Dead lawn points to neighbour's herbicides, but standard of proof not met

The Plaintiff in a Saskatchewan small claims suit alleged that the Defendant applied a substance in the back alley next to his property that caused damage to the Plaintiff's lawn.  The judge hearing the case was satisfied on a balance of probabilities that a substance from the back alley did migrate to the Plaintiff's lawn, either through run-off or leaching, and killed it.  This finding was supported by viva voce testimony, an investigation report, and photographs.  However, the judge was not satisfied on a balance of probabilities that the Defendant had anything to do with putting the substance into the back alley or that the substance came from the Defendant's property.

Of course, the judge accepted that the Plaintiff's suspicions about the Defendant's involvement were not unwarranted.  The Defendant was employed by a crop production services company and the Plaintiff's wife had seen the Defendant dump liquid in the back alley.  The Defendant told the Plaintiff that he has used glyphosate and Ally, and may have "mixed one a little strong".  The Defendant's yard is directly across the back alley from the Plaintiff's yard, and the alley slopes from the Defendant's yard to the Plaintiff's yard.  And there was no plant kill in any other yard in the area.

In spite of this circumstantial evidence, the judge did not find for the Plaintiff.  There was no evidence of what substance had actually killed the Plaintiff's lawn, and no samples had been taken from the back alley to test for chemicals in that area.  The Plaintiff suggested that the cost of testing for numerous substances until the correct one was found would be prohibitive, but it appears to have left the Plaintiff without the evidence necessary to prove the claim.

The Court dismissed the Plaintiff's claim, but (perhaps tellingly) made no order as to costs. 

Read the decision at: Charbonneau v Statchuk.

Is there a special duty for an insurer who insures both sides in a spray drift case?

The fact scenario in this case is somewhat complicated.  In the end, the case is about an insurance company that found itself on both ends of a spray drift claim.  The Plaintiffs farm land adjacent to the land farmed by the Defendants.  The Plaintiffs claimed that the Defendants sprayed a herbicide on their land that drifted to the Plaintiffs' land and caused crop damage and subsequent financial loss. 

The Defendants had insurance coverage for that type of loss and turned the claim over to their insurer, SMI, to be dealt with.  There were negotiations, but the claim was not settled. 

Then the Plaintiffs filed an amended claim adding SMI as a second defendant.  As it happened, SMI was also the insurer of the Plaintiffs.  Although the Plaintiffs' policy with SMI did not cover the crop damage loss they sustained, the Plaintiffs pleaded that SMI was duty bound to pay out their claim through the Defendants' insurance.  SMI owed a duty of good faith and fair dealing to the Plaintiffs, they alleged, and so SMI had acted in bad faith in failing to settle the Plaintiffs' claim through the Defendants' insurance.

The judge of the Saskatchewan Court of Queen's Bench hearing the case determined that the Plaintiffs' claim against SMI had no reasonable chance of success or arguable case.  The judge wrote, "To impose a duty on the insurance company to act fairly in resolving the claim would put its insured's [i.e. the Defendants'] financial position at risk.  The insurer's primary obligation arises from its contractual obligations to its insured under the policy being claimed on and not to a third party who may be insured in circumstances unrelated to the action." [emphasis added]

On that basis, the Court did not permit the Plaintiffs' to amend their claim to include SMI as a defendant.

Read the decision at: Sweet v Sweet.

Do Wind Energy Projects harm the soil? Do pipelines?

On an appeal of a Renewable Energy Approval (REA) for a 49-turbine wind farm, the Environmental Review Tribunal (ERT) considered whether the project would cause harm to soils.  The appellants in the case raised issues including harm to farm animals due to electro-magnetic fields and harm to farming practices.  Lay evidence and expert evidence was called on the issue of harm to soils, including evidence relating to the effect of pipeline projects on farm land and production.

The appellants argued that the soils to be affected by the installation of the wind turbines were unique soils particularly suited to potato farming.  Those soils would be permanently affected by the project, which would result in serious and irreversible harm to land (while other poorer lands were available to accommodate the project). 

The project proponent argued the opposite, putting forward evidence that the soils in question were not the only soils in Ontario well-suited to potato production and that soil restoration would be possible following the project.  The proponent's expert witness, Dr. Gregory Wall, suggested that the soil modification required for a wind turbine is not as drastic as for a pipeline, and testified that farmers, and pipeline companies, have been successfully remediating compacted soil for many years.  He said that on a recent pipeline project, he "expects these lands to return to original crop production levels within ten years," and says, "it is my understanding that landowners affected by pipeline construction are often compensated on this basis."  Dr. Wall also testified that with "major changes" in mitigation techniques, lands affected by pipeline projects are now experiencing "full yields" approximately two-years post-construction.

While Dr. Wall was qualified by the ERT as an expert in "soil science"; it's not clear that he was qualified to provide any opinion on compensation for crop loss (and whether that compensation is adequate).  One might also question the large discrepancy in his evidence about the time it takes to return farm land to full production following a pipeline project. 

The ERT found the amount of land to be affected by the proposed wind project to be relatively small in size, so that a relatively small amount of soil would be disturbed.  The ERT then found that the "amount of soil to be disturbed in order to construct and operate the Project is consistent with the scale of disturbance for roads, farm buildings and other facilities required in the normal use of agricultural lands."  However, the ERT noted that in a different project, it could be that a relatively small disturbance could be considered serious.

The ERT also accepted that the mitigation measures, if applied as described by expert witnesses for the parties responding to the appeals, will be successful in restoring the soils to productive agricultural use and are appropriate to the scale of soil disturbance that will result from the project.  Therefore, the appellants failed to establish that the project would cause serious and irreversible harm to soils.

Read the decision at: Bovaird v. MOE.