Ellicott et al. v Agricorp, 2001 ONAFRAAT 30

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Ellicott et al. v Agricorp

Ellicott et al. v Agricorp 2001 ONAFRAAT 30

STATUTE:

Crop Insurance Act

HEARING:

May 10 and May 11, 2001

DATE OF DECISION:

June 11, 2001

2001-30

NEUTRAL CITATION:

2001 ONAFRAAT 30

Ellicott et al. v Agricorp

IN THE MATTER OF Ontario Regulation 140/96 under the Crop Insurance Act (Ontario) 1996, S.O. 1996, C. 17, Schedule C.

AND IN THE MATTER OF: An Appeal to the Agriculture Food and Rural Affairs Appeal Tribunal by Harriet Ellicott, Allan Smith, Lynn Caldwell, Gary Caldwell, Bill Cook, Bill Davis, Glenn Davenport, James Davey, Simon Deboer, Don Dietrich, Kevin Doyle, Lorne Faust, Joseph Hachey, Darcy Healey, William (Bill) Herron, Elmer Herron, Balke Hyde, Harvey Kerr, Bev Kingston, Peter Kotzeff, Brent Kuhl, Lloyd Kuhl, Chris Patchell, Paul Long, Don MacArthur, Rod MacGillivray, Eldon MacKinnon, Larry Mc Leod, Henry K. Meyer, Merv Misch, Bruce Patchell, Bruce and Heather Ribey, Dean Ribey, Albert Sandink, Richard Slumskie, Howard Tedford, Murray Tedford, Doug Trelford of the decisions of AGRICORP to deny them payment of claims concerning their 1999 hay crop under Regulation 380/97 and the 1999 Crop Insurance Plan for Hay and Forage.

Before:

John Taylor, Vice Chair; Murray Cardiff, Member; Ralph Huckle, Member.

Appearances:

Harriett Ellicott, appellant, representative of the Grey/Bruce farmers group.

Alan Smith, appellant, representative of the Grey/Bruce farmers group.

Jim Zavitz, Senior Manager Claims, AGRICORP .

Husseinali Shivji, Crop Insurance Commodity Specialist, AGRICORP.

Fred Thomson Senior Adjuster, AGRICORP.

Jim Konecny, General Adjuster, AGRICORP.

DECISION OF THE BOARD

This appeal was heard in Lamlash Hall, Elmwood, Ontario on Thursday May 10 and Friday May 11 2001. It is an appeal by Harriett Ellicott, Allan Smith, Lynn Caldwell, Gary Caldwell, Bill Cook, Bill Davis, Glenn Davenport, James Davey, Simon Deboer, Don Dietrich, Kevin Doyle, Lorne Faust, Joseph Hachey, Darcy Healey, William (Bill) Herron, Elmer Herron, Balke Hyde, Harvey Kerr, Bev Kingston, Peter Kotzeff, Brent Kuhl, Lloyd Kuhl, Chris Patchell, Paul Long, Don MacArthur, Rod MacGillivray, Eldon MacKinnon, Larry Mc Leod, Henry K. Meyer, Merv Misch, Bruce Patchell, Bruce and Heather Ribey, Dean Ribey, Albert Sandink, Richard Slumskie, Howard Tedford, Murray Tedford, Doug Trelford of the decisions of AGRICORP to deny them payment of claims concerning their 1999 hay crop under Regulation 380/97 and the 1999 Crop Insurance Plan for Hay and Forage.

The Background

The forage/hay plan is based on a computer simulation of yield. SYMFOY is the name given to the simulation model, “Soil Mosture-Based Simulation of Forage Yield”. The plan covers loss due to drought and has been in use since 1977. The model is based on:

Fixed Assumptions

• good farm management
• three cuts of hay per season in southern Ontario and two in northern Ontario.
• a 30 inch minimum soil depth with adequate fertility.
• set species mix at each main station
• predominant soil type by county.

Variable Components

• soil moisture at the beginning of the growing season.
• sunshine.
• temperature.
• rainfall.
• average actual yields of co-operator farmers.
• average of main station 30 year simulated yields.
• cutting dates.

Each grower in an area is designated a main weather station (main station) and a substation. Each grower has the opportunity to keep his/her own rainfall records, this data will be applied to the plan area yield simulation. The first cut yield of the co-operators is measured. The average yield of the first cut of the co-operators is given a 50% weight in the calculation of the simulated yield.

