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 Courriel: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Farinacci v AgriCorp (RE) [Decision]
Farinacci v AgriCorp (RE) [Decision]
STATUTE:
Agricultural Products Insurance Act, 1996, S.O. 1996, c. 17, Sched. C.
HEARING:
June 9, 10, and 12, 2025
DATE OF DECISION:
July 10, 2025
001Farinacci24
NEUTRAL CITATION:
2025 ONAFRAAT 12
IN THE MATTER OF the Agricultural Products Insurance Act, 1996, S.O. 1996, c. 17, AS AMENDED
AND IN THE MATTER OF an appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) by Leonard Farinacci of Niagara-on-the-Lake, Ontario from decisions of AgriCorp dated September 11, 2024 and November 7, 2024.
AND IN THE MATTER OF An Electronic Hearing pursuant to Rule 18 of the Tribunal’s Rules of Procedure
BETWEEN:
Leonard Farinacci Appellant
– and –
AgriCorp Respondent
Before: Glenn C. Walker, Chair; Judy Dirksen, Member; Betty Ann MacKinnon, Member.
Parties Present: Leonard Farinacci, Appellant Kevin McCormack, Counsel for Respondent Elizabeth Sanders, AgriCorp, Respondent
Self-Represented
Represented by Kevin McCormack
Held: June 9, 10, and 12, 2025 via Zoom
TRIBUNAL DECISION
1Leonard Farinacci (“Appellant”) appeals to the Tribunal from decisions of AgriCorp dated September 11, 2024 and November 7, 2024 pursuant to Section 10 of the Agricultural Products Insurance Act, 1996, S.O. 1996, c. 17, Sched. C.
2The decision letter of September 11, 2024 contains three decisions of AgriCorp’s Issue Review Committee (“IRC”) entitled 2022 Grape Vine Rider Claim, 2023 Grape Coverage and 2023 Grape Production Claim.
3In its letter of November 7, 2024 to the Appellant, AgriCorp advised that it was cancelling his policy coverage for 2024 and refunding his premium.
4By Order dated January 7, 2025, the Tribunal ordered, on consent, that all appeals be heard together pursuant to Rule 13.01 of the Tribunal’s Rules of Procedure.
BACKGROUND
5The Appellant operates a vineyard, consisting of approximately 30 acres, on a farm owned by his father at 12 Martin Road, Niagara-on-the-Lake, Ontario. Ten acres of Merlot and Sauvignon Blanc vines were planted in 2000 or 2001. In 2007 he planted 10 acres of Vidal vines and 10 acres of Riesling vines.
6In the relevant years, 2022, 2023 and 2024, the Appellant was covered by a Fruit Policy with AgriCorp. Each year the policy provided coverage for the calendar year unless cancelled.
GRAPE VINE RIDER CLAIM
Facts Relating to This Appeal
7For the year 2022, the Appellant was covered by a Grape Vine Rider to provide protection against the loss of dead vines. The Rider extended the coverage period for dead vines to August 1, 2023. In other words, if vines were damaged in 2022, they would be covered by the Rider if they died before August 1, 2023.1
8In the winter of 2021-2022 the Appellant allegedly suffered winter freeze damage to his Merlot and Sauvignon Blanc vines. He contacted AgriCorp on May 12, 2023 and made a claim. His adjuster, Peter van Weerden, assisted by adjuster Maribeth Fitts, conducted several counts of the dead vines and calculated the amount of the claim that would be paid.
9In determining which vines were dead the adjuster referred himself to the definition of “Tree/Vine Mortality” 2 in the contract which provided that “Loss of or damage to Apple Trees, Tender Fruit Trees, or Grape Vines caused by an Insured Peril to the extent that there is no reasonable possibility of establishing or re-establishing them as a viable production unit”.
10The dead vines counted by the adjusters on April 24, 2023 were as follows:
Block 110 Merlot – 280 dead vines
Block 120 Merlot – 418 dead vines
Block 130 Sauvignon Blanc – 822 dead vines
Block 140 – Sauvignon Blanc – 835 dead vines
Blocks 150 and 170 Riesling – 893 dead vines
Total dead vinifera vines: 3,248.
