Agriculture, Food and Rural Affairs Appeal Tribunal

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

APPEAL: MacLean et al. v Agricorp 2006 ONAFRAAT 30

STATUTE: Crop Insurance Act

HEARING: August 2, 2006

DATE OF DECISION: August 25, 2006

NEUTRAL CITATION: 2006 ONAFRAAT 30

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: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by:

Barton MacLean, Napanee Dale Huyck, Bath Gary Sonneveld, Bath Peter Van Order, Napanee Stan Mastin, Roblin Dan Mastin, Marysville Roger Brant, Deseronto Barry McCracken, Bath

from decisions of Agricorp regarding the adjustment of their claims for their 2005 forage crops under Regulation 380/97 and the Forage Rainfall Plan Insuring Agreement.

Before: Rod Stork, Chair; John O’Kane, Vice Chair; Corry Martens, Member

Appearances: Fred Thomson, representing Agricorp Barton MacLean, appellant, representing all appellants Stan Mastin, appellant Dan Mastin, appellant Roger Brant, appellant Dale Huyck, appellant Barry McCracken, appellant Tim Borho, witness for the respondent, Agricorp Bill White, witness for the respondent, Agricorp

DECISION OF THE TRIBUNAL

This appeal was heard in Selby, Ontario on Wednesday, August 2, 2006. The eight appellants sought a higher payment of crop insurance claims related to their 2005 forage crops from Agricorp. Mr. Barton MacLean was authorized to represent the appellants not in attendance.

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).

Opening Statements

Mr. MacLean outlined that in the Quinte area in 2005 there was a severe lack of rain. He suggested the rainfall statistics were deceiving because about 100 mm of rain fell in the last 24 to 26 hours of the insured period but it was of little assistance to the forage crop. He advised that 14 counties that Agricorp insures had less than 10% of the historic rainfall for the month of May. He advised that Agricorp addressed an issue with rainfall stations across the Province but that was of no benefit to the Appellants and they saw it as an annoyance. He also made reference to an issue of the data from the Camden East rainfall station which was to be the subject of a future hearing.

Mr. Thomson indicated that the case on appeal was whether the appellants had been properly treated by the insurance plan. He suggested there were three issues raised by the Appellants: (1) Credibility of rain station data; (2) design of the program; and, (3) the 2005 season. Mr. Thomson confirmed that the 2005 season was one of the driest in memory and that forage was hard to find and expensive. Farmers who bought drought insurance turned to Agricorp when they were in need. However, he suggested that they had purchased a specific insurance product that was not an all encompassing coverage. He suggested that each farmer knew the terms and conditions of the plan and each had agreed to it. He suggested that Agricorp had fulfilled its obligations under the plan. He also advised that in any case where the data from a rainfall station is in error, the Plan permits Agricorp to substitute data to make it right.

The Evidence

Two sets of documentary evidence prepared by the appellants and one set of documents prepared by Agricorp were provided to the Tribunal in advance of the hearing. At the commencement of the hearing the documents of the Appellants were marked as Exhibit A and the documents of the Appellant Daniel Mastin were marked as Exhibit B. The document brief of the Respondent was marked as Exhibit C.

Appellants’ Case

Mr. Barton MacLean told the Tribunal that there was a severe lack of rainfall early in the 2005 forage growing season and that most of the rain later in the season arrived in the last 25 or 26 hours of the insuring period and the adjusted results by Agricorp did not reflect the crop results of the appellants.

Mr. MacLean pointed out that on August 30, 2005 rainfall was recorded at the South Fredricksburgh rain station site used by Agricorp but not at other nearby rainfall collection sites. He pointed out that Environment Canada data showed that the prevailing wind that day was from the south-southeast. He suggested the rain could not have passed the Adolphustown rain station and the Environment Canada site before getting to the more northern sites that received no recorded rainfall that day. Mr. MacLean submitted that if the rainfall attributed to August 30, 2005 at the South Fredricksburgh rain station actually fell on August 31st, the claim payouts of the four appellants tied to that station would be higher, due to Agricorp’s daily rainfall cap. He asked that Agricorp describe the protocol for ensuring that rainfall was accurately attributed to the date on which it fell.

