Dairy Farmers of Canada opposition to "Monster Milk" trade-mark rejected by Registrar

In July of this year, the Registrar of Trade-Marks in Canada dismissed oppositions filed by the Dairy Farmers of Canada against the proposed registration of trade-marks for "Monster Milk" and "Monster Mlk".  The registrations were requested by Cytosport, Inc. for a product described as: "Dietary and nutritional supplements for use in athletic training, namely for improving body strength and building muscle, excluding ready to drink beverages."

Dairy Farmers of Canada argued that the proposed trade-marks "whether depicted, written or sounded, are deceptively misdescriptive in the English language of the character or quality of the [products] in association with which they are proposed to be used.  Indeed, when depicted, written or sounded, the average consumer is likely to believe that the [products] are made of 'real milk' or contain 'real milk'."

The applicant, Cytosport, Inc., submitted that the term "milk" has a number of definitions that make it "clear that the work 'milk' could mean many different things and would not, in the mind of an average consumer, necessarily refer to cow's milk." 

The Registrar concluded that the trade-marks were registrable: "The work MILK (or MLK) is only one word in a composite mark.  The combination of the word MONSTER with the word MILK (or MLK) is unusual.  Aside from the word MILK (or MLK) that may suggest the character of the dietary and nutritional supplements, there remains the distinctive portion MONSTER.  The word MILK (or MLK) is no more dominant than the word MONSTER.  The combination of MONSTER and MILK (or MLK) does not create a trade-mark that can be viewed as a whole as descriptive of the character or quality of the dietary and nutritional supplements.  As the first portion of the test is not met, the [trade-marks] cannot be found misdescriptive."

Read the decision at: Dairy Farmers of Canada v Cytosport.

When "strong bonds of love and devotion" fall apart: Sask Court considers action to set aside gratuitous gift of land from elderly parent to adult child

Justice Schwann of the Court of Queen's Bench for Saskatchewan opened her recent decision in a farm estate case as follows: "At issue in this case are the legal ramifications flowing from a gratuitous gift of land from an elderly parent to an adult child, and the parent's subsequent desire to revoke that gift."  An elderly mother transferred a joint tenancy interest in the family farm to her stepson shortly before she left to live in an assisted living home, but a year later brought a court action to have the transfer set aside.  She died a few years after that before the action was decided - it was continued by her estate.  Upon the mother's death, the farm passed to the stepson as the surviving joint tenant.

Several grounds for setting aside the original transfer were proposed to the Court: 1) undue influence of the stepson over the mother; 2) the absence of independent legal advice; 3) breach of fiduciary relationship; 4) failure of consideration; and, 5) presumption of resulting trust.

Justice Schwann determined that the mother had gifted the interest in her farm property by exercise of free will - she was not unduly influenced by her stepson.  She also found that the mother had not received adequate independent legal advice about the transfer, but this was not in and of itself a reason to overturn the gift.  Justice Schwann did not find that the lack of independent legal advice meant that the stepson had dominated the mother's free will.  She also found that there was no fiduciary relationship, that no consideration (i.e. quid pro quo) was required for the gift, and that no resulting trust was established.  The action by the estate was dismissed in its entirety.

Read the decision at: Thorsteinson v Olson.

Divisional Court tells Municipality of West Grey to change by-laws and grant permits required for local wind farm

The applicant wind farm developer (NextEra Energy Canada ULC) sought judicial review of two municipal permitting by-laws that prevented it from proceeding with the construction of a project; in order to complete the development, the applicant said that it required permits from the Municipality of West Grey.  The Divisional Court hearing the application noted: "The application raises the question of when and how a municipal by-law or policy may frustrate the purpose of a provincial legislative instrument.  The factual backdrop for this legal question is the ongoing renewable energy revolution in Ontario that was ushered in by the Green Energy Act, S.O. 2009, c. 12.  This revolution has spawned much litigation, particularly around wind energy projects."

 

The applicant received the Renewable Energy Approval (REA) from the Ontario Ministry of the Environment for its 14-turbine project in January, 2014.  However, the applicant would also need "entrance permits" to connect access roads on private lands to the public highways within the municipality, as well as "oversize/overweight haulage permits" to allow for the conveyance of large and heavy project materials by truck along public highways.  The municipality declined to grant the required permits, in part on the basis of changes it had made to its by-laws.

 

The applicant argued to the Divisional Court that it holds a valid REA from the province and that, since the municpal by-laws are in direct conflict with the REA, the by-laws are inoperative to the extent of the conflict (under Section 14(1) of the Municipal Act, 2001).  The Court noted that a municipality can only exercise its powers by by-law, and the Municipal Act, 2001 provides that a by-law cannot frustrate the purpose of a provincial or federal Act, regulation or instrument. 

 

Based on the Court's interpretation of the REA, it found that the municipality's permitting by-laws did prevent the project from being built.  Therefore, the by-laws frustrated the purpose of the REA and must be held inoperable, but only to the extent of the conflict with the REA. 

 

However, the Divisional Court did not accept the applicant's alternative argument that the municipality had acted in bad faith in refusing to grant the required permits.  As the Court stated, "The Municipality is a democratic body accountable to its constituents.  It has a broad legislative discretion to enact by-laws governing issues that regulate daily life and the built infrastructure within its jurisdiction ... Council's call for a moratorium on wind energy projects in Ontario and its declaration that it is an "unwilling host" for such projects are not acts that, in and of themselves, support a finding of bad faith."

 

Read the decision at: East Durham Wind, Inc. v. The Municipality of West Grey.

NEB - Government of Canada Pipeline Regulations: Criminalization of Farming?

New pipeline regulations proposed by the National Energy Board (NEB) shift the burden of constructing, operating and maintaining safe pipelines to farmers, who will face near automatic Administrative Monetary Penalties (AMPs) or even Criminal Code prosecutions for failing to warn pipeline companies when pipelines cannot safely accommodate farming practices.  Doesn't this sound backwards?  On behalf of CAEPLA and landowners across Canada, the Manitoba Pipeline Landowners Association (MPLA) submitted the letter below to the NEB urging the regulator to shift the burden to make pipelines safe back to pipeline companies where it belongs, and to avoid making criminals out of landowners and farmers. 

October 20, 2014

 

Proposed NEB Pipeline Damage Prevention Regulations

Sheri Young
Secretary of the Board
National Energy Board
517 Tenth Avenue S.W.
Calgary, AB   T2R 0A8

Dear Madam Secretary:

RE:          Manitoba Pipeline Landowners Association (MPLA)

               Comments on Proposed Amendments to Regulations for Pipeline Damage Prevention

---

We are the lawyers for the Manitoba Pipeline Landowners Association (MPLA) and are writing in response to the NEB’s letter of September 18, 2014 to provide MPLA’s comments concerning the proposed amendments to pipeline damage prevention regulations.    MPLA is a voluntary association of Enbridge pipeline landowners in Manitoba, most of whom have between 6 and 8 pipelines crossing one or more of their properties (with at least one additional pipeline being proposed at present).  MPLA landowners and all NEB-regulated pipeline landowners across Canada are directly affected by Section 112 of the NEB Act and its related regulations.  MPLA is taking the lead on behalf of the Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA), of which MPLA is a member association, in responding to the NEB’s proposed regulatory amendments.  MPLA’s comments should be taken as those of pipeline landowners across Canada.

This marks the third time that MPLA has written to the NEB concerning the most recent round of proposed changes to Pipeline Crossing Regulations.  CAEPLA also provided comments to the NEB on previously proposed changes to the regulations dating back more than a decade.  Unfortunately, the currently proposed amendments demonstrate that the NEB is still not listening to the concerns of pipeline landowners.  The amendments do nothing to introduce fairness for agricultural landowners into the regulatory scheme.

