Farmer chasing ATV trespassers acquitted of dangerous driving

From the Judgment of Justice R. Green of the Provincial Court of Saskatchewan:

A farmer was charged with driving in a manner dangerous to the public on Church Road in the Rural Municipality of Fertile Belt, contrary to s. 249(1)(a) of the Criminal Code.  The farmer is now 54 years of age and works for a neighbour. He farmed his own land in the past, but now leases it. On October 3, 2010, in the latter part of the afternoon, he was helping the neighbour fix his combine. He heard some All Terrain Vehicles (ATVs) being operated in the distance, on a field he owned. These ATVs were being driven by three young males who were at the time they came to the farmer's attention driving around in mud on his field, which was to the south of Church Road.

The farmer took the neighbours 4x4 truck and drove, in 2-wheel drive on Church Road and then south into his field where the ATVs were.  At that point, the ATVs scattered.  The farmer followed one of the ATVs over Church Road and back north into another of his fields, in which a crop of canola had just been swathed.

A police constable arrived on the scene at 4:36 p.m., and found the ATV wedged under the front driver’s side bumper of the truck.  The farmer was seated in his vehicle. After attending to the young male ATV driver, and viewing the scene, the officer arrested the farmer at 5:08 p.m. for dangerous driving.

The Crown submitted at trial that the farmer chased after the young male on Church Road and rammed his ATV.   The farmer claimed that, as he pulled up beside the young male on Church Road, the young male accelerated his ATV and swerved into the truck and turned in front of it.  He said, as this was happening, he slammed on his brakes and skidded in a straight direction for a number of feet.

Ultimately, the Judge stated, the issue was not whether he is satisfied beyond a reasonable doubt that the collision on Church Road happened as the farmer described, but rather whether it is possible that it did.   Considering: (1) his finding that it is possible the farmer was travelling as slowly as 35 to 40 kilometres per hour on Church Road when he collided with the ATV; (2) the lack of any expert evidence on accident reconstruction of what happened between the two drivers on Church Road; and (3) the reality that the young male was an inexperienced ATV driver who admitted he may have swerved before the truck reached him, the judge concluded that it is possible the collision happened as the farmer described, with the young male swerving into the driver’s side of the truck, the farmer slamming on the brakes and the young male accelerating and turning into the path of the truck. 

With respect to the degree of care exercised by the farmer, the Judge ruled that he was not satisfied that the degree of care exercised by the farmer in driving on Church Road was a marked departure from the standard of care that a reasonable person would have exercised in these circumstances.  Whatever the farmer's liability might be civilly for the collision, the Judge was nevertheless not satisfied beyond a reasonable doubt that his driving was a marked departure from the standard a reasonable person would have observed in these circumstances.

On this basis, the farmer was acquitted of the dangerous driving charge.

Read the decision at: R v Tranberg.

Wind Farm may seek $450,000 costs from landowner over ex parte injunction

On August 25, the Court of Queen's Bench in Saskatoon granted an interim injunction stopping further construction on the Red Lily Wind Farm.  David McKinnon, a landowner within the Red Lily project area, applied for the injunction on an ex parte basis (i.e. without the presence of the other parties, including the wind farm owner and the local municipalities).  A week later, on September 1, the Court overturned the injunction after hearing from all parties. 

In order to obtain the injunction, McKinnon had to undertake to pay damages if the injunction was found to be unnecessary and damages were caused.  Red Lily Wind Farm claims that the cost of the construction delay was $74,000 per day for 6 days, totalling nearly $450,000.  The company says it is considering seeking to recover the damages from McKinnon.

Read the story at: world-spectator.com.

Saskatchewan farmers win dispute over hay

On March 15, 2002, Ralph and Beverly Austin sold their farm land and assigned a land lease to the defendant, 101013354 Saskatchewan Ltd.  Lyla Cowan is the sole officer and shareholder of 101013354 Saskatchewan Ltd.  The sale included buildings, some sheds and bushel bins located on the land.  The purchase price was allocated amongst the land sold, the buildings, sheds and bushel bins and leasehold improvements on the leased lands.  This agreement for the sale of land and assignment of lease was in writing and signed by the parties on March 12, 2002.

Prior to March 15, 2002, the Austins had a stack of bales located on the land.  In March 2002, the Austins agreed to sell the bales to Cowan and she agreed to pay them for the hay.

Prior to possession date the Austins came to a verbal agreement in the farm yard with Lyla Cowan to sell her the 182 alfalfa hay bales at $120.00 per ton, 83 slough hay bales at $100.00 per ton and 30 straw hay bales at $20.00 per ton located on the land.  The total purchase price was $21,800.00.  They sent Lyla Cowan a bill of sale for the bales in the sum of $21,800.00 about a year later on March 10, 2003, as they did not want to receive any income from the bales in the taxation year 2002.  Lyla Cowan paid the plaintiffs the sum of $10,000.00 on August 3, 2003.  No other payments have been received.

