Merry Christmas !!!

I wish all of my readers and their families a very Merry Christmas and a Happy New Year!  Good health and good luck to everyone in 2012!

John Goudy

Dawn Gateway Pipeline Project cancelled

Dawn Gateway LP has advised the Ontario Energy Board that it will not be proceeding with the construction of the Bickford Dawn pipeline.  Dawn Gateway LP has also advised Union Gas Limited that it will not proceed with the purchase of the St. Clair Pipeline.  Dawn Gateway says that it is not proceeding with the project as a result of market conditions and "rate payer harm impacts". 

The Dawn Gateway pipeline project was earlier the subject of a constitutional decision by the Ontario Energy Board.  Originally, the pipeline was proposed as a federally-regulated project.  The National Energy Board dismissed concerns expressed by affected landowners that the project was not federal and that, if it proceeded as a federal project, landowners would be negatively affected.  However, the Ontario Energy Board ruled that the project would be provincial and accepted that some of the concerns of the landowners were valid.

Michael Schmidt seeking leave to appeal conviction and sentence

Durham-area farmer Michael Schmidt is asking for leave to appeal his conviction on 15 charges related to the sale of raw milk along with the sentence handed down following the conviction.  Schmidt was sentenced to a fine of $9,150 and one year of probation.  The appeal would be heard by the Ontario Court of Appeal.
Justice Tetley's reasons for sentencing Schmidt are available on the website of the Canadian Constitution Foundation.  The Crown had asked for $1,000 per count for each of ten convictions under the Health Protection and Promotion Act, R.S.O. 1990, c. H-7, and $200 for two other counts under the same Act.  The Crown sought a fine of $5,000 for the offence under the Milk Act of operating a milk plant without a licence during the fourteen week period of the investigation by the Ministry of Natural Resources. 

In handing down the sentence, Justice Tetley declined to rule that Schmidt's was a test case in which it would be appropriate to moderate the sentence.  Tetley did agree, however, that a relevant factor in sentencing was the fact that Schmidt believed he was complying with the applicable legislation.  Justice Tetley added that the extended period of time where regulatory enforcement procedures were not instituted may reasonably be concluded to have contributed to a mistaken belief on the part of Schmidt that he was in compliance with the law. 

Read the decision at: R. v. Schmidt.

CAFA Conference in Ottawa - February 2, 2012

Click here for registration form: REGISTRATION FORM.

Environmental Law appeal to be argued over Twitter

FOR IMMEDIATE RELEASE                                           December 13, 2011

Environmental law appeal to be argued over Twitter – for the First time ever

VANCOUVER. On Tuesday, February 21^st, 2012 at 10am PST (1pm EST), West Coast Environmental Law will be hosting the world's first ever Twitter Moot.  Moot Courts – a simulated court hearing – are a common activity in law schools, but are new to most of Twitter's more than 300 million users.  Law students from 5 prominent Canadian law schools are scheduled to compete in this first moot. 

Law students will represent Canadian Universities – British Columbia, Dalhousie, Ottawa, Victoria and York (Osgoode Hall) – will represent parties and present their arguments over Twitter in a simulated appeal of an actual court case: West Moberly First Nations v. British Columbia.  The judges confirmed to hear the appeal (a third judge is still to be announced) include:

• William Deverell (lawyer and author of the critically-acclaimed Arthur Beauchamp Mystery novels); and
• Omar HaRedeye (lawyer, blogger and one of Canada’s top 24 social media influencers according to Canadian Lawyer Weekly).

“Legal argument is not often limited to 140 characters or less,” said Jessica Clogg, Executive Director of West Coast Environmental Law. “But Twitter is the perfect medium to raise public awareness about how the law can help protect the environment.”

“The Twitter Moot will tell the story of an Aboriginal Nation fighting to preserve their relationship with the land against coal mining, and of the complicated questions of law and values that come with that conflict,” said Andrew Gage, one of the Moot’s organizers. “Tweeps [Twitter users] interested in law, the environment or aboriginal issues will definitely want to follow our Twitter Moot.”

