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
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Pearse v AgriCorp
Pearse v AgriCorp [Request for Review] 2015ONAFRAAT06
STATUTE:
Crop Insurance Act
HEARING:
N/A
March 30, 2015
2015-06
NEUTRAL CITATION:
2015ONAFRAAT06
Pearse v Agricorp [Request for Review]
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, originally scheduled to be heard on August 26, 2009 but adjourned by the Tribunal pursuant to a Notice of Adjournment on August 25, 2009.
AND IN THE MATTER OF: A decision of the Tribunal dated November 20, 2014 granting AgriCorp’s motion, cancelling the re-hearing, rescinding the Tribunal’s decisions dated August 26, 2008 and June 5, 2009; and restoring the Tribunal’s decision dated May 22, 2008.
AND IN THE MATTER OF: A request for review by Bruce Pearse of the Tribunal’s decision dated November 20, 2014 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.
Before: Paula Lombardi, Vice Chair
Overview
The history of this protracted matter has been succinctly set out in Vice-Chair O’Kane’s motion decision of November 20, 2014 (“O’Kane Decision”). The O’Kane Decision provides a detailed review of Bruce Pearse’s (“Mr. Pearse”) initial hearing, request for review, scheduling of the re-hearing, and dismissal motion brought by AgriCorp that is subject to this request for review.
On May 22, 2008, after a full hearing on the merits, the Tribunal granted in part Mr. Pearse’s insurance claim relating to the spring wheat crop and dismissed his insurance claim for the soybean crop. Mr. Pearse filed, and was granted, a request for review of the May 22, 2008 Tribunal decision. Mr. Pearse was granted a re-hearing on the condition that he return the insurance claim monies received from AgriCorp. The Tribunal issued a clarifying order and procedural directions on August 26, 2008 and June 5, 2009 respectively. A re-hearing on the merits was scheduled for August 26, 2009.
On August 25, 2009, one day prior to the scheduled re-hearing, Mr. Pearse’s legal counsel requested and was granted an adjournment due to Mr. Pearse’s health issues.
On March 16, 2010, Mr. Pearse’s legal counsel advised the Tribunal Co-ordinator that Mr. Pearse, despite his ongoing health issues, was interested in scheduling the re-hearing and would be available on the dates specified in the months of June and July, 2010.
On May 19, 2010, AgriCorp responded to the letter from Mr. Pearse’s legal counsel and advised that it would be premature to set hearing dates until Mr. Pearse returned the insurance payments to AgriCorp as ordered by the Tribunal. AgriCorp subsequently sent another letter to Mr. Pearse’s legal counsel on December 7, 2010 again requesting that Mr. Pearse comply with the Tribunal’s order and return the insurance monies previously paid and confirm whether or not he will be proceeding with the review hearing.
On August 12, 2014, AgriCorp filed a motion before the Tribunal requesting that Mr. Pearse’s appeal re-hearing be dismissed. AgriCorp’s motion record was served on Mr. Pearse’s legal counsel on or about August 8, 2014. Neither Mr. Pearse nor his lawyer contacted AgriCorp about the motion materials. Neither Mr. Pearse nor his lawyer filed any responding materials with the Tribunal or AgriCorp. At the September 4, 2014 motion hearing, Mr. Pearse requested that the Tribunal adjourn the AgriCorp motion. The basis for the adjournment request was that his legal counsel had recently undergone major surgery.
It is important to note that prior to AgriCorp filing its dismissal motion, it made no less than thirteen (13) attempts to contact Mr. Pearse’s legal counsel about this matter. In or around March 2011 and again on September 26, 2014, AgriCorp reached out to Mr. Pearse’s legal counsel in an attempt to settle this matter.
The Tribunal adjourned the AgriCorp dismissal motion to November 5, 2014; being a date agreed upon by Mr. Pearse and his legal counsel. The Tribunal also ordered that Mr. Pearse or his legal counsel file responding motion materials including evidence on three specific issues raised at the September 4, 2014 hearing. One of these issues included providing evidence from his legal counsel or someone from his firm as to why the adjournment request of September 4, 2014 was not communicated to AgriCorp’s legal counsel.
