Lonely Oak

Lonely Oak

Friday, May 28, 2010

Enbridge files application with National Energy Board for Northern Gateway Pipeline


Enbridge Pipelines Inc. has filed its application for a Certificate of Public Convenience and Necessity from the National Energy Board (NEB) for the Northern Gateway Pipeline Project.  The massive application document in 8 volumes is available at the following links: Volumes 1-3; Volumes 4-5; and, Volumes 6-8.

If you're a landowner along the proposed route, or know someone who is, you can find out more about how landowners may be affected by the pipeline and what they can do to respond by contacting the Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA).  Visit CAEPLA's website at: http://www.landownerassociation.ca/.

Saskatchewan Provincial Court dismisses neighbour's lawsuit over crop damage, etc.

The Provincial Court of Saskatchewan has dismissed three claims by landowner Kelly Bzdel against his neighbour, Twin Creek Dairy Ltd.  The claims were as follows:
  • The first claim is that during the crop year of 2008, the defendant, while spraying chemicals on his own crop, over sprayed, resulting in the loss to the plaintiff of approximately 20 acres of oats valued at $7,200.00. “Claim One: Over Spraying”
  • The second claim is that on or about August 22, 2008, the plaintiff, while driving his vehicle, struck a cow from the defendant’s operation resulting in damage to the plaintiff’s vehicle and a loss to the plaintiff of $700.00, which was his insurance deductible. The plaintiff claims that the defendant had inadequate fencing for his cattle in this area. “Claim Two: Vehicle - Calf Collision”
  • The third claim is that “as a result of the cattle escaping from the defendant’s property, cattle trampled approximately 10 acres of the plaintiff’s oat crop” resulting in the loss of 10 acres of oats worth $4,200.00.  “Claim Three: Cattle Damage to Crop”
The trial judge dismissed all three claims, finding that Bzdel had failed to prove on a balance of probabilities (i.e. 50% plus 1, more likely than not, etc.) that the Defendant had caused any of the damages.  In fact, for the over-spraying claim, the trial judge determined that less than 20 acres of oats had been killed or damaged as claimed by Bzdel.  Costs of $400 were awarded to the Defendant.

Read the decision at: Bzdel v. Twin Creek Dairy Ltd.

Thursday, May 27, 2010

SemCAMS cancels Red Willow Pipeline Project due fall in natural gas market and inability to access capital

Nova Scotia Utility and Review Board turns down appeals of wind farm approvals

The NS Utility and Review Board has dismissed appeals by Eco Awareness Society and Helen and Donald Brown from a decision of the County of Antigonish allowing the re-zoning of 14 areas on 9 properties to allow for the construction of 14 wind turbines by Shear Wind Inc.  The appeals were dismissed because the Board determined that the appellants were not "aggrieved persons" as was required to have standing to appeal the decisions under the applicable legislation.  A person must have "standing" to participate in a particular matter before a decision-making body such as a court or a tribunal.  "Standing" may depend on a person's direct or indirect connection to the matters in issue, and in some cases includes a connection based on the public interest.

In this case, the Board concluded:
For the reasons outlined above, the Board finds that the Appellants have not shown, on the balance of probabilities, that the rezoning (or any future development falling within the scope of the proposed rezoning) will adversely affect the value or reasonable enjoyment of Mr. and Mrs. Brown's properties (or the properties of a majority of members of the Eco Awareness Society), or cause or threaten any form of harm prejudicial to their interests (or the interests of a majority of members of the Eco Awareness Society). Further, the Society has not shown, on the balance of probabilities, that it is an incorporated organization, the objects of which include promoting or protecting the quality of life of persons residing in the neighbourhood affected by the council's decision, or features, structures or sites of the community affected by the council's decision, having significant cultural, architectural or recreational value.
Read the decision at: Re Eco Awareness Society.

Wednesday, May 26, 2010

Supreme Court of Canada has granted leave to appeal in Berendsen farm contamination case


In the mid-1960s, the Ontario Ministry of Transportation buried asphalt and concrete waste from a highway reconstruction project in an unlined pit on a nearby dairy farm with the owner’s consent. The Berendsens, experienced dairy farmers, purchased the farm in 1981. Shortly thereafter, their cows began to suffer serious health problems, to have a high cull rate, and to produce an unusually low quantity of milk. The immediate cause of the problems was the cows’ unwillingness to drink enough water, but the Berendsens claimed that the waste was the root cause. They alleged that chemicals in the waste had migrated to their well, contaminating the water and making it unpalatable for the cows. Testing showed that the chemicals in the water from the well did not exceed the Ontario Drinking Water Objectives, which set the levels allowed for human consumption. A new well 400 feet from the burial site was also rejected by the herd. When the Berendsens complained to the Ontario government, it arranged for an alternate water source. The herd’s water intake, milk production increased, and overall health improved. Meanwhile, the Ministry of the Environment did some water quality testing of the water in the wells, the barn troughs and the ditch, from which it concluded that the water met the Ontario Drinking Water Objectives and that it was not responsible for the problems. It stopped providing alternate water. The Berendsens sued Ontario in negligence for depositing the waste and then failing to remove the contamination. The trial judge allowed the action and awarded damages of $1,732,400 plus pre‑judgment interest and costs. The Court of Appeal allowed the appeal, set aside the trial judgment and dismissed the action.

