Law of the Lands - Farm, Energy and Enviro Law

NEB posts summary of abandonment estimates filed by pipeline companies

noreply@blogger.com (John Goudy, Lawyer) — Fri, 27 Jan 2012 20:14:00 +0000

The National Energy Board has posted a "Summary of Group 1 Companies Physical Information Filed", setting out data related to the mode of pipeline abandonment proposed by Group 1 companies (large pipeline systems) that filed cost estimates with the NEB. The chart provided juxtaposes the total km contained in pipeline systems against the km of pipeline that companies propose to remove upon abandonment. The contrast is pretty striking. At least in agricultural areas, companies propose to remove almost no pipe. CAEPLA had proposed that cost estimates should be based on a conservative assumption of 100% removal. Even the NEB had proposed 20% removal as the assumption to be used. The pipeline industry obviously disagreed.

Alberta Court rules in favour of landowner over crossing agreement

noreply@blogger.com (John Goudy, Lawyer) — Tue, 24 Jan 2012 15:17:00 +0000

In 1948, CPR and Calgary Power Ltd. reached an agreement providing Calgary Power with the right to place three towers carrying power transmission wires on and over CPR property abutting the north side of 10th Avenue S.E. in the City of Calgary. The agreement also provided that either party could terminate the agreement by giving three months' notice, and on termination Calgary Power would be obligated to remove the towers and wires and make good any damage caused to the property. If the removal did not happen within one month of termination, CPR could undertake the work itself at the expense of Calgary Power or take ownership of the towers and wires. Under the agreement, Calgary Power was to pay to CPR an annual rental of $40.00.

Flash forward to more recent times. The power transmission facilities on the property have been expanded. The original agreement and subsequent amending agreements have been assigned by Calgary Power to a company called Enmax. CPR has sold its lands to a development company called Remington. Remington wanted to develop the former CPR lands and advised Enmax of the plans. Enmax told Remington that a 20 metre utility right-of-way would be required and that Remington would need to bear the cost of any changes, including the conversion of the overhead power lines to underground lines.

Remington's response to Enmax was to provide a notice of termination under the existing agreements. Enmax was directed to vacate the Remington lands (the former CPR lands) on or before June 30, 2005. Despite that direction, Enmax has refused to remove the transmission towers and lines from the lands. Remington says that its development will be severely compromised with the continued presence of high voltage transmission lines. It believes such a continued presence will acutely influence potential purchasers or tenants in its intended mixed use residential/commercial development.

Remington applied to the Court of Queen's Bench for orders requiring Enmax to vacate the lands. Enmax argued in response that the agreements between CPR and Calgary Power were personal contracts between a railway company and a utility company and could not be assigned to Remington without the consent of Enmax. There were also questions raised about whether the agreements actually created true rights-of-way or whether the rights granted were simply a personal licence which could not be assigned or transferred.

The Court found that the agreements did create utility rights-of-way, which through legislation were not subject to all of the Common Law rules surrounding valid easements and rights-of-way. Further, the Court ruled that if it was wrong about the nature of the agreements, and they did create mere licences, CPR still had the right to assign the agreements to Remington without the consent of Calgary Power or Enmax.

For those reasons, the Court found that Remington was entitled under the agreements to terminate and require Enmax to remove its facilities. Of course, that dealt only with the private relationship between the parties. The transmission facilities are also subject to public regulation by the Alberta Utilities Commission (AUC). The Court directed Enmax to make an application to the AUC to remove the transmission lines, and ruled that the lines could not be removed or relocated in the absence of an order from the AUC.

This decision is reminiscent of an earlier Alberta Court decision involving a landowner named Randolph Hill. He purchased land from a railway company and was assigned an agreement that gave him the right to require a pipeline company to remove its pipeline. The Court agreed that he had that right, but then the company simply went to the National Energy Board and obtained a Right of Entry Order. The ROE Order now permits the pipeline to remain in place and, further, allows the company to abandon the line in place.