Mr. MacLean said the second issue he wished to address affected all eight appellants. He stated that Agricorp had not used a weighted average monthly rainfall methodology to adjust their claims, which he said it had done with all previous forage programs. He said this affected the payout percentages and if a weighted average had been used the growers attached to the Tyendinaga station would have received a 9.4% payout rather than 2%; those tied to the Adolphustown station would have received a 29.8% payout rather than 19.6% and those selecting the North Fredricksburgh station would have received a 32.2% payout rather than 18.8%.

Mr. MacLean referenced a document prepared by Mr. John Thompson, Prince Edward County, Ontario which compared the claim payouts which could be achieved under the 2005 Forage Rainfall Plan to what they would have been under SIMFOY, the previous insurance plan offered by Agricorp, over several years. He said this showed the impact of dropping the weighted rainfall methodology on Ontario forage producers. He explained that under SIMFOY, rainfall received in May was weighted 20% higher than rainfall falling in June and July, and that rainfall in August was weighted 20% lower.

Mr. MacLean also pointed to the results of forage research trials in Elora and Huron Park which demonstrated that the first cutting of hay yielded the most hay.

Mr. MacLean testified that when Agricorp decided to drop its SIMFOY plan and introduce a new forage plan it held several meetings with representatives of the forage sector and said that he attended many meetings as a representative of Dairy Farmers of Ontario. He pointed the Tribunal to minutes of a meeting held July 3, 2002 where there had been discussion of changing the monthly weightings. He said there was no discussion of totally removing the monthly weighting system. Mr. MacLean said Agricorp had agreed to a follow up meeting later in 2002, but to the best of his knowledge it had never been held. He said communication between Agricorp and growers had been confusing since then and it was not clear when Agricorp had changed the methodology of weighting rainfall.

Mr. MacLean pointed the Tribunal to two factsheets published by Agricorp entitled 2004 Forage Rainfall Plan and 2005 Forage Rainfall Plan. He pointed to a sample calculation included in both factsheets which included “weighted actual rainfall as a percentage of historical rainfall” as one of the steps in the calculation. He indicated that this supported his position that the change in methodology was not communicated to forage growers. Mr. MacLean told the Tribunal that Mr. Fred Thomson had acknowledged at a public meeting that forage growers had not been notified that monthly rainfall would not be weighted. He said that this had never been explained to Mr. Huyck or Mr. Brant who purchased forage insurance for the first time in 2005. Mr. MacLean pointed out that the contract of insurance allows Agricorp to make changes to its contract but that it had to communicate those changes to the insured growers and give those growers 15 days to question the changes. He submitted that Agricorp did not communicate the change in the Forage Rainfall Plan related to the monthly weighting of rainfall data to its clients.

Agricorp had no cross-examination.

In response to questions from the Tribunal, Mr. MacLean clarified the calculations he used to determine the impact of not using weighted monthly rainfall data on the claim payout at the Tyendinaga rain station. Mr. MacLean also indicated:

• Messrs. MacLean, McCracken, Sonneveld and Huyck were attached to the North Fredricksburgh station; Messrs. Brant, Dan Mastin and Stan Mastin were attached to the Tyendinaga rain station and Mr. Van Order was tied to the Adolphustown rain station.
• Agricorp provided him with rainfall data.
• Data showing the impact of different weighting systems on expected payout was prepared by Agricorp for one of the industry meetings he attended.
• He was never told that weighting would not be part of the 2005 Forage Rainfall Plan. No one he knew was aware of the change in methodology until Agricorp held information meetings in November and December 2005.
• Historic rainfall data included 35 years of data.
• He was visited by an Agricorp representative in 2004 on the Forage Rainfall Plan but not in 2005. He recollected they discussed the fact that premiums were smaller than they had been for SIMFOY.
• In 2005 he received a factsheet and a renewal notice. He understood the factsheet to mean that a higher weight would be put on rainfall that fell in May.
• Each appellant received some payment in 2005 – the issue was the amount of the payments.

