2017 Soybean Harvest

2017 Soybean Harvest

Monday, December 18, 2017

Court decides ownership interest in land had been transferred to Railway; ownership did not revert to surrounding owners when railway discontinued

What happens when a railway is abandoned or discontinued?  More specifically, what happens to the rail line property itself?  In a recent decision, the Superior Court in Ontario had to decide whether a Railway had acquired the land for its now discontinued rail line as a full fee simple parcel (ownership of the land) or simply as an easement or right-of-way.  The line had been acquired in 1871 and discontinued in 2002.  In 2004, the Railway agreed to sell the rail line land to the County in which the line was located.  The neighbouring landowners, the successors in title to the original landowners from whom the rail line land had been acquired, challenged the sale.  They took the position that the Railway had acquired nothing more than a right to use the land for a railway; once the railway was discontinued, the land reverted to the neighbouring owners and could not be sold to the County.

The case came to court because the County alleged that the neighbouring landowners had interfered with the County's attempted use of the land (to be incorporated into a recreational trail).  The neighbouring owners intended to use the land for agricultural purposes, and made a counterclaim for a declaration that they were the rightful owners of the land.  The question was whether the original grant in 1871 was a grant of a fee simple interest in the land or of something less, such as a limited grant of rights to use the land.

Registered in 1871 in the Land Registry was a "Conveyance of Line of Way".  As stated in the conveyance, in consideration of the payment of $345.80, the original owners did "hereby ... grant and confirm to the [Railway Company], its successors and assigns for ever" an 8.67 acre portion of the owners' property.  Was that registration sufficient to transfer ownership of the land, such that no interest in the land would revert to the original owners or their successors?  The Court decided the issue on a motion for partial summary judgment brought by the neighbouring landowners.

Justice Grace reviewed the applicable railway legislation in place at the time of the conveyance and determined that the conveyance was a transfer of the fee simple ownership of the land:
The statutory provisions applicable in this case are, in my view, similar to those considered in Lowe.  As long as the acquisition of real property was for a purpose related to the establishment, maintenance and/or operation of a railroad, Canada Southern was statutorily empowered to acquire a fee simple interest in land.  The company could do so by negotiating an agreement with a land owner or in the event of an unwillingness to sell, through a process akin to expropriation. 
Although the conveyance document itself did not specify that fee simple ownership had been "sold" to the Railway, that was the effect of the language in the document in the context of the applicable legislative regime.  

And Justice Grace did not accept the alternative argument of the neighbouring landowners that, even if a fee simple ownership interest in the land had been transferred, that interest would be subject to reversion in the event that use of the rail line was discontinued.  There was no language to that effect in the conveyance document.

Read the decision at: Corporation of the County of Oxford v. Vieraitis.

Thursday, December 14, 2017

Private Prosecution by Neighbour over Boundary Tree - Tree By-law Conviction Upheld on Appeal

Disputes between neighbours about boundary trees are not uncommon; private prosecutions by neighbours against neighbours, especially concerning boundary trees, are uncommon.  In a recent decision, Justice Libman of the Ontario Court of Justice upheld a lower court conviction obtained on a private prosecution with respect to a violation of the Forestry Act, R.S.O. 1990, c. F-26.  One neighbour contended that the other neighbour cut down a shared Norway maple tree without consent, which is generally a requirement of Section 10(3) of the Forestry Act.  He brought forward a charge against his neighbour in the Provincial Offences Court.

Although there was a permit or Certificate of Exemption issued by the City of Toronto for the removal of the tree (granted on the basis of concerns that the tree posed a hazard), the permit made it clear that the determination of the ownership of the tree was the responsibility of the party applying for permit.  In other words, the permit itself did not relieve the applicant (the neighbour who wished to cut down the tree) of any responsibilities he might have at Common Law or through legislation like the Forestry Act.

And although there are cases in which a neighbour might remove a tree without the other neighbour's consent. such as a case where the tree is causing a nuisance or where the removal is needed urgently and consent cannot be obtained in a timely manner, Justice Libman found that this was not such a case.  Where it was already well known that the neighbours opposed the removal of the tree, the other neighbour, permit or not, could not simply go ahead and have the tree removed.  For these reasons, the appeal from the conviction was dismissed.

The penalty that had been imposed by the trial justice was a fine of $5,000. 

Read the appeal decision at:  Gross v. Scheuermann.

Read the trial decision at: R. (ex rel. Scheuermann) v. Gross.

Read the sentencing decision at: R. (ex rel. Scheuermann) v. Gross.

Thursday, August 31, 2017

Claim for contamination damages against MOECC allowed to proceed

In September, 1990, an oil spill occurred on a property owned by Shell.  The spill released approximately 9,000 litres of oil, and clean-up measures were undertaken.  Nearly 23 years later, in the spring of 2013, a neighbouring landowner whose property was 100 feet away from Shell's property became aware of the spill.  The landowner had the soil and groundwater on his  own property tested for contamination;  testing confirmed that his property was contaminated with petroleum and that the source of the contamination was the Shell property.

