NB Court tells landowners to allow access to power line right-of-way

NB Power and Bell Aliant brought an application before the New Brunswick Court of Queen's Bench asking the Court to interpret a Right of Way Agreement after a family in Fredricton denied access to their property for utility work.  Beginning in May 2011, various employees of the two utility companies attempted to access a right of way on the property.  The utilities said they have a right to enter the property, and to remove trees and brush within a distance of five feet of their lines.  They said they have these rights under the Agreement and under s.84 of the Electricity Act.

In response to the application, the Fredricton family suggested that a trial was necessary to determine the issues, saying that there were "materials issues in dispute".  However, the Court disagreed.  It found that the language of the Right of Way Agreement is unambiguous and grants the rights of access being denied by the property owner and her son.  Also, the Court found that the rights in the Electricity Act are even broader.

The Court concluded that it could decide the case as an application and ruled in favour of the utilities.  It granted an injunction restraining the respondents from preventing access to their property.

Read the decision at: NB Power et al. v. Kinsella.

Ontario Government releases results of FIT Program Review

Here are some of the highlights from the review of the Feed-in-Tariff (FIT) Program published by the Ontario Government today:

Beginning this year, FIT prices should be conducted annually to reflect current costs - new prices would be set and published each November and will take effect on January 1st the following year;

The MOE's self-screening registry system, the Environmental Activity and Sector Registry (EASR), should be expanded to include small-scale solar (less than 500 kW) and bio-energy projects;

The commercial operation milestone for rooftop solar PV should be shortened from three years to 18 months in order to encourage timely project completion;

Set aside a minimum of 10 percent of remaining FIT contract capacity for local community and Aboriginal projects with greater than 50 per cent equity participation;

Enhance protection of agricultural lands by prohibiting solar ground-mount projects (over 10 kW) on prime agricultural land that contain class 1, 2 and 3 soils.  Expand protection to include organic and mixed soils and remove zoning exemptions;

Prohibit solar ground-mount projects (of any size) in residential areas and lands bordering residential areas.  Permit projects in commercial or industrial areas only when producing renewable energy is a secondary use;

For large FIT projects, require contract launch meetings with municipalities, proponents, project developers, government representatives, utilities and agencies to facilitate early discussion, share information and define expectations;

FIT program prices for wind and solar technologies should be reduced by more than 20 per cent for solar, depending on size, and approximately 15 per cent for wind.  Maintain current prices for water, biogas, biomass and landfill gas;

Rather than setting a price at the time of project application for small and large FIT projects, price should be set when the contract is offered;

Implement a limit of one microFIT contract per individual/farmer;

Following commercial operation, a portion of the FIT price should escalate with inflation over time (as measured by the Consumer Price Index (CPI)) to reflect ongoing operations and maintenance costs.

Here is the new proposed FIT price grid:

Read the full review at: FIT Two Year Review.

Strange case: Province sells land by accident and needs it back

A decision on costs from the B.C. Supreme Court reveals a strange situation in which the B.C. Finance Transportation Financing Authority sold land to a private landowner and then realized afterward that it needed the land.  The Authority sold a portion of a closed road to Robert and Sherry Long, who owned the property adjacent to the road.  There were hydro poles with hydro and telephone lines on the closed road lands.

Due to an oversight by the Authority, a right of way was not reserved on title to the closed road for the poles and the lines.  The Longs acquired clear title to the land.  Once it had discovered the mistake, the Authority asked the Court to rescind the sale agreement so that it could preserve a right of way for the poles and lines.  When the intention of the Authority became clear, the Longs decided that they were no longer interested in keeping the property and wished to be compensated for their costs.  The Court made the recission order and awarded costs to the Longs.

Read the decision at: BC Finance Transportation Financing Authority v. Long.

Proposed Drainage Act and Conservation Authorities Act Protocol

From the Environmental Bill of Rights Registry:

In recent years, challenges have arisen in implementing the requirements of the Drainage Act and those of the Conservation Authorities Act.  Under the Drainage Act, municipalities are required to maintain and repair municipal drains, while under the Conservation Authorities Act, conservation authorities are required to regulate interference with or alterations to watercourses, including municipal drains where applicable.

The proposed protocol (the Drainage Act and Conservation Authorities Act Protocol) was developed by an inter-agency team co-chaired by the Ministry of Natural Resources and the Ministry of Agriculture, Food and Rural Affairs, with representation from the drainage sector, agricultural sector, municipalities and conservation authorities. It is intended to improve communications, promote best practices, reduce administrative burden and streamline the permitting process under the Conservation Authorities Act related to the maintenance and repair of municipal drains. The proposed protocol does not apply to new drain construction or improvements to existing drains.

