Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone 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:appeals.tribunal@omaf.gov.on.ca

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:

Jahn v Agricorp

Jahn v Agricorp

2006 ONAFRAAT 35

STATUTE:

Crop Insurance Act

HEARING:

August 22, 2006

DATE OF DECISION:

September 20, 2006

2006-35

NEUTRAL CITATION:

2006 ONAFRAAT 35

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 Ken Jahn, Eganville, Ontario from a decision of Agricorp concerning the adjustment of his claim for his 2005 forage crop under Regulation 380/97 and the Forage Rainfall Plan Insuring Agreement.

Before: Rod Stork, Chair; Gene Trotman, Vice Chair; Denis Perrault, Member

Appearances:

Brian Hamilton, representing the appellant Ken Jahn

Fred Thomson, representing the respondent, Agricorp

Ken Jahn, appellant

John Schutt, witness for the appellant

Tim Borho, witness for the respondent

Bill White, witness for the respondent

DECISION OF THE TRIBUNAL

This appeal was heard in Palmer Rapids, Ontario on Tuesday, August 22, 2006. Mr. Jahn initiated the appeal under the Crop Insurance Act (Ontario) and sought payment of a claim related to his 2005 forage crops.

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).

Preliminary Matters

Mr. Brian Hamilton produced a larger copy of a map identified as Document 22 in documentary evidence submitted by the appellant, for ease of reference.

Mr. Hamilton sought to introduce a copy of a by-law passed October 5, 1860 which he submitted showed that historically Brudenell-Lyndoch was one township. He said it had been recently obtained. Mr. Fred Thomson said Agricorp did not see the relevance of the document as it uses geographic townships in administering the Forage Rainfall Plan, but did not object to its being filed with the Tribunal.

The Tribunal accepted that document as an addition to the appellant’s document brief and marked it Document 23.

The Evidence

Ken Jahn Case

Mr. Ken Jahn told the Tribunal his farm was located less than five kilometres from the farms of forage growers who had their claims paid by Agricorp, even though the neighbours normally receive more rain than he does. He said he owned 600 acres of land but that counting rented land he had 1,500 acres. He pointed out the location of his farms and rented land, and the land of several neighbours.

Mr. Jahn said 2005 was a very dry year on his farm. He said he only pastured 60 stockers that year but that it was almost 60 too many. Normally he pastured 90-135 head of cattle. He explained that it was so dry that by July 1, 2005 he had to start feeding hay to the stockers. He stated that in a normal year he had to mow his lawn once or twice per week but that in 2005 he did not cut it at all from mid-June to late September as it was brown and dry.

Mr. Jahn identified the locations of the properties of two neighbours – Dave Kargus and Mildred Drefke - who provided written statements attesting to dry weather conditions in 2005 and commented that his farm was drier than the neighbours’ properties. He said it normally was drier on his properties than the Drefke property.

Mr. Jahn said his property sits on the Brudenell-Lyndoch line. He testified that the two townships had always been known as one township and agreed that the two townships Raglan and Brudenell-Lyndoch were amalgamated in 1999. He referenced a 1987 tax bill for the Township of Brudenell and Lyndoch.

Mr. Jahn pointed out the locations of neighbours Lloyd Kuehl, Garry Welk, Joan and Ron Hartwick, John Schutt and Earl McCauley on a map that he had provided in his documentary evidence. He said his property was less than 5 km from these properties and he could see the Kuehl, Welk and Hartwick properties from his property when the trees were bare. Mr. Kennedy indicated that the owners of these six properties all received a forage claim payment from Agricorp in 2005.

Mr. Jahn said he understood that his forage insurance was tied to a rain station. He said when he signed up he had a choice of two rain stations - Brudenell and Raglan – but that since the Raglan rain station was close to the Madawaska River and thunderstorms follow the river it was not an acceptable choice. Mr. Jahn said there was no rain station in his area in 2005. He said neighbours who received more moisture than him received a payout while he did not and this was not fair. Mr. Jahn said the Brudenell rain station was 15-18 km from his farm.