Hill will no doubt be seeking compensation for this expropriation of his rights under the agreement. It will be interesting to see how much those rights are worth. What would someone pay for an agreement that would allow them to free their lands from the encumbrance of a pipeline corridor? That has to be worth a lot on the open market. Remington may very well find itself in a similar position. The AUC may decline to order the removal of the transmission lines, in which case Remington's rights under the CPR agreements will have effectively been expropriated.

Read the decision at: Remington Development Corporation v. Enmax Power Corporation.

Ontario Farm Labour and Safety Issues

noreply@blogger.com (John Goudy, Lawyer) — Mon, 23 Jan 2012 16:48:00 +0000

The Ontario Federation of Agriculture has posted a Checklist for farm operators to provide an understanding of the Ontario legislation dealing with employment issues in farm operations. The OFA says that the Checklist is not intended to replace or supplement the legislation, but can be used as a resource to explain your responsibilities as a farm employer.

According to the OFA, three Acts apply: the Workplace Safety and Insurance Act, the Occupational Health and Safety Act, and the Employment Standards Act. To these might be added the Agricultural Employees Protection Act, 2002, which includes the right to form or join an employees' association.

The OFA information on farm labour and safety issues is available at: Farm Labour and Safety Issues.

The Checklist can be accessed at: Compliance Checklist.

Farm group calls for turbine halt: London Free Press

noreply@blogger.com (John Goudy, Lawyer) — Fri, 20 Jan 2012 19:16:00 +0000

The Ontario Federation of Agriculture has withdrawn its support for wind turbines in Ontario. The OFA says that the issue has pitted neighbour against neighbour, and it has asked the provincial government to suspend further development. Read the article at: Farm group calls for turbine halt London News London Free Press.

Keystone XL Pipeline Application rejected by U.S. Government

noreply@blogger.com (John Goudy, Lawyer) — Thu, 19 Jan 2012 01:05:00 +0000

Read the CBC.ca News story here: Keystone XL pipeline proposal rejected — for now.

MOE seeking comment on new "Guide to Applying for an Environmental Compliance Approval"

noreply@blogger.com (John Goudy, Lawyer) — Wed, 18 Jan 2012 14:50:00 +0000

The Ontario Ministry of the Environment is seeking public comments on a draft "Guide to Applying for an Environmental Compliance Approval", designed to assist an applicant in completing the application form for the approval. The Environmental Compliance Approval (ECA) replaces what was formerly known as a "Certificate of Approval" (CoA). Applicants for approval can now apply for an ECA for multiple activities and projects in multiple media under a single ECA application.

The draft Guide can be reviewed at: Draft ECA Application Guide. Public comments on the draft guide are being accepted until April 10, 2012. Comments are to be directed to:

Nihar Bhatt
Senior Engineer
Ministry of the Environment
Environmental Programs Division
Modernization of Approvals Project
135 St. Clair Avenue West
Floor 4
Toronto Ontario
M4V 1P5
Phone: (416) 325-7560
Fax: (416) 325-7962

Comments can also be submitted on-line using the form at the following link: Comments.

MOE looks at extending Environmental Activity and Sector Registry to additional industries

noreply@blogger.com (John Goudy, Lawyer) — Wed, 18 Jan 2012 14:42:00 +0000

The Ontario Ministry of the Environment has recently implemented an Environmental Activity and Sector Registry (EASR) that allows businesses to register certain activities with the Ministry. The EASR is a public, web-based system where people engaging in selected activities will be required to register the activity and to meet eligibility and operating requirements set out in regulation rather than seeking an approval through the normal application submission and review process (formerly known as Certificates of Approval - now known as Environmental Compliance Approvals). These requirements could be comprised of, but not limited to, design requirements, pollution control measures and best management practices. The Ministry will enforce compliance with the EASR regulation according to its compliance strategy.

To date, activities relating to the following have been added to the registry: automotive refinishing (autobody shop spray booths), heating systems and stand-by power systems. Registry requirements for these activities/sectors are described in O. Reg. 245/11 (under the Environmental Protection Act). The following additional industries are being reviewed for possible inclusion in the EASR program:

Waste collection and transportation;
Ready-mix concrete manufacturing;
Lithographic, Screen and Digital Printing;
Concrete Product Manufacturing.

