Merry Christmas!

Merry Christmas to everyone, and a Happy New Year! 



OEB launches Energy East consultation

The Ontario Energy Board has set up a website with information about its pending public consultation on the TransCanada Energy East Project.  Although the project falls within the federal jurisdiction, the Province of Ontario intends to participate in the approval process as an intervenor and is seeking comments on the positions it should be taking on the following four areas of "potential impact":

The impacts on Ontario natural gas consumers in terms of rates, reliability and access to supply, especially those consumers in eastern and northern Ontario

The impacts on pipeline safety and the natural environment in Ontario

The impacts on local communities as well as First Nations and Métis communities

The short and long term economic impacts of the project in Ontario

Public meetings will be scheduled for February and March, 2014.

The website can be accessed at: The Ontario Energy Board Energy East Consultation.

 

Joint Review Panel Report on Northern Gateway Pipeline to be released on December 19

The Joint Review Panel (NEB) will release its report on the proposed Enbridge Northern Gateway Pipeline on December 19, 2013 at 2:30 Calgary time. 

Ontario MOE: Company fined $50,000 for manure discharge

From the MOE Court Bulletin:

Warwick Company Fined $50,000 for Discharging Manure into Woods Creek

Sarnia – A Warwick company was fined $50,000 for discharging a mixture of cow manure and leachate into Woods Creek that could have impaired the creek’s water quality, contrary to the Ontario Water Resources Act.

“Polluters should be aware that the ministry’s Investigations and Enforcement Branch will vigorously pursue charges when our environmental laws are broken”, Environment Minister Jim Bradley.

Eusi Farms Ltd. operates a beef feed lot located on Rawlings Road in the Municipality of Lambton Shores where approximately 3,000 cattle are housed. Manure is stored on site until applied as a nutrient to 14 other Eusi farms.

On November 19, 2011, a resident of Lambton Shores reported to the ministry that Woods Creek was black and smelled like manure. The caller also reported seeing dead fish, crayfish and several frogs in the creek. The Municipality of Lambton Shores staff attended the site and reported a strong odour, discoloured water and dead fish.

An inspection conducted by ministry staff revealed the source of the contamination in the creek was a leaking manure pit located at the Eusi Farms about seven kilometres upstream of Lake Huron.

Ministry staff remained at the site until the leak was fixed and clean-up work completed. .

Eusi Farms Ltd. was fined $50,000 plus a victim fine surcharge of $12,500 and was given 60 days to pay the fine.

Ontario MOE: Hog Farm Fined $4,000 for having no nutrient management strategy and plan

From the MOE Court Bulletin:

Hog Farm Fined $4,000 for Nutrient Management Violations

Cornwall – A hog farm was fined $4,000 for operating an agricultural farm without the required nutrient management strategy, contrary to the Nutrient Management Act.

“Charges and convictions remind us all that we need to take care not to damage the environment as we go about our business”, Environment Minister Jim Bradley.

6093744 Canada Inc. owns and operates a pork agricultural operation located on County Road 18 in the Township of South Dundas. In 2004, the company added two hog barns and a manure storage lagoon in addition to the two barns already on the property.

In October 2003, a letter was sent by a Ministry of Agriculture and Food engineer advising the company that its intention to build two additional barns to house about 5,000 feeder hogs on the farm would result in the farm being classified as generating over 300 nutrient units and therefore would be subject to the Nutrient Management Act on July 1, 2005. The letter further indicated that a plan had to be submitted at least two months prior to this date for approval.

In June 2012, in response to a complaint, a provincial officer of the ministry conducted an inspection at the company’s farm. During the inspection, the officer observed that the company had not applied for or received an approved Nutrient Management Strategy and Plan. A subsequent investigation determined that pork operation involved about 5,000 feeder hogs that would generate over 300 nutrient units annually and therefore an approved strategy and plan was required and was not obtained.

The company was fined $4,000 plus a victim fine surcharge of $1,000 and was given six months to pay the fine.

