Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:Tribunal@OMAF.gov.on.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1, chemin Stone Ouest Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email:Tribunal@OMAF.gov.on.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL: Vanderbeke v Agricorp
Vanderbeke v Agricorp [Motion] 2005 ONAFRAAT 20
STATUTE: Crop Insurance Act
HEARING: July 28, 2005
DATE OF DECISION: July 29, 2005
2005-20
NEUTRAL CITATION: 2005 ONAFRAAT 20
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 Keith Vanderbeke, Staples, Ontario from the decision of AGRICORP concerning the adjustment of his claims for his 2002 and 2003 soybean crops under Regulation 380/97 and the Crop Insurance Plan For Grain and Oilseeds.
AND IN THE MATTER OF: A motion by the appellant for:
An order compelling Agricorp to provide a complete copy of all policy manuals, including: a) the logging of telephone calls with insureds; b) insurance claims respecting replanting or loss of production; c) field inspectors training and operating policy manuals; d) every day/office operational policy manuals;
An order to allow an examination for discovery of Agricorp employees, adjusters, agents, field inspectors, or contractors. Specifically an examination of Mr. Brad Stevenson, adjuster and Harry Fraser, claim manager.
An order to compel Agricorp to provide undertakings and refusals, regarding discovery of documents, records or other electronic information.
Such further and other relief as the appellants may advise and this Tribunal may permit.
Before: John Taylor, Vice Chair; Mary Field, Member
Appearances: Keith Vanderbeke, appellant Fred Thompson Regional Manager, on behalf of AGRICORP, respondent Peter Wechselmann, counsel to AGRICORP
DECISION OF THE TRIBUNAL
This matter was heard in Chatham, Ontario on Thursday, July 28, 2005. Mr. Vanderbeke sought an order of discovery of documents – specifically a number of operational policy manuals and sought an order for examination of discovery of two AGRICORP staff prior to the hearing. He also asked for the disclosure of information that was the subject of a request under the Freedom of Information and Protection of Privacy Act (FOIPPA).
The Issues
The issues before the Tribunal are:
Should it order the discovery of documents that may be relevant to the appeal?
Should it order an examination of discovery of individuals that may have information relevant to the appeal?
Should it require the preparation and disclosure of information that was the subject of a request under the FOIPPA?
The Evidence
Mr. Keith Vanderbeke told the Tribunal his dispute related to a 2002 soybean claim, and a decision by AGRICORP to insure his 2003 crop but later cancel the insurance. Mr. Vanderbeke said both parties underestimated his 2002 yield and misunderstood terminology used by the mill.
Mr. Vanderbeke said he was asking for copies of AGRICORP’s policies because he did not think AGRICORP had followed them. He said he could use the policies to challenge statements made by AGRICORP witnesses.
Mr. Vanderbeke said that he understood there was no guarantee that specific witnesses will be brought to the Tribunal hearing. He submitted that even if they were brought to the hearing, if he heard their testimony for the first time on the day of the hearing, he would have no opportunity to obtain additional information to use to question them. He said if the Tribunal allowed the examinations of discovery that he sought, he would have transcripts and the opportunity to examine them against policies and correspondence he had received. He explained that it took him longer to do things since being in a car accident.
Mr. Vanderbeke told the Tribunal he had received some information from AGRICORP through the freedom of information process but that there was always something missing or something which raised the need to request additional information. He submitted that information should be provided without charge.
Mr. Fred Thomson told the Tribunal that AGRICORP had provided Mr. Vanderbeke with a binder of information which contained all information in its files that was relevant to his appeal. He said he had gone through the files personally. Mr. Fraser said AGRICORP had other information which was available through the FOIPPA but that everything relevant to the appeal had been disclosed. Mr. Fraser said AGRICORP had fully complied with its obligations under the FOIPPA, had provided information in response to two of Mr. Vanderbeke’s requests and would have provided information sought in a third request, had Mr. Vanderbeke paid a fee of $266. He said AGRICORP had no objection to providing policy documents, as these were not confidential, but would object to writing policy documents where none existed. It may well be possible that the FOIPPA is still available to the appellant.
With respect to the request for an order for an examination of discovery of Mr. Stevenson and Mr. Fraser, Mr. Thomson said this would add nothing to expedite the hearing of appeal, as he intended to call them as witnesses at the hearing of the appeal, and as the information disclosed covered what they would say. He asked that, if the Tribunal granted the request for an examination of witnesses, that AGRICORP’s costs be paid by the appellant. Mr. Wechselmann asked that, if the Tribunal ordered an examination of discovery of AGRICORP staff, that Mr. Vanderbeke also be required to undergo an examination of discovery.
Mr. Wechselmann submitted that the Tribunal was not the proper forum to resolve disputes related to the completeness of information provided or the fees set for information requested under the FOIPPA. He said that was the jurisdiction of the Privacy Commissioner and that in any event, Mr. Vanderbeke had not demonstrated that the information requested through the FOIPPA was relevant to the appeal.
