Nursery trees ruled to be chattels - claim for spray damage barred by limitation period

The Manitoba Court of Queen's Bench has dismissed a claim for spray damage caused to nursery trees (Roundup from a neighbouring wheat field) on the basis that the applicable limitation period had expired.  The key issue was the characterization of the trees - were they fixtures to the real property (the land) or were they chattels (movable property not affixed to the land)?  If they were fixtures, then a six-year limitation period would apply.  If they were chattels, a two-year limitation period would apply.  The action was commenced nearly four years after damage to the trees was first observed.

What is annexed or attached to the land becomes part of the land (a fixture), but there must be an intention to annex or attach evidenced by the degree of annexation and the object of the annexation.  In this case, the claimant argued that the trees were growing crops and, therefore, part of the real property (the land).  The defendants argued that the trees were planted only for the purpose of storage until they would be sold or used by the claimant, remaining as chattels (not fixed to the land).

The Court sided with the defendants and found that the nursery trees were chattels.  They were treated as the claimant's "stock in trade - as inventory".  The trees were never intended to be permanently attached to the land or to constitute an improvement to the land.  As a result, the two-year limitation period applied and barred the claim for damages.

Read the decision at: Noralta Northern Alberta Trees Inc. v. Plato Enterprises (Alberta) Ltd.

Ontario Wildlife Damage Compensation Program

OMAFRA has released its Ontario Wildlife Damage Compensation Program Guidelines as part of the joint Federal-Provincial Growing Forward program.  The program provides for compensation for damage to livestock and poultry by "wildlife", which is defined as "undomesticated animals as designated by the Minister in Schedule "D" in this Program Guideline".  The list includes coyotes, wolves, bears, foxes, cougars, eagles, crows, turkey vultures, raccoons, etc.

The program has been introduced through changes to the Livestock, Poultry and Honey Bee Protection Act, which has now been renamed the Protection of Livestock and Poultry from Dogs Act.  Although the Act applies to damage caused to livestock and poultry by wildlife generally, its title refers to dogs specifically because the Act addresses damage caused by dogs in some detail, including certain rights to kill dogs who have caused or threaten to cause damage to livestock or poultry.  The Act also imposes an obligation on the owner of a dog who has killed or injured livestock or poultry to destroy the dog or cause it to be destroyed within 48 hours of acquiring knowledge of the killing or injury.

The changes to the Act were publicized by OMAFRA on the Environmental Bill of Rights Registry and received some 244 comments representing a wide range of points of view, many of which can be viewed at: EBR Comments. 

B.C. Court decision in Terasen v. Utzig (No. 2) released re landowner damage to pipeline

This litigation concerns whether a pipeline owned and operated by the plaintiff Terasen Gas Inc. (“Terasen”) that runs through a portion of Burns Bog in Delta, B.C. was damaged or put at risk by landfill operations on lands owned by the defendant Utzig Holdings (B.C.) Ltd. (“Utzig”). The landfill operations were conducted, with Utzig’s permission, by the other defendants Alpha Manufacturing Inc., Burns Developments Ltd. and Burns Developments (1993) Ltd. (“Alpha” and “Burns”).

In a judgment delivered on January 25, 2010, Terasen Gas Inc. v. Utzig Holdings (B.C.) Ltd., 2010 BCSC 90 (CanLII) [Terasen v. Utzig #1], the British Columbia Supreme Court held that Utzig (“the defendant”) had breached covenants in statutory right of way agreements in favour of Terasen and, in the alternative, that the defendant had committed the tort of nuisance in the period prior to October 1993. However, certain defences (consent, acquiescence, laches, estoppel and waiver) had been pleaded but were not addressed in submissions. After the delivery of judgment and further submissions from counsel, the defendant made submissions on those defences at a continuation of the trial, and the plaintiff made submissions in response. The defendant also wished to make submissions on causation, remoteness of damages and mitigation but the Court concluded that submissions on those matters should be heard at the damages phase of the trial (the issue of liability, whether someone is liable to pay damages, is often separated from the determination of the amount or quantum of damages).  Read my post on the earlier decision at: Terasen v. Utzig #1.

