Tingle voltage appeal dismissed by Ontario Court of Appeal

The Court of Appeal for Ontario has upheld the dismissal of a damage claim by dairy farmers who alleged tingle voltage or stray voltage as the cause of reduced milk production.  The trial judge accepted the expert evidence of the claimants that tingle voltage could cause the type of harm alleged, but found that it was not the cause in this case.  The Court of Appeal noted:

"The trial judge considered the whole of the evidence and importantly found that if tingle voltage had been the cause of the reduced milk production from 1997 forward, there would have been overt signs on the herd. He concluded that the evidence did not demonstrate such signs and accordingly the appellants had not established that the herd was being affected by tingle voltage. In his view, milk production had been relatively good in 1995 and 1996 and declined thereafter and there was no change in the hydro system that could account for the changes after 1997."

While the trial judge had found that Hydro One had breached the standard of care in failing to give adequate warning to farmers about the possible harms caused by tingle voltage, the lack of causation between the tingle voltage and the loss of milk production was fatal to the claim.  The trial judge found that the only cause of milk production loss proven on a balance of probabilities was inadequate labour, and the Court of Appeal declined to interfere with this finding.

Read the decision at: Cowan v. Hydro One Networks Inc.

Ontario Court dismisses claim by dairy farmers re stray voltage

Ron and Helen Cowan purchased a farm near the Village of Earlton in the fall of 1991.  They moved to the farm in the spring of 1992 and began a dairy farming operation there later that same summer.  Although the farm seemed to enjoy a measure of success in its early years, it was later plagued by poor milk production, both in terms of quantity and quality.  By 2002 circumstances were such that they had no choice but to shut down their dairy farm, and to sell their herd and dairy quota. 

In an action against Hydro One, the Cowans alleged that the decline in their herd’s milk production was due to the presence of tingle voltage (or stray voltage) caused by the Hydro One system.  A trial was held to determine if this was so and to assess the damages alleged to have been suffered.  The Cowans claimed negligence and breach of contract against Hydro One and, in addition, made a claim for punitive damages.  Justice Robbie Gordon dismissed the farmers' claims, finding that causation was not proved (i.e. the Cowans failed to show that their damages, which would have been assessed to be $823,053.77, were caused by Hydro One).

Tingle voltage and stray voltage are terms used to refer to the same phenomenon, namely, the difference in voltage potential between two points that a farm animal might make contact with at the same time.  The word “potential” is used because it is only when an animal touches the two objects, each with a different voltage potential, that its body completes an electrical circuit allowing current to flow from one object, through the animal, to the other object.  If the difference in voltage between the two contact points is high enough, the animal may feel a tingling sensation, and hence the term tingle voltage.  In fact, what the animal is exposed to is the current in the circuit, not the voltage on the points of contact.

On the question of negligence, Justice Gordon ruled that Hydro One owed a duty of care to the Cowans to ensure that electricity was safely delivered to them.  Also, their relationship was of sufficient proximity to warrant the existence of the duty of care - it would be reasonably foreseeable that a failure to provide electricity safely could result in harm to Hydro One's customers.  In order to prove negligence, the Cowans had to prove conduct on the part of Hydro One that created an unreasonable risk of harm to them.

Justice Gordon found that tingle voltage levels in the Cowan barn were prone to frequent fluctuation due to the loads in use.  Tingle voltage levels would also vary dramatically depending upon where in the barn one is situated.  He was satisfied that on a given day, steady state tingle voltage levels at certain cow contact points will regularly exceed one volt; that on a given day, but with less frequency, steady state tingle voltage levels at certain cow contact points will exceed two volts but not exceed three volts; and, that on a given day, but with much less frequency, certain cow contact points will be exposed to transient tingle voltage levels in excess of three volts.

Justice Gordon also determined that, but for the Hydro One system, the tingle voltage on the Cowan farm was reduced to negligible levels.  The question then was whether there any conduct on the part of Hydro One that created an unreasonable risk of harm (i.e. negligent conduct).  The Cowans alleged: (1) Failure to ensure that the primary neutral was directly bonded to the secondary neutral by a jumper wire; (2) improperly placement of a sentinel light on the transformer pole; (3) failure to maintain adequate grounding along the F2 line; (4) failure to follow its standards and procedures for testing tingle voltage and resolving the tingle voltage issue at the Cowan farm; (5) failing to monitor and control current and voltage imbalance on the distribution system; and (6) failing to maintain a primary neutral wire of sufficient capacity. 

Although Justice Gordon found that, in some instances, Hydro One could have done things differently, he noted that the standard of care expected of Hydro One is not perfection.  That it could have taken steps that it did not was not the end of the inquiry.  It was also necessary to determine whether those actions breached the required standard of care, that is, whether those actions created an objectively unreasonable risk of harm having regard to the likelihood of a known or foreseeable harm, the gravity of that harm, the burden of cost which would be incurred to prevent the injury, industry practice, compliance standards, and statutory or regulatory standards.

Following his analysis, Justice Gordon found that Hydro One's practice of notification of farmers about the risks of tingle voltage was inadequate.  It was not enough to stuff bills with an information pamphlet on a few occasions.  The standard of care required that Hydro One have direct contact with customers it knew to be potentially vulnerable to advise them of increased risk.  Therefore, the Cowans were successful in establishing that Hydro One owed them a duty of care and breached the standard of care.  However, it still remained to show that they had suffered damages that flowed from the breach of the standard.

Justice Gordon accepted that voltage of the level and nature of those found to exist on the Cowan farm could, over the long term, lead to health and production issues for dairy cows.  He was not satisfied that such voltage levels adversely affect production without a contemporaneous effect on health, but he was satisfied that such voltage levels can lead to various health problems which can ultimately affect production.  The question was still whether the damages suffered by the Cowans were caused by the negligence of Hydro One. 

