Pipeline Landowner Forum available at Pipeline Observer

An online forum for pipeline landowners has been set up at PipelineObserver.ca, along with blogs and news updates. The website "tracks pipeline news, industry, events and facilitates pipeline discussion".  The forum can be accessed at: Pipeline Forum.

When can a stream create a natural severance of a property?

A case is before the Ontario Superior Court in London to determine whether a local watercourse effectively severs a property into two parts.  An application has been commenced by the Municipality of Middlesex Centre for a declaration that a stream (the Bear Creek Drain) is not a navigable waterway such that a particular property through which it flows would be severed in two.  The predecessors in title of the affected landowners had previously applied to sever their property, but the application was denied.  The current landowners then obtained an opinion that the stream created a "natural severance"; a surveyor agreed and registered a reference plan showing the lands north and south of the stream as two separate parts and denoting the stream itself as "Unpatented Crown Land".

This was done without the knowledge of the municipality; the circumstances were discovered when the landowners made an application for a building permit that would have constituted a second dwelling on the same 10-acre parcel; this would not have been permitted without a rezoning unless there was a "natural severance".

Justice Heeney has ruled that it will not be necessary for the municipality to serve its application on other landowners along the Bear Creek Drain as the issue to be determined at trial will relate solely to the specific property in question: "was the stream a naviagble waterway at the time of the original Crown grant to the current owners' predecessors in title in 1831?  If the answer is yes, then the stream bed is deemed to have been excluded from the original grant, and title to it remains vested in the Crown, irrespective of the current status of the waterway.  If the answer is no, the stream bed was included in the deed to the parcel over which it flowed, and title to it vested in the private landowner who obtained the deed from the Crown, and in his successors in title, up to and including" the current landowners.

As the onus of proof will be on the landowners, Justice Heeney also ruled that they will present their case first at trial, to be followed by the municipality and then the Province of Ontario.

Read the decision at: Middlesex Centre v. MacMillan et al.

OPA to begin accepting Small FIT applications on December 14, 2012

From the OPA:

This is to advise you that the Ontario Power Authority (OPA) will begin accepting Small FIT applications on December 14, 2012, for renewable energy projects with a proposed capacity of 10 to 500 kilowatts. The OPA will award up to 200 megawatts worth of contracts as a result of applications received during this upcoming Small FIT application window.

Please note that the FIT Rules, FIT Contract and other program documents are being revised as a result of the November 23, 2012, and December 11, 2012, directives. Before submitting your application, please carefully review the latest versions of the program documents (version 2.1) to ensure you understand how the FIT Program has changed. The program documents will be available on the FIT website on December 14, 2012.

Applications are welcome from both new and pre-existing applicants. Pre-existing FIT applicants with Small FIT projects (formerly CAE applicants) who wish to be considered under the updated FIT Program can maintain their original time stamp if they submit an eligible revised application. More information will be available at fit.powerauthority.on.ca on December 14, 2012.  The OPA will also be hosting a web-enabled teleconference on Tuesday, December 18, 2012, to review the revised FIT Program and answer questions from interested stakeholders.  Details on how to participate will be posted on the FIT website.

BC Court of Appeal allows landowner appeal in breach of easement agreement case

I last wrote about this case in 2010: Utzig #2 decision.  As I explained in that post, the litigation concerns whether a pipeline owned and operated by the plaintiff Terasen Gas Inc. (“Terasen”) that runs through a portion of Burns Bog in Delta, B.C. was damaged or put at risk by landfill operations on lands owned by the defendant Utzig Holdings (B.C.) Ltd. (“Utzig”). The landfill operations were conducted, with Utzig’s permission, by the other defendants Alpha Manufacturing Inc., Burns Developments Ltd. and Burns Developments (1993) Ltd. (“Alpha” and “Burns”).

The BC Court of Appeal has now released a decision limiting the scope of the breach of covenants finding made by the lower court and dismissing in its entirely the claim in nuisance against the landowner. 

The covenants by the "owner" to the "utility" read as follows: "Not to do or knowingly permit to be done any act or thing which might, in the opinion of [the utility], interfere with or injure the works or any part thereof" (1961 ROW agreements) and "Not to do or knowingly permit to be done any act or thing which might, in the reasonable opinion of [the utility], in any way whatsoever interfere with or injure or endanger the works or any part thereof or impair the operating efficiency thereof or create or increase any hazard to persons." (1981 instrument)

For the landowner Utzig, the issue was whether it had, at all material times or some material times, permitted other parties to endanger the pipeline.  A key date was October 10, 1993, when Utzig entered into an Agreement for Sale of the property, which was never registered on title to the property.   The purchase price of $4 million was to be paid in instalments by October 18, 1995.  Terasen went to Court to seek injunctive relief prior to October, 1995, and the sale was never completed because the purchaser failed to pay the entire purchase privce when due.  For this reason, Utzig remained the registered owner of the property at all material times.

