Lawsuits challenge railroad's authority to OK oil pipeline

Here is an interesting article from AP business writer, Josh Funk, about growing conflicts between railways and neighbouring landowners in the US over pipelines and pipelines royalties: Click here to read the article at PennEnergy.com.  Not all railways hold full ownership over the land beneath their tracks; so who has the authority to grant permission for a pipeline, and to whom is compensation payable?

U.S. District Judge Rejects Organic Farmers' Suit Against Monsanto

Read the blog post by Lisa Pruitt, Professor of Law at the University of California, Davis, on this recent decision from the US.  Organic growers had sued Monsanto pre-emptively over the risk associated with the presence of GM elements in their crops that Monsanto would take action to enforce its patents.  The growers sought a ruling that Monsanto's patents were invalid because they are "injurious".

Read the article at: Lisa R. Pruitt.

Ontario family sues wind farm over health effects

An Ontario couple, Lisa and Michel Michaud, of Thamesville, Ontario has filed a statement of claim in the Ontario Superior Court of Justice alleging that the Kent Breeze wind farm operation has caused them to experience nausea, sleep disruptions and vertigo in their home.  Kent Breeze has not yet filed a statement of defence.  The closest of the Kent Breeze wind turbines to the Michaud home is 1,146 metres away.  The defendants in the lawsuit are Kent Breeze Corporation, MacLeod Windmill Project and Suncor Energy Services. 

The Michauds allege that adverse health effects of the wind project began as soon as it started operations earlier this year.  The Michauds purchased their property in 2005. 

A press conference was held in Toronto to announce the lawsuit.

Trespass Claim for Pesticide Drift

Click on the following link for an article from the official blog of the Association of American Law Schools - Agricultural Law Section about a significant pesticide drift ruling from the Minnesota Court of Appeals: Johnson et al. v. Paynesville Farmers Union Cooperative Oil Co.  The Johnsons, organic farmers, sued the PFUC over allegations that pesticide and herbicide spray had drifted onto their organic crops and caused crop damage (including the alleged loss of organic certification). 

PFUC applied for summary judgment to have the claim thrown out on the basis that there was no "trespass by particulate matter".  A lower court judge agreed with the PFUC, but the appeal court ruled that pesticide overspray could constitute an unlawful entry (trespass).  The AALS article notes that most jurisdictions now recognize agricultural chemical drift as sufficient grounds for a claim in trespass.

Court says neither party to cow-calf lease agreement conducted himself appropriately

Between 2004 and 2006, a cow-calf lease agreement was in place between Terry Pogson and Claude Martin.  Pogson owned about 76 cows, but took a job in the city and decided to lease out the cows to another operator.  Martin took the cows on the basis of an oral agreement that was later reduced to writing.  Pogson leased the cows and provided some pasture at his farm.  He was to receive 1/3 of the calves and would pay 1/3 of the expenses.

Problems arose as calving began and Martin realized that there were a number of open cows (that would not calf).  As a result, Pogson and Martin agreed that Martin would not be charged for the pasture use and would not be charged for 76 bales for which he had previously agreed to pay $20 each.  Martin was also concerned when he discovered that Pogson's cows had been vaccinated against Bovine Viral Diarrhea (BVD) in or about 2001 when a cow purchased from a neighbour tested positive for the illness.  The Court accepted the evidence of Pogson that the vaccinated cows were free of BVD given that any infected cow would have died as a result of being given the live vaccine.

At some point later in the contract, Martin sold some of the cattle that had been leased to him.  The overall result of the problems was a lawsuit in which both parties claimed various damages from the other.  The trial judge concluded the following about the parties and their agreement:

It is very easy to draw the conclusion that the plaintiff was a very disinterested owner-lessor. He did not look in on his herd as often as he should have. He never demanded an annual accounting. When the lease was terminated, he could only guess at the number of calves which should have been coming to him. Given the nature of this type of agreement which gives the lessee total authority over the cows, which remain the property of the lessor, the plaintiff should have been more diligent in ensuring that his investment was protected. It is impossible for him to complain when a dispute arose that the number of calves he is entitled to should be higher than the numbers put forward by the defendant.