The Austins sued Cowan in the Provincial Court of Saskatchewan for the balance of the purchase price they claimed was still owing.  The judge found in favour of the Austins, and awarded $9,360 plus costs of $250.  This was slightly less than what had been claimed by the Austins because the judge did not find that there had been a "meeting of the minds" between the parties as to the weight of the bales sold.  The judge ruled the weight per bale to be somewhat less than the Austins had estimated.

Read the decision at: Austin v. Cowan.

Barn collapse case concludes with big judgment

A lawsuit commenced by Terpstra Farms Ltd. against several parties for damages arising from the collapse of a hog barn roof has ended with a large judgment in favour of Terpstra. The trial proceeded before a jury and so there is no reported judgment. However, a court decision was released this week regarding the amount of the judgment, costs and interest as well as the effect of an earlier settlement agreement between Terpstra and one of the defendants.

At trial in January, the jury found the company that constructed the barn, D.W. Lorentz Construction Inc., 85% at fault for the roof collapse. The remaining 15% fault was attributed to Argue and Associates, an agricultural structural engineering firm involved in the barn design. In September, 2009, however, Argue and Associates settled out of the action by paying Terpstra the sum of $295,000, inclusive of damages, costs and interest. On this basis, the action was dismissed as against Argue, and Terpstra agreed to indemnify and hold Argue harmless from any other amount it was found liable for in the trial.

With this agreement in place, the trial judge was left with the task of fully compensating the plaintiff, Terpstra, but preventing a double recovery. The judge concluded that to do so, the costs must be deducted from the settlement amount before factoring the balance of the settlement against what Lorentz owes to the plaintiff. Costs of the action incurred up to the date of the Argue settlement were split 85/15 between the two defendants. Costs of the action incurred after the settlement were solely the responsibility of Lorentz.

With pre-judgment interest factored in, the jury award of damages totalled nearly $600,000. The share of this amount to be borne by Lorentz, taking into account the amount received from Argue (and avoiding double recovery) was pegged at more than $334,000. On top of that, the trial judge awarded costs to Terpstra to be paid by Lorentz in the amount of $353,675.19. The action was commenced in 2002 and trial lasted more than two weeks before a jury.

What happens when a landowner actually has the upper hand?

This question may be answered by the National Energy Board in response to an application made by NOVA Gas Transmission Ltd. (NOVA) for a Right of Entry Order. A NOVA landowner, Randolph Allan Hill, purchased land with the NOVA pipeline in place from CP Rail. CP Rail, like many other railways and large industrial landowners, had in place a "landowner-friendly" crossing agreement with NOVA which provided the landowner with a right to terminate the agreement on notice and require the removal of the pipeline.

In a December 2008 hearing before the Alberta Court of Queen's Bench, NOVA tried unsuccessfully to argue that Hill, although he had purchased the land from CP Rail, was not entitled to benefit from the crossing agreement. The Court disagreed in its decision dated March 6, 2009. Subsequent to that decision, Hill served notice on NOVA that he wanted the pipeline out of the ground. NOVA has now asked the NEB to grant an order allowing it to leave the line in place, in spite of the crossing agreement.

Not surprisingly, Hill has objected to the Right of Entry application and relies on the terms of the agreement that he purchaed from CP Rail.

NEB filings related to this case can be found at: https://www.neb-one.gc.ca/ll-eng/livelink.exe?func=ll&objId=586898&objAction=browse

Summary Judgment granted for failure to deliver on marketing contract

The Saskatchewan Court of Queen's Bench granted summary judgment in favour of Walker Seeds Ltd. after the defendant, Jacob Enterprises Ltd., failed to deliver fully on a marketing agreement for desi chickpeas. The agreement provided that Jacob would deliver to Walker all chickpeas growns on 660 acres of land in 2006, save that Jacob could retain 95 pounds net per acre for seed. There was a dispute between the parties as to how much Jacob actually harvested in 2006. The contract provided for a base production amount of 13,200 bushels, and the Court found that Jacob had exceeded this production, although he delivered only 8,258 bushels to Walker. The Court granted judgment to Walker for the difference owing of 4,942 bushels at 60 pounds per bushel (296,520 pounds) times $6.25 per bushel, or $18,532.50.

A counterclaim by Jacob Enterprises for severe emotional distress caused by an alleged failure by Walker to pay for delivered chickpeas in a timely fashion and failure to provide receipts for grain was dismissed. The Court noted the difficulty it had in accepting a claim by the corporation for the emotional distress of its shareholder.

Walker Seeds Ltd. v. Jacob Enterprises Ltd. 2009 SKQB 482
http://www.canlii.org/en/sk/skqb/doc/2009/2009skqb482/2009skqb482.html

Raven Damage to Crops not compensable

A claim by a cattle farmer in Manitoba over damage caused to his hay crop by ravens was thrown out of court last November as "frivilous and vexatious". Ravens had pecked holes through the plastic covering over his hay bales, resulting in spoilage that eventually killed a number of animals. Master C.W. Sharp found that the farmer's insurance under the Wildlife Damage Compensation Program did not cover damage by ravens (only "big game" and "waterfowl") and that the failure by the Province to amend the Program to include ravens was not actionable.