Unloading in the evening

Unloading in the evening

Friday, July 30, 2010

Canada's National Energy Board creating a "Remediation Process Guide" to sign off on pipeline company contamination

The National Energy Board (NEB) says on its website that it has:
... developed a draft Remediation Process Guide (Guide) for industry to follow to ensure successful remediation of soil and groundwater contamination. The goal of this Guide is to provide a clear process for submitting remediation information. If remediation is determined to be successful then the NEB will provide a letter to that effect. The NEB will be hosting a technical meeting on 14 October 2010 in Calgary at a location to be determined to answer any questions and hear comments that interested parties may have. Parties wishing to provide written comments on the Guide are requested to do so by 1 December 2010. The Board will finalize the Guide shortly thereafter.
In the draft guide, the NEB says it makes every effort to ensure industry follows procedures to minimize releases, leaks and spills, but from time to time "accidents can occur".  In reality, the NEB operates on the basis of "goal-oriented regulation" whereby the Board sets goals and allows companies to decide how they will achieve those goals.  However, as we have seen with the BP disaster and the recent Enbridge spill in Michigan, "goal-oriented regulation" simply doesn't work when it comes to an all or nothing proposition like environmental contamination.  How many spills will it take before the regulator steps in and tells companies what they need to do to protect the environment?

The NEB also says that it is the "lead agency" for all contamination incidents related to its pipelines.  Landowners should be cautious to accept this approach.  NEB requirements regarding contamination (including both new spills and the discovery of historical contamination) may not match protections afforded to landowners under provincial environmental legislation.  Why should landowners have less protection from contamination just because the NEB is involved? 

The aspect of the proposed Remedation Process Guide that should be most concerning to landowners is the proposed "Remediation Closure Letter".  Essentially, the NEB will issue letters to companies who have contaminated the environment stating that remediation is complete and the NEB's file is closed.  The NEB says that its "expectation for reclamation is that the land is restored to a state comparable with the surrounding environment".  That is not necessarily the standard to which landowners are entitled to have their properties remediated under provincial laws and/or the common law.  Landowners should be demanding clean-up to the highest level possible under applicable law.  Also, what is to stop the NEB from issuing such a letter to a company before the company has adequately compensated the landowner for the damage caused?  What would that letter do to a landowner's negotiating position?

The NEB's proposal is troubling in that it perpetuates the problems associated with its policy of "goal-oriented regulation".  Companies are allowed to do what they want to avoid contaminating the environment, but when they do contaminate, they can rest assured that the NEB will sign off on their response.  In other words, the NEB's protection of the environment is limited to stepping in after contamination has occurred in order to validate the steps the company has taken to address the contamination.  There is still nothing in place to ensure that the contamination does not occur in the first place.  Is this an acknowledgement on the part of the NEB that there is nothing that can be done to prevent spills that will inevitably occur as pipeline infrastructure ages and corrodes? 

Click on this link to read the proposed guide: NEB Draft Contamination Remediation Guide.

Enbridge cited for problems in U.S.

CBC News - World - Enbridge cited for problems in U.S.

CBC News is reporting:
  • Enbridge Inc. and its affiliates have been cited for 30 enforcement actions since 2002 by the Pipeline and Hazardous Materials Safety Administration;
  • The PHMSA sent a warning letter to Enbridge in January about suspected violations in its corrosion monitoring program (corrosion in the pipeline appears to be the cause of the rupture and spill in Michigan);
  • The US EPA estimates 3.8 million litres have spilled into the Kalamazoo River system, while Enbridge says it is 3.1 million litres;
  • Enbridge spilled almost 71,900 litres of oil into the Nemadji River in Wisconsin in 2003;
  • Enbridge spilled 200,000 gallons of oil in northern Wisconsin in 2007 (in two separate spills).
Click on the link above to read the article.

Thursday, July 29, 2010

Enbridge's Michigan oil cleanup 'inadequate', says Governor

CBC News - Windsor - Michigan oil cleanup 'inadequate': governor

Click on the link above to read the CBC's latest story on the Enbridge oil spill in Michigan. Nearly 3.7 million litres of oil have spilled into the Kalamazoo River system.

Wednesday, July 28, 2010

CBC News - Photos of the Enbridge Oil Spill in Michigan

Read the CBC News story and view photographs of the oil spill at: CBC News - Windsor - Enbridge pipeline spills into Michigan river.

Enbridge Energy Partners Update on Michigan Leak Clean-Up

Enbridge Energy Partners Update on Michigan Leak Clean-Up


Enbridge Energy Partners, L.P. (NYSE: EEP) (the "Partnership") today provided an update on the progress being made in the clean-up efforts undertaken in response to the leak that occurred on Line 6B near Marshall, Michigan the morning of July 26, 2010. Community health and safety, and environmental mitigation remain top priorities.

"Crews worked through the night on containment, including the use of booms, oil skimmers and vacuum trucks. Additional crews and equipment will be onsite early Tuesday to assist with oil containment. We had approximately 50 people working through the night and we expect over 100 workers on-site during the day," said Stephen J. Wuori, Executive Vice-President, Liquids Pipelines, Enbridge Inc.

Emergency response crews are stationed along Tallmadge Creek and the Kalamazoo River to contain the oil. Crews are reclaiming the oil using a variety of different methods, including oil collection skimmers, containment and absorbent booms. A temporary dike and flume arrangement has been secured near the point of origin of the leak stopping transport into the tributary creek.

The cleanup is being conducted in compliance with all government regulations and Enbridge's own stringent standards for safety and the environment, and is being coordinated under the direction of a unified command structure at the site. Plans for remediation and reclamation of the site will be developed with the input of affected stakeholders and environmental regulators, the state and federal authorities.

"We are currently focused on bringing all available resources to bear in our efforts to safely contain the leaked oil on the Kalamazoo River. We have brought in multiple crews of trained Enbridge personnel, and continue to draw on our contractors to further augment our resources. We are members of emergency response organizations, and will continue to work with experts from those organizations to address the current situation and longer-term clean up and remediation efforts," said Mr. Wuori.

Enbridge is monitoring water quality at many points along Tallmadge Creek and Kalamazoo River and is taking measures to protect fish and wildlife from coming into contact with the spilled oil. Fish and wildlife specialists are on site to help rehabilitate affected animals.