As set out in MPLA’s comments to the NEB in February, 2013 on the NEB Discussion Paper, Section 112 of the NEB Act leaves landowners carrying an unfair burden in ensuring pipeline safety in Canada.  Restrictions on agricultural operations over and near pipelines are only necessary where companies have failed to ensure that the condition and location of their pipelines are adequate to accommodate agricultural operations.  Fairness dictates that pipeline companies, which have obtained land rights by expropriation or by agreement made through the threat of expropriation, should be required to accommodate farming.  However, as is apparent in the latest proposed amendments to the regulations, the NEB is continuing to move in the opposite direction – creating regulations that absolve pipeline companies from the duty to build, maintain and operate safe pipelines by restricting agricultural operations and exposing pipeline landowners to regulatory and penal liability.

Once again, MPLA urges the NEB to reverse this course by making amendments to the regulations that restore a landowner’s ability to carry out agricultural operations without the constant fear of contravening the NEB Act and regulations and of incurring the penalties that will result.  The starting point is to prescribe an exemption for all agricultural activities from the requirements to obtain NEB and/or company permission in Sections 112(1) and 112(2).  Then, similar to the proposed Section 10.1 of the proposed Damage Prevention Regulations, Part 2, the regulations would also provide that, if a pipeline company determined that agricultural activities could jeopardize the safe and secure operation of a pipeline, the pipeline company would be required to identify affected locations and advise landowners and farmers in writing of those locations and the reasons for the determination.  The pipeline company would then have two options for addressing its safety and security concerns:

 

1.       Remove, repair, modify, relocate or replace its pipeline so as to ensure that agricultural activities will not jeopardize the safe and secure operation of the pipeline; or,

2.       Provide affected landowners and farmers with clear written direction on any restrictions to be applied to agricultural operations in specified locations and pay the landowners and farmers compensation for any resulting business losses or other related damages or loss.

This proposal is consistent with the principles that should apply to the interaction between pipeline companies and landowners under the NEB Act – that pipeline companies are responsible to build, operate and maintain their pipelines safely, and that landowners are to be compensated for the imposition of pipelines on their properties and on their businesses.  MPLA’s proposed amendments do not compromise pipeline safety.  Instead, they shift the primary safety and security decision-making burden off of the backs of landowners and farmers and onto pipeline companies where it should be.  Landowners and farmers should not be placed in the position of having to decide whether a pipeline is safe or not and of having to face regulatory and penal liability if they are wrong.

As MPLA previously stated in its February, 2013 comments, pipeline companies have the resources and expertise to make this work.  They can obtain equipment specifications directly from farm equipment manufacturers; they can determine the surface loading and other impacts generated by farming activities; they already possess information (or should possess information) about the location, depth and condition of their pipes.  Where site specific locations are identified that will not accommodate the impacts of all farming activities, pipeline companies can determine what work is necessary to accommodate farming or what restrictions may be necessary.  And pipeline companies can compensate landowners and farmers for restrictions that are necessitated by the unsafe condition of their pipes.

Without this shift of responsibility to pipeline companies, Section 112 of the NEB Act and the related regulations will continue to work an injustice for landowners and farmers across Canada.  How else can one describe a situation where a Canadian farmer faces at a minimum an “administrative monetary penalty” of no less than $1,000.00 (or $4,000 for a corporation) for failure to notify a pipeline company that its pipeline is unsafe?  And the farmer has been deprived of any defence of due diligence, has no ability to appeal a decision of the NEB on the matter, and faces public denunciation by the NEB?  MPLA and its members are very concerned about the opportunities for abuse by pipelines companies that have been created by the administrative monetary penalty regime.  The answer is for the NEB to make the amendments proposed above by MPLA so that pipeline landowners and farmers do not face punishment on account of the failure of pipeline companies to build, operate and maintain safe pipelines.

The NEB should stop covering up for the inadequacies and deficiencies in pipelines on the backs of Canadian landowners and farmers.  Safety is in everyone’s interest, but it is the pipeline companies that should be responsible for safety.  MPLA and pipeline landowners across Canada hope that the NEB will take advantage of this opportunity to enhance pipeline safety while making the pipeline regulatory scheme fairer for landowners and farmers.

Yours truly,

 

John D. Goudy

c.c.:        MPLA, Board of Directors

NEB rules in favour of Kinder Morgan Trans Mountain - City of Burnaby prohibited from interfering or obstructing destruction of park land

In a decision dated October 23, 2014, the National Energy Board (NEB) has ruled that: 1) it has the jurisdiction to determine that City of Burnaby by-laws are inoperative or inapplicable to the extent that they conflict with or impair the exercise of Trans Mountain's powers under paragraph 73(a) of the NEB Act; 2) the doctrine of federal paramountcy, or alternatively, interjurisdictional immunity renders those by-laws inapplicable or inoperative for the purposes of Trans Mountain's exercise of its powers under paragraph 73(a) of the NEB Act; and, 3) the NEB has authority under subsection 13(b) of the NEB Act to issue an order against the City of Burnaby.

The NEB has issued that order, which prohibits Burnaby from interfering with or obstructing Trans Mountain and its staff, representatives, contractors, or agents from exercising Trans Mountain's powers under paragraph 73(a) of the NEB Act to enter into an on lands owned by or controlled by the City of Burnaby (including park lands and conservation lands) to complete surveys and examinations.  The NEB then specifies that there is a "broad range of necessary activities and arrangements that must be performed in completing the surveys and examinations", including but not limited to "associated brush clearing, tree removal, movement of equipment, traffic management and bore hole drilling necessary to complete the geotechnical site investigations."

The NEB also ordered that Burnaby could not order or authorize its own personnel to be present within any "safety zone" set by Trans Mountain during the survey and examination work.

BC Rancher conviction for shooting neighbour's dog set aside; new trial ordered

In June, 2011, a BC rancher shot and killed her neighbour's dog.  She was later charged under Section 445(1) of the Criminal Code.  At trial, the rancher claimed the dog had attacked her cattle and relied upon Section 11.1(2) of BC's Livestock Act (a person may kill a dog if the dog is running at large and attacking or viciously pursuing livestock) and Section 39 of the Criminal Code (protection of personal property, this section has since been rolled into section 35) as legal justifications for her actions.  The Provincial Court judge rejected those defences and convicted her.  The rancher appealed the conviction to the BC Supreme Court.

At trial, counsel agreed that the burden rested with the Crown to prove that the defence under Section 11.1(2) of the Livestock Act (the other defence was not pursued) did not apply.  The trial judge identified the significant issue to be whether the dog that the rancher killed was "attacking or viciously pursuing livestock", and found that there was "no merit to the argument" that this was the case. 

However, the appeal court found that the trial judge had misapprehended the evidence at trial.  He had failed to consider a written statement of the rancher that had been tendered as evidence that included evidence that the dog had been "attacking or viciously pursuing" the cattle - there was evidence of biting and attacking.  Instead, the trial judge found that there was no evidence on this point, which in the view of the appeal court constituted a misapprehension of evidence.

The appeal court also found that the trial judge had erred in his application of the law.  On appeal, the rancher raised three defences: 1) the Livestock Act defence; 2) common law justification of defence of property; and, 3) defence of colour of right.  Although the second two defences were not raised at trial, the Crown did not object to those defences being raised on appeal.  The appeal court found that the matter must be sent back for a new trial in which the Court would consider evidence related to all three defences. 

With respect to Section 11.1(2) of the Livestock Act in particular, the appeal court gave the following interpretation of the defence: "Rather, a fair and liberal construction, consistent with the common law, the overall object of the [Act], and the intention of the legislature is required.  To my mind, s. 11.1(2) of the [Act] should [be] construed in the same manner as the common law as permitting any person to kill a dog when at the time of the act of killing, the dog: a. is running at large; and, b. is actually attacking or viciously pursuing livestock, or, if left running at large, would subject the livestock to a real and imminent danger that the attack or vicious pursuit would be renewed."  The act of killing a dog would be prohibited once the need for protection of the livestock has ended.

Read the decision at: R. v. Robinson.

"Shared water does not necessarily make good neighbours" Part 2 - The Appeal

In September, 2013, I wrote about a case involving the post-purchase discovery of an underground waterline on a farm.  The purchaser of a 97-acre hobby farm did not know that the vendor, who retained a three-acre parcel next to the farm where he had built his retirement home, continued to receive water from a spring on the 97-acre farm through an underground line that also supplied other neighbours.  Rather than disclosing the existence of the line and his expectation that he would continue to receive the water supply, the vendor provided a statutory declaration on the date of closing stating that he was "not aware of any person or persons ... having any claim or interest in the said lands or any part thereof adverse to or inconsistent with [his] title and that [he was] positive that none such exists."

