Potato farmer sued for $5M for unauthorized use of the Dakota Pearl variety

CBC News - Prince Edward Island - Potato farmer sued for $5M

CBC News is reporting that Lyndale Farms in P.E.I. has been sued by Real Potatoes Limited for allegedly having grown its Dakota Pearl variety of potato without authorization in 2008 and 2009. Lyndale has yet to file a defence to the action in which Real Potatoes claims $5 million in damages.

Although details of the lawsuit aren't yet available, the case is probably similar to actions commenced by Monsanto against farmers growing Roundup Ready crops without authorization.

Here are links to several court decisions in actions commenced by Monsanto for patent infringement by farmers:

Monsanto v. Rivett 2009 Federal Court re: Roundup Ready soybeans:
http://www.canlii.org/en/ca/fct/doc/2009/2009fc317/2009fc317.html

Monsanto v. Janssens 2009 Federal Court re: Roundup Ready soybeans:
http://www.canlii.org/en/ca/fct/doc/2009/2009fc318/2009fc318.html

Monsanto v. Wouters 2007 Federal Court re: Roundup Ready soybeans:
http://www.canlii.org/en/ca/fct/doc/2007/2007fc625/2007fc625.html

Monsanto v. Percy Schmeiser 2004 Supreme Court of Canada re: Roundup Ready Canola:
http://www.canlii.org/en/ca/scc/doc/2004/2004scc34/2004scc34.html

The continuing perils of fuel oil leaks

I don't know if there has been increase in the incidence of fuel oil leaks and spills, but I have noticed a fair number of reported court cases and news stories about the problem in the past year or so. Most often a spill occurs when a fuel oil supplier is delivering oil to a homeowner. I can recall a recent story out of Newfoundland where a fuel supply company pumped oil into an intake pipe at the side of a house only to discover that he was at the wrong house and the intake pipe led directly to the basement (the former oil tank had been removed).

On February 19, the Nova Scotia Supreme Court issued a decision in a case involving a leaking storage tank in a hotel/office building complex - Park Place Centre Limited v. Ultramar Ltd. and G&S Haulage Limited. Ultramar supplied the fuel oil. G&S was hired by Ultramar to deliver the oil. On one delivery date, oil was pumped into the storage tank and leaked out into the building through a breach in the tank. The cost of clean up was more than $300,000.

In the end, liabilty for the main part of the plaintiff's damages claim was apportioned 70%/30% between the two defendants and the plaintiff itself. The Court found that G&S was negligent in
filling the tank without taking proper precautions to ensure that it would not leak. The Court found Ultramar vicariously liable for the damage caused by G&S, since Ultramar owed a duty to the plaintiff to ensure that G&S took reasonable care in delivering the fuel oil. The Court also found that Ultramar had breached an implied term of its contract with the plaintiff, namely that it would deliver fuel oil safely in a manner that would not allow it to escape from the tank.

The plaintiff, Park Place, however, was not without its own responsibility for the spill. The Court found the plaintiff contributorily negligent to the tune of 30% because it had done almost nothing in the years since the tank was installed to ensure that the tank was in proper order and did not ensure that the tank room itself was liquid tight. The Court ruled that an "ordinary, reasonable and prudent operator of a hotel and office complex" would have recognized the importance of ensuring that oil would not escape from the tank room.

Read the decision at:
http://www.canlii.org/en/ns/nssc/doc/2010/2010nssc39/2010nssc39.html

Enbridge Line 4 and Southern Lights LSr Year 1 Environmental Monitoring Reports available online

If you want to take a look at what Enbridge is reporting to the National Energy Board on its Line 4 and Southern Lights LSr pipeline constructions and responses to landowner concerns, follow this link:
http://www.enbridge-expansion.com/expansion/main.aspx?id=12592&tmi=6864&tmt=1

New construction for the Southern Lights line, which is to carry diluted oil from refineries in the U.S. up to the Alberta oil sands to be mixed with bitumen, took place in Manitoba. The rest of the route of the pipeline to Alberta saw the conversion of an existing pipeline.

NEB rules Imperial Oil to provide updated economics on Mackenzie Valley Pipeline project

I recently posted a link to a notice of motion brought by Alternatives North in connection with the Mackenzie Valley gas pipeline project. Alternatives North has requested that the National Energy Board (NEB) require the proponents of the project to update economic information they had filed in 2007, citing changes in financial circumstances (drop in demand for natural gas, etc.).

