Early summer storms

Early summer storms

Monday, March 28, 2011

Ontario Water Source Protection Plans

Conservation Authorities across Ontario are completing Assessment Reports related to water source protection planning.  Some reports are still at the draft stage, but most have passed through a 35-day public consultation period (noted as "proposed" below).  Several reports have been approved.  To view the status of the assessment report in your source protection area, click on the following link: Source Protection.  There are links there to the reports themselves as well.

Ausable Bayfield Conservation Authority ProposedAR
Cataraqui Region Conservation Authority ProposedAR
Catfish Creek Conservation Authority ApprovedAR
Central Lake Ontario Conservation Authority ProposedAR
Conservation Halton ProposedAR
Credit Valley Conservation ProposedAR
Crowe Valley Conservation Authority ProposedAR
Essex Region Conservation Authority ProposedAR
Ganaraska Region Conservation Authority ProposedAR
Grand River Conservation Authority ProposedAR
Grey Sauble Conservation Authority ProposedAR
Hamilton Region Conservation Authority ProposedAR
Kawartha Conservation ProposedAR
Kettle Creek Conservation Authority ApprovedAR
Lake Simcoe Region Conservation Authority DraftAR
Lakehead Region Conservation Authority ProposedAR
Long Point Region Conservation Authority ProposedAR
Lower Thames Valley Conservation Authority ProposedAR
Lower Trent Conservation ProposedAR
Maitland Valley Conservation Authority ProposedAR
Mattagami Region Conservation Authority ApprovedAR
Mississippi Valley Conservation ProposedAR
Niagara Peninsula Conservation Authority ProposedAR
Nickel District Conservation Authority ProposedAR
North Bay-Mattawa Conservation ProposedAR
Nottawasaga Valley Conservation DraftAR
Otonabee Conservation ProposedAR
Quinte Conservation ProposedAR
Raisin Region Conservation Authority DraftAR
Rideau Valley Conservation Authority ProposedAR
Saugeen Conservation ProposedAR
Sault Ste. Marie Region Conservation Authority ProposedAR
South Nation Conservation Authority DraftAR
St. Clair Region Conservation Authority ProposedAR
Toronto and Region Conservation ProposedAR
Upper Thames River Conservation Authority ProposedAR

Sunday, March 27, 2011

Equipment Company had no right not to renew dealer agreement: Appeal Tribunal


In 1987, CFEI became a dealer with Ford New Holland Inc., CNH's predecessor. In June 1999, Ford New Holland sent CFEI a letter advising that it would not renew the existing Dealer Agreement and that it would terminate effective December 31st, 1999. Ford New Holland then offered CFEI the opportunity to continue as a dealer under a new Dealer Agreement.  The new Dealer Agreement created a one-year renewable term. The term renewed automatically unless either party gave at least ninety days written notice of its intention not to renew.

Both the 1987 and 1999 version of the Dealer Agreement are very similar. Both Dealer Agreements are standard form contracts drafted by the farm implement manufacturer. CFEI had no opportunity for input into any of the terms. The reality for CFEI was that if it wished to be a CNH dealer, it was obliged to sign the standard form Dealer Agreement without any changes.

In late September 2006, CFEI received a letter from CNH dated September 30th, 2006 advising CFEI that CNH would not renew the Dealer Agreement at the end of 2006.  That letter explained that CNH based its decision not to renew on "serious breaches" of the Dealer Agreement.  That letter also explained that CFEI had failed to "achieve and maintain a reasonable market share" during the previous four years. The letter included a chart giving an illustration of CFEI's performance in select product categories.

CFEI challenged the non-renewal of the relationship before the Agriculture, Food and Rural Affairs Tribunal pursuant to the Farm Implements Act.  The parties characterized the end of the relationship differently. CFEI characterized it as a termination while CNH characterized it as non-renewal. Regardless of the characterization, the practical result was the same, the end of the business relationship.

Section 35(c) of the Act provides that the Minister of Agriculture, Food and Rural Affairs may make regulations prescribing information to be included in a dealer agreement and setting out legal rights and obligations for parties to the agreement.  The Minister prescribed Ontario Regulation 123/06.  The Regulation came into force when filed on April 25th, 2006.  The Regulation created mandatory terms that must be included in any dealer agreement and that the Regulation deems are part of any dealer agreement. The Regulation provides that any provision in a dealer agreement contrary to the prescribed mandatory terms is void.

