Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1, chemin Stone Ouest
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Leeds Belrock Farm Ltd. v Agricorp – Re-determination
Leeds Belrock Farm Ltd. v Agricorp – Re-determination 2008 ONAFRAAT 05
STATUTE:
Crop Insurance Act
HEARING:
June 30, 2006
January 28, 2008
2008-05
NEUTRAL CITATION:
2008 ONAFRAAT 05
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 the re-determination by the Agriculture, Food and Rural Affairs Appeal Tribunal of its decision dated June 30, 2006, pursuant to instructions from the Ontario Superior Court of Justice, pertaining to the appeal by Leeds Belrock Farm Ltd (Leeds Belrock) from a decision of Agricorp regarding the adjustment of its claim for its 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
BACKGROUND
On June 8, 2006 the above-referenced panel heard the appeal by Leeds Belrock from a decision of Agricorp regarding the adjustment of its claim for its 2005 forage crop under Regulation 380/97 and the Forage Rainfall Insuring Agreement.
At the hearing Leeds Belrock submitted principally, that it did not receive a letter from Agricorp dated April 12, 2005 which conveyed the option to choose rain stations other than the station assigned to it and on record with Agricorp. Not having received the aforesaid letter Leeds Belrock remained assigned to a rain station called South Crosby but claimed it would have chosen the Bastard rain station had it received the letter of April 12, 2005.
Agricorp acknowledged in a letter dated December 20, 2005 that it did not adequately communicate the option to change rain stations to its customers, and as a consequence, reassigned 1,300 forage growers, 79 % of its forage customers, to the most beneficial station that they could have chosen.
The adjustment of Leeds Belrock’s claim by Agricorp using the South Crosby station was $726, while the payment for the Bastard station would have been $5,358.00. Leeds Belrock submitted that as it did not receive the April 12, 2005 letter, it should be treated in the same way as other forage growers who had not been informed of new rain stations.
Mr. Peter Wechselmann, counsel to Agricorp, submitted to the Tribunal that the appeal should be dismissed on the grounds that “it lacked jurisdiction to hear the matter or on the ground that there was no triable issue.” He argued that “Agricorp cannot be responsible for post office, courier or the like….that is why there are deeming provisions in the contract of insurance.”
The deeming section in question is found in subsection30 (3) of O.Reg. 380/97, made pursuant to the Crop insurance Act (Ontario). 1966, S.O. 1966, c17, and it states that “Mailed notice shall be deemed to be received seven days after it is mailed…”
DECISION OF THE TRIBUNAL (June 30, 2006)
The Tribunal in its decision dated June 30, 2006, upheld the appeal by Leeds Belrock on the grounds that errors and omissions were made by Agricorp in mailing the important notice contained in the April 12, 2006 letter to its customers and that communications between Agricorp and its customers should be such that errors and omissions were non existent; and moreover, when one considers the objects and purposes of Agricorp a “fiduciary like” relationship existed between it and its customers.
The Tribunal ordered Agricorp to adjust the Leeds Belrock crop insurance claim for forage grown in 2005 using the rainfall data from the Bastard rain station. The Tribunal rejected Agricorp’s submission that the Tribunal had no jurisdiction to adjudicate the appeal
JUDICIAL REVIEW OF THE TRIBUNAL’S DECISION
On October 31, 2006 Agricorp filed with the Ontario Superior Court of Justice (the Court) an application for Judicial Review of the decision of the Tribunal on the ground, among others, that:
a) “The Tribunal exceeded its jurisdiction and erred in law by effectively amending section 30 of Regulation 380/97 of the Crop Insurance Act (Ontario), 1996 S.O. 1996, Chapter 17, Schedule C,”
b) “The Tribunal exceeded its jurisdiction and erred in law by considering whether notice of an insured’s option was ‘adequately communicated’ to the insured, as opposed to interpreting and applying the notice provisions in regulation 380/97…” and
c) “The Tribunal exceeded its jurisdiction and erred in law by disregarding regulation 380/97… and finding that the applicant was in a ‘Fiduciary like’ position vis-à-vis insured persons.”
