Livestock Financial Protection Board Annual Report 2012/13

Table of Contents


Chair's Messages

September 25, 2013

The Honourable Kathleen Wynne
Minister, Agriculture and Food
77 Grenville St.11th Floor,
Toronto, Ontario M7A 1B3

Dear Minister

Pursuant to section 6(1) of the Farm Products Payment Act, I am pleased to submit a report describing the work of the Livestock Financial Protection Board for the year ending March 31, 2013, for tabling in the Legislature. This report has been prepared in compliance with the Agency Establishment and Accountability Directive.

As a Board, we continue to focus on administering the Fund for Livestock Producers; adjudicating claims; granting or refusing the payment of all claims and recovering any money to which the Board is entitled.

As Fund administrator, one of our goals is to ensure long-term sustainability of the Fund. Over the past three years, there has been considerable uncertainty in global economic conditions.

We are pleased that our strategic investment strategies have helped the Fund weather the last three years with a very minimal impact on our investment income. At the end of the 2012/13 fiscal year the Fund remained actuarially sound with a balance of $6.9 million despite the fact that there were a large number of claims to the Fund and significant payouts.

In the 2012/13 fiscal the Board received 61 claims for compensation from livestock sellers as a result of the failure of two livestock dealers. The Board made final decisions on all of these claims in this fiscal year for a total payout of $1,218,609. The Board was able to adjudicate the claims in a timely manner with an average of 39 days to reach a decision; 21 days less than the stated goal to process the claims.

Respectfully submitted,

Bob Brander
Chair, Livestock Financial Protection Board

Overview/Mandate

The Ontario Beef Cattle Financial Protection Program (Program) was established in 1982 to provide compensation to sellers(1) in the event that a buyer (packing plant operators, abattoir operators, auction market operators, country dealers and cooperatives) defaults on a payment.(2)

The Program has two components: the annual licensing of dealers under the Livestock and Livestock Products Act (LLPA) and the administration of the compensation fund established under the Farm Products Payment Act (FPPA).

The Ministry of Agriculture, Food and Rural Affairs is responsible for the licensing of dealers. The Livestock Financial Protection Board's (Board) primary role is to administer the fund for livestock producers (Fund). The Board is established under the authority of section 3 of O. Reg. 560/93 - Fund for Livestock Producers, made under the FPPA. The Board is classified as a Trust Agency by the Management Board of Cabinet (Trust Agencies administer funds and/or other assets for beneficiaries named under statute).

The functions of the Board are outlined in section 4(1) of the FPPA as follows:

  1. to administer its Funds;
  2. to investigate all claims made to it under the FPPA and to determine the extent of their validity;
  3. to grant or refuse the payment of all claims or any part thereof and determine the amounts and manner of payment; and
  4. to recover any money to which it is entitled under the FPPA by suit in a court of competent jurisdiction or otherwise

There are 202 licensed dealers and approximately 19,000 beef farmers (including milk producers who market veal calves, bulls, and culled dairy cattle for slaughter purposes) subject to the FPPA and the LLPA


(1) Sellers include both producers and licensed dealers. Dealers licensed under the Livestock and Livestock Products Act who sell livestock are designated as producers for the purposes of clause (d) of the definition of "producer" in section 1 of the Act, but the designation is only in respect of sales of livestock by the dealers to: (a) other dealers licensed under the Livestock and Livestock Products Act; or (b) other producers.

(2)The buyer could also be a producer, where the claimant is a licensed dealer.

The Fund for Livestock Producers

All money to which the Board is entitled is paid into the Fund. Contribution to the Fund is based on a fixed rate per head of livestock in a transaction. Under O. Reg. 321/11, a fee of five cents per head sold is payable to the Board, unless the sale is on consignment, in which case the five cent fee is owed by each of the consignee and consignor.

Fees are remitted by the buying dealer on behalf of the producer when the sale is made directly by a producer, by the selling dealer when the sale is by a dealer, and by the consignee on behalf of the consignor and on their own behalf, where the sale is on consignment. Fees are payable on or before the 15th day of the month following the month of sale unless less than 1,000 head are sold or purchased annually, in which case the fee is payable annually.

