JD High Speed Planter

JD High Speed Planter

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.

It looks like Enbridge is back in Court today looking to extend its injunction against Line 9 protesters

I have recently written about Enbridge Pipelines Inc.'s efforts to obtain injunctions against Line 9 protesters (click here).  It looks as if Enbridge is back in Court in London today in what is likely a motion for an extension of the injunction already obtained against protesters a few weeks ago.  If you're interested in observing the motion proceeding, the court docket says it will be heard by Madam Justice Gorman at 2:30 p.m. in Courtroom 14 on the 7th Floor of the London Courthouse at 80 Dundas Street.

Thursday, September 4, 2014

Court says Agricorp not bound by two-year limitation period in going after farmers for past overpayments

An Ontario court has ruled that AgriCorp, a provincial Crown corporation that delivers farm-related government programs (including crop insurance), is not bound by the standard two-year limitation period in its efforts to recoup overpayments made to farmers.  Beginning in 2012, Agricorp notified about 4,500 farmers that they had been overpaid and owed re-payments totalling more than $30 million.  As of January 3, 2014, over $19 million had been collected or would be collected based on re-payment agreements.

Justice Marc Labrosse found that AgriCorp, as an agent of the Crown, benefits from the exemption from the two-year limitation period at Section 16(1)(j)(i) of the Limitations Act, 2002.  A group of farmers affected by the AgriCorp clawback had applied to the Court for the opposite ruling to put off any effort by AgriCorp to commence court actions to recover unpaid funds.  The farmers argued in part that because payments were made by AgriCorp to farmers, and re-payments were payable to AgriCorp and not the Crown, the debt belongs to AgriCorp and not to the Crown.  Therefore, AgriCorp is not an agent of the Crown in the sense required by the Limitations Act, 2002.  Instead, the farmers argued that AgriCorp is more like a private corporation with "farmers serving farmers".

Read the decision at: Group of Ontario Farmers v. Agricorp.

Friday, August 29, 2014

City of Burnaby challenges NEB on access rights of companies for pre-approval project work - NEB sides with company

The National Energy Board (NEB) is considering an application by Trans Mountain Pipeline ULC (Kinder Morgan) to access lands owned by or within the authority of the City of Burnaby for preliminary work related to the proposed Trans Mountain Expansion Project.  The work includes land surveying and related studies that Trans Mountain wishes to conduct in anticipation of the eventual approval of its project.  In particuar, the work relates to a new proposed pipeline route that was not inclued in Trans Mountain's original application for approval to the NEB. 

Burnaby has so far delayed in deciding on Trans Mountain's request for access over outstanding concerns about environmental protection, environmental remediation, safety and inadequate notice to owners.  A number of properties affected are located in conservation areas under the authority of the City, and the activities that may be carried out on lands dedicated for park and recreation use are extremely limited.  In other words, the proposed access and use of the lands being sought by Trans Mountain are in conflict with municipal by-laws.

Trans Mountain applied for access under Section 73(a) of the NEB Act, which sets out that the powers of a "company" include the power to enter onto land "lying in the intended route of its pipeline, and make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline."  In past instances involving private landowners, the NEB has readily granted access to pipeline companies in spite of landowner objections and without the company having served a notice under Section 87 of the NEB Act.  Section 87 requires that a company serve a notice to landowners where the company requires their land for a pipeline.  The notice then provides protection to the landowner for any costs incurred in dealing with the proposed pipeline if the project is later withdrawn. 

Not surprisingly, the NEB has also ruled that the company can serve the Section 87 notice whenever it wants - there is no obligation on it to serve the notice prior to entering on lands pursuant to Section 83(a) even though the company obviously knows by that point that it "may require" the lands in question.

Burnaby challenged the NEB on Section 83(a) on a different basis.  First, Burnaby questioned whether a company may even apply for access under Section 83(a), arguing that the section does not provide for making such an application.  Second, Burnaby argued that Section 73 does not override provincial law or muncipal by-laws.  Burnaby submitted, "There is room for both the operation of Section 73(a) of the NEB Act and Burnaby's by-laws, if access to Burnaby lands is granted subject to Burnaby reviewing the Request and making a determination. Trans Mountain, for instance, would still be able to access the land to survey and examine, even if such access was subject to conditions imposed by Burnaby to protect the purpose for which the property was reserved [i.e. as park or conservation land], pursuant to its by-laws."

