Ontario aiming to improve Conservation Authority permitting process for applicants

As part of the Open for Business initiative of the government, the Ministry of Natural Resources is proposing amendments to Ontario Regulation 97/04, (the “Content of Conservation Authority Regulations under Subsection 28 (1) of the Act: Development, Interference With Wetlands And Alterations to Shorelines and Watercourses”) under the Conservation Authorities Act. The proposed amendments are intended to simplify and streamline the permitting process that conservation authorities undertake under Section 28 of the Conservation Authorities Act through 36 individual authority regulations.

The proposed amendments are also intended to support conservation authority compliance with the timelines for decisions on Conservation Authority Act Section 28 permit applications outlined in the ‘Policies and Procedures for Conservation Authority Plan Review and Permitting Activities’ document (‘Policies and Procedures’ document) previously posted to the Environmental Registry (Environmental Registry # 010-8243). The ‘Policies and Procedures’ document forms a chapter of the Conservation Authorities Policies and Procedures Manual that guides provincial aspects of conservation authority operations. The intent of the chapter is to describe the roles of conservation authorities in municipal planning and plan review, and under the Conservation Authorities Act Section 28 permitting related to development activity and the protection of environmental interests.

The Ministry is streamlining the permitting process by:

Enabling the conservation authority to delegate its powers under the regulation including the power to make positive permit decisions to the conservation authority’s executive committee or conservation authority employees.

Extending the maximum period of validity of a permit from 24 months to 60 months.

The anticipated environmental consequences of the regulation proposal are considered to be neutral. The improvements to the permitting process are for the applicant or development proponent and do not impact what the conservation authority regulates or by what considerations.

The anticipated social consequences are positive to neutral. This proposal is intended to reduce wait times for a decision on a permit for an applicant or development proponent for straight forward and uncomplicated development activities. For larger development applications and proponents the proposal is intended to reduce frustration, cost and duplication of effort in having to re-apply for a permit where a development project may require permits or approvals from other regulatory bodies that cannot be reasonably obtained before the expiration of the Conservation Authorities Act Section 28 permit. This is intended to improve business relationship between the conservation authorities and applicants or development proponents for Conservation Authorities Act Section 28 permits.

The anticipated economic consequences are positive to neutral. The amendments streamline the permit process by delegating positive permit decisions to conservation authority staff. Currently the Conservation Authority Board which met generally monthly make all permit decisions, by delegating to staff, wait times for some permit decisions are reduced for the applicant. With the extension of the validity of a permit from 24 months to 60, this may reduce the requirement for larger development proponents to need to re-apply for a permit while waiting for other approvals from other regulatory bodies or given extended construction timelines.

All comments on this proposal must be directed to:


Chris Popovich
Great Lakes & Water Policy Section Intern
Ministry of Natural Resources
Policy Division
Biodiversity Branch
Great Lakes & Water Policy Section - Peterborough
300 Water Street
Floor 5 South
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5591
Fax: (705) 755-1957

Ontario livestock trucker fined for obstructing inspector attempting to euthanize cow

A Justice of the Peace in Cayuga, Ontario has convicted Frank DeBoer of one count of obstructing a veterinary inspector under the Livestock Community Sales Act.  The court found that DeBoer obstructed a veterinary inspector in the course of her duties under the LCSA at the Hagersville Livestock Auction. The inspector was prevented from euthanizing a lame cow that was not medically fit to be transported without undue suffering. The offence occurred on or about August 31, 2009.  Justice of the Peace Dan MacDonald sentenced DeBoer to a fine of $800 plus a victim fine surcharge of $125.

The Better Farming website has a follow-up story on this court case which raises some questions about whether or not the animal required euthanization at all.  Apparently the animal was returned to its owner, had its hoof trimmed, and was sold ten days later at auction without incident.  Read the Better Farming story at: trucker-obstructed-livestock-inspector-court-rules.

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.

Smith v. Alliance Supreme Court Hearing Video Online

"This has been a long and perplexing case for Mr. Smith, an 82 year-old farmer from central Alberta." 

Video of the recent hearing of the Smith v. Alliance Pipeline case by the Supreme Court of Canada is available on-line at: SCC Webcast.  The video seems a bit slow, but if you start it and hit pause for a while, it might buffer enough to allow it to play smoothly from that point forward. 

