Lonely Oak

Lonely Oak

Tuesday, July 23, 2013

Ontario judge rules that, under "changing nature of farming", ATV was "self-propelled implement of husbandry"

A farmer used an ATV to travel on a public gravel road for approximately 30 seconds to get to a pasture to check on his sheep.  He was struck from behind by a truck and suffered permanent cognitive and physical deficits which amounted to a catastrophic injury for accident benefits purposes.  The driver of the truck was convicted of careless driving and other charges; the farmer was not charged.

The farmer sued the truck driver and his own insurance company (which apparently denied him benefits) and a motion was brought before trial to determine whether or not the ATV was a motor vehicle requiring insurance or was a "self-propelled implement of husbandry" which did not have to be insured in order to be used legally on a public highway.  This question arose as a result of arguments made by the Defendants: 1) the truck driver argued that the farmer's claim for damages for bodily injury was barred by the Insurance Act where the injured party was in contravention of the Compulsory Automobile Insurance Act (i.e. driving a vehicle without insurance); and, 2) the insurer argued that certain benefits were not payable to its insured because the Insurance Act made an exception where the driver knew, or reasaonably ought to have known, that he or she was operating an automobile while it was not insured. 

There is a statute in Ontario called the Off-Road Vehicles Act which generally requires an ATV to be insured in accordance with the Compulsory Automobile Insurance Act.  However, a regulation to that statute specifically excludes "self-propelled implements of husbandry", which are defined as self-propelled vehicles "manufactured, designed, redesigned, converted or reconstructed for a specific use in farming and used for farming purposes."  The farmer argued that the ATV had been designed and manufactured for farming use.

The Court agreed, providing the following analysis of the test applicable to self-propelled implements of husbandry:

I find it to be matter of common sense that to accurately, objectively, discern that the character of a self-propelled vehicle demonstrates that it was designed for a specific use in farming, and used for farming purposes, would require that the person making such objective assessment of that character, or use, be reasonably well informed about agricultural life, specifically animal husbandry. It is, again, only common sense that to objectively discern the character or function of any implement related to agriculture requires an understanding of farming. That objective discernment may not accurately exist in the person of a Bay Street lawyer living in Rosedale, or in a downtown high rise condominium, in Toronto. I find that such objective, accurate discernment does exist, not just in Arthur Matheson, but in the other persons well versed in the agricultural community in Eastern Ontario, such as Gary Whyte, Paul Carson and Shawn Gardiner, as well as the investigating officer, Dennis St. Louis, who is a member of the Ontario Provincial Police in this rural region.

The same lack of informed objective, accurate, discernment may also not be present in a fulltime farmer from Lanark County if he were asked to provide an opinion on an issue specifically related to urban living in a major Ontario city.
 
The issue, in this case, relates to the changing nature of farming, with which the statutory and regulatory definitions have not kept pace. While ATVs are also purchased by many people strictly as recreational vehicles, that is not true of the fulltime farming community, based on the evidence in this case. These vehicles are clearly now an integral part of virtually all fulltime farming operations. They need to be recognized as such and responded to appropriately by our laws.
 
The Ontario Ministry of Transportation “Farm Guide: Farm Equipment on the Highway” publication does not provide an exhaustive list of self-propelled implements of husbandry, but it does provide some examples. The definition of “implement” is also not exhaustive and includes items that are never, or extremely rarely, self-propelled, such as balers, ploughs, wagons, etc. It is of no real assistance in resolving this case, particularly the references to conversion of equipment which is not the issue here.
 
I find that any reasonably informed person about farming in Ontario, particularly beef and sheep husbandry, would readily discern the character and function of the vehicle driven by the Plaintiff, Arthur Matheson, on October 11, 2008, as being an implement manufactured and designed for a specific use in farming and animal husbandry. This is not a question of a specific use intended by this Plaintiff only. Based on the evidence provided in support of the Plaintiff, as referred to above, these machines are marketed and sold widely to farmers, as confirmed by the affidavits of people in the business of actually selling these machines, along with other farm implements.

Read the decision at: Matheson, et al, v. Lanark Mutual Insurance Company, et al.

