Appeal Tribunal weighs in again on liability of transporters for CFIA tagging

In a subsequent decision of the Canada Agricultural Review Tribunal, Dr. Don Buckingham wrote again about the extension of liability for tagging to "transporters":

Considering that a transporter is often working under sub‑optimal conditions for tag verification-limited lighting, the high speed of animals going into the truck, the hairiness of animals' ears which often hides tags, and the multiplicity of tags present in animals ears-the Regulations do impose a heavy, and at times, superhuman burden on a transporter to verify the continuing and constant presence of an approved tag in the ear of each of the animals being transported, failing which, the transporter faces liability for regulatory non‑compliance. Part XV does appear to impose a heavy responsibility on one sector for the benefit of all consumers and producers in Canada to assure traceability and food safety in the food system. Fair or not, this is, however, the regulatory burden that Parliament and the Governor in Council have placed on, in this case, the applicant Knill, and the Tribunal must interpret and apply the law to the facts of this case.

According to Buckingham, the common refrain from those appearing before the Tribunal to appeal fines levied by the CFIA is that the current identification system is unfairly exposing players in the agri-food continuum to liability for violations of Part XV of the Regulations because of a significant problem with the permanency of approved tags.

Read the decision at: H.S. Knill Company Ltd. v. Canada (CFIA).

CFIA Tagging Liability Extended to Agents of Owners

In a recent case before the Canada Agricultural Review Tribunal, Chairman Dr. Don Buckingham confirmed that his decision would effectively extend liability for CFIA-approved tagging violations to agents of owners.  In other words, not only will the owners of animals have a responsibility to ensure that proper tagging is in place whenever animals are moved, but agents of the owners such as truckers will share the same responsibility.  Dr. Buckingham commented: 

The Tribunal is mindful that its finding in this case will constitute an extension of liability to agents of owners under Part XV of the Health of Animals Regulations. However, considering the legislative provisions and the guidance offered to it by the Federal Court of Appeal on the matter, the Tribunal finds that the Agency has proved, on the balance of probabilites, the first element of the violation, "that Schaus caused the movement of" the cattle on February 18, 2009 from the farm of origin, in this case Ikendale. Considering that now, not only the producer but the transporter, or their agents must purchase, apply and verify the continuing and constant presence of a RFID‑CCIA tag in the ear of each of their animals whenever they are moved off their farm or face liability for regulatory non-compliance, Part XV does appear to impose a heavy, if not impractical, responsibility on one sector for the benefit of all consumers and producers in Canada to assure traceability and food safety in the food system. Fair or not, this is, however, the regulatory burden that Parliament and the Governor in Council have placed on, in this case, the applicant Schaus, and the Tribunal must interpret and apply the law to the facts of this case.

Read the decision at: Schaus Land and Cattle Co. Limited v. Canada (CFIA).

Ontario hog farmer's fine and jail sentence stayed pending appeal

A judge of the Ontario Court of Justice has stayed the sentence handed down to an Oxford County farmer ealier this month pending an appeal.  The farmer was convicted on charges related to a manure spill (see previous post).

Read about the stay decision at: betterfarming.com.

Van Boekel Hog Farms Fined $345,000 For Manure Spills

WOODSTOCK – On January 12, 2012, Eric and Yvonne Van Boekel, Van Boekel Hog Farms Inc. and Van Boekel Holdings Inc. were fined a total of $345,000 for pig manure spills that resulted in adverse effects to residents and impairment of water quality. Mr. Van Boekel also received 30 days of jail time.

The Court heard that the companies own two hog farms in Oxford County and that the ministry responded to complaints of pig manure spills on both farms. The ministry observed significant spills and noted that the spills had discharged into the Thames River and Sweets Creek. The ministry also determined that the flow manure application system that was being used to spread manure on fields was not being operated in accordance with the Nutrient Management Act.

The companies and the Van Boekels were charged following an investigation by the ministry’s Investigations and Enforcement Branch.  The companies and the Van Boekels were fined a total of $345,000 plus victim fine surcharges (25% surcharge). Mr. Van Boekel also received 30 days jail time concurrent to be served on weekends plus two years probation.

Read the Better Farming story on the case at: Oxford farmer slapped with huge fine, jail time.

NEB posts summary of abandonment estimates filed by pipeline companies

The National Energy Board has posted a "Summary of Group 1 Companies Physical Information Filed", setting out data related to the mode of pipeline abandonment proposed by Group 1 companies (large pipeline systems) that filed cost estimates with the NEB.  The chart provided juxtaposes the total km contained in pipeline systems against the km of pipeline that companies propose to remove upon abandonment.  The contrast is pretty striking.  At least in agricultural areas, companies propose to remove almost no pipe.  CAEPLA had proposed that cost estimates should be based on a conservative assumption of 100% removal.  Even the NEB had proposed 20% removal as the assumption to be used.  The pipeline industry obviously disagreed. 

