Court File No. 8 - _2016______
ONTARIO SUPERIOR COURT OF JUSTICE
(Proceedings commenced at Orangeville)
B E T W E E N:
THE ROSSEAU FARMERS’ MARKET CO-OPERATIVE INC. Respondent
APPLICATION UNDER: COURTS OF JUSTICE ACT, R .S. O. 1990 Chap. C. 43 RULES OF CIVIL PROCEDURE, R.R.O 1990, O. Reg. 194
AFFIDAVIT OF WENDEL MESSER
I, Wendel Messer, of the Town of Gravenhurst in the District Municipality of Muskoka, MAKE OATH AND SAY AS FOLLOWS:
1. I am the Applicant in the instant Application, and therefore have knowledge of the facts herein deposed.
2. The Rosseau Farmers Market Co-Operative Inc., (the “Market”), is a co-operative corporation incorporated under the Co-Operative Corporations Act on October 24, 2002 with Ontario Corproation Number 1416250. A printout of the results from a search of the Financial Services Commission of Ontario is located at Tab 1 of Exhibit A to this affidavit, (the “Exhibit Book”).
3. I have been a vendor at multiple farmers markets since 2002. I applied to and became a member of the Rosseau Farmers Market (the “Market”) in the spring of 2002.
4. From July 2002 through 2013, I was a full-time vendor and member of the Market. I operated a booth at the market and sold primarily novels which I had authored and published.
5. I was a very active member of the Market from 2005 to 2012. I served on the Board of Directors of the Market, (the “Board”), for eight (8) years. I was the Board President for five (5) years from 2008 through 2012.
6. My contributions to the Board and to the Market were significant. I served as Board President during a period of rapid growth and change, and ensured that the Market adapted and succeeded through this period of upheaval and expansion. I distinctly recall being told many times by Lynnis Royea, the market founder, that I was “right on top of it” as a Director.
7. Some examples of my participation and contribution are as follows:
a. As Secretary, I successfully argued for board elections to be moved to and held on a market day, rather than off location and during the off season, so that all vendors would be able to conveniently vote, thus enhancing the democratic nature of the Market;
b. As President, I pushed for and successfully implemented significant prizes at general board meetings, resulting in a significant increase in attendance by members;
c. For most of my tenure as President, I managed the market website, including designing the Market logo;
d. I drafted the application forms for full-time and guest vendors, and the election forms;
e. I ensured that the proper forms and instructions for scrutineers were available for each election;
f. Over eight (8) years, I never missed a Board meeting, even through the four (4) years that there was no compensation for mileage;
g. Over the course of two attempts, I succeeded in bringing a large produce farmer, Willowtree Farms, into the Market as a vendor. Prior to their inclusion, the only large produce vendor had been a re-seller;
h. I conceived of and titled a fundraising effort in the form of a Market cookbook: Rosseau Market Cooks. After publication, I brought the cookbook to Muskoka Magazine, which resulted in a positive review. The book sold out, and the fundraiser was a success.
i. I consistently used all avenues available to me to promote the market, including arranging for the inclusion of the Market in Savour Muskoka and in Muskoka Tourism, and advocating on behalf of the Market with Muskoka Steamships to encourage them to send their ships to Rosseau, which resulted in a ship being regularly docked at the market location for several seasons, and on occasion I distributed market posters throughout Muskoka, and even Muskoka Lakes Navigation posters and cruise tickets; and
j. I was able to handle delicate situations sensitively, including securing an amicable resignation from a manager who had repeatedly failed to account for fees collected, and the solicitous treatment of a guest who had been injured, resulting in a withdrawal of threats of litigation;
8. As a member and later President of the Board, I always went above and beyond the call of duty to stand up for the rights of Market members. Three examples come to mind:
a. On one occasion the Board erroneously concluded that chicken could not be sold at the Market, and told the chicken vendor, Judy Burton, that she must stop selling chicken. I conducted independent research and was able to convince the Board that the sale of chicken was perfectly legal and fully in line with the purpose and mission statement of the Market. The sale of chicken resumed, to the benefit of the vendor and the market customers.
b. In the spring of 2010 an elderly vendor of jewellery, Chris Pither, was late in submitting his annual application, and the Board wanted to exclude him from the market. I forcefully argued that a simple oversight did not deserve such a heavy penalty, that the Market had no right to exclude him as it amounted to a termination of membership, and that the Market had, several years earlier, decided on a penalty for lateness--$20.00 added to the annual fee. The Board accepted this.
c. On a third occasion that occurred in 2011, a member, Karla Holt, had committed minor infractions of Board rules. When her annual application was reviewed, the Board purported to reject it due to these infractions. On reflection and review of the By-laws, I contacted the Board members and expressed the opinion that a member’s membership in the Market could not be terminated simply by refusing their annual application. Several other Board members at the time agreed with my reasoning and conclusion that her membership had been improperly terminated. The decision was retracted and Karla Holt was able to return as a vendor in the spring.
