Devries v Agricorp, 2006 ONAFRAAT 16

Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone Road West

Guelph, (Ontario) N1G 4Y2

Tel: (519) 826-3433, Fax: (519) 826-4232

Email:appeals.tribunal@omaf.gov.on.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: appeals.tribunal@omaf.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Devries v Agricorp

Devries v Agricorp

2006 ONAFRAAT 16

STATUTE:

Crop Insurance Act

HEARING:

DATE OF DECISION:

June 5, 2006

2006-16

NEUTRAL CITATION:

2006 ONAFRAAT 16

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 Larry Devries, (Woodland Farms) Smithville, Ontario from a decision of Agricorp concerning the adjustment of his claim for re-seeding benefits for soybeans and corn planted in 2005, under Regulation 380/97 and the Crop Insurance Plan for Grains and Oilseeds.

Before:

Gene Trotman, Vice Chair; Denis Perrault, Member; Graeme Hedley; Member.

Appearances:

Mr. Donald Good, counsel to the appellant

Mr. Larry Devries, witness for the appellant

Mr. Harold Devries, appellant

Mr. Peter Wechselmann, counsel to Agricorp, the respondent

Mr. John Barkovic, on behalf of the respondent

Mr. Gerald Winnicki, witness for the appellant

Sam McGee, witness for the respondent

Mr. Peter Johnson, witness for the respondent

Statutory Context

Section 10 of the Crop Insurance Act (Ontario) states:

Referral of disputes

10. (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 in dispute to the Tribunal.

Notice of appeal

(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 the other party within the time specified by the regulations made under this Act.

Exclusive jurisdiction

(3) The Tribunal has exclusive jurisdiction to hear and determine all appeals arising under subsection (1).

Decision binding

(4) The decision of the Tribunal in an appeal is binding on the parties, 1999, c. 12, Sched. A, s. 7 (2).

The Issue

Should Agricorp pay a reseeding claim of $60 per acre for 700 acres of soybeans, totaling $42,000.00 for replanting the same in the spring 2005 by Harold and Larry Devries (Woodland Farms)?

Preliminary Matters

The parties agreed to waive formalities and accept as expert witnesses Mr. Gerald Winnicki on behalf of the appellant and Mr. Peter Johnson on behalf of Agricorp.

The Evidence

In his opening statement, Mr. Donald Good referred to the amended appeal which he submitted to the Tribunal and to Agricorp in a letter dated March 3, 2006 in which he stated that prior to his involvement in the appeal, Larry Devries had sought leave to appeal the decision of Agricorp based on the 110 acres referred to in the original inspection report. He submitted that his clients had notified Agricorp when 110 acres of soybeans planted prior to April 22, 2005 failed to emerge from the soil, and that the 110 acres involved were inspected, but there was an issue with the time when they were planted.

He added that when the second call was made to Agricorp by Larry Devries to inspect additional early planted soybeans for a re-seeding claim, Agricorp refused to conduct an inspection. He stated that he had only been recently engaged by the Devries’ to represent them in this appeal and hence the filing of the above-referenced amended appeal.

Mr. Good told the Tribunal that farmers have little choice with respect to purchasing crop insurance. He stated that any ambiguity found in the contract of insurance involved must be interpreted against the insurer and for the benefit of the insured, in accordance with the contra proferentum principle. Mr. Good told the Tribunal that the matter before it was whether Agricorp changed any of the terms that related to the contract of insurance that was in place; and if so, did Agricorp communicate the change to the insured.

In his opening remarks Mr. Wechselmann stated that the appeal pertained to a claim for the reseeding of 310 acres of soybeans and 70 acres of corn in spring 2005. He told the Tribunal that a contract of insurance between Agricorp and Woodland Farms was in place for 2005, and that he took issue with the statement by Mr. Good that crop insurance is an imposed contract and explained to the Tribunal that producers may voluntarily cancel a contract of insurance within 15 days of the issue of insurance confirmation. He stated that the main issue of the appeal was the dates of planting in the context of “Good Farm Management Practice” that is to say whether or not the appellant planted at a suitable time. Mr. Wechselmann told the Tribunal that in the area where the appellants’ farm is located, only one percent of the total acreage is planted during the time that the appellants planted the corn and soybeans in question.