The Supreme Court of Canada has granted leave to the Berendsens to appeal the decision of the Ontario Court of Appeal, with costs of the leave application in the cause (i.e. the issue of the costs of the leave to appeal application will be left until the appeal is actually decided by the court).  The hearing date for the appeal has not been set.

Tuesday, May 25, 2010

Congress begins hearings to reauthorize pipeline safety law - Oil & Gas Journal

The Oil and Gas Journal has published an article by Nick Snow about pipeline integrity legislation and regulations in the United States.  From 2006 to 2009, the Pipeline and Hazardous Materials Safety Administration increased its roster of pipeline inspectors from 141 to 173.  Over the past 20 years, the PHMSA says that serious pipeline incidents involving death or injury has declined by 50%.  Read the article at: Oil and Gas Journal.

Monday, May 24, 2010

Siblings, the family farm, and nasty litigation

Here's how a recent decision of the Alberta Court of Queen's Bench begins:
It is unfortunate that at this stage of their lives siblings are involved in nasty litigation. Mr. Chemerinski is the brother of Susan Richter. Anne Marie Chemerinski was their mother. She died on November 1, 2009. Before her death, she was unable to look after her own affairs. Her son William held a Power of Attorney and looked after her affairs. Calvin Richter is Susan’s husband. In 2002 The Richters started an action for damages against these Respondents and the estate of Anne’s late husband Carson based on breach of contract, unjust enrichment or quantum meruit arising out of a joint farming operation near High Prairie, Alberta. In another action, Susan was named the Defendant by Anne. This action dates to 2002. Anne claimed repayment of an alleged $40,000.00 loan to her daughter. In another Queen’s Bench action dating from 2006, Susan is a Plaintiff along with her sister Christine and Bill and Anne are two of the Defendants. In this action two sisters are pitted against their brother and mother. This claim relates to the ownership of a joint investment account held by the Plaintiffs and their mother at CIBC Wood Gundy.

This multifaceted litigation has been disastrous for this family on two levels. It has been emotionally and financially crippling. The litigants are in their late 50s and early 60s. Any vestiges of family harmony have been destroyed. The litigation has accomplished very little other than to create bitterness and deplete resources. It is a prime example of what can happen if litigants possess an abundance of bile and resources.
Read the rest of the decision at: Richter v. Chemerinski.

Saturday, May 22, 2010

MOE fines another vehicle owner for spill resulting from a highway accident

REMA TRUCKS INC. FINED $2,000 FOR FAILING TO REPORT A SPILL

THUNDER BAY — On April 16, 2010, Rema Trucks Inc. pleaded guilty to one violation under the Environmental Protection Act for failing to notify authorities of a diesel fuel spill.

The company operates a truck rental business in Regina, Saskatchewan. On March 11, 2009, the company owned one of nine trucks that collided in a snow storm on Highway 17 in Soper Township. Fluids from five of the trucks including diesel fuel, motor oil and antifreeze spilled onto the road, shoulders and ditches of the highway.

The company was charged following an investigation by the ministry’s Investigations and Enforcement Branch. The company was fined $2,000 and was given six months to pay.

Friday, May 21, 2010

Saskatchewan farmer loses court case over front-end loader problems

The Provincial Court of Saskatchewan has dismissed a claim by Garry Beutler related to his purchase of a front-end loader purchased from Leon's Manufactuing Company Inc.  Beutler had the loader installed on his Case 2294 tractor and planned to use the loader to move large round bales.  He experienced "operational difficulties" with the unit.  Following some repairs by the dealer, he told the manufacturer that he wanted his money back.

Beutler claimed from the manufacturer the cost of the loader he had purchased plus the cost of a new Versatile 276 bi-directional tractor he purchased to replace the loader.  The Court found that Beutler was not entitled to recover any damages from the defendant.  The judge found that Beutler's use of the front-end loader he had purchased exceeded the use for which it was designed.  The manufacturer's position was that the loader was appropriate for moving one single bale at a time.  The judge rejected Beutler's comparison of the front-end loader's performance with that of the new Versatile machine he had purchased:
In my opinion, the Plaintiff used this FEL for a function that it was clearly not designed to perform in an effort to save himself both time and money. The Defendant at all times tried to make the Plaintiff happy with his purchase and demonstrated to him the proper use of the FEL. If the Plaintiff insists on using an implement in a fashion for which it is clearly not designed, it is difficult to see how the Defendant can be liable in contract. The Plaintiff called Mr. Edwards to indicate that in his opinion, the Plaintiff operated the FEL properly. The evidence on this point is not particularly useful as the Plaintiff would often be using the FEL where it could not be observed by Mr. Edwards and I do not accept that Mr. Edwards would have authorized the use of this particular FEL in lifting two bales vertically or even one bale vertically. The design speaks for itself.
Read the decision at: Beutler v. Leon's Manufacturing Company Inc.

