Tuesday, May 23, 2017

Court of Appeal overturns Gilmor v. NVCA decision - confirms discretionary powers of Conservation Authorities

The Ontario Court of Appeal has now released its decision in the Gilmor v. Nottawasaga Valley Conservation Authority case, which was on appeal from the Divisional Court.  This decision is an important one in defining the power of Conservation Authorities in Ontario to decide when landowners may or may not develop properties that fall within the geographic jurisdictions of the Authorities.  In this particular case, a husband and wife wanted to build a house on a property at the edge of a floodplain and were denied permission by the NVSA (and, on appeal, by the Commissioner), even though there was already a garage on the property and houses built on neighbouring properties.

The main reason stated by the Commissioner for denying permission was that the driveway that would have led to the house might not be safe (in certain possible severe flood conditions, although there was already a existing driveway on the property).  The Commissioner's view was that safety was part of the regulatory authority to control flooding under the Conservation Authorities Act, and that her discretion to approve the development proposal in this case should not be exercised because of safety concerns.

The Divisional Court had disagreed with the Commissioner on both fronts.  The Divisional Court was of the opinion that safety could not be an overriding factor in the decision to approve or deny permission to develop where there were no concerns about flood control (and the landowners' proposal in this case would not have an effect on flooding).  Furthermore, the Divisional Court disagreed with the Commissioner that there was any sufficient reason for concern about safety in connection with the proposed development.  I reported on the Divisional Court's decision in an earlier blog post: Divisional Court Decision.

In its rejection of the Commissioner's decision, the Divisional Court also put forward its own interpretation of the development permission provisions in the Conservation Authorities Act legislation and regulations.  Importantly for landowners, the Divisional Court confirmed that there is not necessarily an absolute prohibition on development within areas regulated by Conservation Authorities.  The prohibitions in the legislation and regulation are generally subject to the possibility of obtaining permission from the Conservation Authorities.  For instance, the regulation in this case provided:
2. (1) Subject to section 3, no person shall undertake development or permit another person to undertake development in or on the areas within the jurisdiction of the Authority …
3. (1) The Authority may grant permission for development in or on the areas described in subsection 2 (1) if, in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development.
In the opinion of the Divisional Court, it was in fact a prerequisite of the prohibition on development stated in Subsection 2(1) that the Conservation Authority be of the opinion that the development would affect the control of flooding, erosion, dynamic beaches, pollution or the conservation of land.  In this particular case, since those potential effects were not present, the Conservation Authority (and, on appeal, the Commissioner) had no authority to prohibit development.  Again, safety concerns alone could not justify the prohibition.

The Court of Appeal has now overturned the decision of the Divisional Court and restored the Commissioner's original decision.  Writing for the Court, Justice Huscroft makes the following points:

  • the Divisional Court's reading of Subsection 3(1) of the Regulation as being a prerequisite to the prohibition on development in Subsection 2(1) is wrong; the starting point is that development within certain regulated areas is prohibited; but a person wishing to develop may apply to the Conservation Authority for permission to develop and the Conservation Authority must exercise its DISCRETION to approve or deny a development REASONABLY;
  • the listing of specific relevant factors (effect on control of flooding, etc.) in Subsection 3(1) does not mean that related factors such as safety for persons and property (which is related to and is a reason for flood control measures) cannot be the basis for the exercise of the discretion;
  • the standard of review on appeal from the Commissioner is a standard of "reasonableness", not "correctness" as was applied by the Divisional Court, and the Commissioner's findings on safety in relation to the property and the development were entitled to deference;
  • The Divisional Court's task in conducting the reasonableness review was "not to weigh the evidence, reach its own judgment, and then use that judgment as a benchmark for assessing the reasonableness of the Commissioner's decision";
  • "It may be that, as the Divisional Court noted, a Timmins storm is unlikely to occur, but it cannot be said that the Commissioner's concerns about access to and egress from the site in the event of such a storm were unreasonable."

Where does that leave landowners?  Conservation Authorities will no doubt be emboldened by this reaffirmation by the Court of Appeal of the discretionary authority to approve or deny development permits.  The exercise of discretion must be reasonable, but the Court of Appeal has likely signaled that the range of possible reasons for denying a development permit is broader rather than narrower.  The reasons cited for denying permission may go beyond the factors named specifically in the regulations (i.e. control of flooding, erosion, dynamic beaches, pollution or the conservation of land); the question will be what level of relatedness there will have to be between those enumerated factors and the factors considered by a Conservation Authority for a decision to be "reasonable".