"We'd like to acknowledge the impact this has had on the people of Marshall and the surrounding community," continued Mr. Wuori. "We extend our apologies to the people who have been affected by this. Enbridge understands that the leak has disrupted people's lives and had a major impact on the people in this community, on the environment and on wildlife. We ask you for your patience and your input as we work to clean up this leak."

The full community and environmental impacts are still being assessed. Enbridge will continue to work with the U.S. Environmental Protection Agency and the Michigan Department of Environmental Quality to complete the environmental cleanup of the site, and is working with state and local emergency response agencies to address local impacts and concerns.

"Enbridge expresses its sincere appreciation to the community of Marshall and surrounding areas emergency responders for their professional, diligent and supportive actions," said Mr. Wuori.

At this point in time, the Partnership cannot provide an estimated time for restart of the Line 6B pipeline. Enbridge appreciates the cooperation of shippers on the Enbridge system in realigning deliveries. Enbridge will work closely with all connecting carriers and refiners to minimize any service impact resulting from the leak.

The cause of the leak remains under active investigation with complete results not expected for several weeks. The section of pipeline involved will be removed and transported to a third party facility for examination and testing. Enbridge continues to work closely with federal and state agencies in the investigation, including the Pipeline and Hazardous Materials Safety Administration (PHMSA), along with state and local public safety officials.

Line 6B is a 30-inch, 190,000 bpd line transporting light synthetics, heavy and medium crude oil from Griffith, Indiana to Sarnia, Ontario. It is part of the Partnership's Lakehead System.

SOURCE: Enbridge Energy Partners, L.P.


Enbridge spills 19,500 barrels of crude oil into tributary of Kalamazoo River in Michigan

Enbridge Energy Partners Lakehead System Pipeline Leaks Crude Oil Near Marshall, Michigan


Enbridge Energy Partners, L.P. (NYSE: EEP) (the "Partnership") reported today that a pipeline on its Lakehead System leaked at approximately 9:45 a.m. CDT near the company's Marshall, Mich., pump station. Initial estimates are that approximately 19,500 barrels of crude oil may have been released as a result. The pipeline was shut down and isolation valves were closed, stopping the source of the oil.

No one was injured. Oil was released into a creek; the affected creek is a tributary of the Kalamazoo River, and Enbridge confirms that oil has entered the river. Enbridge crews, complemented by contract resources, were immediately dispatched to the site and are deploying oil skimmers and absorbent booms on the creek and river to minimize environmental impacts.

"Enbridge is treating this situation as a top priority," said Terrance McGill, President of the Partnership. "We are bringing all available resources to bear -- ranging from emergency response and containment personnel to environment and water quality specialists.

"Safety is a top priority and the Partnership will do our utmost to minimize the impact on the environment, neighboring landowners and communities. Enbridge's environmental response team is working closely with local agencies and all emergency officials to complete the clean up as quickly as possible."

Enbridge has notified and is working with the appropriate regulators and emergency officials. The cause of the release has not been determined and is being investigated.

At this time, Enbridge does not have an estimated time for restart of the line.

Line 6B is a 30-inch, 190,000 bpd line transporting light synthetics, heavy and medium crude oil from Griffith, Indiana to Sarnia, Ontario. It is part of the Partnership's Lakehead System.

About Enbridge Energy Partners, L.P.

Enbridge Energy Partners, L.P. (www.enbridgepartners.com) owns and operates a diversified portfolio of crude oil and natural gas transportation systems in the United States, including the Enbridge North Dakota System. Its principal crude oil system is the largest transporter of growing oil production from western Canada. The system's deliveries to refining centers and connected carriers in the United States account for approximately 12 per cent of total U.S. oil imports; while deliveries to Ontario, Canada satisfy approximately 60 per cent of refinery demand in that region. EEP's natural gas gathering, treating, processing and transmission assets, which are principally located onshore in the active U.S. Mid-Continent and Gulf Coast area, deliver approximately 2 billion cubic feet of natural gas daily.

Enbridge Energy Management, L.L.C. (NYSE: EEQ) (www.enbridgemanagement.com) manages the business and affairs of EEP and its sole asset is an approximate 14 per cent interest in EEP. Enbridge Energy Company, Inc., an indirect wholly owned subsidiary of Enbridge Inc. of Calgary, Alberta, is the general partner and holds an approximate 27 percent interest in EEP.

This news release includes forward-looking statements and projections, which are statements that do not relate strictly to historical or current facts. These statements frequently use the following words, variations thereon or comparable terminology: "anticipate," "expect," or "will." Forward-looking statements involve risks, uncertainties and assumptions and are not guarantees of performance. Future actions, conditions or events and future results of operations may differ materially from those expressed in these forward-looking statements. Many of the factors that will determine these results are beyond Enbridge Partners' ability to control or predict. Reference should also be made to Enbridge Partners' filings with the U.S. Securities and Exchange Commission; including its Annual Report on Form 10-K for the most recently completed fiscal year, for additional factors that may affect results. These filings are available to the public over the Internet at the SEC's web site (www.sec.gov) and via the Partnership's web site.


Enbridge Energy Partners, L.P.
Larry Springer
(713) 821-2253 or Toll free: (877) 496-8142

Enbridge Energy Partners, L.P.
Douglas Montgomery
Investment Community
Toll-free: (866) EEP INFO or (866) 337-4636

SOURCE: Enbridge Energy Partners, L.P.


Tuesday, July 27, 2010

Defective seed potato ruling upheld by NB Court of Appeal

Atlantic Potato Distributors Ltd., a potato distributor located in New Brunswick, brought an action against Robert Meersseman and Leon Meersseman, farmers in Ontario, seeking payment for seed potatoes. The Meerssemans admitted receiving and planting the seed potatoes, but asserted that some of the seed potatoes were defective, and counterclaimed to recover the resulting losses.  A crop adjuster for Agricorp (Ontario's crop insurance program) inspected the Meerssemans' fields and reported that between 50 and 60 percent of the crop did not emerge.  Following an unsatisfactory harvest, the Meerssemans refused to pay Atlantic for the seed. 

Both parties were successful at trial (i.e. the Meerssemans owed Atlantic for the seed potatoes they had purchased, but Atlantic was liable to the Meerssemans for the losses they suffered as a result of planting those defective seed potatoes).  Atlantic appealed the finding of liability for breach of a warranty implied under s. 15 of the Sale of Goods Act, R.S.N.B. 1973, c. S-1, as well as the damages award to the Meerssemans.  The New Brunswick Court of Appeal dismissed the appeal on both grounds.

