JD High Speed Planter

JD High Speed Planter

Friday, April 30, 2010

CEPA responds to NEB questions about crossing pipelines for farming activities

A couple of weeks back, the National Energy Board wrote to CEPA (the Canadian Energy Pipeline Association) to request an update on the pipeline industry's progress in dealing with the issue of safe crossing for farming equipment and activities.  On April 28, 2010, CEPA responded by letter addressed to the Board's Secretary: CEPA Letter to NEB April 28, 2010.

Currently, farming activities over pipelines and in the 200 foot "control zone" created by the NEB Act are governed by the Act and the Pipeline Crossing Regulations.  Certain activities in the control zone, including deep tillage or tile repair, require the permission of the NEB itself.  Alternatively, landowners may seek permission from the pipeline company involved under the Regulations.

However, permission to cross a pipeline and pipeline easement with farming equipment (including in the course of activities such as cultivation, planting, spraying, harvesting, etc.) can only be granted by the pipeline company pursuant to Section 112(2) of the NEB Act.  In its letter to the NEB, CEPA says of Section 112(2) that leave is "not necessary for the operation of a vehicle or mobile equipment across a pipeline if the pipeline company has assessed the operation and the operation does not have the potential to damage the pipeline."  Apparently this must be the practice of CEPA-member companies, because neither the Act nor the regulations provide this guidance.

The letter also refers to an "innovative self-screening tool" to be rolled out by Enbridge Pipelines Inc. in the "near future".  In crossing the pipeline or conducting activities in the control zone, it looks like it will still be up to individual landowners to decide whether or not permission from the pipeline company and/or NEB is required to carry out their farming operations, leaving liability for making the wrong decision with the landowner. 

Thursday, April 29, 2010

Ontario Human Rights Tribunal throws out complaint against farmer

The Human Rights Tribunal of Ontario has dismissed an application by Cyndy Hunter in which she alleged that that the respondent, Hubertus Vermeer, who is of Dutch origin but who is a permanent resident of Canada, treated her differently because she is Canadian.  Hunter and her husband worked for Vermeer in one of his dairy operations.  Hunter claimed that she suffered damages as a result of Vermeer's discriminatory conduct.

Cyndy and Dan Hunter entered into a contractual relationship with Vermeer Farms under which they managed the dairy herd under Vermeer's supervision and lived in a house on the farm.  From time to time, Vermeer would provide direction, often in writing, to the Hunters regarding the operation of the farm. For example, in September 2003, he prepared a report on the operation of the farm which included financial results, compliments on the management of the farm by the Hunters, and a list of "The things that didn't work out".  In one section of the report headed "What to do about to keep [sic] the farm nice and clean", Vermeer made detailed recommendations about operational matters such as washing equipment, putting things where they belong, spraying the weeds on the gravel, etc.  Further reports followed.

The allegations of discrimination arose from statements allegedly made by Vermeer about differences between Dutch and Canadian styles of management.  Hunter alleged that on a relatively infrequent basis (estimated to be three or four times per year), Vermeer would make comments to her and and/or Mr. Hunter which were based on their citizenship. The typical comment would compare how things were done in Holland or how Dutch farmers operated on one hand, to how things were being done in Canada or how Canadian farmers operated, on the other. For example, Hunter alleged that the respondent would describe Canadians as "slackers" and "lazy" and would often criticize the way things were done on Canadian farms compared to how they were done on Dutch farms.

In the end, the Tribunal threw out the complaint because Hunter failed to make her application in time under the applicable rules and her delay in doing so was not "in good faith".  Hunter relied heavily in her case on a letter sent by Vermeer to her in which he referred to the differences between Dutch and Canadian management styles.  However, instead of taking immediate action on this "discriminatory" letter, Hunter said she put it "in her back pocket" for use in a future legal proceeding.  Apparently, she left it in her back pocket too long.

Because the case was decided on the delay issue, we have no reasons from the Tribunal as to whether or not assertions that Dutch management style differs from (or is better than) Canadian management style constitute discriminatory conduct.

Read the decision at: Hunter v. Vermeer.  Jennifer Quick of my firm was counsel for Vermeer.  Cyndy Hunter was self-represented.

Wednesday, April 28, 2010

Standing at the ERCB without an interest in land, but “no costs for you!”

Standing at the ERCB without an interest in land, but “no costs for you!”

Click on the link above to read an article by Assistant Professor Shaun Fluker of the University of Calgary, Faculty of Law about participation rights before the Alberta Energy Resources Conservation Board (ERCB):
Standing at the ERCB without an interest in land, but “no costs for you!”
          Written by: Shaun Fluker
Case considered: Freehold Petroleum and Natural Gas Owners Association v. Alberta (Energy Resources Conservation Board), 2010 ABCA 125

In Freehold Petroleum and Natural Gas Owners Association, Madam Justice Elizabeth McFayden dismisses an application for leave to appeal an Energy Resources Conservation Board (ERCB) hearing costs decision that relates to an earlier ERCB decision concerning a mineral lease dispute. This Court of Appeal decision and the underlying ERCB decisions are noteworthy to me for two reasons: (1) the ERCB granted full hearing participation rights to the Freehold Petroleum and Natural Gas Owners Association (the Freehold Owners Association) despite the fact it does not have an interest in land; and (2) the Court of Appeal defers to the ERCB on what I consider to be an unreasonable exercise of its discretion on the costs matter. I will comment on each of these points in turn after briefly summarizing the facts. [...]