Members of the public seeking to follow the moot can follow www.twitter.com/WCELaw/twtmoot, or can visit West Coast’s website at www.wcel.org/twtmoot/  Visit the web pages of the individual teams to leave advice or good wishes to the teams.  The Hashtag for the Twitter Moot is #twtmoot. 

West Coast Environmental Law thanks the sponsors of the Twitter Moot, or #twtmoot, including Iler Campbell LLP, McCarthy Tetrault, Miller Thomson LLP, Saxe Law Corporation, Skunkworks Communications, and Willms & Shier Environmental Lawyers.

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For more information contact:

Andrew Gage, Staff Lawyer, West Coast Environmental Law – 604-601-2506 (Vancouver) or 250-412-9784 (Victoria)

Jessica Clogg, Executive Director, 604-601-2501.

The TwtMoot Web Pages are available at wcel.org/twtmoot.

OEB dismisses most of gas storage compensation claim

The Ontario Energy Board (OEB) has recently decided a gas storage case that follows on the heels of a Court of Appeal decision that determined that the OEB has exclusive jurisdiction to decide questions of compensation.  The applicants before the OEB were the claimants in the case dismissed by the Court of Appeal.  The applicants made an application to the OEB under section 19 and section 38(2) of the Ontario Energy Board Act, 1998 for a number of heads of relief.  In particular, the application under section 19 was for an order of the OEB determining that the contracts between the applicants and Union Gas Limited have been terminated.  The application under section 38(2) was for an order determining the quantum of compensation to which the applicants were entitled.

The OEB has now partially dismissed the application on a motion for summary judgment filed by Union Gas Limited.  In doing so, the OEB applied the test under Rule 20 of the Ontario Rules of Civil Procedure.  The OEB was satisfied that there was no genuine issue requiring trial with respect to at least part of the claim made by the applicants.  Union made two arguments on why the application should not be heard by the OEB.  Firstly, Union argued that there was significant delay on the part of the applicants bringing the application.  Secondly, union argued that it had binding compensation agreements with the applicants, which, together with the OEB's 1993 gas storage area designation order, have superseded any prior agreement between Union, its predecessors, and the applicants.

The OEB found that Union's rights to inject gas into, store gas in and remove gas from the Edys Mill Pool, and to enter into and upon the land in the area and use land for such purposes was governed solely by the designation order, and has been since 1993.  The designation order supersedes any previous agreement with respect to Unions rights to inject store and remove gas.  Whether previous contracts between the parties relating to the right to inject, store or remove gas have been formally canceled or not is essentially irrelevant as these rights are now governed by the designation order.

It was also noted by the OEB that the applicants' allegations of unspecified breaches of the designation order were not supported by any evidence or particulars.  Even if there had been breaches of the designation order, it was not clear to the OEB that such breaches would be the proper subject of a hearing under section 38 of the Act.  As there was no basis for any finding in this proceeding that Union had committed any breaches of the designation order, the OEB dismissed claims based on those alleged breaches.

With respect to just and equitable compensation under section 38 of the Act, the OEB determined that it had no jurisdiction over gas storage on the applicants' lands during the period prior to the designation order.  During the period from the designation order in 1993 to 1999, the OEB determined that the applicants had been paid compensation by Union pursuant to Unions gas storage leases.  Therefore, the OEB dismissed the claims for compensation for the period 1993 to 1999.

The period 1999 to 2008 was covered by a compensation order made by the OEB.  The applicants were members of the Lambton County Storage Association (LCSA), which had negotiated an agreement with Union with respect to compensation.  The board ruled that it had dealt with compensation issues in that order in a final manner and that no party affected by it may seek additional or other relief for the period of time it covers.  The fact that the OEB has jurisdiction over compensation does not mean that the OEB can revisit the issue.

The OEB accepted that it could hear an application with respect to compensation owed to some of the applicants for the post-2008 period.  There was no agreement in place between Union and some of the applicants and the OEB could set the level of compensation under section 38 of the Act.

Read the OEB decision at: Knight et al. v. Union Gas.

