Sask. Wind Farm can seek damages over failed injunction against development

The Saskatchewan Court of Queen's Bench has ruled that the Red Lily Wind Farm may pursue a claim for damages against David McKinnon based on his undertaking as to damages given when he obtained a injunction against the wind project.  McKinnon commenced a putative class action, claiming that the wind turbine farm caused adverse effects on human health.  He sought and obtained an ex parte injunction (i.e. without Red Lily being present), one of the conditions of which being the undertaking to pay damages if it turned out the injuction was unnecssary.  When the injunction was lifted, Red Lily decided to pursue McKinnon for damages.

The parties asked the Court to determine whether Red Lily is entitled to enforce the undertaking, which read:

The Plaintiff, David McKinnon, hereby undertakes to abide by any Order as to damages which this Court may make by reason of the granting of an interlocutory injunction at the request of the Plaintiff if it shall appear that the Defendants have sustained damages for which the Plaintiff ought to pay.

The Court of Queen's Bench found that the case law "unequivocally establishes a strong presumption that an undertaking will be enforced, a presumption which can only be rebutted by compelling facts amounting to special circumstances."  The Court noted that McKinnon filed no sworn material and failed to establish the existence of any special circumstances.  Therefore, Red Lily is entitled to enforce the undertaking.  The Court then set out the procedural steps to be followed to determine the amount of damages, if any, to be awarded to Red Lily.

Read the decision at: McKinnon v Red Lily Wind Energy Corp.

Alta. Court rules lawyer negligent in drafting will meant to bequeath farmland

The Alberta Court of Queen's Bench has ruled that a solicitor was negligent in drafting a will for a client after the intended gift to a beneficiary failed.  The deceased owned land, including four quarter sections he wished to pass onto his brother through his will.  In drafting the deceased's will, the lawyer did include the bequest.  However, it was not actually the deceased who owned the four quarter sections.  Instead, the property was held by the deceased's company.  The intended gift failed and the brother sued the lawyer for negligence.

The Court found first that the lawyer owed the brother, as an intended beneficiary, a duty of care.  Next, the Court found that the lawyer had fallen below the standard of care required in failing to address the fact that the land was owned by the company: "A reasonably competent solicitor in those circumstances would, at a minimum, have asked who owned land to be gifted in the will or done a search to ascertain in ownership."

The Court awarded damages to the brother in an amount equal to the value of the land as of the date of the death of the deceased testator.  Added to that amount was some $11,200 which would have been earned by the brother as surface lease income had he received the properties.

Read the decision at: Meier v Rose.

Appeal Tribunal sets aside CFIA Health of Animals Violation

The Canada Agricultural Review Tribunal has overturned a decision of the Minister of Agriculture and Agri-Food that imposed a $2,600 penalty on Chilliwack Cattle Sales Ltd. for "loading, transporting or causing to be loaded or transported an animal that could not be transported without suffering contrary to paragraph 138(2)(a) of the Health of Animals Regulations".  The original notice of violation was issued by the CFIA, and the matter was then referred to the Minister for review.  The Minister confirmed the original violation decision.

The Tribunal in this case was reviewing the decision of the Minister to determine whether there had been an error in the exercise of the Minister's discretion or an error in law.  These errors might include, according to the Tribunal:

1. The powers were exercised in bad faith.

2. The powers were delegated in an inappropriate manner.

3. The powers were exercised without regard for the principles of natural justice or fairness.

4. The powers were exercised for inappropriate purposes.

5. No element of the evidence supports the Minister's decision.

6. The decision was based on irrelevant considerations.

7. An error was committed in the interpretation of the connected or enabling legislation, the principles of common law in general or in the application of legal principles to the facts.

8. A decision is so unreasonable that no reasonable person in the Minister's place would have made such a decision.

In its review, the Tribunal noted that nowhere in the Minister's decision were there found the words "undue suffering" or "unduly suffered", which are essential elements for the finding of liability under paragraph 138(2)(a) of the Regulations.  Therefore, the Tribunal ruled, the Minister had made an error of law which requires that the decision be set aside.  The Tribunal went on to identify other errors in the decision, including setting the penalty at $2,600 when there was no basis for doing so.

Read the decision at: Chilliwack Cattle Sales v. Canada (Minister of Agriculture and Agri-Food).

Canadian Wheat Board loses appeal in negligent misrepresentation case dating from 1982

In late August 1982, widespread frost damage occurred to Western Canada’s premier Canada Western Red Spring wheat (CWRS), resulting in significant degrading of the crop. The Canadian Wheat Board (the CWB), along with the Canadian Grain Commission (the CGC), elected to market the damaged wheat under the specification “Wheat – Ex. Special Bin” (WSB) on the basis, despite its visual degradation, that it “possesses what is known as ‘fair’ milling quality and would be quite suitable for milling purposes.”