The NEB has ruled on the motion in favour of requiring updated information to be filed. Read the decision at:
https://www.neb-one.gc.ca/ll-eng/livelink.exe?func=ll&objId=601020&objAction=browse

Annual Compensation Decision for Landowners from Alberta Surface Rights Board overturned by Court

The Alberta Court of Queen's Bench has overturned a promising annual compensation decision made by the Surface Rights Board in Alberta . The SRB had ordered Enbridge Pipelines Inc. to pay landowners on the Waupisoo Pipeline an upfront payment for permanent rights-of-way and temporary work space as well as annual compensation into the future for ongoing impacts of the pipeline. Enbridge argued on appeal that the compensation award should have been decided on the "pattern of dealings" approach (i.e. what all of the other pipeline companies have been paying).

In its decision, the SRB found that there would be "ongoing and/or recurring compensable losses ... and ... it was only reasonable to award annual compensation since only an annual award provides for compensation that is contemporaneous with the events/factors that are attracting the award of compensation." To succeed on the appeal, the Court ruled that "Enbridge must establish that either the [SRB] decision, on its face, was unreasonable or that the new evidence introduced on appeal has the effect of making it so."

In the Court's view, the possibility of future losses was not a "cogent reason" to depart from a pattern of dealings approach, "unless perhaps a particular landowner's anticipated losses would be highly unusual and significant." Here's what the Court had to say about "pattern of dealings":

"From the perspective of harmony among neighbours with respect to compensation, nothing could be more divisive than learning that a neighbour received greater compensation for the RoW or TWS. Neighbours would understand, however, that if one of them sustains additional damages, he or she should receive additional compensation. If damages are not suffered, no additional compensation should be paid. However, for the simple acquisition of those rights associated with having a RoW through a landowner's property, ideally the operator should pay the same amount to each affected landowner. The best indicator of the appropriate amount is the [pattern of dealings] with those in the same vicinity. An established [pattern of dealings] evidences both an approach and a value negotiated between knowledgeable parties. The wisdom of the market place should prevail in those circumstances."

On that basis, the Court found that the SRB decision was unreasonable. My question to the Court would be how the pattern of dealings could possibly evidence negotiated value or "the wisdom of the market place" when one party has a right to expropriate the land of the other where no deal is reached. While it is the case that no landowner would want to find out that his or her neighbour is being paid more by the same pipeline company for the same land in the same area, the "pattern of dealings" approach seems likely to be a "race to the bottom" for landowners.

Read the Alberta Court of Queen's Bench decision in Enbridge Pipelines (Athabasca) Inc. v. Karpetz at:
http://www.canlii.org/en/ab/abqb/doc/2010/2010abqb108/2010abqb108.html

Too much new pipeline capacity to take oil sands to the US?

Noel Griese at Energy Pipeline News reports that Suncor and Imperial Oil are accusing Enbridge Pipelines Inc. of overbuilding pipeline capacity into the U.S. when it is not needed. Enbridge is in the process of completing the Alberta Clipper pipeline to carry Alberta oil sands oil to refineries in the United States. At the same time, TransCanada is proceeding with the Keystone XL pipeline designed to do the same thing. Now Suncor and Imperial Oil have applied to the U.S. regulator for breaks on tolls payable to Enbridge. Has the expansion in the export of oil to the U.S. moved too quickly?

Read the article: http://energypipelinenews.blogspot.com/2010/02/rhubarb-over-clipper-rates-pits-suncor.html

Saskatchewan Court rules hail crop insurance umpire's findings not biased

The Provincial Court of Saskatchewan, Civil Division, has dismissed the claim of a farmer that a decision on crop loss suffered as a result of hail was tainted by bias and impartiality. John DeBalinhard, a farmer in the Rural Municipality of Orkney, made an insurance claim to the defendant in the case, Butler Byers Hail Insurance Ltd., after hail damaged a canola crop on his property. When DeBalinhard disputed the loss as assessed by the defendant, an umpire was appointed by the Saskatchewan Superintendent of Insurance to re-assess the claim and make an award of compensation.

DeBalinhard commenced the court claim when he was dissatisfied with the award made by the umpire. He alleged that the award was considerably lower than compensation paid out by two other insurance companies on the same crops on different properties and alleged that the umpire's decision had been tainted by "bias, interest, or lack of impartiality".

In the end, the Court found that the umpire's award was made within his authority under the applicable legislation and that there was no evidence of bias or impartiality. Based on this, the Court found that the award was binding on DeBalinhard, and therefore did not examine the allegations that other insurers had paid out significantly more for the same loss.