Tuesday, April 27, 2010

Alberta Court of Appeal throws out negligence claim against manufacturer of "Glean" herbicide

The Alberta Court of Appeal has upheld a non-suit order made by the trial judge in a case by potato growers against Dupont Canada in connection with its "Glean" herbicide.  NPS Farms Ltd. (NPS) alleged that they suffered production losses in several years beginning in 1990 due to the residual presence of the "Glean" herbicide in the soil.  NPS alleged that because Dupont did not make itself aware of the dangerous propensities of the product, it could not, and did not, provide adequate warning to consumers. Dupont’s marketing of the product without adequate warning was said to have been negligent.
The Court of Appeal found that:
... [t]here was ample evidence before the trial judge to demonstrate that the Appellants [NPS] were aware of the presence of Glean on the lands in 1987 and knew that it was harmful to potatoes. They conducted soil tests and planted test strips of potatoes on the lands in 1987, 1988 and 1989 which showed damage to their potatoes. They did not plant full potato crops on the lands in 1988 and 1989 because they were aware of the injury which would result. [...]
At trial, the Appellants sought, but did not obtain, further amendment to the Statement of Claim in order to specifically allege that Glean was a defective product. In our opinion, the trial judge did not err in refusing the request. We endorse the position of the Respondent that the Appellants cannot now seek a remedy premised upon a new cause of action after representing to the Court and to the Respondent on numerous occasions that the only causes of action claimed were failure to warn and negligent misrepresentation. During the opening statement at trial where the matter of the pleadings and the causes of action alleged were specifically raised, no new cause of action was alluded to by the Appellants. On that basis, the Respondent’s cross-examination and defence of the case was based on the Appellants’ express representations to the Court and to the Respondent and their strategic choice to confine themselves to allegations of failure to warn and negligent misrepresentation. To allow the Appellants to recast their case at this late stage of the proceedings would be prejudicial and unfair given also that the limitation period has long since run.
Read the decision at: NPS Farms Ltd. v. Dupont Canada.

Monday, April 26, 2010

OMB upholds Huron County decision to allow storage of "processed organic non-agricultural source material" at farm

The Ontario Municipal Board (OMB) has dismissed an appeal of a zoning decision by the Municipality of Huron East which allowed for the storage of "processed organic material" in existing farm buildings on a farm property.  The material to be stored by Ontario Greenways Inc. near Monkton, Ontario is a "biosolid" from the Cargill Better Beef meat processing plant and contains beef tissue residues.  The "biosolid" would then be spread on land as a fertilizer.

Neighbours of the proposed operation appealed the Municipality's approval of the zoning changes required on the basis that the proposed use is not an agriculturally related use but a waste transfer facility that is not consistent with the Provincial Policy Statement (PPS), does not conform to the County of Huron and Municipality of Huron East Official Plans and does not represent good planning.  Besides concerns about non-agricultural aspects of the project, neighbours were worried about the odour problem that would be created.  Neighbours' residences are located as close as 440 metres from the proposed storage site.

In the end, the OMB found that the proposed use was related to agriculture and consistent with the PPS that encourages waste products to be diverted away from landfill sites and encourages agricultural uses.  As far as odour concerns go, the OMB said that the project would require a Certificate of Approval (CofA) from the Ministry of the Environment (MOE) and that odour could be addressed in that process. 

Of note, the OMB did say the following about the Municipality's approach to the zoning change:
The Board notes that the Municipality's rush to make a decision in case of comments made to the MOE and the finalizing of the rezoning gave the Appellants the feeling that their concners about odour and other environmental impacts were not given adequate consideration.
Perhaps this is a slap on the wrist for the Municipality.

Read the decision at: Rastorfer et al. v. Municipality of Huron East.

Saturday, April 24, 2010

Alberta landowners seeking to intervene in Supreme Court of Canada case in Smith v. Alliance Pipelines

A number of Alberta landowners including those involved in the Balisky matter that went before the Federal Court of Appeal (where it was determined that landowners in that case could be compensated for damages related to the National Energy Board's 30-metre control zone) have asked for leave to intervene in the upcoming Supreme Court of Canada hearing in Smith v. Alliance Pipelines.  That case, scheduled to be heard this October, deals with the authority of the Pipeline Arbitration Committee under the National Energy Board Act to award costs of a related court action as damages suffered by the landowner.  The arbitrator awarded the costs and the Federal Court of Appeal overturned the decision. 

It is certainly a rarity that a case like this proceeds to the Supreme Court.  Hopefully it will provide further clarity about the compensation arbitration process under the NEB Act. 

Also note that the Pipeline Arbitration Committee itself has declined to participate in the appeal.

Friday, April 23, 2010

Ontario Court of Appeal sets aside forfeiture of farm to Crown following marijuana conviction

A West Elgin farmer was convicted of various charges related to the cultivation and possession of marijuana and sentenced to 12 months' imprisonment.  The sentencing judge also made an order for forfeiture of the farmer's property to the Crown under the Controlled Drugs and Substances Act (CDSA).  Section 16(1) of the CDSA provides that, subject to certain exceptions, forfeiture of property shall be ordered upon conviction for a designated substance offence where the court is satisfied, on a balance of probabilities, that the property is offence-related. The relevant part of s. 16(1) reads as follows:

16. (1) Subject to sections 18 to 19.1, where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall

(a) in the case of a substance included in Schedule VI, order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and

(b) in the case of any other offence-related property,

(i) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law, and

(ii) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law. [emphasis added]

Section 19.1(3) of the CDSA is a relieving provision in respect of real property. It reads as follows:

19.1 (3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) or 17(2) in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.
For reasons related to uncertainty about the ownership of the land in question and to the proportionality of the order to the offence, etc., the Court of Appeal overturned the forfeiture.  While the legal issues may not be of much interest to readers, the fact situation is worth a read.  On 70 workable acres, the accused had earned after-tax income from farming of about $500 per annum.  He expected to make between $10,000 and $30,000 from the marijuana.

Read the Court of Appeal decision at: R. v. Van Bemmel.

Thursday, April 22, 2010

Alberta Court of Appeal rules 2 to 1 against Imperial Oil appeal in pipeline contamination case

The Alberta Court of Appeal has dismissed the appeal by Imperial Oil of an award of damages to a rancher for injury to her cattle caused by leaking oil.  One of the three appellate judges, however, wrote a dissenting opinion that would have found Imperial Oil not liable for the damages alleged.  Agnes Ball, the rancher involved, leased grazing land from the Alberta government in the "School Section", and alleged that during Imperial's clean up of an oil leak from its pipeline, Imperial negligently allowed her cattle to ingest hydrocarbons.  The ingestion resulted in premature calving and loss of calves.  Ball had been away on vacation at the time of the leak and the trial judge found that, although Imperial attempted to communicate with Ball through her daughter, Imperial did not ask for permission to enter on the land (outside of its easement) or advise her of the type of work required or its urgency.

At trial, the Alberta Court of Queen's Bench judge found that Imperial Oil had a duty to give adequate prior notice of its intended repair work and to “adequately protect the Plaintiff’s livestock from exposure to Hydrocarbons and hydrocarbon contaminated soil and water”, (reasons at para. 116). He went on to find Imperial Oil had breached that duty by failing to give adequate notice of the repair work and by “pouring contaminated water on the ground and leaving contaminated soil unfenced”, (para. 116). He also found that Imperial Oil allowed the escape of a noxious substance and, thereby, created a nuisance. In light of these findings, he found it unnecessary to deal with the claim in trespass; nor did the parties make any submission on the appeal with respect to this alleged cause of action.

