Thursday, June 25, 2015

MOE Court Bulletin: Brantford Biosolids Management Company fined $105,000 for Ontario Water Resources Act Violations

Ministry of the Environment and Climate Change

Brantford Biosolids Management Company fined $105,000 for Ontario Water Resources Act Violations
April 2, 2015 9:00 A.M.

Simcoe - Biosolids management company Wessuc Inc. (Wessuc) was fined $105,000 for discharging sewage biosolids into a watercourse that may impair the quality of the water, contrary to the Ontario Water Resources Act (OWRA).

Wessuc is located in Brantford and operates throughout southern Ontario. The company is primarily involved with the land application of municipal biosolids.

On October 11, 2011, a Non-Agricultural Source Materials (NASM) Plan was approved by the Ministry of Agriculture and Food (OMAF), for the land application of sewage biosolids to a Simcoe farm property on Concession 12. On April 27, 2012, the MOECC received notification from Wessuc that the sewage biosolid application would occur at the site, in accordance with the NASM Plan, between April 28 and May 5, 2012.

On April 30, 2012 and on May 2, 2012, ministry staff conducted sewage biosolid field inspections. During the May 2, 2012 inspection, Ministry staff observed a discharge of a dark-coloured liquid from the field's drainage tile, which entered a stream heading south through a road culvert, and flowed downstream onto a property south of the roadway. An assessment of effluent samples determined that the application of liquid biosolids resulted in discharge of biosolids to an unnamed tributary of Black Creek which impaired the quality of water in the creek.

Wessuc responded to the incident and cleaned up the spilled material at the Simcoe farm property. A Provincial Officer's Order was issued by the ministry to Wessuc to prevent the reoccurance of a similar event during the application of sewage biosolids on tile drained fields in the future.

The company was fined $105,000 plus a victim fine surcharge of $26,250 and was given one year to pay the fine.

Members of the media: Kate Jordan
Communications Branch
(416) 314-6666
Contact information for the general public: 1-800-565-4923

Wednesday, June 24, 2015

Enbridge Gas Distribution loses appeal over cost to relocate pipelines

In August, 2014, I posted about a decision from the Ontario Superior Court involving Enbridge Gas Distribution Inc. ("EGDI") and Metrolinx.  Metrolinx was awarded $2.3 million that it had previously paid to EGDI for the relocation of 6 pipelines.  The Court ruled that it was EGDI that was responsible for the cost.

The Court of Appeal has now dismissed EGDI's appeal of the lower court decision.  EGDI raised two issues: 1) CN, the predecessor in title to Metrolink, had a contractual right to require EGDI to pay to relocate pipelines only on CN-owned lands, not municipal road allowances; and, 2) even if Metrolinx had those rights, they were not conveyed by CN to Metrolinx.

The Court of Appeal did not agree with EGDI's interpretation of the agreement, finding that the obligation to pay to relocate pipelines included relocation for the purposes of alteration in the railway property, facilities or operations.  Those purposes were not restricted to railway-owned lands.  The Court also ruled that CN did transfer to Metrolinx the right to require EGDI to remove its pipelines at EGDI's expense.

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

Monday, June 22, 2015

Better Farming: Pig Farmer acquitted in methane-fueled barn fire

Read Better Farming's story about the recent acquittal of a Huron County hog farmer on Occupational Health and Safety Act charges connected to a 2012 flash fire that injured the farmer and his employee.  The Court determined that the fire resulted from the ignition of a build-up of methane that had resulted from a barn design flaw.

Friday, June 12, 2015

OMB dismisses claim for injurious affection where no taking - on merits and on basis of limitation period

The Ontario Municipal Board ("OMB") recently dismissed an injurious claim by a car wash business that saw a significant drop in business after a local road was realigned.  The claimant alleged that the realignment of County Road 10 led to a significant drop in traffic passing by the car wash, resulting in a reduction in the number of vehicles using the wash.  The claim was for injurious affection in a situation where the statutory authority, the County of Simcoe, did not actually expropriate any of the car wash lands.

In a case of injurious affection where there is no taking, the claim must meet the following requirements:

1)   The damage must result from the action taken under statutory authority (the statutory rule);

2)   The action would give rise to liability but for that statutory authority (the actionable rule); and

3)   The damage must result from the construction and not the use of the work (the construction and not the use rule).

