Law of the Lands - Farm, Energy and Enviro Law

Wheel off wood chipper case sent back for new trial

noreply@blogger.com (John Goudy, Lawyer) — Thu, 25 Apr 2013 12:47:00 +0000

Ontario Ministry of Transportation (MTO) officers investigated a truck stopped along a highway. Attached to the truck was a wood chipping machine that was missing its right wheel. The hub of the wheel was located at the end of a scrape mark in the pavement, but the wheel was not found. The wheel hub had the eight wheel-fastening bolts shorn from where the wheel should have been attached.

The truck belonged to a tree services company. The MTO charged the company and the person that was present with the truck with offences under the Highway Traffic Act (HTA) - the company was charged with a "wheel-off" offence and the individual was charged with driving an unsafe vehicle.

The Justice of the Peace at trial acquitted both defendants, finding that the wood chipper was not a vehicle (an essential ingredient of each charge). A wood chipper was being towed, but was not a "thing used for transporting people or goods on land". The Crown appealed the decision, arguing that the JP erred in not taking a purposive or purpose-based approach to the interpretation of the charging provisions.

On appeal, a judge of the Ontario Court of Justice agreed that the purposive approach is to be applied and results in a finding that the wood chipper was, in fact, a vehicle for the purposes of the HTA. However, the judge also noted that there were other defences that could have possibly been raised by the defendants at trial, but that were not necessary for the trial judge to deal with (given the ruling on a wood chipper not being a vehicle). Both charges were sent back for a new trial.

Read the decision at: Ontario (Ministry of Transportation) v. Tsapoitis.

Tribunal upholds rejection of milk from farm's bulk tank

noreply@blogger.com (John Goudy, Lawyer) — Fri, 19 Apr 2013 14:27:00 +0000

The Ontario Agriculture, Food and Rural Affairs Tribunal has dismissed an appeal by an Ontario dairy farm from the rejection of milk from its operation by the Dairy Farmers of Ontario ("DFO"). The farm has operated for 30 years and, in the fall of 2010, was carrying out three milkings a day. A transport company picked up the milk from a farm bulk tank on every second day, representing six milkings.

On November 28, 2010, the transporter (a certified Bulk Tank Milk Grader) arrived to pick up milk. He rejected the milk "because of an off odour "malty" smell". He took two samples and declined to pick up the milk, leaving a "Red Tag" at the farm.

The farm appealed the rejection of the milk on the basis that the DFO had not followed the proper procedure. However, the Tribunal ruled that procedural errors made by DFO and its agent, the transporter (not properly filling out the Red Tag and not proving that DFO had adopted a policy of "no second opinions" with respect to the rejection of milk), did not negate the determination that the milk should be rejected.

Read the decision at: La Gantoise Inc. vs. Dairy Farmers of Ontario (DFO).

OHSA conviction of farm operation upheld on appeal

noreply@blogger.com (John Goudy, Lawyer) — Thu, 14 Mar 2013 13:22:00 +0000

An employee of a chick hatchery operation was injured when she fell climbing down from a storage trailer used to house paper liners used in shipping crates. The employee broke her leg. The hatchery was charged under the Occupational Health and Safety Act for failing "to take the reasonable precaution of ensuring that adequate access and/or egress was provided for a transport storage trailer". The hatchery was convicted at trial and appealed the conviction.

Justice Nadel of the Ontario Court of Justice upheld the conviction, finding that, "while the set of steps may once have worked well and may once have been adequate to their purpose that was no longer the case after the trailer had been moved. ... A gap of two feet between rungs of a ladder or a rise of two feet between the treads of a set of steps is, in my view, self-evidently unsafe. Likewise, a gap of two feet between the top of a set of steps and the platform those steps are intended to give access to is equally self-evidently unsafe and inadequate to the purpose."

The defendant had taken the position on the appeal that, "there is no offence known to the law of Ontario that requires an employer in a farming operation to take the reasonable precaution of ensuring that adequate access and/or egress is provided for a storage facility where the employee's task requires her to work at a height that is less than three metres" (as paraphrased by Justice Nadel). This was rejected by the Court.

Read the decision at: Ontario (Ministry of Labour) v. Stratford Chick Hatchery Ltd.

NOVA/TransCanada withdraws application to "decommission" 266 km line

noreply@blogger.com (John Goudy, Lawyer) — Tue, 05 Mar 2013 19:11:00 +0000

In August, 2012, NOVA Gas Transmission Ltd. (part of TransCanada Pipelines) applied to the National Energy Board (NEB) for permission to "decommission" a 266-km stretch of pipeline. Essentially, the application would see the abandonment of the line in place, but NOVA contended that it was "decommissioning" the line because service on its "pipeline" would continue. The NEB disagreed and directed that it would consider the application as one to abandon a pipeline.