The proposal to expand the EASR program has been posted on the Environmental Bill of Rights Registry for public comment starting January 11, 2012. Comments are being received until February 25, 2012 and must be submitted to:

Gregory Zimmer
Senior Program Advisor
Ministry of the Environment
Environmental Programs Division
Modernization of Approvals Project
135 St. Clair Avenue West
Floor 4
Toronto Ontario
M4V 1P5
Phone: (416) 325-7893

It is also possible to submit comments on-line at: Comments.

Trans Mountain Pipeline LP ordered to pay $250,000 after oil spill

noreply@blogger.com (John Goudy, Lawyer) — Tue, 17 Jan 2012 14:55:00 +0000

The Trans Mountain Pipeline is 1,050 kilometres in length and has a diameter of 610 millimetres, which is about 24 inches, for most of that length. The Trans Mountain Pipeline can transport approximately 300,000 barrels of oil per day and can transport different products in batches rather than being limited to transporting one product type at a time. It has been in operation since 1953 and crosses the provincial boundary between Alberta and British Columbia. Since it is an interprovincial pipeline, it is regulated pursuant to the federal National Energy Board Act and the National Energy Board Pipeline Crossing Regulations and is subject to the oversight of the NEB.

Trans Mountain has recently been ordered to pay $250,000 after the pipeline was damaged during excavation work, resulting in an oil spill. A civil engineering company working for the City of Burnaby applied to Trans Mountain under Section 112 of the NEB Act for permission to excavate near the pipeline to complete works for a City storm sewer project. A crossing agreement was signed and then the engineering firm retained a construction company to carry out the work. During construction, no preconstruction meeting was scheduled or held between the construction company and Kinder Morgan, the pipeline company acting as agent for Trans Mountain.

The Foreman for the construction company reviewed a services map in conjunction with the project plans and determined that the planned construction work would conflict with the location of the pipeline. Kinder Morgan was advised of the potential conflict and requested to attend to locate and mark the pipeline in the area of the discrepancy. An inspector attended and located the pipeline, the location being consistent with the newly provided service map and inconsistent with the project plans prepared by the engineering firm and approved by Kinder Morgan.

Eventually, construction was being carried out on the site without the presence of an inspector from the pipeline company. No complete location of the pipeline was requested and no preconstruction meeting was held. Later, an excavator operator was widening the trench for the installation of an additional manhole when he pierced the pipeline. Pursuant to this training, the excavator operator attempted to cover the puncture in the pipe with the bucket of his excavator in order to contain the escape of oil. This led to a second puncture.

In handing down its sentence, the Court noted:

There was no benefit which flowed to any of the defendants from the pollution here. The spill was, on the contrary, an accident which could and should have been avoided. Culpability for each of the defendants is at the low end of the spectrum. A combination of small errors by each party created the event. There were misunderstandings, there were erroneous assumptions, but there was not even what might be referred to as real negligence and there was certainly no deliberate wrongdoing. Care was taken, but not enough care.

The Court imposed fines of $1,000 on each of the three companies involved - the engineering firm, the construction company and Trans Mountain. In addition, each company was ordered to pay $149,000 to the Habitat Conservation Trust Foundation. Trans Mountain was ordered to pay another $100,000 to the B.C. Common Ground Alliance for the purpose of "identifying parties engaged in construction or excavation, organizing and planning DigSafe BC! workshops, and raising awareness about damage prevention for those undertaking excavations near underground utilities."

Read the sentencing decision at: R. v. B. Cusano Contracting Inc. et al.

The Expert's Report that Damns the Northern Gateway Pipeline

noreply@blogger.com (John Goudy, Lawyer) — Mon, 16 Jan 2012 15:10:00 +0000

Andrew Nikiforuk has reviewed a report prepared for the Northern Gateway Pipeline hearing in a recent article for The Tyee. The report was prepared by veteran energy analyst David Hughes on behalf of an organization intervening in the approval hearing for the project. Hughes will be testifying at the hearing. He suggests that tripling oil sands production rates above 2010 levels will "compromised the long-term energy security interests of Canadians, as well as their environmental interests".

Read Nikiforuk's article at: The Tyee.