Monday, July 22, 2013

Manitoba Court of Appeal upholds convictions for maintaining illegal trenches

Employees from the Department of Natural Resources (DNR) in Manitoba had investigated the unauthorized draining of wetlands on a farm in 1998.  The landowner obtained licenses from DNR for four specific wetlands, but the licence for Wetland #1 prohibited any drainage.  In 2000, a man-made trench draining Wetland #1 was discovered.  A charge was laid by the DNR, but subsequently stayed.
 
By 2008, it was discovered that both Wetlands #1 and #2 had been completely drained with two man-made trenches, neither of which had been authorized by DNR.  Wetland #1 appeared to have been cultivated and worked through with farm machinery.
 
The landowner was charged under the Water Rights Act with two counts of establishing or maintaining illegal trenches without a licence.  The trial judge convicted the landowner and fined him $1,500 on each count.  Although he determined that there was no evidence that the landowner had established, constructed or actively maintained the trenches, the trial judge decided that the fact that the landowner knew about the existence of the trenches and did nothing to eliminate them was evidence of passive maintenance sufficient to support the convictions.
 
On summary conviction appeal, the appeal judge determined that passive acts of maintenance were not sufficient to support convictions, but nevertheless upheld the convictions because: 1) for the first trench, there was evidence that a crop was planted and harvested there, meaning that the trench was actively maintained; and, 2) for the second trench, because it had not previously existed, the only reasonable inference was that it had been established or constructed by the landowner.

At the further appeal before the Court of Appeal, the Crown conceded that the summary conviction appeal judge had erred by upholding the convictions on the basis of facts not supported by the trial record.  There was simply no evidence that the appellant landowner had constructed or established the second trench in the time period cited in the charge or that he had planted and harvested in the first trench.  The question on the appeal therefore turned on the effect of "passive maintenance".

The appellant landowner argued that the prohibited act or "actus reus" of the offence required proof of active maintenance of the trenches; the Crown argued that keeping the trenches in existence without active maintenance would be sufficient.  The Court of Appeal agreed with the Crown's position and ruled that "maintenance" included keeping the trenches in existence without active maintenance.  The Crown did not need to prove that the landowner knew the trenches were on his land or that he actively maintained them.

Read the decision at: R. v. Dickson (W.A.)

Thursday, July 18, 2013

Dairy farm fined after renovating barn without renewing expired nutrient management strategy

From the Ministry of the Environment:

Dunnville Company Fined $5,000 for Violation of the Nutrient Management Strategy


Cayuga - A Dunnville company was fined $5,000 for constructing a building or structure to house farm animals or store nutrients without a nutrient management strategy having been prepared, contrary to the Nutrient Management Act.

"Environmental protection legislation protects communities and the environment. Breaking these rules can result in serious penalties and is an offence the ministry takes very seriously," said Environment Minister Jim Bradley.

Huigen Bros. Farms Ltd. operates a dairy farm in Dunnville in the County of Haldimand. Ministry staff notified the company that their original nutrient management strategy had expired and would need to be renewed. An inspection of the site revealed an existing barn was renovated to house dairy cattle without an approved nutrient management strategy in place.

The company was fined $5,000 plus a victim fine surcharge of $1,250 and given 60 days to pay the fine.

Company fined for manure discharge into municipal drain

From the Ministry of the Environment:

Shedden Company Fined $25,000 for Manure Discharge


St. Thomas - A Shedden company was fined $25,000 for discharging pig manure into the Kerstan Municipal Drain causing impairment to the quality of water.

"Polluters should be aware that the ministry's Investigations and Enforcement Branch will vigorously pursue charges when our environmental laws are broken," Environment Minister Jim Bradley.

G.H. Pennings Farms Inc. owns and operates a pig farm located in Southwold Township. The Ministry of Natural Resources received a call from a local resident regarding manure impacting a creek. The tip was relayed to the Ministry of the Environment and ministry inspectors attended the site. During the inspection, staff traced the source of the manure back to a holding lagoon located on the farm. The lab results of the water samples taken at the site showed impairment to water quality.

The company was fined $25,000 plus a victim fine surcharge of $6,250 and was given six months to pay the fine.