Saskatchewan cattle producer liable for $500 fine for moving cattle without tags

In a recently released decision, the Canadian Agricultural Review Tribunal has upheld a Notice of Violation and a $500 fine against a Saskatchewan rancher who had alleged moved cattle from his farm without proper CFIA tags.  Cecil Coward testified that he is a farmer/rancher in southwestern Saskatchewan and, with his wife, have 175 cow/calf pairs.  In 2009, he transported 125 pairs to his own pastures and 50 pairs to the Shamrock Community Pasture.  He transported the 50 pairs on May 19 in two loads.  After he was home again that morning, he received a call around 11:30 a.m. from the Pasture Manager telling him that some of his cows were missing their RFID-CCIA approved tags.
Once again in this decision, Dr. Donald Buckingham takes note of the practical difficulties in ensuring 100% compliance with the tagging requirements of the Health of Animals Regulations:

Practical difficulties arise in attempting to have 100% of Canadian cattle, bison and sheep tagged with approved tags. Some animals, requiring identification pursuant to Part XV of the Health of Animals Regulations, may never be tagged, through neglect or opposition to the present regulatory scheme. Most animals, however, will be tagged, but, even among these, some will lose their tags somewhere between the birthing pen and the slaughter house floor. To minimize “"slippage"” and to maximize the number of animals that are tagged with approved tags for the full duration of the animal's life, the Health of Animals Regulations require several actors in the production chain to tag animals which are either not yet tagged or which have lost their tags. If actors inside or beyond the farm gate do not tag, as required by the Health of Animals Regulations, they too face liability when tags are missing. Owner and transporters of sheep are among those identified under the Health of Animals Regulations with such responsibilities. The Agency has the responsibility of ensuring compliance with these provisions either through criminal prosecutions or through the levying of administrative monetary penalties for violations identified in the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.

For the purposes of this case, such approved tags are RFID-CCIA approved tags made of plastic bearing a front piece printed with a bar code and a back button which, when applied to an animal's ear, is meant to lock the tag into place permanently. Such a permanent locking device would permit farm-to-processor tracking and thus meet the objectives of the Regulations to establish a permanent and reliable system to track the movements of all bison, cattle and sheep in Canada from the birth of such animals on their “"farm of origin"” to their removal from the production system, either through export or domestic slaughter. Almost every system of mandatory identification is, however, subject to mechanical failure or human error.

The evidence in this case is that the system that the Regulations rely upon, or perhaps more accurately the equipment and technology to support that system, does not establish a permanent and infallible system to track the movements of all bison, cattle and sheep in Canada. The Tribunal accepts the evidence of Coward that on May 1, 2009, he tagged all of his cattle with RFID-CCIA approved identification tags. If there was human error in the application of the RFID tags on May 1, 2009, there was no evidence of it presented at the hearing. The Agency and its officials were never at the Coward farm and there is no evidence which contradicts the testimony of Coward and his wife on this point. [emphasis added]

However, Buckingham could not overlook that 10 of Coward's cows were found in the Shamrock Community Pasure without approved tags.  He found that, on a balance of probabilities, CFIA had proven that at least one and up to ten of the cows had been loaded on May 19 without a proper tag.  Unlike in the recent Habermehl case, there was an admission by Coward here that he had not verified each cow as it was loaded for travel to the pasture.  Buckingham found it likely that at least one tag fell out between the time they were applied on May 1 and the time the cattle were loaded on May 19.

As usual with the regulations, the Tribunal has no discretion once it has found that the CFIA has proven its case on a balance of probabilities:

The Tribunal finds that the Agency has, therefore, made out all of the essential elements of this case. The Tribunal has no reason to doubt Mr. and Mrs. Coward's assertions that “"due to drought + the price of cattle it is hard enough to make a profit"” (statement by Coward in his request for review) and that they are good cattle producers who agree with the tagging program for Canadian cattle. However, in light of the evidence and the applicable law, the Tribunal must conclude that the Agency has established, on a balance of probabilities, that Coward committed the violation and is liable for payment of the penalty in the amount of $500.00 to the Agency within 30 days after the day on which this decision is served.

Read the decision at: Coward v. Canada (CFIA).

OMB denies application to sever former aggregate pit land zoned agricultural

James Graham wished to create and sever from an existing 50 acre parcel of land a new estate residential lot comprising 1.24 hectares (3 acres).  Council for the Municipality of Middlesex Centre refused his Official Plan Amendment and Zoning By-law Amendment applications in that regard and the Committee of Adjustment denied his severance request. Those decisions were appealed by Mr. Graham to the Ontario Municipal Board (OMB).

