The Mythical Inoperable Tractor

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

This month’s article doesn’t have much to do with farming, but I couldn’t pass on the opportunity to share a farming-related analogy at the centre of a recent impaired driving case.  A “mythical inoperable tractor” served as the basis for the initially (but not ultimately) successful defence of the charge. 

The facts of the case are simple.  A driver was involved in a single motor vehicle accident in the early morning hours one day in December, 2019 in the City of Toronto.  The sound of the accident had been overheard by a witness who happened to be walking home at the time. When that witness arrived at the scene, he found a vehicle stationed under a streetlight and off the travelled portion of the road and noted that the vehicle was not running and had its four-way flashers engaged.  There was a man behind the wheel of the vehicle and there was a female present outside the vehicle.  The witness did not see the accident and there were no other witnesses who had seen any accident. 

The man in the driver’s seat was arrested for impaired operation of a motor vehicle on the basis of two breath samples showing his blood alcohol over the legal limit.  At his trial in June, 2022, the accused did not call any evidence or testify in his own defence.  Instead, he relied on an expert report that was entered into evidence with the consent of the Crown.  The expert report confirmed that the accused’s vehicle was completely inoperable at the time it was discovered and was immobile.

The accused was acquitted at trial.  The trial judge accepted that the vehicle was inoperable and immobile when the accused was found sitting in the driver’s seat with a blood alcohol level above the legal limit.  There had been an accident, but it was not proven beyond a reasonable doubt that the accused was driving the vehicle at the time of the accident.  The accused was found sitting in the driver’s seat and could be found to have had the “care and control” of a “conveyance” necessary to support a conviction for impaired driving.  However, the trial judge ruled that “care and control” of a “conveyance” had not been proven beyond a reasonable doubt in spite of the following presumption set out at Section 320.35 of the Criminal Code: “In proceedings in respect of an offence under s. 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat of position for the purpose of setting the conveyance in motion.”

The trial judge likened the situation to that of the “mythical inoperable tractor” found in the middle of a farmer’s field: could an individual seen drinking alcohol in a rusted-out old tractor with no windows or tires be convicted of impaired driving?  Would it not be unreasonable to convict where there was no realistic or even speculative risk of danger and no evidence of intent to put the tractor in motion?  The trial judge accepted that where it had been proven that a vehicle was inoperable and immobile and posed no apparent danger to the public, and there was no evidence of an intent on the part of the accused to drive the vehicle, the presumption in Section 320.35 of the Criminal Code did not provide the “care and control” of a “conveyance” necessary for a conviction.

The acquittal of the accused was appealed by the Crown to the Superior Court of Justice.  On appeal, the acquittal was overturned and the matter remitted to the Ontario Court of Justice for a new trial.  Although the appellate judge saw some “appeal” to the accused’s argument (and the trial judge’s reasoning) about the “mythical inoperable tractor”, the judge found nothing in the language of Section 320.35 of the Criminal Code that suggests that the presumption of “care and control” can be rebutted simply by establishing that a vehicle was inoperable and posed no risk to public safety.  The definition of “motor vehicle” in the Criminal Code does not exclude an inoperable vehicle.  If Parliament wished to make such an exclusion, it could through an amendment to the Code. 

What the trial judge got wrong in his decision was that there was an onus on the accused to show that he was not sitting in the driver’s seat “for the purpose of setting the conveyance in motion.”  It was not for the Crown to prove the intention; it was for the accused to prove the absence of an intention to drive the vehicle.  As the accused called no evidence at trial (save for the expert report that went in on consent), there was no evidence of an absence of intention.  The “mythical inoperable tractor” got the accused part way in rebutting the presumption of “care and control” of a “conveyance”, but not far enough.

Read the decision at: 2024 CanLII 24885 (ON SC).

Get on with your deal or lose the farm

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

A recent decision of the Ontario Superior Court of Justice tells a sad tale of sisters fighting over the family farm.  The 100-acre farm with a two-storey farmhouse and bank barn had been in their mother’s family since the 1920s.  By the time the father died in the late-2000s, the mother was living in a long-term care home, incapable of managing her property.  Her four daughters held power of attorney for property, but could not agree on how to manage the property including the farm.  For five long years, the sisters engaged in “bitter litigation”, launching court actions back and forth.