Harold Devries

Mr. Harold Devries testified that he and his brother farm near Smithville, Ontario, in the Niagara Peninsula and that he has farmed in the area for the past 40 years. He stated that in addition to 500 acres, that he and his brother Larry own in farming partnership, they rent and farm an additional 2200 acres in the vicinity of Smithville, most of it within 8 kilometers of the home farm He said that one property was 16 kilometers away from the home farm. Mr. Harold Devries additionally testified that

• he and his brother operate a cash crop business producing soybeans, wheat and a bit of corn;
• soil in their region is very heavy Haldimand clay that works well under no till conditions;
• he and his brother have operated the cash crop farm business for the past 20 years and have used the no till method in their operation for the last 15 years;
• approximately five percent of the land they farm is systematically tile drained;
• they prepare their lands with the appropriate fertilizers each fall so that they are positioned to take advantage of favourable conditions for planting in spring;
• the decision as to which commodity to grow is a joint decision between his brother and himself;
• they like to be ready to plant by April so that when a window of opportunity opens with favourable planting conditions, they are ready to go;
• in 2005, they planted approximately 2200 acres of soybeans, 500 acres of wheat and 300 acres of corn;
• the area where they farm has about 3100 corn heat units;
• in 2005, they began planting on April 15 and continued until April 22 and during this time, approximately 500 acres of soybeans were planted;
• in spring 2005, they took daily soil temperature readings using a probe at a depth of 1.5 inches at various times during the day and the temperature of the soil then was as warm as 63 ºF during the day and about 5 degrees lower at night;
• their routine is to check soil temperatures only for early planting;
• several neighbours and friends were planting at the same time as they were in 2005;
• in the few weeks prior to April 22, 2005 the weather was warm and dry and soil temperatures were good for planting;
• after April 22, 2005 the weather turned cold and wet, there was snow on their farm that melted as the day wore on;
• they had planted a 110 acre field of soybeans that appeared to have germinated well but then it began to rot in the field;
• on or about the 10^th of May, 2005 the weather became very dry, the plants that germinated were not able to emerge through the hard dry crust of the ground;
• the seeds that rotted in field were treated and certified seed;
• he telephoned Agricorp to make a report about the 110 acre field of soybeans that failed to emerge from the soil because the seed was rotting and he felt it would not produce a crop;
• the 110 acre field was inspected by Mr. Sam McGee on May 19, 2005 whom he accompanied during the inspection exercise and that attempting to dig up the seeds to examine them, they found the soil was extremely hard and the seeds were rotting;
• Mr. McGee informed him that the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) had advised against planting before April 22, 2005, but he emphasized that he did not receive any information with respect to this advisory;
• he refused to sign the Crop Inspection Report prepared by Sam McGee on May 19, 2005, as he did not agree with Mr. McGee’s findings with respect to the cause of the damage;
• he reported, in a second telephone call to Agricorp, on the non emergence of an additional 200 acres of soybeans and 70 acres of corn, but no one from Agricorp came to inspect the fields pursuant to this call;
• at the time when he made the second telephone call, an Agricorp agent told him that April planted crops were not eligible for coverage for reseeding;
• all the soybeans that did not emerge were replanted at his expense and that the corn was not replanted because the cost of replanting the corn was prohibitive;
• he and his brother usually try to plant about 20 percent of their crop early, weather permitting;
• summer drought is a common peril in their region and crops planted after June 5 have lower yields than early planted crops;
• in his experience the highest yielding soybeans are those that are planted earliest because they have better emergence and a longer period with better soil moisture conditions;
• they have been planting soybeans early for 20 years and the early-planted soybeans have always produced the best beans;
• it is not his practice to consult with seed vendors about planting conditions as he and his brother have established practices that work well for their crops, weather and soil conditions permitting;
• he is not aware of any instructional or warning labels on seed packaging that advises of any hazards that may result from early planting;
• he is aware, however, of several farmers in his area who have similar early planting practices;
• a few other farmers in his area had problems with hard dry soils that prevented the emergence of germinated seeds;
• it did not appear that any of the soybeans failed to emerge because of low temperatures; and
• he and his brother have always purchased crop insurance.