Burnaby also argued that Section 73(a) does not authorize the intentional disturbance of land as proposed by Trans Mountain, including the installation of infrastructure or facilities. 

A notice of constitutional question was filed with the NEB and the Attorneys General of Canada and the provinces and territories.  The specific issues raised were:
  • Section 73(a) of the NEB Act does not empower the NEB to make orders that override provincial and municipal jurisdiction pursuant to Section 92(8) of the Constitution Act, 1867; and,
  • In so far as Section 73(a) of the NEB Act purports to empower a company to enter land, Section 73(a) does not override municipal jurisdiction or by-laws enacted pursuant to the Community Charter, S.B.C. 2003, c. 26 and the Municipal Act, S.B.C. 1958, c. 32, as amended.  Further, or in the alternative, to the extent that they are able, Section 73(a) of the NEB Act and by-laws enacted pursuant to the Community Charter and the Municipal Act, as amended, must operate concurrently.
In a ruling made on August 19, the NEB rejected the submissions made by Burnaby.  The NEB ruled that, pursuant to Section 73(a), Trans Mountain has the power to enter into and on Burnaby land without Burnaby's agreement and Trans Mountain does not require a temporary access order for this purpose.  The NEB says that the Trans Mountain application was not one requesting temporary access; the NEB says the application was one only requesting confirmation of Trans Mountain's rights under the Act, which the NEB has now given.

On that basis, the NEB also found that the Notice of Constitutional Question was misdirected, saying that Trans Mountain did not apply for access.  The NEB added that it did not find that "co-operative federalism" should apply to or influence the powers of Trans Mountain under Section 73(a) of the NEB Act.

Since this decision was made, Burnaby's mayor has said that the City will continue to enforce its by-laws prohibiting access to Burnaby mountain.  We can speculate on what will happen if the City continues to hold out against Trans Mountain.  Trans Mountain would likely have to apply to the NEB for an access order (the application the NEB says Trans Mountain didn't already make).  Assuming the order would be granted, Burnaby could appeal the decision in court.  It would be helpful to have some judicial consideration of the NEB's interpretation of Section 83.  Individual landowners are generally in no position to fight this issue - the City of Burnaby may be in that position.

Tuesday, August 26, 2014

NS Supreme Court throws out spray drift case after Farm Practices Board rules farm practice was normal

The Supreme Court of Nova Scotia has dismissed a spray drift claim brought by landowners against a neighbouring farmer and his farm business.  The plaintiffs are organic farmers and alleged that, in 2007, the defendant farmer sprayed his lands with a herbicide that drifted onto their property causing various damage: significant health issues, crop damage, and miscarriages by four horses as a result of exposure to "overspray". 

In response to the claim, which was founded in negligence, the defendants relied on the provisions of the Farm Practices Act.  They stated that their farming activities were carried out in accordance with "normal farm practice" so that, under the legislation, they were protected from any civil action in "nuisance, negligence or otherwise, for any odour, noise, dust, vibration, light, smoke or other disturbance resulting from an agricultural operation."  Following a motion by the defendants, the civil action was stayed pending a determination by the Farm Practices Board of whether the activities in question constituted "normal farm practice".

The plaintiffs then made an application to the Board and a hearing took place in June, 2012.  In January, 2013, the Board ruled that the defendants had not acted in a manner inconsistent with "normal farm practice", and dismissed the plaintiffs' complaint.  That Board decision was appealed unsuccessfully by the plaintiffs.

With all of that completed, the plaintiffs returned to the Supreme Court of Nova Scotia to have the stay lifted so that they could proceed with their action for damages.  The defendants also asked for the stay to be lifted, but for the purpose of dismissing the claim.  The Court had to deal with the ruling by the Board that the activities in question, in particular the spraying, were "normal farm practice".  However, the Board decision was not automatically determinative of the civil action - the question for the Court was whether spray drift was "other disturbance" within the meaning of the Farm Practices Act.