In the end, the Cowans were unable to prove this element of causation.  Justice Gordon found that Hydro One proved on a balance of probabilities that inadequate farm labour likely contributed to production problems in the dairy herd.  Other contributing factors could not be identified because of the inadequacy of the records kept by the Cowans.  On the whole, Justice Gordon was not satisfied on a balance of probabilities that tingle voltage was a contributing factor to the production issues experienced on the Cowan farm.  That it would have had a negative effect on production was belied by: (1) The positive production levels for the farm in 1995 and 1996; (2) the acceptable somatic cell counts recorded for most of the time the farm operated; and (3) the lack of health issues on the farm that ought to have been apparent had tingle voltage been causing significant stress to the cows.

Because causation was not proven, the Cowans' claim for breach of contract failed as well.  Justice Gordon also addressed the defence put forward by Hydro One based on its "Conditions of Service", which are implied terms of its contract with its customers.  The Conditions of Service currently limit Hydro One's liability for damages to those arising out of its negligence and exclude any liability for "any loss of profits or revenues, business interruption losses, loss of contract or loss of goodwill, or for any indirect, consequential, incidental or special damages, including but not limited to punitive or exemplary damages, whether any of the said liability, loss or damages arise in contract, tort or otherwise."  These terms are set down by the Ontario Energy Board through the Distribution System Code.  Justice Gordon ruled that the terms did not affect the Cowans' claim, as they came into effect in 2002 - long after the alleged negligent conduct of Hydro One.

Read the decision at: Cowan v. Hydro One.

Butternut Trees on your Ontario farm? Be aware of the Endangered Species Act, 2007

The following is a notice posted yesterday on the Environmental Bill of Rights (EBR) Registry in Ontario in connection with the proposed removal of ONE butternut tree:

Title:
Permit under clause 17(2) (c) of the Endangered Species Act, 2007 for Removal of one Butternut tree by Hydro One
 
Members of the public are invited to submit their written comments by June 21, 2010 to the contact person listed in this notice.

Rationale for Exemption to Public Comment:
 
This proposal is not prescribed by Ontario Regulation 73/94 under the Environmental Bill of Rights as a classified proposal for an instrument.

Ministry of Natural Resources (MNR) is voluntarily posting this notice to advise the public of the proposal and to invite the public to submit written comments on this proposal to the contact person identified in this notice.

Description:

Hydro One (applicant) has applied for a permit for the removal of one Butternut tree (Juglans cinerea) for the purpose of clearing and maintaining a transmission corridor beneath a transmission line located in Ottawa, Ontario.

Butternut is listed on the Species at Risk in Ontario List, in Ontario Regulation 230/08 under the Endangered Species Act, 2007 (ESA), as an endangered species. Clause 9 (1)(a) of the ESA, provides that no person shall kill, harm, harass, capture or take a living member of a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species.

The health of the Butternut tree at this site has been assessed by a qualified Butternut Health Assessor and was determined not to be severely affected by Butternut Canker and therefore retainable. The identification of retainable trees is based on an assessment of crown dieback and the coverage of the stem and root flare by cankers conducted by a qualified Butternut Health Assessor. Retainable trees do not qualify for the exemption in section 5 of Ontario Regulation 242/08 under the ESA and can not be removed without an authorization. The retainable Butternut tree within this project area would be removed.

The Minister may issue a permit to an applicant under clause 17(2)(c) of the ESA that authorizes the person to engage in an activity that would otherwise be prohibited by section 9 or 10 of the ESA if the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but,

(i) the Minister is of the opinion that an overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit,

(ii) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted, and

(iii) the Minister is of the opinion that reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit;

The options of leaving the tree in its current location and avoiding or transplanting it have been examined. The location of the Butternut tree would cause it to come in contact with overhead hydro-electric lines and potentially cause a future safety risk. Transplanting the tree has been considered as an option, but the tree is too large to be transplanted successfully.

An overall benefit could be achieved for Butternut by planting and tending replacement trees. Based on the size of the Butternut tree threatened with removal (i.e. diameter at breast height), the Forest Gene Conservation Association guidelines recommend that the applicant plant 5 seedlings from a local seed source in suitable sites. The ratio of five seedlings planted per tree removed is intended to provide an overall increase to the seed production capacity of the species. Establishing and tending to these seedlings in a protected area will result in a net increase in the local reproductive potential for the species.

To achieve overall benefit for Butternut, the applicant is proposing to plant a total of five new Butternut seedlings in Coronation Park, owned by the City of Ottawa. Hydro One would plant, tend and monitor the seedlings for a period of five years from the time of planting. Under the supervision of a qualified professional biologist or forester, the five Butternut trees would be planted in locations suitable to support Butternut. Tending and monitoring of the Butternut seedlings on site would take place over a five year period to ensure that at least half of the planted trees will be alive (e.g., a minimum of three Butternut trees at the end of five years). These newly planted Butternut trees will receive protection under the ESA.

Purpose of the Notice:

The purpose of this notice is to ensure that the public is made aware of, and given an opportunity to comment on, the proposal, including the proposed conditions and outcomes of the permit for which the Hydro One is applying in order to remove one Butternut tree. The proposed permit would be issued under clause 17(2)(c) of the ESA.

Decision:

This notice will be updated when more information is available.

Other Information:

Please email comments to Esa.permits.agreements@ontario.ca and quote the registry number in the subject line.

The following web-links provide additional information about this notice:

Endangered Species Act, 2007 (Section 9 and 17 are sections of the Endangered Species Act that are referred to in this posting)

Butternut Tree Regulation  Section 5 of general regulation 242/08 addresses the exemptions pertaining to Butternut