Court orders sale of farm property, rejects co-owner's request to split up the land

In Ontario, the Partition Act allows a co-owner of property to apply to the Court to break up the co-ownership.  If two or more parties own a piece of land, and one wants out, that co-owner is generally entitled either to an order dividing the property itself or, more often, an order requiring the sale of the jointly held property and the division of the proceeds.

In a recent decision of the Ontario Superior Court of Justice, two former brothers-in-law were in court disputing how their co-ownership of a 100-acre farm parcel should be ended.  The property consisted of 64 acres of agricultural land, and 36 acres of woodlot.  Brother-in-law O made the application to the Court for an order to sell the property and divide up the sale proceeds.  Brother-in-law M lived part of the year in a small house on the woodlot portion; he asked the Court to divide up the land itself.  M proposed that he receive the 36-acre woodlot along with a continuing interest in the 64-acre balance.  The 64-acre section would then be sold with O receiving the largest portion of the proceeds of sale.

As is the case in most partition applications, the Court ordered that the entire property be sold and the proceeds of sale divided between the two co-owners because the land could not be reasonably partitioned.  Firstly, the municipality would impose restrictions on the land if it was severed that would affect the value of the land.  Secondly, M's proposal would result in a forced sale by O to M, something that the Court does not have jurisdiction to grant.  Thirdly, M's proposal would compel the two co-owners to continue, at least for a time, in an "ongoing, untenable relationship".  Avoiding that situation is the purpose of the Partition Act.

The Court also ordered that O's costs of the application be payable out of M's share of the proceeds from the sale of the property.

Read the decision at:  O v. M.

BC Court of Appeal says club can continue to fly model aircraft on farmland runway

A radio control club used an agricultural property to fly model aircraft.  The local municipality challenged this use as being outside the scope of permitted agricultural uses.  The club argued that its activites fell within a permissible secondary use - "unpaved airstrip and heli pad".  The municipality argued that all uses in the agricultural zone must be agricultural or complimentary to agriculture; the RC flying satisfied neither category.  A motions judge agreed with the municipality.

The case went to the BC Court of Appeal and the motions judge's decision was reversed.  The restriction of "farm" classification in the zoning by-law to activities directly associated with agriculture was unjustifiable.  The Court ruled that the "farm" classification allows complementary uses that are suitable in an agricultural setting, including activities not directly associated with farming but conducive to the setting.  These activities do not disrupt or change the essential agricultural character of the land.  Because the RC club's activities were of this class, they were permissible secondary uses of the farm land.

Read the decision at: Lake Country (District) v. Kelowna Ogopogo Radio Controllers Association.

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.

Alberta Court interprets a farmer's "poorly-drafted" will

In this case, B owned and operated a large farm that included 33 quarter sections of land and about 600 cattle.  He had a will and died.  And although he remained married to his wife, D, at his death, he had been living with G for more than 20 years.  The issue in the case was whether a specific bequest of $700,000 in favour of G should be paid only if the specific farm lands in which she was given a life interest were sold, and then only from the proceeds of the sale of those lands.  The alternative was that the bequest was conditional on the sale of other lands that formed part of the residue of the estate. 

In a certain paragraph of his will, B specifically bequested to pay and transfer the amount of $700,000 to G "immediately if the farm lands are sold or at the time of sale if the farm land sells at a later date."  The term "farm lands" is not defined, giving rise to the issues in this case. 

Based on a reading of the entire will as a whole, and in light of the circumstances of the making of the will, the Court ruled that G's interpretation was to be preferred.  An order was made requiring that the will be interpreted as thought it read that the $700,000 was payable immediately when the residue lands were sold or at the time of sale if the residue lands are sold at a later date.  In other words, the lands in which G held a life interest did not have to be sold for G to receive the $700,000 - G did not have to abandon her life interest in order to get the bequest payment.

Read the decision at: Bruce Estate (Re).

