Canada: Agricultural Law NetLetter - Friday, November 21, 2015 - Issue 336


  • The Ontario Superior Court of Justice (Divisional Court) has dismissed the application for judicial review of an Ontario hog producer in a case which involved a decision by AgriCorp (which administers the AgriStability program in Ontario) concerning the amount of AgriStability benefits the producer was entitled to receive. The producer appealed AgriCorp's decision to the Ontario AgriStability Review Committee, which issued a non-binding recommendation to reverse AgriCorp's decision. AgriCorp did not follow the Review Committee's recommendation. The hog producer sought judicial review on the grounds of reasonable apprehension of bias because two AgriCorp staff members who argued AgriCorp's case before the Review Committee also participated in and made recommendations with respect to the question of whether AgriCorp should accept the Review Committee's recommendations. The Court dismissed the hog producer's application because the Court found that AgriCorp had kept an "open mind" and remained "capable of persuasion" during its review of the Committee's recommendation. [Editor's note: There is very little case law concerning the AgriStability Program, and the ability of producers to challenge the decisions of the provincial agencies that deliver the program.]. (Sunwold Farms Ltd. v. AgriCorp, CALN/2015-026, [2015] O.J. No. 5774, Ontario Superior Court of Justice)


Sunwold Farms Ltd. v. AgriCorp; CALN/2015-026, Full text: [2015] O.J. No. 5774; 2015 ONSC 6111, Ontario Superior Court of Justice, K.E. Swinton, A. Mullins and J.S. Fregeau JJ., November 6, 2015.

AgriStability -- Appeal to Review Committees -- Implementation of Review Committee Recommendations -- Apprehension of Bias.

Sunwold Farms Ltd. ("Sunwold") applied for judicial review of a decision made by AgriCorp with respect to compensation payable to Sunwold under the AgriStability program.

AgriStability is a program created pursuant to a 2008 federal provincial agreement called the "Growing Forward Agreement" (the "Federal/Provincial Agreement") between Canada's Provincial, Territorial and Federal Governments.

The Federal/Provincial Agreement was been implemented in Ontario by two Orders in Council.

Order-in-Council 200-2011 permitted Ontario's Minister of Agriculture, Food and Rural Affairs (the "Minister") to designate a third party to administer the AgriStability Program.

The Minister designated AgriCorp, an Ontario Crown corporation, to do so.

AgriCorp receives and reviews AgriStability applications in accordance with the AgriStability Program Guidelines (the "Guidelines") and technical information circulars ("Circulars"). The Circulars are issued by the Minister to provide more detailed information on the application of the national AgriStability Program Guidelines in Ontario.

The Guidelines provide that income and expenses relating to farming activities outside Canada are not eligible for benefits, and that all transactions must be at fair market value to be considered allowable in the calculation of margins. AgriCorp has the power to adjust transactions to reflect fair market value.

The Federal/Provincial Agreement and the Guidelines provide access to an external review for unsatisfied applicants.

Order-in-Council 200-2001 provides for external review by the Ontario AgriStability Review Committee (the "Review Committee").

The Review Committee issues non-binding recommendations to AgriCorp.

Sunwold is an Ontario swine producer. Sunwold produced and sold "segregated early weaning pigs" ("Weaner Pigs") to a related company in the United States for finishing.

Sales were originally at a fixed contract price, but in 2008, the arrangement changed to a variable price approximating market prices.

Sunwold received AgriStability benefits in 2007 and 2008.

In 2010, during the processing of the application for benefits in 2009, AgriCorp's Claims Department became concerned that Sunwold's income for the Weaner Pigs was not at fair market value.

In order to set the benefit amount, AgriCorp had to determine the "at the border" fair market value of Sunwold's pigs because they were sold to a related American company.

After obtaining further information from Sunwold, AgriCorp's Claims Department reassessed the 2007 and 2008 payments, and assessed a lower payment for 2009 than Sunwold expected. In its April 23, 2010 decision, AgriCorp established an "at the border" fair market value using United States Department of Agriculture ("USDA") data for the Weaner Pigs for 2005 to 2008. From January to October, 2009, the Claims Department used price determinations from a private Phoenix firm.

Following discussions with Sunwold, AgriCorp's Claims Department changed its position in July of 2011. It decided to use the USDA composite price until March, 2008 and USDA cash prices after April, 2008.

In October of 2011, Sunwold sought a review of AgriCorp's decision by the Review Committee. Sunwold agreed with the use of the USDA composite pricing until March, 2008, but requested the use of data from the private Phoenix firm from April, 2008 on.

The Review Committee hearing was held before a panel of 5 producers. There were both written and oral submissions to the Review Committee. AgriCorp was represented by 2 staff Cathy Jones and Barbara Parker ("Jones" and "Parker").

On December 21, 2012, the Review Committee recommended that AgriCorp's decision be overturned. The Review Committee believed that the price of Weaner Pigs moving from Canada to the United States was lower post COOL [US Country of Origin Labelling legislation] than the USDA cash price. The Review Committee concluded that there did not appear to be an "accurate, public transparent, price available". The Review Committee suggested that there be a discount to the USDA cash price by, for example, using data supplied by Sunwold in a world trade report, or by a reasonable discount off the USDA cash price.

The Review Committee's decision was considered by an ad hoc committee of AgriCorp made up of representatives from management, senior staff including legal services divisions. Jones and Parker participated in the ad hoc committee. Jones prepared a brief for the committee.

The ad hoc committee reviewed the Review Committee recommendation and recommended AgriCorp not accept the Review Committee's recommendation.

Jones and Parker then prepared a briefing note for AgriCorp's Chief Executive Officer setting out Sunwold's position and the ad hoc committee's recommendation not to change AgriCorp's position. AgriCorp also contacted the Ministry with respect to its policy choice of using USDA cash pricing to determine fair market value and the Ministry of Agriculture supported this position.

AgriCorp's Chief Executive Officer decided to maintain AgriCorp's original position not to accept the Review Committee's recommendation.

A decision dated February 22, 2013 expressed the view that the average USDA cash price should be used "since it is public, transparent, verifiable, and in AgriCorp's view it is the best indicator of fair market value at the border". AgriCorp also indicated that it had not discounted the posted fair market value of any other livestock category due to the impact of COOL.

Sunwold did not challenge the merits of the AgriCorp decision. The only issue raised is whether the decision was tainted by a reasonable apprehension of bias because of the involvement of AgriCorp's staff members, and in particular Jones, in AgriCorp's decision-making process.

Decision: Swinton, Mullens and Fregeau, JJ of the Ontario Superior Court of Justice Divisional Court, dismissed the application for judicial review with costs [at para. 30].

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.