Thursday, May 20, 2010

Canadian Natural Resources Ltd. found liable for damage to water well

Seismic activity by Canadian Natural Resources Ltd. (CNRL) in 2006 resulted in the loss of production from a water well owned by Robert Somerville, a cattle rancher.  The Provincial Court of Alberta found that CNRL was liable for nuisance as a result of the interference. 

CNRL had failed to pay to Somerville agreed permit fees under a contract for access to his property.  The Court awarded Somerville the permit fee owing of $777.  It did not award Somerville damages for crop loss as it found that this related claim had not been proven.  It also did not award Somerville anything toward the replacement cost of the well.  The Court found that the water well was going to need to be replaced in any event within five to ten years.  Somerville had made an application to the Farmer's Advocate Water Well Replacement Program and had received over $48,000 toward the total replacement cost of about $77,000.  The Court found that this payment exceeded the damages for which CNRL was liable, which would have been approximately $23,000 (based on the interest that could have been earned on the total cost of a new water well over the ten year period that the well was expected to last but for the interference of CNRL). 

Read the decision at: Somerville v. Canadian Natural Resources Ltd.

Wednesday, May 19, 2010

Vendor liable to tenants for winter wheat revenue lost when rental property sold

The Superior Court has awarded a couple the revenue associated with a wheat crop they lost when their landlord sold a farm out from underneath them. The defendant, Wendy Wilson, was the owner of two farms.  In 2002, she decided, after decades of carrying on a farming operation, to rent out her two farms.  The plaintiffs, Leslie and Tammy Young, were a husband and wife team who own approximately 600 acres of land and rent a further 1,000 acres on which they grow various crops including corn, soybeans and wheat.  They leased the two farms from Wilson and had already planted winter wheat on one of the farms in the fall of 2007 when they discovered that Wilson had listed the property for sale. 

Ms. Wilson sold the farm in question on April 30, 2008, with a closing date of May 2008. There is evidence, which was accepted by the judge in this case, that the purchaser knew that the crop of wheat was as a result of a tenant’s efforts. The judge also accepted that the purchaser was told by the vendor’s agent, that the tenant’s input costs were $9,000.00, which the purchaser agreed to pay. The purchaser did not deal directly with the tenant. This litigation arose because Ms. Wilson sold the purchaser a crop of wheat which she did not own.

The wheat crop was valued at more than $43,000 and the court awarded damages to the plaintiffs in this amount.

Read the decision at: Young v. Wilson.

Tuesday, May 18, 2010

Southwest farmers tell oil company to forget pipeline - Winnipeg Free Press

Southwest farmers tell oil company to forget pipeline - Winnipeg Free Press

It's a showdown between a group of Manitoba farmers, who want to get their crops in the ground, and a big oil company from Houston. ...

Ontario Minister of Agriculture releases decision on Ontario Pork

In February, I reported on a decision from the Agriculture, Food and Rural Affairs Tribunal reinstating Ontario Regulation 419, which required hog producers to sell their hogs through a marketing board, Ontario Pork: Ontario Pork recovers its marketing powers.  The Tribunal decision is available at: Minnema v. Ontario Farm Products Marketing Commission.

Last Thursday, the Minister of Agriculture in Ontario overturned much of the Tribunal's decision.  Ms. Mitchell treads lightly in her reasons for the decision, saying:
Before proceeding with my decision, however, I would first like to point out that my decision should not be taken to mean that I do not have confidence in the Tribunal. Indeed, I believe that the Tribunal serves an important function within Ontario’s regulated markets. However, and as the Tribunal readily pointed out in its decision, the adversarial process is not necessarily well-suited for resolving complex policy-laden questions. Often, the parties present their favored position(s) without examining or providing information to capture the larger policy issues in which their dispute(s) arise. This, in turn, leaves the decision-maker in a difficult position.
Ms. Mitchell then goes on to restore the earlier policy decision to open up the marketing of hogs in Ontario beyond Ontario Pork:
I support the Commission’s open market approach for the Ontario Hog Industry. The Commission’s decision provides for a clearer path forward. It will help to create stability in Ontario’s Hog Industry by resolving an outstanding issue that has been ongoing for more than 10 years now.
I also think that it is important to note that my policy choice of adopting an open market system for Ontario’s Hog Industry does not prohibit the Board from offering marketing services to hog producers. It is clear from the submissions I received that some producers would prefer to continue to use the Board’s marketing services if an open market system were to be implemented. For example, either party to an agreement would still be able to rely on the Board’s expertise to review and provide comments on contracts if they wanted. Further, I note that the Board’s submissions contemplate the Board continuing to offer marketing services in the near term. And, I would encourage the Board to continue to offer its marketing expertise to Ontario’s Hog Industry.
The Board would, however, have to operate somewhat differently. For example, the Board would have to administratively separate its marketing side from its regulatory side to eliminate any potential conflict of interest and/or bias issues of being both the regulator and the regulated. Such a division would also have to include separating any fees the Board may receive for its regulatory functions from its marketing functions in order to ensure that the Board is not receiving an unfair competitive advantage over others who may want to offer marketing services. If the Board is to continue to market hogs, I expect that it will consult with the Commission on how best to separate its marketing function from its regulatory function.
Read the full decision at: Minister's decision.