On February 8, 2013, NOVA wrote to the NEB to withdraw its application, saying that it was reviewing its proposal in light of the NEB's comments: February 8, 2013. The NEB confirmed this development in its letter to NOVA dated February 25, 2013.

Landowners should keep an eye on these developments. It appears that pipeline companies are taking the position that, as long as they continue to transport materials somewhere on their pipeline systems, none of their abandonments are actually "abandonments" within the meaning of the NEB Act. Instead, the companies will suggest that they are "decommissioning" pipelines, depriving landowners and other interested parties from public hearings, participant funding, etc.

Natural severance granted to two landowners by Superior Court

noreply@blogger.com (John Goudy, Lawyer) — Tue, 26 Feb 2013 20:50:00 +0000

Owners of two different properties in the Hamilton, ON area brought applications to "clarify or determine title" to the bed of a waterway that traverses each of the properties. If the waterway was determined to be navigable, then the bed of the waterway would remain the property of the Crown and would effect a severance of the properties involved. Section 1 of the Beds of Navigable Waters Act provides:

"Where land that borders on a navigable body of water or stream, or on which the whole or a part of a navigable body of water or stream is situate, or through which a navigable body of water or stream flows, has been or is granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee."

The Crown Patent for both properties was issued on January 11, 1816 to a single owner. The original Patent did not contain any express grant of the bed of the watercourse. Therefore, if the watercourse was found to be navigable as of the date of the grant, then title to the bed of it would remain vested in the Crown.

On the basis of evidence presented by the parties, the Court concluded that it was probable that the waterway was navigable for significant periods of the year in 1816. Title of the bed of the waterway remains in the Crown (resulting in the natural severance of the Applicants' properties).

Read the decision at: O’Donnell v. Ontario (Attorney General) and Obratoski v. Ontario (Attorney General).

NEB to introduce Administrative Monetary Penalties

noreply@blogger.com (John Goudy, Lawyer) — Mon, 18 Feb 2013 17:03:00 +0000

The National Energy Board (NEB) has developed draft Administrative Monetary Penalties Regulations (AMP Regulations) and published them in the Canada Gazette, starting a 30-day public comment period.

Under the proposed regulations, the NEB can issue a Notice of Violation to landowners who construct a facility or excavate without leave under Section 112(1) of the NEB Act or who fail to obtain leave of a pipeline company to drive vehicles or mobile equipment over a pipeline right-of-way under Section 112(2) of the NEB Act. These violations are designated as Type-B violations and will result in a monetary penalty of between $4,000 and $100,000 for a corporation and between $1,000 and $25,000 for an individual.

NEB Abandonment Cost Estimates: Will there be enough money?

noreply@blogger.com (John Goudy, Lawyer) — Fri, 15 Feb 2013 15:26:00 +0000

The National Energy Board released its decision in the Pipeline Abandonment Cost Estimates proceeding yesterday (click here). An oral public hearing was held in Calgary last October and November. For pipeline landowners, the key ruling by the NEB was its finding that basing cost estimates on an assumption of zero removal of pipelines in agricultural lands was unreasonable. The NEB has already decided that companies must begin collecting tolls now to cover the future costs of pipeline abandonment; the question is how much is to be collected. Companies argued that the amounts should be based on the assumption that nearly all pipelines in agricultural lands should be abandoned in place. Not surprisingly, this was oppposed by pipeline landowners.

In an earlier hearing, the NEB had rejected the landowner proposal for a 100% removal assumption for all medium and large diameter pipelines in agricultural lands. Instead, the NEB created a "base case" assumption calling for 20% removal and 80% perpetual maintenance, though giving companies the opportunity to provide justifications for a departure from this base case. In its most recent decision, the NEB found that the companies had failed to justify their proposed departures from the base case and ordered that abandonment funding amounts be set based on the 80/20 split:

The Applicants have not successfully justified their deviation from the Base Case assumption for medium and large diameter pipe in these two land-use sub-categories. During the course of the MH-001-2012 hearing, all Applicants made submissions to the Board as to why the Base Case assumptions of 80 per cent abandonment-in-place and 20 per cent removal should not be imposed. The Board considered these comments but does not find them convincing. In addition, the Board also considered Applicants’ responses to a Board request made during the course of the hearing. Applicants were asked to provide recalculated cost estimates for three theoretical scenarios – 10, 20 and 30 per cent removal on "Agricultural, Cultivated" and "Agricultural, Cultivated and Non-Cultivated" sub-categories, using their own methodologies. Finally, the Board considered the issues described above regarding easement agreements, landowner surveys, and the lack of provision for any site-specific issues that may necessitate removal. The Board has exercised its judgment in determining a reasonable assumption for medium and large diameter pipelines in the "Agricultural, Cultivated" and "Agricultural, Non-Cultivated" sub-categories. In the Board’s view, 20 per cent removal for medium and large diameter pipe in these land-use sub-categories is a reasonable, prudent and adequate starting point for estimating purposes.