Two of the three Court of Appeal judges hearing the case rejected all of the grounds of appeal advanced by Imperial.  One judge, however, found that:
the trial judge committed an error of law in determining that the respondent was only required to prove some “exposure” to risk by the cattle. The respondent had to prove consumption of contaminated soil and water of sufficient quantities and toxicity to cause injuries on a balance of probabilities. The trial judge used the wrong legal test for causation. As a result, he failed to make the findings of fact needed to apply the correct “but for” test. The reasons at trial do not contain findings of fact on some of the key topics that are needed to resolve the causation issue. The only alternative available is to allow the appeal, and direct a new trial.
It remains to be seen whether Imperial will seek leave to appeal this decision to the Supreme Court of Canada.

Read the Court of Appeal decision at: Ball v. Imperial Oil Resources Limited.

Read the trial decision at: Ball v. Imperial - Court of Queen's Bench.

Wednesday, April 21, 2010

Enbridge Bloor Street Gas Explosion case sent back for new trial

On April 24, 2003, the second largest fire death in the history of Toronto occurred.  Seven people died after an explosion and subsequent post-blast fire at a two-storey commercial plaza located at 3885 to 3891 Bloor Street West in Toronto.  Other individuals were injured and numerous properties were damaged or destroyed as a result of the explosion.

Enbridge Gas Distribution Inc. (“Enbridge”) is the owner of a natural gas distribution system in Toronto and is licenced to distribute natural gas by the Authority. The Authority is a not-for-profit safety organization that, among other things, carries out tasks on behalf of the government of Ontario, including laying charges under the Technical Standards and Safety Act (TSSA), where appropriate. Precision Utility Limited (“PUL”) is the company with whom Enbridge contracted to locate underground pipeline. Warren Bithulithic Limited (“Warren”) is a road construction and paving company that had a contract with the City of Toronto to excavate for the purpose of conducting roadway rehabilitation.

The explosion happened when construction crews working for Warren were in the process of excavating on the south side of Bloor Street.  Excavators are statutorily required to obtain the exact location of gas lines before they dig. In the industry, these are colloquially called “locates.” Enbridge, or in this case its agent, PUL, was required to locate and mark the gas lines so that Warren’s excavation would not disturb them. However, while excavating, a Warren backhoe struck and pulled a small gas pipe out of the ground.

The Fire Marshall’s Office later concluded that a backhoe had displaced a three-quarter inch steel gas line while performing excavation work relating to the replacement of storm drains and sidewalks. This caused a break in the pipe which resulted in an uncontrolled leak of pressurized natural gas into the central basement of 3887 Bloor Street West. The gas and air mixture reached its explosive range and an ignition source applied to that explosive mixture caused an explosion. The exact ignition source was never identified, but it could have been anything, including a standing pilot light, a light switch or a static spark on someone’s sweater. It would have taken six to nine minutes from the time the pipe was pulled until the explosion.

Enbridge, PUL and Warren were charged with a number of offences under the Occupational Health and Safety Act (OHSA) and the TSSA. After a series of pre-trial motions, evidence was called at trial starting on January 9, 2006. On September 21, 2006, Warren pled guilty to interfering or damaging a natural gas pipe line located at or near 3887 Bloor Street West contrary to s. 37 of the TSSA, and received a fine of $225,000 coupled with a $56,250 victim surcharge. The trial then continued against Enbridge and PUL until the trial judge dismissed all charges in her directed verdict decision released on October 25, 2007.  After hearing evidence for approximately seventy days, the trial judge granted the respondents’ motion for a directed verdict (not guilty) on all charges on what she described as “technical grounds.”

On appeal heard over 4 days last November and December, the Ontario Superior Court of Justice has overturned the directed verdict and sent the matter back for a new trial before a different Justice of the Peace.  The issues on appeal were:
Issue #1: Did the trial judge err in finding that neither Enbridge nor PUL was an employer within s. 25 of the OHSA? Answer: Yes.

Issue #2: Did the trial judge err in finding that s. 228(1) of Ont. Reg. 213/91 of the OHSA imposed no duty on either Enbridge or PUL? Answer: Yes.

Issue #3: Given that the trial judge did err on issues #1 and #2, did she also err in finding that the OHSA charges were not instituted outside the one year limitation period? Answer: No.

Issue #4: Did the trial judge err in finding that PUL had no duty under s. 9(2) of Ont. Reg. 210/01 of the TSSA? Answer: Yes.

Issue #5: Did the trial judge err in finding that the failure of Enbridge and PUL to provide any information on the location of natural gas pipelines was not a violation of s. 9(2) of Ont. Reg. 210/01 of the TSSA, and in finding that Enbridge did not fail to ensure that PUL provided as accurate information as possible? Answer: Yes.
Read the entire appeal decision at: R. v. Enbridge Gas Distribution Inc.

Tuesday, April 20, 2010

Bison farm owners suing Yukon government

CBC News - North - Bison farm owners suing Yukon government

An elderly couple in the Yukon is suing the government to obtain compensation for the 17 years they have been managing "problem" bison allegedly on behalf of the government.  They say they were promised ownership of the animals, but today the animals remain regulated as "wildlife" according to law.  Click on the link to the CBC story above. 

GM Seeds Bill passes second reading, referred to committee

The private member's bill introduced by Federal NDP Agriculture Critic Alex Atamanenko that would tighten regulations surrounding the sale of genetically engineered seeds on the world market has passed second reading. If passed into law, the CFIA would be required to analyze the potential harm to export markets "before the sale of any new genetically engineered seed is permitted".  The bill has now been sent on for review by the Standing Committee on Agriculture and Agri-Food:
Debates of April 14th, 2010

5:55 p.m.
The House resumed from April 1 consideration of the motion that Bill C-474, An Act respecting the Seeds Regulations (analysis of potential harm), be read the second time and referred to a committee.

5:55 p.m.  Liberal   The Speaker Peter Milliken

The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-474 under private members' business.

(The House divided on the motion, which was agreed to on the following division:)

6:05 p.m.  Liberal   The Speaker Peter Milliken

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Agriculture and Agri-Food.
Better Farming is reporting that the Grain Farmers of Ontario are protesting the bill, saying that the proposed bill will create more red tape and reduce science based evaluation in the approval process.  Read the Better Farming article at: Grain growers protest seed bill.

