by SUSAN MANN
Sixty-two Ontario farmers have launched a court challenge of Agricorp’s move to recover government program overpayments, some dating back 10 years or more.
Ottawa-area agricultural lawyer Don Good says he’s representing the 62 farmers who’ve retained him and has filed an application in the Ontario Superior Court of Justice in Ottawa on Feb. 14 “to ask the court for an interpretation of sections three and 16 of the Limitations Act to determine whether Agricorp has an unlimited time limit or a two-year time limit.”
Good says there are more than his 62 clients who are interested in the challenge. The court case has been scheduled to be heard later this spring.
Agricorp spokesperson Stephanie Charest says they did receive a copy of the application notice Good filed in the Ontario Superior Court of Justice. But “we can’t speculate on any matters that are before the courts,” she explains.
Good says the Limitations Act states the Crown has an unlimited time to recover funds from people due to government program overpayments. But “the issue is: are Crown corporations (such as Agricorp) equivalent to the Crown? If you look at the Crown Corporations Act, it says they’re agents of the Crown.” But if they’re agents “then you’ve got an agency, which means there’s an agent and a principle and an agent and a principle are not necessarily the same thing.”
Only the Crown has an unlimited time to recover any government program overpayments under the Limitations Act, Good says.
Last year Agricorp said there were 4,500 farmers who had overpayment accounts totaling $30 million and the agency contacted the farmers to retrieve the money. About 75 per cent of the accounts with overpayments are less than $5,000 each. But some are larger and Good says in his group of farmers launching the court challenge more than one producer has an overpayment of $500,000.
Agricorp said last year when it announced changes to how the overpayment accounts were being handled, the overpayments occurred because of incomplete program applications, processing errors, changes to farm operations and the nature of programs that provide advance payments for producers in financial distress.
Charest says to date about $14.8 million has been collected or pledged from about 3,000 farmers.
Good says he told his farmers “it’s nice to know that when the government is bankrupt that farmers are so willing to offer money that they may not owe.”
Even if he wins the court challenge, Good says that may not help the farmers who have already paid back the money Agricorp says they owed. “If they (the farmers) voluntarily pay it, then other issues come into play. If in fact you acknowledge the debt, the Limitation Act may not matter all that much because you’ve acknowledged the debt existed.”
Charest says in 2012 they contacted about 93 per cent of the farmers who had overpayment accounts (4,167 farmers) and their debt totals $25 million. “That’s who we’re working with. The remaining accounts are being handled differently because the circumstances are particular. They are being looked at on a case-by-case basis” to determine the next steps for each individual case, she says.
Charest notes the farmers in the special circumstances group are a very small minority. So far, more than 70 per cent of the farmers Agricorp has contacted have replied and either repaid their balances in full or in part or committed to a repayment plan.
There are about 1,000 farmers who haven’t repaid their money or made arrangements to do so. Charest says Agricorp will continue working with those farmers with outstanding balances to “help them determine the most appropriate terms for repaying their debt within three years.”
Last year, Agricorp announced two changes in how it was handling government program overpayments. One was that all the money had to be paid back in three years and the other was that interest charges kicked in as of Jan. 1. Previously, the government waived the interest owing on overpayments.
The Ontario finance ministry sets the interest rate quarterly and the current rate is three per cent.
In the past, farmers could repay their overpayment from future program payments and they can still do that as long is the entire balance is eliminated within three years. They can also pay the overpayment in installments. Farmers who repaid their entire amount before Jan. 1 weren’t changed any interest. BF
Comments
They are threatening us with a collection agency!
The leagal term Contra proferentem
From Wikipedia, the free encyclopedia
Contract law
Part of the common law series
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Lack of capacity Duress Undue influence Illusory promise Statute of frauds Non est factum
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Implied In Fact
Related areas of law
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v t e
Contra proferentem is a doctrine of contractual interpretation which provides that an ambiguous term will be construed against the party that imposed its inclusion in the contract – or, more accurately, against the interests of the party who imposed it.[1] The interpretation will therefore favour the party that did not insist on its inclusion. The rule applies only if, and to the extent that, the clause was included at the unilateral insistence of one party without having been subject to negotiation by the counter-party. Additionally, the rule applies only if a court determines the term to be ambiguous, which often forms the substance of a contractual dispute, and such ambiguity is "latent" (i.e., not so glaring, or "patent", as to put the other party on clear notice of a problem with the wording or interpretation).
It translates from the Latin literally to mean "against (contra) the one bringing forth (the proferens)."
The question at hand is: is an agent of the Crown the same as a principle?
The land patents in Ontario were granted and sealed by agents of the Crown....such as agents on behalf of GEO.III stating: By the Grace of God of Great Britain, France and Ireland King Defender of the Faith and So Forth To all to whom these presents may come Greeting Know Ye that We of Our Special grace Certain Knowledge and Mere Motion have given and granted and by these presents do give and grant unto...(Sealed twice, registered by Wm. Javis, Reg'r of Upper Canada 10 August 1795, docketed by the Auditor General of Upper Canada 10th August 1795
If an agent is not the same as the Principle...... who really owns and controls the lands?
joann
The answer to your question at hand, is "NO", because it is impossible for a principle to be a person. The answer to your second question is two-fold - the deed holders own the land, while the government, through the power of legislative privelege, controls what you are allowed to do with it, and that's the way it should be.
Stephen Thompson, Clinton ON
Much of today's citizens (english) common law rights date back to Sumerian Law and or Roman law.
Government officials now enter our property without consent of the property owner, and without particular notice or warrant.
