CBC Radio Day 6 - Interview with CAEPLA CEO & Director, Dave Core

Coming on the heels of the Federal cabinet's decision to approve the Enbridge Northern Gateway project, CBC Day 6's Brent Bambury interviewed Dave Core, the CEO and Director of CAEPLA (Canadian Association of Energy and Pipeline Landowner Associations).  Listen to Core explain what happens when the land agent comes knocking at: What the pipeline decision could mean for private landowners.

Unauthorized fill on properties found to violate zoning and site-alteration by-laws

The Township of Uxbridge went to Court over unauthorized site alterations and contraventions of the zoning by-law concerning property use.  In one case, the alleged alterations had left half of the property unsuitable for agricultural purposes, with that land now being used to store vehicles, equipment and debris from an excavation and haulage business.  In the other case, the allegation was that fill was illegally deposited on a former farm field, converting the field into an "industrial soil screening and mixing operation".  The same respondents were connected to both properties.

The zoning for the properties was "Rural", which allowed for non-residential uses such as "conservation, forestry and reforestation" and "a farm or nursery farm and greenhouse associated therewith".  The evidence of the owner of the properties was that the first property was being used only for residential use and that the second property was being used for a "farm or nursery farm and greenhouse associated therewith".  The Court disagreed, finding that the uses of both properties fell outside of the permitted uses under the zoning by-law.  Storage of landscaping materials and equipment was not permitted as farming or nursery farming.  The Court also rejected the argument that the use of each property should be permitted as a "legal non-conforming use".

On the issue of illegal site alterations, the Court dismissed the Township's application with respect to the first property because it had insufficient evidence to show that any by-law was breached.  With respect to the second property, the Court found that the Township had proven that more than 1,000 cubic metres of soil products were stored on the property in breach of the site alteration by-law.  The Court commented on the evidence:

"However, I do not accept that this is the extent of the soil material on the [G] property.  It is suspicious, to say the least, that [T] first indicated that he was unsure how much soil had been brought onto the property and placed in the "illegally filled area".  He then indicated that it was 240 truckloads, and only after hearing that an amount in excess of 1,000 cubic metres would require Council's approval of the permit, did he revise his application to indicate 880 cubic metres."

Based on its rulings on the zoning by-law infractions and the illegal site alteration, the Court made several injunctive orders restraining the respondents from continuing their illegal uses of the properties.

Read the decision at: The Corporation of the Township of Uxbridge v. Talbot.

First Nation granted leave to appeal NEB's Enbridge Line 9B Reversal approval

The Chippewas of the Thames First Nation (COTTFN) has been granted leave to appeal the NEB's approval of the Enbridge Line 9B Reversal and Line 9 Capacity Expansion Project.  The COTTFN had to apply to the Federal Court of Appeal for leave as the first step in its challenge to the NEB decision on the basis that the Federal Crown failed to consult with it over the project.  COTTFN disputes that its participation in the NEB process or public consultation by Enbridge constitutes proper consultation by the Crown.  Read COTTFN's press release on the leave to appeal decision at: FEDERAL COURT OF APPEAL GRANTS CHIPPEWAS LEAVE.

The outcome of the appeal is obviously up in the air, but it is promising to see that COTTFN's arguments about Crown consultation will be heard by the Courts.  Similar arguments were raised by First Nations in the initial Line 9A reversal application hearing, but no appeals were taken from the NEB's approval of that project.  Without an appeal to the Courts, the NEB is left to make the only decisions about whether its own "consultation" process with First Nations fulfills the Crown's obligations.  A conflict of interest? 

Depending on the outcome of the appeal before the Federal Court of Appeal, this may be the kind of case that will go to the Supreme Court of Canada.