The Court of Appeal's decision also signals that it may be very difficult in the future to bring a successful appeal against a decision of the Commissioner.  In most situations, the standard of review that can be applied by the Divisional Court on such an appeal will be the "reasonableness" standard.  It won't be a question of whether the Commissioner got the decision right; it will simply be a question of whether it was a decision that could have reasonably been made in the circumstances.  Not necessarily the right decision; just a reasonable decision.

Read the Court of Appeal's decision at: Gilmor v. Nottawasaga Valley Conservation Authority.

Tuesday, May 16, 2017

What will NEB Modernization mean for landowners?

The Expert Panel appointed by the Minister of Natural Resources to provide recommendations on the future of the National Energy Board ("NEB") has now released its report: "Forward, Together - Enabling Canada's Clean, Safe, and Secure Energy Future".  Comments on the report will be accepted by the federal government until June 14, 2017.  You can submit your comments at the following link:  COMMENTS.

What the Expert Panel's recommendations will mean for pipeline and energy transmission line landowners is difficult to glean from the report; obviously, it's not possible to know at this point whether the recommendations of the panel will be adopted and/or implemented.  However, it doesn't appear that there will be much of benefit for landowners in any shift to a new Canadian Energy Transmission Commission ("CETC") framework.  The NEB may be getting a change in name, but the CETC seems likely to be more of the same for landowners.

The Report includes recommendations on changes to the way in which various project proposals are reviewed.  Without knowing how these changes will be implemented in legislation to replace the NEB Act, we can only speculate on the effect on landowners at this time.  Landowners should be concerned, though, about the potential for the erosion of the procedural rights that they do have under the current legislation.  The NEB Act is far from landowner-friendly, but it guarantees certain rights for landowners when faced with new project applications or the operation of existing facilities.  Will the Expert Panel's clear focus on the engagement of Indigenous peoples and the general public result in the further watering down of landowner involvement in the regulatory process?  

The addition of a Landowner Ombudsman is not likely to change anything for landowners in terms of navigating the regulatory processes; the NEB already has personnel assigned to assist those affected by energy infrastructure and projects in dealing with various processes.  There's mention of the possibility of funding for landowners to access relevant legal advice, but there is still no sign of any system of cost recovery for landowners who must participate in the regulatory process to protect their property interests.  Government should not be (under)funding landowner legal advice and participation in regulatory processes - energy transmission companies should be paying the costs actually incurred by landowners as a result of the companies' projects and operations.  

That "Respect for Landowners" is the last section in the Expert Panel's report, and consists of only 4 pages out of 100 in total, is telling.  The impression left is that the role of landowners in the review process is an afterthought or an add-on, and that is exactly where landowners have been in the NEB process all along.  Landowners should just hope that the current review process doesn't erode what few protections they have under the existing regulatory system.

NEB Modernization Report recommends creation of Canadian Energy Transmission Commission ("CETC") - Comment on the Expert Panel Report until June 14, 2017

The Expert Panel established by Canada's Minister of Natural Resources has now released its report of recommendations and advice on the modernization of the National Energy Board ("NEB"): "Forward, Together - Enabling Canada's Clean, Safe and Secure Energy Future".  The public is invited to comment on the report for 30 days until June 14, 2017.  Comments can be submitted through the following link:  COMMENTS.

Recommendations put forward by the Expert Panel include:

