Canada: Farm Protection In Manitoba – Safe Harbour Or A Trap For The Unwary?

The Farm Protection Regime in Manitoba is built upon a disjointed combination of Federal and Provincial Statutes. Through multiple notice requirements, various administrative stays, Federal and Provincial Mediation Boards and, in some cases, Court supervision, farmers in financial difficulty are afforded a generously wide safety net against the actions of their creditors. While this provides a more than reasonable opportunity to restructure and negotiate settlements through mediation, creditors must read carefully or risk the hardship of starting the entire process over again in accordance with the statutory requirements.

Background

Before delving into the legislative abyss that governs farm protection in this province, it must not be forgotten that there is also a co-existing regime governing relations between debtors in financial difficulty and their creditors. Pursuant to the Federal Governments' jurisdiction over insolvency, there are two major statutes pursuant to which creditors can seek protection and endeavor to effect arrangements with their creditors: the Bankruptcy and Insolvency Act R.S.C. 1985 c.B-3 as amended ("BIA") and the Companies Creditors Arrangements Act R.S.C. 1985 C-36 ("CCAA"). While a detailed discussion of these statutes is beyond the scope of this paper, it must not be forgotten that they exist and are available to farmers and farm corporations to restructure their affairs. It should also not be forgotten that once the various farm protection mechanisms have been exhausted secured creditors must still proceed to affect their realization in accordance with the applicable legislation that governs realization of the respective security including The Real Property Act, when dealing with mortgage sale and foreclosure, The Personal Property Security Act and/or Bank Act when dealing with the personal property security realizations and The Farm Machinery and Equipment Act when endeavouring to repossess farm machinery and equipment under the jurisdiction of that Act.

The two major pieces of legislation that specifically govern farm protection in Manitoba are the Farm Debt Mediation Act S.C. 1997, c.21 ("FDMA")(this is the 1997, successor to the original Farm Debt Review Act) and The Family Farm Protection Act C.C.S.M. c. F-15 ("FFPA"). These are two separate and distinct statutes which arose in response to the farm crisis in the mid 1980's. During the recession of the 1980's unusually large numbers of farmers were unable to meet their debt obligations. Consequently there was a disproportionate number of farm foreclosures and receiverships which forced many farm families off the land. While some major farm lenders such as Farm Credit Corporation voluntarily adopted a temporary moratorium on farm foreclosures, that provided only limited relief. The deepening farm crisis and the inadequacy of existing farm aid created pressure on the Federal and Provincial Governments for a legislative solution. In response, both levels of government enacted separate farm protection statutes.

On January 26, 1986 the House of Commons passed the Farm Debt Review Act S.C. 1984-85-86, C33 ("FDRA"). It came into force on August 5, 1986. This Act established Farm Debt Review Boards in each province to assist farmers in financial crisis to obtain third party assistance to review their affairs and negotiate with creditors. It did not impose mandatory obligations upon creditors to compromise but, it did provide for a stay of proceedings for up to 120 days. It also provided an obligation on secured creditors to give notice of their intention to realize on security and to inform the farmers of their right to seek the assistance of the Farm Debt Review Boards. If the secured creditors were unwilling to compromise by the end of the stay, they were free to continue realization proceedings. The stated purpose of this legislation was to assist those farmers who were financially viable in the long term whose difficulties could be overcome with the cooperation of the creditors. In 1997 the FDRA was replaced with the FDMA which firmly imbedded mediation into the process.

The Province of Manitoba's response to the farm crisis was the FFPA which received Royal Assent on September 10, 1986. This legislation prevented creditors from realizing against farm land without first obtaining Court approval. The Court has discretion to grant leave only where it was "just and equitable" to do so after the creditor and the farmer had the opportunity to mediate their differences before the Manitoba Farm Mediation Board (subsequently renamed the Manitoba Farm Industry Board). Initially, this legislation contemplated the application process to apply to farmland, machinery and equipment, and in certain circumstances, livestock. While the provision in the FFPA dealing with farmland were proclaimed in force in December 1986, those dealing with machinery and equipment and livestock have never been proclaimed. Accordingly, the FFPA only applied where the lender's security includes farm land.

