2017 Harvest

2017 Harvest

Friday, December 24, 2010

"A contract to make a contract is not a contract"

In a recent decision, the Ontario Superior Court of Justice dismissed a breach of contract claim by one farmer against another in connection with the sale and purchase of wheat.  The Court noted that, "Because of the rapid price fluctuations in the grain market, oral contracts are the norm. Once the oral contract is completed it is normally followed up by reduction to written form, although not always." 

Mr. Kuratli, the plaintiff in the case, and Mr. Hefti, the defendant, had done business with one another in the summer of 2007. At a party for people of Swiss descent Mr. Kuratli asked Mr. Hefti if he had any corn available. Mr. Hefti had approximately 35 tonnes of corn. He agreed to sell it to Mr. Kuratli for $175 a tonne. Mr. Kuratli picked up approximately 20 tonnes near the end of September 2007 and paid Mr. Hefti for the load, but failed to pick up the balance of the tonnage at the agreed price. Mr. Hefti had to sell it at a loss. Thereafter Mr. Hefti decided that he would not do any further business with Mr. Kuratli unless he had a contract in writing.

The wheat purchase at the heart of the case before the Court was first arranged orally.  Then, as the Court found, Mr. Hefti's intention was that a written contract would be executed.  On the basis that no written contract was executed, the Court dismissed Mr. Kuraltli's claim for damages for the failure by Mr. Hefti to deliver wheat according to the arrangement.  The Court stated the law on the issue:
Where the intention of the parties is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. A contract to make a contract is not a contract: see Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 1991 CanLII 2734 (ON C.A.), [1991] 79 D.L.R. (4th) 97 (O.C.A.), and the cases cited therein.
Read the decision at: Sonibrand-Farm Inc. v. Ferme Rudolf Hefti Inc.

Thursday, December 23, 2010

National Energy Board releases its Farm Vehicle Crossing Rules


The National Energy Board (NEB) has now released its proposed answer to the question asked by any pipeline landowner familiar with the requirements of the National Energy Board Act: when may I cross the pipeline with my farm equipment?  At present, the NEB Act provides that no one may cross a pipeline with a vehicle or mobile equipment (which covers off just about any agricultural activity) without the permission of the pipeline company.  Now, with the new "guidance" in place, permission must only be sought from the company in specified circumstances.  An exemption order issued by the NEB means that crossings in "low-risk conditions" do not require any further company permission.

Does the NEB's answer satisfy the landowner concerns that have been expressed about the permission requirement?  Probably not.  For instance, permission from the pipeline company will still be required in the following circumstance:
Any use of heavy agricultural vehicles or mobile equipment that may not be able to safely cross the pipeline, especially pipelines with reduced depth of cover or other factors increasing the risk of crossing as identified by the pipeline operator.
"Heavy" equipment or vehicles are described in the NEB guidance document to include "large harvesters" or "large grain transporters".  As with the previous situation, the onus is left on the landowner to decide whether his or her equipment is "large". 

Also, pipeline depth of cover is a factor in determining whether permission is required.  However, pipeline companies are not required by the NEB to provide depth of cover information to landowners as of right.  In fact, it is likely that most pipeline companies are not aware of the depth of cover over top of their pipelines.  Again, the onus is on the landowner to find out what depth of cover is over the pipelines on their lands.  What happens if there is insufficient depth of cover to allow for ongoing farming practices?  The NEB guidance document provides no answers.

Read the full document at: Guidance for Safe Crossings of NEB-Regulated Pipelines Using Agricultural Vehicles and Mobile Equipment.

Wednesday, December 22, 2010

Farm labourer's "get a motel" constructive dismissal claim dismissed

Mark Isnor had been an employee of the Ueffing Farms Limited from June 22, 1997 to November 2, 2009, as a farm labourer and performed many varied tasks on the company’s hog farm in Canning, Nova Scotia.  Before a labour tribunal hearing, Isnor testified that in early September of 2009, there were two new employees who were hugging and kissing in the barn. He testified he did not say anything to the owners of the business although he did not believe it was appropriate behaviour for employees in the workplace. He testified this activity of hugging and kissing by the two young people went on 2 to 3 times a day, however, on cross-examination he restated and said the activity was frequent, but may not have been that often.

Isnor further testified that he did speak to the couple to say they should get a motel if they were going to do that activity. He testified this behaviour did not bother his work and he did not consider it a major concern other than he thought it was inappropriate behaviour in the workplace and told Donald Ueffing, an owner of the employer company, that it should stop.

Isnor quit his employment and then made a complaint to the Nova Scotia Labour Standards Tribunal in the form of a constructive dismissal claim (i.e. that his work environment had been allowed to become so poisoned that he had no choice but to leave his employment, as if he had been wrongfully dismissed).  The Tribunal dismissed the claim:
The Tribunal finds on the balance of probabilities from hearing the evidence and the testimony, and review of the exhibits, the Complainant quit his employment on November 2, 2009, and there has been no substantive evidence presented by the Complainant to show the workplace environment was so poisoned or destructive that was not remedied by the Respondent, such that he could not do his work. Accordingly, the Tribunal finds without some corroboration of the Complainant’s testimony, which did not occur at this hearing, there is no substantive evidence to support a claim for constructive dismissal from the evidence presented.
Read the decision at: Isnor v. Ueffing Farms Limited.

Tuesday, December 21, 2010

Amendments to Renewable Energy Approvals in Ontario designed to bring clarity

Amendments to O.Reg. 359/09 (Renewable Energy Approvals)

As a key pillar in supporting the development of Ontario’s green economy, the Ontario government established O. Reg. 359/09 (Renewable Energy Approvals) under the Environmental Protection Act, on September 24, 2009. The regulation governs the approach to regulating renewable energy generation facilities based on transparency and clear, up-front provincial rules, while ensuring that the environmentt and human health are protected.

Since the regulation came into force, certain provisions of the regulation have been identified as needing further clarity or detail to bring them in line with the original intent of the regulation. The Ministry has made amendments to the regulation to strengthen and clarify those provisions.  The amending regulation was filed with the Registrar of Regulations as Ontario Regulation (O.Reg. 521/10) on December 20, 2010.  The regulatory amendments come into force on January 1, 2011.

Public Consultation on the proposal for this decision was provided for 45 Days, from October 07, 2010 to November 21, 2010.  As a result of public consultation on the proposal, the Ministry received a total of 285 comments: 24 comments were received in writing and 261 were received online.

The Ministry considered all comments received during the comment period in response to the posting and made the following revisions to the amendments originally posted in the proposal notice:

Vacant lots

Ontario Regulation 359/09 identified the centre of a vacant lot as a noise receptor for the purpose of determining setback distances for wind energy and other facilities. Since the implementation of the REA process and during the EBR consultation period the Ministry heard a mixed opinion on the best approach to this issue. This amendment changes this approach to make it consistent with the Ministry’s 2008 Noise Guidelines, requiring a consideration of the existing zoning by-law and typical building pattern in the area when determining a more likely location for a future noise receptor. This approach will also allow for consideration of existing municipal zoning permissions and the typical local building patterns.

Definition of noise receptor

Ontario Regulation 359/09 described a noise receptor as a location for “overnight accommodation”. This amendment changes the definition of noise receptors from “overnight accommodation” to “dwelling” to better match the originally intended interpretation of a noise receptor – locations where there is a residence with cooking, eating, living, sleeping and sanitary facilities. In response to comments received in the EBR consultation, the definition of “dwelling” was further modified by replacing the words “intended to be used” with “capable of being used”. The Ministry is also clarifying that a dwelling can be either a permanent or seasonal residence. This definition of dwelling is based on the definition in the Building Code and is premised upon the existence of the infrastructure needed to support someone living in a dwelling.

Setback prohibitions and cumulative noise assessment

The wind turbine setback prohibitions in Ontario Regulation 359/09 required proponents to consider all noise receptors at the time of construction. This approach did not reflect the fact that the surrounding conditions could change between the time of approval and time of construction. This amendment changes the time at which a proponent must consider noise impacts to surrounding noise receptors, requiring proponents to consider all noise receptors at the time they make their site plan public. Proponents then have 6 months to submit an application with the noise receptors defined in that site plan. In response to comments received, the Ministry is adding the ability of the Director to extend the expiry date of the site plan beyond the originally proposed 6 months if the proponent cannot submit an application due to circumstances outside his or her control. This requirement to consider all noise receptors at the time the site plan is made public also applies to existing projects that have made their site plan publicly available prior to the amendment coming into force.