  • The creation of a "formal Canadian energy strategy which plots the course for the future of energy in Canada, balancing environmental, social and economic objectives";
  • High level inter-governmental coordination on all energy-related matters in order to realize the federal government's vision of the future of energy in Canada;
  • Establishment of an "independent Canadian Energy Information Agency" with a mandate to collect and disseminate energy data;
  • Transformation of the NEB into the Canadian Energy Transmission Commission ("CETC");
  • Shifting of responsibility to make public recommendations to the federal cabinet on whether a preliminary major project proposal (for federally-regulated energy transmission) is in the public interest to the Minister of Natural Resources;
  • Enshrinement in regulation of the definition of the "national interest", to be updated on a "reasonable schedule" to keep pace with societal change;
  • The new CETC to continue to review project applications for transboundary pipeline and electricity transmission line projects, but major projects must first pass through the "national interest" review by the Minister of Natural Resources and cabinet;
  • Joint Hearing Panel process for review of "major" and "significant" projects, the panel to consist of two CETC commissioners, two representatives of the Canadian Environmental Assessment (CEA) Agency, and one independent Commissioner.  One of the five commissioners must be Indigenous;
  • Once major projects have passed through the "national interest" approval stage, the CETC to have full authority to approve or deny projects, restoring the authority that was taken away from the NEB and given to cabinet several years ago;
  • The elimination of Section 58(1) of the NEB Act (exemption from the Certificate of Public Convenience and Necessity requirement for certain projects) and designation of three classes of projects - 1. Projects of National Consequence, requiring review by the federal cabinet; 2) projects of significance that require a Joint Review Panel review but not review by cabinet; and, 3) "smaller" activities that require review and approval but not a full Joint Panel review;;
  • Enshrinement in legislation of two core principles: 1) no regulated activity shall proceed without proper approval; and, 2) all regulated activities must undergo environmental assessment commensurate with the scale and risk of the proposed activity;
  • Establishment of a Board of Directors of the CETC responsible for strategy and oversight of the CETC, separate from the Commissioners of the CETC who would sit on hearing panels and make regulatory decisions.  Currently, the NEB consists of members who perform both functions;
  • Minister of Natural Resources to define how to meet the commitment to ensure Indigenous peoples have a nation-to-nation role in determining Canada's national energy strategy;
  • Government funding for an Indigenous Major Projects Office, under the governance of Indigenous peoples, which will define clear processes, guidelines and accountabilities for formal consultation by government on projects;
  • For project hearings, the repeal of tests for standing, allowing for a wider array of input into project reviews (from simple letters to the provision and testing of evidence).  Letters of comment to be accepted without qualification;
  • Establishment of a Public Intervenor Office to represent the interests and views of parties who wish to use the service, and to coordinate scientific and technical studies to the extent possible;
  • Establishment of Regional Multi-Stakeholder Committees, open to all interested parties, with a mandate to review all aspects of the regulatory cycle and operational system;
  • Establishment of a Landowners Ombudsman to review and make recommendations on improving relationships with landowners, provide advice and best practices on how to navigate the processes, enable better mediation, and potentially administer a fund so that landowners can access relevant legal advice;
  • CETC Hearing Commissioners to take on alternative dispute resolution, with support from ADR staff as appropriate;
  • Review of compensation practices and outcomes, resulting in a public report on the matter, so as to better understand and deal with compensation issues large and small.

Thursday, May 11, 2017

Saskatchewan landowners challenging RM by-law that would expropriate gravel pit property

Two sisters own a quarter section of land in Saskatchewan adjacent to a gravel pit owned by their Rural Municipality ("RM").  The RM's current gravel pit is nearly exhausted, and the RM has been interested in obtaining the sisters' property - the property is ideally located next to the existing pit, and demand for gravel in Saskatchewan is currently very high.  In November, 2015, the RM offered to purchase the land, which has been in the sisters' family for generations, for $1.5 million.  The sisters rejected the offer.

The sisters then entered into a gravel extraction lease agreement in February, 2016 with a private company.  Later that month, the RM upped its offer by $17,000, and served a notice of expropriation along with its purchase offer.  The sisters again rejected the RM's offer.  The RM moved ahead and passed a by-law authorizing the expropriation of the property in May, 2016.

The matter has ended up in the Court of Queen's Bench.  The RM applied to have the compensation determined on the expropriation.  The sisters applied to the Court for determination as to whether the RM was lawfully expropriating the land for a purpose authorized by the Municipal Expropriation Act.  The Court has deferred the RM's application and allowed the sisters' application to proceed as an application to quash the by-law.

The sisters do not challenge the RM's authority to expropriate land where necessary to ensure that the RM has an adequate source of gravel to fulfill its duty to build and maintain roads within the municipality.  They argue that the RM's true purpose in passing the expropriation by-law was not to ensure an adequate source of gravel; instead, according to the sisters, the RM wants their property to acquire a source of gravel that the RM can sell at a profit in the context of the current high demand for gravel in Saskatchewan.

This will be an interesting case to watch.

Read the decision at: Rural Municipality of Edenwold No. 158 v Murray.