The co-operators current year yields are compared to his/her yields of the past ten years. Calculations are done to determine what percent of the past 10 years yields, the current yield comprise.

Given adequate soil moisture, the forage crop is estimated to begin growth anytime after April 15^th^ when the temperature remains above 3º C for three consecutive days.

If no actual cutting date information is received from the co-operator farmers; the first cutting date is fixed as June 15. The maximum fluctuation for cutting dates is ten days. The range is June 5^th^ to June 25.

Final yields are calculated for a circular area within a three-mile radius of each client. If there are insufficient producers within 3 miles, the circle is widened to 6 miles. An average is calculated using a ratio of 35% of an individual yield with 65% of the yield of other clients within the same circle. In this area based plan, clients who are neighbours may not necessarily have their yields averaged from a common circle.

The insured client is guaranteed 80% of the 30 year simulated average for that area.

The Issue

The issue before the Tribunal is:

1. Did AGRICORP fail to administer and fulfil its obligations under the 1999 Forage Insurance contract?

2. Did AGRICORP input the correct data into the SYMFOY yield simulation model?

The Evidence

Harriett Ellicott and Allan Smith submitted a book of evidence on behalf of the appellants. The book of evidence (Exhibit A) included:

• A map of the area where the insured grow forage, along with the main stations where data for averaging the “30 year yields” and current climactic information was taken.
• Soil Moisture Test Results for Grey/Bruce Co-operator Farmers for 1999.
• Rainfall Summaries, provided by Grey and Bruce County Soil and Crop Improvement Associations.
• February 15, 2000 letter from Greg Brown of AGRICORP.
• March 23, 2000 letter from Judith Kay-Schecter of AGRICORP.
• Report on SYMFOY Forage yields by Selirio and Brown.
• March 03, 2000 letter from Dr. Murray Brown.
• Environment Canada, Atmospheric Environment Service Weather Data, containing charts of rainfall, minimum and maximum temperature for main stations Tara and Port Elgin, where AGRICORP has taken weather data for input into the model for the area where the insured grow forage.
• Comparison Charts of Rain Gauge types and measurement
• Excerpt from the Provincial Auditor, Special Report.
• Excerpt from the AGRICORP 1998 Forage Sub-Committee Report.
• Co-operator Farmer Questionnaires.

Ms. Ellicott said that the coverage for her 1999 forage crop was sold to her by Keith Davenport. At the time of purchase she was given the brochures; Your Guide to Crop Insurance for Forage and Crop Insurance Forage Plan. The brochure, Your Guide to Crop Insurance for Forage states that; “each grower is tied to a weather “main station”. She told the Tribunal that when she asked Mr. Davenport which main station she was to be tied to, he told her it would be the Paisley Station. Ms. Ellicott also informed him that she grew Timothy grass for the feeding of broodmares and that she took only one cut per season from it. She said Mr. Davenport told her that AGRICORP would make an adjustment in her coverage.

Ms. Ellicott also said the appellants did not all receive rainfall data cards or species mix cards. AGRICORP did not give anyone in the group cutting dates for their main station. Ms. Ellicott said she received a rain gauge and rain fall data cards but a gauge was not supplied to everyone in the group.

Ms. Ellicott said, based on information supplied by Environment Canada, she did not believe that there was adequate soil moisture at the beginning of the forage growth season. She quoted the May 28, 1999 report as stated by Len Davies, for Agriculture and Agri-Food Canada regarding forage, “in Bruce Grey and Renfrew counties, the crop is below average and will need more rain to develop properly”. As well she pointed out that the Bruce County Soil and Crop Improvement Associations’ Rainfall Summary, indicates that rainfall was below average in 1999.

Ms. Ellicott also testified that:

• Bryan Smith of Environment Canada informed Ms. Ellicott on January 14, 2000 that the Paisley weather station #6126210 closed in 1992.
• Mr. Smith confirmed on February 28, 2000 that neither the Paisley station when it was open, nor the Port Elgin station, collected sunshine data.
• AGRICORP contracts to notify the client of any changes in the insurance policy.
• Neither she nor any one else from the appellant group was apprised of the closure of the Paisley main station when they first bought into the plan.