Read the decision at: Atlantic Potato Distributors Ltd. v. Meersseman.

Monday, July 26, 2010

Ontario Power Authority holding public consultation process about planned price drop for solar power

In its latest edition of News Online, the Ontario Power Authority (OPA) says that its plan to drop the price offered for solar power from 80.2 cents per kWh to 58.8 cents per kWh is consistent with providing an 11% return to developers over the 20 years of a Feed-in Tariff (FIT) contract.  For instance, the OPA writes:
Ground-mounted projects with tracking systems (panels that turn to follow the sun) have higher upfront capital costs but produce more energy (higher capacity factor) and therefore generate more revenue. At 58.8 cents/KWh, the higher revenue offsets the higher capital costs and results in a rate of return that is comparable to roof-top solar projects as well as other FIT projects.
Ground-mounted projects without tracking have lower capital costs but also generate less energy and therefore less revenue. In this case, the lower upfront cost offsets the lower revenue, still enabling a reasonable rate of return from the same 58.8 cent FIT rate. It is the costs of these projects in particular which have come down relative to rooftop installations since the program was introduced, enabling a reduction in the tariff rate.
A more in-depth article on returns on investment for solar projects is available from the OPA at: Details of proposed rate calculation.

The OPA is also conducting a 30-day consultation period on the new pricing scheme:
Note: There will be a 30-day comment period on the proposed new price category. Please send all comments and submissions to microFIT@powerauthority.on.ca. While all emails will be read, not all emails will receive individual responses.
Comments also can be mailed to the following address and must be postmarked no later than Tuesday, August 3, 2010.
Ontario Power Authority
120 Adelaide Street West, Suite 1600
Toronto, Ontario M5H 1T1
Attention: Ground-Mounted Solar PV

Saturday, July 24, 2010

Farmer acquitted in another "self-propelled implement of husbandry" case

Justice of the Peace W. Rojek at Guelph, Ontario has acquitted an Ontario farmer, John Luymes, of several counts under the Highway Traffic Act (HTA) related to his use of a modified dump truck for farming purposes.  Luymes was charged after the following exchange with a Ministry of Transportation (MTO) officer:
On October 31st, 2008 the Ministry of Transport Officer Andrew Brown observed a vehicle travelling normally on Wellington Road 12 approaching Wellington Road 7 in the County of Wellington. The vehicle displayed a triangular slow moving motor vehicle sign at its rear driver’s side. The vehicle had three axles, a cab located behind the engine compartment and a dump box with a tailgate on it. The large tires mounted on the vehicle are commonly known as flotation tires. There were no licence plates attached to the vehicle. Officer Brown stopped the vehicle and spoke to the driver. The driver telephoned the vehicle’s owner, who is the defendant, John Luymes, and Mr. John Luymes then attended at the location where the vehicle was stopped. The defendant, John Luymes, told Officer Brown that he was the owner of the vehicle and described to Officer Brown the changes he made to the vehicle. The defendant, John Luymes, told Officer Brown that because of the changes of the characteristics and changes, he believed that the vehicle was a self-propelled implement of husbandry. Officer Brown examined the vehicle and told the defendant that the vehicle was a commercial motor vehicle. The defendant was then served with the summonses for the offences before the court.
Several different charges were laid.  For most of the charges, the salient issue was whether or not the vehicle was a "self-propelled implement of husbandry" as described in the HTA.  Luymes testified about the changes he made to the vehicle:
The defendant testified that they made the following changes to the vehicle in question: designed and manufactured a silage box, Exhibit Numbers 21 and 22, and how the vehicles are used. The photographs filed as Exhibits 23 and 24 show that the trucks are working together with the combines receiving harvested forage. Mr. Luymes explained that the tires were changed so the vehicle would not “sink” in the fields ground. The defendant told the court that when the harvested forage is blown onto these vehicles they transport the load to the farm’s bunker silo and the product is rear-discharged into that bunker silo and packed in firmly and the feed is preserved for the cattle as shown on the photo filed as Exhibit Number 26. That was the reason for designing and manufacturing specific boxes with the different type of gate which would allow the rear-discharge directly into these bunker silos. And this is why the boxes are called silage boxes. The vehicles needed also to be able to move alongside a forage harvester safely. They needed also to travel from the field to the farm relatively quickly. They needed to be operated safely on the highway day or night time.
Mr. Luymes advised the court that the vehicles he described are better equipped and definitely safer on the highway than most farm trailers, farm tractors and dump trailers. Mr. Luymes testified that if there was a need to haul grain to a commercial elevator on a highway he is using licensed trucks, farm-plated with the proper insurance policy attached to each vehicle. The vehicles used to collect forage are marked with slow vehicle signs as required for the self-propelled implement of husbandry. These vehicles do not travel at high rate of speed, are equipped with tires of limited speed and that they trying to operate within speed range of the tires. Mr. Luymes explained that on the day in question it was his son who operated the vehicle on its way to the farmstead to do the forage harvesting.
J.P. Rojek agreed with Luymes that, following the modifications to the vehicle originally purchased, it became a "self-propelled implement of husbandry":
It was then redesigned in the manner which can be summarized as follows: The box was designed and manufactured for accepting harvested forage from a combine or forage harvester and to be able to discharge such forage into the bunker silo. The rear two axles were redesigned from the original either highway wheels to four wheels fitted with flotation tires. The said tires had speed limits depending on load and air pressure from 10 miles per hour to 30 miles per hour (16 kilometres per hour to 48 kilometres per hour).
I am finding that the changes made to the tires and axles had met the criteria of objective change to that vehicle in the sense that it would be impossible to use that vehicle for its previous purpose which was hauling the loads on the highway. As I understand, the dump trucks (which apparently that vehicle was before) can travel with their load at regular highway speeds. This vehicle, as I said before, due to its tires limitations would not be able to do so. The mere fact that it was able to travel at approximately 80 kilometres per hour when empty would still be within “retaining some of its other capacities part of the test.” That change, in my understanding, is an objective one, does not depend on the end user. That vehicle was objectively changed from the highway dump truck to the forage harvesting vehicle. The mere fact that any kind of bulk goods could be still transported by it still fits in that objective change category. One could put anything in it but still could not travel on a highway as a regular dump truck would.
On this basis, J.P. Rojek acquitted Luymes of the charges for which the vehicle being a "self-propelled implement of husbandry" would be a defence.  However, one charge stuck:
With respect to charge number one, the vehicle was a motor vehicle when it was purchased by the defendant. The defendant did not apply for a permit on becoming an owner. This fact was not disputed by the defendant and found to be proven beyond reasonable doubt. Until the changes had been made to transforming it into the self-propelled implement of husbandry, the defendant was dealing with a motor vehicle and under section 11(2) of the Highway Traffic Act had the obligation to apply for the permit. Mr. Luymes did not do that. I am satisfied therefore that the Crown has proven it’s case with respect to count number one beyond reasonable doubt and in that case there is finding of guilt and conviction registered.
Read the decision at: R. v. Luymes.