Current Regime

The practical effect of the farm protection legislation in tandem with other related statues is that before a secured creditor can commence enforcement of its security, it must overcome a series of hurdles including statutory notices, administrative stays and at least one level of Mediation. If the security involves farmland, it is also necessary to proceed with the Court application process under FFPA though on June 1, 2021 the previous requirement to involve the Manitoba Farm Industry Board in an additional round of mediation was abolished.¹

Notice Requirements

While the specific statutory notices will vary depending on circumstances, at least two, and sometimes three, separate forms of notice may have to be given by a secured creditor along with the traditional demand letter before even considering moving on to the next stage of the enforcement process. These are as follows:

An interesting question is whether any or all of these notices can be served concurrently. My own view is that notwithstanding the different time/notice periods, the secured creditor can serve all three at the same time. I am not aware of any case which specifically addressed this issue, but I do know of several counsel in this province who take the position that a more prudent practice is to serve the FDMA Notice of Intention and await expiry of the 15 business days before serving any other notices. The concern is whether or not these other notices could be construed as a step in a proceeding and thereby trigger the possibly devastating consequences of Section 22 of the FDMA². My view is that as all of these notices are conditions precedent to either enforcement or commencing proceedings and therefore can be issued concurrently without violating the FDMA.

Please note the holder of a guarantee is not considered a secured creditor nor obliged to give a FDMA notice, unless that guarantor is a farmer and has provided collateral security in support of the guarantee: CIBC v. Verbrugshe (2006) Carswell Ont 3502 and 4461 (Ont.S.C.J.).

Stays of Proceeding Under the FDMA

An insolvent farmer may apply for a stay of proceedings as well as financial review and mediation through the Farm Debt Mediation board. The full nature and extent of this stay is set out in Section 12:

As was the case with the FDMA notice referred to above, any act done in contravention of this stay is deemed to be "null and void". The consequences of such contravention cannot be any more clearly set out than in the unfortunate situation of M & D Farms Ltd. v. MACC 1999 CanLii 648 (S.C.C.). This case arose under the similar provisions of the FDMA. Clearwater, J. at first instance identified the farmers' conduct in abusing the system and multiple utilization of FDMA stays as "almost unconscionable" and "almost inexcusable". Notwithstanding the farmers' conduct, when MACC proceeded with the application for leave under FFPA notwithstanding the FDMA stay, the Supreme Court of Canada held all of the subsequent steps in the proceedings to be a nullity. It set aside eight years of mortgage sale proceedings and related litigation (not to mention untold legal fees and administrative costs) and forced MACC to transfer back the lands which had been foreclosed upon to the farmer before it could then start the entire farm mediation process all over again.

Upon a farmer's application, the Farm Debt Mediation Board will grant an immediate 30 day stay and has the power to grant three additional 30 day stays for a total of 120 days. Furthermore, under Section 20(1) the farmer may re-apply every two years to go through the process again.

During the stay the Farm Debt Mediation Board will conduct a financial review and appoint a mediator for the purposes of endeavouring to reach a mutually acceptable arrangement. There are provision dealing with earlier termination of the stay where an arrangement is not possible or where the farmer jeopardizes the assets. In most situations the affected farmer will be appointed guardian of his own assets although the administrator of the board can nominate another qualified person selected by the secured creditors or the administrator.

Applications under the FFPA

Except for farm machinery and equipment finance through dealers under The Farm Machinery and Equipment Act, once the applicable notices and/or any FDMA stay has expired, secured creditors may proceed with enforcement remedies against the personal property charged under the security. In other words, the secured creditor can seize, sell, appoint a receiver or take any other relief provided under the security without the need for any further application. This is not the case with farm land.

The FFPA prevents a creditor from pursuing mortgage and other remedies on farmland including proceeding for sale, possession, receivership or foreclosure unless leave has been granted by the Court of Queen's Bench. By virtue of Section 22 of the FDMA this FFPA application cannot be filed concurrently with service of the Section 21 FDMA Notice.

To satisfy the requirement of the FFPA, a Notice of Application must be filed in the Queen's Bench. While the Applicant can file the initial Application in any Judicial Centre the affected farm may seek to transfer the proceedings to a more convenient Judicial Centre. Once the application has been filed it must be served upon the affected farmer within 30 days.