Ms. Ellicott said she met with Greg Brown and Mike Vlek of AGRICORP in Walkerton, on January 28, 2000 to discuss a possible settlement to the appeal. She said a substantial issue was the correctness of weather data input into the model for the appellant group who were supposedly tied to the Paisley main station. Ms. Ellicott said she was told that the 1999 temperature data for the simulation came from the Port Elgin weather station. In a letter from Greg Brown AGRICORP, of February 15, 2000, regarding the January meeting, Greg Brown states that; the yield simulation would be rerun with corrected temperature values. Should the results indicate that clients were underpaid AGRICORP would issue a cheque to the client for the difference. If however, there had been an overpayment, AGRICORP would not ask for a refund from the grower. She pointed out that there was no mention of where the weather data for the re-simulation would come from, Wiarton or Port Elgin.

Ms. Ellicott said she obtained the weather station data from Environment Canada for the Port Elgin station and the closest sunshine recording station, which is in Wiarton. Ms. Ellicott compared her own rainfall records with those for the Port Elgin station and found them to be similar. Her comparison of minimum and maximum daily temperatures and sunshine however, indicated a broad discrepancy with 45 and 33 errors respectively. Ms. Ellicott said she believed that the data on her Drought Final Report came from the Paisley station. A subsequent letter from AGRICORP regarding the re-simulation with new data, confirmed that the model was re-run with sunshine data from Wiarton and temperature and rainfall data taken Tara. In Ms. Ellicotts’ case, no further payments for claim were forthcoming. She said in comparing weather data charts for Paisley station,1990 to 1992 and Tara, for the years 1993 to 1998 she found numerous discrepancies in the temperature data as reported by Environment Canada and AGRICORP Drought Final Reports.

Ms. Ellicott testified that she contacted Dr. Murray Brown an expert on the SYMFOY model on behalf of the appellant group. Ms. Ellicott sent some climate data for his information regarding the application of the model for their area. She told the Tribunal that in a letter dated March 3, 2000 he states that: “my estimate of the forage yield for you area would be about 65 to 70 % of your normal yields.”

Ms. Ellicott said that AGRICORP supplies rain gauges and record keeping cards to insured clients and co-operator farmers. There are two types of rain gauges. The ‘wedge’ style and the ‘cone’ or ‘round’ type. Allan Smith testified that, using the two types of gauges supplied by AGRICORP, he mounted one rain gauge of each type, side by side, on a fence post at his farm, in order to compare volumes. Hes stated that, in May of 2000 he recorded 138 mm of rain in the wedge gauge and 128 mm in the round gauge. Ms. Ellicott said that George Rock of Environment Canada made some comparisons in April of 2001 at weather station Tara. She said Mr. Rock used the two types of gauges supplied by AGRICORP, and that the findings indicated that the wedge type gauge measured 13 mm more rainfall than the cone type. In support of the contention that the rain gauges supplied to clients by AGRICORP are inaccurate and need to be standardized, Ms.Ellicott made reference to the May 1999 Brazeau et al decision, where the Tribunal recommends that clients tied to the same main station, should be supplied with the same rain gauges.

The appellant group submitted questionnaires completed by co-operator farmers. Ms. Ellicott said that non of the co-operators were coerced into filling out the questionnaire, nor was it indicated, the type of answer expected. The questionnaire solicited data for the acreages for which the co-operators were recording information for AGRICORP. Each co-operator was asked to explain his normal practices, his forage mix types and ratios, his method of harvesting and whether AGRICORP had directed that data not be kept for any specific field. Ms. Ellicott said, according to the answers for the questionnaires none of the fields for which records were submitted to AGRICORP had ever been measured. She said that, bales were not weighed in all instances, or the large round bales were weighed but not the small square bales. She noted that sometimes the word of the co-operator was taken on faith, regarding amount of the yield. Ms. Ellicott pointed out that in its 1998 Forage Sub-Committee Recommendation Report, AGRICORP recognized the need to measure the acreages of claimants.

Ms. Ellicott said that the use of different rain gauges by clients and co-operators, has, over time, skewed the historical 10 year yields and the yields of same circle plan area clients. Similarly she said, the inconsistent weighing of yields and not measuring insured and co-operator acreage, combined with incorrect weather data, compounds these errors and distorts actual current and simulated yields.

