Bill C-15

55 ELIZABETH II

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CHAPTER 3

An Act to amend the Agricultural Marketing Programs Act

[Assented to 22nd June, 2006]

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. (1) The definitions “crop” and “crop unit” in subsection 2(1) of the Agricultural Marketing Programs Act are repealed.

(2) The definition “crop year” in subsection 2(1) of the English version of the Act is repealed.

(3) The definitions “administrator”, “advance” and “producer” in subsection 2(1) of the Act are replaced by the following:

“administrator” means one of the following organizations, if it has the power to sue and be sued in its own name:

(a) an organization of producers that is involved in marketing an agricultural product to which Part I applies;

(b) an organization, including the Board but not including a lender, that the Minister, taking into account any criteria prescribed by regulation, determines to be an organization that represents producers who produce, in an area, a significant portion of an agricultural product for which advances will be made; or

(c) an organization, including a lender, that the Minister determines to be an organization that would be able to make advances more accessible to producers and that the Minister designates as an administrator.

“advance” means an advance payment to an eligible producer for an agricultural product.

“producer” means a producer of an agricultural product who is

(a) a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;

(b) a corporation a majority of whose voting shares are held by Canadian citizens or permanent residents;

(c) a cooperative a majority of whose members are Canadian citizens or permanent residents; or

(d) a partnership or other association of persons where partners or members who are Canadian citizens or permanent residents are entitled to at least 50% of the profits of the partnership or association.

For the purposes of Parts I and IV, “producer” includes a person or entity mentioned in any of paragraphs (a) to (d) that is entitled to an agricultural product or a share in it as lessor, vendor, mortgagee or hypothecary creditor on a date specified for the purposes of this definition in an advance guarantee agreement.

(4) The definition “agricultural product” in subsection 2(1) of the English version of the Act is replaced by the following:

“agricultural product” means an animal or a plant or a product, including any food or drink, that is wholly or partly derived from an animal or a plant.

(5) The definition “campagne agricole” in subsection 2(1) of the French version of the Act is replaced by the following:

(6) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“production unit”, in respect of an agricultural product, means the production unit specified in the advance guarantee agreement relating to the agricultural product.

(7) Subsection 2(1) of the English version of the Act is amended by adding the following in alphabetical order:

“production period”, in respect of an agricultural product, means the period of up to 18 months — or any longer period that is fixed by the Minister — specified in the advance guarantee agreement relating to the agricultural product.

(8) Subsection 2(2) of the Act is repealed.

2. Section 4 of the Act is replaced by the following:

4. The purpose of this Part is to improve marketing opportunities for the agricultural products of eligible producers by guaranteeing the repayment of the advances made to them as a means of improving their cash-flow.

4.1 (1) Subject to subsections (2) and (3), this Part applies only in respect of an agricultural product that meets the following criteria:

(a) the agricultural product is

(i) an animal that is raised in Canada or the fur pelt of such an animal,

(ii) a plant that is grown in Canada or the product of such a plant, or

(iii) honey or maple syrup that is produced in Canada;

(b) the Minister has determined, taking into account any criteria prescribed by regulation, that it is possible to establish an average price for the agricultural product; and

(c) the Minister has determined, taking into account any criteria prescribed by regulation, that the agricultural product is not processed or, in the case of a perishable agricultural product, is not processed beyond what is necessary to store it and prevent spoilage.

(2) The Governor in Council may, by regulation, designate any other agricultural product as being subject to this Part.

(3) Animals that are or were used as breeding animals are not agricultural products that are subject to this Part.

3. (1) Subsections 5(1.1) to (2) of the Act are replaced by the following:

(1.1) An advance guarantee agreement may be made with an administrator and a lender, or with an administrator that is a lender, only if the Minister is satisfied that doing so will reduce the interest payable to the lender and the agreement is made subject to terms and conditions approved by the Minister of Finance.