Prior to May 20, 2021 a statutorily prescribed application form was required to initiate the Court application which has to be served upon the Manitoba Farm Industry Board which was then obliged to mediate and provide a report to the Court within 90 days. This mediation process was not unlike what would have already been pursued under the FDMA. The involvement of the Manitoba Farm Industry Board, the additional mediation and the requirement for a Court Report were abolished in 2021 with the proclamation of The Reducing Red Tape and Improving Services Act S.M. 2021 c.48 ss. 8 to 10. However, the FFPA Regulations have not kept up with the 2021 amendments and the Court of Queen's Bench is currently (Summer 2022) requiring that the prescribed application form be appended to the Notice of Application with appropriate deletion of the Manitoba Farm Industry Board references.

With the 2021 amendments the creditor can simply set the hearing date at the time of filing the Notice of Application together with supporting Affidavit material detailing the history of the relationship, difficulties between the parties and related financial information to enable the Judge hearing the matter to determine if the Leave Order under FFPA should be granted.

The farmer must receive at least 15 days' notice of the hearing unless the Court can be persuaded to abridge the notice period.

The decision on whether or not to grant the creditor leave to proceed with its remedies are at the "discretion" of the presiding Judge. Section 9(8)(b) does say that a Judge can grant the relief sought if he or she is "satisfied that it is just and equitable to do so". That said, FFPA s. 9(4) sets out the factors the Judge may consider:

Existing jurisprudence  highlights four factors for consideration before exercising the Judge's discretion on whether or not it is "just and equitable" to grant relief:

Typically the Court is fairly swift in dealing with otherwise hopeless situations. However, if there is a substantive issue, such as an interest rate dispute or a question as to the validity of the security, the FFPA haring may be adjourned pending a determination of the issue.

Once the Judge has made an Order there is a right of appeal to the Manitoba Court of Appeal on question of law only.

Assuming that the Leave Order has been granted, the creditor can then commence the legal proceedings necessary to commence mortgage sale, foreclosure, receivership or other relief available under the security.

Some counsel have endeavoured to shoe-horn into their FFPA leave motions requests for substantive enforcement relief such as an Order for Possession. My own view is that this is not appropriate as FFPA Section 8 mandates that a Leave Order must be granted before a creditor can "commence or continue" enforcement activities. Recently, however, a mortgage lender was able to obtain an Order for Possession without commencing a separate action or application: Triple D Land & Cattle Inc. v. Dyrda et al 2009 MBQB 270, affirmed 2010 MBCA 5. It is respectfully submitted that the facts in Dyrda were unique insofar as that at the time of the initial hearing, Menzies, J. was only prepared to grant the FFPA Leave Order and then adjourned the balance of the relief sought under the Notice of Motion. Almost a year later, the motion was brought back on before Schulman, J. where counsel for the farmer candidly admitted that his client was deliberately stalling and that there was no defence to the relief sought. Needless to say, Schulman, J. granted the Order for Possession. Subsequently, Dyrda retained and instructed new counsel who brought the matter back on before Schulman, J. on the grounds that the Order for Possession should have been brought on by way of a separate proceeding i.e. a separate Notice of Application or Statement of Claim. Schulman, J. was not prepared to set aside his previous Order nor grant a stay pending appeal as any procedural concern was effectively waived by counsel's candid admissions at the previous hearings. The Court of Appeal acknowledge that the Appellant's position on the procedural defect was "technically correct" but it still refused the appeal. The point being that separate proceedings should be still taken for enforcement relief aft eh Leave Order is granted.

It is also important to note that pursuant to Section 31 of the FFPA any agreement to waive the provisions of that Act or to modify or abrogate its effects are void. Furthermore, contravention of the Act may leave the culprit susceptible to prosecution with a fine not exceeding $50,000.00 or imprisonment for a term not exceeding two year or both.

Commentary

What all this means is that any creditor which finds it necessary to realize on its security from a farmer in financial difficulty must be patient and prepared to slavishly follow the notice requirements and participate in the mediation process. For example, with personal property security the creditor could be delayed four to five months after service of the Section 21 Notice if the full extent of the FDMA stay were granted. If that creditor also had a real property security it would likely be necessary to tack an additional time to complete the provincial Leave Application process under FFPA – and longer if the court proceedings are contested.