Read the Hughes report at: The Northern Gateway Pipeline.

Ontario Court rules it can decide gas storage lease case

noreply@blogger.com (John Goudy, Lawyer) — Wed, 11 Jan 2012 23:07:00 +0000

Justice Bryant of the Ontario Superior Court of Justice has ruled in favour a landowner in a gas storage related case, finding that the Court is in a position to determine issues related to leases. Recently, Ontario courts have ruled on the exclusive jurisdiction of the Ontario Energy Board over gas storage in Ontario. However, that exclusive jurisdiction only arises where there has been an order designating a gas storage area pursuant to the Ontario Energy Board Act.

In this particular case, Justice Bryant found that the Court retained its inherent jurisdiction to rule on the leases because no designation order had yet been made by the Ontario Energy Board. This decision is another in a growing line of decisions related to this matter. Originally, Tribute Resources had taken over oil and gas and gas storage leases on the lands of McKinley Farms Limited in Huron County. However, a previous ruling of the court, upheld on appeal, found that the gas storage lease terminated. The Court of Appeal did rule that the oil and gas lease remained effective. McKinley then signed a new gas storage agreement and oil and gas lease with a numbered company related to McKinley.

In 2011, the numbered company applied to the Superior Court for declarations that its gas storage lease permits the storage of gas beneath the McKinley lands and that Tribute has no right under its gas and oil lease (which was not declared void by the Court of Appeal) to store gas. Tribute then filed an application asking the Court to rule that it had no jurisdiction to decide the application by the numbered company and that the relief sought by the numbered company was within the exclusive jurisdiction of the Ontario Energy Board. This application, as reported above, was dismissed.

Read the decision at: Tribute Resources v. 2195002 Ont. Inc.

Former Pipeline Inspector attacks TransCanada construction practices

noreply@blogger.com (John Goudy, Lawyer) — Tue, 10 Jan 2012 22:28:00 +0000

Mike Klink, formerly a pipeline inspector for Bechtel, recently wrote an editorial piece expressing concern over the workmanship he witnessed during the construction of TransCanada's Keystone Pipeline and the risk that it will be repeated in the construction of the Keystone XL pipeline. Bechtel was an inspection company working on behalf of TransCanada. Klink says that he witnessed the use of substandard steel that cracked during welding, faulty safety tests and the installation of insufficient foundations. He warns, "If it were a car, the first Keystone would be a lemon. And it would be far worse to double down on a proven loser with Keystone XL." Klink points to fourteen spills as having already occurred on the relatively new Keystone pipeline.

Read the opinion piece at: journalstar.com

Quebec Commission orders pipeline depth at 1.6 m or more than 5 feet

noreply@blogger.com (John Goudy, Lawyer) — Sun, 08 Jan 2012 12:00:00 +0000

In its decision granting authorization to Gaz Metro for the expansion of its gas distribution pipeline facilities, the Commission de Protection du Territoire Agricole du Quebec (Agricultural Land Protection Commission) is requiring that the pipeline be installed at a depth of 1.6 metres (or more than 5 feet) through cultivated land. The Commission noted that it requires a minimum depth of cover of 1.2 metres on private property, but in this case 1.6 metres was warranted. The Commission ruled that Gaz Metro would have to be notified of any agricultural activity conducted to a depth of more than 60 centimetres.

Note that Section 112 of the NEB Act requires a landowner to obtain permission from the pipeline company for any activities at a depth of more than 30 centimetres (or 1 foot). The difference is depth of cover. Under NEB regulation, pipelines need only be installed at a minimum depth of 2 feet as set out in the applicable CSA standard.

If pipelines had to be installed at 1.6 metres' depth, would a 30 centimetre restriction be necessary?

Read the Commission decision (in French) at: Société en commandite Gaz Métro (Re).