Respecting the defendant's evidence, I must say I was very unfavourably impressed by it.

The defendant testified that he was treating the agreement as “null and void” within three months from the time he took the cattle. This is prior to the written agreement which the defendant himself prepared on his farm letterhead. The written agreement reflected the terms of the oral agreement. This spoke volumes to me as to the defendant’s attitude. Based on this testimony and the defendant’s later actions (as outlined below), it was clear to me that the defendant never had any intention of living up to his part of the agreement. He wanted all the benefits due to him and more but expected to pay little or nothing to the plaintiff.

In the end, the Court credited Pogson certain amounts for pasture used and cows sold and credited Martin for the value of some calves, transport costs and vaccine costs.  The end result was a judgment in favour of Pogson in the amount of $3,736.00.

Read the decision at: Pogson v Martin.

Saskatchewan lawsuit against CWB moved to Manitoba

In December, I wrote about a Saskatchewan farm, Hudye Farms of Norquay, SK, suing the Canadian Wheat Board (CWB) for loss of income, breach of fiduciary duty and defamation: SK farmer sues CWB.  In response to the suit, the CWB made a motion to the Court of Queen's Bench for the following relief:

1. Challenging the Saskatchewan Court’s territorial competence over the Canadian Wheat Board or these proceedings under The Court Jurisdiction and Proceedings Transfer Act, S.S. 1997, c. C-41.1 as am. (“CJPTA”);

2. In the alternative, the defendant Canadian Wheat Board asked the court to decline to exercise any territorial competence pursuant to Rule 99 of the Queen’s Bench Rules and ss. 10(1) of the CJPTA on the basis that the courts of Manitoba are a more appropriate forum in which to hear these proceedings;

3. An order pursuant to ss. 12(1) of the CJPTA transferring the proceedings to the courts of Manitoba; and

4. For costs on a solicitor client basis.

The plaintiffs and the CWB agreed that they were contractually bound as producer and marketing board. Much of the argument and dialogue therefore focused around defining the contract, the role of Cargill Limited as the producer’s agent, and, the effect of a term in the contract which provides that the law of Manitoba will apply to any disputes and that the courts of Manitoba shall have exclusive jurisdiction over any proceedings arising out of the commercial contract and relations created by the contract.
The Court was left to decide whether the Saskatchewan action should be stayed because the proper forum for the lawsuit was Manitoba:

It is undisputed law that Hudye Farms Inc. bears the onus and burden of proving strong cause as to why a stay should be denied the Canadian Wheat Board in the face of the forum and choice of law clause. The language of the forum and law selection clause is clear and unambiguous. Refer again to the quotation from E.K. Motors at paragraph 13, quoted earlier. Then consider further Barclay J.’s three step analysis in the Willick decision also quoted earlier. If the Manitoba courts have jurisdiction over these disputes/proceedings, should this Saskatchewan action be struck, stayed or transferred to the Manitoba courts? If Manitoba courts do not have exclusive jurisdiction, should this action be transferred to the Manitoba courts pursuant to the CJPTA?

In the end, the Court found that the proper forum based on the contract was Manitoba, and so an order has been made transferring the case to the Manitoba courts.

Read the decision at: Hudye Farms Inc. v. Canadian Wheat Board.

Should corn burning stoves be sold in Saskatchewan?

A Saskatchewan man has lost his Provincial Court claim for damages related to a hybrid wood pellet/corn stove he purchased from the defendant in the case.  After only one week of use, James Turnbull began to experience problems with the stove.  It was determined that the problems arose because Turnbull was burning "grain", rather than wood pellets or corn.  Turnbull argued that corn stoves shouldn't be sold in Saskatchewan, since it's not a corn growing province.  The Court ruled that burning grain in the stove was a misuse of the stove and, therefore, Turnbull was not entitled to any damages.