These legislative hurdles have at least in part accomplished the original objective of restraining secured creditors from enforcing their security before the affected farmer has an opportunity to mediate and/or restructure the farm operations. Prior to the mid-1980's a secured creditor who had lost patience with a farmer could have appointed a Receiver over the farm with a few days' notice and liquidated the assets as quickly as local market conditions permitted. The current statutory regime prevents this from occurring.

Interestingly, the statutory delays have not in my experience prompted creditors to expedite the statutory notices and mediation in an attempt to jump start the process. Over the decades since this farm protection regime was enacted, creditors have become more pragmatic and will typically afford farms significant time in which to try to overcome their difficulties. There may be other causes for this but most financial institutions have learned that a bad settlement may well be preferable to an otherwise successful liquidation. They are prepared to do what it take to get a deal done and to do so wherever possible with and without resort to the various mediation boards. Accordingly, a great deal of the "farm realization" work tend to result in voluntary forbearance agreements and other negotiated arrangements long before the creditors see fit to issue the formal notices. In other words, our farm protection regime has created a temporary safe harbor for farmers to weather the storm of financial difficulty and negotiate mutually acceptable arrangements with creditors.

That being said, there are situations where the existing regime poses serious and practical difficulties. For example:

What can a secured creditor do when the farm assets are disappearing rapidly, whether by virtue of the aggressive enforcement tactics of other stakeholders or in the admittedly rare situation where the farmer is dishonest? What if the farmer has effectively abandoned the farm operations but is not prepared to consent to the lender taking control? The immediate reaction of creditors and their lawyers is to try to "close the barn doors before the horse gets away". But how can you do that if the section 21 Notice has not yet been sent, let along the 15 business days expired under the FDMA?

At one time it was possible to distinguish between "the stay" under Section 12 where a farmer has applied for relief under the FDMA and the "stay" under Section 21 pending expiry of the statutory notice period. A careful reading of the distinctive language of the  two sections suggested that:

However, more recent jurisprudence  involving The Saskatchewan Farm Security Act calls into question such attempts to circumvent provincial farm protection regimes. For example, in HCI Ventures Ltd. v. S.O.L. Acres  2020 SKCA 24 the Saskatchewan Court of Appeal upheld a decision where the secured creditor who had not satisfied the FDMA notice requirement was effectively stayed from exercising unsecured debt remedies and rendered its civil action a nullity. More significantly, the Supreme Court of Canada in Saskatchewan v. Lemare Lake Logging 2015 SCC 53 did not accept that the provincial farm protection regime constituted an operational conflict with the Receiver appointment provisions of the BIA.

If the farmer has already been able to apply for protection under the FDMA and a Section 12 stay in effect, I do not believe it is possible to utilize any of the extraordinary remedies referred to above. Certainly, once that stay has been issued it is clear that no step in any proceedings can be taken without risking violation of Section 22 of the FDMA and certainly no bankruptcy application can be issued or proceeded with until the stay expires: Re North 40 Farms  (1999) 11 CBR (4^th) 82 (Registrar); (affirmed) Unreported Manitoba court of Queen's Bench, March 10, 199 (Steele, J. as she then was). However, if a Receiver has already been appointed prior to issuance of the stay, the Court might not interfere with the existing appointment.

If the Section 21 stay is in place before the creditor obtains adequate protection there are several options. Firstly, once the farmer applies for a stay under Section 21 he is prevented from disposing of any assets except with express consent of the creditors. If the farmer's conduct is jeopardizing the security, the Farm Debt mediation Board is obliged to terminate the stay. Secondly, it is possible to apply to the Board to substitute guardians. As mentioned previously, ordinarily when a farmer make application under this legislation the board leave the farmer as the "guardian" of the farm assets. Pursuant to Section 16 of the FDMA the board can instead appoint "any other qualified person" whether chosen by the board or by a secured creditor. If the secured creditor selects a different guardian it would likely be obliged to pay its costs. It is important to note that the guardian's duties are fairly limited and include preparing an inventory, periodically checking on the existence and conditions of the assets and advising the board of anything that would jeopardize those assets.

