Unloading in the evening

Unloading in the evening

Monday, October 31, 2011

Ministry of the Environment News Release: $4,000 fine for selling pesticides without licence

Justin Vanderheide Fined $4,000 For Selling Pesticides Without A Licence

CAYUGA – On July 8, 2011, Justin VanDerheide was convicted on three violations under the Pesticides Act for offering the sale of a pesticide and selling a pesticide without a vendor’s licence.  The Court heard that Mr. VanDerheide resides in Dunnville, Haldimand County.  In November 2010, the ministry found an advertisement in a trade publication newspaper, dated offering Weed-Master 41 and Wiseup glyph sate for sale. Similar advertisements were also found on an advertising website.  The advertisements in the newspaper and on the website were later determined to belong to Mr. VanDerheide. Weed-Master 41 is a pesticide that requires a licence to sell.  A search of ministry records determined that Mr. VanDerheide did not possess a vendor’s licence.

Mr. VanDerheide was charged following an investigation by the ministry’s Investigations and Enforcement Branch.  He was fined 4,000 plus a victim fine surcharges and was given 15 days to pay the fine.

Saturday, October 29, 2011

Ministry of the Environment: $48,000 fine levied for manure discharge

Bernardus Johannes Joseph Debeer Fined $48,000 For Manure Discharge

THUNDER BAY– On August 8, 2011, Bernardus Johannes Joseph DeBeer pleaded guilty to one violation under the Ontario Water Resources Act for a discharge of corn silage and manure into the Curry Municipal Drain and Reynolds Creek.

The Court heard that Mr. DeBeer is the president of a dairy and veal farm in the Municipality of South-West Oxford, Ontario.  In 2009, the ministry received a report of dead fish in Reynolds Creek.  The ministry conducted sampling on the farm and observed that run-off from the corn silage was entering catch basins. Mr. DeBeer confirmed that he had been receiving corn silage for more than a week and also confirmed that the catch basins were connected to the Curry municipal drain which flowed into Reynolds Creek.

Mr. DeBeer was charged following an investigation by the ministry’s Investigations and Enforcement Branch.  He was fined $48,000 plus a victim fine surcharge and was given six months to pay the fine.

Friday, October 28, 2011

Ministry of the Environment News Release: Abandoned Well Violation

Amethyst Well Drilling Ltd. Fined $2,500 Plus A Court Order For Restitution Of $6,619 For An Abandoned Well Violation

THUNDER BAY– On July 29, 2011, Amethyst Well Drilling Ltd. pleaded guilty to one violation under the Ontario Water Resources Act for failing to ensure that when abandoning a well, the well, including any annular space, is plugged to prevent any movement of water.

The Court heard that the company constructs potable water wells. The property owner of a residence in the Township of Neebing hired the company to construct a well on the property. In 2009, the property owner contacted the ministry with a complaint regarding the construction of his well since the water was not clear and remained cloudy in appearance.  It was discovered that in January 2008, the owner of the company had attended the site and discovered the casing was not in the bedrock.  In May 2008, he returned to try to repair the well, but the well had collapsed.  The well was not sealed from the bottom as required.  A new well was drilled nearby on the north side of the owner’s driveway.  The second well was drilled in October 2008 and in the process of developing the well, the water pumped remained very turbid, and a sink-hole appeared where the first well had been drilled.

The company was charged following an investigation by the ministry’s Investigations and Enforcement Branch.  The company was fined $2,500 plus a victim fine surcharge and was given 12 months to pay the fine. A court order was also issued ordering the company to pay restitution in the amount of $6,619 by September 30, 2011, for reasonable expenses incurred by the property owner, due to the damage to his property.

Thursday, October 27, 2011

Ministry of the Environment News Release: Fine for advertising pesticides for sale without licence

Joseph Domotor Fined $2,000 For Advertising Pesticides For Sale Without A Licence

BRANTFORD – On June 28, 2011, Joseph Domotor pleaded guilty to one violation under the Pesticides Act for the placement of an advertisement offering the sale of pesticides without a vendor license.

The Court heard that Mr. Domotor operates a used car business in Brant, Ontario.  In July 2010, ministry staff placed a call to the telephone number listed in an advertisement on a website, offering the sale of pesticides. Mr. Domotor confirmed that he had pesticides for sale.  Some of the pesticides offered for sale were prohibited from being used in Ontario. In August 2010, ministry staff visited the business site and observed pesticides on site, including bottles of Wilson Total Wipeout Weed & Grass Killer concentrate – products no longer available for purchase in Ontario. 

