On the recommendation of the undersigned, the Lieutenant Governor of Ontario, by and with the advice and concurrence of the Executive Council of Ontario, orders that:

Whereas the Government of Ontario recognizes the important economic and social contribution that agriculture makes in Ontario;

And whereas the Government of Ontario wants to further foster the growth of agriculture in Ontario;

And whereas the ginseng sector is experiencing temporary marketing disruptions due to covid-19;

And whereas the Government of Ontario recognizes that the ginseng sector is an important part of agriculture in Ontario;

And whereas the Government of Ontario would like to provide support to the ginseng sector in its time of need;

And whereas section 4 of the Ministry of Agriculture, Food and Rural Affairs Act provides the Minister with the authority in relation to the administration of laws relating to agriculture and food and all of their branches as well as such other powers and requires the Minister to perform such other functions and duties as are assigned to the Minister by the LGIC;

And whereas section 7(1) of the Ministry of Agriculture, Food and Rural Affairs Act allows the LGIC to establish, upon the recommendation of the Minister, a program for the encouragement of any branch of agriculture, food or rural affairs;

And whereas section 8 of the Ministry of Agriculture, Food and Rural Affairs Act allows the LGIC to agree to provide, upon the recommendation of the Minister, a guarantee for the payment of any loan or loans made to farmers for the encouragement of any branch of agriculture or food upon terms the LGIC considers proper;

And whereas the Minister has recommended to the LGIC that a program be established for the ginseng sector whereby a Guarantee is provided for the payment of loans made to Producers because such a program will encourage agriculture as well as food in Ontario;

Now therefore and pursuant to sections 4, 7 and 8 of the Ministry of Agriculture, Food and Rural Affairs Act, the

Ginseng storage loan guarantee Pilot program

is established on a pilot basis for the encouragement of agriculture and food within Ontario under this OIC as set out below.

Part I – Interpretation

Interpretation

  1. For the purposes of interpreting this OIC:
    1. Words in the singular include the plural and vice versa;
    2. The headings do not form a part of this OIC – they are for reference purposes only and will not affect the interpretation of this OIC;
    3. Any reference to dollars or currency will be in Canadian dollars or currency, unless directly specified otherwise;
    4. Any reference to a statute means a statute of the Province of Ontario, unless otherwise indicated;
    5. Any reference to a statute is to that statute and to the regulations made pursuant to that statute as they may be amended from time to time and to any statute or regulations that may be passed that have the effect of supplanting or superseding that statute or regulation unless a provision in this OIC provides otherwise;
    6. Any reference to an Order-in-Council or Minister’s Order is to that Order-in-Council or Minister’s Order as it may be amended from time to time and to any Order-in-Council or Minister’s Order that may be issued that have the effect of supplanting or superseding that Order-in-Council or Minister’s Order unless a provision in this OIC provides otherwise;
    7. Any accounting terms used in this OIC will be interpreted in accordance with the Generally Accepted Accounting Principles and all calculations will be made and any financial data to be submitted will be prepared in accordance with the Generally Accepted Accounting Principles; and
    8. The words “include”, “includes” and “including” denote that the subsequent list is not exhaustive.