9. I played a significant role in preparing, editing, and finalizing the By-laws of the Market. One example of my contribution to the content of the By-laws was the creation of the election process for Board Members, which I drafted and which was approved by the required two thirds of the Market’s members. The changes I implemented made the Market's elections more transparent, enhancing the democratic nature of the Market. A copy of the By-laws are at Tab “2” of the Exhibit Book.
Membership Renewal Procedure
10. As President and member of the Board, I was involved each year in processing applications from both new and existing members of the Market.
11. My understanding of the process, based on my extensive experience, the acceptance by other Board members, and frequent consultation of the Co-operative Corporations Act, (the “Act”), and the By-laws, is as follows:
a. New members had to apply for membership. Submitting a Rosseau Market Full-time Vendor Application constituted an application for membership. The Board could accept or reject them according to the principles and guidelines set out in Article 2 of the By-Laws, and was not obligated to give reasons for its decision. If accepted, the new applicants automatically became members of the Market.
b. Once a vendor became a member, they remained a member indefinitely, conditional only on conformation to the rules and By-laws of the Market and payment of the annual membership fee to the Market.
12. Returning members were required to submit the same form, the Rosseau Market Full-time Vendor Application, on an annual basis. The purpose of this practice was to (1) confirm that they intended to return, (2) pay annual stall fees, and (3) to submit any new products that they wished to sell for consideration and approval by the Board. The Board would render a decision on whether the returning vendor could sell the proposed new products. The process of reviewing new merchandise was called “jurying”, and the products themselves were “juried”. However, the returning members were not re-applying for membership.
13. In the entirety of my time on the Board, both as a member and as President, not once was a returning vendor’s membership terminated through this annual application process for the approval of new merchandise.
14. There was one incident that occurred in 2011 and. as discussed in paragraph 8(c) herein, in which certain Board members wanted to terminate Karla Holt’s membership as a full-time vendor in the wake of minor infractions of the rules of the Market. The Board voted to reject Karla Holt’s annual application, and by so doing purported to terminate her membership.
15. After reviewing the By-laws and the Co-Operative Corporations Act, I took the position that a vendor could only be terminated for cause, and that a very specific set of steps must be taken prior to any such termination, as set out in both the By-laws and the Co-Operative Corporations Act. I was able to convince the rest of the Board members that my position was correct, and the vendor’s termination was annulled.
16. Specifically, Lynnis Royea, Charlene Neill, and Mary-Ruth Newell all reached the opinion that Karla Holt’s membership had been terminated improperly, and the purported termination was annulled. To the best of my knowledge, Karla Holt remains a member of the Market to this day.
17. In light of my lengthy experience on the Board of the Market, it was and is my position that a vendor’s membership cannot be terminated through the annual re-application process, which process only provides a means for the review and approval of new merchandise. Applications from new vendors may be rejected, in which case the applicant does not become a member of the Market. But once a vendor is a member, their membership cannot be terminated through the annual re-application process, and no member’s membership has ever been terminated in that manner.
2013 Market Season
18. I wrote a novel entitled Farmers Market, which was published in 2013. Farmers Market is a murder mystery, and also a satirical and humourous take on farmers markets and the culture both surrounding and within them.
19. The purpose of Farmers Market is to contribute to making all the farmers markets of Muskoka the best that they can be, both for vendors and visitors which is to say, transparent, honest, and democratic. I also wanted to support and encourage farmers markets to provide space for local farmers and gardeners, so that fresh, local, organic produce would be available to customers. The book describes a political struggle between those trying to realise the original ideals of farmers markets, and those who failed to live up to those aspirations. A copy of Farmers Market is attached hereto as Exhibit “B”.
20. After publication of Farmers Market, my vendorship at the Gravenhurst Farmers Market was terminated. I withdrew from the Parry Sound Farmers Market after I was suspended for giving another vendor a copy of a media report of my expulsion from Gravenhurst. The end of my membership at these two markets is not the subject of this Application.
21. Prior to the 2013 farmers market season, I submitted the annual Rosseau application required of all returning members, and included Farmers Market as a new item to be juried by the Board. The Board reviewed the application and approved Farmers Market for sale at the Market for the 2013 season.
22. During the course of the 2013 season, certain members of the Board appeared to become upset with me. I believe that this was due to the content of Farmers Market, to which some people, including Lynnis Royea and Heather Cullimore, seemed to take personal offense, even though they were not referenced, either directly or indirectly, in the book. None of the other Directors of the Market appeared to have any personal interest or concern with the book.
