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.

NS Supreme Court throws out spray drift case after Farm Practices Board rules farm practice was normal

The Supreme Court of Nova Scotia has dismissed a spray drift claim brought by landowners against a neighbouring farmer and his farm business.  The plaintiffs are organic farmers and alleged that, in 2007, the defendant farmer sprayed his lands with a herbicide that drifted onto their property causing various damage: significant health issues, crop damage, and miscarriages by four horses as a result of exposure to "overspray". 

In response to the claim, which was founded in negligence, the defendants relied on the provisions of the Farm Practices Act.  They stated that their farming activities were carried out in accordance with "normal farm practice" so that, under the legislation, they were protected from any civil action in "nuisance, negligence or otherwise, for any odour, noise, dust, vibration, light, smoke or other disturbance resulting from an agricultural operation."  Following a motion by the defendants, the civil action was stayed pending a determination by the Farm Practices Board of whether the activities in question constituted "normal farm practice".

The plaintiffs then made an application to the Board and a hearing took place in June, 2012.  In January, 2013, the Board ruled that the defendants had not acted in a manner inconsistent with "normal farm practice", and dismissed the plaintiffs' complaint.  That Board decision was appealed unsuccessfully by the plaintiffs.

With all of that completed, the plaintiffs returned to the Supreme Court of Nova Scotia to have the stay lifted so that they could proceed with their action for damages.  The defendants also asked for the stay to be lifted, but for the purpose of dismissing the claim.  The Court had to deal with the ruling by the Board that the activities in question, in particular the spraying, were "normal farm practice".  However, the Board decision was not automatically determinative of the civil action - the question for the Court was whether spray drift was "other disturbance" within the meaning of the Farm Practices Act.

If spray drift fell outside "other disturbance", then there would be no protection against a civil claim afforded by the Act.  Justice Murphy concluded on this point: "Absent contrary authority, I remain of the view that the activities the plaintiffs allege occurred, herbicidal overspray or drift and contaminated run-off from ditching, are "other disturbances" resulting from an agricultural operation as contemplated by section 10(1)(a) of the Act."  Therefore, the claims made by the plaintiffs were barred by the normal farm practices legislation and dismissed as such.

Read the decision at: Nauss v. Waalderbos.

Cottage neighbours, boundary lines, chainsaws and adverse possession

This Nova Scotia cottage boundary line case started in 2007 when neighbours on one side started cutting down trees to install an access road: "the tranquility of the setting was shattered by the sound of chainsaws".  A surveyor for neighbour D had run a line that purported to represent the boundary with the lands owned by neighbour M, and the trees were being felled by neighbour D on the basis of that survey.  In the end, the Court ruled in favour of the boundary line claimed by neighbour M, putting an end to the sound of the chainsaws.

The M property had been deeded to the M family in 1966 by the D family.  Although three of the four boundaries of the 100 acre M property were certain, one was not.  A complication in setting the fourth boundary line arose because the description of that fourth boundary, the one in question between the M property and the D property, included reference to a property owned by KD.  This was a problem because, in actual fact, KD didn't own any land in that area (although he was known in the community to own it).  Therefore, the boundary of KD's property could not be used to define the uncertain boundary line.

That said, the location of what had been presumed to be the property of KD was to considered in setting the proper location of the line.  The Court noted that one proposed line was not to be accepted because, "it is based on the false premise that the description of the northern boundary of the M lands as the property of KD was meaningless."  That description had meaning, even if it was based on an error.

In the end, the Court accepted the M-proposed line as the correct one on the whole of the evidence.  The Court did not accept that the description of the M property as being 100 acres "more or less" could be used to locate the fourth boundary line, since the sale of the M property was not a "sale by acreage".  The phrase in the deed stating that the land contains 100 acres "more or less" was a "falsa demonstratio" (from the latin legal maxim - falsa demonstratio non nocet cum de corpore constat - "a false demonstrative particular or reference does not prejudice what was clear before"). 

In the alternative, the Ds claimed to have acquired the land in question (including the proposed access road location) through adverse possession.  The Court found that the main evidence in support of this claim was exaggerated, and that there were not acts that were sufficiently "exclusive, continuous and notorious" to supplant the ownership of the M family.

Read the decision at: Webster v. Duncanson.