Definitions And Acronyms

  1. For the purposes of this OIC, including its recitals, the terms below shall have the following meanings:
    “Administrative Agreement”
    means an agreement between the Minister and the Administrator setting out how the Administrator is to administer the Program;
    “Administrator”
    means the entity that is responsible for administering the Program, as set out in the Administrative Agreement;
    “AgriStability”
    means the program continued pursuant to Part VIII of Minister’s Order 0004/2018;
    “A-Loan”
    means a loan by the Administrator to a Producer in accordance with the requirements of this OIC and any additional requirements set out in the Guidelines;
    “A-Loan Agreement”
    means the agreement that sets out the terms and conditions upon which the Administrator will provide an A-Loan to a Producer;
    “A-Loan Credit Review”
    means a review of the Applicant’s creditworthiness and includes the following:
    1. A check of the Administrator’s own records in respect of the Applicant,
    2. Searches under the Personal Property Security Act and the Bank Act (Canada),
    3. Loan history under the Advance Payment for Crops Act (Canada),
    4. A check with one or more reputable credit rating agencies,
    5. A check with at least one credit reference provided by Farm Credit Canada, or successor entity, or the Applicant’s bank, credit union, caisse populaire or trust company licensed to carry on business in Ontario or another Province of Canada as a lender of money,
    6. Any information provided by the Ministry regarding any money owing to the Crown, and
    7. Any additional requirements set out under the Guidelines;
    “Applicant”
    means a Person that:
    1. Is in the business of producing ginseng, or
    2. Has produced ginseng and holds said ginseng in storage,
      and has applied to the Administrator for an A-Loan;
    “Business Day”
    means any working day, Monday to Friday inclusive, but excluding statutory and other holidays on which the Government of Ontario has elected to be closed for business;
    “Crown”
    means Her Majesty the Queen in Right of Ontario;
    “Guarantee”
    means the promise by the Crown that the Crown will pay the debt arising from a Producer defaulting on an A-Loan in accordance with the terms and conditions of this OIC, any conditions set out in the Guidelines and the Guarantee Agreement;
    “Guarantee Agreement”
    means the agreement set out in a form substantially similar to the agreement attached as Annex “A” to this OIC, signed by the Minister, or any other officer of the Ministry identified in section 14(4) of this OIC, and the Administrator in relation to an A-Loan provided under the Program;
    “Guarantee Payment”
    means the payment the Crown will provide to the Administrator in accordance with the terms and conditions of this OIC, any additional conditions set out in the Guidelines and the Guarantee Agreement in the event a Producer defaults on an A-Loan;
    “Guaranteed Amount”
    means the amount of money secured by the Guarantee being provided on behalf of the Administrator under the Program;
    “Guidelines”
    means any written documents setting out the criteria governing the operation of the Program and posted on the Ministry’s Website;
    “Holdback Fund”
    means the fund where the Producer Holdback is deposited;
    “Interest”
    means the interest payable in respect of an L-Loan or an A-Loan, as set out in the L-Loan Agreement or the A-Loan Agreement, as the case may be, but does not include any fees, fines, commissions or other similar charges or expenses or any cost of collection or enforcement of a security interest, any repayment of credit advanced or any insurance charge, official fee or any amount required to be paid on account of applicable taxes;
    “Lender”
    includes Farm Credit Canada, or successor entity, as well as any bank to which the Bank Act (Canada) applies or a trust company, credit union or caisses populaires licensed to carry on business as such in Ontario and has been approved by the Minister to provide loans under the Program;
    “L-Loan”
    means a loan by the Lender, in the form of a revolving term credit facility, to the Administrator in accordance with the requirements of this OIC and any additional conditions set out in the Guidelines;
    “L-Loan Agreement”
    means the agreement that sets out the terms and conditions upon which the Lender will provide an L-Loan to the Administrator;
    “Material Adverse Change”
    means:
    1. A change in the financial or other condition of the Administrator, or in the state of circumstances of any property subject to a security interest in relation to the L-Loan, that in the opinion of a reasonable and prudent lender would be considered likely to cause a significant diminution in the ability of the Administrator to perform any of its obligations with respect to the L-Loan, or
    2. A change in the financial or other condition of the Producer, or in the state of circumstances of any property subject to a security interest in relation to the A-Loan, that in the opinion of a reasonable and prudent lender would be considered likely to cause a significant diminution in the earnings power or value of the Producer’s business or in the ability of the Producer to perform any of its obligations with respect to the A-Loan,
      depending on the context;
    “Minister”
    means the Minister of Agriculture, Food and Rural Affairs or such other Minister who may be designated from time to time as the responsible Minister in relation to the Ministry of Agriculture, Food and Rural Affairs Act or the Program, as the case may be, in accordance with the Executive Council Act or any other Act of the Legislature that allows another Minister to be designated as the responsible Minister, unless the context indicates otherwise;
    “Minister’s Direction”
    means a direction the Minister issues pursuant to sections 14(8) or 14(9) of this OIC;
    “Ministry”
    means the ministry of the Minister;
    “Person”
    means a legally-recognized entity and may include an individual or a corporation;
    “Producer”
    means a Person that
    1. Is in the business of producing ginseng in Ontario, or
    2. Has produced ginseng in Ontario and holds said produced ginseng in storage in Ontario,
      and has an A-Loan issued under the Program;
    “Producer Holdback”
    means the amount of money the Administrator is required to hold back from each A-Loan it provides to a Producer under the Program;
    “Program”
    means the Ginseng Storage Loan Guarantee Pilot Program;
    “Program Year”
    means the period of April 1 of one calendar year until March 31 of the following calendar year;
    “Requirements Of Law”
    includes all applicable requirements of law, as may be set out in statutes, regulations, by-laws, codes, rules, ordinances, official plans, approvals, permits, licenses, authorizations, decrees, injunctions, orders and declarations or any other similar requirement of law that could be imposed on a Person from authorities having jurisdiction over that Person;
    “Stored Security”
    means the ginseng an Applicant has stored and in which the Administrator will take a security interest should the Administrator issue an A-Loan to the Applicant; and
    “Total Guaranteed Amount”
    means one hundred thirty million dollars ($130,000,000.00).
  1. For the purposes of this OIC, including its recitals, the following acronyms means:
    “Freedom of Information and Protection of Privacy Act”
    means the Freedom of Information and Protection of Privacy Act;
    “LGIC”
    means the Lieutenant Governor in Council; and
    “OIC”
    means this Order-in-Council.

Purpose

  1. The purpose of this Program is to facilitate access for Producers to low-interest A-Loans, through the provision of a Guarantee to the Administrator.

Part II – Commencement, Term, Termination And Review of the program

Commencement Of The Program

  1. This OIC comes into effect on April 1, 2022.

Term Of The Program

  1. The Program will operate on a pilot project basis for a term of three (3) years, with a two (2) year winddown so that all A-Loans issued in the third (3rd) year of the Program can be wound down.

Termination Of The Program

  1. Despite section 6 of this OIC, the Minister may – without liability, cost or penalty to the Crown – terminate this Program at any time if the Minister determines that the Program should not continue. Where the Minister terminates the Program pursuant to this section 7 of the OIC, the following rules shall apply:
    1. The Minister shall immediately post a notice on the Ministry’s Website indicating the Program has been terminated;
    2. The Minister shall immediately notify the Administrator and direct the Administrator to post a notice on the Administrator’s Website that the Program has been terminated; and
    3. Any payments owing under the Program shall be paid.
  2. The termination of the Program pursuant to section 7 of this OIC shall not, in any way, affect the Crown’s Guarantee to the Administrator for any A-Loans the Administrator issued before the Program was terminated.
  3. The termination of the Program pursuant to section 7 of this OIC shall not, in any way, affect the obligation of the Lender, Administrator or Producer to repay any money that the Lender, Administrator or Producer was not eligible or entitled to receive under the Program.
  4. The termination of the Program pursuant to section 7 of this OIC shall not, in any way, affect the obligation of the Administrator or the Producer to repay any outstanding amounts owing in relation to an L-Loan or an A-Loan.
  5. The termination of the Program pursuant to section 7 of this OIC shall not, in any way, affect the obligation of a Producer to repay any outstanding amounts arising out of the Minister’s payment on the Guarantee.

Review Of The Program

  1. The Minister may review the Program at any time to confirm the Program is meeting its objectives and is performing on a cost-benefit basis.

Part III – Funding For The Program

    1. Guarantee Payments under this OIC will be payable out of the Consolidated Revenue Fund pursuant to section 12 of the Financial Administration Act.
    2. Any other payments in relation to the Program, including any administrative costs that the Minister determines are reasonable or prudent for the administration of the Program, will be payable out of the monies appropriated for such purposes by the Legislature for the purposes of the Program. Subject to the foregoing, the Minister may provide to any Person any funding that is contemplated or permitted under the Program.
    3. Funding allocated to the Program shall only be used for the Program.

