Monday, November 16, 2015

Another Organized Pseudolegal Commercial Argument (OPCA) Case in Alberta

An Alberta man ("ACG") challenging the court process initiated by the company that holds a second mortgage on his property has been labelled an "OPCA" litigant for relying on "organized pseudolegal commercial arguments".  Although he admitted that he had stopped making payments on the second mortgage, ACG claimed that the terms of the mortgage were unfair and predatory, that there was lack of disclosure, that he was not aware of the terms of the mortgage when it was signed (constituting fraud), that the mortgage was unsupported by valuable consideration, etc.  He also made "advanced stereotypic and well known OPCA arguments and motifs, such as the double/split person "Strawman"."

The "Strawman" double/split person concept is used to attempt to avoid legal obligations through "the notice of treating a named individual as an "estate" that is somehow separate from the person who is subject to the law and that is free from governmental regulation".  ACG's sought to distinguish himself as a "individual human being" from his legal "person".  One part of his split person may have signed the mortgage, but the other part is not bound.  ACG swore the following in an affidavit:
1. I am a man and an individual human being with standing within the territory commonly known as Canada.
2. I am exercising my right NOT to take recognition as a person before the law.
3. I am not a person or any class of person.
4. I am the Beneficiary and Grantor of the account referred to as the juristic person [ADG].
ADG referred to his birth certificate and statement of live birth in connection with the last point.

In addition to the "Strawman" arguments, ADG also claimed that what was loaned to him by the mortgagee was nothing more than "book-entry credit created out of thin air", which constituted fraud.  The Court Master hearing this case did some research on the term "book-entry credit" and found that it had been discussed in a number of Australian court decisions.  The source of the "book-entry credit" argument appeared to be a book called "How to Screw 'Your' Bank".  The Master rejected this argument.

After granting the order sought by the mortgagee, the Master concluded her reasons with the following:

Beyond that, it would be a pity if ADG lost his home because he exercised poor discretion in his search for reliable sources of legal information. There are better alternatives than obsolete legal dictionaries, discounted texts like How to Screw ‘Your’ Bank, and Youtube videos of men scribbling on whiteboards. The decision is, of course, up to ADG, however, he should think carefully before he makes statements such as: 

I can find no law that authorizes book-entry credit and thus must conclude it is fraudulent criminal activity which I cannot take part in. ...

He cannot expect the courts to view him as a ‘fair dealer’. When he makes such statements the Court may be inclined to accept the alternative that ADG’s appearance in court is for an improper and ulterior purpose. If so, ADG can expect negative consequences.

Read the decision at: Crossroads-DMD Mortgage Investment Corporation v Gauthier.

Thursday, November 5, 2015

Grain Farmers of Ontario appealing neonicotinoid decision

Grain Farmers of Ontario ("GFO") is appealing the October 23 dismissal of its challenge to Ontario's neonicotinoid regulations.  That appeal is made to the Ontario Court of Appeal.  GFO is also making a motion to the Ontario Divisional Court for a review of the earlier Superior Court decision dismissing GFO's request for a stay of the regulation.  GFO says that, "We believe there are proper grounds for these steps".  GFO's news release can be found at: GFO Appeal.

This challenge by GFO still strikes me as an attack on government policy, something in which the courts are loathe to interfere (as was noted by Justice Akhtar in his dismissal of the case).  GFO's news release doesn't provide any details about the "proper grounds" for the appeal(s).  We may need to wait until the appeals are heard (if they proceed) and decisions rendered to see what "proper grounds" are being advanced.

Friday, October 30, 2015

NEB confirms that no standards exist for maintenance of depth of cover over pipelines after installation

The National Energy Board ("NEB") has just released its report into its investigation of various whistleblower allegations made against TransCanada PipeLines Limited (read the report here).  I haven't read through the report in full, but I was drawn to the section dealing with inadequate cover over a pipeline.  In its observations, the NEB notes that:

"Other than during the design and initial installation of the pipeline, CSA does not address requirements for maintaining the depth of cover during the life of the pipeline.  In a general sense, OPR section 6.5(1)(e) requires companies to: identify the hazards and potential hazards; assess the risk associated with those hazards; and implement controls to prevent, manage and mitigate those hazards.  TransCanada has recognized the low depth of cover as a hazard, has assessed the consequence of a hazard to be low because the site was in an unused, fenced in pasture area and has mitigated the risk by installing fencing to secure the site."