The amended regulation also requires proponents to consider all existing and publicly known projects in the surrounding area when determining their site plan and complying with the noise setback requirements. Considering all publicly known projects in the area may require larger set backs in the noise modeling, and will ensure the Ministry can assess the cumulative impacts of the proposed project.

Public notification of meetings

Ontario Regulation 359/09 required notice of public meetings 30 days prior to the first meeting. This amendment clarifies that public notice must be made 30 days prior to the first public meeting and 60 days prior to the final public meeting. This is to allow for additional consultation where necessary and avoid the need for notice of all public meetings to be made at the very start of the process. In response to EBR comments received, the Ministry has also extended the notice period for the final public meeting from 30 days to 60 days. The 60 day period is consistent with when draft reports must be made available to the public prior to the final public meeting and will enhance public engagement.

Public notification of Renewable Energy Projects

Ontario Regulation 359/09 required written notice of a project to all landowners within 120 metres of the project location. This amendment changes the notification requirements, requiring written notice to all adjacent landowners in addition to those within 120m of the project location. This amendment applies to all renewable energy projects. In response to EBR comments and concerns about wind energy projects in particular, the Ministry has also extended the 120 metres distance to 550 metres in the case of Class 3, 4, or 5 wind energy projects to better align with the minimum setbacks from noise receptors. The extension to 550 metres does not apply to small wind or other types of renewable energy projects such as solar, and does not impact the minimum setback prohibition for Class 4 or 5 wind facilities of 550 metres from the base of a turbine to a noise receptor. These amendments will encourage increased transparency and enhanced public engagement.

Public notification of an application being made to the Director

Ontario Regulation 359/09 did not require final documentation submitted to the Ministry to be made public. This raised concerns about transparency and whether or not the proponent took into consideration the comments received during the consultation. This amendment requires proponents to post all documents that accompany a REA application on the proponent’s website, should they have one. In response to the EBR comments received, this amendment further requires the proponent to provide public notice of their application being accepted for review by the Ministry. Within 10 days of their application being posted on the EBR by the Ministry, the proponent must publish a newspaper notice. The notice must include project information, the website where final documents can be viewed, and a statement that members of the public can submit comments to the Director via the EBR. This amendment will ensure that the public is aware of an application being submitted and of the EBR comment period. This rule does not apply to Class 2 wind facilities or to bio-energy facilities located at a farm operation. These amendments will encourage increased transparency and enhanced public engagement.

Municipal consultation

Ontario Regulation 359/09 required that the Ministry’s municipal consultation form be provided to the municipality 90 days prior to the final public meeting, and draft reports be made available 60 days prior to the final public meeting. While the intent was to give municipalities an early opportunity to learn about the project, without the documentation it proved difficult for municipalities to be meaningfully engaged. This amendment requires proponents to provide a draft Project Description Report and the Ministry’s municipal consultation form to municipalities at least 30 days prior to the first public meeting. Draft reports (but not the confirmation letters from other ministries) must be provided to municipalities 90 days prior to the final meeting. In response to EBR comments the Ministry has removed the requirement to provide the municipal consultation form 90 days prior to the final public meeting to avoid unnecessary duplication. Municipal consultation is an important part of the REA process and these amendments will better ensure municipalities can make informed and timely comments on the project proposed.

Wind turbine specifications report

Ontario Regulation 359/09 requires a wind turbine specification report for Class 3, 4 and 5 wind projects. The amendment requires that the specification report must include acoustic emissions data in accordance with Canadian Standards Association (CSA) standards. As a result of EBR comments received, the Ministry has also added the terms “measurement uncertainty value” and “tonality” to the specification report requirements.

Director discretion

Ontario Regulation 359/09 sets out specific requirements a proponent of each type of renewable energy facility must meet prior to submitting a REA application. This had created the unintended consequence of proponents not technically meeting the requirements where they were responding to public concerns (e.g. changing the public meeting location to accommodate increased public interest). This regulation was proposed to provide discretion in prescribed instances to the Ministry of the Environment Director where the requirement was not necessary for adequate understanding of potential negative environmental effects or satisfactory consultation. In response to EBR comments received, the regulation has been changed to clarify that this discretion can only be exercised if the Director is of the opinion that it will not compromise an adequate understanding of the negative environmental effects of a project, or if it will improve public consultation.

Transition

The regulation provides proponents that have already issued a notice under section 15 of the regulation with the flexibility to use the amended regulatory requirements for applications. The EBR proposal notice proposed to have proponents declare whether they intend to use the amended requirements by submitting written notice within 60 days of this regulation coming into force. In response to EBR comments, this has been changed to allow proponents to identify if they have applied the amended requirements to their project in the publicly available documents at the time of REA application. This flexibility only applies to those that have already issued a notice so as to not unfairly impact project timelines and consultation done to date.

The EBR proposal notice indicated that these transition provisions would only apply to Part IV of the regulation (where renewable energy approval requirements where identified). In response to EBR comments, the Ministry has also clarified that the transition provisions apply to the amendments related to the definition of vacant lots and woodlands.

In addition to the concerns described above, the Ministry received a large number of submissions through the Environmental Registry that were not specifically related to the proposed amendments, but related to the Government’s position on green energy. The most common themes were related to general opposition to the Government’s green energy agenda and wind energy project development in particular. Some specific comments were related to perceived health impacts, setbacks, property values and loss of municipal decision-making authority.

The MOE Statement of Environmental Values was considered in the development of these regulatory amendments. The regulation takes an ecosystem approach and supports the principle of pollution prevention by facilitating the development of renewable energy generation which is a cleaner, less polluting source of electricity than fossil fuel-based generation. These amendments encourage increased transparency and enhanced public engagement. Amendments are in keeping with the principle of continuous improvement, as changes will strengthen and improve existing requirements.

Monday, December 20, 2010

Drainage Appeal dismissed by Agricultural, Food and Rural Affairs Tribunal

The Baird municipal drain comprises a watershed of approximately 245 hectares of agricultural and wooded lands in the geographic municipality of the Township of Turnberry, now in the municipality of Morris-Turnberry. The drain is comprised of an open channel main drain and three branch drains, Branch A, Branch B and Branch C. Pursuant to a drainage petition filed by Bill Fralick, an engineer’s report was prepared providing for the construction of a new Branch D tile drain on the lands of Donald and Marion Eadie. The Eadies appealed the engineer’s report to the Agricultural, Food and Rural Affairs Appeal Tribunal. They asked that the report be amended to provide for the construction of a new drain outside of their lands. In the alternative, if the new Branch D tile drain was to remain on their property, then they asked for certain changes to the set up of the drain. The Eadies also asked that the allowances to be awarded to them as part of the project (the allowances being compensation for land taken and damages caused) be increased.

The Tribunal considered the appellants’ suggestion that the area requiring drainage could be diverted southerly to a different drain watershed.  However, the Tribunal noted that the appellants did not produce any professional evidence to substantiate that suggestion.  Therefore, the Tribunal accepted the engineer’s evidence.  It also considered the appellants’ request to move the proposed catch basis from the top of the drain to another location.  Again, the Tribunal accepted the engineer’s testimony on the reasons for which this proposed change could not be made.

With respect to allowances under Section 29 of the Drainage Act, the engineer testified that he obtained land sale data from Farm Credit Canada to establish a per acre land value of $4,000 used to calculate the allowances.  Mr. Eadie presented a letter from a Mr. Crispin showing the sale for parcels of land for prices higher than $4,000 per acre, but Crispin was not called to testify.  The Tribunal placed limited weight on that evidence.  Ultimately, the Tribunal found that the allowances under Section 29 of the Drainage Act provided in the engineer’s report were fair and equitable and in conformance with the Act. The Tribunal also found that the engineer’s allowances under Section 30 of the Act for crop losses determined to be $500 per acre were fair and equitable and in conformance with the Act.

Read the decision at: Baird Municipal Drain.

Saturday, December 18, 2010

B.C. Agricultural Land Commission prohibition on non-farm use upheld

Tree to Me Agricultural Products Inc. applied to the regional district of Okanagan Similkameen to have a 0.75 hectare portion of its lands designated for non-farm use.  The regional district referred the matter on to the Agricultural Land Commission.  The Commission granted the application on specific terms.  However, later the Commission revoked some of the terms and yet left in tact the requirement that Tree to Me register on title to the lands a covenant prohibiting the construction of any structures on the remainder of the property, which measured approximately 15.2 hectares.

Tree to Me applied for judicial review of that decision in the Supreme Court of British Columbia. Tree to Me had plans to develop the property, including plans for a proposed building.  The first floor of the building would be devoted to retail operations related to its production of fresh fruits and vegetables. The second floor of the building would include a residential suite for the manager, bed and breakfast units, and sleeping areas for workers.