Part IV – Administration Of The Program

The Minister

    1. The Minister shall be responsible for all aspects of the administration and delivery of the Program. Without limiting the generality of the foregoing, the Minister’s responsibilities include:
      1. Establishing standards and procedures for the delivery of all aspects of the Program;
      2. Monitoring the performance of all aspects of the Program, including the performance of the Administrator;
      3. Designating an Administrator for the Program and entering into an Administrative Agreement;
      4. Approving Lenders under the Program;
      5. Setting out additional eligibility requirements for both L-Loans and A-Loans under sections 25(2)(e) and 26(2)(k) of this OIC in the Guidelines;
      6. Setting out additional administrative powers the Administrator has under section 18(1) of this OIC in the Administrative Agreement;
      7. Setting out any business practices the Administrator must follow in order to enter into an A-Loan with a Producer under the Program in Administrative Agreement;
      8. Setting out the fees that the Administrator may charge to Applicants to administer the Program in the Administrative Agreement, including:
        1. Application fees, and
        2. Late payment fees;
      9. Authorizing the Administrator to assign an A-Loan to another Person other than the Lender;
      10. Setting out any additional eligibility requirements for Applicants under section 27(2)(l) of this OIC in the Guidelines;
      11. Setting out any additional grounds in which an A-Loan will be in default that must be included in an A-Loan Agreement under section 26(2)(h) of this OIC in the Guidelines;
      12. Acting as a trustee for the Holdback Fund, if required;
      13. Setting out enrollment targets for A-Loans under the Program in the Administrative Agreement;
      14. Approving the Administrator’s administrative criteria or guidelines on how the Administrator processes A-Loans and collects any debt owing under A-Loans;
      15. Limiting the collection, use and disclosure of personal information, as defined in the Freedom of Information and Protection of Privacy Act, under the Program to what is necessary to administer the Program;
      16. Entering into an agreement to collect money owing to the Crown under the Program on behalf of the Crown, including the fees that are charged to the Crown to collect on the debt owing to the Crown; and
      17. Carrying out all other administrative functions required for the successful operation of any aspects of the Program.
    2. The Minister is authorized on behalf of the Crown to enter into a Guarantee Agreement in a form that is substantially similar to the agreement set out in Annex “A” of this OIC.
    3. The Minister is authorized on behalf of the Crown to sign the L-Loan Agreement with the Lender and the Administrator if the Minister deems it appropriate to do so.
    4. Despite sections 14(2) and 14(3) of this OIC, persons appointed to, including on an acting basis, the following positions are also authorized on behalf of the Crown to enter into a Guarantee Agreement in a form that is substantially similar to the document set out in Annex “A” of this OIC as well as an L-Loan Agreement with the Lender and the Administrator:
      1. The Ministry’s Deputy Minister;
      2. The Ministry’s Assistant Deputy Minister of Policy, or successor position;
      3. The Ministry’s Chief Administrative Officer, or successor position; or
      4. The Director of the Ministry’s Farm Finance Branch, or successor branch.
    5. Where the Minister exercises any powers under section 14(1) of this OIC that requires the Minister to set out something in Guidelines, the Minister shall create Guidelines for the Program, provided those Guidelines do not conflict with anything contained in this OIC.  For the purposes of determining whether the Guidelines conflict with this OIC, a conflict will be found if the Guidelines provide for something that is prohibited under this OIC or if the Guidelines provide that something is not needed which is strictly required under this OIC.  A conflict will not, however, exist if the Guidelines set out additional requirements that must be following under the Program.
    6. If the Minister creates Guidelines pursuant to section 14(5) of this OIC, the Minister shall make those Guidelines available or cause those Guidelines to be available on or through the Ministry’s Website.
    7. If the Minister has issued Guidelines and wants to amend the Guidelines, the following rules shall apply:
      1. The Minister will make the amended Guidelines available or cause those Guidelines to be available on or through the Ministry’s Website; and
      2. Any changes to the Guidelines shall not have any retroactive effect.
    8. The Minister may issue a Minister’s Direction to the Administrator in relation to any aspect of how the Administrator administers the Program if the Minister is of the opinion that such a Minister’s Direction is reasonable or necessary to do so under the circumstances.  Without limiting the generality of the foregoing, the Minister may issue a Minister’s Direction to the Administrator to cease providing A-Loans to Producers even though the Administrator may have funds available to issue an A-Loan under its L-Loan where the Minister is of the opinion it is reasonable or necessary to do so under the circumstances.
    9. The Minister may issue a Minister’s Direction to the Lender requiring the Lender to stop providing funds to the Administrator under an L-Loan even though there may be funds available under the L-Loan where the Minister is of the opinion it is reasonable or necessary to do so under the circumstances.
    10. The Minister has all necessary and plenary authority to oversee and operate the Program.
    11. When exercising any powers granted under or complying with any requirements set out under this OIC, the Minister shall do so in accordance with all Requirements Of Law.
    1. The Minister shall deposit any money the Minister receives arising out of a debt owing to the Crown under the Program into the Consolidated Revenue Fund.
    2. If the Minister enters into an agreement with a Person to collect money owing to the Crown on behalf of the Crown pursuant to section 14(1)(r) of this OIC, that Agreement may, provided the Minister of Finance has authorized that Person to retain the fees that Person has incurred to collect the debt owing to the Crown pursuant to section 2(4) of the Financial Administration Act, authorize the Person to retain the fees setout therein from the debt that it has collected on the Crown’s behalf.