Read the decision at: http://www.canlii.org/en/sk/skpc/doc/2010/2010skpc13/2010skpc13.html

British Columbia oil and gas landowners to have "Farmer's Advocate"

In response to landowner concerns about the growing oil and gas industry in British Columbia, the provincial government has created the "Northeast B.C. Rural Residents Independent Land Information & Advocacy Office" or "Farmers' Advocate"). The stated purposes of the Advocate are to: disseminate information; resolve problems; emphasize facilitation and negotiation; and provide an effective, independent "gateway" to existing organizations with mandates relating to rural landowners.

A Request for Proposals by candidates interested in the Farmers' Advocate position closed February 11, 2010.

Visit the Farmer's Advocate page on the B.C. Government website at:
http://www.empr.gov.bc.ca/MACR/FarmersAdvocate/Pages/default.aspx

A Producer's Guide to Risk Management and Due Diligence

The Centre for Studies in Agriculture, Law and the Environment at the University of Saskatchewan has produced a Guide that provides an overview of liability risks commonly faced by agricultural producers. Part I reviews common sources of liability for farmers. Part II contains checklists of activities and actions producers can undertake to manage risk. Part III provides suggestions about how to respond in crisis situations.

Access the Guide at: http://www.csale.usask.ca/PDFDocuments/eGuideRiskMgmt.pdf

Keep it down! MOE fines for discharge of contaminants including sound

On November 19 last year, GB Scrap Metal Ltd. and George Bois pled guilty to violations of Ontario's Environmental Protection Act for the discharge of contaminants - sound, vibrations and scrap metal. The charges related to an explosion at the scrap yard caused when an employee sheared a compressed gas cylinder that apparently hadn't been entirely emptied.

Read the MOE's press release at: http://www.ene.gov.on.ca/en/news/2010/010502.php

Under the Environmental Protection Act, R.S.O. 1990, c. E-19 ("EPA"), a contaminant means "any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect". Note, however, that certain noise and odour produced from farming activities may be exempt from restrictions under the EPA pursuant to normal farm practices protection legislation.

Regina-area farmers upset about expropriation

CBC News - Saskatchewan - Regina-area farmer upset about expropriation

Land banking by the Saskatchewan government for a "Global Transportation Hub" in the Regina area is drawing criticism from local landowners. The province has begun to expropriate land but the issue of compensation for the land remains outstanding. The government has said that landowners are assured to receive fair market value for their land, but whether that is undeveloped agricultural land value or something closer to the development value of the land remains to be seen.

The total project area is to include 1,600 acres and the project is to be completed by 2012. Saskatchewan has also expropriated land to allow for Loblaw Companies Ltd. to build a new warehouse and distribution centre.

Agriculture, Food and Rural Affairs Appeal Tribunal decision on Ontario Pork now available

Earlier today, I posted a link to the Better Farming article on a recent appeal tribunal decision regarding Ontario Pork and marketing boards in Ontario. The decision is now available on-line at: http://www.omafra.gov.on.ca/english/tribunal/ofpmc-160210-dec.htm

"Split Class" property tax assessment appeal dismissed by B.C. Supreme Court

Last week, the B.C. Supreme Court dismissed an appeal from the Property Assessment Appeal Board related to the issue of "split assessment" of farm properties. In this case, but for the farm operations taking place on the properties in question, the lands would have been classed as residential. The question in the case was whether the Appeal Board was correct in upholding the spliting of the assessment between farm use and residential use. In other words, these particular properties did not qualify in their entirety for assessments as farm property. The residence portion of the properties were classed as residential.

The appeal to the B.C. Supreme Court was actually initiated by the Appeal Board itself. Only one of the affected property owners participated, and argued that it was unfair that properties in his area (again, where the land would otherwise have been residential but for the farming operations being carried out) were being "split assessed" whereas properties in other rural areas of the province were not being "split assessed". The Court found that this practice of splitting the assessment was part of the applicable legislation and therefore permissible. On the issue of fairness, the Court found that there was no evidence before the Appeal Board as to how other parts of the province were dealing with this issue.

Read the decision at: http://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc194/2010bcsc194.html

Ontario Pork recovers its marketing powers

Better Farming is reporting that the Ontario Agriculture, Food and Rural Affairs Tribunal has reinstated Ontario Regulation 419, which required producers to sell hogs through a marketing board and required the board to review all buy and sell contracts between producers and processors. The Ontario Farm Products Marketing Commission had stripped these powers from Ontario Pork in 2008.

