Law of the Lands - Farm, Energy and Enviro Law

"Enbridge not telling entire story about pipeline, hearing told": Toronto Star

noreply@blogger.com (John Goudy, Lawyer) — Fri, 25 May 2012 13:26:00 +0000

John Spears of the Toronto Star published an article about the Line 9 Reversal Hearing before the National Energy Board in London that concluded yesterday. Spears refers to the submissions made on behalf of environmental groups and the Ontario Pipeline Landowners Association (OPLA), which represents landowners along the length of the Enbridge crude oil pipeline corridor in Ontario.

Read the article at: Line 9 Reversal Hearing.

Landowner loses bid to shift drainage costs to Highway 401

noreply@blogger.com (John Goudy, Lawyer) — Thu, 17 May 2012 13:00:00 +0000

An Oxford County farmer asked the Agriculture, Food and Rural Affairs Appeal Tribunal to increase the assessment of drainage costs to the Ontario Ministry of Transportation related to a widening of Highway 401. An engineer's report had been prepared for various improvements to the Laister Drain required in connection with the widening of the 401 from four lanes to six lanes in the area. The work would include construction of a section of tile drain from the southern limit of Highway 401, northward under the highway and then approximately 450 metres through agricultural land to an outlet in an open channel on the side of Blandford Road.

Dunford Royal Cattle Company Inc. asked the Tribunal to amend the assessment against its lands and to allocate a higher assessment against the MTO drainage area (i.e. the highway). On the issue of the amount of assessments allocated to the various property owners, the drainage engineer stated that he had used the Todgham Method to distribute the cost of the work. This method involves breaking the drain up into sections and assigning the cost of each section as benefit and outlet assessments to the lands using each section of the drain.

The Tribunal found that Dunford did not provide any evidence to contradict the findings or the testimony of the Engineer nor was any evidence put forward to show that the MTO watershed area had been inappropriately assessed. It ruled that Dunford failed to provide the Tribunal with sufficient evidence that would support any amendment to the Schedule of Assessments for the project and, therefore, the appeal was dismissed.

Read the decision at: Laister Drain.

NEB: Independence of the Regulator - The Canadian Story

noreply@blogger.com (John Goudy, Lawyer) — Wed, 16 May 2012 14:29:00 +0000

In a speech to the World Forum on Energy Regulation, Gaetan Caron, Chair and CEO of the National Energy Board (NEB) had this to about the independence of the NEB from industry:

The easiest topic to cover in my presentation is that of independence from the industry we regulate. The Board and its staff must not only be free from bias, but also the perception of bias. This aspect of independence is governed by an explicit array of conflict of interest requirements, the Codes of Conduct for NEB employees, and specific prohibitions for Board members and staff to invest in or hold shares of energy companies. We also have clear guidelines on meetings with external parties, requirements to prepare and make available meeting minutes, a requirement that decisions are based on materials on the public record, and other methods of preserving independence.

Another important way to promote independence and guard against perception of industry bias is

the recruitment process for Board members. [...]

Choosing people with the right background, experience, and attitudes in relation to the public interest and natural justice is one effective tool in creating and maintaining an independent regulatory tribunal.

The same can be said about the recruitment of staff.

Mr. Caron's speech did not appear to address the historical flow of Board and staff members back and forth between the NEB and industry.

See the full presentation with speaking notes at: May 14, 2012.

Soybean quality dispute goes to Ontario Court of Appeal

noreply@blogger.com (John Goudy, Lawyer) — Fri, 11 May 2012 14:48:00 +0000

The Court of Appeal for Ontario recently released a decision in a case involving a Chatham area farm operation and Thompsons Limited related to quality grading of soybeans. For more than two decades, the farm operation, "Triple P", had purchased crop inputs from Thompsons and Thompsons had contracted with Triple P to buy grain. Thompsons had also hired Triple P to provide custom spraying to some of its other customers.

In 2007, the relationship took a turn for the worse when Thompsons concluded that one batch of seed beans from Triple P did not meet quality standards necessary for a seed premium of $1.35 per bushel. Then Thompsons advised Triple P that it would not be awarding its 2007 spraying contract to Triple P, even though Triple P was of the view that an oral contract was already in place. Triple P then threatened that it would not deliver other futures contracts for 2007 and 2008 grain.

Thompsons sued Triple P and Triple counterclaimed. The trial judge concluded that: (1) Thompsons had established its claims in respect of the Futures Contracts; (2) Thompsons was not obliged to pay the claimed seed premiums under the Soybean Contracts because the Renwick soybeans “fell below grade” and Triple P had sold the Respond soybeans to a third party; and (3) no binding 2007 Spraying Contract had been entered into by the parties. The trial judge awarded Thompsons damages in the amount of $108,046.39, inclusive of prejudgment interest, on account of Triple P’s breaches of the Futures Contracts, together with costs in the sum of $60,000. She dismissed Triple P’s counterclaim.