If spray drift fell outside "other disturbance", then there would be no protection against a civil claim afforded by the Act.  Justice Murphy concluded on this point: "Absent contrary authority, I remain of the view that the activities the plaintiffs allege occurred, herbicidal overspray or drift and contaminated run-off from ditching, are "other disturbances" resulting from an agricultural operation as contemplated by section 10(1)(a) of the Act."  Therefore, the claims made by the plaintiffs were barred by the normal farm practices legislation and dismissed as such.

Read the decision at: Nauss v. Waalderbos.

Tuesday, August 19, 2014

Enbridge Gas Distribution ordered to pay back Metrolinx over $2.3 million in pipeline relocation costs

Enbridge Gas Distribution was recently ordered by the Superior Court of Justice to pay back to Metrolinx more than $2.3 million that Metrolinx had earlier paid Enbridge for pipeline relocation costs.  Metrolinx operates an urban rail transit service in the Greater Toronto Area and required the relocation and/or removal of certain parts of Enbridge's gas distribution system in the vicinity of the rail lines.  The question before the Court in this application was who should bear the costs of relocation and removal.  Metrolinx had paid the costs to Enbridge without prejudice to its right to go to Court to try to recoup them.

Metrolinx referred to crossing agreements that had been made between its predecessor, Canadian National Railway (CN), and Enbridge's predecessor, Consumers Gas, that provided that Enbridge would bear the cost of any relocation or removal.  For instance, a 1958 Agreement and a 1963 Agreement both provided:
Should it become necessary or expedient for the purposes of repair or improvement on the said railway that the said pipe crossing be temporarily removed or relocated the applicant [now Enbridge] shall upon request of the railway and at the sole cost and expense of the applicant forthwith remove or relocate the works.
Enbridge argued that the agreements were not assigned or transferred to Metrolinx and that the agreements related to federally-regulated activities.  Therefore, because Metrolinx was a provincial agency, it could not rely upon the agreements.

The Court disagreed.  It accepted the Metrolinx position that the rights that it claimed and the payment obligations of Enbridge were granted to CN by Consumers Gas as a matter of contract.  Justice Morgan explained:

... like all market transactions, they occurred within a particular regulatory environment, but that fact does not undermine the contractual nature of the rights and obligations in question.  Metrolinx' position accurately reflects the governing documentation and legal state of affairs between the parties.  It may well be the case that the Crossing Agreements were an outgrowth of federal regulations that prevailed at the time of their signing.  Nevertheless they are valid contracts, and remain so whether or not the relevant federal regulations continue to govern either of the parties. 
Read the decision at: Metrolinx v Enbridge Gas Distribution Inc.

Wednesday, August 13, 2014

Court grants injunction to Enbridge, but is concerned about the right of protesters to be heard

The Ontario Superior Court of Justice recently granted a temporary injunction prohibiting unauthorized persons from entering or occupying an Enbridge Pipelines Inc. valve installation site in Innerkip, Ontario, near Woodstock.  On August 5, 2014, 25 or so individuals had entered the Enbridge work site, occupied it and then refused to leave.  Enbridge brought an ex parte motion for orders requiring the protesters to leave.

The valve installation work is being required by the National Energy Board (NEB) as part of the Line 9 oil pipeline reversal project, and Enbridge alleged that the work is time-sensitive - there is no time to waste in getting the protesters off the site.  Enbridge's evidence provided: "A project of this magnitude involves the organization and deployment of extensive resources and expertise.  The timing and execution of the project cannot be dictated by persons who do not understand or respect Enbridge's safety and operational protocols.  Enbridge cannot proceed with the required and time-sensitive Valve Installation with Trespassers on the site."

