Walsh v. Agricorp, 2002 ONAFRAAT 34

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

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

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

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Walsh v Agricorp

Walsh v Agricorp 2002 ONAFRAAT 34

STATUTE:

Crop Insurance Act

HEARING:

DATE OF DECISION:

September 17, 2002

2002-34

NEUTRAL CITATION:

2002 ONAFRAAT 34

Walsh 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 Barry Walsh, Francis Walsh and Paul Walsh, Peterborough, Ontario, from the decision of AGRICORP concerning the adjustment of their claim fro their 2000 corn crop under Regulation 380/97 and the Crop Insurance Plan For Grain and Oilseeds.

Before: Taylor, John C., Q.C. – Vice Chair O’Connor, Denis – Vice Chair

Appearance: Donald R. Good – Counsel for the Appellant Barry Walsh, Francis Walsh and Paul Walsh Peter Wechselmann – Counsel for the Respondent AGRICORP

DECISION OF THE TRIBUNAL

Background

In the year 2000 the Appellants planted some 517 acres of corn crop for which they paid the appropriate premium. The crop yielded very poorly, the actual yield was measured at approximately 60 bushels per acre. The Proof of Loss indicates that there was a shortfall of 17,197.63 bushels. The peril causing the loss was “cool weather and excess rainfall”, both of which are insured perils under the policy. The alleged shortfall was reported to AGRICORP sometime in November of 2000. A Crop Inspection Report was prepared on February 20, 2001, being the same date in which the Proof of Loss was signed and filed with AGRICORP.

It seems that there were various AGRICORP representatives involved in handling this claim. A dispute has arisen between the Appellants and AGRICORP over what the actual yield was. It appears that AGRICORP alleges that the Appellants had sold some of their crop to other parties and did not report these sales as part of their 2000 crop yield. On the other hand, the Appellants claim that most if not all of these other sales were of corn that they had left over from the 1999 harvest that was stored on their property. The upshot is that AGRICORP did not honour the claim in a manner satisfactory to the Appellants.

The Crop Insurance Act, S.O. 1996, c. 17 provides as follows:

Section 10 (1) (2) - Referral of Disputes:

(1) If AGRICORP and a person disagree whether the person qualifies for a contract of insurance, except if the disagreement relates to the time during which a person may apply for a contract of insurance or file a final acreage report or its equivalent, or if AGRICORP and an insured person fail to resolve a dispute arising out of the adjustment of a claim under a contract of insurance, either may appeal the matter to the Tribunal.

(2) To appeal a matter in dispute, the Appellant shall file a written Notice of Appeal with the Tribunal and send a copy of the notice to other party within the time specified by the Regulations under the Act.

Regulation 215, R.R.O. 190 requires that the appeal to the Tribunal be launched within one year of the day of the filing of a Proof of Loss.

The evidence discloses that the actual appeal to this Tribunal was launched by the Appellants on April 6, 2002 and was received by the Tribunal office on May 6, 2002. It is the position of AGRICORP that on this basis alone, this Tribunal should not have accepted the Notice of Appeal filed by the Walsh family and secondly that this Tribunal has no jurisdiction under the legislation to hear this appeal. On the other hand, it is the position of the Appellants that there are other mitigating circumstances in this case that should prompt this Tribunal to receive the appeal and to give the Appellants an opportunity to have their dispute with AGRICORP reviewed by the Tribunal. Moreover, it is the position of the Appellants that there is legal precedent in the judicial system where the courts have declared that the limitation period should be waived and that this Tribunal has the power to adopt those precedents and allow the appeal to proceed. It is alleged by the Appellants that AGRICORP has in the past considered and allowed claims by insured farmers who have launched appeals after the prescribed limitation date. This panel of the Tribunal has been asked to consider these preliminary matters rather than to decide the Appellants’ case on its merits. If this panel were to allow the appeals to proceed, some other panel of this Tribunal would consider the appeal on its merits.