Thursday, July 22, 2010

Application for judicial review of wind turbine setbacks before Ontario Divisional Court

Ian Hanna has made an application to the Ontario Divisional Court challenging the validity of wind turbine setback regulations made under the Environmental Protection Act.  The setbacks relate to the Ministry of the Environment (MOE) Noise Guidelines for Wind Farms, and were prescribed on October 1, 2009 following a period of public consultation.

In the application, the applicant will argue that the regulation was not properly adopted. Section 11 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28 requires the Minister of the Environment to “take every reasonable step to ensure that the ministry statement of environmental values is considered whenever decisions that might significantly affect the environment are made in the ministry”.  In the Statement of Environmental Values (“SEV”), the Ministry sets out principles it will apply in developing Acts, regulations and policies. Ten bullets follow, one of which is “The Ministry uses a precautionary, science-based approach in its decision-making to protect human health and the environment”.  The applicant will argue that the provisions under challenge do not comply with the precautionary principle. The affidavits in support of his position set out concerns about the adverse health effects of wind turbines and the uncertainty surrounding this issue. They are meant to show the government’s lack of compliance with the precautionary principle, as established in the SEV and in international law and the common law.

A recent interlocutory decision (i.e. a decision made during the course of the proceedings rather than a final decision at the end of the proceedings) concerning the admissibility of expert evidence to be submitted by the applicant is available at : Hanna v. Attorney-General for Ontario.

Wednesday, July 21, 2010

See photos from this year's Heritage Show Classic Tractor Pull in Ilderton!

Click here to view photos: Heritage Show Photos Page.

Residential Development on Simcoe County farms allowed to proceed

The Ontario Municipal Board (OMB) has allowed appeals by two landowners in the community of Colgan in Simcoe County that will permit development of farm land for over 600 detached dwellings plus a 170 bed retirement home.  Concern had been expressed by neighbours about increased traffic and the effect the development would have on farming activities on adjacent lands.  The OMB described the issues on the appeals as follows:
  • The development of the two subdivisions on agricultural lands is contrary to the policies in the Provincial Policy Statement and local and county Official Plans that protect agricultural lands.
  • The development of two subdivisions lack the required community plan because a secondary plan has not been approved for Colgan.
  • The amount of development proposed exceeds the limits in the local growth management plan and the county Official Plan.
  • The lack of servicing for water and waste water means that the proposed development is premature.
  • The land uses abutting the Caldwell residence are incompatible as far as the proposed bungalow townhouses and the Commercial use and should be replaced with detached lots.
  • The land use interface between the Manors of Colgan and McMann is inadequately buffered and should be replaced with a road.
  • Mr. Milotic’s demand for a common boundary fence should be agreed to by Wayland Farms.
The OMB found in favour of the appellants on all of the issues, more or less.  It noted with respect to concerns about agricultural operations that, "The right to farm legislation protects Mrs. McMann's farm operation and normal farm practices are protected.  Mrs. McMann has weakened her argument for further protection by severing a residential lot from her own property."  The OMB agreed that a common boundary fence may be appropriate in one location, but suggested that it is open to the neighbour to request a fence view under the Line Fences Act and have the dispute settled in that manner.

Read the decision at: Wayland Farms v. Township of Adjala-Tosorontio.

Tuesday, July 20, 2010

Sierra Club asks NEB for intervenor funding to participate in offshore drilling consultation process

The National Energy Board has recently publicized its move toward introducing a funding process for intervenors in its public hearings.  The Sierra Club has written this week to request funding to participate in a consultation process concerning offshore oil drilling in Canada.  Will funding be made available? 

Monday, July 19, 2010

Canadian Government responds to allegations in BSE class action claim

In the ongoing BSE class action against the Federal Government in Ontario, the Government has recently filed a document saying the following about cattle farmers' "duty to mitigate":
The plaintiff and class members had a duty to take reasonable steps to mitigate their losses as a result of the international embargo on Canadian beef and cattle.  The plaintiff and class members failed to do so by, among other things buying additional cattle or otherwise expanding their operations, not taking advantage of government compensation programs or otherwise not taking steps to minimize their losses in the context of their farming businesses.
Plaintiffs who allege they are suffering, have suffered or will suffer damages are obligated to "mitigate" their damages by taking reasonable steps to avoid the damages.  In practical terms, a plaintiff who is successful in an action will recover whatever damages are awarded by the Court less the amount of damages that should reasonably have been mitigated. 

Read the full document at: Particulars of the Statement of Defence.

Other documents and news about the class action are available at: http://www.bseclassaction.ca/.

Nova Scotia - Nuttby Mountain wind turbines arrive

CBC News - Nova Scotia - Nuttby Mountain wind turbines arrive

Nova Scotia Power's plan to generate power from five new wind farms by the end of 2010 took a step forward this week at the 45-megawatt farm under construction on Nuttby Mountain, near Truro.  Read the CBC News article at the link above.

Sunday, July 18, 2010

Common law spouse wins Alberta unjust enrichment claim

The Plaintiff, Doreen Mabel Josephine Desimone ("Ms. Desimone") and the Defendant, Douglas John Straub ("Mr. Straub") lived together for 20 years from about 1985 to 2005. They never married. During their relationship they lived on a dairy farm (the "old farm") owned by Mr. Straub.

Ms. Desimone claimed that her contribution of labour, goods and money to the old farm have unjustly enriched Mr. Straub, Straub & Sons Dairy Ltd. ("Straub & Sons”), Shane Straub and Rhonda Straub. Shane Straub is Doug Straub's son and Rhonda Straub is Shane Straub’s wife. Ms. Desimone sought a constructive trust in her favour for one half interest in the increase in the value of all the Defendants’ assets and lands from the date of their cohabitation to the date of the trial and one-third the increase in value of the milk quota purchased in 2008. Alternatively, she sought damages in the form of quantum meruit for the total value of the contributions made by her, either in the form of monetary damages or the transfer of specific lands and assets.