For the landowners and landowner groups who participated in the hearing process (at their own cost, given that there is no mechanism for cost recovery in the NEB hearing process and no participant funding available), this decision is a victory. However, it remains to be seen whether the 80/20 split and the companies' actual estimates of abandonment costs will be sufficient to protect landowners from the costs of pipeline abandonment in the future. The positions taken by the pipeline companies in the proceeding demonstrate that they will likely do everything in their power to avoid having to remove their abandoned pipelines from the ground.

Federal Court denies Monsanto default judgment over patent infringement

noreply@blogger.com (John Goudy, Lawyer) — Tue, 05 Feb 2013 14:14:00 +0000

Monsanto Canada Inc. and Monsanto Company have been denied an order for default judgment by the Federal Court of Canada in a patent infringement case. The farmer involved did not file a defence. Monsanto alleged that the farmer signed a licence with and obtained patented seeds from Monsanto; that the licence permitted the farmer to grow one crop, not to save seeds, and not to replant a new crop from those seeds; and that, notwithstanding the terms of the licence, the farmer saved seeds and planted a crop containing the patented gene.

The rules required that Monsanto file affidavit evidence in support of its claim. In other words, although there was no defence filed, the Court would not simply accept the allegations in the claim without some proof. Monsanto attempted to circumvent this requirement by serving a "Request to Admit", a series of allegations put to the opposing party. Where the opposing party fails to answer (either by admitting or denying the allegations), as in this case, that party is deemed to have admitted the allegations.

The Federal Court declined to accept this "evidence" as a sufficient basis for a default judgment order:

I am sceptical of such an attempt to “bootstrap” the requirement to provide the necessary evidence to support a default judgment by procedural manoeuvring. While it is true that, particularly in contested proceedings, the Request to Admit process is useful in eliminating the need to prove certain facts, I am satisfied that such a Request cannot be a substitute for affidavit evidence required on a motion for default judgment. Rule 210(3) states that a motion for default judgment shall be supported by affidavit evidence which evidence, in the context of the Rules, I take to be directed to the substance of the claim and not just an affidavit of service. I agree that the Court might even have discretion in respect of certain of the practice and procedural provisions of the Rules. In this case, because there is no affidavit evidence, whatsoever, to support the allegations in the Statement of Claim, I will not exercise any discretion, even if I have it, to accept the unanswered Request to Admit in lieu of such affidavit evidence.

Read the decision at: Monsanto Canada Inc. v. Verdegem.

Landowners seek to rely on 60-year old drainage maintenance agreement with municipality

noreply@blogger.com (John Goudy, Lawyer) — Mon, 28 Jan 2013 16:39:00 +0000

Landowners and a municipality disagreed over the continuing effectiveness of an agreement made in 1953 that required the municipality's predecessor to maintain a drainage system and to make good any and all damage caused to the landowner (property owner). The agreement had been made at a time when the local Township wished to construct a drainage system along a road. In exchange for a right of access to the neighbouring property belonging to the predecessor-in-title to the current landowners, the Township gave the undertakings respecting maintenance and repair of damages. The agreement was not registered on title, but the current landowners were aware of it.

When the current landowners asked the current municipality (the successor of the original Township) to meet its obligations under the agreement, the municipality responded that it was no longer bound by the agreement. The parties then agreed to have the Court decide the question in a "Special Case" under Rule 22 of the Rules of Civil Procedure.

The result was the following series of declarations by the Court in favour of the landowners:

1. A DECLARATION that the Agreement on April 27, 1953, properly interpreted, did impose a perpetual obligation of the Township of Thurlow to maintain the drainage system it had installed in good working condition at all times and to make good any and all damage caused to the property owner whoever that may be from time to time as a result of lack of repair or of acts done at any time by the corporation in maintaining and repairing the system.

2. A DECLARATION that as a result of the amalgamation of the Township of Thurlow and the Defendant City in 1998, the Defendant City is bound by the contractual obligations of the former Township which are found to have been created by the Agreement.

3. A DECLARATION that the Agreement is valid and binding notwithstanding that it was not entered into or, the system was not constructed, under or in accordance with legislation such as the Drainage Act.

4. A DECLARATION that the Agreement can be enforced against the Defendant City although it was not registered on title under the Registry Act and/or the Land Titles Act.

5. A DECLARATION that the Plaintiffs are not barred from enforcing the Agreement by s. 449 of the Municipal Act, 2001.

6. A DECLARATION that the Defendant does not have a valid defence to the Plaintiffs’ claim on the basis that the conduct of the Defendant amounts to the exercise or non-exercise of a discretionary function resulting from a policy decision.

7. A DECLARATION that the Plaintiffs are successors of the Agreement and thus, are entitled to enforce the Agreement without an express assignment.

8. A DECLARATION that the Defendant does not have a valid defence to the Plaintiffs' claim on the basis that the Plaintiffs are trying to enforce a positive covenant in regard the land.

