Appeal Tribunal denies request to waive chicken over-production levy

The Ontario Agriculture, Food and Rural Affairs Appeal Tribunal has denied an appeal by La Primavera Farms of an over quota levy imposed by the Chicken Farmers of Ontario (CFO).  When La Primavera produced 78,513Kg of chicken in quota period A-99 (July 16 - September 11, 2010), it exceeded its quota allotment by 24,671Kg.  La Primavera was assessed an Excess Production Levy ("EPL") of $21,978.99 by CFO, pursuant to CFO Regulation BQ-2010.  La Primavera objected, and in a decision of CFO dated December 16th, 2010, CFO affirmed the EPL.  CFO was requested by La Primavera to reconsider its decision. CFO denied La Primavera's request for a waiver of the EPL and affirmed its previous decision. La Primavera then appealed to the Appeal Tribunal from the decision rendered by CFO and seek a waiver, or a reduction of the EPL.            

The owner of La Primavera has been involved in the production of chicken under the current supply management system for the last 30 to 35 years.  In 2010, the owner decided to entrust to his daughter the responsibility to plan and order chicks from the hatchery to stock La Primavera's barn for the quota period at issue on the appeal.  When a Notice of Maximum Crop Quota Allotment arrived from CFO, the owner did not explain the significance of the notice to his daughter.  She attempted to calculate the number of chicks needed to fill the quota allotment. 

A second document was sent by CFO later in the same month in an envelope labeled in bold Important Crop Quota Enclosed.  This was the official communication from CFO determining the net allotment of quota for La Primavera for the period.  The owner's daughter did not appreciate the significance of this document and did not look at the document in deciding upon the number of chicks to be ordered.  The owner was not involved in reviewing the document with his daughter.  Production by La Primavera ended up based on an assumed quota of 65,240 kg when it should have been only 53,842 kg.  An excess production levy of almost $22,000 was imposed.

La Primavera asked for the levy to be waived on the basis that the over production resulted from a "clerical error".  However, in the Tribunal's view, the responsibility rested on the President of La Primavera to properly guide his daughter/employee through the process to calculate La Primavera's needs to fulfill its quota allotment for the quota period in question. In failing to properly guide her      to take over the responsibility, La Primavera assumed the risk which resulted from her lack of knowledge and familiarity with this process.  The appeal was denied.

Read the decision at: La Primavera Farms vs. Chicken Farmers of Ontario (CFO).

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).