The Court of Appeal dismissed Triple P's appeal of this decision. Read the decision at: Thompsons Limited v. 617987 Ontario Inc.

$16,000 Fine for Keeping Cattle and Manure in Hay Storage Structure

noreply@blogger.com (John Goudy, Lawyer) — Tue, 08 May 2012 18:37:00 +0000

Ontario Ministry of the Environment Press Release:

Thames Sales Yard Ltd And Thomas Vanrabaeys Fined $16,000 For Manure Management Violations

LONDON - On November 17, 2011, Thames Sales Yard Ltd. was convicted of two violations under the Nutrient Management Act for keeping cattle and manure in a structure constructed for hay storage and failing to comply with a Provincial Officer’s Order.

The Court heard that the company raises and sells beef cattle at a facility located in Thamesville. Mr. Vanrabaeys is the controlling authority of the company. In 2009, the company was issued a building permit by the Municipality of Chatham-Kent for hay storage. A public complaint of cattle being housed in the new structure initiated an inspection of the company’s facilities by the ministry. A Provincial Officer’s Order was issued by the ministry to the company and Mr. Vanrabaeys regarding run-off management at two locations and the disposition of a well at a third location. The order was issued to ensure that qualified persons address the issues of run-off management from manure and food storage facilities and the repair of a well to protect the environment and the quality of the surface and ground water. The company failed to comply by the required dates, and the required reports were not submitted to the ministry.

The company and Mr. Vanrabaeys were charged following an investigation by the ministry’s Investigations and Enforcement Branch. The company was fined a total of $16,000 plus victim fine surcharges. It was given 45 days to pay the fines.

Is clearing of trees a normal farm practice?

noreply@blogger.com (John Goudy, Lawyer) — Fri, 27 Apr 2012 13:00:00 +0000

The Supreme Court of British Columbia is going to be dealing with the question of whether a farmer can be restrained from clearing trees on his property in spite of normal farm practices legislation. A B.C. farmer purchased a Nanaimo property in 2006. In December, 2005, the Regional District of Nanaimo had registered against title to the property a restrictive covenant that prohibits the removal of any vegetation from a 30 metre wide strip along the boundary of the property with an adjacent road. After the farmer began to clear trees, Nanaimo sued under the restrictive covenant, and also applied for a pre-trial injunction to prohibit any further clearing.

The Supreme Court granted the injunction as requested. In the course of deciding the injunction application, the Court examined the defences put forward in the action by the farmer. The main defence appears to be that the farmer has not breached the covenant since it is invalid by reason of non-compliance with the Agricultural Land Commission Act, s. 22(2) and the Farm Practices Protection (Right to Farm) Act, s. 2(1). The farmer claims that his clearing activities were farm operations.

We will have to wait and see what the Supreme Court makes of this argument and what implications its decision may have on similar situations in the future.

Read the decision at: Regional District of Nanaimo v. Buck.

OMAFRA proposing amendments to Drainage Act Referee Rules of Practice

noreply@blogger.com (John Goudy, Lawyer) — Wed, 25 Apr 2012 13:30:00 +0000

From the Environmental Bill of Rights Registry:

The Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) is proposing amendments to R.R.O. 1990, Regulation 275 “Rules of Practice and Procedure to be Followed in All Proceedings Before the Referee” under the Drainage Act. The current version of Regulation 275 dates from 1990 and the proposed amendments intend to update, clarify and generally improve the regulation.

The Drainage Act provides three bodies to which a landowner may appeal when a drainage works is being proposed or improved. The appeal bodies are the Court of Revision, the Agriculture, Food and Rural Affairs Appeal Tribunal, and the Drainage Referee.

The Drainage Referee hears appeals on the legal aspects of drainage work as well as appeals from a decision of the Tribunal. The legal procedures before the Referee are formal. Regulation 275 sets out the procedural rules that must be followed in a matter held before the Drainage Referee. Proposed amendments include:

• Rewording to provide clarification and avoid ambiguity
• Removal of superfluous text and unnecessary and obsolete sections
• Updated terminology and timeframes to reflect present uses in proceedings
• Additional subsection requiring parties to attend a pre-trial conference where parties may resolve the issue before it goes to trial

This proposal has been posted for a 45 day public review and comment period starting March 29, 2012. Comments or questions can be submitted by May 13, 2012 to:

Sid VanderVeen
Coordinator
Ministry of Agriculture, Food and Rural Affairs
Food Safety and Environment Division
1 Stone Road West
Floor 5 NW
Guelph Ontario
N1G 4Y2
Phone: (519) 826-3552
Fax: (519) 826-3259

Comments can be submitted on-line at: Comments.

