Ontario Divisional Court rules conservation authority was wrong to apply general prohibition on development

The Gs purchased land in 2008 with a view to building a home.  Their lot, along with neighbouring 10 acre lots on which homes had already been constructed, was originally subdivided in the 1960s.  Although there was a shed, a garden and a driveway on their lot, no house had yet been built on the Gs' lot.

Long after the subdivision of the lots in the 1960s, the Gs' land was designated as a part of an environmentally protected area.  The reason for the designation was the small drainage ditch that crossed their land behind the area where they proposed to build a house.  That drainage ditch proceeds through the Gs' neighbour's land (where a house had already been built), through a culvert under a public road, and eventually to a creek that is a branch of the Nottawasaga River, the watershed of which is subject to the jurisdiction of the Nottawasaga Valley Conservation Authority (the "NVCA").

The NVCA refused to grant permission to the Gs to build their house on the fringe of a potential floodplain regulated by the NVCA.  The Gs made an application for permission to build in 2009, and provided extensive evidence establishing the lack of any adverse impact of their proposed building on flood control.  Notwithstanding this evidence, the NVCA turned down the Gs' application.  The Gs then appealed to the Deputy Mining and Lands Commissioner (the "Tribunal").  The Tribunal turned down the appeal.  The Gs then appealed to the Divisional Court.

The Divisional Court found that the CA and the Tribunal had misconstrued the law as providing for a prohibition on development within the CA's area of jurisdiction.  The Court noted: "In the present case, the public interest which the NVCA was authorized to supervise was that of flood control - this limited but important jurisdiction was not intended to be wielded to assert wider jurisdictional authority than the Legislator had conferred and it certainly does not provide a general prohibition against development."

The Divisional Court allowed the Gs appeal and directed the approval of the proposed development without conditions and without a rehearing of the application:

"Subsection 3(1) of Ont. Reg. 172/06 (hereafter the “NVCA Regulation”) required the Tribunal to assess whether the proposed development would affect flood control and several other factors.  Instead, the Tribunal interpreted the law to impose a general policy prohibiting development subject only to an exceptional discretion, and the Tribunal placed a heavy if not impossible onus on the Gs to justify an exceptional departure from the general prohibition.  In so doing, the Tribunal made the same error of law that this court corrected in the case of 3437400 Canada Inc. v. Niagara Peninsula Conservation Authority, (2012), 354 D.L.R. (4^th) 756 (Ont. Div. Ct.). Properly interpreted, the NVCA Regulation does not prohibit development in designated areas; it only prohibits developments that are found to affect flood control or one of the other listed criteria (none of which were engaged in the immediate case). 

"The Tribunal (and the NVCA) incorporated within its analysis of flood control a concern for safety should there be a flood at the property, but on the evidence, the proposed development will not have any effect on flood control as such, and the evidence revealed only a very low risk to safety, even in the event of a hypothetical extreme flood of rare severity.  The Gs’ application ought to have been approved based on the uncontradicted evidence before the Tribunal, and this court has the appellate jurisdiction to grant an unconditional approval.  The Gs have other regulatory hurdles to cross before they can get final approval to complete their home.  Neither the interests of justice nor efficiency and economy of proceedings would justify requiring them to proceed through a third hearing on this matter six years after they commenced the application process." 

Read the decision at: Gilmor et al. v Nottawasaga Valley and The Township of Amaranth.

Merry Christmas!

Hard to believe - December 25th, the grass is green, the wheat is green, and it's 8 C and sunny.  Have a very Merry Christmas!

COTTFN files for leave to appeal to the Supreme Court in Enbridge Line 9B case

In October, I posted about the Federal Court of Appeal decision to deny an appeal by the Chippewas of the Thames First Nation ("COTTFN") from the decision of the National Energy Board ("NEB") approving the Enbridge Line 9B Reversal and Line 9 Capacity Expansion Project application.  COTTFN has now filed an application for leave to appeal the Federal Court of Appeal's decision to the Supreme Court of Canada.  Given that there was a dissenting opinion from one of the FCA judges and that the subject matter of the appeal concerns the role of administrative tribunals in relation to the Crown's duty to consult with and accommodate First Nations, there would seem to be a good chance that leave will be granted.

When the Drainage Act and Conservation Authorities Clash

In a case decided in September, 2015, the Agriculture, Food and Rural Affairs Appeal Tribunal examined the interplay between the Drainage Act and conservation authorities in Ontario.  The matter involved a farmer who wanted to drain cleared, cultivated agricultural land through a low, wet bush and a cattle-tramped low run that happened to contain 28 minnows.  The farmer initiated a process under the Drainage Act, and was then assessed a bill of nearly $50,000 for an "environmental impact study" that was allegedly required for a permit from the local conservation authority ("CA").

Under the Drainage Act, a conservation authority or government may request an "environmental appraisal" for a new drain, but the party making the request is responsible for the cost.  In this case, the farmer did not request the "environmental impact study" and did not apply for any permits from the CA.  However, as the Tribunal noted, "the CA took over jurisdiction, admittedly ignorant of certain parts of the Drainage Act.  The CA prosecuted its own CA mandate over the farmer and his drain request with great earnestness, if not zealously."

In the hearing of the farmer's appeal of the assessed cost, the CA argued essentially that the Tribunal had no jurisdiction over it.  The CA candidly pleaded its ignorance of the drainage laws and, furthermore, that the CA's statutes are more recent and consequently take precedence.  Lastly, the CA argued that its work related to an "environmental impact study" and not an "environmental appraisal".

The Tribunal found that it did not have jurisdiction over the CA in this case.  It also found that the Municipality involved (which sought to put the cost of the "environmental impact study" on the landowner) should bear the cost of the environmental study.

In examining the jurisdiction issue, the Tribunal noted that the CA had notice of the Drainage Act process initiated by the farmer, but waited more than a year later to demand an "environmental impact study" under its own legislative regime.  The CA did not request an "environmental appraisal" under the Drainage Act.  The tribunal concluded the following:

What the Tribunal has ascertained under law (rather than equity) is that there are 2 parallel regulatory schemes.  Neither is inconsistent with the other.  Technically phrased: obedience to one does not necessitate disobedience to the other.  The CA has the right to request an environmental appraisal under the Drainage Act or its own regulatory scheme.  There is no overt or even nuanced conflict between the regulatory regimes.  Even though the CA dithered regarding the petition process under the Drainage Act, it could still invoke the processes under the Conservation Authorities Act.

 The tribunal is acutely aware that this interpretation allows the CA to potentially circumvent or thwart the Drainage Act processes.  It makes the petition process, especially section 6 moot.  That means the CA can avoid the intrinsic balance of costs and demands legislatively fixed in the Drainage Act with over a century of experience.  Then again the Tribunal expects that the knowledge of this decision will become wide spread amongst the drainage and conservation communities.  Ignorance and indifference can no longer be pled.  Perhaps as is the case with maintenance of drains, the drainage and conservation communities can establish policies that are respectful of both mandates.

