APPEAL:

Vanderbeke v Agricorp

2006 ONAFRAAT 02

STATUTE:

Crop Insurance Act

HEARING:

November 9, 2005

DATE OF DECISION:

January 18, 2006

2006-02

NEUTRAL CITATION:

2006 ONAFRAAT 02

IN THE MATTER OF The Crop Insurance Act (Ontario) and Ontario Regulation 140/96 under the Crop Insurance Act (Ontario) 1996, S.O. 1996, C. 17, Schedule C.

AND IN THE MATTER OF An Appeal to the Agriculture Food and Rural Affairs Appeal Tribunal by Keith Vanderbeke, Staples, Ontario from the decision of AgriCorp concerning the adjustment of his claims for his 2002 and 2003 soybean crops under Regulation 380/97 and the Crop Insurance Plan for Grain and Oilseeds.

Before:

Gene Trotman Q.C, Vice Chair; Doug Flook, Member; Denis Perrault, Member

Appearances:

Fred Thomson, representing the respondent, AgriCorp

Peter Wechselmann, counsel to the respondent, AgriCorp

INTERLOCUTORY DECISION OF THE TRIBUNAL

This appeal was originally scheduled to be heard by the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) on November 9, 2005 but was adjourned on November 1, 2005, eight clear days before the scheduled hearing by the Tribunal, to January 10, 2006, at the request of the Respondent, AgriCorp.

At the onset of the hearing on January 10, 2006, Mr. Thomson of AgriCorp provided the Tribunal with a printout of an electronic mail transmission from Mr. Vanderbeke to the Agriculture, Food and Rural Affairs Appeal Tribunal, AgriCorp, Ms. Frances von Wiedner, Ms. Kelly McColeman, Mr. Jim Zavitz and Mr. Harry Fraser. The printout indicated the transmission was sent Monday, January 09, 2006 11:34 p.m.

The message read:

“The following message was previously sent to Sue Gillespie, and is being sent to you since she has not acknowledged receipt.”

A transmission which was embedded in this message read as follows:

“Please re-schedule. I have the flu, and will not be able to go tomorrow.”

That message which was dated January 9, 2006 at 15:18:07 was opened by Ms. Gillespie late in the afternoon of January 10, 2006. Ms. Gillespie was in transit to the hearing location on the afternoon of January 9, 2006.

SUBMISSION BY AgriCorp

Upon reading the very late request by the Appellant for a rescheduling of the hearing involved, Mr. Wechselmann, Counsel for AgriCorp, asked the Tribunal to dismiss the appeal on the basis that the Appellant had chosen not to participate. He submitted further, that the appeal of the Appellant related to a 2002 crop year insurance claim, and that the Appellant had not provided any documentary evidence to AgriCorp or the Tribunal in support of his appeal in advance of the hearing. In addition, Mr. Wechselmann pointed out that the Appellant’s request for an adjournment came at 11:30 p.m., on the night before the hearing was scheduled to commence. He said AgriCorp was not aware of the request until the morning of January 10, 2006. Mr. Wechselmann added that AgriCorp was fully aware that Mr. Vanderbeke had in fact attended a municipal council meeting on the evening of January 9, 2006, notwithstanding his claim of illness.

Mr. Wechselmann made it clear that he would prefer the dismissal of the appeal in its entirety, but pointed out that if the Tribunal contemplated postponing the matter he would ask for the awarding of costs to AgriCorp. In this regard, he submitted that Agricorp had brought five witnesses to the hearing, including one which had to be served and paid attendance fees. He estimated that Agricorp had devoted 14 labour hours towards the preparation of its response to the appeal at an estimated cost of $2,800 and undertook to submit to the Tribunal, Agricorp’s total cost in this regard. Mr. Weschselmann concluded by stating that Agricorp will not be asking for the payment of all its costs by the Appellant but only that some costs be imposed on the Appellant due to the very late request for an adjournment and to deter such practice in the future.