Mr. MacLean added that the documentary evidence provided by Agricorp included a record of a telephone conversation between Agricorp staff and Mr. McCracken which suggested that as of 3:22 p.m. August 30, 2005 it had not started raining but that a storm was expected.

Agricorp Case

Mr. Tim Borho testified that he was an Account Lead for the Livestock Sector and was responsible for administering the Forage Rainfall Plan. He said this included introducing changes to the plan, ensuring letters are sent at the proper time, updating factsheets and other material sent to clients, reviewing rainfall data and ensuring claims are processed in a timely fashion. He said he was raised on a dairy farm, studied Crop Science at the University of Guelph and raised dairy heifers and grew forage for six years before taking a position with Agricorp in August 2005.

Mr. Borho said the Forage Rainfall Plan started as a pilot project available in three counties in 2000 and in four counties in 2001. He stated it was made a permanent program in 2003 and the old forage plan was discontinued in the counties where the Forage Rainfall Plan was offered. He said more counties were added to the new program in 2004 and that in 2005 it was offered province-wide and SIMFOY was completely discontinued. Mr. Borho indicated that the pilot program originally used a monthly weighting system but it was discontinued in 2003. He said forage growers who participated on the pilot project were informed at that time, but as none of the appellants were on the pilot program, they would not have been informed. He said they were never eligible to purchase the product in the pilot program.

Mr. Borho told the Tribunal the Forage Rainfall Plan derived what forage yield could be, based on direct measurements of rainfall. He said in general higher rainfall resulted in more forage but there was a point at which more rainfall was not helpful. He explained that under the plan, each insured grower selects a rain station in his area and his claim is calculated using the rainfall measured at that station. He said drought is the only peril covered by the Forage Rainfall Plan. He said forage yield could also be affected by the species of hay grown, the mix of legumes and grasses, the number of cuts or intensity of grazing, winterkill, temperature, hours of sunlight and farm management.

Mr. Borho stated that the customer picks the rain station that is used to calculate their insurance claim and they have the option of selecting a rain station in their own geographic township or any adjacent geographic township. He said Agricorp uses geographic townships because the borders do not change, whereas municipal boundaries do change. He said Agricorp did not have rain stations in every geographic township but that it tried to place them near its customers. In 2005 Agricorp had 350 rain stations across the Province. When a customer first enrols they receive a farm visit from an Agricorp representative who explains that plan and how the value of the forage crop is established and what options are available to the customer.

Mr. Borho testified that under the Forage Rainfall Plan all rain that falls between May 1st and August 31st is measured. He said if there was more than 70 mm of rain falling on one day, the amount was capped at 70 mm and the additional rainfall was not counted. He said there was also a monthly cap so that if more than 125% of the historic rainfall fell in any month, the amount above 125% was not counted in the calculation of insurance claims.

Mr. Borho said Agricorp purchased rainfall data from the Ontario Weather Network (OWN), a division of the University of Guelph. He said OWN provided rain gauges, maintained the equipment, erected it each season and collected data from the stations twice per month. He said it was obliged to send weather data to Agricorp regularly throughout the insuring period. He said OWN was selected as the data provider as Environment Canada would not stand behind its data and it was slow to provide data, and because conservation authorities were not as diligent in the maintenance of their equipment as OWN. He said Agricorp did rely on Environment Canada for long term historic data as it was the only entity that had data stretching back 35 years.

Mr. Borho summarized the core features of the forage rainfall insurance plan as:

• Area based;
• Rainfall data was collected from a single site;
• Rainfall data was professionally collected;
• The insured period was defined;
• All rainfall events were recorded within the defined period.

Mr. Borho stated that Agricorp receives its authority to offer crop insurance under the Crop Insurance Act and the Agricorp Act. He explained that federal and provincial governments approve each plan offered by Agricorp and pay 60% of the premiums. He said Agricorp could not change a plan without the approval of both governments or they would withhold their share of premiums.