Having no jurisdiction over the CA, the Tribunal then decided the issue of responsibility for the cost of the environmental report between the farmer and the municipality.  The Tribunal ordered that the municipality bear the full cost of the report, finding that the excessive cost could have been avoided if the municipality had properly facilitated the drainage proposal.

There was a dissenting opinion from one of the members of Tribunal.  That member would have found that the Tribunal did have jurisdiction over the CA and would have ordered the full cost of the report to be borne by the CA.

Read the decision at: Darmar-Tamlin Municipal Drain (RE).

Another Organized Pseudolegal Commercial Argument (OPCA) Case in Alberta

An Alberta man ("ACG") challenging the court process initiated by the company that holds a second mortgage on his property has been labelled an "OPCA" litigant for relying on "organized pseudolegal commercial arguments".  Although he admitted that he had stopped making payments on the second mortgage, ACG claimed that the terms of the mortgage were unfair and predatory, that there was lack of disclosure, that he was not aware of the terms of the mortgage when it was signed (constituting fraud), that the mortgage was unsupported by valuable consideration, etc.  He also made "advanced stereotypic and well known OPCA arguments and motifs, such as the double/split person "Strawman"."

The "Strawman" double/split person concept is used to attempt to avoid legal obligations through "the notice of treating a named individual as an "estate" that is somehow separate from the person who is subject to the law and that is free from governmental regulation".  ACG's sought to distinguish himself as a "individual human being" from his legal "person".  One part of his split person may have signed the mortgage, but the other part is not bound.  ACG swore the following in an affidavit:

1. I am a man and an individual human being with standing within the territory commonly known as Canada.
2. I am exercising my right NOT to take recognition as a person before the law.
3. I am not a person or any class of person.
4. I am the Beneficiary and Grantor of the account referred to as the juristic person [ADG].

ADG referred to his birth certificate and statement of live birth in connection with the last point.

In addition to the "Strawman" arguments, ADG also claimed that what was loaned to him by the mortgagee was nothing more than "book-entry credit created out of thin air", which constituted fraud.  The Court Master hearing this case did some research on the term "book-entry credit" and found that it had been discussed in a number of Australian court decisions.  The source of the "book-entry credit" argument appeared to be a book called "How to Screw 'Your' Bank".  The Master rejected this argument.

After granting the order sought by the mortgagee, the Master concluded her reasons with the following:

Beyond that, it would be a pity if ADG lost his home because he exercised poor discretion in his search for reliable sources of legal information. There are better alternatives than obsolete legal dictionaries, discounted texts like How to Screw ‘Your’ Bank, and Youtube videos of men scribbling on whiteboards. The decision is, of course, up to ADG, however, he should think carefully before he makes statements such as: 

I can find no law that authorizes book-entry credit and thus must conclude it is fraudulent criminal activity which I cannot take part in. ...

He cannot expect the courts to view him as a ‘fair dealer’. When he makes such statements the Court may be inclined to accept the alternative that ADG’s appearance in court is for an improper and ulterior purpose. If so, ADG can expect negative consequences.

Read the decision at: Crossroads-DMD Mortgage Investment Corporation v Gauthier.

Grain Farmers of Ontario appealing neonicotinoid decision

Grain Farmers of Ontario ("GFO") is appealing the October 23 dismissal of its challenge to Ontario's neonicotinoid regulations.  That appeal is made to the Ontario Court of Appeal.  GFO is also making a motion to the Ontario Divisional Court for a review of the earlier Superior Court decision dismissing GFO's request for a stay of the regulation.  GFO says that, "We believe there are proper grounds for these steps".  GFO's news release can be found at: GFO Appeal.

This challenge by GFO still strikes me as an attack on government policy, something in which the courts are loathe to interfere (as was noted by Justice Akhtar in his dismissal of the case).  GFO's news release doesn't provide any details about the "proper grounds" for the appeal(s).  We may need to wait until the appeals are heard (if they proceed) and decisions rendered to see what "proper grounds" are being advanced.

NEB confirms that no standards exist for maintenance of depth of cover over pipelines after installation

The National Energy Board ("NEB") has just released its report into its investigation of various whistleblower allegations made against TransCanada PipeLines Limited (read the report here).  I haven't read through the report in full, but I was drawn to the section dealing with inadequate cover over a pipeline.  In its observations, the NEB notes that:

"Other than during the design and initial installation of the pipeline, CSA does not address requirements for maintaining the depth of cover during the life of the pipeline.  In a general sense, OPR section 6.5(1)(e) requires companies to: identify the hazards and potential hazards; assess the risk associated with those hazards; and implement controls to prevent, manage and mitigate those hazards.  TransCanada has recognized the low depth of cover as a hazard, has assessed the consequence of a hazard to be low because the site was in an unused, fenced in pasture area and has mitigated the risk by installing fencing to secure the site."

In other words, there is no regulation in place for NEB-regulated pipelines with respect to the depth of cover that must be maintained over a pipeline.  Once a pipe is installed, it is left to the company to determine what depth must be maintained over a pipeline to avoid potential hazards.  For people who have read through the CSA Standards applicable to pipelines (which requires an expensive licence), this gap in regulations was obvious.  In some cases, landowner groups have successfully negotiated agreements with pipeline companies requiring maintenance of depth of cover over pipelines to a specific minimum depth and requiring the payment of compensation where restrictions on land use are imposed.  But what about everyone else with a pipeline on their lands?

Isn't depth of cover an important enough component of pipeline safety that it should be the subject of specific prescriptive regulations?

Grain Farmers of Ontario v. MOECC decision now available

Grain Farmers of Ontario ("GFO") has now posted a copy of the decision dismissing its challenge of Ontario's new neonicotinoid regulations at its website: 2015 ONSC 6581. GFO alleged that the regulations in their current form would cause irreparable harm to Ontario corn and grain farmers, and asked for a stay of the regulations until May, 2016 or "such time as the requirements of the Regulation can be met."  Justice S.A.Q. Akhtar of the Superior Court heard the case and declined to order a stay.  He also allowed the cross-motion by the Ontario Ministry of the Environment and Climate Change ("MOECC") ruled that GFO's application disclosed no reasonable cause of action. The application was dismissed on that basis.

On review of the GFO application, Justice Akhtar was "of the view that the application is concerned with the economic interests of the affected farmers rather than any property rights.  Prior to the Regulation, the farmers did not have an unrestricted right to use their lands as they wished but were subject to a highly regulated pesticide regime. ... If there is no constitutional challenge or allegation of ultra vires, then what is GFO's aim in making the application? ... In my view, GFO is not asking for a determination of rights that depend on the interpretation of the Regulation but a re-writing of that Regulation in a manner that would permit the effects of the Regulation to be delayed to its advantage.  It is not the job of this court to pronounce on the efficacy or wisdom of government policy absent the aforementioned constitutional or jurisdictional challenges, neither of which are made here...".

Thankfully for GFO, the MOECC did not seek any costs of the court proceeding against GFO (though GFO will most likely have incurred its own legal costs in the matter).  According to its website, GFO is evaluating its options and says that it has not conceded on this matter.