11The vinifera vines were subject to a deductible of 2,292 vines. This resulted in 956 vines over the deductible being covered. With an assigned replacement value of $14.50 per vine, this claim amounted to $13,862.
12Vinifera and hybrid grape vine claims are counted separately. The total dead vine count for hybrid grape vines was 465. The deductible was 1,188 vines so no payment was forthcoming.
13The dead vines must be removed and destroyed before the claim will be paid.3 The Appellant has not removed the dead vines, and no payment has therefore been made on this claim.
14The Appellant called Dr. Kevin Ker as his expert witness. He was accepted by the Tribunal as an expert with respect to viticulture. Dr. Ker viewed the vineyard on June 10, 2024, and inspected the Merlot and Sauvignon Blanc Blocks. In his report he stated that “It was very apparent that these vines had suffered significant damage from the winter freeze event of the winter of 2021-2022”.
15He further opined that “As with many vineyards throughout Ontario in vineyards where all vines were not immediately pulled out, the general recommendation was to leave unpruned to determine whether the vines would recover at all and if sufficient growth would take place to allow for vine recovery and reestablishment of the vineyard block”.
16He further stated that “There was not a lot of regrowth in this block and many of the vines that had regrowth in 2022 likely succumbed to the injury in late 2023 after a growing season that had very high precipitation levels which caused furth(er) [sic] damage to an already weakened vine.”
17The IRC considered the Appellant’s contention that additional vines should have been included in the 2022 claim. The IRC made the following decision:
Agricorp conducted multiple grape vine counts throughout the coverage period to ensure accurate counts of dead vines. The vines that died after the coverage ended (Aug. 1, 2023) are not eligible for a 2022 Grape Vine Rider claim. The consultant’s report you provided from Kevin Ker of Ker Consulting does indicate further vine death. However, his inspection was conducted on June 10, 2024 which is 11 months post the coverage ending period. Due to this timing, the results and findings are not an accurate representation of the state of the vineyard at the time of Agricorp’s inspection which occurred before the end of the coverage period.
It is the position of the Issues Review Committee that Agricorp met the obligation under the Contract of Insurance … You remain eligible for the original calculated vine claim, pending the removal and destruction of the dead vines.
18We agree with the rationale used by the IRC in reaching its decision.
19The Appellant raises the issue of when is a grape vine considered to be dead. This issue was raised with the adjuster, but it is not clear from its decision whether it was considered by the IRC.
Analysis
20The Respondent relies on its interpretation of the definition of Tree/Vine Mortality, as referenced above, which provides that a vine is considered dead where there is no reasonable possibility of establishing or re-establishing the vine as a viable production unit (Tribunal emphasis).
21AgriCorp’s position is that if the vine shows no evidence of growth or regeneration by August 1, it is dead.
22The Appellant disagrees and argues that vines which have been “structurally damaged” by the freeze should be included and counted as dead vines.
23There is no definition of “structurally damaged” in the policy and no definition of that term was given to the Tribunal. Furthermore, the Appellant did not provide the Tribunal with any count of how many vines he considered to be structurally damaged before August 1, 2023 and should have been included in the count.
24Dr. Ker testified that one can have vine damage that does not have to be outright vine mortality but damage which could significantly reduce the productivity of the vine, not only in the year the damage to the vine was observed but in subsequent years. It may take the vine a number of years to recover. In some cases, the vine might show some growth in a singular season and then collapse the following year.
25We accept the evidence of Dr. Ker on this issue. However, the definition of vine mortality requires the adjuster to decide with respect to each vine whether there is a reasonable possibility of the vine establishing or re-establishing itself as a viable production unit.
26The adjuster took the position that a dead vine is a dead vine without requiring him to “guess” whether any particular vine might possibly re-establish itself as a viable production unit. In fact, Dr. Ker had advocated that one should not be in a rush to pull out a freeze damaged vine and take the wait and see approach.
27The Tribunal finds the adjuster’s interpretation of the policy and his exercise of decision-making to be reasonable in the circumstances, considering that the evidence disclosed that the Appellant would be able to claim for dead vines which died from the effects of the 2021-2022 freeze in a subsequent year.