Wednesday, May 10, 2017

Court finds farm lease not signed under duress - owner ordered to pay lost profits

In the fall of 2011, a couple of farmers ("D&S") asked an area landowner ("H") whether she would lease her farmland to them.  After a couple of meetings, H agreed to lease the land for three years at a set rental amount.  However, a few months later in April, 2012, on the day set by D&S to begin field operations on the rented land and a couple of days after D&S had provided H with a draft written lease, H blocked her driveway to prevent D&S from entering the land.  The OPP was called; the parties discussed the situation and made several changes to the draft lease at H's request, and the lease was signed.

In December, 2012, according to D&S, H then unlawfully terminated the lease.  D&S sued her for loss of profits that they would have earned had they been able to farm H's land during the two years remaining on the lease.  In her defence, H pleaded that she had signed the lease (on the day in April, 2012 when the OPP attended at her property) under duress.  In addition, H pleaded that D&S had breached the terms of the lease, which entitled her to terminate it.  At trial, Justice Bale rejected both defences and awarded D&S damages of just over $64,000 for lost profits.

Justice Bale did not accept the plea of duress because the presence of the OPP at the property (although the officers were called by D&S) was for H's benefit as well; H had already agreed to the material terms of the lease even before the written agreement was made in April, 2012; the only changes made to the lease agreement that day were changes that were requested by H; H testified that she though she was only signing a one-year lease that day, which she could put up with, but that demonstrates that she was signing the lease voluntarily (and, in any event, the judge did not accept H's claim that she didn't know the lease was for three years); and, after signing the lease, H allowed D&S to go into possession of the farmland and carry out their farming operations.

H also argued that she was entitled to terminate the lease because D&S had failed to "Supply Application Rates of Fertilizer & chemicals by 3rd party."  While D provided H with a handwritten note advising her of the fertilizer and chemicals applied, H claimed that she was entitled to some sort of formal document from the third party chemical suppliers.  D&S said they couldn't provide that document since they received only a single invoice from their supplier for the several properties they farmed.

Justice Bale ruled that it didn't matter whether the information provided by D&S satisfied the contract or not, at least not in the determination of whether H had a right to terminate the contract.  H would only be able to treat the contract as terminated if there was a fundamental breach of the contract.  Failure to provide the fertilizer and chemical information in the form demanded by H would not constitute a fundamental breach of the contract (as would a failure to pay rent).

Read the decision at: Drew v Huskinson.

Thursday, April 27, 2017

Environmental Obligations and Bankruptcy - Alberta Court of Appeal says bankruptcy trustee can disclaim orphaned wells

The Alberta Court of Appeal has released a split decision on the following question:  can the trustee administering the estate of a bankrupt oil and gas company renounce or disclaim the company's interest in orphan oil wells (i.e. wells for which the cost of remediation required for abandonment exceeds the value of the well), but keep and sell off other valuable wells in order to maximize the recovery of secured creditors?  Justices Slatter and Schutz ruled that the trustee is permitted to disclaim the orphan assets.  Justice Martin, writing in dissent, sided with the Alberta Energy Regulator ("AER") and would have ruled that a portion of the sale proceeds from valuable wells must be set aside to meet the expected costs of remediating orphan wells.

The case involved Redwater Energy Corporation, a publicly traded oil and gas company. In 2015, Redwater's principal secured creditor, the Alberta Treasury Branches ("ATB"), commenced enforcement proceedings after Redwater couldn't meet its financial obligations.  On May 12, 2015, Grant Thornton was appointed Receiver for Redwater under the Bankruptcy and Insolvency Act ("BIA").

In July, 2015, Grant Thornton told the AER that it would be taking control of only 20 of the 127 Redwater oil and gas licences.  The AER responded by issuing orders, "for environmental and public safety reasons", requiring the abandonment and remediation of the 107 wells that the Receiver was looking to disclaim.  In October, 2015, a bankruptcy order was issued for Redwater.  In November, 2015, Grant Thornton, now trustee in bankruptcy for Redwater, disclaimed the assets it had previously renounced in its capacity as Receiver, and indicated to the AER that it did not intend to comply with the environmental remediation orders.

The AER and the Orphan Well Association ("OWA") brought court applications for declarations that the disclaimer was void.  They also sought an order compelling Grant Thornton, as trustee, to comply with the abandonment and remediation orders issued by the AER.  Grant Thornton brought a cross-application for approval of the sale of certain assets, and ruling on the constitutionality of the AER's position.