The landowner has since sued the Ontario Ministry of the Environment (now the "MOECC") for negligence on its part in the clean-up of the original Shell spill.  The landowner alleges that the MOECC is liable for damages because it "decided to get involved in the oil spill on the Shell property, made the decision as to where the excavation of contaminated should stop, erred in failing to ensure that the contaminants were contained; as a result the plaintiff’s property became contaminated; and the plaintiff sustained damages."

In response to the lawsuit, the MOECC brought a motion to strike the claim against it on the basis that it is "plain and obvious" that there is no reasonable cause of action that can be sustained against the MOECC.  The argument by the Ministry was that it owed no duty of care to the neighbouring landowner.  The Ministry argued that it was under no duty to perform any of the tasks described in the Environmental Protection Act, as they were discretionary only.  Therefore, any failure to perform those tasks could not form the basis of a negligence claim.

In deciding the motion, Justice Ray of the Superior Court of Justice accepted that the powers of the MOECC under the Act are discretionary, but ruled that the fact that the powers were discretionary did not preclude a finding that the MOECC owed the neighbouring landowner a duty of care.  As noted by Justice Ray:
Once the [MOECC] embarks on a course of action (whether obliged to do so under a legislative scheme, or has chosen to do so under discretionary powers) the [MOECC] is obliged to carry out that course of conduct without negligence.  There is then a sufficient proximity for the basis of a private law duty of care.
The MOECC's motion to strike was dismissed and the negligence claim against the MOECC is allowed to proceed.

Wednesday, July 26, 2017

Supreme Court dismisses First Nation's appeal of Enbridge Line 9 Reversal

The Supreme Court of Canada released its decision today in the Chippewas of the Thames First Nation (COTTFN) appeal of the National Energy Board ("NEB") approval of the Enbridge Pipelines Inc. Line 9 Reversal Project.  The Court has dismissed the appeal on the basis that a federal board or tribunal can, under certain conditions, provide the process through which the federal Crown discharges its duty to consult with First Nations.  In this particular case, the Court found that the NEB process, in which the COTTFN participated, was sufficient to discharge the Crown's duty.

Read the decision at: COTTFN v. Enbridge and NEB et al.

Tuesday, June 27, 2017

Seller's Family's remorse not grounds to set aside farm transaction, says Alberta Court

Several years ago, a young couple purchased farm land from an 86 year old man, a bachelor most of his life (the "Vendor").  The couple had leased the land for a number of years, and paid about $600,000 for two quarter sections (160 acres x 2).  The Vendor's youngest brother more recently commenced an action in the Alberta Court of Queen's Bench on behalf of the Vendor to set aside the land transaction based either on the exercise of undue influence by the purchasers or on the notion that the transaction was unconscionable.  At the time the case was heard, the Vendor was 93 years old and living in a care facility.  He died between the time of the hearing and the release of the Court's decision.

The Vendor's family was upset that the land purchased for $600,000 in 2010 was later appraised at a value of between $1.67 million and $3.9 million.  And, moreover, within two years of purchasing the two quarter sections, the young couple subdivided out a 43-acre parcel and a 79-acre parcel that they then listed for sale at $835,000 and $1.38 million, respectively.

On the issue of undue influence, the Court cited the test set out by the Supreme Court of Canada in the case of Geffen v. Goodman Estate:

What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization.
Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. When dealing with commercial transactions, I believe that the plaintiff should be obliged to show, in addition to the required relationship between the parties, that the contract worked unfairness either in the sense that he or she was unduly disadvantaged by it or that the defendant was unduly benefited by it. ...
Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own "full, free and informed thought". Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised[Emphasis added]
[Emphasis added]
The Court found that the relationship between the Vendor and the young couple was not one in which there was potential for domination of the Vendor by the young couple.  Their relationship was one of lessor and lessees, and of friends and neighbours.  The Vendor was not dependent on the young couple, they were not family, there was no position of trust, and the Vendor was not in a position where he had to sell his land for financial reasons.

And even if the Court had found the relationship to be one in which undue influence could be presumed, the Court would not have found that actual undue influence was exerted in this case.  Instead, the Court found that the Vendor was someone who was not coerced into selling his land.  He had no children of his own and had no family who wanted to purchase or farm his land.  He wanted to sell the land and for the land to remain in agricultural use.  He sold the land at what amounted to a discounted price in relation to the actual market value, but the Vendor had expressed his willingness to sell at a discount knowing that the land would remain agricultural.

Of course, very shortly after the young couple purchased the land, they proceeded to apply for consent from the municipality to subdivide the land.  It appears that the young couple had discussed the possibility of subdivision with the Vendor for the purpose of family planning.  The Vendor provided a letter in support of the application and mentioned that the purpose was for "future ranch planning" for the young couple and their three children.  The decision by the young couple to put two parcels up for sale outside their family at a price that far exceeded the original purchase price of the entire two quarters came as a disappointing surprise to the Vendor's family.