Mr. Harold Devries responded to questions that

• he and his brother, Larry Devries share responsibilities for making farm management decisions;
• he telephoned Agricorp to report damage to 110 acres of soybeans on May 19, 2005;
• He confirmed that the Agricorp call center report of that call indicated the 110 acres as being planted on May 18, 2005 in error;
• the 110 acres were planted on April 22, 2005;
• Agricorp had recorded damage to 310 acres of soybeans and 70 acres of corn but Agricorp damage reports do not accurately capture the total damage;
• the initial appeal letter to the Tribunal did not capture the total acres that were reseeded at his own cost;
• after the second call to Agricorp on May 25 and getting a response that Agricorp would not come out to inspect damage, they did not bother to call again but the damaged acres were more than 310 of soybeans and 70 of corn;
• neither he nor his brother telephoned the OMAFRA Crop Line for advice on planting nor did they consult Agricorp Field Service Representatives or the seed vendors for advice;
• soybeans and corn were planted between April 15 and April 22, 2005 because the weather was fine for the two weeks proceeding April 22, 2005.
• the temperatures at the Vineland Station, Hamilton Airport as shown by Mr. Weschelmann in Exhibit 5, to be 8.09 ºC on April 15, 2005 and 7.9 ºC on April 22, 2005 may have been cooler than temperatures at his farm;
• he had informed Agricorp that planting was started on April 15, 2005; and
• he agreed that temperatures recorded at Hamilton Airport and Vineland Station between April 19 and April 22, 2005 were somewhat like the conditions at his farm.
• he and his brother reseeded all early planted acres of soybeans which totaled approximately 700 acres;
• the 70 acres of corn planted early is not under appeal;
• approximately 20 percent of the total soybean crop was planted between April 15 and April 22, 2005;
• as stipulated under the plan, all soybeans are insured;
• the early planted soybeans could not emerge through the hard crust of the earth;
• the May 19, 2005 inspection report was not signed because he was not in agreement with reasons given by the Adjuster for the non emergence of the soybeans;
• soil temperatures were taken on the dates leading up to planting and during planting;
• he is certain that the soil temperature was sufficient for planting in April 2005; and
• the contract of insurance obligates the insured to report damage.

Larry Devries

Mr. Larry Devries testified before the Tribunal that he and his brother Harold Devries farm in partnership. He manages the record keeping and accounting for their farm business. Mr. Larry Devries told the Tribunal that

• he had been farming for 41 years;
• the weather in April prior to, and during planting, was extremely favourable;
• April 22 is the day that the last of the soybeans under appeal were planted;
• the soil temperature during planting in April was between 55 ºF and 63ºF;
• soil temperatures above 50 ºF are suitable for planting corn and soybeans;
• soybeans are more susceptible than corn to cold water within the first 6 to 24 hours of planting;
• the month of April, 2005 was fairly moist and the beginning of May was cold and dry;
• the germinated soybeans could not emerge from the hard crusted soil;
• the few seeds that were able to emerge, grew into good plants;
• his brother Harold called Agricorp to report that 110 acres of soybeans had not emerged;
• at the time of the visit by the adjuster following the first call to the Agricorp Call Centre, Harold was told that the soybeans were not covered by insurance for reseeding;
• after the second call to the Call Centre, Agricorp stated that it was not coming to inspect the damage;
• there were 150 acres of corn that was planted from April 15 to April 22, however, it was not reseeded when it failed to emerge because it was too expensive to do so;
• damage to seed in additional acres was not reported because there was no reason to do so as Agricorp had informed them that there was no reseeding coverage for early planted soybeans;
• he and his brother replanted 700 acres of soybeans at their own cost;
• he was at the home farm during the period of April 15 to April 22, 2005 and the weather was very warm and the ground was dry until April 22 when it became colder and wetter;
• the weather reports for Hamilton, Hamilton Airport and Vineland Station that were submitted into evidence are not normally reviewed prior to planting;
• the weather reports were submitted to indicate the weather patterns at locations closest to their farm where the data is recorded but the weather at their farm was warmer than the temperatures indicated on the weather reports;
• he did not keep records of the weather conditions at the farm in Spring 2005;
• he accompanied Agricorp Adjuster Sam McGee during the inspection of the field of 110 acres of soybeans;
• Mr. McGee was in agreement that reseeding was necessary but Mr. McGee informed him that there was no insurance coverage for reseeding soybeans planted before April 25;
• neither he nor his brother received any information that Agricorp would not provide coverage for reseeding if soybeans were planted before April 25;
• he refused to sign the Crop Inspection Report prepared by Mr. McGee because he did not agree with Mr. McGee’s opinion with respect to the cause of damage;
• when conditions are favourable he takes advantage of the opportunity to plant some of the crop early;
• he made an amendment to the initial appeal when he retained counsel to represent him; and
• the amended appeal is a claim for reseeding benefits for 700 acres at a rate of $60 per acre.

