Court of Appeal upholds conviction under EPA for rock debris

The Ontario Court of Appeal, in a split decision 2-1, has upheld the conviction of a highway construction subcontractor under the Environmental Protection Act (EPA) related to rock debris that travelled 90 metres beyond the controlled blasting area.  The "fly-rock" landed on a house and vehicle on neighbouring private property causing damage.  The blasting company did not report the debris and was subsequently charged with failing to report the discharge of a contaminant into the environment contrary to Section 15(1) of the EPA. 

The duty to report depended on whether there had been a discharge within the meaning of Section 14(1) of the EPA.  Section 14(1) prohibits a discharge of a contaminant into the natural environment if the discharge causes or may cause an adverse effect.  "Adverse effect" is a defined term in the Act, and the majority of the Court of Appeal panel found that for the harms listed in subparagraphs (b) to (h), there is no requirement that there necessarily be harm to the environment (i.e. there can be an adverse effect for the purposes of Section 14(1) without harm to the environment).  On this basis, although the "fly-rock" caused no apparent harm to the environment, the conviction was upheld.

Justice Robert Blair wrote a dissenting opinion.  His view was that there could be no "adverse effect" without either non-trivial harm or impairment of the natural environment.  As it was conceded that the "fly-rock" had no more than a trivial or minor impact on the natural environment, Justice Blair would have allowed the appeal.

Read the decision at: Ontario (Environment) v. Castonguay Blasting Ltd.

Rural landowner ordered not to use outdoor wood furnace during summer

A Judge of the Ontario Superior Court of Justice has found that interference of one property owner's use of an outdoor wood furnace with his neighbours' enjoyment and use of their properties warrants an order that the furnace may not be used between April 1 and October 15.  The Township of Ramara sought a permanent injunction restraining any use of the wood furnace, but the Court declined to order an all-out ban.  At issue was whether the operation of the furnace "unreasonably interferes with the normal enjoyment of human life and property" for the neighbours.

Read the decision at: Ramara (Township) v Mullen.

"Enbridge not telling entire story about pipeline, hearing told": Toronto Star

John Spears of the Toronto Star published an article about the Line 9 Reversal Hearing before the National Energy Board in London that concluded yesterday.  Spears refers to the submissions made on behalf of environmental groups and the Ontario Pipeline Landowners Association (OPLA), which represents landowners along the length of the Enbridge crude oil pipeline corridor in Ontario. 

Read the article at: Line 9 Reversal Hearing.

Landowner loses bid to shift drainage costs to Highway 401

An Oxford County farmer asked the Agriculture, Food and Rural Affairs Appeal Tribunal to increase the assessment of drainage costs to the Ontario Ministry of Transportation related to a widening of Highway 401.  An engineer's report had been prepared for various improvements to the Laister Drain required in connection with the widening of the 401 from four lanes to six lanes in the area.  The work would include construction of a section of tile drain from the southern limit of Highway 401, northward under the highway and then approximately 450 metres through agricultural land to an outlet in an open channel on the side of Blandford Road. 

Dunford Royal Cattle Company Inc. asked the Tribunal to amend the assessment against its lands and to allocate a higher assessment against the MTO drainage area (i.e. the highway).  On the issue of the amount of assessments allocated to the various property owners, the drainage engineer stated that he had used the Todgham Method to distribute the cost of the work. This method involves breaking the drain up into sections and assigning the cost of each section as benefit and outlet assessments to the lands using each section of the drain.

The Tribunal found that Dunford did not provide any evidence to contradict the findings or the testimony of the Engineer nor was any evidence put forward to show that the MTO watershed area had been inappropriately assessed.  It ruled that Dunford failed to provide the Tribunal with sufficient evidence that would support any amendment to the Schedule of Assessments for the project and, therefore, the appeal was dismissed.

Read the decision at: Laister Drain.