The court found that the Commission had the ability to designate the building proposal as a non-farm use given the “excessive number of residential units”.  Also, the Commission found that, “absent sufficient evidence, the Commission is well within its rights to impose no-billed and other covenants, in appropriate cases, as part and parcel of regulating the use and development of agricultural lands in order to achieve its statutory object of preserving such lands.”  The standard of review for the Commission’s decision is one of reasonableness.  The court found, in the end, that Tree to Me had not satisfied the onus of showing that the decision of the Commission was unreasonable.  Therefore, Tree to Me’s petition against the prohibition on non-farm uses on the balance of its property was dismissed.

Read the decision at: Tree To Me Agricultural Products Inc. v. British Columbia (Agricultural Land Commission).

Friday, December 17, 2010

Saskatchewan farm sues Canadian Wheat Board for lost income, defamation

Hudye Farms of Norquay, Saskatchewan has launched a multi-million dollar lawsuit against the Canadian Wheat Board (CWB).  The action in the Saskatchewan Court of Queen's Bench seeks $247,699 from CWB for loss of income and other expenses.  The action also seeks $10 million in damages for breach of fiduciary duty and $15 million in exemplary and punitive damages.  The action seeks a further $25 million in a claim related to alleged defamation resulting from a notice sent out by CWB to Yorkton-area elevators.  The notice specifically named Hudye Farms.

The dispute arises out of a decision by CWB to downgrade 122.5 tonnes of wheat delivered by Hudye.  Hudye had a contract with CWB for delivery of 8,600 tonnes of Canada Western Red Spring Wheat, but CWB found that 122.5 tonnes of the wheat that was delivered contained 23.6 percent 606/Granite wheat, an ineligible variety.

Read an article about the lawsuit at: portageonline.com.

Thursday, December 16, 2010

York Region Article: Land dispute holds up 404 expansion

York Region Article: Land dispute holds up 404 expansion

Click on the link above to read about an ongoing fight over expropriation in York Region.  A Hearing of Necessity was held on September 21 of this year to determine whether the expropriation proposed for the expansion of Highway 404 was "fair, sound and reasonably necessary" as required by the Expropriations Act.  Five landowners involved have rejected the compensation offers made by the Ministry of Transportation (MTO) and there is also opposition to the Environmental Assessment proposed for the expansion project.  The MTO had originally projected 2012 for the start of operations of the expansion, but has now pushed the date back to 2013.

Wednesday, December 15, 2010

B.C. Court resolves nasty neighbour dispute over Sunshine Coast vista

A recent Supreme Court of British Columbia action arose out of a dispute between adjacent landowners in a rural area outside of Comox, B.C.  The dispute culminated in the defendant, Susan Field, erecting a wall of earth topped by a row of large concrete blocks, along a southern portion of the boundary between their properties.  The plaintiffs, Robert and Kathryn Silcox, said that this contravened an agreement they had reached with the defendant in April 2006.  Under that agreement, the plaintiffs had acquiesced in the defendant’s purchase of a road allowance which abutted their properties at the north end.  In return, they said, the defendant had agreed to do a number of things, including preserving their view – what they call their “viewscape” – over the southern end of the defendant’s land, out over the Straits of Georgia.  That view has been blocked by the wall.

The plaintiffs therefore sought an injunction compelling the defendant to remove the concrete blocks, vegetation, and fill installed by her after April 29, 2006, and restraining the defendant permanently from interfering with the view as it existed on that date.

In the end, the Court did not grant the injunction.  This decision is worth a read to see what events led the judge to determine that Ms. Field was entitled to keep the wall in place:
... in my view, removal of the wall would deprive the defendant of what measure of peace and security it has provided her. In my judgment, the plaintiffs’ behaviour subsequent to April 2006, in particular the malicious and high-handed damage to the defendant’s plants, which must be viewed in the context of their generally confrontational approach to defendant, and their numerous demands and objections, should entitle the defendant to leave to wall in place and relieve her of any obligations which could arise in law or in equity respecting preservation of the plaintiffs’ view. In my judgment, leaving the wall as-is would lead to a more equitable result than forcing its removal.

Read the decision at: Silcox v. Field.

Monday, December 13, 2010

Failures of High Pressure Natural Gas Pipelines Pose Significant Threat

Alliance Pipeline Limited (Alliance) has made an application to the National Energy Board (NEB) to be excused from a proposed requirement that it either replace its pipeline or lower its maximum operating pressure in the vicinity of a new casino development called Alexis.  The Alexis Casino will be located 92 metres from the centreline of Alliance's 36 inch diameter high pressure natural gas pipeline.  The NEB has previously stated to Alliance that it will need to modify its pipeline in the vicinity of the casino in order to bring the pipeline within Class 3 requirements (for higher density population areas).  Alliance wishes to leave the pipeline as is.

The NEB has now issued additional information requests to Alliance regarding its proposed operation of its pipeline near the Alexis Casino - NEB Letter dated December 10, 2010.  Appended to the information requests is a copy of a report entitled, "A MODEL FOR SIZING HIGH CONSEQUENCE AREAS ASSOCIATED WITH NATURAL GAS PIPELINES".  The report describes some of the destructive consequences of ruptures of high-pressure gas pipelines, including mushroom clouds, trench fires, jet fires and flash fires. 

Saturday, December 11, 2010

B.C. woman found in contempt of court for distributing raw milk for human consumption

Alice Jongerden was ordered by the Supreme Court of British Columbia to stop packaging and distributing raw milk for human consumption. The Fraser Health Authority, which obtained that injunction, alleged that Ms. Jongerden disobeyed the order and asked that she be found in contempt of court.  The Fraser Health Authority said that after the injunction was issued in March, 2010, Ms. Jongerden continued to distribute raw milk in the same manner and to the same recipients as before. Ms. Jongerden admitted she continued to distribute raw milk, but said she complied with the court order by labelling the product “not for human consumption”.

Ms. Jongerden operates a dairy farm, carrying on business under the name of “Home on the Range”. She disagrees with the public policy prohibiting the distribution of raw milk and believes consumers should have the right to choose it.  On July 9, 2009, she was ordered by the Public Health Inspector to “cease and desist the distribution of raw milk for human consumption”.  When that order was apparently not complied with, the Fraser Health Authority sought and obtained an interim injunction from the Court.

On a review of the circumstances, the Court concluded that Ms. Jongerden wilfully disobeyed the terms of the Order by continuing to distribute and make available raw milk to the same individuals to whom she previously provided it for human consumption.  Therefore, Ms. Jongerden was found to be in contempt of the Court Order.  However, the Fraser Health Authority had not yet asked that any specific penalty be imposed for Ms. Jongerden’s contempt of court.  The Court understood that Ms. Jongerden had, as a result of the interim order of Saunders J., ceased all production and distribution of raw milk products. As long as that would remain the case, the Court found that Ms. Jongerden would have purged her contempt and that there should be no need for the matter to proceed to consideration of a penalty.

Read the decision at: Fraser Health Authority v. Jongerden.

Friday, December 10, 2010

Nova Scotia Court upholds cap on dairy quota prices


Some Nova Scotia dairy producers applied to the Supreme Court of Nova Scotia challenging the authority of the Dairy Farmers of Nova Scotia (DFNS) to decrease the price of quota in the province.  DFNS regulations provide mechanisms to adjust a producer’s non saleable and saleable milk quota. They also create a capped price for the exchange of saleable milk quota. The capped price is being phased in over the period commencing in August 2009 through July 2012 and eventually will set a maximum value that is below the value currently being obtained in trading on the quota exchange.

The applicants’ principle challenge was to the purported authority to decrease the quota price. While they maintain support for a supply management system, they favor a quota exchange price that is market driven and not capped. They also seek to ensure that they do not otherwise lose valuable saleable quota already acquired.

At the heart of the dispute was a conflict between some dairy producers who seek to preserve the value of their investment in the dairy industry through unrestricted quota pricing, and those who fear that an unregulated quota price will render the financial structure of the industry unsustainable in the long term.  It is suggested, among other things, that an unrestricted quota price exchange will make it prohibitively expensive for new entrants to the industry.

