Pearse v. AgriCorp, 2014 ONAFRAAT 30

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: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

APPEAL: Pearse v AgriCorp

Pearse v AgriCorp [Motion to Dismiss] 2014ONAFRAAT30

STATUTE: Crop Insurance Act

HEARING: N/A

DATE OF DECISION: November 20, 2014

2014-30

NEUTRAL CITATION: 2014ONAFRAAT30

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 Bruce Pearse, Sunderland, Ontario from a decision of AgriCorp concerning the adjustment of his claim for his 2006 red spring wheat and soybean crop, and his fall red wheat planted in 2005 and harvested in 2006.

AND IN THE MATTER OF: A motion by AgriCorp requesting an Order dismissing Bruce Pearse’s Request for Review of the Tribunal’s decision dated May 22nd, 2008.

Before: John O’Kane, Vice Chair

Appearances: Carolyn Stobo, counsel for AgriCorp Liz Sanders, Team Lead Program Quality for AgriCorp Bruce Pearse, appellant

DECISION OF THE TRIBUNAL

Background

This matter has a long history before the Tribunal dating to May 22nd, 2008 when, after a full hearing on the merits, a Tribunal panel granted in part Bruce Pearse’s insurance claim related to his spring wheat crop and dismissed his soybean crop claim.

The matter then returned to the Tribunal in July 2008 when I considered and granted Bruce Pearse’s request for a review of the earlier decision. After that, the matter returned before me on two more occasions that resulted in a further clarifying order and procedural directions of August 28th, 2008 and June 5th, 2009.

The outcome of those review related proceedings was that Bruce Pearse was granted a re-hearing on the condition that he return the insurance claim payment that he had received from AgriCorp.

The re-hearing on the merits was then scheduled for August 26th, 2009.

On August 25th, 2009, Mr. Pearse’s legal counsel wrote to the Tribunal advising that Mr. Pearse was scheduled for urgent surgery for cancer treatment and, as a result, he requested and was granted an adjournment.

The Tribunal granted the adjournment to a date to be determined.

Between August 25th, 2009 and this motion nearly five years later, neither Bruce Pearse nor his legal counsel re-scheduled the matter for hearing.

AgriCorp’s Dismissal Motion

On September 4th, 2014 AgriCorp brought a motion before the Tribunal seeking the dismissal of Bruce Pearse’s appeal re-hearing.

The AgriCorp Motion Record had been served on Bruce Pearse’s lawyer on August 8th, 2014, nearly a month before the motion hearing. Between service of that Motion Record and the September 4th hearing, Bruce Pearse’s lawyer had no contact with AgriCorp.

At the September 4th motion hearing Mr. Pearse appeared and sought to postpone the AgriCorp motion advising that he had only recently spoken with his lawyer who had been ill and had major surgery. Mr. Pearse told the Tribunal that his lawyer asked him to advise that he would be available to conduct the appeal re-hearing between November 3rd and November 6th, 2014.

I adjourned the AgriCorp dismissal motion to November 5th, 2014 and ordered that Bruce Pearse or his lawyer file responding motion material that was to include evidence on three specific issues arising on that September 4th hearing: evidence to confirm when Bruce Pearse received the June 5th, 2009 Tribunal Order; evidence why Mr. Good, or someone from his firm was not at the September 4th dismissal motion; evidence why Mr. Good, or someone from his firm, did not communicate the adjournment request to AgriCorp’s counsel.

Bruce Pearse Response to Motion

Bruce Pearse did not file any responding motion materials for the November 5th dismissal motion. Therefore, the Tribunal had no evidence from Mr. Pearse on the motion about any of the substantive issues raised in support of the requested dismissal.

For example:

there was no evidence to explain why Mr. Pearse failed to comply with the Tribunal’s June 5th, 2009 order to repay to AgriCorp the $2,848.32 he received from AgriCorp arising from the May 22nd, 2008 decision.
there was no evidence to explain why five (5) years had passed with no re-scheduling of the appeal re-hearing.

Bruce Pearse’s lawyer filed a three page affidavit sworn by Donald Good on October 15th, 2014.

Mr. Good’s affidavit confirmed that he had been Mr. Pearse’s lawyer since the original appeal hearing that resulted in the May 22nd, 2008 decision.

However, Mr. Good’s affidavit was not very helpful in a number of respects:

For example:

Mr. Good alludes to Mr. Pearse’s serious health condition after the July 25th, 2008 in very general terms but with