ACC Farmers' Financial v. Abolins, 2009 ONCA 866

CITATION: ACC Farmers' Financial v. Abolins, 2009 ONCA 866

DATE: 20091208

DOCKET: C49999

COURT OF APPEAL FOR ONTARIO

Cronk, Lang and Juriansz JJ.A.

BETWEEN

ACC Farmers’ Financial

Plaintiff (Respondent)

and

Ilze Kristina Abolins and Aldis Abolins

Defendants (Appellants)

AND BETWEEN

Ilze Kristina Abolins and Aldis Abolins

Plaintiffs by Counterclaim (Appellants)

and

ACC Farmers’ Financial

Defendant by Counterclaim (Respondent)

and

AgriCorp

Defendant to the Counterclaim (Respondent)

Counsel:

Donald R. Good, for Ilze Kristina Abolins and Aldis Abolins

John M. Skinner, Q.C., for ACC Farmers’ Financial

Michael C. Birley, for AgriCorp

Heard and released orally: December 2, 2009

On appeal from the judgment of Justice R.J. Haines of the Superior Court of Justice, dated April 16, 2009.

ENDORSEMENT

[1] The appellants advance four main grounds of appeal. They argue that the trial judge erred: (i) by finding that a copy of the relevant crop insurance policy was provided to the appellants; (ii) by finding that AgriCorp’s representative, Ms. Dianne Hall, was not acting as agent for ACC Farmers’ Financial (“ACC”) in her dealings with the appellants; (iii) by holding that the appellants were estopped from proceeding with their counter-claim by virtue of the relevant insurance policy and the provisions of the Crop Insurance Act (Ontario), 1996, S.O. 1996, c. 17, Sch. C (the “Act”) and regulations thereunder; and (iv) by failing to grant the appellants relief from forfeiture.

[2] We conclude that the appeal must be dismissed for several reasons.

[3] We recognize that the appellants vigorously argue that they never received a copy of the applicable crop insurance policy and that the respondents failed to prove that they had. In our view, however, the outcome of this appeal does not turn on this issue.

[4] It was open to the trial judge to conclude on the evidence that no agency relationship had been established. Ms. Hall did not hold herself out as ACC’s agent and there was no evidence that ACC held her out as such. Both respondents denied the asserted agency relationship. The trial judge explicitly accepted Ms. Hall’s evidence and that of the respondents’ other witnesses at trial. We see no basis on which to interfere with his credibility-based findings regarding agency.

[5] In addition, we agree with the trial judge that, by operation of the Act and the regulations, the resolution of the coverage dispute in this case was within the exclusive jurisdiction of the Agriculture Food and Rural Affairs Appeal Tribunal. However, as that Tribunal held, Mrs. Abolins’ appeal to the Tribunal was initiated outside the applicable one-year limitation period and, accordingly, was out of time. When no judicial review of that decision was sought, the Tribunal’s decision became final. Accordingly, it was not open to the appellants to seek to raise the same dispute before the court by way of counterclaim.

[6] Nor do we see any merit to the appellants’ attack on the trial judge’s forfeiture findings. During oral argument, the appellants’ counsel properly acknowledged that the forfeiture provisions of the Insurance Act, R.S.O. 1990, c. I. 8 do not apply in this case. In any event, with respect generally to the claimed relief from forfeiture, the appellants’ failure to appeal to the Tribunal on a timely basis was an event of non-compliance, rather than imperfect compliance, with the insurance policy in question: see Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., [1982] 2 S.C.R. 778. As a result, no relief from forfeiture was available under the policy.

[7] In the end, this case turned on the trial judge’s credibility findings. These were adverse to the appellants. The evidence of the respondents’ witnesses was accepted on the major issues in contention. Indeed, the trial judge concluded that the appellants, in effect, were the authors of their own misfortune as a result of their improper conduct. This critical finding was amply supported by the record.

[8] The appeal, therefore, is dismissed. The respondents are entitled to their costs of the appeal fixed, in the case of ACC, in the total amount of $18,300, inclusive of disbursements and G.S.T. and, in the case of AgriCorp, in the total amount of $26,000, inclusive of disbursements and G.S.T.

“E.A. Cronk J.A.”

“S.E. Lang J.A.”

“R.G. Juriansz J.A.”