Read the Better Farming story at:
http://www.betterfarming.com/online-news/ontario-pork-gets-marketing-powers-back-2754

As soon as I can locate the Tribunal decision, I'll post it.

Stantec Consulting awarded contract for Lake Huron Water Pipeline twinning

The website for the Lake Huron Primary Water Supply System is reporting that Stantec Consulting has been awarded the contract to carry out the Class Environmental Assessment and Preliminary Design of the upcoming twinning of portions of the Lake Huron to London water pipeline. Both tasks are now underway. The vast majority of the route of the pipeline runs through prime agricultural land. The original pipeline was constructed in 1964. A portion of that pipeline was "twinned" (adjacent pipeline loopings were constructed) in the 1990's.

The original request for proposals (RFP) for consulting firms was made last year:
http://www.london.ca/Tenders_and_RFPs/RFP2009/RFQ09-31.pdf

Of note, the RFP refers to the generation of a framework for a crop loss monitoring program and the establishment of a landowner consultation process. At the time of the last twinning in the 1990's, affected landowners formed the Lake Huron Pipeline Landowners Association (LHPLA) to address concerns about construction and operation of the pipeline.

Ontario Government to appeal Michael Schmidt raw milk acquittal

CBC News - Toronto - Ont. appealing raw milk producer's acquittal

Ontario's Ministry of the Attorney General has confirmed that it will appeal the recent acquittal of raw milk crusader Michael Schmidt. Schmidt was acquitted by a justice of the peace. The appeal will go to a judge of the Ontario Court of Justice.

Wind farm near Moosomin on hold pending further study

Wind farm near Moosomin on hold pending further study

Following a public meeting on Thursday night, the council for the Rural Municipality of Martin has voted to strike a committee to look further into the proposed Red Lily Wind Farm project near Moosomin, Saskatchewan. The project, which is a partnership between Algonquin Power and Gaia Energy, would consist of 16 turbines producing 25 megawatts of power. The partners have contracted to sell the power to SaskPower.

The project had earlier received environmental assessment approval from the province, but the local municipality has decided to undertake further study into the potential impact of the turbines on local residents.

Eastern P.E.I. says no to wind turbines

CBC News - Prince Edward Island - Eastern P.E.I. says no to wind turbines

The P.E.I. community of Eastern Kings has voted against further wind turbine development. At a meeting last Tuesday night, the local council held a secret ballot vote in response to a proposal by PEI Green Energy Inc., which wants to build 28 turbines in the area. About 100 people from the community of 1,000 attended the meeting.

Barn collapse case concludes with big judgment

A lawsuit commenced by Terpstra Farms Ltd. against several parties for damages arising from the collapse of a hog barn roof has ended with a large judgment in favour of Terpstra. The trial proceeded before a jury and so there is no reported judgment. However, a court decision was released this week regarding the amount of the judgment, costs and interest as well as the effect of an earlier settlement agreement between Terpstra and one of the defendants.

At trial in January, the jury found the company that constructed the barn, D.W. Lorentz Construction Inc., 85% at fault for the roof collapse. The remaining 15% fault was attributed to Argue and Associates, an agricultural structural engineering firm involved in the barn design. In September, 2009, however, Argue and Associates settled out of the action by paying Terpstra the sum of $295,000, inclusive of damages, costs and interest. On this basis, the action was dismissed as against Argue, and Terpstra agreed to indemnify and hold Argue harmless from any other amount it was found liable for in the trial.

With this agreement in place, the trial judge was left with the task of fully compensating the plaintiff, Terpstra, but preventing a double recovery. The judge concluded that to do so, the costs must be deducted from the settlement amount before factoring the balance of the settlement against what Lorentz owes to the plaintiff. Costs of the action incurred up to the date of the Argue settlement were split 85/15 between the two defendants. Costs of the action incurred after the settlement were solely the responsibility of Lorentz.

With pre-judgment interest factored in, the jury award of damages totalled nearly $600,000. The share of this amount to be borne by Lorentz, taking into account the amount received from Argue (and avoiding double recovery) was pegged at more than $334,000. On top of that, the trial judge awarded costs to Terpstra to be paid by Lorentz in the amount of $353,675.19. The action was commenced in 2002 and trial lasted more than two weeks before a jury.