In other words, there is no regulation in place for NEB-regulated pipelines with respect to the depth of cover that must be maintained over a pipeline.  Once a pipe is installed, it is left to the company to determine what depth must be maintained over a pipeline to avoid potential hazards.  For people who have read through the CSA Standards applicable to pipelines (which requires an expensive licence), this gap in regulations was obvious.  In some cases, landowner groups have successfully negotiated agreements with pipeline companies requiring maintenance of depth of cover over pipelines to a specific minimum depth and requiring the payment of compensation where restrictions on land use are imposed.  But what about everyone else with a pipeline on their lands?

Isn't depth of cover an important enough component of pipeline safety that it should be the subject of specific prescriptive regulations?

Thursday, October 29, 2015

Grain Farmers of Ontario v. MOECC decision now available

Grain Farmers of Ontario ("GFO") has now posted a copy of the decision dismissing its challenge of Ontario's new neonicotinoid regulations at its website: 2015 ONSC 6581. GFO alleged that the regulations in their current form would cause irreparable harm to Ontario corn and grain farmers, and asked for a stay of the regulations until May, 2016 or "such time as the requirements of the Regulation can be met."  Justice S.A.Q. Akhtar of the Superior Court heard the case and declined to order a stay.  He also allowed the cross-motion by the Ontario Ministry of the Environment and Climate Change ("MOECC") ruled that GFO's application disclosed no reasonable cause of action. The application was dismissed on that basis.

On review of the GFO application, Justice Akhtar was "of the view that the application is concerned with the economic interests of the affected farmers rather than any property rights.  Prior to the Regulation, the farmers did not have an unrestricted right to use their lands as they wished but were subject to a highly regulated pesticide regime. ... If there is no constitutional challenge or allegation of ultra vires, then what is GFO's aim in making the application? ... In my view, GFO is not asking for a determination of rights that depend on the interpretation of the Regulation but a re-writing of that Regulation in a manner that would permit the effects of the Regulation to be delayed to its advantage.  It is not the job of this court to pronounce on the efficacy or wisdom of government policy absent the aforementioned constitutional or jurisdictional challenges, neither of which are made here...".

Thankfully for GFO, the MOECC did not seek any costs of the court proceeding against GFO (though GFO will most likely have incurred its own legal costs in the matter).  According to its website, GFO is evaluating its options and says that it has not conceded on this matter.

Federal Court of Appeal split on Chippewas of the Thames appeal of NEB Line 9B Decision

In a split decision, the Federal Court of Appeal has dismissed the appeal of the Chippewas of the Thames First Nation of the National Energy Board's approval of Enbridge's Line 9B Reversal and Line 9 Expansion Project.  At issue in the appeal was the Federal Crown's duty to consult with First Nations - was the NEB required as part of its decision-making process to determine whether the Federal Crown (which was not a party to the NEB process) was under a duty to consult First Nations with respect to potential adverse impacts of the proposed project and, if so, whether it had adequately discharged that duty?

Ryer, J.A., writing for the majority of the Court in dismissing the appeal, found that that the NEB was not required as a precondition to its consideration of Enbridge's application to determine whether the Federal Crown was under a duty to consult (or whether it had discharged that duty) because the Federal Crown was not a participant in the Enbridge application.  Justice Ryer noted that, if the Crown had appeared before the NEB, these issues could have been argued.  However, the Federal Crown did not participate in the NEB approval process.

Justice Ryer then went on to consider whether the NEB itself has the power to undertake and discharge the duty to consult with First Nations on behalf of the Federal Crown.  He noted that it is within the power of Parliament to require the NEB to discharge the Crown's duty to consult, but it has not done so by legislation.  He questions how the NEB could both carry out the duty to consult and then adjudicate on whether or it had adequately discharged the duty.  Yet, in a letter sent by the Minister of Natural Resources concerning the Enbridge project, the Minister suggested that the Federal Government "relies on the NEB processes to address potential impacts to Aboriginal and treaty rights stemming from projects under its mandate."

Nevertheless, Justice Ryer concluded that there was no delegation of the duty to consult by the Federal Crown to the NEB.  Therefore, any shortcoming in the NEB's consultation with First Nations could not stand as a reason for setting aside its decision to consider Enbridge's application and, ultimately, to approve it.

Justice Rennie of the Federal Court of Appeal provided a dissenting opinion on the case.  His opinion was that the Supreme Court's 2010 decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council meant that it was not necessary for the Federal Crown to be a party to the NEB proceeding in order for the NEB to be required to rule upon the Crown's duty to consult.  He viewed that decision of the Supreme Court as changing the law on the duty to consult.  As a result, Justice Rennie's opinion was the NEB must review the duty to consult in the context of a Section 58 application (like the Enbridge Line 9B application, which is not subject to final approval by the Federal Cabinet):

The Board must have, and exercise, the power to assess whether the duty to consult has been fulfilled, and to refuse to grant an approval if there is an unfulfilled duty to consult; otherwise the section 58 regime allows for the approval of projects which may adversely affect Aboriginal rights without the Crown ever consulting with the Aboriginal group in question. A project proponent can apply, go through the NEB's hearing process, and receive approval. The Crown can remain silent, on the sidelines. No consultation with the Crown need occur at any point. Indeed, the Crown lacks the statutory authority to prevent an application from being approved by the Board, even if it should want to.