Federal Court of Appeal split on Chippewas of the Thames appeal of NEB Line 9B Decision

In a split decision, the Federal Court of Appeal has dismissed the appeal of the Chippewas of the Thames First Nation of the National Energy Board's approval of Enbridge's Line 9B Reversal and Line 9 Expansion Project.  At issue in the appeal was the Federal Crown's duty to consult with First Nations - was the NEB required as part of its decision-making process to determine whether the Federal Crown (which was not a party to the NEB process) was under a duty to consult First Nations with respect to potential adverse impacts of the proposed project and, if so, whether it had adequately discharged that duty?

Ryer, J.A., writing for the majority of the Court in dismissing the appeal, found that that the NEB was not required as a precondition to its consideration of Enbridge's application to determine whether the Federal Crown was under a duty to consult (or whether it had discharged that duty) because the Federal Crown was not a participant in the Enbridge application.  Justice Ryer noted that, if the Crown had appeared before the NEB, these issues could have been argued.  However, the Federal Crown did not participate in the NEB approval process.

Justice Ryer then went on to consider whether the NEB itself has the power to undertake and discharge the duty to consult with First Nations on behalf of the Federal Crown.  He noted that it is within the power of Parliament to require the NEB to discharge the Crown's duty to consult, but it has not done so by legislation.  He questions how the NEB could both carry out the duty to consult and then adjudicate on whether or it had adequately discharged the duty.  Yet, in a letter sent by the Minister of Natural Resources concerning the Enbridge project, the Minister suggested that the Federal Government "relies on the NEB processes to address potential impacts to Aboriginal and treaty rights stemming from projects under its mandate."

Nevertheless, Justice Ryer concluded that there was no delegation of the duty to consult by the Federal Crown to the NEB.  Therefore, any shortcoming in the NEB's consultation with First Nations could not stand as a reason for setting aside its decision to consider Enbridge's application and, ultimately, to approve it.

Justice Rennie of the Federal Court of Appeal provided a dissenting opinion on the case.  His opinion was that the Supreme Court's 2010 decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council meant that it was not necessary for the Federal Crown to be a party to the NEB proceeding in order for the NEB to be required to rule upon the Crown's duty to consult.  He viewed that decision of the Supreme Court as changing the law on the duty to consult.  As a result, Justice Rennie's opinion was the NEB must review the duty to consult in the context of a Section 58 application (like the Enbridge Line 9B application, which is not subject to final approval by the Federal Cabinet):

The Board must have, and exercise, the power to assess whether the duty to consult has been fulfilled, and to refuse to grant an approval if there is an unfulfilled duty to consult; otherwise the section 58 regime allows for the approval of projects which may adversely affect Aboriginal rights without the Crown ever consulting with the Aboriginal group in question. A project proponent can apply, go through the NEB's hearing process, and receive approval. The Crown can remain silent, on the sidelines. No consultation with the Crown need occur at any point. Indeed, the Crown lacks the statutory authority to prevent an application from being approved by the Board, even if it should want to.

Rennie, J.A. concluded that the NEB should have considered whether there was a duty to consult and, if so, whether it had been fulfilled.  And the NEB should only have granted approval to Enbridge if there was no unfulfilled duty to consult with First Nations.  Justice Rennie would have allowed the appeal.

Given the split in the Federal Court of Appeal on this appeal, this may very well be a case that will be heard by the Supreme Court of Canada.

The full text of the Federal Court of Appeal decision is available at: 2015 FCA 222.

Ontario Court has dismissed challenge to provincial neonicotinoid regulations

I'll post a link to the court decision as soon as I can find a copy.  In the meantime, here is a link to the cbc.ca story: Law to reduce use of bee-killing pesticides upheld in court.

Surplus Farm Residence Severances - Differing decisions from the OMB

Two recent decisions from the Ontario Municipal Board (OMB) have addressed the limits on severing surplus farm residences from larger farm parcels.  In one decision, the OMB declined to allow the severance of a parcel larger than about 1.5 acres on the basis that the proposed severance was not of "a minimum size" as required by the 2014 Provincial Policy Statement (PPS).  The farm landowner had requested a severance of approximately 5 acres from the existing 98-acre farm, including a residence and three accessory buildings.

In the other decision, the OMB approved the severance of approximately 86 acres out of a 102-acre farm.  The parcel to be retained by the owners, who were retiring from farming, contained a surplus residence, barn, and drive shed.  The balance of the farm (the severed 86-acre parcel) was apparently going to be conveyed to another area farmer to be used in conjunction with a larger operation.

These two decisions would appear to be at odds with each other.  In both cases, the applicant landowner was attempting to sever more than the minimum residence plus 1 acre because the severance of a larger parcel made more sense given the actual configuration and development of the property.  However, it is clear that in the case where the OMB declined to permit the larger severance, the OMB held that it did not have the evidence it needed from the landowner to go beyond the "minimum" severance.

Read the OMB decisions at: Simcoe (County) v Essa (Township) and McClary v. Middlesex Centre (Township).

Wetland Conservation in Ontario: A Discussion Paper

Wetland Conservation in Ontario: A Discussion Paper 

EBR Registry Number:   012-4464

Ministry: Ministry of Natural Resources and Forestry

Date Proposal loaded to the Registry: July 27, 2015

Description of Policy:

In 2014, the Ministry of Natural Resources and Forestry (MNRF) was given a mandate to work with other ministries, municipalities and partners to review Ontario’s broad wetland conservation framework and identify opportunities to strengthen policies and stop the net loss of wetlands. To achieve this mandate, in the future, the MNRF will develop a Strategic Plan for Ontario Wetlands that will identify a provincial vision, goals and objectives for wetlands in Ontario and set out a series of actions that the government will undertake over the next 10 to 15 years to improve wetland conservation across the province.

This discussion paper is meant to provide an overview of wetlands in Ontario and a summary of policies, programs and partnerships that form Ontario’s current wetland conservation framework. The paper will also present information on what others are doing and suggest priority areas on which the government could focus. The purpose of this paper is to provide information in order to stimulate ideas that will help inform the government on future actions that could be included within a Strategic Plan for Wetlands in Ontario.

Purpose of Policy:

The purpose of this posting is to seek feedback to help identify challenges and opportunities associated with wetland conservation in Ontario. This input will be used to inform development of a Strategic Plan for Ontario Wetlands that will guide the government’s actions over the next decade.

Other Information:

A link to the discussion paper is provided:

http://apps.mnr.gov.on.ca/public/files/er/wetlandsdiscussionpaper_en.pdf  

Feedback may also be submitted to: ConservingWetlands@ontario.ca

Public Consultation:

This proposal has been posted for a 95 day public review and comment period starting July 27, 2015. If you have any questions, or would like to submit your comments, please do so by October 30, 2015 to the individual listed under "Contact". Additionally, you may submit your comments on-line.
All comments received prior to October 30, 2015 will be considered as part of the decision-making process by the Ministry if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 012-4464.