Alberta Court rules in favour of landowner over crossing agreement

In 1948, CPR and Calgary Power Ltd. reached an agreement providing Calgary Power with the right to place three towers carrying power transmission wires on and over CPR property abutting the north side of 10th Avenue S.E. in the City of Calgary.  The agreement also provided that either party could terminate the agreement by giving three months' notice, and on termination Calgary Power would be obligated to remove the towers and wires and make good any damage caused to the property.  If the removal did not happen within one month of termination, CPR could undertake the work itself at the expense of Calgary Power or take ownership of the towers and wires.  Under the agreement, Calgary Power was to pay to CPR an annual rental of $40.00.

Flash forward to more recent times.  The power transmission facilities on the property have been expanded.  The original agreement and subsequent amending agreements have been assigned by Calgary Power to a company called Enmax.  CPR has sold its lands to a development company called Remington.  Remington wanted to develop the former CPR lands and advised Enmax of the plans.  Enmax told Remington that a 20 metre utility right-of-way would be required and that Remington would need to bear the cost of any changes, including the conversion of the overhead power lines to underground lines. 

Remington's response to Enmax was to provide a notice of termination under the existing agreements.  Enmax was directed to vacate the Remington lands (the former CPR lands) on or before June 30, 2005.   Despite that direction, Enmax has refused to remove the transmission towers and lines from the lands.  Remington says that its development will be severely compromised with the continued presence of high voltage transmission lines.  It believes such a continued presence will acutely influence potential purchasers or tenants in its intended mixed use residential/commercial development.

Remington applied to the Court of Queen's Bench for orders requiring Enmax to vacate the lands.  Enmax argued in response that the agreements between CPR and Calgary Power were personal contracts between a railway company and a utility company and could not be assigned to Remington without the consent of Enmax.  There were also questions raised about whether the agreements actually created true rights-of-way or whether the rights granted were simply a personal licence which could not be assigned or transferred.

The Court found that the agreements did create utility rights-of-way, which through legislation were not subject to all of the Common Law rules surrounding valid easements and rights-of-way.  Further, the Court ruled that if it was wrong about the nature of the agreements, and they did create mere licences, CPR still had the right to assign the agreements to Remington without the consent of Calgary Power or Enmax. 

For those reasons, the Court found that Remington was entitled under the agreements to terminate and require Enmax to remove its facilities.  Of course, that dealt only with the private relationship between the parties.  The transmission facilities are also subject to public regulation by the Alberta Utilities Commission (AUC).  The Court directed Enmax to make an application to the AUC to remove the transmission lines, and ruled that the lines could not be removed or relocated in the absence of an order from the AUC.

This decision is reminiscent of an earlier Alberta Court decision involving a landowner named Randolph Hill.  He purchased land from a railway company and was assigned an agreement that gave him the right to require a pipeline company to remove its pipeline.  The Court agreed that he had that right, but then the company simply went to the National Energy Board and obtained a Right of Entry Order.  The ROE Order now permits the pipeline to remain in place and, further, allows the company to abandon the line in place. 

Hill will no doubt be seeking compensation for this expropriation of his rights under the agreement.  It will be interesting to see how much those rights are worth.  What would someone pay for an agreement that would allow them to free their lands from the encumbrance of a pipeline corridor?  That has to be worth a lot on the open market.  Remington may very well find itself in a similar position.  The AUC may decline to order the removal of the transmission lines, in which case Remington's rights under the CPR agreements will have effectively been expropriated.

Read the decision at: Remington Development Corporation v. Enmax Power Corporation.

Ontario Farm Labour and Safety Issues

The Ontario Federation of Agriculture has posted a Checklist for farm operators to provide an understanding of the Ontario legislation dealing with employment issues in farm operations.  The OFA says that the Checklist is not intended to replace or supplement the legislation, but can be used as a resource to explain your responsibilities as a farm employer. 

According to the OFA, three Acts apply: the Workplace Safety and Insurance Act, the Occupational Health and Safety Act, and the Employment Standards Act.  To these might be added the Agricultural Employees Protection Act, 2002, which includes the right to form or join an employees' association. 

The OFA information on farm labour and safety issues is available at: Farm Labour and Safety Issues.

The Checklist can be accessed at: Compliance Checklist.