After the waterline was discovered, the matter ended up in court and the trial judge declared that there was no prescriptive easement for the line and that the vendor was not entitled to an injunction to prevent the new purchaser from taking steps to interfere with the quality or quantity of the water supply.  The judge also found that the waterline constituted a "latent defect" and that the vendor was liable for negligent misrepresentation.  He awarded the purchaser $25,500 in damages along with nearly $115,000 in costs.

The vendor appealed the decision of the trial judge on negligent misrepresentation and damages to the Court of Appeal.  The Court of Appeal agreed with the trial judge's finding that the vendor had a duty of care not to make false statements to the purchaser, which arose "specifically from respondent's foreseeable and reasonable reliance on the appellant's representations contained in the statutory declaration."  And, since the vendor himself was a person with an alleged continuing interest in the land being purchased by the purchaser, he "knew, or, at the very least, ought to have known, that his representation to the contrary, in a statutory declaration executed under oath, was false."

The appeal was dismissed with costs to the purchaser in the amount of $22,000.

Read the appeal decision at: Hanisch v. McKean.

Court declines to find that shared driveway right-of-way was abandoned

The drawing above shows three adjacent residential properties in Toronto (in blue, pink and yellow) along with a right-of-way that is shared by the three properties (in green).  The street adjacent to the three properties runs down the left side of the drawing; the right-of-way is a driveway that runs back behind the properties in an L-shape.

 

The owners of the blue lot wanted to use the driveway pursuant to the deeded right-of-way.  The owner of the yellow lot challenged this use on the basis that the blue lot owners had abandoned the right of way.  She claimed that she was entitled to park her car beside her house so as to block the laneway.  In fact, both the yellow lot owner and the pink lot owner (or their predecessors in title) had fenced off the right-of-way adjacent to their backyards.

 

The owners of the blue lot applied to the Superior Court of Justice for an order enforcing their rights to use the right-of-way.  In reviewing the application, the Court noted that the rights-of-way of the three lot owners were duly registered on title.  However, the registered owner of the right-of-way lands (the laneway) had passed away and none of his heirs were made parties to the application by the owners of the blue lot.  For that reason, Justice Myers stated, "I am reluctant to declare any rights in the laneway that may affect the owners' interests."

 

Justice Myers did comment that he would not find as a fact that the applicants (owners of the blue lot) or their predecessors in title abandoned their right-of-way over the laneway, but he did not think that he had the proper parties before him (including the owners of the laneway) to make a formal determination that the owners of the blue lot had not abandoned the right-of-way.  Justice Myers was prepared, however, to enforce the applicants' deeded right-of-way as against the other two residential lot owners (pink and yellow) in personam so that neither of those two owners would be permitted to block the laneway.  He specified that, "nothing herein is intended to bind the true owner(s) of the laneway and my order is expressly without prejudice to any and all rights of the true owner(s) to assert abandonment or any other causes of action or defence that he, she, it, or they may have against the [residential owners]."

Read the decision at: Currie v. Chatterton.

Landowners succeed on appeal of assessment for municipal drain maintenance work

Little Creek Municipal Drain services a watershed in the Municipality of the Town of Lakeshore. Little Creek itself drains approximately 2,700 hectares (or 6,650 acres) of mostly farmland into Lake St. Clair.  In 2011, the Town instructed a drainage Engineer to prepare a new updated assessment schedule for Little Creek for the purposes of future maintenance.  Several landowners who farm within the watershed disputed the results of the Engineer’s new assessment schedule primarily on the basis that his ratio of “benefit” to “outlet” assessment was disproportionate and unfairly burdened their lands with a higher assessment.

On the appeal of the Engineer's assessments, the Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal") concluded that the Engineer's method of assigning benefit assessments to the landowners relied too heavily on previous reports and not enough on his own objective determinations.  As this was a drain repair or maintenance project, the assessment process was not the same as it would be for a new drain construction.  The Tribunal said the following about the determination of "benefit" to the landowners and its role in setting the assessment of costs to the landowners:

According to the definition of “benefit” in Section 1 of the Act, benefit assessments apply to new work or improvement work where it can be easily justified that the construction, in fact, “… will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages …”. However, once that initial benefit has been paid by those lands, they should not have to pay a higher assessment every time it is maintained or repaired; that is, those lands should not have to pay over and over again for those initial benefits. Using the outlet assessment schedule is the fairest way to charge properties for maintenance and repair because, as stated in Section 23(3) of the Act, it is “…based upon the volume and rate of flow of the water artificially caused to flow … into the drainage works from the lands and roads …” as well as the length of the drainage works used by those lands and roads.

 

For the reasons mentioned above, when both a benefit assessment schedule and an outlet assessment schedule exist within a report prepared under Section 4 or Section 78, it seems most reasonable that only the outlet assessment schedule be used for maintenance purposes, after the new or improved drain has been constructed. In this case, the Engineer has prepared a benefit schedule that totals $11,000 and an outlet schedule that totals $39,000. The Tribunal does not find the 1981 Brewer-Terry Drain Decision to be comparable as the report under consideration in that hearing was an improvement report, prepared under Section 78 of the Act, wherein the appellant’s lane crossing was being extended. It was not a report prepared under Section 76 of the Act.

 

Accordingly, the Tribunal agrees with the Appellants that, given the facts of this case, benefit assessments should not be considered when apportioning assessments for maintenance.

[emphasis added]

The Tribunal ordered the Engineer to revise the Schedule of Assessment so that assessments would be based only on revised outlet assessments (rather than on the standard categories of "special benefit", "benefit" and "outlet").

Read the decision at: Little Creek Drain (Re).

BC Court: Aborted sale should have proceeded - vendor did not conceal property's propensity to flood

The purchaser of a 60-year-old residential property (Lot A) on Salt Spring Island in BC chose not to complete the purchase on the closing date because of alleged latent defects.  The purchaser alleged that a dam or berm constructed on a neighbouring property encroached on Lot A and also caused Lot A to flood.  He took the position that the dam and the flooding were latent defects not discoverable on reasonable inspection and that the vendor of Lot A knew about the dam and earlier flooding and should have disclosed them to the purchaser.

The purchaser did discover the presence of the dam shortly before the closing date.  The vendor's efforts to satisfy him that the property had no flooding problems were unsuccesful.  So the transaction did not close and the vendor sued the purchaser for loss of value (Lot A was ultimately sold to another purchaser at a lower price) and other losses including loss of rent and interest.

The BC Supreme Court found that the vendor did not fail to disclose a latent defect (i.e. a propensity to flood).  As stated by the Court: "The doctrine of caveat emptor applies in real estate transactions with respect to defects that are discoverable on reasonable inspection.  A vendor does not have to disclose patent defects; rather, a vendor must only disclose latent defects."  On the evidence before it, the Court found that there was only one relevant flooding event and that was caused by vandalism combined with poorly maintained highway ditches - not by the dam encroachment.  This was not a latent defect known to the vendor.

Also, the sale contract provided for an inspection to confirm property boundaries, which would have revealed the actual boundaries and whether there were any encroachments (i.e. the dam).  However, the purchaser did not complete an inspection.  If there was an encroachment, the Court found that it could have been identified by reasonable observation (i.e. a patent defect).  Moreover, the encroachment that did exist was a minor one and in no way rendered the residential premises unfit for habitation.

The purchaser was bound to close the transaction and, as a result of his failure to do so, was found liable to pay damages including the decrease in the sale price obtained by the vendor and various carrying costs incurred when the property had to be offered for sale again.

Read the decision at: Ganges Kangro Properties Ltd. v. Shepard.

From the Environmental Registry: Updating the Schedule of Noxious Weeds in Ontario

Regulation Proposal Notice: Updating the Schedule of Noxious Weeds in R.R.O. 1990, Regulation 1096 - General made under the Weed Control Act, R.S.O. 1990, c. W-5.

