Masterson v. Agricorp, 2009 ONAFRAAT 19

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 Stone Road West

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 Courriel : appeals.tribunal.omafra@ontario.ca

Jim Masterson v. Agricorp

Masterson v. Agricorp 2009 ONAFRAAT 19

Crop Insurance Act

July 21, 2009

DATE OF DECISION:

August 13, 2009

2009-19

2009 ONAFRAAT 19

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

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Jim Masterson (Masterson Farms), of Chatham, Ontario from a decision of Agricorp to deny his claim for his 2008 crop of processing peas.

Before:

Kirk Walstedt, Chair; Cor Kapteyn, Vice-Chair; Rob Scouller, Member

Appearances:

Jim Masterson, appellant

Chris Masterson, on behalf of the appellant

Chad Burley, witness for the appellant

John Lugtigheid, witness for the appellant

Fred Thomson, on behalf of the respondent, Agricorp

Arlie McFaul, witness for the respondent

Harry Fraser, witness for the respondent

Bill McDonald, witness for the respondent

Peter Fisher, witness for the respondent

This appeal was heard in Guelph, Ontario, on July 21, 2009.

DECISION OF THE TRIBUNAL

Background

Jim Masterson is a farmer from the Chatham area who has farmed for 46 years. In the last 25 years he has farmed a total of 500 acres consisting of owned and share cropped land. Mr. Masterson grows a variety of crops including wheat, soybeans, audzuki beans, corn, seed corn, pop-corn, hemp, and processing vegetable crops which include peas, green beans and sweet corn. He has ten years experience growing processing vegetable crops and has grown between 35 and 100 acres of vegetable crops per year.

In 2008, Mr. Masterson grew 50 acres of processing peas for Omstead Foods and 57 acres for BonDuelle for which Mr. Masterson carried crop insurance through AgriCorp. All of the processing peas grown for Omstead Foods were harvested except for 8.7 acres due to the presence of nightshade weed. None of the processing peas grown for BonDuelle were harvested due to the significant infestation of nightshade weed and its small green berries which affected the whole crop.

Mr. Masterson informed AgriCorp of damage to the Omstead Foods pea crop due to excessive rainfall. An adjuster subsequently visited the farm to complete a report on both the Omstead and BonDuelle fields. The report identifies the unharvested crop as an uninsured peril due to weeds. Mr. Masterson claimed that the weeds were the result of excessive rain which is an insured peril, and felt his claim should be paid.

Mr. Masterson appealed to the Tribunal as a result of his claim for the loss of his 57 acres of processing peas being denied by AgriCorp.

Preliminary Matters

At the onset of the hearing, Kirk Walstedt, Chair, identified a working relationship he had approximately 4 years ago with Chris Masterson when Mr. Walstedt was legal counsel for the Municipality of Lakeshore but has not had any dealings with him since that time. Neither AgriCorp nor Jim Masterson had any concerns with Mr. Walstedt continuing to hear the matter.

Chris Masterson asked to submit new information for the hearing consisting of a letter from a geo technical firm, scientific literature from the internet, literature on the weed chemical Pursuit, a soil analysis report and a revised presentation. Mr. Thomson objected to the submission of the documents due to the detail of their contents and the fact that he has not had sufficient time to review them.

Following a recess to consider the matter, the Tribunal ruled that it would not allow the documents to be submitted since AgriCorp did not have sufficient opportunity to review the documents in advance.

Issue

The issue before the Tribunal is whether Mr. Masterson’s 2008 processing pea crop loss was due to excessive rain, which is an insured peril, or whether the crop loss was due to excessive weed growth, which is not an insured peril.

Evidence

The Tribunal heard from Jim Masterson that in 2008 he grew 50 acres of processing peas for Omstead Foods and 57 acres for BonDuelle. He stated that the land he farms has always had a small amount of nightshade weed to contend with. Mr. Masterson explained that part of his weed control program includes rotating his crops among wheat, soybeans, and vegetable crops as well as using different chemical sprays.

