Bean Harvest 2014

Bean Harvest 2014

Wednesday, October 15, 2014

Court declines to find that shared driveway right-of-way was abandoned

The drawing above shows three adjacent residential properties in Toronto (in blue, pink and yellow) along with a right-of-way that is shared by the three properties (in green).  The street adjacent to the three properties runs down the left side of the drawing; the right-of-way is a driveway that runs back behind the properties in an L-shape.
The owners of the blue lot wanted to use the driveway pursuant to the deeded right-of-way.  The owner of the yellow lot challenged this use on the basis that the blue lot owners had abandoned the right of way.  She claimed that she was entitled to park her car beside her house so as to block the laneway.  In fact, both the yellow lot owner and the pink lot owner (or their predecessors in title) had fenced off the right-of-way adjacent to their backyards.
The owners of the blue lot applied to the Superior Court of Justice for an order enforcing their rights to use the right-of-way.  In reviewing the application, the Court noted that the rights-of-way of the three lot owners were duly registered on title.  However, the registered owner of the right-of-way lands (the laneway) had passed away and none of his heirs were made parties to the application by the owners of the blue lot.  For that reason, Justice Myers stated, "I am reluctant to declare any rights in the laneway that may affect the owners' interests."
Justice Myers did comment that he would not find as a fact that the applicants (owners of the blue lot) or their predecessors in title abandoned their right-of-way over the laneway, but he did not think that he had the proper parties before him (including the owners of the laneway) to make a formal determination that the owners of the blue lot had not abandoned the right-of-way.  Justice Myers was prepared, however, to enforce the applicants' deeded right-of-way as against the other two residential lot owners (pink and yellow) in personam so that neither of those two owners would be permitted to block the laneway.  He specified that, "nothing herein is intended to bind the true owner(s) of the laneway and my order is expressly without prejudice to any and all rights of the true owner(s) to assert abandonment or any other causes of action or defence that he, she, it, or they may have against the [residential owners]."

Read the decision at: Currie v. Chatterton.

Wednesday, October 8, 2014

Landowners succeed on appeal of assessment for municipal drain maintenance work

Little Creek Municipal Drain services a watershed in the Municipality of the Town of Lakeshore. Little Creek itself drains approximately 2,700 hectares (or 6,650 acres) of mostly farmland into Lake St. Clair.  In 2011, the Town instructed a drainage Engineer to prepare a new updated assessment schedule for Little Creek for the purposes of future maintenance.  Several landowners who farm within the watershed disputed the results of the Engineer’s new assessment schedule primarily on the basis that his ratio of “benefit” to “outlet” assessment was disproportionate and unfairly burdened their lands with a higher assessment.

On the appeal of the Engineer's assessments, the Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal") concluded that the Engineer's method of assigning benefit assessments to the landowners relied too heavily on previous reports and not enough on his own objective determinations.  As this was a drain repair or maintenance project, the assessment process was not the same as it would be for a new drain construction.  The Tribunal said the following about the determination of "benefit" to the landowners and its role in setting the assessment of costs to the landowners:

According to the definition of “benefit” in Section 1 of the Act, benefit assessments apply to new work or improvement work where it can be easily justified that the construction, in fact, “… will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages …”. However, once that initial benefit has been paid by those lands, they should not have to pay a higher assessment every time it is maintained or repaired; that is, those lands should not have to pay over and over again for those initial benefits. Using the outlet assessment schedule is the fairest way to charge properties for maintenance and repair because, as stated in Section 23(3) of the Act, it is “…based upon the volume and rate of flow of the water artificially caused to flow … into the drainage works from the lands and roads …” as well as the length of the drainage works used by those lands and roads.
For the reasons mentioned above, when both a benefit assessment schedule and an outlet assessment schedule exist within a report prepared under Section 4 or Section 78, it seems most reasonable that only the outlet assessment schedule be used for maintenance purposes, after the new or improved drain has been constructed. In this case, the Engineer has prepared a benefit schedule that totals $11,000 and an outlet schedule that totals $39,000. The Tribunal does not find the 1981 Brewer-Terry Drain Decision to be comparable as the report under consideration in that hearing was an improvement report, prepared under Section 78 of the Act, wherein the appellant’s lane crossing was being extended. It was not a report prepared under Section 76 of the Act.
Accordingly, the Tribunal agrees with the Appellants that, given the facts of this case, benefit assessments should not be considered when apportioning assessments for maintenance.

[emphasis added]

The Tribunal ordered the Engineer to revise the Schedule of Assessment so that assessments would be based only on revised outlet assessments (rather than on the standard categories of "special benefit", "benefit" and "outlet").

Read the decision at: Little Creek Drain (Re).