Sask Court of Appeal orders solicitor-client costs for landowner wrongfully expropriated

The appellant succeeded in obtaining an order in the Court of Queen’s Bench quashing a municipal bylaw expropriating a portion of his farm land. In consequence, he asked the Chambers judge to order the municipality to pay him the costs he had incurred in having the bylaw set aside. His solicitor-client costs, he said, amounted to $64,498.92. The Chambers judge declined to award him costs on a solicitor-client basis and instead, awarded him the fixed sum of $3,000 payable by the municipality. He then brought an appeal to the Court of Appeal for Saskatchewan.

Saskatchewan courts had already confirmed that it is within the discretion of the Chambers judge to award solicitor-client costs in the context of expropriation and related matters.  The Court of Appeal in this decision noted that, while there was no authority for the proposition that solicitor-client costs must be awarded in expropriation cases, "there is, however, a substantial body of literature suggesting, as a matter of fairness, that persons whose private land has been taken from them by means not of agreement but of compulsory expropriation should generally be able to recover their reasonable legal and other costs, responsibly incurred, in responding to the expropriation."

The Court of Appeal remitted the matter back to the Chambers judge to assess the landowner's reasonable solicitor-client costs, concluding: "The appellant’s land was taken from him through no fault on his part pursuant to a process in which he had no input. As it turns out, the land was unlawfully expropriated, yet the appellant had to go to court at his expense to establish the wrongdoing and recover his land. As in Sask Water, equity cries out that the appellant should get some relief."

Read the decision at: Goodtrack v The Rural Municipality of Waverley No 44.

Quebec Commission orders pipeline depth at 1.6 m or more than 5 feet

In its decision granting authorization to Gaz Metro for the expansion of its gas distribution pipeline facilities, the Commission de Protection du Territoire Agricole du Quebec (Agricultural Land Protection Commission) is requiring that the pipeline be installed at a depth of 1.6 metres (or more than 5 feet) through cultivated land.  The Commission noted that it requires a minimum depth of cover of 1.2 metres on private property, but in this case 1.6 metres was warranted.  The Commission ruled that Gaz Metro would have to be notified of any agricultural activity conducted to a depth of more than 60 centimetres. 

Note that Section 112 of the NEB Act requires a landowner to obtain permission from the pipeline company for any activities at a depth of more than 30 centimetres (or 1 foot).  The difference is depth of cover.  Under NEB regulation, pipelines need only be installed at a minimum depth of 2 feet as set out in the applicable CSA standard. 

If pipelines had to be installed at 1.6 metres' depth, would a 30 centimetre restriction be necessary?

Read the Commission decision (in French) at: Société en commandite Gaz Métro (Re).

Appeal Tribunal awards costs against landowner in drainage case

The Agriculture, Food and Rural Affairs Appeal Tribunal has ordered an appellant landowner, Alan Webster of Thornhill, Ontario to pay costs related to a motion brought by the City of Kawartha Lakes.  Although the motion to dismiss by the City was unsuccessful, the Tribunal found that Webster had failed to abide by procedural directions made by the Tribunal, which led to the need for the motion.

Those procedural directions were given in the context of an agricultural drainage project that has been under appeal since 2006.  The project involves the drainage of about 21,000 acres of land at approximately 400 landowners.  There have been a total of 72 appeals to either the Drainage Referee or to the Appeal Tribunal.  The only remaining outstanding proceeding is Webster's appeal to the Tribunal under section 48 of the Drainage Act.  The Tribunal had exercised its discretion to intervene with procedural directions to case manage the remaining appeal through to an expeditious resolution.  The Tribunal stated that expeditious resolution would benefit all of the 21,000 acres and 400 landowners potentially affected by the drainage project. 

More than five years had passed since delivery of the original Engineer's Report.  Webster had had more than five years to crystallize and refine his section 48 Appeal issues, marshal his evidence and defined his appeal strategy.  Webster was self represented in the proceeding.  The Tribunal found that Webster's failure to abide by simple and clear procedural directions was unreasonable.  The Tribunal found that Webster was an educated, sophisticated and articulate litigant.  The Tribunal was unable to suspend disbelief sufficient to accept the explanation Webster offered about why he failed to comply with the procedural order. 