Fred Thomson Senior Adjuster for AGRICORP testified that Keith Davenport, who initially sold the plan to Ms. Ellicott was employed as a Yield Evaluator. He said Mr. Davenport was assisting with the busy spring sales season. He said that Mr. Davenport may have been misunderstood at the time of the sale. He stated that Mr. Davenport may have meant to convey that, in Harriett Ellicotts case, the species mix Timothy, was important to the statistics for her area. Mr. Thomson agreed that no one questioned that in 1998 and 1999, the conditions in Grey Bruce were dry. He went on to explain that

• soil samples are taken beginning April 15 each year, usually one or more per county.
• the samples are taken at 2-4-6-8-16 and 24 inches to a depth of 30 inches.
• the samples are double bagged and sent for independent analysis to the University of Guelph.
• if the testing indicates enough moisture to support the beginning of growth, then no adjustment is made to the SYMFOY model.
• in 1999, adequate moisture was present, so no adjustment was made.

Mr. Thomson said that AGRICORP purchases weather data from Environment Canada. After the 1992 closure of Paisley station, data was substituted from Tara. He said twenty-five years of data was recorded at Paisley station and used for the averaging of the 30 year yield. In the remaining 5 years, data from Tara was substituted. The two stations are similar in that they are close to each other and located inland.

Environment Canada does not designate the weather stations as main or sub-stations. Husseinali Shivji, Crop Insurance specialist with AGRICORP stated that, the definition of a main station for the purposes of running the SYMFOY model, is the station from which data is taken for the calculation of the 30 year average.

In response to questions regarding the substitution of weather station data, Mr. Thompson stated that AGRICORP had the right to substitute data as outlined in Regulation 380 of the Crop Insurance Act.

Jim Konecny, General Adjuster for AGRICORP, described how yield information was obtained from co-operator farmers. Mr. Konecny stated he is himself a farmer and grows some forage and that he has been an adjuster for 16 years, but did not work in Grey County until 1999. He stated that his procedure for obtaining yield data from co-operators was:

• Make an appointment to assess yield with the co-operator farmer.
• Ask the farmer what the size of his field was. If it did not appear to be a reasonable estimate, then the field would be measured to establish acreage to everyone’s satisfaction.
• Weigh the bales in the presence of the co-operator.
• Record the number of bales harvested.

Mr. Konecny testified that he used a large round bale scale provided by AGRICORP and a small bale scale that he owned and which he tested from time to time. He said that most farmers had a bale counter on their balers and keep their own records but that estimates could be made using common sense. He said that he occasionally calculated the yield on the spot if the data the co-operator was providing did not seem to make sense. He noted that only dry hay was weighed but that he had never done any testing of moisture content of bales. Mr. Konecny said he believed this process gives an accurate indication of yield.

Simon de Boer a co-operator farmer, was visited by Mr. Konecny. Together, he and Mr. Konecny assessed the size of his fields making an exception for an area of bush. The field was not measured. AGRICORP has measuring wheels and many farmers have GPS measuring for fields. In 1999 the season was very busy and time did not permit the measuring of fields. Normally if there is a dispute with a client regarding acreage, it is discussed during the visit when the issue is raised. It may have been an insult to some farmers to measure a field after they had given their opinion of the size. To his knowledge there have never been random field measurement checks.

Mr. Thomson testified that random and directed audits were carried out in 1999, to ensure that coverage levels were consistent with AGRICORP terms of reference and to determine if clients were over insuring. He explained that acreage measurements were also taken at the time, to justify the coverage held. He said, generally it was found that adjustments were necessary for about, 11 to 20% of the audited farms. He explained that, all clients are insured for 80% of the 30 year average yield, not 80% of the maximum coverage.

Mr. Thomson explained that:

• a form is completed when the adjuster visits the farm.
• co-operators are asked to sign the form to affirm that the information they provide is true and correct.
• only co-operators who are insured clients are requested to keep rain fall measurements.
• it is important to have more than one co-operator in an area circle.
• co-operators are asked their opinion of current yield compared with their average.
• co-operators in Grey/Bruce said they had 80 to 100% of normal in their first cut for 1999.
• Tony Bleuemer, who completed a questionnaire from the appellants, was not a co-operator in 1999.

Husseinali Shivji told the Tribunal that:

• There are two types of temperature data provided by Environment Canada, ‘raw’ and ‘quality controlled’.
• Raw data is temperature data that has been recorded by hand at a weather station and later keypunched into a computer.
• Quality controlled temperature data is produced when Environment Canada analyzes the raw data and records the daily maximum and minimum temperatures. The Environment Canada temperature clock runs from 12:00 noon of any day to, 12:00 noon of the following day.
• AGRICORP uses actual calendar days instead.