(1.2) If a guarantee under the advance guarantee agreement is made to a lender, or to an administrator that is a lender, the agreement must provide, in addition to any other terms and conditions, that the interest rate on the money provided by the lender, or by the administrator, as the case may be, will not exceed the rate specified in the agreement.

(2) An administrator must demonstrate to the Minister that it is capable of meeting its obligations under the advance guarantee agreement.

(2) The portion of subsection 5(3) of the Act before paragraph (a) is replaced by the following:

(3) In addition to identifying the agricultural products and specifying the terms and conditions governing advances and their repayment, an advance guarantee agreement must provide that the administrator agrees

(3) Paragraph 5(3)(e) of the Act is replaced by the following:

(e) to take steps, in accordance with the terms and conditions of the advance guarantee agreement, to ensure that, before an advance is made,

(i) in the case of an agricultural product that is storable, it is of marketable quality and stored so as to remain of marketable quality until disposed of in accordance with the repayment agreement or, if that agricultural product is in the course of being produced, or is not yet produced, the amount of the advance is covered by a program listed in the schedule and amounts that may be received under that program are assignable, and

(ii) in the case of an agricultural product that is not storable, it is of marketable quality and maintained so as to remain of marketable quality until disposed of in accordance with the repayment agreement, the amount of the advance is covered by a program listed in the schedule and amounts that may be received under that program are assignable or, if that agricultural product is in the course of being produced, or is not yet produced, the amount of the advance is covered by a program listed in the schedule and amounts that may be received under that program are assignable;

(4) Section 5 of the Act is amended by adding the following after subsection (3):

(3.1) The terms described in paragraphs (3)(c) and (f) and subparagraph (3)(g)(i) — and in paragraph (3)(h) in relation to payments required by paragraph (3)(f) and subparagraph (3)(g)(i) — are not required if the Minister and an administrator are the only parties to the agreement.

(3.2) The Governor in Council may, by regulation, on the recommendation of the Minister, amend the schedule by adding to it, or deleting from it, the name of a program.

(3.3) An amendment to an advance guarantee agreement may not be made during the period specified in it that constitutes the production period if doing so would extend that period beyond 18 months, or the longer period fixed by the Minister, if one was so fixed before the advance guarantee agreement was entered into.

(5) Subsection 5(5) of the Act is replaced by the following:

(5) The aggregate contingent liability of Her Majesty in relation to the principal outstanding under guarantees made under advance guarantee agreements must not at any time exceed $5 billion or the amount fixed by regulation.

(6) The administrator’s percentage mentioned in paragraph (3)(g), as determined under the regulations, must be at least 1% and not more than 15%. If the regulations establish a method of calculating that percentage, the percentage is deemed to be 1% if the calculation results in a lower percentage, and 15% if the calculation results in a higher percentage.

4. Sections 6 and 7 of the Act are replaced by the following:

5.1 (1) The Minister may enter into an advance guarantee agreement with an administrator without making the guarantee referred to in paragraph 5(1)(a) if the Minister is satisfied that the repayment of the advances to be made under the agreement will be guaranteed by another person or entity.

(2) Paragraph 5(3)(i) and, unless the agreement specifies otherwise, section 23 do not apply in respect of an advance guarantee agreement that the Minister enters into without making the guarantee referred to in paragraph 5(1)(a).

6. A guarantee given to an administrator is not effective unless the administrator complies with this Act and the advance guarantee agreement.

7. (1) Despite paragraph 5(3)(e), the advance guarantee agreement may authorize the administrator to pay, subject to any terms and conditions set out in the advance guarantee agreement, a portion of an advance as an emergency advance to an eligible producer who has difficulty producing the producer’s agricultural product because of unusual production conditions attributable to weather or natural disaster if it is reasonable to expect that the agricultural product will be marketable.

(2) The maximum amount of the emergency advance is the lesser of $25,000, or the amount fixed by regulation, and 50%, or the percentage fixed by regulation, of the advance that the administrator expects to make to the producer in respect of the agricultural product on the basis of the amount of that product that is expected to be produced.