The City sought recovery of costs for the dismissal motion.  The Tribunal ordered Webster to pay the costs of the City of Kawartha Lakein the amount of $7080.70.  The Tribunal also ordered that the cost award be credited to the drain account and added to the tax roll, therefore having priority lien status under section 61 of the Drainage Act and section 1 of the Municipal Act. 

Read the decision at: Short and No. 2A Drain, 2006 - Costs of Motion Decision.

Alberta farm land tax assessment case sent back for re-hearing

Madam Justice J.M. Ross of the Alberta Court of Queen's Bench in Edmonton has allowed an appeal of a property tax assessment decision involving farm land.  She granted leave to appeal to the Applicant, Associated Developers (AD), from a 2010 decision of the Composite Assessment Review Board (CARB) assessing AD's land as industrial property rather than as farm land.  Justice Ross then heard the appeal, overturned the decision of the CARB and sent the case back to the Board for re-determination.

The Property in question, located in Edmonton, was assessed as industrial property at a value of $6,723,500 in the 2010 assessment year for the 2009 taxation year.  The relevant valuation period for the 2010 assessment was therefore 2009.  Had the Property been assessed as farm land, the assessed value would have been $863,000.   The Applicant complained to the CARB, asserting that the property should have been assessed as farm land.  The Applicant had filed with the CARB annual leases between AD and a farmer for the years 1999-2010.  The leases included terms that the lands would be used solely for agricultural purposes. 

The City of Edmonton (arguing for the industrial land assessment) argued that the crop of hay on the property had not been harvested in 2009.  The City's position was that if the crop was not cut, it could not be said to have been produced and, therefore, was not used for farming operations and could not be classified as farm land.  AD argued in response that the land could still be farm land even if not hayed in 2009, as there are many circumstances in which people leave land idle for a year for a variety of sound agricultural reasons.

Justice Ross allowed the appeal because the CARB failed to provide adequate reasons for its decision and failed to identify the appropriate legal tests in its reasons.  These were breaches of the principles of natural justice and the duty to be fair.  She cancelled the decision and sent the matter back to the CARB to be re-heard.

Read the decision at: Associated Developers Ltd. v. Edmonton (City).

Municipal Board upholds County decision to refuse surplus farm dwelling severances

Better Farming has a report on an Ontario Municipal Board (OMB) decision backing Perth County's policy against severances of surplus farm dwellings (click here).  Two Perth municipalities - the Municipality of West Perth and the Township of Perth South - had appealed County council's refusal to amend the Perth Official Plan to allow severances under certain conditions.  The OMB dismissed the appeal, finding that the County's policy was not unreasonable:

The Board finds that the SSFDs [severance of surplus farm dwellings] are permitted in many of the surrounding agricultural focused municipalities through their official plans. However, in the case of the County of Perth, the upper tier municipality with a single county-wide official plan covering all the lower tier municipalities, the Board finds that the refusal to approve an OPA to permit the SSFDs is not unreasonable. The PPS [Provincial Policy Statement] makes the SSFDs permissive, it also allows the municipality to go beyond the minimum requirements in the PPS. Therefore, it is the County’s prerogative to implement a strict prohibition on the SSFDs. The Board finds this acceptable because it is permitted to do so and their position does not conflict with other PPS policies. In fact, the PPS recognizes the importance of agriculture and strongly discourages lot creation on agricultural lands and directs settlement activities to designated settlement areas. The Board finds that the COP [County of Perth Official Plan] does just that, when looking at the County as a whole, there are sufficiently designated settlement areas and the policies of the PPS are being maintained. The Board notes that it is Mr. Hanly’s evidence that an individual can still apply for a site specific OPA [official plan amendment] for a SSFD.

Read the OMB decision at: County of Perth.