All comments on this proposal must be directed to:

Rebecca Zeran
Program Advisor
Ministry of Natural Resources and Forestry
Policy Division
Natural Resources Conservation Policy Branch
Natural Heritage Section
300 Water Street
Peterborough Ontario
K9J 8M5
Phone: (705) 755-2551
Fax: (705) 755-1971 

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.

Other Public Consultation Opportunities:

Additional opportunities for engagement with key partners, stakeholders, municipalities and Aboriginal communities will be undertaken throughout the 95 day posting period.               

Ontrario Conservation Authorities Act Review Engagement Session Dates

Conservation Authorities Act Review Engagement Session Dates

As part of the Ministry of Natural Resources and Forestry’s (MNRF) commitment to initiate a review of the Conservation Authorities Act, a discussion paper has been posted to the Environmental Registry to solicit feedback on opportunities to improve the existing legislative, regulatory and policy framework that currently governs conservation authorities and the programs and services they deliver on behalf of the province, municipalities, and others.

The Discussion Paper can be viewed by going to the following link and searching for registry number 012-4509 http://www.ebr.gov.on.ca/ERS-WEB-External/. The discussion paper will be posted for a 90 day period. The deadline for submitting comments is October 19th, 2015.

As part of the review, a number of regional engagement sessions have been scheduled to provide municipal officials, staff, and associations with an opportunity to provide input into the review. The dates and locations for these sessions are:

• Thursday, September 24th at the Smith Falls Memorial Community Centre, 71 Cornelia Street West, Smith Falls, Ontario from 1pm to 4pm
• Wednesday, September 30th at the Columbus Centre, 301 May St. South, Thunder Bay, Ontario from  9am to 12pm
• Friday, October 2nd at the Steelworkers’ Union Hall and Conference Centre, 66 Brady Street, Sudbury, Ontario from 9am to 12pm

If you are interested in participating in any of these sessions, please RSVP to the Water Resources Section at mnrwaterpolicy@ontario.ca identifying which session(s) you will be attending.

Thursday, September 24, 2015 - 1:00pm
Wednesday, September 30, 2015 - 9:00am
Friday, October 2, 2015 - 9:00am

Jennifer Keyes
Manager, Water Resources Section
Natural Resources Conservation Branch, Policy Division
Ministry of Natural Resources and Forestry
705-755-5244
jennifer.keyes@ontario.ca

Ontario Conservation Authorities Act Review Discussion Paper

EBR Registry Number:   012-4509

Ministry of Natural Resources and Forestry

Date Proposal loaded to the Registry:
July 20, 2015            

Description of Policy:

The Conservation Authorities Act, administered by the Ministry of Natural Resources and Forestry (MNRF), enables two or more municipalities in a common watershed to establish a conservation authority in conjunction with the province. The purpose of a conservation authority is to deliver a local resource management program at the watershed scale for both provincial and municipal interests.

Conservation authorities have played a significant role in Ontario’s natural resource management landscape for nearly 70 years, establishing a successful legacy of resource stewardship and an impressive record of protecting people, property, and communities from water-related natural hazards (e.g. flooding, drought, erosion).

In order to ensure that the Act is meeting the needs of Ontarians in a modern context, the MNRF is seeking to engage with ministries, municipalities, Aboriginal communities, conservation authorities, stakeholders and the public to initiate a review of the Conservation Authorities Act, including addressing roles, responsibilities, funding and governance of conservation authorities in resource management and environmental protection.

The posting of a discussion paper is intended to solicit public and multi-sector perspectives on the existing legislative, regulatory and/or policy framework which governs conservation authorities and the programs and services they deliver.

This discussion paper outlines a number of ways to engage in the review and MNRF encourages all parties to participate. The discussion paper focuses on the Conservation Authorities Act and policy framework, not on any individual conservation authority.

Purpose of Policy:

The purpose of this discussion paper is to identify opportunities to improve the existing legislative, regulatory and policy framework that currently governs conservation authorities and the programs and services they deliver on behalf of the province, municipalities, and others.

Other Information:

While feedback on any aspect of the existing legislative and regulatory framework is welcome, the focus of the discussion paper is on the three overarching areas of:

1. Governance;
2. Funding mechanisms; and
3. Roles and responsibilities.

Link to the discussion paper: http://apps.mnr.gov.on.ca/public/files/er/Discussion_Paper_2015.pdf

The following weblinks provide the supporting/additional information about this notice:
• The Conservation Authorities Act
http://www.ontario.ca/laws/statute/90c27
• Ontario Regulation 97/04 – Content of Conservation Authority Regulations
http://www.ontario.ca/laws/regulation/040097
• Ontario Regulation 139/96 – Municipal Levies
http://www.ontario.ca/laws/regulation/960139
• Ontario Regulation 670/00 – Conservation Authority Levies
http://www.ontario.ca/laws/regulation/000670
• Conservation Authorities
https://www.ontario.ca/environment-and-energy/conservation-authorities

Public Consultation:

This proposal has been posted for a 91 day public review and comment period starting July 20, 2015. If you have any questions, or would like to submit your comments, please do so by October 19, 2015 to the individual listed under "Contact". Additionally, you may submit your comments on-line.
All comments received prior to October 19, 2015 will be considered as part of the decision-making process by the Ministry if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 012-4509.

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.

Other Public Consultation Opportunities:

Written comments and other feedback can also be sent directly to the Ministry of Natural Resources and Forestry at mnrwaterpolicy@ontario.ca

Contact:

All comments on this proposal must be directed to:

Julia Holder
Policy Analyst
Ministry of Natural Resources and Forestry
Policy Division
Natural Resources Conservation Policy Branch
Water Resources Section
300 Water Street
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5905
Fax: (705) 755-1957 

Farm Tax Update for Professionals - October 22, 2015, Guelph, ON

Please join CAFA for an exclusive one-day seminar:

Farm Tax Update for Professionals

Thursday, October 22, 2015 

Hanlon Convention Centre, Guelph.

Learn from industry leading farm professionals on the latest developments in farm tax and farm law.

Space is limited so be sure to send in your registration as soon as possible.

Get more information Register Now! I can't make it If you have any questions about the event or wish to learn more about CAFA, please contact Liz Robertson, CAFA's Executive Director. 1-877-474-2871 info@cafanet.com @CAFANET www.cafanet.com

Timelines to appeal Ontario environmental orders are strict - miss the deadlines at your peril

Another decision of the Environmental Review Tribunal ("ERT") has confirmed that the process and deadlines for appealing orders made by Provincial Officers are strict; failure to comply with the process and deadlines means that the ERT has no jurisdiction to hear an appeal.

In a July, 2015 decision, the ERT dismissed a proposed appeal on the basis that the proceeding related to matters outside the jurisdiction of the ERT (Rule 119).  A Provincial Officer with the Minister of the Environment and Climate Change ("MOECC") had issued an Environmental Protection Act ("EPA") order on May 13, 2015 against the appellant.  On June 3, 2015, the appellant wrote to the ERT to appeal the order.