However, the Court did not find that this made the transaction between the Vendor and the young couple unconscionable and subject to being set aside.  The Court found that none of the following elements of the test for an unconscionable transaction were satisfied:
1. a grossly unfair and improvident transaction;
2. that the victim lacked independent legal advice or other suitable advice;
3. that there was an overwhelming imbalance in bargaining power caused by the victim's ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability; and
4. that the other party knowingly took advantage of this vulnerability.
Cain v Clarica Life Insurance Company2005 ABCA 437 (CanLII)384 AR 11, at para 32.

The action to set aside the transaction was dismissed.  As the Court noted in conclusion: "seller's remorse, or seller's family's remorse, is not grounds to set aside the transaction".

Read the decision at: Burby v Ball.

Wednesday, June 7, 2017

Submit Comments on Proposed Changes to the Conservation Authorities Act



Conservation Authority Act changes are coming - Landowners beware






The Ontario Government has recently introduced Bill 139, the Building Better Communities and Conserving Watersheds Act, 2017.  While the proposed legislation has been in the news on account of the major changes to be made to land use planning, replacing the Ontario Municipal Board with the Local Planning Appeal Tribunal, the legislation would also make significant changes to the Conservation Authorities Act.  The summary notes for Bill 139 explain:
The provisions regulating activities that may be carried out in the areas over which authorities have jurisdiction are substantively amended (sections 28 and 29). Section 28 of the Act is repealed.  That section currently gives authorities certain regulation-making powers, including the power to regulate the straightening, changing and diverting of watercourses and development in their areas of jurisdiction and to prohibit or require the permission of the authority for such activities. The re-enacted section 28 prohibits such activities so that the previous regulation-making power is no longer required. Furthermore, new section 28.1 gives the authorities the power to issue permits allowing persons to engage in the prohibited activities and section 28.3 allows authorities to cancel the permits in specified circumstances. New regulation-making powers are set out in section 28.5 in respect of activities that impact the conservation, restoration, development or management of natural resources.
Sections 30 and 30.1 are repealed and sections 30 to 30.4 are enacted in relation to the enforcement of the Act and offences. Authorities are given the power to appoint officers who may enter lands to ensure compliance with the Act, the regulations and with permit conditions. The officers are also given the power to issue stop orders in specified circumstances. Offences for contraventions of the Act, the regulations, permit conditions and stop orders are set out in section 30.4 and the maximum fines under the Act are increased from $10,000 to $50,000 in the case of an individual and to $1,000,000 in the case of a corporation. An additional fine of $10,000 a day for individuals and $200,000 a day for corporations may be imposed for each day the offence continues after the conviction. Section 30.6 expands the existing powers of the court when ordering persons convicted of an offence to repair or rehabilitate any damage resulting from the commission of the offence.
As drafted, the new legislation would prohibit "development" (without a permit) in the same areas currently covered by the Conservation Authorities Act and the individual CA regulations made under it, as well as in "other areas in which development should be prohibited or regulated, as may be determined by the regulations."  Whether that amendment makes much practical difference is debatable, but another related change will most likely have a practical effect for landowners in Ontario.  Whereas in the current Act, terms like "development" and "wetland" are defined, the new legislation says that those essential terms will be defined by regulation to be made by the provincial cabinet (and, more particularly, the Ministry of Natural Resources).  It's not clear at this point how the terms will be defined.

If Bill 139 passes, then landowners should take great interest in the development of the regulations to be made pursuant to the Act.  Those regulations could effect significant change in the way that the use of land, including farm land, is restricted in Ontario.

Read the Bill at: Bill 139, Building Better Communities and Conserving Watersheds Act, 2017.

Friday, June 2, 2017

NEB making CSA Standard Z662 (Oil and Gas Pipeline Systems) available to public in pilot project

The National Energy Board has posted information on its website about how the public can access the CSA Standard Z662 (Oil and Gas Pipeline Systems) at no cost during a pilot project that will run until March, 2018.  Many important NEB regulations about safety and the protection of the environment in connection with pipelines adopt provisions in the CSA standard.  The problem, at least for the general public, is that the cost of obtaining a copy of the standard is several hundred dollars.  In other words, outside an initiative like the one being undertaken by the NEB, finding out exactly what standards are required of pipeline companies in Canada can be an expensive exercise.

The NEB says that its pilot project will run until March, 2018, and then will be reviewed.
Hopefully the open and free access to the CSA standard will continue beyond the current pilot project.  Canadians should not have to pay an organization like the CSA in order to know what the law is.

Here is the link to the NEB portal to the CSA Standard: How to access the CSA Standard Z662 Oil and Pipeline Systems.