Appeal Tribunal weighs in again on liability of transporters for CFIA tagging

In a subsequent decision of the Canada Agricultural Review Tribunal, Dr. Don Buckingham wrote again about the extension of liability for tagging to "transporters":

Considering that a transporter is often working under sub‑optimal conditions for tag verification-limited lighting, the high speed of animals going into the truck, the hairiness of animals' ears which often hides tags, and the multiplicity of tags present in animals ears-the Regulations do impose a heavy, and at times, superhuman burden on a transporter to verify the continuing and constant presence of an approved tag in the ear of each of the animals being transported, failing which, the transporter faces liability for regulatory non‑compliance. Part XV does appear to impose a heavy responsibility on one sector for the benefit of all consumers and producers in Canada to assure traceability and food safety in the food system. Fair or not, this is, however, the regulatory burden that Parliament and the Governor in Council have placed on, in this case, the applicant Knill, and the Tribunal must interpret and apply the law to the facts of this case.

According to Buckingham, the common refrain from those appearing before the Tribunal to appeal fines levied by the CFIA is that the current identification system is unfairly exposing players in the agri-food continuum to liability for violations of Part XV of the Regulations because of a significant problem with the permanency of approved tags.

Read the decision at: H.S. Knill Company Ltd. v. Canada (CFIA).

CFIA Tagging Liability Extended to Agents of Owners

In a recent case before the Canada Agricultural Review Tribunal, Chairman Dr. Don Buckingham confirmed that his decision would effectively extend liability for CFIA-approved tagging violations to agents of owners.  In other words, not only will the owners of animals have a responsibility to ensure that proper tagging is in place whenever animals are moved, but agents of the owners such as truckers will share the same responsibility.  Dr. Buckingham commented: 

The Tribunal is mindful that its finding in this case will constitute an extension of liability to agents of owners under Part XV of the Health of Animals Regulations. However, considering the legislative provisions and the guidance offered to it by the Federal Court of Appeal on the matter, the Tribunal finds that the Agency has proved, on the balance of probabilites, the first element of the violation, "that Schaus caused the movement of" the cattle on February 18, 2009 from the farm of origin, in this case Ikendale. Considering that now, not only the producer but the transporter, or their agents must purchase, apply and verify the continuing and constant presence of a RFID‑CCIA tag in the ear of each of their animals whenever they are moved off their farm or face liability for regulatory non-compliance, Part XV does appear to impose a heavy, if not impractical, responsibility on one sector for the benefit of all consumers and producers in Canada to assure traceability and food safety in the food system. Fair or not, this is, however, the regulatory burden that Parliament and the Governor in Council have placed on, in this case, the applicant Schaus, and the Tribunal must interpret and apply the law to the facts of this case.

Read the decision at: Schaus Land and Cattle Co. Limited v. Canada (CFIA).

Ontario hog farmer's fine and jail sentence stayed pending appeal

A judge of the Ontario Court of Justice has stayed the sentence handed down to an Oxford County farmer ealier this month pending an appeal.  The farmer was convicted on charges related to a manure spill (see previous post).

Read about the stay decision at: betterfarming.com.

Van Boekel Hog Farms Fined $345,000 For Manure Spills

WOODSTOCK – On January 12, 2012, Eric and Yvonne Van Boekel, Van Boekel Hog Farms Inc. and Van Boekel Holdings Inc. were fined a total of $345,000 for pig manure spills that resulted in adverse effects to residents and impairment of water quality. Mr. Van Boekel also received 30 days of jail time.

The Court heard that the companies own two hog farms in Oxford County and that the ministry responded to complaints of pig manure spills on both farms. The ministry observed significant spills and noted that the spills had discharged into the Thames River and Sweets Creek. The ministry also determined that the flow manure application system that was being used to spread manure on fields was not being operated in accordance with the Nutrient Management Act.

The companies and the Van Boekels were charged following an investigation by the ministry’s Investigations and Enforcement Branch.  The companies and the Van Boekels were fined a total of $345,000 plus victim fine surcharges (25% surcharge). Mr. Van Boekel also received 30 days jail time concurrent to be served on weekends plus two years probation.

Read the Better Farming story on the case at: Oxford farmer slapped with huge fine, jail time.

NEB posts summary of abandonment estimates filed by pipeline companies

The National Energy Board has posted a "Summary of Group 1 Companies Physical Information Filed", setting out data related to the mode of pipeline abandonment proposed by Group 1 companies (large pipeline systems) that filed cost estimates with the NEB.  The chart provided juxtaposes the total km contained in pipeline systems against the km of pipeline that companies propose to remove upon abandonment.  The contrast is pretty striking.  At least in agricultural areas, companies propose to remove almost no pipe.  CAEPLA had proposed that cost estimates should be based on a conservative assumption of 100% removal.  Even the NEB had proposed 20% removal as the assumption to be used.  The pipeline industry obviously disagreed. 