28This appeal is dismissed for the reasons given above.
2023 GRAPE COVERAGE
Facts Relating to This Appeal
29At the beginning of the policy coverage period, the adjuster inspects the vineyard to assess its insurability. On May 4, 2023, the adjuster and the Regional Manager Mark Neufeld, after inspecting the Appellant’s vineyard, determined that the Merlot and Sauvignon Blanc Blocks had zero potential production for 2023.
30In his Adjuster’s Special Report after the May 4, 2023 inspection, the adjuster states as follows:
The Merlot and Sauvignon Blanc blocks have new shoots for renewal and are not yet selected and trained to the wire. This block has no potential production for 2023 on the remaining vines. These blocks do not meet 80% for whole block removable. There are dead arms and trunks to be removed, which show signs of powdery mildew and downy mildew which will require a rigorous spray program.
31As a result of this inspection, the 2023 policy provided zero potential production for the Merlot and Sauvignon Blanc blocks. Obviously, many of the vines in these blocks had been determined to be dead by AgriCorp. The Appellant was provided with confirmation of the 2023 coverage including the provision that there was zero potential production assigned to the Merlot and Sauvignon Blanc blocks. The Appellant accepted the terms of the policy by paying the 2023 premium.
Analysis
32The Appellant disagrees with the decision of the IRC wherein it decided that the 2023 contract did not cover any loss with respect to the Merlot and Sauvignon Blanc blocks.
33He gave no explanation as to why he accepted the terms of the 2023 policy which provided zero potential production for these blocks. The time to object to these terms was before accepting the offer to insure not now.
34The IRC properly found in its decision that to amend coverage after a loss does not align with basic insurance principles.
35The issue here is not whether AgriCorp should have provided coverage for the Merlot and Sauvignon Blanc blocks, but whether the Appellant can challenge the terms of the 2023 policy here after accepting the same.
36The Tribunal finds that he cannot.
37This appeal is dismissed for the reasons given above.
2023 GRAPE PRODUCTION CLAIM
Fact Relating to This Appeal
38The Appellant made a claim for loss in his Riesling and Vidal crop in 2023. He blamed the loss on excessive rainfall which is an insured peril under the policy. He had had a successful claim in 2022 based on excessive rainfall.
39The claim was denied by AgriCorp who decided that the loss was due to powdery mildew not excessive rainfall. Powdery mildew is not an insured peril.
40The Appellant escalated the decision to the IRC who upheld the decision and found as follows:
Your adjuster observed powdery mildew in your vines in spring 2023 which was documented in Adjuster Special Reports and in pictures taken. Early in the program year, you were informed of our expectations to follow OMAFRA recommendations including application rates, intervals and rotation of other classes of fungicides to control the disease pressure. We reviewed the weather data in order to determine if an insured peril (excessive rain) was the proximate cause of your loss. As a result of that review, it was determined that excessive rain was not the proximate cause of your loss as it was the existence of powdery mildew that created the loss of production. As per the Contract of Insurance, powdery mildew is an excluded peril.
41The evidence showed that no other growers in the Niagara-on-the-Lake region suffered losses as a result of excessive rain, including neighbouring vineyards. Further, there was no evidence of those vineyards suffering loss from powdery mildew.
42The General Terms of the Contract of Insurance (Section A, paragraph 3.2) provide that the insured must follow Good Farm Management Practices (“GFMP”) and failure to do so may result in AgriCorp refusing to pay an indemnity. GFMP are defined in Section I of the General Terms.
43Growers should be following the guidelines set out in OMAFRA Publication 360C.
44With powdery mildew present in his grapes as of May 4, 2023, the Appellant should have been following an eradication strategy to control the mildew with an aggressive spraying program.
45AgriCorp requested the Appellant’s spray records as it was entitled to do. Those were provided by the Appellant but disclosed that the spray program started 2 to 3 weeks too late, did not rotate the fungicides used, the intervals between applications were too long and chemicals such as Manzate were used improperly. This was an ineffective spray program.
Analysis
46The Tribunal finds that powdery mildew, an excluded peril, was the proximate cause of the loss, not excessive rain.