5. Subsection 9(1) of the Act is replaced by the following:

9. (1) The Minister must, in relation to each producer, pay to the lender specified in the advance guarantee agreement — or, if the agreement was made only with an administrator, to the administrator — the interest accruing during a production period on the amounts borrowed by the administrator to pay the first $100,000 — or the amount fixed by regulation — of the total of the following amounts advanced during the production period, or during any shorter period specified in the agreement:

(a) amounts advanced to the producer for all of their agricultural products, and

(b) the percentage of the amounts advanced to all related producers, for all of their agricultural products, that is attributable to the producer under subsection (2).

6. (1) Subsection 10(1) of the Act is replaced by the following:

10. (1) For a producer to be eligible for a guaranteed advance during a production period,

(a) the producer must own the agricultural product continuously and be responsible for marketing it, as determined by the Minister, taking into account any criteria prescribed by regulation;

(b) if the producer is an individual, the producer must have attained the age of majority in the province where the producer’s farming operation is carried on and must be principally occupied in that operation or be entitled to the agricultural product or a share in it as lessor, vendor, mortgagee or hypothecary creditor;

(c) if the producer is a corporation with only one shareholder, the shareholder must

(i) have attained the age of majority in the province where the producer’s farming operation is carried on,

(ii) be principally occupied in that operation or be entitled to the agricultural product or a share in it as lessor, vendor, mortgagee or hypothecary creditor, and

(iii) agree in writing to be personally liable to the administrator for any liability of the producer under section 22 and to provide any security for the repayment of the advance that the administrator may require;

(d) if the producer is a corporation with two or more shareholders, a partnership, a cooperative or another association of persons,

(i) at least one of the shareholders, partners or members, as the case may be, must have attained the age of majority in the province where the producer’s farming operation is carried on and must be principally occupied in that operation or be entitled to the agricultural product or a share in it as lessor, vendor, mortgagee or hypothecary creditor, and

(ii) each of the shareholders, partners or members, as the case may be, must agree in writing to be jointly and severally, or solidarily, liable to the administrator for any liability of the producer under section 22 and must provide any security for the repayment of the advance that the administrator may require;

(e) the producer and, to the extent provided in the advance guarantee agreement, any related producers must not be in default under a repayment agreement;

(f) the producer must not be ineligible under subsection 21(4);

(g) the producer must not have given the agricultural product, or any amount to be received under a program listed in the schedule, as security ranking in priority to the security created by section 12; and

(h) the producer must demonstrate that

(i) in the case of an agricultural product that is storable, it is of marketable quality and stored so as to remain of marketable quality until disposed of or, if that agricultural product is in the course of being produced, or is not yet produced, the amount of the advance is covered by a program listed in the schedule and amounts that may be received under that program are assignable, and

(ii) in the case of an agricultural product that is not storable, it is of marketable quality and maintained so as to remain of marketable quality until disposed of, the amount of the advance is covered by a program listed in the schedule and amounts that may be received under that program are assignable or, if that agricultural product is in the course of being produced, or is not yet produced, the amount of the advance is covered by a program listed in the schedule and amounts that may be received under that program are assignable.

(2) Subsection 10(1.1) of the English version of the Act is replaced by the following:

(1.1) For the purpose of paragraph (1)(h), the producer’s eligibility is not affected by the administrator sharing its security with another creditor in accordance with the terms and conditions specified in the advance guarantee agreement.

(3) Subsection 10(2) of the Act is replaced by the following:

(2) An eligible producer must make a repayment agreement with the administrator under which the producer agrees

(a) to repay the advance

(i) by selling the agricultural product for which the advance is to be made to a buyer or buyers named by the administrator, and authorizing in writing each buyer to withhold from any amount they pay to the producer for each production unit an amount determined in accordance with the repayment schedule specified in the agreement,

(ii) by selling, in accordance with the terms and conditions specified in the agreement, the agricultural product for which the advance is to be made and paying directly to the administrator, for each production unit, an amount determined in accordance with the repayment schedule specified in the agreement,