Description of Regulation:

The Weed Control Act and Regulation 1096 prohibit listed noxious weeds from being grown where they have the potential to negatively affect agricultural land. The list in the regulation’s Schedule of Noxious Weeds is outdated. Proposed revisions include the removal of nine weeds that are no longer considered to be significant threats to agriculture or horticulture in Ontario and the addition of nine new weeds that are considered emerging threats to the agriculture industry within Ontario.

Purpose of Regulation:

The Schedule of Noxious Weeds in Regulation 1096 includes nine weed species that are no longer considered to be significant threats to agriculture or horticulture in Ontario. Designating some of these plant species as noxious weeds may be in conflict with conservation initiatives, most notably the restoration and conservation of habitat to support pollinator health. The nine plant species can be managed through modern management practices upon farmed land.

It is proposed that the following species currently listed in the Schedule of Noxious Weeds under R.R.O. 1990, Regulation 1096 be removed:

1. Colt’s-foot (Tussilago farfara L.)
2. Dodder spp. (Cuscuta spp.)
3. Johnson grass (Sorghum halepense (L.) Persoon)
4. Black-seeded proso millet (Panicum miliaceum L. (black-seeded biotype))
5. Yellow rocket (Barbarea spp.)
6. Cypress spurge (Euphorbia cyparissias L.)
7. Leafy spurge (Euphorbia esula L. (complex))
8. Russian thistle (Salsola pestifer Aven Nelson)
9. Tuberous vetchling (Lathyrus tuberosus L.)

Removing some of the above weed species from the Schedule of Noxious Weeds would demonstrate support for sustaining biodiversity in Ontario. Some species, such as Colt’s-foot and yellow rocket, are also known to attract pollinating insects, such as bees.

The Schedule of Noxious Weeds in Regulation 1096 has not been subject to a comprehensive update for many years. Nine weed species have been identified that are considered to be emerging threats to the agriculture industry in Ontario. Some of the species recommended for addition have previously caused large losses in crop revenues in other jurisdictions (e.g., kudzu) and are of growing concern to Ontario farmers.

It is proposed that the following weed species are added to the Schedule of Noxious Weeds:

1. Smooth bedstraw (Gallium mollugo (L.))
2. Wild chervil (Anthriscus sylvestris)
3. Common crupina (Crupina vulgaris Cass.)
4. Jointed goatgrass (Aegilops cylindrical Host)
5. Kudzu (Pueraria lobata)
6. Wild parsnip (Pastinaca sativa)
7. Serrated tussock (Nassella trichotoma)
8. Tansy ragwort (Senecio jacobeae)
9. Wolly cup grass (Eriochloa villosa (Thunb.) Kunth)
These proposed changes would support initiatives related to invasive alien species control, biodiversity, and the environment.

Public Consultation:

This proposal has been posted for a 33 day public review and comment period starting September 26, 2014. If you have any questions, or would like to submit your comments, please do so by October 29, 2014 to the individual listed under "Contact". Additionally, you may submit your comments on-line.
All comments received prior to October 29, 2014 will be considered as part of the decision-making process by the Ministry of Agriculture, Food and Rural Affairs if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 012-2634.
Please Note: All comments and submissions received will become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered by the decision maker for this proposal.

Contact:

All comments on this proposal must be directed to:

Mike Cowbrough
Weed Management Field Crops Program Lead
Ministry of Agriculture, Food and Rural Affairs
Economic Development Division
Agriculture Development Branch
Field Crops - University of Guelph Office
50 Stone Road East
Crop Science Building, University of Guelph
Guelph Ontario
N1G 2W1
Phone: (519) 824-4120 Ext. 52580

NEB decides that Trans Mountain - Burnaby dispute raises constitutional question

About a month ago, I posted about a fight going on before the National Energy Board between Trans Mountain Pipeline (Kinder Morgan) and the City of Burnaby with respect to property access for the proposed Trans Mountain Pipeline Expansion Project.  At that time, the NEB sided with Trans Mountain in rejecting a request by Burnaby for answers to constitutional questions including whether a company's right to survey under Section 73 of the National Energy Board Act (NEB Act) could displace a municipality's by-laws.  The NEB said that Trans Mountain had not made any application for an order requiring Burnaby to allow access to City lands. 

My guess a month ago was that Trans Mountain would have to bring an application for access, and it has.  Now the NEB says that the constitutional question must be answered and has ordered that Trans Mountain provide the Notice of a Constitutional Question to be served on the attorneys-general of Canada and the provinces and territories.  The decision can be accessed at: Ruling No. 32.

Although the NEB continues to maintain its interpretation of Section 73 (i.e. that companies have a right to enter upon lands and complete surveys and examinations), it explains why the Burnaby situation raises a constitutional question:

The Board accepts that it has the authority to consider constitutional questions as they relate to its enabling legislation, pursuant to section 12. The Board can refuse to apply provisions within its enabling legislation if the Board determines that those provisions are contrary to constitutional law. However, this is not the relief requested by Trans Mountain from the Board, nor has Burnaby argued in this instance that the provisions of the NEB Act are unconstitutional.

While the draft order proposed by Trans Mountain does not specifically request that the Board order Burnaby to stop enforcing its by-laws, it is clear from the above quote that this is the desired effect of such an order. This may require the Board to find, either directly or indirectly, that, on the facts before it, legislation or by-laws enacted by another level of government are inapplicable to Trans Mountain and that, consequently, that government should be forbidden by the Board to take any actions to enforce those laws. In the Board’s view, this clearly raises a constitutional question.

This is a case to keep your eyes on.  Should NEB-regulated pipeline companies have a right to run roughshod over pre-existing municipal by-laws?

BC Horse Farm case sent back to Farm Industry Review Board - original decision was unreasonable

In 2009, PH constructed a new barn on her farm property in Kelowna, BC to accommodate an equestrian business.  Her neighbours to the south brought a claim before the Farm Industry Review Board claiming that they were suffering from the effects of noise, lights, flies and odour from the farm.  In March, 2013, the Board found that a section of the horse farm and equestrian centre was not a normal farm practice - turning out horses within 15 metres of the southerly property line was deemed not a normal farm practice based on the City of Kelowna's zoning by-law and the Ministry of Agriculture's Farm Practice Review Guide.

 

The Board dismissed the noise and light complaints and determined that the farm's manure management practices were normal farm practice.  However, the Board accepted the complaint concerning the location of "livestock area B", which was not set back from the southerly property line.  The Board ordered that the area be shifted at least 15 metres from the boundary.

 

PH appealed and, on judicial review, the BC Supreme Court found that the Board's decision was unreasonable; the matter was remitted to the Board for a re-hearing.

 

The Court found that the Board, on the whole, failed to consider evidence pertaining to similar farm businesses in similar circumstances.  The Board's decision was not justified or transparent and reasonable because of that.  The Court wrote:

Although it is important to conduct an evaluative function that addresses the "good neighbour" principle, etc., the BC legislature chose clear and specific features of normal farm practices, including "accepted", "established", and "followed" practices.  This language is a clear and specific direction from the legislature that instructs the [Board] that it can supplement but not substitute certain evidence - e.g. provincial guidelines or the "good neighbour" principle - in place of evidence that demonstrates "proper and accepted customs and standards as established and followed by similar farm businesses under similar circumstances".  Indeed, the [normal farm practices legislation] circumscribes the evidence the [Board] must consider in making its final determination of normal farm practice.

and,

The legislature was clear when it defined the normal farm practice as a practice consistent with "proper and accepted customs and standards as established and followed by similar farm businesses under similar circumstances"; the [Board] was required to determine whether practices and by laws comport with those established practices.

Read the decision at: Holt v. Farm Industry Review Board.

Estate Trustees took wrong turns with family farm after mother's passing

In a recent application to pass accounts in an farm estate matter, the Court heard about how one of five children was able to purchase the family farm at a reduced rate.  Children H and J had been named estate trustees in their mother's will.  Child F farmed the mother's 98-acre farm.  The mother's will provided that the residue of the estate (comprising mainly the farm or the proceeds from the sale of the farm) would be divided into five equal shares for the five surviving children: H, J, F, N and K.  H and J obtained a valuation of the farm at $450,000 and then sold the farm to F for only $300,000.  K and N were not notified in advance about the sale of the farm.

