In the circumstances and facts of this case, the Tribunal declines to grant Victor the requested relief.
CFO developed the undermarketing policy as a "fault free" entitlement. Producers can access the 10% re-grow entitlement if they undermarket for any reason [emphasis added]. The evidence is clear that CFO developed that policy to address undermarketing arising from weather conditions, among other factors. However, the policy contains no threshold criteria. Producers who undermarket due to laziness or negligence or poor chick quality or bad feed or mechanical failures or weather conditions can all access the undermarketing policy and re-grow up to 10% of their quota.Read the rest of the decision at: Victor Osztrovic vs Chicken Farmers of Ontario (CFO).
In a quota based regulatory system, exemptions are the exception rather than the norm. In the case of chicken quotas, the CFO has created a standing exemption arising from undermarketing through its Quota Policy 170-2005, section 2.22. That Policy allows producers who undermarket to re-grow the lost kilograms to a maximum of 10% of quota over two future quota periods.
If everything that happened to cause undermarketing gave rise to an exception, the quota policy would become meaningless and that would undermine the regulatory regime. That is even more so where there is a standing exemption as in section 2.22 of the Quota Policy.
Therefore, the Tribunal concludes that to obtain relief above and beyond the undermarketing Policy, Victor must satisfy us, on a balance of probabilities, that something truly unique and exceptional occurred to cause the undermarketing.
Probably more than any other businesses, farmers are particularly at the mercy of the weather. However, weather conditions, even extreme weather conditions such as Victor experienced, are not unique and exceptional in Ontario.
The Tribunal is not satisfied that there was anything truly unique and exceptional about the weather event that resulted in the barn conditions that caused Victor's crop loss.
Strathcona County and the Strathcona County Energy Exploration Committee (a Committee of Council) has the following comments regarding the draft Guidance for Safe Crossings of NEB-Regulated Pipelines Using Agricultural Vehicles and Mobile Equipment:
Fundamentally; the pipeline industry should be held to task to provide the landowner with an agreement to "farm" his land prior to building the pipe; putting the owness on the landowner to request a crossing agreement from the company once the pipe is installed is not a process that many farmers would be aware of. However we are cognizant of the fact that "farming" practices are ever changing and Strathcona County does not condone putting farmers at risk. In this regard we support the draft as it applies to existing pipelines.
Moving forward we propose the consideration of a 2 (two) meter depth cover for future pipeline installations to alleviate the need for many of the safety and integrity concerns currently expressed by the agricultural community and industry. While there will still be a need for special considerations and communication between the parties this would allow for both to conduct their business with minimal crossing issues. We realize there could be an economic impact with this action but suggest that safety and reduction of future conflict may assist in offsetting that cost.
Strathcona County is a mixture of urban and rural land uses with approximately 250,485 acres of farmed land and a total of 771 farms. [emphasis added]
The Tribunal is disturbed by the actions of the Municipality in performing its duties under the Act, beginning with Council's consideration of the Engineer's preliminary report at their meeting of March 15, 2006. The Engineer's preliminary report provided three options for the enclosure of the drain in response to the original request by Mr. Minnema to have the drain enclosed. However, after hearing complaints from upstream landowners, Council chose to ignore the Engineer's recommendations contained in his preliminary report and restated in his letter attached to the municipal staff report. Instead, they opted to proceed in a completely different direction by instructing the Engineer to prepare a report based on installing an access culvert and erosion protection. It was this Council action that appears to have initiated a nearly 5 year litany of events which led to the preparation and consideration of three versions of final reports, with the recommendations in each successive report becoming progressively further removed from Mr. Minnema's original request for an enclosure and the recommendations of the Engineer in his preliminary report. During the process, Council provided specific instructions to the Engineer to modify his recommendations and design parameters, including changing the report from a drain enclosure to a culvert, deleting erosion protection and the upsizing of the access culvert from a 1 in 2 year to a 1 in 5 year design standard.
The Tribunal finds that Council for the Municipality exceeded their jurisdiction under the Act by exerting undue influence on the Engineer which prejudiced the Engineer's independent judgment.Read the entire decision at: Miller Drainage Works 1969.