The Administrator

    1. The Minister may designate one entity as an Administrator of the Program and enter into an Administrative Agreement with that entity, provided that entity meets the requirements set out under section 16(2) of this OIC.
    2. For an entity to be designated as the Administrator of the Program, that entity must:
      1. Be incorporated as a not-for-profit corporation that is able to operate within Ontario in relation to the borrowing and lending of money;
      2. Be in compliance with all Requirements Of Law in relation to its current operations at the time of being designated as well as during said designation period;
      3. Agree to enter into an Administrative Agreement that meets the requirements set out under section 16(3) of this OIC; and
      4. Agree to be bound by the requirements of this OIC, Minister’s Directions and the Guidelines.
    3. The Minister shall enter into an Administrative Agreement with the entity before allowing the Administrator to administer this Program under section 18(1) of this OIC. The Administrative Agreement shall include the following:
      1. Governance requirements for the Administrator;
      2. The roles and responsibilities of the Administrator in administering the Program;
      3. The costs to administer the Program;
      4. The administrative fees the Administrator may charge Applicants under the Program to administer the Program;
      5. How the Administrator is to manage the Holdback Fund;
      6. The process in which debts arising under the Program are to be collected;
      7. A requirement that the Administrator is to indemnify the Crown, including its officers, employees and servants;
      8. Record-keeping requirements;
      9. Additional reporting requirements, if any, to what is required under this OIC;
      10. Auditing requirements;
      11. Performance measures;
      12. If the Minister is going to use the Administrator to collect any debt owing to the Crown under the Program, the process in which the Administrator will collect upon that debt;
      13. Terms governing the termination and/or winddown of the Program;
      14. Any requirements that this OIC requires to be included in the Administrative Agreement; and
      15. Anything else the Minister believes is prudent for the successful administration of the Program.
  2. If the Minister issues a Minister’s Direction to the Administrator pursuant to section 14(8) of this OIC, the Administrator shall follow such Minister’s Direction forthwith.
    1. The Administrator is responsible for administering the Program.  This includes:
      1. Arranging credit arrangements with one or more Lenders, through a L-Loan that complies with the requirements for a L-Loan under section 25(2) of this OIC;
      2. Administering the L-Loan, either alone or partnership with its Lenders;
      3. Repaying both principal and interest owing on the L-Loan to its Lenders upon receipt of payment of its A-Loan with Producers;
      4. Valuing the Stored Security in accordance with this OIC;
      5. Subject to the Administrative Agreement, determining the administrative fees that will be charged to Applicants to apply for an A-Loan under the Program;
      6. Signing the Guarantee Agreement attached as Annex “A” to this OIC with the Crown;
      7. Approving of A-Loans in accordance with the requirements under this OIC;
      8. Entering into A-Loans with Producers in accordance with the requirements under this OIC;
      9. Managing the Holdback Fund;
      10. Administering the A-Loans it has with Producers;
      11. Taking all reasonable measures to collect any debts owing under an A-Loan; and
      12. Meeting any and all requirements set out under this OIC, A Minister’s Direction issued under section 14(8) of this OIC, the Guidelines and the Administrative Agreement.
    2. Subject to the Administrative Agreement, the Administrator may retain the services of any qualified person that the Administrator believes is necessary for the successful administration of the Program.
    3. The Administrator is not an agent of the Crown within the meaning of the Crown Agency Act and shall not hold itself as such.
    4. The Administrator’s directors, officers, employees and servants are not employees of the Crown and shall not hold themselves out as such.
    5. The Administrator may, subject to the Minister’s approval, establish administrative criteria or guidelines on how it processes A-Loans and collects any debt owing under A-Loans.
  4. The Minister shall require the Administrator to make publicly available all fees the Administrator is charging under the Program.
    1. The Administrator shall provide the Minister with an annual report about the Program. The contents of the annual report and the date in which the annual report is to be submitted to the Minister will be set out under the Administrative Agreement.
    2. The Administrator shall provide the Minister with any other reports that are set out in the Administrative Agreement in accordance with what is set out under the Administrative Agreement.
  6. The Administrator has all necessary and plenary authority to administrate the Program.
  7. When administering the Program, which includes exercising any powers granted under or complying with any requirements set out under this OIC, a Minister’s Direction, the Guidelines or the Administrative Agreement, the Administrator shall do so in accordance with all Requirements Of Law.

The Lender

    1. The Minister may approve one or more entities as a Lender for the Program, provided the entity meets the requirements set out under section 23(2) of this OIC.
    2. To be approved as a Lender, that entity must:
      1. Be a Person;
      2. Be legally capable of providing loans within the Province of Ontario;
      3. Be in compliance with all Requirements Of Law in relation to its current operations in relation to the provision of loans at the time of being approved as well as during said approval period; and
      4. Agree to be bound by this OIC and the Guidelines.
  2. If the Minister issues a Minister’s Direction to the Lender pursuant to section 14(9) of this OIC, the Lender shall follow such Minister’s Direction forthwith.

Part V – Eligibility Requirements For Loans Under The Program

Eligibility Requirements For Loans Between The Lender And The Administrator

  1. An L-Loan is eligible under this Program if it meets the requirements set out in this OIC and the Guidelines.
  2. At a minimum, an L-Loan shall meet the following requirements:
    1. The L-Loan shall be repayable by the Administrator at any time without notice, penalty or bonus.
    2. The L-Loan is subject to audit at any time by the Auditor General of Ontario, the Minister or the authorized representatives of the Auditor General of Ontario or the Minister;
    3. The L-Loan Agreement specifically prohibits the use of the L-Loan by the Administrator for any other purpose then providing A-Loans to Producers;
    4. The L-Loan Agreement provides that the L-Loan shall be in default upon the occurrence of any one or more of the following:
      1. Any representation made or information or warranty provided by the Administrator in relation to the L-Loan is, or was at the time of its making, false or misleading,
      2. The Administrator fails to comply with any covenant contained in the L-Loan Agreement within ten (10) Business Days of the Lender notifying the Administrator of the non-compliance,
      3. The Administrator fails to provide information required under this OIC, the Guidelines or an L-Loan Agreement within ten (10) Business Days of the request being made by the Minister or the Lender,
      4. The Administrator fails to cooperate in respect of an audit performed by the Auditor General of Ontario, the Minister or the Lender or their respective representatives in relation to the L-Loan,
      5. The Administrator uses any part of the funds provided under the L-Loan for purposes other than to provide funds to Producers through an A-Loan,
      6. Any execution or other legal process of any court becomes enforceable against the Administrator,
      7. The Administrator makes an assignment for the benefit of the Administrator’s creditors,
      8. The insolvency of the Administrator or the appointment of a receiver, manager, trustee or liquidator in respect of any property of the Administrator,
      9. The Administrator fails to pay or otherwise perform as and when due, whether by maturity or by acceleration, any obligations, liabilities or indebtedness owed to the Lender in relation to the L-Loan;
      10. The institution of a proceeding in bankruptcy against the Administrator, whether voluntary or involuntary, or the institution of proceedings by the Administrator to obtain relief against the Lender or other creditors in general, and
      11. A Material Adverse Change occurs with the Administrator; and
    5. Any other grounds set out in the Guidelines.