"Playing in the mud"

Here are the opening paragraphs from a recent Saskatchewan Provincial Court decision about off-road recreation in farm country:

A favourite pastime for many people living in rural, northern Saskatchewan is off-roading or “playing in the mud” as the accused [...] likes to call it. That is, at least until he found himself stuck in the mud and charged with impaired driving, over .08 and resisting a peace officer on May 20, 2012.

The accused had been out “playing in the mud” with his buddies on a neighbour’s back forty the afternoon of May 20, 2012. This was a common form of recreation and sporting event for them. He had specifically purchased his Ford F-250 3/4 ton truck for this purpose. He had the truck lifted and placed large mud tires on it. The object of the game was to see how far out in the mud and bush they could take their trucks and get back out without getting stuck. The accused acknowledged that he faired quite poorly that day.

He had consumed two or three beers that afternoon while out 4x4ing with his friends. He then went for supper with a friend and after supper, drove to Smeaton, Saskatchewan for a house party. The accused did not like driving his 4x4 truck with its larger, more aggressive and expensive tires on the pavement as it tends to shred them. So, along the way he drove in and out of ditches alongside the road and into farmers' fields tearing around a little bit, until he eventually ventured into one ditch too deep and ended up getting stuck in the mud and water around 8:00 p.m. that evening.

In the end, the accused was found not guilty of impaired operation of a motor vehicle and of operating a motor vehicle while over .08 blood alcohol.  He was found guilty of resisting arrest.

Read the decision at: R v Brown.

City of Pickering wild boar case goes on

The Court of Appeal for Ontario has confirmed that negligence claim against the City of Pickering in connection with a wild boar operation can proceed.  The respondent in the appeal raised a herd of wild boards on a 10-acre property he occupied as tenant within the City's boundaries.  The City relied on a by-law restricting the keeping of animals to force the respondent to dispose of his herd.  He then sued the City for damages suffered as a result of the loss of his business.  One of his claims was that the City was negligent in its actions, and the Court of Appeal was to decide whether that claim could proceed.

Justice Epstein summarized her decision as follows:

The viability of Mr. Rausch’s negligence claim turns on three issues: first, whether the City may be said to owe either a statutory or common law duty of care; second, if a common law duty of care may be said to exist, whether Mr. Rausch has pleaded such a duty; and, third, if so, whether it is statute-barred. In my view, the statutory framework imposes no explicit duty of care. That said, I would not foreclose the possibility that Mr. Rausch may be able to establish an implied statutory duty of care. I am also of the view that Mr. Rausch’s amended pleading advances a viable common law duty of care – one that is not out of time. I would therefore confirm the order of the Divisional Court and dismiss the City’s appeal.

The Court of Appeal did not decide whether the claim against the City was successful - it decided whether there was a possibility that it could be successful.  As the decision was in the affirmative, the Court confirmed that the negligence claim could proceed to trial.

It is important to note, however, that the Court of Appeal did find that there could be no negligence claim based on the alleged breach of the Farming and Food Production Protection Act, which prevents a municipal by-law from restricting a normal farm practice that is part of an agricultural operation.  The Court found that the legislation, in the specific circumstances of this case, imposed no explicit statutory duty on the City.  However, the Court noted that its decision "does not foreclose the possibility that there may be an implied statutory duty of care arising out of the statuory scheme."

The negligence claim was allowed to proceed on the basis that the city may owe the respondent a common law (rather than a statutory) duty of care "to exercise its considerable power over farmers in a manner that reduces the risk of unwarranted harm".

Read the decision at: Rausch v. Pickering (City).

Divisional Court comments on OEB approval of forms of landowner agreements

As part of its decisions to approve energy transmission projects, the Ontario Energy Board (OEB) approves the form of agreement to be offered to landowners affected by the approval.  Recently, the Ontario Divisional Court decided an appeal of a decision to approve the construction of electricity transmission lines for a wind energy project in which the appellant argued that independent legal advice (ILA) clauses in the approved landowner agreements were "confusing, misleading and unfair".

The OEB may only approve a project where the applicant has satisfied the Board that it has offered or will offer to each landowner affected by the approved route, an agreement in a form approved by the Board. 