The Chambers Judge hearing the matter ruled that the claim of Redwater's secured creditor, ATB, has priority over Redwater's obligation to reclaim its wells.  The Court of Appeal heard appeals of that ruling focusing on "whether a receiver or trustee in bankruptcy must satisfy the contingent liability inherent in the remediation of the worthless wells in priority to the claims of secured creditors."  The appeal involved questions of law for which the standard of review is correctness (i.e. it's not enough for the lower court decision to have been reasonable - it has to have been correct on the law).

As noted above, the majority of the panel hearing the appeals upheld the decision of the Chambers Judge, ruling that the bankruptcy trustee is not bound to comply with the abandonment and remediation orders and does not have to divert the value from valuable assets to cover the environmental costs related to other assets.  The reasons are extensive, and include discussion of the interplay between the provincial environmental legislation (the oil and gas regime) and the federal BIA regime.  The majority concluded that, "Under the proper interpretation of the BIA, the Regulator cannot insist that the bankruptcy trustee devote substantial parts of the bankrupt estate in satisfaction of the environmental claims in priority to the claims of the secured debtor.  To the extent that the interpretation of the provincial legislation leads to a different result, the [federal] paramountcy doctrine is engaged."

The majority also pointed out that the provisions in Alberta's Oil and Gas Conservation Act and Pipeline Act that purport to make receivers and trustees personally liable for the duty to abandon oil wells and pipelines, the costs of remediation performed by other persons, and the duty to obey orders of the Regulator, are in operational conflict with the BIA.  For example, the BIA contains provisions that exempt a trustee and a receiver from personal liability and that allow them to disclaim assets.  As such, the majority concluded, the personal liability provisions in the Alberta legislation are unenforceable against BIA receivers and trustees.

In her dissenting opinion, Justice Martin disagreed with the majority that the provisions of the Alberta oil and gas legislation actually conflict with the BIA.  She found that the BIA does not permit the trustee to renounce the end of life obligations imposed by the provincial regulatory regime. Therefore, the BIA does not release the trustee from its ongoing regulatory obligations with respect to the Redwater wells.  If there is no entitlement to renounce those obligations under the BIA, then there is no conflict between the BIA and the enforcement of the regulatory obligations (to abandon and remediate wells).

Justice Martin was also of the opinion that the abandonment and remediation regime in Alberta does not frustrate the purposes of the bankruptcy legislation (which include providing for the orderly liquidation and winding up of the insolvent debtor, distributing realizable assets fairly among the creditors, having regard to the legal priority of various types of debt, and providing the bankrupt with a "fresh start"):
The cost of abandoning licensed wells and reclaiming well sites is an ongoing regulatory obligation and an inherent part of the licensed asset, well known and understood by the debtor licensee and the licensee’s lenders. The record makes clear that it was well understood by the respondent ATB, the primary lender here. The end of life obligations associated with licensed assets, being compliance costs to generally applicable laws, are factored in to the lender’s risk assessment and its decision to lend on the strength of the debtor’s collateral. 
The continued application of the regulatory regime following bankruptcy does not determine or reorder priorities among creditors, but rather values accurately the assets available for distribution. The value of the debtor’s estate must take into account the end of life obligations associated with the licences that form a part of that estate. If this means that, in the end, there is less value available for distribution to the creditors, that is part of the bankruptcy scheme and the risk that the creditor takes when lending on the basis of the debtor’s assets, with their associated obligations. [emphasis added]
We'll have to see whether this case goes to the Supreme Court for a further review.

Read the decision at: Orphan Well Association v Grant Thornton Limited.

Tuesday, April 25, 2017

Court grants injunction to Enbridge over interference with maintenance digs

Back in March, 2017, Enbridge Pipelines Inc. ("Enbridge") was in court seeking injunctions against two individuals to prohibit them from interfering with maintenance work being conducted on Lines 10 and 11, two adjacent oil pipelines near Hamilton, Ontario.  Enbridge asserted that the individuals had been regularly interfering with its work crews since January, 2017, including the tearing down of snow fences and gates and verbally demanding that work be shut down.  Enbridge also alleged that, after two weeks of obstruction, the individuals placed rabbit traps to obstruct access to the dig sites and then asserted treaty hunting rights.