Mr. Borho explained that insurance claims are calculated in September once all the rainfall data was available. He said if the total rainfall measured at a rain station was less than 80% of historic rainfall for the county, a claim was paid. He said Agricorp took the difference between 80% and the percentage of actual rainfall compared to historic rainfall received, multiplied it by the coverage level purchased and doubled this figure to cover added transportation.

Mr. Borho said early 2005 was cooler than normal and in some areas also drier than normal; it was warmer in May but there was still no significant precipitation until July; and August was wetter than usual. He indicated that areas affected by Hurricane Katrina received rain on the last two days of the insurance period. Mr. Borho said the weather conditions led to slow growth and reduced first cut yields, and while there was some recovery late in the season it was not enough to make up for the dry spring.

Mr. Borho told the Tribunal that Agricorp had administrative problems with the Forage Rainfall Plan in early 2005 when it added 125 new rain stations and informed customers in the geographic townships where the new rain stations were placed, but neglected to notify growers in adjacent townships. He said an insurance renewal package which included historic rainfall data and a newsletter was sent to all customers who had purchased forage insurance in 2004. Mr. Borho said none of the appellants had the option of a new rain station in 2005.

Mr. Borho said that 1,100 of Agricorp’s 1,650 forage customers received a claim payment in 2005 when it first calculated the payments due. He said when Agricorp realized its communications error, it decided to reassign affected customers to the best paying rain station that they would have been able to select. He stated that customers that were informed of the new rain stations, were new customers in 2005 or had switched rain stations on their own initiative were not reassigned. He explained this was why Mr. MacLean was reassigned to the Adolphustown rain station, which gave him an additional claim payment of $54.36, and Mr. Brant, who was a new client in 2005, was not reassigned. He said Mr. Brant had all his options explained to him as a new customer in 2005.

Mr. Borho said OWN collected data from rain stations the first and third week of each month and also verified that the equipment was functioning properly. He said the data collected was a time and date record of when a scale in the gauge tips, a record of the number of tips counted and a manual measurement of rainwater collected. He said three systems were used so that records would be available if one system failed and that Agricorp could interpolate data from nearby rain stations in the event all systems failed. He said he understood the North Fredricksburgh rain station operated properly in 2005.

Mr. Borho acknowledged that there could be a small amount of evaporation in the manual system. He said the electronic gauge was widely used by OWN and other organizations. He said once OWN staff collected the data it was sent to Ridgetown for analysis before being sent to Agricorp. He said that Agricorp’s contract with OWN specified the number of visits to the rain stations and its expectations as to how data would be handled.

Mr. Borho indicated that when OWN makes its bi-monthly visits to each rain station the protocol OWN follows is based on the terms and expectations established by Agricorp. He explained that his understanding of the site visit protocol was:

• The station data is recorded;
• The devices are checked for any abnormality;
• At the lab, the data is compared for any discrepancies;
• The data is then sent to Agricorp.

Mr. Borho also indicated that:

• The old SIMFOY program considered more factors than the Forage Rainfall Plan and the new plan had lower premiums so lower claims payments were to be expected.
• It was a good business practice for Agricorp to consult with its customers on major policy changes, but that it had no obligation to do so.
• The research results on solid stands of alfalfa showed that the first cut was normally the largest; most forage growers include grasses in their species mix as this improves the first cut.
• The claim payment example in the Agricorp factsheets used a 1:1 weighting for monthly rainfall.
• He recalled a meeting in Picton, Ontario where Mr. Fred Thomson indicated he did not know when customers had been informed that monthly weighting used in the pilot project was not used in the final version of the Forage Rainfall Plan.
• He had since checked Agricorp’s records and discovered its 2003 factsheet clearly showed the monthly weighting was being dropped. Agricorp fulfilled its obligation to notify its customers of the change in the program.
• Agricorp is not allowed to just not count the rainfall on the last day of the insuring period that resulted from Hurricane Katrina. It could not change a term of a contract while the contract is in force.
• Weighting of monthly rainfall was only a part of the Pilot Project for the forage rainfall insurance plan and the customers under that Pilot Project were advised of the “change” in the plan when rainfall weighting was removed.
• New customers under the forage rainfall insurance plan once it became a permanent plan were not advised about the rainfall weighting “change” because it had never been part of the plan for them.
• Agricorp’s policy is to advise its customers of what is, not what is not.