Monday, October 6, 2014

BC Court: Aborted sale should have proceeded - vendor did not conceal property's propensity to flood

The purchaser of a 60-year-old residential property (Lot A) on Salt Spring Island in BC chose not to complete the purchase on the closing date because of alleged latent defects.  The purchaser alleged that a dam or berm constructed on a neighbouring property encroached on Lot A and also caused Lot A to flood.  He took the position that the dam and the flooding were latent defects not discoverable on reasonable inspection and that the vendor of Lot A knew about the dam and earlier flooding and should have disclosed them to the purchaser.

The purchaser did discover the presence of the dam shortly before the closing date.  The vendor's efforts to satisfy him that the property had no flooding problems were unsuccesful.  So the transaction did not close and the vendor sued the purchaser for loss of value (Lot A was ultimately sold to another purchaser at a lower price) and other losses including loss of rent and interest.

The BC Supreme Court found that the vendor did not fail to disclose a latent defect (i.e. a propensity to flood).  As stated by the Court: "The doctrine of caveat emptor applies in real estate transactions with respect to defects that are discoverable on reasonable inspection.  A vendor does not have to disclose patent defects; rather, a vendor must only disclose latent defects."  On the evidence before it, the Court found that there was only one relevant flooding event and that was caused by vandalism combined with poorly maintained highway ditches - not by the dam encroachment.  This was not a latent defect known to the vendor.

Also, the sale contract provided for an inspection to confirm property boundaries, which would have revealed the actual boundaries and whether there were any encroachments (i.e. the dam).  However, the purchaser did not complete an inspection.  If there was an encroachment, the Court found that it could have been identified by reasonable observation (i.e. a patent defect).  Moreover, the encroachment that did exist was a minor one and in no way rendered the residential premises unfit for habitation.

The purchaser was bound to close the transaction and, as a result of his failure to do so, was found liable to pay damages including the decrease in the sale price obtained by the vendor and various carrying costs incurred when the property had to be offered for sale again.

Read the decision at: Ganges Kangro Properties Ltd. v. Shepard.

Tuesday, September 30, 2014

From the Environmental Registry: Updating the Schedule of Noxious Weeds in Ontario

Regulation Proposal Notice: Updating the Schedule of Noxious Weeds in R.R.O. 1990, Regulation 1096 - General made under the Weed Control Act, R.S.O. 1990, c. W-5.

Description of Regulation:

The Weed Control Act and Regulation 1096 prohibit listed noxious weeds from being grown where they have the potential to negatively affect agricultural land. The list in the regulation’s Schedule of Noxious Weeds is outdated. Proposed revisions include the removal of nine weeds that are no longer considered to be significant threats to agriculture or horticulture in Ontario and the addition of nine new weeds that are considered emerging threats to the agriculture industry within Ontario.

Purpose of Regulation:

The Schedule of Noxious Weeds in Regulation 1096 includes nine weed species that are no longer considered to be significant threats to agriculture or horticulture in Ontario. Designating some of these plant species as noxious weeds may be in conflict with conservation initiatives, most notably the restoration and conservation of habitat to support pollinator health. The nine plant species can be managed through modern management practices upon farmed land.

It is proposed that the following species currently listed in the Schedule of Noxious Weeds under R.R.O. 1990, Regulation 1096 be removed:

1. Colt’s-foot (Tussilago farfara L.)
2. Dodder spp. (Cuscuta spp.)
3. Johnson grass (Sorghum halepense (L.) Persoon)
4. Black-seeded proso millet (Panicum miliaceum L. (black-seeded biotype))
5. Yellow rocket (Barbarea spp.)
6. Cypress spurge (Euphorbia cyparissias L.)
7. Leafy spurge (Euphorbia esula L. (complex))
8. Russian thistle (Salsola pestifer Aven Nelson)
9. Tuberous vetchling (Lathyrus tuberosus L.)

Removing some of the above weed species from the Schedule of Noxious Weeds would demonstrate support for sustaining biodiversity in Ontario. Some species, such as Colt’s-foot and yellow rocket, are also known to attract pollinating insects, such as bees.

The Schedule of Noxious Weeds in Regulation 1096 has not been subject to a comprehensive update for many years. Nine weed species have been identified that are considered to be emerging threats to the agriculture industry in Ontario. Some of the species recommended for addition have previously caused large losses in crop revenues in other jurisdictions (e.g., kudzu) and are of growing concern to Ontario farmers.

It is proposed that the following weed species are added to the Schedule of Noxious Weeds:

1. Smooth bedstraw (Gallium mollugo (L.))
2. Wild chervil (Anthriscus sylvestris)
3. Common crupina (Crupina vulgaris Cass.)
4. Jointed goatgrass (Aegilops cylindrical Host)
5. Kudzu (Pueraria lobata)
6. Wild parsnip (Pastinaca sativa)
7. Serrated tussock (Nassella trichotoma)
8. Tansy ragwort (Senecio jacobeae)
9. Wolly cup grass (Eriochloa villosa (Thunb.) Kunth)
These proposed changes would support initiatives related to invasive alien species control, biodiversity, and the environment.