Mr. Atamanenko has reproduced the entire debate on the bill on March 17, 2010 on his website: Debate on Bill C-474.

Monday, April 19, 2010

62 acres, pruning shears and 1,500 marijuana plants - when is circumstantial evidence enough to convict?

This isn't exactly a case about "farming" in the "legal" sense, but I found the recent decision of the B.C. Court of Appeal in R. v. Rong of interest because it involves a rural "rental" property.  Rong was convicted at trial of production and possession of marijuana for trafficking and appealed on the basis that the circumstantial evidence against him was not sufficient to prove his guilt beyond a reasonable doubt.  The Court of Appeal dismissed the appeal, and the following excerpts from the judgment say it all:
There was a trail leading from the residence to the field. A garden hose and electrical extension cord ran from the house and connected to the watering and fertilizing system in the field which was manually operated. Partially full bottles of fertilizer were found in the basement of the house similar to empty bottles found in the field. An unopened new garden hose was found beside buckets in the field and a package of new unopened anvil pruning shears were found in the kitchen of the residence along with a pair of gardening gloves similar to a pair found in the field. Garden shears, an axe and pruning clippers were found on the main floor of the house near a fireplace. More pruning shears and a gas-powered generator were found in the basement. Three of the four bedrooms upstairs in the two-storey house had clothing and mattresses on the floor. The house appeared lived in as a temporary residence and there was food in the fridge and freezer and toiletries in the bathroom. There was no garden or crops other than marijuana on the property. [...]
In my view, despite these arguments, the evidence amply supports an obvious connection between the residence and the field of marijuana cultivation. The power and water lines linking the house and the field, the pruning shears, gloves and fertilizer in both locations and the absence of any agricultural or other activity on the property other than marijuana cultivation lead irresistibly to the conclusion that the residence was occupied by persons engaged in intensive cultivation of the field of marijuana. The sparse furnishing of the residence and mattresses on the floor in the bedrooms strongly support the inference that the persons residing on the premises were only there to work in the field, and the appellant was clearly residing there when the search warrant was executed. His personal effects were found in one of the bedrooms and he appeared to be just getting out of bed. He was also observed on the property on an earlier occasion, in circumstances indicating both some familiarity with the property and a measure of control with respect to the dogs on the property.
Read the decision at: R. v. Rong.

Saturday, April 17, 2010

7 onions, 9 eggplants, eggplant seeds, and 2 yams = $200 fine

Joseph Agyekum has been fined $200 for failing to declare the 7 onions, 9 eggplants, eggplant seeds and 2 yams he brought with him into Canada on a flight from Ghana.  Even if he had declared the items, the importation would have required permits which Mr. Agyekum did not have.  He appealed the monetary penalty issued by the Canada Border Services Agency (CBSA) to the Canadian Agricultural Review Tribunal, but lost on appeal. 

Of note, the Tribunal provided the following statement about the nature of the monetary penalty:
The Tribunal wishes to point out to the Applicant that this is not a criminal or a federal offence but a monetary violation, and that he has the right to apply after 5 years to have the notation of this violation removed from the Minister's records in accordance with subsection 23(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, which states as follows:
23. (1) Any notation of a violation shall, on application by the person who committed the violation, be removed from any records that may be kept by the Minister respecting that person after the expiration of five years from

(a) where the notice of violation contained a warning, the date the notice was served, or

(b) in any other case, the payment of any debt referred to in subsection 15(1),

unless the removal from the record would not in the opinion of the Minister be in the public interest or another notation of a violation has been recorded by the Minister in respect of that person after that date and has not been removed in accordance with this subsection.
This is the same legislation that applies to monetary penalties issued by the Canadian Food Inspection Agency (CFIA) in connection with the tagging of cattle.

Read the tribunal decision at: Agyekum v. Canada Border Services Agency.

Friday, April 16, 2010

Communications, Energy and Paperworkers Union of Canada appeals Keystone XL approval

CEP Press Release - 04/12/2010

TORONTO -- The National Energy Board has approved a pipeline construction project – Keystone XL – that will result in tens of thousands of current and potential Canadian jobs being exported to Texas along with our oil, says Canada’s energy union, which filed leave to appeal the decision on Friday.

“The oil and gas industry has decided that the enormous economic development associated with upgrading and refining oil sands resources will take place in Texas, not Canada,” says Dave Coles, President of the Communications, Energy and Paperworkers Union of Canada.

The Keystone XL pipeline construction project will export 900,000 barrels of oil per day to the US Gulf Coast -- most of which is unprocessed bitumen from the Alberta oil sands.

“This means the loss of tens of thousands of jobs in the Canadian oil upgrading and refining sector that either exist now, or that would have been created by projects that are likely to be cancelled as a result of the dramatic expansion of oil export pipeline capacity to upgraders and refineries in the U.S.”

Keystone XL was opposed by CEP, the Alberta Federation of Labour, the Sierra Club, and also by Enbridge, Imperial Oil, BP and Nexen.

The companies argued that Keystone XL will create enormous excess export capacity, raise service costs on other pipelines, and increase input costs to Canadian refineries by US$600 million in 2013.

“Not only will this project abandon the enormous opportunity of creating a diversified Canadian oil and gas industry,” says Coles, “but it will seriously undermine the viability of existing refineries.

“Astonishingly, the NEB has signed off on the industry’s plan as being the Canadian public interest.

“The Board has abandoned its mandate to the entirely ill-founded notion that a deregulated export market is in the Canadian public interest.”

The legal argument filed by CEP asserts that the NEB made several fundamental errors of law, and failed to properly exercise its mandate to protect the Canadian public interest.

The National Energy Board approved the Keystone XL pipeline project March 11, 2010, subject to the federal government giving it the final green light. CEP filed its appeal on April 9.

Keystone and its allies now have 20 days to respond to CEP’s application. A decision from the Federal Court of Appeal on whether an appeal will be allowed is expected in May.

The 150,000-member CEP is Canada’s largest union of energy workers, with about 35,000 members who work in the oil, gas and petro-chemical industries.