47The Respondent provided evidence of the presence of powdery mildew in the crop. This was not contradicted by the Appellant. The Respondent provided evidence that the Appellant did not follow GFMP in order to combat the mildew. The Appellant did not provide any evidence inconsistent with this.
48Furthermore, the Appellant did not provide the Tribunal with any evidence, such as weather data or photographs, to support his allegation of damage due to excessive rain.
49The Tribunal finds that the decision of the IRC was reasonable based on the evidence given to the Tribunal. The Appellant has the onus of proof and has failed to meet that burden.
50This appeal is dismissed for the reasons given above.
CANCELLATION OF 2024 POLICY
Facts Relating to This Appeal
51In its letter to the Appellant dated November 20, 2024, AgriCorp attempted to clarify why it had issued a Notice of Cancellation of the Appellant’s 2024 Fruit Policy.
52AgriCorp attempted to arrange a visit and inspection of the Appellant’s vineyard on October 8, 2024 by text and again on October 9, 2024 by phone. In the October 9th phone call with the Adjuster, the Appellant communicated that an inspection was not a good idea at this time.
53During another phone call with the Adjuster on October 29, 2024, the Appellant indicated that AgriCorp staff were not permitted on the Appellant’s property.
54Most of the above facts were not disputed by the Appellant. Where the Appellant’s testimony differs from that of the AgriCorp witnesses, the Tribunal accepts the AgriCorp version.
55On November 7, 2024, AgriCorp had sent a letter to the Appellant confirming the conversation which he had had with the Adjuster on October 29, 2024, at which time he advised that AgriCorp staff was not to enter his property. That letter contained the Notice of Cancellation and a cheque refunding the premium of $914.68.
56In cancelling the contract, AgriCorp relied upon Section F of the General Terms of the Contract of Insurance which provided that AgriCorp could cancel the policy if the insured did not cooperate with AgriCorp under Section E.
57Section E, Paragraph 4.4 states that the insured agrees to provide AgriCorp access to his or her property.
58The Adjuster and Mary Dove explained in their testimony, that it is necessary for the adjuster to view the vineyards and crop several times during the crop year to assess insurability, view crop progress, harvest and the condition of the vineyard before going into the over- winter period.
Analysis
59The Appellant has developed a distrust of AgriCorp and its employees. He gave no reasonable explanation for this during his testimony other than the fact that he was unhappy with the results of the claims which are the subject of these appeals. Furthermore, he gave no reason why the adjuster was not allowed on his vineyard.
60By denying AgriCorp access to his property, the Appellant breached the Contract of Insurance and AgriCorp was entitled to cancel the policy.
61This appeal is dismissed for the reasons given above.
CREDIBILITY ISSUES
62The Appellant called 2 AcriCorp witnesses to testify on his behalf, Peter van Weerden and Mary Dove. There was no request to have these witnesses declared to be hostile witnesses. These 2 witnesses were also called by the Respondent to testify on its behalf.
63The Appellant insisted, during his examination-in-chief and later cross-examination of these witnesses, that they were lying.
64He also claimed that the adjuster, Peter van Weerden had offered him a proposed settlement of a claim (which claim was not clear from the Appellant’s evidence) and then withdrew it. This was denied by the adjuster and the Appellant provided no corroborating evidence of his version of the event.
65The Tribunal finds the testimony of the AgriCorp employees to be truthful. Their testimony was detailed, reasonable and was supported by documentation.
66The Appellant provided no evidence to support his allegation that they were not telling the truth.
CONCLUSION AND ORDER
67The Appellant has the onus of proof on all 4 appeals and has failed to satisfy that onus.
68The appeals from the decision of the IRC with respect to the Grape Vine Rider Claim, the 2023 Grape Coverage and the 2023 Grape Production Claim are dismissed.
69The appeal from the decision of AgriCorp to cancel the 2024 Fruit Policy is also dismissed.
Released: July 10, 2025
This document is also available in French. Please contact the Tribunal at 519-826-3433 or by email at AFRAAT@ontario.ca to request a copy in French.
Ce document est également disponible en français. Veuillez contacter le tribunal au 519 826-3433 ou par courriel à AFRAAT@ontario.ca pour demander une copie en français.