COURT FILE NO.: 540/06
DATE: 20070424
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, GREER and SWINTON JJ.
B E T W E E N:
AGRICORP
Applicant
- and -
LEEDS BELROCK FARM LTD. and the AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
Respondents
Sara Blake, for the Applicant
HEARD at Toronto: April 24, 2007
SWINTON J.: (Orally)
[1] The Agriculture, Food and Rural Affairs Appeal Tribunal failed to make findings of fact that Agricorp mailed a letter to the respondent, Leeds Belrock Farm Ltd., or that the respondent received it. Subsection 30(2) of O.Reg. 380/97, made pursuant to the Crop Insurance Act (Ontario), 1996, S.O. 1996, c.17, provides that any written document may be delivered to an insured person by mail, while s. 30(3) provides that mailed notice shall be deemed to be received seven days after it was mailed. The presumption of receipt is rebuttable by the insured (Royal Trust v. Dunn (1992), 1991 7227 (ON SC), 6 O.R. (3d) 468 (Ont. Ct. (Gen. Div.)) at p. 477 and following).
[2] It is our view that the Tribunal erred in failing to make these findings of fact. The Tribunal also erred in finding that Agricorp is in a “fiduciary-like” relationship with its customers. The relationship between an insurer and an insured person is contractual in nature.
[3] The decision must be set aside and the matter must be remitted to the Tribunal. The Tribunal’s first task 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.
[4] 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.
[5] We reject the submission that the Tribunal had no jurisdiction to determine the mailing or receipt of the letter or the entitlement of the respondent to compensation. We find the words “failed to resolve a dispute arising out of the adjustment of a claim under a contract of insurance” in s. 10(1) of the Crop Insurance Act are sufficiently broad to cover these questions.
[6] The application for judicial review is granted. The decision is set aside, and the matter is remitted to the Tribunal.
SWINTON J.
CARNWATH J.
GREER J.
Date of Reasons for Judgment: April 24, 2007
Date of Release: May 3, 2007
COURT FILE NO.: 540/06
DATE: 20070424
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, GREER and SWINTON JJ.
B E T W E E N:
AGRICORP
Applicant
- and -
LEEDS BELROCK FARM LTD. and the AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: April 24, 2007
Date of Release: May 3, 2007