The Agricultural Debt Mediation Act (SC 1997, c. 21) ("FDMA") is an act of the Canadian Parliament that allows debt advisory services for farmers to go bankrupt by Agriculture and Agri -Food Canada, as well as certain protection provisions available to help facilitate mediation with creditors while allowing the farmers to continue their operations.
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Although the Agricultural Debt Review Act has allowed farmers protection in financial distress, it is seen as too broad a scope, where even hobby farmers can receive protection from creditors. The structure of the Act to exercise authority through the network of designated councils is also seen as too decentralized. In April 1997, the FDMA received the Royal Assent, and it entered into force in April 1998.
Maps Farm Debt Mediation Act
Templates
Coverage
In contrast to FDRA, a farmer is defined as any individual or entity "engaged in agriculture for commercial purposes and meeting specified criteria," and only bankrupt breeders may apply for financial review and mediation with all creditor farmers (either with or without process delays). As in FDRA, "agriculture" includes the production or maintenance of animals or something on the farm, and it is stated that:
The residence process under the FDMA operates "in spite of legislation", which has been interpreted that it also delayed the request for bankruptcy under the Bankruptcy and Insolvency Act .
Administration
Instead of the Farmers Debt Review Board, administrators are appointed or involved by Agriculture and Agri-Food Canada to enforce the Act, and they may enter into agreements to engage mediators and experts. When an administrator receives an application from a bankrupt farmer, they must notify all unsecured and unsecured creditor farmers and (where the Minister guarantees all debts) The Minister, issues a 30 day delay when requested, and (after an initial review of farmers financial affairs) makes determining whether the farmer is really qualified to make such an application.
In connection with the application:
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- The appropriate administrator or expert will undertake a "detailed overview of the farmers' financial affairs", which should include inventory and financial statements of agricultural operations, and may recommend that certain parties participate in mediation, as well as "preparation of a recovery plan for the purpose of achieving financial arrangements with creditors and the Minister. "
- when the review results have been completed in the report, the administrator must designate the mediator and notify the appointment farmer and creditor
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- in the case of mediation arising under s. 5 (1) (a) (which includes process delays), mediation and permanent ends when the administrator determines that one farmer or the majority of creditors refuses to participate in mediation or refuses to continue to participate in good faith. , mediation will not result in reaching an agreement between the farmer and the majority of the creditor, the farmer has breached any guidance issued regarding the asset guardianship, or where the farmer has compromised the asset or hinders the guardian in its performance. task.
- in the case of mediation arising under s. 5 (1) (b) (which concerns only financial and mediation reviews), mediation ends when the administrator determines whether the farmer or the majority of creditors refuse to participate in mediation or refuses to continue participating in good faith, or mediation will not result in agreement between farmers and majority of creditors
- process delays can be extended for the next three 30 day periods, and must be extended until the date of the appellate decision regarding the decision of the administrator not to extend the stay (when the Stay is scheduled to expire at any time)
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- when the residence has been issued, the administrator must appoint a trustee of the farmer's assets (which may be farmers), and the administrator may issue a directive to the guardian
- The Minister may appoint one or more appellate councils to adjudicate an administrative appeals regarding the feasibility of the breeder to make the application, or related to the extension or termination of the trial delay
- a farmer should not create new applications under the Act for two years after the previous
Enforcement
Before upholding any restoration of the farmer's property, or initiating any proceedings "for debt recovery, any security embodiment or the taking of a farmer's property," the secured creditor must provide written notice of intention to do so, along with advising the farmer of his right to file a delay processes, and copies must be given to farmers and administrators at least 15 business days before doing so. The holder of the warranty is not considered a guaranteed creditor or is obligated to provide FDMA notices, except that the guarantor is a farmer and has provided collateral guarantee to support the guarantee.
Enforcement involves a complex interaction between FDMA and other relevant laws. In Manitoba, the process is marked as follows:
- Initial notice of intent to realize security should be provided under the Bankruptcy and Insolvency Act , FDMA and Private Property Security Act There is a debate about whether this notice should given simultaneously or sequentially.
- After the court proceedings under the FDMA no longer take effect, the farmer's property rights can not be confiscated unless a separate mediation process has been completed and submitted by the Manitoba Court of the Queen's Bench under the Family Farm Protection Act. . The FFPA process can not start until the FDMA delay process is stopped.
- Where agricultural machinery and agricultural equipment have been purchased from dealers in the province, the Agricultural Machinery and Equipment Act states that it can not be taken over by the shopkeepers without the approval of the Manitoba Farming Industry Council. After repossession, the owner of the company must notify the farmer of his actions, and must hold the asset for 10 business days, in order for the buyer to settle the payment amount by default, along with accrued interest and other related costs.
- A farmer can not file a petition into bankruptcy or have a temporary assignee appointed with respect to his assets, but may choose to make the assignment in bankruptcy.
Impact
The mandatory requirement of the Act has been strictly interpreted by the court. For example, it has been held that a farmer can not release a creditor's obligation that is guaranteed to give notice of intent to enforce security, even when it has been included in a mediation agreement. However, it still can not affect the appointment that has had an effect on the interim recipients for the purpose of preserving bankrupt property for the benefit of creditors, as this is not a process for debt recovery.
Since the law covers only agricultural operations that are operated "on a commercial basis", the court has listed a factor to consider whether this is the case:
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- the debtor has dedicated most of his land to agricultural activities;
- farming activities are entirely the result of the debtor's efforts;
- The debtor has claimed agricultural losses;
- The debtor has been involved in agricultural activities both before and since obtaining debt; and
- The debtor intends to generate the final profits from agricultural activities.
Further reading
- Gerecke, David G. (July 7, 2016). "Things You May Not Know About Agricultural Debt Mediation Act ". Toronto: Miller Thomson.
- "Evaluation of Agricultural Debt Mediation Services" (PDF) . Agriculture and Agri-Food Canada. 2016. ISBN 978-0-660-04941-0.
Note
References
External links
- Linked rules (as amended)
- Agricultural Debt Mediation Act , S.C. 1997, c. 21
- Agricultural Debt Mediation Regulation , SOR/98-168
- Administration Act
- "Agriculture Debt Mediation Service". agr.gc.ca . Agriculture and Agri-Food Canada.
Source of the article : Wikipedia
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