9. A DECLARATION that the Agreement, which imposes a perpetual obligation upon the City, is not invalid as contrary to public policy because it does impose a perpetual obligation.

10. A DECLARATION that there is sufficient description of the property and easements in the Agreement to create an enforceable agreement.

11. A DECLARATION that the Defendant does not have a valid defence to the Plaintiffs’claim on the basis that the Plaintiffs did not inquire about the Agreement and/or its status before they bought the land, and/or by reason of the defence that the Plaintiffs did not rely on the Agreement when they bought the land.

12. A DECLARATION that the Agreement is not void as against public policy as fettering the Defendant City’s discretion with respect to future uses of roads and road allowances.

13. A DECLARATION that there is no statutory limitation period that acts to bar an action by the Plaintiffs.

14. A DECLARATION that the Plaintiffs’ claim for damages for breach of the Agreement is not defeated by the doctrine of laches.

Read the decision at: Brown v. Belleville (City).

Divisional Court upholds land registry freeze in face of apparent "scheme"

noreply@blogger.com (John Goudy, Lawyer) — Wed, 23 Jan 2013 15:25:00 +0000

The Ontario Divisional Court has upheld a decision of the Director of Land Titles to place a freeze on the land records for a piece of property in Bruce County. Krystal Summer Williams had sought to register a "self-to-self" transfer of the property, which was still administered under the Registry Act system of land registration. Under the registry system, a person dealing with the property only has to trace the chain of title back for forty years. The property in this case had not been dealt with since 1936 and Ms. Williams applied to become the registered owner of the land.

Ms. Williams admitted that she did not own or have any interest in the property prior to registration, and the Director alleged that she was involved in a scheme to convey title to property that she does not own.

The Divisional Court agreed and ruled that the Director had authority to impose the freeze in order to determine the propriety of the self-to-self transfer. In the Court's view, this was "merely a scheme to create an interest in land where none exists."

Read the decision at: Williams v. Ontario.

Can a right of first refusal bind non-parties?

noreply@blogger.com (John Goudy, Lawyer) — Fri, 11 Jan 2013 16:19:00 +0000

That general question was at the heart of a recent Ontario Court of Appeal ruling on an estate matter. Parents owned a property; they wanted to sell it to one of their three children, but the other two kids opposed the sale; in order to appease everyone, the parents proposed an agreement that would allow the property to go to the one child, but with a right of first refusal on the part of the other two kids in case the property-owner child ever decided to sell. The other two kids wanted to keep the property in the family.

The agreement was executed by the three children, including the right of first refusal and a provision stating that notice of the agreement could be registered on title to the property. Later, the property was transferred from the one child to her and her husband as joint tenants, with the husband having agreed to be bound by the previous agreement (including the right of first refusal). The agreement was subsequently registered on title to the property, with the undertaking of the husband appended.

The whole situation ended up in Court because of disagreement between the siblings and their children over what could happen with the property on the death of the property-owner sibling (and her husband). Was the agreement binding on the heirs of the property-owner? Those heirs raised the issue of privity of contract, which was described by the Court of Appeal as follows:

The doctrine of privity of contract stands for the proposition that a contract cannot, as a general rule, confer rights or impose obligations arising under it on any person except the parties to it. This doctrine has two very distinct components or aspects. On the one hand, it precludes parties to a contract from imposing liabilities or obligations on third parties. On the other hand, it prevents third parties from obtaining rights or benefits under a contract. See London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992 CanLII 41 (SCC), [1992] 3 S.C.R. 299, at para. 200.

There are established exceptions to the second aspect of the doctrine. In certain situations, the courts will permit strangers to enforce the contract and take the benefit of its provisions. The established exceptions are agency, trust, assignment or assumption, exceptions established by statute, and restrictive covenants. See Greenwood Shopping Plaza Ltd. v. Beattie et al.,1980 CanLII 202 (SCC), [1980] 2 S.C.R. 228, at para. 11.

The Court noted that, at first blush, it might seems as if privity of contract applies in this case and that the heirs of the property-owner sibling are not bound by the right of first refusal. However, death does not terminate a contract unless the contract is "based on personal considerations, skill or confidence (a personal contract)." The estate of the owner would be in the position of the owner, bound by the agreement.

What if the property is then conveyed by the estate to the heirs? The Court found that the heirs, too, would be bound by the right of first refusal. The estate would pass title to the property to the heirs subject to the requirements in the agreement. Not only do those heirs have actual notice of the agreement (in this case), but they "are volunteers in the sense that they give no consideration for title to the Property". The heirs cannot stand in a better position than did the estate.