The Fund is used to:

  • Provide compensation to qualified sellers in the event that certain buyers default on payment.
  • Offset the cost of determining financial responsibility of dealers as part of the licensing component of the Program.
  • Pay Board expenses (other than for the remuneration of those of its employees who are public servants employed under Part 111 of the Public Service of Ontario Act, 2006). (1)
  • Pay for professional, technical or other assistance to or on behalf of the Board.

A claim may be made if a seller hasn't been paid according to the timelines in the regulations, if the buyer has ceased operation, or if the buyer's assets have been placed in the hands of a receiver or trustee. O. Regulation 560/93 lays out discretionary grounds under which a claim may be denied. Examples of grounds for refusing payment include the claimant extending credit to the buyer; the Director under the LLPA not being notified promptly where payment was not received on time, and the claim not being submitted on time.


(1) Legal and investigative support are currently provided and paid for by the ministry. The ministry also covers Board members' remuneration (per diem, meal and travel).

The Program provides:

Protection for Producers:

If the Board decides that a claim from a producer made in respect of a dealer is valid, the Board pays 95 percent of the portion of the claim that it recognizes as valid.

Protection for Licensed Dealers:

Where an approved claim relates to a licensed dealer selling to a producer or feeder cattle finance co-operative who defaults on payment, compensation is 85 per cent of the portion of the claim that the Board recognizes as valid, up to a maximum of $125,000. In these cases, there is no compensation for claims of less than $5,000. Where an approved claim relates to a licensed dealer selling to another licensed dealer, the Board pays 95 percent of the portion of the claim that it recognizes as valid

Board appointments

Section 4(1) of O. Reg. 560/93 requires that the Board be composed of at least five members consisting of one member each from Beef Farmers of Ontario BFO), Canadian Meat Council (CMC) and the operators of community sales under the Livestock Community Sales Act, together with such other members as the Minister considers advisable.

The regulation also requires the Minister to appoint a Chair and a Vice Chair from among its members. The Board operates at arm's length from the Government but is accountable to the Government in exercising its mandate. The members of the Board are appointed by the Minister. These individuals, in addition to administering the Fund, draw upon their expertise in the livestock industry in hearing and adjudicating cases before them. The Board may also call upon technical experts and professionals to provide assistance.

As at March 31, 2013, there were six Board members which included a Chair and Vice Chair. The Canadian Meat Council (CMC) position has been vacant since 2008, and while the Board has been in contact with the CMC with regard to having a member appointed, to date the CMC has not submitted any candidates.

The table below shows the names of appointees for fiscal 2012/13 and the term of their appointments.

Name Organization Date Appointed Expiry Date
Mr. Robert Brander, Chair Beef Farmers of Ontario April 1, 1992 March 16, 2015
Mr. Larry Witzel, Vice Chair Ontario Livestock Auction Markets Association April 17,2007 October 28, 2015
Vacant Ontario Independent Meat Packers    
Mr. Paul Sharpe Beef Farmers of Ontario November 30, 2007 November 29, 2016
Mr. Kevin McArthur Ontario Livestock Dealers Association July 18, 2011 July 17, 2014
Vacant Canadian Meat Council    
Mr. Murray Allen Dairy Industry September 5, 2008 September 4, 2014
Ms. Jennifer Haley Veal Industry October 6, 2008 October 5, 2016

Five members of the Board constitute a quorum for transacting the Board's business. The Board is made up of industry representatives from a wide range of livestock industry sectors. This broad industry knowledge is important in understanding the clientele and the claim files.

Board Staff and Key Activities

In the 2012/13 fiscal year the Ministry undertook a competitive procurement process to secure a delivery agent to provide the:

  • Ministry with assistance in administering the licensing component of the Ontario Beef Cattle Financial Protection Program; and
  • Board with fund investment, administrative and secretariat support.

BCFPPI was ultimately the successful proponent. The tripartite contract entered into between the Ministry, the Board and OBCFPPI is for a three year term. BCFPPI is a not-for profit corporation governed by a Board of Directors. The Board of BCFPPI has representatives from the Beef Farmers of Ontario, Ontario Livestock Dealers Association, and Ontario Livestock Auction Markets Association.