Needless to say, K and N had concerns about the sale and retained legal counsel to pursue those concerns.  Child F and the estate trustees, H and J, resolved to implement remedial measures to address the concerns of K and N.  They did not reverse the sale, but agreed that F and his family would list the farm for sale through a professional real estate broker and transfer the proceeds of the sale into the estate.

The farm was then sold for $450,000 and the purchase funds were directed to the estate.  The estate then reimbursed F for the $300,000 he had paid earlier for the farm. 

H and J then applied to "pass their accounts" as estate trustees.  K and N objected to the accounts provided by H and J on a number of levels: they objected to the executor compensation to be paid to H and J; they objected to a proposed further payment to F for additional out-of-pocket expenses he incurred as a result of his original purchase of the farm; they submitted that H and J should be personally responsible (i.e. not the estate) for a number of expenses, including those resulting from the original sale of the farm to Child F; and they submitted that H and J should be personally responsible for all legal costs incurred.

Justice Leach found that H and J had clearly breached their fiduciary obligations as estate trustees.  These obligations include an obligation to obtain "fair market value" for assets that are being liquidated.  Justice Leach found that H and J "initially acted in complete disregard of their obligation to act for the benefit of the estate, and all of its beneficiaries, by not making efforts to liquidate its primary asset for fair market value" and, "no person of ordinary prudence, in managing his or her own affairs, would readily part wiht such a significant asset for such an inappropriately depressed price."

And the breach of fiduciary duty was compounded by also conferring "an effective gain on one estate beneficiary to the significant detriment of all other estate beneficiaries."

Justice Leach accepted a number of the objections of K and N.  He suggested that if H and J wished to compensate F for his out-of-pocket expenses, they could do so from their own shares of the estate.  Costs incurred that were not for the benefit of the estate were treated as damages and Justice Leach ordered those repaid to the estate by H and J.  H and J's executor compensation was also reduced from the $36,000 claimed to $15,000. 

Read the decision at: In the Estate of NB.

Ontario Court of Appeal orders new trial in careless use of rifle case with possible significance to farmers

The Ontario Court of Appeal has ordered a new trial in a careless use of firearms case that may have implications for farmers.  A resident of a rural area near St. Thomas, Ontario led a wandering dog across the road to another property and then fired a gun to scare the dog off.  Witnesses heard the shot and notified police; a charge was laid for careless use of a firearm.  At trial, the Court convicted the resident on the basis that the location of the shot, beside the road and in close proximity to neighbouring inhabited properties, was inherently dangerous, particularly given that the purpose of the shot was to scare the dog.  The conviction was upheld by the summary conviction appeal judge.

On further appeal, the Court of Appeal set aside the conviction, ruling that the trial judge and the summary conviction appeal judge both erred in concluding that firing a shot in the rural environment, whatever the manner in which the shot was fired, necessarily amounted to a careless use of the firearm.  Firing a shot in that manner did not necessarily amount to a marked departure from the conduct of a reasonable person (which is the test for a finding of careless use).  The Court noted that the generality of the findings of the trial judge could have a broader significance relating to permissible farm practices, and granted leave to appeal on this basis (before allowing the appeal outright).

The conviction could not be sustained because there was no finding by the Court as to the manner in which the rifle in question was used or as to the trajectory of the projectile.  The Court suggested that there may have been any number of ways in which the shot could have been fired that might have posed no risk to others.  This was a shot fired in a rural area, not a shot fired in a shopping mall where the shot would automatically be inherently dangerous.  A new trial was necessary.

Read the decision at: R. v. Batty.

It looks like Enbridge is back in Court today looking to extend its injunction against Line 9 protesters

I have recently written about Enbridge Pipelines Inc.'s efforts to obtain injunctions against Line 9 protesters (click here).  It looks as if Enbridge is back in Court in London today in what is likely a motion for an extension of the injunction already obtained against protesters a few weeks ago.  If you're interested in observing the motion proceeding, the court docket says it will be heard by Madam Justice Gorman at 2:30 p.m. in Courtroom 14 on the 7th Floor of the London Courthouse at 80 Dundas Street.

Court says Agricorp not bound by two-year limitation period in going after farmers for past overpayments

An Ontario court has ruled that AgriCorp, a provincial Crown corporation that delivers farm-related government programs (including crop insurance), is not bound by the standard two-year limitation period in its efforts to recoup overpayments made to farmers.  Beginning in 2012, Agricorp notified about 4,500 farmers that they had been overpaid and owed re-payments totalling more than $30 million.  As of January 3, 2014, over $19 million had been collected or would be collected based on re-payment agreements.

Justice Marc Labrosse found that AgriCorp, as an agent of the Crown, benefits from the exemption from the two-year limitation period at Section 16(1)(j)(i) of the Limitations Act, 2002.  A group of farmers affected by the AgriCorp clawback had applied to the Court for the opposite ruling to put off any effort by AgriCorp to commence court actions to recover unpaid funds.  The farmers argued in part that because payments were made by AgriCorp to farmers, and re-payments were payable to AgriCorp and not the Crown, the debt belongs to AgriCorp and not to the Crown.  Therefore, AgriCorp is not an agent of the Crown in the sense required by the Limitations Act, 2002.  Instead, the farmers argued that AgriCorp is more like a private corporation with "farmers serving farmers".

Read the decision at: Group of Ontario Farmers v. Agricorp.

City of Burnaby challenges NEB on access rights of companies for pre-approval project work - NEB sides with company

The National Energy Board (NEB) is considering an application by Trans Mountain Pipeline ULC (Kinder Morgan) to access lands owned by or within the authority of the City of Burnaby for preliminary work related to the proposed Trans Mountain Expansion Project.  The work includes land surveying and related studies that Trans Mountain wishes to conduct in anticipation of the eventual approval of its project.  In particuar, the work relates to a new proposed pipeline route that was not inclued in Trans Mountain's original application for approval to the NEB. 

Burnaby has so far delayed in deciding on Trans Mountain's request for access over outstanding concerns about environmental protection, environmental remediation, safety and inadequate notice to owners.  A number of properties affected are located in conservation areas under the authority of the City, and the activities that may be carried out on lands dedicated for park and recreation use are extremely limited.  In other words, the proposed access and use of the lands being sought by Trans Mountain are in conflict with municipal by-laws.

Trans Mountain applied for access under Section 73(a) of the NEB Act, which sets out that the powers of a "company" include the power to enter onto land "lying in the intended route of its pipeline, and make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline."  In past instances involving private landowners, the NEB has readily granted access to pipeline companies in spite of landowner objections and without the company having served a notice under Section 87 of the NEB Act.  Section 87 requires that a company serve a notice to landowners where the company requires their land for a pipeline.  The notice then provides protection to the landowner for any costs incurred in dealing with the proposed pipeline if the project is later withdrawn. 

Not surprisingly, the NEB has also ruled that the company can serve the Section 87 notice whenever it wants - there is no obligation on it to serve the notice prior to entering on lands pursuant to Section 83(a) even though the company obviously knows by that point that it "may require" the lands in question.

Burnaby challenged the NEB on Section 83(a) on a different basis.  First, Burnaby questioned whether a company may even apply for access under Section 83(a), arguing that the section does not provide for making such an application.  Second, Burnaby argued that Section 73 does not override provincial law or muncipal by-laws.  Burnaby submitted, "There is room for both the operation of Section 73(a) of the NEB Act and Burnaby's by-laws, if access to Burnaby lands is granted subject to Burnaby reviewing the Request and making a determination. Trans Mountain, for instance, would still be able to access the land to survey and examine, even if such access was subject to conditions imposed by Burnaby to protect the purpose for which the property was reserved [i.e. as park or conservation land], pursuant to its by-laws."

Burnaby also argued that Section 73(a) does not authorize the intentional disturbance of land as proposed by Trans Mountain, including the installation of infrastructure or facilities. 