Ambiguity in will leads farm case to Saskatchewan Court of Appeal

The Saskatchewan Court of Appeal has upheld a lower court decision regarding the meaning of "oil well rights" in the will of the late Frederick J. Wernicke.  The problem was that Wernicke didn't have any rights in an oil well.  He did own an undeveloped freehold mineral title of nominal value in Alberta.  He also owned five quarters of farm land in Saskatchewan on which he received surface rental payments for gas wells.  In his will, Mr. Wernicke bequeathed 1/2 of his "oil well rights" to one son and 1/2 of the rights to another son.  On the basis of these bequests, the executors of the will, including one of the sons, transferred the Alberta mineral title to the two sons.

Other parties interested in the will sued the two sons over the Alberta property.  The trial judge ruled that "oil well rights" in the will meant freehold mines and minerals on the Alberta property.  The other interested parties then appealed that decision to the Court of Appeal, arguing that the ordinary meaning of "oil well rights" could not be mines and minerals.  The two sons argued that the expressed intentions of Mr. Wernicke were "clear, unambiguous and without equivocation".  The mineral title in Alberta included the rights to oil beneath the ground and it was his intention that the mineral title go to the two sons.  The Court of Appeal agreed.

Read the decision at: Wernicke v Quirk.

MNR Policy for Protecting Agricultural Property from Elk

Policy Proposal Notice: EBR Registry Number: 011-0745

Title: Policy for Protecting Agricultural Property from Elk Ministry:
Ministry of Natural Resources
Date Proposal loaded to the Registry: August 30, 2010

Description of Policy:


Between 1998 and 2001 the Ministry of Natural Resources (MNR), in collaboration with many partners and volunteers, released 443 elk from Elk Island National Park in Alberta at four locations (Bancroft, Blind River, south of Sudbury and south of Kenora) across the province as part of an elk restoration program. Since 1998, monitoring has revealed that restored elk herds have grown, dispersed and in some areas struggled with adapting to Ontario’s diverse landscape patterns and uses.

In 2009, following public and stakeholder consultation, the Ministry released Ontario’s Cervid Ecological Framework which provides overarching provincial guidance for the sustainable management of all Ontario’s cervid species (moose, deer, caribou and elk). Consistent with the Cervid Ecological Framework, and in response to the need for more species specific guidance for the management of Ontario’s elk populations, the Ministry released an Elk Management Plan in 2010, following public and stakeholder consultations. The plan includes a number of objectives and strategic actions to guide management decisions that support sustainable and healthy elk populations, including objectives and strategies aimed at specifically addressing human-elk conflicts.

Ontario’s overall policy approach related to addressing conflict with wildlife, as a public resource, is to provide landowners with the tools and information to prevent and mitigate conflict and associated damage. The Strategy for Preventing and Managing Human-Wildlife Conflicts in Ontario provides overarching policy direction to address human-wildlife conflict in Ontario.

Consistent with this broad provincial approach, the Elk Management Plan refers to the need for tools to help address the impact of human-elk conflicts. In response to this need, the government amended the Fish and Wildlife Conservation Act (FWCA) to add American elk to the list of species that can be harassed, captured or killed in accordance with authorization from the Ministry of Natural Resources (s. 31(3)). The proposed Policy for Protecting Agricultural Property from Elk provides direction for the issuance of authorizations to harass or kill elk that are causing or are about to cause damage to agricultural property. The proposal outlines the process and prerequisites to obtaining an authorization and outlines the conditions of their use.

Purpose of Policy:

To consult on a proposed Policy for Protecting Agricultural Property from Elk, as part of a provincial management program intended to support self-sustaining elk populations for the continuous provision of ecological, cultural, economic and social benefits to the people of Ontario.

Other Information:

The following weblinks provide supporting/ additional information about this notice:

Proposed Policy for Protecting Agricultural Property from Elk

Proposed Policy for Protecting Agricultural Property from Elk – Executive Summary

Elk Management in Ontario website

The ministry is currently consulting on several other components of elk management through the Environmental Registry to support a comprehensive elk management program in Ontario, including:

Proposed Elk Population Objective Setting Guidelines (Registry Number 011-0743)

Proposed Elk Harvest Allocation System (Registry Number 011-0741)

Proposed Elk Harvest Management Guidelines (Registry Number 011-0744)

Proposed Regulations to establish an Elk Hunt (Registry Number 011-0746)

Proposed Elk Population Objective for the Bancroft-North Hastings Area Herd (Registry Number 011-0742)

More information on these proposals can be found by searching the appropriate Registry Number at www.ontario.ca/environmentalregistry

Public Consultation:

This proposal has been posted for a 45 day public review and comment period starting August 30, 2010. If you have any questions, or would like to submit your comments, please do so by October 14, 2010 to the individual listed under "Contact". Additionally, you may submit your comments on-line.