Madam Justice Newbury ruled (on behalf of 2 of the 3 judges on the panel) that the breach of the covenant not to permit only lasted up to the October 10, 1993 date:

In the result, I agree with the trial judge that up to October 10, 1993, Utzig retained sufficient authority over the subject property that it should be regarded as having “permitted” Alpha to do acts that might have interfered with or injured the pipeline. This constituted a breach of covenant. If in fact the works were so affected in this period, damages may be found to be payable in the second stage of this litigation. In respect of the post-AFS period, however, I would allow Utzig’s appeal on the ground that having sold the property under the AFS, it was no longer in a position to “permit”, or withhold permission for, Alpha’s activities. This result, in my view, accords with the reality that once land has been sold, it is for the new owner to be responsible for new breaches of the terms of instruments (such as rights of way or restrictive covenants) that are registered against the land. If it were otherwise, vendors would be obliged to obtain covenants from their purchasers repeating the covenants in such instruments, and one of the primary advantages of the Torrens registration system would be lost.

The last issue decided on the appeal related to Terasen's claim for nuisance - that Utzig was responsible for the landfill activities conducted on its land with its consent and that such activities substantially interfered with Terasen's use of its rights of way.  This claim related to the pre-October 10, 1993 period.  Utzig submitted that the threshold of “unreasonable interference” was not met in this case, given the lack of evidence of any “significant movement” of the pipeline until late 1994 and the fact the pipe was never “injured” physically.  The Court of Appeal ruled that, in the absence of clear evidence of substantial interference, the trial judge's finding of nuisance could not stand.

Read the decision at: Terasen Gas Inc. v. Utzig Holdings.

Court rules that oil and gas production lease does not grant gas storage rights

This is another decision in the ongoing McKinley Farms and Tribute Resources battle over gas storage rights on 200 acres of land in Huron County.  Tribute, through its predecessor(s), had obtained an oil and gas lease and a gas storage lease for the land in question.  The Court of Appeal has earlier ruled that the 1998 gas storage lease is no longer valid, but the Court upheld the oil and gas lease. 

 

Tribute now argues that it has gas storage rights under the oil and gas lease.  However, in the meantime, McKinley Farms has granted a gas storage lease to a different numbered company and now seeks an order from the Court that this lease is the only lease of the McKinley Farms lands that validly grants storage rights.  Justice Rady of the Superior Court of Justice in London has granted this order.

 

Justice Rady agreed with Tribute that its oil and gas lease contained language that could be interpreted to convey rights to storage; but she also concluded that the storage lease agreement (which was found by the Court of Appeal to be invalid or expired) was intended by the parties to replace those rights. 

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

Ontario releases new Drainage Act and Conservation Authorities Protocol

In 2008, the inter-agency Drainage Act & Section 28 Regulations Team (DART) was established by the Ministry of Natural Resources (MNR) and the Ministry of Agriculture, Food and Rural Affairs (OMAFRA) to explore the options and propose solutions to the legal liability issues for municipalities and conservation authorities arising from provisions in the Drainage Act and the Conservation Authorities Act.  DART includes representatives from MNR, OMAFRA, Conservation Ontario, conservation authorities, the Drainage Superintendents Association of Ontario, the Ontario Society of Professional Engineers Land Drainage Committee, Ontario Federation of Agriculture, Ontario Farm Environmental Coalition, and the Rural Ontario Municipal Association. The Team’s goal was to develop a means for municipalities and conservation authorities to fulfill their responsibilities under the Drainage Act and Conservation Authorities Act respectively without compromising the intent of either statute.  The Team developed a draft Drainage Act and Conservation Authorities Act Protocol. Included in the Protocol is a joint Drain Maintenance or Repair Notification Form which may be used to apply for permissions from conservation authorities, MNR, and Fisheries and Oceans Canada. After public consultation, the Protocol and Notification Form were approved by the Ministers of Natural Resources and Agriculture, Food and Rural Affairs and are now Provincial policy. These documents are intended for internal use by municipal and conservation authority staff.

 

Read the Protocol at: DART Protocol.