B.C. Court certifies expropriation-related class action

The British Columbia Supreme Court has certified a class action commenced by business and property owners in Vancouver who claim damages resulting from the construction of a rapid transit link. Class action lawsuits in Canada are just regular lawsuits until they are certified as a class proceeding by a court. The Court must be satisfied that a class action is the "preferable" procedure (rather than each individual claimant bringing its own lawsuit).

In this case, the claim was that the choice of constructing a tunnel using the cut and cover method rather than by boring the tunnel led to significant property and business loss (a "nuisance"). The Court agreed to certify the action as a class action, with the common issues to be determined (for all members of the class) to include: were damages caused by the choice of construction method?; was the interference authorized by law?; even if there was authorization, was the damage suffered injurious affection that can be compensated under expropriation legislation? (see my recent post on the Antrim Truck decision of the Ontario Divisional Court)

Now that the action is certified as a class proceeding, it can go forward through the normal lawsuit process to a trial.

Read the decision at:
http://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc163/2010bcsc163.html

NEB posts January 2010 Land Matters Consultation Initiative Action Report - Still no action on the costs issue

The National Energy Board has posted its latest "progress reports" on the Land Matters Consultation Initiative (LMCI) program. Information is available at:
http://www.neb-one.gc.ca/clf-nsi/rthnb/nvlvngthpblc/lndmttrs/lndmttrs-eng.html

Of greatest interest to landowners affected by the NEB and its processes, the question of costs awards and funding for landowner participation remains entirely unanswered. No progress has been made. The NEB continues to state that, "If NRCan [Natural Resources Canada] decided to examine this policy area, the NEB would work with NRCan to assess, and if appropriate, implement any changes. Estimated timing to complete the action: No date established."

Unlike provincial energy regulators such as the Ontario Energy Board and the Alberta Energy Resource Conservation Board, the NEB provides for virtually no cost recovery for landowners who are affected directly by energy projects on their lands. This has been an issue raised with the NEB consistently for many years, but it appears that in the more than two and a half years since the LMCI was established, the NEB has taken no steps to address this issue.

What it continues to mean for landowners is that participation in NEB energy project approval processes, pipeline abandonment hearings and the process currently underway to determine the future funding of abandonment costs is entirely at the landowner's own expense (vs. energy companies which may recover costs of participation through NEB regulated tolls). Obviously this is a major impediment to the ability of landowners to put forward the expert evidence required to address these issues before the NEB. No evidence, no meaningful participation. Same old story.

U.S. EPA creates public surveillance program called "Eyes on Drilling"

Nick Snow of the Oil and Gas Journal reports on a new initiative by the Environmental Protection Agency (EPA) in the U.S. that invites citizens to report non-emergency suspicious activity related to oil and gas development. Read more at:
http://www.pennenergy.com/index/blogs/washington-pulse/blogs/OGJ/washington-pulse/post987_2866464857426730017.html

New NOVA Chemicals Pipeline to be constructed between Pennsylvania and Sarnia, Ontario

Buckeye Partners, L.P. and NOVA Chemicals Corporation have signed a Memorandum of Understanding for a new Marcellus NGL Feedstock Pipeline to Sarnia, Ontario. The companies plan to evaluate and develop a mixed natural gas liquids pipeline from the Marcellus Basin in Pennsylvania to NOVA's refining and petrochemical complex in Sarnia. The project is to be called the "Union Pipeline Project". Buckeye would develop, construct, own and operate the pipeline.

Buckeye's press release can be viewed at:
http://www.buckeye.com/LinkClick.aspx?link=News+Releases%2f2010%2fBPL+Union+Pipeline+News+Release+2-10-10.pdf&tabid=36&mid=540

Another day, another DFO dairy quota transfer assessment appeal decision

The Agriculture, Food and Rural Affairs Tribunal has released another decision on an appeal by a farmer of the 15% transfer assessment levied by the Dairy Farmers of Ontario (DFO) on transfers of quota. In this case, the farmer's appeal was unsuccessful. This decision is actually a review of a decision already made by the Tribunal last November.

Read the decision at: http://www.omafra.gov.on.ca/english/tribunal/shaw-feb10.htm

Normal Farm Practices Board decision overturned by Divisional Court

Read Farms, owned by Wayne Read and Laura Duncan, are tenants on a 400-acre parcel of land in Oakville. The land was formerly an oil refinery site and contaminated, but Read Farms has been growing crops on it since 2001. The lands are zoned industrial and Oakville's zoning by-law prohibits agricultural use of the land. In 2002, Oakville charged Read Farms with violating the by-law. In response, Read Farms went to the Normal Farm Practices Protection Board to seek a stay of the Oakville decision based on the Farming and Food Protection Act, 1998, that provides that no municipal by-law applies to restrict a normal farm practice that is carried on as part of a farming operation. The stay was granted and Oakville appealed the decision to the Divisional Court.

