Manitoba Agricultural Services Corporation Date:, 2019 MBCA 125

Citation: Manitoba Agricultural Services Corporation Date: 20191210 v Kachurowski, 2019 MBCA 125 Docket: AI19-30-09225 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner Madam Justice Karen I. Simonsen BETWEEN : MANITOBA AGRICULTURAL SERVICES ) CORPORATION ) ) (Plaintiff) Respondent ) ) - and - ) ) WILFRED JOHN KACHUROWSKI ) T. A. McMahon ) for the Appellant (Defendant) Appellant ) ) M. L.

Grande AND BETWEEN : ) for the Respondent ) WILFRED JOHN KACHUROWSKI ) Appeal heard and ) Decision pronounced: (Plaintiff by Counterclaim) Appellant ) December 10, 2019 ) - and - ) ) MANITOBA AGRICULTURAL SERVICES ) CORPORATION ) ) (Defendant by Counterclaim) Respondent ) On appeal from 2018 MBQB 159 pfuetzner JA (for the Court): [ 1 ] The defendant and plaintiff by counterclaim (the defendant) appeals a judgment granting the plaintiff’s action for repayment of crop insurance indemnities and dismissing his counterclaim.

He argues that the trial judge erred in fact and law. [ 2 ] After undertaking an audit of the defendant’s canola production, the plaintiff commenced an action against the defendant for breach of a crop insurance contract, alleging that he failed to report certain 2011 canola production and that he misrepresented his harvested canola production in respect of his 2013 claim.

The defendant maintained that he had not breached the contract and, in his statement of defence and counterclaim, he claimed set-off amounts that had been withheld by the plaintiff. [ 3 ] The trial judge rejected the defendant’s explanations for the discrepancies between his reported canola production and the figures determined by the plaintiff’s adjusters. [ 4 ] A factor taken into account by the trial judge in assessing the defendant’s credibility was the defendant’s failure to produce certain documents and to provide information, both during the audit in accordance with his obligations under the insurance contract and during the litigation.

The trial judge rejected the defendant’s explanations for not producing the documents and information and drew an adverse inference against him for his failure to do so. [ 5 ] The defendant’s explanation for not producing some of the documents was that they were not relevant under r 20A(7) of the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88 . In addition, his position was that production of the documents and information was not proportionate.

The trial judge rejected these explanations, finding that the documents and information were “highly relevant” (at para 48) and that their production was proportionate. [ 6 ] This was a highly fact-driven case. The trial judge was entitled to accept the evidence of the plaintiff and to reject the evidence of the defendant. We are not persuaded that the trial judge erred in law or made any palpable and overriding error of fact or of mixed fact and law.

[ 7 ] In the result, the appeal is dismissed with costs. JA JA JA