All comments received prior to May 13, 2012 will be considered as part of the decision-making process by the Ministry of Agriculture, Food and Rural Affairs if they are submitted in writing or electronically using the form provided in the notice and reference EBR Registry number 011-5985.

MOE moving more industries into Environmental Activity and Sector Registry

noreply@blogger.com (John Goudy, Lawyer) — Tue, 24 Apr 2012 13:29:00 +0000

From the Environmental Bill of Rights Registry:

The Ministry of the Environment has recently implemented an Environmental Activity and Sector Registry (EASR) that allows businesses to register certain activities with the Ministry (rather than seeking an Environmental Compliance Approval, formerly known as a Certificate of Approval). 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. 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 our compliance strategy, as it does for all its approvals today.

To date, activities relating to the following have been added to the registry: automotive refinishing (autobody shop spray booths), comfort heating systems and stand-by power systems. Registry requirements for these activities/sectors are described in Ontario Regulation 245/11 under the Environmental Protection Act.

As part of the Ministry’s ongoing work to implement a new environmental approvals program, additional activities and sectors are being evaluated for their potential inclusion on the EASR. This work involves comprehensive technical analysis and two periods of public consultation to ensure registry activities are developed in a transparent and science-based manner and that the resulting registry rules are protective of the environment.

To encourage localized generation from smaller, cleaner sources of electricity and community-based renewable energy facilities, the Ministry is proposing to allow specific small scale renewable energy projects to register on the EASR. The proposed EASR eligibility criteria for small scale renewable energy facilities are designed to eliminate potential impacts to the environment through facility design and siting restrictions.

Process for Developing Registry Regulations

When developing a regulation to include a new activity/sector on the EASR, the Ministry undertakes a comprehensive technical analysis and consultation process. This process contains the following steps:

Detailed scoping and technical assessment of activity/sector
- Engineering analysis
- Risk evaluation and modelling
- Jurisdictional review
- Evaluation of local concerns/complaints and past administrative non-compliance with requirement to obtain an approval
Development of draft registry requirements
Public consultation on a technical report describing draft requirements (the reports included in this posting)
Development of a draft regulation
Public consultation on a draft regulation
Finalizing of regulation and implementation

It is important to note that, while Steps 3 and 5 specifically provide for broad public input through comment on postings on the Environmental and Regulatory Registries, the Ministry is also engaging at various levels with relevant interested groups (industry, associations, Aboriginal organizations/communities and technical specialists).

The following technical reports summarize the proposed rationale for moving specific activities and sectors from the Renewable Energy Approvals (REA) process to the registration process.

This proposal has been posted for a 45 day public review and comment period starting April 02, 2012. Comments or questions can be submitted by May 17, 2012 to:

Chris Goode
Senior 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

Comments can be submitted on-line at: Comments.

All comments received prior to May 17, 2012 will be considered as part of the decision-making process by the Ministry of the Environment if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 011-5695.

Federal Cabinet will have power to approve projects denied by NEB

noreply@blogger.com (John Goudy, Lawyer) — Fri, 20 Apr 2012 01:04:00 +0000

Read the CBC News article at: "Cabinet to get final say on pipeline projects": Little-noticed change to send all National Energy Board decisions to federal cabinet for review.

Farmer recovers damages from trucker for fertilizer contamination of canola

noreply@blogger.com (John Goudy, Lawyer) — Wed, 18 Apr 2012 12:07:00 +0000

The Provincial Court of Saskatchewan has ruled in favour of a farmer who claimed damages against a trucking firm after a load of his canola was discounted by a feed processor due to fertilizer contamination. There were five loads of canola being trucked to Cargill. The fourth load was rejected because it was contaminated with fertilizer. The canola then had to be sold to the feed processor at a discount.

The issue in the case was this: was there proof on a balance of probabilities that the trucking company contaminated the fourth load of canola taken from the Plaintiff's farm? The Court found that there was proof. The Court rejected a claim that the contamination came from a fertilizer bin on the Plaintiff's farm. The farmer was granted judgment in the amount of $5,936.68.

Read the decision at: Zuchkan v Biggar Transport (2006) Ltd.

OPA FIT Program Webinar - April 17, 2012

noreply@blogger.com (John Goudy, Lawyer) — Fri, 13 Apr 2012 21:20:00 +0000

Here is the notice from the OPA:

You are invited to participate in a webinar to learn more about the revised FIT Program. This session will focus solely on the revised FIT Program materials posted on the FIT website and will describe how you can provide feedback on the draft FIT rules, contract and standard definitions.

Below are the details about the session and how you can participate. For this session we will be taking web questions only. By logging onto the weblink, you will be able to view and listen to the presentation and submit your questions.

Date: April 17, 2012

Time: 1:00 – 2:00 p.m. (ET)
Web URL: http://www.snwebcastcenter.com/event/?event_id=2739
Toll Free Number: 1-866-212-4491

An archive will be posted to the FIT website shortly after the session.