Under the EPA, a person may seek the review of a Provincial Officer's order to be conducted by the MOECC Director (one step above the Provincial Officer); the request must be made within seven days of the order.  It is only the decision of the Director on the review that can then be appealed if necessary to the ERT.  In the case commenced before the ERT in June, no written request directly to the Director for a Director's review had been made.  There was evidence that the appellant had made an oral request for the review to the Provincial Officer and that the appellant's lawyer had then written to the Provincial Officer to request an "indulgence with respect to the timelines in the Provincial Officer's Order."

Before the ERT, the appellant argued that it had effectively requested a Director's review of the Provincial Officer's Order (through the oral request followed by the written request for an indulgence, although both requests were made to the Provincial Officer).  Alternatively, the appellant argued that the information sheet on the review process provided by the Provincial Officer was vague and misleading and led to an assumption that, if a review was not requested within seven days, the Provincial Officer's Order would be deemed to be confirmed by the Director.  Under the EPA, if a request for a review is made and no decision is issued by the Director within seven days, the Director is deemed to have confirmed the Provincial Officer's Order (and that deemed decision can be appealed to the ERT). 

An appeal to the ERT from the Director's order or decision (deemed or otherwise) must be commenced within 15 days of the date on which the appellant was served with the Director's Order (or the date on which it was deemed to have been made).  There is provision for the ERT to extend the time for appealing, but only where, "in the Tribunal's opinion, it is just to do so because service of the order or decision on the person did not give the person notice of the order or decision."  

Where there was no Director's decision at all, there is no jurisdiction for the ERT to hear an appeal whether it was filed on time or not.  In the recent case, the ERT ruled that the written request for an indulgence cannot be considered a written confirmation of the oral request for a review that was made by the appellant to the Provincial Officer.  The EPA allows for an oral request followed-up by a written confirmation, but the written confirmation must be sent to the Director.  Further, the written follow-up in this case did not include other information required by the EPA (e.g. details of the order to be reviewed).  The ERT concluded that there was no deemed confirmation of the Provincial Officer's Order by the Director and, therefore, there was no Director's order or decision that could be appealed to the ERT.

This decision, like many before it, confirms that the environmental legislation in Ontario (the EPA and the Ontario Water Resources Act) provides very narrow windows of opportunity to appeal orders made by Provincial Officers.  If an order is issued to you and you wish to dispute it, do not delay in seeking legal advice and requesting a review in the manner required by the legislation.  Miss the deadlines and you lose your right to appeal.

Read the decision at: COX FARMS LTD. V. ONTARIO (MOECC).

BC Landowner's nuisance claim dismissed - insufficient interference by water from municipal lands

A BC landowner sued his municipality over drainage runoff, seeking both damages and an injunction requiring the municipality to take "immediate and effective action to stop the flow of water onto his property."  In 2002, the municipality approved the development of 68 townhomes by a developer adjacent to and north of the landowner's property.  As a condition of the development, a greenway was granted to the municipality running between the properties (including a gas pipeline right of way and an asphalt walkway).

The landowner alleged that prior to the development, there was a watercourse between one and three feet deep running in the location of the greenway.  The developer was permitted to fill in this watercourse resulting in the loss of the drainage route and periodic flooding on the landowner's property to the south (3.67 acres).

The municipality responded that the surface ponding of water on the landowner's property was a natural and pre-existing feature given the location of the property at the toe of a slope, its proximity to the water table, and the impermeable condition of its soils.  Also, the municipality argued that any additional water flowing onto the landowner's property was so minor in volume that it did not constitute a substantial interference with the landowner's use or enjoyment of his property.

On review of the evidence, the BC Supreme Court was unable to accept the landowner's contention that water was never a problem on his property prior to the development.  The Court found that the landowner exaggerated the extent of the water problems suffered since the development.  Also, the water table underlying his property was high and the soil was "fairly impermeable".

The Court concluded that any water coming onto the landowner's property did not meet the test of a claim in nuisance - that it resulted in a substantial and unreasonable interference with his use or enjoyment of the property or that there was sufficient physical damage to the land.  The landowner's property was a "holding property, awaiting development", and the consequences from increased water were minor.  The landowner did not demonstrate that "the pooling water along the northern boundary of his property has either substantially altered the nature of his property or interfered to a non-trivial or significant extent with the actual use being made of the property."  There was also no basis to find that any substantial adverse alteration of the land had been caused.

The landowner's nuisance claim was dismissed.

Read the decision at: Wood v. Langley (Township).

Nursery trees ruled to be chattels - claim for spray damage barred by limitation period

The Manitoba Court of Queen's Bench has dismissed a claim for spray damage caused to nursery trees (Roundup from a neighbouring wheat field) on the basis that the applicable limitation period had expired.  The key issue was the characterization of the trees - were they fixtures to the real property (the land) or were they chattels (movable property not affixed to the land)?  If they were fixtures, then a six-year limitation period would apply.  If they were chattels, a two-year limitation period would apply.  The action was commenced nearly four years after damage to the trees was first observed.

What is annexed or attached to the land becomes part of the land (a fixture), but there must be an intention to annex or attach evidenced by the degree of annexation and the object of the annexation.  In this case, the claimant argued that the trees were growing crops and, therefore, part of the real property (the land).  The defendants argued that the trees were planted only for the purpose of storage until they would be sold or used by the claimant, remaining as chattels (not fixed to the land).

The Court sided with the defendants and found that the nursery trees were chattels.  They were treated as the claimant's "stock in trade - as inventory".  The trees were never intended to be permanently attached to the land or to constitute an improvement to the land.  As a result, the two-year limitation period applied and barred the claim for damages.

Read the decision at: Noralta Northern Alberta Trees Inc. v. Plato Enterprises (Alberta) Ltd.

Rogers Communications loses cell tower lease over move to sub-lease space to a third party

A Nova Scotia forestry company leased land to Rogers Communications for a cell tower.  The original 1988 lease was renewed several times and provided that renewals would be "upon the same terms and conditions" as the original lease.  In 2012, Rogers asked for the lessor's consent to a "co-location" agreement where Rogers would sub-lease space on the tower to a third party.

Although no agreement was reached and no consent was given, Rogers went ahead with the co-location arrangement.  The lessor sought a declaration from the Court that the lease was terminated as a result of Rogers' failure to obtain consent.  The lessor also sought damages.

In court, there was a dispute between the parties over whether the lease had been renewed in 2012 for a further five-year term.  Rogers argued that it had given notice as required by the lease to renew under the same terms and conditions and, therefore, it was entitled to the renewal of the lease (which would be more or less automatic as long as Rogers exercised its option to renew).  The lessor, on the other hand, contended that Rogers' proposed renewal amounted to a counter-offer (which it rejected).  The proposed renewal lease included the co-location arrangement and additional rent as compensation for the addition of a sub-tenant to the tower.  Rogers took the position that it was its right to include the additional provisions in the renewal.