Eligibility Requirements For Loans Between The Administrator And The Producer

    1. An A-Loan is eligible to be covered by the Guarantee under this Program if it meets the requirements set out in this OIC and the Guidelines.
    2. At a minimum, an A-Loan shall meet the following requirements:
      1. The A-Loan is entered into with an Applicant that meets the requirements set out under section 27(2) of this OIC;
      2. Prior to entering the A-Loan:
        1. The Administrator has administered an A-Loan Credit Review on the Applicant, and
        2. The Applicant has passed the A-Loan Credit Review;
      3. The A-Loan is secured by:
        1. The Stored Security,
        2. Payments the Producer is eligible to receive under AgriStability,
        3. The proceeds from the sale of ginseng,
        4. The Producer Holdback, and
        5. Any other security set out under the Guidelines;
      4. The A-Loan must be repayable by the Producer at any time without notice, penalty or bonus;
      5. The A-Loan must only be repayable at the end of its term and not require the Producer to make any interim payments;
      6. The A-Loan is subject to audit at any time by the Auditor General of Ontario, the Minister or the authorized representatives of the Auditor General of Ontario or the Minister;
      7. The Administrator is not allowed to assign an A-Loan to any other Person other than the Lender without the Minister’s prior written consent and such consent may take the form of a letter signed by the Minister that identified:
        1. Who the Administrator is,
        2. Who the Person the Administrator wants to assign the A-Loan to, and
        3. Words to the effect that such assignment is authorized;
      8. The A-Loan Agreement provides that the A-Loan shall be in default upon the occurrence of any one or more of the following:
        1. Any representation made or information or warranty provided by the Producer in relation to the A-Loan is, or was at the time of its making, false or misleading,
        2. The Producer fails to comply with any covenant contained in the A-Loan Agreement within ten (10) Business Days of the Administrator notifying the Producer of the non-compliance,
        3. The Producer fails to provide information required under this OIC, the Guidelines or an A-Loan Agreement within ten (10) Business Days of the request being made by the Minister or the Administrator,
        4. The Producer fails to cooperate in respect of an audit performed by the Auditor General of Ontario, the Minister or the Administrator or their respective representatives in relation to the A-Loan,
        5. The Producer sells or conveys assets of the farming operation that formed a basis for the A-Loan application,
        6. The Producer has given a preference to any creditor other than the Administrator without the Administrator’s prior written approval,
        7. Any execution or other legal process of any court becomes enforceable against the Producer,
        8. The Producer makes an assignment for the benefit of the Producer’s creditors,
        9. The insolvency of the Producer or the appointment of a receiver, manager, trustee or liquidator in respect of any property of the Producer,
        10. The Producer fails to pay or otherwise perform as and when due, whether by maturity or by acceleration, any obligations, liabilities or indebtedness owed to the administrator in relation to the A-Loan;
        11. The institution of a proceeding in bankruptcy against the Producer, whether voluntary or involuntary, or the institution of proceedings by the Producer to obtain relief against the Administrator or other creditors in general,
        12. A Material Adverse Change occurs, and
        13. Any other grounds set out in the Guidelines;
      9. The A-Loan Agreement provides, subject to section 26(2)(d) of this OIC, that the A-Loan becomes due on the earlier of:
        1. When the ginseng being stored is sold,
        2. Within three (3) years after the date the A-Loan Agreement is signed, or
        3. Upon demand;
      10. The A-Loan, or combination of A-Loans, is in an amount no greater than one million dollars ($1,000,000.00) per Producer; and
      11. Any other grounds set out in the Guidelines.
    3. The rate of Interest the Administrator charges to a Producer on an A-Loan cannot be greater than the prime rate of Interest the Lender charges, as set out on the Lender’s Website.
    4. Despite section 26(2)(b) of this OIC, if the Administrator has completed a credit check on the Applicant under another loan program the Administrator is responsible for administering within the last twelve (12) months, the Administrator is not required to administer an A-Loan Credit Review in relation to that Applicant before issuing an A-Loan to the Producer under this Program if the Administrator is satisfied that the previous credit check undertaken remains an accurate reflection of the Applicant’s credit worthiness.
    5. The Administrator will value Stored Security at thirty-nine dollars seven cents ($39.07) per kilogram.
    6. The Administrator shall, at a minimum, secure the A-Loan in a manner that ensures the Administrator has a first charge in the Stored Security as well as any AgriStability payments the Producer is eligible to receive should the A-Loan go into default.
    7. Despite anything else in this OIC or the Guidelines, the Administrator will not issue an A-Loan in an amount greater than the total value of security the Administrator will take in relation to that A-Loan.
    8. The aggregate of all A-Loans outstanding in any one Program Year shall not exceed the Total Guaranteed Amount at any one time.