As such, a BCFPPI employee will continue to act as the Board's administrator and is responsible for assisting the Board in preparing its annual report, business plan and other documentation required for compliance with the Memorandum of Understanding (MOU) and the Agency Establishment and Accountability Directive.

The Board has delegated day to day management of the Fund to BCFPPI. This includes receiving and depositing check-off fees; preparing monthly, quarterly and annual financial statements, preparing documentation for annual audits and investment of the Fund. The Fund is invested according to guidelines set out in the MOU.

The Board continues its arrangement for the provision of secretariat and adjudication support. The continuity that this arrangement provides to the Board in 2012/13 greatly improved the response time in dealing with claims. This support included but was not limited to:

  • Overseeing the effective processing of claims and scheduling meetings to consider claims;
  • Recording minutes of meetings and distributing same;
  • Preparing documentation relating to the adjudication of cases; and
  • Scheduling hearings and drafting decision letters as directed by the Board.

Legal counsel:

The Ministry of the Attorney General provides legal services to the Board. The lawyer assigned to the Board provides the Board with advice, opinions, and other legal assistance in judicial reviews, claim adjudication and recovering monies owed to the Board, and also contributes to the continuing education of Board members.

Investigator:

The Ministry of Agriculture, Food and Rural Affairs Regulatory Compliance Unit provided investigative support. There were 61 claims involving 2 dealers in the 2012/13 fiscal. (1)


(1) The 2011/12 report indicated that 74 claims received in 2011/12 were carried forward to 2012/13. The was an error as some claims were reviewed and counted twice.

Description of activities over the year

The Board activities are geared towards fulfilling its mandate. The Board has two types of meetings: regular meetings and adjudicatory meetings and hearings.

  • Regular meetings are held to do training, approve the business plan, annual report, and year end financial statements and for general Fund administration. These are held annually.
  • Adjudicatory meeting and hearings are held to consider applications for payments from the Fund. These are ad hoc and depend on whether or not there is a claim on the Fund.

There were seven Board meetings in the 2012/13 fiscal year. Six of the meetings were adjudicatory which included hearing components. The Business Plan, Annual Report, Request for Proposal and Audited Financial Statements were reviewed and approved during the seventh meeting.

Fund Management/Administration:

The Board is responsible for the overall governance of the Fund. The primary purpose of the Fund is to compensate sellers in the event of a default by a buyer. The Board's main objective when managing investment capital is to safeguard its ability to remain as a going concern so that it can continue to deliver financial protection to livestock sellers. As such the Board's investment policy focuses on ensuring security, liquidity and maximization of investment income. In addition, there are restrictions in place so that only authorized investments are undertaken (the Fund can only be invested in instruments permitted by the MOU).

In order to ensure liquidity and manage interest rate risk, the Fund's investments mature at various points in time. Currently the Fund is invested in short and long term fixed interest income type securities including a first mortgage and fixed term GIC's, ranging between 12 to 48 month terms. The Board's responsibility as Fund administrator includes:

  • establishing or approving all policies as required;
  • approving payments from the Fund;
  • reviewing, adopting and monitoring the strategic planning process
  • approving the annual audited financial statements of the Fund;
  • reviewing and approving the Board's operating budget;
  • ensuring policies and processes are in place for the identification of risks and reviewing and approving risk management strategies; and
  • ensuring that an actuarial review of the Fund is conducted.

As part of its ongoing efforts to ensure the solvency of the Fund, the MOU requires the Board to undertake an actuarial review, at any time, in order to ensure the actuarial soundness of the Funds. The Board had an actuarial study completed in June 2010 by Ernst & Young. The conclusion of the review was that the Fund is in a strong financial position and that a Fund balance of approximately $4.5M would cover net claims with 99% confidence.

Claims Investigation and Adjudication:

The process begins when the seller files a claim with the Board or indicates an intention to file a claim. Once a complaint is received an application form is sent to the seller. Once the claim application is received it is investigated by the Regulatory Compliance Unit in the Food Safety and Traceability Programs Branch. When the investigation is completed an investigative report is given to the Board. The Board conducts an in-depth analysis, which may involve legal services, and either makes a final decision or offers an opportunity for the parties to make submissions or attend a hearing before making its final decision.