In addition to the unjust enrichment claim, Ms. Desimone claimed partner support, in the amount of $3,000.00 per month, from Mr. Straub. Alternatively, Ms. Desimone proposed a combination of a lump sum and periodic partner support, whereby she would receive $1,300.00 per month and a lump sum of $50,000.00 to help her re-establish herself.

Justice Bryan Mahoney of the Alberta Court of Queen's Bench agreed that Straub and his company had been unjustly enriched by Desimone, but did not award her any interest in property.  Instead, the judge awarded Desimone an amount equal to 35% of the increase in the value of the property and assets over the period in which she contributed to the farm.  However, an amount she owed to Straub would be deducted from the 35% once that amount was calculated (based on a current appraisal, etc.).

Desimone was also awarded $1,200 per month in spousal support over a five year period to end on July 1, 2010.

Read the decision at: Desimone v. Straub.

Thursday, July 15, 2010

Class Action judgment against Inco for environmental damages in the amount of $36 million

An Ontario trial judge has awarded a plaintiff class $36 million in damages in its action against Inco related to soil contamination.  The class proceeding was brought by residential properties owners in the City of Port Colborne alleging that emissions from the Inco refinery there contaminated the soil on many properties with high levels of nickel.  The action did not involve a claim for personal injury or adverse health effects.  Instead, the common issue that was allowed to proceed in the class proceeding (all class actions must first be "certified" by the Court before they will be allowed to proceed as class actions) related to property devaluation. 

The common issues before the Court in the trial were:
6(c) Did the disclosure from and after September 2000 of information concerning nickel contamination in the Rodney Street area and elsewhere in Port Colborne negatively affect property values in the Port Colborne area?
6(d) Did the discharge of nickel by Inco amount to a public and/or private nuisance?

6(e) Did the discharge of nickel by Inco amount to a trespass?

6(f) Is Inco strictly liable to the class for the discharge of nickel as a result of a failure to prevent the escape of a dangerous substance (Rylands v Fletcher)?

6(g) If Inco’s liability is established, can class members’ claims for property damages be assessed by group or area and, if so, what is the quantum of damages?

6(h) If Inco’s liability is established, did Inco’s conduct justify an award of punitive damages to the class, and if so, what amount of punitive damages is appropriate?

6(i) Are class members’ claims statute-barred by the six year limitation period provided for by s.45(l)(g) of the Ontario Limitations Act, that was in force during the relevant time?
The trial judge found that the representative plaintiff proved on a balance of probabilities that negative publicity and public disclosures by Inco concerning the contamination from and after September 2000 significantly affected property values in certain areas, somewhat affected property values in other areas, and had a slight effect on property values in another set of areas.  On this basis, different damage awards were made with respect to different areas within the plaintiff class of properties.

The Court used property tax assessment data from MPAC in order to determine the quantum of the losses suffered by the members of the plaintiff class.  An expert accepted by the Court analyzed the MPAC assessments for residential properties that were done in the years 1996, 1999, 2001, 2003, 2005 and 2008 in the cities of Port Colborne and Welland. He found that the average assessment for residential properties in the City of Port Colborne rose 59.5% between 1999 and 2008, and that the average assessment for residential properties in the City of Welland rose 65.4% for the same time period. Thus, residential properties in the City of Welland outperformed those in the City of Port Colborne by 5.9% from 1999 to 2008.  The expert concluded that the value of all of the residential property in Port Colborne is approximately $48,000,000 less than it would have been if property values in Port Colborne had kept pace with property values in Welland from 1999 to 2008.

Read the decision at: Smith v. Inco.

Wednesday, July 14, 2010

OMB rules in favour of hog barn expansion beyond MDS II formula

Frans and Hannie VanderZanden (Applicants) own and operate a 26.5 ha (65.5 ac.) farm on the west side of Palmyra Road, in the Community of Orford. The property contains one large livestock barn and three smaller barns with an existing capacity of 2,400 feeder hogs. They planned to expand their operation by building a new 32 m (105 ft.) x 29.5 m (97 ft.) addition to the south side of the existing large finishing barn. The new addition would add capacity for an additional 900 hogs.  The MDS II formula requires a minimum setback from the nearest lot lines. The proposed addition will only be 16 m (52 ft.) from the nearest lot line as opposed to the required which is the same setback of the existing barn to which the addition is proposed. Therefore, the proposed expansion of the livestock facility would require a reduction in the setback to the nearest lot line from 30 m (98 ft.) to 16 m (52 ft.).  VanderZanden applied successfully to the Municipality of Chatham-Kent for a minor variance.

Bobbi Plumridge (Appellant) is a 20 year resident of the area, living  approximately 1 kilometre from the Subject Property, and opposed the application.  She says that when she purchased her home in 1990, the Subject Property consisted of 3 modest sized barns and a manure lagoon and the newer larger barn next to the grey drain did not yet exist. A new barn with 10,000 sq. ft. was added between 1994-1995. Since then, there have been several incidences over the years with manure not being properly contained, including spills from underground into the grey drain and also into Lake Erie. According to Ms Plumridge, a previous application to expand the operation at the Subject Property was refused because of manure spills and accidents. She is concerned not only about the above ground spills but also the underground spills that occur. Ms Plumridge contends that the proposal calls for too many hogs/pigs for this land base and that currently 78% of the manure needs to be trucked off site.

The municipality and the applicants were represented by the same lawyer at the hearing.  Both sides presented evidence and, following the hearing, the OMB ruled in favour of the municipality's decision to allow the barn expansion in spite of the MDS II setback requirement:

Therefore, the Board agrees with and adopts the planning evidence and opinions of Mr. Brown. The Board finds that the proposed variance is desirable because it helps to conserve farmland by expanding on an existing site instead of utilizing a whole other new site. The use here is an existing and permitted use in the OP; therefore it maintains the intent and purpose of the OP. The proposed variance maintains the existing setback and thereby maintains the general intent of the ZBL which is to minimize land-use conflicts caused by odours and the like. The proposed extension/expansion maintains an existing condition, and as such it will not be located any closer to the lot line than what already exists. The variance is minor because the neighbouring land use is passive farming and there are no significant impacts resulting from the shortened setback.