Monday, May 17, 2010

Ontario Government undertaking review of 2005 Provincial Policy Statement on land use planning

Review of the Provincial Policy Statement, 2005

Description of Policy:

The Province is undertaking a review of the Provincial Policy Statement, 2005 (PPS) to determine the need for revisions. The PPS sets out the Ontario government’s policy direction for land use planning and development and is the integrated, consolidated statement of all provincial ministries’ policies concerning land use.

The PPS is issued under the authority of Section 3 of the Planning Act and came into effect on March 1, 2005. The PPS plays a key role in Ontario’s land use planning system by providing policy direction on matters of provincial interest. It is the basis of the Province’s policy-led planning system and provides the foundation necessary to regulate the development and use of land. The PPS applies province-wide and provides the policy basis upon which provincial plans such as the Growth Plan for the Greater Golden Horseshoe and the Greenbelt Plan are built.

The Planning Act requires that decisions on planning matters made by municipalities, the Province, the Ontario Municipal Board and other decision-makers “shall be consistent with" the PPS. This includes, for example, when municipalities develop their official plans and zoning by-laws. This standard ensures that the policies in the PPS are applied as an essential part of the land use planning decision-making process.

The PPS recognizes the complex inter-relationships among economic, environmental, cultural and social factors in land use planning, and embodies good planning principles.

The PPS includes the following major policy areas:

Building Strong Communities

The PPS provides policy direction to help build strong communities in Ontario through, for example:
the effective management and use of land to meet current and future needs

the protection of employment areas and other policies to promote economic development and competitiveness

the provision of a range of housing types (including affordable housing) and densities to meet the needs of current and future residents

the availability of appropriate infrastructure, e.g., transportation systems, and sewer and water services, to accommodate projected needs

the promotion of energy efficiency and minimizing negative impacts to air quality.  
Wise Use and Management of Resources

The PPS protects Ontario’s natural heritage (e.g., wetlands and woodlands), water, agricultural, mineral, petroleum, mineral aggregate, cultural heritage and archaeological resources. The protection of these important resources helps to ensure Ontario’s long-term prosperity, environmental health and social well-being.

Protecting Public Health and Safety

The PPS protects people, property and community resources by directing development away from natural or human-made hazards (e.g., flood plains or contaminated lands).

The input the province receives through consultation is an important part of the PPS review. The government is interested in hearing from you on the following questions:
What policies of the current PPS are working effectively?

Are there policies that need clarification or refinement?

Are there policies that are no longer needed?

Are there new policy areas or issues that the Province needs to provide land use planning direction on?

Is additional support material needed to help implement the PPS?

Do you have any other comments about the PPS?
Purpose of Policy:

The purpose of this Policy Proposal Notice is to inform the public that the Province is:
reviewing the PPS for the purpose of determining the need for revisions, in accordance with subsection 3 (10) of the Planning Act; and,

seeking comments on the questions identified above.
This is just one opportunity for you to participate in the PPS review and help improve Ontario’s land use planning system.

Other Information:

The following information is available on the Ministry of Municipal Affairs and Housing web site:

Provincial Policy Statement Five Year Review: http://ontario.ca/pps.

Public Consultation:

This proposal has been posted for a 111 day public review and comment period starting May 12, 2010. If you have any questions, or would like to submit your comments, please do so by August 31, 2010 to the individual listed under "Contact".

On-line submission of comments on this proposal is not permitted.

All comments received prior to August 31, 2010 will be considered as part of the decision-making process by the Ministry of Municipal Affairs and Housing if they are submitted in writing and reference EBR Registry number 010-9766.

Please Note: All comments and submissions received will become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered by the decision maker for this proposal.

Other Public Consultation Opportunities:

In addition to this EBR posting, the Ministry has developed a PPS review e-consultation web site at http://ontario.ca/pps. This web site provides further information about the review and provides the public an opportunity to comment.

Comments can be submitted electronically to: PPSReview@ontario.ca and via the Provincial Policy Statement Five Year Review page: http://ontario.ca/pps.

To submit written comments, please forward your response to:

PPS Review
Ministry of Municipal Affairs and Housing
Provincial Planning Policy Branch
777 Bay St., 14th Floor
Toronto, ON M5G 2E5
Tel: (416) 585-6014 or 1-877-711-8208
Fax: (416) 585-6870

This is just one opportunity for you to participate in the PPS review and help improve Ontario’s land use planning system. Please check the ministry website for regular updates on other opportunities for you to participate: http://ontario.ca/mah.

Saturday, May 15, 2010

Apache Pipeline seeks to abandon pipe in Alberta pasture land


Apache Canada Ltd. has applied to the National Energy Board (NEB) for leave to abandon a pipeline in place in Alberta.  In its application, Apache advised that it had "abandoned" the line in 2005, and is at this time only really applying for a change of corporate name.  The application can be viewed at: Apache Canada Ltd. Section 74(1)(d) Application.

Yesterday, the NEB wrote to Apache requiring additional information to be filed, including information about what consultation will be undertaken with affected landowners.  In its application, Apache had said that no consultation was necessary because the line was already abandoned in 2005.  The Board's letter can be viewed at: NEB Letter to Apache with information requests.