There is really not much dispute between the Appellants and AGRICORP as to the progression of events that took place from the time that the Appellants first reported a yield shortage in their 2000 corn crop. It began with an apparent telephone communication no later than November 29, 2000. This was followed up by an adjuster’s report and the filing of a Proof of Loss on February 20, 2001. An extensive investigation by AGRICORP followed. No less than two adjusters interviewed the Appellants as well as various other parties who were alleged to have purchased corn from the Appellants. On August 27, 2001, the Senior Manager of Provincial Claims sent a registered letter to the Appellants officially denying their claim. The Appellants then sought the assistance of politicians by complaining to them that they were being mistreated by AGRICORP personnel. Copies of letters directed to one, Gary Stewart, MPP for the Peterborough area was part of the material provided by AGRICORP. It was pointed out to the Appellants that they could ask the AGRICORP Crop Insurance Committee to review the decisions taken by AGRICORP officials. It is the evidence of Mr. Francis Walsh who testified at this hearing that he immediately did that believing that he was appealing AGRICORP’s decision. On January 28, 2002, AGRICORP sent a “Notice of Review” to the Walsh’s that scheduled a hearing for February 20, 2002 at Guelph. Even though AGRICORP must have known that February 20, 2002 was the approximate last date on which an appeal to this Tribunal could be launched, the said notice gave no warning to that effect. Pursuant to the notice, Walsh prepared a brief containing various information and statements supporting his position. No one either by letter or by telephone from AGRICORP pointed out to him that his request for a review before the AGRICORP Crop Insurance Committee was not the same as an appeal to the Tribunal. Evidence given by AGRICORP witnesses at this hearing indicated that it was not the practice of AGRICORP to give any special warnings of the pending expiration of time limits to appeal other than what would already be available in the insurance documents. It was also clear that there was no admission of liability or promise to pay made by AGRICORP to the appellants. In any event, in this case, on March 12, 2002 the AGRICORP Crop Insurance Committee issued its decision denying the Appellants’ request for a different consideration of their claim. Apparently this brought home to the Appellant that the Crop Insurance Committee was indeed not the same thing as the Agriculture, Food and Rural Affairs Appeal Tribunal. Following receipt of the letter of March 12, 2002, the Walsh family retained the services of Donald R. Good who prepared a Notice of Appeal to this Tribunal under date of April 6, 2002 and which was apparently filed with the Appeal Tribunal on May 6, 2002. In response to this Notice of Appeal, the AGRICORP Senior Manager of Provincial Claims objected to the General Manager of this Tribunal that it should not receive this appeal nor give it any consideration.

Both the counsel for the Appellants and the Respondent submitted various court decisions in which the issue of limitation periods was considered and in some cases, the extension of the limitation period was allowed and in others it was refused. One of the major principles expressed in these judicial decisions, is the question of what prejudice there would be against a defendant or respondent if a court were to order waiver of a limitation period. The whole purpose of limitation periods is for litigants not to rest on their legitimate claims but to bring them before the courts within a limited period of time so that the defendant or respondent is not handicapped in its investigation of the facts and gathering of evidence to put up an appropriate defence. It seems in those cases where courts have given relief from limitation periods they have reviewed the matter of whether the defendant had early notice of the claim and had an opportunity to make its investigations and gather the evidence necessary to mount a defence. In some cases, it seems to be an important issue if the claimant or appellant was actually dealing with the adjusters or other agents of the defendant at the time that the limitation period expired and whether those adjusters or agents had warned the claimant of a the pending expiry of a limitation period.

Issue of Prejudice

This Tribunal finds that there was in this case a substantial amount of evidence that AGRICORP would suffer no prejudice or mischief from an extension of the limitation period. The following events lead us to that finding:

1. The shortage in yield was reported promptly at harvest time in the year 2000.

2. The filing of a Proof of Loss was made in February 2001 when the crop adjuster first contacted the Appellants.

3. AGRICORP continually conducted investigations from February 2001 right through until August 2001 and gathered a number of statements and affidavits from various parties that would support its defence to this claim.

4. The Appellants did not rest on their case but immediately took issue with AGRICORP’s position by filing its own proofs and documents to support the Appellants’ claim.

5. The Appellants contacted a politician and Ministry officials who suggested that they request a review by the Crop Insurance Committee. They responded to that suggestion by filing more material and a brief relating to their claim.

6. The Crop Review Committee set a date to hear the Appellants’ plea, which was on or after the expiry date of the limitation period.

