Funding to Support Public Input into NEB Modernization

Funding to Support Public Input

Natural Resources Canada (NRCan) is offering funding to support the development of research, studies or position papers related to the six themes of the NEB Modernization review: (1) Governance; (2) Mandate; (3) Decision-making roles; (4) Legislative tools for lifecycle regulation; (5) Indigenous engagement; and, (6) Public participation. This is in addition to the funding mentioned in the Terms of Reference that was made available to support the participation of Indigenous peoples.


Who can apply?

Funding is available to interested public stakeholders such as non-governmental organizations or associations.


How funding will be allocated

Limited funding may be provided on a case-by-case basis, subject to the established criteria below.
Funding decisions will be based on the following assessment criteria:

• Proposals must be less than $25,000 in total (including tax). Note that travel costs and capital costs are not eligible.
• All work must be completed by April 1, 2017. To maximize perspectives received through this process, funding is limited to one approved proposal per organization.
• Proposals must detail the deliverable (e.g. report, study, position paper) that your organization will produce and the timeline.
• Proposals must describe how the project contributes to the NEB Modernization review.
• Proposals must include details on the level of effort and resources that will be allocated to the proposal (e.g. resources to be used and their salaries). NRCan will use this information to confirm whether or not the cost of the proposal is fair and reasonable.
• Should your proposal be selected to receive funding, you will be contacted directly by NRCan officials. Final products must be provided to NRCan electronically in Microsoft Word format.
• Recipients who have already been allocated funding for Indigenous participation in the NEB Modernization review are not eligible for funding to support public input.

Eligible activities
Research, studies or position papers related to one of the six themes of the NEB modernization review:

1. Governance;
2. Mandate;
3. Decision-making roles;
4. Legislative tools for lifecycle regulation;
5. Indigenous engagement; and,
6. Public participation.

More information on these six themes can be found in the expert panel’s Terms of Reference.


Funding level

A maximum of $25,000 (including taxes) is available per applicant.


How to apply?

If you think your organization or association can contribute to the NEB Modernization review process, submit a proposal between two and five pages in length to NRCan.NEBModernization-ModernisationONE.RNCan@Canada.ca(External link) with the subject line “Public input funding proposal” and your organization’s name.

Should you wish, you may also mail your application to:

National Energy Board Modernization Secretariat
Natural Resources Canada
580 Booth Street,17th Floor
Ottawa, ON  K1A 0E4

Application Deadline

Applications will be accepted until January 31, 2017. Funding is limited and will be distributed on a case-by-case basis.

Merry Christmas!

It's been a busy year; so busy that this is the first time I've posted to my blog since July.  I'm looking forward to posting more regularly again in 2017.  There's been no shortage of interesting legal decisions affecting rural and agricultural landowners.

I wish you and your families a joyous Christmas!

Warranty claim about under-powered high-clearance sprayer ends up in court

The Queen's Bench in Saskatchewan recently dismissed a claim by a farmer who alleged that a high-clearance sprayer he'd purchased was under-powered.  In 2010, the farmer of 2,300 acres spent considerable time researching options and decided on a 2010 Agchem 1184 RoGator ("1184") at a purchase price of $328,500 (before trade-in). The sprayer was delivered on May 11, 2010.  The farmer started using the sprayer on May 12, 2010 and complained that day to the sales representative that the sprayer was under-powered.  Namely, it was working too hard at the speed at which the farmer wished to operate.

Over the next several days, adjustments were made to the engine and tests were conducted.  The representative of the manufacturer concluded that the sprayer was working as intended.  The farmer disagreed and continued to complain that the machine was under-powered.

The farmer invoked Section 36 of Saskatchewan's The Agricultural Implements Act, R.S.S. 1978, c. A-10, and sent a notice of rejection.  Under the Act, the vendor then had seven days in which to try to remedy the problem.  However, by that time, the vendor and the manufacturer had already concluded that there was no problem with the machine.  No further action was taken.

Ultimately, the farmer demanded his money back.  He parked the sprayer at the farm and never used it again.  It was sold at public auction in 2012.  The farmer sued the vendor for breach of warranty on the basis that the machine did not perform well for the work it was intended.