The undertaking given by Mr. Wechselmann to submit AgriCorp’s total cost incurred as a consequence of the Appellant’s late request for an adjournment was fulfilled by a letter dated January 11, 2006. In it the detailed costs were broken down as follows:

Salary costs for Weshselmann, Zavitz, Fraser, Stevenson and Thomson….$4,710.00.
Mileage……………………………………………………………………..$0,621.60. 3. Meals and hotel……………………………………………………………..$0,790.00
Witness Fees……………………………………………………………… $0,075.00

Total………………………………………………………………………… $6,196.60

Out of this total $1, 486.60 were categorized a costs for mileage, meals and hotel and witness fees,

SUBMISSION BY Mr. Vanderbeke

At about mid morning the day of the scheduled hearing of his appeal, the Tribunal reached Mr. Vanderbeke by telephone and questioned him about his illness and his very late request for an adjournment. He indicated that he was ill with the flu which struck him in mid afternoon of January 9, 2005, and was unable to attend the hearing. When asked how he found it possible to attend a local council meeting the evening of January 9, 2006 after he had succumbed to the flu, he stated that his local council meeting was only a 15 minute drive from his home, whereas the venue for the hearing of the Tribunal was a two hour drive from his home. He also pointed out that he did not object when AgriCorp asked for an adjournment in November 2005.

Statutory Authority

Rule 28 of the Tribunal’s Rules of Procedure reads as follows:

RULE 28 COSTS

Comments on Costs:

Costs are a sum of money ordered to be paid from one party to another party in order to cover only this party's expenses incurred for preparation and attending the proceeding. This may include such things as preparation and hearing time for counsel, consultant and witness fees, and travel expenses. It does not include business or personal financial losses. If the party's conduct caused such losses, however, this conduct may be included in considering a cost order. A cost order may be made if a party requests it, if one party has in the Tribunal's opinion acted inappropriately, as in Rule 28.04. Such orders and the amount awarded are to discourage conduct that wastes a great deal of the Tribunal's and parties' time as well as other resources.

An order for costs is very rare. Recovery of costs is not standard as in court proceedings…. Only a party may make a request for costs. Participants, witnesses or others without official party standing can request or receive costs only in the most unusual circumstances.

Circumstances in which Costs Order May be Made

28.04 Clearly unreasonable, frivolous, vexatious or bad faith conduct can include, but is not limited, to:

(a) Failing to attend a hearing event or to sending a representative when properly given notice, without contacting the Tribunal;

(b) Failing to give notice or adequate explanation or lack of co-operation during pre-hearing proceedings, changing a position without notice, or introducing an issue or evidence not previously mentioned;

(c) Failing to act in a timely manner or to comply with a procedural order or direction of the Tribunal where the result was undue prejudice or delay;

(e) Failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper;

(f) Failing to make reasonable efforts to combine submissions with parties of similar interest;

(g) Acting disrespectfully or maligning the character of another party; and

(h) Knowingly presenting false or misleading evidence.

The Tribunal will consider the seriousness of the misconduct. If a party requesting costs has also conducted itself in an unreasonable manner, the Tribunal may decide to reduce the amount awarded. (The Tribunal will not consider factors arising out of a mediation or settlement conference except where, for example, it finds that a request for change to a settlement is unreasonable.)

Interest on Award

28.05 Awards of costs will bear interest in the same manner as those made under section 129 of the Courts of Justice Act.

Decision and Reasons

After careful consideration of the evidence and submissions made, the Tribunal decided that it would be inequitable to dismiss the appeal, as an earlier request for an adjournment by AgriCorp had been granted. The Tribunal, however, found that the request for adjournment by AgriCorp had been made timely, while that of the Appellant was made at the legendary 11th hour, without giving sufficient time for the hearing to be rescheduled. This resulted in AgriCorp incurring some expenditure. Expenditures were also incurred by the Tribunal itself which had to be absorbed by the public purse. In the circumstance, the Tribunal decided to award AgriCorp costs in the amount of $1,500.00 to meet some of its expenditures; and additionally, to serve as a deterrent to last minute requests for adjournments.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

The hearing in this appellate matter is adjourned to April 2006 on a date to be determined.
The Appellant, Mr. Vanderbeke, shall pay to AgriCorp costs in the amount of $1,500.00 no later than 10 days before the date of the rescheduled hearing of this matter.
AgriCorp shall inform the Tribunal when it has received its costs from Mr. Vanderbeke.
Should the Appellant fail to make the payment of $1,500.00 as specified herein the Appellant will be in default of this Order and his appeal will be deemed to be terminated with judgment in favour of AgriCorp.
This panel of the Tribunal shall continue to be seized of the matter.

DATED AT Ottawa, Ontario this 18th day of January, 2006.

Vanderbeke v Agricorp, 2006 CanLII 84255

Case Summary