Here, the car wash business was unable to establish that the losses it alleged it had incurred were the result of the construction of the realigned road.  As the OMB explained:

"The Claimant has not been able to prove on the balance of probabilities that the losses it alleges it incurred were the result of the re-routing of County Road 10 and the Board finds that the decline in the number of car washes was on the balance of probability, more likely caused by other factors such as general economic decline resulting in reduced consumer spending.  Furthermore, regular users of HW 89 who had been customers of the car wash prior to the re-routing of County Road 10 would have been required to travel only a short additional distance on HW 89 to continue to use the car wash according to the evidence."


"The Claimant must establish on the balance of probabilities that the re-routing of County Road 10 was the cause of its alleged losses and it has not done so in this case.  Revenues were up in the year following the re-routing and the evidence suggested that the later downturn may have been caused by weather related factors as well as the downturn in the automobile industry including the elimination of the third shift at the Honda plant in the period 2007- 2008. The Claimant has failed to establish any causal connection between the Respondent’s works and any loss it has alleged."

In the end, the OMB ruled that the claim related to the use of the realigned road and not the construction of the realigned road.  On that basis, the injurious affection claim would fail.

However, the actual basis for the dismissal of the claim was the expiry of the applicable limitation period.  Injurious affection claims are subject to a one-year limitation period under Section 22(1) of the Expropriations Act:

Subject to subsection (2), a claim for compensation for injurious affection shall be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known to the person, and, if not so made, the right to compensation is forever barred.

The evidence before the OMB showed that the actual construction of the realigned road was completed on or about December 27, 2006 and made official on January 23, 2007.  The OMB agreed with the County that if the Claimant had suffered business losses from the construction, it knew or ought to have known of those losses occurring on a monthly basis from January, 2007 to February, 2008 (its fiscal year end).  The OMB concluded:

"The claim for compensation ought to have been initiated not later than January, 2009, to comply with the Act as it is required to serve its claim within one year of when the loss is sustained.  It is not reasonable to delay a claim until after the full amount of the loss is calculated as is being advanced by the Claimant.  The Claimant is also required to act diligently to inform itself of any loss giving rise to a claim.  In this case while the losses ought to have been known at the latest by February 28, 2008, the claim was not served until July 31, 2009, some 30 months after the road was stopped up and closed and the claim was not filed with the Board until September 30, 2009.  Furthermore, no previous notice of the claim was given to the Respondent."

Read the decision at: Willies Car & Van Wash Limited v County of Simcoe.

Wednesday, June 10, 2015

Empty barn not enough to trigger MDS to prevent neighbours' severance

Landowners had applied to their municipality to sever a 0.84 acre parcel from their existing 30-acre lot.  County planning staff determined that the proposed severance complied with MDS requirements and that the County had no objection to the proposal.  However, a neighbour did object to the severance, suggesting that the new lot would breach MDS provisions because it would come too close to his 1860-era barn.  Although the barn was vacant, the neighbour was considering returning the barn to livestock use.  He asked that the proposed severed parcel be moved to a different location on the applicants' property.

The municipality went ahead and approved the severance, so the neighbour appealed to the Ontario Municipal Board ("OMB").  The only issue on the appeal was the application of MDS to the severance, and the OMB ruled that MDS did not apply.  Although the OMB took issue with some aspects of the municipality's methodology for considering required setbacks, the OMB concluded that the neighbour's barn did not correspond to the definition of a "livestock facility" within the governing Provincial documents.  MDS had no application in this case.

As the OMB noted:

The fundamental problem with this appeal, however, pertains to the barn itself, and whether it even constitutes a "livestock facility", as understood in the Provincial documents. The Board was not persuaded for the following reasons.
The Provincial documents are unequivocal: to qualify as a "livestock facility", it is not enough for a building to be "structurally sound"; it must also be "reasonably capable of housing livestock." The two criteria are not synonymous. Although the neighbour insisted that the structure would not actually fall over, he offered essentially no evidence it could meet any other expectations.
Indeed, the Board was not shown how the existing structure could be much more than a "shade shelter" (which is specifically excluded from consideration as a "livestock facility"). Although there was no "comprehensive building analysis", it did not take a comprehensive analysis to discern that the structure had no insulation, electricity, ventilation, stalls, hay storage, manure storage, or livestock equipment. It also had planks visibly missing from its siding in various places. None of the observations by the CBO were contradicted. The structure is a shell, and not even one that is impervious to the elements.
Whether or not the structure was considered appropriate for livestock by 1860 standards, the Province would not have published its detailed instructions for "determining when a barn is a livestock facility", if such a primitive structure could qualify. The Board is satisfied that if this structure were subjected to even the most elementary agricultural standards today, substantial remodeling would be essential.
That is where the neighbour encounters a second problem. The Guidelines specify that MDS II also applies to "remodeled livestock facilities.”
The CBO apparently concluded that no remodeling under MDS II would be feasible – not because the barn was too close to the proposed severed parcel, but rather because it was too close to Ms. [S]'s existing dwelling across the road. The Board heard no evidence to contradict that position.
Therefore, notwithstanding the eloquence of the [O] brothers and their expert, the Board was not shown how the barn could now trigger the MDS process – or that it ever could.
Read the decision at: O’Brien v Laronde.