All comments received prior to October 14, 2010 will be considered as part of the decision-making process by the Ministry of Natural Resources if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 011-0745.

Please Note: All comments and submissions received will become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered by the decision maker for this proposal.

Other Public Consultation Opportunities:

Preliminary consultation has occurred with local farmers and landowners in the Bancroft area (i.e., the area where the majority of human-elk conflicts are occurring), as well as key provincial stakeholders. Select focused stakeholder meetings may be arranged to consult further with interested parties.

A Guide to Ontario's Line Fences Act

This Guide deals with the arbitration of fencing disputes in those parts of Ontario that are organized for municipal purposes, where the arbitration of fencing disputes is a responsibility of local municipalities.

Read the Guide at: A Guide to Ontario's Line Fences Act.

Holland Marsh project most costly Drainage Act project in Ontario history

The Ontario Agriculture, Food and Rural Affairs Tribunal has, with minor changes, approved the Holland Marsh Drainage System Canal Improvement Project, the most expensive Drainage Act project in Ontario history.  The Tribunal described the project in its decision as follows:

The project started in 1997 when preliminary studies were done on improving the Holland Marsh Canal System which then culminated in a preliminary report in 2003 on repairing the dykes and canals of the Holland Marsh Canal System.

The final report on the project, which is the subject of this hearing, was commissioned in May 2003 and proposes the following work:

• improving 16.95 kilometres of canal by shifting the canal locations laterally;
• improving another 11.0 kilometres of canal with bottom cleanout and minor widening in some areas;
• 9.8 kilometres of graded berms beside dyke roads;
• repairing scattered lengths of dyke;
• addressing numerous irrigation inlets through the dykes that have service from the canals;
• addressing drain outlets and well overflow outlets that discharge to the canal;
• addressing 13 bridges that cross the canals;
• providing for minor works of buffer construction, lateral channels and drainage along canals roads; and
• providing for better and easier future maintenance of the canals.

The Report estimates that the total cost of the proposed repairs to the canals and dykes, inclusive of financing, engineering and administration to be $26,385,640.

Of the total cost of the project, the Engineer gave less than $500,000 in allowances to landowners for the taking of land and disturbance.  More than 7,000 properties were assessed for costs of the project, but only 12 appeals were made to the Tribunal claiming that assessments were too high or allowances were too low.  For areas outside the Holland Marsh itself (the appeals only related to this land), the Engineer allowed $10,000 per acre for standard cultivated agricultural land required for the project.  This gives some indication of the value of the land involved in the case.

Read the Tribunal's decision at: Holland Marsh Drainage System Canal Improvement Project.

OMB refuses severance of farm land in Sarnia area

In a decision issued January 5, 2010, the Ontario Municipal Board has dismissed an appeal of the County of Lambton's refusal of an Official Plan Amendment. The amendment would have allowed Dario and Janet Maola to create three non-farm residential lots out of their 10.8 acre property within the City of Sarnia. The current land use designation for the property in the City of Sarnia Official Plan was Rural. OMB Member S. J. Stefanko accepted the submissions of the County of Lambton in finding that the proposed amendment to allow agricultural lands to be severed for residential lots would not be consistent with the 2005 Provincial Policy Statement (agricultural areas shall be "protected by directing non-related development to areas where it will not constrain [agricultural] uses") and would not conform with either the County or the City Official Plan.

The decision can be viewed at: https://www.omb.gov.on.ca/e-decisions/pl090330-jan-05-2010.pdf