If the Board offers an opportunity for a hearing, and a hearing is requested by one of the parties, a Notice of Hearing is mailed to the parties stating the time, date and location of the hearing.

The Board works to adjudicate cases within 60 days of receiving the file from the investigators. Where a hearing is held, it may take longer to make a decision.

After the claims adjudication process is completed, the Board sends a decision letter to the claimants. Appendix 1 shows the history of claims to the Fund up to March 31, 2013.

Recovery of Money Owed:

The Board, through legal counsel and the Administrator, work to recover money owed to the Board. Since inception, the Board has paid out $10,166,348 and has recovered $3,254,515 for a 32.02% recovery rate. At the end of last fiscal year the Board's recovery rate was 30.1%; an improvement of 1.92 % (See Appendix 2 for recovery history). As per the MOU, in 2010/11 a recovery policy was developed and is currently in force. The recovery policy states that the Board will make every reasonable attempt to recover monies that is owed to the Board. Its objectives are to utilize both Ministry and external legal staff in recovering as much outstanding debt as is reasonably achievable using a variety of tools and options. There are currently two active debt recovery files. It is anticipated that one of the files will yield approximately $375,000 in 2013/14.

Analysis of Operational and Financial Performance

The Board administers the compensation Fund established under the FPPA. Should a licensed dealer or producer default, the Board adjudicates any claim(s) and determines the payment (if any) to be made from the Fund.

A total of 61claims were received by the Board in 2012/13 fiscal. The Board made a decision on all 61 of these claims in the 2012/13 fiscal. Twelve (12) of the 61 claims were decided after a hearing. The details of the 61 claims adjudicated are as follows:

  • Twelve (12) claims were paid in full totaling $ 942,129.44
  • Forty Nine (49) claims were partially paid totaling $ 276,479.56, based on grounds set out in O. Reg. 560/93.

The Board took an average of 39 days from when the investigative report was received to make a decision on the claims adjudicated. This was twenty one days less than the goal set in the business plan. The Board benefited from work done in 2009/10 to streamline the claims adjudication process. This included a request to the Minister to re-appoint the Chair to ensure board continuity and hiring a secretary for the provision of secretariat and adjudication support. For the 2011/2012 year the average number of days to adjudicate a claim was 61because there were more hearings and a greater volume of claims.

Because the Fund is actuarially sound it was able to pay out these claims with minimal impact. The balance of the fund at the beginning of the fiscal year was $7,314,023 and at the end of fiscal 2012/13 it was $6,876,848. The Board recovered a total of $ 561,382 in fiscal 2012/13.

The table below shows the number of days between receipt of the report from the investigation unit and a decision by the Board.

Fiscal 2011/12 Number of days
0-60 61-70 71-80 81-90 91-100 101-120 121-130 131-160 Total
# of cases 61               61
% of cases 100%               100%

Fund Performance and Investment Strategy:

The Board's main objective when managing investment capital is to safeguard its ability to remain as a going concern so that it can continue to deliver financial protection to qualified livestock sellers. Investment income is one important source of revenue for the Fund.

The investment strategy flows from the investment guidelines set out in the MOU, which includes some investments allowed under repealed provisions of the Trustee Act. It is further guided by Board's policy which requires 60% in long term investments and 40% in short and medium term investments. When short or medium term investments mature, research is done on the variety of rates available from 30 day to 2 year term investments. If it appears that interest rates are generally rising then a shorter maturity date would be chosen to take advantage of potentially higher rates at maturity. If rates appear to be falling then a longer maturity would be selected.

Over the last seven years, the ability to invest in a high security first mortgage at 5% produced returns in excess of $55,000 more per year than any other options available on the market that the Board can invest in under its guidelines.

The Fund's asset mix is made up of:

Cash, short and medium term investments:
  • The Fund's short term investment is one GIC issued by a domestic financial institution that matures on February 2014 and that earns 1.65% per annum. Cash and short term investments holdings at year end were $1,082,410 (16.82% of total investments, down from 25.53 % the previous year). The decline occurred primarily because of claims paid.
  • Guaranteed Investment Certificate: There is one GIC in the amount of $1,700,000 issued by a domestic financial institution with maturity date of February 2015 that earns 1.9 % annually. This investment can be cashed at any time without penalty.
Long term investment:

The Fund's long term investment consist of real estate in the form of a $4 million first mortgage on development lands in the city of Kitchener bearing interest at 5% payable semiannually.