Farm group calls for turbine halt: London Free Press

The Ontario Federation of Agriculture has withdrawn its support for wind turbines in Ontario. The OFA says that the issue has pitted neighbour against neighbour, and it has asked the provincial government to suspend further development. Read the article at: Farm group calls for turbine halt London News London Free Press.

Keystone XL Pipeline Application rejected by U.S. Government

Read the CBC.ca News story here: Keystone XL pipeline proposal rejected — for now.

MOE seeking comment on new "Guide to Applying for an Environmental Compliance Approval"

The Ontario Ministry of the Environment is seeking public comments on a draft "Guide to Applying for an Environmental Compliance Approval", designed to assist an applicant in completing the application form for the approval.  The Environmental Compliance Approval (ECA) replaces what was formerly known as a "Certificate of Approval" (CoA).  Applicants for approval can now apply for an ECA for multiple activities and projects in multiple media under a single ECA application. 

The draft Guide can be reviewed at: Draft ECA Application Guide.  Public comments on the draft guide are being accepted until April 10, 2012.  Comments are to be directed to:

Nihar Bhatt
Senior Engineer
Ministry of the Environment
Environmental Programs Division
Modernization of Approvals Project
135 St. Clair Avenue West
Floor 4
Toronto Ontario
M4V 1P5
Phone: (416) 325-7560
Fax: (416) 325-7962

Comments can also be submitted on-line using the form at the following link: Comments.

MOE looks at extending Environmental Activity and Sector Registry to additional industries

The Ontario Ministry of the Environment has recently implemented an Environmental Activity and Sector Registry (EASR) that allows businesses to register certain activities with the Ministry. The EASR is a public, web-based system where people engaging in selected activities will be required to register the activity and to meet eligibility and operating requirements set out in regulation rather than seeking an approval through the normal application submission and review process (formerly known as Certificates of Approval - now known as Environmental Compliance Approvals). These requirements could be comprised of, but not limited to, design requirements, pollution control measures and best management practices. The Ministry will enforce compliance with the EASR regulation according to its compliance strategy.

To date, activities relating to the following have been added to the registry: automotive refinishing (autobody shop spray booths), heating systems and stand-by power systems. Registry requirements for these activities/sectors are described in O. Reg. 245/11 (under the Environmental Protection Act).   The following additional industries are being reviewed for possible inclusion in the EASR program:

• Waste collection and transportation;
• Ready-mix concrete manufacturing;
• Lithographic, Screen and Digital Printing;
• Concrete Product Manufacturing.

The proposal to expand the EASR program has been posted on the Environmental Bill of Rights Registry for public comment starting January 11, 2012.  Comments are being received until February 25, 2012 and must be submitted to:

Gregory Zimmer
Senior Program Advisor
Ministry of the Environment
Environmental Programs Division
Modernization of Approvals Project
135 St. Clair Avenue West
Floor 4
Toronto Ontario
M4V 1P5
Phone: (416) 325-7893

It is also possible to submit comments on-line at: Comments.

Trans Mountain Pipeline LP ordered to pay $250,000 after oil spill

The Trans Mountain Pipeline is 1,050 kilometres in length and has a diameter of 610 millimetres, which is about 24 inches, for most of that length. The Trans Mountain Pipeline can transport approximately 300,000 barrels of oil per day and can transport different products in batches rather than being limited to transporting one product type at a time.  It has been in operation since 1953 and crosses the provincial boundary between Alberta and British Columbia.  Since it is an interprovincial pipeline, it is regulated pursuant to the federal National Energy Board Act and the National Energy Board Pipeline Crossing Regulations and is subject to the oversight of the NEB.

Trans Mountain has recently been ordered to pay $250,000 after the pipeline was damaged during excavation work, resulting in an oil spill.  A civil engineering company working for the City of Burnaby applied to Trans Mountain under Section 112 of the NEB Act for permission to excavate near the pipeline to complete works for a City storm sewer project.  A crossing agreement was signed and then the engineering firm retained a construction company to carry out the work.  During construction, no preconstruction meeting was scheduled or held between the construction company and Kinder Morgan, the pipeline company acting as agent for Trans Mountain. 

The Foreman for the construction company reviewed a services map in conjunction with the project plans and determined that the planned construction work would conflict with the location of the pipeline.  Kinder Morgan was advised of the potential conflict and requested to attend to locate and mark the pipeline in the area of the discrepancy.  An inspector attended and located the pipeline, the location being consistent with the newly provided service map and inconsistent with the project plans prepared by the engineering firm and approved by Kinder Morgan. 