Thursday, April 15, 2010

Read comment on Snopko v. Union Gas decision by Professor Nigel Bankes, University of Calgary

Professor Nigel Bankes of the University of Calgary, Faculty of Law, has posted a comment on the recent decision of the Ontario Court of Appeal in Snopko v. Union Gas.  The case confirmed the OEB's exclusive jurisdiction over gas storage in Ontario.  With respect to the Court's decision on the jurisdiction of the Board to determine the validity of private contracts, Bankes notes:
What appears to be unusual about the present case i.e. the Snopko decision is that it concludes that some matters that might appear to be matters of private law are so closely connected with the core elements of an energy regulator’s jurisdiction (here the jurisdiction to deal with holdouts when assembling a gas storage project and the power to set compensation accordingly) that the ordinary courts must decline jurisdiction even though the issues are presented by the plaintiff as private law matters e.g. invalidity of a lease and even unconscionability. This clearly goes beyond confirming the power of the regulator to decide points of law as a necessary element in exercising its jurisdiction; instead the decision accords to the regulator an exclusive original jurisdiction over a broad range of matters. One wonders if this is not a step too far? Is the OEB really the best place to decide whether an agreement is tainted by unconscionability? Even if it has the ability to do so as a necessary part of deciding other issues that may be put to the Board does it follow from this that a plaintiff cannot submit these issues to a s.96 Court?
Read the comment at: ABlawg.ca.

Vehicle charges ‘totally unreasonable’ says farmer

Read Better Farming's article about the Peter VanBerlo convictions for operation of an unlicensed vehicle on Ontario roads:
A Norfolk farmer convicted on nine counts under two provincial acts concerning a vehicle he modified for farm use says the fight’s not over yet by BRIAN LOCKHART

Federal Court of Appeal rules on revenue cap for CN for movement of western grain

The Federal Court of Appeal has ruled on an appeal by Canadian National Railway Company (CN) of a Canadian Transportation Agency (CTA) decision related to the calculation of CNR's revenue cap for crop year 2007-08.  Revenue earned in a crop year by prescribed railway companies for the movement of western grain is subject to a cap. The CTA determines a prescribed railway company’s revenue for a crop year and whether it exceeds the revenue cap. CN, a prescribed railway company, said that the CTA wrongly included certain items in its revenue; the inclusion of an item in a railway company’s revenue pushes it closer to the cap.

CN appealed the decision of the CTA (Decision No. 628-R-2008), dated December 30, 2008, and a decision in a confidential letter of the same date (File Nos. T6650-2 and T6650-7-7), in respect of the crop year 2007-08. CN’s principal submissions were that the CTA erred in law or jurisdiction by including the following three items in its revenue cap calculation:
a. earnings from carrying American-grown grain from the U.S.-Canada border to ports in British Columbia for export to third countries, without entering the Canadian market. CN says that this grain is not “imported into Canada” within the meaning of the Canada Transportation Act, S.C. 1996, c. 10, section 147 (“Act”);

b. earnings from lifting grain-carrying containers from a truck onto a flat-bed rail car and vice versa. CN says that this is not the “carriage of grain … over a railway line” within the meaning of section 147; and

c. a sum paid by [a shipper] to CN under a penalty clause in their contract of carriage for failing to ship the promised amount of grain. CN says that this sum was reasonably characterized as a performance penalty and should have been excluded under paragraph 150(3)(b).
The third issue was already resolved in CN's favour based on an earlier decision in another case.  However, the Federal Court of Appeal decided that the CTA's other two determinations were not unreasaonable and, therefore, should stand. 

Read the Federal Court of Canada decision at: CNR v. Canadian Transportation Agency.

Wednesday, April 14, 2010

Is your business emitting fumes or air into the environment?

If you take a look at the Environmental Bill of Rights registry in Ontario (ebr.gov.on.ca), where public notices are posted regarding applications for approvals, proposed changes to regulations, etc., you'll see that the vast majority seem to relate to Certificates of Approval (CofAs) for the discharge of air.  Operations such as feed mills and grain elevators may be required by the Ministry of the Environment (MOE) to obtain CofAs to allow for the discharge of particulate matter (dust) and gases related to the storage of materials. 

Here is another press release from the MOE about a recent guilty plea and conviction in connection with the discharge of fumes from a cabinetry business:

IRPINA KITCHENS FINED $4,000 FOR NON-COMPLIANCE WITH A PROVINCIAL OFFICER ORDER
NEWMARKET — On February 19, 2010, 1118741 Ontario Limited, operating as Irpina Kitchens, was fined $4,000 plus a victim fine surcharge after pleading guilty to one violation under the Environmental Protection Act.

The company is a manufacturer of custom kitchen cabinets and is located in Richmond Hill. On March 8, 2008, a Provincial Officer from the ministry conducted a proactive air inspection of the site to assess compliance. During the inspection, the Officer observed a paint and solvent mixing room containing a fumehood with a direct discharge to the environment. The fumehood did not have a Certificate of Approval for air. A Provincial Officer Order was issued on April 15, 2008 which required the company to submit an application to the ministry for a Certificate of Approval including all emission sources by June 20, 2008. The Order was not complied with.

The company was charged following an investigation by the ministry’s Investigations and Enforcement Branch. On September 30, 2009, an air approval application was submitted by the company to the ministry as required by the Provincial Officer Order.

Involved in a highway accident? You still need to report spills to the MOE.

From the Ontario Ministry of the Environment:
FEDEX GROUND PACKAGE SYSTEM, LTD. AND GORDON TRAILER SALES & RENTALS LIMITED FINED $2,000 EACH FOR FAILING TO REPORT SPILLS
THUNDER BAY — On March 5, 2010, Fedex Ground Package System, Ltd. and Gordon Trailer Sales & Rentals Limited pleaded guilty to failing to forthwith report their spills of diesel fuel to the ministry’s Spills Action Centre.
On March 11, 2009, the above corporations owned two of nine trucks that collided in a snowstorm on Highway 17 in Soper Township in the District of Thunder Bay. Fluids from five of the trucks including fuel, motor oil and antifreeze spilled onto the road, shoulders and ditches of Highway 17. Both companies had reportable spills of diesel fuel over 100 litres, however, neither reported their spills to the ministry within 24 hours.
The companies were charged following an investigation by the ministry’s Investigations and Enforcement Branch.
Both companies were fined $2,000 each, plus victim fine surcharges for failing to report their spills, and were given 60 days to pay.
Previously, Dave Toews, another trucking company involved in the collision, was also convicted for an environmental violation and fined $400 on January 22, 2010. The matter for Rema Trucks Inc., a further trucking company involved in the accident, is still before the courts. Remediation of the spilled materials was completed promptly and successfully.