7. The evidence is that the Appellants believed that this review was in fact an appeal and they expected some success and awaited the Crop Insurance Committee’s decision.

8. The decision came out after the expiry of the appeal period.

9. AGRICORP throughout this time followed its policy of not warning claimants, whether they are represented or not by legal counsel about the pending expiry of the limitation date.

This panel therefore finds that there is no demonstrated prejudice to AGRICORP if the limitation date is extended to the actual date of the filing of the Notice of Appeal in this case.

Issue of Jurisdiction

The remaining issue to address is the one raised by AGRICORP as to whether this Tribunal has any jurisdiction to make an order extending the filing date for an appeal. AGRICORP submits that there is no such authority given to the Tribunal under the legislation or regulations and that the case law indicates only duly appointed judges of the High Court could exercise such discretion. AGRICORP produced a copy of the decision of a panel of this Tribunal rendered July 25, 2000 in the matter of an appeal of 757182 Ontario Limited (Dippel) v AGRICORP. That case involved an alleged insured corn crop of 230 acres grown in the year 1993. The Appellant in that case filed a Proof of Loss dated February 18, 1994. AGRICORP denied the Appellant’s claim on April 7, 1995. From there, the Appellant sued AGRICORP in Small Claims Court for return of its premium. The Small Claims Court action was discontinued in 1997 and in March of 1997 an appeal to the Tribunal was filed. This of course was some four years after the crop year in which the crop was grown. The evidence in that case indicated that AGRICORP in some cases did in fact disregard the limitation date for launching of appeals. Despite that evidence it was the decision of the Tribunal that the Tribunal did not endorse AGRICORP’s decision to extend the time for filing of appeals, contrary to the regulations.

This panel of the Tribunal feels that the Dippel case can be distinguished from the one presently under consideration. In the Dippel case, over two years had passed between the limitation date of February 1995 to the time when the appeal was launched to the Tribunal in March of 1997. In the present case, the appeal was launched within forty-four days of the expiry date. Moreover, in the present case, the Walsh family did not sit idly by after AGRICORP denied the claim. Rather they did what they thought they had to do to question the decision of AGRICORP by contacting their member parliament and following his recommendation and that of the Minister of Agriculture in asking the Crop Insurance Review Committee to reconsider the decision. All along the Walshes were led to believe that they were pursuing the appeal that was available to them. AGRICORP did not bring to their attention in a clear fashion that the procedure before the Crop Insurance Review Committee was not the same as an appeal to the Tribunal nor that the time limit for launching an appeal to the Tribunal was fast approaching. Accordingly, circumstances in the present appeal cry out for an opportunity to be given to the Walsh family to have their case reviewed by this Tribunal. AGRICORP’s counsel suggests that they should be asking a Superior Court Justice to consider whether they should be allowed to have their appeal heard. A review of the legislation setting up the Crop Insurance Act and the regulations makes it clear that matters of appeal concerning settlement of claims was to be dealt with in an administrative tribunal forum. The set up of the entire crop insurance program for all the various kinds of commodities contemplates that appeals from the decisions of administrative bodies that administer the programs would be reviewed by the Agriculture, Food and Rural Affairs Appeal Tribunal. There is no mention in the legislation or the regulations that some other tribunal or indeed the courts should be involved in the administration of these programs. Really, this Appellant has no other body to turn to in order to have his “day in court”, if it is dissatisfied at the manner in which the program is administered. This panel finds that it is within its mandate to grant extensions, in the appropriate circumstances, for the time to launch appeals. Having said this, we do not believe that the limits set by the legislation and the regulations can be ignored in every case. This discretion should only be exercised in clear cases where, as in the present one, the time for launching the appeal was within a short time after the expiry date, the Appellants were actively pursuing perceived remedies and that there was no prejudice shown to the Respondent.

ORDER OF THE TRIBUNAL

This Tribunal orders:

1. That the time for filing an appeal to this Tribunal in this case is extended to May 6, 2002.

2. That the General Manager/Secretary of this Tribunal allow the parties to file such other materials as may be necessary to perfect the appeal within reasonable time limits as she may prescribe and to set the appeal before a different panel of this Tribunal in due course.

Dated at Tilbury, Ontario this 17th day of September, 2002.