The Court examined two issues: 1) whether the quota regulation was, prima facie, a proper exercise of the DFNS authority; and, 2) whether the effect of the regulations was to expropriate property without compensation (which can be done, but only where the legislation expressly permits expropriation without compensation) - de facto expropriation.  With respect to these issues, the Court ruled:
  • the power to adjust quota has been properly delegated to the DFNS under the Dairy Industry Act (DIA);
  • Regulation 21, fixing a price cap, is authorized by section 14(1)(e) of the DIA,  and in particular clause (iii) which authorizes  “...setting the terms and conditions on which the transfer [of quota among producers] may take place”;
  • Milk quota is not "property" for the purposes of the de facto expropriation argument;
  • Alternatively, if quota is "property", it has not been expropriated because the uses of quota have not been destroyed by the price cap;
  • Further in the alternative, if quota is property and has been expropriated, the legislation expressly provides for the price cap without any compensation (i.e. expropriation without compensation).
Read the decision at: Taylor v. Dairy Farmers of Nova Scotia.

Thursday, December 9, 2010

OPA FIT and Micro-FIT Program Updates

The OPA's November 22, 2010 is available at: OPA Bi-Weekly Update Report

Close to 23,000 applications have been filed for micro-FIT projects, of which 99% are solar PV projects.  Over 16,000 conditional offers have been made by the OPA, and close to 2,000 contracts have been executed.  The 23,000 applications represent 207 MW of potential power.

On the FIT program side, there have been over 3,700 applications:

Tuesday, December 7, 2010

Expropriation: B.C. Supreme Court comments on use of sales to expropriating bodies as evidence of "market value"

In August 1987, the Resort Municipality of Whistler, expropriated approximately 108 acres of land (the “Property”) from Rainbow Country Estates Ltd.  The Property fronts on Alta Lake, a warm water lake that is excellent for swimming. It includes a natural beach along a portion of the waterfront. There are very attractive views from the Property across Alta Lake towards the two main ski hills in Whistler, Whistler Mountain and Blackcomb Mountain. Alta Lake Road runs through the Property, in a north-south direction. A very popular public park, Rainbow Park, is now located along the lakefront.  At the time of the expropriation, Whistler valued the Property at $367,000, and paid that amount. 

Twenty-three years after the expropriation, the B.C. Supreme Court released a decision on the market value of the property.  Rainbow, the plaintiff in the case, relied on the market valuation provided by its appraiser Sandra Cawley and argued that the appropriate range for the market value of the Property as of August 1987 was between $1.7 million and $2 million.  Whistler, on the other hand, relied on the market valuation provided by its appraiser, Larry Dybvig, of $315,000.  If the Court were to accept Mr. Dybvig’s opinion, Rainbow would be entitled to nothing because it received more than this amount in August 1987.

In the end, the Court determined that the market value was $1.3 million in 1987.  In the course of coming to this conclusion, the Court had occasion to comment on the use of purchases by expropriating bodies as "comparables" in determining market value:
Mr. Dybvig’s thirteen comparables also included four where Whistler was the purchaser. The authors of The New Law of Expropriation comment on sales to public bodies having expropriation powers and say (at pp. 5-42 to 5-43):
It is a common practice of some expropriating authorities to acquire the land they require without resorting to formal expropriation. . . . Because of the ever-present power of expropriation, in many cases the owner cannot fit within the statutory definition of “willing seller”, and the transaction fails as evidence of “market value”. . . . While the owner under today’s legislation is closer to a position of equality than he or she was in the past, expropriation is still a harrowing experience. Many owners do not understand the advantages of the reform legislation and will settle for far less than what they might expect to receive after litigation before the tribunal and in the courts. Other owners cannot afford the delay caused by litigation, particularly in Ontario where interest paid on compensation is wholly inadequate. Some owners fear offending an authority which presently or in the future might exercise a discretionary administrative authority which affects or might affect their interests. Others are simply intimidated by the overwhelming power of the authority and its seemingly unlimited resources. Thus, in many cases the rationale behind the early rule is still valid. Other settlements which are made after full appraisals have been completed by each party and both parties have received competent legal advice can, absent other factors, be accepted as a valid expression of the parties’ perception of the market value of the subject property on the valuation date.
The authors comment further (at p. 5-43) that, in the absence of “convincing evidence” that such transactions are at arm’s length and completely free from any threat of expropriation, it will be an uphill battle to convince the tribunal that the transaction meets the statutory definition of a sale from a “willing seller” made in the “open market.” The party seeking to rely on such a sale has the burden to establish the sale was voluntary and unaffected by extraneous factors. However, the circumstances of these four transactions – where Whistler was the purchaser – have been left unexplained by Mr. Dybvig. Without evidence of the circumstances, I have no basis to conclude that the transactions in fact qualify as sales from a willing seller made in the open market.

The presumption that sales to expropriating authorities should be given no weight is also discussed in the text The Law of Expropriation in Canada, 2nd ed. (Scarborough: Thomson Carswell, 1992), at p. 201:

The party seeking to introduce and rely on sales of comparables to an authority must establish to the satisfaction of the tribunal that the “transactions may be regarded as voluntary in character.” In the absence of evidence that the sales were arm’s length transactions they will not be admitted, or, if admitted, given no weight.
The concern (reflected in the learned texts) is that involuntary sales do not reflect a sale in the open market by a willing seller. Non-arm’s length sales may not occur on the open market at all and may be affected by considerations between the non-arm’s length parties. However, Mr. Dybvig’s report did not include relevant information about the parties or indicate that Mr. Dybvig did any investigation of the circumstances of the transaction. As a result, the usefulness of many of Mr. Dybvig’s comparables is diminished, and my confidence that Mr. Dybvig is an impartial expert is further undermined.
One question raised by this decision, I suggest, is whether the "pattern of dealings" approach used in many pipeline expropriation cases is appropriate.  Should the fact that a company has been able to reach an agreement with a number of landowners under the threat of expropriation be determinative of the market value of a particular property? 

Read the B.C. decision at: Rainbow Country Estates Ltd. v. Whistler.

Thank you to one of my readers for bringing this decision to my attention.

Monday, December 6, 2010

Municipality discharges contaminated water into municipal drain

The Corporation of the Municipality of Lambton Shores and Landmark Tank & Tower Services Corp. Fined $50,000 for a Discharge of Contaminated Water

SARNIA - On October 18, 2010, The Corporation of the Municipality of Lambton Shores pleaded guilty to one violation under the Ontario Water Resources Act and on September 28, 2010, Landmark Tank & Tower Services Corp. pleaded guilty to the same charge of discharging contaminated water into the Hobbs McKenzie Drain.

The Court heard that the town hired the company to clean and inspect a drinking water standpipe in the Village of Arkona. When the standpipe was opened by the company, it was found to contain 2000 gallons of a red mixture of iron rich water and solids. The company pumped the material out of the standpipe and into the spillway that flowed into the municipal storm drain. Responding to complaints from a resident that the drain was running red in colour, ministry staff attended the site and confirmed the discharge.

The town and company were charged following an investigation by the ministry’s Investigations and Enforcement Branch.  The company was fined $30,000 and the town was fined $20,000 for a total of $50,000 plus victim fine surcharges. The company and town were given 60 and 30 days to pay their fines respectively.

Wednesday, December 1, 2010

Appeal of Wind Farm Approval in Chatham-Kent on the Environmental Registry








EBR Registry Number: 011-1039

Approval for a renewable energy project - EPA s.47.3(1)
Instrument Holder: Kent Breeze Corp. and MacLeod Windmill Project Inc.( Kent Breeze Wind Farms )
Instrument Issued by: Ministry of the Environment

 
Application for Appeal Initiated by:

Applicant Name:   Bill Wachsmuth

Decision under Appeal:
A Renewable Energy Approval issued to Kent Breeze Wind Farms, located in the Municipality of Chatham-Kent, for a Class 4 Wind facility consisting of eight wind turbine generators, each rated at 2.5 MW generating output capacity, with a total generation capacity of 20 MW.

 
Grounds for Appeal:
The Appellant is appealing the approval on the following grounds:
1. the lack of a Traffic Management Plan for the project, which was a condition of approval.

2. the proponent did not provide a plan for night lighting that will minimize the impacts on birds.

3. the turbines, which are not permitted to operate while under construction, should not be allowed to operate in foggy conditions once fully operational.
Read the Notice at: EBR Notice.

Tuesday, November 30, 2010

Dawn Gateway conducts open season for proposed pipeline

Dawn Gateway Pipeline Limited Partnership and Dawn Gateway Pipeline, LLC (collectively “Dawn Gateway”) is conducting a binding open season for firm transportation between MichCon’s Belle River facility and Union Gas’ Dawn Hub (“Dawn”). At least 80,000 Dth/d is available for a minimum term of 7 years.  Dawn Gateway first announced its international pipeline project in September 2008, and sought to have the pipeline regulated by the federal National Energy Board (NEB).  As a result of interventions before the Ontario Energy Board (OEB) by consumer groups and directly affected landowners, it was determined that the Dawn Gateway pipeline will fall within provincial jurisdiction.

