Unloading in the evening

Unloading in the evening

Friday, September 28, 2012

Drainage Tribunal decides it has no jurisdiction to rule on prescriptive easement rights

In a recent drainage appeal case, the Agriculture, Food and Rural Affairs Tribunal has decided that it does not have jurisdiction to determine property and prescriptive rights; this jurisdiction rests exclusively with the Ontario Superior Court of Justice pursuant to Sections 97 and 100 of the Courts of Justice Act and, on a limited basis, with the Director of Titles on an application to convert a property to Land Titles Absolute under the Land Titles Act.

One of the appellants in the drainage case alleged that he had acquired a prescriptive right in the form of an easement.  The easement, it was alleged, allowed for the construction of a built up roadway crossing of the natural watercourse on the appellant's property.  The building up dammed the water, causing drainage problems.

The Tribunal noted that it is a creature of statute (a creation of the Province) and has no inherent jurisdiction or authority.  It's only jurisdiction in this case arose from the Drainage Act and, in the absence of a decision of the Superior Court determining the prescriptive rights alleged (or in the absence of title documents demonstrating those rights), the Tribunal has no jurisdiction to determine whether a prescriptive right exists.

Read the decision at: David Adams Municipal Drain.

Wednesday, September 26, 2012

Court rules that admission that right-of-way exists cannot be withdrawn

The owners of a large farm property in the Cookstown, ON area applied to the Court for an order that would have the effect of withdrawing an admission they made in previous court proceedings that their property is subject to a right of way (a narrow strip of land measuring 60 m x 20 m).  As the judge explained in his decision on the motion before him:
Now the applicants seek an order that would have the effect of withdrawing their admission that there is a right of way – precisely the same right of way that the applicants admitted existed, and upon which this court and the Court of Appeal has already rendered a decision. Should this court exercise its discretion to allow for such an amendment in the face of these facts?
The parties to the application had been parties to three previous actions, one of which proceeded to trial and then an appeal.  Justice Edwards noted that, "there can be no doubt then that in all three actions the applicants have accepted and asserted the existence of the right of way." 

In spite of that, the applicant owners now argued that, even though a right of way was created in 1974, the chain of title was broken such that the right of way was not validly transferred to the current owners of the "dominant tenement" (i.e. the land benefitting from the right of way).

In deciding the issue Justice Edwards stated, "An admission made in a pleading or an affidavit is something to be relied upon not only by the opposite party but by the court.  An admission may therefore only be withdrawn in very limited circumstances."  Whether to allow an admission to be withdrawn is a matter of discretion for the Court; in this case, Justice Edwards ruled that the admission could not be withdrawn.  Among the reasons given for this decision was that, "it would be contrary to public policy to allow a party now to come before this court to withdraw an admission that has been made in three separate actions, one of which has been disposed of by settlement and the other one of which has been adjudicated upon by McIssac J."

Justice Edwards continued:
Litigants are entitled to assume that once there has been a decision of this court, particularly one which has proceeded so far as the Court of Appeal, that such a decision is final and that the facts upon which that decision is based are also deemed to be final. Apart from the question as to whether or not there is prejudice, which in my opinion there clearly is, public policy dictates that the withdrawal of the admission now sought by the applicants should not be granted. The applicants’ motion is therefore dismissed.
Read the decision at: Pagliuca et al. v. Paolini Supermarket Limited.

Wednesday, September 19, 2012

Ontario: Licensing Private Natural Gas Wells

The Ontario Ministry of Natural Resources (MNR) has now released the final version of its "Approach for Licensing Private Gas Wells".  This internal operating policy directive establishes the criteria by which operating, pre-existing private gas wells can become licensed by the MNR under the Oil, Gas and Salt Resources Act.  The requirement for a license came into effect for all wells, private or commercial, in June 1997.  However, many private wells were not licensed.

The policy directive clarifies the terms and establishes minimum guidelines for licensing pre-existing private wells.  According to MNR, the policy addresses potential safety and environmental risks posed by those wells, while recognizing the benefits of having private well operators come forward to obtain a well licence.  Read the policy directive at: Licensing Existing Private Natural Gas Wells.

On the Environmental Bill of Rights Registry, the MNR has also posted a summary of various comments it received during the review process and its responses to these comments:

1. “Private Use” of Gas

Comment: Natural gas from these wells is often consumed by someone on a property other than the one on which the gas well is located. Such a transfer of gas, or the transfer of a gas well itself in some cases, may have been captured in a written agreement between the two parties who believe they are acting within the law. The policy describes any sale of gas as disqualifying the well from being considered as “private use”. The suggestion was made to allow flexibility to recognize these ‘good faith’ agreements as being within the definition of private use.

MNR Response: To accommodate these types of agreements, the interpretation of “private use” has been revised to include persons with a legal interest in the well. MNR recognizes that such agreements exist and will have various levels of complexity and sophistication. Agreements will be examined on a case-by-case basis to determine if there is substantial evidence to support the legitimate use of gas by someone other than the well owner.