The Court found that the farmer failed to discharge his burden of proving that the warranty in Section 36(4) of the Act was breached - "Every contract for the sale of a new implement is deemed to include a warranty that, if the new implement is properly used and operated, it will perform well the work for which it is intended."  The Court accepted the evidence of the manufacturer's representative who found that the sprayer operated properly - he observed that the sprayer was spraying properly and at an acceptable speed (given wet field conditions).  The Court also took note of the fact that the machine appeared to have completed its spraying operations successfully; in 2010, the sprayer was used for 1,400 acres with no evidence of any adverse effect on crop performance. The farmer's claim was dismissed.

Read the decision at: Coward v Kramer Ltd.

Court of Appeal reverses Bear Creek natural severance ruling

The Court of Appeal for Ontario has overturned a recent Superior Court decision that found a property to have been severed naturally by a creek.  The owners of the property wished to deal with the property on the basis that it was severed into two parts by the creek running through it.  The local municipality challenged that view, but the Superior Court ruled that there was a natural severance resulting in two separate parcels of land.

On appeal, the Court of Appeal found that the evidence put before the lower court "was not capable of establishing that the Creek as it passed over the respondents' property was a navigable stream ... Title to the bed of the Creek does not lie with the Crown.  There is no natural severance of the respondents' property."  In the original application, the main issue was whether the creek had been navigable at the time of the original grant of lands in the area.  If it had been, then ownership of the creek bed was reserved to the Crown and the properties bisected by the creek would be divided into two severed parts.

Read the decision at: Middlesex Centre (Municipality) v. MacMillan.

Federal Court of Appeal overturns Northern Gateway approval

The Federal Court of Appeal has quashed the decision by the Federal Cabinet to approve the Northern Gateway pipeline project on the basis that Canada failed to consult adequately with First Nations on the pipeline route.  With changes to the National Energy Board Act made by the previous government, pipeline projects like the Northern Gateway project are subject only to a review by the National Energy Board.  The NEB then makes a recommendation to the Federal Cabinet, which has the ultimate say in whether a project is approved.

The appeal court ruled that Canada failed in its approach to consultation with First Nations on the project, noting that the government carried out consultations in a "brief, hurried and inadequate" way.

Read the decision at: Federal Court of Appeal.

TransCanada pipeline easement beneath swimming pool nixes property sale

The Plaintiffs in this case wanted to sell their residential property.  They listed the property for sale and the Defendant agreed to purchase it for $1,685,000.  The Agreement of Purchase and Sale was dated August 25, 2014 and the transaction was scheduled to close on November 28, 2014.  The property featured a pool, cabana and patio in the backyard.

After entering into the Agreement of Purchase and Sale, the Defendant discovered that a TransCanada Pipelines Limited ("TCPL") easement ran directly under the pool, cabana and patio.  An agreement provided that TCPL could remove the pool and cabana if necessary, and the agreement and the easement were the subjects of ongoing litigation between the Plaintiffs and TCPL.  The Agreement of Purchase and Sale between the Plaintiffs and the Defendant did not expressly reference the easement or the litigation.

The Defendant discovered the easement on November 6, 2014.  On November 7, 2014, the Defendant advised the Plaintiffs that he would not close the deal, and requested the return of the $50,000 purchase deposit.  The Plaintiffs refused to return the deposit and commenced an action against the Defendant for damages resulting from the failure to close the deal.  The Defendant counterclaimed for the return of the deposit.

As the Court explains in its decision on the claim and counterclaim, the Plaintiffs had constructed the pool, cabana and patio in 2011 without the consent of TCPL.  The TCPL easement dated from 1992, but the Plaintiffs were apparently unaware of it when excavations began (it was actually the second of two TCPL easements on the property).  TCPL permitted the Plaintiffs to encroach on the TCPL easement on certain conditions including:

(a)   The owners agree to sign a formal agreement prepared by TCPL which will be registered against the title of the land and will carry forward with future ownership;

(b)   In the event TCPL’s future operations, new installations, integrity or maintenance programs require the removal of the improvements (the pool and cabana) situated on its easement, the Owner agrees to remove the improvements immediately upon receipt of notice. The Owners and TCPL agree to equally share (50/50) the cost to remove the improvements;

(c)   The Owners covenant and agree that upon the Owner’s sale or disposition of the Lands, the Owners shall fully disclose the restrictive covenant to any prospective purchaser.

