Tuesday, March 23, 2021

The Latest and Greatest in Organized Pseudolegal Commercial Arguments


In a previous article, I wrote about an “Organized Pseudolegal Commercial Argument” or “OPCA” that had made its way to the Ontario Court of Appeal.  In that particular case, the OPCA litigants claimed not to be subject to the Income Tax Act, the Excise Tax Act and the Ontario Business Corporations Act because the various legislation infringed their rights to life, liberty and security of the person as guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms.  They argued that the Charter provided them with a right to choose whether to be subject to Federal and Provincial laws – without their consent, they said, the laws did not apply to them.  The Court of Appeal disagreed.

The latest OPCA to come before the Courts reaches beyond the Charter of Rights and Freedoms and beyond Canadian law altogether.  It reaches across the Atlantic Ocean to the United Kingdom and, in fact, back through history to the 13th Century.  In what Justice Robert Graesser has coined “Magna Carta Lawful Rebellion” or “MCLR”, litigants are swearing allegiance to a UK nobleperson pursuant to Article 61 of the Magna Carta of 1215 and claiming that they are thereby released from the application of legislation, courts, police or government actors who are guilty of “high treason”.  In a case recently before Justice Graesser in the Alberta Court of Queen’s Bench, the purported representative of a mother involved in a family dispute explained the position as follows in her covering letter:

This is to inform you that [the mother] is Lawfully standing under Article 61 of the 1215 Magna Carta which was Invoked on March 23rd 2001 according to Constitutional Royal Protocol.  The Court of Queens Bench is an Unlawful Assembly with No Authority to deal with this matter since the Invocation of Article 61 thus All Judgments made by the Court of Queen’s Bench in this matter are Null and Void.  [The mother] and All of her Property are Protected by the Constitution and the People of the Commonwealth Realm.  We require the Immediate Restoration of Her Property see the enclosed Exhibit: G in the notice of Conditional Acceptance.

Failure to restore the Property of [the mother] within 7 Days of receiving this letter will constitute as High Treason, which still carries the Gallows.  I urge you to consider Eichmann v. the People “I was just doing my job” is no defence.  Nuremberg.

 Maxim in Law Ignorance of the Law is No Excuse

The “Property” shown in the photograph enclosed as “Exhibit: G” was, sadly, a four-year old girl, presumed by Justice Graesser to be the mother’s daughter.

The Magna Carta of 1215 was the result of negotiations between King John of England and rebel “baron” landowners to end an uprising by the landowners.  Article 61 of the Magna Carta authorized a counsel of 25 rebel barons to seize the “castles, lands, possession, or anything else” of King John if he did not adhere to the law’s terms.  The Article also provided that “[a]ny man who so desires may take an oath to obey the commands of the twenty-five barons…”. 

Flash forward to 2001, when a group of 28 new “rebel barons” sent a petition to Queen Elizabeth II asking that she withhold Royal Assent to any legislation that would ratify the European Union’s 2000 Treaty of Nice.  The Treaty, according to the petition, would lead to further “losses of national independence”, would “introduce an alien system of criminal justice”, would abolish habeas corpus and jury trials, would permit foreign “men at arms” into the UK, would undermine the chain of command of the UK military, and would make UK laws subject to an alien “Charter of Fundamental Rights”.  If Queen Elizabeth II were to assent to the ratification of the Treaty, she would breach her Coronation Oath, allegiances to her would be undone, and government would be by tyranny.

Nothing came of the 2001 “rebellion”, but MCLR litigants have since been swearing allegiance to Lord Craigmyle (one of the signatories of the petition sent to the Queen) and then claiming to have escaped the application of the law pursuant to Article 61 of the Magna Carta.  How does that relate to Canadian law?  The argument is that the Magna Carta was received in Canada as part of the Constitution.  It has been claimed to have “supraconstitutional” status as the “foundation of the rule of law itself”. 

In actual fact, the Magna Carta of 1215 does not have any legal effect in Canada or at all.  The Magna Carta of 1215 was repealed by the Magna Carta of 1216, made between the rebel barons and the regents of King John’s son, Henry III, following King John’s death in 1216.  The new Magna Carta did not include Article 61 or any other provision for a “lawful rebellion process”.  Subsequent versions of the Magna Carta were enacted over the years, of which only the 1297 Magna Carta has any remaining effect in UK law.  The immunity of the Church of England is recognized in Article 1.  “Ancient Liberties” are granted to the City of London in Article 9.  That the rights of “free-men” are not to be infringed except by legal processes is recognized in Article 29.