Neither Mr. Pearse nor his legal counsel filed any materials in response to this specific issue. The affidavit of Mr. Pearse’s legal counsel simply states that he has no recollection as to whether or not he advised Mr. Pearse to contact AgriCorp about the request to adjourn the hearing of the motion. The only information filed in response to the motion to dismiss was the affidavit from Mr. Pearse’s legal counsel dated October 15, 2014.
On November 5, 2014, at the rescheduled motion hearing, the Tribunal reviewed and heard the evidence of the parties and granted AgriCorp’s dismissal motion, cancelled the re-hearing, rescinded the Tribunal’s decisions dated August 26, 2008 and June 5, 2009, restored the original decision of the Tribunal dated May 22, 2008, and ordered AgriCorp to pay Mr. Pearse the sum of $2,848.32 in accordance with the Tribunal’s decision dated May 22, 2008.
On December 22, 2014 at 8:16 p.m., Mr. Pearse filed an unsigned request for review of the Tribunal’s decision dated November 20, 2014. A signed copy of this request for review was received by the Tribunal on December 23, 2014.
On January 5, 2015, the Tribunal acknowledged Mr. Pearse’s request for review and asked that Mr. Pearse provide reasons in support of the delay in filing the request for review. The deadline for filing a request for review is no later than 4:00 p.m. thirty (30) days after the date of the Tribunal’s decision. Mr. Pearse’s request was received at 8:16 p.m. on December 22, 2014 and deemed to be received by the Tribunal on December 23, 2014; being one day after the expiration of the thirty (30) day period.
On January 29, 2015, the Tribunal sent another letter to Mr. Pearse again requesting that Mr. Pearse provide reasons in support of the delay in filing the request for review.
Context about Requests for Review and the Tribunal’s Rules
Under the Crop Insurance Act, 1996, a decision of the Tribunal is final and not subject to any right of appeal.
Section 21.2 of the Statutory Powers Procedure Act (“SPPA”) grants the Tribunal the authority to review its own decisions. This power is contingent on the Tribunal enacting rules setting out the review of its own decisions. The SPPA authorizes the Tribunal to confirm, vary, suspend or cancel a decision or order and provides that such a review “shall take place within a reasonable timeframe after the decision or order is made.”
The Tribunal enacted rule 29 of its Rules of Procedure (“Rules”) that sets out the process used by the Tribunal in determining whether it is advisable to conduct a review of all or any part of a final decision or order and sets out the circumstances that a Tribunal may consider relevant to such a review. The review of a Tribunal decision pursuant to the authority granted by the SPPA is an exception to the principle that Tribunal decisions under the Crop Insurance Act are final. A re-hearing ordered under the Tribunal’s review power represents an exception to the finality principle. Finality is considered important because absent this, there would be no certainty with respect to the outcome of any legal process.
Under the Tribunal’s Rules, a request for review is evaluated by the Chair or a Vice-Chair to determine whether or not the request merits a review hearing. The circumstances considered by the Tribunal in determining whether it is advisable to conduct a review of all or any part of the Tribunal’s final decision are set out in Rule 29.09:
29.09 In deciding whether it is advisable to conduct a review of all or any part of a final decision or order, the Tribunal may consider any relevant circumstances including:
a. whether there is significant new evidence which was not available at the time of the original appeal;
b. whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision;
c. the extent to which any party to the appeal or any other person has relied upon the final decision or order;
d. the extent to which any party to the appeal or any other person will be affected by the review process; and
e. whether the public interest in finality of decisions is outweighed by the alleged prejudice to the requester.
The Tribunal’s role when a request for review is received is to evaluate the request for review; not to conduct the review. If, based on the Tribunal’s consideration of the relevant circumstances, including but not limited to the circumstances set out in Rule 29.09, the Tribunal finds that a review is advisable, the request for review should be granted. In the event a review is granted, the procedure applied to such a review is set out in Rules 29.23 to 29.26 and the Tribunal directs that a re-hearing on the matter be held.
Mr. Pearse’s Reasons for the Request for Review
Mr. Pearse is seeking a request for review of the Tribunal’s November 20, 2014 decision on the basis that there was no reason for the Vice-Chair to dismiss the evidence of his legal counsel. Further, Mr. Pearse claims that he provided oral evidence as to his health issues and how it impacted the farming operations but that Vice-Chair O’Kane dismissed his evidence. Mr. Pearse claims to have been misled by Vice-Chair O’Kane as it was his understanding that a verbal hearing would be held.
