Order;
    4. Any reference to dollars or currency in this Order will be to Canadian dollars and currency;
    5. Any reference to a statute means a statute of the Province of Ontario, unless otherwise indicated;
    6. Any reference to a statute is to that statute and to the regulations made pursuant to that statute as they may be amended from time to time and to any statute or regulations that may be passed that have the effect of supplanting or superseding that statute or regulation unless a provision of this Order provides otherwise; and
    7. The words "include", "includes" and "including" denote that the subsequent list is not exhaustive.

Definitions

  1. For the purposes of this Order, the terms below will have the following meanings:

    "ANS" means allowable net sales;

"Applicant" includes both a Deemed Applicant and a Non-Deemed Applicant, unless the context indicates otherwise;

"Business Day" means any working day, Monday to Friday inclusive, but excluding statutory and other holidays on which the Ministry is closed for business;

"CRA BN" means the business number Canada Revenue Agency has issued to the Person pursuant to the Income Tax Act (Canada);

"Crown" means Her Majesty the Queen in Right of Ontario;

"Deemed Applicant" means a Person who meets the eligibility requirements set out under section 18 of this Order;

"Deemed Participant" means a Person that meets the eligibility requirements set out under section 21(1) of this Order;

"Eligible Commodity" means a commodity set out under Appendix One of the Guidelines;

"Guidelines" means any written document setting out the criteria governing the operation of the Program and posted on the Ministry's website under a description of the Program;

"Ministry" means the Ministry of Agriculture, Food and Rural Affairs and includes a successor entity;

"Non-Deemed Applicant" means a Person that meets the eligibility requirements set out under section 19 of this Order;

"Non-Deemed Participant" means a Person that meets the eligibility requirements set out under section 21(2) of this Order;

"Notice" means a notice sent to a Deemed Participant under section 30 of this Order;

"OSDRMP" means the Ontario Self-Directed Risk Management Program, as established under Order-in-Council 1311/2011, as amended;

"Order" means this Minister's Order, Minister's Order Number 0001/2018, as it may be amended from time to time;

"Overpayment" means any Program Payment to which the Participant is not entitled to receive at the time of the Program Payment or to which the Participant ceases to be entitled to receive at any time after the Program Payment was made;

"Participant" includes both a Deemed Participant and a Non-Deemed Participant, unless the context indicates otherwise;

"Person" for the purposes of this Order includes:

  1. A sole proprietorship,
  2. A corporation,
  3. A partnership, or
  4. An unincorporated association;

"Premise ID Number" means a nationally unique identifier assigned by Ontario pursuant to Order-in-Council 926/2017, or any other order dealing with the Provincial Premises Registry Program, to a parcel of land that is associated with agri-food or agri-based product activities;

"Program" means the Ontario Edible Horticultural Support Program;

"Program Administrator" means the Director of Farm Finance Branch – Policy Division, and includes any acting Director of Farm Finance Branch – Policy Division, of the Ministry as well as any successor position;

"Program Payment" means the provision funds to a Participant under the Program;

"Program Year" means April 1 of one calendar year to March 31 of the immediately following calendar year;

"Recipient" means a Person that receives a Program Payment under the Program;

"Requirements Of Law" means all applicable statutes, regulations, by-laws, ordinances, codes, official plans, rules, approvals, permits, licences, authorizations, orders, decrees, injunctions, directions, Guidelines and agreements with all authorities that now or at any time hereafter may relate to the Applicant, the Project or both;

"Service Payment" means a payment made to a Service Provider to cover the expenses the Service Provider incurred to administer all or part of the Program on behalf of the Program Administrator;

"Service Provider" means the Person responsible for delivering all or a part of the Program;

"SIN" means Social Insurance Number; and

"Tax Data" means the forms the Participant previously submitted to the Canada Revenue Agency, and may include the forms T1163, the T2042, or the Statement "A" the Participant previously submitted to AgriCorp, upon which the ANS will be calculated.