In response to questions of the appellants, Mr. Borho indicated:

• Under the SIMFOY plan Agricorp used data provided by Environment Canada.
• He did not dispute the accuracy of Environment Canada data but pointed out that the information on Environment Canada’s website had a disclaimer which indicated it would not stand behind the data.
• OWN’s time/date recorders and tip counters were battery operated. If the battery failed, manually collected data could be used.
• Agricorp had the right to substitute simulated data and it was not its practice to inform clients when this was done.
• There was no change in monthly weighting of rainfall in 2004 or 2005; that change was initiated in 2003 and affected customers were informed at that time. There was no change in the plan between 2003 and 2004.
• In 2003, forage growers in Lennox-Addington County and Hastings County were insured under the SIMFOY program; in 2004 they were insured under the Forage Rainfall Plan.
• In 2004, existing forage customers were sent a letter saying that SIMFOY was discontinued and a new plan was being offered in 2004. There was no change to SIMFOY, a completely new plan was offered.
• Forage growers in Lennox-Addington would not have been notified of the changes in the Forage Rainfall Plan in 2003 as it was not offered to them until 2004.
• The Forage Rainfall Plan would have been explained to them when they purchased their insurance policies.
• Mr. Fred Thomson made the same comment regarding notification of changes to the pilot project at least twice. Agricorp had three meetings in a row and he did not look up the 2003 factsheet until he returned to the office.
• He agreed that 15 days without any rainfall seemed like a long stretch. The OWN data showed there were 15 consecutive days with no rainfall at the North Fredricksburgh rain station.
• The OWN equipment continues to collect rainfall data past midnight on August 31st but the records are date and time stamped and Agricorp does not count rainfall that is collected past midnight on August 31st.

In response to questions from the Tribunal, Mr. Borho indicated:

• There were 350 rain stations in 2005.
• Under the pilot project, growers had the choice of SIMFOY or the new plan. In 2003 Agricorp offered only the Forage Rainfall Plan in areas that had previously had the pilot project. The new plan was gradually offered across the province. In 2003 and 2004 some areas used SIMFOY and some areas used the Forage Rainfall Plan.
• No grower was automatically switched to the new program. Once they received a letter telling them SIMFOY was discontinued they had to call Agricorp if they wanted to enrol in the new plan.
• Every grower who called Agricorp about the new Forage Rainfall Plan received a farm visit from an Agricorp representative.
• The wording in the 2004 and 2005 factsheets probably should say capped rainfall rather than weighted rainfall. Probably it was an error that was not caught.
• To him the wording in the factsheet indicated there was some weighting applied to each month, but it was not defined and when he worked through the example it was clear that it used equal monthly weighting. Individuals might interpret the wording differently.
• There was weighting used in the SIMFOY plan; he understood it was more sophisticated than that used in the pilot project.
• OWN keeps records of the rainfall data collected.
• There were no reports of malfunctions at the North Fredricksburgh rain station.
• Most growers include grass in their hay mixture. One reason is to increase the volume of the first cut.

Mr. Bill White told the Tribunal he had worked for Agricorp for 18 years and had acted as an agent, an adjuster and a salesman. He testified that he had sold forage insurance to each of the appellants. He said he met with each appellant and filled out their application forms with information they gave him. He explained that he worked out the total value of forage that could normally be produced by each grower and that was the maximum amount of insurance coverage they could purchase. He said the growers chose a figure between $2,000, which was the minimum coverage, and the maximum coverage which he had calculated, and then they paid a premium which was 3.56% of the coverage level chosen. Mr. White explained that customers selected a rain station from a map that he provided and that they could pick a station in their own geographic township, or an adjacent township. He said he always recommended that they pick a station that reflected the weather conditions on their farm. Mr. White identified each of the forage insurance applications signed by each of appellants as located in Exhibit C at Tab 2 and confirmed that after completing each application he witnessed each appellant sign the application and collected a premium cheque from them.