Public Consultation:

This proposal has been posted for a 33 day public review and comment period starting September 26, 2014. If you have any questions, or would like to submit your comments, please do so by October 29, 2014 to the individual listed under "Contact". Additionally, you may submit your comments on-line.
All comments received prior to October 29, 2014 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 this notice and reference EBR Registry number 012-2634.
Please Note: All comments and submissions received will become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered by the decision maker for this proposal.


All comments on this proposal must be directed to:

Mike Cowbrough
Weed Management Field Crops Program Lead
Ministry of Agriculture, Food and Rural Affairs
Economic Development Division
Agriculture Development Branch
Field Crops - University of Guelph Office
50 Stone Road East
Crop Science Building, University of Guelph
Guelph Ontario
N1G 2W1
Phone: (519) 824-4120 Ext. 52580

Monday, September 29, 2014

NEB decides that Trans Mountain - Burnaby dispute raises constitutional question

About a month ago, I posted about a fight going on before the National Energy Board between Trans Mountain Pipeline (Kinder Morgan) and the City of Burnaby with respect to property access for the proposed Trans Mountain Pipeline Expansion Project.  At that time, the NEB sided with Trans Mountain in rejecting a request by Burnaby for answers to constitutional questions including whether a company's right to survey under Section 73 of the National Energy Board Act (NEB Act) could displace a municipality's by-laws.  The NEB said that Trans Mountain had not made any application for an order requiring Burnaby to allow access to City lands. 

My guess a month ago was that Trans Mountain would have to bring an application for access, and it has.  Now the NEB says that the constitutional question must be answered and has ordered that Trans Mountain provide the Notice of a Constitutional Question to be served on the attorneys-general of Canada and the provinces and territories.  The decision can be accessed at: Ruling No. 32.

Although the NEB continues to maintain its interpretation of Section 73 (i.e. that companies have a right to enter upon lands and complete surveys and examinations), it explains why the Burnaby situation raises a constitutional question:

The Board accepts that it has the authority to consider constitutional questions as they relate to its enabling legislation, pursuant to section 12. The Board can refuse to apply provisions within its enabling legislation if the Board determines that those provisions are contrary to constitutional law. However, this is not the relief requested by Trans Mountain from the Board, nor has Burnaby argued in this instance that the provisions of the NEB Act are unconstitutional.

While the draft order proposed by Trans Mountain does not specifically request that the Board order Burnaby to stop enforcing its by-laws, it is clear from the above quote that this is the desired effect of such an order. This may require the Board to find, either directly or indirectly, that, on the facts before it, legislation or by-laws enacted by another level of government are inapplicable to Trans Mountain and that, consequently, that government should be forbidden by the Board to take any actions to enforce those laws. In the Board’s view, this clearly raises a constitutional question.

This is a case to keep your eyes on.  Should NEB-regulated pipeline companies have a right to run roughshod over pre-existing municipal by-laws?

Thursday, September 25, 2014

BC Horse Farm case sent back to Farm Industry Review Board - original decision was unreasonable

In 2009, PH constructed a new barn on her farm property in Kelowna, BC to accommodate an equestrian business.  Her neighbours to the south brought a claim before the Farm Industry Review Board claiming that they were suffering from the effects of noise, lights, flies and odour from the farm.  In March, 2013, the Board found that a section of the horse farm and equestrian centre was not a normal farm practice - turning out horses within 15 metres of the southerly property line was deemed not a normal farm practice based on the City of Kelowna's zoning by-law and the Ministry of Agriculture's Farm Practice Review Guide.
The Board dismissed the noise and light complaints and determined that the farm's manure management practices were normal farm practice.  However, the Board accepted the complaint concerning the location of "livestock area B", which was not set back from the southerly property line.  The Board ordered that the area be shifted at least 15 metres from the boundary.
PH appealed and, on judicial review, the BC Supreme Court found that the Board's decision was unreasonable; the matter was remitted to the Board for a re-hearing.
The Court found that the Board, on the whole, failed to consider evidence pertaining to similar farm businesses in similar circumstances.  The Board's decision was not justified or transparent and reasonable because of that.  The Court wrote:
Although it is important to conduct an evaluative function that addresses the "good neighbour" principle, etc., the BC legislature chose clear and specific features of normal farm practices, including "accepted", "established", and "followed" practices.  This language is a clear and specific direction from the legislature that instructs the [Board] that it can supplement but not substitute certain evidence - e.g. provincial guidelines or the "good neighbour" principle - in place of evidence that demonstrates "proper and accepted customs and standards as established and followed by similar farm businesses under similar circumstances".  Indeed, the [normal farm practices legislation] circumscribes the evidence the [Board] must consider in making its final determination of normal farm practice.
The legislature was clear when it defined the normal farm practice as a practice consistent with "proper and accepted customs and standards as established and followed by similar farm businesses under similar circumstances"; the [Board] was required to determine whether practices and by laws comport with those established practices.
Read the decision at: Holt v. Farm Industry Review Board.