This application raises interesting an interesting question - just how many "abandoned" pipelines are sitting out there?  In spite of the law prohibiting the abandonment of a pipeline without NEB approval, Apache "abandoned" its pipeline nearly five years ago with no consultation with landowners.

Friday, May 14, 2010

National Energy Board Chair says Canadian regulations adequate - is he right?

The National Energy Board (NEB) has released the opening statement by Gaeton Caron, Chair of the NEB, to the Parliamentary Standing Committee on Natural Resources on the issue of the emergency response to offshore oil and gas drilling.  While Caron deals mainly with the risk of a repeat of the BP disaster in Canada, he makes several broad statements about the effectiveness of NEB regulations in protecting the environment and lands.  He talks about the "stringent" environmental assessments of projects undertaken by the NEB.  He also says that, "NEB-regulated companies are fully responsible for anticipating, preventing, mitigating and managing incidents and oil spills of any size or duration."  Is this the experience of NEB-regulated landowners in Canada?  Is "goal-oriented regulation" working for Canadian landowners?

Read Caron's opening statement at: National Energy Board Opening Statement.

Thursday, May 13, 2010

Recovering court costs as compensation for expropriation - OMB decision

With the Smith v. Alliance Pipeline case heading to hearing before the Supreme Court of Canada this October, I was surprised to hear that the Ontario Municipal Board, similar to the Pipeline Arbitration Committee under the National Energy Board Act, had itself made a decision in 2008 awarding court costs to landowners as part of the expropriation compensation process.  Farmland owned by Dale and Mary McKean was expropriated by the Ministry of Transportation (MTO), but not before the Superior Court of Justice had to decide exactly what land was available to be expropriated.  There was an issue as to whether certain portions of the farm were actually public roads that had never been opened.  If the lands were public roads, then no expropriation (and no compensation) was necessary.

The MTO was successful in the court case, and costs were awarded against the McKeans in the amount of $1,550.  The McKeans themselves had expended approximately $55,000 in legal costs.  Before the OMB, they sought to recover those costs under Section 32 of the Expropriations Act as costs incurred for the purpose of resolving their compensation claim related to the expropriation.  The OMB ruled in their favour:
The Board finds that if s. 32(1) is given its proper interpretation, the McKeans are entitled to compensation by the MTO for costs associated with the Court Proceedings. The Board finds that the McKeans actually incurred costs in association with the Court Proceedings and that these proceedings were for the purposes of determining compensation payable for the expropriation and injurious affection. But for the proceedings before the Court, the MTO could not have determined what lands would be expropriated or to what extent, and therefore what compensation would be payable to the McKeans.
As far as I know, this decision was not appealed and was not cited by the Federal Court of Appeal in its decision in the Smith v. Alliance Pipeline case.  While the facts of the two cases are not entirely the same, they are similar.  However, the main distinction between the cases is that in Smith the court costs were pursued as damages, while in McKean the court costs were pursued as costs under the Expropriations Act.  It seems less likely that court costs could be recoverable under the costs provision of the NEB Act since it provides only for costs incurred "in asserting that person's claim for compensation".

Read the decision at: McLean v. Ministry of Transportation.  Thanks to Lindsay Lake at my firm for bringing this decision to my attention.

Wednesday, May 12, 2010

BP has fought safety measures for deepwater oil rigs since Clinton days

WASHINGTON - BP, the company that chartered the Deepwater Horizon oil rig that caught fire and sank in the Gulf of Mexico in April, spent years battling federal regulators ...

Read Noel Griese's full article at: Energy Pipeline News.

National Energy Board cancels Same Season Relief Well hearing

The National Energy Board (NEB) has now cancelled outright the hearing process announced in February to review the need for relief wells associated with offshore oil drilling.  In an earlier post I commented on the effect the BP disaster in the Gulf of Mexico has had on that hearing process and on the NEB's policy of "goal-oriented regulation".

Now, rather than addressing the particular question of relief wells (work on a relief well in the Gulf of Mexico is currently under way, but won't be ready for months), the NEB plans a general review of Arctic safety and environmental offshore drilling requirements.  The NEB says, "Full details of the review will be announced in the near future, when the focus in the Gulf of Mexico shifts from stopping the leak and protecting the environment to understanding what happened. The process will be public and consultative. The NEB will welcome the participation of other regulators in this process."

Click on this link to view the NEB's Press Release.

Tuesday, May 11, 2010

The farm, the break-up and unjust enrichment

Regina Domisiewicz and Bruno Lampart cohabited in a marriage-like relationship from in or about August 1992 until January 13, 2006. They did not have children together; however, Ms. Domisiewicz had a daughter, Joanna, who lived with the parties from the age of 12 until she turned 22. The plaintiff, Ms. Domisiewicz, sought a declaration from the B.C. Supreme Court that the defendant, Mr. Lampart, was unjustly enriched through her efforts on his farm and financial contributions and that she has suffered a corresponding deprivation. In particular, Ms. Domisiewicz claimed an interest by way of constructive trust in respect of two properties registered solely in Mr. Lampart’s name.

Under provincial family law statutes, spouses are entitled to a share of the "net family property" on the breakdown of marriage.  In this case, where the parties were not married, the division of property depends on the Common Law and principles of Equity. 