Auction sale error - John Deere 4640 goes for $1,800 - Court fixes mistake

The Provincial Court of Saskatchewan has granted judgment to an auctioneer to correct a 10x mistake in the price paid for a John Deere 4640 tractor at auction.  Evidence from attendees at farm auction testified that the winning bid for the tractor was $18,000, but the successful bidder paid only $1,800 to the auctioneer.  The clerk for the auctioneer had made a clerical error and listed $1,800 on the invoice issued to the successful bidder, who provided payment in that amount and took possession of the tractor. 

Although the successful bidder was contacted by the farm owners about the mistake, he refused to pay the difference between the $18,000 bid and the $1,800 had had already paid.  At trial, the successful bidder called no evidence, but did cross-examine the witnesses from the auctioneer "in an apparent effort to challenge their credibility".  During his testimony, the auctioneer explained that he had paid out the $18,000 to the farm owners after the mistake made by his clerk was discovered.

The Court found that there was a clerical error made, the purchase price of the tractor was actually $18,000, and the successful bidder "seized on the mistake, to obtain a benefit he knew or ought to have known that he was not entitled in law to have."

Read the decision at: Ukrainetz (Ukrainetz Auctioneering) v Borowski.

Gas supply easement binds any severed parcels

The Alberta Court of Appeal rejected an application for leave to appeal from a decision that found that a gas supply easement continued to apply after a lot was severed into three parts (creating two new lots).  The owners of the original parcel applied to the Alberta Utilities Commission for an order directing the Evergreen Gas Co-op to discharge its easement from the newly subdivided lots.  The Commission refused, and the owners sought leave to appeal the decision to the Court of Appeal.

The Court of Appeal confirmed that the easement, which was a general easement that applied to the entire original property (rather than a limited easement or ROW over a particular portion of the property), would continue to apply to any subdivided parts of the property.  The Court rejected the argument by the owners that the imposition of the easement on the new parcels was nevertheless "improper" within the meaning of the Gas Distribution Act.  The Court also rejected the argument that the easement "agreement" (the easement was created when the owners agreed to receive gas service from the Co-op, the terms of the contract being statutorily set) was "unconscionable" - how could the contract be unconscionable when the owners had applied for gas service and the terms of the contract were imposed by statute?

Read the decision at: Andre v Evergreen Gas Co-op Ltd.

Is there a special duty for an insurer who insures both sides in a spray drift case?

The fact scenario in this case is somewhat complicated.  In the end, the case is about an insurance company that found itself on both ends of a spray drift claim.  The Plaintiffs farm land adjacent to the land farmed by the Defendants.  The Plaintiffs claimed that the Defendants sprayed a herbicide on their land that drifted to the Plaintiffs' land and caused crop damage and subsequent financial loss. 

The Defendants had insurance coverage for that type of loss and turned the claim over to their insurer, SMI, to be dealt with.  There were negotiations, but the claim was not settled. 

Then the Plaintiffs filed an amended claim adding SMI as a second defendant.  As it happened, SMI was also the insurer of the Plaintiffs.  Although the Plaintiffs' policy with SMI did not cover the crop damage loss they sustained, the Plaintiffs pleaded that SMI was duty bound to pay out their claim through the Defendants' insurance.  SMI owed a duty of good faith and fair dealing to the Plaintiffs, they alleged, and so SMI had acted in bad faith in failing to settle the Plaintiffs' claim through the Defendants' insurance.

The judge of the Saskatchewan Court of Queen's Bench hearing the case determined that the Plaintiffs' claim against SMI had no reasonable chance of success or arguable case.  The judge wrote, "To impose a duty on the insurance company to act fairly in resolving the claim would put its insured's [i.e. the Defendants'] financial position at risk.  The insurer's primary obligation arises from its contractual obligations to its insured under the policy being claimed on and not to a third party who may be insured in circumstances unrelated to the action." [emphasis added]

On that basis, the Court did not permit the Plaintiffs' to amend their claim to include SMI as a defendant.

Read the decision at: Sweet v Sweet.

Do Wind Energy Projects harm the soil? Do pipelines?