What can you do if the FDMA notice period or stay has expired but there is also farm land to be dealt with under the FFPA? In those circumstances there is case law to support the proposition that the creditor may appoint a Receiver and/or Receiver Manager over all of the assets and undertaking of the debtor excluding the farm land:

Another problem deals with settlement or Forbearance Agreements. One downside of creditors preferring to negotiate settlements is that certain aspects of our farm protection regime may limit or in fact undermine the parties' abilities to negotiate an enforceable forbearance or arrangement. While you would assume that the spirit and intention of the law would be complied with where a voluntary settlement had been negotiated between the parties, this may not necessary be the case.

For example, when negotiating with ordinary debtors on an arrangement, the creditor is typically being asked to afford additional time and perhaps even more credit in return for which the debtor will provide a consent to enforcement on default thus giving the creditor a "hammer" or leverage to enforce the settlement. Similarly, in many civil litigation matters it is not uncommon for Consent Judgments and Orders to be entered into between the parties and held in trust until default. These I believe to be generally accepted in practice and should be supported and encouraged by the Courts in most circumstances on public policy grounds as reasonably acceptable means of promoting settlement.

Unfortunately, difficulties arise when the debtor happens to be a farmer. As noted previously, a secured creditor must still serve the FDMA s. 21 notice before taking any enforcement action even though the farmer may have already consented to it under the terms of a Mediation Agreement: Intec Holding v. Grisnick, Supra. Also, it does not matter that the farmer has acknowledge service of the FDMA s. 21 notice and the 15 day period expired, the farmer may still apply to the Farm Debt Mediation Board for a stay provided that one has not been issued at least in the last two years. Accordingly, even if the parties had agreed to forebear for one or two years in return for a quit claim or voluntary transfer of land, there is nothing to stop the farmer from applying for a stay under the FDMA and delay enforcement of the agreement. Just how long the Farm Debt Mediation Board would let the stay continue in the face of a formal forbearance or settlement agreement may be a matter of debate but it does not give creditors a great deal of certainty that their willingness to extend deadlines will be reciprocated with a clear cut remedy on default. This can certainly be a fly in the ointment when endeavouring to negotiate settlements and may be cause in some circumstances for the creditor to not only issue all notice but also require as a condition of forbearance that the farmer actually apply for and exhaust its stay rights under the FDMA during the forbearance period.

It is also tricky to deal with the FFPA when endeavouring to negotiate settlements on farm land security. For instance, if at the end of the forbearance period there is a default, the creditor wishing to proceed with mortgage sale or appointing a Receiver would still have to obtain a Leave Order from the Court of Queen's Bench. To expedite this process some settlement agreement include a Consent for Leave from the affects farmer to be held in trust by the secured creditor's counsel. Unfortunately, enforcement of such consent might be problematic: the anti-avoidance provision of the FFPA are a concern. Section 31 of that Act provides as follows:

It might be possible to argue that the Consent Leave should be characterized as limiting, modifying or abrogating the benefit of the FFPA. That said, it is clearly not a waiver and these devices have been frequently used without objection in our Courts.

Fortunately, notwithstanding these difficulties, the overall effect of the farm protection legislation in Manitoba has been positive. Creditors are generally able to reach practical solutions with farmers without the need for adversarial proceedings. While they must still tread carefully with the procedural requirements of the farm protection legislation, creditors should still be able to protect and enforce their rights in the event a negotiated solution can not be reached – it may just take more time.

Footnotes

1 The Reducing Red Tape and Improving Services Act S.M. 2021 c.48 ss. 8-10

2 In Saskatchewan, the concurrent service of the prescribed notice under the Provincial Farm Security Act S.S. 1988-89, c.S-17 and the FDMA s. 21 notice was found to be a nullity under FDMA s. 22: Chmil v. National Leasing Group (2006) 29 C.B.R. (5^th) 205 (Sask.C.A.). I am not aware of any case which suggests service of the BIA 244 notice and the FDMA s. 21 notice concurrently would be defective.

Originally presented at the Manitoba Bar Association Mid-Winter Conference, January, 2003. It was updated and revised for the 2011 Pitblado Lectures and again updated in June, 2022.]

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.