Mr. Lampart opposed Ms. Domisiewicz’s claim for a division of assets based on unjust enrichment and constructive trust.  He maintained that Ms. Domisiewicz did not suffer any deprivation because she was enriched by the lifestyle she enjoyed while living on his property and was able to rent out her own property, provide her daughter with a residence, and ultimately sell her own property for a considerable profit. In the alternative, Mr. Lampart argued there was a juristic reason for the deprivation because the parties had an agreement that her financial contribution and labour represented rent for Ms. Domisiewicz and her daughter while they resided in the Family Residence.  In the further alternative, Mr. Lampart argued that if a division of assets is ordered, only the Family Residence should be divided and any interest accorded to Ms. Domisiewicz should be minimal.

In order to succeed in a claim for unjust enrichment, Ms. Domisiewicz had to demonstrate:
  1. That Mr. Lampart was enriched by her contributions;
  2. That she was correspondingly deprived by contributing to Mr. Lampart;
  3. That there was no jurisitic reason for the enrichment.
In other words, Ms. Domisiewicz needed to show that she had provided, to her detriment, a benefit to Lampart for no "juristic" or legal reason (e.g. under a contract or other legal obligation owed to him).  Perhaps there were non-legal reasons to justify her contribution and Lampart's enrichment, but in this case the Court was concerned only with legal justifications.

In the end, the Court found not only that Mr. Lampart was unjustly enriched and that the appropriate remedy was to provide Ms. Domisiewicz with a beneficial interest in his property (i.e. the constructive trust - a trust created by the Court), but that Ms. Domisiewicz was also unjustly enriched at the expense of Mr. Lampart.  The Court found that there was a benefit conferred on Ms. Domisiewicz in the form of shelter and a contribution toward her living expenses.  Had Ms. Domisiewicz and her daughter, Joanna, lived on their own they would have incurred living expenses such as rent or mortgage payments, food, and clothing.  Mr. Lampart’s home also afforded them an opportunity to live in a rural environment which was their preference. More directly, Mr. Lampart’s provision of shelter permitted Ms. Domisiewicz to rent out her Salton Road Apartment as a means of earning income and paying off the mortgage. Lastly, Mr. Lampart provided some used appliances for the Salton Road Apartment and recommended the installer that Ms. Domisiewicz hired to replace the floors.

Read the decision at: Domisiewicz v. Lampart.

Monday, May 10, 2010

NS Court of Appeal upholds punitive damages claim against insurer in dairy barn case

At trial, a jury awarded Adrian and Kelly Ackermann of Nova Scotia $265,000 (the maximum payable under their insurance policy) in connection with damage caused to their dairy barn by Hurricane Juan in 2003.  The Ackermann's insurer, Kings Mutual, had denied coverage, although it was agreed that the hurricane was a "wind storm" within the meaning of the policy and was covered.  Kings Mutual denied that any damage had been caused to the barn.

In addition to the main damages award, the jury at trial also awarded $55,000 in punitive damages against Kings Mutual, having found that the denial of coverage was made in bad faith and that the insurer's conduct offended the jury's sense of decency (click on the link to the decision below to read the extensive report of the facts of the case).  Punitive damages are only awarded in rare and exceptional circumstances where a party’s actions are deserving of punishment, deterrence or denunciation.  Normally, damages are compensatory - designed to put the injured party back in the place they were before suffering the injury.  Punitive damages are about punishment for exceptionally wrongful conduct.

Kings Mutual did not appeal the main award of damages, but did appeal the award of punitive damages to the Nova Scotia Court of Appeal.  The Court of Appeal ruled with respect to the jury's decision on the issue:
The jury’s answers to the questions put to it clearly indicate its findings of bad faith in relation to Kings’ denial of coverage under the policy and that King’s conduct offended its sense of decency. This indicates the jury was satisfied Kings’ conduct of its investigation was outrageous. My review of the record satisfies me that this was a conclusion a reasonable jury could reach and that an award of punitive damages was a rational response on the jury’s part to its findings. It was not an inevitable or unavoidable response, but it was a rational response to what the jury saw and heard. Without an award of punitive damages, Kings would not have been required to pay more than its policy required it to pay and there would be nothing to deter it from acting similarly in the future; by not following up on all of the evidence relevant to a claim, withholding critical information from the adjuster engaged to investigate a claim and allowing the adjuster to present the results of his or her investigation in a partisan, biased and unobjective manner. The actions of Kings were exceptional, justifying an exceptional remedy.
Read the decision at: Kings Mutual Insurance Company v. Ackermann.

Saturday, May 8, 2010

Cape Breton farm awarded to estate of son who came back from Ontario to help parents

Vinnie MacRae was one of eight siblings born to Dan Joe and Sadie MacRae in Cape Breton.  In the early 1970's, Dan Joe became ill with cancer and asked his son Vinnie to return from Windsor, Ontario, where Vinnie was working at a Chrysler plant.  Vinnie was about to be married.  He asked his other siblings if one of them would go, but no one else wanted to return.  So Vinnie and his soon to be wife, Theresa, moved back. 