A letter containing those terms was registered on title to the property, but the Plaintiffs did not otherwise advise the Defendant of the letter or the subsequent litigation between TCPL and the Plaintiffs.

After the Defendant failed to close the transaction, the Plaintiffs defaulted on their mortgage and the property was sold under power of sale in May, 2015 for $1,730,000.  Although the sale price was higher than the price the Defendant would have paid, the Plaintiffs claimed they received $78,100 less in the power of sale because of the difference in the real estate commission charged (5% vs. 2.5%).

The Plaintiffs brought a motion for summary judgment seeking the damages they claimed from the Defendant.  Instead, the Court dismissed the Plaintiffs' claim and granted judgment to the Defendant for the return of the $50,000 deposit.  The Court ruled that the Defendant was entitled to rescind the Agreement of Purchase and Sale because the (second) TCPL easement and associated encroachment agreement and litigation had not been disclosed to the Defendant in the Agreement of Purchase and Sale.  As the Court noted:

The reference to a single easement in Schedule A of the APS did not provide the defendant with notice or disclosure of the 1992 easement or the June 2, 2011 letter agreement. Schedule A did not referentially incorporate the 1992 easement or make it part of the APS. This is especially true when the wording of Schedule A is compared to the wording of Schedule A in the earlier Purbas APS, which specifically referenced the TCPL litigation. Accordingly, the existence of the 1992 easement, the June 2, 2011 letter agreement, the unexecuted “Agreement To Install Swimming Pool and Cabana”, and the cloud of the litigation in relation to the plaintiffs’ refusal to execute the agreement, all meant that the plaintiffs did not comply with paragraph 10 of the APS which required the title to be free from all registered restrictions except as specifically provided in the agreement.

Read the decision at: Savo and Robichaud v Moursalien.

Grain Farmers of Ontario Neonic Appeal Dismissed

The Court of Appeal for Ontario has dismissed the appeal by the Grain Farmers of Ontario ("GFO") related to its challenge of Ontario's neonicotinoid regulations.  As noted by the Court, GFO was concerned that the regulation was unworkable, would produce little benefit, and would significantly impair the ability of grain farmers to protect their crops from damaging insects.  However, the Court of Appeal has ruled that the regulation is not ambiguous and that GFO has not identified a genuine dispute about the rights and obligations of farmers - "to grant the remedy that GFO seeks would be tantamount to amending a regulation through interpretation, a remedy well outside the court's discretionary power to order declaratory relief."

The Court of Appeal found that the motion judge (who originally dismissed GFO's application) was correct to strike the application on the basis that it presented no genuine issue for determination. Even if, as GFO pleaded, the regulation creates financial hardship, is futile, and provides little environmental benefit, "neither the wisdom nor the efficacy of a regulation is a justiciable issue."  The remedies sought by GFO are "solely within the powers of the legislative and executive branches of government."

Thankfully for grain farmers, the Court did not order costs of the appeal against GFO. While GFO will likely be responsible for the costs of its own lawyers, it won't have to pay the costs of the government's lawyers.

Read the decision at: Grain Farmers of Ontario v. Ontario (Environment and Climate Change).

Conservation Authority planning to appeal Divisional Court decision

This relates my previous post on the Gilmor v. Nottawasaga Valley Conservation Authority decision of the Divisional Court.  It appears that the NVCA plans to appeal the decision and is seeking leave to appeal from the Court of Appeal.  This is indicated in a ruling in a related Human Rights Tribunal matter (see AG v. NVCA) commenced by one of the landowners involved.

UPDATE:  Leave to appeal was granted to NVCA on February 19, 2016 by the Court of Appeal for Ontario.