The Appeal Tribunal found that, despite any contractual wording to the contrary, CFEI has a prescribed right to renew the Dealer Agreement by giving CNH that written notice. Both counsel agreed that in this case the Dealer Agreement itself, which contemplated annual "auto-renewal", would satisfy the requirement from the Regulation for written notice. It was clear from the Dealer Agreement that the annual term starts January 1st and concludes December 31st.  While CNH had a contractual right not to renew the annual term before April 25th, 2006, the effect of the Regulation was to remove CNH's contractual right not to renew from paragraph 22 of the Dealer Agreement. The Regulation replaced that right with a regulated approval. Therefore, beginning April 25th, 2006, CNH no longer had any right not to renew the Dealer Agreement.

The consequence flowing from CNH's liability remains to be determined in the second phase of the proceeding.

Read the decision at: Chesterman Farm Equipment Inc. (CFEI) vs. CNH Canada Ltd. (CNH).

Tuesday, March 22, 2011

National Energy Board Easement and Control Zone Enforcement

The National Energy Board has invited pipeline companies and industry and other "stakeholders" to participate in an information and consultation session on April 28, 2011 in Calgary.  The session will deal with excavation and construction near NEB-regulated facilities and, more particularly, enforcement activities related to safety violations.  A table below shows the NEB's proposed response matrix.  Note the Board's statement that "depth of cover over pipeline may vary".  You can read the NEB letter and discussion document at: Information Session.


Sunday, March 20, 2011

Claim for loss of grain contaminated in arson fire struck as abuse of process

The Manitoba Court of Queen's Bench has struck out a claim by Raymond Michaud as an abuse of process on the basis that it was an impermissible collateral attack on a decision made by the Director of the Department of Conservation.  What is most interesting about the case is the fact situation.  On February 12, 2002, a fire occurred at Michaud's farm. He was injured and taken to hospital. An environmental officer with the Department of Conservation attended the farm and observed that the residence was completely destroyed and buildings and grain silos were saturated with a combination of gasoline and heating and/or diesel fuel. Samples of grain indicated the presence of elevated gasoline vapours and the environmental officer was of the view that there was potential for a further explosion or fire because of the condition of the grain.

Clean-up orders were issued, but Michaud failed to clean up the property.  The Department went ahead and did so and sent the bill to Michaud.  In his statement of claim filed in November 2004, Michaud initially sought a declaration that the Director’s three orders were made without jurisdiction and null and void. He later amended his action on December 23, 2008 to include a claim for $113,175 being the value of the grain destroyed, alleging that the destruction of the grain was pursuant to an order made without jurisdiction or unreasonably implemented.

The case before the Court of Queen's Bench actually came as an appeal from an earlier dismissal of the action by a Master (not a Judge, but an administrative official that exercises some of the functions of a judge).  On the appeal of the dismissal by Michaud, the Department put before the Court the fact that Michaud had been convicted of a number of criminal offences including arson arising from the fire at his farm.  The Court agreed with Michaud's lawyer that the convictions were irrelevant to the issue at hand.  However, that still didn't save the action.  The Director had made its decision and the only way to challenge that decision was through an appeal process or an application for judicial review.  Failing success on those challenges, Michaud was not permitted to sue the province on the basis that the Director's orders should not have been issued in the first place.

Read the decision at: Michaud v. Government of Manitoba.

Friday, March 18, 2011

Court of Appeal says trial judge was right to find cottagers may use farm lane

The Ontario Court of Appeal has upheld the decision of a Superior Court Judge which ruled that certain cottage owners in Northumberland County had acquired a prescriptive easement over a laneway on an adjacent farm property.  The owner of the farm property does not use the lane and does not want to pay for upgrades to the lane.  The municipality has refused to take responsibility for the lane until the farm owner upgrades the lane to municipal standards.  The cottage owners have not been prepared to contribute to the upgrades.

The farm owner had commenced a claim against the Municipality and the cottagers, asking that there be an order that no prescriptive easement had arisen and asking for an injunction to prevent use of the lane during the winter unless the cottagers made the necessary upgrades.

The Court of Appeal did not agree with the farm owner that the trial judge had made any reversible errors.  In dismissing the appeal, the Court awarded $15,000 in costs to the cottagers (who had sought $26,000).  The Municipality did not participate in the appeal.

Read the decision at: Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality).

Wednesday, March 16, 2011

NEB puts Damage Prevention Regulations on hold again

The National Energy Board has had draft "Damage Prevention Regulations" in the works for several years.  The new regulations would replace the "Pipeline Crossing Regulations" which mandate a process by which landowners and other users of land seek permission from pipeline companies for operations within the 30 metre control zone area (on either side of a pipeline easement). 

The NEB has once again put the new regulations on hold, citing responses it has received to recent requests for public input.  The NEB plans to seek further input from stakeholders who raised concerns in recent submissions.

Read the NEB letter making the announcement at: March 8, 2011 Letter to All Interested Stakeholders.