The $4 million is approximately 58% of the Fund's total investment.(3) Since 2004, when the Board made its initial investment in real estate, the portfolio has generated an average annual return of 4.06%. The year prior the portfolio's yield was 3.22%. This represents an increase of $55,000 per year during a low interest environment. Interest income on these investments totalled $ 244,642 for 2012/13. In 2011/12 investment income was $269,320 and in 2010/11 it was $264,454. The small decrease between 12/13 and 11/12 was due to an decrease in total fund investment, caused by several large claim payouts, even though there was minimal increase in short term rates.

The Board's strategic investment mix was instrumental in minimizing the impact of the economic downturn on its investment. The Board considers its investment in real estate to be a relatively safe investment that has generated great returns with little to no risk. Diversification among different assets, such as the mortgage, is the Board's key strategy to reduce risk.


(3)The mortgage was originally signed on December 10, 2004 for $3,000,000. In December 2008, the mortgage was increased to $4.0 million and renewed for four years. In December 2012, the mortgage was renewed for an additional five years with the principal due in full December 10, 2017. In the event of the sale or any other conveyance of all or part of the lands, at the option of the Board, the principal and accrued interest shall be immediately due and payable. The debt to value ratio is 42% based on an independently appraised value of the land.
Contributions:

The amount of money flowing into the Fund from check-off fees was $106,068, compared to $105,346 in 2011/12; an increase of $723.

As at March 31, 2013, the Fund balance stood at $6,876,848. This is a decrease of $434,284 from March 31, 2012.

Board expenses:

The total cost of administering the Fund in 2012/13 was $127,765 (this was $5,763 under budget primarily due to fewer claims.)

The Board operating expenses included $120,429 paid to BCFPPI to offset costs incurred in the determination of financial responsibility of livestock dealers and other Board administration. Under the financial protection program all dealers must be licensed annually, with licensing dependent upon a positive assessment of financial responsibility by the program administration. Section 7(2) of the FPPA allows the Board to use the Fund to pay the whole or any part of the costs incurred in determining financial responsibility. The remaining $7,336 was for Board secretarial and administrative support.

Financial position:

The audited financial statement shows a surplus of $6,876,847 at year end (see Appendix 2: audited financial statements). The table below shows the budget to actual and the variance for 2010/11 fiscal, 2011/12 fiscal, and the 2012/13 fiscal.

  Budget
2010/11
Actual
2010/11
Variance
2010/11
Budget
2011/12
Actual
2011/12
Variance
2011/12
Opening Assets   $7,131,542       $7,122,407
Fees $105,000 $109,882 $ 4,882 $110,000 $105,345 $ (4,655)
Interest $272,250 $264,454 $ (7,796 ) $285,400 $269,319 $ (16,081)
Recoveries $ 0 $332,869 $ 332,869 $ 100,000 $ 216,541 $ 116,541
Cliams paid $ 0 $ 567,979 $ 567,979 $ 0 $ 285,912 $ 285,912
Admin Expenses $ 2,000 $53,111 $ (51,111) $ 3,000 $8,322 $ (5,322)
Fee BDFPPI $ 95,249 $95,249 $ 0 $108,249 $ 108,249 $ 0
Closing Equity   $7,122,407     $7,311,130  

Budget

2012/13

Actual

2012/13

Variance

2012/13

Opening Assets   $7,311,130  
Fees $106,000 $106,068 $ 68
Interest $245,000 $ 244,642 $ (358)
Recoveries $561,000 $ 561,382 $382
Claims paid $ 0 $1,218,609 $ 1,218,609
Admin Expenses $ 7,336 $7,336 $ 0
Fee BDFPPI $126,192 $ 120,430 $ (5,764)
Closing Equity   $6,876,848  

Discussion of performance targets

In its 2013-2016 Business Plan the Board identified key priorities for action. What follows is a brief summary of key accomplishments regarding each of these priorities in the 2012/13 fiscal year. The table below shows the targets achieved/not achieved and actions to be taken.

