Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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 [Request for Review] 2002 ONAFRAAT 22

STATUTE:

Crop Insurance Act

HEARING:

May 13, 2002

DATE OF DECISION:

June 26, 2002

2002-22

NEUTRAL CITATION:

2002 ONAFRAAT 22

Ellicott et al. v Agricorp

IN THE MATTER OF a Request to the Agriculture, Food and Rural Affairs Appeal Tribunal by Harriet Ellicott and Allan Smith under Rule 29 of the Tribunal's Rules of Procedure made under the Statutory Powers and Procedures Act, for a review of the decision of the Tribunal dated June 11, 2001 regarding their dispute with AGRICORP regarding the adjustment of their claims concerning their 1999 hay crops.

DECISION OF THE TRIBUNAL

Before: Terry Denison, Vice Chair

Harriet Ellicott and Allan Smith on their own behalf and on behalf of the Grey/Bruce farmers group, that is, all of the appellants in this appeal, have requested the Tribunal to review its decision dated June 11, 2001 in the above matter. The review is requested, in a letter dated May 13, 2002.

The Tribunal heard the merits of this Crop Insurance appeal on May 10^th and 11^th 2001. The appellants were dissatisfied with the decision of AGRICORP on the adjustment of their claims concerning their 1999 hay crops under Regulation 380/97 and the 1999 Crop Insurance for hay and forage. Before the hearing on the merits there were two preliminary motions brought by the appellants: the first was a motion for discovery brought by the appellants, and the second was to deal with a request pursuant to Rule 16 of the Tribunal’s Rules that the Tribunal authorize the appellants to have an audio recording made of the proceedings,

The Tribunal’s Rules of Procedure, provide for a review in Rule 29, which is reproduced here:

RULE 29 REVIEW OF A DECISION

Application

29.01 The Tribunal may at any time correct a typographical error, grammatical error, error of calculation, misstatement, ambiguity, technical error or other similar error which appears in a decision or order of the Tribunal without recourse to this Rule and without prior notice to the parties to an appeal.

29.02 This rule applies to reviews conducted under subsection 21.2(1) of the SPPA.

29.03 Before a final decision or order is issued, any application to review an interim order or procedural ruling of the Tribunal shall be made by motion to the panel of the Tribunal hearing the appeal and not under this Rule.

29.04 The Tribunal may review a final decision or order at the request of a party to an appeal or on its own initiative.

29.05 Any person, other than a party to an appeal, may request the Tribunal to review a final decision or order with leave of the Tribunal.

29.06 A request under Sub-rule 29.05 shall comply with Sub-rule 29.07.

Contents of a request for review

29.07 A request for review of a final decision or order of the Tribunal shall,

(a) be in writing;

(b) state the interest of the requester in the subject matter of the appeal;

(c) state the reasons for requesting the review;

(d) state the desired outcome of the review;

(e) attach any documents which support the request;

(f) state the full name, mailing address, telephone number and facsimile number (if any)of the requester;

(g) if the requester has counsel or an agent, state the full name, mailing address, telephone number and facsimile number (if any) of the counsel or agent; and

(h) be signed by the requester.

Action by Tribunal

29.08 Upon receipt of a request for review which complies with Sub-rule 29.07 the Tribunal shall send a copy of the request to each party to the appeal.

Evaluation of a request for review

29.09 In deciding whether it is advisable to conduct a review of all or any part of a final decision or order, the Tribunal may consider any relevant circumstances including,

(a) whether there is significant new evidence which was not available at the time of the original appeal;

(b) whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision;

(c) the extent to which any party to the appeal or any other person has relied upon the final decision or order;

(d) the extent to which any party to the appeal or any other person will be affected by the review process; and

(e) whether the public interest in finality of decisions is outweighed by the alleged prejudice to the requester.

Time limits

29.10 A request for review shall be filed within thirty days of the date of the final decision or order.

29.11 A request for review received after the expiry of the thirty day period may be considered if the Tribunal is satisfied that there is a good reason for the delay.

Multiple requests for review

29.12 Except with leave of the Chair, the Tribunal will consider only one request for review of a final decision or order by any person.

Consideration of requests for review

29.13 The Chair of the Tribunal, or a Vice-Chair designated by the Chair, shall consider each request for review of a final decision or order and decide whether a review should be conducted.

29.14 The Chair, or the Vice-Chair who considers the request, may consult with the member or members of the Tribunal who participated in the hearing of the appeal or motion which resulted in the final decision or order which is the subject of the request for review.

29.15 The Chair may request the member or members of the Tribunal who participated in the hearing of the appeal or motion which resulted in the final decision or order which is the subject of the request for review to consider the request and make the decision to review or not to review it.