Part VI – Eligibility Requirements And Loss Of Eligibility For Producers Under The Program

Eligibility Requirements For Producers Under The Program

    1. An Applicant is eligible to enter an A-Loan with the Administrator if that Applicant meets the requirements set out under this OIC and any additional requirements set out in the Guidelines.
    2. At a minimum, an Applicant must:
      1. Be a Person;
      2. Apply to the Administrator for an A-Loan and pays the applicable fee;
      3. Not be in default with any previous A-Loans issued under the Program or any other loans under other programs the Administrator is responsible for administering;
      4. Produce ginseng in Ontario or has produced ginseng in Ontario and that ginseng is capable of being Stored Security;
      5. Provide the requisite information for the Administrator’s A-Loan Credit Review;
      6. Be enrolled in AgriStability and agree to assign to the Administrator any payments the Applicant is eligible to receive under AgriStability to the Administrator;
      7. Agree to satisfy any other security-related requirements necessary to ensure that the A-Loan is properly secured;
      8. Agree to pay the Producer Holdback and pays the Producer Holdback;
      9. Agree to sign the A-Loan Agreement;
      10. Agree to be bound by the terms and conditions set out in this OIC, the Guidelines and the A-Loan Agreement
      11. Agree to provide information requested by the Ministry for policy-review purposes within the timelines set out in the request; and
      12. Agree to abide by any other grounds the Minister sets out in the Guidelines.

Loss Of Eligibility For Producers Under The Program

  1. An Applicant or Producer that willfully provides false or misleading information under the Program will have its eligibility to participate in the Program terminated by the Minister and will repay any A-Loan it has forthwith unless the Minister directs otherwise.
  2. An Applicant or Producer that provides false or misleading information or is found to have acted in a negligent manner in allowing false or misleading information to be submitted on the Applicant’s or Producer’s behalf under the Program may have its eligibility to participate in the Program terminated by the Minister and will repay any A-Loan it has forthwith, unless the Minister directs otherwise, where its eligibility to participate in the Program has been terminated.
    1. An Applicant or Producer that is abusive toward any staff responsible for delivering the Program will receive one written warning about that conduct from the Minister. If the Applicant or Producer continues with its abusive behaviour, the Applicant Producer may have its eligibility to participate in the Program revoked for the remainder of the Program Year by the Minister.
    2. In the event an Applicant or Producer has been found to be ineligible to participate in the Program pursuant to section 30(1) of this OIC and that Applicant or Producer is abusive toward any staff responsible for delivering the Program after being allowed to participate in the Program again, the Applicant or Producer will have its eligibility to participate in the Program revoked while this OIC is in effect by the Minister.
  4. An Applicant or Producer may be found to be ineligible to participate in the Program where that Applicant or Producer:
    1. Owes a debt to the Crown and is not in a repayment plan with the Crown, including an agent of the Crown; or
    2. Is not in compliance with any repayment plan the Applicant or Producer has with the Crown, including an agent of the Crown.

    Part VII – holdback Fund Under The Program

    1. The Administrator shall establish a separate Holdback Fund for the purposes of depositing all Producer Holdbacks.
    1. The Administrator shall impose a Producer Holdback for each A-Loan it enters in the amount of two percent (2%) of the value of the A-Loan entered.
    2. The Administrator shall deposit all Producer Holdbacks into a Holdback Fund, but separately account for each Producer Holdback on an individual basis.
    3. The Administrator shall not use any money in the Holdback Fund for its general operating purposes.
    4. The Administrator may, subject to the Administrative Agreement, invest the money in the Holdback Fund.
    5. The Administrator shall track any Interest that is earned on monies deposited in the Holdback Fund.
  7. The Administrator shall apply the Producer’s Holdback to the A-Loan the Producer has with the Administrator when the A-Loan becomes payable.
  8. If the Program ends pursuant to section 6 of this OIC or the Minister terminates the Program pursuant to section 7 of this OIC, the Administrator shall maintain the Holdback Fund until all A-Loans have been repaid.  In the event there is any residual funds remaining in the Holdback Fund after all A-Loans have been repaid, the Administrator may use those residual funds for the purposes of delivering any other program the Administrator delivers on behalf of the Crown.
     

    Part VIII – Process In Which The Administrator or Producer Is In Default Of An L-Loan Or AN A-Loan And Consequences Of Default Under The Program

    Administrator Default Under An L-Loan

    1. The Administrator shall be in default of an L-Loan if one or more of the events set out under section 25(2)(d) of this OIC occurs.
    2. The Lender or the Minister shall immediately notify the other of any default to which they become aware.

    Producer Default Under An A-Loan

    1. A Producer shall be in default of an A-Loan if one or more of the events set out under section 26(2)(h) of this OIC occurs.
    2. The Administrator shall immediately notify the Minister of the default.
    1. In the event a default relates to a Producer’s failure to make a payment owing under the A-Loan, the Administrator:
      1. Shall, if reasonable to do so, use any payment the Producer is eligible to receive under AgriStability to pay any outstanding debt owing under the A-Loan;
      2. Shall, if a debt still exists under the A-Loan, liquidate the Stored Security the Administrator has a security interest over and apply the proceeds from the sale of the Stored Security to pay any outstanding debt owing under the A-Loan;
      3. Shall, if a debt still exists under the A-Loan, liquidate any other security the Administrator has a security interest over and apply the proceeds from the sale of the security to pay any outstanding debt owing under the A-Loan; and
      4. May, if a debt still exists under the A-Loan, make a claim on the Guarantee to pay any outstanding debt owing under the A-Loan.
    2. In the event the Producer has more than one A-Loan under the Program and fails to make a payment owing under any A-Loan the Producer has under the Program, the Producer shall be deemed to be in default on all A-Loans the Producer has under the Program.  The Administrator will follow the same process set out in section 38(1) of this OIC for those other A-Loans.
  12.  
    1. In the event of default relates to anything other than the Producer’s failure to make a payment owing under the A-Loan and the time to correct that default has lapsed, the Administrator shall demand the repayment of the A-Loan.
    2. In the event the Producer is unable to repay all or a portion of the A-Loan, the Administrator:
      1. Shall, if reasonable to do so, use any payment the Producer is eligible to receive under AgriStability to pay any outstanding debt owing under the A-Loan;
      2. Shall, if a debt still exists under the A-Loan, liquidate the Stored Security the Administrator has a security interest over and apply the proceeds from the sale of the Stored Security to pay any outstanding debt owing under the A-Loan;
      3. Shall, if a debt still exists under the A-Loan, liquidate any other security the Administrator has a security interest over and apply the proceeds from the sale of the security to pay any outstanding debt owing under the A-Loan; and
      4. May, if a debt still exists under the A-Loan, make a claim on the Guarantee to pay any outstanding debt owing under the A-Loan.
    3. In the event the Producer has more than one A-Loan under the Program and commits an act of default other than failing to make a payment owing under the A-Loan and the time to correct that default has lapsed, the Producer shall be deemed to be in default on all A-Loans the Producer has under the Program.  The Administrator will follow the same process set out in section 38(1) of this OIC for those other A-Loans.