23. The Market founder, Lynnis Royea, and the President of the Board, Heather Cullimore, visited my booth during the 2013 season and criticized the content of my book. Heather Cullimore said that she knew literature and had relatives that were writers. She said, “You are alienating the very people who might buy your book.” They also asked me to remove a small sign (approximately six inches by eight inches) displayed on my sale table that read “Banned in Gravenhurst” — which sign was a reference to the fact that Farmers Market had been banned for sale at the Gravenhurst Farmers Market and my membership there had been terminated. While I did not believe that I should be required to remove the sign, as I told the Board members, I did so out of courtesy to Heather Cullimore, my successor as President of the Board.
24. The Board also demanded that I remove media reports of my expulsion from the Gravenhurst Market and media reports on Farmers Market from my booth. Lynnis Royea said that, “A lot of people are upset with this book,” and further said, “Do not talk about the markets.” When I asked how I was supposed to sell the book without talking about the markets or displaying any information, she simply replied, “I don’t know.” Although I again did not believe this demand was either reasonable or enforceable, I did comply out of courtesy, although I continued to include copies of media reports with copies of the book that were sold.
25. I continued to sell my book, which had been juried and approved by the Board, and to discuss it with customers. At no time did I say anything detrimental about the Rosseau Farmers Market, its vendors, or its directors. Nowhere in Farmers Market is the Rosseau Farmers Market mentioned, although there is a two page description of a “Rossiter” market which, in the book, is a sunny positive place where the vendors and customers are having a good time.
26. On Friday, August 23, 2013 all six (6) members of the Board; Heather Cullimore, Christine Moore, Cathy Nash, Mary Ruth Newell, Charlene Neill, and Lynnis Royea; attended at my booth in the Market and presented me with a letter. This letter is erroneously dated August 23, 2014, but was in fact presented to me on August 23, 2013. The letter is signed by all six (6) Board members. A copy of the letter is at Tab 2 of the Exhibit Book, and read as follows:
--------Wendel Messer, The Rosseau Farmers Market Board here within advises you that we feel that your recent activities do not reflect the spirit of our co-operative mission or membership. Your personal agenda and negative dialogue denigrates framers markets and has the potential to be harmful to the Rosseau Farmers Market and its membership. You must cease this behaviour or the board will be forced to consider further action, including possible suspension or expulsion from the market.--------
27. To this date I do not know what “recent activities”, “personal agenda”, or “negative dialogue” were referred to in that letter. It has always been my goal to promote and better the farmers markets of Muskoka, and I strongly dispute that any of my activities or statements have ever denigrated farmers markets.
28. It is my belief that the Board intended to terminate my membership during the 2013 season. It is my further belief that they had no grounds to do so. In any event, no further action was taken, and my membership was not terminated, for cause or otherwise, during the 2013 market season.
Termination of Membership
29. Shortly after the end of the 2013 season, I became aware that the Board intended to attempt to terminate my membership in the Market.
30. Terry Gill, a friend and not a member of the Market, received an e-mail on September 17, 2013 from Cameron Topp, a vendor at the Market and prior lawyer. In that e-mail, Mr. Topp said that it was his understanding that Mr. Gill wanted to know how the Board could safely remove a vendor. He asked for a copy of the By-laws to review, apparently unaware the By-laws had been posted on the Market website for many years in the interest of transparence. A copy of this e-mail is at Tab 3 of the Exhibit Book.
31. In fact, Mr. Gill had received this e-mail in error, as he was not part of any plan to remove a vendor. Confused, and thinking that the e-mail might have been meant for me, he forwarded it to me.
32. It is my belief, based on the statements of Directors, the letter given to me in August of 2013, and that e-mail, that the Board wanted to remove me as a Vendor, and in September of 2013 was searching for a means to do so.
33. In the fall of 2013, well in advance of the January 15 deadline, I submitted my annual application and annual fee for the 2014 market season to the Board. I had no new items that needed to be juried. Farmers Market had been juried and approved prior to the 2013 season.
34. On January 23, 2014, I received an e-mail from the Market. This e-mail was a form rejection letter indicating that the Board had reviewed and juried my application for the 2014 season but that they would not be offering me a space for that year. A copy of that e-mail is at Tab 4 of the Exhibit Book.
35. It was by this mechanism that the Market purported to terminate my membership. In the termination, there was no mention of cause. I was never given a verbal or written warning that any rule of the Market had been broken, nor was I ever told either verbally or in writing what was needed to rectify any such violation. In fact, it is my opinion that I never violated any rule of the Market.
36. To the best of my knowledge, the Board did not hold a meeting called for the purpose of expelling me from the membership of the Market, at which meeting a majority of the Board voted to expell me from the membership of the Market. If the Board did hold such a meeting, it was not held at least thirty (30) days prior to the annual general meeting of the Market, nor was I ever informed of such a meeting.