A notice of constitutional question was filed with the NEB and the Attorneys General of Canada and the provinces and territories.  The specific issues raised were:

• Section 73(a) of the NEB Act does not empower the NEB to make orders that override provincial and municipal jurisdiction pursuant to Section 92(8) of the Constitution Act, 1867; and,
• In so far as Section 73(a) of the NEB Act purports to empower a company to enter land, Section 73(a) does not override municipal jurisdiction or by-laws enacted pursuant to the Community Charter, S.B.C. 2003, c. 26 and the Municipal Act, S.B.C. 1958, c. 32, as amended.  Further, or in the alternative, to the extent that they are able, Section 73(a) of the NEB Act and by-laws enacted pursuant to the Community Charter and the Municipal Act, as amended, must operate concurrently.

In a ruling made on August 19, the NEB rejected the submissions made by Burnaby.  The NEB ruled that, pursuant to Section 73(a), Trans Mountain has the power to enter into and on Burnaby land without Burnaby's agreement and Trans Mountain does not require a temporary access order for this purpose.  The NEB says that the Trans Mountain application was not one requesting temporary access; the NEB says the application was one only requesting confirmation of Trans Mountain's rights under the Act, which the NEB has now given.

On that basis, the NEB also found that the Notice of Constitutional Question was misdirected, saying that Trans Mountain did not apply for access.  The NEB added that it did not find that "co-operative federalism" should apply to or influence the powers of Trans Mountain under Section 73(a) of the NEB Act.

Since this decision was made, Burnaby's mayor has said that the City will continue to enforce its by-laws prohibiting access to Burnaby mountain.  We can speculate on what will happen if the City continues to hold out against Trans Mountain.  Trans Mountain would likely have to apply to the NEB for an access order (the application the NEB says Trans Mountain didn't already make).  Assuming the order would be granted, Burnaby could appeal the decision in court.  It would be helpful to have some judicial consideration of the NEB's interpretation of Section 83.  Individual landowners are generally in no position to fight this issue - the City of Burnaby may be in that position.

NS Supreme Court throws out spray drift case after Farm Practices Board rules farm practice was normal

The Supreme Court of Nova Scotia has dismissed a spray drift claim brought by landowners against a neighbouring farmer and his farm business.  The plaintiffs are organic farmers and alleged that, in 2007, the defendant farmer sprayed his lands with a herbicide that drifted onto their property causing various damage: significant health issues, crop damage, and miscarriages by four horses as a result of exposure to "overspray". 

In response to the claim, which was founded in negligence, the defendants relied on the provisions of the Farm Practices Act.  They stated that their farming activities were carried out in accordance with "normal farm practice" so that, under the legislation, they were protected from any civil action in "nuisance, negligence or otherwise, for any odour, noise, dust, vibration, light, smoke or other disturbance resulting from an agricultural operation."  Following a motion by the defendants, the civil action was stayed pending a determination by the Farm Practices Board of whether the activities in question constituted "normal farm practice".

The plaintiffs then made an application to the Board and a hearing took place in June, 2012.  In January, 2013, the Board ruled that the defendants had not acted in a manner inconsistent with "normal farm practice", and dismissed the plaintiffs' complaint.  That Board decision was appealed unsuccessfully by the plaintiffs.

With all of that completed, the plaintiffs returned to the Supreme Court of Nova Scotia to have the stay lifted so that they could proceed with their action for damages.  The defendants also asked for the stay to be lifted, but for the purpose of dismissing the claim.  The Court had to deal with the ruling by the Board that the activities in question, in particular the spraying, were "normal farm practice".  However, the Board decision was not automatically determinative of the civil action - the question for the Court was whether spray drift was "other disturbance" within the meaning of the Farm Practices Act.

If spray drift fell outside "other disturbance", then there would be no protection against a civil claim afforded by the Act.  Justice Murphy concluded on this point: "Absent contrary authority, I remain of the view that the activities the plaintiffs allege occurred, herbicidal overspray or drift and contaminated run-off from ditching, are "other disturbances" resulting from an agricultural operation as contemplated by section 10(1)(a) of the Act."  Therefore, the claims made by the plaintiffs were barred by the normal farm practices legislation and dismissed as such.

Read the decision at: Nauss v. Waalderbos.

Enbridge Gas Distribution ordered to pay back Metrolinx over $2.3 million in pipeline relocation costs

Enbridge Gas Distribution was recently ordered by the Superior Court of Justice to pay back to Metrolinx more than $2.3 million that Metrolinx had earlier paid Enbridge for pipeline relocation costs.  Metrolinx operates an urban rail transit service in the Greater Toronto Area and required the relocation and/or removal of certain parts of Enbridge's gas distribution system in the vicinity of the rail lines.  The question before the Court in this application was who should bear the costs of relocation and removal.  Metrolinx had paid the costs to Enbridge without prejudice to its right to go to Court to try to recoup them.

Metrolinx referred to crossing agreements that had been made between its predecessor, Canadian National Railway (CN), and Enbridge's predecessor, Consumers Gas, that provided that Enbridge would bear the cost of any relocation or removal.  For instance, a 1958 Agreement and a 1963 Agreement both provided:

Should it become necessary or expedient for the purposes of repair or improvement on the said railway that the said pipe crossing be temporarily removed or relocated the applicant [now Enbridge] shall upon request of the railway and at the sole cost and expense of the applicant forthwith remove or relocate the works.

Enbridge argued that the agreements were not assigned or transferred to Metrolinx and that the agreements related to federally-regulated activities.  Therefore, because Metrolinx was a provincial agency, it could not rely upon the agreements.

The Court disagreed.  It accepted the Metrolinx position that the rights that it claimed and the payment obligations of Enbridge were granted to CN by Consumers Gas as a matter of contract.  Justice Morgan explained:

... like all market transactions, they occurred within a particular regulatory environment, but that fact does not undermine the contractual nature of the rights and obligations in question.  Metrolinx' position accurately reflects the governing documentation and legal state of affairs between the parties.  It may well be the case that the Crossing Agreements were an outgrowth of federal regulations that prevailed at the time of their signing.  Nevertheless they are valid contracts, and remain so whether or not the relevant federal regulations continue to govern either of the parties. 

Read the decision at: Metrolinx v Enbridge Gas Distribution Inc.

Court grants injunction to Enbridge, but is concerned about the right of protesters to be heard

The Ontario Superior Court of Justice recently granted a temporary injunction prohibiting unauthorized persons from entering or occupying an Enbridge Pipelines Inc. valve installation site in Innerkip, Ontario, near Woodstock.  On August 5, 2014, 25 or so individuals had entered the Enbridge work site, occupied it and then refused to leave.  Enbridge brought an ex parte motion for orders requiring the protesters to leave.

The valve installation work is being required by the National Energy Board (NEB) as part of the Line 9 oil pipeline reversal project, and Enbridge alleged that the work is time-sensitive - there is no time to waste in getting the protesters off the site.  Enbridge's evidence provided: "A project of this magnitude involves the organization and deployment of extensive resources and expertise.  The timing and execution of the project cannot be dictated by persons who do not understand or respect Enbridge's safety and operational protocols.  Enbridge cannot proceed with the required and time-sensitive Valve Installation with Trespassers on the site."

In reviewing the motion (in which the only party present was Enbridge), Justice E.M. Morgan commented:

While property rights and economic interests are important in the Canadian legal system, so are rights of expression. I agree that the time, place, and manner of expression can be tempered by competing rights, see Committee for the Commonwealth of Canada v Canada, 1991 CanLII 119 (SCC), [1991] 1 SCR 139, and that generally “[p]ersons are free to engage in political protest of that public nature, but the law does not permit them to do so by engaging in civil disobedience through trespassing on the private property of others…” Canadian National Railway v Chippewa of Sarnia First Nation, 2012 ONSC 7348 (CanLII), 2012 ONSC 7348, at para 23. Nevertheless, there must be some reason other than the unilateral claim to property rights to deprive otherwise non-violent protesters the right to be heard.