We look forward to your participation in the session.

Ontario Power Authority

OPA MicroFIT Webinar - April 13, 2012

noreply@blogger.com (John Goudy, Lawyer) — Thu, 12 Apr 2012 16:52:00 +0000

Here is the notice from the Ontario Power Authority:

You are invited to participate in a webinar to learn more about the revised microFIT Program. This session will focus solely on the revised microFIT Program materials posted on the microFIT website and will describe how you can provide feedback on the draft microFIT rules, contract and eligible participant schedule.

Date: April 13, 2012

Time: 10:00 – 11:00 a.m. (ET)
Web URL: http://www.snwebcastcenter.com/event/?event_id=2732
Toll Free Number: 1-866-212-4491

An archive will be posted to the microFIT website shortly after the session.

We look forward to your participation in the session.

Ontario Power Authority

NEB Landowner "Satisfaction" Research

noreply@blogger.com (John Goudy, Lawyer) — Thu, 05 Apr 2012 13:14:00 +0000

The National Energy Board (NEB) has released a report of its 2011 Landowner Survey, conducted by Ipsos Reid. 1,200 landowners were surveyed, out of 32,114 identified by records provided by NEB-regulated companies. In the Key Findings section of the report, Ipsos Reid begins with the following peculiar result: "We find that 71% of landowners mention a company other than the one indicated in the sample records we received, suggesting that many landowners may not know who the correct company is." For instance, 35% of Kinder Morgan landowners mentioned TransCanada as their company.

4% of respondents said they did not know where the pipeline was located on their property. 22% of respondents do not know whether the limit of their right of way is.

It does not appear that any questions were asked about pipeline abandonment issues.

Read the report at: NEB Landowner Satisfaction Research October 2011.

NB Court tells landowners to allow access to power line right-of-way

noreply@blogger.com (John Goudy, Lawyer) — Tue, 27 Mar 2012 02:19:00 +0000

NB Power and Bell Aliant brought an application before the New Brunswick Court of Queen's Bench asking the Court to interpret a Right of Way Agreement after a family in Fredricton denied access to their property for utility work. Beginning in May 2011, various employees of the two utility companies attempted to access a right of way on the property. The utilities said they have a right to enter the property, and to remove trees and brush within a distance of five feet of their lines. They said they have these rights under the Agreement and under s.84 of the Electricity Act.

In response to the application, the Fredricton family suggested that a trial was necessary to determine the issues, saying that there were "materials issues in dispute". However, the Court disagreed. It found that the language of the Right of Way Agreement is unambiguous and grants the rights of access being denied by the property owner and her son. Also, the Court found that the rights in the Electricity Act are even broader.

The Court concluded that it could decide the case as an application and ruled in favour of the utilities. It granted an injunction restraining the respondents from preventing access to their property.

Read the decision at: NB Power et al. v. Kinsella.

Ontario Government releases results of FIT Program Review

noreply@blogger.com (John Goudy, Lawyer) — Thu, 22 Mar 2012 14:35:00 +0000

Here are some of the highlights from the review of the Feed-in-Tariff (FIT) Program published by the Ontario Government today:

Beginning this year, FIT prices should be conducted annually to reflect current costs - new prices would be set and published each November and will take effect on January 1st the following year;

The MOE's self-screening registry system, the Environmental Activity and Sector Registry (EASR), should be expanded to include small-scale solar (less than 500 kW) and bio-energy projects;

The commercial operation milestone for rooftop solar PV should be shortened from three years to 18 months in order to encourage timely project completion;

Set aside a minimum of 10 percent of remaining FIT contract capacity for local community and Aboriginal projects with greater than 50 per cent equity participation;

Enhance protection of agricultural lands by prohibiting solar ground-mount projects (over 10 kW) on prime agricultural land that contain class 1, 2 and 3 soils. Expand protection to include organic and mixed soils and remove zoning exemptions;

Prohibit solar ground-mount projects (of any size) in residential areas and lands bordering residential areas. Permit projects in commercial or industrial areas only when producing renewable energy is a secondary use;

For large FIT projects, require contract launch meetings with municipalities, proponents, project developers, government representatives, utilities and agencies to facilitate early discussion, share information and define expectations;

FIT program prices for wind and solar technologies should be reduced by more than 20 per cent for solar, depending on size, and approximately 15 per cent for wind. Maintain current prices for water, biogas, biomass and landfill gas;

Rather than setting a price at the time of project application for small and large FIT projects, price should be set when the contract is offered;

Implement a limit of one microFIT contract per individual/farmer;

Following commercial operation, a portion of the FIT price should escalate with inflation over time (as measured by the Consumer Price Index (CPI)) to reflect ongoing operations and maintenance costs.

Here is the new proposed FIT price grid:

Read the full review at: FIT Two Year Review.

