Grower plans to take tobacco appeal to court

Tuesday, February 15, 2011

by BETTER FARMING STAFF

A Middlesex County tobacco grower who claims the right to grow his allotted quota even though the system that administered it is dismantled, says he’s prepared to take his claim to Ontario’s courts.

“They cannot take our licenses back without following legal procedure,” says Hugh Gubbels who farms tobacco, corn, soybeans, wheat and cattle with his brother Joe near Delaware. Gubbels says his lawyer told him the next step is the Ontario Court of Appeal.

Last week, the Ontario Agriculture, Food and Rural Affairs Appeal Tribunal denied Gubbels Farms Ltd.’s request to have its quota reinstated. The Gubbels asserted that they were entitled to grow their quota of 418,000 pounds or about 160 acres of tobacco, because they rejected a federal buyout in 2009.

Hugh Gubbels says federal Agriculture Minister Gerry Ritz gave producers a choice when he announced the buyout in 2008: they could receive public funds as long as they promised not to grow tobacco again or if “you wish to continue growing tobacco you shall not receive any public funds.”

The Gubbels were among 18 producers who rejected the buyout. “We made a decision,” says Hugh Gubbels. “This is our intention, to grow tobacco.”

There was nothing in the federal announcement to suggest eliminating producers’ permanent licenses to grow tobacco, Gubbels contends. “They’re trying to fool everybody in that, we eliminate the system therefore the licenses the producers own are also eliminated. That’s not true.”

For the past two years the family has grown tobacco under Ontario’s new licensing system, in effect since 2009. The system requires growers to obtain contracts from processors before issuing the annual licenses. In 2010 the Gubbels grew 90 acres of tobacco under this system, which is administered by the Ontario Flue-Cured Tobacco Growers Marketing Board.

Hugh Gubbels says the board, which administered the old system, no longer has jurisdiction over his quota and he should be able to grow his full quota amount.

Gubbels warns farmers in other supply-managed commodities to pay attention to his situation.

“Many feel they’ll be entitled to some kind of compensation for their quota but as you can see what’s happened to me . . . they took away my licence without compensation and they permit me to grow tobacco under more restrictions,” he says. “ That will happen to the dairy, chicken, other commodity boards.”

The Gubbels first took their request for reinstatement of their quota to the tobacco board last year. They also requested a refund of the license fees they paid in 2009 and 2010.
They took their appeal to the Tribunal after the board rejected their requests in April.

The Tribunal determined that the tobacco board had the authority to remove their quota. The Feb. 4 decision also noted that the Tribunal did not have the power to reinstate the quota.

The decision explained that the Tribunal can only order a marketing board to take actions the Ontario Farm Products Marketing Commission has authorized the board to take. In the tobacco board’s case, its power to issue or re-instate quota was removed by regulation “effective June 1, 2009,” the tribunal decision states.

The decision also notes that the only limitation on the amount of tobacco that the Gubbels can produce is “their own ability to secure a contract with a licensed buyer.”

Fred Neukamm, the board’s chair, could not be reached for comment. BF