 

Here there is an economic imperative to the timing of the motion, but there is no safety imperative that created the short timeline and that made notice of the Application impossible. The valve installation has a safety motivation as evidenced in the National Energy Board report, but that is a long term concern due to the upcoming changes in the oil flow, not an immediate one.

Justice Morgan questioned Enbridge about why it had not given notice of its motion to the protesters, given that there was not safety imperative involved.  Enbridge explained that it is faced with adversaries that are difficult to identify - a "shifting group of individuals".  In the end, Enbridge was granted its injunction to permit the expulsion of the protesters, but for a duration of only 10 days.  After 10 days, Enbridge would have to return to the Court either in London or in Woodstock (not in Toronto, where the original motion was heard) to extend the injuction on at least 3 days' notice to the protesters.

With respect to the right to be heard, Justice Morgan stated: "It is important that the protesters’ right to be heard be a realistic one, and that notice of a new hearing date either be disseminated before the protesters disband or be announced in a way that is likely to come to their attention. It is not the purpose of an ex parte injunction to stall the proceedings so that the Applicant’s opponents fade away without being heard in court."

Read the decision at: Enbridge Pipelines Inc. v. Jane Doe.

Is entering your property only once in 10 years enough to prevent a successful claim for adverse possession?

Justice E.M. Morgan's decision begins with this question: "Can a claimant have possessory title if the registered owner entered the property only once during the claimant's ten years of otherwise undisturbed adverse possession?".  Under Ontario law, the interest of the registered owner of land may be extinguished by a person who has been in adverse possession of the land for ten years.  The registered owner is then open to losing title to the property to the adverse possession claimant.

In this case, the land in dispute was a small triangle at the top end of a driveway between two properties.  The adverse possession claimant had a right of way over the driveway, but not over the small triangle.  The triangular area was used to facilitate the claimant's turning his car into his garage at the rear of his property.  The registered property owners asked the Court to make a declaration confirming their ownership of the triangle.  They also sought orders requiring their neighbour to remove fencing, interlocking brick and a gate that he had installed on the driveway (which they owned).  The claimant responded by asking the Court to declare him the owner of triangle by adverse possession.

Justice Morgan reviewed the evidence of adverse possession, which must constitute "strict proof".  In the past, a chain link fence had been erected to separate the triangle from the rest of the registered owners' property.  It was established that the fence was installed no later than March 31, 1988.  Owing to the conversion of the property to the Land Titles system in 2001, the claim for adverse possession would depend on establishing exclusive possession by the claimant (or his predecessors in title) of the triangle for an interrupted period of ten years between 1988 and 2001. 

What does it take to interrupt the exclusive possession?  In this case, a previous owner of the triangle deposed that on at least one occassion, in 1996, he entered the triangle to cut down some "swamp maple trees" located there.  That meant that the 10-year clock stopped and restarted in 1996, which did not leave enough time before 2001 to establish continuous adverse possession.  Therefore, Justice Morgan ruled that the registered owners retained their title to the triangular area on their property.

As for the encroaching fence, gate and interlocking brick, Justice Morgan again ruled in favour of the registered owners of the property: "The Applicants are showing their frustration, and are being somewhat difficult by insisting that the interlock be removed from their portion of the driveway.  Nevertheless, they are within their rights to so insist.  The Respondent is not permitted to alter the Applicant's property without consent even if the alteration is, objectively speaking, an improvement."

Read the decision at: Maras v. Milianis.

BC Court of Appeal says club can continue to fly model aircraft on farmland runway

A radio control club used an agricultural property to fly model aircraft.  The local municipality challenged this use as being outside the scope of permitted agricultural uses.  The club argued that its activites fell within a permissible secondary use - "unpaved airstrip and heli pad".  The municipality argued that all uses in the agricultural zone must be agricultural or complimentary to agriculture; the RC flying satisfied neither category.  A motions judge agreed with the municipality.

The case went to the BC Court of Appeal and the motions judge's decision was reversed.  The restriction of "farm" classification in the zoning by-law to activities directly associated with agriculture was unjustifiable.  The Court ruled that the "farm" classification allows complementary uses that are suitable in an agricultural setting, including activities not directly associated with farming but conducive to the setting.  These activities do not disrupt or change the essential agricultural character of the land.  Because the RC club's activities were of this class, they were permissible secondary uses of the farm land.

Read the decision at: Lake Country (District) v. Kelowna Ogopogo Radio Controllers Association.

Small Claims Court dismisses farmer's claim for triticale crop lost after lease expires

The Plaintiff in this case planted soybeans in 2010 on the 30 acres he rented from the Defendant.  After harvesting the soybeans that fall, the Plaintiff planted and fertilized a crop of triticale - a hybrid grain planted in the fall for harvest early the next summer.  However, by 2011 the Defendant had decided to lease his land to a new tenant who was willing to pay higher rent to grow Napa cabbage.  The Defendant authorized the new tenant to plough under the triticale crop.

Having lost the lease and his triticale crop, the Plaintiff sued the Defendant for $25,000 in damages, representing the loss of grain, straw, lost labour, seed and fertilizer.  The Plaintiff based his claim on two arguments: 1) he had a lease for the property for 2011; and, 2) in the alternative, the doctrine of emblements entitled him to harvest his triticale crop after the 2010 lease expired.  The Plaintiff also claimed that the Defendant was unjustly enriched by the ploughed under triticale.

The trial judge found that there was not a single instance in 2010 or 2011 in which the Defendant agreed to lease his land to the Plaintiff in 2011.  There was, therefore, no lease for 2011.  The judge then addressed the doctrine of emblements - "a right given by law to a person who has an estate of uncertain duration that unexpectedly comes to an end through no act or fault, to take growing crops which were sowed or planted".  In the case of a farm lease, a tenant may have a right to harvest or to care for crops where they were planted prior the unexpected termination of the lease. 

The right to emblements depends on "what is known or expected by the tenant at the time he sows his crops".  In this case, the trial judge added that the expectation of the tenant must also be reasonable.  He found that the Plaintiff, at the time he sowed the triticale in the fall of 2010, had only an expired or soon-to-be expired lease for 2010 and a hope that he would be able to outbid the competition for the land in 2011.  The trial judge determined that this was not a reasonable expectation and dismissed the action.

Read the decision at: Vieraitis v Fitzgerald.

Court orders berm removed, says landowner "appears to like to act first and seek required permission later"

The Regional Municipality of York (the "Region") went to court for an injunction requiring the removal of a berm that was installed by a local landowner.  The Region alleged that the berm, which was constructed in August, 2012 and measured approximately 3.5 metres high by 157 metres long, caused pooling in the ditches along neighbouring roads.  The berm cut off the flow of an intermittent watercourse that ran over the subject property from a culvert running beneath one of the roads into a wetland.

In 2012, the landowner applied retroactively to the local conservation authority for a permit to construct the berm.  The permit was not granted and the conservation authority issued a Notice of Violation with respect to the "unauthorized development, interference or alteration in or on a wetland setback".  The prosecution of that violation was the subject of a separate court proceeding.

The defendant landowner contended that there never was a watercourse on his property and denied that the berm was within a provincially significant wetland (PSW) or within the 120 metre PSW setback.  Also, the defendant claimed that the culvert from which the water was to flow was not operational before July, 2012 - he installed the berm only to deal with the new water flow created by work done on the culvert by the Region.  The Region denied this, saying that work done in July, 2012 was only to remove some sediment build up; the culvert had been in place for 35 years.

The Court rejected the evidence of the landowner and granted the injunction requested by the Region.  The Court found the landowner's evidence to be "unreliable": "I accept that his motives for building the berm may not be as altruistic as he wishes this court to see them.  As such, where [the landowner's] evidence and that of the Region conflict, I prefer the evidence of the Region."  The Court's decision also reads: "I find that [the landowner's] argument that the berm is not within the setback area to be disingenuous in the face of the evidence presented.  It appears that he does not like to be told what to do when it comes to his property.  He applied for permission to construct the berm only after he had already constructed it. ... [He] appears to like to act first and seek required permission later."

The injunction was granted based on the test applicable to the power to grant an injunction under the Municipal Act, 2001 where a by-law has been violated.  However, the Court would also have granted an injunction in this case on the basis of the berm constituting a public nuisance. 