The Tribunal is also disturbed by the Engineer's passivity in complying with Council instructions to make significant changes to his recommendations and design parameters. In his letter to the Municipality of January 14, 2007, which was attached to the staff report to Council dated February 11, 2010, the Engineer clearly stated that the best solution to address problems, including surface water and erosion, was the installation of a tile drain generally following the existing channel with outlets for surface water. During the hearing, the Engineer testified that he is still of the opinion that the erosion issues at the outlet of the existing tiles need to be addressed, yet this work is not included in the current Report. He also testified that the design standard for an agricultural access culvert is normally a 1 in 2 year storm, yet the culvert in the Report has been upsized to a 1 in 5 year storm. Furthermore, he testified that he still stands by his recommendation to enclose the drain as described in his preliminary report, yet the current Report has no such recommendation. He said that he made the changes to the reports in order to comply with the Council instructions.
The Tribunal finds that the Engineer allowed himself to be unduly influenced by Council and failed to exercise independent judgment in preparing his final reports, including the current Report.
In view of the above, the Tribunal finds that the Engineer's Report under consideration does not represent a "true report" as referenced under Section 11 of the Act.
According to BP oilworkers, that means inspections have determined that more than 80 percent of the pipe wall is corroded and could rupture. Most of those lines carry toxic or flammable substances. Many of the metal walls of the F-ranked pipes are worn to within a few thousandths of an inch of bursting, according to the document, risking an explosion or spills.Read the rest of the article at: ProPublica.org.
1.The appellant has known of the 2005 policies for more than a year and the Tribunal should therefore exercise its discretion to refuse to hear the appeal under subsection 16(4) of the MAFRAA.
2.The appellant is not aggrieved by the 2005 policies within the meaning of subsection 16(2) of the MAFRAA.
3.The appeal of the 2005 policies is vexatious within the meaning of subsection 16(4)(b) of the MAFRAA.In allowing the motion, the Tribunal concluded that the following factors combined to militate against permitting Mr. Bos to continue with this appeal of the 2005 policies:
focusing pre-construction monitoring on identification and evaluation of bird habitats to consider potential impacts of wind power development on birds and bird habitats;
identifying methods for evaluating the significance of candidate bird significant wildlife habitat and adopting a habitat setback approach, with assessment and monitoring based on proximity to significant habitat;This proposal has been posted for a 45 day public review and comment period starting November 05, 2010. If you have any questions, or would like to submit your comments, please do so by December 20, 2010 to the individual listed under "Contact". Additionally, you may submit your comments on-line.
establishing of post construction bird mortality monitoring requirements for all onshore wind power projects, via an environmental effects monitoring plan; and
establishing a requirement for an additional two years of scoped monitoring when a threshold of bird mortality exceeds:
• 18 birds/ turbine/year;
• 0.2 raptors/turbine/year (all raptors);
• 0.1 raptors/turbine/year (raptors of provincial conservation concern); or
• 2 raptors/windpower project (<10 turbines).
Having rejected the evidence of the plaintiff's expert in favour of the project proponent's expert, the Court found that the test for an injunction had not been satisfied.If Dr. Nissenbaum could be considered an expert to provide opinion evidence on the issue surrounding the granting of the injunction, there are two further reasons to reject his evidence. The first is that he has assumed the role of advocate. A review of his affidavit No. 2 especially shows that he does not take an objective approach to the issues at hand. He passionately believes in the harmful health effects of wind turbines from his own survey on the Mars Hill project and has made that the basis for his foray into an area that he has little real knowledge of. It is clear from the content and tone of his second affidavit that he has no objectivity in respect of the issues. Secondly, in addition to the leaps of logic that were contained in para. 17 of both affidavits, he makes bold, unsupported statements on issues critical to the injunction.
The ongoing cleaning program (pigging) on the Husky lateral is unlikely to effectively mitigate these same sharp deep anomalies because the brushes would not be expected to penetrate to the bottom of these pits to arrest the active corrosion. Since 2007, Express Pipeline has completed numerous digs and repairs on the 1.3 kilometer pipeline and spent in excess of $4.3MM in repairs and inspections. It is evident that the Husky lateral’s internal corrosion problem cannot be effectively mitigated by combining regular cleaning with periodic ILI, and that this line should remain out of service until a more effective program is implemented or the line is replaced.The application can be viewed at: Express Pipeline Abandonment.