The initial open season resulted in the sale of approximately 80% of the available capacity. In March 2010, Dawn Gateway received all required OEB approvals for the Canadian portion of the pipeline. Shortly thereafter, Dawn Gateway was approached by the anchor Shippers requesting a delay of the in-service date, delaying the construction of the pipeline.

Read more about the open season at: Dawn Gateway Open Season.

Tuesday, November 23, 2010

Burford, Ontario farmer denied permission to exceed quota to make up for past undermarketing

Victor Osztrovic farms in the Burford area. The farm is a mixed cash and specialty crop operation (including tobacco) and since 2002 Osztrovic has been a chicken producer holding production and marketing quota of 66,841 kilograms (kgs.) in each quota period. The quota is issued to him by the provincial regulator, Chicken Farmers of Ontario (CFO).

Early in 2009, Osztrovic experienced higher than usual bird mortality and as a result, he ended that quota period marketing 12,783 kgs. below his quota of 66,841 kgs.  The chicken industry describes the marketing result Osztrovic experienced as "undermarketing".  Undermarketing is significant to chicken producers because in the usual course of business they cannot make up the lost opportunity represented by that 12,783 kgs. due to the operation of the quota system.  As an example, in the usual course of business Osztrovic could not simply increase his production in a future quota period by the lost 12,783 kgs. since doing so would put him over his quota and expose him to penalty levies on his excess production and a corresponding quota reduction.

However, CFO has enacted Quota Policy 170-2005 that addresses undermarketing.  Section 2.22 of that Policy permits an undermarketed producer like Osztrovic to re-grow up to 10% of his quota allocation, or 6,684 kgs., spread over two future quota periods.  The Policy operates to "exempt" that 10% production "re-grown" from the otherwise strict operation of the quota, which would entail penalty levies and a quota reduction.

Osztrovic, however, wanted the opportunity to re-grow all 12,783 kgs. that he lost.  He applied to CFO seeking relief above and beyond the 10% allowed in section 2.22 of the Policy.   CFO denied Osztrovic's requested policy relief and he then appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under section 16(1) of the Ministry of Agriculture, Food and Rural Affairs Act (MAFRAA).

In denying his appeal, the Tribunal said the following:
In the circumstances and facts of this case, the Tribunal declines to grant Victor the requested relief.
CFO developed the undermarketing policy as a "fault free" entitlement. Producers can access the 10% re-grow entitlement if they undermarket for any reason [emphasis added]. The evidence is clear that CFO developed that policy to address undermarketing arising from weather conditions, among other factors. However, the policy contains no threshold criteria. Producers who undermarket due to laziness or negligence or poor chick quality or bad feed or mechanical failures or weather conditions can all access the undermarketing policy and re-grow up to 10% of their quota.

In a quota based regulatory system, exemptions are the exception rather than the norm. In the case of chicken quotas, the CFO has created a standing exemption arising from undermarketing through its Quota Policy 170-2005, section 2.22. That Policy allows producers who undermarket to re-grow the lost kilograms to a maximum of 10% of quota over two future quota periods.

If everything that happened to cause undermarketing gave rise to an exception, the quota policy would become meaningless and that would undermine the regulatory regime. That is even more so where there is a standing exemption as in section 2.22 of the Quota Policy.

Therefore, the Tribunal concludes that to obtain relief above and beyond the undermarketing Policy, Victor must satisfy us, on a balance of probabilities, that something truly unique and exceptional occurred to cause the undermarketing.

Probably more than any other businesses, farmers are particularly at the mercy of the weather. However, weather conditions, even extreme weather conditions such as Victor experienced, are not unique and exceptional in Ontario.

The Tribunal is not satisfied that there was anything truly unique and exceptional about the weather event that resulted in the barn conditions that caused Victor's crop loss.
Read the rest of the decision at: Victor Osztrovic vs Chicken Farmers of Ontario (CFO).

Monday, November 22, 2010

County in Alberta calls for minimum 2 metres depth of cover over federally regulated pipelines

In a letter of comment filed with the National Energy Board (NEB), the County of Strathcona said the following about proposed crossing permission requirements for agricultural landowners and minimum depth of cover over pipelines:
Strathcona County and the Strathcona County Energy Exploration Committee (a Committee of Council) has the following comments regarding the draft Guidance for Safe Crossings of NEB-Regulated Pipelines Using Agricultural Vehicles and Mobile Equipment:

Fundamentally; the pipeline industry should be held to task to provide the landowner with an agreement to "farm" his land prior to building the pipe; putting the owness on the landowner to request a crossing agreement from the company once the pipe is installed is not a process that many farmers would be aware of. However we are cognizant of the fact that "farming" practices are ever changing and Strathcona County does not condone putting farmers at risk. In this regard we support the draft as it applies to existing pipelines.
 
Moving forward we propose the consideration of a 2 (two) meter depth cover for future pipeline installations to alleviate the need for many of the safety and integrity concerns currently expressed by the agricultural community and industry. While there will still be a need for special considerations and communication between the parties this would allow for both to conduct their business with minimal crossing issues. We realize there could be an economic impact with this action but suggest that safety and reduction of future conflict may assist in offsetting that cost.

Strathcona County is a mixture of urban and rural land uses with approximately 250,485 acres of farmed land and a total of 771 farms. [emphasis added]

Wednesday, November 17, 2010

Trucking company fined for failure to clean up diesel spill due to frost

November 8, 2010

DAY & ROSS INC. FINED $10,000 FOR FAILING TO COMPLY WITH A PROVINCIAL OFFICER ORDER

KENORA, ON – On October 14, 2010, Day & Ross Inc. pleaded guilty to one violation under the Environmental Protection Act for failing to remove spilled diesel fuel from an accident site.

The Court heard that on April 1, 2009, a tractor-trailer driven by an independent operator on behalf of the company left the roadway of Highway #17 in poor road conditions due to weather. The accident occurred approximately 30 kilometers east of Kenora. As a result, the fuel tanks ruptured and an estimated 170 litres of diesel fuel escaped into the south ditch adjacent to the highway. On April 2, 2009, the Ministry of Transportation reported the accident to the Ministry of the Environment, who attended the site. On April 3, 2009, ministry staff returned to the accident site with an environmental consulting firm retained by the company to assess and remediate the site. On April 8, 2009, a Provincial Officer Order was issued to the company ordering the it to remove the spilled diesel fuel from the accident site, handle the recovered fuel and other waste in accordance with provincial legislation and restore the site to its original condition by April 21, 2009. Due to environmental conditions, namely the presence of frost, the company did not comply with the order to clean up the spill until approximately 40 days after the date required by the order.

The company was fined following an investigation by the ministry’s Investigations and Enforcement Branch.

The company was fined $10,000 plus a victim fine surcharge and was given 90 days to pay the fine.

Tuesday, November 16, 2010

Fines levied against Kingston area lawn care companies for herbicide use

November 8, 2010

TYMACK INCORPORATED O/A NUTRI-LAWN KINGSTON AND ROBERT BAXBY FINED $10,486 FOR USING BANNED PESTICIDES

KINGSTON & BELLEVILLE – On October 14, 2010, Tymack Incorporated operating as Nutri-Lawn Kingston and Robert Baxby were each convicted of four violations under the Pesticides Act for using a prohibited Class 9 Pesticide for cosmetic use and failing to post signs as per regulations.

The Court heard that Mr. Baxby is the manager and sole director of Tymack Incorporated operating as Nutri-Lawn Kingston, who has been providing lawn care services in Belleville and Kingston. On April 24, 2009, Mr. Baxby met with ministry staff in Kingston to discuss the new cosmetic pesticide ban, and the requirements of the ban were explained to him. Mr. Baxby was strongly encouraged to comply with the new ban. On August 13, 2009, the ministry received a complaint that company trucks and employees were applying chemicals to control weeds at a site in Kingston, leaving a strong odour. Ministry staff attended the site and confirmed that the company had sprayed that morning. There were also no signs posted. On August 19, 2009, an examination of the turf areas at the site revealed vegetation with abnormal growth patterns, characteristic of exposure to Class 9 Pesticides.

On October 8, 2009, the ministry received several complaints related company employees using a mixture in the spray tank at a site in Belleville. Again, no signs were posted and the results of samples taken from the tank confirmed high concentrations in the Class 9 category and therefore, a banned substance.