Eventually, construction was being carried out on the site without the presence of an inspector from the pipeline company.  No complete location of the pipeline was requested and no preconstruction meeting was held.  Later, an excavator operator was widening the trench for the installation of an additional manhole when he pierced the pipeline.  Pursuant to this training, the excavator operator attempted to cover the puncture in the pipe with the bucket of his excavator in order to contain the escape of oil.  This led to a second puncture. 

In handing down its sentence, the Court noted:

There was no benefit which flowed to any of the defendants from the pollution here. The spill was, on the contrary, an accident which could and should have been avoided. Culpability for each of the defendants is at the low end of the spectrum. A combination of small errors by each party created the event. There were misunderstandings, there were erroneous assumptions, but there was not even what might be referred to as real negligence and there was certainly no deliberate wrongdoing. Care was taken, but not enough care.

The Court imposed fines of $1,000 on each of the three companies involved - the engineering firm, the construction company and Trans Mountain.  In addition, each company was ordered to pay $149,000 to the Habitat Conservation Trust Foundation.  Trans Mountain was ordered to pay another $100,000 to the B.C. Common Ground Alliance for the purpose of "identifying parties engaged in construction or excavation, organizing and planning DigSafe BC! workshops, and raising awareness about damage prevention for those undertaking excavations near underground utilities."

Read the sentencing decision at: R. v. B. Cusano Contracting Inc. et al.

The Expert's Report that Damns the Northern Gateway Pipeline

Andrew Nikiforuk has reviewed a report prepared for the Northern Gateway Pipeline hearing in a recent article for The Tyee.  The report was prepared by veteran energy analyst David Hughes on behalf of an organization intervening in the approval hearing for the project.  Hughes will be testifying at the hearing.  He suggests that tripling oil sands production rates above 2010 levels will "compromised the long-term energy security interests of Canadians, as well as their environmental interests".

Read Nikiforuk's article at: The Tyee.

Read the Hughes report at: The Northern Gateway Pipeline.

Ontario Court rules it can decide gas storage lease case

Justice Bryant of the Ontario Superior Court of Justice has ruled in favour a landowner in a gas storage related case, finding that the Court is in a position to determine issues related to leases.  Recently, Ontario courts have ruled on the exclusive jurisdiction of the Ontario Energy Board over gas storage in Ontario.  However, that exclusive jurisdiction only arises where there has been an order designating a gas storage area pursuant to the Ontario Energy Board Act. 

In this particular case, Justice Bryant found that the Court retained its inherent jurisdiction to rule on the leases because no designation order had yet been made by the Ontario Energy Board.  This decision is another in a growing line of decisions related to this matter.  Originally, Tribute Resources had taken over oil and gas and gas storage leases on the lands of McKinley Farms Limited in Huron County.  However, a previous ruling of the court, upheld on appeal, found that the gas storage lease terminated.  The Court of Appeal did rule that the oil and gas lease remained effective.  McKinley then signed a new gas storage agreement and oil and gas lease with a numbered company related to McKinley. 

In 2011, the numbered company applied to the Superior Court for declarations that its gas storage lease permits the storage of gas beneath the McKinley lands and that Tribute has no right under its gas and oil lease (which was not declared void by the Court of Appeal) to store gas.  Tribute then filed an application asking the Court to rule that it had no jurisdiction to decide the application by the numbered company and that the relief sought by the numbered company was within the exclusive jurisdiction of the Ontario Energy Board.  This application, as reported above, was dismissed.

Read the decision at: Tribute Resources v. 2195002 Ont. Inc.

Former Pipeline Inspector attacks TransCanada construction practices

Mike Klink, formerly a pipeline inspector for Bechtel, recently wrote an editorial piece expressing concern over the workmanship he witnessed during the construction of TransCanada's Keystone Pipeline and the risk that it will be repeated in the construction of the Keystone XL pipeline.  Bechtel was an inspection company working on behalf of TransCanada.  Klink says that he witnessed the use of substandard steel that cracked during welding, faulty safety tests and the installation of insufficient foundations.  He warns, "If it were a car, the first Keystone would be a lemon.  And it would be far worse to double down on a proven loser with Keystone XL."  Klink points to fourteen spills as having already occurred on the relatively new Keystone pipeline.

Read the opinion piece at: journalstar.com

Quebec Commission orders pipeline depth at 1.6 m or more than 5 feet

In its decision granting authorization to Gaz Metro for the expansion of its gas distribution pipeline facilities, the Commission de Protection du Territoire Agricole du Quebec (Agricultural Land Protection Commission) is requiring that the pipeline be installed at a depth of 1.6 metres (or more than 5 feet) through cultivated land.  The Commission noted that it requires a minimum depth of cover of 1.2 metres on private property, but in this case 1.6 metres was warranted.  The Commission ruled that Gaz Metro would have to be notified of any agricultural activity conducted to a depth of more than 60 centimetres. 