Sarg Oils Limited well abandonment saga continues

noreply@blogger.com (John Goudy, Lawyer) — Fri, 06 Jan 2012 12:00:00 +0000

Professor Nigel Bankes of the University of Calgary has posted a comment on a recent review decision by the Energy Resources Conservation Board (ERCB). The decision relates to a failure by Sarg Oils Limited to pay the costs of abandoning oil and gas wells in Alberta. Sarg had failed to abandon the facilities itself, so the ERCB conducted the abandonment and then sought to recover its costs from Sarg. Bankes points out the possibility that the Orphan Well Fund may end up having to cover costs of further abandonments. He notes that, although the oil and gas industry is supposed to cover the cost of the Fund, the Alberta government injected $30,000,000 into the Orphan Fund as part of a package of incentives for the energy industry in 2009.

Read the comment at: Nigel Bankes' comment on Sarg Oils Limited.

Appeal Tribunal awards costs against landowner in drainage case

noreply@blogger.com (John Goudy, Lawyer) — Thu, 05 Jan 2012 12:00:00 +0000

The Agriculture, Food and Rural Affairs Appeal Tribunal has ordered an appellant landowner, Alan Webster of Thornhill, Ontario to pay costs related to a motion brought by the City of Kawartha Lakes. Although the motion to dismiss by the City was unsuccessful, the Tribunal found that Webster had failed to abide by procedural directions made by the Tribunal, which led to the need for the motion.

Those procedural directions were given in the context of an agricultural drainage project that has been under appeal since 2006. The project involves the drainage of about 21,000 acres of land at approximately 400 landowners. There have been a total of 72 appeals to either the Drainage Referee or to the Appeal Tribunal. The only remaining outstanding proceeding is Webster's appeal to the Tribunal under section 48 of the Drainage Act. The Tribunal had exercised its discretion to intervene with procedural directions to case manage the remaining appeal through to an expeditious resolution. The Tribunal stated that expeditious resolution would benefit all of the 21,000 acres and 400 landowners potentially affected by the drainage project.

More than five years had passed since delivery of the original Engineer's Report. Webster had had more than five years to crystallize and refine his section 48 Appeal issues, marshal his evidence and defined his appeal strategy. Webster was self represented in the proceeding. The Tribunal found that Webster's failure to abide by simple and clear procedural directions was unreasonable. The Tribunal found that Webster was an educated, sophisticated and articulate litigant. The Tribunal was unable to suspend disbelief sufficient to accept the explanation Webster offered about why he failed to comply with the procedural order.

The City sought recovery of costs for the dismissal motion. The Tribunal ordered Webster to pay the costs of the City of Kawartha Lakein the amount of $7080.70. The Tribunal also ordered that the cost award be credited to the drain account and added to the tax roll, therefore having priority lien status under section 61 of the Drainage Act and section 1 of the Municipal Act.

Read the decision at: Short and No. 2A Drain, 2006 - Costs of Motion Decision.

Classic tale of winding up in trouble for good deed

noreply@blogger.com (John Goudy, Lawyer) — Wed, 04 Jan 2012 15:26:00 +0000

The Canada Agricultural Review Tribunal has upheld a notice of violation issued by CFIA in "a classic tale of one person doing a good deed in helping a neighbour and then winding up in trouble for his good deed." Joseph Nalli transported, for no fee, seven sheep to a stockyard to help his neighbour, who was suffering from health concerns. The neighbour had not tagged the sheep prior to their departure and, once at the stockyard, Nalli immediately told stockyard staff that the sheep were untagged.

The stockyard staff would not accept the sheep until they were tagged. After requesting and receiving instruction from a CFIA inspector on how to apply the tags, Nalli went into his trailer and tagged seven sheep with approved tags. The CFIA inspector recorded the tag numbers and later, when tracing to whom the approved tags had been issued, found they were registered to Nalli and not to his neighbour who owned the sheep.

In its decision on the review of the notice of violation, the Tribunal accepted that Nalli was acting in good faith without fee to help a neighbour and that he was undoubtedly apologetic for using his own tags on his neighbours sheep. The Tribunal also noted that, while it is regrettable that Nalli’s efforts to help a neighbour resulted in his committing a regulatory violation, the Tribunal is only permitted, under its enabling statutes, to assess the validity of the notice of violations issued by the agencies it oversees.

Read the decision at: Nalli v. Canada (CFIA).