NEB: Independence of the Regulator - The Canadian Story

In a speech to the World Forum on Energy Regulation, Gaetan Caron, Chair and CEO of the National Energy Board (NEB) had this to about the independence of the NEB from industry:

The easiest topic to cover in my presentation is that of independence from the industry we regulate. The Board and its staff must not only be free from bias, but also the perception of bias.  This aspect of independence is governed by an explicit array of conflict of interest requirements, the Codes of Conduct for NEB employees, and specific prohibitions for Board members and staff to invest in or hold shares of energy companies. We also have clear guidelines on meetings with external parties, requirements to prepare and make available meeting minutes, a requirement that decisions are based on materials on the public record, and other methods of preserving independence.

Another important way to promote independence and guard against perception of industry bias is

the recruitment process for Board members. [...]

Choosing people with the right background, experience, and attitudes in relation to the public interest and natural justice is one effective tool in creating and maintaining an independent regulatory tribunal. 

The same can be said about the recruitment of staff.

Mr. Caron's speech did not appear to address the historical flow of Board and staff members back and forth between the NEB and industry.

See the full presentation with speaking notes at: May 14, 2012.

Soybean quality dispute goes to Ontario Court of Appeal

The Court of Appeal for Ontario recently released a decision in a case involving a Chatham area farm operation and Thompsons Limited related to quality grading of soybeans.  For more than two decades, the farm operation, "Triple P", had purchased crop inputs from Thompsons and Thompsons had contracted with Triple P to buy grain.  Thompsons had also hired Triple P to provide custom spraying to some of its other customers.

In 2007, the relationship took a turn for the worse when Thompsons concluded that one batch of seed beans from Triple P did not meet quality standards necessary for a seed premium of $1.35 per bushel.  Then Thompsons advised Triple P that it would not be awarding its 2007 spraying contract to Triple P, even though Triple P was of the view that an oral contract was already in place.  Triple P then threatened that it would not deliver other futures contracts for 2007 and 2008 grain.

Thompsons sued Triple P and Triple counterclaimed.  The trial judge concluded that: (1) Thompsons had established its claims in respect of the Futures Contracts; (2) Thompsons was not obliged to pay the claimed seed premiums under the Soybean Contracts because the Renwick soybeans “fell below grade” and Triple P had sold the Respond soybeans to a third party; and (3) no binding 2007 Spraying Contract had been entered into by the parties.  The trial judge awarded Thompsons damages in the amount of $108,046.39, inclusive of prejudgment interest, on account of Triple P’s breaches of the Futures Contracts, together with costs in the sum of $60,000. She dismissed Triple P’s counterclaim.

The Court of Appeal dismissed Triple P's appeal of this decision.  Read the decision at: Thompsons Limited v. 617987 Ontario Inc.

$16,000 Fine for Keeping Cattle and Manure in Hay Storage Structure

Ontario Ministry of the Environment Press Release:

Thames Sales Yard Ltd And Thomas Vanrabaeys Fined $16,000 For Manure Management Violations

LONDON - On November 17, 2011, Thames Sales Yard Ltd. was convicted of two violations under the Nutrient Management Act for keeping cattle and manure in a structure constructed for hay storage and failing to comply with a Provincial Officer’s Order.

The Court heard that the company raises and sells beef cattle at a facility located in Thamesville.  Mr. Vanrabaeys is the controlling authority of the company. In 2009, the company was issued a building permit by the Municipality of Chatham-Kent for hay storage. A public complaint of cattle being housed in the new structure initiated an inspection of the company’s facilities by the ministry. A Provincial Officer’s Order was issued by the ministry to the company and Mr. Vanrabaeys regarding run-off management at two locations and the disposition of a well at a third location. The order was issued to ensure that qualified persons address the issues of run-off management from manure and food storage facilities and the repair of a well to protect the environment and the quality of the surface and ground water. The company failed to comply by the required dates, and the required reports were not submitted to the ministry.

The company and Mr. Vanrabaeys were charged following an investigation by the ministry’s Investigations and Enforcement Branch.  The company was fined a total of $16,000 plus victim fine surcharges. It was given 45 days to pay the fines.