On an appeal of a Renewable Energy Approval (REA) for a 49-turbine wind farm, the Environmental Review Tribunal (ERT) considered whether the project would cause harm to soils.  The appellants in the case raised issues including harm to farm animals due to electro-magnetic fields and harm to farming practices.  Lay evidence and expert evidence was called on the issue of harm to soils, including evidence relating to the effect of pipeline projects on farm land and production.

The appellants argued that the soils to be affected by the installation of the wind turbines were unique soils particularly suited to potato farming.  Those soils would be permanently affected by the project, which would result in serious and irreversible harm to land (while other poorer lands were available to accommodate the project). 

The project proponent argued the opposite, putting forward evidence that the soils in question were not the only soils in Ontario well-suited to potato production and that soil restoration would be possible following the project.  The proponent's expert witness, Dr. Gregory Wall, suggested that the soil modification required for a wind turbine is not as drastic as for a pipeline, and testified that farmers, and pipeline companies, have been successfully remediating compacted soil for many years.  He said that on a recent pipeline project, he "expects these lands to return to original crop production levels within ten years," and says, "it is my understanding that landowners affected by pipeline construction are often compensated on this basis."  Dr. Wall also testified that with "major changes" in mitigation techniques, lands affected by pipeline projects are now experiencing "full yields" approximately two-years post-construction.

While Dr. Wall was qualified by the ERT as an expert in "soil science"; it's not clear that he was qualified to provide any opinion on compensation for crop loss (and whether that compensation is adequate).  One might also question the large discrepancy in his evidence about the time it takes to return farm land to full production following a pipeline project. 

The ERT found the amount of land to be affected by the proposed wind project to be relatively small in size, so that a relatively small amount of soil would be disturbed.  The ERT then found that the "amount of soil to be disturbed in order to construct and operate the Project is consistent with the scale of disturbance for roads, farm buildings and other facilities required in the normal use of agricultural lands."  However, the ERT noted that in a different project, it could be that a relatively small disturbance could be considered serious.

The ERT also accepted that the mitigation measures, if applied as described by expert witnesses for the parties responding to the appeals, will be successful in restoring the soils to productive agricultural use and are appropriate to the scale of soil disturbance that will result from the project.  Therefore, the appellants failed to establish that the project would cause serious and irreversible harm to soils.

Read the decision at: Bovaird v. MOE.

Enbridge pipelines drive up farm drainage costs

A recent case before the Agriculture, Food and Rural Affairs Appeal Tribunal dealt with a municipal drain affected by three Enbridge pipelines that cross it.  Both the main drain and Branch "A" tiles from the drain cross three Enbridge pipelines (Line 7, Line 8 and Line 9) through manholes that function as siphons.  Siphons are often the only solution (sometimes effective and sometimes not) for the installation and maintenance of tile drains when a pipeline company decides to build through the drainage area. 

The drainage engineer in this situation noted that the siphon reduced capacity in the tiles across the pipelines.  New tiles were to be installed as part of the project under review by the Tribunal; the engineer found that crossing the pipelines at the existing locations would not be feasible without siphons, but that it would be possible to cross underneath the pipelines in higher ground at the "centre location". 

The appeal before the Tribunal dealt with the assessment costs to various landowners.  The engineer had applied a modified "Todgham Method" to calculate the assessments.  He calculated the assessments on the basis of a "natural route" which would have been the assessments if the drains did not have to cross the Enbridge ROW.  He then did a second assessment for the "revised route" based on the presence of the Enbridge ROW and the additional cost to traverse it.  The "natural route" assessment was then modified in conjunction with the "revised route" assessment.

The Tribunal accepted the appeal of one landowner and reduced that landowner's assessment.  The Tribunal found that, in determining the benefit derived by the proposed drainage works to that landowner, it would have been more appropriate for the engineer simply to have made new calculations for the "revised route" rather than modifying the "natural route" calculations (which would not apply because the "revised route" was being used). 

Read the decision at: Re Wakem-Weir Drain.