Alberta Court rules in favour of landowner over crossing agreement

In 1948, CPR and Calgary Power Ltd. reached an agreement providing Calgary Power with the right to place three towers carrying power transmission wires on and over CPR property abutting the north side of 10th Avenue S.E. in the City of Calgary.  The agreement also provided that either party could terminate the agreement by giving three months' notice, and on termination Calgary Power would be obligated to remove the towers and wires and make good any damage caused to the property.  If the removal did not happen within one month of termination, CPR could undertake the work itself at the expense of Calgary Power or take ownership of the towers and wires.  Under the agreement, Calgary Power was to pay to CPR an annual rental of $40.00.

Flash forward to more recent times.  The power transmission facilities on the property have been expanded.  The original agreement and subsequent amending agreements have been assigned by Calgary Power to a company called Enmax.  CPR has sold its lands to a development company called Remington.  Remington wanted to develop the former CPR lands and advised Enmax of the plans.  Enmax told Remington that a 20 metre utility right-of-way would be required and that Remington would need to bear the cost of any changes, including the conversion of the overhead power lines to underground lines. 

Remington's response to Enmax was to provide a notice of termination under the existing agreements.  Enmax was directed to vacate the Remington lands (the former CPR lands) on or before June 30, 2005.   Despite that direction, Enmax has refused to remove the transmission towers and lines from the lands.  Remington says that its development will be severely compromised with the continued presence of high voltage transmission lines.  It believes such a continued presence will acutely influence potential purchasers or tenants in its intended mixed use residential/commercial development.

Remington applied to the Court of Queen's Bench for orders requiring Enmax to vacate the lands.  Enmax argued in response that the agreements between CPR and Calgary Power were personal contracts between a railway company and a utility company and could not be assigned to Remington without the consent of Enmax.  There were also questions raised about whether the agreements actually created true rights-of-way or whether the rights granted were simply a personal licence which could not be assigned or transferred.

The Court found that the agreements did create utility rights-of-way, which through legislation were not subject to all of the Common Law rules surrounding valid easements and rights-of-way.  Further, the Court ruled that if it was wrong about the nature of the agreements, and they did create mere licences, CPR still had the right to assign the agreements to Remington without the consent of Calgary Power or Enmax. 

For those reasons, the Court found that Remington was entitled under the agreements to terminate and require Enmax to remove its facilities.  Of course, that dealt only with the private relationship between the parties.  The transmission facilities are also subject to public regulation by the Alberta Utilities Commission (AUC).  The Court directed Enmax to make an application to the AUC to remove the transmission lines, and ruled that the lines could not be removed or relocated in the absence of an order from the AUC.

This decision is reminiscent of an earlier Alberta Court decision involving a landowner named Randolph Hill.  He purchased land from a railway company and was assigned an agreement that gave him the right to require a pipeline company to remove its pipeline.  The Court agreed that he had that right, but then the company simply went to the National Energy Board and obtained a Right of Entry Order.  The ROE Order now permits the pipeline to remain in place and, further, allows the company to abandon the line in place. 

Hill will no doubt be seeking compensation for this expropriation of his rights under the agreement.  It will be interesting to see how much those rights are worth.  What would someone pay for an agreement that would allow them to free their lands from the encumbrance of a pipeline corridor?  That has to be worth a lot on the open market.  Remington may very well find itself in a similar position.  The AUC may decline to order the removal of the transmission lines, in which case Remington's rights under the CPR agreements will have effectively been expropriated.

Read the decision at: Remington Development Corporation v. Enmax Power Corporation.

Ontario Farm Labour and Safety Issues

The Ontario Federation of Agriculture has posted a Checklist for farm operators to provide an understanding of the Ontario legislation dealing with employment issues in farm operations.  The OFA says that the Checklist is not intended to replace or supplement the legislation, but can be used as a resource to explain your responsibilities as a farm employer. 

According to the OFA, three Acts apply: the Workplace Safety and Insurance Act, the Occupational Health and Safety Act, and the Employment Standards Act.  To these might be added the Agricultural Employees Protection Act, 2002, which includes the right to form or join an employees' association. 

The OFA information on farm labour and safety issues is available at: Farm Labour and Safety Issues.

The Checklist can be accessed at: Compliance Checklist.

Farm group calls for turbine halt: London Free Press

The Ontario Federation of Agriculture has withdrawn its support for wind turbines in Ontario. The OFA says that the issue has pitted neighbour against neighbour, and it has asked the provincial government to suspend further development. Read the article at: Farm group calls for turbine halt London News London Free Press.