Tuesday, June 9, 2015

BC Court rules neighbours liable in nuisance for "water problem" discharges

A recent BC Supreme Court decision begins: "It has been said that water is the driving force of all nature and as such it can be very destructive. ... It is a truism that water follows the path of least resistance and flows down a landscape to find the lowest point.  It has a tendency to descend and flow with great readiness.  These properties of water are abundantly clear in this case which involves a now protracted dispute between neighbours."

Neighbours A alleged that Neighbours R made changes to the R property that resulted in water damage to the A property.  Neighbours A sued in nuisance, negligence and trespass and sought general, aggravated and punitive damages, as well an injunction obligating Neighbours R to remedy the problems.

The most significant change to the R property was the installation of a tile drain (as part of a french drain) ending about 3 feet from the boundary between the A and R properties.  This tile redirected water from the R property to the A property.  Neighbours R also raised the grading of their property by a few feet, which put their property higher than the A property.  Previously, the R property had been lower than the A property at the boundary in question.  The increased water flows (including sludge) that resulted from these changes caused the damages to the A property alleged by the A neighbours.

As a threshold issue, the judge in this case examined the applicability of statutory limitation periods.  Justice Kerr ruled that the two-year limitation period did apply.  However, she also recognized that where there is continuing damage, a new cause of action arises each day (to some extent resetting the limitation period each day for any "fresh damages").  In this particular case, the effect of the limitation period was that Neighbours A could not recover for any damages sustained before November 25, 2007.  The french drain had been installed in 2001, but they did not commence their action until November, 2009.

Justice Kerr concluded that Neighbours R were liable to Neighbours A in nuisance.  Neighbours R had caused "a substantial and unreasonable interference" with their neighbours' use and enjoyment of the A property.  And Neighbours R were not saved by any riparian rights.  The evidence showed that the water problems resulted from groundwater rather than surface water and that the flow of water between the properties was not by way of a natural watercourse.  Neighbours R could not say that they were not causing a nuisance for having allowed surface water to flow naturally across their land to the A property.  Even if they were dealing with surface water, Justice Kerr found that the flow was the result of the significant changes made to the R property.

She awarded to Neighbours A the sum of $10,000 in non-pecuniary general damages for loss of use and enjoyment of the A property and the sum of $27,908.66 in pecuniary general damages for the cost of remediating the A property.

Read the decision at: Allison v. Radtke.

Thursday, May 28, 2015

Court rules that Bear Creek was navigable in 1831 - natural severance of property results

I first posted about this case in December, 2012; it has now gone to a hearing and a decision has been rendered.  Justice Mitchell has declared that the portion of Bear Creek that passes through the property owned by the respondents in the application "was navigable in 1831 and, therefore, title to its bed was retained by the Crown creating a natural severance of the property."  That was the position that had been taken by the respondent landowners when they hired a surveyor to prepare a reference plan showing Bear Creek as a navigable watercourse comprising unpatented Crown land.  Based upon that reference plan, they purported to convey the land on one side of the creek from joint ownership to ownership by one of the landowners alone.

The court application was commenced by the local municipality, which took objection to the reference plan prepared by the surveyor.  The municipality asked the Court to declare that the watercourse (which is now part of a municipal drain under the Drainage Act) does not create a natural severance of the property.  Her Majesty the Queen in Right of Ontario was also added as a respondent to the application and supported the municipality's position.

In making her decision, Justice Mitchell started from the finding ("not seriously challenged by the Municipality in its argument on the application") that the present watercourse on the property "is the same watercourse located on the property in 1831" at the time of the Crown grant.  Therefore, in determining whether the watercourse was navigable in 1831, Justice Mitchell could rely on the present navigability of the watercourse.