Strange case: Province sells land by accident and needs it back

noreply@blogger.com (John Goudy, Lawyer) — Wed, 21 Mar 2012 13:22:00 +0000

A decision on costs from the B.C. Supreme Court reveals a strange situation in which the B.C. Finance Transportation Financing Authority sold land to a private landowner and then realized afterward that it needed the land. The Authority sold a portion of a closed road to Robert and Sherry Long, who owned the property adjacent to the road. There were hydro poles with hydro and telephone lines on the closed road lands.

Due to an oversight by the Authority, a right of way was not reserved on title to the closed road for the poles and the lines. The Longs acquired clear title to the land. Once it had discovered the mistake, the Authority asked the Court to rescind the sale agreement so that it could preserve a right of way for the poles and lines. When the intention of the Authority became clear, the Longs decided that they were no longer interested in keeping the property and wished to be compensated for their costs. The Court made the recission order and awarded costs to the Longs.

Read the decision at: BC Finance Transportation Financing Authority v. Long.

Proposed Drainage Act and Conservation Authorities Act Protocol

noreply@blogger.com (John Goudy, Lawyer) — Sat, 17 Mar 2012 11:00:00 +0000

From the Environmental Bill of Rights Registry:

In recent years, challenges have arisen in implementing the requirements of the Drainage Act and those of the Conservation Authorities Act. Under the Drainage Act, municipalities are required to maintain and repair municipal drains, while under the Conservation Authorities Act, conservation authorities are required to regulate interference with or alterations to watercourses, including municipal drains where applicable.

The proposed protocol (the Drainage Act and Conservation Authorities Act Protocol) was developed by an inter-agency team co-chaired by the Ministry of Natural Resources and the Ministry of Agriculture, Food and Rural Affairs, with representation from the drainage sector, agricultural sector, municipalities and conservation authorities. It is intended to improve communications, promote best practices, reduce administrative burden and streamline the permitting process under the Conservation Authorities Act related to the maintenance and repair of municipal drains. The proposed protocol does not apply to new drain construction or improvements to existing drains.

The proposed protocol contains:

a) best practices to facilitate good working relationships between conservation authorities, drainage superintendents and municipalities;
b) sets of standardized requirements for undertaking drain maintenance and repair in compliance with regulations under the Conservation Authorities Act (Standard Compliance Requirements).

Under the proposed protocol, municipalities and conservation authorities may use Standard Compliance Requirements to request or issue permission for drain maintenance or repair in place of the regular conservation authority permit application and issuance process. Conservation authorities could still require a regular permit for some activities if they determine that the activity will not be able to meet Standard Compliance Requirements, or if the standard requirements are not deemed sufficient for that activity.

The proposed protocol contains provisions for the establishment of a Drainage Issues Resolution Team to mediate discussions and recommend solutions in the event that agreement between the conservation authority and municipality cannot be reached. The proposed protocol also uses a combined notification/application form for the federal Species at Risk Act and Fisheries Act as well as the Ontario Endangered Species Act and Conservation Authorities Act into a single notification form which is sent to multiple agencies.

The proposal has been posted for a 45 day public review and comment period starting March 09, 2012. Comments can be sent to:

Rheanna Leckie
PROGRAM ANALYST
Ministry of Natural Resources
Regional Operations Division
Integration Branch
Land and Water Services Section
300 Water Street
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5405
Fax: (705) 755-1276

The online comments form is at: Comments.

Appeal Tribunal denies request to waive chicken over-production levy

noreply@blogger.com (John Goudy, Lawyer) — Fri, 16 Mar 2012 13:16:00 +0000

The Ontario Agriculture, Food and Rural Affairs Appeal Tribunal has denied an appeal by La Primavera Farms of an over quota levy imposed by the Chicken Farmers of Ontario (CFO). When La Primavera produced 78,513Kg of chicken in quota period A-99 (July 16 - September 11, 2010), it exceeded its quota allotment by 24,671Kg. La Primavera was assessed an Excess Production Levy ("EPL") of $21,978.99 by CFO, pursuant to CFO Regulation BQ-2010. La Primavera objected, and in a decision of CFO dated December 16th, 2010, CFO affirmed the EPL. CFO was requested by La Primavera to reconsider its decision. CFO denied La Primavera's request for a waiver of the EPL and affirmed its previous decision. La Primavera then appealed to the Appeal Tribunal from the decision rendered by CFO and seek a waiver, or a reduction of the EPL.

The owner of La Primavera has been involved in the production of chicken under the current supply management system for the last 30 to 35 years. In 2010, the owner decided to entrust to his daughter the responsibility to plan and order chicks from the hatchery to stock La Primavera's barn for the quota period at issue on the appeal. When a Notice of Maximum Crop Quota Allotment arrived from CFO, the owner did not explain the significance of the notice to his daughter. She attempted to calculate the number of chicks needed to fill the quota allotment.