The Board is satisfied in this instance, that the proposed variance to facilitate the expansion of the existing hog operation meets the tests in subsection 45 (1) of the Planning Act, is in the public interest, and represents good planning. The Board notes that expansion of the existing facility includes utilizing the existing/proposed setback was also endorsed by Mr. Faber, who prepared the nutrient management study approved by OMAFRA.
Read the decision at: Plumridge v. Municipality of Chatham-Kent.

Tuesday, July 13, 2010

Saskatchewan farmer convicted in distressed cattle case

Saskatchewan farmer John Kowalik has been convicted of one count of "causing or permitting cattle to be in distress" contrary to The Animal Protection Act, 1999.  Under the Act, an animal is in distress if it is:
(a) deprived of adequate food, water, care or shelter;
(b) injured, sick, in pain or suffering; or
(c) abused or neglected.
The Crown’s evidence overwhelmingly established beyond a reasonable doubt that many of the cattle for which the accused was responsible were indeed in distress. The testimony of Barry Thiessen, who is a designated Animal Protection Officer under the Act, showed the cattle to have been kept in a field with inadequate shelter on one side of the quarter section and absolutely no shelter on the other three sides. Thus these animals were at the mercy of the winter winds. One old black cow had collapsed to the ground and was eating the snow in front of it as far as it could reach in an effort to keep hydrated. A large mound of faeces had built up behind it. It had to be shot to put it out of its misery. A cow had given birth. The placenta had not detached and was hanging out of the cow’s birth canal. Its newly born calf was wandering about unable to feed because the mother would not bond with it. Other cattle were clearly undernourished with their spines clearly visible. These had what a defence witness described as a “McDonald’s Arches” look. There was simply no doubt in the judge' mind that these animals were in distress as defined by the Act.

Defence evidence of due diligence on the part of the farmer was rejected.  The accused testified that he had asked his neighbour, Dennis Brassard, to help him move the cattle across the road to a more appropriate pasture where there was adequate shelter. The witness, Dennis Brassard, testified that he had indeed been asked to help move the cattle but was unable to do so prior to Christmas of 2008. He testified that he didn’t help move the cattle between then and March 20 of 2009, because he was not asked to do so by the accused. Indeed the evidence showed that Brassard was more than willing to help and did indeed help when the animal inspector, Mr. Thiessen, ordered the cattle to be moved across the road. In the Court's view, asking a neighbour to help, and then not following up for over three months, was not exercising due diligence. Good intentions do not amount to due diligence. The accused was an experienced farmer. He was born on this farm, and he has worked on it all his life. He could and should have acted much earlier to alleviate the distress that he caused these animals, and that he allowed to continue.

Read the decision at: R. v. Kowalik.

Monday, July 12, 2010

Reminder: This blog is intended to provide legal information - not legal advice

Smith v. Alliance Pipeline appeal to be heard by Supreme Court of Canada on October 5th

The October 5th hearing date for the appeal by Alberta farmer Vernon Smith to the Supreme Court of Canada has been confirmed.  This is an appeal from a decision of the Alberta Court of Appeal which overturned an NEB Act arbitration committee decision that awarded Smith his costs of a court case initiated by Alliance Pipelines.  A number of other Alliance landowners had applied to intervene in the case, but the Supreme Court dismissed their application on June 7, 2010. 

The fact that the Supreme Court has chosen to hear this case signifies its importance and, perhaps, the need to clarify the law involved.  You can read the written arguments filed by the parties at:

Smith (Appellant) Factum

Alliance (Respondent) Factum

Saturday, July 10, 2010

Appeal Tribunal upholds 15% dairy quota assessment against widower

The Agriculture, Food and Rural Affairs Appeal Tribunal has upheld the imposition of a 15% quota transfer assessment by the Dairy Farmers of Ontario (DFO) against a Smithville farmer.  DFO policies require an assessment of 15% on certain dispositions of quota by a producer. Dougal Lea Ltd., owned by Paul MacDougall and his late wife, Maryanne, disposed of its quota on the quota exchanges of May and June 2008, and a total transfer assessment of 7.186 kg was charged on the disposition. This means that 15% of the assessment was not offered for sale, but was retained by DFO, whose usual practice is then to distribute it to other producers as a general increase in quota or to use it to manage the overall volume of quota. The remainder of the production quota that had been held by Dougal Lea was then offered for sale on the exchange and purchased by other producers.

Dougal Lea appealed the application of the transfer assessment on the grounds that special circumstances exist that made the application of the assessment inappropriate. The special circumstances were that one of the two primary operators of the dairy farm, Maryanne, had died unexpectedly shortly after learning that she had an aggressive cancer, while the operators' plan had been to continue to operate the farm for many years.

This was obviously a tough case for the Tribunal to decide.  In the end, though, it erred on the side of limiting the circumstances in which an exemption would be granted.  As the Tribunal noted:
The Tribunal has a great deal of sympathy for Mr. McDougall's circumstances. We are not about to second-guess his choice to manage his circumstances as he did, nor to assess or finely measure the impact of his wife's illness on his willingness to operate the farm. We can understand completely his decision to spend his time with her, and his decision to leave the operation if she was not going to be part of it. [...]
These are difficult choices to make, but in deciding to give up the operation, Mr. McDougall was not choosing to exit the industry because of his own incapacity, or because the operation had lost its only primary operator. To grant relief in these circumstances would in our view expand the concept of special circumstances in such a way as to make a decision to exit the industry as a result of a significant operational change a ground for relief from the transfer assessment, and would negate the policy. We do not find that Mr. McDougall's decision was unreasonable, merely that this reason for exiting the industry is not one that should be exempt from the assessment policy.
Read the decision at: Dougal Lea Ltd. v. DFO.

Friday, July 9, 2010

Changes coming to Ontario Drainage Act under new "Open for Business" legislation

Amendment to the Drainage Act to support the Government’s Open for Business Bill

The Drainage Act [DA] (click here to read the Act) sets out all procedural requirements for drain construction and maintenance in Ontario, and is one of the oldest pieces of provincial legislation. The DA has not been significantly revised for more than 30 years. The proposed administrative amendments would modernize services, bringing them up to date with current business practices.

Specific amendments proposed include:

Changes to administrative requirements for municipalities: Before municipalities construct a drain, they must hire an engineer to submit his or her expert opinion in a report. Extending the time limitation for submitting a report to 12 months from six months is proposed to provide time for the engineer to fully incorporate the requirements of other legislation.