Mr. Hamilton pointed out that when Agricorp re-assigned growers as a result of a communication lapse regarding rain stations, Mr. Schutt was re-assigned to the Bangor rain station, Mr. Welk, Mr. Kuehl and Mr. and Mrs. Hartwick were re-assigned to the Haggarty rain station and Mr. McCauley was re-assigned to the Gratten rain station. Mr. Jahn said there was not much difference in the distance to the Haggarty station from the Welk, Hardwick and Jahn properties and that the Kuehl property was only about 4 km closer to the Haggarty station. He said his farm was approximately 20 km by road to Gratten rain station.

Mr. Jahn agreed he could have chosen one of three rain stations in 2005 and pointed out the neighbours residing in Brudenell had more choices. Mr. Kennedy pointed out that Mr. Schutt could have chosen any of six rain stations. Mr. Jahn said he did get a new rain station closer to his farm in 2006.

Mr. Jahn said his forage losses in 2005 were slightly higher than 50%, based on his hay yield.

In response to questions from Mr. Thomson, Mr. Jahn clarified that all of the land he farmed in 2005 was in Lyndoch Township and that a property he owned in Brudenell Township was a cottage property. He also confirmed that:

• some of his rented land was owned by his son Glen Jahn

• he purchased $28,000 in coverage for his hay and pasture in 2004

• he selected the Brudenell rain station in 2004

• Mr. Bill White completed the application form with him

• in 2005 he did not change his coverage level and stayed with the Brudenell rain station

• normally he harvests between 500 and 750 bales of hay; in 2005 he harvested just over 300 bales of hay

• he also pastured cattle.

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

• Of the 1,500 acres of land he owned and rented, 950 acres was workable.
• He had been enrolled in a previous crop insurance program offered by Agricorp and had claims paid.
• In 2004 he could choose between the Raglan and Brudenell rain stations.
• Neither rain station was very good for his area but Brudenell was the better of the two.
• He decided to purchase forage insurance notwithstanding his dissatisfaction with the locations of the rain stations.
• He understood that drought was the only thing that would trigger a payment.
• He grew mixed grain and fed it green as well as growing hay.
• He understood that he could change rain stations and knew the Griffen rain station had been added in 2005.
• He never did understand why his neighbours received claim payments; he did not know about information meetings scheduled by Agricorp.
• He received a letter from Agricorp in January 2006 which stated that the Brudenell rain station was the highest paying station he was eligible for and that he would still not receive a claim payment.
• He found out neighbours had received a payout and started calling Agricorp about his claim.
• He knew he had three rain stations he could choose from but did not know why he was restricted to choosing from those three rain stations.
• Mr. Schutt lived in Raglan Township.
• Mr. and Mrs. Hartwick lived in Brudenell Township.
• He did not understand what was meant by senior township in a by-law passed in 1860, but knew that Brudenell and Lyndoch was always one township.
• There was no township line road between Brudenell and Lyndoch.
• A sign was put up a few years before that indicates to drivers when they are entering one of the townships.

Mr. John Schutt testified that he had a cow/calf farm in Raglan Township, exactly one mile from the Brudenell-Lyndoch boundary and approximately 3 km as the crow flies from Mr. Jahn’s farm. He said he had approximately 600 acres in Raglan Township and 325 acres in Lyndoch-Brudenell Township.

Mr. Schutt told the Tribunal he had worked for the Ontario Ministry of Transportation from 1977 to 1998 and was responsible for the maintenance of highways in the area. He said that in winter conditions there was definitely a pattern of snowfall where some areas have more snow than others. He said there was more snow in the area between his farm and the Drefke greenhouse property than the area where Mr. Jahn farmed. He had never recorded rainfall and could not say if the pattern was similar.

Mr. Schutt said he received a claim payment on his 2005 forage crop after Agricorp re-assigned him to the Bangor rain station but he had no idea why he was re-assigned. He said he attended an information meeting in Ivanhoe and many growers were confused as to where the rain stations were located. He said he knew the Raglan rain station was less than a mile away from his farm but he did not know where the Bangor rain station was located. He said he was over 20 km from the Bangor rain station. Mr. Schutt said he thought he should receive a claim payment in 2005 because it was a dry year.