Reading the Court's decision, one cannot help but conclude that this was the case of a rogue landowner cutting off an established watercourse to a wetland.  However, situations like these are not always so simple.  It is often the case that a wetland is created artificially through development of neighbouring properties - a road is installed or a residential subdivision is created with the result that drainage patterns are changed and a previously dry area becomes intermittently or permanently wet.  Local conservation authorities will take charge of the new wetland and prevent the affected landowner from remedying the drainage problem.

Landowners should be vigilant when it comes to drainage problems and the potential creation of wetlands on their properties.  It's one thing to want to create a new wetland - it is an entirely different thing to have the conservation authority tell you that you must have a wetland.  Drainage problems should be addressed sooner rather than later.

Read the decision at: Regional Municipality of York v. DiBlasi.

Court dismisses UST contamination claim where previous owners plead ignorance

The Ontario Superior Court of Justice granted summary judgment to the Defendants in a property contamination claim.  The Plaintiff in the case purchased a property and then discovered significant environmental contamination that it was forced to remediate.  The Defendants said they knew nothing of the contamination. 

The property deal was completed in June, 2001.  Over two years later, in September, 2003, the Ministry of the Environment (MOE) received a drinking water complaint about wells located near the property.  It was determined that gasoline had leaked from underground storage tanks (USTs) on the property, and the Plaintiff was ordered by the MOE to remediate the property at significant cost.

The Defendants denied any knowledge that the property contained USTs, and denied the existence of any facts from which they ought reasonably to have understood there to be USTs.  They also denied the existence of any environmental contamination of the property during their period of ownership (1991 to 2001).

This was a motion for summary judgment in which the Plaintiffs had to demonstrate that there were genuine issues requiring a trial - otherwise the action would be dismissed on a summary basis without a trial.  The Plaintiff suggested that there were a number of issues requiring trial: 1) whether the property was in compliance with all laws at the time it was sold (as required by the terms of the Agreement of Purchase and Sale); 2) the state of the Defendants' knowledge about the USTs and any leaks; 3) the strict liability regime imposed by Section 99 of the Environmental Protection Act; and, 4) the effect of spoliation of evidence, given that the Defendants had destroyed business records.

The Court considered these issues and concluded: 1) there is no evidence that the property was not in compliance with environmental laws at the date of sale - there was no evidence to show that the contamination pre-dated the sale of the property (no expert report was provided); 2) there was virtually no evidence on which a finding could be made that the Defendants knew about the USTs when the property was sold; 3) Section 99 of the EPA could not be relied upon since there was evidence to show, even on a balance of probabilities, that the Defendants had ownership or control of the pollutant immediately before the first discharge (which is a prerequisite to liability under that section of the Act); and, 4) the Plaintiff failed to satisfy the Court that the business records destroyed would be of relevance to the claim.

Read the decision at: Gagnon & Associates Inc. v. Genier et. al.

Enbridge wants land to build replacement pipeline; Landowner refuses because no construction agreement in place; NEB gives Enbridge right to use land; Enbridge makes a huge mess; NEB issues stop work order - Why was Right of Entry granted in the first place?

The National Energy Board (NEB) has recently issued a stop work and compliance order to Enbridge Pipelines Inc. in connection with Enbridge's Line 3 Replacement project on a Manitoba farm property.  The Line 3 project is similar to the Line 6 replacements that took place in Michigan following the Marshall, MI rupture a few years ago - Enbridge leaves a rotting pipeline in place and takes more land to build a new line nearby. 

In this case, Enbridge was not able to obtain the land it needed from the landowner by agreement.  Enbridge then turned to the NEB for the right to take the land it needed for its new pipeline.  In fact, Enbridge appears to have made 25 applications for right of entry to the NEB, all of which were granted in spite of objections by many affected landowners.  The bases for the landowner objections included the fact that Enbridge had failed to negotiate a construction agreement with the landowners that would protect the integrity of the lands affected by the project.

The result?  A complete mess has been made of at least one of the properties involved in the project and it remains to be seen whether the NEB's order will make any difference for future projects.  Will the NEB rethink its relationship with companies like Enbridge?  Will the NEB be as quick to grant land rights to pipeline companies where they have failed to agree on environmental protection measures with landowners? 

Dead lawn points to neighbour's herbicides, but standard of proof not met

The Plaintiff in a Saskatchewan small claims suit alleged that the Defendant applied a substance in the back alley next to his property that caused damage to the Plaintiff's lawn.  The judge hearing the case was satisfied on a balance of probabilities that a substance from the back alley did migrate to the Plaintiff's lawn, either through run-off or leaching, and killed it.  This finding was supported by viva voce testimony, an investigation report, and photographs.  However, the judge was not satisfied on a balance of probabilities that the Defendant had anything to do with putting the substance into the back alley or that the substance came from the Defendant's property.

Of course, the judge accepted that the Plaintiff's suspicions about the Defendant's involvement were not unwarranted.  The Defendant was employed by a crop production services company and the Plaintiff's wife had seen the Defendant dump liquid in the back alley.  The Defendant told the Plaintiff that he has used glyphosate and Ally, and may have "mixed one a little strong".  The Defendant's yard is directly across the back alley from the Plaintiff's yard, and the alley slopes from the Defendant's yard to the Plaintiff's yard.  And there was no plant kill in any other yard in the area.

In spite of this circumstantial evidence, the judge did not find for the Plaintiff.  There was no evidence of what substance had actually killed the Plaintiff's lawn, and no samples had been taken from the back alley to test for chemicals in that area.  The Plaintiff suggested that the cost of testing for numerous substances until the correct one was found would be prohibitive, but it appears to have left the Plaintiff without the evidence necessary to prove the claim.

The Court dismissed the Plaintiff's claim, but (perhaps tellingly) made no order as to costs. 

Read the decision at: Charbonneau v Statchuk.

Combine repair dispute goes to the Ontario Agri Appeal Tribunal

In Ontario, the Farm Implements Act provides for the investigation and mediation of disputes related to the sale of farm equipment; where mediation fails, the dispute can be put to the Agriculture, Food and Rural Affairs Appeal Tribunal for a hearing.  Recently, the Tribunal ruled on a warranty claim involving a used 2008 Lexion 570R combine.  HF purchased the combine from EFE.  The original owner of the combine had purchased it from DP, and HF went back to DP for the service and repair of the combine.

In October of 2011, problems arose with the hydraulic pump and motor, and HF hired DP to fix the problems.  Over the next year and a half, the problems would be repaired and then reappear - each time DP would fix the problems and HF would pay for repairs.  However, following a final repair in late 2012, HF refused to pay the $25,698.10 invoice rendered by DP.  HF claimed that the repair was under warranty.  HF asked the Tribunal to absolve HF of its responsibility to pay the final invoice, and to require DP to pay various costs (including a $25,000 loss allegedly incurred when the combine was re-sold).

Section 16 of the Farm Implements Act provides for an implied warranty as to the quality of repair parts.  If a new repair part is purchased from an authorized dealer and is supplied by the same distributor who supplied the farm implement for which the part is intended, then there is an implied warranty that the repair part will be free from defects in material or work for a period of 90 days from purchase or, if purchased out of season of use, 90 days from the date it is first used by the purchaser in the next season of use.  It is also possible for the distributor or dealer to give a longer warranty.

In this case, DP was an authorized dealer and was the distributor who had first sold the combine to the original owner.  Further, DP had given a contractual warranty for 6 months, double the implied statutory warranty.  In spite of DP's argument to the contrary, the Tribunal determined that the warranty given covered both parts and labour (since a warranty for parts only would be no warranty at all - the parts themselves were already covered by a warranty from DP's supplier), and applied to the last repair in late 2012.

On this basis, the Tribunal ruled that HF would not have to pay for the final repair costs and that DP would have to reimburse HF for the costs it incurred after the fact in fixing the machine.  However, the Tribunal did not award damages related to machine downtime costs and trading loss to HF, finding that there was insufficient evidence concerning these claims.

Read the decision at: Holtrop Farms v. Delta Power Equipment.