The Court determined that the lease had not been renewed and ordered Rogers to vacate the lands within 8 months of an order to be issued setting out the terms of the decision.  Also, the lessor was awarded any rent not paid during the period after the lease had terminated.

The Court then proceeded to consider the lessor's request for damages for breach of contract, breach of duty of good faith and trespass.  The Court ruled that Rogers did not have the right under the lease contract to allow a third party to sub-let or co-locate - the lease provided rights to Rogers to erect, maintain and operate its tower, but it did not allow it to host a third party's services.  Also, the Court noted that Rogers had sought consent from the lessor to allow the co-location.  The lessor was awarded the sum of $3,000 in rent for each year in which the third party co-located on the tower.

Read the decision at: Atlantic Star Forestry Ltd. v. Rogers Communications Inc.

Alberta Court upholds denial of crop insurance on basis of false or misleading reporting

The Alberta Court of Queen's Bench recently dismissed an application for judicial review of a decision by the appeal committee related to Alberta's crop insurance program.  The regulations that govern crop insurance provide that the decision of the appeal committee is final and binding on the parties; only a challenge to the decision by way of judicial review is possible.

In this case, crop insurance denied claims by a farmer for its 2009 canola crop, its 2009 Canadian Prairie Spring wheat crop and its 2010 Canadian Prairie Spring wheat crop.  Crop insurance declined to pay the benefit to the farmer on the basis that the farmer's post harvest assessments were incomplete and inconsistent with actual crop production.  On the appeal of this denial of coverage, the appeal committee decided that credibility was an issue.  The committee found that where there was a conflict in the evidence between the farmer and the crop insurance witnesses, the evidence of the crop insurance witnesses was to be preferred.  The committee cited examples where the farmer under-reported grain sales or was not forthright about grain sales until confronted with third-party documentation obtained during the crop insurance investigation.  The committee, which consisted of five farmer members, was left with the impression that the farmer "had not been honest and forthcoming in his dealings with AFSC during the claims process and subsequent contact with Program Cross Compliance and Investigation, despite several opportunities to make full and honest disclosure of the production and sales of crops."

The Court ruled that the standard of review applicable to this judicial review was a standard of reasonableness: if the Court found that the appeal committee's decision was "reasonable", then the decision would stand.  On review of the record from the appeal process, the Court concluded that the appeal committee's decision was, in fact, reasonable, and denied the judicial review application on that basis.  In particular, the Court found that it was abundantly clear that the committee had found evidence of false or misleading reporting from the farmer.  The Court could find nothing unreasonable about that conclusion and the denial of the crop insurance claims.

Read the decision at: F Prins Potatoes Ltd v Agriculture Financial Services Corporation.

Drainage Tribunal orders landowners to pay municipality nearly $50K in costs

The following summary of a recent decision of the Agriculture, Food and Rural Affairs Appeal Tribunal says it all:

"This Drainage Act appeal was unusual. Firstly, the quality of construction of the drainage works was challenged in circumstances where the drain was performing exactly as designed. Secondly, the Appellants’ case lacked any reliable evidence to support their challenge. Thirdly, the Appellants pursued issues that were outside the Tribunal’s jurisdiction, and did so contrary to the Tribunal’s directions.  Fourthly, the appeal was devoid of merit, and in effect frivolous.  Fifthly, shortcomings and the mounting costs were called to the Appellants’ attention before and during the hearing on more than one occasion. Sixthly, these same Appellants had previously pursued a quality of construction appeal on the same drain that another Tribunal Panel determined was unwarranted and, subsequently ordered these same Appellants to pay costs. Despite all that the Appellants pursued a costly and unsuccessful appeal hearing and want their neighbours or the taxpayers of the Municipality to pay for it.

In the circumstances of this case and for the reasons explained, the Tribunal awards the Municipality the costs of the appeal fixed at $49,536.80."

It's pretty rare that the Tribunal awards any costs, especially in Drainage Act proceedings. This decision demonstrates that there is a line that can be crossed, following which parties to Drainage Act appeals may be liable to pay costs to the successful party.

Read the decision at: Coleman Municipal Drain 2013 (RE).

Lawsuits challenge railroad's authority to OK oil pipeline

Here is an interesting article from AP business writer, Josh Funk, about growing conflicts between railways and neighbouring landowners in the US over pipelines and pipelines royalties: Click here to read the article at PennEnergy.com.  Not all railways hold full ownership over the land beneath their tracks; so who has the authority to grant permission for a pipeline, and to whom is compensation payable?

No harm, no foul in gravel extraction lease case - Sask Court declines to terminate lease

In a Saskatchewan case decided last fall, the Court of Queen's Bench ruled that the tenant under a gravel extraction lease was not subject to termination of the lease for having missed a deadline to provide proof of insurance coverage.  A common term in commercial leases is that the tenant or lessee must maintain liability insurance in a specified amount and must provide proof of insurance on a periodic basis, often annually.

The contract in question in this case demanded that the lessee have insurance in place and that it provide proof of the insurance on or before December 30 of each year of the contract, failing which the contract would terminate.  In 2012, although the lessee had put the necessary insurance in place prior to December 30, 2012, an oversight resulted in a failure to provide proof of the insurance to the lessors until January 2, 2013.  On December 30, 2012, the lessors instructed their solicitors to send a letter purporting to terminate the contract, and they refused to accept the proof of insurance when delivered to their home on January 2.

The lessors argued to the Court that there was a clear breach of the contract - proof of insurance was due by a certain deadline and that deadline was missed.  The lessee argued that a breach of the contract required two joint failures - both a failure to have the insurance in place and a failure to deliver the proof of insurance.  In its reasoning, the Court assumed (for the purposes of argument) that there was a breach and then turned to consider whether it should grant relief from penalty and forfeiture under the contract pursuant to its equitable power under Section 13 of The Queen's Bench Act: "The court may grant relief against penalties and forfeitures and, in granting that relief, may impose any terms with respect to costs, expenses, damages, compensation and any other issues that the court considers appropriate."

The Court found in favour of the lessee on all three prongs of the test for granting relief: 1) the conduct of the lessee was a mere oversight - there was no suggestion of bad faith, but only "clerical ineptitude"; 2) the breach caused no harm - the insurance was in place; and, 3) the lessee would lose its significant investment in the property while the lessors would suffer no damage (other than to have to continue with their contract with the lessee).  On those bases, the Court granted summary judgment to the lessee and issued a permanent injunction against the lessors preventing them from terminating the gravel extraction lease by reason of the 2012 late delivery of proof of insurance.

Read the decision at: Elchuk v Gulansky.

MOE Court Bulletin: Brantford Biosolids Management Company fined $105,000 for Ontario Water Resources Act Violations

	NEWS
Ministry of the Environment and Climate Change

Brantford Biosolids Management Company fined $105,000 for Ontario Water Resources Act Violations

April 2, 2015 9:00 A.M.

Simcoe - Biosolids management company Wessuc Inc. (Wessuc) was fined $105,000 for discharging sewage biosolids into a watercourse that may impair the quality of the water, contrary to the Ontario Water Resources Act (OWRA).