Court throws out damages claims related to municipal drainage repairs

The Ontario Superior Court has dismissed a claim by a landowner for damages relating to a municipal drain (the "Cazabon Drain") located on the landowner's property.  The landowner claimed damages for nuisance (for unnecessary damage caused by undue delay by the municipality to remedy a drain problem), damages for negligence (for poor quality of workmanship in relation to repairs undertaken), and damages for "intentional infliction of economic harm" and "intentional infliction of mental suffering".  These last two claims were apparently related to the harm the landowner's reputation suffered after the municipality obtained a permanent injunction against him under the Drainage Act to prevent interference with efforts to repair the drain.

On a summary judgment motion by the municipality, the Court dismissed the landowner's claims for nuisance and negligence on the basis that insufficient notice of the claims as required by Section 111 of the Drainage Act had been given.  The judge allowed, however, that the landowner could commence new claims for nuisance and negligence.  The claims for economic harm and mental suffering were dismissed outright on the basis that there was no issue for trial. 

The Court also noted in the course of its decision that claims for damages related to the construction or repair of drainage works do not necessarily have to go to the Agricultural, Food and Rural Affairs Tribunal.  The Tribunal does not have exclusive jurisdiction over such claims.  The municipality had argued in this case that the landowner's claim based on negligence should be dismissed because it should have gone to the Appeal Tribunal.

Read the decision at: Hud v. West Nipissing.

TransCanada plans removal of 5.6% of 14,000 km of pipelines on abandonment

TransCanada Pipelines Limited has also submitted its application to the NEB for approval of its abandonment costs estimates.  TCPL has over 14,000 km of pipelines in Canada (not including the Keystone), more than half of which run through agricultural land.  Of the almost 8,000 km of pipe through agricultural lands, TCPL proposes to remove 1.7% on abandonment.  The rest of the pipe will be left in the ground with no continuing protection going forward. 

Read TransCanada's application at: TransCanada Preliminary Abandonment Costs Estimates. 

Enbridge plans to remove 0.6% of its pipelines on abandonment

Enbridge Pipelines Inc. plans to remove only 0.6% of its nearly 8,000 km of pipelines in Canada at the time of abandonment.  For agricultural land, only lands with "prospective future development" would have pipelines removed.  Pipelines would be abandoned in place in all other agricultural land with no "special treatment" for the pipelines.  This would include pipelines with a diameter of up to 48 inches.  More than 5,000 km of Enbridge pipelines run through cultivated land.   The 0.6% figure contrasts sharply with the 20% number identified by the National Energy Board (NEB) in its abandonment funding documentation.

Enbridge has applied to the NEB for approval of its plan for abandonment funding purposes.  The documents comprising Enbridge's application can be found at: Physical Plans for Abandonment and Preliminary Cost Estimates. 

Enbridge's application includes excerpts from a Praxis Research study conducted for the Canadian Energy Pipeline Association (CEPA).  The study consisted of a landowner survey, and Enbridge says that its abandonment plans took the results of the survey into consideration.  However, more than 50% of respondents with Enbridge pipelines expressed concern about Enbridge pipelines being left in the ground.  Read the study excerpt at: CEPA Landowner Survey.

Enbridge Line 9 Hearing Order Here

Click here to view the NEB Hearing Order for the Line 9 Reversal Project: Hearing Order.

NEB to hold oral public hearing for Enbridge Line 9 Reversal Application

The National Energy Board (NEB) announced yesterday that it will convene an oral public hearing to review Enbridge's application to reverse the flow of its Line 9 oil pipeline through southern Ontario.  The pipeline has been flowing westward since 1999.  When initially constructed in 1975, the flow direction was eastward. 

The Draft List of Issues for the hearing includes the need for the project; the engineering design and integrity of the pipeline, including the potential effects of flow reversal; contingency planning for spills, accidents or malfunctions, during construction and operation of the pipeline; the potential environmental and socio-economic effects of the project; the project’s potential impacts on Aboriginal interests; and its potential impacts on affected landowners.

Financial assistance will be made available through the Participant Funding Program to "applicants who meet the criteria and can demonstrate a need to support their timely and meaningful involvement in the proceeding."

CAFA's latest farm advisor directory now available!



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