In the latest chapter of the case, the defendant landowner elected to make submissions only on estoppel and waiver, and abandoned the defences of consent, acquiescence and laches.  The questions for determination, relating to waiver and estoppel respectively, were as follows:

(1) Did Terasen, with full knowledge of its rights under the statutory right of way agreements, consciously and unequivocally abandon those rights?
(2) In the alternative, did Terasen do something beyond mere delay to encourage Utzig to believe that Terasen did not intend to rely on its strict rights, and did Utzig act to its prejudice in reliance on that belief, such that it would be unconscionable to grant relief to Terasen?

Based on the facts, the Court rejected both lines of defence and set down a case management conference to determine the next steps in the proceedings.

Read the decision at: Terasen Gas Inc. v. Utzig Holdings (B.C.) Ltd. (No. 2).

Alberta Court of Appeal throws out negligence claim against manufacturer of "Glean" herbicide

The Alberta Court of Appeal has upheld a non-suit order made by the trial judge in a case by potato growers against Dupont Canada in connection with its "Glean" herbicide.  NPS Farms Ltd. (NPS) alleged that they suffered production losses in several years beginning in 1990 due to the residual presence of the "Glean" herbicide in the soil.  NPS alleged that because Dupont did not make itself aware of the dangerous propensities of the product, it could not, and did not, provide adequate warning to consumers. Dupont’s marketing of the product without adequate warning was said to have been negligent.
The Court of Appeal found that:

... [t]here was ample evidence before the trial judge to demonstrate that the Appellants [NPS] were aware of the presence of Glean on the lands in 1987 and knew that it was harmful to potatoes. They conducted soil tests and planted test strips of potatoes on the lands in 1987, 1988 and 1989 which showed damage to their potatoes. They did not plant full potato crops on the lands in 1988 and 1989 because they were aware of the injury which would result. [...]

At trial, the Appellants sought, but did not obtain, further amendment to the Statement of Claim in order to specifically allege that Glean was a defective product. In our opinion, the trial judge did not err in refusing the request. We endorse the position of the Respondent that the Appellants cannot now seek a remedy premised upon a new cause of action after representing to the Court and to the Respondent on numerous occasions that the only causes of action claimed were failure to warn and negligent misrepresentation. During the opening statement at trial where the matter of the pleadings and the causes of action alleged were specifically raised, no new cause of action was alluded to by the Appellants. On that basis, the Respondent’s cross-examination and defence of the case was based on the Appellants’ express representations to the Court and to the Respondent and their strategic choice to confine themselves to allegations of failure to warn and negligent misrepresentation. To allow the Appellants to recast their case at this late stage of the proceedings would be prejudicial and unfair given also that the limitation period has long since run.

Read the decision at: NPS Farms Ltd. v. Dupont Canada.

Water emergency as pipeline breaks - Londoners asked to use less for at least one day

THE LONDON FREE PRESS IS REPORTING:

Londoners are being urged to reduce their water consumption for at least a day while engineers struggle to fix a huge break in the pipeline that supplies drinking water to most of London and Huron and Middlesex counties.
More than 350,000 people in a host of communities are served by that pipeline, which broke at about 2 a.m. this morning near Mount Carmel, in western Huron County.

Water from the pipeline break has formed about a five-acre lake in a farmer's field near Mount Carmel and is flowing across Blackbush Line road north of Mount Carmel.

The road has been closed as work crews survey the site of the rupture in the farm field.

Rick Grenier, a City of London supervisor on the scene, said crews are now isolating the line, shutting valves on either side so workers can move in.

Grenier estimated they might have to excavate as much as three metres of soil to repair the line.

If it is a single section that has ruptured, repairs could be completed this evening, he said. The line would have to be disinfected before it was put back in operation.

The early impact of the break:

-- A precautionary boil-water advisory is out for communities from Grand Bend to Crediton. The precaution is based on low water pressure rather than unclean water samples, said Barbara Leavitt, spokesperson for the Huron County board of health. Some customers, she said, have reported having no water at all.  They include customers in Ailsa Craig and some areas north of Parkhill.

— Also included in the appeal to cut consumption are the municipalities of Bluewater, South Huron, Lambton Shores, Lucan Biddulph, North Middlesex (all North Middlesex Customers on the municipal system are out), Middlesex Centre, and Strathroy Caradoc.