A second document was sent by CFO later in the same month in an envelope labeled in bold Important Crop Quota Enclosed. This was the official communication from CFO determining the net allotment of quota for La Primavera for the period. The owner's daughter did not appreciate the significance of this document and did not look at the document in deciding upon the number of chicks to be ordered. The owner was not involved in reviewing the document with his daughter. Production by La Primavera ended up based on an assumed quota of 65,240 kg when it should have been only 53,842 kg. An excess production levy of almost $22,000 was imposed.

La Primavera asked for the levy to be waived on the basis that the over production resulted from a "clerical error". However, in the Tribunal's view, the responsibility rested on the President of La Primavera to properly guide his daughter/employee through the process to calculate La Primavera's needs to fulfill its quota allotment for the quota period in question. In failing to properly guide her to take over the responsibility, La Primavera assumed the risk which resulted from her lack of knowledge and familiarity with this process. The appeal was denied.

Read the decision at: La Primavera Farms vs. Chicken Farmers of Ontario (CFO).

U.S. District Judge Rejects Organic Farmers' Suit Against Monsanto

noreply@blogger.com (John Goudy, Lawyer) — Mon, 12 Mar 2012 21:39:00 +0000

Read the blog post by Lisa Pruitt, Professor of Law at the University of California, Davis, on this recent decision from the US. Organic growers had sued Monsanto pre-emptively over the risk associated with the presence of GM elements in their crops that Monsanto would take action to enforce its patents. The growers sought a ruling that Monsanto's patents were invalid because they are "injurious".

Read the article at: Lisa R. Pruitt.

Alberta Court of Appeal increases setback of sour gas pipeline from Native Reserve

noreply@blogger.com (John Goudy, Lawyer) — Sat, 10 Mar 2012 12:00:00 +0000

Alberta's Energy Resources Conservation Board (ERCB) approved an application by Suncor to construct two pipelines, one of which would carry sour gas. The lines were proposed to cross in the vicinity of the Stoney Nakoda/Eden Valley Reserve, which consists of 100 separate homes and approximately 650 residents. The Stoney Indian Band appealed the ERCB decision to the Alberta Court of Appeal on the basis that the ERCB had erred in failing to characterize the Reserve as an "urban centre" (in which case the setback requirements would be more stringent).

Setback requirements for level three sour gas pipelines in Alberta are listed in Directive 056: Energy Development Applications and Schedules as follows:

0.1 km to an individual permanent dwelling up to eight dwellings per quarter section;

0.5 km to an unrestricted country development;

1.5 km to an urban centre or public facility.

Urban centre is defined as: “a city, town, new town, village, summer village, hamlet with not fewer than 50 separate buildings, each of which must be an occupied dwelling, or similar development the [Board] may designate as an urban centre”.

Before the hearing, in response to a request from Suncor, the ERCB staff found that the Reserve was not an urban centre. This was challenged at the hearing. The ERCB did not change the designation. It reaffirmed that the Reserve did not qualify as an urban centre because “the area of the [Reserve] nearest the trunk line has an estimated average residence density of five residences per quarter section, less than the residence density of eight residences per square section necessary to qualify for an urban centre designation.”

The Court found that the fact that the Board embarked on a “density analysis” was not in and of itself problematic as it may have served as a relevant factor to the Board’s analysis, given the Board’s statutory discretion. However, it could not be the only relevant factor. Simply looking at the “density criteria” is incomplete and insufficient. The definition of urban centre in Directive 056 requires two considerations. First, is it a “city, town, new town, village, summer village, hamlet with not fewer than 50 separate buildings, each of which must be an occupied dwelling”, or, second, a “similar development”? In analyzing whether the Reserve was a “similar development”, the Board had to have recourse to the concepts of “city, town, new town, village, summer village, and hamlet”, which are not defined in Directive 056, but in the Municipal Government Act, RSA 2000, c. M-26.

A hamlet is defined in section 59 of the MGA as a community which “(a) consists of 5 or more buildings used as dwellings, a majority of which are on parcels of land smaller than 1850 square meters, (b) has a generally accepted boundary and name, and (c) contains parcels of land that are used for non-residential purposes.” The Reserve has more than 100 homes and houses schools, a church, band offices and a food bank.

The Court allowed the appeal and remitted the matter back to the ERCB for its consideration and redetermination in accordance with the Court of Appeal ruling.

Read the decision at: Big Loop Cattle Co. Ltd. v. Alberta (Energy Resources Conservation Board).

OMAFRA proposing mandatory livestock disease reporting

noreply@blogger.com (John Goudy, Lawyer) — Fri, 09 Mar 2012 15:00:00 +0000

The Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) is developing two regulations under the Animal Health Act, 2009 (the Act):

1. Reporting – A proposed Minister’s regulation would address the mandatory reporting of hazards (including animal diseases) by laboratories, as well as certain findings made by veterinarians; and
2. Compensation – A proposed Lieutenant Governor in Council regulation would provide a legal framework for providing financial compensation under the Act.