The Court of Appeal also ruled that the Agreement containing the right of first refusal was properly registrable against title to the property under the Land Titles Act. The Court says the following with respect to the nature of the interest held by a holder of a right of first refusal:

What did the holder have before crystallization? The holder had an interest in the unregistered equity that arose at the point of crystallization. To be sure, the holder is not entitled to the equity, as that entitlement arises on crystallization. But the holder has an interest in it, in the sense that the holder has something more than a mere spes or hope. The holder, prior to crystallization, has the recognised legal interest that will swell into an equitable right on crystallization. In the language of s. 71(1), the holder is a person “… interested in [an] unregistered … [equity] in registered land…”. Accordingly, rights of first refusal over land can be protected by registration under s. 71(1).

Read the decision at: Benzie v. Hania.

Court of Appeal sends family farm dispute back for a second trial

noreply@blogger.com (John Goudy, Lawyer) — Thu, 10 Jan 2013 14:03:00 +0000

An "unfortunate dispute" between a brother and a sister over the family farm of their late parents has been sent back for a second trial. The Ontario Court of Appeal found that the first trial judge "applied incorrect legal principles to the evidence and made numerous unreasonable findings of fact." These "cumulative errors" rose "to the level of a substantial wrong". A new trial was ordered because the transcript from the first trial did not allow the Court of Appeal to decide the factual issues for itself.

The farm had been in the family since 1830, and the son had worked on the farm as a full-time occupation for 24 years. The son contended that he had an oral agreement with his parents that if he stayed on the farm and farmed with them, and if farming was his main occupation, he would receive the farm land and the farm assets when his parents stopped farming. The sister, the only sibling, worked off the farm and was not involved in running the farm operation.

The mother and the father had identical wills: if one died, everything went to the survivor; when the survivor died, everything was shared equally between the son and the daughter. After both parents died, the son commenced an action seeking a declaration that he was benefically entitled to the farm property and the farm business. The sister contested the claim and filed a counterclaim asking for an accounting by the brother for his use of the farm property and the business since the father's death in 2001. The son's claim was commenced in 2004.

The trial judge found that the son had not proven the alleged contract with his parents and dismissed his claim. On the counterclaim, the trial judge ordered both son and daughter to account for their management of the estate property and assets since the father's death. The trial judge awarded costs to the daughter on a substantial indemnity basis fixed at $275,000 inclusive, payable by the son and not by the estate of the parents.

The Court of Appeal allowed the appeal of the dismissal of the son's claim and also reversed the costs award. The reasons for decision of the appellate court address the following three errors in the trial judge's consideration of the son's claim for part performance of an oral contract (i.e. for the transfer of the farm and farm business):

(i) he erred in concluding that because there were no signed documents, there was no oral agreement;

(ii) he erred in his application of the doctrine of part performance; and

(iii) he made various findings of fact that disclose palpable and overriding error.

The son was awarded $40,000 as costs of the appeal.

Read the decision at: Mountain v. TD Canada Trust Company.

Depth of Cover Monitoring Requirements Absurd? So says the Ontario Divisional Court

noreply@blogger.com (John Goudy, Lawyer) — Thu, 03 Jan 2013 14:08:00 +0000

Enbridge Gas Distribution Inc. has won an appeal from the dismissal of its small claims court action against a contractor over damage caused to a gas main in Holland Landing, Ontario. Enbridge claimed that the contractor damaged the pipe when using a mechanical digging device to uncover a leaking septic tank. Enbridge had asserted at trial that the entire incident could have been avoided if the contractor had called for a locate; the contractor was negligent. On appeal, the Divisional Court agreed and awarded damages to Enbridge.

At trial and in the appeal, the issue of depth of cover over the pipe came into play. The trial judge had found that the pipe was not buried at the minimum required depth (2 feet) and that Enbridge should have ensured proper depth. However, the Divisional Court noted that there is no requirement in the applicable legislation or regulations (or the TSSA Guideline or the CSA Standard) that a gas main must remain installed at the minimum depth.

The Court reasoned:

There is no requirement that Enbridge must continually measure the depths of all of its buried pipelines. Such a finding would lead to the absurd result that utility companies would be required to constantly recheck their lines in the ground. It is a well-established principle of statutory interpretation that the Legislature does not intend to produce absurd consequences. If the Legislature intended this result, the Act, the Regulation, the TSSA Guideline or CSA Standard would have stated that utility companies must ensure that the pipes “remain” buried at a minimum depth.

Unlike the case of Sun-Canadian Pipeline v. Lockwood, where the Court found that the company had actual knowledge that the pipeline had insufficient cover on the property, there is no evidence that Enbridge had knowledge that its Gas Main was at less than the required depth at the property until after the incident occurred.

Although these comments must be read in light of the facts of this particular case, it will no doubt be of concern to pipeline landowners to find an appellate court in Canada suggesting that pipeline companies have no obligation to monitor the depth of cover over their pipelines. In fact, the Divisional Court suggested that such a requirement would be absurd.

Read the decision at: Enbridge Gas Distribution Inc. v. Froese.

