AGRICULTURE |
Pender Farms Ltd. v. Canada (Grain Commission)
T-856-03
2004 FC 641, O'Keefe J.
29/4/04
17 pp.
Judicial review of Canadian Grain Commission's (respondent) decision denying applicant's claim against security held under Canada Grain Act (Act)--Applicant contracted to sell wheat to API Grain Processors Limited Partnership (API)--After delivery to API, API mailed cheque dated October 29, 2002 to applicant, which applicant received on December 4, 2002--On December 5, 2002, applicant learned API was bankrupt--Had not yet deposited API's cheque--On December 12, 2002, applicant claimed against security of $750,000 held by respondent with respect to API--Respondent denied claim on basis filed after 30-day limitation period specified in Act, s. 49(6)(e)--On appeal, respondent denying claim due to operation of Act, ss. 49(3)(b) and 49(6)--S. 49(6) provides when cheque given to producer and bank on which cheque drawn refuses to honour it, licensee's failure to meet payment obligations to producer occurs on date cheque given to producer--Cheque dated October 29, 2002--In order for s. 49(6) to apply, bank or other financial institution on which cheque issued by licensee to producer was drawn, must refuse to honour cheque--No evidence cheque ever presented to bank--Trustee's direction not to cash cheque not constituting refusal to honour by bank--S. 49(6) not applicable--Alternatively cheque not "given to the producer" until he received it on December 4, 2002--Act not providing specifically for when cheque deemed to be received by producer--Only know date of cheque, date of receipt, not date of mailing--S. 49(6) thus not barring applicant's claim--As to s. 49(3)(a), producer must give notice in writing to respondent of failure or refusal of licensee within 30 days after refusal or failure--Canada Grain Regulations provide payment must be made within 90 days after grain delivered to licensee--Grain delivered on October 18, 1992--On December 5, 2002, trustee in bankruptcy told applicant's representative not to deposit API's cheque dated October 29, 2002--Failure or refusal to make payment by licensee occurred on or about December 5, 2002--Applicant made claim in writing to respondent on December 12, 2002, within 30-day time frame provided by Act--Respondent erred in rejecting applicant's claim for being out of time under Act --Application allowed--Canada Grain Act, R.S.C., 1985, c. G-10, s. 49 (as am. by S.C. 1998, c. 22, s. 6)--Canada Grain Regulations, C.R.C., c. 889.