The infamous sheriff of Nottingham was also commissioned as an "agent of the crown" operating largely from his own agenda (without much accounting or accountability) primarily to collect taxes for the nobility of privilege.
Our acting nobility (bureaucrats and politicians) are elected to serve the electorate not elected persons of privilege. Do you see some similarity here?
Without a reversion to more democracy by the people I no longer wish to pay taxes on property or accounting levies to governments of heavy handed regimes.
No wonder with 30 million dollar flops in a minor file like agriculture we have out of control provincial debit.
Bring on the audits all the way to the overseeing (ag) ministers office. Then through them in the tower by the moat.
There is the distinct possibility that someone who received some of this money let's say, in late 2004, has since died, and has had his/her estate long-since settled, and the assets disbursed. In this sort of matter, neither the Executors, nor the legal advisors, could have, or would have, had reasonable expectation to know about this debt, but the Executors are still personally responsible for this obligation. For example, let's say I was the Executor for a farming relative who died in 2005, I wouldn't be at all happy at the prospect of being personally responsible for paying a debt my late relative incurred in 2004 by virtue of having cashed a cheque and not kept any correspondence which came with it because the T1(agr) slip was all that was needed for income tax purposes. What's worse is the possibility that the Executor may have also died in the meantime, thereby arguably leaving the Executor of the Executor personally responsible for this obligation.
Stephen Thompson, Clinton ON
Where are our agriculture representatives ? When you look at the fact that we have 100 million as a budget for the risk management program and Agricorp can't seem to do the books good enough to have 30 % of that in over payments that is less than satisfactory . What happened to the audit of Agricorp ? What good was it ? If there is $30 million in over payments then what about all of those who never got what they should have because the money was spent or used up when it wasn't ? If this was in private business you can guarantee that heads would roll but not in Gov. There should be people in high places at Agricorp shaking in their boots or running for the door to get out before the truth nails them down as being the problem .
Where are our farm leaders ? It is glaringly obvious when these farmers have to hire a lawyer to represent them . Surely they are done gushing about/over the new and first woman premier of the province . I would think that more than 30% of the farmers affected payed their their money to a GFO for representation .
The reality is that this was a $45,000,000.00 dollar mistake . There is 30 million outstanding and 14.8 that is pledged or committed for collection . This gets worse . Sounds like the gas plant moving scandle of Gov. .
I wish Mr. Good luck with the court challenge... it should be interesting.
It is clear how legislation defines AgriCorp: Sec. 8; AgriCorp is an agent of the Crown and may exercise its powers only as an agent of the Crown. 1996, c. 17, Sched. A, s. 8.
But no where in the Act do I read that Agricorp has the power to claw back what the agency determines as "overpayment". Maybe its just us.... could someone please show us where that legislative clause is?
And if our information is correct, the Crown only operates through agents and servants.
"At common law the question whether a person is an agent or servant of the Crown depends on the degree of control which the Crown, through its ministers, can exercise over the performance of his or its duties. The greater the control, the more likely it is that the person will be recognized as a Crown agent. Where a person, human or corporate, exercises substantial discretion, independent of ministerial control, the common law DENIES Crown agency status."
( Supreme Court of Canada R. v. Eldorade Nuclear Ltd)
What that means is.... agents of the Crown have immunity only when they act inside Statute law on behalf of the Crown but if an agency steps "outside the ambit of Crown purposes, however, it acts personally, and not on behalf of the state, and cannot claim to be immune as an agent of the Crown".
This is interesting because there is a clause in an AgriCorp handbook that states (page 7): OMAFRA and Agricorp have absolute discretion to refuse or withhold any payments to any participant."
Agricorp has been given 'ABSOLUTE DISCRETION.' That means Agricorp denies farmers "due process" in clawing back monies.
In Tobin v. The Queen (1864), 33 L.J.C.P. 199,;
The maxim that “the king can do no wrong” is true in the sense that he is not liable to be sued civilly or criminally for a supposed wrong; that which the sovereign does personally the law presumes will not be wrong; that which the sovereign does by command to his servants cannot be a wrong in the sovereign, because if the command be unlawful, it is in law no command, and the servant is responsible for the unlawful act in the same way as if there had been no command.
Does Agricorp have Crown immunity if it denies due process to its members? Did Agricorp place itself above the law?
Again, I wish Mr. Good luck. If he wins... I truly hope our new Minister of Agriculture conducts the comprehensive audits demand by 10s of thousands of farmers a few years ago.
joann
If the payment was a loan, I would think an annual statement would have been issued? Was it considered program income for income tax purposes? That is definitely not a loan.
Years ago when this payment came through it was a "grant" and typically in farming industry the "grant" is to help with the issue at hand, which at that time was the BSE crisis. It was money to help stabalize the income of farmers. Now, all these years later ... I am divorced from the farmer who received this money, a single mom on a fixed income. In the divorce I was "freed" from all farming activity and debt. Agricorp told me that I am responsible for half of the farm's portion of money to be paid back - approx. $4000. That grant money was never mine for personal use, it went into the farm business - they refuse to go after the farm. It would cost me to retain a lawyer to prove that it is the farm who is responsible for this money to be paid back. As a single mom I can't afford the court costs and felt I had no other option but to make a payment plan with them. So even if this wins in the courts it sounds like I am still out of luck because I "acknowledged" the "loan" - How do you argue with the government, I was forced to acknowledge the loan. My three year term is up this summer and I won't have the remaining balance so it will be interesting to see how they handle that.
Are you positive it was a "grant" and not an advance ? Huge difference !
I can feel for those who are affected by this gov. collection game . But one thing I don't care to hear is the divoirced single mother on a fixed income crap . Some people are single & diviorced for a reason . Female and male .
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