Mr. Schutt said that Brudenell and Lyndoch were always known as one township and Raglan as a distinct township but that they were now amalgamated. He said the sign between Brudenall and Lyndoch was erected as a result of public pressure to acknowledge that Brudenell was a place at one time. He said he did not know where Brudenell ended and Lyndoch began until the sign was erected.

Mr. Schutt said he knew Mr. White explained the forage insurance program to him when he bought his policy but that he had since forgotten things and was not aware of all the rain station options he had in 2005. He said he knew there was a rain station on a neighbouring farm and he took for granted that it was his station.

In response to questions from Mr. Thomson, Mr. Schutt confirmed that he lived in Raglan Township and that he had attended the information meeting held in February 2006.

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

• He thought he received a letter from Agricorp in December 2005 indicating he would receive a payout.
• In 2006 he harvested 912 bales of hay; in 2005 he harvested less than 600 bales.
• He recalled that many forage growers were irate at the information meeting he attended. He recalled that there were farmers who lived across the road from each other where one got a payout while the other did not.
• The previous forage insurance program offered by Agricorp had the same problem and growers did not always get as much as they thought they should.
• He thought that growers who did not make a decision about their rain station in 2005 received a payout if they were not assigned to the correct rain station.
• Sometime in the 1960’s surveyors came out to measure township boundaries.
• He enrolled in the Forage Rainfall Plan in 2004 and received a renewal package in 2005.
• He did not recall ever selecting a rain station but he probably did. Under the old program growers were automatically assigned to the nearest station.
• Raglan Township touches Bangor Township in one corner.
• He may have known that he could select the Bangor rain station or another rain station but the Raglan rain station was so close that he probably never considered any others.
• At the information meeting in Ivanhoe Agricorp acknowledged they made mistakes.
• He would not take out forage insurance if he could not select a rain station that paid out in drought years.
• For 2006 he picked the Raglan rain station again.

Agricorp Case

Mr. Tim Borho told the Tribunal that since August 2005 he had been Agricorp’s Account Lead for livestock, which included forage insurance plans. He said it was his duty to ensure the Forage Rainfall Plan was delivered properly according to the policy and regulations. He said his background was in dairy farming and agricultural sales and he had attended an agricultural college. He said he had raised dairy heifers and grown forage crops.

Mr. Borho said the Forage Rainfall Plan was started as a pilot project in three counties but was eventually offered across the province. He explained that as a rainfall derivative plan, it compared rainfall to historic average rainfall in an attempt to predict forage production. He said that, in general, more rainfall resulted in more forage growth. He explained that it was an area based plan so it did not look at individual farm results. He said that the only insured peril was drought. Mr. Borho stated that other factors that may affect yield included the date of the final cut of the previous season, winterkill, early spring temperatures and moisture, hours of daylight, species selection, soil type and farm management practices.

Mr. Borho testified that under the Forage Rainfall Plan each customer picked one rain station and that the amount of rainfall recorded at that station, compared to the historical average rainfall for the county, determines their claim payment. He said Agricorp staff provide a map and a list of rain stations when the customer first signs onto the plan.

Mr. Borho said Agricorp did not have rain stations in every geographic township as some townships had little or no farming. He said it tried to locate the rain stations where it had customers growing forage. Mr. Borho stated that Agricorp used geographic townships which were based on original land surveys, not political boundaries. He said these were used in the legal definitions of properties. He explained that Agricorp preferred geographic townships to municipal townships because it needed a baseline that did not change.

Mr. Borho pointed out that municipal boundaries changed. With regard to Document 23, Exhibit A, Mr. Borho pointed out that Renfrew and Lanark Counties were no longer joined and Radcliffe Township is no longer joined with Raglan, Brudenell and Lyndoch.

Mr. Borho said that under the Forage Rainfall Plan, Agricorp measures all rain that falls between May 1st and August 31st, but then applies caps so that it does not count more than 70 mm rainfall per day or more than 125% of historic monthly rainfall when it calculates claims. He said it purchased rainfall data from the Ontario Weather Network (OWN), which is a subsidiary of the University of Guelph. He indicated that Agricorp selects sites and OWN provides equipment, collects data, proofs its data and sends it to Agricorp. He said OWN had three methods of measuring rainfall - an electronic collector with tipping scales that tip with every 2 mm of rain which records the time and date of each tip, a tip counter, and a separate bucket from which data is manually collected.

