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O. Reg. 208/09: TOBACCO - POWERS OF LOCAL BOARD

filed May 28, 2009 under Farm Products Marketing Act, R.S.O. 1990, c. F.9

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ONTARIO REGULATION 208/09

made under the

FARM PRODUCTS MARKETING ACT

Made: May 21, 2009
Filed: May 28, 2009
Published on e-Laws: June 1, 2009
Printed in The Ontario Gazette: June 13, 2009

TOBACCO — POWERS OF LOCAL BOARD

Definitions

1. In this Regulation,

“local board” means The Ontario Flue-Cured Tobacco Growers’ Marketing Board continued by Regulation 436 of the Revised Regulations of Ontario, 1990 (Tobacco — Plan) made under the Act; (“commission locale”)

“producer” means a person who produces tobacco in Ontario for any purpose, including personal consumption; (“producteur”)

“producing” means planting, growing, harvesting and curing; (“produire”)

“tobacco” means unmanufactured flue-cured tobacco produced in Ontario. (“tabac”).

Delegation of powers

2. The following powers of the Commission are delegated to the local board by the Commission under subsection 3 (3) of the Act:

1. Requiring persons engaged in producing, assembling, buying, offering for sale, selling, storing or transporting tobacco to register their names, business addresses and e-mail addresses with the local board.

2. Requiring persons engaged in producing, assembling, buying, offering for sale, selling, storing or transporting tobacco to furnish such information relating to any of those activities, including the completing and filing of returns, as the local board determines is necessary to enable it to exercise its powers and perform its duties under the Act and the regulations.

3. Appointing persons to, at any reasonable time,

i. inspect the books, records, documents, lands and premises other than dwellings, any tobacco and growing tobacco plants of persons engaged in producing tobacco, and

ii. enter on lands or premises used for the producing of tobacco and measure the area of land used to produce the tobacco or perform a count of the tobacco.

4. Appointing persons to inspect, at any reasonable time, the books, records, documents, lands and premises other than dwellings and any tobacco of persons engaged in assembling, buying, offering for sale, selling, storing or transporting tobacco.

5. Stimulating, increasing and improving the marketing of tobacco by such means as the local board considers proper in view of the purpose of the Act.

6. Co-operating with a marketing board, local board, marketing commission or marketing agency of Canada or of any province in Canada for the purpose of marketing tobacco.

7. Making such orders and issuing such directions as are necessary to enforce the due observance and carrying out of the provisions of the Act and the regulations with respect to tobacco.

Delegation of regulation-making powers

3. The following regulation-making powers of the Commission are delegated to the local board by the Commission under subsection 7 (7) of the Act:

1. Providing for the licensing of any or all persons before commencing or continuing to engage in the producing, assembling, buying, offering for sale, selling, storing or transporting of tobacco.

2. Prescribing or providing for classes of licences and imposing terms and conditions on any class of licence.

3. Prohibiting persons from engaging in the producing, assembling, buying, offering for sale, selling, storing or transporting of tobacco except under the authority of a licence and except in compliance with the terms and conditions of the licence.

4. Providing for the imposition, disposition, use and, subject to subsections 7 (2) and (3) of the Act, amount of penalties where, after a hearing, the local board is of the opinion that the applicant or licensee has failed to comply with or has contravened any term or condition of a licence, any provision of the Act or the applicable regulations, or any order or direction of the local board.

5. Subject to section 7, providing for the fixing of licence fees and their payment by any or all persons producing, assembling, buying, offering for sale, selling, storing or transporting tobacco and the collecting of the licence fees and their recovery by suit in a court of competent jurisdiction.

6. Requiring any person who processes tobacco that he or she has produced to furnish to the local board statements of the amounts of tobacco that the person produced and used for processing in any year.

7. Prescribing the form of licences.

8. Providing for the exemption from any or all of the regulations, orders or directions made by the local board of any class, variety or grade of tobacco, or any person or class of persons engaged in producing, assembling, buying, offering for sale, selling, storing or transporting tobacco or any class, variety or grade of tobacco.

9. Requiring and providing for the furnishing of security or proof of financial responsibility or of a performance bond by a person or class of persons engaged in producing, assembling, buying, offering for sale, selling, storing or transporting tobacco and providing for the administration, forfeiture and disposition of any money or securities so furnished and the proceeds from them.

10. Providing for the control and regulation of the producing, assembling, buying, offering for sale, selling, storing or transporting of tobacco.

11. Prohibiting the assembling, buying, offering for sale, selling, storing or transporting of any class, variety or grade of tobacco.

Other powers

4. (1) The local board may, after a hearing, impose such terms and conditions upon a licence as the local board considers proper.