The Ministry of the Environment had earlier restricted use of the property to industrial or commercial, but under no circumstances could the land be used for grazing. Read Farms was cash cropping the land.

After noting the evidence in the case relating to an interesting attempt by the actual owner of the property to avoid property taxes (the decision is worth a read for this story alone), the Divisional Court made the following findings:

• The Board did not provide adequate reasons for its decision, denying natural justice to Oakville;
• The Board has jurisdiction over "farm practices" (the manner in which someone carries out a permitted use of the land); it does not have jurisdiction over the "agricultural operation" (i.e. the right to decide what land use is permitted and what is not); the Board in this case was wrong to expand its authority to overriding the power of the municipality to decide what land uses are permitted on specific lands.

In other words, it is the municipality that is empowered to permit or prohibit categories of land use (zoning). It is the role of the Normal Farm Practices Protection Board to look into the practices undertaken on lands where agricultural operations are permitted and determine whether or not they are "normal" and deserving of protection. The Board cannot exceed that jurisdiction.

Read the Divisional Court decision at: http://www.canlii.org/en/on/onscdc/doc/2010/2010onsc170/2010onsc170.html

Much anticipated Ontario expropriation decision released

When I attended the Ontario Expropriation Association's Fall Conference last year, a fair amount of time was spent discussing the decision of the Ontario Municipal Board (OMB) in Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation). Now the Divisional Court has released its decision in the appeal from the OMB, fully endorsing the OMB's decision.

Here are the facts:

• Antrim owned a truck stop in the Hamlet of Antrim on Highway 17, formerly part of the Trans-Canada Highway;
• In September, 2004, a new section of Highway 417 was finished and re-routed the former Trans-Canada Highway (away from the truck stop);
• The Antrim property comprised 13.66 acres and included 947 feet fronting on Highway 17;
• Antrim alleged that the closure of Highway 17 substantially interfered with its use and enjoyment of its property and made a claim for injurious affection - the change in the Highway basically put Antrim out of business (Antrim took steps to mitigate its loss and relocated);
• The business had been generating gross annual revenues of more than $15 million and had employed about 100 people;
• The claim for injurious affection was for over $8.2 million, including the cost of relocation and construction of new business premises;
• The OMB awarded Antrim $393,000 - the MTO appealed the decision - Antrim cross-appealed seeking the additional $7.6 million or so it had originally claimed.

In Antrim's case, no lands were taken from it. The MTO did not expropriate any part of its property. The Divisional Court restated the test to prove a claim for injurious affection where no land is taken from the 1987 Supreme Court of Canada decision in St. Pierre v. Ontario. The claimant must prove on a balance of probabilities that:

1. the damage resulted from an act that was made lawful by statutory authority;
2. but for the statutory authority, the act would have been "unlawful" (i.e. it would have given rise to a cause of action against the person performing the act at Common Law);
3. the damage must have been caused by the CONSTRUCTION of the public work, NOT its use.

The Divisional Court dismissed the MTO appeal and dismissed Antrim's cross-appeal. The Divisional Court agreed with the OMB that the actions of the MTO in diverting the highway constituted an actionable nuisance (which it had statutory authority to do) in the form of interference with access, and that the interference with access was the result of the construction of the highway (including detours) and not the use of the expanded Highway 417. The Divisional Court did not agree with Antrim, however, that the compensable loss could include relocation costs or disturbance damages. These were not available to Antrim because no land was taken (expropriated).

Read the decision at: http://www.canlii.org/en/on/onscdc/doc/2010/2010onsc304/2010onsc304.html

Economics behind Mackenzie Valley Pipeline being called into question

The Alternatives North Coalition, a social justice coalition operating in the Northwest Territories (http://www.alternativesnorth.ca/), has written to the National Energy Board to request that it revisit the issue of the economic justification for the proposed Mackenzie Valley pipeline. The proponents of the project filed a market evaluation with the NEB in 2004. ANC questions whether the 2004 figures are still reliable given drops in demand for gas and other considerations.