Merry Christmas !!!

noreply@blogger.com (John Goudy, Lawyer) — Sun, 25 Dec 2011 12:00:00 +0000

I wish all of my readers and their families a very Merry Christmas and a Happy New Year! Good health and good luck to everyone in 2012!

John Goudy

Dawn Gateway Pipeline Project cancelled

noreply@blogger.com (John Goudy, Lawyer) — Sat, 24 Dec 2011 05:00:00 +0000

Dawn Gateway LP has advised the Ontario Energy Board that it will not be proceeding with the construction of the Bickford Dawn pipeline. Dawn Gateway LP has also advised Union Gas Limited that it will not proceed with the purchase of the St. Clair Pipeline. Dawn Gateway says that it is not proceeding with the project as a result of market conditions and "rate payer harm impacts".

The Dawn Gateway pipeline project was earlier the subject of a constitutional decision by the Ontario Energy Board. Originally, the pipeline was proposed as a federally-regulated project. The National Energy Board dismissed concerns expressed by affected landowners that the project was not federal and that, if it proceeded as a federal project, landowners would be negatively affected. However, the Ontario Energy Board ruled that the project would be provincial and accepted that some of the concerns of the landowners were valid.

Michael Schmidt seeking leave to appeal conviction and sentence

noreply@blogger.com (John Goudy, Lawyer) — Fri, 23 Dec 2011 13:58:00 +0000

Durham-area farmer Michael Schmidt is asking for leave to appeal his conviction on 15 charges related to the sale of raw milk along with the sentence handed down following the conviction. Schmidt was sentenced to a fine of $9,150 and one year of probation. The appeal would be heard by the Ontario Court of Appeal.
Justice Tetley's reasons for sentencing Schmidt are available on the website of the Canadian Constitution Foundation. The Crown had asked for $1,000 per count for each of ten convictions under the Health Protection and Promotion Act, R.S.O. 1990, c. H-7, and $200 for two other counts under the same Act. The Crown sought a fine of $5,000 for the offence under the Milk Act of operating a milk plant without a licence during the fourteen week period of the investigation by the Ministry of Natural Resources.

In handing down the sentence, Justice Tetley declined to rule that Schmidt's was a test case in which it would be appropriate to moderate the sentence. Tetley did agree, however, that a relevant factor in sentencing was the fact that Schmidt believed he was complying with the applicable legislation. Justice Tetley added that the extended period of time where regulatory enforcement procedures were not instituted may reasonably be concluded to have contributed to a mistaken belief on the part of Schmidt that he was in compliance with the law.

Read the decision at: R. v. Schmidt.

CAFA Conference in Ottawa - February 2, 2012

noreply@blogger.com (John Goudy, Lawyer) — Fri, 23 Dec 2011 13:42:00 +0000

Click here for registration form: REGISTRATION FORM.

Environmental Law appeal to be argued over Twitter

noreply@blogger.com (John Goudy, Lawyer) — Wed, 14 Dec 2011 18:57:00 +0000

FOR IMMEDIATE RELEASE December 13, 2011

Environmental law appeal to be argued over Twitter – for the First time ever

VANCOUVER. On Tuesday, February 21^st, 2012 at 10am PST (1pm EST), West Coast Environmental Law will be hosting the world's first ever Twitter Moot. Moot Courts – a simulated court hearing – are a common activity in law schools, but are new to most of Twitter's more than 300 million users. Law students from 5 prominent Canadian law schools are scheduled to compete in this first moot.

Law students will represent Canadian Universities – British Columbia, Dalhousie, Ottawa, Victoria and York (Osgoode Hall) – will represent parties and present their arguments over Twitter in a simulated appeal of an actual court case: West Moberly First Nations v. British Columbia. The judges confirmed to hear the appeal (a third judge is still to be announced) include:

William Deverell (lawyer and author of the critically-acclaimed Arthur Beauchamp Mystery novels); and
Omar HaRedeye (lawyer, blogger and one of Canada’s top 24 social media influencers according to Canadian Lawyer Weekly).

“Legal argument is not often limited to 140 characters or less,” said Jessica Clogg, Executive Director of West Coast Environmental Law. “But Twitter is the perfect medium to raise public awareness about how the law can help protect the environment.”