29.16 The Chair, Vice-Chair or other member or members of the Tribunal who considers a request for review may have regard to the record of the hearing of the appeal or motion in addition to any material filed by the requester and any other party to the appeal.

29.17 The Tribunal may refuse a request to review a final decision or order without seeking submissions from any other party to the appeal.

29.18 If the Tribunal decides to receive and consider submissions from the other parties to the final decision or order which is the subject of a request for review it shall notify the other parties of the request for review and allow them ten days to respond.

29.19 The Tribunal shall send a copy of any response it receives from another party to the appeal to the requester and the requester shall be allowed five days to reply.

29.20 A copy of the requester's reply shall be sent by the requestor to each of the other parties and to the Tribunal.

29.21 The Tribunal shall not accept any further submissions without its permission.

29.22 A request for review may be granted in whole or in part.

29.23 If the Tribunal decides to review one of its final decisions or orders it may attach conditions, add other parties or make procedural directions to govern the review process.

Procedure for a review

29.24 Unless otherwise ordered, a review of a final decision or order of the Tribunal shall be conducted orally.

The Tribunal’s discretionary power to review a decision is enabled in the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22:

Power to review

21.2(1)A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order. 1997, c.23, s.13(20).

The purpose of the Tribunal reviewing its own decision is to correct obvious errors or oversights in a decision and to avoid unnecessary applications to the Courts for judicial review. A review by the Tribunal is not an appeal or new hearing and determination of the evidence, although a review could result in a matter being referred back to the original hearing panel to hear and consider additional evidence, in some cases. It should not be regarded as a usual way of proceeding, but should only be used when there is some special reason to reconsider the Tribunal’s decision. Although the Rules give parties the opportunity to request a review, the Tribunal’s determination whether or not to permit a review is discretionary, as the Statutory Powers Procedure Act uses the wording “A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.”

In this case, the request for a review is in the form of a letter dated May 13, 2002 addressed to the Tribunal [exercising its jurisdiction as the Crop Insurance Appeal Board]. The letter is signed by Harriet Ellicott and Allan Smith on behalf of the Grey/Bruce farmers group. The requesters’ stated grounds for the review are, to paraphrase the words of the letter, is that AGRICORP was allowed to introduce two documents at the hearing that were not provided to the appellants by AGRICORP prior to the hearing. The appellants state that because they did not have these documents in advance that their “right to rebuttal and defence of the validity of our evidence” was compromised. The letter does not elaborate on the nature of the documents or how the appellants were prejudiced by the introduction of the documents by AGRICORP at the hearing. The Tribunal record indicates that the documents were a copy of a regulation and a document prepared by the federal government to assist in the interpretation of weather data.

The appellants did not raise these objections during the hearing. Had they been raised at the hearing it is possible that either the hearing could have been adjourned so that the appellants would have a better opportunity to prepare a rebuttal to the evidence introduced through the documents, or a ruling might have been sought to prohibit the documents being introduced into evidence. It should be noted that the Tribunal, like most administrative tribunals in Ontario, does not adhere as strictly to the Rules of Evidence as a Court. The Tribunal may consider hearsay evidence or other evidence that would not be admitted in a court proceeding, although such evidence may be given less weight than other direct and corroborated evidence. Generally, the Tribunal gives great latitude to parties to introduce evidence that the parties feel is important to the presentation of their respective positions.

In considering the admissibility of evidence at a hearing the Tribunal is guided by the Statutory Powers Procedure Act:

What is admissible in evidence at a hearing

15. (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

What is inadmissible in evidence at a hearing

(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

(b) that is inadmissible by the statute under which the proceeding arises or any other statute.

Conflicts

(3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

Copies

(4) Where a tribunal is satisfied as to its authenticity, a copy of a document or other thing may be admitted as evidence at a hearing.

Photocopies

(5) Where a document has been filed in evidence at a hearing, the tribunal may, or the person producing it or entitled to it may with the leave of the tribunal, cause the document to be photocopied and the tribunal may authorize the photocopy to be filed in evidence in the place of the document filed and release the document filed, or may furnish to the person producing it or the person entitled to it a photocopy of the document filed certified by a member of the tribunal.

Certified copy admissible in evidence

(6) A document purporting to be a copy of a document filed in evidence at a hearing, certified to be a copy thereof by a member of the tribunal, is admissible in evidence in proceedings in which the document is admissible as evidence of the document. R.S.O. 1990, c. S.22, s. 15.

The Tribunal generally permits parties to introduce evidence that has relevance to the issues to be determined, but makes a determination as to what weight to give evidence this not direct and corroborated.