OMAFRA is asking for feedback on its proposals. The proposed reporting regulation would designate a number of hazards, such as animal diseases, as immediately notifiable hazards and periodically notifiable hazards, which laboratories would have to report to OMAFRA. The list of specific diseases appears in detail in a discussion paper posted on the OMAFRA website. To promote greater coordination with the Canadian Food Inspection Agency (CFIA), laboratories would have to provide notice to OMAFRA of any animal diseases in terrestrial animals (including amphibians and birds) that are also reportable or immediately notifiable under federal regulations made under the Health of Animals Act (Canada). However, the CFIA would lead in responding to the most significant of these reports, including where foreign animal diseases are indicated. A number of Ontario-specific hazards have also been proposed for reporting to OMAFRA by laboratories that are not normally priorities for the CFIA, but are still of local concern in the province.

At this time, the proposed reporting regulation would not require individual livestock and poultry producers to report any knowledge or suspicion of a hazard, such as an animal disease, to OMAFRA. The proposed regulation would not affect any existing reporting obligations they may have to the CFIA.

In addition to designating hazards under the Act, the proposed regulation would also set out specific findings that veterinarians would be required to report that are encountered while the veterinarian is engaged in the practice of veterinary medicine. Reporting these findings is designed to capture atypical animal health situations, such as high mortality in a herd or flock, which could indicate the presence of a significant hazard (such as a toxic substance in animal feed or an emerging strain of a disease) at the earliest possible opportunity.

The proposed regulation would also set out reporting requirements, including the information that must be provided by operators of laboratories and veterinarians, as well as the time in which such reports must be made.

In some cases, the Chief Veterinarian for Ontario (CVO) may need to order destruction of an animal or animal-related thing, such as feed, in order to reduce the possible spread of a hazard. In these unusual cases, the Act authorizes the Minister to provide financial compensation for certain losses stemming from the order at his discretion. The proposed compensation regulation would provide clarity, transparency and assurance to stakeholders that a legal framework exists to address, at the Minister’s discretion some or all the direct losses incurred by persons who have complied with orders issued under the Act.

OMAFRA is seeking input on these regulatory proposals. The proposal has been posted for a 45 day public review and comment period starting March 09, 2012. Comments can be directed to:

Christy Taglieri
Senior Policy Advisor
Ministry of Agriculture, Food and Rural Affairs
Policy Division
1 Stone Road West
Floor 2 SW
Guelph Ontario
N1G 4Y2
Phone: (519) 826-3832
Fax: (519) 826-3492

Comments can be submitted on-line at: On-line Submission.

Nova Scotia Board allows compensation claim for expropriation of contractual rights to proceed

noreply@blogger.com (John Goudy, Lawyer) — Tue, 06 Mar 2012 14:33:00 +0000

The Nova Scotia Utility and Review Board is allowing PEV International Research & Development Incorporated (PEV) to proceed with a somewhat unusual claim under the Expropriation Act. PEV claimed compensation arising from the expropriation of land owned by James Irving Warner by the Municipality of the District of Guysborough (for the purpose of its inclusion in an industrial development for the regasification of liquid natural gas).

Warner and PEV had already entered into a business agreement involving the development of an LNG regasification plant and related facilities on the same land. Warner applied for compensation under the Expropriation Act. PEV then applied for compensation for the value of its interest in the land (arising from the contract). PEV withdrew claims for business loss and disturbance. Guysborough challenged PEV's ability to bring the claim for "market value" of the land, questioning whether PEV was an "owner" pursuant to the Expropriation Act.

In ruling that the claim could proceed, the Board said that it was satisfied that, but for the expropriation, the agreement between PEV and Warner would not have terminated (as it did when the expropriation occurred). The Board was not persuaded that there was sufficient evidence before it to support a finding that PEV has no claim. Therefore, the motion for summary judgment failed. However, the Board made it clear that, in allowing the claim to proceed, it refrained from any consideration of the value of the PEV interest (i.e. an interest that might be valueless).

Read the decision at: PEV International Research & Development Incorporated (Re).

Sask. Court rules husband's seed and chemical debt can be set off against payment to wife for grain

noreply@blogger.com (John Goudy, Lawyer) — Fri, 02 Mar 2012 14:04:00 +0000

A Judge of the Provincial Court of Saskatchewan has ruled that a farm supply company was justified in setting off a husband's debt owing for seed and chemical against a payment to be made to his wife for grain. Denise Korpan had sold feed barley to Parrish and Heimbecker Ltd., and the company deducted from the payment to Ms. Korpan the amount her husband owed for seed and chemical. She sued the company alleging there was no right to set off the husband's debt and alleging that the debt was not as much as was deducted.