Purpose Of The Ontario Edible Horticultural Support Program

  1. The purpose of the Program is to provide financial support to help small and medium-sized agricultural operators producing Eligible Commodities in the edible horticultural sector adjust to the increased cost pressures they are currently experiencing as a result of circumstances beyond their control.

Part II – Term Of The Ontario edible horticultural support program

Commencement Of The Ontario Edible Horticultural Support Program

  1. The Program will commence on the date in which this Order is signed.

Termination Of The Ontario Edible Horticultural Support Program

  1. The Program will terminate on March 31, 2020.
  2. Despite anything else in this Order, the Program will automatically terminate in the event there is an insufficient appropriation for any payment that is to be made under the Program. Where the Program is terminated pursuant to this section 6 of this Order, the following rules will apply:
    1. The Program Administrator will post a notice on the Ministry's website where a copy of this Order is posted indicating that the Program has been terminated and the date that the Program was terminated; or
    2. The Program Administrator will immediately provide notice of the termination to any Service Provider that is delivering all or a part of the Program and cause that Service Provider to post a notice on its website indicating that the Program has been terminated and the date that it was terminated; and
    3. Any payments under the Program for which there is no appropriation will not be paid.
  3. Despite anything else in this Order, the Program may be terminated through the issuance of a Minister's Order terminating the Program. Where a Minister's Order is issued terminating the Program, the following rules will apply:
    1. The Program Administrator will post a notice on the Ministry's website where a copy of this Order is posted, along with a copy of the Minister's Order terminating the Program, indicating that the Program has been terminated and the date that the Program was terminated; or
    2. The Program Administrator will immediately provide notice of the termination to any Service Provider that is delivering all or a part of the Program and cause that Service Provider to post a notice on its website indicating that the Program has been terminated and the date that it was terminated; and
    3. Any payments owing under the Program will be paid, unless the Minister's Order terminating the Program provides otherwise.

Part III – Funding For The Ontario edible horticulture support program

  1. Funding for the Program will be from the monies allocated to the Ministry by the Legislature for the purposes of the Program. The Program Administrator may provide to any Person any funding that is contemplated or permitted under the Program. The Program Administrator may pay for any administrative costs that the Program Administrator determines are reasonable or prudent for the administration of the Program.
  2. Funding allocated to the Program will only be used for the Program and the costs of administering the Program.

Part IV – Administration Of The Ontario Edible Horticulture Support Program

The Program Administrator

  1. The Program Administrator will be responsible for the administration and delivery of the Program. This includes:
    1. Establishing standards and procedures for the delivery of the Program;
    2. Monitoring the performance of all aspects of the Program;
    3. Establishing or approving Guidelines for the Program;
    4. Making decisions pursuant to sections 21(1)(e), 21(2)(d), 23, 24 and 25 of this Order;
    5. Approving anything that needs to be approved for the Program; and
    6. Carrying out all other administrative functions required for the successful operation of the Program.
  2. The Program Administrator may allow a Person to continue participating in the Program even if that Person does not meet all of the eligibility requirements set out under this Order or the Guidelines, provided:
    1. The Person was originally found to be eligible to participate in the Program;
    2. The Person acted in good faith to be found eligible to participate in the Program;
    3. The Person acted in good faith while participating in the Program; and
    4. The Program Administrator is of the opinion that not allowing the Person to continue participating in the Program would create an unfair result for that Participant.
  3. The Program Administrator may waive any requirement for the Program set out in this Order or the Guidelines, provided the Program Administrator is of the opinion that not providing such a waiver would create an unfair result of the Person requesting the waiver. The Program Administrator may impose conditions on any waiver that the Program Administrator provides.