Have a healthy and productive 2013!

noreply@blogger.com (John Goudy, Lawyer) — Wed, 02 Jan 2013 15:33:00 +0000

To my readers: please accept my belated wishes of a Merry Christmas and have a very Happy New Year!

Pipeline Landowner Forum available at Pipeline Observer

noreply@blogger.com (John Goudy, Lawyer) — Wed, 19 Dec 2012 18:38:00 +0000

An online forum for pipeline landowners has been set up at PipelineObserver.ca, along with blogs and news updates. The website "tracks pipeline news, industry, events and facilitates pipeline discussion". The forum can be accessed at: Pipeline Forum.

When can a stream create a natural severance of a property?

noreply@blogger.com (John Goudy, Lawyer) — Wed, 19 Dec 2012 14:28:00 +0000

A case is before the Ontario Superior Court in London to determine whether a local watercourse effectively severs a property into two parts. An application has been commenced by the Municipality of Middlesex Centre for a declaration that a stream (the Bear Creek Drain) is not a navigable waterway such that a particular property through which it flows would be severed in two. The predecessors in title of the affected landowners had previously applied to sever their property, but the application was denied. The current landowners then obtained an opinion that the stream created a "natural severance"; a surveyor agreed and registered a reference plan showing the lands north and south of the stream as two separate parts and denoting the stream itself as "Unpatented Crown Land".

This was done without the knowledge of the municipality; the circumstances were discovered when the landowners made an application for a building permit that would have constituted a second dwelling on the same 10-acre parcel; this would not have been permitted without a rezoning unless there was a "natural severance".

Justice Heeney has ruled that it will not be necessary for the municipality to serve its application on other landowners along the Bear Creek Drain as the issue to be determined at trial will relate solely to the specific property in question: "was the stream a naviagble waterway at the time of the original Crown grant to the current owners' predecessors in title in 1831? If the answer is yes, then the stream bed is deemed to have been excluded from the original grant, and title to it remains vested in the Crown, irrespective of the current status of the waterway. If the answer is no, the stream bed was included in the deed to the parcel over which it flowed, and title to it vested in the private landowner who obtained the deed from the Crown, and in his successors in title, up to and including" the current landowners.

As the onus of proof will be on the landowners, Justice Heeney also ruled that they will present their case first at trial, to be followed by the municipality and then the Province of Ontario.

Read the decision at: Middlesex Centre v. MacMillan et al.

OPA to begin accepting Small FIT applications on December 14, 2012

noreply@blogger.com (John Goudy, Lawyer) — Thu, 13 Dec 2012 14:37:00 +0000

From the OPA:

This is to advise you that the Ontario Power Authority (OPA) will begin accepting Small FIT applications on December 14, 2012, for renewable energy projects with a proposed capacity of 10 to 500 kilowatts. The OPA will award up to 200 megawatts worth of contracts as a result of applications received during this upcoming Small FIT application window.

Please note that the FIT Rules, FIT Contract and other program documents are being revised as a result of the November 23, 2012, and December 11, 2012, directives. Before submitting your application, please carefully review the latest versions of the program documents (version 2.1) to ensure you understand how the FIT Program has changed. The program documents will be available on the FIT website on December 14, 2012.

Applications are welcome from both new and pre-existing applicants. Pre-existing FIT applicants with Small FIT projects (formerly CAE applicants) who wish to be considered under the updated FIT Program can maintain their original time stamp if they submit an eligible revised application. More information will be available at fit.powerauthority.on.ca on December 14, 2012. The OPA will also be hosting a web-enabled teleconference on Tuesday, December 18, 2012, to review the revised FIT Program and answer questions from interested stakeholders. Details on how to participate will be posted on the FIT website.

BC Court of Appeal allows landowner appeal in breach of easement agreement case

noreply@blogger.com (John Goudy, Lawyer) — Wed, 12 Dec 2012 15:04:00 +0000

I last wrote about this case in 2010: Utzig #2 decision. As I explained in that post, the litigation concerns whether a pipeline owned and operated by the plaintiff Terasen Gas Inc. (“Terasen”) that runs through a portion of Burns Bog in Delta, B.C. was damaged or put at risk by landfill operations on lands owned by the defendant Utzig Holdings (B.C.) Ltd. (“Utzig”). The landfill operations were conducted, with Utzig’s permission, by the other defendants Alpha Manufacturing Inc., Burns Developments Ltd. and Burns Developments (1993) Ltd. (“Alpha” and “Burns”).

The BC Court of Appeal has now released a decision limiting the scope of the breach of covenants finding made by the lower court and dismissing in its entirely the claim in nuisance against the landowner.