2012-2013 Farm Advisors Guide Now Available

Cultivating Business, the official publication of the Canadian Association of Farm Advisors (CAFA) is now available at: Cultivating Business 2013.  The publication includes a detailed listing of farm advisors across Canada.

ERT dismisses Chatham Kent wind turbine appeal

The Environmental Review Tribunal (ERT) has dismissed an appeal by the Chatham Kent Wind Action Inc. of a Renewable Energy Approval (REA) of a 270 MW wind farm near Tilbury and Ridgetown, in the Municipality of Chatham-Kent, Ontario. 

 

Key findings were made by the ERT at paragraphs 63 and 64 in its decision:

 

[63] The Tribunal has the duty to apply the statutory test. The onus is on those challenging the REA to establish how engaging in the renewable energy project in accordance with the renewable energy approval will cause serious harm to human health. Although Mr. Erhard raises concerns with respect to the accuracy of noise prediction, evidence is needed to establish that the alleged inaccuracies with noise predictions will cause serious harm to human health. No evidence and no submissions were made to connect the alleged inaccuracies with respect to the noise predictions with harm to human health or the environment.

 

[64] In conclusion, the Tribunal finds that the Appellant, the participant and the presenter have not shown that engaging in the Project in accordance with the REA will cause serious harm to human health as required by s. 145.2.1(2)(a) of the ERT.  The Tribunal, therefore, dismisses the appeal.

 

Read the decision at: Chatham Kent Wind Action Inc. v. MOE.

Farm Property Class for legal owners, not beneficial owners

The Ontario Divisional Court heard a "stated case" from the Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal") concerning the appeal of property tax assessments of various properties.  The applicants had appealed on the basis that they should have been assessed in the farm property class under Section 8(2) of Regulation 282/98.  The questions on the stated case to the Divisional Court boiled down to whether lands that are beneficially, but not legally, owned by Canadians, qualify for farm property class.  In general, a property is legally owned by the named registered owners of the property; other individuals or entities may hold unregistered equitable ownership interests in the property.  The Divisional Court concluded that the favourable tax treatment applies only to lands legally owned by Canadians.

The properties at issue in this case were purchased for commercial investment purposes by Walton International Group Inc.  They are currently being used for farming, but the long-term plan is to develop them for non-farming purposes. 

Read the decision at: Walton International v. Farm Property Class Tax Rate Program.

Court of Appeal rules "restoration" of farm land required aggregates licence

An excavating company was charged under the Aggregates Resources Act for operating a pit without a licence.  The company was carrying out a contract with a farmer, removing topsoil, levelling sand knolls, selling the sand, and then restoring the topsoil to restore it for farming.  Neither the company nor the farmer had obtained a licence to operate a pit or quarry under the Act.

At trial, the Justice of the Peace acquitted the company on the basis that the land, which was not a pit, was being rehabilitated for farming.  The Crown appealed that decision to the Ontario Court of Justice, which found that it was not the purpose of the Act to regulate the type of activity where "a farmer was simply trying to improve his farmland to grow better crops".

The Court of Appeal disagreed:

It is clear that what the respondent was doing was excavating a pit within the grammatical and ordinary sense of the definition in the ARA. The respondent argues that the ARAshould not be interpreted to include pits that are being excavated and that will be rehabilitated in order to improve farmland and not for the purpose of commercial aggregate production. The problem with that interpretation is thats. 1(3) provides a specific ministerial exemption where the primary purpose of the excavation is not for the production of aggregate. There would be no need for such an exemption if the licencing requirement did not apply, prima facie, to the particular excavation. Moreover, the intention to rehabilitate the excavation in the future does not take the operation out of the definition of a “pit”. That definition covers land “that has not been rehabilitated” and s. 48 requires all licencees and permittees to rehabilitate the site in accordance with the Act and regulations.

The Court of Appeal set aside the acquittal and, based on an agreed statement of facts in the case, entered a conviction and sent the case back to the Justice of the Peace for sentencing.

Read the decision at: R. v. Ontario Corp. 311578 (Dedrick Bros. Excavating Ltd.).

Enbridge Line 6B Citizens' Blog

Click here to visit a blog by "concerned landowners affected by the Enbridge 'replacement' project": Line6B Citizens' Blog.  Recall that Enbridge's plan for its Line 6B pipeline in Michigan (related to the Kalamazoo River spill) is to abandon about 75 miles of pipe in place and to construct new pipe in a new easement next to it.  The new easement will be obtained by expropriation where agreement is not reached with the landowner.