Service Provider

  1. The Program Administrator may enter into an agreement with a Service Provider.
  2. If the Program Administrator enters into an agreement with a Service Provider, that agreement will include, at a minimum, the following:
    1. The roles and responsibilities for the Program Administrator and the Service Provider;
    2. The Service Payment the Service Provider will receive for delivering all or a part of the Program;
    3. Performance measures the Service Provider is expected to meet, if applicable and appropriate;
    4. Reporting and audit requirements;
    5. Provisions for corrective action to address any events of default by the Service Provider; and
    6. Anything else the Program Administrator believes is prudent for the successful delivery of the Program.

Exercise of Administrative Powers

  1. The Program Administrator has all necessary authority to deliver the Program.
  2. (1) When exercising any powers granted under or complying with the requirements set out in this Order, the Program Administrator will do so in compliance with all applicable Requirements Of Law.

    (2) Where the Program Administrator selects a Service Provider, the Program Administrator will require the Service Provider to deliver the Program in compliance with all applicable Requirements Of Law.

Guidelines

  1. (1) The Program Administrator will create or cause to be created Guidelines for the Program. The Guidelines will not conflict with anything contained in this Order. For the purposes of determining whether the Guidelines conflict with this Order, a conflict will exist if the Guidelines provide for something that is prohibited under this Order or if the Guidelines provide that something is not needed which is required under this Order.

    (2) Without limiting the Program Administrator's general administrative authority set out in section 10 of this Order, the Program Administrator's authority to create or cause to be created Guidelines for Program includes the authority to set out, or cause to be set out, the rules, terms and conditions in the Guidelines in relation to:
    1. Setting out administrative deadlines for the Program in the Guidelines;
    2. Establishing the rules, terms and conditions for any Program Payments that may be made under the Program in the Guidelines, including:
      1. The methodology in which a Program Payment may be calculated,
      2. Caps on any Program Payments,
      3. Minimum Program Payments, and
      4. The timing of Program Payments;
    3. Setting out how the ANS for Non-Deemed Participants will be calculated in the Guidelines;
    4. Setting out reporting and audit requirements for the Program in the Guidelines that are in addition to what is set out under this Order;
    5. Setting out how documents are to be served under the Program in the Guidelines;
    6. Setting out any requirements for the Program that must be set out in the Guidelines under this Order in the Guidelines; and
    7. Establishing any other rules, terms or conditions that are reasonably necessary for the successful administration and delivery of the Program in the Guidelines.


    (3) The Program Administrator will:

    1. Post the Guidelines on the Ministry's website or will require the Guidelines to be posted on a publicly available website; or
    2. Require any Service Provider delivering the Program to post the Guidelines on that Service Provider's website.


    (4) The Guidelines are not required to be posted until after this Order comes into force.

    (5) The Program Administrator may amend the Guidelines or cause the Service Provider to amend the Guidelines. Where the Guidelines are amended, the following rules will apply:

    1. The amended Guidelines will:
      1. Be posted on the Ministry's website or on another publicly available website, or
      2. Any Service Provider delivering all or a part of the Program will post the Guidelines on that Service Provider's website; and
    2. Any changes to the Guideline will not have any retroactive effect.

Part V – Operation of The Ontario Edible Horticultural Support Program

Deemed Applicants and Non-Deemed Applicants

Deemed Applicants
  1. (1) To be considered a Deemed Applicant under the Program, a Person must:
    1. Have been issued a deposit notice under the OSDRMP; and
    2. Provided a valid Premise ID Number to the administrator of the OSDRMP.

    (2) Despite section 18(1) of this Order, a Person may be considered a Deemed Applicant, if:

    1. That Person:
      1. Was issued a deposit notice under the OSDRMP, and
      2. Submits a valid Premise ID Number under the Program by the date in which applications are due under the Program, as set out in the Guidelines; or
    2. That Person:
      1. Is a Person;
      2. Provides:
        1. Its CRA BN, or
        2. Its SIN if the Person is not eligible to receive a CRA BN and that Person is eligible to receive a Program Payment prior to receiving the Program Payment;
      3. Did not receive a deposit notice under the OSDRMP;
      4. Has a minimum of five thousand dollars ($5,000.00) in reported ANS, as calculated in accordance with the Guidelines for:
        1. The Person's 2016 tax year, as provided in their Tax Data, to receive a Program Payment for the 2018 Program Year, or
        2. The Person's 2017 tax year, as provided in their Tax Data, to receive a Program Payment for the 2019 Program Year; and
    3. Provides a Premise ID Number for a least one property in which Eligible Commodities are produced.
Non-Deemed Applicants
  1. To be considered a Non-Deemed Applicant under the Program, a person must:
    1. Be a Person;
    2. Apply to the Program using an approved application form;
    3. Complete and submit its application by the deadline set out in the Guidelines;
    4. Provide:
      1. Its CRA BN in the application form for the Program, or
      2. Its SIN if the Person is not eligible to receive a CRA BN and that Person is eligible to receive a Program Payment prior to receiving the Program Payment;
    5. Have a minimum of five thousand dollars ($5,000.00) in reported ANS, as calculated in accordance to the Guidelines for:
      1. The Person's 2017 tax year, as provided in their Tax Data, to receive a Program Payment for the 2018 Program Year, or
      2. The Person's 2018 tax year, as provided in their Tax Data, to receive a Program Payment for the 2019 Program Year;
    6. Not have a reportable ANS for any Eligible Commodities prior to the Program Year in which the Person has applied to the Program; and
    7. Provide a Premise ID Number for a least one property in which Eligible Commodities are produced in its application form.

Eligibility Requirements Under The Ontario Edible Horticultural Support Program

Eligibility Requirements
  1. No Person will be considered eligible to participate in the Program unless that Person meets all the eligibility requirements under section 21(1) or section 21(2) of this Order.

Deemed Participants

  1. (1) To be eligible to participate under the Program as a Deemed Participant, a Person must:
    1. Be a Deemed Applicant;
    2. Agree to comply with the terms and conditions of the Program, as set out in this Order and the Guidelines; and
    3. Be in compliance with all Requirements Of Law at the time that the Applicant's application is submitted and remain in compliance with all Requirements Of Law while participating in the Program.

Non-Deemed Participants

  1. (2) To be eligible to participate in the Program as a Non-Deemed Participant, a Person must:
    1. Be a Non-Deemed Applicant;
    2. Agree to comply with the terms and conditions of the Program, as set out in this Order and the Guidelines; and
    3. Be in compliance with all Requirements Of Law at the time that the Applicant's application is submitted and remain in compliance with all Requirements Of Law while participating in the Program.

Persons Operating In A Partnership

  1. Persons operating under a partnership will:
    1. Be deemed to be enrolled under the Program separately if they are Deemed Applicants, or
    2. Enroll separately under the Program if they are Non-Deemed Applicants, and will be treated in the following manner:
      1. Each partner must be eligible for the Program based on that partner's merits; and
      2. Each partner's ANS will be calculated based on that partner's percentage share in the partnership for the Program Year in which a Program Payment relates.
Loss Of Eligibility
  1. Any Person that willfully provides false or misleading information under the Program:
    1. May have their eligibility to continue to participate in the Program for the remainder of the Program Year revoked and may lose their eligibility to participate in the Program for the next Program Year;
    2. May have their eligibility to continue to participate in any other Ministry programs set out in the Guidelines for the remainder of that program's year revoked and may lose their eligibility to participate in those other Ministry programs for up to an additional two years; and
    3. Will repay any Program Payment that was received under the Program.
  2. Any Person that provides false or misleading information or is found to have acted in a negligent manner in regards of allowing false or misleading information to be submitted on that Person's behalf under the Program:
    1. May have their eligibility to continue to participate in the Program for the remainder of the Program Year revoked and may lose their eligibility to participate in the Program for up to the next full Program Year; and
    2. Will repay any Program Payment that was received under the Program.
  3. Any Person that is abusive toward any staff responsible for delivering the Program will receive one written warning from the Program Administrator. If the Person continues with his/her/its/their abusive behavior, that Person:
    1. May have their eligibility to continue to participate in the Program for the remainder of the Program Year; and
    2. May lose their eligibility to participate in the Program for up to the next full Program Year.