Mr. Borho said Agricorp used to purchase data from Environment Canada but found it was slow to be provided and the agency would not stand behind its data. He said it still used Environment Canada’s long term historical data as it was the only source of such data.

Mr. Borho agreed with Mr. Thomson that the core principles of the Forage Rainfall Plan are that it is area based, only covers rainfall, uses a single site per client, uses data that is professionally collected and approved and has a defined period of insurance in which all rainfall events are recorded.

Mr. Borho said Agricorp gets its authority to offer crop insurance through the Crop Insurance Act and the Agricorp Act. He said is policies were published in a Crop Insurance Policy Book, which included the rainfall insuring agreement and that amendments to its policies were distributed to customers each year. He said federal and provincial governments approve new insurance plans and pay 60% of the premium cost of crop insurance. Mr. Borho stated that Agricorp cannot retroactively change the terms of its insurance policies and to try to do so would jeopardize its government funding.

Mr. Borho explained that when Agricorp adjusted a forage claim it compared the 2005 rain station data to the long term historic average for the county and if it was less than 80% of the historic average a claim payment is triggered. He said Agricorp took the difference between 80% and the season’s rainfall as a percentage of historic rainfall, multiplied the difference by a customer’s coverage level, then doubled that amount to account for higher transport and forage costs in drought years. He said its goal was to pay claims within one month of the end of the data collection period (August 31st).

With regard to Lyndoch Township, Mr. Borho said the Spring of 2005 was drier and cooler than usual, it stayed dry into early July but there was more rain than usual in late July and August. He said there was a lot of grassy hay grown in the area for cow/calf operations so two cuts of hay or less per season was the norm. He said grassier hay is more susceptible to drought and he expected the early season dryness in 2005 would have significantly reduced forage yields.

Mr. Borho said Agricorp had 350 rain stations in 2005, of which 125 were new stations. He said customers living in townships where new rain stations were placed were told about them, but customers living in adjacent townships were not, although they should have been. He said a forage customer could select a rain station in his own geographic township or any adjacent geographic township. Mr. Borho said that because Agricorp had made a mistake and not informed all customers of their option to change rain stations from year to year, and had not informed all customers eligible to use the new rain stations, it decided to re-adjust claims using the most favourable rain station that a customer could have chosen, had they had their options fully explained.

Mr. Borho explained that Mr. Schutt had a claim payment because he was reassigned to the Bangor rain station, the best-paying station that a grower living in Raglan Township could have chosen. He explained that Mr. Jahn could choose a rain station in Lyndoch, Brudenell, Raglan, Ashby, Denbeigh, Sebastol and Griffith townships but since not all of these townships had rain stations, Raglan, Griffith and Brudenell were his choices. He said none of these three rain stations triggered a payout in 2005.

Mr. Borho said Agricorp had 1,650 forage clients in 2005 and that it initially paid 1,100 forage claims, but that after it re-assigned growers it paid an additional 910 claims. In total approximately $8.5 million in forage claims were paid in 2005.

Mr. Borho told the Tribunal that Agricorp held a round of public meetings in the Fall of 2005 to explain the Forage Rainfall Plan to customers and receive feedback so the plan could be improved for future years.

Mr. Borho said Agricorp sends its forage customers renewal packages in March and they have until April 1st to opt out of the program and May 1st to make changes to their coverage level or rain station selection. He said Agricorp sent yield reports in September to all forage customers, whether they receive a payout or not.

Mr. Borho said Agricorp recognized there was a drought period in Mr. Jahn’s area in early 2005 but said the total rainfall over the entire collecting period was greater than 80% of the historical average. He reiterated that the plan does not recognize forage yield on individual farms, it recognizes drought at specific sites. He said he was not aware of any errors in the rainfall recorded at the Brudenell rain station. He said there was no rain station in Lyndoch Township in 2005 and reiterated that Agricorp does not put a rain station in every township. He said Agricorp had one other forage customer in Lyndoch Township and that grower did not receive a claim payment in 2005 either.