The proposed protocol contains:

a) best practices to facilitate good working relationships between conservation authorities, drainage superintendents and municipalities;
b) sets of standardized requirements for undertaking drain maintenance and repair in compliance with regulations under the Conservation Authorities Act (Standard Compliance Requirements).

Under the proposed protocol, municipalities and conservation authorities may use Standard Compliance Requirements to request or issue permission for drain maintenance or repair in place of the regular conservation authority permit application and issuance process. Conservation authorities could still require a regular permit for some activities if they determine that the activity will not be able to meet Standard Compliance Requirements, or if the standard requirements are not deemed sufficient for that activity.

The proposed protocol contains provisions for the establishment of a Drainage Issues Resolution Team to mediate discussions and recommend solutions in the event that agreement between the conservation authority and municipality cannot be reached. The proposed protocol also uses a combined notification/application form for the federal Species at Risk Act and Fisheries Act as well as the Ontario Endangered Species Act and Conservation Authorities Act into a single notification form which is sent to multiple agencies.

The proposal has been posted for a 45 day public review and comment period starting March 09, 2012.  Comments can be sent to:

Rheanna Leckie
PROGRAM ANALYST
Ministry of Natural Resources
Regional Operations Division
Integration Branch
Land and Water Services Section
300 Water Street
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5405
Fax: (705) 755-1276

The online comments form is at: Comments.

Appeal Tribunal denies request to waive chicken over-production levy

The Ontario Agriculture, Food and Rural Affairs Appeal Tribunal has denied an appeal by La Primavera Farms of an over quota levy imposed by the Chicken Farmers of Ontario (CFO).  When La Primavera produced 78,513Kg of chicken in quota period A-99 (July 16 - September 11, 2010), it exceeded its quota allotment by 24,671Kg.  La Primavera was assessed an Excess Production Levy ("EPL") of $21,978.99 by CFO, pursuant to CFO Regulation BQ-2010.  La Primavera objected, and in a decision of CFO dated December 16th, 2010, CFO affirmed the EPL.  CFO was requested by La Primavera to reconsider its decision. CFO denied La Primavera's request for a waiver of the EPL and affirmed its previous decision. La Primavera then appealed to the Appeal Tribunal from the decision rendered by CFO and seek a waiver, or a reduction of the EPL.            

The owner of La Primavera has been involved in the production of chicken under the current supply management system for the last 30 to 35 years.  In 2010, the owner decided to entrust to his daughter the responsibility to plan and order chicks from the hatchery to stock La Primavera's barn for the quota period at issue on the appeal.  When a Notice of Maximum Crop Quota Allotment arrived from CFO, the owner did not explain the significance of the notice to his daughter.  She attempted to calculate the number of chicks needed to fill the quota allotment. 

A second document was sent by CFO later in the same month in an envelope labeled in bold Important Crop Quota Enclosed.  This was the official communication from CFO determining the net allotment of quota for La Primavera for the period.  The owner's daughter did not appreciate the significance of this document and did not look at the document in deciding upon the number of chicks to be ordered.  The owner was not involved in reviewing the document with his daughter.  Production by La Primavera ended up based on an assumed quota of 65,240 kg when it should have been only 53,842 kg.  An excess production levy of almost $22,000 was imposed.

La Primavera asked for the levy to be waived on the basis that the over production resulted from a "clerical error".  However, in the Tribunal's view, the responsibility rested on the President of La Primavera to properly guide his daughter/employee through the process to calculate La Primavera's needs to fulfill its quota allotment for the quota period in question. In failing to properly guide her      to take over the responsibility, La Primavera assumed the risk which resulted from her lack of knowledge and familiarity with this process.  The appeal was denied.

Read the decision at: La Primavera Farms vs. Chicken Farmers of Ontario (CFO).

U.S. District Judge Rejects Organic Farmers' Suit Against Monsanto

Read the blog post by Lisa Pruitt, Professor of Law at the University of California, Davis, on this recent decision from the US.  Organic growers had sued Monsanto pre-emptively over the risk associated with the presence of GM elements in their crops that Monsanto would take action to enforce its patents.  The growers sought a ruling that Monsanto's patents were invalid because they are "injurious".

Read the article at: Lisa R. Pruitt.

Alberta Court of Appeal increases setback of sour gas pipeline from Native Reserve

Alberta's Energy Resources Conservation Board (ERCB) approved an application by Suncor to construct two pipelines, one of which would carry sour gas.  The lines were proposed to cross in the vicinity of the Stoney Nakoda/Eden Valley Reserve, which consists of 100 separate homes and approximately 650 residents.  The Stoney Indian Band appealed the ERCB decision to the Alberta Court of Appeal on the basis that the ERCB had erred in failing to characterize the Reserve as an "urban centre" (in which case the setback requirements would be more stringent).