Friday, March 11, 2011

Enbridge reports to NEB on cracks in new Southern Lights LSr pipeline

Enbridge Pipelines Inc. has reported to the National Energy Board about cracks identified in its new Southern Lights LSr pipeline between Cromer, Manitoba and Gretna, Manitoba.  During construction of the NPS 20 Line 65 Cromer (CM) to Gretna (GF) section of the LSr Project, two hydrotest releases occurred. The first release occurred at construction KP 17+303 when a long seam defect failed. The second release was a pinhole leak that occurred at construction KP 54+348, also caused by a long seam defect. These two joints of pipe were removed.  Enbridge's study attributes the cracks to isolated events of power drop during welding.

Read the report at: Southern Lights Integrity Report.

Thursday, March 10, 2011

Radio Interview - Renewable Energy Developer Contracts "Basically Unregulated"

Click on the following link to read excerpts from an interview I gave to CKNX radio last Saturday following my presentation to the National Farmers Union conference in Guelph: Radio Interview.  There are also sound clips available:


Clip 1
Clip 2
Clip 3
Clip 4

Wednesday, March 9, 2011

Hanna challenge to Ontario setbacks for wind turbines dismissed by Divisional Court

In a decision released late last week, the Ontario Divisional Court has rejected a challenge by Ian Hanna of the Ministry of the Environment's minimum setbacks for wind energy projects.  The application for judicial review challenged the promulgation of sections 35, 53, 54 and 55 of O. Reg. 359/09 made under Part V.0.1 of the Environmental Protection Act (“the EPA”). The title of the regulation is the “Renewable Energy Approvals Regulation.” The affected sections in the regulation prescribe minimum setback requirements for wind energy facilities and require that they conform to the Ministry of the Environment’s published “Noise Guidelines for Wind Farms.” The regulation came into effect on October 1, 2009, following a period of public consultation ending July 24, 2009.

Section 11 of the Environmental Bill of Rights, S.O 1993, c. 28 (the “EBR”) requires the Minister of the Environment to “take every reasonable step to ensure that the ministry statement of environmental values (the “SEV”) is considered whenever decisions that might significantly affect the environment are made in the ministry.”  Hanna submitted that s. 11 of the EBR establishes a condition precedent for the decision by the minister to recommend promulgation of the regulation, and a breach of that condition renders his decision, and the regulation, ultra vires (or outside the authority of the minister).  In particular, the ministry’s statement of environmental values sets out principles the ministry will apply in developing Acts, regulations and policies. One of those principles is that “the ministry uses a precautionary science-based approach in its decision making to protect human health and the environment.”  Hanna contended that the minister failed to consider that “precautionary principle.”

In the end, the three-member panel of the Divisional Court found that the minister did comply with the process mandated by the EBR when he prescribed a setback requirement of 550 metres:
There was a full public consultation and a consideration of the views of interested parties. The ministerial review included science-based evidence, such as reports of the World Health Organization and the opinions of acoustical engineering experts. Cognizant of the possible health concerns the minister decided the minimum 550 metre setback was adequate. He made that decision knowing the adequacy of the minimum setback could be challenged in any particular case before a specialized tribunal.  In the context of the broad policy issues at play, the alternative protections provided by the Environmental Review Tribunal and the absence of clear evidence the 550 metre setback requirement is necessarily insufficient we find that the minister did comply with the requirement in s. 11 of the EBR, notwithstanding the “precautionary principle” in the statement of environmental values. The precautionary principle does not preclude the decision that was taken by the minister.
Read the decision at: Hanna v. AGO.

Tuesday, March 8, 2011

National Energy Board plans landowner telephone survey

The National Energy Board is planning to conduct a survey of pipeline landowners by telephone this year.  In a letter addressed to pipeline companies, the Board has asked companies to provide the following information about landowners: full name, tenant or landowner, province, telephone number, lanugage preference.  The information must be submitted by March 16, 2011.  Ispos Reid will be conducting the telephone survey. 

The NEB says that the purpose of the survey is to obtain the view of landowners on "their experiences with NEB-regulated pipeline companies operating pipelines across their property" and "their experiences with the NEB".  The survey is supposed to taken from a random sample of landowners from the contact information provided by companies.

Read the NEB's letter to companies at: Landowner Survey.

Monday, March 7, 2011

GuelphMercury.com: Protect farmland from energy projects, Guelph audience told

The Guelph Mercury newspaper has posted an article about a presentation I made to the Ontario Convention of the National Farmers Union on Saturday.  The message that I wanted to convey to the audience was that there is a right way to develop energy projects on farmland and a wrong way to do so.  As stewards of the land, farmers must do their best to ensure that energy projects do not remove land from production forever, as is the case with most urban development.  In the absence of strong provincial or municipal protections for farmland, preservation of the land for future generations is left to farmers.  They must resist the pressure to allow energy development to take place in a haphazard and destructive fashion.