- Four schools in Middlesex are closed because of low water pressure: McGillivray, East Williams, Parkhill West Williams and North Middlesex High School. Thames Valley District school board spokesman Richard Hoffman said if any child is already at the school and parents can't be reached, the child will be kept at school.
Andrew Henry, who is in charge of managing the Lake Huron water supply, said it will take 24- 36 hours to repair the break. "People should prepare for at least one day," he said. "We're still asking for everyone to conserve water," he said.

The Lake Huron pipeline serves a population of about 350,000 people.

It has the capacity to treat 340 million litres of water a day — the equivalent of more than two million showers.

Henry said the reservoirs are being kept as full as possible and London's drinking water is now coming from the Elgin pipeline, from Lake Erie.

Henry speculated that high water pressure and the age of the pipeline – it's 45 years old — were factors in the break.

North Middlesex Mayor Mayor Wes Hodgson said he is “pissed off” because officials have been talking about twinning the line for years and nothing’s been done.

“If London had got off its ass and so had OCWA (Ontario Clean Water Association) we wouldn’t have had this problem,” he said. “Somebody’s got to get going on this because it’s critical.”

Parkhill has about four or five hours of water left in its reservoir, he said. Ailsa Craig’s water is shut down entirely.  Hodgson said a lot of livestock and poultry farms in North Middlesex are hooked into the water system and are now shut down. Those farms with tanker trucks and urgent need can truck clean water in from Grand Bend, he said.

Strathroy has a 50-hour supply of water in its reservoir, said Strathroy-Caradoc Mayor Mel Veale.  "I made it clear this morning, even if we have water for 2 and a half days, we need to conserve water today," he said.
"Bottom line is we're going to conserve water as best we can."

Veale said a rupture and loss of service is "one of the risks you take" when you move from municipal wells to a pipeline.

Ironically, an environmental assessment — the first stage of a watermain replacement - was just about to begin because of concerns about the age of the pipe, Henry said. "Unfortunately, it broke before we could do it," Henry said.

Crews are now building a temporary road through the farmer's field to the huge pond that has been created by the break of the high-pressure, 48-inch pipeline. "There's a lot of water (there)," Henry said.

Farmers who rely on the pipeline to feed their livestock are scrambling now to find alternate sources.

Van Osch Farms, an 8,000-head beef operation just south of the line break at Mt. Carmel, went to a system of drilled wells two years ago, said co-owner Fred Van Osch.  Even so, one barn of 500 cattle is on lake water only and operators are looking at a contingency plan that would truck water into that barn by tanker. One head of cattle can drink as much as 20 gallons (90 litres) per day, he said.

For the duration, residents with municipal water all along the pipeline are being asked to:
- Limit or postpone indoor residential use of water and consider using dishwashers and clothes washers after the emergency period has ended.
- Take a brief shower rather than a bath, or consider delaying until after the emergency period has ended.
- Reduce toilet flushing as much as possible. Consider flushing the toilet every second use.
- Suspend unnecessary use of water for industrial or commercial establishments, as well as construction sites, such as washing operations.


Check back for updates http://www.lfpress.com/.

E-mail john.miner@sunmedia.ca, or follow http://twitter.com/Johnatlfpress on Twitter.
E-mail deb.vanbrenk@sunmedia.ca, or follow Debatlfpress on Twitter.

Saskatchewan Court rules hail crop insurance umpire's findings not biased

The Provincial Court of Saskatchewan, Civil Division, has dismissed the claim of a farmer that a decision on crop loss suffered as a result of hail was tainted by bias and impartiality. John DeBalinhard, a farmer in the Rural Municipality of Orkney, made an insurance claim to the defendant in the case, Butler Byers Hail Insurance Ltd., after hail damaged a canola crop on his property. When DeBalinhard disputed the loss as assessed by the defendant, an umpire was appointed by the Saskatchewan Superintendent of Insurance to re-assess the claim and make an award of compensation.

DeBalinhard commenced the court claim when he was dissatisfied with the award made by the umpire. He alleged that the award was considerably lower than compensation paid out by two other insurance companies on the same crops on different properties and alleged that the umpire's decision had been tainted by "bias, interest, or lack of impartiality".

In the end, the Court found that the umpire's award was made within his authority under the applicable legislation and that there was no evidence of bias or impartiality. Based on this, the Court found that the award was binding on DeBalinhard, and therefore did not examine the allegations that other insurers had paid out significantly more for the same loss.

Read the decision at: http://www.canlii.org/en/sk/skpc/doc/2010/2010skpc13/2010skpc13.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.