Setback requirements for level three sour gas pipelines in Alberta are listed in Directive 056: Energy Development Applications and Schedules as follows:

0.1 km to an individual permanent dwelling up to eight dwellings per quarter section;

0.5 km to an unrestricted country development;

1.5 km to an urban centre or public facility.

Urban centre is defined as: “a city, town, new town, village, summer village, hamlet with not fewer than 50 separate buildings, each of which must be an occupied dwelling, or similar development the [Board] may designate as an urban centre”.

Before the hearing, in response to a request from Suncor, the ERCB staff found that the Reserve was not an urban centre. This was challenged at the hearing. The ERCB did not change the designation. It reaffirmed that the Reserve did not qualify as an urban centre because “the area of the [Reserve] nearest the trunk line has an estimated average residence density of five residences per quarter section, less than the residence density of eight residences per square section necessary to qualify for an urban centre designation.”

The Court found that the fact that the Board embarked on a “density analysis” was not in and of itself problematic as it may have served as a relevant factor to the Board’s analysis, given the Board’s statutory discretion.  However, it could not be the only relevant factor. Simply looking at the “density criteria” is incomplete and insufficient. The definition of urban centre in Directive 056 requires two considerations. First, is it a “city, town, new town, village, summer village, hamlet with not fewer than 50 separate buildings, each of which must be an occupied dwelling”, or, second, a “similar development”? In analyzing whether the Reserve was a “similar development”, the Board had to have recourse to the concepts of “city, town, new town, village, summer village, and hamlet”, which are not defined in Directive 056, but in the Municipal Government Act, RSA 2000, c. M-26.

A hamlet is defined in section 59 of the MGA as a community which “(a) consists of 5 or more buildings used as dwellings, a majority of which are on parcels of land smaller than 1850 square meters, (b) has a generally accepted boundary and name, and (c) contains parcels of land that are used for non-residential purposes.” The Reserve has more than 100 homes and houses schools, a church, band offices and a food bank.

The Court allowed the appeal and remitted the matter back to the ERCB for its consideration and redetermination in accordance with the Court of Appeal ruling.

Read the decision at: Big Loop Cattle Co. Ltd. v. Alberta (Energy Resources Conservation Board).

OMAFRA proposing mandatory livestock disease reporting

The Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) is developing two regulations under the Animal Health Act, 2009 (the Act):

1. Reporting – A proposed Minister’s regulation would address the mandatory reporting of hazards (including animal diseases) by laboratories, as well as certain findings made by veterinarians; and
2. Compensation – A proposed Lieutenant Governor in Council regulation would provide a legal framework for providing financial compensation under the Act.

OMAFRA is asking for feedback on its proposals.  The proposed reporting regulation would designate a number of hazards, such as animal diseases, as immediately notifiable hazards and periodically notifiable hazards, which laboratories would have to report to OMAFRA. The list of specific diseases appears in detail in a discussion paper posted on the OMAFRA website. To promote greater coordination with the Canadian Food Inspection Agency (CFIA), laboratories would have to provide notice to OMAFRA of any animal diseases in terrestrial animals (including amphibians and birds) that are also reportable or immediately notifiable under federal regulations made under the Health of Animals Act (Canada).  However, the CFIA would lead in responding to the most significant of these reports, including where foreign animal diseases are indicated. A number of Ontario-specific hazards have also been proposed for reporting to OMAFRA by laboratories that are not normally priorities for the CFIA, but are still of local concern in the province.

At this time, the proposed reporting regulation would not require individual livestock and poultry producers to report any knowledge or suspicion of a hazard, such as an animal disease, to OMAFRA. The proposed regulation would not affect any existing reporting obligations they may have to the CFIA.

In addition to designating hazards under the Act, the proposed regulation would also set out specific findings that veterinarians would be required to report that are encountered while the veterinarian is engaged in the practice of veterinary medicine. Reporting these findings is designed to capture atypical animal health situations, such as high mortality in a herd or flock, which could indicate the presence of a significant hazard (such as a toxic substance in animal feed or an emerging strain of a disease) at the earliest possible opportunity.

The proposed regulation would also set out reporting requirements, including the information that must be provided by operators of laboratories and veterinarians, as well as the time in which such reports must be made.

In some cases, the Chief Veterinarian for Ontario (CVO) may need to order destruction of an animal or animal-related thing, such as feed, in order to reduce the possible spread of a hazard. In these unusual cases, the Act authorizes the Minister to provide financial compensation for certain losses stemming from the order at his discretion. The proposed compensation regulation would provide clarity, transparency and assurance to stakeholders that a legal framework exists to address, at the Minister’s discretion some or all the direct losses incurred by persons who have complied with orders issued under the Act.

