Unloading in the evening

Unloading in the evening

Tuesday, March 25, 2014

Alberta Court interprets a farmer's "poorly-drafted" will

In this case, B owned and operated a large farm that included 33 quarter sections of land and about 600 cattle.  He had a will and died.  And although he remained married to his wife, D, at his death, he had been living with G for more than 20 years.  The issue in the case was whether a specific bequest of $700,000 in favour of G should be paid only if the specific farm lands in which she was given a life interest were sold, and then only from the proceeds of the sale of those lands.  The alternative was that the bequest was conditional on the sale of other lands that formed part of the residue of the estate. 

In a certain paragraph of his will, B specifically bequested to pay and transfer the amount of $700,000 to G "immediately if the farm lands are sold or at the time of sale if the farm land sells at a later date."  The term "farm lands" is not defined, giving rise to the issues in this case. 

Based on a reading of the entire will as a whole, and in light of the circumstances of the making of the will, the Court ruled that G's interpretation was to be preferred.  An order was made requiring that the will be interpreted as thought it read that the $700,000 was payable immediately when the residue lands were sold or at the time of sale if the residue lands are sold at a later date.  In other words, the lands in which G held a life interest did not have to be sold for G to receive the $700,000 - G did not have to abandon her life interest in order to get the bequest payment.

Read the decision at: Bruce Estate (Re).

Wednesday, March 19, 2014

Lack of an "honest belief": BC Court orders neighbours to remove encroaching barn and shed

One neighbour (G) has a barn and a shed that protrude onto another neighbour's (N's) property.  The barn is used for stabling horses and the shed is used for storage and has an attached chicken coop.  The situation ended up in BC Supreme Court where N proposed two options: 1) shared use of the barn and the shed; or, failing that, 2) an order for removal of the encroaching structures within 6 months.  According to the Court, each neighbour accused the other of being unreasonable and uncompromising about the encroachments.

G sought an order that there is an easement permitting the encroachments.  Although G knew about the encroachment before purchasing the property, G suggested that reliance had been placed on the representations made by the previous owner of N's property when G dealt with the barn and shed (choosing to maintain and improve the buildings, rather than remove them).   The Court ruled that G would not obtain an easement, largely on the basis that G did not have an "honest belief" about having the easement in the first place:
G purchased their property knowing specifically that the barn and shed and surrounding land encroached on their neighbour’s property. They now seek to obtain by court order what they did not bargain for in the first place. In essence, the G position is that the simplest and easiest solution from their point of view is for the court to grant them an easement over the N property or to allow them to buy the encroaching area, for modest compensation.
The Court ordered that the barn and shed encroachments, including buildings and fencing, be removed from N's property within 9 months.  The Court declined to order that half of the cost of doing so be borne by N, finding no reason to do so. 

Read the decision at: Gueldner v. Nichele.

Tuesday, March 18, 2014

Nova Scotia Court of Appeal denies costs to landowner on failed expropriation challenge

A landowner in Nova Scotia challenged the validity of the expropriation of his land.  The challenge was unsuccessful and the landowner was ordered by the NS Supreme Court to pay costs of the challenge to the expropriating authority.  The Court disagreed with the landowner that the costs should be decided under the Expropriation Act as costs related to asserting a claim for compensation (in which case there is no provision for the landowner to pay the expropriating authority costs, and it may be that the landowner would be entitled to costs when compensation is decided).  The landowner appealed the decision on costs to the Nova Scotia Court of Appeal.

The Court of Appeal ruled that there is a distinction between compensation proceedings under expropriation legislation and court proceedings to challenge the validity of the expropriation itself.  Having determined that the Supreme Court judge was not wrong to have applied the normal costs rules under the Civil Procedure Rules, the Court of Appeal upheld the lower court decision. 

Read the decision at: Higgins v. Nova Scotia (Attorney General).

Friday, March 14, 2014

Michael Schmidt loses unpasteurized milk appeal

The Ontario Court of Appeal has dismissed the appeal by Michael Schmidt of convictions on thirteen counts under the Milk Act and the Health Protection and Promotion Act (HPPA) related to the production, sale and distribution of unpasteurized milk and cheese.  Schmidt had tried to comply with the HPPA by creating a cow-share program where members purchased shares in milk cows (so that there was no real sale of unpasteurized milk produced by the cows).  The cow-share agreements were oral in nature, and there was no evidence that the name of the cow in which a member had a share was ever communicated to the member.  There was also no evidence that the agreements formally transferred ownership in the cow from Schmidt to the member.

At trial, Schmidt was acquitted of the charges on the basis that the private cow-share scheme was not caught by the legislation.  On appeal by the Crown to the Ontario Court of Justice, most of the acquittals were reversed, giving rise to Schmidt's appeal to the Court of Appeal for Ontario.  The Court of Appeal dismissed Schmidt's appeal.  With respect to the legislation banning the sale and distribution of unpasteurized milk, the Court wrote: "provided that the legislature has acted within the limits imposed by the constitution, the legislature’s decision to ban the sale and distribution of unpasteurized milk to protect and promote public health in Ontario is one that must be respected by this court."

The Court rejected Schmidt's contention that the cow-share scheme did not fall within the definitions of sale and distribution.  In the Court's view, "the cow-share arrangement is nothing more than a marketing and distribution scheme that is offered to the public at large by the appellant."  The Court also rejected arguments that the ban on the sale and distribution of unpasteurized milk in this case violated the Charter rights of the cow-share members.  The Court ruled that the ban did not constitute an infringement of the members' security of the person and did not infringe on the right of liberty.  As the Court stated, "lifestyle choices as to food or substances to be consumed do not attract Charter protection". 

Read the decision at: R. v. Schmidt.