Things looked up by the end of 2015 when the sisters resolved their litigation through Minutes of Settlement.  They agreed to structure their mother’s property so that it would be divided equally among the sisters consistent with the wording of their mother’s will.  With respect to the farm, though, the will and a codicil to the will directed that the farm not be sold for one year after the mother’s death “to enable one or more of my children to find a way to keep it in the family, failing which the farm shall be sold and the proceeds shall form a part of the residue of my estate. It is my fervent wish that my children will assist one another in ensuring that, if at all possible, the farm will remain in the ownership of one or more of them.”

The sisters’ mother passed away in late-2020, triggering a countdown of sorts towards dealing with the farm property.  By the mother’s date of death, the farm was valued at approximately $1.9 million.  However, in 2014, the farm had been appraised at $890,000 and the sisters had already agreed in their Minutes of Settlement that two of the sisters would pay the other two sisters $422,750 for the farm (being one-half of the $890,000 less $44,500 real estate commission).  Each sister was entitled to one-quarter of the value of the farm property.  Title to the property was to be transferred to the purchasing sisters by a closing date to be the later of a date in February, 2016 and the date on which certain of the mother’s investment assets were to be disbursed.

The farm transaction was not completed in February, 2016.  By March, 2018, the transaction had still not been completed.  The selling sisters wrote to the purchasing sisters stating: “the agreement was not intended to extend over a period of time and needs to be fulfilled”.  They set a deadline of April 15, 2018 for completion of the deal failing which they would conclude that the purchasing sisters didn’t “intend to fulfill the Minutes of Settlement” and would “take the appropriate course of action.”

Fast-forward to 2022 and the purchasing sisters commenced a court application asking the Court to order that they could pay $422,750 to the selling sisters and that the selling sisters would have to transfer to the purchasing sisters title to the farm.  Again, as at the time of the mother’s passing in 2020, the farm had been valued at about $1.9 million – a $422,750 purchase price would represent a discount on the 2020 value of the farm of more than 50%.  It was the court application brought by the purchasing sisters that culminated in the recent Superior Court decision.

Madam Justice C. D. Braid heard the application and concluded the following: 1) the Minutes of Settlement were a contract between the sisters; 2) the purchasing sisters “repudiated” the contract by failing to complete the transaction with the selling sisters; and, 3) the selling sisters accepted the repudiation of the contract, bringing their agreement to accept $422,750 in exchange for the farm to an end.  As such, the purchasing sisters were no longer entitled to purchase the farm pursuant to the terms of the Minutes of Settlement.

While the purchasing sisters had never expressed an intention not to complete the transaction as required by the Minutes of Settlement, Justice Braid found that the purchasing sisters’ “extreme delay” meant they repudiated (or disavowed) their contract with the selling sisters.  Where a contract contains sufficiently clear terms about price, the property, and the parties, the Court will infer that the parties expect a transaction to be closed “within a reasonable period of time”.  Where a contract doesn’t stipulate a specific time of performance, the law implies a term that the contract is to be performed “within a reasonable time”.  Where delay in performance “becomes so long as to go to the root of the contract”, the contract will be considered repudiated or fundamentally breached and the party suffering the delay will be excused from performance.

Faced with repudiation of the Minutes of Settlement by the purchasing sisters, the selling sisters could have chosen to keep the contract alive and have sought to enforce the deal.  However, it was their option to accept the repudiation and end the contract.  With the Minutes of Settlement now unenforceable, Justice Braid ordered that the family farm be sold on the open market and the net proceeds from the sale be divided equally between the sisters in accordance with their mother’s will.  Her Honour did specify that the purchasing sisters were not prohibited from making an offer to purchase the farm once it was listed, but the purchasing sisters had lost the opportunity to buy the farm at the 2014 price.

Read the application decision at: 2024 ONSC 603 (CanLII).  

UPHELD ON APPEAL: 2024 ONCA 791 (CanLII).

