Agrology: Provincial Regulation, Negligence and Potential Areas of Liability

1.      Regulation

Agrology is a broad term that refers to a science-based agricultural regulated profession. Agrologists are a self-regulated profession within Saskatchewan, governed by the Saskatchewan Institute of Agrologists (the “SIA”) pursuant to The Agrologists Act, 1994, SS 1994, c S-16.1 (the “Act”). Only members of the SIA may practice agrology, hold themselves out to be an agrologist or use the professional title of “agrologist”. The SIA regulates commercial advising on:

1. cultivating, producing, improving, using and protecting agricultural plants;
2. farm forestry;
3. raising, feeding, improving, protecting or using farm animals, poultry or bees;
4. producing and protecting milk;
5. classifying, cultivating, using, fertilizing, conserving and improving for agricultural purposes arable, forest and range lands;
6. the making of economic surveys of any respect of the agricultural industry;
7. managing farms;
8. the agricultural use of machinery and equipment;
9. identifying and controlling the pests of agricultural plants and animals; or
10. evaluating agricultural land for tax base purposes;

The SIA has a Code of Ethics & Practice Standards (the “Code”) which sets out professional responsibilities and minimum practice standards for agrologists. 

2. Agrologists’ Duty to Advice Seekers

(a)   The Duty of Care

Agrologists generally owe a duty of care to potential advice seekers.

1. Agrologists typically have a direct or indirect financial interest in the transaction in respect of which the representation was made.
2. Agrologists are professionals who possess special skill, judgment and knowledge.
3. Agrologists typically provide advice or information in the course of a business.
4. Agrologists typically provide advice deliberately, and not on a social occasion.
5. Agrologists typically provide advice in response to a specific enquiry or request.

(b)   The Standard of Care

Agrologists must advise in a reasonable manner. The requisite standard of care is that of the ordinary, reasonable, and prudent agrologist. The Supreme Court of Canada has described the duty of a professional to undertake and possess “the skill, knowledge and judgment of the generality or average of the special group or class of technicians to which (s)he belongs”. In evaluating the “knowledge, judgment and skill”, the standards outlined in the Code should be considered. Professional standards are set out in the Code as follows:

1. Practice only in fields where Agrologist is experienced.
2. Perform due diligence for all work undertaken, including becoming knowledgeable about the work to be performed by a client, for whom the work is to be performed, and any resources required to complete work.
3. Express opinions only when founded on knowledge and experience.
4. Have regard to safety in all work.
5. Act conscientiously and diligently.
6. Maintain confidentiality of client information.
7. Obtain clear understanding of client’s objectives.
8. Inform of any action proposed by a client that may be detrimental to good stewardship or a breach of known laws / regulations.
9. To not accept compensation from more than one client for the same work without consent of all parties.

Failure to meet these requirements, or the essential competencies of the profession, would be evidence of a breach of the standard of care.

(c)    Causation

Before there can be recovery for damage, there must not only be negligence (in the sense of careless or unreasonable conduct or behavior) but such negligence must be shown to have caused loss. The standard test used is the “but-for” test. An example of where the “but-for” test would be applicable is a situation of an agrologist providing inaccurate chemical application advice to a farmer. If, by relying on that advice, a lower-than-typical crop yield resulted, causation may be established. However, if some intervening act (such as a drought during the same crop year) contributed to the lower yield, the negligent advice of the agrologist may not have caused the loss in question.

(d)   Remoteness

While causation may be established, it does not automatically amount to the conclusion of responsibility in law. The type of loss suffered may be so unexpected or remote that it would be unfair to impose liability. The question to consider is whether the risk of loss ought to have been contemplated by the agrologist in providing advice. For example, losses may be considered too remote if a farmer relied on advice given to a different farmer. There would be no way for the agrologist to have considered the effect of the advice on a separate person.

(e)   Damages

A claimant must be put back into the position in which he or she was or could be expected to be in “but for” the negligence of the agrologist. If negligence results in the destruction of crops growing on land, the measure of damages is the value of what has been destroyed as well as the diminution in value of the land in question. For example, if an agrologist recommended an incorrect fertilizer mixture or quantity which caused a low crop yield, the damages would represent the difference between the expected yield and the actual yield. Similarly, if negligent advice caused the grade of a crop to be low, damages would represent the difference in value between standard grade and the lower grade.

3.      Potential Areas of Liability

(a)   Crop Selection

Agrologists may advise farmers on crop rotations. The agrologist should be knowledgeable in crop selection, rotations, and conduct due diligence. This may include assessing geographical locations and weather.  For example, certain areas of the province may not support crops such as canola, lentils or chick peas. As well, an agrologist should be aware of chemical residue left from year to year and the effects on the following years’ crop. Damages would be based on the difference between what the farmer would have expected to earn and what was earned growing the incorrect crop. The farmer would be required to show that “but for” the advice, the incorrect crop would not have been grown.

(b)   Pre-Seeding Burn

Farmers commonly apply chemical shortly before seeding to kill any growth that is present. Shortly thereafter, the crop is seeded using knifes as opposed to turning the soil over. The agrologist should be knowledgeable on the particular type of chemical being applied. For example, certain varieties of lentils may require more effective pre-seeding chemicals be applied than for other crops. Certain crops may be more susceptible to pre-seeding chemicals where those chemicals could potentially damage or kill the seed. If the pre-seeding burn was ineffective, an additional application may be required, adding to the expense.

(c)  Seeding

An agrologist may recommend seeding too early or too late in the season. Seeding too early may limit germination whereas seeding too late in the season would leave the crop more susceptible to frost damages. The farmer would be required to establish that the early seeding was the cause of the low germination as opposed to poor quality grain, chemical contamination, soil conditions or a variety of other factors. If an agrologist recommended seeding too late in the season, the fact that the crop sustained frost damage would not amount to liability alone. The farmer would be required to establish that the crop would not have been planted late “but for” the advice of the agrologist. The farmer would also be required to establish that the crop would not have been damaged by frost “but for” the late seeding. If there was a particularly early frost during the season and the crop would have been damaged in any event (i.e even if it had been seeded earlier), causation would not be made out.

As well, if an agrologist failed to consider the quality of seed being used, issues such as poor germination or disease may arise. Damages would be based on the difference between an expected yield and the yield obtained using the substandard seed.

(d)   Spraying

An agrologist should be knowledgeable on indicators of certain weeds, diseases or insects that could affect a particular crop. If in conducting a crop inspection, the agrologist missed certain indicators, a farmer relying on that inspection may not spray when required (or may not use the correct chemicals to address the problem), resulting in a detrimental effect on the crop or additional spraying. An agrologist may recommend spraying a crop when it is too young or too mature, resulting in damage to the crop. Crops are sometimes sprayed in order to kill the plant and proceed to harvest (desiccation). If plants are sprayed too early, they may be damaged. If plants are sprayed too late, there may be chemical residue and problems marketing the seed afterwards.

(e)   Harvest

An agrologist may advise on what moisture levels are appropriate in order to commence harvest. If a crop is harvested too early, it may affect grade and negatively affect yield. If grain is harvested with too much moisture, there could be storage issues, rotting and lowering of grade. Similarly, if certain crops are harvested too late, the seeds may be susceptible to being damaged.

4.      Conclusion

In providing advice and services, agrologists must exercise the knowledge, judgment, and skill of an average agrologist. In determining what that standard may be, it is likely that a court would evaluate the professional standards and regulations of the profession. A negligence claim may be made out against an agrologist if negligent advice was given and relied upon and that incorrect information resulted in economic loss. Considering the complexities in modern agriculture operations, causation may be difficult to establish for the purposes of the required negligence analysis.