In response to questions, Mr Larry Devries told the Tribunal that

• he did not consider the temperatures at the Hamilton Airport shown on Exhibit 6 to be 7.3 degrees C on April 22 at 11:00 am to be warm;
• he did not seek OMAFRA’s or Agricorp’s advice with respect to early planting in 2005 because it was a longstanding practice to plant early if possible;
• Agricorp had honoured previous claims for reseeding;
• seed vendors often provide seed for replanting at a reduced cost;
• they did plant on April 22 but stopped early in the afternoon; and
• He is not sure exactly what day the 110 acres of soybeans, which triggered the first call to the Agricorp Call Centre, were planted.

Gerald Winnicki

Mr. Gerald Winnicki testified that he is employed as Director of Sales and Agronomy at Clark Agri Service Inc. and that he holds a Bachelor’s Degree of Science in Agriculture from the University of Guelph. He testified further that

• he has provided expert witness testimony at previous Tribunal hearings;
• Clark Agri Service of Wellandport provides service to Smithville and Wellandport area farmers and that the Devries’ farm is located 10 miles from Wellandport;
• due to technological improvements and seed treatments, the date when soybeans and corn can be planted has become earlier over the past 20 years;
• OMAFRA extension services and field agronomists have promoted early planting of soybeans and corn due to recent advances in technology resulting in early planted crops giving higher yields;
• in general, farmers are taking advantage of opportunities to plant early and as a consequence, there is an industry wide trend toward early planting;
• seed vendors promote early planting and often provide seed for reseeding at reduced prices or, at no cost;
• he did not visit the Devries’ farm in spring 2005;
• although he cannot name the exact dates, he is aware of seed being purchased from April 15 to April 22, 2005 and that 2005 was an early year for planting in the Wellandport region.
• according to OMAFRA recommendations, soil temperatures of 55 ºF to 65 ºF are adequate for planting soybeans and corn;
• he grew up in the Niagara Peninsula area where the soil is heavy clay that is difficult to drain and there, when conditions are favourable, most farmers in the area take advantage of the weather to plant some crops as early as possible;
• he would plant soybeans from April 15 to April 22 if the soil temperature was above 50 ºF;
• he is aware of a farmer who reseeded 40 acres of April planted soybeans in 2005 and that the reseeded crop did not yield as well as soybeans planted earlier;
• he cannot recall that there was any reseeding of corn in the area in 2005; and
• field crop farmers do not commonly refer to weather reports such as those introduced into evidence.

In response to questions Mr. Winnicki told the Tribunal that

• he does not have any firsthand knowledge of the particular conditions at the Devries’ farm in spring 2005;
• soil temperatures of 10 ºC would be risky for planting soybeans;
• in the Niagara Peninsula area, planting can take place when soil temperatures are above 10 ºC;
• germination is delayed by cool wet weather;
• good quality, treated seed may stay underground for 4 weeks and still emerge and grow to produce excellent yields;
• production manuals often advise farmers to plant as early as possible given proper conditions;
• soil temperature and adequate moisture are important indicators of proper conditions for planting;
• soil temperature is usually cooler than current air temperature and that it may take several days for soil temperatures to heat up to current air temperatures;
• in the Niagara Peninsula area farmers with large acreages to plant must take advantage of favourable conditions for planting early;
• farmers can utilize long term weather forecasts for information on conditions favourable for planting;
• farmers can obtain advice on early planting conditions from OMAFRA, seed vendors, and agronomy service providers;
• early planting should be considered in the light of weather conditions, not specific dates for farming;
• he is aware of a farm in the Niagara Peninsula region where 410 acres of soybeans were planted early and yielded excellent results;
• most farmers in the Niagara Peninsula region did not plant early in 2005;
• he remembers that some soybeans were planted in the Niagara Peninsula region by April 15, 2005;
• in his estimation 2000 acres is a large operation; and
• Harold and Larry Devries did not purchase the seed for the soybeans produced in 2005 from Clark Agri Service.

Sam McGee

Mr. Sam McGee told the Tribunal that he works part time as an Adjuster for Agricorp and that he was the adjuster for the Devries’ farm. He informed the Tribunal that Agricorp has a process for reporting and adjusting claims and explained that