Read the ANC letter at: https://www.neb-one.gc.ca/ll-eng/livelink.exe?func=ll&objId=593724&objAction=browse

B.C. Developer fails to convince Court to modify utility easement

The British Columbia Supreme Court has dismissed a request by a land developer to modify the terms of a utility corridor easement agreement. The developer, Hilltop Sand & Gravel Co. Ltd., owns land encumbered by an easement granted to FortisBC Inc., formerly West Kootenay Power and Light Company Limited, for the construction of power lines. Hilltop began developing its land for residential development and planned for a roadway to run adjacent to the easement, which currently stands empty. FortisBC refused to grant permission to the developer for the road.

Hilltop made an application under Section 35 of the Property Law Act in B.C. which enables the Court to modify an easement where the reasonable use of the land (by the petitioner) would otherwise be impeded if the easement was not modified and where there is no practical benefit to the holder of the easement of maintaining the easement. FortisBC maintained that modification of its easement and the construction of the road as planned would interfere with its future expansion options. The Court agreed and found that the possibility of future expansion of the power line operation was more than hypothetical. On that basis, the petition was dismissed.

Read the decision at:
http://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc108/2010bcsc108.html

Federal Court of Appeal overturns cattle tag decision in Denfield Livestock Sales case

A three-judge panel of the Federal Court of Appeal sitting in Montreal has overturned a decision of the Canada Agricultural Review Tribunal that found Denfield Livestock Sales Limited (DLS) not guilty of having moved cattle without a proper CFIA tag. The Tribunal had ruled that DLS, as auctioneer, did not take ownership and control over the cattle and, therefore, did not cause the movement of the cattle from its facilities to the purchaser's farm. The Attorney-General of Canada decided to seek the judicial review of this decision mainly on the basis that the Tribunal was wrong when it determined that DFS did not have sufficient power and control over the animals to be required by the regulations to ensure that they were properly tagged. The Court of Appeal agreed.

In arriving at its decision, the Court of Appeal analyzed the contractual relationship between vendor, auctioneer and purchaser. Although the auctioneer takes no part in the contract of sale directly between vendor and purchaser, the auctioneer is entrusted by the vendor with possession of the goods being sold, and the auctioneer cannot give up the goods to the purchaser until the purchaser has paid the purchase price. In this way, the Court decided, the Tribunal decision was incorrect in finding that the auctioneer did not have power and control over the animals.

The Court of Appeal has now sent the case back to the Tribunal to be reconsidered on the basis that DFS did have care and control of the animals sufficient to create a duty to tag under the regulations.

The decision of the Federal Court of Appeal is available (but only in French) at:
http://www.canlii.org/fr/ca/caf/doc/2010/2010caf36/2010caf36.html

The original decision of the Canada Agricultural Appeal Tribunal is available at:
http://cart-crac.gc.ca/index_e.php?s1=decisions&page=a60328

B.C. Oil and Gas Commission Reports on Sour Gas Leak

CBC News - British Columbia - EnCana unprepared for toxic gas leak: report

The B.C. Oil and Gas Commission has released a report on a leak from an EnCana sour gas (H2S)pipeline last November. The report concludes that pipe failure was caused by internal erosion resulting from sand; that the company had not followed its established criterion for sand recovery; EnCana's public information package failed to get residents to call EnCana when they had suspected a release of gas had occurred; leak detection and emergency isolation at the site did not detect or control the leak in a timely fashion; EnCana's response did not fully conform to its own emergency response plan and no notification was given to the B.C. government for nearly two hours after the leak was discovered; EnCana took more than an hour to begin notifying residents after the leak was detected; the erosion of the pipe and the rupture occurred before any inspection of the piping had been conducted under EnCana's "integrity management program".

Read the report at: http://www.ogc.gov.bc.ca/documents/reports/OGC%20Investigation%20Report%2004.02.10.pdf

Edmonton Journal: "AltaLink's wallet soothes landowners"

AltaLink's wallet soothes landowners

The Edmonton Journal has reported that landowners along a planned high-voltage direct current line have been "soothed" by talk of increased compensation. The lines will run between 50-metre high towers, and AltaLink, the utility company, is offering to pay an annual fee to landowners of $1,178 for each tower on cultivated land and $471 for each tower on uncultivated land.

There is an additional lump sum to be paid for the 55-metre wide right-of-way (contrast this with the fairly standard 18-20 metre wide easement for oil and gas pipelines) along with a crop loss payment, entry fee payment and a $10,000 bonus for signing the easement.

However, the final route for the line has not yet been decided and an application to the Alberta Utilities Commission won't be made until later in 2010 or early in 2011.

