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:
Abolins v Agricorp
Abolins v Agricorp [Pre-Hearing Decision] 2003 ONAFRAAT3 1
STATUTE:
Crop Insurance Act
HEARING:
October 6, 2003
DATE OF DECISION:
October 27, 2003
2003-31
NEUTRAL CITATION:
2003 ONAFRAAT3 1
Abolins v Agricorp [Pre-Hearing Decision]
IN THE MATTER OF: The Crop Insurance Act (Ontario) and 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 Ilze Abolins, Demorestville, Ontario, from the decision of AGRICORP concerning the adjustment of her claim for her 2001 corn crop under Regulation 380/97 and the Crop Insurance Plan For Grain and Oilseeds.
AND IN THE MATTER OF: a pre-hearing conference to provide the Tribunal with information so that it may determine whether or not it may hear the appeal, which was filed more than twelve months after the proof of loss form was filed.
Before:
Andrew Osyany, Vice Chair; George Klosler, Member.
Appearances:
Donald Good, counsel for the appellant, Ilze Abolins.
Peter Wechselmann counsel for the respondent AGRICORP.
DECISION OF THE TRIBUNAL
This pre hearing conference was heard in the Tribunal Boardroom in Guelph, Ontario on October 6, 2003. The appeal of Ilze Abolins was filed at the Tribunal on May 28, 2003. The appeal was from the decision of AGRICORP not to pay a claim for 2001 corn crop. The Proof of Loss form for the 2001 corn crop was signed and dated December 7, 2001.
Statutory Context
Section 3(2) Ontario Regulation 140/96 of the Crop Insurance Act (Ontario) states:
To appeal the matter in dispute, the appellant shall file a notice of appeal with the Board and send a copy of the notice to the other party within one year of filing the proof of loss form. O. Reg. 140/96, s. 3 (2).
Preliminary Matters
Mr. Wechselmann moved that the Tribunal dismiss the appeal due to it having been filed after the time limit of one year from the date of the signing of the Proof of Loss form.
Mr. Donald Good wished to introduce an affidavit by the appellant as an exhibit to the pre hearing. He told the Tribunal that he had sent a copy of the affidavit to Mr. Wechselmann in the morning, the day of the pre hearing conference. Mr. Good told the Tribunal that he did not object to an adjournment to provide Mr. Wechselmann with the opportunity to prepare a cross-examination of the affidavit.
Mr. Wechselmann told the Tribunal that he had received only two pages of the affidavit. Mr. Wechselmann said that his document brief was filed at the time stated in the initial Notice of Hearing, September 19, 2003 and that the appellant had ample time to prepare his materials. Mr. Wechselmann stated that he did not wish to be given time to prepare a cross-examination of the contents of the affidavit, but that he wished it excluded or, if the Tribunal chose to accept it, that it be given very little consideration.
The Tribunal decided to disallow the affidavit tendered by Mr. Good; it determined that there was ample notice to the parties for the submission of materials before the pre hearing conference.
Mr. Wechselmann asked the Tribunal to dismiss the appeal as it was not within the jurisdiction of the Tribunal to hear. He said that the four reasons for the appeal, as stated in the Notice of Appeal dated may 28, 2003 were not based on any dispute regarding adjustment of loss. Mr. Wechselmann said that the Notice of Appeal cited issues relating to dissatisfaction with AGRICORP's customer service methods. Mr. Wechselmann said that the appeal should clearly state the conditions of the disputed claim.
Mr. Good told the Tribunal that there is no standard form for making an appeal. He stated that there was no standard to which farmers must adhere when making an appeal.
Mr. Good said that the Tribunal had exercised its discretion in past cases where it had proceeded to hear appeals that were filed late.
The Tribunal ruled that the Notice of Appeal was sufficient to indicate a dispute pertaining to an adjustment of claim under the Regulation to the Crop Insurance Act.
Indefinite Adjournment of the Appeal Pending Investigation Results
Mr. Wechselmann told the Tribunal that there were other matters pertaining to the appellants position with regard to the adjustment of the crop insurance claim. He said that he wished the appeal to be adjourned indefinitely until the other matters were resolved. He submitted a letter from Ontario Provincial Police (OPP) Detective Constable, Gary Doherty dated August 11, 2003. Mr. Wechselmann summarized the letter, stating that Mrs.Abolins was being investigated for fraudulent activity with regard to her business affairs with the Agricultural Commodities Corporation (ACC) and AGRICORP. Mr Wechselmann told the Tribunal that Mrs. Abolins had named AGRICOROP as a party in a legal proceeding against the ACC. He said that Mrs. Abolins maintained that AGRICORP's failure to pay the crop insurance claim constituted a breach of contract.
Mr Wechselmann told the Tribunal that Mrs.Abolins may have taken her case to a body that does not have the jurisdiction to hear it. He stated that if the crop insurance matter was heard at Court it was uncertain if it could subsequently be subject to Judicial Review, nor was it known if the parameters of pursuing the matter before the Tribunal would be altered by the determination of the matter at Court.
Mr. Good told the Tribunal that it was important that the Tribunal hear the matter. He said that an agent of AGRICORP involved him/her self in negotiating a loan with ACC that was beyond the resources of Mrs. Abolins to manage. He cited a previous Tribunal case (Dippel appeal) as a matter where it was determined that the courts did not have the jurisdiction to determine the issue. Mr. Good said that Mrs. Abolins was not seeking damages under the contract of insurance, rather she was seeking damages from the actions taken by ACC in concert with AGRICORP. He said that he and his client had become aware of the OPP investigation two weeks previous to the pre-hearing conference. Mr. Good said that he agreed with Mr. Wechselmann's submission that the appeal be adjourned pending the outcome of the investigation. He said that the deaths of many of Mrs.Abolins' cattle were being investigated and that the deaths coincided with a significant loan that remained outstanding. Mr. Good said that the investigation began in March 2002 and to date no charges had been laid.