The company was charged following an investigation by the ministry’s Investigations and Enforcement Branch.  The company was fined at total of $10,486 on two charges, plus a victim fine surcharge and given 12 months to pay the fines.

October 15, 2010

KEVIN CROSS FINED $12,000 FOR USING BANNED PESTICIDES

KINGSTON – On September 30, 2010, Kevin Cross was fined $12,000 for using, causing, or permitting the use in, on, or over land of a pesticide, contrary to amendments made under the Pesticides Act.

The Court heard that Mr. Cross owns a lawn care and pest control company in Kingston. From May to August 2009, the ministry had received reports that the company had been applying banned herbicides to three residential properties.

Mr. Cross was charged following an investigation by the ministry’s Investigations and Enforcement Branch.  Mr. Cross was fined $12,000 plus a victim fine surcharge and was given one year to pay the fine.

Monday, November 15, 2010

Appeal Tribunal "disturbed" by actions of municipality in performing its Drainage Act duties

In allowing an appeal by Rein Minnema of Glencoe, Ontario against a report of a Drainage Engineer for the Municipality of Southwest Middlesex, the Agricultural, Food and Rural Affairs Tribunal criticized the municipality for its actions leading to the creation of the report.  The report concerned the Miller Drainage Works 1969 and Minnema asked that it be amended to provided for enclosing the open channel of the drain on his property.  The enclosure was actually part of the original report of the Drainage Engineer in 2006, but the Municipality ignored that report and instructed the Engineer to go in a different direction.  In the view of the Appeal Tribunal, this instruction exceeded the jurisdiction of the Municipality:
The Tribunal is disturbed by the actions of the Municipality in performing its duties under the Act, beginning with Council's consideration of the Engineer's preliminary report at their meeting of March 15, 2006. The Engineer's preliminary report provided three options for the enclosure of the drain in response to the original request by Mr. Minnema to have the drain enclosed. However, after hearing complaints from upstream landowners, Council chose to ignore the Engineer's recommendations contained in his preliminary report and restated in his letter attached to the municipal staff report. Instead, they opted to proceed in a completely different direction by instructing the Engineer to prepare a report based on installing an access culvert and erosion protection. It was this Council action that appears to have initiated a nearly 5 year litany of events which led to the preparation and consideration of three versions of final reports, with the recommendations in each successive report becoming progressively further removed from Mr. Minnema's original request for an enclosure and the recommendations of the Engineer in his preliminary report. During the process, Council provided specific instructions to the Engineer to modify his recommendations and design parameters, including changing the report from a drain enclosure to a culvert, deleting erosion protection and the upsizing of the access culvert from a 1 in 2 year to a 1 in 5 year design standard.
The Tribunal finds that Council for the Municipality exceeded their jurisdiction under the Act by exerting undue influence on the Engineer which prejudiced the Engineer's independent judgment.

The Tribunal is also disturbed by the Engineer's passivity in complying with Council instructions to make significant changes to his recommendations and design parameters. In his letter to the Municipality of January 14, 2007, which was attached to the staff report to Council dated February 11, 2010, the Engineer clearly stated that the best solution to address problems, including surface water and erosion, was the installation of a tile drain generally following the existing channel with outlets for surface water. During the hearing, the Engineer testified that he is still of the opinion that the erosion issues at the outlet of the existing tiles need to be addressed, yet this work is not included in the current Report. He also testified that the design standard for an agricultural access culvert is normally a 1 in 2 year storm, yet the culvert in the Report has been upsized to a 1 in 5 year storm. Furthermore, he testified that he still stands by his recommendation to enclose the drain as described in his preliminary report, yet the current Report has no such recommendation. He said that he made the changes to the reports in order to comply with the Council instructions.

The Tribunal finds that the Engineer allowed himself to be unduly influenced by Council and failed to exercise independent judgment in preparing his final reports, including the current Report.

In view of the above, the Tribunal finds that the Engineer's Report under consideration does not represent a "true report" as referenced under Section 11 of the Act.
Read the entire decision at: Miller Drainage Works 1969.

Saturday, November 13, 2010

ProPublica reports on severe corrosion problems in BP Alaska pipelines

An internal British Petroleum (BP) report shows that, as of October 1, 2010, at least 148 BP oil, gas and waste pipelines in Alaska received an "F-rank" from the company.  ProPublica.org, which obtained a copy of the report, explains the "F-rank":
According to BP oilworkers, that means inspections have determined that more than 80 percent of the pipe wall is corroded and could rupture. Most of those lines carry toxic or flammable substances. Many of the metal walls of the F-ranked pipes are worn to within a few thousandths of an inch of bursting, according to the document, risking an explosion or spills.
Read the rest of the article at: ProPublica.org.

Tuesday, November 9, 2010

Express Pipeline abruptly withdraws its application to abandon leaky oil pipeline in place

In a previous post, I reported on an application by Express Pipeline (Kinder Morgan Canada) to abandon a leaky oil pipeline in place.  Express intended to ask the NEB to allow it to build a new pipeline adjacent to the old one.  Yesterday, Express wrote to the NEB to withdraw its abandonment application without giving any reasons: November 8, 2010 Withdrawal Letter

Monday, November 8, 2010

Appeal Tribunal dismisses part of Ontario Chicken Farmer's appeal of CFO policies


Part of an appeal launched by Henry Bos against a decision of the Chicken Farmers of Ontario (CFO) has been dismissed by the Agriculture, Food and Rural Affairs Tribunal on a preliminary motion by the CFO.  The Bos appeal is described in a previous post on this blog

The CFO based its preliminary challenge of the appeal of 2005 policies on three grounds:
1.The appellant has known of the 2005 policies for more than a year and the Tribunal should therefore exercise its discretion to refuse to hear the appeal under subsection 16(4) of the MAFRAA.
2.The appellant is not aggrieved by the 2005 policies within the meaning of subsection 16(2) of the MAFRAA.
3.The appeal of the 2005 policies is vexatious within the meaning of subsection 16(4)(b) of the MAFRAA.
In allowing the motion, the Tribunal concluded that the following factors combined to militate against permitting Mr. Bos to continue with this appeal of the 2005 policies:
  • the fact that CFO developed the 2005 policies in a negotiated process directed by the Commission and involving the regulator representing producers (CFO) and the processors (OIPP and AOCP)
  • producers and processors alike have ordered their business affairs based on the 2005 policies and have operated under that system for the past four years
  • the fact that at least four years have passed since CFO enacted the 2005 policies
  • the fact that Mr. Bos did not appeal the 2005 policies before the introduction of the 2009 policies suggests that his real complaint lies with the 2009 policies and not the 2005 policies
  • the prospect of a fundamental change in the processor allocation system after sixteen years of some form of assurance of supply
Read the decision at: Henry Bos v. Chicken Farmers of Ontario.

Friday, November 5, 2010

Ontario - Birds and Bird Habitats: Updated Guidelines for Wind Power Projects

The Green Energy Act 2009 (GEA) places a priority on expanding Ontario’s use of clean and renewable sources of energy, including wind power. A key element of the GEA is a new integrated approval process that establishes clear up-front requirements for most renewable energy projects. These requirements are outlined under the Ministry of the Environment’s (MOE) Renewable Energy Approval (REA) regulation (O.Reg. 359/09) and the Ministry of Natural Resource’s (MNR) Approval and Permitting Requirements Document (APRD).

The REA regulation describes the requirements for wind power projects related to significant natural features, including significant wildlife habitat. Birds are an important part of Ontario’s biodiversity. To provide further clarity and certainty on the renewable energy approval requirements for wind power, MNR has prepared updated Guidelines for application to both Crown and private lands.

The Guidelines address the new requirements of the REA regulation, incorporate new North American science and information and provide guidance on identifying and addressing potential negative effects on birds and bird habitats during the planning, construction and operation of wind power projects by:
focusing pre-construction monitoring on identification and evaluation of bird habitats to consider potential impacts of wind power development on birds and bird habitats;
identifying methods for evaluating the significance of candidate bird significant wildlife habitat and adopting a habitat setback approach, with assessment and monitoring based on proximity to significant habitat;

establishing of post construction bird mortality monitoring requirements for all onshore wind power projects, via an environmental effects monitoring plan; and

establishing a requirement for an additional two years of scoped monitoring when a threshold of bird mortality exceeds:

• 18 birds/ turbine/year;

• 0.2 raptors/turbine/year (all raptors);

• 0.1 raptors/turbine/year (raptors of provincial conservation concern); or

• 2 raptors/windpower project (<10 turbines).
This proposal has been posted for a 45 day public review and comment period starting November 05, 2010. If you have any questions, or would like to submit your comments, please do so by December 20, 2010 to the individual listed under "Contact". Additionally, you may submit your comments on-line.