What do you think about the proposed compensation? Although AltaLink's Vice-President is cited in the article as saying that a 240-kV tower would previously have brought only $150 to $200 compensation, for the size of the easement taken and the impact, visual and otherwise, of a major transmission line and towers through a farm, the annual payment seems unremarkable - at least when compared with similar payments for oil and gas wells and other above ground oil and gas facilities.

Another Gas Field, Pipeline coming to New Brunswick

CBC News - New Brunswick - Calgary company explores shale gas in N.B.

PetroWorth Resources Inc. is exploring a shale gas deposit outside Moncton, NB and plans to install a pipeline to supply gas to Moncton and surrounding communities. The PetroWorth land is to the northeast of the Stony Creek gas field and the McCully gas field. The McCully Pipeline Landowners Association represents agricultural landowners affected by the McCully field and feeder pipelines which supply the Maritimes and Northeast Pipeline.

Rural Affairs Tribunal grants another exemption from DFO 15% quota transfer assessment

Haleyview Farms Ltd. v. Dairy Farmers of Ontario (DFO)

I posted an article a couple of weeks ago about a farmer who was granted a partial exemption from the DFO 15% quota transfer assessment because of disability. Normally, when dairy quota is transferred to another party, a 15% tariff must be paid to the DFO. Now, the Agriculture, Food and Rural Affairs Tribunal has granted a full exemption from the assessment to Haleyview Farms Ltd. (Paul and Margot Haley) of Brantford, Ontario for compassionate reasons.

In December, 2006, Paul Haley was diagnosed with Stage 4 prostate cancer and was told that it had spread into his bones. In August, 2007, he suffered serious injuries to his right arm when a bale pinned him against his tractor. By December, 2007, he had sold his herd and his entire quota. By way of a letter in September, 2008, the DFO advised Haley that an exemption from the 15% assessment was not warranted in his case. DFO argued that the quota is "not a retirement, disability or life insurance fund." Later, DFO told Haley that medical conditions were not normally considered as reasons to provide exemptions and that Haley's circumstances were not "sufficiently unique" to allow the exemption.

The Appeal Tribunal disagreed. Read its decision at:
http://www.omafra.gov.on.ca/english/tribunal/haleyview-dc.htm

New website for Canadian Association of Farm Advisors

The Canadian Association of Farm Advisors (CAFA) is revamping its website. If you follow the old address http://www.cafanet.com/, you'll be linked into the new version.

I joined this Association late last year after I noted that a number of other local farm advisors were members. If you require the assistance of an advisor in areas of law, accounting, financial planning, etc., CAFA is a good place to start when looking for someone with an understanding of agriculture. There is a directory available on the website with information on advisors all across Canada.

I think CAFA is a particularly strong source for information on farm succession planning.

NEB Issues Hearing Order for Enbridge Line 9 Tolls

The National Energy Board has issued its Hearing Order RH-1-2010 for an application by Enbridge for approval of its tolls and tariffs on its No. 9 Line through Ontario. When this application was initially made a few years ago, the NEB raised the issue of "negative salvage value" of the pipeline, questioning whether the future cost of abandonment of the pipeline should be included in the calculation of tolls currently charged to the line's customers (the companies shipping oil through the line) so as to cover off the expected negative value of the line when abandoned (i.e. the cost of remediation, etc. would far outweigh any salvage value for the pipe). At that time, Enbridge simply withdrew its application for final approval of its tolls and avoided the issue.

Now the Line 9 tolls issue is back before the Board. The Ontario Pipeline Landowners Association (OPLA) has already written to the Board to suggest that the negative salvage issue be put back on the table. In its Hearing Order, the NEB says that it will consider this option once it has set its list of intervenors.

Read the Hearing Order at:
https://www.neb-one.gc.ca/ll-eng/livelink.exe?func=ll&objId=593231&objAction=browse

CBC News - Technology & Science - Triffid seed threatens flax industry

CBC News - Technology & Science - Triffid seed threatens flax industry

The European Union has shut out Canadian-produced flax seed after traces of Triffid, a genetically-modified strain of flax was detected in Canadian shipments. Triffid was engineered in the 1990's at the University of Saskatchewan to allow for the application of herbicides, but was later banned and ordered destroyed over fears of an EU boycott. Now Triffid is showing up again in commericial crops, and it's not clear where it's coming from. The EU was purchasing 70% of Canada's $320-million production prior to the reappearance of Triffid.

Oddly enough, the name Triffid was taken from a flesh-eating plant in a 1951 sci-fi novel called the Day of the Triffids: http://en.wikipedia.org/wiki/Triffid