Appeal Filed Beyond the Time Limits of the Statute
Mr. Wechselman told the Tribunal that the Ilze Abolins appeal was made well after the limit of one year from filing the proof of loss had been made. He said that he represented AGRICORP in two appeals that were brought to the Tribunal in similar circumstances (Walsh and Dippel appeals)
Mr. Wechselmann explained that: in the Dippel matter AGRICORP refused the claim, which was taken to small claims court, discarded for a time and then brought before the Tribunal. He said that the Tribunal ruled that although AGRICORP was amenable to extending the time for appealing in the matter, it did not have the legal jurisdiction to do so.
Mr. Wechselmann said that in the Walsh matter the parties were involved in settlement negotiations until the day before the time limit expired. He said that the Tribunal ruled that the matter should be heard as parties were attempting to settle the matter until the time limit expired.
Mr. Wechselmann told the Tribunal that the circumstances of the Ilze Abolins appeal were different from the Walsh appeal. He said that the Mrs. Abolins claim was deserted for a nine month period, and then revived with the appeal concerning customer service, which was filed after the time limit of one year had passed. He pointed out that the Proof of Loss form was filed on December 7, 2001 and that the appeal was made on May 28, 2003.
Mr. Wechselman said that it is not within the Tribunal's jurisdiction to extend the time limit for making appeals and that the Walsh matter involved very different circumstances that made it unsuitable to consider as precedent.
Mr. Good told the Tribunal that he did not dispute that the appeal was beyond the one year time limit. He stated that the Walsh appeal had involved circumstances that could not be found to be governed by insurance laws. He said that the Walsh matter was properly brought to the Tribunal which had legal jurisdiction to determine it. Mr. Good referred to the Tribunal's consideration of prejudice to AGRICORP in its decision on the Walsh matter. He said that the Tribunal ruled that if there was no prejudice to AGRICORP by extending the time limit for the appeal then it was properly extended.
Mr. Good submitted that in the Walsh matter it was determined that AGRICORP would be able to investigate the circumstances surrounding the claim due to the extension of the time limit. Mr. Good said that there are no matching circumstances from one appeal to another. He stated that the issue is not to correlate circumstances upon which to base precedent, but that the issue of prejudice to AGRICORP by extending the time limit was central to the Walsh appeal.
Mr. Good said that maps were made of the crops grown by Mrs.Abolins without her knowledge and that AGRICORP invited the appeal knowing that the deadline for making it had passed. He submitted that AGRICORP neglected to send to Mrs. Abolins some necessary documents when she purchased the crop insurance policy. Mr. Good told the Tribunal that AGRICORP acknowledged continued negotiations with his client. . He said that Mrs. Abolins had never previously participated in a crop insurance plan.
Mr. Wechselmann stated that the Insurance Act expressly excludes the Crop Insurance Act. He submitted that in January 2003 Mrs. Abolins telephoned AGRICORP to revive the appeal. He said that Mr. Paul Cudmore, AGRICORP Director of Operations to whom Mrs. Abolins directed the appeal, is not a lawyer and therefore could not be expected to give a correct interpretation of the law. He said that Mr. Cudmore was following instructions to advise people of the appeal process. Mr. Wechselmann stated that correspondence between AGRICORP and Mrs. Abolins dated after January 2003, should be construed as the process of settlement privilege. Mr. Wechselmann stated that with the passage of time, prejudice to AGRICORP increased.
Mr. Wechselman acknowledged that AGRICORP had been tardy in providing the Mrs. Abolins with certain documents pertaining to her crop insurance policy. He said that in the Walsh matter negotiations were ongoing until the time limit expired whereas the Ilze Abolins allowed several months to pass without pursuing her appeal.
Decision and Reasons
Extending the time limit for appeal
Although the parties sought to distinguish the Walsh and the Dippel cases, this panel finds it hard to reconcile them. There are good points made in both cases, and the Walsh case contains a fuller analysis of some of the considerations. Whether or not the Tribunal has the power to extend the time for commencing an appeal, and the pre-conditions of granting an extension (if there is such a power in the Tribunal), are important questions and deserve consideration by a full panel. Accordingly, this pre-hearing panel is adjourning the decision on this issue to the full hearing panel, when the hearing is constituted.
This panel notes that in addition to the issues reviewed in the Walsh and Dippel cases; the statutory limit of one year from the filing of the proof of loss could be taken to imply a legislative expectation that claims would be processed expeditiously and that by the end of the year the appellant would know that the appellant’s claim had been denied. Would the granting of extensions interfere with such a legislative expectation? It may be that there are other public policy issues to be considered as well.
Indefinite Adjournment of Appeal Pending Investigation Results
The evidence is that criminal proceedings may be imminent and both parties wish to have the actual hearing delayed in light of this. This panel is prepared to postpone the setting of the hearing date for a period of two months. In the event that no criminal proceedings are instituted by November 30, 2003 or if criminal proceedings are begun by November 30, 2003, the panel is willing to postpone the setting of the hearing date until two months after the criminal matter is resolved. While this panel may be spoken to in connection with any other preliminary and pre-hearing matters, this panel is not seized of the matter, and according to the Rules of Practice, members of this panel will not participate in the eventual hearing on the merits.
DATED AT Shelburne, Ontario this 27th, day of October, 2003.