Interest on expropriation damages awarded for time before land actually expropriated

The Ontario Divisional Court has dismissed an appeal from an Ontario Municipal Board ("OMB") decision that awarded interest to a landowner under the Expropriations Act for a period prior to the actual expropriation.  In this case, a local school board expropriated land for a school site.  The landowner had registered a subdivision plan on the lands in question and, in February, 2005, wrote to the school board to advise that, failing an agreement to sell the property to the school board, the landowner would be proceeding with the development of residential lots on the land.

Rather than attempting to negotiate an agreement (reportedly because of a change of control over the landowner company and uncertainty as to the identity of the controlling interest), the school board registered an expropriation plan on June 1, 2006.

The market value of the land taken was determined by the OMB to be a little over $2 million.  On the issue of interest payable on that amount under the Act, the OMB ruled that interest could accrue from a date preceding the date of expropriation.  The OMB determined that the productive use of the land actually ceased in December, 1999 when a "district plan" that governed land use in the area received draft approval.  That plan stated that the land in question was to be used as a school site.  The interest payable by the school board for the period between 1999 and 2006 amounted to between $600,000 and $700,000.

The Divisional Court upheld the OMB's ruling that interest was payable from the date of loss of the use of the expropriated asset and that, in this case, that date was December, 1999.  As the Divisional Court notes:

In my view, the board member applied the correct test by seeking to determine the earliest date at which the potential for expropriation prevented the use of the lands, either because the Municipality would not permit further development or because it would not have been prudent for Erbsville to spend money for that purpose.  In the present case, the distinction between these two potential triggering events is inconsequential.  The board member found that both events occurred on the date that Plan 30T-97017 received draft approval.  As I will explain, I believe that finding was reasonable.

Read the decision at: Erbsville Road Development Inc. v. Waterloo Region District School Board.

Ontario Court of Appeal rules on contaminated lands case and Section 99(2) EPA liability

The Ontario Court of Appeal has allowed an appeal from a decision that dismissed a contamination claim by one landowner against a neighbour.  Thorco Contracting stored a large volume of petroleum hydrocarbons ("PHCs") on its property in an industrial area of Toronto for several decades.  PHCs contaminated the soil and groundwater on that property, and the contaminated groundwater flowed into a neighbouring property owned by Midwest Properties.  Midwest acquired its property in 2007 and then discovered the contamination.  It sued Thorco and its owner for damages based on nuisance, negligence and the statutory cause of action in Section 99(2) of Ontario's Environmental Protection Act.

The trial judge ruled that Midwest failed to prove that it had suffered damages because, in particular, it had not proven that the PHC contamination lowered the value of its property; it was not enough to prove the cost required to remediate the property.  The trial judge also ruled that the Section 99(2) claim was not available because the Ministry of the Environment ("MOE") had already ordered Thorco to remediate the property; an award of compensation might permit double-recovery.

The Court of Appeal overturned the trial judge's decision and granted judgment against Thorco and its owner jointly and severally in the amount of $1,328,000 based on all three causes of action.  Midwest was also awarded $50,000 in punitive damages from each defendant.

With respect to the Section 99(2) statutory cause of action, Justice Hourigan of the Court of Appeal wrote:

In my view, the trial judge erred in her interpretation and application of the private right of action contained in s. 99(2) of the EPA. This private right of action was enacted over 35 years ago and is designed to overcome the inherent limitations in the common law in order to provide an effective process for restitution to parties whose property has been contaminated. The trial judge’s interpretation of the section is inconsistent with the plain language and context of this provision; it undermines the legislative objective of establishing a distinct ground of liability for polluters. This is remedial legislation that should be construed purposively. It is important that courts not thwart the will of the Legislature by imposing additional requirements for compensation that are not contained in the statute.

With respect to the claim for damages, Justice Hourigan wrote:

Neither Tridan nor Canadian Tire involved a claim under s. 99(2) of the EPA. There is no reported case where a court has awarded damages for the cost of future remediation under this section. Nonetheless, in my view, awarding damages under s. 99(2) based on restoration cost rather than diminution in property value is more consistent with the objectives of environmental protection and remediation that underlie this provision.