While those three sections of the 1297 Magna Carta (none of which relate to lawful rebellion) may continue to have some relevance in the UK, they have no effect in Canada.  When the UK Parliament passed the Canada Act 1982 (UK), c. 11, Justice Graesser writes, it cut the “jurisdictional linkage” between the UK and Canada.  Canada enacted its own constitutional legislation, The Constitution Act, 1982. 

What “pseduolaw” will they think of next?

Read the decision at: 2020 ABQB 790

Tuesday, March 16, 2021

ERT overturns OMAFRA decision, approves NASM Plan for sewage biosolids


The use of Non-Agricultural Source Materials (“NASMs”) in Ontario agriculture is on the rise.  NASMs are materials capable of being applied as a nutrient to farmland that do not come from agricultural sources.  Examples include leaf and yard waste, fruit and vegetable peels, food processing waste, pulp and paper biosolids, and sewage biosolids.  The last example, sewage containing human waste, is controversial.  Application of sewage biosolids to farm fields has raised concerns from nearby residents about odour and the risk of transmission of bacteria and viruses.

Ontario began to regulate land application and storage of NASMs under the Nutrient Management Act, 2002 beginning in 2011.  Anyone who wants to land apply or store sewage biosolids must have an NASM Plan prepared by an OMAFRA-certified plan developer.  The Plan must give effect to the following purposes: 1) “the optimization of the relationship between the land-based application of nutrients, farm management techniques and crop requirements”; and, 2) “the minimization of adverse environmental impact”.  The Plan must contain a contingency plan, including proposals for dealing with unanticipated releases of nutrients from storage or during transport or application and with the inability to store, apply or otherwise use materials or nutrients as a result of weather conditions or unavailability of equipment.

Most NASM Plans must be approved by OMAFRA.  Where approval is not granted, the applicant may appeal OMAFRA’s decision to the Environmental Review Tribunal (“ERT”).  In a recent decision, the ERT overturned a denial by OMAFRA of approval for an NASM Plan that included a new storage lagoon that would receive materials from various sources including washwater from confectionary, digestate mixed with pet food, digestate of grape skins, pomace and winery waste, washwater from winery, washwater from dairy processing facility and liquid anaerobically digested sewage biosolids.  OMAFRA’s Director had refused to approve the Plan on the basis that the proposed lagoon, to be owned and controlled by a non-agricultural operator, was not an “agricultural operation” subject to the Nutrient Management Act, 2002.

The application under review was submitted jointly by two parties – a cash crop farming business and a waste management business.  The two businesses already worked together under the farming business’ existing approved NASM Plans; the waste management business was contracted to implement the plans, including procuring and land applying NASMs.  Now the two applicants proposed to revoke the existing plans and consolidate them into a single NASM Plan, at the same time adding a new storage facility.  That facility – an earthen lagoon – would be located on the property of the waste management business and would be under the sole control of the waste management business.  OMAFRA’s Director determined that the lagoon could not, on that basis, be considered an “agricultural operation”.  The lagoon would require approval from the Ministry of the Environment as a non-agricultural waste facility.

On appeal, the ERT found that the Director was wrong to conclude that a waste management business could not be involved in an agricultural operation.  That is, the proper consideration was of the operation and not the operator.  The ERT found that the relevant regulation under the Nutrient Management Act, 2002 directed the OMAFRA Director to consider the “the comprehensive operation that is proposed”, not the “business activities of one of the operators”.  While the proposed storage lagoon on its own would not be an agricultural operation, the ERT found that the lagoon would form part of an agricultural operation consisting of “six farms operating as a Farm Unit, with the inclusion of a storage lagoon for the storage of NASM dedicated to those six farms that form the Farm Unit.”  Further, the ERT did not agree that the Director’s concerns about potential future use of the lagoon for other (possibly non-agricultural) purposes were relevant; the Director was tasked with considering the specific NASM Plan application before him.

The ERT also did not agree that the blending or agitation of separate types of NASMs as part of the proposed storage lagoon management process constituted an “intermediate operation”, which is by definition a non-agricultural operation.  The Director considered the waste management business to be a “broker” who simply receives materials from one source, does not generate a new nutrient product from the materials, and then transfers the material to another operation.  The ERT accepted the position of the applicants that storage and agitation of the NASMs is not “blending” for purposes of the definition of an “intermediate operation”.  If that were the case, then virtually all NASM storage facilities would be categorized as an intermediate operation and excluded from NASM regulation.  No NASM storage facility could receive material from more than one source, and multiple materials could not be mixed before application to a field.

Finally, the ERT did not accept the OMAFRA Director’s opinion that the proposed NASM storage lagoon was properly regulated as a “waste management system” under the Environmental Protection Act (“EPA”), requiring (as noted above) an Environmental Compliance Approval from the Ministry of the Environment.  In argument, OMAFRA cautioned the ERT that “the more expansive the definition of agricultural operation, then the more likely that the EPA can be avoided”.  In this specific case, however, the ERT was not concerned that a non-agricultural use was being approved as an agricultural one – the storage lagoon and the six farms would be operated as one entity.