Read the decision at: Turnbull v. Aldous.

Michigan sues farm and "manure management company" over 2009 fish kill

The State of Michigan Department of Natural Resources and Environment has sued Noll Dairy Farm Inc. and Nevin and Heather Wenger (doing business as "Back Country Manure Management Co.") over a fish kill that occurred in August of 2009 in the Black River.  Officials have previously stated that manure ran off from a Noll Dairy field into a tributary of the river after an allegedly excessive application by Back Country.  The result was a fish kill of over 200,000 (including smallmouth bass, catfish, northern pike, rock bass, sunfish, suckers and minnows) over a 12-mile run of the river.  The law suit launched seeks "compensation to the State of Michigan for natural resource damages", including loss of public resources, loss of recreational opportunities and the costs of rehabilitation of the Black River and its tributaries. 

Saskatchewan farm sues Canadian Wheat Board for lost income, defamation

Hudye Farms of Norquay, Saskatchewan has launched a multi-million dollar lawsuit against the Canadian Wheat Board (CWB).  The action in the Saskatchewan Court of Queen's Bench seeks $247,699 from CWB for loss of income and other expenses.  The action also seeks $10 million in damages for breach of fiduciary duty and $15 million in exemplary and punitive damages.  The action seeks a further $25 million in a claim related to alleged defamation resulting from a notice sent out by CWB to Yorkton-area elevators.  The notice specifically named Hudye Farms.

The dispute arises out of a decision by CWB to downgrade 122.5 tonnes of wheat delivered by Hudye.  Hudye had a contract with CWB for delivery of 8,600 tonnes of Canada Western Red Spring Wheat, but CWB found that 122.5 tonnes of the wheat that was delivered contained 23.6 percent 606/Granite wheat, an ineligible variety.

Read an article about the lawsuit at: portageonline.com.

W.Va. property owners sue over canceled gas leases

Range Resources Corp.

More than 100 northern West Virginia property owners have sued Range Resources Corp. in Federal Court accusing the company of cheating them on natural gas leases.  Range allegedly cancelled leases with landowners that offered $3,500 per acre plus a 17% royalty when gas prices began to fall in 2008.  A Range spokesman says that the leases were signed, but that all Range leases require "management approval", which was not forthcoming.  The landowners say that company land agents or "landmen" had told them that the approval was a mere formality and that they turned down offers from other companies in reliance on the Range offer.

Read about the case at: The Charleston Gazette - West Virginia News and Sports.

Manitoba farmer wins Leo Birdsfoot Trefoil lawsuit

Manitoba farmer Engelbert Fischer was awarded a judgment of $21,006.79 plus pre-judgment interest against Dyck Forage & Grasses Ltd. in a claim before the Court of Queen's Bench of Manitoba.  Fischer had sold his 2002 and 2003 crops to the Defendant company under a contract that required the seed to satisfy a germination count of 75.  The Defendant's representative told Fischer that the germination count was in the 90's and agreed to pay $1.50 per pound for the seed.  Then the Defendant turned around and paid only $1.25, saying the germination count was insufficient.  The real dispute seemed to arise in 2004 when prices for the seed escalated to $2.00 per pound, a price the Defendant company was not willing to pay. 

In ruling in favour of Fischer, the Court found that:

(i) there was no basis for the defendant’s unilaterally reducing the price of the seed to $1.25 per pound, let alone $1.30 or $1.40 as indicated in the written agreement;

(ii) there was no discussion at the inception of the transaction of analysis by anyone other than the defendant’s employee;

(iii) there was no discussion of the seed having to satisfy a purchaser; and

(iv) there was no discussion that the plaintiff would have to wait for payment until all the seed was sold or that he would have to sell the 2004 crop as part of the transaction.

Read the decision at: Fischer v. Dyck Forage and Grasses Ltd.