Wessuc is located in Brantford and operates throughout southern Ontario. The company is primarily involved with the land application of municipal biosolids.

On October 11, 2011, a Non-Agricultural Source Materials (NASM) Plan was approved by the Ministry of Agriculture and Food (OMAF), for the land application of sewage biosolids to a Simcoe farm property on Concession 12. On April 27, 2012, the MOECC received notification from Wessuc that the sewage biosolid application would occur at the site, in accordance with the NASM Plan, between April 28 and May 5, 2012.

On April 30, 2012 and on May 2, 2012, ministry staff conducted sewage biosolid field inspections. During the May 2, 2012 inspection, Ministry staff observed a discharge of a dark-coloured liquid from the field's drainage tile, which entered a stream heading south through a road culvert, and flowed downstream onto a property south of the roadway. An assessment of effluent samples determined that the application of liquid biosolids resulted in discharge of biosolids to an unnamed tributary of Black Creek which impaired the quality of water in the creek.

Wessuc responded to the incident and cleaned up the spilled material at the Simcoe farm property. A Provincial Officer's Order was issued by the ministry to Wessuc to prevent the reoccurance of a similar event during the application of sewage biosolids on tile drained fields in the future.

The company was fined $105,000 plus a victim fine surcharge of $26,250 and was given one year to pay the fine.

Members of the media: Kate Jordan Communications Branch (416) 314-6666 Contact information for the general public: 1-800-565-4923

Available Online Disponible en Français

Enbridge Gas Distribution loses appeal over cost to relocate pipelines

In August, 2014, I posted about a decision from the Ontario Superior Court involving Enbridge Gas Distribution Inc. ("EGDI") and Metrolinx.  Metrolinx was awarded $2.3 million that it had previously paid to EGDI for the relocation of 6 pipelines.  The Court ruled that it was EGDI that was responsible for the cost.

The Court of Appeal has now dismissed EGDI's appeal of the lower court decision.  EGDI raised two issues: 1) CN, the predecessor in title to Metrolink, had a contractual right to require EGDI to pay to relocate pipelines only on CN-owned lands, not municipal road allowances; and, 2) even if Metrolinx had those rights, they were not conveyed by CN to Metrolinx.

The Court of Appeal did not agree with EGDI's interpretation of the agreement, finding that the obligation to pay to relocate pipelines included relocation for the purposes of alteration in the railway property, facilities or operations.  Those purposes were not restricted to railway-owned lands.  The Court also ruled that CN did transfer to Metrolinx the right to require EGDI to remove its pipelines at EGDI's expense.

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

Better Farming: Pig Farmer acquitted in methane-fueled barn fire

Read Better Farming's story about the recent acquittal of a Huron County hog farmer on Occupational Health and Safety Act charges connected to a 2012 flash fire that injured the farmer and his employee.  The Court determined that the fire resulted from the ignition of a build-up of methane that had resulted from a barn design flaw.

OMB dismisses claim for injurious affection where no taking - on merits and on basis of limitation period

The Ontario Municipal Board ("OMB") recently dismissed an injurious claim by a car wash business that saw a significant drop in business after a local road was realigned.  The claimant alleged that the realignment of County Road 10 led to a significant drop in traffic passing by the car wash, resulting in a reduction in the number of vehicles using the wash.  The claim was for injurious affection in a situation where the statutory authority, the County of Simcoe, did not actually expropriate any of the car wash lands.

In a case of injurious affection where there is no taking, the claim must meet the following requirements:

1)   The damage must result from the action taken under statutory authority (the statutory rule);

2)   The action would give rise to liability but for that statutory authority (the actionable rule); and

3)   The damage must result from the construction and not the use of the work (the construction and not the use rule).

Here, the car wash business was unable to establish that the losses it alleged it had incurred were the result of the construction of the realigned road.  As the OMB explained:

"The Claimant has not been able to prove on the balance of probabilities that the losses it alleges it incurred were the result of the re-routing of County Road 10 and the Board finds that the decline in the number of car washes was on the balance of probability, more likely caused by other factors such as general economic decline resulting in reduced consumer spending.  Furthermore, regular users of HW 89 who had been customers of the car wash prior to the re-routing of County Road 10 would have been required to travel only a short additional distance on HW 89 to continue to use the car wash according to the evidence."

and,

"The Claimant must establish on the balance of probabilities that the re-routing of County Road 10 was the cause of its alleged losses and it has not done so in this case.  Revenues were up in the year following the re-routing and the evidence suggested that the later downturn may have been caused by weather related factors as well as the downturn in the automobile industry including the elimination of the third shift at the Honda plant in the period 2007- 2008. The Claimant has failed to establish any causal connection between the Respondent’s works and any loss it has alleged."

In the end, the OMB ruled that the claim related to the use of the realigned road and not the construction of the realigned road.  On that basis, the injurious affection claim would fail.

However, the actual basis for the dismissal of the claim was the expiry of the applicable limitation period.  Injurious affection claims are subject to a one-year limitation period under Section 22(1) of the Expropriations Act:

Subject to subsection (2), a claim for compensation for injurious affection shall be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known to the person, and, if not so made, the right to compensation is forever barred.

The evidence before the OMB showed that the actual construction of the realigned road was completed on or about December 27, 2006 and made official on January 23, 2007.  The OMB agreed with the County that if the Claimant had suffered business losses from the construction, it knew or ought to have known of those losses occurring on a monthly basis from January, 2007 to February, 2008 (its fiscal year end).  The OMB concluded:

"The claim for compensation ought to have been initiated not later than January, 2009, to comply with the Act as it is required to serve its claim within one year of when the loss is sustained.  It is not reasonable to delay a claim until after the full amount of the loss is calculated as is being advanced by the Claimant.  The Claimant is also required to act diligently to inform itself of any loss giving rise to a claim.  In this case while the losses ought to have been known at the latest by February 28, 2008, the claim was not served until July 31, 2009, some 30 months after the road was stopped up and closed and the claim was not filed with the Board until September 30, 2009.  Furthermore, no previous notice of the claim was given to the Respondent."

Read the decision at: Willies Car & Van Wash Limited v County of Simcoe.

Empty barn not enough to trigger MDS to prevent neighbours' severance

Landowners had applied to their municipality to sever a 0.84 acre parcel from their existing 30-acre lot.  County planning staff determined that the proposed severance complied with MDS requirements and that the County had no objection to the proposal.  However, a neighbour did object to the severance, suggesting that the new lot would breach MDS provisions because it would come too close to his 1860-era barn.  Although the barn was vacant, the neighbour was considering returning the barn to livestock use.  He asked that the proposed severed parcel be moved to a different location on the applicants' property.

The municipality went ahead and approved the severance, so the neighbour appealed to the Ontario Municipal Board ("OMB").  The only issue on the appeal was the application of MDS to the severance, and the OMB ruled that MDS did not apply.  Although the OMB took issue with some aspects of the municipality's methodology for considering required setbacks, the OMB concluded that the neighbour's barn did not correspond to the definition of a "livestock facility" within the governing Provincial documents.  MDS had no application in this case.