Mr. Domotor was charged following an investigation by the ministry’s Investigations and Enforcement Branch.  He was fined $2,000 plus a victim fine surcharge and given six months to pay the fine.

Wednesday, October 26, 2011


From theclean.org:


October 26, 2011: Nothing can prepare a person for the reality of high-volume "fracking"; certainly not the coaxing of suave salesmen who convince landowners to sign leases by telling them that they've won "the natural gas sweepstakes." And certainly not their description of benign completed gas wells that stand in green meadows, silently pumping money out of the ground.

When the frackers come, they arrive like an invading army:
Trucks by the hundreds, tankers, dump trucks, drilling rigs, fracking rigs. Five-acre drilling pads were bulldozed in the middle of farmers' best fields, million-gallon ponds were installed, roads were built, woods and fields were trenched and bulldozed for tie lines. Drilling rigs went up at an unbelievable rate. From one spot on our farm, I counted eight rigs.
Then the generators started. You could hear them a half-mile away.
Then the pumping stations - small, industrial sites with buildings and pipes sticking up out of the ground.
This is the scene as described by Libby Foust. Her family farm was the site of some of the first Marcellus wells in Bradford County, Pennsylvania.

Read the rest of the blog post at: theclean.org

Ministry of Environment News Release: Fines for gasoline spill

901659 Ontario Inc. O/A Dicola Petroleum, James Orr, Kathryn Gibson And Daniel Wilson Fined A Total Of $38,000 For Gasoline Spill

KINGSTON / BROCKVILLE – In June 2011, Daniel Wilson pleaded guilty to one violation under the Environmental Protection Act for failing to comply with a Provincial Officer Order by failing to submit a report in relation to the Kingston charge. In a related matter, in March 2011, 901659 Ontario Inc. o/a Dicola Petroleum, James Orr and Kathryn Gibson pleaded guilty to one violation each under the Environmental Protection Act for having control of a pollutant that spilled and failing to forthwith notify the ministry.

The Court heard that Dicola Petroleum is located in the Town of Perth and is a provider of petroleum products. Ms. Gibson is the president of the company and Mr. Orr is a truck driver for the company. Mr. Wilson is a co-owner of Franklin’s Marina located near Elgin. In May 2005, a gasoline spill occurred at the Marina while fuel was being delivered by the company, as a result of an overfill.  Gasoline discharged onto the ground and ran into a drainage ditch.  The spill was not reported to the ministry until 2008 by an engineering firm who was conducting a site assessment at the marina. Mr. Wilson disclosed that the spill had occurred on the property back in 2005. As a result, a Provincial Officer Order was issued, requiring a report to be prepared by a qualified consultant to describe the contamination and the proposed work needed to fully remediate it.

Following the laying of charges by the ministry’s Investigations and Enforcement Branch, the company was fined a total of $35,000. Mr. Wilson was fined $3,000 and Mr. Orr and Ms. Gibson were given suspended sentences.  The fines totaled $38,000 plus victim fine surcharges and they were given six months to pay.

Monday, October 24, 2011

CBC's The Current - Keystone vs. Landowners

"In its bid to move unrefined bitumen from the oilsands of Alberta to refineries in Texas, TransCanada pipeline is finding some of its toughest opponents aren't environmentalists or regulators but the ranchers and farmers whose land the pipeline will cross."
This morning, the CBC Radio One program The Current looked into the relationship of landowners with the proposed Keystone XL pipeline in the United States (click here to see the program page and a link to the archived broadcast). 
I was asked by the program to comment on the existence of "eminent domain" law in Canada (here known as expropriation), as well as any differences between the challenges faced by pipeline landowners in Canada and those in the United States.  My comments come at the end of the program, just before the host notes that TransCanada declined an invitation to speak on the basis that it is still involved in eminent domain proceedings in the U.S.

Friday, October 14, 2011

Saskatchewan farmer acquitted of Stray Animals Act charges

A Saskatchewan farmer has been acquitted by the Provincial Court of three charges under the Stray Animals Act for "allowing his cattle to run unlawfully at large".  The Court found in the end that the farmer had made out the defence of due diligence.

The Court accepted the evidence of a neighbour that on August 31, 2010, she was in her house, when suddenly five or six bulls came into her yard, from all directions, and a couple of them started fighting.  Being afraid, she called the police, and a complaint ensued.  She said that either she or the police phoned the farmer to come and get the bulls.  The neighbour also stated that the cattle got into an organic alfalfa field, which her son was farming for her.  She made a complaint about the August 31, 2010 incident, as well as two subsequent incidents of the same sort.