He explained that in an example provided by the appellants, a maximum temperature for June 10, 1999 is shown as 31.5º C. He said this temperature was recorded at the Tara weather station and is a ‘quality controlled’ record. He said 31.5º C was the highest temperature recorded between 12:00 noon of June 9, 1999 and 12:00 noon of June 10, 1999, not the highest temperature recorded on June 10, 1999. He explained this was the source of much of the variation in data between the records provided by the appellants and the data used in SYMFOY.

Mr. Shivji said AGRICORP used data from the Port Elgin station, though the crop Final Drought Reports may have recorded the Environment Canada number for Paisley station. He said AGRICORP was still using the Paisley station number even after the station closed, but only to designate a common circle of clients in the plan.

Mr. Thomson said that he had compared the rainfall gauges used by AGRICORP clients and did not find very significant differences. He agreed that under certain conditions they may have different capabilities for trapping moisture. He said that, AGRICORP has issued approximately 1000 new cone style rain gauges, free of charge to clients. He said there is not proof which style, comes closest to the rain measurement obtained by the Environment Canada equipment.

Mr. Shivji commented on the March 03, 2000 letter from Dr. Murray Brown. that was submitted by the appellants in which Dr. Brown provided his estimation of growth of forage. Mr. Shivji stated that there really isn’t any way a person might say that a specific amount of rain will result in a certain yield. He explained the effect of rain on plant growth, is relative to the rate of evapotranspiration, soil moisture availability, and the stage of growth at which the plant gets the rain. He asked that the Tribunal consider that Dr. Brown’s estimate of the yield is from data supplied by the appellant only, and not from having run the simulation.

When questioned by the Tribunal about substituting data from one weather station to another, Mr. Thomson answered that this did not constitute a change to the plan. He said information is merely taken from one location and placed in another. Jim Zavitz confirmed that in the case of an actual change to the Contract of Insurance the consent of both parties would be necessary. He said the client would be notified at the time of renewal and would have the option to discontinue the coverage if they so wished. He said the issue was not a change to the contract and notification of the client but only substitution of data.

Ms. Ellicott asked how AGRICORP had responded to the recommendations of the Auditor Generals report . Mr Thompson replied that, since 1999 AGRICORP had undertaken both random and general audits and that acreage measurement was carried out as well as coverage level reporting. He explained that, AGRICORP did not look for co-operators who grew a set species mix, rather those who grew crops representative of their area. He said records of co-operator forage yields were kept but no records were kept on other crops or livestock. Mr. Thomson said, the records reflect the ten-year average yield of the co-operator. He explained that, each year the actual yield for a co-operator would be expressed as a percentage of his/her ten year average. He said it is generally recognized that if a co-operators yield is down then the yields of other clients within the area will be too.

Mr. Shivji responded to a question from Ms. Ellicott regarding the different growing patterns of alfalfa and hay. He said that the plan, at one time had different options available at time of purchase. There was an option for ‘quality land’ and one for ‘quantity land’ but these options were discontinued. He said that, at present the species mix calculation replaces the land type option. Species mix is tied to main station. Mr. Shivji told the Tribunal that bale weights are adjusted for moisture if moisture is above 15%. Mr. Thomson added that a dry bale is expected to fit within a specific weight range. If it does not, then an adjustment is made.

In response to previous questioning Mr. Shivji told the Tribunal how the daily maximum temperatures were derived. Ms. Ellicott maintained that this method was not applied to the May 1998 figures. Mr. Shivji stated that he was not sure which station was used to obtain the May 1998 weather data. Mr. Shivji introduced into evidence, a publication produced by Environment Canada; A Guide to Interpreting Entries On The Climatological Station Report. He said that the May data could have come from other sources; and that until three or four years before, the temperature data was received by AGRICORP both electronically and in hard copy. He said the sunshine data always came as hard copy. Mr. Shivji said that there can still be ‘0’ values for temperature in ‘raw’ data information.

Ms. Ellicott asked if AGRICORP used ‘raw’ or ‘quality controlled’ data for the 30 year averaging. Mr. Shivji testified that AGRICORP had used ‘raw’ data until 2000. He said, they now use ‘quality controlled’ data and this delayed the running of the simulation until February. He explained that, receiving later confirmation of final simulated yields also delays the farm practices decisions. He stated that, though there is more time to wait for ‘quality’ data for running the 30 year average simulation, AGRICORP preferred that the 10 year and 30 year averages are derived from the same type of data, i.e. both ‘raw’ or both ‘quality’.