The invoked portions of subsections 30(2) and (3) respectively states as follows:
(2) “Any written document delivered to an applicant for insurance or insured persons by personal service or sent by mail or electronic transmission to the person’s last address on the file with Agricorp…”
(3) “Mailed notice shall be deemed to be received seven days after it is mailed…”
The Court, consisting of Justices Swinton, Carnwath and Greer, dealt first with the legal interpretation to be placed on the invoked subsections 30(2) and (3) in its decision delivered orally on April 24, 2007 and released on May 3, 2007. The Court concluded that “the presumption of receipt is rebuttable by the insured” and quoted as authority for this conclusion the case of Royal Trust v Dunn (1992), 1991 CanLII 7227 (ON CTGD), 6 O.R. (3d) 468 (Ont. Ct. (Gen.Div)) at p. 477 and following.
This case stated unequivocally that “Although the words ‘deem’, ‘deemed’ and ‘shall be deemed’ when used in a statute usually imply an element of finality, such an interpretation is not inflexible or invariable… the intention of the legislature should not be interpreted as intending to compel the court to hold something to be a fact which is not a fact…it would be proper to interpret ‘deemed’ to mean ‘prima facie evidence’ or ‘held until the contrary is proved,”
The Court found that the Tribunal erred in finding that Agricorp is in a “fiduciary-like” relationship with its customers, set aside its decision and remitted the matter back to the Tribunal with specific stipulations that “the first task of the Tribunal is to be satisfied, on the balance of probabilities that the letter was mailed. If not, the Tribunal may conclude that the respondent should be treated in the same manner as other insured persons who were not informed of the new rain station.” [emphasis added]
The Court stipulated further that “If the Tribunal is satisfied the letter was mailed, in our view, it is open to the respondent to lead evidence that the letter was not received. If the Tribunal is persuaded, on the balance of probabilities, that the letter, although mailed, was not received, it is open to the Tribunal to conclude that the respondent should be treated in the same manner as other insured persons who were not informed of the new rain station.”
In conclusion the Court rejected the submission by Agricorp that the Tribunal had no jurisdiction to determine the mailing or receipt of the letter or the entitlement of the respondent to compensation quoting s10 (1) of the Crop Insurance Act as the basis for this conclusion.
RE-DETERMINATION BY THE TRIBUNAL
The panel of the Tribunal reviewed in its entirety the evidence provided by Leeds Belrock Farm and Agricorp at the hearing on June 8, 2006 and the following salient facts were re-noted:
Agricorp failed to produce the individual or individuals who mailed the important letter of letter of April 12, 2006 but produced instead a person who subsequently acquired the tasks of mailing such letters, Mr. Tim Borho.
Mr. Borho’s evidence was that his predecessor had sent out the letter and he was confident that the letter was sent as he had reviewed the records. No evidence was presented to indicate what records he reviewed or on what evidence he based his confidence.
Mr. Borho testified that “After letters are mailed an electronic mail confirmation is sent to the originator of the letters.” No evidence regarding an electronic mail confirmation of the letter allegedly sent to the Leeds Belrock Farm Ltd, or to any other customer, was presented to the Tribunal.
Mr. Borho also stated that “He heard from other clients who either claimed they did not receive their letter or said they received it but were still dissatisfied with their claim payment” and that “He did not know how many customers claimed not to have received the letter of April 12, 2006.”
Mr. Borho testified further that “customers who lived in geographic townships adjacent to those which received the new rain stations in 2005 were not sent letters but should have been. They would have had the option to select one of those new stations or staying with the stations already assigned to them.” (Underlining added)
Mr. Borho stated in addition that “There were 800 customers who should have been notified about new rain stations; only 192 were notified.”
In the light of the foregoing evidence, the Tribunal was persuaded by the preponderance of that evidence or the balance of probability that it is more reasonable to conclude that the letter was not mailed. Having made this finding and based on the instructions of the Court, there is no need to proceed to the second task stipulated by it. It is, therefore, the re-determined decision of the Tribunal that Leeds Belrock must be treated in the same manner as insured persons who were not informed of the new rain stations.
DATED AT Guelph, Ontario this 28^th^ day of January, 2008.