In his defence, the farmer presented evidence of his general practices, including the maintenance of fencing.  He argued that he had exercised due diligence by checking his fences twice a week, and repairing breaks whenever they were located.  The Court found that the farmer's fencing was good and substantial, well-built and well-maintained.  In the end, the Court agreed that the farmer had exercised due diligence and was not guilty of the strict liability offences under the Act:
The test ... is whether or not Mr. Potoreyko has satisfied me, on a balance of probabilities, that he took all reasonable steps to avoid the doing of the prohibited act.  I am satisfied that he has met that test.  He is not required to guarantee that his cattle will not run at large.  I find that he took reasonable steps, in both patrolling his fence line, and in repairing the fence line when required, to prevent his cattle from running at large.
Read the decision at: R v Potoreyko.

Wednesday, October 12, 2011

Ontario Court of Appeal overturns $36 million Inco class action damages award

In July, 2010, I posted about a $36 million award of damages made in favour of residential property owners in the City of Port Colborne.  The owners had sued Inco in a class action over property value losses related to soil contamination.  Now, on appeal from the decision of the trial judge, the Ontario Court of Appeal has overturned the award.  The Court allowed the appeal, ordered that Inco be paid $100,000 for the costs of the appeal, and has asked for submissions on the costs of the trial. 

The issues on appeal were:

 i.                   Did the trial judge err in holding that the discharge of the nickel particles by Inco on to the property of the class members constituted an actionable nuisance?
 ii.                 Did the trial judge err in holding that Inco was liable for the discharge of the nickel particles under the rule established in Rylands v. Fletcher?
iii.            Did the trial judge err in holding that the claimants had established a diminution in value of their properties after September 2000?
iv.            Did the trial judge err in holding that assuming there was a diminution in the value of the properties after September 2000, that diminution was caused by the discharge of nickel particles on to the land?
v.            Did the trial judge err in failing to hold that the claim was time barred under s. 45(1)(g) of the Limitations Act?

The Court allowed the appeal on the basis that the property owners failed to establish Inco's liability under either private nuisance or the rule in Rylands v. Fletcher (which is basically that a landowner cannot allow a harmful substance to flow from his or her property onto a neighbouring property).  Alternatively, if liability had been found, the Court of Appeal would still have found that the property owners failed to prove that they suffered any damages. 

Here is some of what the Court said about the tort of nuisance:
People do not live in splendid isolation from one another.  One person’s lawful and reasonable use of his or her property may indirectly harm the property of another or interfere with that person’s ability to fully use and enjoy his or her property.  The common law of nuisance developed as a means by which those competing interests could be addressed, and one given legal priority over the other.  Under the common law of nuisance, sometimes the person whose property suffered the adverse effects is expected to tolerate those effects as the price of membership in the larger community.  Sometimes, however, the party causing the adverse effect can be compelled, even if his or her conduct is lawful and reasonable, to desist from engaging in that conduct and to compensate the other party for any harm caused to that person’s property.  In essence, the common law of nuisance decided which party’s interest must give way.  That determination is made by asking whether in all the circumstances the harm caused or the interference done to one person’s property by the other person’s use of his or her property is unreasonable:  Royal Anne Hotel Co. Ltd. v. Village of Ashcroft (1979), 95 D.L.R. (3d) 756 (B.C.C.A.), at pp. 760-61. 

In our view, actual, substantial, physical damage to the land in the context of this case refers to nickel levels that at least posed some risk to the health or wellbeing of the residents of those properties.  Evidence that the existence of the nickel particles in the soil generated concerns about potential health risks does not, in our view, amount to evidence that the presence of the particles in the soil caused actual, substantial harm or damage to the property.  The claimants failed to establish actual, substantial, physical damage to their properties as a result of the nickel particles becoming part of the soil.  Without actual, substantial, physical harm, the nuisance claim as framed by the claimants could not succeed.
On the rule in Rylands v. Fletcher, the Court wrote:
The rule in Rylands v. Fletcher imposes strict liability for damages caused to a plaintiff’s property (and probably, in Canada, for personal damages) by the escape from the defendant’s property of a substance “likely to cause mischief”.  The exact reach of the rule and the justification for its continued existence as a basis of liability apart from negligence, private nuisance and statutory liability have been matters of controversy in some jurisdictions:   see Transco plc v. Stockport Metropolitan Borough Council, [2004] 2 A.C. 1 (H.L.); Burnie Port Authority v. General Jones Pty. Ltd. (1994), 179 C.L.R. 520 (Aust. H.C.); Murphy, “The Merits of Rylands v. Fletcher”.  In Canada, Rylands v. Fletcher has gone largely unnoticed in appellate courts in recent years.  However, in 1989 in Tock, the Supreme Court of Canada unanimously recognized Rylands v. Fletcher as continuing to provide a basis for liability distinct from liability for private nuisance or negligence.  