This approach to damages reflects the “polluter pays” principle, which provides that whenever possible, the party that causes pollution should pay for remediation, compensation, and prevention: see Pardy, at p. 187. As the Supreme Court has noted, the polluter pays principle “has become firmly entrenched in environmental law in Canada”: Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58 (CanLII), [2003] 2 S.C.R. 624, at para. 23. In imposing strict liability on polluters by focusing on only the issues of who owns and controls the pollutant, Part X of the EPA, which includes s. 99(2), is effectively a statutory codification of this principle.

Further, a plain reading of s. 99(2) of the EPA suggests that parties are entitled to recover the full cost of remediation from polluters. Pursuant to s. 99(2)(a), a party is entitled to recover all “loss or damage” resulting from the spill. Section 99(1) provides that “loss or damage” includes personal injury, loss of life, loss of use or enjoyment of property and pecuniary loss, including loss of income. Section 99(2)(b) provides that a party has a “right to compensation for all reasonable cost and expense incurred in respect of carrying out or attempting to carry out an order or direction under this Part, from the owner of the pollutant and the person having control of the pollutant.” In my view, under either part of s. 99(2), polluters must reimburse other parties for costs they incur in remediating contamination.

In summary, restricting damages to the diminution in the value of property is contrary to the wording of the EPA, the trend in the common law to award restorative damages, the polluter pays principle, and the whole purpose of the enactment of Part X of the EPA. It would indeed be a remarkable result if legislation enacted to provide a new statutory cause of action to innocent parties who have suffered contamination of their property did not permit the party to recover the costs of remediating their property, given the EPA’s broad and important goals of protecting and restoring the natural environment.

Read the decision at: Midwest Properties Ltd. v. Thordarson.

OMB awards costs to Municipality where landowner's claim for expropriation compensation denied

The Ontario Municipal Board ("OMB") has awarded costs to the County of Simcoe in a case where a landowner unsuccessfully claimed compensation for injurious affection.  The OMB's decision is recounted in my blog post from June, 2015 - OMB dismisses claim for injurious affection where no taking - on merits and on basis of limitation period.

The OMB has discretion under Section 32(2) of the Expropriations Act to award costs in favour of the expropriating authority.  In this case, the County of Simcoe had incurred a discounted amount of $165,176.55 consisting of legal and appraisal costs.  The County's claim for costs was made on the grounds that, "if the Claimant had conducted itself in a reasonable and prudent manner, it would never have brought this claim and that the way in which the Claimant governed itself throughout this claim unjustifiably increased costs which otherwise could have been avoided."  The OMB's reasons also disclose that the County had actually made an offer to the landowner of $15,000 to settle after the landowner retained counsel for the matter.

The County claimed "party and party" or "partial indemnity" costs in the amount of $113,922.48.  The OMB decided that the landowner's conduct in refusing the settlement offer was unreasonable and, therefore, that it should be responsible for some of the costs of the County incurred in defending the claim.  The OMB awarded $86,943.20 to the County.

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

Landowners found guilty of violating excessive fortification of land by-law through excessive surveillance equipment

In October, 2015, the Ontario Court of Justice released its decision in a case involving the fortification of property.  Many municipalities outlaw the excessive fortifying of property as it is often associated with gang or organized crime activity and may unduly intrude on the privacy of neighbours.  A husband and wife in Oshawa were charged with having applied "excessive protective elements to land", in this case video surveillance (8 cameras in front of the house, one to the south side, one on the fence at the northwest portion of the back yard and one affixed to a rear yard television antenna tower).  Various signs were also posted around the property, including one that read: "This private property & fence is enforced by video surveillance.  This is not a public thruway or thoroughfare.  Boundary line is 6" left of fence.  Resident has no permission or authority whatsoever to violate this boundary.  Persons entering this private sideyard on behalf of resident could be considered part of resident's continuance actions.  Also could be considered and served court subpoena as witnesses should action be decided or taken."