Part VI – Payments

Calculation Of Payments

  1. (1) The 2018 Program Year Program Payment for a Deemed Participant will be calculated by using that Participant's 2017 ODSRMP ANS.

    (2) The 2019 Program Year Program Payment for a Deemed Participant will be calculated by using that Participant's 2018 ODSRMP ANS.
  2. (1) The 2018 Program Year Program Payment for a Non-Deemed Participant will be calculated by using that Participant's 2017 ANS, as determined in accordance with the Guidelines.

    (2) The 2019 Program Year Program Payment for a Non-Deemed Participant will be calculated by using that Participant's 2018 ANS, as determined in accordance with the Guidelines.

General

  1. Applying to the Program does not create a legal right to:
    1. Participate in the Program; or
    2. Receive a Program Payment under the Program.
  2. The Program Administrator will not make a Program Payment or allow a Service Provider to make a Program Payment to a Participant before April 1, 2018.
  3. The Program Administrator will not make a Program Payment or allow a Service Provider to make a Program Payment to a Deemed Participant without also providing a Notice to that Participant with the Program Payment that sets out:
    1. The ANS for the Deemed Participant in which a Program Payment is being made;
    2. The terms and conditions under which the Deemed Participant will be deemed to agree with if the Deemed Participant accepts a Program Payment;
    3. A requirement the Deemed Participant provides an attestation to the Program Administrator or Service Provider, as the case may be, the Deemed Participant:
      1. Agrees to comply with the terms and conditions set out in the Notice, and
      2. Is in compliance with the terms and conditions set out in the Notice;
    4. An option for the Deemed Participant to refuse to participate in the Program; and
    5. The rights of a Deemed Participant to request a review of:
      1. Their eligibility under the Program, and
      2. How a Program Payment was calculated, other than a decision to pro-rate a payment under the Program.
  4. The Program Administrator will not make a Program Payment or allow a Service Provider to make a Program Payment to a Non-Deemed Participant without first requiring that Non-Deemed Participant to apply to the Program and agree to be bound by the terms and conditions of the Program.
  5. The Program Administrator will not make a Program Payment or allow a Service Provider to make a Program Payment to a Participant after March 31, 2020, unless that Program Payment is a result of an adjustment or request for review under the Program.
  6. Recipients will report Program Payments provided under the Program as income under the Income Tax Act (Canada), provided the Program Payment is considered income within the meaning of the Income Tax Act (Canada).
  7. A Participant/Recipient will not assign any Program Payments made under the Program to a third party unless that assignment is:
    1. Authorized by the Guidelines; or
    2. Authorized by the Program Administrator in writing prior to the assignment.

Part VII – Collection, use and disclosure of information and audits under the ontario edible horticultural support program

Consent To Collection, Use And Disclosure Of Information

  1. Applicants/Participants/Recipients will consent to the collection of any information that the Program Administrator is of the opinion is reasonably necessary for the administration of the Program. This includes personal information within the meaning of the Freedom of Information and Protection of Privacy Act.
  2. Applicants/Participants/Recipients will consent to the use and disclosure of any information that is collected pursuant to section 35 of this Order, for the purposes of:
    1. Verifying any information that has been provided;
    2. Confirming the Recipient paid taxes on any Program Payments the Recipient received under the Program;
    3. Conducting audits;
    4. Enforcing the terms and conditions of the Program; and
    5. Collecting any debts a Recipient may owe in relation to the Program.
  3. Applications to the Program and Notices issued under the Program will contain a notice of collection of information and require the Applicant or the Participant to indicate the Applicant or Participant consents to the collection of that information as well as for the use and disclosure of that information for the purposes set out under section 36 of this Order.