Pagnan S.p.A., an Italian corporation, purchased a large quantity of WSB from ConAgra Limited (Agro), an accredited CWB exporter. When the first cargo of wheat was delivered to Italy, it was found to be inferior and not of fair milling quality. Pagnan and Albionex together (Pagnan having sold, then repurchased the cargo from the other plaintiff, Albionex (Overseas) Limited) commenced an action in 1985, claiming against Agro for breach of contract and against the CWB based on the representations made with respect to the characteristics and quality of WSB. Agro crossclaimed against the CWB, asserting that it too had relied upon the CWB’s representations.

The trial judge in the Manitoba Court of Queen's Bench delivered lengthy reasons for decision in July 2009, holding Agro liable to the plaintiffs for breach of contract and the CWB liable for negligent misrepresentation. Agro’s crossclaim against the CWB was allowed. Judgment was eventually entered in favour of the plaintiffs and against the defendants jointly and severally in the amount of $4,642,392.40, inclusive of interest to the date of judgment, plus costs. Judgment was also entered (in favour of Agro) in a similar amount against the CWB.

Agro and the CWB then appealed their liability and damages, and the CWB appealed Agro’s crossclaim judgment. The plaintiffs also cross appealed, arguing that damages should be increased.  None of these appeals or cross-appeals succeeded at the Court of Appeal.

Read the decision at: Albionex (Overseas) Ltd. et al. v. Conagra Ltd. et al.

NEB issues Hearing Order for Pipeline Abandonment Costs Estimates

The National Energy Board (NEB) has issued a Hearing Order in the LMCI Stream 3 proceeding dealing with pipeline abandonment cost estimates.  An oral hearing will be convened to consider the reasonableness of the costs estimates presented by each Group 1 company (including Enbridge, TransCanada, etc.)  The following timetable of events is included in the NEB's Order:

Although landowners and other interested parties will be able to participate as intervenors, no participant funding is being made available. 

Read the Hearing Order at: MH-001-2012.

AMI Conference: Global Perspectives for Growing Farm Profits

AMI Conference: Global Perspectives for Growing Farm Profits

Take A New Approach: Global Perspectives for Growing Farm Profits

Join AMI this February 15th & 16th at the Agricultural Management Institute conference to discuss Ontario's business plan for being involved in rising international business opportunities in agriculture.

When: February 15th & 16th, 2012
Location: Guelph Delta Hotel, 50 Stone Road, Guelph ON

For the Agenda and Event Registration click here.
For Speaker Biographies click here.

Wild Oats Grainworld 2012 - Winnipeg, MB - Feb. 26-28

Liz Robertson at CAFA passed this on to me.  Read the Program Brochure at: Preliminary Program.

Who owns abandoned pipelines?

A few years back, David Howell, Senior Right-of-Way Agent, International Right-of-Way Association, Houston, TX, wrote a frightening article about landowners and the ownership of abandoned pipelines.  Howell had received a call from a Texas landowner who was facing a $51,000 cost to remove 300 metres of abandoned oil pipeline from his property to allow for development.  The company has walked away from the line, but retained ownership and refused to allow Howell to hire his own contractor to remove the pipe at a cost of no more than $1,500.  Of course, the $1,500 quote was based on an assumption that the company had properly purged the line of contaminants, etc. 

Many landowners are worried about the day when they will become responsible for abandoned pipelines on their properties.  However, what happens when the pipeline company walks away (i.e. ceases operations and escapes any regulatory control), but retains ownership?

Read Howell's article at: Who owns abandoned pipelines?

Minister Oliver puts Joint Review Panel members in awkward position

Read the article by Professor Nigel Bankes that discusses the January 9, 2012 "open letter" from the Hon. Joe Oliver, Minister of Natural Resources (click here).  This is the letter in which Mr. Oliver referred to "radicals" who will "hijack our regulatory system".  Professor Bankes wonders about the effect of the letter on the ongoing regulatory process:

For example, put yourself in the position of a JRP panel member. What would you think if the Minister responsible for the Board announced that: (1) the current system is broken, and (2) the NGP is clearly and obviously in the national interest (aka public convenience and necessity) the day before you had to open the hearings in one of the most affected communities? And more importantly, imagine the challenge facing that panel in convincing the community that the fix was not already in and that the job of the panel was to conduct a careful, independent and impartial review of the project.