37. I was never given written notice setting forth the grounds upon which the Board sought to expel me as a member of the Market.
38. Specifically, I was not given notice at least ten (10) days prior to the date of a meeting of the Board called to consider a resolution expelling me as a member of the Market.
39. I was never given an opportunity to appear, either personally or by a lawyer, to make submissions to the Board regarding the potential termination of my membership in the Market.
40. I did not receive notice of the purported termination of my membership by a registered letter but only by e-mail.
41. In any event, the e-mail purporting to terminate my membership did not claim that there was any cause for doing so. It appears to be the standard rejection e-mail sent to any new applicants for membership who are not successful and do not become members.
42. In my eight (8) total years as a Board member, five (5) as President, no member’s membership was ever terminated in this manner. It is my opinion, as past member and President of the Board, that this method of termination is not valid.
43. Three of the Directors at the time of my purported termination were Lynnis Royea, Charlene Neill, and Mary-Ruth Newell. All three were Directors when the Board purported to terminate Karla Holt’s membership in the same manner, but retracted that attempt upon review of the Market By-laws. It is my understanding that all three agreed with my understanding of the application of the By-laws, which prevent termination of a members existing membership through the mechanism of the yearly application. New projects can be rejected, but returning vendors cannot.
Motion to the Board
44. Shortly after the purported termination of my membership, I retained legal counsel, and my lawyers sent a letter to the Market on March 31, 2014 advising them of my position that the method used to terminate my membership was not valid under the By-laws of the market or under the Co-Operative Corporations Act. A copy of that letter is at Tab 5 of the Exhibit Book.
45. The Market indicated, through its lawyer, that it held the position that the termination of my membership was valid.
46. My lawyer responded to that position on April 22, 2014, again stating my position that the termination was not valid. A copy of that Letter is at Tab 6 of the Exhibit Book.
47. In the early spring of 2014 the Board sent an e-mail to all members stating that they had terminated my membership under Article 2.04 of the By-laws and claiming that the Board was acting in the best interests of the membership. A copy of this e-mail is at Tab 7 of the Exhibit Book.
48. On April 27, 2014, I attended the Annual General Meeting of the Market. It was my intention, as set out in my lawyer’s letters, to bring a motion to have my purported termination annulled.
49. In preparation for the Annual General Meeting, I spoke to various members of the Market, including Fran Pirrie. It is my understanding that Fran Pirrie composed an e-mail to the Board expressing her opinion that members could not be easily terminated, and the concern that if the Board persisted with their purported termination of my membership a lawsuit might ensue.
50. The Directors asked for a police presence at the Annual General Meeting. There was no reason for this, as I have been consistently polite and civil in all my communications with the Directors and everyone else. Involving the police was both unnecessary and deeply insulting.
51. Before the meeting, I stood outside and handed copies of my motion to the members and Directors as they entered. I specifically remember handing a copy of my motion to Heather Cullimore, Board President.
52. I was permitted to enter the meeting, which is open to the public. However, I was not allowed to address the membership of the Market, put my motion to the membership, or even have a current member put my motion to the membership. The motion to annul the termination of my membership, along with other ancillary relief, was not put before the membership or voted upon.
53. Despite my best efforts, I was never given the opportunity to challenge the purported termination of my membership within the structure of the Market itself.
Impact of Termination
54. The impact of the purported termination of my membership has been significant. I earn between one-quarter and one-third of my annual income by selling my novels and the books of other authors at farmers markets in and around Muskoka. The Market is the largest of the markets that I participate in, and the most profitable.
55. As such, a permanent loss of membership has a significant financial impact on me as an individual.
56. More importantly, I have put a lot of energy, time, and care into the Market, its growth, and its By-laws. I was especially keen on fostering transparency and a democratic co-operative spirit. A permanent loss of membership also comes with an emotional cost due to the loss of a connection to those contributions and the loss of continuity and development of the principles I sought to strengthen in the Market.
57. Most importantly, the Board's action, if condoned by the court, effectively institutes a scheme whereby membership in the Market is renewed annually, and every members continued membership and participation in the Market is subject to the whims of those who happen to be Directors in any given year. Such a scheme completely abrogates the membership rights and protections I understand to be guaranteed by the Co-operative Corporations Act and by the By-Laws of the Market itself. Putting every vendors membership in annual peril would also put a very heavy burden on those vendors, many of whom rely on their membership and participation in farmers markets for a significant portion of their annual income.
58 I make this affidavit in support of my Application and for no improper purpose.
SWORN BEFORE ME at the Town of Durham, in the County of Grey on _January 21, 2016. Wendel Messer________________
Commissioner for Taking Affidavits_____________________ ......................................................................................................