In the request for review, Mr. Pearse indicates that the delay in time in scheduling the re-hearing was totally out of his control and that neither his legal counsel nor AgriCorp nor the Tribunal advised that he should be scheduling a new date for a hearing or risk having the matter dismissed.
Mr. Pearse also challenges the neutrality and impartiality of the Tribunal.
Review Findings
AgriCorp’s motion to dismiss, the letter and affidavit of Donald Good, the reply letter and affidavit of Greg Sayer from AgriCorp, information provided at the hearing of the motion to dismiss, the Tribunal’s decision, and materials filed in support of this request for review were all reviewed as part of this decision.
Mr. Pearse, in his request for review, indicates that if the Tribunal requires more information that he “would be pleased to provide whatever it needs”. Despite this statement, Mr. Pearse failed to respond to the Tribunal’s two requests seeking an explanation as to why his request for review was filed outside of the thirty (30) day period until February 11, 2015, approximately six weeks after the Tribunal’s initial request.
Rule 29.10 of the Rules requires that a request to review a Tribunal decision be filed within thirty (30) calendar days of the date of the final decision. Extensions may be granted under Rule 29.11 where there is “good reason for the delay”. Mr. Pearse’s failure to respond within the required timeline was due to an immigration incident relating to his son. Mr. Pearse did not provide any supporting evidence or documentation. However, as Mr. Pearse’s unsigned request for review was filed only 4 hours outside of the required timeline, the Tribunal will exercise its discretion and grant an extension to the time period and consider Mr. Pearse’s request for review.
Mr. Pearse has failed to provide any significant new evidence, or any evidence, not available at the time the motion by AgriCorp‘s dismissal motion was heard on November 5, 2014. Instead, Mr. Pearse’s request for review focuses on the failure of the Vice-Chair to consider Mr. Pearse’s or his legal counsel’s health issues.
Mr. Pearse has failed to provide any explanation as to why his legal counsel failed to respond to no fewer than six correspondences from AgriCorp since December 2012.
Mr. Pearse claims that his oral evidence with respect to his health issues was not taken into consideration. There is no indication from the decision of the Tribunal that the oral submissions made by Mr. Pearse were not properly considered by the Tribunal in coming to its decision. The decision to dismiss Mr. Pearse’s appeal indicates that there was no medical evidence about the health of Mr. Pearse or his legal counsel to explain the more than six years that has lapsed since the original decision was rendered and the five-year delay of Mr. Pearse in scheduling the re-hearing that was adjourned on August 25, 2009.
The Affidavit of Mr. Pearse’s legal counsel indicates that Mr. Pearse did not transfer his file to the new law firm and, as a result, there is no longer a solicitor-client relationship with the new firm. Despite this statement, Mr. Pearse’s legal counsel implies in his affidavit that he had every intention of representing Mr. Pearse at the dismissal motion until he accidently fell. Mr. Pearse’s legal counsel claims that AgriCorp should have served the dismissal motion on Mr. Pearse directly. There is no basis for this claim since it appears from the materials that Mr. Pearse’s legal counsel, even with the change in firms, was continuing to represent Mr. Pearse in this matter.
It is the obligation of Mr. Pearse’s legal counsel, at the end of his representation, to inform AgriCorp that any materials should be sent directly to Mr. Pearse. There is no indication in the materials that Mr. Pearse’s legal counsel ever advised AgriCorp that he was no longer representing Mr. Pearse. Mr. Pearse’s legal counsel acknowledges that a Notice of Change of Solicitors had not been filed.
Mr. Pearse has failed to provide any evidence to contradict the finding that the delay cannot be attributed to the actions of AgriCorp. The delay refers to the approximately five-year delay in scheduling the re-hearing of the matter. Mr. Pearse was represented by legal counsel and his legal counsel did not change firms until June 1, 2013. The affidavit of Mr. Pearse’s legal counsel confirms that he has been Mr. Pearse’s lawyer since the original appeal hearing in 2008. Mr. Pearse claims that he was not aware nor was he advised that he should be scheduling a new date for the hearing or risk having the matter dismissed.