There are various formulations of the rule found in the case law and the academic commentary.  The authors of The Law of Nuisance in Canada suggest different potential formulations, including one, at p. 113, that requires four prerequisites to the operation of the rule:
        the defendant made a “non-natural” or “special” use of his land;
        the defendant brought on to his land something that was likely to do mischief if it escaped;
        the substance in question in fact escaped; and
        damage was caused to the plaintiff’s property as a result of the escape.
The Court of Appeal found that there was no liability under this doctrine because Inco's use of its property was not a "non-natural use".

Finally, although the Court of Appeal did not have to address the limitation period issue in order to make its decision, it did provide a brief commentary on the issue because of its potential effect on future cases.  The Court cautioned that discoverability is often an individual issue requiring individual adjudication after common issues (such as liability and damages, in this case) have been decided.  The trial judge in this proceeding had made a ruling on a limitation period defence on the basis that "most property owners" would not have been aware of the potential effect of nickel contamination as of a certain date.  The Court of Appeal ruled that the limitation issue could not be decided in that way in the trial of common issues:
If, as the trial judge found in this case, the evidence does not establish that all class members were not aware of and ought not to have been aware of the material facts, then the application of the Limitations Act to the claims is an individual and not a common issue. 
Read the full decision at: http://canlii.ca/s/6lhbs.

Sunday, October 9, 2011

Landowner awarded damages for neighbour's breach of drainage easement agreement

Madam Justice Quinlan of the Ontario Superior Court of Justice began her Reasons for Judgment in a recent drainage case in this way: "Issues between neighbours can sometimes be unpleasant.  A drainage easement over the plaintiff James Smith’s lands has resulted in acrimony and almost ten years of litigation."

Smith owns a property next to land owned by the Defendant in the case, 663556 Ontario Limited, which owns and operates a RONA store on its property.  Smith argued that an inadequately maintained drainage pipe installed by 663’s predecessor in title caused damage to his property in breach of the terms of a drainage easement agreement, including cracking to concrete block retaining walls.  In addition, water from RONA’S roof that continued to run off onto Smith’s property breached a court order and created a nuisance by diminishing Smith’s enjoyment of his property. 

In 1976, a former owner of Smith's property granted the owner of the RONA property an easement "for the purpose of laying down and constructing a drainage pipe to accommodate run-off water from the roof of the building."  Smith's land fronts on the Nottawasaga River.  Pursuant to the drainage easement, 663 agreed to “save, defend, keep harmless and fully indemnify the Grantor, her heirs, executors, administrators or assigns, and her and their lands and tenements, goods, chattels and effects, from and against all loss, costs, charges, damages and expenses which the Grantor, her heirs, executors, administrators, or assigns, or any of them, may at any time or times hereafter bear, sustain, suffer or incur, by reason of the Grantee constructing the said drainage pipe over the lands of the Grantor”.

The drainage pipe in issue was in a poor state of repair.  Eventually, Smith went ahead and replaced the pipe at his own expense and sought to be compensated by 663.  Justice Quinlan applied the indemnity and save harmless provision in the drainage easement and ordered 663 to pay for the work carried out by Smith on the drainage pipe.  However, she did not order 663 to pay for damage to a retaining wall, having found that Smith failed to prove on a balance of probabilities that the damage would not have been sustained "but for" the drain pipe issues.  Another claim related to driveway damage was dismissed.

Justice Quinlan also ruled that 663 had committed a nuisance by failing to rectify the drainage situation.  She found that a reasonable amount of damages was $3,000 per year for the seven years between 2004 and 2010, totalling $21,000. 

Read the decision at: Smith v. 663556 Ontario Limited.