(2) The local board may refuse to grant or renew or may suspend or revoke a licence,

(a) where, after a hearing, the local board is of the opinion that the applicant or licensee is not qualified by experience, financial responsibility or equipment to properly engage in the business for which the application was made or the licence granted; or

(b) where, after a hearing, the local board is of the opinion that the applicant or licensee has failed to comply with or has contravened any provision of the Act, the applicable regulations or any order or direction of the local board or of a marketing agency of Canada.

(3) The Commission authorizes the local board to,

(a) use licence fees for any class of licence or other money received by the local board for the purposes of paying its expenses in carrying out and enforcing the Act and the regulations with respect to tobacco, but for no other purpose; and

(b) appoint agents, prescribe their duties and terms and conditions of appointment, and provide for their remuneration.

(4) Clause (3) (a) does not apply in respect of service charges paid under subsection 5 (1) or in respect of expenses relating to the provision of services under that subsection.

(5) Despite clause (3) (a), the local board shall not expend or agree to expend an amount of more than $25,000 on any single good, service, interest in real estate, or any other thing, without the Commission’s prior written consent.

(6) Subsection (5) applies in respect of an amount paid by the local board as a wage or salary only if the local board proposes to increase the amount.

Vesting of powers

5. (1) The following powers are vested in the local board by the Commission under subsection 8 (1) of the Act:

1. To offer services to producers with respect to the assembling, buying, offering for sale, selling, storing or transporting of tobacco.

2. On request by a producer, to provide services to the producer with respect to the assembling, buying, offering for sale, selling, storing or transporting, as the case may be, of tobacco, if the local board offers services under paragraph 1.

3. Subject to section 7, to fix service charges for services provided under paragraph 2 and require their payment by producers who request and receive the services.

(2) Service charges paid to the local board by producers for services provided under paragraph 2 of subsection (1) shall be used only to pay the expenses the local board incurs in providing the services and for no other purpose.

Vesting of regulation-making powers

6. The following regulation-making powers are vested in the local board by the Commission under subsection 14 (1) of the Act:

1. Providing for the seizure and detention of the whole or any part of any tobacco or any class, variety or grade of tobacco by any person appointed under paragraph 3 or 4 of section 2, where the person believes on reasonable grounds an offence against the Act or the regulations has been committed in respect of the tobacco.

2. Providing for the release from detention of the whole or any part of any tobacco or any class, variety or grade of tobacco, where the local board is satisfied that the owner of the tobacco that has been seized and detained complies with the Act and the applicable regulations.

3. Providing for the disposal of the whole or any part of any tobacco or any class, variety or grade of tobacco that has been seized and detained and providing for the administration and disposition of any money derived from the disposal.

4. Prescribing the manner in which tobacco shall be seized, detained, released and disposed of.

Limits on fees, service charges

7. (1) The local board shall ensure that the total amount of licence fees payable in any fiscal year of the local board under a regulation made under paragraph 5 of section 3 does not exceed the net costs the local board reasonably expects to incur in that year in carrying out and enforcing the Act and the regulations.

(2) For the purposes of subsection (1), the net costs the local board reasonably expects to incur in a fiscal year shall be calculated by,

(a) making a reasonable estimate of the costs the local board will incur in that year; and

(b) subtracting from that amount money other than licence fees that the local board expects to receive in that year.

(3) Subsections (1) and (2) do not apply in respect of service charges paid under subsection 5 (1) or in respect of expenses relating to the provision of services under that subsection.

(4) Despite subsections (1) and (2), the local board may maintain an operating reserve, but the amount of the reserve in a fiscal year shall not exceed 50 per cent of the local board’s total direct cost of operations for the previous fiscal year, excluding any extraordinary expenses and any depreciation, amortization expenses and other capital expenses, as set out in the local board’s audited financial statements for that year.

(5) For the purposes of subsection (4), all cash, bonds, debentures and stocks of the local board and any other liquid assets of the local board that can be readily converted into cash shall be included in calculating the amount of the reserve.

(6) The local board shall ensure that the total amount of service charges payable under paragraph 3 of subsection 5 (1) for services provided under paragraph 2 of that subsection does not exceed the reasonable expenses that would be incurred by the local board in providing those services.

(7) The total amount that the local board may require a person who buys tobacco to pay to the local board under a regulation made under paragraph 5 of section 3, under paragraph 3 of subsection 5 (1) or under both shall not exceed $200 per year.

(8) Subsection (7) applies in respect of a regulation of the local board whether it was made before, on or after the day this Regulation comes into force.

Revocation

8. Regulation 435 of the Revised Regulations of Ontario, 1990 is revoked.

Commencement

9. This Regulation comes into force on June 1, 2009.

Made by:
Pris par :

Ontario Farm Products Marketing Commission:
Commission de commercialisation des produits agricoles de l’Ontario :

Geri Kamenz

Chair
Président

Arva Machan

Secretary
Secrétaire

Date made: May 21, 2009.
Pris le : 21 mai 2009.

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