• Agricorp operates a call centre where it receives damage reports by telephone from insured clients;
• call center reports are faxed to his office and that he takes appropriate action after receiving the damage reports;
• in the case of the Devries’ claim, he telephoned and spoke to Mr. Harold Devries after receiving the damage report from the call centre;
• he told Harold Devries that Agricorp would not pay for reseeding of soybeans planted in April, 2005;
• he inspected the field of 110 acres on May 19, 2005 and found that there were a few plants that had emerged;
• when he attempted to dig up some of the seeds to examine them it was very difficult to do so, as the ground was extremely hard;
• Mr. Harold Devries and Mr. Larry Devries refused to sign the Inspection Report and that he discussed other acres of soybeans that they had planted which seemed to be emerging well enough, however he did not inspect them;
• he was told the 110 acres were planted on April 22;
• he was to notify Clarke Agri Service and other farm supply businesses that Agricorp would not pay reseeding benefits for April planted soybeans as soil temperatures were not adequate and as there was still a risk of frost and snow in April 2005:
• neither Mr. Harold Devries nor Mr. Larry Devries contacted him for advice on planting soybeans early in spring 2005 and that he cannot recall ever talking to the Devries about not providing a reseeding benefit for early planted soybeans;
• if conditions are favourable in the Niagara region, a good crop of soybeans can be produced from seeds planted early;
• soybeans are usually planted at Woodland Farms on or about April 25 each year and good crops often resulted;
• he cannot recall a year when Woodland Farms planted soybeans as early as they did in 2005;
• the Devries reported to him when he visited the farm that they had planted more than 110 acres of soybeans early but he could not recall how many acres had been planted early; and
• he lives approximately 10 km from Woodland Farms but did not plant soybeans as early as the Woodland Farms as he believed it was too early.

Mr. McGee responded to questions and stated that

• it was decided by way of a telephone conference which took place on or about April 15, 2005 with Agricorp Regional Manager, Mr. John Barkovic and Adjuster, Mr. Jim Loucks, that Agricorp would not cover reseeding of early planted soybeans;
• Mr. Barkovic informed him that he and Mr. Loucks should communicate the non payment advisory to local farm industry stakeholders;
• a contract of insurance is deemed to be in place unless it is cancelled by the insured before April 1;
• there was no formal amendment to the existing contracts of insurance as a result of the April 15 decision not to pay reseeding benefits for early planted soybean;
• he believes Mr. Harold Devries’ and Mr. Larry Devries’ testimony indicating that they planted early soybeans in favourable conditions;
• he cannot recall that soybeans had ever been planted so early;
• he cannot recall any previous decisions not to pay reseeding claims for early planted soybeans;
• he was not present at Woodland Farms to observe the condition of the fields during planting from April 15, to April 22, 2005;
• he was not in the country when Harold Devries made his second telephone call to the Agricorp call center to report damage for a reseeding claim;
• Mr. Jim Loucks, Adjuster, was assigned to cover his duties while he was away;
• Mr. Loucks made a follow up phone call to Woodland Farms after the second telephone report of damage and then informed Mr. Harold Devries that the soybeans were not covered for reseeding benefit because they were planted in April;
• the soybeans reported in Mr. Harold Devries second phone call were not inspected by anyone from Agricorp because they were not covered as a result of being planted in April;
• according to entries in his diary, one client’s claim for reseeding of corn planted in April was covered in 2005;
• there is no stipulation in the contract of insurance that states that soybeans planted before a specific date will not be covered by reseeding benefits;
• the decision not to pay reseeding benefits for April planted soybeans was communicated to several large seed vendors in his area;
• seed vendors had no obligation to inform farmers of Agricorp’s decision not to pay reseeding benefits for soybeans planted in April; and
• the 110 acre field that he inspected was damaged.

Peter Johnson

Mr. Johnson told the Tribunal that he works for OMAFRA and that he is the Provincial Cereals Specialist pertaining primarily to wheat, barley and oats. Mr. Johnson said that he operates the OMAFRA Crop Line, a toll free crop information service for advice on the production of Ontario field crops. Mr. Johnson stated that he had testified on previous occasions at Tribunal hearings. He testified further that