2. Annual Consumption of Gas

Comment: The policy requires that the annual consumption of gas from a well be less than 10,000 m3 for it to be considered a private well. Some respondents commented that this threshold should be removed from the policy altogether. Others commented that the limit was too low and should be increased to accommodate farmers who use the gas in the operation of their farm (for drying crops, heating outbuildings, etc).

MNR Response: The annual consumption limit has been removed from the policy.

3. Adjacent Lands

Comment: The policy allows for use of gas on “adjacent” properties so long as those properties are owned by the well operator. The meaning of the term “adjacent” needs to be clarified.

MNR Response: The term adjacent has been clarified in the policy to mean “two properties that share a common boundary.”

4. Pipelines Crossings Right-of-Ways

Comment: Transmission of gas through a pipeline crossing or alongside a municipal road allowance or right-of-way disqualifies the well for licensing unless the pipeline is inspected by the Technical Standards and Safety Authority (TSSA) and authorized by the municipality. A number of respondents were uncomfortable with the idea that TSSA might be contacted by MNR, because TSSA operates on a cost-recovery basis and could cause undue hardship for well owners.

MNR Response: MNR is responsible only for the licensing of the gas well. The intention of this requirement was to ensure well owners recognized that MNR’s gas well licence may not be the only approval needed for the operation of a private well. The wording in the policy has been revised to make clear that it is the responsibility of the well owner to obtain any other necessary approvals that may be required to use and/or transmit gas from a private well. The onus to seek other approvals rests solely with the well owner or operator and will not be a condition of licensing.

5. Qualified Persons

Comment: The list of Qualified Persons in the policy should be expanded to include technicians and technologists, not just engineers, geoscientists, and Examiners. Respondents pointed out that the cost of using an engineer, for example, may be prohibitive.

MNR Response: The policy is revised to state that other persons not already qualified as Class II Examiners may seek to qualify as a Class II Examiner and thereby become a Qualified Person. This would include someone certified as an engineering technologist (C.E.T.) or certified technician (C. Tech) with the Ontario Association of Certified Engineering Technicians and Technologists.

6. Cementing Around the Wellhead

Comment: Generally respondents felt that the requirement to cement around the wellhead was not practical and should be removed from the policy. The freezing and thawing of the ground around the wellhead will cause the cement to fracture and break apart, defeating its intended purpose. In some locales, the ground around a well is made of hard clay and is already impervious to water.

MNR Response: MNR has removed the requirement to cement around the wellhead from the minimum Acceptable Well Conditions described in the policy. However, it is still required that the ground around the wellhead be sloped away in all directions to prevent the pooling of water in the vicinity of the well.

7. Setbacks

Comment: Setbacks from buildings and other infrastructure were the subject of many responses. Some pointed to the fact that many wells had been encroached upon by development (i.e. were there prior to the infrastructure, not vice-versa) and therefore the setbacks unfairly penalize the well owners. The 30 metre (m) setback from a property boundary was the subject of most comments. People noted that many wells were purposefully placed near a property boundary to keep them from obstructing farming operations. Others remarked that utility installations were often located within 10m of a roadway and felt that private gas wells were being unfairly penalized by requiring a 10m setback from the road allowance.

MNR Response: MNR has made the following changes to the setbacks in the policy:

• The 30m setback from a property boundary has been removed.
• Reduced the setback from road allowance to 5m (from 10m).
• Removed the 50m setback from Great Lakes and tributaries. A 15m setback will apply to water bodies.

Other setbacks, namely the 30m setback from private residences and the 75m setback from public buildings, remain unchanged. However, the ministry will consider a reduced separation distance if it is supported by the opinion of a professional engineer hired by the well owner.

8. Term of Licence

Comment: A number of respondents did not agree with limiting the term of a private gas well licence to 10 years. Some thought it should be longer than 10 years; others thought that there term should not be limited at all. There was a general concern that the licensing conditions will be different in 10 years time and wells that had previously received a private licence would no longer qualify.

MNR Response: The policy has been changed so that licences will be eligible for a 10-year renewal upon expiry. The 10-year renewal is subject to an evaluation confirming that the well continues to meet the requirements expressed in the policy.

9. Transfer of Licence

Comment: Most respondents agreed that a private well licence should be transferable to a new land owner. One person suggested that the requirement for an evaluation prior to transfer be waived if the well had recently been evaluated.

MNR Response: The well licence will be transferable without the requirement for a new evaluation if the well owner can provide proof that the well had been evaluated within the last year.

10. Safeguards

Comment: The policy requires that methane detectors be installed in buildings being supplied gas from a private well and that barriers be built around a well with the potential to be struck by a vehicle. Although several respondents recognized methane detectors would improve safety for those using the gas, it was felt by some that that it was not within the MNR’s authority to establish such a requirement. Several respondents supported the requirement for barriers to protect the well where there was potential for a vehicle to collide with the well.

MNR Response: The safeguard section has been reworded to recommend the installation of methane detectors and vehicular barriers as a “best practice”.

11. Incentives

Comment: Many respondents who commented on the proposed incentives thought that the MNR should pay the entire cost of upgrading or decommissioning a well. One commentor suggested that the MNR pay for half (50%) of the well operator’s cost to become compliant. Another commentor did not support the use of government resources to upgrade or decommission private wells.