Removing obsolete provisions: An older method of requesting the construction of a drainage works called a ‘requisition’ is no longer used in Ontario, so it is proposed that this section be removed. A position called a ‘commissioner’ used to be appointed by municipalities to inspect drainage works, but commissioners have been supplanted by drainage superintendents, so this section also is proposed to be removed. A related section regarding periodic inspections by drainage superintendents duplicates provisions set out elsewhere, and should be removed.

Simplifying processes: Forms under the DA currently must be prescribed in a regulation by the Lieutenant Governor in Council. This proposed amendment would delegate the power to prescribe forms to the Minister. This proposed amendment will provide the flexibility to allow the forms to be updated more often to respond to changing industry needs.

Housekeeping amendments: Various sections of the Act will be re-worded or sub-divided into clauses for clarity, but will not be substantively changed. A minor drafting error in the Act also will be corrected.

Removal of obsolete pollution prohibition (s. 83): An obsolete section of the DA prohibits discharge of anything other than unpolluted drainage water into drains. This provision pre-dates Ontario’s extensive environmental legislation, and the better defined and stringent pollution provisions that now exist in s. 30(1) of the Ontario Water Resources Act and s. 6 and s. 14 of the Environmental Protection Act, both of which have pollution prohibitions that apply to drains.

Municipalities have not had the capacity to properly enforce this provision, so its presence also confuses the accountability for the protection of water quality. It is proposed that s. 83 be removed from the DA. Removal of the prohibition in this legislation does not represent tacit, implied or any form of permission to pollute, but looks to environmental legislation to specify environmental requirements.

Simplifying assessment provisions: Landowners who have drains on their property are subject to assessments levied by the municipality in which the property is located. These assessment fees pay for the construction and maintenance of drains. If an owner subdivides his or her land, the DA provides a mechanism for assessing the newly subdivided lands. If land is later connected to a drainage works, the DA provides a mechanism for assessing this new connection. These two situations use the same assessment process, and it is therefore proposed that they be combined and re-written for clarity.

Public Consultation:

This proposal has been posted for a 30 day public review and comment period starting July 06, 2010. If you have any questions, or would like to submit your comments, please do so by August 05, 2010 to the individual listed under "Contact". Additionally, you may submit your comments on-line.

All comments received prior to August 05, 2010 will be considered as part of the decision-making process by the Ministry of Agriculture, Food and Rural Affairs if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 011-0248.

Please Note: All comments and submissions received will become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered by the decision maker for this proposal.

All comments on this proposal must be directed to:

Yves Tremblay
Policy Advisor
Ministry of Agriculture, Food and Rural Affairs
Policy and Programs Division
Strategic Policy Branch
Strategic Policy Analysis and Coordination Unit (Toronto)
77 Grenville Street
Floor 11
Toronto Ontario
M5S 1B3
Phone: (416) 326-3697
Fax: (416) 326-9892

Thursday, July 8, 2010

Enbridge Pipelines finds inadequate cover widespread on Ontario Line 9

Yesterday, Enbridge Pipelines Inc. filed 73 notifications with the National Energy Board (NEB) related to the correction of insufficient depth of cover on its Line 9 pipeline in the vicinity of waterbodies.  It appears that most if not all of the notifications relate to the installation of protective covers over the pipe as it crosses drainage ditches.  The corrective measures are being carried out following depth of cover surveys by Enbridge.  As Enbridge is not required to file notifications of depth of cover work that is not in the vicinity of waterbodies or watercourses, it is not know how many other locations were identified as having insufficient depth of cover.

Under the applicable CSA standards, pipelines in agricultural lands must have no less than 2 feet of cover. 

Tentative date set for Supreme Court of Canada hearing in Berendsen contamination case

The Supreme Court of Canada has tentatively scheduled a hearing in the Berendsen v. MTO appeal for January 28, 2011 at 9:30 a.m.

Saskatchewan farmer convicted in stubble fire case

A Saskatchewan farmer has been convicted of having started "an outdoor fire without first taking sufficient precautions to ensure that the fire can be kept under control at all times, contrary to s.15(a) of The Prairie and Forest Fires Act, 1982".  On May 5, 2009, John Kushniruk was burning stubble from his farm land (which is held under a lease from the Crown) adjacent to Crown forested land, and the fire got out of control, causing damage to the wooded area.

Kushniruk had created a fireguard by working up land around the area to be burned, but an investigator observed that there was a lot of exposed grass in the fireguard area.  Kushniruk stated that he had already burned three different spots in the vicinity, without problems, and that the last one (the one that formed the subject of this charge), became a problem only when the wind came up later that afternoon. In his words, in the statement, a “cyclone got into the fire”, it “spun it”, and “some flames started to leak across the fireguard”.  He took remedial measures at that time, although to no avail.  At one point in his statement he summed it up by stating:  "That cyclone got in there and was enough to scatter it across."

A conviction was entered because it was found that Kushniruk had not taken sufficient precautions.  His fireguard was inadequate and there was no evidence that he has any firefighting equipment or materials with him.  He was working alone on the day of the incident in question.  Kushniruk's "due diligence" defence failed.

Kushniruk was acquitted on a second count against him - having started "an outdoor fire when weather conditions are conducive to a fire readily escaping control".  In the view of the Provincial Court judge, the evidence was not sufficient to establish that weather conditions were conducive to a fire readily escaping control.  The fire in question was the fourth set by the farmer that same day.

Read the decision at: R. v. Kushniruk.

Wednesday, July 7, 2010

Joint Review Panel asking for comments on Enbridge Northern Gateway Application

The Joint Review Panel created to hear Enbridge's application for the Northern Gateway Pipeline has released a procedural order requesting comments from interested parties:

The entire procedural direction can be viewed at: Joint Panel Procedural Direction.

While the order requires that Enbridge serve a number of parties with a copy of the order, there still seems to be no requirement that Enbridge notify affected non-Aboriginal landowners directly regarding the Joint Review Panel process or this comment submission process. 

Written comments must be received by the Panel no later than September 8, 2010.  There will also be three panel sessions held to hear oral comments.  The dates for the sessions and deadlines for registration are set out in the order.

If you're a landowner along the proposed route, or know someone who is, you can find out more about how landowners may be affected by the pipeline and what they can do to respond by contacting the Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA). Visit CAEPLA's website at: http://www.landownerassociation.ca/.