Read the ERT decision at 2020 CanLII 48637.

Friday, October 16, 2020

No Free Ride on Expropriation Costs


In the oft-cited case of Toronto Area Transit Operating Authority v. Dell Holdings Ltd. from 1997, Justice Cory of the Supreme Court of Canada wrote of expropriation:

The expropriation of property is one of the ultimate exercises of governmental authority.  To take all or part of a person’s property constitutes a severe loss and a very significant interference with a citizen’s private property rights.  It follows that the power of an expropriating authority should be strictly construed in favour of those whose rights have been affected.  This principle has been stressed by eminent writers and emphasized in decisions of this Court.

The presumption is that there will be no expropriation without compensation, and expropriation statues such as Ontario’s Expropriations Act are to be read, as noted by Justice Cory, “in a broad and purposive manner in order to comply with the aim of the Act to fully compensate a land owner whose property has been taken.”

Full compensation is normally understood to include reimbursement of the reasonable costs incurred by a landowner incurred in the determination of the amount owing for the expropriation.  The landowner will not be “made whole” if he or she is left out of pocket for legal, appraisal and other costs expended in disputing the amount of compensation offered by an expropriating authority.  Section 32 of the Expropriations Act requires the Local Planning Appeal Tribunal (the statutory tribunal that arbitrates expropriation compensation, formerly the Ontario Municipal Board or “OMB”) to order payment of a landowner’s reasonable legal, appraisal and costs “actually incurred by the owner for the purposes of determining the compensation payable” where the compensation amount recovered by the landowner is “85 per cent, or more, of the amount offered by the statutory authority”.  If the amount recovered is less than 85 percent of what was offered in compensation by the authority, the Tribunal has discretion to award costs as it sees fit.

The 85 percent rule, which is a common one across Canadian jurisdictions, means that the landowner does not need to accept the compensation offered by the authority solely out of fear of the costs of arbitrating the compensation.  The landowner will still be entitled to recover his or her reasonable costs even if the Tribunal determines that the compensation payable is up to 15 percent less than what was offered by the expropriating authority.  Only where a landowner turns down an offer by the expropriating authority that ends up to be more than 15 percent higher than the actual compensation payable (as found by the Tribunal) does the landowner risk not recovering his or her own costs and perhaps having to pay costs to the expropriating authority.

Where land is taken by an expropriating authority, Section 25 the Expropriations Act requires that the expropriating authority serve on the registered owner of the land “an offer of an amount in full compensation for the registered owner’s interest”.  In a recent decision, the Court of Appeal for Ontario confirmed that this mandatory offer is not the only offer that may be relevant to the determination of costs under Section 32 of the Act.  It is open to the expropriating authority to make subsequent offers to settle the issue of compensation, and a landowner will have to consider those offers reasonably on an ongoing basis.   The landowner cannot sit back and reject an updated offer that ends up being more than 15 percent higher than the actual compensation awarded on the assumption that his or her entitlement to costs is safe because the initial offer was too low.  At least not without putting that entitlement to costs at risk.

Writing for the Court of Appeal, Justice Hourigan explained that, “the objective of full and fair compensation cannot be divorced from the objective of the efficient resolution of claims.”  He rejected the landowner’s position in the case on appeal that only the Section 25 offer counted.  In Justice Hourigan’s view, the landowner’s proposed interpretation:

… would permit the prospect of an unreasonable claimant delaying proceedings, running up legal costs, and wasting the [former] OMB’s resources, all the while safe in the knowledge that unreasonable refusals of subsequent offers cannot adversely affect its entitlement to legal costs.

Put another way, “the statutory protection provided by the Act is not a blank cheque that permits a claimant to act unreasonably.”

And it must be remembered that unreasonable conduct by a landowner does not only put the landowner’s entitlement to costs at risk, but also exposes the landowner to possible liability to the expropriating authority for its costs.  In the case before the Court of Appeal, the landowner was appealing a decision by the OMB (upheld on appeal by the Divisional Court) that awarded the expropriating authority its partial indemnity costs incurred after the date of its offer to the landowner that ended up being far more than 15 percent higher than the expropriation compensation awarded.

Landowners facing expropriation can take comfort in knowing that the costs recovery rules are designed to afford them a fair chance to dispute the compensation amount offered by the expropriating authority.  However, the trade-off is that landowners must conduct themselves reasonably throughout the full course of the dispute.

Read the Court of Appeal's decision at:  2020 ONCA 490.