Rennie, J.A. concluded that the NEB should have considered whether there was a duty to consult and, if so, whether it had been fulfilled.  And the NEB should only have granted approval to Enbridge if there was no unfulfilled duty to consult with First Nations.  Justice Rennie would have allowed the appeal.

Given the split in the Federal Court of Appeal on this appeal, this may very well be a case that will be heard by the Supreme Court of Canada.

The full text of the Federal Court of Appeal decision is available at: 2015 FCA 222.

Wednesday, October 7, 2015

Surplus Farm Residence Severances - Differing decisions from the OMB

Two recent decisions from the Ontario Municipal Board (OMB) have addressed the limits on severing surplus farm residences from larger farm parcels.  In one decision, the OMB declined to allow the severance of a parcel larger than about 1.5 acres on the basis that the proposed severance was not of "a minimum size" as required by the 2014 Provincial Policy Statement (PPS).  The farm landowner had requested a severance of approximately 5 acres from the existing 98-acre farm, including a residence and three accessory buildings.

In the other decision, the OMB approved the severance of approximately 86 acres out of a 102-acre farm.  The parcel to be retained by the owners, who were retiring from farming, contained a surplus residence, barn, and drive shed.  The balance of the farm (the severed 86-acre parcel) was apparently going to be conveyed to another area farmer to be used in conjunction with a larger operation.

These two decisions would appear to be at odds with each other.  In both cases, the applicant landowner was attempting to sever more than the minimum residence plus 1 acre because the severance of a larger parcel made more sense given the actual configuration and development of the property.  However, it is clear that in the case where the OMB declined to permit the larger severance, the OMB held that it did not have the evidence it needed from the landowner to go beyond the "minimum" severance.

Read the OMB decisions at: Simcoe (County) v Essa (Township) and McClary v. Middlesex Centre (Township).

Monday, September 14, 2015

Wetland Conservation in Ontario: A Discussion Paper

Wetland Conservation in Ontario: A Discussion Paper 

EBR Registry Number:   012-4464
Ministry: Ministry of Natural Resources and Forestry
Date Proposal loaded to the Registry: July 27, 2015

Description of Policy:

In 2014, the Ministry of Natural Resources and Forestry (MNRF) was given a mandate to work with other ministries, municipalities and partners to review Ontario’s broad wetland conservation framework and identify opportunities to strengthen policies and stop the net loss of wetlands. To achieve this mandate, in the future, the MNRF will develop a Strategic Plan for Ontario Wetlands that will identify a provincial vision, goals and objectives for wetlands in Ontario and set out a series of actions that the government will undertake over the next 10 to 15 years to improve wetland conservation across the province.

This discussion paper is meant to provide an overview of wetlands in Ontario and a summary of policies, programs and partnerships that form Ontario’s current wetland conservation framework. The paper will also present information on what others are doing and suggest priority areas on which the government could focus. The purpose of this paper is to provide information in order to stimulate ideas that will help inform the government on future actions that could be included within a Strategic Plan for Wetlands in Ontario.

Purpose of Policy:

The purpose of this posting is to seek feedback to help identify challenges and opportunities associated with wetland conservation in Ontario. This input will be used to inform development of a Strategic Plan for Ontario Wetlands that will guide the government’s actions over the next decade.

Other Information:

A link to the discussion paper is provided:

Public Consultation:

This proposal has been posted for a 95 day public review and comment period starting July 27, 2015. If you have any questions, or would like to submit your comments, please do so by October 30, 2015 to the individual listed under "Contact". Additionally, you may submit your comments on-line.
All comments received prior to October 30, 2015 will be considered as part of the decision-making process by the Ministry if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 012-4464.

All comments on this proposal must be directed to:
Rebecca Zeran
Program Advisor
Ministry of Natural Resources and Forestry
Policy Division
Natural Resources Conservation Policy Branch
Natural Heritage Section
300 Water Street
Peterborough Ontario
K9J 8M5
Phone: (705) 755-2551
Fax: (705) 755-1971 

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.

Other Public Consultation Opportunities:

Additional opportunities for engagement with key partners, stakeholders, municipalities and Aboriginal communities will be undertaken throughout the 95 day posting period.