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Kelowna orchardists lose court battle and have to pay $31,000 apple levy

Image Credit: Contributed

Two Okanagan apple growers have been ordered to pay a $31,000 bill after they lost a court battle where they argued that a two-cent levy per pound of apples they were mandated to pay a fruit growers council went against their Charter rights.

According to a Jan. 10 B.C. Provincial Court decision, the New Tree Fruit Varieties Development Council took Sun-Oka Fruit Farms owners Devin and Janine Jell, and Gartrell Heritage Farms to the small claims court over a  $31,621 unpaid bill.

The debt comprised an unpaid levy on the sale of ambrosia apples.

The farmers were supposed to have paid two cents for every pound of ambrosia apples they sold to the New Tree Fruit Varieties Development Council.

The decision said the council was formed in 2000 shortly after the ambrosia apple was developed.

"This fruit showed promise as a viable new variety but there was concern that it would not survive in the marketplace. In the past, new varieties have failed to achieve commercial success because of a lack of interest from major participants in the industry, such as packing houses," the decision read.

Because of these concerns, a group of ambrosia apple growers formed the council as a way to collectively market their fruit.

The council introduced a levy of two cents per pound of apples sold by growers and then used the money for research and marketing of ambrosia apples.

When the orchardists didn't pay the levy in 2016 and 2017 the fruit growers' council headed to small claims court to get their cash.

However, the farmers launched a counterclaim asking for $37,000 back from the years they did pay the levy.

The orchardists argued being forced to pay the two-cent levy was a violation of their constitutional right to the freedom of association as protected by the Canadian Charter of Rights and Freedoms.

The decision went into lengthy and complex arguments about individuals' rights under the Charter.

"Freedom to not associate has been generally accepted as an element of (the Charter)," Provincial Court Judge Andrew Tam said in the decision. "However, the right protected by (the Charter) does not amount to a right to isolation. Living in a society necessarily requires individuals to participate, willingly or not, in some aspects of communal existence."

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The judge points out all the orchard owners have to do is pay the two-cent levy, they do not have to attend any meetings and there is nothing political or ideological about the council.

"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," the decision read.

The judge goes on to say the modern world requires individuals to participate in social units.

"(The New Tree Fruit Varieties Development) Council strikes this court as exactly the type of association that 'is generated by the workings of society in pursuit of the common interest' as deemed constitutionally permissible," Judge Tam said.

The decision noted the council stopped collecting the levy in 2021 and the orchardists argue that to be compelled into an association it must be "necessary and inevitable" to be "constitutionally permissible."

The farmers argued as the levy no longer exists it wasn't necessary.

The judge didn't buy it.

"(The) growers are able to continue to sell ambrosia apples precisely because of the marketing and development activities undertaken by the Council during the time it collected the levy," judge Tam said. "Having reaped the fruits of their labour, I do not think it open to the (farmers) to now say that the Council was never necessary to begin with."

Ultimately, the judge dismisses the orchardists' argument and orders them to pay up their $31,000 debt.

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