• Mr. Winnicki’s testimony with respect to Good Farm Management Practice is accurate in that soil temperature and moisture are important but must be put in perspective with the time of the year;
• the temperature of the soil at the point just under the surface is warmer in May than it is in April;
• soybeans planted in April are at risk for weather related perils;
• clay soils retain moisture and stay cold for longer periods of time;
• tile drainage does not work well in clay soils because water cannot drain through the soil toward the tile;
• soybeans are very susceptible to cold water within the first 24 hours after planting;
• the soil temperature should be at least 12 ºC for planting soybeans;
• with regard to the weather chart for Vineland Station, which indicates that is was 8 ºC on April 15, 2005, he does not believe that planting soybeans at that location on that date could be considered within the definition of using “Good Farm Management Practice”.
• planting soybeans on any day that the temperature is 8 ºC even if followed by warmer weather could not be construed as using “Good Farm Management Practice;”
• weather forecasts for temperature are more accurate than weather forecasts for rainfall;
• rainfall can lower soil temperatures by several degrees within one hour;
• soil temperature rises faster dependent on the darkness of the soil and the amount of cultivation;
• although corn can withstand colder temperatures at planting, the Crop Line advised against planting corn on April 22 in 2005;
• the best time to plant soybeans is usually on or about May 5, each year;
• regardless of date, however, soil temperature, moisture and air temperature must be favourable for planting soybeans;
• planting soybeans from April 15 to April 22 will be more risky than planting them at a later time;
• it is generally not acceptable to plant soybeans at that time;
• if soybeans are planted in April, it should be done between 12:00 noon and 6:00 p.m. when the soil is warmest;
• the Crop Line forecasts ideal dates and times for planting and that the message on the Crop Line in spring 2005 advised of ideal times for planting soybeans;
• in addition the Crop Line provides farmers with information related to research and development;
• OMAFRA extension staff also hold meetings across Ontario to provide information about crop production;
• he is familiar with farming practices in the Niagara Peninsula and estimates that in 2005, less than 1 percent of all soybeans produced in the Niagara Peninsula were planted in April;
• farmers with large acreages usually plant a portion of their crop early;
• seed manufacturers usually provide directions for assessing optimum conditions for planting, however, they do not label seed as being prohibited from planting on any particular date.
• seed manufacturers do recommend planting early but not necessarily mid April;
• it is least risky to plant soybeans under conditions where the air temperature is

25 ºC during the day and 15 ºC at night during May 5 to May 10 with no rain in that period until emergence of the growing seeds; and

• he would not have recommended the planting of soybeans during April 15 to April 22, 2005 but planting during that time frame would not necessarily preclude having a successful crop.

Mr. Johnson responded to questions stating that

• he was not present at Woodland Farms during soybean planting in spring 2005 and cannot dispute Mr. Devries’ testimony that the soil temperatures at Woodland Farms were in the range of 17 ºC to 18 ºC;
• he has seen Mr. Harold Devries at crop production information meetings in the area;
• if soil temperatures are between 13 ºC to 17 ºC in April; he recommends planting limited acreage between 12:00 noon and 6:00 pm;
• the weather conditions vary greatly between early and late April;
• soybeans germinate at 12.5 ºC, corn germinates at 10 ºC;
• he acknowledges that Mr. Harold Devries’ and Mr. Larry Devries’ lengthy experience in farming in the Niagara Peninsula contributes positively to their decision making;
• early planted soybeans are among the highest yielding;
• he agrees with Mr. Winnicki that farmers with large acreages are forced into extending the primary planting window of May 5 to 10 to take advantage of opportunities to plant early;
• there are occasions when April planted soybeans have produced excellent yields;
• Good Farm Management Practice should always be observed;
• according to the weather report charts for Vineland Station, Hamilton and Hamilton Airport, there were 11 days of wet cold weather following April 20, 2005;
• the vigour of the seed is reduced if the soybean receives cold water particularly in the first 24 hours after planting;
• reduced vigour impairs the ability of the germinated seed to emerge from the soil and that seeds that remain under cold wet soil are also more susceptible to disease;
• according to the weather charts for Vineland Station, Hamilton and Hamilton Airport, it can be predicted that soybeans planted on April 15 would have had more difficulty growing than soybeans planted on April 17, 2005; and
• he was not present at Woodland Farms during this period in April 2005 to observe the conditions.

Mr. Good in his closing arguments stating that Mr. Harold Devries and Mr. Larry Devries were the only witnesses who were present at the farm during planting in April 2005. He reminded the Tribunal that Mr. Winnicki worked in the same area where the Woodland Farms are located and although he did not visit the farm at any time in April 2005, he was closer to the farm than Mr. Johnston.

Mr. Goode said that the weather charts submitted into evidence and evaluated by the witnesses were not available during April 2005. He submitted that farmers are very busy in spring preparing for planting and that any information gathered by farmers is done so in immediate preparation for the business of farming, not for the purposes of presenting an appeal before the Tribunal.

Mr. Good argued that farmers do not carry out their business by strictly observing calendar dates. He said that farmers must rely on their observations of conditions and experience to know when to take appropriate action. Mr. Goode said that the best evidence before the Tribunal was the testimony of Mr. Harold Devries and Mr. Larry Devries and that the expert opinions of Mr. Winnicki and Mr. Johnson supported the planting of the soybeans in soil that was 55 ºF to 63 ºF. He reminded the Tribunal that the soybeans were planted in soil that ranged in temperature from 13 ºC to 17 ºC and that Mr. Harold Devries and Mr. Larry Devries had at least 10 years experience planting soybeans. He added that Mr. Winnicki had testified that soybeans planted early in 2005 had good yields.