Court not convinced that area is wetland – farmer acquitted

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

Conservation Authorities in Ontario are authorized by the Conservation Authorities Act (the “Act”) to make regulations “prohibiting, regulating or requiring the permission of the authority for straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse, or for changing or interfering in any way with a wetland”.  Authorities can also make regulations “prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development”.  There is almost no area within Southern Ontario that is not subject to a regulation passed by a local or regional Conservation Authority.  However, generally, these regulations can only apply to river or stream valleys, hazardous lands or wetlands – “regulated areas” or “zones”.   

What constitutes a regulated area or zone is not always obvious.  For instance, a river or stream valley doesn’t actually have to contain a watercourse – the regulations can apply to areas with “depressional features associated with a river or stream”.  The Act defines “hazardous land” as “land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock”, but doesn’t define what might be unsafe.  To be considered “wetland” under the Act, land must meet the following four highly technical requirements (and not fall under the exception):

(a)            be seasonally or permanently covered by shallow water or have a water table close to or at its surface,

(b)          directly contribute to the hydrological function of a watershed through connection with a surface watercourse,

(c)           have hydric soils, the formation of which has been caused by the presence of abundant water, and

(d)            have vegetation dominated by hydrophytic plans or water tolerant plants, the dominance of which has been favoured by the presence of abundant water, but not be periodically soaked or wet land that is used for agricultural purposes and no longer exhibits a wetland characteristic referred to in clause (c) or (d).  [emphasis added]

The regulation of development also applies to “other areas where development could interfere with the hydrologic function of a wetland, including areas within 120 metres of all provincially significant wetlands and areas within 30 metres of all other wetlands.”

In a prosecution by a Conservation Authority for development in a regulated area without a permit or for interference with a wetland, the Authority must establish beyond a reasonable doubt that the activity carried out by the party charged occurred within a regulated area.  The Ontario Court of Justice recently dismissed charges against a farmer related to clearing work carried out in 2019 because the Conservation Authority failed to prove beyond a reasonable doubt that the area cleared was a wetland, as was alleged by the Authority.  The farmer had removed trees and vegetation from a “wooded area” located between tile-drained cultivated land to the north and east and intersecting drainage ditches to the south and west.  The land was cleared to extend the tile drainage system and bring the land under cultivation.  After receiving an anonymous complaint about trees being removed from the farmer’s property and conducting a further investigation, the Conservation Authority laid various charges, including a charge for interference with a wetland. 

At trial, both the Conservation Authority and the farmer called expert witnesses to testify on the question of whether the area cleared was, in fact, a wetland.  The Authority called one of its employees who had taken soil samples from the cleared area a few months after the clearing work was completed and took photos.  She confirmed that on her visit to the site in the midst of the spring thaw in April, 2020 she did not observe water on the cleared area.  She confirmed that she did not encounter the water table in any of her examinations of the area.  However, the Conservation Authority’s expert witness did say that the clay soil and “orange soil” she encountered could be indicators of hydric soils.  Also, she observed vegetation that she considered to be “hydrophytic plants” adjacent to the cleared area and in the piles of cleared vegetation or “slash piles”.  The Authority’s expert’s opinion was that the cleared area met the statutory definition of a wetland.

The farmer’s expert witness dug two 1-metre-deep pits just outside the cleared area to assess the soil in the cleared area.  His opinion was that hydric soils must contain gley soil, a rich grey clay-like soil.  The farmer’s expert did not encounter any gleys.  While he did find that the soils were imperfectly drained and opined that imperfectly drained soil could be considered hydric soil depending on the vegetation present, his conclusion was that the cleared area was not a wetland within the meaning of the term used in the Act.

The Justice of the Peace presiding over the case observed that there was no evidence that the cleared area was seasonally covered by water, that any hydric soils present were caused because of an abundance of water in the area, or that hydrophytic or water tolerant plants dominated the area (as favoured by an abundance of water).  As such, three of the four requirements for a “wetland” under the Act were not met and the wetland interference charge had to be dismissed.

Statute Labour for the 21st Century?