All comments received prior to December 20, 2010 will be considered as part of the decision-making process by the Ministry of Natural Resources if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 011-0112.

All comments on this proposal must be directed to:

Kathleen Pitt
Program Officer
Ministry of Natural Resources
Policy Division
Renewable Energy Program
300 Water Street
Floor 5
Robinson Place South Tower
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5321
Fax: (705) 755-1206

ABlawg.ca: "Alberta makes significant progress in establishing a legal and regulatory regime to accommodate carbon capture and storage (CCS) projects"

Professor Nigel Bankes of the University of Calgary has posted an article on ABlawg.ca about legislative changes in Alberta to allow for the development of carbon capture and storage projects.  These changes include a provision vesting pore space (into which carbon would be injected) in the Crown and provisions designed to move long term liability from operators to the Crown.

Read the article at: Carbon Capture and Storage Projects.

Wednesday, November 3, 2010

Red Lily Wind Farm - Court Decision denying injunction

In a previous post, I wrote about a Saskatchewan landowner who may face a costs order as a result of a failed application for an injunction to prevent the Red Lily Wind Farm project from moving forward.  The decision denying the injunction is now available to read at: McKinnon v. Martin no. 122 (Rural Municipality)

The Court rejected outright the evidence of the expert witness put forward by those seeking the injunction:
If Dr. Nissenbaum could be considered an expert to provide opinion evidence on the issue surrounding the granting of the injunction, there are two further reasons to reject his evidence. The first is that he has assumed the role of advocate. A review of his affidavit No. 2 especially shows that he does not take an objective approach to the issues at hand. He passionately believes in the harmful health effects of wind turbines from his own survey on the Mars Hill project and has made that the basis for his foray into an area that he has little real knowledge of. It is clear from the content and tone of his second affidavit that he has no objectivity in respect of the issues. Secondly, in addition to the leaps of logic that were contained in para. 17 of both affidavits, he makes bold, unsupported statements on issues critical to the injunction.
Having rejected the evidence of the plaintiff's expert in favour of the project proponent's expert, the Court found that the test for an injunction had not been satisfied. 

Tuesday, November 2, 2010

"Lawyers called to help in green energy battle": Law Times

Read the article by Daryl-Lynn Carlson on green energy development and Ontario landowners at: Law Times News.  I was one of the lawyers interviewed for the article.

Monday, November 1, 2010

Express Pipeline applies to abandon leaky oil pipeline in place, then build new line next to it

Kinder Morgan Canada ("KMC"), on behalf of Express Pipeline Limited Partnership ("Express"), has applied to the NEB for permission to abandon in place a leaky oil pipeline in Alberta.  KMC says that there have been three leaks in the pipeline to date and that efforts to correct the problems are too costly:
The ongoing cleaning program (pigging) on the Husky lateral is unlikely to effectively mitigate these same sharp deep anomalies because the brushes would not be expected to penetrate to the bottom of these pits to arrest the active corrosion. Since 2007, Express Pipeline has completed numerous digs and repairs on the 1.3 kilometer pipeline and spent in excess of $4.3MM in repairs and inspections. It is evident that the Husky lateral’s internal corrosion problem cannot be effectively mitigated by combining regular cleaning with periodic ILI, and that this line should remain out of service until a more effective program is implemented or the line is replaced.
The application can be viewed at: Express Pipeline Abandonment.

Sunday, October 31, 2010

Ontario aiming to improve Conservation Authority permitting process for applicants

As part of the Open for Business initiative of the government, the Ministry of Natural Resources is proposing amendments to Ontario Regulation 97/04, (the “Content of Conservation Authority Regulations under Subsection 28 (1) of the Act: Development, Interference With Wetlands And Alterations to Shorelines and Watercourses”) under the Conservation Authorities Act. The proposed amendments are intended to simplify and streamline the permitting process that conservation authorities undertake under Section 28 of the Conservation Authorities Act through 36 individual authority regulations.

The proposed amendments are also intended to support conservation authority compliance with the timelines for decisions on Conservation Authority Act Section 28 permit applications outlined in the ‘Policies and Procedures for Conservation Authority Plan Review and Permitting Activities’ document (‘Policies and Procedures’ document) previously posted to the Environmental Registry (Environmental Registry # 010-8243). The ‘Policies and Procedures’ document forms a chapter of the Conservation Authorities Policies and Procedures Manual that guides provincial aspects of conservation authority operations. The intent of the chapter is to describe the roles of conservation authorities in municipal planning and plan review, and under the Conservation Authorities Act Section 28 permitting related to development activity and the protection of environmental interests.

The Ministry is streamlining the permitting process by:
Enabling the conservation authority to delegate its powers under the regulation including the power to make positive permit decisions to the conservation authority’s executive committee or conservation authority employees.

Extending the maximum period of validity of a permit from 24 months to 60 months.
The anticipated environmental consequences of the regulation proposal are considered to be neutral. The improvements to the permitting process are for the applicant or development proponent and do not impact what the conservation authority regulates or by what considerations.

The anticipated social consequences are positive to neutral. This proposal is intended to reduce wait times for a decision on a permit for an applicant or development proponent for straight forward and uncomplicated development activities. For larger development applications and proponents the proposal is intended to reduce frustration, cost and duplication of effort in having to re-apply for a permit where a development project may require permits or approvals from other regulatory bodies that cannot be reasonably obtained before the expiration of the Conservation Authorities Act Section 28 permit. This is intended to improve business relationship between the conservation authorities and applicants or development proponents for Conservation Authorities Act Section 28 permits.

The anticipated economic consequences are positive to neutral. The amendments streamline the permit process by delegating positive permit decisions to conservation authority staff. Currently the Conservation Authority Board which met generally monthly make all permit decisions, by delegating to staff, wait times for some permit decisions are reduced for the applicant. With the extension of the validity of a permit from 24 months to 60, this may reduce the requirement for larger development proponents to need to re-apply for a permit while waiting for other approvals from other regulatory bodies or given extended construction timelines.

All comments on this proposal must be directed to:


Chris Popovich
Great Lakes & Water Policy Section Intern
Ministry of Natural Resources
Policy Division
Biodiversity Branch
Great Lakes & Water Policy Section - Peterborough
300 Water Street
Floor 5 South
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5591
Fax: (705) 755-1957

Monday, October 25, 2010

Ontario livestock trucker fined for obstructing inspector attempting to euthanize cow

A Justice of the Peace in Cayuga, Ontario has convicted Frank DeBoer of one count of obstructing a veterinary inspector under the Livestock Community Sales Act.  The court found that DeBoer obstructed a veterinary inspector in the course of her duties under the LCSA at the Hagersville Livestock Auction. The inspector was prevented from euthanizing a lame cow that was not medically fit to be transported without undue suffering. The offence occurred on or about August 31, 2009.  Justice of the Peace Dan MacDonald sentenced DeBoer to a fine of $800 plus a victim fine surcharge of $125.

The Better Farming website has a follow-up story on this court case which raises some questions about whether or not the animal required euthanization at all.  Apparently the animal was returned to its owner, had its hoof trimmed, and was sold ten days later at auction without incident.  Read the Better Farming story at: trucker-obstructed-livestock-inspector-court-rules.

Thursday, October 21, 2010

W.Va. property owners sue over canceled gas leases

Range Resources Corp.
More than 100 northern West Virginia property owners have sued Range Resources Corp. in Federal Court accusing the company of cheating them on natural gas leases.  Range allegedly cancelled leases with landowners that offered $3,500 per acre plus a 17% royalty when gas prices began to fall in 2008.  A Range spokesman says that the leases were signed, but that all Range leases require "management approval", which was not forthcoming.  The landowners say that company land agents or "landmen" had told them that the approval was a mere formality and that they turned down offers from other companies in reliance on the Range offer.

Read about the case at: The Charleston Gazette - West Virginia News and Sports.

Wednesday, October 20, 2010

Smith v. Alliance Supreme Court Hearing Video Online

"This has been a long and perplexing case for Mr. Smith, an 82 year-old farmer from central Alberta." 

Video of the recent hearing of the Smith v. Alliance Pipeline case by the Supreme Court of Canada is available on-line at: SCC Webcast.  The video seems a bit slow, but if you start it and hit pause for a while, it might buffer enough to allow it to play smoothly from that point forward. 