(iii) by paying directly to the administrator any amount received under a program listed in the schedule,

(iv) by assigning to the administrator amounts payable to the producer under a program listed in the schedule,

(v) without proof that the agricultural product has been sold, by paying the administrator an amount up to an amount prescribed by the regulations, or

(vi) by paying the administrator by a combination of the methods described in subparagraphs (i) to (v);

(b) to ensure that

(i) in the case of an agricultural product that is storable, it will be stored so as to remain of marketable quality until disposed of in accordance with the repayment agreement or, if that agricultural product is in the course of being produced, or is not yet produced, the amount of the advance is covered by a program listed in the schedule and amounts that may be received under that program are assignable, and

(ii) in the case of an agricultural product that is not storable, it will be maintained so as to remain of marketable quality until disposed of in accordance with the repayment agreement, the amount of the advance is covered by a program listed in the schedule and amounts that may be received under that program are assignable or, if that agricultural product is in the course of being produced, or is not yet produced, the amount of the advance is covered by a program listed in the schedule and amounts that may be received under that program are assignable;

(c) to repay the amount of the overpayment, if any, of the advance within the period that begins on the earlier of the day on which the producer becomes aware of the overpayment and the day on which the administrator mails or delivers a notice to the producer stating that there has been an overpayment of the advance and ends on the expiry of the number of days set out in the agreement; and

(d) to comply with any other terms and conditions set out in the agreement, including terms and conditions governing the delivery of the agricultural product and the payment of interest, both before and after any default.

7. Sections 11 and 12 of the Act are replaced by the following:

11. If an agricultural product for which a guaranteed advance is made ceases to be in marketable condition, in whole or in part, through no fault of the producer, the producer becomes liable to repay immediately, to the administrator that made the advance, the portion of the guaranteed advance that is attributable to the unmarketable portion of the agricultural product, together with the interest on that portion from the date of the advance.

12. An administrator that makes a guaranteed advance to a producer in a production period in respect of an agricultural product shall take the security required by the regulations, for the amount of the producer’s liability under sections 22 and 23, in the agricultural product for which the advance was made, in any agricultural product produced in a subsequent production period by the producer and, subject to the repayment agreement, in any amount that may be received by the producer under a program listed in the schedule.

8. (1) Subsection 13(1) of the English version of the Act is replaced by the following:

13. (1) For the purpose of making guaranteed advances under this Act, the Board may make any arrangements, contracts or agreements that it considers necessary or advisable for the administration of this Part and it may borrow or raise money by any means, including by issuing, reissuing, selling and pledging bonds, debentures, notes and other evidences of indebtedness of the Board.

(2) Subsection 13(2) of the Act is replaced by the following:

(2) The Minister of Finance may, subject to any terms and conditions approved by the Governor in Council, guarantee the repayment of money borrowed under subsection (1) together with the interest on it if the money is borrowed or raised in order to make an advance under a guaranteed advance agreement to which the only parties are the Minister and the Board.

9. Section 14 of the English version of the Act is replaced by the following:

14. Despite the Canada Grain Act, every person, including the manager or operator of an elevator, authorized by the Board to make guaranteed advances on its behalf may make advances by means of cash purchase tickets.

10. Sections 15 to 19 of the Act are replaced by the following:

16. (1) At any time after a producer applies to the Board for an advance, the Board may require the producer to deliver to it any document, including a permit book, that the Board issued to the producer or to a related producer.

(2) The Board may require an endorsement to be made in any of those documents, in a form specified by the Board, indicating that amounts must be deducted in accordance with the repayment agreement with the producer and paid to the Board in priority to all other persons.

17. (1) If an agricultural product for which the Board has required the delivery of a document bearing an endorsement required under subsection 16(2) is sold, the producer of the agricultural product or, if the person purchasing it has been authorized by the Board to make remittances to the Board in respect of amounts paid for agricultural products, the person purchasing the agricultural product, shall

(a) deduct and pay to the Board, in priority to all other persons, the portion of the payment for the agricultural product that the repayment agreement with the producer authorizes to be deducted from each payment until the advance has been repaid; and

(b) make an appropriate entry of the deduction in the document and in any other document that has the same endorsement and that is presented to the person purchasing the agricultural product.