In response to questions by Mr. Hamilton, Mr. Borho indicated:

• When Agricorp field representatives visit forage customers for the first time the maps they use show geographic townships and customers are informed of the rain stations they can select.
• Nothing in the documentation provided by Agricorp refers to the year that geographic townships were first surveyed.
• Mr. Jahn applied for forage insurance in 2004 and would have been visited that year by an Agricorp agent; in 2005 he would have received a renewal package. Forage insurance is automatically renewed unless a customer calls in a cancellation or calls in changes to his selections.
• Agricorp uses a grid as a rough guide to where rain stations should be placed but does not put a rain station in each square of the grid.
• Forage customers’ areas are defined by their home geographic township and all abutting geographic townships.
• Historic rainfall is calculated by county, except in Hastings County where the county is split into two regions.
• If a customer selects a rain station in an abutting township that is in a different county than the one where the customer lives, the historic average rainfall in the county that the rain station is located in is used to adjust the claims.
• The customers can see geographic township boundaries at the original site visit.
• Approximately 1,400 forage customers received a payout under the Forage Rainfall Plan for the 2005 crop year.
• Mr. Jahn did not get a payment when growers were re-assigned as he was already at the highest paying station – none of the stations which he could have selected had a payout.
• Client’s home farms are used to identify their home township; some clients had more forage land in adjacent townships and may prefer not to select the rain station that is closest to the home farm. The rule is the client can pick a rain station in the home geographic township or an adjacent geographic township.
• At the first visit to a prospective forage plan client, the historic rainfall chart, a copy of the application form and a factsheet are left with the client.
• Agricorp provided a computer screen printout in Exhibit B (page 62) which showed that Mr. Jahn had the same rain station in 2004 and 2005. Mr. Jahn would have received this information but not in the same format.
• Web reports are not usually sent out of the Agricorp office but its field staff use them on occasion.
• A yield report dated October 5, 2005 would have been sent to Mr. Jahn and if a claim had been paid the cheque would have been included in the mailing.
• If no claim was paid in October, but a claim was paid later as a result of re-assigning to a new rain station, those cheques would have been sent in January 2006.
• Rainfall stations are not all within 15 km of forage growers.
• Environment Canada does not have historic rainfall data at the township level; Agricorp hopes to be able to use OWN data when it has enough historic data at the township level.
• Mr. Jahn was considered for re-assignment to another rain station but none of the stations he was eligible for triggered a claim payment.
• There is now a rain station in Lyndoch Township (2006 crop year).
• Agricorp’s computer program can generate the distances between growers and rain stations.
• When growers were re-assigned, it was based on the best-paying rain station, not the closest.
• If the township was defined as Brudenell-Lyndoch it would be larger and probably would allow for more choices of rain stations.
• Tab 5, Exhibit B was a record of calls between Agricorp’s call centre and Mr. Jahn.
• He did not know why Agricorp had a different date on a letter that was sent to Mr. Jahn than the date on Mr. Jahn’s copy of the letter. The information contained in the letter was the same.

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

• There was a second round of meetings with forage customers in February 2006 to explain the re-assignment of growers to the highest paying rain stations in 2005 and changes to the plan for 2006.
• There was a glitch in printing a document in one of the exhibits – there were no caps applied to the rain station in 2005.
• When all the rain stations a grower was eligible for had zero payments he decided to call the original rain station the highest paying station even though they were equal.
• Adjacent townships are the ones adjacent to the home township where the customer resides.
• Historical rainfall data goes with the stations in the county in which the rain station is located.
• Some customers only have one rain station to choose from.
• A grower in Kapuskasing has no rain station in his home township or an adjacent township and had to select the closest rain station which happened to be 80 km away.

Mr. Bill White told the Tribunal he was an adjuster for Agricorp and he sold also crop insurance. He said he had been working in the crop insurance field for 18 years.

Mr. White said he signed up Mr. Jahn for the Forage Rainfall Plan in 2004 and was on his farm when he signed him up. He said he was the one who filled out the application form. He explained his process was to:

• record ‘tombstone’ information provided by the customer

• record the total number of acres of hay that was 1, 2, 3 years old or older and the acres of pasture that were upgraded and rough land

• establish a value for each field and total these to get the maximum coverage that can be purchased

• record the coverage level selected by the insured grower

• record the rain station identification number of the station selected by the customer on a map that he provides

• collect the premium cheque

Mr. White said he always recommends that a customer select a rain station that they feel will be representative of rainfall in their area. He said he followed the same process with all customers.