Note that Section 112 of the NEB Act requires a landowner to obtain permission from the pipeline company for any activities at a depth of more than 30 centimetres (or 1 foot).  The difference is depth of cover.  Under NEB regulation, pipelines need only be installed at a minimum depth of 2 feet as set out in the applicable CSA standard. 

If pipelines had to be installed at 1.6 metres' depth, would a 30 centimetre restriction be necessary?

Read the Commission decision (in French) at: Société en commandite Gaz Métro (Re).

Sarg Oils Limited well abandonment saga continues

Professor Nigel Bankes of the University of Calgary has posted a comment on a recent review decision by the Energy Resources Conservation Board (ERCB).  The decision relates to a failure by Sarg Oils Limited to pay the costs of abandoning oil and gas wells in Alberta.  Sarg had failed to abandon the facilities itself, so the ERCB conducted the abandonment and then sought to recover its costs from Sarg.  Bankes points out the possibility that the Orphan Well Fund may end up having to cover costs of further abandonments.  He notes that, although the oil and gas industry is supposed to cover the cost of the Fund, the Alberta government injected $30,000,000 into the Orphan Fund as part of a package of incentives for the energy industry in 2009.

Read the comment at: Nigel Bankes' comment on Sarg Oils Limited.

Appeal Tribunal awards costs against landowner in drainage case

The Agriculture, Food and Rural Affairs Appeal Tribunal has ordered an appellant landowner, Alan Webster of Thornhill, Ontario to pay costs related to a motion brought by the City of Kawartha Lakes.  Although the motion to dismiss by the City was unsuccessful, the Tribunal found that Webster had failed to abide by procedural directions made by the Tribunal, which led to the need for the motion.

Those procedural directions were given in the context of an agricultural drainage project that has been under appeal since 2006.  The project involves the drainage of about 21,000 acres of land at approximately 400 landowners.  There have been a total of 72 appeals to either the Drainage Referee or to the Appeal Tribunal.  The only remaining outstanding proceeding is Webster's appeal to the Tribunal under section 48 of the Drainage Act.  The Tribunal had exercised its discretion to intervene with procedural directions to case manage the remaining appeal through to an expeditious resolution.  The Tribunal stated that expeditious resolution would benefit all of the 21,000 acres and 400 landowners potentially affected by the drainage project. 

More than five years had passed since delivery of the original Engineer's Report.  Webster had had more than five years to crystallize and refine his section 48 Appeal issues, marshal his evidence and defined his appeal strategy.  Webster was self represented in the proceeding.  The Tribunal found that Webster's failure to abide by simple and clear procedural directions was unreasonable.  The Tribunal found that Webster was an educated, sophisticated and articulate litigant.  The Tribunal was unable to suspend disbelief sufficient to accept the explanation Webster offered about why he failed to comply with the procedural order. 

The City sought recovery of costs for the dismissal motion.  The Tribunal ordered Webster to pay the costs of the City of Kawartha Lakein the amount of $7080.70.  The Tribunal also ordered that the cost award be credited to the drain account and added to the tax roll, therefore having priority lien status under section 61 of the Drainage Act and section 1 of the Municipal Act. 

Read the decision at: Short and No. 2A Drain, 2006 - Costs of Motion Decision.

Classic tale of winding up in trouble for good deed

The Canada Agricultural Review Tribunal has upheld a notice of violation issued by CFIA in "a classic tale of one person doing a good deed in helping a neighbour and then winding up in trouble for his good deed."  Joseph Nalli transported, for no fee, seven sheep to a stockyard to help his neighbour, who was suffering from health concerns.  The neighbour had not tagged the sheep prior to their departure and, once at the stockyard, Nalli immediately told stockyard staff that the sheep were untagged. 

The stockyard staff would not accept the sheep until they were tagged.  After requesting and receiving instruction from a CFIA inspector on how to apply the tags, Nalli went into his trailer and tagged seven sheep with approved tags.  The CFIA inspector recorded the tag numbers and later, when tracing to whom the approved tags had been issued, found they were registered to Nalli and not to his neighbour who owned the sheep.

In its decision on the review of the notice of violation, the Tribunal accepted that Nalli was acting in good faith without fee to help a neighbour and that he was undoubtedly apologetic for using his own tags on his neighbours sheep.  The Tribunal also noted that, while it is regrettable that Nalli’s efforts to help a neighbour resulted in his committing a regulatory violation, the Tribunal is only permitted, under its enabling statutes, to assess the validity of the notice of violations issued by the agencies it oversees.

Read the decision at: Nalli v. Canada (CFIA).