Mr. Good further submitted to the Tribunal that Mr. Harold Devries reported no further claim for damaged seeding after his second telephone call to Agricorp because there was no purpose in doing so, as he had been informed that there would be no coverage for April planted soybeans. He explained that this is the reason why Agricorp had no Call Centre records of damage to additional acres. He stated that the evidence of Harold Devries and Larry Devries was that 700 acres of soybeans were replanted at their cost. He pointed out that Mr. Johnson had acknowledged that it was possible to plant soybeans under the conditions described but that it was not recommended.

Mr. Good told the Tribunal that the contract of insurance stipulated dates after which planting could not take place, however, there is no stipulation governing the dates by which planting may begin.

Mr. Good reminded the Tribunal of Mr. McGee’s testimony with respect to accepting a contract of insurance as being in place if it is not rejected in writing prior to April 1. He maintained that the decision not to cover April planted soybeans was made on or about April 16, which is after the beginning of coverage under the contract of insurance. He did not tell the Tribunal that amendments to the contract cannot be unilaterally changed, but that was done according to McGee; nor was it acceptable to communicate any amendments to the contract by contacting the seed vendors who had no obligation to notify insured clients of the amendment. He said that the contract of insurance does not include a clause prohibiting planting before a certain date.

Mr. Good told the Tribunal that the principle of contra proferentem must be observed with respect to the ambiguity of the amendment to the contract in favour of Woodland Farms which had a long history of subscribing to crop insurance. Mr. Good stated that the facts of the matter indicate that the soybeans were planted in optimal conditions. He told the Tribunal it was a longstanding practice at Woodland Farms to plant some of the crop early when conditions were favourable and that Agricorp had no knowledge of the planting practices at that farm.

Mr. Good reminded the Tribunal that Mr. Johnson, an expert witness had recognized that farmers with large acreages must take advantage of favourable conditions to plant early and submitted further that the reseeding benefit under the contract covered the insured at a rate of $60.00 per acre. He requested that the Tribunal order that Agricorp pay a reseeding benefit for 700 acres to Woodland Farms for soybeans planted in spring 2005 so that the claim should be adjusted in the amount of $42,000.

Mr. Wechselmann, on behalf of Agricorp, stated in summation that Good Farm Management Practice and the number of acres reported as damaged are the two issues that must be decided by the Tribunal. He stated that Mr. Harold Devries had not reported more acres than 110 acres of soybeans, and that was recorded at the Centre on May 19, 2005 and a further 200 acres of soybeans were recorded at the Call Center on May 25, 2005.

He stated that the only documented evidence about damage was for 310 acres of soybeans and that there is a discrepancy between this and the 700 acres being claimed. He told the Tribunal that Mr. Harold Devries did not submit any temperature data to the Tribunal that was specific to the conditions to be found at the farm. He argued that documentation is the most reliable source of evidence and that the temperature charts entered into evidence indicate that soil temperatures were below 10 ºC. He told the Tribunal that although Mr. Larry Devries kept the books for the farm, he kept no records of the soil temperatures and, consequently, any reference to soil temperatures not recorded should be ignored including reference to the Fonthill temperature chart not introduced as evidence.

Mr. Wechselmann told the Tribunal that Mr. Harold Devries testified that he did not consult the resources available to him prior to planting, such as, OMAFRA or Agricorp field staff. He stated that Mr. Harold Devries and Mr. Larry Devries were obligated to inform themselves with respect to Good Farm Management Practice. He referred to Mr. Winnicki’s testimony that it was risky to plant soybeans so early in the Niagara Peninsula area. He reminded the Tribunal that Mr. Winnicki indicated that most farmers in the Niagara Peninsula area did not plant early.

Mr. Wechselmann submitted that the date at which it was suitable to plant soybeans did not constitute an amendment to the contract of insurance, that what is in issue is the adoption of Good Farm Management Practice called for under the contract of insurance. He reminded the Tribunal that Mr. Johnson had said that planting soybeans in late April is not recommended and that he recommended that soybeans be planted after May 5^th.