Tuesday, July 6, 2010

NEB says its process setting location of International Power Line without a public hearing complied with Canadian Bill of Rights

The National Energy Board (NEB) has rejected a request by landowners for review of its decision to grant Montana Alberta Tie Ltd. (MATL) a permit to construct and operate an International Power Line (IPL) between Alberta and Montana.  Affected landowners participated in proceedings before the provincial EUB, then lost on appeal to the Alberta Court of Appeal, and had their application for leave to appeal that decision dismissed by the Supreme Court of Canada.  They argued, in part, that the determination of the route of the proposed IPL is to be determined by the provincial regulator, not the NEB. 

The landowners asked the NEB to review and overturn its own permit decision because the NEB had itself decided on the location and routing of the IPL in a process that did not include a public hearing.  The landowners argued that Parliament, when it drafted the NEB Act, did not intend that the NEB could decide the location and routing of the IPL without a public hearing.  In fact, they argued that Parliament instead intended that the provincial regulator would determine the location of the line.  The NEB disagreed with both arguments and rejected the request for review of its decision.

One particularly interesting part of this case is the discussion of the Canadian Bill of Rights, which was passed into law in the 1960's and remains on the books today (even though the Charter of Rights and Freedoms was enacted in 1982).  What is different about the Bill of Rights, which applies to the Federal Government, is that it contains a protection for property rights: “enjoyment of property and the right not to be deprived thereof except by due process of law.”  The NEB agreed with MATL that this right did not require that the NEB hold a public hearing.  The NEB ruled that its own process of allowing interested parties to file comments on its proposed decision was sufficient to meet the test for "due process of law". 

Read the NEB's decision at: Montana Alberta Tie Ltd. (MATL).

Monday, July 5, 2010

Case comment on the R. v. Syncrude guilty verdict

Assistant Professor Shaun Fluker of the University of Calgary has posted a comment on the recent decision in R. v. Syncrude involving the deaths of 1,600 ducks in a tarsands tailings pond.  Click here: The Case of the 1600 dead ducks: The verdict is in - Syncrude guilty under the Migratory Birds Convention Act.

Ontario Power Authority lowers price for ground-mounted solar power

Friday, July 2, 2010

Claim against CN over sale of contaminated property going forward, in part

This is another decision on motions for summary judgment.  The action involves land owned in North Bay by Canadian National Railway Company (CN) that was sold by Canadian National Railway Properties (CNRP), a special purpose subsidiary of CN that was used to sell the lands, to Drosophilinks Consulting Inc. (DCI). It is alleged that there were environmental problems with one of the parcels sold by CN known as the Main Street lands. Damages are claimed by DCI for breach of contract and by the plaintiff Aldo Forgione under the Occupiers Liability Act, at common law and for breach of an alleged duty of good faith owed to him.  Forgione was involved because the property had come to DCI through an agreement between CN and Forgione "in trust" (for DCI).

The plaintiffs claim that in late July 2005, Mr. Forgione discovered a trailer on the Main Street property that contained transformers containing PCBs that exceeded federal and provincial guidelines. It is accepted that these transformers were there when the sale to DCI closed, although CN says that at the time of the sale, it thought that the property had previously been successfully decommissioned of environmental problems. It is claimed that DCI has incurred substantial expenses to comply with an order of the Ministry of the Environment, that Mr. Forgione has suffered personal damages as result of coming into contact with the PCBs and that he has suffered damages by reason of a lessening in value of the other properties that he purchased from CN in North Bay due to the notoriety of the PCB problem at the Main Street property.

The Ontario Superior Court declined to dismiss the DCI claim for breach of the agreement of purchase and sale, finding that there were genuine issues for trial.  The Court did, though, dismiss all of Forgione's personal claims, ruling that: 1) CN could not be liable under the Occupiers Liability Act when it had already sold the property to DCI; 2) Forgione provided no evidence of personal injury or harm; 3) Forgione provided no evidence of damage caused to other neighbouring properties purchased by companies he owned; 4) Forgione has no claim for a breach of the "duty of good faith":
Moreover, Canadian law has not recognized a general duty of good faith independent from or contrary to the terms of contract.
Even if Forgione were a party to the contract, which he wasn't, a breach of the contract by CN could not give rise to a cause of action for Forgione based on a separate breach of the "duty of good faith".

Read the decision at: Drosophilinks Consulting Inc et al v. Canadian National Railway Company.

Thursday, July 1, 2010

"Devastating admissions" by defendant in cattle case leads to summary judgment

Though the test may vary from province to province, a judge may grant summary judgment generally when there is no genuine issue for trial.  That is, if there is no legal issue that needs to be determined at trial in order to dispose of a case, one of the parties to a lawsuit may apply to the Court to have the case decided by way of a motion for summary judgment.

In a recent decision on a summary judgment motion brought by the plaintiff, Master Harrison of the Manitoba Court of Queen's Bench found that "devastating" admissions made by the defendant in the case during examinations for discovery were determinative of the case.  For that reason, there would be no purpose in going to trial and summary judgment was granted.

The case in question involved an "arrangement" where the plaintiff would receive on a regular basis requests or orders from the defendant to purchase cattle.  The plaintiff would go out and buy the cattle, usually at auction, and then deliver the cattle to the defendant and render bills to the defendant.  Eventually the defendant refused to pay and the arrangement ended.  The plaintiff sued for some $80,000.  The defendant counter-sued for $12,000.

Summary judgment was granted in the plaintiff's action because the defendant admitted during examinations for discovery that he had acknowledged the debt to the plaintiff and told the plaintiff that he would pay:
Yes. I offered him that because I lost so much money. And I said, ‘Okay. You know what? I will pay you so much a month until it’s paid, until you are paid.’ But that’s it for us. We are done.”
On the defendant's countersuit, the Court could not grant summary judgment.  The Master ruled that:
This court is not prepared to spend twenty pages of time and space in terms of a detailed analysis of the issues arising in the counterclaim. The evidence of the corporate representatives of the parties is so conflicted that only a trial, in my opinion, would resolve the substantial credibility issues outstanding within the counterclaim. It is true that the affidavit evidence before the court regarding the faxing of invoices concerning the counterclaim cattle does put the corporate defendant in an unfavourable light. However, the overall calibre of the said evidence is simply not strong enough show that the plaintiff has met the legal burden.
Read the decision at: ADJ Livestock v 4486413 Manitoba Ltd.