She concluded: "The depth of the watercourse is presently and, based on the evidence of Mr. Burwell, also was at the time of the original grant, sufficient to float a small craft or a log.  There is no suggestion that the water does not flow freely along the watercourse or that its flow is obstructed in any meaningful way.  There may be seasonal fluctuations in the depth and flow of the watercourse but the parties agree this evidence is not determinative of the issue: See the seventh and eighth criterion in Coleman.  The watercourse was, therefore, "navigable" in fact at the time of the original Crown grant."

However, in order to create the natural severance, the watercourse must also have been "capable of public use" or "public utility" in 1831.  Justice Mitchell said of this requirement: "Trite to say that actual use, both historical and present day, is the best evidence of a watercourse's capability of public use.  That said, other "lesser" evidence will suffice to meet the evidentiary burden."  On a review of  the totality of the evidence, she found that "it is more probable than not that the watercourse was not only "capable of public use" in 1831 but was actually used by the public. ... It was capable of constituting an aqueous highway for public commercial and/or recreational use at the time of the original Crown grant regardless of whether or not it was considered by the public useful for such purposes."

As a result, the bed of Bear Creek as it passes through the respondent landowners' property was never actually granted by the Crown to private landowners in 1831.  It was the bed of a navigable watercourse that was reserved to the Crown and now serves as a physical separation between the respondents' property (properties) that lies on either side of the watercourse.

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

Tuesday, May 19, 2015

Sask Court rules that no compensation payable on expropriation of road

A Saskatchewan municipality passed a by-law to expropriate a roughly 2-acre road parcel from a quarter section of privately-owned land.  The affected landowners applied unsuccessfully to the Court  of Queen's Bench to quash the by-law, following which the issue of compensation for the expropriation was set to be determined.  In a decision released last October, the Court ruled that, in the circumstances of this particular case, no compensation was payable for the taking.

The road had actually been constructed by the municipality in 1980 to provide access to nearby lands. The 2-acre roadway cut across an 8-acre triangular piece of the quarter section, which was cut off from the remainder of the lands by a railway line.  The landowners (and/or their predecessors-in-title) had acquiesced in the construction and continuing use of the road.  The municipality had continued to maintain the road since its construction.

In 2004, the landowners applied to subdivide the quarter section to turn the 8 acre parcel into a one-lot subdivision.  This prompted the municipality to raise a concern about the maintenance of the road access across the property.  Eventually, the one-lot subdivision proposal turned into a two-lot proposal.  Between 2004 and 2011, the municipality and the landowners attempted to negotiate a resolution.  The municipality offered to purchase the 2-acre parcel in December, 2010, but no agreement was reached.  In March, 2011, the municipality passed its expropriation by-law.

In determining compensation, the Court of Queen's Bench found that the highest and best use of the land being taken was not a two-lot subdivision as proposed by the landowners.  The Court found that a two-lot subdivision was not a "reasonably probable use of the eight acre parcel" and that "there was no reasonable expectation that such a subdivision would occur."  For one thing, the road access issue was holding up any approval of a two-lot subdivision.  There was also evidence that the subdivision would not meet setback requirements.

The Court then looked at the effect of the taking on the eight-acre parcel as a whole: "what, then, should the applicants be paid, taking account of the value of the road parcel? Based on the before and after method, the applicants should receive the difference between the value of the eight acre parcel that they owned prior to the expropriation, and the value of the approximately six acre site that they will have after the expropriation. That calculation accounts for the value of the road parcel, the damage to the remaining six acre parcel, and any increased value to the remaining land arising from the work to be done - that is, the maintenance of a public road - on the road parcel. "

On the basis that the highest and best use of the land affected was as an eight-acre one-lot subdivision, the Court concluded that no compensation was payable: "Given that the transfer of the road parcel without compensation was an unavoidable cost of a single lot subdivision, the value of the eight acre parcel for a single lot subdivision was the same before and after the expropriation of the road parcel. The applicants accordingly suffered no loss as a result of the expropriation. Indeed, and as noted by counsel for the respondent, the expropriation of the road parcel puts the applicants one step closer to having the legal access that is a requirement for any subdivision. As such, it is a special benefit to the applicants."

The Court would have reached the same conclusion had the highest and best use of the land been agricultural: "no compensation is payable - even if the highest and best use of the eight acre parcel was the existing agricultural use. The road parcel is already used for the road, and is not available for agricultural use. As such, loss of title to the road parcel would not affect the value of the quarter section for agricultural purposes. "

Read the decision at: Colhoun v Rural Municipality of Lumsden No. 189.