He stated that the peas for Omstead Foods were planted on April 28, 2008, and the peas for BonDuelle were planted on May 16 and 18, 2008. Two days after planting, the herbicide Pursuit was sprayed on the crop for weed control at a slightly higher rate than recommended as his soil is a sandy loam. Jim Masterson stated he uses Pursuit as it is easier on his land, does not leach as much, does not affect the root zone on the peas as much, and does a good job in controlling grasses and nightshade. He stated that nightshade was not uncommon, especially on this type of soil. In order to keep it in check he rotates his crops as most herbicides are not very effective in controlling this weed.

The Tribunal heard that Jim Masterson checked his pea crop either every day or every other day. He stated that he does not do an extensive walk around his fields but, like most crop farmers, every other day he walks a “Z” pattern through the crop and also checks trouble spots. Jim Masterson told the Tribunal that for the first month of the crop, everything was good and the crop of peas looked very good.

Jim Masterson explained that because peas are for human consumption, there is a pre-harvest period mandated by the processor (BonDuelle) in which chemical herbicide cannot be used. He stated that all processors abide by these requirements to ensure there are no chemical residues in the vegetables. In the case of Pursuit, this pre harvest period is four weeks before the crop is harvested. Jim Masterson explained that he could not use other post emergent herbicides on the peas as it was already too close to the pre-harvest interval by the time the weed problem was evident to him. He also explained that other weed control methods such as hoeing the nightshade could not be used as pea pods would be crushed using this method which would cause sour pods, and cause the crop to be rejected. He stated that pulling the nightshade by hand was also not possible since the nightshade was wrapping around the pea crop and would have the same effect. Masterson stated that he is aware that nightshade is more of an issue in wet weather.

The Tribunal heard from Chris Masterson, a representative for Jim Masterson, about rainfall data in the Chatham-Kent area. The Tribunal heard that data from the Chatham-Kent Water Pollution Control Plant indicated that 107 mm or 5.5” of rain fell in the area in 2008, which is similar to Agricorp’s rainfall data for the same time period. The Tribunal heard that the average rainfall in the area in June is 57 mm. Chris Masterson also told the Tribunal that the land farmed by Jim Masterson is tiled at 30 to 35 foot intervals and is well drained. It was Chris Masterson’s contention that the excessive rainfall that fell in June 2008 caused leaching of the herbicide in the pre-harvest period, which, in turn, allowed the nightshade weeds to flourish

Chad Burley, an Agronomist and the Assistant Manager for Thompsons Ltd in Chatham Kent, also testified on Mr. Masterson’s behalf.

He stated that there are a number of herbicides that are used to control nightshade, however the timing of the herbicides application, combined with the proper weather, are crucial factors in order to achieve successful eradication of the weed. He noted that Tropidox was one such herbicide that could have been used to fight small emerging nightshade, although there was also a very short window of opportunity in which to apply it on the crop.

Peter Fisher testified on behalf of Agricorp. He noted he has been an Adjuster for Crop Insurance for the past 16 years and is also a full time farmer. On July 21^st. he was contacted by Mr. Masterson that he had an issue with nightshade is his pea crop and that the processor was not prepared to harvest the crop due to the large amount of the weed in the crop. Mr. Fisher noted that during his visit to the Masterson farm on July 3^rd. there was no mention of nightshade being a potential problem. He also noted from his inspection of the crop there were no obvious signs of water damage to the crop. Had the the loss been caused by excessive rainfall, he stated the peas would have suffered from root rot and turned yellow. Mr. Fisher turned to the photos provided by the appellant to prove his point that the crop in question was a bright green healthy colour.

He subsequently completed a claim report in which he concluded the crop loss was due to inadequate weed control which, pursuant to the terms of the crop insurance contract, is not an insured peril. Mr. Masterson did not agree with his findings and refused to sign the report. Another Agricorp witness testified that in his experience he had never seen nightshade take over a field so quickly, in one season.

Mr. Fisher concluded that the Crop insurance Review Committee accepted his conclusion and denied Mr. Masterson’s appeal at its October 8^th meeting.

In his Summation, Mr. Masterson stated the following:

Excessive rainfall prevented him from being able to control the nightshade which rendered his crop unharvestable.
The herbicides that he did apply leached into the soil as a result of the heavy rainfall and were unable to control the nightshade as a result.
The nightshade grew excessively in the later stage of the crop’s growing cycle due to the high rainfall amounts.
He was unable to remove the nightshade by any other means due to the weeds ability to wrap itself around the plants.
He practiced due diligence in attempting to control the nightshade but was simply prevented from doing so due to the inclement wet weather.
The amount of his loss was $38,884.73 on this crop and he asks the Tribunal to overturn Agricorp’s decision.