Objective Performance Measure Target Targets achieved/not achieved and action to be taken
To protect the long term viability of the Fund for livestock producers. Actuarial study completed at least once every five years or as required 2015 Last actuarial study completed in 2010
Review investment policy annually July 2012 Achieved
Debt collection policy drafted and implemented 2011/12 Recoveries policy drafted in 2011 and is in force
Program administrator follow-up and provide ministry staff with information as required regarding regulatory changes July 2012 implementation Regulatory amendments approved and became effective July 2011
Risk management plan reviewed and updated quarterly Quarterly review Achieved (reviewed as part of Business Plan) also reviewed quarterly as part of AEAD
Review and approve budget annually Annual review Achieved (reviewed as part of Business)
Quarterly review of financial statements provided by program Administrator Quarterly Achieved
Ensure payment from the Fund is compliant with the FPPA. The compliance approach is focused on preventing inaccurate payments by reviewing payments against requirements set out in the FPPA Payments are compliant Achieved
Strengthening Board Governance and accountability

Investment activities compliant with MOU, including some now repealed provisions of the Trustee Act and other applicable legislation/ directives

Compliant Achieved
Strategic planning process developed Discussions with OMAF re best practices Ongoing
Ensuring that there is an adjudication process in place that is simple, fair and accessible with minimal delays Number of days from receipt of investigative report until the LFPB makes and issues its decision 60 days Decisions rendered on average in 39 days. The target was achieved.
Number of applications for judicial review that were granted by the court 0 Achieved
Board at quorum 5 or more members appointed Achieved
Board succession plan in place 2011/12 completed Achieved
Adjudication policy formalized Completed 2011/12 fiscal Achieved
Develop new orientation package/manual Completed 2011/12 fiscal Achieved

Appendix 1: History of Claims up to March 31, 2013

2013
Year
# of Claims Received
# of Claims Paid
Amount Claimed
Amount Paid
1982
11
4
72,039.50
5,357.90
1983
12
5
377,713.20
135,476.30
1984
4
1
645.90
581.30
1985
23
11
287,441.00
258,696.90
1986
3
0
9,475.30
-
1987
142
15
1,813,633.50
1,391,326.00
1988
126
77
833,111.20
567,861.20
1989
8
5
66,882.60
46,715.50
1990
31
23
1,352,067.60
1,183,260.60
1991
2
0
9,810.80
-
1992
1
0
7,500.00
-
1993
1
0
-
-
1994
28
20
825,975.30
742,852.70
1995
2
1
12,110.70
10,899.60
1996
34
34
193,869.80
174,482.80
1997
2
0
17,852.50
-
1998
7
6
165,370.60
138,723.50
1999
1
1
11,384.60
7,969.20
2000
48
47
2,203,876.00
1,977,548.00
2001
142
125
995,275.60
807,618.80
2002
0
0
-
-
2003
17
8
3,782,026.70
210,319.00
2004
40
19
337,875.50
296,894.40
2005
10
6
211,152.40
70,842.90
2006
0
0
-
-
2007
0
0
-
-
2008
0
0
-
-
2009
18
1
703,100.80
18,727.90
2010
1
0
654,105.50
-
2011
38
22
2,230,621.71
549,251.11
2012
264
172
$1,535,925.68
$ 285,911.94
2013
61
61
$ 1,225,030,.94
$ 1,218,609.00
Total
1,113
709
20,035,874.93
10,099,926.55
Recovered
3,254,514.00
Net Paid Out
6,845,412.55
Fund Balance
$6,876,847.76

Apendix 2: History of Claims Recovered

Year
Claims Recovered
Prior to 1998
$ 1,135,254
1998
3,302
1999
-
2000
435
2001
385,000
2002
-
2003
39,760
2004
78,977
2005
119,950
2006
-
2007
350,000
2008
-
2009
-
2010
31,044
2011
332,869
2012
216,541
2013
561,382
Total Recovered
$ 3,254,514

Appendix 3: Audited financial statements

Please contact the Secretariat Coordinator at 519-826-3507 if you require assistance with the financial statements.


For more information:
Toll Free: 1-877-424-1300
E-mail: ag.info.omafra@ontario.ca
Author: Livestock Financial Protection Board
Creation Date: 16 June 2015
Last Reviewed: 16 June 2015