Ms. Ellicott asked when AGRICORP first began distributing the ‘cone’ style guages. Mr. Thompson testified that, it was in the early to mid 1990’s. Mr. Thompson said he had consulted with Greg Brown of AGRICORP, who told him that both the cone and round styles of gauges were considered accurate. He did not remember why the switch from one style to another was made but that the cone style is replacing the round. Under further questioning from Ms. Ellicott, Mr. Thompson stated that AGRICORP had been aware of the conflict in accuracy between the two styles of rain gauges since the Tribunal’s decision in Brazeau et al recommending the standardization of gauges in mid 1999. He said that, to date, clients have not been notified that the use of the ‘cone’ style is more prevalent and that they are available from AGRICORP. Mr. Shivji stated that an independent university study would be necessary to determine the most accurate type of gauge.

Mr. Thomson added that the accuracy of the rain gauges depends on the wind conditions, location of the gauge, time of readings and consistency of readings. In response to further question by Ms. Ellicott, he said that farmers had concerns about the SYMFOY model since it’s inception. He pointed out that, the nature of the area based model, is such that it does not mirror an individuals farm production.

In response to questions from Ms. Elllicott about a new pilot model of forage insurance, it was stated that, the purpose was to develop a plan that was inexpensive to administer, and used only rain fall climatic data. He gave a brief description of the pilot program. Mr. Zavitz stated that customers want a timely payment of claims therefore AGRICORP tries to accommodate them by using climactic data that is available as soon as possible. There is no guarantee that the station, which records the data will remain open. AGRICORP must purchase the data from Environment Canada.

AGRICORP representatives responded to questions from the Tribunal that:

• AGRICORP insured other clients in the Grey Bruce area for corn and cereals. The insurer was aware that 1999 was a very dry year.
• In dry conditions corn will stop growing at a different growth stage than will forage.
• The model is very one dimensional and will not account for rain run off for example.
• The model will not adjust for thinning stands of plants, or cumulative field or crop damage.
• There are no simulated yield models for any other commodities, used in Ontario.
• The 30 year average is relevant in terms of weather data.
• Though there are weather cycles, forage yield , unlike such crops as processing tomatoes does not have trended data records.
• For taking the rain fall data readings at weather stations, Environment Canada uses manually read, plastic gauges, costing about $90 each. Most of the Environment Canada thermometers are manually read also.
• Dr. Murray Brown is not on retainer to AGRICORP, though his services were last used in 1999.
• Dr. Brown did not say that his rough estimate of yield was comparable to simulated yield.
• It is assumed that Dr. Brown is referring to the Paisley area.
• The SYMFOY model is expected to simulate yields that are within 10% of actual yield.

Jim Konecny testified that:

• His territory included all of Bruce County in 1999.
• He believed the corn yields were average in 1999.
• He was not involved with the claim part of the plan and did not know how many claims there were in 1999.

Harriett Ellicott and Allan Smith responded to questions from the Tribunal, stating:

• The appellant groups’ yields suffered in 1999 due to lack of rain.
• The estimation of yield for the appellant group is about 66%, which is the range that Dr. Brown in his March 03, 2000 letter estimated.
• Some of the appellants who were paid claims, believe that they should have received higher payments.
• Dr. Browns’ estimation was based solely on the data he received from Ms. Ellicott. He did not personally visit the area.
• The ‘cone’style gauge when tested at Allan Smiths’ farm, resulted in measuring 30% more rain than the ‘round’ type.
• Most of the appellants have bought the forage plan for several consecutive years. Some are new clients.

In Summary Ms. Ellicott said that the evidence brought forth by the appellant group supports the contention that AGRICORP failed to administer the plan correctly. She said that number and name of the Paisley main station were issued to clients on contracts, and new clients were told that this was their area weather station, even though Paisley was closed in 1992. She explained that, the clients were never apprised of the change of main station and that rain fall measurement was inconsistent due to the use of two different types of rain gauges. Ms. Ellicott stated that the use of incorrect data year after year was compounded when calculating the 30 year and 10 year yields. She said that there is no consistency in AGRICORP’s procedures for weighing bales or measuring fields and that clients are entitled to a fair application of the terms of the contract and the use of correct data.