Mr. White said the Forage Rainfall Plan was not the same plan as SIMFOY. He said he explained the new program to the appellants when he sold them the insurance and that he believed they understood they were purchasing a new insurance product. He said none of them had ever indicated to him that they did not understand the insurance policy.

Mr. White indicated he did not discuss monthly weighting of rainfall with the appellants as there was no monthly weighting in the Forage Rainfall Plan. He said he had not sold the Forage Rainfall Plan in its pilot stages so was not aware that there was monthly weighting in the first few years of the pilot project. He stated that any explanation he made of the Forage Rainfall Plan used the example provided in the factsheet, which uses equal weighting of monthly rainfall.

In response to questions by Mr. MacLean, Mr. White indicated:

• The premium for the Forage Rainfall Plan was lower than the SIMFOY premium because SIMFOY had a surcharge discount factor.
• He was aware the former SIMFOY program used weighted monthly rainfall.
• Lennox-Addington County was not part of the pilot project.
• He was not aware that the pilot project had included weighting.

In response to questions from the Tribunal, Mr. White said:

• The pilot program was not available in the appellants’ area.
• He thought the term “weighted actual rainfall as percentage of historical rainfall” could mean anything, including equal one to one weighting or a range of weighting.

In response to a question from the appellants, Mr. White indicated he farmed in Hastings County.

Summations

Mr. MacLean submitted that there was sufficient evidence brought forth to show that there was a distinct possibility that a battery malfunction occurred at the North Fredricksburgh rain station and Agricorp relied on simulated data from mid August to August 31st. He argued that if the data was simulated there was no way of knowing if rainfall occurred on August 30th or August 31st. He asked the Tribunal to rule that all the rainfall attributed to these two dates fell on the same day. He said a daily cap would then apply and the total rainfall for that station would be 198.4 mm. He asked that the claims be readjusted using that figure.

Mr. MacLean said there was conflicting and confusing testimony regarding weighting of monthly rainfall totals. He said because Lennox-Addington County was not part of the pilot project, the appellants did not receive the document which explained there was a change to the weighting that was used in the pilot program. He said he interpreted the word weighting in the 2004 and 2005 factsheets to mean a different weight for different months and took it to mean the 1.2 in May, 1 in June, 1 in July and 0.8 in August as that was the weighting used in the pilot project. He asked the Tribunal to order Agricorp to use this weighting system in calculating the appellants’ claims. He said that using the weighting system he calculated the rainfall to be 215.64 mm for the Tyendinaga rain station, 195.48 for Adolphustown and 192.8 mm for North Fredricksburgh. He submitted that Agricorp had made a mistake and it was up to the Tribunal to correct it.

Mr. Thomson said he agreed that 2005 was a difficult year as forage growers had not recovered from the BSE crisis, commodity prices were low and hay prices were high. He said the Forage Rainfall Plan paid out $8.5 million which was more than SIMFOY had ever paid in a single year. He said he was aware that it still did not meet the expectations of all growers. Mr. Thomson said other stakeholders expected Agricorp to fulfill its obligations under legal contracts.

Mr. Thomson submitted that the growers had made allegations against the rainfall data collected by OWN but had not substantiated these allegations. He submitted that the change to equal monthly weighting in the Forage Rainfall Plan had occurred almost two years before any of the appellants purchased insurance under the plan. He said the sample calculations in Agricorp’s 2004 and 2005 factsheets clearly showed rainfall collected in each month was equally weighted. He argued that it was unlikely that Mr. White would have incorrectly explained the new program to Agricorp’s customers. He said Agricorp had nothing to gain by denying any of their customers the full claim payment deserved. Mr. Thomson asked the Tribunal to find in favour of Agricorp

Findings

The issue before the Tribunal is should the appellants’ crop insurance claims be adjusted upward due to:

1. The reliability of rainfall data collected at the North Fredricksburgh rain station
2. Agricorp’s refusal to use a weighted average rainfall measurement system

In considering the request that the Tribunal order that all rainfall recorded at the South Fredricksburgh rain station on August 30, 2005 and August 31, 2005 be counted as one day the Tribunal looked at evidence on the reliability of that rain station.