Mr. White said he would have had no reason to see Mr. Jahn again in 2005 unless he had called the Agricorp Call Centre to request a meeting. He said he did speak with Mr. Jahn early in 2006 after the information meetings had been held.

Mr. White said he believed that Mr. Jahn understood the insurance program that he was buying and that it was different from a previous program – SIMFOY – that Agricorp used to offer.

In response to questions from Mr. Hamilton, Mr. White replied:

• He did not use a checklist when he visited new customers. He tried to use the same process with everyone.
• He did not recall having a discussion with Mr. Jahn about geographic versus municipal townships.
• He had an answering machine on his telephone and Agricorp had one at its Call Centre.

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

• He did not make repeat calls to see how things are going from year to year.

• When he shows his map to prospective clients he gets them to identify their home and shows them that adjacent townships are any that touch their township.

• The maps are large; he has four maps for his sales area.

• Geographic township boundaries are shown on his maps.

• He did not discuss the possibility of Brudenell and Lyndoch being considered one township with Mr. Jahn.

Mr. White also indicated:

• He did recall when customers called adjusters directly but they were now all expected to contact the Call Centre, toll free, and in turn the Call Centre contacts him and asks him to meet with a customer.
• Agricorp had no record of Mr. Jahn trying to reach it in 2005.

Summations

Mr. Hamilton submitted that there was a drought in 2005, as evidenced by Agricorp’s claim payments to Mr. Jahn’s neighbours. He argued that it was unfair that Mr. Jahn did not receive a payment when his yield was less than 50% of usual and his neighbours’ claims were paid. He pointed out that Brudenell and Lyndoch had been one township for political purposes since 1860 and argued that Agricorp failed to make Mr. Jahn aware of its use of geographic townships in the Forage Rainfall Plan. Mr. Hamilton said a layman would understand the Jahn farm should have had its crop insurance claim paid and asked the Tribunal to correct the situation.

Mr. Thomson said 2005 was one of the driest years in recent history but with an area based program there is no guarantee that rainfall results at a collection site will mirror what happens on a farm. He argued that Mr. Jahn knew which rain stations he could choose from and chose Brudenell as the best option of the choices he had. Mr. Thomson said Agricorp had followed a consistent process based on the geographic township in which insured growers reside or an adjacent geographic township. He submitted that in that respect Mr. Jahn was treated the same as his neighbours.

Mr. Thomson said that other stakeholders expected it to administer its plans within the established legal framework and it could not make an exception for Mr. Jahn. He said there was no evidence that the rainfall data measured at the Brudenell rain station was incorrect. He said that Agricorp had done all it could to address its communication problems in 2005, within the legal limits of the contract of insurance. He asked the Tribunal to find in favour of Agricorp.

The Issue

According to the documentation filed by the Appellant, Mr. Jahn, and the oral submission made to the Tribunal, by him and on his behalf, the issue is whether the Tribunal should order AgriCorp to adjust Mr. Jahn’s forage claim on the basis that

(a) Brudenell and Lyndoch are to be treated as one township,

(b) there is no rainfall recording gauge in the township where Mr. Jahn's farm is located,

(c) there is no actual reflection of the impact of the lack of rain on the growing conditions on Mr. Jahn’s farm,

(d) Mr. Jahn was placed on a neighbouring township rain station for the year and not given the same consideration as the other farmers that were located at that station when it came to payout consideration,

(e) some of the area rain stations that Mr. Jahn was considered with for payout are geographically farther away from his farm than others in his area,

(f) Mr. Jahn’s farm is located closer to the townships of Gratten and Hagarty and Richards than it is to Griffith; and

(g) in Mr. Jahn’s area there was a limited number of rain stations used to determine his payout while the neighbouring townships had more than three rain recording stations used when AgriCorp recalculated the amount of money paid out in there areas.

