Enbridge wants land to build replacement pipeline; Landowner refuses because no construction agreement in place; NEB gives Enbridge right to use land; Enbridge makes a huge mess; NEB issues stop work order - Why was Right of Entry granted in the first place?

The National Energy Board (NEB) has recently issued a stop work and compliance order to Enbridge Pipelines Inc. in connection with Enbridge's Line 3 Replacement project on a Manitoba farm property.  The Line 3 project is similar to the Line 6 replacements that took place in Michigan following the Marshall, MI rupture a few years ago - Enbridge leaves a rotting pipeline in place and takes more land to build a new line nearby. 

In this case, Enbridge was not able to obtain the land it needed from the landowner by agreement.  Enbridge then turned to the NEB for the right to take the land it needed for its new pipeline.  In fact, Enbridge appears to have made 25 applications for right of entry to the NEB, all of which were granted in spite of objections by many affected landowners.  The bases for the landowner objections included the fact that Enbridge had failed to negotiate a construction agreement with the landowners that would protect the integrity of the lands affected by the project.

The result?  A complete mess has been made of at least one of the properties involved in the project and it remains to be seen whether the NEB's order will make any difference for future projects.  Will the NEB rethink its relationship with companies like Enbridge?  Will the NEB be as quick to grant land rights to pipeline companies where they have failed to agree on environmental protection measures with landowners? 

Court dismisses contamination claim against former gas station as out of time

The Ontario Superior Court of Justice has thrown out a contamination claim against a former gas station as being out of time.  The Defendants in the claim, McColl-Frontenac Inc. and Imperial Oil Limited, previously owned and/or operated a gas station on the lands at issue in the claim.  The Plainitffs, who later purchased the lands from intermediate owners, claimed that contamination on the property was caused by the former gas station operation. 

The Defendants brought a motion for summary judgment asking that the Court dismiss the claim based on the expiry of the relevant limitation period.  In this case, the limitation period was two years and had expired before the Defendants say the Plaintiffs knew they had a claim or should have known they had a claim against the Defendants. 

The evidence showed that the Plaintiffs obtained environmental reports when they purchased their property (actually two contiguous properties owned by two companies with a common directing mind).  At least one of the reports identified that the property had been used as a gas station at some point in the past.  The Defendants argued that a reasonable person would have made inquiries to find out who owned/operated the gas station.  The Court agreed:

With the exercise of very little effort, between March 2006 and May 2006, the plaintiffs could quickly have determined that McColl-Frontenac and Texaco (now Imperial Oil) had leased the Bolton Oak property in the 1950s and 1960s.  This information could be obtained by searching publicly accessible records at the land registry office and entails minimal expense.

[...]

Put another way, it would be glaringly apparent to any reasonable commercial land purchaser acquiring land known to contain petroleum contamination that, as between:

            a)         prior use of the property as a veterinary hospital by the vendor; and

            b)         prior use (pre-vendor) of the property as a gas station;

the more likely, if not obvious, responsible candidates for the cause of the petroleum contamination would have been those associated with the gas station.

On this basis, the Court granted summary judgment and dismissed the claim.  The Court also rejected an argument that there was continuing damage that extended the time in which to bring an action.  The Court found that the Plaintiffs had not pleaded any continuing damage and, further, that there was no evidence of continuing damage (the evidence was that the contamination was there, but not increasing or changing).

Read the decision at: Bolton Oak Inc. et al. v. McColl-Frontenac Inc. et al.