Mr. McCracken pointed out that it was unusual that no rainfall would be recorded at the North Fredricksburgh station from August 13, 2005 to August 29, 2005. Mr. Borho indicated there was no reason to doubt the data provided by OWN. The Tribunal notes that there are other stretches with no rainfall recorded in the rainfall charts provided for the three rain stations in question although none as long as 15 days. The appellants speculated that there may have been a weak battery or data corruption in this time period but the Tribunal finds that there was not enough evidence to support a finding that the rain station was malfunctioning. While the Tribunal agrees that the lack of any measured rainfall for 15 days is odd, it was not convinced that there was a problem with the rain gauges at the North Fredricksburgh rain station.

The Tribunal was not convinced that there was sufficient evidence to support the appellants’ argument that the rain station data was unreliable on their theory that the rain should have reached the Environment Canada site before the North Fredricksburgh rain station on August 30, 2005 when the winds were blowing from the south-southeast.

Mr. MacLean suggested that all rainfall measured on August 30, 2005 and August 31, 2005 be counted as falling on one day. The Tribunal heard that the rain gauge used by OWN has a time and date recorder. The Tribunal was not persuaded that this device was not working properly. The Tribunal will not order any adjustment in the data.

With regard to the question regarding the weighting of total monthly rainfall, the Tribunal understands that monthly weighting systems were used in the previous SIMFOY program and in the pilot project which tested the new Forage Rainfall Plan. The appellants argue that Agricorp failed in its contractual obligation to notify them of changes to its insurance programs. Agricorp argues that there was no need to inform the appellants of the change as they were never offered the pilot project and there was never any monthly weighting in the insurance policies they purchased in 2004 and/or 2005. The Tribunal accepts Agricorp’s argument that there was no change to the contracts of insurance that the appellants purchased.

The appellants also argue that Agricorp provided misleading information in its factsheets. The Tribunal is not satisfied that the information in the factsheets used by Agricorp was materially misleading. The Tribunal notes that the use of the word “weighting” in the factsheets could produce some confusion but when the sample calculations from the factsheets are considered it is clear that the weighting applied to each month of the insured period is a 1:1 ratio.

The Tribunal does not fault Mr. White for not addressing the question of weighting when he sold forage insurance to the appellants, given that it was not a provision in the contract of insurance. The Tribunal finds that nothing in Mr. White’s presentation of the forage plan to each of the appellants mislead them in any way.

The Tribunal does not have the power to change the contract of insurance. The Tribunal can, in appropriate circumstances, direct that Agricorp adjust an insurance claim in a particular way, however, this case is not such a circumstance. We are not satisfied with the appellants’ evidence and arguments that the insurance contract was changed without their knowledge. The evidence was clear that all of these growers first purchased insurance under the Forage Rainfall Plan in either 2004 or 2005 and that weighted monthly rainfall was never a provision in these insurance policies.

The Tribunal gave little weight to the information compiled by John Thompson. The Tribunal notes that SIMFOY was a completely different program and comparisons with SIMFOY are not relevant in considering the adjustment of claims under the Forage Rainfall Plan.

Decision and Reasons

After careful consideration of the evidence and submissions made, the Tribunal dismisses the appeals of Barton MacLean, Dale Huyck, Gary Sonneveld, Peter Van Order, Stan Mastin, Dan Mastin, Roger Brant, and Barry McCracken

The reasons for this decision are:

1. The appellants all applied for a forage insurance product that used equal weighting (1:1) of rainfall for each of the months of the insured period.
2. The operation of the forage plan was explained to all the appellants and there was no misrepresentation or misinformation communicated by Agricorp to the appellants about the plan.
3. There was no evidence to substantiate the appellants’ suspicions that the rainfall data collection system employed by Agricorp was faulty and unreliable.

DATED AT Guelph, Ontario this 25th day of August, 2006.