MNR Response: The MNR has decided to proceed with incentives to help well operators meet the requirements established by the policy.

Tuesday, September 18, 2012

NEB Decommissioning - Pipeline Abandonment without landowner participation

Recently I wrote about an application filed by TransCanada Pipelines Limited for the "decommissioning" of part of its NOVA pipeline system in Alberta.  The National Energy Board (NEB) has created a category of "decommissioned" for pipelines permanently removed from service, but in situations where service on the "pipeline" system continues (i.e. customers are not affected).  The responses to information requests issued to TransCanada by the NEB reveal the dangerous position into which this "abandonment but not abandonment" places landowners.

Essentially, TransCanada is abandoning its pipeline in place.  However, since there is no abandonment application required under Section 74 of the NEB Act, there does not need to be a public hearing and there does not need to be landowner participation in the decision-making process.  Even if there was participation available, landowners would have no access to participant funding from the NEB; this is not one of the types of applications for which funding is made available (much like the ongoing abandonment cost estimate hearing process in which landowners must fund their own participation).

Read TransCanada's responses to the information requests at: NOVA response.

Friday, September 14, 2012

Landowner Information - Protection of Butternut Trees (Ontario)

Here is a useful information sheet from the Forest Gene Conservation Association on the protection of butternut trees (an endangered species) in Ontario: Butternut Info for Landowners.
As noted recently by a reader, planted butternut trees (i.e. not naturally occurring) are not protected unless they were planted as a condition under an Endangered Species Act permit.

Monday, September 10, 2012

Farmer chasing ATV trespassers acquitted of dangerous driving

From the Judgment of Justice R. Green of the Provincial Court of Saskatchewan:

A farmer was charged with driving in a manner dangerous to the public on Church Road in the Rural Municipality of Fertile Belt, contrary to s. 249(1)(a) of the Criminal Code.  The farmer is now 54 years of age and works for a neighbour. He farmed his own land in the past, but now leases it. On October 3, 2010, in the latter part of the afternoon, he was helping the neighbour fix his combine. He heard some All Terrain Vehicles (ATVs) being operated in the distance, on a field he owned. These ATVs were being driven by three young males who were at the time they came to the farmer's attention driving around in mud on his field, which was to the south of Church Road.

The farmer took the neighbours 4x4 truck and drove, in 2-wheel drive on Church Road and then south into his field where the ATVs were.  At that point, the ATVs scattered.  The farmer followed one of the ATVs over Church Road and back north into another of his fields, in which a crop of canola had just been swathed.

A police constable arrived on the scene at 4:36 p.m., and found the ATV wedged under the front driver’s side bumper of the truck.  The farmer was seated in his vehicle. After attending to the young male ATV driver, and viewing the scene, the officer arrested the farmer at 5:08 p.m. for dangerous driving.

The Crown submitted at trial that the farmer chased after the young male on Church Road and rammed his ATV.   The farmer claimed that, as he pulled up beside the young male on Church Road, the young male accelerated his ATV and swerved into the truck and turned in front of it.  He said, as this was happening, he slammed on his brakes and skidded in a straight direction for a number of feet.

Ultimately, the Judge stated, the issue was not whether he is satisfied beyond a reasonable doubt that the collision on Church Road happened as the farmer described, but rather whether it is possible that it did.   Considering: (1) his finding that it is possible the farmer was travelling as slowly as 35 to 40 kilometres per hour on Church Road when he collided with the ATV; (2) the lack of any expert evidence on accident reconstruction of what happened between the two drivers on Church Road; and (3) the reality that the young male was an inexperienced ATV driver who admitted he may have swerved before the truck reached him, the judge concluded that it is possible the collision happened as the farmer described, with the young male swerving into the driver’s side of the truck, the farmer slamming on the brakes and the young male accelerating and turning into the path of the truck. 

With respect to the degree of care exercised by the farmer, the Judge ruled that he was not satisfied that the degree of care exercised by the farmer in driving on Church Road was a marked departure from the standard of care that a reasonable person would have exercised in these circumstances.  Whatever the farmer's liability might be civilly for the collision, the Judge was nevertheless not satisfied beyond a reasonable doubt that his driving was a marked departure from the standard a reasonable person would have observed in these circumstances.

On this basis, the farmer was acquitted of the dangerous driving charge.

Read the decision at: R v Tranberg.

Tuesday, September 4, 2012

TCPL files major decommissioning application with NEB

The NOVA Gas division of TransCanada Pipelines Limited (TCPL) has filed a major pipeline "decommissioning" application with the National Energy Board (NEB).  TCPL proposes to "decommission" in place the vast majority of a 266 km length of pipeline, capping it, filling it with an inert gas, and leaving it to corrode in the ground.  The application is at the following link: Decommissioning Application

Several years ago, the NEB introduced the concept of "decommissioning", which effectively allows a pipeline company to abandon its pipeline in place without having to make an application to abandon.  Where there is no application for abandonment, landowners have no access to participant funding to support their involvement in the approval process.