(2) When the guaranteed advance has been repaid, the Board must cancel the endorsement.

18. A producer whose document has been endorsed under subsection 16(2) is not entitled to receive and shall not use any other document, including a document of a related producer, in substitution for the endorsed document for the same or any subsequent production period, unless the guaranteed advance is repaid or the endorsement is also made in the other document.

Amount of Advances

19. (1) Subject to subsection (3), the amount of an advance eligible for a guarantee under this Part is calculated by multiplying

(a) the number of production units for which the advance is to be made

by

(b) the rate per production unit specified in the advance guarantee agreement for the agricultural product for the production period for which the advance is made, or for a specified portion of the production period for which the advance is made.

(2) The rate per production unit may be specified for a particular agricultural product in a particular area, but it must not exceed 50%, or the percentage fixed by regulation, of the average price that in the Minister’s opinion will be payable to producers of the agricultural product in that area.

(3) If, because of paragraph 10(1)(h), the amount of the advance must be covered by a program listed in the schedule, the maximum amount of an advance eligible for a guarantee under this Part is the lesser of the amount calculated under subsection (1) and the percent-age, specified in the advance guarantee agreement, of the maximum amount that the producer could receive under that program.

11. Subsection 20(1) of the Act is replaced by the following:

20. (1) Subject to subsection (1.1), the maximum amount of advances in any production period that are eligible for a guarantee under this Act is

(a) for a particular agricultural product produced by a producer, the amount specified in the advance guarantee agreement for that agricultural product; and

(b) for all agricultural products produced by a producer or a related producer, to the extent that advances for the agricultural products are attributable to the producer under subsection (2), $400,000 or the amount fixed by regulation.

(1.1) The maximum amount of all advances that are eligible for a guarantee under this Act in relation to a producer, or to a related producer to the extent that the advances are attributable to the producer under subsection (2), may not, at any one time, exceed $400,000, or the amount fixed by regulation.

12. (1) Paragraph 21(1)(b) of the English version of the Act is replaced by the following:

(b) has not met all of their obligations under the agreement at the end of the production period for which the advance was made;

(2) Paragraph 21(1)(d) of the Act is replaced by the following:

(d) at any time breaches an obligation under the agreement and, if the breach relates to the obligation to store the agricultural product or to maintain it so that it remains of marketable quality, section 11 does not apply; or

13. Subsection 24(1) of the Act is replaced by the following:

24. (1) If a producer is in default under a repayment agreement with the Board or any other administrator, the Board may, for the purpose of repaying the producer’s liability under sections 22 and 23, make deductions from any amounts owing under the Canadian Wheat Board Act to the producer or to another producer whose permit book the producer uses.

14. The Act is amended by adding the following after section 33:

33.1 The following may be assigned in whole or in part:

(a) for the purposes of Part I, an amount payable under a program listed in the schedule that is a Crown debt within the meaning of section 66 of the Financial Administration Act; and

(b) for the purposes of Part II, an amount payable by the Minister under a price guarantee agreement.

15. Subsection 34(4) of the Act is replaced by the following:

(4) A person who uses a document in contravention of section 18 commits an offence.

16. (1) The portion of subsection 40(1) of the Act before paragraph (g) is replaced by the following:

40. (1) The Governor in Council may make regulations

(a) for the purposes of the definition “administrator” in subsection 2(1), prescribing criteria for determining

(i) whether organizations represent producers in an area, or

(ii) what constitutes a significant portion of an agricultural product, either generally or with respect to any specified area;

(b) for the purpose of subsection 4.1(1), prescribing criteria for

(i) establishing an average price for an agricultural product, or

(ii) determining whether an agricultural product is not processed or not processed beyond what is necessary to store it and prevent spoilage;