The covenants by the "owner" to the "utility" read as follows: "Not to do or knowingly permit to be done any act or thing which might, in the opinion of [the utility], interfere with or injure the works or any part thereof" (1961 ROW agreements) and "Not to do or knowingly permit to be done any act or thing which might, in the reasonable opinion of [the utility], in any way whatsoever interfere with or injure or endanger the works or any part thereof or impair the operating efficiency thereof or create or increase any hazard to persons." (1981 instrument)

For the landowner Utzig, the issue was whether it had, at all material times or some material times, permitted other parties to endanger the pipeline. A key date was October 10, 1993, when Utzig entered into an Agreement for Sale of the property, which was never registered on title to the property. The purchase price of $4 million was to be paid in instalments by October 18, 1995. Terasen went to Court to seek injunctive relief prior to October, 1995, and the sale was never completed because the purchaser failed to pay the entire purchase privce when due. For this reason, Utzig remained the registered owner of the property at all material times.

Madam Justice Newbury ruled (on behalf of 2 of the 3 judges on the panel) that the breach of the covenant not to permit only lasted up to the October 10, 1993 date:

In the result, I agree with the trial judge that up to October 10, 1993, Utzig retained sufficient authority over the subject property that it should be regarded as having “permitted” Alpha to do acts that might have interfered with or injured the pipeline. This constituted a breach of covenant. If in fact the works were so affected in this period, damages may be found to be payable in the second stage of this litigation. In respect of the post-AFS period, however, I would allow Utzig’s appeal on the ground that having sold the property under the AFS, it was no longer in a position to “permit”, or withhold permission for, Alpha’s activities. This result, in my view, accords with the reality that once land has been sold, it is for the new owner to be responsible for new breaches of the terms of instruments (such as rights of way or restrictive covenants) that are registered against the land. If it were otherwise, vendors would be obliged to obtain covenants from their purchasers repeating the covenants in such instruments, and one of the primary advantages of the Torrens registration system would be lost.

The last issue decided on the appeal related to Terasen's claim for nuisance - that Utzig was responsible for the landfill activities conducted on its land with its consent and that such activities substantially interfered with Terasen's use of its rights of way. This claim related to the pre-October 10, 1993 period. Utzig submitted that the threshold of “unreasonable interference” was not met in this case, given the lack of evidence of any “significant movement” of the pipeline until late 1994 and the fact the pipe was never “injured” physically. The Court of Appeal ruled that, in the absence of clear evidence of substantial interference, the trial judge's finding of nuisance could not stand.

Read the decision at: Terasen Gas Inc. v. Utzig Holdings.

Court rules that oil and gas production lease does not grant gas storage rights

noreply@blogger.com (John Goudy, Lawyer) — Mon, 10 Dec 2012 17:01:00 +0000

This is another decision in the ongoing McKinley Farms and Tribute Resources battle over gas storage rights on 200 acres of land in Huron County. Tribute, through its predecessor(s), had obtained an oil and gas lease and a gas storage lease for the land in question. The Court of Appeal has earlier ruled that the 1998 gas storage lease is no longer valid, but the Court upheld the oil and gas lease.

Tribute now argues that it has gas storage rights under the oil and gas lease. However, in the meantime, McKinley Farms has granted a gas storage lease to a different numbered company and now seeks an order from the Court that this lease is the only lease of the McKinley Farms lands that validly grants storage rights. Justice Rady of the Superior Court of Justice in London has granted this order.

Justice Rady agreed with Tribute that its oil and gas lease contained language that could be interpreted to convey rights to storage; but she also concluded that the storage lease agreement (which was found by the Court of Appeal to be invalid or expired) was intended by the parties to replace those rights.

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

Ontario releases new Drainage Act and Conservation Authorities Protocol

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

In 2008, the inter-agency Drainage Act & Section 28 Regulations Team (DART) was established by the Ministry of Natural Resources (MNR) and the Ministry of Agriculture, Food and Rural Affairs (OMAFRA) to explore the options and propose solutions to the legal liability issues for municipalities and conservation authorities arising from provisions in the Drainage Act and the Conservation Authorities Act. DART includes representatives from MNR, OMAFRA, Conservation Ontario, conservation authorities, the Drainage Superintendents Association of Ontario, the Ontario Society of Professional Engineers Land Drainage Committee, Ontario Federation of Agriculture, Ontario Farm Environmental Coalition, and the Rural Ontario Municipal Association. The Team’s goal was to develop a means for municipalities and conservation authorities to fulfill their responsibilities under the Drainage Act and Conservation Authorities Act respectively without compromising the intent of either statute. The Team developed a draft Drainage Act and Conservation Authorities Act Protocol. Included in the Protocol is a joint Drain Maintenance or Repair Notification Form which may be used to apply for permissions from conservation authorities, MNR, and Fisheries and Oceans Canada. After public consultation, the Protocol and Notification Form were approved by the Ministers of Natural Resources and Agriculture, Food and Rural Affairs and are now Provincial policy. These documents are intended for internal use by municipal and conservation authority staff.

Read the Protocol at: DART Protocol.