    Part IX – The Guarantee Under The Program

    Form And Notice Of Guarantee

  13. Every Guarantee in relation to an A-Loan under the Program shall be in substantially the same form as set out in Annex “A” of this OIC.
     

    Maximum Amount Of Guarantee

    1. The maximum amount payable under the Guarantee shall not exceed the aggregate of all A-Loans eligible to be covered by the Guarantee for those A-Loans and the applicable Interest on those A-Loans.
    2. For greater clarity, the maximum amount payable by the Minister under the Guarantee is ninety-eight percent (98%) of the principal and Interest for each individual A-Loan up to the twenty-five percent (25%) of the Total Guaranteed Amount for all A-Loans issued under the Program in any given Program Year.

    Eligibility Of A-Loans To Be Covered By Guarantee

    1. Where the Administrator approves an A-Loan, that A-Loan shall be eligible to be covered by the Guarantee.
    2. Despite section 42(1) of this OIC, an A-Loan approved by the Administrator shall not be eligible to be covered by the Guarantee where that A-Loan does not comply with the terms and conditions of this OIC, the Guidelines, the Guarantee Agreement or any Minister’s Directions.

    Review Of A-Loan Prior To Paying Guarantee

  16. The Minister shall review all A-Loans to ensure that they were issued in compliance with the terms and conditions of this OIC, the Guidelines, the Guarantee Agreement and any Minister’s Directions before issuing any Guarantee Payment.
     

    No Payment Of Guarantee

  17. The Minister shall not make any Guarantee Payment under the following circumstances:
    1. The Administrator has issued an A-Loan in contravention of the requirements set out under this OIC, the Guidelines, the Guarantee Agreement or a Minister’s Direction;
    2. The Administrator has failed to follow the requirements set out in this OIC, the Guidelines, the Guarantee Agreement or a Minister’s Directions in relation to administering or enforcing an A-Loan; or
    3. Any amount of funds the Lender advances to the Administrator under an L-Loan after a Minister’s Direction has been issued to the Lender pursuant to section 14(9) of this OIC and the Administrator has, in turn, issued A-Loans with those funds.

    Notice To Administrator

    1. The Minister shall send a notice to the Administrator within one hundred twenty (120) days of the date in which the Administrator made a request to call on the Guarantee.
    2. If the Minister is going to make a Guarantee Payment to the Administrator, the Minister shall include the following details:
      1. The amount of the Guarantee Payment that will be made; and
      2. When the Guarantee Payment will be made.
    3. If the Minister is not going to make a Guarantee Payment, the Minister shall set out the reason or reasons why the Minister is denying the Administrator’s claim on the Guarantee.

    Crown’s Rights On Payment Of Guarantee

    1. If the Minister makes a Guarantee Payment and the Administrator recovers any money in respect of the A-Loan afterwards in which the Guarantee Payment relates, the Administrator shall pay to the Minister an amount equal to the difference of:
      1. The amount paid by the Minister to the Administrator; and
      2. The amount that would have been payable by the Minister to the Administrator if the Producer’s indebtedness to the Administrator under the A-Loan had been reduced by the amount of monies recovered by the Administrator, minus the reasonable expenses the Administrator incurred in relation to the recovery.
    2. Despite section 46(1) of this OIC, the Administrator shall not deduct any reasonable expenses that the Administrator incurred in relation to the recovery of money unless the Minister of Finance has authorized the Administrator to retain such expenses pursuant to section 2(4) of the Financial Administration Act.
    3. In the event that the Minister of Finance has not authorized the Administrator to retain the expenses it incurred to recover the money pursuant to section 2(4) of the Financial Administration Act, the Administrator shall remit all money that it has recovered to the Minister and submit an invOICe to the Minister for the reasonable expenses the Administrator incurred to recover the money.
  20. If the Minister makes a Guarantee Payment, the Crown shall be subrogated in and all the rights of recovery of the Administrator in respect of the A-Loan, including any security held by the Administrator and is entitled to exercise all of the rights, powers and privileges that the Administrator has or may exercise in respect of the A-Loan, including any security held by the Administrator, including the right to commence or continue any court action to execute any release, transfer, sale or assignment, or in any way to collect and realize on any security the Administrator has.
     