Wednesday, September 24, 2014

Estate Trustees took wrong turns with family farm after mother's passing

In a recent application to pass accounts in an farm estate matter, the Court heard about how one of five children was able to purchase the family farm at a reduced rate.  Children H and J had been named estate trustees in their mother's will.  Child F farmed the mother's 98-acre farm.  The mother's will provided that the residue of the estate (comprising mainly the farm or the proceeds from the sale of the farm) would be divided into five equal shares for the five surviving children: H, J, F, N and K.  H and J obtained a valuation of the farm at $450,000 and then sold the farm to F for only $300,000.  K and N were not notified in advance about the sale of the farm.

Needless to say, K and N had concerns about the sale and retained legal counsel to pursue those concerns.  Child F and the estate trustees, H and J, resolved to implement remedial measures to address the concerns of K and N.  They did not reverse the sale, but agreed that F and his family would list the farm for sale through a professional real estate broker and transfer the proceeds of the sale into the estate.

The farm was then sold for $450,000 and the purchase funds were directed to the estate.  The estate then reimbursed F for the $300,000 he had paid earlier for the farm. 

H and J then applied to "pass their accounts" as estate trustees.  K and N objected to the accounts provided by H and J on a number of levels: they objected to the executor compensation to be paid to H and J; they objected to a proposed further payment to F for additional out-of-pocket expenses he incurred as a result of his original purchase of the farm; they submitted that H and J should be personally responsible (i.e. not the estate) for a number of expenses, including those resulting from the original sale of the farm to Child F; and they submitted that H and J should be personally responsible for all legal costs incurred.

Justice Leach found that H and J had clearly breached their fiduciary obligations as estate trustees.  These obligations include an obligation to obtain "fair market value" for assets that are being liquidated.  Justice Leach found that H and J "initially acted in complete disregard of their obligation to act for the benefit of the estate, and all of its beneficiaries, by not making efforts to liquidate its primary asset for fair market value" and, "no person of ordinary prudence, in managing his or her own affairs, would readily part wiht such a significant asset for such an inappropriately depressed price."

And the breach of fiduciary duty was compounded by also conferring "an effective gain on one estate beneficiary to the significant detriment of all other estate beneficiaries."

Justice Leach accepted a number of the objections of K and N.  He suggested that if H and J wished to compensate F for his out-of-pocket expenses, they could do so from their own shares of the estate.  Costs incurred that were not for the benefit of the estate were treated as damages and Justice Leach ordered those repaid to the estate by H and J.  H and J's executor compensation was also reduced from the $36,000 claimed to $15,000. 

Read the decision at: In the Estate of NB.

Friday, September 19, 2014

Ontario Court of Appeal orders new trial in careless use of rifle case with possible significance to farmers

The Ontario Court of Appeal has ordered a new trial in a careless use of firearms case that may have implications for farmers.  A resident of a rural area near St. Thomas, Ontario led a wandering dog across the road to another property and then fired a gun to scare the dog off.  Witnesses heard the shot and notified police; a charge was laid for careless use of a firearm.  At trial, the Court convicted the resident on the basis that the location of the shot, beside the road and in close proximity to neighbouring inhabited properties, was inherently dangerous, particularly given that the purpose of the shot was to scare the dog.  The conviction was upheld by the summary conviction appeal judge.

On further appeal, the Court of Appeal set aside the conviction, ruling that the trial judge and the summary conviction appeal judge both erred in concluding that firing a shot in the rural environment, whatever the manner in which the shot was fired, necessarily amounted to a careless use of the firearm.  Firing a shot in that manner did not necessarily amount to a marked departure from the conduct of a reasonable person (which is the test for a finding of careless use).  The Court noted that the generality of the findings of the trial judge could have a broader significance relating to permissible farm practices, and granted leave to appeal on this basis (before allowing the appeal outright).

The conviction could not be sustained because there was no finding by the Court as to the manner in which the rifle in question was used or as to the trajectory of the projectile.  The Court suggested that there may have been any number of ways in which the shot could have been fired that might have posed no risk to others.  This was a shot fired in a rural area, not a shot fired in a shopping mall where the shot would automatically be inherently dangerous.  A new trial was necessary.

Read the decision at: R. v. Batty.