Mr. Vanderbeke explained that he was particularly interested in a letter that he said Mr. Brad Stevenson had told him he would write to Mr. Zavitz at AGRICORP in which he would outline events that occurred during an inspection at the Vanderbeke farm. Mr. Thomson said he had not seen any such letter in the AGRICORP files. Mr. Vanderbeke submitted that if the letter did not exist, Mr. Stevenson could still prepare it.
Mr. Wechselmann told the Tribunal that AGRICORP was concerned with the length of time it was taking to hear the main appeal and asked that it order that no more motions could be brought before the hearing. Mr. Vanderbeke explained the matter had been held in abeyance for one year while he recovered from his automobile accident.
Mr. Thomson informed the Tribunal that he had inadvertently disclosed two pages of information that identified other clients of AGRICORP and their crop yields and asked that he be able to retrieve these pages and replace them with two pages with identifying information – name and customer number – removed. Mr. Vanderbeke said he would prefer to keep the original pages, but with the identifying information covered in black marker. The Tribunal allowed Mr. Thomson to retrieve the documents, on the understanding they be replaced as soon as possible with the same yield data but with the identifiers removed, in a slightly different format.
The Findings
The request by the appellant has been expanded by wanting to require AGRICORP to provide answers or information that he previously requested through the FOIPPA. It seems that AGRICORP was prepared to answer that request, which was his third request under that Act on the condition that it be paid its costs of $266. The appellant did not offer that payment and took no further action under the FOIPPA to appeal AGRICORP’s demand for payment. In any event, AGRICORP submits that the binder it has prepared for the Tribunal hearing, and for this motion, contains all the information that the appellant was seeking that is relevant to this appeal. The appellant claims that he only recently received this binder of material and did not have a full opportunity before this pre-hearing conference to satisfy himself that all his requests were answered. He found specific areas where the information provided in the AGRICORP binder did not address his concerns. He narrowed his request for the order he was expecting the Tribunal to make on this matter to the following:
- Policy manuals listed in point 1, a-d of his motion.
- Examination of discovery of Mr. Stevenson and Mr. Fraser
- Information in response to his third FOIPPA request.
AGRICORP offered to provide the policy manuals that they have, but not to write new ones. AGRICORP refused to consent to submitting Mr. Fraser and Mr. Stevenson to examination for discovery. If the Tribunal were to order such discovery, AGRICORP asked that it would be at the cost of the appellant and that AGRICORP would have the opportunity to examine the appellant himself. AGRICORP argued that it refused to provide any further answers to FOIPPA request #3 on the grounds that Mr. Vanderbeke should have pursued this matter under the FOIPPA. AGRICORP further submitted that no further motions should be allowed and that a hearing date of the original claim be set as quickly as possible.
The Tribunal finds that the Notice of Motion herein is far reaching and rather unusual. While it was not supported by a sworn affidavit signed by the appellant or another person, Mr. Vanderbeke did submit extensive requests which the Tribunal finds would be excessive and perhaps lead to further delays and a protraction of the Tribunal process. This appeal involves issues from the 2002 crop year and the hearing of those issues has been delayed for nearly three years. The allowing of examinations for discovery in the Tribunal process is an unusual step. The Tribunal finds that the information the appellant would be seeking at a discovery of the respondent’s witnesses would be available at the hearing of this matter. Generally, a Tribunal grants wide latitude to parties appearing before it, to fully cross-examine parties and their witnesses and we can see nothing in the specific request of the appellant that needs to be addressed in a pre-hearing discovery. Moreover, that process may well lead to further delays and substantial costs. Accordingly, the Tribunal will not order that there be any examination for discovery by either party. However, given that AGRICORP volunteered to produce these two gentlemen as witnesses, the Tribunal will so order.
AGRICORP offered to provide copies of its existing policy manuals on the four points identified by the appellant in his motion and the Tribunal will so order.
With regard to the request that the Tribunal order AGRICORP to provide responses to demands in the appellant’s third FOIPPA request, without charge, the Tribunal agrees with AGRICORP’s position that it should not assume the role of the Commissioner under that legislation.
The Tribunal agrees that the hearing be scheduled as soon as possible.
Order of the Tribunal
After careful consideration of the evidence and submissions made the Tribunal orders:
AGRICORP shall within 21 days of the issuance of this order provide the appellant with one copy of all of its existing policy manuals with respect to the handling of policy holder claims including: the logging of telephone calls with insured growers; insurance claims respecting replanting or loss of production; field inspectors’ training and operating policy manuals and every day office operational policy manuals.
AGRICORP shall produce Brad Stevenson and Harry Fraser at the hearing of this appeal.
There shall be no order as to examinations for discovery.
The remainder of the motion is dismissed.
DATED AT Tilbury, Ontario this 29th day of July, 2005.