In reviewing the motion (in which the only party present was Enbridge), Justice E.M. Morgan commented:

While property rights and economic interests are important in the Canadian legal system, so are rights of expression. I agree that the time, place, and manner of expression can be tempered by competing rights, see Committee for the Commonwealth of Canada v Canada, 1991 CanLII 119 (SCC), [1991] 1 SCR 139, and that generally “[p]ersons are free to engage in political protest of that public nature, but the law does not permit them to do so by engaging in civil disobedience through trespassing on the private property of others…” Canadian National Railway v Chippewa of Sarnia First Nation, 2012 ONSC 7348 (CanLII), 2012 ONSC 7348, at para 23. Nevertheless, there must be some reason other than the unilateral claim to property rights to deprive otherwise non-violent protesters the right to be heard.
Here there is an economic imperative to the timing of the motion, but there is no safety imperative that created the short timeline and that made notice of the Application impossible. The valve installation has a safety motivation as evidenced in the National Energy Board report, but that is a long term concern due to the upcoming changes in the oil flow, not an immediate one.

Justice Morgan questioned Enbridge about why it had not given notice of its motion to the protesters, given that there was not safety imperative involved.  Enbridge explained that it is faced with adversaries that are difficult to identify - a "shifting group of individuals".  In the end, Enbridge was granted its injunction to permit the expulsion of the protesters, but for a duration of only 10 days.  After 10 days, Enbridge would have to return to the Court either in London or in Woodstock (not in Toronto, where the original motion was heard) to extend the injuction on at least 3 days' notice to the protesters.

With respect to the right to be heard, Justice Morgan stated: "It is important that the protesters’ right to be heard be a realistic one, and that notice of a new hearing date either be disseminated before the protesters disband or be announced in a way that is likely to come to their attention. It is not the purpose of an ex parte injunction to stall the proceedings so that the Applicant’s opponents fade away without being heard in court."

Read the decision at: Enbridge Pipelines Inc. v. Jane Doe.

Monday, August 11, 2014

Is entering your property only once in 10 years enough to prevent a successful claim for adverse possession?

Justice E.M. Morgan's decision begins with this question: "Can a claimant have possessory title if the registered owner entered the property only once during the claimant's ten years of otherwise undisturbed adverse possession?".  Under Ontario law, the interest of the registered owner of land may be extinguished by a person who has been in adverse possession of the land for ten years.  The registered owner is then open to losing title to the property to the adverse possession claimant.

In this case, the land in dispute was a small triangle at the top end of a driveway between two properties.  The adverse possession claimant had a right of way over the driveway, but not over the small triangle.  The triangular area was used to facilitate the claimant's turning his car into his garage at the rear of his property.  The registered property owners asked the Court to make a declaration confirming their ownership of the triangle.  They also sought orders requiring their neighbour to remove fencing, interlocking brick and a gate that he had installed on the driveway (which they owned).  The claimant responded by asking the Court to declare him the owner of triangle by adverse possession.

Justice Morgan reviewed the evidence of adverse possession, which must constitute "strict proof".  In the past, a chain link fence had been erected to separate the triangle from the rest of the registered owners' property.  It was established that the fence was installed no later than March 31, 1988.  Owing to the conversion of the property to the Land Titles system in 2001, the claim for adverse possession would depend on establishing exclusive possession by the claimant (or his predecessors in title) of the triangle for an interrupted period of ten years between 1988 and 2001. 

What does it take to interrupt the exclusive possession?  In this case, a previous owner of the triangle deposed that on at least one occassion, in 1996, he entered the triangle to cut down some "swamp maple trees" located there.  That meant that the 10-year clock stopped and restarted in 1996, which did not leave enough time before 2001 to establish continuous adverse possession.  Therefore, Justice Morgan ruled that the registered owners retained their title to the triangular area on their property.

As for the encroaching fence, gate and interlocking brick, Justice Morgan again ruled in favour of the registered owners of the property: "The Applicants are showing their frustration, and are being somewhat difficult by insisting that the interlock be removed from their portion of the driveway.  Nevertheless, they are within their rights to so insist.  The Respondent is not permitted to alter the Applicant's property without consent even if the alteration is, objectively speaking, an improvement."

Read the decision at: Maras v. Milianis.