Dan Joe died in 1975 and his entire estate went to his wife, Sadie.  Over the next 27 years, Vinnie and Theresa lived on and worked the farm, raising 4 children of their own.  Sadie lived with them.  Sadie fully expected that Vinnie would outlive her.  Therefore, in order to deal with the farm property, she became a joint tenant with Vinnie, so that when she died the property would go to Vinnie.  Unfortunately, Vinnie died in 2002, the year before Sadie's death.  Because they were joint tenants, the property vested entirely in Sadie's estate, meaning that the farm would likely be divided amongst all of the children of Dan Joe and Sadie (Sadie did not have a will). 

Theresa, Vinnie's widow, made a claim against Sadie's estate, arguing that there was a resulting trust in favour of her husband's estate.  Sadie had intended for the farm to go to him, and he and his wife had earned the farm through their work and dedication over the past 27 years.  The court agreed, finding that it would be unjust and contrary to Sadie's intention to deprive Vinnie's estate of full ownership of the farm.

Read the decision at: Re MacRae Estate.

Friday, May 7, 2010

BC Court rejects challenge of marketing board ruling that farmers cannot rent out milk quota

Lilian and Sandy Stewart (the “Stewarts”), are dairy farmers and owners of milk quota. They had a contract milking agreement with a third party, Steven Verdonk, to “milk” their lower mainland quota rather than milk it themselves, in contravention of the rules of the quota system in British Columbia.  The British Columbia Farm Industry Review Board (the “BCFIRB”) and the B.C. Milk Marketing Board (the “Milk Board”), became aware that many quota holders, like the Stewarts, were renting out their quotas contrary to the rules of the quota system, and therefore began a process of regularizing the system, including dealing with the non-compliant quota holders and those who rented from them.  On November 7, 2008, the Milk Board made a decision to retract the Stewarts’ milk quota due to their non-compliance with the rules and to allocate the quota to Mr. Verdonk. The Stewarts appealed the Milk Board’s decision to the BCFIRB.  In a decision released on February 26, 2009, the BCFIRB dismissed the Stewarts’ appeal.  The Stewarts then made an application for judicial review of the Board's decision.

In its hearing of the judicial review application, the B.C. Supreme Court found that:
  • the treatment of the Stewarts' issues by the Board was not unfair;
  • the procedural aspects of the hearing by the Board did not demonstrate unfairness; and,
  • the decision itself of the Board was not patently unreasonable (or unreasonable at all).
On this basis, the judicial review application was dismissed. 

Read the decision at: Stewart v. British Columbia Farm Industry Review Board.

Thursday, May 6, 2010

Butternut Trees on your Ontario farm? Be aware of the Endangered Species Act, 2007

The following is a notice posted yesterday on the Environmental Bill of Rights (EBR) Registry in Ontario in connection with the proposed removal of ONE butternut tree:

Title:
Permit under clause 17(2) (c) of the Endangered Species Act, 2007 for Removal of one Butternut tree by Hydro One
 
Members of the public are invited to submit their written comments by June 21, 2010 to the contact person listed in this notice.

Rationale for Exemption to Public Comment:
 
This proposal is not prescribed by Ontario Regulation 73/94 under the Environmental Bill of Rights as a classified proposal for an instrument.

Ministry of Natural Resources (MNR) is voluntarily posting this notice to advise the public of the proposal and to invite the public to submit written comments on this proposal to the contact person identified in this notice.

Description:

Hydro One (applicant) has applied for a permit for the removal of one Butternut tree (Juglans cinerea) for the purpose of clearing and maintaining a transmission corridor beneath a transmission line located in Ottawa, Ontario.

Butternut is listed on the Species at Risk in Ontario List, in Ontario Regulation 230/08 under the Endangered Species Act, 2007 (ESA), as an endangered species. Clause 9 (1)(a) of the ESA, provides that no person shall kill, harm, harass, capture or take a living member of a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species.

The health of the Butternut tree at this site has been assessed by a qualified Butternut Health Assessor and was determined not to be severely affected by Butternut Canker and therefore retainable. The identification of retainable trees is based on an assessment of crown dieback and the coverage of the stem and root flare by cankers conducted by a qualified Butternut Health Assessor. Retainable trees do not qualify for the exemption in section 5 of Ontario Regulation 242/08 under the ESA and can not be removed without an authorization. The retainable Butternut tree within this project area would be removed.

The Minister may issue a permit to an applicant under clause 17(2)(c) of the ESA that authorizes the person to engage in an activity that would otherwise be prohibited by section 9 or 10 of the ESA if the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but,

(i) the Minister is of the opinion that an overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit,

(ii) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted, and

(iii) the Minister is of the opinion that reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit;
The options of leaving the tree in its current location and avoiding or transplanting it have been examined. The location of the Butternut tree would cause it to come in contact with overhead hydro-electric lines and potentially cause a future safety risk. Transplanting the tree has been considered as an option, but the tree is too large to be transplanted successfully.

An overall benefit could be achieved for Butternut by planting and tending replacement trees. Based on the size of the Butternut tree threatened with removal (i.e. diameter at breast height), the Forest Gene Conservation Association guidelines recommend that the applicant plant 5 seedlings from a local seed source in suitable sites. The ratio of five seedlings planted per tree removed is intended to provide an overall increase to the seed production capacity of the species. Establishing and tending to these seedlings in a protected area will result in a net increase in the local reproductive potential for the species.