As the OMB noted:

The fundamental problem with this appeal, however, pertains to the barn itself, and whether it even constitutes a "livestock facility", as understood in the Provincial documents. The Board was not persuaded for the following reasons.

The Provincial documents are unequivocal: to qualify as a "livestock facility", it is not enough for a building to be "structurally sound"; it must also be "reasonably capable of housing livestock." The two criteria are not synonymous. Although the neighbour insisted that the structure would not actually fall over, he offered essentially no evidence it could meet any other expectations.

Indeed, the Board was not shown how the existing structure could be much more than a "shade shelter" (which is specifically excluded from consideration as a "livestock facility"). Although there was no "comprehensive building analysis", it did not take a comprehensive analysis to discern that the structure had no insulation, electricity, ventilation, stalls, hay storage, manure storage, or livestock equipment. It also had planks visibly missing from its siding in various places. None of the observations by the CBO were contradicted. The structure is a shell, and not even one that is impervious to the elements.

Whether or not the structure was considered appropriate for livestock by 1860 standards, the Province would not have published its detailed instructions for "determining when a barn is a livestock facility", if such a primitive structure could qualify. The Board is satisfied that if this structure were subjected to even the most elementary agricultural standards today, substantial remodeling would be essential.

That is where the neighbour encounters a second problem. The Guidelines specify that MDS II also applies to "remodeled livestock facilities.”

The CBO apparently concluded that no remodeling under MDS II would be feasible – not because the barn was too close to the proposed severed parcel, but rather because it was too close to Ms. [S]'s existing dwelling across the road. The Board heard no evidence to contradict that position.

Therefore, notwithstanding the eloquence of the [O] brothers and their expert, the Board was not shown how the barn could now trigger the MDS process – or that it ever could.

Read the decision at: O’Brien v Laronde.

BC Court rules neighbours liable in nuisance for "water problem" discharges

A recent BC Supreme Court decision begins: "It has been said that water is the driving force of all nature and as such it can be very destructive. ... It is a truism that water follows the path of least resistance and flows down a landscape to find the lowest point.  It has a tendency to descend and flow with great readiness.  These properties of water are abundantly clear in this case which involves a now protracted dispute between neighbours."

Neighbours A alleged that Neighbours R made changes to the R property that resulted in water damage to the A property.  Neighbours A sued in nuisance, negligence and trespass and sought general, aggravated and punitive damages, as well an injunction obligating Neighbours R to remedy the problems.

The most significant change to the R property was the installation of a tile drain (as part of a french drain) ending about 3 feet from the boundary between the A and R properties.  This tile redirected water from the R property to the A property.  Neighbours R also raised the grading of their property by a few feet, which put their property higher than the A property.  Previously, the R property had been lower than the A property at the boundary in question.  The increased water flows (including sludge) that resulted from these changes caused the damages to the A property alleged by the A neighbours.

As a threshold issue, the judge in this case examined the applicability of statutory limitation periods.  Justice Kerr ruled that the two-year limitation period did apply.  However, she also recognized that where there is continuing damage, a new cause of action arises each day (to some extent resetting the limitation period each day for any "fresh damages").  In this particular case, the effect of the limitation period was that Neighbours A could not recover for any damages sustained before November 25, 2007.  The french drain had been installed in 2001, but they did not commence their action until November, 2009.

Justice Kerr concluded that Neighbours R were liable to Neighbours A in nuisance.  Neighbours R had caused "a substantial and unreasonable interference" with their neighbours' use and enjoyment of the A property.  And Neighbours R were not saved by any riparian rights.  The evidence showed that the water problems resulted from groundwater rather than surface water and that the flow of water between the properties was not by way of a natural watercourse.  Neighbours R could not say that they were not causing a nuisance for having allowed surface water to flow naturally across their land to the A property.  Even if they were dealing with surface water, Justice Kerr found that the flow was the result of the significant changes made to the R property.

She awarded to Neighbours A the sum of $10,000 in non-pecuniary general damages for loss of use and enjoyment of the A property and the sum of $27,908.66 in pecuniary general damages for the cost of remediating the A property.

Read the decision at: Allison v. Radtke.

Court rules that Bear Creek was navigable in 1831 - natural severance of property results

I first posted about this case in December, 2012; it has now gone to a hearing and a decision has been rendered.  Justice Mitchell has declared that the portion of Bear Creek that passes through the property owned by the respondents in the application "was navigable in 1831 and, therefore, title to its bed was retained by the Crown creating a natural severance of the property."  That was the position that had been taken by the respondent landowners when they hired a surveyor to prepare a reference plan showing Bear Creek as a navigable watercourse comprising unpatented Crown land.  Based upon that reference plan, they purported to convey the land on one side of the creek from joint ownership to ownership by one of the landowners alone.

The court application was commenced by the local municipality, which took objection to the reference plan prepared by the surveyor.  The municipality asked the Court to declare that the watercourse (which is now part of a municipal drain under the Drainage Act) does not create a natural severance of the property.  Her Majesty the Queen in Right of Ontario was also added as a respondent to the application and supported the municipality's position.

In making her decision, Justice Mitchell started from the finding ("not seriously challenged by the Municipality in its argument on the application") that the present watercourse on the property "is the same watercourse located on the property in 1831" at the time of the Crown grant.  Therefore, in determining whether the watercourse was navigable in 1831, Justice Mitchell could rely on the present navigability of the watercourse.

She concluded: "The depth of the watercourse is presently and, based on the evidence of Mr. Burwell, also was at the time of the original grant, sufficient to float a small craft or a log.  There is no suggestion that the water does not flow freely along the watercourse or that its flow is obstructed in any meaningful way.  There may be seasonal fluctuations in the depth and flow of the watercourse but the parties agree this evidence is not determinative of the issue: See the seventh and eighth criterion in Coleman.  The watercourse was, therefore, "navigable" in fact at the time of the original Crown grant."

However, in order to create the natural severance, the watercourse must also have been "capable of public use" or "public utility" in 1831.  Justice Mitchell said of this requirement: "Trite to say that actual use, both historical and present day, is the best evidence of a watercourse's capability of public use.  That said, other "lesser" evidence will suffice to meet the evidentiary burden."  On a review of  the totality of the evidence, she found that "it is more probable than not that the watercourse was not only "capable of public use" in 1831 but was actually used by the public. ... It was capable of constituting an aqueous highway for public commercial and/or recreational use at the time of the original Crown grant regardless of whether or not it was considered by the public useful for such purposes."

As a result, the bed of Bear Creek as it passes through the respondent landowners' property was never actually granted by the Crown to private landowners in 1831.  It was the bed of a navigable watercourse that was reserved to the Crown and now serves as a physical separation between the respondents' property (properties) that lies on either side of the watercourse.

Read the decision at: Municipality of Middlesex Centre v MacMillan et al.