“The Twitter Moot will tell the story of an Aboriginal Nation fighting to preserve their relationship with the land against coal mining, and of the complicated questions of law and values that come with that conflict,” said Andrew Gage, one of the Moot’s organizers. “Tweeps [Twitter users] interested in law, the environment or aboriginal issues will definitely want to follow our Twitter Moot.”

Members of the public seeking to follow the moot can follow www.twitter.com/WCELaw/twtmoot, or can visit West Coast’s website at www.wcel.org/twtmoot/ Visit the web pages of the individual teams to leave advice or good wishes to the teams. The Hashtag for the Twitter Moot is #twtmoot.

West Coast Environmental Law thanks the sponsors of the Twitter Moot, or #twtmoot, including Iler Campbell LLP, McCarthy Tetrault, Miller Thomson LLP, Saxe Law Corporation, Skunkworks Communications, and Willms & Shier Environmental Lawyers.

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For more information contact:

Andrew Gage, Staff Lawyer, West Coast Environmental Law – 604-601-2506 (Vancouver) or 250-412-9784 (Victoria)

Jessica Clogg, Executive Director, 604-601-2501.

The TwtMoot Web Pages are available at wcel.org/twtmoot.

OEB dismisses most of gas storage compensation claim

noreply@blogger.com (John Goudy, Lawyer) — Wed, 14 Dec 2011 12:00:00 +0000

The Ontario Energy Board (OEB) has recently decided a gas storage case that follows on the heels of a Court of Appeal decision that determined that the OEB has exclusive jurisdiction to decide questions of compensation. The applicants before the OEB were the claimants in the case dismissed by the Court of Appeal. The applicants made an application to the OEB under section 19 and section 38(2) of the Ontario Energy Board Act, 1998 for a number of heads of relief. In particular, the application under section 19 was for an order of the OEB determining that the contracts between the applicants and Union Gas Limited have been terminated. The application under section 38(2) was for an order determining the quantum of compensation to which the applicants were entitled.

The OEB has now partially dismissed the application on a motion for summary judgment filed by Union Gas Limited. In doing so, the OEB applied the test under Rule 20 of the Ontario Rules of Civil Procedure. The OEB was satisfied that there was no genuine issue requiring trial with respect to at least part of the claim made by the applicants. Union made two arguments on why the application should not be heard by the OEB. Firstly, Union argued that there was significant delay on the part of the applicants bringing the application. Secondly, union argued that it had binding compensation agreements with the applicants, which, together with the OEB's 1993 gas storage area designation order, have superseded any prior agreement between Union, its predecessors, and the applicants.

The OEB found that Union's rights to inject gas into, store gas in and remove gas from the Edys Mill Pool, and to enter into and upon the land in the area and use land for such purposes was governed solely by the designation order, and has been since 1993. The designation order supersedes any previous agreement with respect to Unions rights to inject store and remove gas. Whether previous contracts between the parties relating to the right to inject, store or remove gas have been formally canceled or not is essentially irrelevant as these rights are now governed by the designation order.

It was also noted by the OEB that the applicants' allegations of unspecified breaches of the designation order were not supported by any evidence or particulars. Even if there had been breaches of the designation order, it was not clear to the OEB that such breaches would be the proper subject of a hearing under section 38 of the Act. As there was no basis for any finding in this proceeding that Union had committed any breaches of the designation order, the OEB dismissed claims based on those alleged breaches.

With respect to just and equitable compensation under section 38 of the Act, the OEB determined that it had no jurisdiction over gas storage on the applicants' lands during the period prior to the designation order. During the period from the designation order in 1993 to 1999, the OEB determined that the applicants had been paid compensation by Union pursuant to Unions gas storage leases. Therefore, the OEB dismissed the claims for compensation for the period 1993 to 1999.

The period 1999 to 2008 was covered by a compensation order made by the OEB. The applicants were members of the Lambton County Storage Association (LCSA), which had negotiated an agreement with Union with respect to compensation. The board ruled that it had dealt with compensation issues in that order in a final manner and that no party affected by it may seek additional or other relief for the period of time it covers. The fact that the OEB has jurisdiction over compensation does not mean that the OEB can revisit the issue.