2012-2013 Farm Advisors Guide Now Available

noreply@blogger.com (John Goudy, Lawyer) — Fri, 07 Dec 2012 14:18:00 +0000

Cultivating Business, the official publication of the Canadian Association of Farm Advisors (CAFA) is now available at: Cultivating Business 2013. The publication includes a detailed listing of farm advisors across Canada.

ERT dismisses Chatham Kent wind turbine appeal

noreply@blogger.com (John Goudy, Lawyer) — Fri, 07 Dec 2012 12:00:00 +0000

The Environmental Review Tribunal (ERT) has dismissed an appeal by the Chatham Kent Wind Action Inc. of a Renewable Energy Approval (REA) of a 270 MW wind farm near Tilbury and Ridgetown, in the Municipality of Chatham-Kent, Ontario.

Key findings were made by the ERT at paragraphs 63 and 64 in its decision:

[63] The Tribunal has the duty to apply the statutory test. The onus is on those challenging the REA to establish how engaging in the renewable energy project in accordance with the renewable energy approval will cause serious harm to human health. Although Mr. Erhard raises concerns with respect to the accuracy of noise prediction, evidence is needed to establish that the alleged inaccuracies with noise predictions will cause serious harm to human health. No evidence and no submissions were made to connect the alleged inaccuracies with respect to the noise predictions with harm to human health or the environment.

[64] In conclusion, the Tribunal finds that the Appellant, the participant and the presenter have not shown that engaging in the Project in accordance with the REA will cause serious harm to human health as required by s. 145.2.1(2)(a) of the ERT. The Tribunal, therefore, dismisses the appeal.

Read the decision at: Chatham Kent Wind Action Inc. v. MOE.

Farm Property Class for legal owners, not beneficial owners

noreply@blogger.com (John Goudy, Lawyer) — Thu, 06 Dec 2012 14:01:00 +0000

The Ontario Divisional Court heard a "stated case" from the Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal") concerning the appeal of property tax assessments of various properties. The applicants had appealed on the basis that they should have been assessed in the farm property class under Section 8(2) of Regulation 282/98. The questions on the stated case to the Divisional Court boiled down to whether lands that are beneficially, but not legally, owned by Canadians, qualify for farm property class. In general, a property is legally owned by the named registered owners of the property; other individuals or entities may hold unregistered equitable ownership interests in the property. The Divisional Court concluded that the favourable tax treatment applies only to lands legally owned by Canadians.

The properties at issue in this case were purchased for commercial investment purposes by Walton International Group Inc. They are currently being used for farming, but the long-term plan is to develop them for non-farming purposes.

Read the decision at: Walton International v. Farm Property Class Tax Rate Program.

Court of Appeal rules "restoration" of farm land required aggregates licence

noreply@blogger.com (John Goudy, Lawyer) — Wed, 05 Dec 2012 15:23:00 +0000

An excavating company was charged under the Aggregates Resources Act for operating a pit without a licence. The company was carrying out a contract with a farmer, removing topsoil, levelling sand knolls, selling the sand, and then restoring the topsoil to restore it for farming. Neither the company nor the farmer had obtained a licence to operate a pit or quarry under the Act.

At trial, the Justice of the Peace acquitted the company on the basis that the land, which was not a pit, was being rehabilitated for farming. The Crown appealed that decision to the Ontario Court of Justice, which found that it was not the purpose of the Act to regulate the type of activity where "a farmer was simply trying to improve his farmland to grow better crops".

The Court of Appeal disagreed:

It is clear that what the respondent was doing was excavating a pit within the grammatical and ordinary sense of the definition in the ARA. The respondent argues that the ARAshould not be interpreted to include pits that are being excavated and that will be rehabilitated in order to improve farmland and not for the purpose of commercial aggregate production. The problem with that interpretation is thats. 1(3) provides a specific ministerial exemption where the primary purpose of the excavation is not for the production of aggregate. There would be no need for such an exemption if the licencing requirement did not apply, prima facie, to the particular excavation. Moreover, the intention to rehabilitate the excavation in the future does not take the operation out of the definition of a “pit”. That definition covers land “that has not been rehabilitated” and s. 48 requires all licencees and permittees to rehabilitate the site in accordance with the Act and regulations.

The Court of Appeal set aside the acquittal and, based on an agreed statement of facts in the case, entered a conviction and sent the case back to the Justice of the Peace for sentencing.

Read the decision at: R. v. Ontario Corp. 311578 (Dedrick Bros. Excavating Ltd.).

Enbridge Line 6B Citizens' Blog

noreply@blogger.com (John Goudy, Lawyer) — Mon, 03 Dec 2012 17:37:00 +0000

Click here to visit a blog by "concerned landowners affected by the Enbridge 'replacement' project": Line6B Citizens' Blog. Recall that Enbridge's plan for its Line 6B pipeline in Michigan (related to the Kalamazoo River spill) is to abandon about 75 miles of pipe in place and to construct new pipe in a new easement next to it. The new easement will be obtained by expropriation where agreement is not reached with the landowner.