The party that appealed the OEB decision was Conserve Our Rural Environment (CORE) Inc.  It argued that the ILA clause in some of the 6 forms of land agreement to be approved was false and misleading because it gave the impression that the party requiring ILA was the tenant (the project proponent) rather than the landlord (the landowner).  ILA was to be obtained by the tenant even though it was the tenant who had prepared the agreements.

The Divisional Court determined that the appeal was not on a question of law or jurisdiction, which was the only basis on which the appeal could be made.  The OEB's authority to approve the form of contract is discretionary, and an arguably unreasonable exercise of discretion is not an error of law or jurisdiction.  Therefore, the Court dismissed the appeal.

In the event that it was wrong in this determination, the Divisional Court also went on to decide the appeal as if a question of law or jurisdiction had been raised.  It found that the applicable standard is one of reasonableness, and it found that the decision of the OEB was reasonable.  The Court stated, "It is important to understand that what the Board approved was a form of agreement which is the subject of subsequent negotiation between the parties.  It represents terms from which the party propounding the project may not unilaterally resile."

Read the decision at: Conserve Our Rural Environment v. Dufferin Wind Power Inc.

Oil and Gas Lease: Operate at a loss or nominal return or lose your lease?

This case involves five freehold petroleum and natural gas (PNG) leases that cover most of a section of land in Alberta.  The Plaintiffs are some of the current owners of the land plus a top-lessee, whose lease will only become effective if it is determined that the five existing leases have terminated.  The main issue in the case was whether those leases terminated as a result of the stoppage of operation and production from a well on the land between 1995 and 2001.  More specifically, the Court asked whether the Defendants (or their predecessors) were required to operate the well at a loss or nominal return during those years in order to preserve and continue the leases.

The Alberta Court of Queen's Bench heard evidence from a number of factual and expert witnesses about the decision made to shut-in the well in question for economic reasons.  In the end, the Court ruled that the well was shut-in for reasons permitted under the leases, and the leases did not terminate as a result of the cessation in operations and production.  The Plaintiffs' action was dismissed as a result.

Read the decision at: Stewart Estate v TAQA North Ltd.

Is the pipeline provincial or inter-provincial?

Every so often, the question of whether a pipeline is subject to provincial regulation or to federal regulation (by the NEB) comes before the courts.  The issue is now before the courts in Manitoba according to a recent decision of the Manitoba Court of Appeal.  A number of landowners affected by a proposed pipeline filed applications for leave to appeal a decision of the Surface Rights Board of Manitoba to the Court of Appeal.  They then brought a motion seeking to adjourn the leave to appeal applications pending a decision of the Manitoba Court of Queen's Bench regarding a judicial review of the decsion by Mantioba's Minister of Innovation, Energy and Mines (the "Minister") to grant a permit to EOG Resources Canada Inc. (EOG) to construct the pipeline.

The intended purpose of the pipeline, which would cross through the landowners' properties, is to link up to another proposed pipeline that would cross the Manitoba-Saskatchewan border (the "MIPL Pipeline").  The MIPL pipeline project requires approval from the NEB as it is an interprovincial (federal) pipeline.

EOG maintains that, although its pipeline would connect directly to the interprovincial MIPL Pipeline, its pipeline is intended to be wholly within the province of Manitoba.  Therefore, the EOG pipeline would be subject to provincial approval, as was granted by the Minister.  The landowners contest the jurisdiction of the Minister and brought an application for judicial review of the Minister's decision to approve the pipeline on constitutional grounds.

EOG opposed the adjournment of the leave to appeal applications, asserting that a delay would cause it prejudice.  The Court disagreed.  It found that it was not a practical use of judicial resources to have two cases ongoing with respect to the same issues.  It also reasoned that the Court of Queen's Bench proceeding may result in additional evidence necessary to determine the constitutional issue (i.e. the jursidiction of the proposed pipeline).  The Court of Appeal found that these reasons outweighed any potential prejudice to EOG.

Read the decision at: EOG Resources Canada Inc. v. Saskitoba.