Read the article at: guelphmercury.com.

Saturday, March 5, 2011

Chicken Processors denied party status in Tribunal Appeal

The Agriculture, Food and Rural Affairs Tribunal in Ontario has denied a request by the Association of Ontario Chicken Processors (AOCP) to be a party in an upcoming appeal by Henry Bos.  Bos has appealed decisions by the Chicken Farmers of Ontario (CFO) denying his request for the revocation of a policy and a regulation related to restrictions on extra-provincial marketing of poultry.  The appeal hearing is scheduled to begin this Monday.  AOCP has been granted intervenor status and can make submissions to the Tribunal.  However, it cannot file evidence and will not be permitted to cross-examine witnesses. 

AOCP's request was denied in large part because it was not made until the eve of the hearing.  AOCP is an organization that represents 11 chicken processors who reflect 95% of the Ontario chicken processing industry.

Read the decision at: Henry Bos v. Chicken Farmers of Ontario (CFO) AOCP Request for Party Status.

Wednesday, March 2, 2011

ABlawg.ca: Supreme Court's broad interpretation of Section 99(1) of the National Energy Board Act

A Masters of Laws student at the University of Calgary has written an article about the recent Supreme Court of Canada decision in Smith v. Alliance Pipelines: Supreme Court Broadly Interprets s. 99(1) of the National Energy Board Act.  He notes that the decision may be limited in application to cases where a landowner recovers 85% or better of what he was offered going into arbitration under the NEB Act.

Tuesday, March 1, 2011

New Agriculture-Wildlife Conflict Strategy in Ontario?

 
The Government of Ontario has developed strategies aimed at resolving conflicts between agriculture and wildlife in Ontario.  The conflict strategy is now up for public review and comment until April 11, 2011. 

Components of the strategy include:


• promoting producer awareness by developing and enhancing information resources;
• improving programs and tools for producers including compensation programs; and
• greater collaboration between the Ministry of Agriculture, Food and Rural Affairs (OMAFRA), the Ministry of Natural Resources (MNR) and stakeholders to provide a coordinated response.

Highlights of the Agriculture-Wildlife Strategy

• Enhanced information resources available to producers, such as:
o one-window information access for producers via a web site or information bundle; and
o improved knowledge transfer (e.g. workshops) for producers on best management practices.

• Improved programs/tools for producers such as:
o expanding the livestock damage compensation program;
o funding for strategic investments such as demonstration projects;
o continuing to manage wildlife populations (within sustainable limits) to help minimize agricultural conflicts by applying appropriate hunting seasons and quotas; and
o exploring improvements to coverage for wildlife damage to crops through Production Insurance.

• Greater collaboration between OMAFRA, MNR and stakeholders by creating an agriculture-wildlife conflict working group to ensure transparent implementation of the strategy.

A key part of the strategy will be to expand wildlife damage compensation programs for livestock. Changes to the Livestock, Poultry and Honey Bee Protection Act (LPHBPA) and regulation (R.R.O. 1990, 731, Application for Payment of a Grant) were made through the Open for Business Act, 2010. The changes provide the flexibility to update the wildlife damage compensation program for livestock to:

• allow an expanded list of eligible livestock species,
• expand the list of eligible wildlife species, and
• update the maximum values of compensation.

The LPHBPA also governs the liability of municipalities to compensate producers who have had livestock killed or injured by dogs.

Upon proclamation, the LPHBPA and Regulation 731 would be repealed and replaced with the Protection of Livestock and Poultry from Dogs Act. A new minister’s regulation will prescribe the maximum compensation values for livestock killed or injured by dogs under the Protection of Livestock and Poultry From Dogs Act for each livestock species named under the act. The methodology used to establish maximum compensation values for the new regulation will be developed through the proposed agriculture-wildlife conflict working group.

The new wildlife damage compensation program for livestock will be enabled through an Order-In-Council under the Ministry of Agriculture, Food and Rural Affairs Act. Details of the program framework is included in the additional materials section of this posting.

Purpose of Regulation:

The Ontario government is proposing an agriculture-wildlife conflict strategy as part of the implementation of the province’s Strategy for Preventing and Managing Human-Wildlife Conflicts in Ontario (2008).

Public Consultation:

This proposal has been posted for a 45 day public review and comment period starting February 25, 2011.
All comments received prior to April 11, 2011 will be considered as part of the decision-making process by the Ministry of Agriculture, Food and Rural Affairs if they are submitted in writing or electronically using the form provided in the notice and reference EBR Registry number 011-2677.

View the Environmental Bill of Rights Registry Notice at: Agriculture-Wildlife Strategy.