Agricorp summarized its evidence as follows:

Nightshade is a weed and therefore a crop loss caused by it is not an insured peril.
Significant means are sometimes needed to eradicate weeds.
There was no mention of a potential nightshade problem in the BonDuelle field, when the adjuster visited Mr. Masterson on July 3^rd.
The adjuster observed the crop, following the claim and could not find an insured peril.
Does not find the spray leaching theory a credible argument as there were no other weeds present in the crop.
Nightshade is beginning to show tolerance to spray control in this part of the province.
The processor refused to take the crop because of weed infestation (nightshade) and not because of water damage.
The Tribunal is requested to uphold Aricorp’s decision to deny the claim.

Findings and Analysis

Mr. Masterson had two contracts for growing peas with two different processors.

a) 50 acres were planted April 30, 2008, under the Omstead contract and were harvested on July 3^rd. This crop had been sprayed with the pre-emergent herbicide Pursuit. The entire crop was harvested with the exception of 8.7 acres because of heavy black nightshade infestation. The amount of harvested crop however exceeded expectations. The decision by Omstead to plant early was due in part because Nightshade is a known late season weed which can seriously affect a pea crop by preventing it to be harvested.

b) 57 acres were planted under the BonDuelle contract in mid May with a harvest target of July 15^th. The crop was sprayed with the pre-emergent herbicide Pursuit. However, the processor refused to harvest the entire crop due to a heavy infestation of nightshade.

Evidence demonstrated that Mr. Masterson is a long standing highly respected farmer in the community. He has been very conscientious in growing vegetable crops for processors in his area.

Although, records indicate above average rainfall for this area in June, both parties testified that the land in question, is well drained sandy loam ground that dries up quickly after heavy rain.

Evidence also suggests that it is not normal for nightshade to take over an entire field in one year thus making the landowner aware that this weed requires serious attention in order to keep it under control.

Photographic evidence and subsequent testimony from Agricorp shows there were no other weeds present in the field which indicated an eradication efficiency of the herbicide.

Evidence was provided that some herbicide (Tropidox) could have been sprayed, albeit in a specific window on the small weeds prior to the 4 week hiatus period, but this was not done.

Evidence was also presented to the Tribunal that, despite the above average rainfall, the pea crop in question showed no obvious signs of water damage such as yellowing of the crop or plants withering from root rot.

Mr. Masterson recognized that he had his challenges with nightshade on his farm for a long time. Mr. Masterson testified that he walked his fields but missed the rapid growth of the nightshade. Although, no evidence was presented to having discussed an earlier planting date in order to help address the nightshade problem, the evidence with respect to the earlier planting of the Omstead contract suggests earlier plantings act as a deterrent to nightshade which thrives on the late spring warm weather. Such a decision by Omstead should have led to increased concern relative to the presence of nightshade.

There was speculation that the nightshade had developed a herbicide resistance, however no samples of nightshade from this field were provided for analysis; and as such this speculation was given little weight by the Tribunal.

We also note from the evidence before us that no report was filed with Agricorp prior to the rejection of the crop by the processor that nightshade could be a potential problem in the harvesting of the pea crop.

In essence, the Tribunal feels that in this particular instance, Mr. Masterson missed the evolving nightshade in his field with the BonDuelle contract. With earlier detection of those nightshade plants under the peas, other herbicides were available that could have been applied in time to control the weed prior to harvest. It is unfortunate that the planting/harvest timing was not more in line with that of Omstead, as that contract appears to have anticipated the nightshade problem.

Although, there is no argument that Mr. Masterson is indeed a good and well respected farmer, it is our determination that in this instance better weed management practices should have been in place. This is especially important as the evidence before us is compelling that nightshade has been an issue on the farm in question and as such a more comprehensive and better strategy should have been in place by which to control it.

ORDER

The Tribunal orders the appeal of Mr. Masterson be denied.

Dated at Maidstone, Ontario this 13^th day of August, 2009