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

I probably shouldn’t have been surprised, but I was surprised upon learning recently of a municipal by-law requiring landowners to keep grass and weeds down below a maximum height on the municipal boulevard abutting private properties.  The by-law was passed by an urban municipality – a city in the GTA area – and applies to all “private land” regardless of its use.  While it is easy to picture the small strip of grass located between the edge of the street or sidewalk and a residential front yard and to understand why a municipality might expect the homeowner to cut the grass on the boulevard (road allowance) strip if the homeowner is cutting the lawn on the private property anyway, what about larger farm properties or industrial properties within the municipality?  Is it fair to impose an obligation to maintain large stretches of municipal property on non-residential landowners?  Is it legal?

It turns out that boulevard maintenance by-laws are fairly common in Ontario.  A 2012 report from the “Boulevard Maintenance Task Force” to municipal council in one community explains the rationale and authority for the by-laws:

“Most residents and business owners … assume responsibility for maintaining turf areas on municipal boulevards abutting their properties, however, some property owners only cut the grass within their own fenced yards or only up to the limit of the sidewalk fronting their homes.  This practice creates an unsightly, unkempt appearance within the community particularly on residential corners and side lots. 

 

[…]

 

“Amendments to the Ontario Municipal Act now authorize municipalities to enact By-laws requiring property owners to maintain the boulevard areas abutting their private properties.  Enforcement of the By-law would be similar to the current practice whereby Enforcement Officers would respond to complaints by conducting site visits and providing formal notice to the owner to cut the grass.  However, if the owner chooses to ignore the notice, the Town will undertake the work and add the costs incurred (including administration and overhead) to the tax roll.”

I have been unable to find any specific authorization in the Municipal Act, 2001 for by-laws that require property owners to maintain abutting municipal lands, whether within a road allowance or not.  The preamble to the by-law I looked at from the GTA-area municipality refers to the very broad authorizations in Section 11 of the Act, which permit by-laws for the “economic, social and environmental well-being of the municipality, including respecting climate change” and for the “health, safety and well-being of persons.”  The Act also provides that municipalities may require a property owner to clean and clear the owner’s own land and may prohibit and regulate with respect to public nuisances.  However, there doesn’t appear to be any specific authority to require private landowners to carry out maintenance work on municipal-owned property. 

Another by-law I reviewed stated in its preamble that: “AND WHEREAS … section 446 of the Municipal Act, S.O. 2001, c.25, grants a municipality the authority to direct or require a person to do a matter or thing, and the municipality may also provide that, in default of it being done by the person … directed or required to do it, the matter or thing shall be done at the person’s expense and, the municipality may recover the cost of doing a matter or thing from the person directed or required to do it by action or by adding the costs to the tax roll and collecting them in the same manner as property taxes”.  However, Section 446 of the Act doesn’t actually grant authority to order someone “to do a matter or thing” – it only provides for the municipality’s right to charge back the cost of doing the matter or thing where a person doesn’t do it.  The municipality still has to have had the legal authority to order someone to do something in the first place. 

So are municipalities really authorized to order landowners to maintain the municipal boulevard or road allowance adjacent to private lands?   Keeping weeds and grass down to an acceptable height along streets and highways is certainly a reasonable goal that should be supported by all members of a community.  However, boulevard maintenance by-laws don’t just call on certain members of the community to devote time and expense to the upkeep of public lands; a requirement to carry out work on municipal lands also shifts the risk of liability to private landowners.  I didn’t see any by-law that mentioned protections for landowners who are required to enter upon and carry out work on boulevards or road allowances.  If damage is done or someone gets hurt, the landowner may very well be on the hook.

If there is legislation that authorizes a municipality to require private landowners to carry out operations on abutting municipal lands (and to take on the risk of liability), it doesn’t seem to me to be the Municipal Act, 2001.  There used to be a law in Ontario called the Statute Labour Act, which obligated landowners to contribute labour to maintain municipal roads.  The law dated back to the first Acts of the Parliament of Upper Canada in 1793 and effectively enabled property owners to contribute labour in lieu of paying taxes in cash.  The original Act provided: “That the roads and highways, in and through every parish, township or reputed township shall be cleared, repaired and maintained by the inhabitants thereof, and that every person being a householder or freeholder, shall either in person or by a sufficient man in his stead, be obliged to work on the roads …”.  The Statute Labour Act was repealed on January 1, 2022 and no new legislation has been passed to replace it.