Mr. Pearse attended at the May 2008 hearing, filed the request for review of the initial decision, was provided with a clarifying order and procedural directions, requested and was granted an adjournment of the re-hearing in 2009, and appeared before the Tribunal in September 2014 to request an adjournment, and appeared at the November 2014 hearing. There is a long history to this matter and Mr. Pearse is familiar with Tribunal procedures. It is Mr. Pearse’s obligation upon filing an appeal to the Tribunal to understand the rules and procedures or alternatively seek clarification from his legal counsel. Mr. Pearse and/or his legal counsel continually ignored or disregarded correspondence received from AgriCorp throughout most the five year period between 2010 and the motion to dismiss in 2015.
The Tribunal’s decision dated November 20, 2014 relates to the motion to dismiss brought by AgriCorp and was not the re-hearing of the matter as suggested by Mr. Pearse. Mr. Pearse claims that the Tribunal’s decision failed to mention the prior error on insurance law made by the Tribunal at the first hearing of this matter. There was no evidence before the Tribunal on this issue. There is simply a statement from Mr. Pearse’s legal counsel that in his opinion, Mr. Pearse has a meritorious case.
The affidavit filed by Mr. Pearse’s legal counsel in response to the Tribunal’s Order of September 2014 requests that the decision to allow the original May 2008 decision be overturned on the basis that the original Tribunal panel applied the wrong principles of law to the fact situation. Neither Mr. Pearse nor his legal counsel provided any evidence or documentation to substantiate this statement. A bald statement that the Tribunal applied the wrong principles of law without an explanation or supporting documentation is not sufficient in and of itself to show that the alleged error occurred.
The dismissal motion brought by AgriCorp focused on Mr. Pearse’s failure to pursue the request for review hearing within a reasonable timeframe and the failure of Mr. Pearse to comply with the Tribunal’s order to return money to AgriCorp.
Mr. Pearse claims that the Tribunal failed to act in a neutral and impartial manner. Mr. Pearse failed to provide any evidence to support such serious allegations except for a newspaper article in which his legal counsel criticizes the Tribunal as an adjudicative body. There is no indication in the Tribunal’s decision of any failure to act in a neutral and impartial manner when reviewing the evidence before it in making a determination on AgriCorp’s motion to dismiss.
The request for review filed by Mr. Pearse fails to meet the test set out in Rule 29.09. Mr. Pearse failed to provide any significant new evidence that was not previously available or before the Tribunal. The Tribunal was advised of the health issues of both Mr. Pearse and his legal counsel. The affidavit of Mr. Pearse’s legal counsel contains a series of statements but fails to produce any supporting documentation for his statements nor does he provide any corroborating medical evidence of his own health issues.
Neither Mr. Pearse nor his legal counsel provided any information in support of an allegation or concern that the Tribunal made a material error of law or fact in its November 20, 2014 decision on the dismissal motion such that a different decision would likely have been reached.
Rule 29.09 states that the matter of reliance upon a final decision and the effect that the Review process has on any party or person, may be considered in determining whether or not a request for review is warranted. The Legislature provided clear direction when drafting the SPPA that the power of an administrative tribunal to review its decisions shall take place within a reasonable time. This is true for any re-hearing scheduled under the Tribunal’s review power set out in Rule 29.09. Mr. Pearse has failed to provide any new information to contradict the Tribunal’s position that the over five years of delay in scheduling the re-hearing are directly attributed to the actions of Mr. Pearse and/or his legal counsel. This delay has resulted in a lack of finality and increased costs to both the Tribunal and AgriCorp. AgriCorp, as the other party impacted by this Tribunal’s process and procedures, is entitled to have some finality in the process.
After considering the request for review materials filed by Mr. Pearse, the paper record of the hearing on the motion to dismiss, the Book of Authorities, and the Tribunal’s decision dated November 20, 2014, I find that no new evidence has been submitted to support the granting of Mr. Pearse’s request for review. Mr. Pearse failed to support any allegations that the Tribunal made an error of fact or law in reaching its decision.
Decision of the Tribunal
The request for review by Bruce Pearse is hereby denied and the Tribunal’s decision of November 20, 2014 stands.
Dated at London, Ontario this 30th day of March, 2015