After several requests for entry to the house by a by-law officer were denied, the officer applied for and obtained a search warrant.  Inside the house, the officer observed live images from each of the 11 cameras, and determined that was possible for the antenna camera to be rotated 360 degrees and to provide a view well beyond the property of the defendants.  The officer determined that the video surveillance went well beyond "reasonable protection" that would not offend the by-law.

The defendants challenged the by-law charge first on the basis that the officer's search of their home was illegal.  Justice of the Peace Coopersmith disagreed - there was a valid search warrant.  She also disagreed with the defendants' arguments about the non-applicability of the by-law to private property:

Mr. L is prone to taking things out of context or simply does not understand the law or legal principles to which he refers.  Consequently, he draws his own unfounded conclusions.  For example, he failed to contextually understand the concept of a municipality as possessing powers of a “natural person” in exercising its authority.  He used parts of the Ontario Land Owners Association Report to ground his submission that “Fortification By-laws can only be implemented on “public properties” and not on private properties.”  I do not accept Mr. L’s submissions that fortification by-laws do not apply to private property, only to public lands. The definition of “Land” in Section 1.1(p) of Oshawa’s Fortification By-law 103-2005 does not distinguish between public and private lands.  Section 2.1 expressed the application of the By-law to all land within the City, unless it is expressly exempted by legislation.  Therefore, I find the L’s property at 1988 Walreg Drive in Oshawa is captured by the By-law’s definition of “Land”.

On the issue of what constitutes "reasonable protection", which is not prohibited by the by-law, Justice of the Peace Coopersmith said:

The term “reasonable protection” is not defined in the City’s By-law 103-2005.  Hence, applying a contextualized and plain meaning to these words, I am of the opinion that the words refer to adequate fortification that will afford the protection necessary to keep people and their property from theft or other criminal activity.  I accept that over the years the defendants experienced a break and enter into their dwelling and other incidents of vandalism to their property.  I do not find the meaning of “reasonable protection” to include protection from incidents or harassment of trivial importance, such as annoyed neighbours making faces and waving their middle fingers at the intrusive surveillance cameras aimed down the side of their home.  In a residential area, for example, the public interest in reasonable enjoyment of and privacy in one’s property is not served if excessive protective elements, such as video surveillance cameras capable of monitoring neighbours’ activities in their own homes and on their own yards, are present. 

The City’s Fortification By-Law 103-2005 serves to balance such public interest within residential neighbourhoods with the private interests of residents to protect their own property from theft or other criminal activity.  The By-Law suffices to allow people to protect themselves and their property from theft or other criminal activities, but it also limits the use of protective elements, such as video surveillance systems, to no more than is required for such protection.  In defining “Excessive Protective Elements” to capture visual surveillance equipment, including video cameras … capable of permitting either stationary or scanned viewing … beyond the perimeter of the Land”, Oshawa’s By-Law strikes a reasonable balance between private and public interests by affording its residents the right to monitor for theft or other criminal activity on their own respective properties, while serving the public interest of privacy and peaceful enjoyment by residents on properties in relatively close proximity to such video surveillance equipment.

The defendants were convicted of having violated the by-law.

Read the decision at: Oshawa (City) By-Law.

Natural Severance Case Being Appealed

In May, 2015, I wrote about a decision from the Superior Court of Justice in which a property was found to be severed naturally by a navigable watercourse - the Bear Creek (see Court Rules that Bear Creek was navigable in 1831).  The case is now under appeal by the Municipality and a hearing has been scheduled for February 4, 2016 in Courtroom 2 at the Court of Appeal (Osgoode Hall) in Toronto.

GFO Appeal on Neonicotinoid Decision to be heard in March

According to the Grain Farmers of Ontario ("GFO"), its appeal of the decision rejecting its challenge of Ontario's new neonicotinoid regulations will be heard by the Ontario Court of Appeal in Toronto on March 9, 2016.

I commented on this case back in November, 2015: 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.

I still think GFO has a very steep hill to climb in challenging what is a policy decision of the Ontario government.  Generally, the Courts will not interfere in policy decisions of the government unless those policies were made without authority or violate some overriding constitutional or other right.  Courts will interfere where government enacts a policy but fails to follow it.  That's not likely the case here.