Audits

  1. Applicants/Participants/Recipients will provide any information that is requested within ten (10) Business Days of the request unless more time has been provided in the request.
  2. A Recipient will retain all records relating to any Program Payments under the Program for a period of at least seven (7) years from the date in which the Program Payment was received.
  3. Applicants/Participants/Recipients will consent to any audits that may be conducted in relation to the Program.
  4. Applicants/Participants/Recipients will provide reasonable assistance during any audit. This includes allowing access to any person, place or thing required for auditing purposes within ten (10) Business Days of the request being made unless more time has been provided in the request.
  5. Applicants/Participants/Recipients will authorize the Program Administrator or a Service Provider to obtain information from any government department/ministry, agency or third party for the purposes of verifying any information that the Applicant/Participant/Recipient provided as well as for the enforcement of the terms and conditions of the Program.
  6. Applicants/Participants/Recipients will consent to the use and disclosure of any information the Program Administrator or a Service Provider may have collected to any government department/ministry, agency or third party for the purposes of verifying any information that the Applicant/Participant/Recipient provided as well as for the enforcement of the terms and conditions of the Program.
  7. (1) A Participant in the Program participating as a sole proprietor, a partner within a partnership or a member of an unincorporated association authorizes the Program Administrator or a Service Provider to collect and use that Participant's SIN where that Participant does not have a CRA BN and that Participant is eligible to receive a Payment under the Program.

    (2) Where the Program Administrator or a Service Provider collects a Participant's SIN under the Program, the Program Administrator or the Service Provider will only use that Participant's SIN for the purposes set out under section 37 of this Order.

    (3) Where a Participant's SIN is collected, that Participant consents to the Program Administrator or a Service Provider disclosing that Participant's SIN to any government department/ministry, agency or third party for the purposes set out under section 37 of this Order.
  8. Applications for the Program or Notices issued under the Program will contain a notice about the audit rights set out under this Part XX of the Order and require the Applicant or Participant to indicate its consents to having audits conducted, if required.

Part VIII – Request For Reconsideration Under The Ontario Edible Horticultural Support Program

  1. The Program Administrator will establish or cause to be established a request for reconsideration process that allows Applicants or Participants to request that a decision in regards to their Application and/or Payment in relation to the following types of decisions that have been made under the Program be reconsidered:
    1. Whether a Non-Deemed Applicant is eligible to participate in the Program; and
    2. The calculation of the ANS for a Non-Deemed Participant for the 2018 or 2019 Program Years.
  2. A request for reconsideration will be made within ninety (90) calendar days' of being notified of the decision in which the Applicant or Participant wants to have reconsidered.
  3. Applicants or Participants cannot request the Business Risk Management Review Committee, as established under Order-in-Council 1310/2011, to review a decision of the individual responsible for deciding a request for reconsideration pursuant to this Part VIII of the Order.
  4. The decision made by the Program Administrator or the Service Provider, as the case may be, on the request for reconsideration pursuant to this Part VIII of the Order is final.

Part IX – Collection Of Debts Arising Under The Ontario Edible Horticultural Support Program

  1. The Program Administrator will collect or cause to be collected any debts arising under the Program in a timely manner.
  2. Any Program Payment a Person may be eligible to receive under the Program may be set off against any existing debt that that Person owes to the Crown.
  3. The termination of the Program will not, in any way, affect the obligation of a Recipient to repay any outstanding amounts owing under the Program.
  4. Any right of set-off provided under this Order is in additional to any other remedies the Crown may have at law, in equity or otherwise to recover any debt that a Recipient may owe to the Crown as a result of that Recipient receiving a Payment, through administrative error or otherwise, under the Program that that Recipient was not otherwise eligible to receive.

PART X – General

  1. Funding for the Program is being provided in connection with a social and economic policy and the Program is considered to be a social or economic program.

Original signed by

The Honourable Jeff Leal
Minister of Agriculture, Food and Rural Affairs

Executed on this 30th day of January, 2018.


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