In seeking this review the requesters have not demonstrated that the two pieces of documentary evidence introduced by AGRICORP apparently without prior notice to them was material or determinative of the decision ultimately made by the Tribunal, and it appears to me in reading the Tribunal’s decision that the two documents were not pivotal or significant pieces of evidence which changed or significantly influenced the outcome of the hearing.

One of the concerns that the Tribunal has about this request for review is that it has been brought almost one full year from the date of the decision sought to be reviewed. To succeed in a review request after such a delay the requesters must convince the Tribunal that there is a good reason for the delay. The appellants state that:

“The delay in requesting a review is due to the fact that there is no mention of the right to review in the printed literature supplied by the tribunal. Additionally, in a phone conversation I had with Ms. Sue Gillespie I was informed that, although there had been the right to a review, the time limit was thirty days from the decision and as that deadline had passed the opportunity for review was lost.”

This statement suggests that the reason for delay in seeking review was as a result of wrong information provided to the appellants by the Tribunal. It is not the role of the Tribunal or its staff to provide substantial legal advice to parties before the Tribunal or advice as to how a party should conduct its case, although the Tribunal staff does try to impartially assist parties by advising them of the existence of relevant statutes or the Tribunal’s Rules. In this instance, contrary to the understanding of the requesters, the Tribunal does not have printed literature concerning appeals under the Crop Insurance Act. The Tribunal is advised that AGRICORP does provide such literature to its insureds, and the Tribunal assumes that this literature may have been the source of the requesters’ confusion about the review procedure of the Tribunal.

Parties before the Tribunal, whether represented by counsel or not, are well advised and have a responsibility to familiarize themselves about the relevant statutes and the Tribunal’s Rules when making an appeal to the Tribunal.

The opportunity to seek a review of a final decision of the Tribunal is not intended to be an appeal of a decision. It is intended as an expeditious way to rectify errors and omissions or where there is an important new piece of evidence that was previously unavailable, and an opportunity to determine if that additional evidence should be heard and the decision reconsidered. Normally a review should be brought quickly after the date of the decision: The Rules, provide that the review should be requested within thirty days of the decision. The Rules also provide that in extraordinary cases the Tribunal may consider a request for a review if there is a good reason for the delay.

In examining the decision in this matter, together with the Tribunal’s decisions in the preliminary motions, I conclude that the appellants were aware of and relied upon the Tribunal’s Rules with respect to prehearing discovery and with respect to the application of Rule 16. It is reasonable to expect that the appellants, although not represented by counsel, had the opportunity to read and understand the Tribunal’s Rules with respect to the review of a final decision.

The letter requesting a review also refers to a telephone conversation that one of the appellants had with Ms. Gillespie, the Secretary of the Tribunal. The role of Tribunal staff is to assist parties and members of the public in a courteous, impartial, and helpful manner, and it has always been this member’s experience that Tribunal staff do so. It is not, however, the role of Tribunal staff to provide legal advice or opinions as to either possible outcomes or to advise parties how to conduct their case before the Tribunal. The appellants’ opportunity to request a review was not affected by any problem with communications that the appellants had with the Tribunal staff.

One of the ways the appellants could have dealt with their complaint was to ask the Tribunal during the hearing of this matter to exclude the documents introduced by AGRICORP without prior notice, or to ask for an adjournment so that they could deal with the documents appropriately. Neither course of action was taken at the hearing. Nor was any cogent explanation given as to how the use of the two documents by AGRICORP at the hearing prejudiced the requesters at the hearing.

I find that in this instance the parties seeking a review of the Tribunal’s final decision have not met the requirements of the Tribunal’s Rules regarding reviews. It is clear that the request was not brought within thirty days of the decision. Nor has the requester satisfied the Tribunal that there is a good reason for the delay in making a request. The Tribunal notes that the appellants were aware of the Tribunal’s Rules at the time of making preliminary motions and that a reading of the rules would have made it clear that a request for review should be made within thirty days of the decision of the Tribunal. Nor is the Tribunal satisfied that the request for a review complies with Rule 29:07 in that the requesters have not clearly stated the reasons for requesting the review or attached documents supporting the request.

In considering this request the Tribunal has considered those matters in light of the matters listed in Rules 29:09 and concluded that the requesters have not shown that there is any significant new evidence which was not available at the time of the original appeal or that the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision. In this instance the public interest in finality of decisions is outweighed by the alleged prejudice to the requester, especially taking into account the delay in the making of the request.

For all of the above reasons the request for a review is denied and the decision of the Tribunal in this matter is confirmed.