Canada: Agricultural Law NetLetter - Sunday, December 7, 2014 - Issue 313


  • The Manitoba Court of Appeal dismissed an appeal from a bankruptcy order on the grounds that leave was not obtained under s. 8(1) of the Family Farm Protection Act (Manitoba) before the application for a bankruptcy order was made. The farmer relied on a 1998 decision of the Supreme Court of Canada and his assertion that the bankruptcy order was a nullity as leave had not been obtained. The Court of Appeal held the Act did not apply as the land was not owned by the farmer, but by a corporation in which the farmer was the sole shareholder. The Court also observed that it may be necessary to consider the doctrine of paramountcy to determine whether the provincial Act applied to proceedings under the Bankruptcy and Insolvency Act (Canada). (Keystone Agri-Motive (2005) Inc. v. Desrochers, CALN/2014-037, [2014] M.J. No. 323, Manitoba Court of Appeal)
  • A Judge of the Saskatchewan Court of Queen's Bench has considered the standard of review which applies to appeals from the decision of discipline committees constituted pursuant to the Agrologists Act (Saskatchewan). The Court concluded that discipline committees are entitled to significant deference, and that the Court need only consider whether the committee came to a defensible conclusion. The decision need not be necessarily correct in the Court's view. The Court upheld a decision of professional misconduct against a Saskatchewan agrologist who published conclusions concerning the efficacy of an air seeding system used by the agrologist's employer, as compared to a seeding system used by a competing air seeder manufacturer. The Committee concluded, among other things, that the agrologist failed to test his hypothesis through a proper scientific trial and that he stated his opinions without appropriate qualifications and assumptions. (Meier v. Saskatchewan Institute of Agrologists, CALN/2014-038, [2014] S.J. No. 686, Saskatchewan Court of Queen's Bench)


Keystone Agri-Motive (2005) Inc. v. Desrochers; CALN/2014-037, Full text: [2014] M.J. No. 323; 2014 MBCA 109, Manitoba Court of Appeal, B.M. Hamilton, H.C. Beard and M.A. Monnin JJ.A., November 28, 2014.

Family Farm Protection Act (Manitoba) -- Requirement of Land Ownership by Farmer -- Application to Bankruptcy Orders.

Marcel Desrochers ("Desrochers") appealed to the Manitoba Court of Appeal from a bankruptcy order granted on the application of Keystone Agri-Motive (2005) Inc. ("Keystone").

Desrochers asserted that the bankruptcy Judge had made three errors:

  1. Failing to find that he was a farmer for the purposes of s. 48 of the Bankruptcy and Insolvency Act (Canada) (the "BIA").
  2. Finding that he had committed an act of bankruptcy for the purposes of s. 43 of the BIA.
  3. Concluding that leave under s. 8(1) of the Family Farm Protection Act, C.C.S.M. c. F15 (the "FFPA") was not required by Keystone with respect to its application under the BIA.

Section 43(1) of the BIA permits creditors to file an application for a bankruptcy order against a debtor if it is alleged in the application that the debtor's debts owing to the creditor amount to $1,000.00, and the debtor has committed an act of bankruptcy within 6 months preceding the filing of the application.

Section 48 of the BIA provides that an application for bankruptcy may not be made by individuals whose primary occupation is, among other things, farming. This section provides:

48. Sections 43 to 46 do not apply to individuals whose principal occupation and means of livelihood is fishing, farming or the tillage of the soil or to any individual who works for wages, salary, commission or hire at a rate of compensation not exceeding twenty-five hundred dollars per year and does not on their own account carry on business.

Sections 8(1) and 8(4) of the FFPA provide:

Actions or proceedings requiring leave

8(1) No person shall commence or continue any action or proceeding to realize upon or otherwise enforce

  1. a mortgage, an encumbrance, a security agreement or an agreement for sale of farmland, or any provision contained therein;
  2. a judgment or an attachment obtained on the basis of a mortgage, an encumbrance, a security agreement or an agreement for sale of farmland, or any provision contained therein;

whereby a farmer could be deprived of the ownership or the possession of farmland of which the farmer is the registered owner or of which the farmer is the purchaser under an agreement for sale, without first obtaining leave of the court under this Part.

Non-compliance with this Part

8(4) Any action or proceeding which is commenced or continued after the coming into force of this Act without first obtaining leave of the court as required by this Part is a nullity.

Keystone had obtained default judgment against Desrochers in March of 2010 for $66,934.07 for outstanding payments due on a lease for grass cutting equipment.

Desrochers was the sole shareholder of Frenchie's Farm & Ranch Ltd. (the "Corporation"), which owned a quarter section of land in rural Manitoba.

In the course of an examination in aid of execution, Desrochers had testified that the Corporation never paid him; that he works for free; that did not expect any income in 2011 or 2012 for farming, and that he had no personal income as a farmer from 2008 to 2011.

Desrochers also testified that he owned an unincorporated grass mowing business.

The bankruptcy Judge found that Desrochers' principal means of livelihood at the relevant time was his grass cutting business and not farming, and therefore concluded that s. 48 of the BIA did not apply.

The bankruptcy Judge also found that Desrochers had committed an act of bankruptcy within 6 months because he had failed to meet his liabilities as they became due.

Decision: Hamilton, J.A (Beard and Monnin, J.J.A. concurring) dismissed the appeal [at para. 26].

Hamilton, J.A. concluded that the bankruptcy Judge's findings concerning whether Desrochers' principal occupation and means of livelihood was farming under s. 48 of the BIA, and the bankruptcy Judge's findings with respect to whether or not an act of bankruptcy had been committed, were either decisions of fact, or a mixed fact in law, and that Desrochers had not demonstrated that either finding was as a result of palapable or overriding error. The bankruptcy Judge had reviewed and applied the correct law [at para. 16].

With respect to the application of s. 8(1) of the FFPA, Desrochers argued that because he was a farmer and because the application could deprive him of ownership or farmland, leave was required under s. 8(1) of the Act. Desrochers relied on the decision of the Supreme Court of Canada in M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., 1998 CanLII 779 (SCC), [1998] 1 S.C.R. 1074 for his assertion that the bankruptcy order was a nullity pursuant to s. 8(4) of the FFPA because leave was not obtained.

Hamilton, J.A. held that because the Corporation and not Desrochers was the registered owner of the land, s. 8(1) could not apply to the application under the BIA against Desrochers.

Hamilton, J.A. referred to the following definitions of "farmer" and "farmland" in s. 1(1) of the FFPA which make this clear:

"farmer" means a person engaged in farming in Manitoba, and includes all individuals holding an interest in farmland in joint tenancy with an individual engaged in farming in Manitoba;

"farmland" means land in Manitoba that is used, or that has been primarily used during the immediately preceding two years, by a farmer for farming, and that is owned by the farmer or that is being purchased by the farmer under an agreement for sale, and includes all erections, buildings and improvements thereon, any commercial crops which are growing thereon, and any mines and minerals.

Hamilton, J.A. also pointed out that the application of the FFPA (a provincial statute) for proceedings under the BIA (a federal statute) may trigger the need to consider the constitutional doctrine of federal paramouncy, referring to Lemare Lake Logging Ltd. v. 3L Cattle Co., 2014 SKCA 35, 433 Sask.R. 266, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 248.

To read this NetLetter in full, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.