Agricorp decision reserved

Saturday, May 24, 2014

by SUSAN MANN

An Ontario Superior Court judge has reserved his decision in the case involving farmers challenging the repayment of their Agricorp program overpayments, says the lawyer representing the 80 farmers in the challenge.

Eastern Ontario agricultural lawyer Don Good says the case was heard in Ontario Superior Court of Justice in Ottawa May 22 by Judge Marc Labrosse. “We were the only case on the docket so we argued from 10 a.m. until 1 p.m.,” he says.

Labrosse didn’t give any indication of when he’d release his decision, Good says. “He thanked us all for a very interesting argument and said he’d get back to us when he can.”

Good says he thought “it went pretty good. I thought we had a good hearing and that’s all you can ask for in a court.”

Although none of the 80 farmers in the challenge were at the hearing Thursday, Good says that wasn’t a big deal. “I raised that with the judge that it was fine seeding weather and when it’s seeding weather in eastern Ontario, and rains are predicted, farmers are not going to take time off the tractor to go to court.”

Agricorp declined to comment on the specifics of the case. Spokesperson Stephanie Charest says “the hearing has taken place and now we await the court’s decision.”

In 2012, Agricorp said there were 4,500 farmers who had overpayment accounts totaling $30 million and the agency began contacting them to arrange to get the money back. About 75 per cent of the overpayments were for less than $5,000, Agricorp said at the time. But some were substantially larger. Good said in a pervious interview one of the farmers in his group of challengers has an overpayment of $500,000.

Agricorp also said in 2012 when it announced changes to how the overpayment accounts were being handled, the overpayments occurred because of incomplete program applications, processing errors, along with changes to farm operations and the nature of the programs that provide advance payments to producers. The changes to how Agricorp handles overpayment accounts included that farmers had three years to pay the overpayment back and as of Jan. 1, 2013 interest charges were added to unpaid balances. Previously the government waived the interest owing on the unpaid balances.

Renfrew Country cow-calf beef and cash crop farmer Peter Tippins, the representative farmer in the case, says the amount Agricorp told him he owed, slightly more than $18,000, is now at about $19,000 with the interest charges added in since Jan. 1, 2013. Tippins says he received the initial $18,000 payment in 2007 as part of a program called Canadian Agricultural Income Stabilization (CAIS) program, which has since been replaced by AgriStability.

“I figure I got it (the payment) because of the BSE, which happened in 2003 because our incomes all fell to nothing,” Tippins says, noting he couldn’t go to the hearing Thursday because he was planting and waiting for calves to arrive.

Good asked the court to decide whether Agricorp has an unlimited time to recover money it says it is owed for program overpayments or just two years. In a previous interview, Good said as part of the Limitations Act, the Crown has an unlimited time to recover funds from people due to government program overpayments. But the question is whether Crown corporations, like Agricorp, are equivalent to the Crown.

Tippins says for his payment “Agricorp crunched all the numbers and then if you fell into the category of getting a cheque they sent you a cheque with a six page, computer-generated report, which most of us couldn’t make head nor tail of it.”

“I had one payment in all the years and then they said there was a mistake somewhere and they wanted it all back seven years later,” he adds.

Tippins says he didn’t know he had a program overpayment until he got a phone call in 2012 saying he had to pay back the money. “Every spring I received an invoice for my membership fee for the program, but never on the invoice did it say I was in arrears of any amount of money, let alone $18,000 and some dollars.”

Since he received the program payment, Tippins said he has made other financial commitments. “I am already making certain payments and have been making financial decisions not knowing I was going to get a call that I owed $18,000 five or six years later.”

The move by Agricorp to recover overpayments for money it paid out in programs from five or six years ago has raised some troubling questions. Tippins says if governments can come “out of the woodwork” five, six or seven years later and demand repayments “why do they have these programs even? I would have been better off never to have gotten it (the program payment).”

Another question Tippins has is 60 per cent of the CAIS payment was from the federal government so why is Agricorp, a provincial Crown corporation, trying to recover 100 per cent of the money when “really the province only put in 40 per cent of it?” BF