A B.C. court has dismissed a claim from farmers in the Okanagan that a mandatory levy on Ambrosia apples violates their constitutional rights, ordering them to pay over $30,000 in delinquent fees.
In a decision handed down earlier this month in provincial court in Kelowna, Judge Andrew Tam ruled on the dispute, explaining why the fee is imposed and why it is allowed under the Charter of Rights and Freedoms.
The New Tree Fruit Varieties Development Council was suing Devin Jell, Janine Jell, Gartrell Heritage Farms and Sun-Oka fruit farms for levies dating back to 2016 and 2017. The fee is imposed at a rate of two cents per pound, and the amount due was $31,621.78.
In a counter-claim, the farmers argued they should not have to pay those fees and that they should be reimbursed for those they did pay in 2018 and 2019, an amount totalling $37,419.98.
The crux of the constitutional challenge was that all Canadians have a right to freedom of association.
“The defendants do not say that they are barred from associating with others. Rather, their complaint is that they are forced to be associated with the council through the payment of the levy,” Tam wrote, noting that all rights have limits and concluding that if the argument succeeded it would have wide-ranging implications.
“If the defendants were correct in their analysis, then it would follow that anyone could object to the payment of any tax on the basis that they do not wish to be associated with the government entity that is imposing it. That is not how it works living in a democratic society and living in a democratic society is something the Charter clearly presupposes,” Tam later added.
THE NEW TREE FRUIT VARIETIES DEVELOPMENT COUNCIL
The council was founded in 2000 by a group of growers soon after the Ambrosia apple was first developed, the court heard.
“In the past, new varieties have failed to achieve commercial success because of a lack of interest from major participants in the industry,” the judge said.
“Unless some critical mass is reached whereby it makes business sense to market a product, a fruit may go un-marketed and be left to rot in a warehouse.”
The levy was collected in order to fund the council’s activities, which included promoting the apple by producing radio and TV ads, billboards, and doing outreach to packing houses and grocery stores.
It also funded research into the fruit, including “extensive work to improve the appearance of the fruit by giving it a redder colour,” the decision noted.
The levy is no longer collected, although the council still exists.
Tam, in weighing whether the council and its mandatory levy violated the Charter, noted that the fee itself was the only real requirement of being associated with the council.
“The defendants are not required to attend any meetings. There are simply no “causes,” political or otherwise, associated to this whole exercise. While the council is engaged in marketing activities of Ambrosia apples, the defendants remain free to do their own marketing and to form their own group for that purpose,” Tam said.
While the association with the council via the fee was not voluntary, Tam said it was constitutional because it did not “threaten any core liberty interest.”
Further, the judge found that the council’s formation and activities were likely instrumental in the Ambrosia apple becoming commercially viable in B.C. and beyond.
“Having reaped the fruits of their labour, I do not think it open to the defendants to now say that the council was never necessary to begin with,” he said.
The farmers were ordered to pay the outstanding fees, and their claim to be reimbursed was dismissed.