To achieve overall benefit for Butternut, the applicant is proposing to plant a total of five new Butternut seedlings in Coronation Park, owned by the City of Ottawa. Hydro One would plant, tend and monitor the seedlings for a period of five years from the time of planting. Under the supervision of a qualified professional biologist or forester, the five Butternut trees would be planted in locations suitable to support Butternut. Tending and monitoring of the Butternut seedlings on site would take place over a five year period to ensure that at least half of the planted trees will be alive (e.g., a minimum of three Butternut trees at the end of five years). These newly planted Butternut trees will receive protection under the ESA.

Purpose of the Notice:

The purpose of this notice is to ensure that the public is made aware of, and given an opportunity to comment on, the proposal, including the proposed conditions and outcomes of the permit for which the Hydro One is applying in order to remove one Butternut tree. The proposed permit would be issued under clause 17(2)(c) of the ESA.

Decision:

This notice will be updated when more information is available.

Other Information:

Please email comments to Esa.permits.agreements@ontario.ca and quote the registry number in the subject line.

The following web-links provide additional information about this notice:

Endangered Species Act, 2007 (Section 9 and 17 are sections of the Endangered Species Act that are referred to in this posting)

Butternut Tree Regulation  Section 5 of general regulation 242/08 addresses the exemptions pertaining to Butternut

Wednesday, May 5, 2010

Turkey farmer's appeal denied by the Agriculture, Food and Rural Affairs Tribunal

Ontario's Agriculture, Food and Rural Affairs Tribunal has dismissed an appeal by John Petropoulos of Smithville from a decision of the Turkey Farmers of Ontario (TFO) which denied his request for revision or revocation of an "over marketing penalty".

John Petropoulos, Angela Petropoulos and A & V Petropoulos of Smithville, Ontario are turkey producers and hold quota issued by the Turkey Farmers of Ontario (TFO) under two legal entities, 708022 Ontario Limited and A & V Petropoulos.  During the quota year which ended April 30, 2009, the Appellants discovered that 708022 Ontario Limited had not obtained the required lease and approval from TFO to produce turkeys on the property owned by A & V Petropoulos.

As a result of 708022 Ontario Limited not having the lease in place, A & V Petropoulos, producers themselves, committed an over marketing of their quota by 57,034 kgs. The Board did not allow A & V Petropoulos to cover the over marketed kilograms with the unused kilograms from 708022 Ontario Limited. The Board's decision included forgiveness of the 57,034 kilogram reduction that would have been deducted from the marketing quota in the 2009/2010 quota period, and a fine of 22 cents per kg for the over production assessed against A & V Petropoulos. The total fine levied was $13,174.85.

Since the error did not actually result in an over-production of turkeys into the marketing system, Petropoulos asked that the fine be waived and in its place a late filing fee be imposed.  The Tribunal refused this request, finding that TFO's treatment of the situation was fair and reasonable, especially in light of the fact that no leases were in place for 2005, 2006 and 2007 either.

Read the decision at: John Petropoulos v. Turkey Farmers of Ontario.

Tuesday, May 4, 2010

Same Season Relief Well issue before the NEB - What will be done in Canada to avoid a repeat of the BP disaster here?

Somewhat ironically, the National Energy Board had started a hearing process in February, 2010 to review its Same Season Relief Well (SSRW) policy, just weeks before the BP drilling rig explosion and oil spill in the Gulf of Mexico (relevant documents can be viewed at: MH-1-2010.  BP has been criticized for not having relief wells in place to reduce the pressure in its damaged well that is now spewing oil onto the Gulf coast. 

Here's what BP said in its submission to the NEB in March:
As will be discussed in greater detail below, for both technological and operational reasons, continuance of the SSRW capability is not required and is problematical for BP and other operators, and may well impede further exploration in the Beaufort Sea.

BP is advocating that the policy be changed by eliminating the requirement for same season relief well capability, and any time-of-year drilling restrictions associated with that policy. In BP's view, consistent with the on-going development of goal-oriented regulation, the Board should utilize a series of goals and objectives to enhance safety and protection of the environment.
That was in March.  Of course, in April, BP's operations in the Gulf of Mexico have initiated the worst environmental disaster in the United States since the Exxon Valdez.  Is "goal-oriented regulation", which is the NEB's policy in dealing with safety and the environment, right for Canada?  Where the goal is to avoid environmental disasters, does "goal-oriented" regulation (i.e. set the goal and let industry decide what needs to be done to achieve the goal) do any good?

For its part, Conoco Phillips wrote to the NEB on Monday to suggest that the hearing process be put on hold pending the investigation of the BP disaster: Conoco Phillips to NEB.

Monday, May 3, 2010

Construction underway on Manitoba's largest wind farm

CBC News - Manitoba - Construction underway on wind farm

An official groundbreaking for a wind farm near St. Joseph, MB was held on Thursday. The project proponent, Pattern Energy of San Francisco, expects the first turbines to be in operation by the end of this year. Read the CBC News story at the link above.

My original post about this project is at: Deal Struck to Build $345 million wind farm.