Tuesday, October 19, 2010

Saskatchewan cattle producer liable for $500 fine for moving cattle without tags

In a recently released decision, the Canadian Agricultural Review Tribunal has upheld a Notice of Violation and a $500 fine against a Saskatchewan rancher who had alleged moved cattle from his farm without proper CFIA tags.  Cecil Coward testified that he is a farmer/rancher in southwestern Saskatchewan and, with his wife, have 175 cow/calf pairs.  In 2009, he transported 125 pairs to his own pastures and 50 pairs to the Shamrock Community Pasture.  He transported the 50 pairs on May 19 in two loads.  After he was home again that morning, he received a call around 11:30 a.m. from the Pasture Manager telling him that some of his cows were missing their RFID-CCIA approved tags.
Once again in this decision, Dr. Donald Buckingham takes note of the practical difficulties in ensuring 100% compliance with the tagging requirements of the Health of Animals Regulations:
Practical difficulties arise in attempting to have 100% of Canadian cattle, bison and sheep tagged with approved tags. Some animals, requiring identification pursuant to Part XV of the Health of Animals Regulations, may never be tagged, through neglect or opposition to the present regulatory scheme. Most animals, however, will be tagged, but, even among these, some will lose their tags somewhere between the birthing pen and the slaughter house floor. To minimize “"slippage"” and to maximize the number of animals that are tagged with approved tags for the full duration of the animal's life, the Health of Animals Regulations require several actors in the production chain to tag animals which are either not yet tagged or which have lost their tags. If actors inside or beyond the farm gate do not tag, as required by the Health of Animals Regulations, they too face liability when tags are missing. Owner and transporters of sheep are among those identified under the Health of Animals Regulations with such responsibilities. The Agency has the responsibility of ensuring compliance with these provisions either through criminal prosecutions or through the levying of administrative monetary penalties for violations identified in the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.
For the purposes of this case, such approved tags are RFID-CCIA approved tags made of plastic bearing a front piece printed with a bar code and a back button which, when applied to an animal's ear, is meant to lock the tag into place permanently. Such a permanent locking device would permit farm-to-processor tracking and thus meet the objectives of the Regulations to establish a permanent and reliable system to track the movements of all bison, cattle and sheep in Canada from the birth of such animals on their “"farm of origin"” to their removal from the production system, either through export or domestic slaughter. Almost every system of mandatory identification is, however, subject to mechanical failure or human error.
The evidence in this case is that the system that the Regulations rely upon, or perhaps more accurately the equipment and technology to support that system, does not establish a permanent and infallible system to track the movements of all bison, cattle and sheep in Canada. The Tribunal accepts the evidence of Coward that on May 1, 2009, he tagged all of his cattle with RFID-CCIA approved identification tags. If there was human error in the application of the RFID tags on May 1, 2009, there was no evidence of it presented at the hearing. The Agency and its officials were never at the Coward farm and there is no evidence which contradicts the testimony of Coward and his wife on this point. [emphasis added]
However, Buckingham could not overlook that 10 of Coward's cows were found in the Shamrock Community Pasure without approved tags.  He found that, on a balance of probabilities, CFIA had proven that at least one and up to ten of the cows had been loaded on May 19 without a proper tag.  Unlike in the recent Habermehl case, there was an admission by Coward here that he had not verified each cow as it was loaded for travel to the pasture.  Buckingham found it likely that at least one tag fell out between the time they were applied on May 1 and the time the cattle were loaded on May 19.

As usual with the regulations, the Tribunal has no discretion once it has found that the CFIA has proven its case on a balance of probabilities:
The Tribunal finds that the Agency has, therefore, made out all of the essential elements of this case. The Tribunal has no reason to doubt Mr. and Mrs. Coward's assertions that “"due to drought + the price of cattle it is hard enough to make a profit"” (statement by Coward in his request for review) and that they are good cattle producers who agree with the tagging program for Canadian cattle. However, in light of the evidence and the applicable law, the Tribunal must conclude that the Agency has established, on a balance of probabilities, that Coward committed the violation and is liable for payment of the penalty in the amount of $500.00 to the Agency within 30 days after the day on which this decision is served.
Read the decision at: Coward v. Canada (CFIA).

Monday, October 18, 2010

OMB denies application to sever former aggregate pit land zoned agricultural

James Graham wished to create and sever from an existing 50 acre parcel of land a new estate residential lot comprising 1.24 hectares (3 acres).  Council for the Municipality of Middlesex Centre refused his Official Plan Amendment and Zoning By-law Amendment applications in that regard and the Committee of Adjustment denied his severance request. Those decisions were appealed by Mr. Graham to the Ontario Municipal Board (OMB).

The Graham family has owned 50 acres of land on the west side of Komoka Road and south of Glendon Drive in the Municipality since the mid seventies. Up until 1991 these lands were licensed to permit aggregate extraction operations below the water table. This operation resulted in creating an existing land use comprised of a series of large ponds interspersed between fragmented parcels of land. In total, approximately 16.2 hectares (40 acres) of the site consists of open water and the remaining 4.03 hectares (10 acres) of land adjacent to Komoka Road is used for residential purposes having on it a single detached dwelling.

The Applicant, Graham, testified that in or about 1991 the entire parcel was conveyed to his children. He and his wife then moved from the location. However, they wished to return to the area and create a new lot upon which to build a home. In order to effect their objective, the OMB was asked to approve an Official Plan Amendment (“OPA”).  The issue to be determined in the hearing was whether the proposal is consistent with the 2005 Provincial Policy Statement (“PPS”) and whether it conforms to the Middlesex County Official Plan (“County OP”) and the Middlesex Centre Official Plan (“Centre OP”).

The OMB found that the proposed amendment was inconsistent with the Ontario Provincial Policy Statement and the relevant Official Plans.  The Applicant argued that, since the aggregates on the property had been depleted, the land should now be available for expanded residential purposes.  However, the Board member ruled:
The land has been used for permitted agricultural uses for decades. The depletion of aggregate on the property should not, in my opinion, give rise to uses which are not permitted. ... Even if the subject property is considered unique in some respects, that uniqueness does not transcend, in any manner whatsoever, the specific policy prohibitions identified throughout these reasons. These prohibitions are unequivocal in their language and, in my view, decidedly clear in their purpose and direction. Based on all the foregoing therefore, the OPA and ZBA are not approved and Provisional Consent is not granted. Accordingly, the appeals are dismissed.
Read the decision at: Graham v. Middlesex Centre.

Friday, October 15, 2010

How much should it cost to rent land located underneath power lines?

In 1997, The Manitoba Hydro-Electric Board (“Manitoba Hydro”) leased land beneath Manitoba Hydro transmission lines to Chuck Arnason Golf and Sports Ltd. (“Arnason”). The rent was set at $6,000 per year, subject to a rent review every five years based on a formula in the lease.  In 2006, The Manitoba Housing and Renewal Corporation (“the MHRC”) announced it would expropriate Arnason’s lease, which it ultimately did in May 2009.  In early 2008, relying on an appraisal of the MHRC, Manitoba Hydro raised Arnason’s rent, for the third five‑year period, tenfold to approximately $60,000 per year. Arnason said this was wrong and sought a declaration from the Manitoba Court of Queen's Bench regarding the interpretation of the renewal formula in the lease.

The renewal formula was as follows:
3. Future rental rates shall be established by means of the following formula: The Lessor shall determine the current market value of the leased land (as vacant) using standard appraisal practices of the Appraisal Institute of Canada. … [emphasis added]
Arnason argued that the formula should be interpreted to be subject to Manitoba Hydro's continuing use and interest in the land for electrical distribution and transmission lines and communication lines.  Manitoba Hydro and the MHRC countered that "as vacant" meant there should be no consideration of the use of the land by Manitoba Hydro (which would devalue the land for the lessee and result in a lower level of rent). 

Following an in-depth analysis of the lease contract, the Court concluded that future rent was to be determined on the basis of the following assumptions:
(a) future rent is to be based on the current market value of the leased land;
(b) the current market value shall take into account, or be subject to, the leased land being a “secondary use of the land”, always subject to the primary use of the leased land being Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble;

(c) the current market value shall consider the leased land zoned as agricultural, or such other zoning that may be applicable considering Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble; and

(d) other than Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble, the leased land is vacant of any improvements.
In other words, the Court agreed with Arnason that the "as vacant" value of the land must include consideration of Manitoba Hydro's ongoing use of the land.  "As vacant" meant vacant of any improvements over and above the Manitoba Hydro improvements. 

Read the decision at: Chuck Arnason Golf and Sports Ltd. v. The Manitoba Hydro-Electric Board et al.