Tuesday, April 13, 2010

London and Area Food Bank seeks Community Harvest Ontario Field Coordinator

JOB POSTING
Community Harvest Ontario Field Coordinator



The London Food Bank, in conjunction with the Ontario Association of Food Banks (OAFB), is seeking an organized, passionate, and outgoing individual to join the Community Harvest Ontario team in the position of Field Coordinator. The 24 week contract position is the local component of a provincial initiative that will aim to bring fresh, healthy food to food banks in Ontario.

PURPOSE OF POSITION

The Community Harvest Field Coordinator is primarily responsible for coordinating local farm and volunteer activities related to the provincial Community Harvest Ontario program.

OVERVIEW

This year, the London Food Bank and the Ontario Association of Food Banks will launch an innovative program to source fresh fruit and vegetables for our neighbours facing hunger entitled “Community Harvest Ontario” (CHO). By engaging hundreds of volunteers through agricultural partnership projects such as gleaning and harvesting, the program will generate thousands of pounds of locally grown fresh healthy food.

LOCATION

This position is based out of the London Food Bank and will require some travel within the region.

RESPONSIBILITIES

The Community Harvest Field Coordinator is responsible for the following organizational activities and deliverables:
• recruiting local farms for participation in growing or gleaning programs;
• coordinating local activities related to the Community Harvest program;
• training and orienting Community Harvest volunteers at participating farm sites;
• recruiting scheduling individual volunteers for related projects; and
• documenting volunteer days and experiences through photography and writing.
QUALIFICATIONS
• organizational skills;
• knowledge of agriculture and/or local foods;
• public speaking and writing skills;
• volunteer coordination skills;
• experience in social media or web development considered an asset;
• ability to work independently and in a team environment;
• ability to multitask; and
• a valid driver’s license and access to a vehicle.
SALARY & TERM

This is a seasonal 24 week contract position with the possibility of renewal on a yearly basis. The salary for the position is $18/hr at 35 hrs/wk.

HOW TO APPLY

If you have experience that aligns with these responsibilities and qualifications, and you are excited to work as a part of a creative team, please send your resume with a cover letter by Friday, April 23rd at noon via e-mail to:

Jane Roy
Co-Executive Director
londonfb@web.net

Thank you to all applicants for your interest in this position. Please note that only those selected for an interview will be contacted.

Ont. C.A. confirms Ontario Energy Board exclusive jurisdiction over gas storage

The Ontario Court of Appeal has dismissed an appeal by several Lambton County gas storage landowners of the summary dismissal of their claims against Union Gas Limited (Union) for:
• breach of contract - the appellants claim that Union, in breach of their gas storage leases (GSLs), has failed to properly compensate them for crop loss and other lost income arising from Union’s storage operations (statement of claim, at paras. 26-27);
• unjust enrichment - the appellants claim that Union has been unjustly enriched by storing gas on and in the appellants’ land (statement of claim, at para. 28(b));

• nuisance - the appellants claim that Union’s storage operations, which have decreased the profitability of their land, caused damage to their land and decreased their enjoyment of the land, constitute a nuisance (statement of claim, at para. 36);

• negligence - the appellants claim that due to Union’s storage operations, oil has not been produced from the Edys Mills Storage Pool since 1993 and, as a result, the appellants have not received royalty payments since that time (statement of claim, at para. 37(c)); and

• termination of contract - the appellants seek a declaration that their GSLs were terminated in 2006, along with compensation from Union on the basis that it is storing gas without a contract (statement of claim, at paras. 34-35).
In September 2008, Union moved for summary judgment dismissing the action against it on several grounds, namely: (i) that the Superior Court has no jurisdiction to entertain the claim, as it falls within the exclusive jurisdiction of the Ontario Energy Board (OEB); (ii) that the claims are statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “LTA”); and (iii) that the claims are barred by the doctrines of res judicata or abuse of process.

The Court of Appeal dealt only with the issue of the OEB's jurisdiction, which was the basis on which the Superior Court had initially dismissed the landowners' action.  Under the Act, the Board has broad jurisdiction to regulate the storage of natural gas, to designate an area as a gas storage area, to authorize the injection of gas into that area, and to order the person so authorized to pay just and equitable compensation to the owners of the property overlaying the storage area.  Section 38(3) of the OEB Act provides that no civil proceeding may be commenced in order to determine that compensation.  On these and other bases, the Court of Appeal found that the OEB has exclusive jurisdiction to determine all issues of law and fact arising from the appellants' claim against Union, including the validity of gas storage contracts. 

Read the Court of Appeal decision at: Snopko v. Union Gas Limited.

Monday, April 12, 2010

“Self-propelled implement of husbandry” - Conviction Upheld

The Ontario Court of Appeal has upheld the convictions of Petrus Van Berlo on charges related to the unlicensed use of an alleged farm vehicle on the highway.  The appellant was convicted of offences that required the vehicle in question to be a “motor vehicle”, such as permitting the operation of motor vehicle on a highway without a permit. The definition of “motor vehicle” in the Highway Traffic Act (HTA) excludes a “self-propelled implement of husbandry”. Thus, the appeal turned on whether Mr. Van Berlo’s vehicle came within this exception, as a self-propelled implement of husbandry. If so, the parties agreed that the appeal must succeed and the convictions must be set aside. If not, the appeal would fail.  The Court of Appeal dismissed the appeal.

The term “self-propelled implement of husbandry” is defined in s. 1.1 of the HTA.:
“Self-propelled implement of husbandry” means a self-propelled vehicle manufactured, designed, redesigned, converted or reconstructed for a specific use in farming.
The Court agreed that the vehicle in question was self-propelled, but found that it had not been "coverted ... for a specific use in farming".  The appellant purchased the vehicle on August 11, 2002 for $2,000.  It was a 1976 Chevrolet pick-up truck.  His intention was to modify it for use in his irrigation operations.  He then spent $16,000 on the vehicle so it could tow farm equipment from farm to farm and from field to field, and so it could be used in the fields for irrigation purposes.  He had the gasoline engine replaced with a diesel engine for more power.  The gearing was changed and the two-wheel drive was converted to four-wheel drive. Large tread snow tires were installed to facilitate driving through fields of mud and sand.  Finally a hitch, ten times heavier than a regular trailer hitch, was installed at the rear of the vehicle to allow for the pulling of various pieces of farm equipment.