The OEB accepted that it could hear an application with respect to compensation owed to some of the applicants for the post-2008 period. There was no agreement in place between Union and some of the applicants and the OEB could set the level of compensation under section 38 of the Act.

Read the OEB decision at: Knight et al. v. Union Gas.

Court throws out damages claims related to municipal drainage repairs

noreply@blogger.com (John Goudy, Lawyer) — Mon, 12 Dec 2011 14:58:00 +0000

The Ontario Superior Court has dismissed a claim by a landowner for damages relating to a municipal drain (the "Cazabon Drain") located on the landowner's property. The landowner claimed damages for nuisance (for unnecessary damage caused by undue delay by the municipality to remedy a drain problem), damages for negligence (for poor quality of workmanship in relation to repairs undertaken), and damages for "intentional infliction of economic harm" and "intentional infliction of mental suffering". These last two claims were apparently related to the harm the landowner's reputation suffered after the municipality obtained a permanent injunction against him under the Drainage Act to prevent interference with efforts to repair the drain.

On a summary judgment motion by the municipality, the Court dismissed the landowner's claims for nuisance and negligence on the basis that insufficient notice of the claims as required by Section 111 of the Drainage Act had been given. The judge allowed, however, that the landowner could commence new claims for nuisance and negligence. The claims for economic harm and mental suffering were dismissed outright on the basis that there was no issue for trial.

The Court also noted in the course of its decision that claims for damages related to the construction or repair of drainage works do not necessarily have to go to the Agricultural, Food and Rural Affairs Tribunal. The Tribunal does not have exclusive jurisdiction over such claims. The municipality had argued in this case that the landowner's claim based on negligence should be dismissed because it should have gone to the Appeal Tribunal.

Read the decision at: Hud v. West Nipissing.

TransCanada plans removal of 5.6% of 14,000 km of pipelines on abandonment

noreply@blogger.com (John Goudy, Lawyer) — Thu, 08 Dec 2011 12:00:00 +0000

TransCanada Pipelines Limited has also submitted its application to the NEB for approval of its abandonment costs estimates. TCPL has over 14,000 km of pipelines in Canada (not including the Keystone), more than half of which run through agricultural land. Of the almost 8,000 km of pipe through agricultural lands, TCPL proposes to remove 1.7% on abandonment. The rest of the pipe will be left in the ground with no continuing protection going forward.

Read TransCanada's application at: TransCanada Preliminary Abandonment Costs Estimates.

Enbridge plans to remove 0.6% of its pipelines on abandonment

noreply@blogger.com (John Goudy, Lawyer) — Wed, 07 Dec 2011 12:00:00 +0000

Enbridge Pipelines Inc. plans to remove only 0.6% of its nearly 8,000 km of pipelines in Canada at the time of abandonment. For agricultural land, only lands with "prospective future development" would have pipelines removed. Pipelines would be abandoned in place in all other agricultural land with no "special treatment" for the pipelines. This would include pipelines with a diameter of up to 48 inches. More than 5,000 km of Enbridge pipelines run through cultivated land. The 0.6% figure contrasts sharply with the 20% number identified by the National Energy Board (NEB) in its abandonment funding documentation.

Enbridge has applied to the NEB for approval of its plan for abandonment funding purposes. The documents comprising Enbridge's application can be found at: Physical Plans for Abandonment and Preliminary Cost Estimates.

Enbridge's application includes excerpts from a Praxis Research study conducted for the Canadian Energy Pipeline Association (CEPA). The study consisted of a landowner survey, and Enbridge says that its abandonment plans took the results of the survey into consideration. However, more than 50% of respondents with Enbridge pipelines expressed concern about Enbridge pipelines being left in the ground. Read the study excerpt at: CEPA Landowner Survey.

Enbridge Line 9 Hearing Order Here

noreply@blogger.com (John Goudy, Lawyer) — Tue, 06 Dec 2011 13:47:00 +0000

Click here to view the NEB Hearing Order for the Line 9 Reversal Project: Hearing Order.