OMAFRA is seeking input on these regulatory proposals.  The proposal has been posted for a 45 day public review and comment period starting March 09, 2012.  Comments can be directed to:

Christy Taglieri
Senior Policy Advisor
Ministry of Agriculture, Food and Rural Affairs
Policy Division
1 Stone Road West
Floor 2 SW
Guelph Ontario
N1G 4Y2
Phone: (519) 826-3832
Fax: (519) 826-3492

Comments can be submitted on-line at: On-line Submission.

Nova Scotia Board allows compensation claim for expropriation of contractual rights to proceed

The Nova Scotia Utility and Review Board is allowing PEV International Research & Development Incorporated (PEV) to proceed with a somewhat unusual claim under the Expropriation Act.  PEV claimed compensation arising from the expropriation of land owned by James Irving Warner by the Municipality of the District of Guysborough (for the purpose of its inclusion in an industrial development for the regasification of liquid natural gas).

Warner and PEV had already entered into a business agreement involving the development of an LNG regasification plant and related facilities on the same land.  Warner applied for compensation under the Expropriation Act.  PEV then applied for compensation for the value of its interest in the land (arising from the contract).  PEV withdrew claims for business loss and disturbance.  Guysborough challenged PEV's ability to bring the claim for "market value" of the land, questioning whether PEV was an "owner" pursuant to the Expropriation Act.

In ruling that the claim could proceed, the Board said that it was satisfied that, but for the expropriation, the agreement between PEV and Warner would not have terminated (as it did when the expropriation occurred).  The Board was not persuaded that there was sufficient evidence before it to support a finding that PEV has no claim.  Therefore, the motion for summary judgment failed.  However, the Board made it clear that, in allowing the claim to proceed, it refrained from any consideration of the value of the PEV interest (i.e. an interest that might be valueless).

Read the decision at: PEV International Research & Development Incorporated (Re).

Sask. Court rules husband's seed and chemical debt can be set off against payment to wife for grain

A Judge of the Provincial Court of Saskatchewan has ruled that a farm supply company was justified in setting off a husband's debt owing for seed and chemical against a payment to be made to his wife for grain.  Denise Korpan had sold feed barley to Parrish and Heimbecker Ltd., and the company deducted from the payment to Ms. Korpan the amount her husband owed for seed and chemical.  She sued the company alleging there was no right to set off the husband's debt and alleging that the debt was not as much as was deducted.

Ms. Korpan, the Plaintiff, and her husband, Ed Korpan, are farmers running a mixed farming operation.  They have never incorporated their farming operation. Initially they carried on as a family run farm, however some 12 years ago, at their accountant’s suggestion, they divided the responsibilities in their farming operation. The Plaintiff now looks after the cattle portion of the farming operation while her husband is responsible for the grain portion of the operation. Both have knowledge of what the other is doing and make decisions about the farming operation together, but both own farmland and farm assets in their own names. Even though certain machinery and/or vehicles are owned by one of them, the other can use the machinery or vehicles if necessary.

In February, 2008, Norman Cobb, a sales representative for the Defendant, Parrish & Heimbecker Ltd., met with the Korpans at their farm. At this meeting, Ed Korpan filled out a credit application with the Defendant which was later approved. The Plaintiff did not sign the credit application, but was present when her husband signed it and took an active role in the discussions surrounding it. In the course of filling out the application, Mr. Cobb confirmed with them that they ran a family farm. Nothing was said about them running separate farming operations. In the 2008 crop year, Ed Korpan purchased canola seed and chemical from the Defendant on credit. The Plaintiff was aware that he had done this although she did not recall seeing the actual contract. This was not out of the ordinary as Ed signed all of the grain related contracts on behalf of the family.

In order to decide the set off issue, the Judge had to determine if the Plaintiff and her husband were operating the farm as a partnership or if they were each running their own farming operation. The Defendant company argued that it was former while the Plaintiff was adamant that her and her husband were each sole proprietors of separate farming operations.  The Judge found that the Plaintiff had not satisfied the Court on a balance of probabilities that she and her husband ran separate farming operations.  The evidence established the contrary - that they were engaged in a partnership.  Under the Partnership Act, "every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he/she is a partner...".  On this basis, the Defendant was entitled to set the husband's debt off against the wife's sale of barley (i.e. set off the parternship's debt against the payment to the partnership for the barley).

Read the decision at: Korpan v Parrish and Heimbecker Ltd.