Mr. Thomson stated that AGRICORP had reviewed the main elements of the program. He explained that the model is complex and relies heavily on numerical data. He agreed that AGRICORP reocognized that 1999 was a dry year but soil samples taken as per procedures, indicated that there was enough moisture to support plant growth. He said the 30 year average calculated for “Paisley” does include 25 years of data recorded at the Paisley main station. He stated most clients are presently measuring rain fall with the ‘cone’ style gauge, though there is no conclusive evidence that proves one is more accurate than the other. He said that,AGRICORP has consulted Dr. Brown periodically, to ensure that the plan is properly administered. He pointed out that, the integrity of data is important and when there are allegations of errors, AGRICORP makes every effort to make corrections, hence the resimulation in February of 2000. Mr. Thompson stated that,AGRICORP has provided explanations for each issue that has been raised during the hearing.

The Findings

Under the Crop Insurance Act the Tribunal has the jurisdiction to make an award to an appellant who is dissatisfied with a claim. There is no obligation on the part of the insurer to use subjective information and or, data supplied by individual growers. AGRICORP is under obligation to administer the forage plan according to the contract of insurance signed by the client using data, the source of which, is outlined in publications provided to the client when the plan coverage is purchased. When it came to light that incorrect data was used in simulating the yields, AGRICORP corrected the data and ran a new simulation with the corrected data. The resimulation identified overpayments of claim to some of the clients within the appellant group. There were no underpayments resulting from the resimulation.

The March 03 letter of Dr. Brown submitted by the appellants cannot be taken as a specific quantification of loss. Without hearing Dr. Browns testimony, a precise interpretation of his letter cannot be made. Ms. Ellicott submitted that most of the appellant group had actual yields of 62 to 65 % of average however, this observation does nothing to substantiate the allegation of faulty administration of the plan model, which generates a simulated yield based on data input and not empirical observation.

The Tribunal recommended in it’s May 1999, decision regarding Brazeau et al that AGRICORP standardize the use of a common rain gauge for all clients tied to the same main station. It is reprehensible that to date, no one from AGRICORP can verify that this is now a present practice.

The appellant group has raised the issue of AGRICORP’s method of determining bale weights and field sizes. While not wishing to encumber AGRICORP with the necessity to hire more field staff, actual co-operator yields should be quantified and recorded. The appellants objections regarding these practices are consistent with the recommendations in the excerpt of the Provincial Auditors Special Report, submitted as evidence by the appellant group.

The Tribunal finds that the maximum of two soil samples taken for each county at the beginning of the growing season is too few. There are, in Grey/Bruce for example, in excess of 25 townships. The Tribunal is concerned that soil sampling on this scale would not accurately represent the moisture holding capacity of the variety of soils that may be found in such a large area.

The designating of Paisley as an area for which data was recorded, after the actual closure of the Paisley main station, does not constitute sufficient grounds for the Tribunal to find that this procedure constituted a breach of contract in administering the plan. The Tribunal does however, agree with the appellant that the lack of notification regarding the station change is indicative of negligence on the part of AGRICORP.

While the evidence in this hearing does not support an order changing the settlements made with the insured or the decisions to make no settlements, nevertheless we do find that the appellants mounted a serious challenge to AGRICORP. This challenge not only emphasized the serious shortcomings of the forage crop insurance plan but it became a very effective challenge to the data that AGRICORP was gathering to make the determination as to whether there was an insurable loss to this area. We have already pointed out some very specific areas of concern.. The weakness in the system of collecting accurate and believable data, brings into disrepute the whole SYMFOY model. We again commend the appellants for addressing the very issues that are required to be addressed in appeals of this nature.

Decision and Reasons

After careful consideration of the evidence and submissions made, the Tribunal decided to deny the appeal for the following reasons:

1. Though AGRICORP continued to identify Paisley and its corresponding number as a main station from which data was recorded, even after its’ actual closure in 1992, the Tribunal does not believe that this action constitutes a breach of contact.

2. AGRICORP administered the plan consistent to the explanation given to clients at the time the plan was purchased and as explained by the AGRICORP Sales Representative and published leaflet and brochure.

3. When an error was found, AGRICORP took steps to correct it and did not request a refund for any monies overpaid on claims.

4. The administration of the plan for the Grey/Bruce group of appellants, was no different than for other clients in Ontario.

Dated at Tilbury, Ontario this 11^th^ day of June, 2001.