Mr. Wechselmann also submitted that there was no ambiguity with respect to the interpretation of the contract so that it should be decided in favour of the appellant. He argued that the exercise of Good Farm Management Practice is an important component of the contract of insurance. He referred the Tribunal to the contract of insurance that defines Good Farm Management Practice. He stated that the contra proferentem rule only applies in cases of ambiguity and that he feels there is no ambiguity in the contract.

Mr. Weschelmann referred to Section K, item 4 on page 10 of the contract, which stated that improper conduct, or improper procedure is deemed to have occurred if the insured fails to follow good management practice. He also referred to the definition of Good Management Practice on page 6 of the contract, which states in part that

“good farm management practice includes, but is not limited to:

a. using approved, reasonable methods or techniques of preparing and maintaining soil, planting, fertilizing, crop protection (including but not limited to, controlling weeds, insects, and disease), and harvesting in a manner that ensures reasonable yields;

b. making every reasonable attempt to ensure crop planting, crop protection and crop harvesting are adequate to provide a reasonable yield;”

He said that Mr. Harold Devries and Mr. Larry Devries were in contravention of the contract with respect to Good Farm Management Practice and their failure to avail themselves of the resources that were available to them. Mr. Wechselmann told the Tribunal that the contract of insurance on page 15 under Crop Conditions, item 10 places the onus of proof that losses were not sustained through negligent farm practices was upon the appellants. He requested that the Tribunal dismiss the appeal.

Mr. Good submitted finally, that the decision to deny a claim was made before Sam McGee went to the farm to inspect the damage. He stated that he felt that the Devries had complied with good management practice according to the definition and that the issue of damage was not cold or wet at time of planting but the drought and crusted soil, which followed. He stated that the contract is ambiguous on a fixed date for denying reseeding benefits and the evidence of the Devries is that early planting of soybeans has served them well.

Mr. Weschelmann concluded by stating that Agricorp should not be held liable for risky decision making by Devries.

The Findings

From the evidence submitted the relevant facts as enumerated hereunder emerged.

1. The contract of insurance between Agricorp and the appellants did not in any way stipulate that if planting commences on or before a specified date it would be devoid of insurance coverage:

2. In a telephone conference call made on or about April 15, 2005 involving Mr. McGee, part-time adjuster for Agricorp, Agricorp Regional Manager, Mr. John Barkovic, and Adjuster, Mr. Jim Loucks, it was decided that Agricorp will not honour or recognize re-seeding claims for early planted soybeans. This decision was relayed to seed vendors who had no obligation to communicate it to the insured and did not in fact do so.

3. The appellant and his brother were not neophytes in the farming business. They had been involved in farming for approximately 40 years during which time they had used their experience in determining when and how to plant. For example:

a) they prepared their planting acreage with the appropriate fertilizer each fall;

b) that early planting resulted in the production of higher yields;

c) in 2005, around mid April, the appellant, as was his custom, took soil temperature readings by utilizing a probe at a depth of 1.5 inches at various times during the day and found that the temperature of the soil was as warm as 63 ºC” during the day and about 6 degrees lower during the night, as a consequence, they commenced to plant their beans on April 15 and continued until April 22.

After April 22, 2005 the weather turned cold and wet with some snow that melted quickly. Immediately thereafter, on or about May 10, 2005, the weather became very dry so that the germinated plants could not emerge through the hard surface.

4. The unrefuted testimony was that due to technological improvements and seed treatment the date when soybeans can be planted has become earlier and that generally farmers were taking advantage of opportunities to plant early.

5. OMAFRA extension services and field agronomist had promoted earlier planting of soybeans but within an optimum time frame of May 5 to 10 and recognizing that large acreage producers must plant early for best overall yield results.

6. All witnesses testified that early-planted soybeans are usually the highest yielding.

7. All witnesses testified that soil temperatures above 50 degrees “F” were suitable for planting soybeans and the testimony of the Devries was the temperature at the time of the planting of their soybeans was 63 ºF during the day and about 5 degrees lower during the night and it was the testimony of Agricorp’s witness, Mr. McGee, that he believed the testimony of Harold and Larry Devries that they planted soybeans early in favourable conditions.

8. There is nothing in the evidence submitted to indicate that the appellants were reckless, risky or haphazard farmers. On the contrary, all the evidence pointed to a farm, the Woodland Farms, that engaged in Good Farm Management Practice.

ORDER OF THE TRIBUNAL

Based on the findings as outlined above, the Tribunal hereby orders Agricorp to pay to the appellant, Larry Devries, (Woodland Farms) an adjusted claim in the amount of $42, 000.00 for the re-seeding of 700 acres of soybeans at the rate of $60.00 per acre