    Part X – Collection, Use And Disclosure Of Information Under The program

  21. The collection of personal information, as defined under the Freedom of Information and Protection of Privacy Act, is necessary for the proper administration of this Program.  The Minister will only collect or will only allow others to collect the minimum personal information necessary to meet the Program’s objectives. Producers will consent to the collection of any personal information, as defined under the Freedom of Information and Protection of Privacy Act, that is necessary for the administration of the Program.
  22. Producers will consent to the use and disclosure of any personal information that is collected pursuant to this OIC, for the purposes of:
    1. Verifying any information provided;
    2. Conducting audits;
    3. Enforcing the terms and conditions of the Program;
    4. Collecting any debt a Person may owe to the Crown arising:
      1. Prior to the Program, or
      2. From the Program; and
    5. Any other purpose set out in the Guidelines.
  23. Applications for an A-Loan will contain a notice of collection of personal information within the meaning of the Freedom of Information and Protection of Privacy Act and require the Producer to indicate the Producer consents to the collection of that information as well as for the use and disclosure of that information for the purposes set out under section 49 of this OIC.
    1. A Producer participating as a sole proprietor, a partner within a partnership or a member of an unincorporated association authorizes the collection and use of that Participant’s SIN, where that Producer does not have a CRA BN and that Producer is eligible to enter into a A-Loan.
    2. Where it is necessary to collect a Producer’s SIN under the Program, that Producer’s SIN will only be used for the purposes set out under section 49 of this OIC.
    3. Where it is necessary to collect a Producer’s SIN, that Producer consents to the use and disclosure of that Producer’s SIN to any government department/ministry, agency or third party for the purposes set out under section 49 of this OIC.
  25. A Producer who enters into an A-Loan under the Program will provide any information that is requested, including personal information as defined in the Freedom of Information and Protection of Privacy Act, within ten (10) Business Days of the request unless the request for information contains a different deadline, in which case the information will be provided in accordance with that request for information.
    1. A Producer who enters into an A-Loan under the Program will authorize the collection of information, including personal information, as defined under the Freedom of Information and Protection of Privacy Act, from any government department/ministry, agency or third party for the purposes of verifying any information the Producer provided under the Program as well as for the enforcement, if applicable, of the terms and conditions of the Program.
    2. A Producer who enters into an A-Loan under the Program will consent to the use of and disclosure of any information, including personal information, as defined under the Freedom of Information and Protection of Privacy Act, collected under the Program to any government department/ministry, agency or third party for the purposes of verifying any information the Person provided as well as for the enforcement, if applicable, of the terms and conditions of the Program.
    3. When collecting, using and disclosing information under this Part X of the OIC, personal information, as defined under the Freedom of Information and Protection of Privacy Act, will not be collected, used or disclosed if the purpose for collecting, using or disclosing such information can be obtained by using non-personal information.  

    Part XI – Record-Keeping Under the program

    Lenders

  27. A Lender that is approved by the Minister and issues an L-Loan to the Administrator under the Program shall retain all records relating to that L-Loan for a period of at least seven (7) years from the date in which the L-Loan was issued.
     

    The Administrator

  28. The Administrator shall retain all records relating to any L-Loans and A-Loans under the Program for a period of at least seven (7) years from the date in which the L-Loan and/or the A-Loan was issued.
     

    Producers

  29. A Producer that receives an A-Loan under the Program shall retain all records relating to that A-Loan for a period of at least seven (7) years from the date in which the A-Loan was issued.
     

    Part XII – Audits Under The program

  30. A Lender, the Administrator and all Producers will consent to any audits that may be conducted in relation to the Program by the Minister or a designate of the Minister.  Any inspection undertaken related to an audit may be conducted upon giving the Lender, Administrator or Producer a minimum of twenty-four (24) hours’ notice during normal business hours on any Business Day.
  31. A Lender, the Administrator and all Producers will provide reasonable assistance during any inspection related to an audit. This includes:
    1. Allowing access to any person, place or thing required for auditing purposes within ten (10) Business Days of the request being made for access to that person, place or thing unless the request or access to that person, place or thing contains a different deadline, in which case access to the person, place or thing will be provided in accordance with that request for access to the person, place or thing;
    2. Allowing for the inspection of any records that relate to the L-Loan, the A-Loan or any Guarantee Payment;
    3. The taking of pictures or other recordings; and
    4. Allowing for the copying of any records or documents that relate to the L-Loan, the A-Loan or Guarantee Payment made under the Program as well as the removal of any copied records or documents from the premises of the person that entered into the L-Loan or the A-Loan or who received a Guarantee Payment under the Program, as the case may be.
  32. A Lender and all Producers shall provide all necessary information required to verify and administer the Program within ten (10) Business Days of the request being made by the Minister or the Administrator, including their respective designates, unless a different time has been provided in the request.
  33. The Administrator shall provide all necessary information required to verify and administer the Program within ten (10) Business Days of the request being made by the Minister or a designate of the Minister, unless a different time has been provided in the request.
  34. The Application for an A-Loan will contain a notice about the audit rights set out under this Part XII of the Order and every Producer is deemed to accept the auditing provisions set out in this OIC upon entering an A-Loan.
     

    Part XIII – Collection Of Debt Owing To The Crown Under The Program

    1. Any payments owing to the Crown as a result of the Minister making a payment on the Guarantee shall be considered a debt that is owed to the Crown and may be set-off against any other payment the Crown or Her Majesty the Queen in Right of Canada may owe to the person that owes the Crown a payment in accordance with section 43 of the Financial Administration Act or section 155 of the Financial Administration Act (Canada).
    2. The right of set-off provided under section 62(1) of this OIC is in addition to any other legal remedies the Crown may have in law, equity or otherwise to recover a debt that is owed to the Crown.
  36. The Crown may charge interest on any debt that it is owed under this Program at the applicable interest rate that is being charged by the Crown for debts owing to the Crown.
     

    Part XIV – General

  37. In the event of a conflict between this OIC, a Minister’s Direction, the Guidelines and the Administrative Agreement, that conflict will be resolved in accordance with the following order:
    1. The OIC prevails over a Minister’s Direction, the Guidelines and the Administrative Agreement;
    2. A Minister’s Direction prevails over the Guidelines and the Administrative Agreement; and
    3. The Guidelines prevail over the Administrative Agreement.
  38. By participating in the Program, the Lender, Administrator and Producer agree that any Guarantee Payment made is provided in connection with a social or economic policy and the Program is a social or economic program.

Annex “A” - Guarantee Agreement Under The Ginseng Storage Loan Guarantee Pilot Program

 

Ministry of Agriculture, Food and Rural Affairs

Approved and Ordered: March 10, 2022

Amended by: Order in Council 1040/2022