Friday, October 7, 2011

Ontario Pipeline Landowners Association calls for Enbridge hearing

Enbridge Pipelines Inc. is proposing a line reversal on its aging Line 9 oil pipeline that runs through southwestern Ontario.  The Ontario Pipeline Landowners Association (OPLA), which represents landowners along the pipeline route (which also includes Lines 7 and 8), has written to the National Energy Board (NEB) to request a full public hearing process.  OPLA cites among its concerns the facts that Line 9 has thinner walls than Lines 7 and 8 and that the oil product Enbridge proposes to put through the line is more corrosive than regular sweet crude. 

Read the OPLA submission at: Letter of Comment.  OPLA is a member of the Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA).

Alberta farm land tax assessment case sent back for re-hearing

Madam Justice J.M. Ross of the Alberta Court of Queen's Bench in Edmonton has allowed an appeal of a property tax assessment decision involving farm land.  She granted leave to appeal to the Applicant, Associated Developers (AD), from a 2010 decision of the Composite Assessment Review Board (CARB) assessing AD's land as industrial property rather than as farm land.  Justice Ross then heard the appeal, overturned the decision of the CARB and sent the case back to the Board for re-determination.

The Property in question, located in Edmonton, was assessed as industrial property at a value of $6,723,500 in the 2010 assessment year for the 2009 taxation year.  The relevant valuation period for the 2010 assessment was therefore 2009.  Had the Property been assessed as farm land, the assessed value would have been $863,000.   The Applicant complained to the CARB, asserting that the property should have been assessed as farm land.  The Applicant had filed with the CARB annual leases between AD and a farmer for the years 1999-2010.  The leases included terms that the lands would be used solely for agricultural purposes. 

The City of Edmonton (arguing for the industrial land assessment) argued that the crop of hay on the property had not been harvested in 2009.  The City's position was that if the crop was not cut, it could not be said to have been produced and, therefore, was not used for farming operations and could not be classified as farm land.  AD argued in response that the land could still be farm land even if not hayed in 2009, as there are many circumstances in which people leave land idle for a year for a variety of sound agricultural reasons.

Justice Ross allowed the appeal because the CARB failed to provide adequate reasons for its decision and failed to identify the appropriate legal tests in its reasons.  These were breaches of the principles of natural justice and the duty to be fair.  She cancelled the decision and sent the matter back to the CARB to be re-heard.

Read the decision at: Associated Developers Ltd. v. Edmonton (City).

Wednesday, October 5, 2011

Municipal Board upholds County decision to refuse surplus farm dwelling severances

Better Farming has a report on an Ontario Municipal Board (OMB) decision backing Perth County's policy against severances of surplus farm dwellings (click here).  Two Perth municipalities - the Municipality of West Perth and the Township of Perth South - had appealed County council's refusal to amend the Perth Official Plan to allow severances under certain conditions.  The OMB dismissed the appeal, finding that the County's policy was not unreasonable:
The Board finds that the SSFDs [severance of surplus farm dwellings] are permitted in many of the surrounding agricultural focused municipalities through their official plans. However, in the case of the County of Perth, the upper tier municipality with a single county-wide official plan covering all the lower tier municipalities, the Board finds that the refusal to approve an OPA to permit the SSFDs is not unreasonable. The PPS [Provincial Policy Statement] makes the SSFDs permissive, it also allows the municipality to go beyond the minimum requirements in the PPS. Therefore, it is the County’s prerogative to implement a strict prohibition on the SSFDs. The Board finds this acceptable because it is permitted to do so and their position does not conflict with other PPS policies. In fact, the PPS recognizes the importance of agriculture and strongly discourages lot creation on agricultural lands and directs settlement activities to designated settlement areas. The Board finds that the COP [County of Perth Official Plan] does just that, when looking at the County as a whole, there are sufficiently designated settlement areas and the policies of the PPS are being maintained. The Board notes that it is Mr. Hanly’s evidence that an individual can still apply for a site specific OPA [official plan amendment] for a SSFD.
Read the OMB decision at: County of Perth.

Tuesday, October 4, 2011

Reasons for Decision in Michael Schmidt raw milk case released

The Reasons for Decision of Justice P.D. Tetley in the Michael Schmidt raw milk case are now available at: R. v. Schmidt.  Schmidt had been acquitted of all charges against him by a Justice of the Peace, but that decision has now been overturned and he has been convicted on 15 of 19 charges against him under the Provincial Offences Act (see my recent post).  The POA charges arose from alleged violations of the Health Protection and Promotion Act, R.S.O. 1990, c. H-7 (17 counts) and the Milk Act, R.S.O. 1990, c. M-12 (2 counts).  Counsel for the parties have been asked to confer with the trial coordinator to set a date for sentencing of Mr. Schmidt.