Unloading in the evening

Unloading in the evening

Thursday, June 27, 2013

Chicken farmer fined over improper disposal of dead animals

From the Ministry of the Environment:

Thorold Resident Fined $7,000 For Improper Farming Practices

St. Catharines – A Thorold resident was fined $7,000 for failing to comply with a ministry order and for failing to properly dispose of dead farm animals.

“Environmental protection legislation protects communities and the environment. Breaking these rules can result in serious penalties and is an offence the ministry takes very seriously,” said Environment Minister Jim Bradley.

Tom Sarantakos operates a chicken farm located in Thorold. The chickens are raised for about eight to nine weeks and are then taken for slaughter.

The ministry received a number of complaints of manure runoff, foul odours, excessive insects and escaping chickens. Following a number of inspections by ministry staff, Mr. Sarantakos was issued a ministry order requiring him to take various measures to manage the manure on the farm. The final order required Mr. Sarantakos to provide proof of manure removal. Mr. Sarantakos failed to comply with the order.

Mr. Sarantakos lives at a second farm location. An inspection of this farming operation revealed numerous dead farm animals, namely chickens that appeared to have died well in excess of the 48 hour duration permitted, following the death of an animal for proper disposal.

Mr. Sarantakos was fined a total of $7,000 plus victim fine surcharges of $1,750 and given 90 days to pay the fine.

Wednesday, June 26, 2013

Who owns the tree that straddles the property line?

One neighbour contended that a Norway Maple Tree straddled the property line.  The other neighbour wanted to cut the tree down.  She applied to the Court for an order stating that she was the sole owner of the tree (and, therefore, could proceed to take it down).  The neighbours on the other side of the property line disputed the ownership issue in an effort to save the tree.

According to the Forestry Act, every tree whose trunk is growing on the boundary line between adjoining lands is the common property of the owners of the adjoining lands. 

The Applicant argued that the tree at ground level was only situated on her property.  The Respondents insisted that the situation at ground level didn't accurately reflect the true location of the tree; the level of the ground adjacent to the trunk is variable depending on how much fill is placed against the trunk.  Instead, they argued that the base of the tree must be measured at the point at which the trunk meets the roots of the tree.

The Superior Court of Justice ruled that, for the purposes of the boundary tree provision in the Forestry Act, "the meaning of a treek trunk growing on a boundary line [includes] the entire trunk from its point of growth away from its roots up to its top where it branches out to limbs and foliage."  The Court added, "In any event, it is not only the arbitrary point at which the trunk emerges from the soil that governs."

According to the legislation, "in circumstances where the trunk is growing on the boundary line, co-ownership follows, no matter who planted the tree."

Read the decision at: Hartley v. Cunningham et al.

Friday, June 21, 2013

Court of Appeal upholds decision requiring municipality to honour drainage agreement

In a previous post (January, 2013), I reported on a Superior Court decision requiring a municipality to honour a drainage agreement from 1953.  The agreement required the municipality to maintain and repair in perpetuity part of a storm sewer drainage system that it had constructed on and near the lands of a local farmer.  60 years later, the successor landowners wanted the municipality to honour the agreement; the municipality ceased all maintenance and repair work, and the matter ended up in court.

The Ontario Court of Appeal has upheld the lower court decision requiring the municipality to honour the agreement.  The municipality appealed on three issues: (1) the landowners' claims concerning the agreement are statute-barred; (2) the landowners have no standing to enforce the agreement since they have no privity of contract with the municipality; and (3) the agreement is contrary to public policy and, hence, unenforceable.

On the limitation period issue, the Court of Appeal agreed with the lower court judge that there was insufficient evidence that the municipality's repudiation of the agreement had been accepted by the landowners or their predecessors in title.  Instead, the contract (repudiated by the municipality) was affirmed by the landowners and treated as subsisting and on-going.  If the contract in this case was still in effect, then the municipality was under a perpetual obligation to maintain and repair the drain.  No limitation period had expired to free the municipality from this obligation.

On the issue of standing, the Court of Appeal disagreed with the strict application of the doctrine of privity of contract (i.e. only the parties to the contract have standing to sue for breach of the contract) for this case.  To apply the doctrine would have allowed the municipality to escape the stated purpose and express terms of the contract (which provided that it would "inure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, successors and assigns").  Here, the Court of Appeal was prepared to allow the current landowners to enforce the contract as they stood in the shoes of the original contracting party.  The Court would also have applied the principled exception to the privity rule if necessary.

Lastly, the Court of Appeal rejected the municipality's argument that the agreement was void on public policy grounds.  The Court noted that the municipality's factum (written argument) did not address one part of this argument and that it would not be fair for the landowners to have to deal with it.  The Court also rejected the argument for lack of evidentiary support.

Read the decision at: Brown v. Belleville (City).