In their defence, the individuals involved in the case alleged that they are Haudenosaunee citizens with the ability to exercise rights upon Haudenosaunee traditional treaty territory.  They served Notices of Constitutional Question stating their intention to question the constitutional validity of the following: 1) the Trespass to Property Act as it may apply to a Haudenosaunee person undertaking harvesting activity pursuant to treaty rights; 2) any interim or interlocutory injunction which would directly or indirectly impair, infringe and/or interfere with the exercise of treaty rights where the Crown has not discharged its obligations to uphold the Honour of the Crown (duty to consult and accommodate); and, 3) the granting of any easement (i.e. Enbridge's pipeline easements) where treaty rights would be impaired, infringed and/or interfered with where the Crown has not discharged its obligation to uphold the Honour of the Crown (duty to consult and accommodate).

Justice Broad of the Ontario Superior Court of Justice reviewed the constitutional arguments and concluded that, "the question of whether the Crown has made efforts to comply with its duty to consult and accommodate is not relevant to the exercise of the court's decision to deny an injunction sought by a private party such as Enbridge with an interest in land on discretionary grounds."  Also, Justice Broad noted, "The defendants have been unable to point to any cases where a precondition involving the exhaustion of efforts to consult and find negotiated or legislated resolutions has been recognized or applied where an injunction is sought at the instance of a private property owner where aboriginal treaty rights are claimed or exercised."

Having disposed of the constitutional issues, Justice Broad reviewed Enbridge's request for injunctive relief on the basis of the standard three-part test for injunctions:

1)      the plaintiff must establish a serious question to be tried;
2)      the plaintiff must show that it will suffer irreparable harm if the injunction is not granted; and
3)      the balance of convenience favours the granting of an injunction. This involves a consideration of which party will suffer greater harm if the injunction is granted or refused.
Justice Broad ruled in favour of Enbridge on all three parts of the test.  With respect to the defendants' treaty right claims, he concluded: "The defendants' claim to relevant interests or rights may be advanced by appropriate parties or groups having the requisite standing through lawful avenues.  The defendants' resort to unlawful self-help should not, however, be countenanced ...".

Read the decision at: Enbridge Pipelines Inc. v. Williams et al.

Friday, April 21, 2017

Bachelor farmer dies in accident in 2009 - Court tasked with interpreting holographic will from 1992

Farmer P was 60 years old when he died in an accident on his Saskatchewan farm in March, 2009.  He had no spouse and no children, and was survived by his 95-year old mother, a brother and sister-in-law, and a sister.  After P's death, his family discovered that he had made a holographic will in 1992 that provided as follows:

Last Will and Testament of [P]
I leave all my farming assets to [my brother and sister-in-law].
I leave 50% of my personal assets to [my brother and sister-in-law].
I leave 50% of my personal assets to my sister [K].
All household personal assets (those that Mom can use) I leave to [my mother].

A holographic will is one that is made entirely by the testator's own handwriting, without formality, and without the presence, attestation or signature of a witness (e.g. the mythic will written on a napkin).

For almost 8 years after P's death, his siblings were engaged in acrimonious disputes about the administration of P's estate and their entitlement to his assets.  The assets included farmland, farm equipment, grain and inputs inventories, etc.  The debts owing by P's estate included substantial income tax owing, a tractor loan, a mortgage, etc.  The questions left by the holographic will included which assets were farm assets and which assets were personal assets, and which debts were to be paid by the Estate and which debts were to be paid by individual beneficiaries.  In January, 2017, Justice Ball of the Court of Queen's Bench in Saskatchewan issued a decision in which he wrote: "Hopefully, this decision will do something to bring an end to the litigation."

Justice Ball noted that, "The court's only objective in interpreting a will is to ascertain and give effect to the intention of the testator, as expressed by the language of the will, at the time the will was executed."  After reviewing the law applicable to the interpretation of wills, Justice Ball then reviewed the evidence about the information known by P at the time he made his will in 1992 that provides the context for the will.  Having reviewed the context, Justice Ball concluded, among other things, that "farming assets" included all farmland, farm implements and inventory, and unsold grain on hand; "Personal assets" included all household effects in P's home, personal motor vehicles, and personal bank account balances.

At the end of the decision, there were still some assets that could not be assigned to a specific category based on the evidence before the Court.  These assets included surface lease annual payments and farm subsidies or other government payments.  Further evidence would need to be filed with the Court before any decision could be made on those assets.

As with most estate law cases involving farms, the lesson to be drawn from this case is that it pays to have a clear and fully-documented succession plan in place as soon as possible.  Farmer P did have a will at the time of his fatal accident, but that will was not sufficiently instructive to his family to avoid nearly a decade of litigation.

Read the decision at: Ellingson v Ellingson Estate.