(c) determining the administrator’s percentage mentioned in paragraph 5(3)(g), or establishing a method of calculating it, which percentage may differ among administrators depending on their experience and past performance;

(d) determining a method of calculating the Minister’s percentage mentioned in paragraph 5(3)(i) and subsection 23(1);

(d.1) fixing an amount for the purposes of each of subsections 5(5), 7(2) and 9(1), paragraph 20(1)(b) and subsection 20(1.1), which amount may, for the purposes of subsection 9(1), paragraph 20(1)(b) or subsection 20(1.1), differ with regard to classes of producers;

(e) fixing a percentage for the purposes of each of subsection 7(2), paragraph 9(2)(c), subsection 19(2) and paragraph 20(2)(c);

(e.1) prescribing criteria for determining, for the purpose of paragraph 10(1)(a), when a producer ceases to own an agricultural product or ceases to be responsible for its marketing;

(f) prescribing an amount for the purposes of subparagraph 10(2)(a)(v);

(f.1) for the purposes of paragraph 10(2)(c), defining “overpayment”;

(f.2) respecting the security that administrators are required to take for the purposes of section 12;

(2) Subsection 40(1) of the Act is amended by striking out the word “and” at the end of paragraph (h) and by adding the following after paragraph (h):

(h.1) respecting the assignment of the amounts referred to in paragraphs 33.1(a) and (b); and

(3) Subsection 40(2) of the Act is replaced by the following:

(2) Regulations made under paragraphs (1)(d.1), and regulations made under paragraph (1)(e) to the extent that they fix a percentage for the purposes of subsection 7(2) or 19(2), may only be made on the recommendation of the Minister with the concurrence of the Minister of Finance.

(3) Regulations made under paragraph (1)(f.2) may require different security to be taken with respect to different classes of agricultural products, different amounts of producer liability and different risks associated with that liability.

17. Subsection 42(1) of the Act is replaced by the following:

42. (1) Every five years after the coming into force of this subsection, the Minister must review the provisions and operation of this Act in consultation with the Minister of Finance.

18. Section 51.1 of the Act is replaced by the following:

51.1 For the purpose of applying paragraph 10(1)(e), a default under a repayment agreement includes a default in repaying an advance made under the Advance Payments for Crops Act on or before March 31, 1997.

19. Section 52.1 of the Act is replaced by the following:

52.1 For the purpose of applying paragraph 10(1)(e), a default under a repayment agreement includes a default in repaying an advance payment made under the Prairie Grain Advance Payments Act on or before May 31, 1997.

20. The Act is amended by adding, at the end of the Act, the schedule set out in the schedule to this Act.

21. (1) The following definitions apply in this section.

“new Act” means the Agricultural Marketing Programs Act as it reads on the day on which this Act comes into force.

“old Act” means the Agricultural Marketing Programs Act as it read immediately before the day on which this Act comes into force.

(2) The old Act continues to apply after the day this Act comes into force with respect to advance guarantee agreements and repayment agreements entered into under the old Act that are still in existence on the day on which this Act comes into force.

(3) Amounts remaining unpaid in respect of advances made under advance guarantee agreements entered into under the old Act that are still in existence on the day on which this Act comes into force are to be taken into account for the purposes of applying the new Act.

(4) Amounts remaining unpaid in respect of advances made under agreements entered into under the Spring Credit Advance Program or the Enhanced Spring Credit Advance Program that are still in existence on the day on which this Act comes into force are to be taken into account for the purposes of applying the new Act.

(5) A default under a repayment agreement entered into under the Spring Credit Advance Program or the Enhanced Spring Credit Advance Program is deemed to be a default under a repayment agreement entered into under the new Act.

(6) For the purpose of implementing the amendments to the Agricultural Marketing Programs Act enacted by this Act, a regulation made under the new Act, shall, if the regulation so provides, be retroactive and be deemed to have come into force on a day earlier than the day on which the regulation was made, which earlier day may not be before the day on which this Act comes into force.

22. This Act comes into force on a day to be fixed by order of the Governor in Council.