The Findings

The issue raised by Mr. Jahn are, in toto, without legal foundation and to no avail for the following reasons:

(a)The Forage Insurance Scheme as administered by AgriCorp is rainfall based and insurance claims thereunder must be triggered by drought determined by comparing rainfall collected from May to August, at a site selected by the insured, with the historical rainfall average for those months for the county in which the insured farm is located. If the rainfall taken at the rain station is less that the aforesaid historical average a claim will be triggered.

(b)In 2004 when Mr. Jahn initially applied for Forage Insurance from AgriCorp, he was visited by a representative therefrom and given the option of choosing, from a geographic township map, one of two rain stations, Brudenell and Raglan. The insured also recommended the selection of a rain station that reflected as closely as possible the rainfall in the farm area concerned.

(c)Mr. Jahn in 2004 selected the Brudenell rain station over the Raglan rain station because the latter station was close to the Madawaska River and would produce higher levels of rainfall due to the fact that thunderstorms follow the river depositing in its environs higher that average rainfall.

(d) In 2005 Mr. Jahn renewed his forage insurance, but this time he had three rain stations to choose from, and without recorded complaints about the choice available to him, he retained the Brudenell rain station. Upon learning that some of his neighbours had received forage crop insurance for 2005 he felt embittered and launched this appeal knowing fully well, or should have known fully well, that: i) the Brudenell and Lyndoch were not treated as one for the purpose of his insurance coverage

ii) there was no rainfall recording gauge in the township where his, Mr. Jahn’s farm was located,

iii) some of the area rain station that he was considered for payout are geographically farther away from his farm than others in his area,

iv) his farm is located closer to the townships of Gratten and Hagarty and Richards than it is to Griffith; and v) in his area there was a limited number of rain stations used to determine payout while the neighbouring townships had more than three rain recording stations.”

The Tribunal finds that it was clear from Mr. Jahn’s testimony that he was aware of the two rain stations he had to choose from in 2004 and was aware that he could choose one of three rain stations in 2005. The Tribunal appreciates that Mr. Jahn was not completely satisfied with his choices of rain stations but notes that he did purchase forage insurance, notwithstanding that dissatisfaction.

The Tribunal recognizes that Mr. Jahn had a loss in 2005, but finds it was not an insurable loss because the nature of the area-based plan is that it does not guarantee yield on individual farms. Even if Mr. Jahn had been re-assigned to another rain station in an adjoining township, as eligible under the Agricorp Contract of Insurance, there were none that thus generated a claim in 2005.

Mr. Hamilton argued that it was unfair that Mr. Jahn had fewer rain stations that he could have selected than his neighbours had. He suggested that the claim be adjusted on the basis of the best rain station Mr. Jahn could have chosen, had Agricorp considered Brudenell-Lyndoch as one township. Agricorp representatives pointed out that Mr. Jahn had more choices than some of its other customers and argued that he was treated no differently than its other customers. The Tribunal agrees with Agricorp that Mr. Jahn was not treated differently than other insured forage growers and the Forage Rainfall Plan was applied correctly. The Tribunal was not persuaded that Agricorp mislead Mr. Jahn regarding its use of geographic rather than political townships.

The Tribunal appreciates that Mr. Jahn is displeased that he did not receive a claim payment when nearby neighbours residing in other townships did receive a payment, based on rainfall collected at rain stations that were some distance away. The Tribunal finds that he was treated in a similar manner to his neighbours as Agricorp consistently used geographic township boundaries in determining where they could re-assign insured growers.

Decision and Reasons

For the reasons outlined in the findings Mr. Jahn got precisely the forage insurance coverage he wanted. There was nothing untoward on the part of AgriCorp that would give rise to the remedy Mr. Jahn requested. The unfairness of what Mr. Jahn complains may well attract sympathy, but the law cannot, in this circumstance, provide him with the relief he seeks. His appeal, therefore, must be dismissed.

After careful consideration of the evidence and submissions made, the Tribunal dismisses the appeal of Ken Jahn.

The reasons for this decision are;

1. The Tribunal finds that Mr. Jahn was treated in a consistent manner, as all other customers for the 2005 crop year.
2. The Tribunal finds that Brudenell and Lyndoch are two distinct geographic townships and as a result the terms of the contract were applied appropriately. The Forage Rainfall Plan is based on geographic township boundaries.