Ms. Korpan, the Plaintiff, and her husband, Ed Korpan, are farmers running a mixed farming operation. They have never incorporated their farming operation. Initially they carried on as a family run farm, however some 12 years ago, at their accountant’s suggestion, they divided the responsibilities in their farming operation. The Plaintiff now looks after the cattle portion of the farming operation while her husband is responsible for the grain portion of the operation. Both have knowledge of what the other is doing and make decisions about the farming operation together, but both own farmland and farm assets in their own names. Even though certain machinery and/or vehicles are owned by one of them, the other can use the machinery or vehicles if necessary.

In February, 2008, Norman Cobb, a sales representative for the Defendant, Parrish & Heimbecker Ltd., met with the Korpans at their farm. At this meeting, Ed Korpan filled out a credit application with the Defendant which was later approved. The Plaintiff did not sign the credit application, but was present when her husband signed it and took an active role in the discussions surrounding it. In the course of filling out the application, Mr. Cobb confirmed with them that they ran a family farm. Nothing was said about them running separate farming operations. In the 2008 crop year, Ed Korpan purchased canola seed and chemical from the Defendant on credit. The Plaintiff was aware that he had done this although she did not recall seeing the actual contract. This was not out of the ordinary as Ed signed all of the grain related contracts on behalf of the family.

In order to decide the set off issue, the Judge had to determine if the Plaintiff and her husband were operating the farm as a partnership or if they were each running their own farming operation. The Defendant company argued that it was former while the Plaintiff was adamant that her and her husband were each sole proprietors of separate farming operations. The Judge found that the Plaintiff had not satisfied the Court on a balance of probabilities that she and her husband ran separate farming operations. The evidence established the contrary - that they were engaged in a partnership. Under the Partnership Act, "every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he/she is a partner...". On this basis, the Defendant was entitled to set the husband's debt off against the wife's sale of barley (i.e. set off the parternship's debt against the payment to the partnership for the barley).

Read the decision at: Korpan v Parrish and Heimbecker Ltd.

Sask. Wind Farm can seek damages over failed injunction against development

noreply@blogger.com (John Goudy, Lawyer) — Wed, 29 Feb 2012 14:07:00 +0000

The Saskatchewan Court of Queen's Bench has ruled that the Red Lily Wind Farm may pursue a claim for damages against David McKinnon based on his undertaking as to damages given when he obtained a injunction against the wind project. McKinnon commenced a putative class action, claiming that the wind turbine farm caused adverse effects on human health. He sought and obtained an ex parte injunction (i.e. without Red Lily being present), one of the conditions of which being the undertaking to pay damages if it turned out the injuction was unnecssary. When the injunction was lifted, Red Lily decided to pursue McKinnon for damages.

The parties asked the Court to determine whether Red Lily is entitled to enforce the undertaking, which read:

The Plaintiff, David McKinnon, hereby undertakes to abide by any Order as to damages which this Court may make by reason of the granting of an interlocutory injunction at the request of the Plaintiff if it shall appear that the Defendants have sustained damages for which the Plaintiff ought to pay.

The Court of Queen's Bench found that the case law "unequivocally establishes a strong presumption that an undertaking will be enforced, a presumption which can only be rebutted by compelling facts amounting to special circumstances." The Court noted that McKinnon filed no sworn material and failed to establish the existence of any special circumstances. Therefore, Red Lily is entitled to enforce the undertaking. The Court then set out the procedural steps to be followed to determine the amount of damages, if any, to be awarded to Red Lily.

Read the decision at: McKinnon v Red Lily Wind Energy Corp.

Alta. Court rules lawyer negligent in drafting will meant to bequeath farmland

noreply@blogger.com (John Goudy, Lawyer) — Mon, 27 Feb 2012 18:09:00 +0000

The Alberta Court of Queen's Bench has ruled that a solicitor was negligent in drafting a will for a client after the intended gift to a beneficiary failed. The deceased owned land, including four quarter sections he wished to pass onto his brother through his will. In drafting the deceased's will, the lawyer did include the bequest. However, it was not actually the deceased who owned the four quarter sections. Instead, the property was held by the deceased's company. The intended gift failed and the brother sued the lawyer for negligence.

The Court found first that the lawyer owed the brother, as an intended beneficiary, a duty of care. Next, the Court found that the lawyer had fallen below the standard of care required in failing to address the fact that the land was owned by the company: "A reasonably competent solicitor in those circumstances would, at a minimum, have asked who owned land to be gifted in the will or done a search to ascertain in ownership."

The Court awarded damages to the brother in an amount equal to the value of the land as of the date of the death of the deceased testator. Added to that amount was some $11,200 which would have been earned by the brother as surface lease income had he received the properties.

Read the decision at: Meier v Rose.