I last wrote about this case in 2010: Utzig #2 decision. As I explained in that post, the litigation concerns whether a pipeline owned and operated by the plaintiff Terasen Gas Inc. (“Terasen”) that runs through a portion of Burns Bog in Delta, B.C. was damaged or put at risk by landfill operations on lands owned by the defendant Utzig Holdings (B.C.) Ltd. (“Utzig”). The landfill operations were conducted, with Utzig’s permission, by the other defendants Alpha Manufacturing Inc., Burns Developments Ltd. and Burns Developments (1993) Ltd. (“Alpha” and “Burns”).
The BC Court of Appeal has now released a decision limiting the scope of the breach of covenants finding made by the lower court and dismissing in its entirely the claim in nuisance against the landowner.
The covenants by the "owner" to the "utility" read as follows: "Not to do or knowingly permit to be done any act or thing which might, in the opinion of [the utility], interfere with or injure the works or any part thereof" (1961 ROW agreements) and "Not to do or knowingly permit to be done any act or thing which might, in the reasonable opinion of [the utility], in any way whatsoever interfere with or injure or endanger the works or any part thereof or impair the operating efficiency thereof or create or increase any hazard to persons." (1981 instrument)
For the landowner Utzig, the issue was whether it had, at all material times or some material times, permitted other parties to endanger the pipeline. A key date was October 10, 1993, when Utzig entered into an Agreement for Sale of the property, which was never registered on title to the property. The purchase price of $4 million was to be paid in instalments by October 18, 1995. Terasen went to Court to seek injunctive relief prior to October, 1995, and the sale was never completed because the purchaser failed to pay the entire purchase privce when due. For this reason, Utzig remained the registered owner of the property at all material times.
Madam Justice Newbury ruled (on behalf of 2 of the 3 judges on the panel) that the breach of the covenant not to permit only lasted up to the October 10, 1993 date:
In the result, I agree with the trial judge that up to October 10, 1993, Utzig retained sufficient authority over the subject property that it should be regarded as having “permitted” Alpha to do acts that might have interfered with or injured the pipeline. This constituted a breach of covenant. If in fact the works were so affected in this period, damages may be found to be payable in the second stage of this litigation. In respect of the post-AFS period, however, I would allow Utzig’s appeal on the ground that having sold the property under the AFS, it was no longer in a position to “permit”, or withhold permission for, Alpha’s activities. This result, in my view, accords with the reality that once land has been sold, it is for the new owner to be responsible for new breaches of the terms of instruments (such as rights of way or restrictive covenants) that are registered against the land. If it were otherwise, vendors would be obliged to obtain covenants from their purchasers repeating the covenants in such instruments, and one of the primary advantages of the Torrens registration system would be lost.
The last issue decided on the appeal related to Terasen's claim for nuisance - that Utzig was responsible for the landfill activities conducted on its land with its consent and that such activities substantially interfered with Terasen's use of its rights of way. This claim related to the pre-October 10, 1993 period. Utzig submitted that the threshold of “unreasonable interference” was not met in this case, given the lack of evidence of any “significant movement” of the pipeline until late 1994 and the fact the pipe was never “injured” physically. The Court of Appeal ruled that, in the absence of clear evidence of substantial interference, the trial judge's finding of nuisance could not stand.
Read the decision at: Terasen Gas Inc. v. Utzig Holdings.