In the Court of Appelal's view, to be “converted for a specific use in farming” a vehicle must be changed significantly enough that, viewed objectively, its essential character or function has been transformed for that specific use, although it may retain some limited capacity for other functions.  The transformation cannot just be for general use in farming, it must be for a specific use.  In this case, the Court found that the changes were not of the sort that creates a "self-propelled implement of husbandry":
When this interpretation is applied to the facts of this case, I conclude that the appeal must fail. As the Ontario Court of Justice found, the changes made by the appellant really do not change the character of the vehicle. The appellant installed a more powerful engine, changed the gearing, converted the vehicle from two to four-wheel drive, and installed large tread snow tires and a stronger rear hitch. Whether taken separately or together, these modifications do not change the vehicle from a truck into something different. Although these changes make the vehicle more powerful and therefore better able to perform some functions, such as pulling loads, these functions remain essentially the same. Nor do the changes point to the specific use of irrigation. At best, they are for general use in farming. Viewed objectively rather than through the lens of the subjective intention of the appellant, the changes are neither significant enough to change the essential character or function of the vehicle, nor can they be described as for the specific use of irrigation in the appellant’s farming operation. In other words, the appellant cannot bring the vehicle within the defined exception.
Read the decision at: R. v. Van Berlo.

Saturday, April 10, 2010

Alberta Court of Appeal upholds dismissal of defective feed claim

The Alberta Court of Appeal has upheld the dismissal of an action by Tom and Kirk Seaborn of Crooked Post Shorthorns.  The Seaborns had claimed that feed manufactured by Masterfeeds Inc. had caused health problems in their breeding cattle, eventually requiring them to sell the cattle for slaughter and to purchase new breeding stock at a loss.

In dismissing the appeal, the Court of Appeal paid special attention to the following factual findings made by the trial judge:
(1) the failure of the Seaborns to immediately seek veterinary attention despite the alleged extreme symptoms shown by the cattle: para. 29;

(2) the failure of the veterinarians who saw some of the CPS cattle in late March 2001 to testify: para. 21; and

(3) the lack of results from tests to indicate toxins in feed or disease in the cattle: para. 22.
On the basis of these findings, the trial judge ruled that the Seaborns exaggerated the symptoms experienced by their cattle.  Also, the trial judge found that they failed to establish that the feed from Masterfeeds Inc. actually caused the damage that was alleged.  Had the Seaborns been successful in their claim, the trial judge would have awarded more than $500,000 in damages.

The Court of Appeal upheld all of the findings of the trial judge and dismissed the appeal.  Read the Court of Appeal decision at: Crooked Post Shorthorns v. Masterfeeds Inc.

Read the trial decision at: Crooked Post Shorthorns trial.

Friday, April 9, 2010

Manitoba farmer ordered to clean up cluttered yard

CBC News - Manitoba - Farmer ordered to clean cluttered yard

Drago Kucas has lost his appeal of Winnipeg decision ordering him to cleap up his property in south St. Vital. Kucas has until June to clean up or the city will do it and assess the costs to his tax bill.

Ontario's new proposal to protect bats from wind turbines

The Green Energy Act 2009 (GEA) placed 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. Bats 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 draft 2010 Guidelines for application to both Crown and private lands.

The 2010 Draft 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 bats and bat habitats during the planning, construction and operation of wind power projects in Ontario by:
  • removing the previous requirement for pre-construction monitoring, as results indicate that this information was not useful to assessing the impact of wind turbine development on bats;
  • identifying methods for evaluating the significance of candidate bat significant wildlife habitat and adopting a habitat setback approach, with assessment and monitoring based on proximity to significant habitat;
  • establishing three years of post construction bat mortality monitoring requirements for all onshore wind power projects, via an environmental effects monitoring plan;
  • including for the first time, guidance for offshore wind projects that, in the absence of practical assessment and monitoring methods in offshore environments, uses mandatory mitigation as a precautionary approach to protecting migratory bats; and
  • establishing a threshold approach to bat mortality (10 bats/ turbine/year), upon which mandatory operational mitigation would be required.
This operational mitigation would consist of reducing turbine blade cut-in speed/ feathering of 5.5 metres/second and would be applied for a 10 week period during peak bat activity (July-October). This mitigation is deemed to be the best approach, based on studies that identify up to 70% reduction in fatalities and only a 0.3 - 1% loss of energy production.

Purpose of Policy:
To give notice of and invite comment on MNR’s proposed Bats and Bat Habitats: Guidelines for Wind Power Projects (2010).
Other Information:
The draft 2010 Guidelines is intended to support the implementation of the REA regulation by establishing provincial guidance on identifying and addressing potential negative effects on bats and bat habitats during the planning, construction and operation of wind power projects in Ontario. 
MNR’s Guideline to Assist in the Review of Wind Power Proposals: Potential Impacts to Bats and Bat Habitats. Developmental (Working Draft August, 2007) no longer applies to wind power projects being reviewed under the Renewable Energy Approval regulation (O.Reg. 359/09). As interim direction until final Guidelines are approved, the criteria and procedures identified in this proposed draft 2010 Guidelines will be deemed to be acceptable by MNR for wind power projects being reviewed under the REA regulation (O.Reg. 359/09). 
Public Consultation:
This proposal has been posted for a 45 day public review and comment period starting April 06, 2010. If you have any questions, or would like to submit your comments, please do so by May 21, 2010 to the individual listed under "Contact". Additionally, you may submit your comments on-line.
All comments received prior to May 21, 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 010-9521.

Thursday, April 8, 2010

Enbridge oil spills into Manitoba creek

CBC News - Manitoba - Oil spills into Manitoba creek

A leak in an Enbridge pipeline has spilled 1,500 litres of oil into a creek near the town of Virden, MB. Click on the CBC link above to view the news story. For pictures of the spill and details of the clean up, check out the Kipperstein Press blog and the message board at eBrandon.ca.

Canadian Natural Resources Limited appeal dismissed by Alberta Court of Appeal

The Alberta Court of Appeal has dismissed the appeal of Canadian Natural Resources Limited (CNRL) of a Court of Queen's Bench surface rights decision made in favour of landowners.  The most important ground of appeal revolved around criticisms which the Court of Queen’s Bench made of one of the CNRL’s witness’ expert evidence. There is case law which was not disputed on the appeal. It holds that if a pattern of dealings has been established, then compensation for compulsory imposition (or renewal) of a surface lease for an oil or gas well may be based on the negotiated amounts in those prior contracts between others. The Court of Queen’s Bench concluded that no such applicable pattern of dealings had been proved here (paras. 89, 118 and 155). That was a rejection of most of the evidence of this expert witness.