Enbridge wants to avoid lawsuits - offers to buy homes in vicinity of oil spill

Phaedra Friend Troy of Penn Energy has reported on the Enbridge response to threats of legal action.  Patrick Daniel, Enbridge's CEO, says that no one has to sue in order to be "made whole".  Enbridge has actually offered to purchase all of the properties within 200 feet of the Kalamazoo River spill.  The price offered is the asking price for the homes before the spill or the pre-spill appraised value of homes that were not already offered for sale.

Read the article at: Penn Energy article - August 4, 2010.

"Devastating admissions" by defendant in cattle case leads to summary judgment

Though the test may vary from province to province, a judge may grant summary judgment generally when there is no genuine issue for trial.  That is, if there is no legal issue that needs to be determined at trial in order to dispose of a case, one of the parties to a lawsuit may apply to the Court to have the case decided by way of a motion for summary judgment.

In a recent decision on a summary judgment motion brought by the plaintiff, Master Harrison of the Manitoba Court of Queen's Bench found that "devastating" admissions made by the defendant in the case during examinations for discovery were determinative of the case.  For that reason, there would be no purpose in going to trial and summary judgment was granted.

The case in question involved an "arrangement" where the plaintiff would receive on a regular basis requests or orders from the defendant to purchase cattle.  The plaintiff would go out and buy the cattle, usually at auction, and then deliver the cattle to the defendant and render bills to the defendant.  Eventually the defendant refused to pay and the arrangement ended.  The plaintiff sued for some $80,000.  The defendant counter-sued for $12,000.

Summary judgment was granted in the plaintiff's action because the defendant admitted during examinations for discovery that he had acknowledged the debt to the plaintiff and told the plaintiff that he would pay:

Yes. I offered him that because I lost so much money. And I said, ‘Okay. You know what? I will pay you so much a month until it’s paid, until you are paid.’ But that’s it for us. We are done.”

On the defendant's countersuit, the Court could not grant summary judgment.  The Master ruled that:

This court is not prepared to spend twenty pages of time and space in terms of a detailed analysis of the issues arising in the counterclaim. The evidence of the corporate representatives of the parties is so conflicted that only a trial, in my opinion, would resolve the substantial credibility issues outstanding within the counterclaim. It is true that the affidavit evidence before the court regarding the faxing of invoices concerning the counterclaim cattle does put the corporate defendant in an unfavourable light. However, the overall calibre of the said evidence is simply not strong enough show that the plaintiff has met the legal burden.

Read the decision at: ADJ Livestock v 4486413 Manitoba Ltd.

Bison farm owners suing Yukon government

CBC News - North - Bison farm owners suing Yukon government

An elderly couple in the Yukon is suing the government to obtain compensation for the 17 years they have been managing "problem" bison allegedly on behalf of the government.  They say they were promised ownership of the animals, but today the animals remain regulated as "wildlife" according to law.  Click on the link to the CBC story above. 

Beef producers slam Ottawa over BSE cases

CBC News - Edmonton - Beef producers slam Ottawa over BSE cases

CBC News reported this week on the ongoing BSE class action lawsuit.  Following the outbreak of BSE in the UK, Canada engaged in various regulatory measures to protect the Canadian cattle industry from contamination. In October 1997, Canada prohibited the feeding of protein derived from mammals to ruminants by regulation under the Health of Animals Act, S.C. 1990, c. 21. The most likely source of the disease was feed manufactured by Ridley Inc. Although Mr. Sauer, an Ontario cattle farmer, had not lost any cattle or suffered any property damage from the use of Ridley’s product, he commenced a proposed class action on behalf of commercial cattle farmers in seven provinces, claiming that Ridley had negligently, recklessly or knowingly sold a product to another farmer that had the potential to, and did, cause the harm suffered, and that the government of Canada had negligently regulated the cattle industry resulting in the harm suffered. Ridley and Canada moved to strike the claims. The motions were denied, as were their appeals.  An attempted appeal of the certification of the Ontario action as a class action was also denied.

Ridley has since settled with the plaintiffs for $6 million.  The case against the government is moving toward trial.

For additional information on the lawsuit and its current status, visit: BSE Class Action.