The Court of Queen's Bench had summarized the reasons for its rejection of the pattern of dealings evidence:
a) There was no definition, precise or general, of the area to which this pattern was said to apply.
b) There was no information with respect to how many sites, overall, are within the area.

c) There was no indication of how many sites were reviewed in order to ascertain the comparables, nor any indication of why other sites reviewed were not comparable.

d) There was no explanation of why this pattern was applicable to a certain area.

e) There was no information provided with respect to the number of parties, either operator or landowner, represented within the comparables.

f) There was no information with respect to the negotiation process.

g) With respect to the chart showing CNRL irrigation and dryland leases, almost half of the leases do not fit the compensation pattern.

h) There was no explanation of why leases that were presented as comparables but that did not fit the compensation pattern supported the pattern of dealings.

i) There was no explanation as to why initially only new agreements were considered appropriate comparables, but why later, rent reviews were also considered to be properly included.
The Court of Appeal found that the Court of Queen's Bench, as finder of fact, was entitled to reject the expert evidence of pattern of dealings.  There was no reversible error in the lower court decision.

Read the Alberta Court of Appeal decision at: 2010 ABCA 91 (CanLII).

Read the Alberta Court of Queen's Bench decision at: 88 Alta. L.R. (4th) 298

Wednesday, April 7, 2010

OMB refuses farm severance application

The Ontario Municipal Board (OMB) has overturned a municipal decision to allow a severance from a farm parcel in the Municipality of West Nipissing.  Consent for the severance had been granted subject to five conditions:
1. That a copy of the new survey be filed with the municipality;
2. Confirmation that all taxes are paid up to date;
3. That all conditions be met on or before October 29, 2010, being one year from the date of the giving of notice or the consent shall be deemed not to have been given as per Section 53(20) of the Planning Act, R.S.O. as amended;
4. That a Transfer/Deed of the land be submitted to the Secretary-Treasurer for issuance of a certificate of consent; and
5. That a notice be placed on the title of both the severed and retained lands that no further severances will be permitted.
Another area farmer appealed the severance consent to the OMB.  The Planning Act in Ontario requires that municipal planning decisions such as the severance be in conformity with the Provincial Policy Statement (PPS).  The PPS provides that prime agricultural areas (Class 1, 2 and 3 soils) shall be protected for long-term use for agriculture.  The OMB concluded:
This is a farming area with agricultural capability that would be fragmented with the creation of another residential lot.  The proposed consent would clearly contravene the policies in the PPS.
Read the Board's decision at: Parsons v. Bourgeois.

Golfers face landowner's ire

CBC News - Calgary - Golfers face landowner's ire

Read this CBC story about a southern Alberta landowner facing firearms-related charges after firing a shotgun at golfers who ignored "No Trespassing" signs to retrieve a golf ball from his land.

Tuesday, April 6, 2010

New trial ordered in case against Rideau Lakes grain elevator operator

The Ontario Court of Justice has ordered a new trial of charges against Alfred John Willows under the Grains Act, R.S.O. 1990, c. G-10.  Willows was charged with carrying on the business of a grain dealer in Ontario on two occasions in 2007 without holding a licence issued by the Chief Inspector.  It was alleged that he had purchased grain from producers (which requires a licence).  In actuality, he had purchased grain "out of storage" - the grain he already had in his storage bins.  One of his defences was that this did not constitute the action of a dealer.  Following a two day trial in Brockville before Justice of the Peace Brian Mackey, Willows was acquitted.  The Crown appealed the acquittal to the higher court and, in his decision rendered February 17, 2010, Justice John Waugh ordered the case back before a Justice of the Peace for a new trial.

Justice of the Peace Mackey had acquitted Willows on three distinct and mutually exclusive grounds or principles of law: i) officially induced error; ii) due diligence; and, iii) Doctrine of Vagueness because of ambiguity or vagueness in the law itself.  These defences needed only to be established by the accused on the balance of probabilities (i.e. more likely than not or 50% plus one, etc.).  Justice Waugh found that none of these defences had been raised by Willows at trial and none were supported by the facts proven at trial.  There was no officially induced error proven by the defence - the only communication from a government official had been from Agricorp (not the authority needed to found this defence) and was vague.  Due diligence could not be proven because Justice Waugh found that Willows was aware that a licence was required.  Finally, the Grains Act was not overly vague or ambiguous - Justice Waugh found that there were licensing requirements for grain elevator operators and for grain dealers, and that in certain circumstances the operations of each would overlap and both licences would be required.

Read the decision at: R. v. Willows.

Saturday, April 3, 2010

Beef producers slam Ottawa over BSE cases

CBC News - Edmonton - Beef producers slam Ottawa over BSE cases

CBC News reported this week on the ongoing BSE class action lawsuit.  Following the outbreak of BSE in the UK, Canada engaged in various regulatory measures to protect the Canadian cattle industry from contamination. In October 1997, Canada prohibited the feeding of protein derived from mammals to ruminants by regulation under the Health of Animals Act, S.C. 1990, c. 21. The most likely source of the disease was feed manufactured by Ridley Inc. Although Mr. Sauer, an Ontario cattle farmer, had not lost any cattle or suffered any property damage from the use of Ridley’s product, he commenced a proposed class action on behalf of commercial cattle farmers in seven provinces, claiming that Ridley had negligently, recklessly or knowingly sold a product to another farmer that had the potential to, and did, cause the harm suffered, and that the government of Canada had negligently regulated the cattle industry resulting in the harm suffered. Ridley and Canada moved to strike the claims. The motions were denied, as were their appeals.  An attempted appeal of the certification of the Ontario action as a class action was also denied.

Ridley has since settled with the plaintiffs for $6 million.  The case against the government is moving toward trial.

For additional information on the lawsuit and its current status, visit: BSE Class Action.

Thursday, April 1, 2010

Farm Guide - Farm Equipment on the Highway (Ontario)

With planting season quickly approaching, you may want to take time to review the MTO's rules of the road for farm equipment: Farm Guide - Farm Equipment on the Highway.