The Graham family has owned 50 acres of land on the west side of Komoka Road and south of Glendon Drive in the Municipality since the mid seventies. Up until 1991 these lands were licensed to permit aggregate extraction operations below the water table. This operation resulted in creating an existing land use comprised of a series of large ponds interspersed between fragmented parcels of land. In total, approximately 16.2 hectares (40 acres) of the site consists of open water and the remaining 4.03 hectares (10 acres) of land adjacent to Komoka Road is used for residential purposes having on it a single detached dwelling.

The Applicant, Graham, testified that in or about 1991 the entire parcel was conveyed to his children. He and his wife then moved from the location. However, they wished to return to the area and create a new lot upon which to build a home. In order to effect their objective, the OMB was asked to approve an Official Plan Amendment (“OPA”).  The issue to be determined in the hearing was whether the proposal is consistent with the 2005 Provincial Policy Statement (“PPS”) and whether it conforms to the Middlesex County Official Plan (“County OP”) and the Middlesex Centre Official Plan (“Centre OP”).

The OMB found that the proposed amendment was inconsistent with the Ontario Provincial Policy Statement and the relevant Official Plans.  The Applicant argued that, since the aggregates on the property had been depleted, the land should now be available for expanded residential purposes.  However, the Board member ruled:

The land has been used for permitted agricultural uses for decades. The depletion of aggregate on the property should not, in my opinion, give rise to uses which are not permitted. ... Even if the subject property is considered unique in some respects, that uniqueness does not transcend, in any manner whatsoever, the specific policy prohibitions identified throughout these reasons. These prohibitions are unequivocal in their language and, in my view, decidedly clear in their purpose and direction. Based on all the foregoing therefore, the OPA and ZBA are not approved and Provisional Consent is not granted. Accordingly, the appeals are dismissed.

Read the decision at: Graham v. Middlesex Centre.

How much should it cost to rent land located underneath power lines?

In 1997, The Manitoba Hydro-Electric Board (“Manitoba Hydro”) leased land beneath Manitoba Hydro transmission lines to Chuck Arnason Golf and Sports Ltd. (“Arnason”). The rent was set at $6,000 per year, subject to a rent review every five years based on a formula in the lease.  In 2006, The Manitoba Housing and Renewal Corporation (“the MHRC”) announced it would expropriate Arnason’s lease, which it ultimately did in May 2009.  In early 2008, relying on an appraisal of the MHRC, Manitoba Hydro raised Arnason’s rent, for the third five‑year period, tenfold to approximately $60,000 per year. Arnason said this was wrong and sought a declaration from the Manitoba Court of Queen's Bench regarding the interpretation of the renewal formula in the lease.

The renewal formula was as follows:

3. Future rental rates shall be established by means of the following formula: The Lessor shall determine the current market value of the leased land (as vacant) using standard appraisal practices of the Appraisal Institute of Canada. … [emphasis added]

Arnason argued that the formula should be interpreted to be subject to Manitoba Hydro's continuing use and interest in the land for electrical distribution and transmission lines and communication lines.  Manitoba Hydro and the MHRC countered that "as vacant" meant there should be no consideration of the use of the land by Manitoba Hydro (which would devalue the land for the lessee and result in a lower level of rent). 

Following an in-depth analysis of the lease contract, the Court concluded that future rent was to be determined on the basis of the following assumptions:

(a) future rent is to be based on the current market value of the leased land;
(b) the current market value shall take into account, or be subject to, the leased land being a “secondary use of the land”, always subject to the primary use of the leased land being Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble;

(c) the current market value shall consider the leased land zoned as agricultural, or such other zoning that may be applicable considering Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble; and

(d) other than Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble, the leased land is vacant of any improvements.

In other words, the Court agreed with Arnason that the "as vacant" value of the land must include consideration of Manitoba Hydro's ongoing use of the land.  "As vacant" meant vacant of any improvements over and above the Manitoba Hydro improvements. 

Read the decision at: Chuck Arnason Golf and Sports Ltd. v. The Manitoba Hydro-Electric Board et al.

Owner liable for damages caused by pet goat

A Small Claims Court in Nova Scotia has awarded a woman $1,500 in damages after her neighbour's goat rammed her car.  At first, the goat had chased the woman's young daughter who had exited the vehicle.  When the daughter managed to get back into the car, the goat rammed the side of the car and then climbed on top of it.  The goat was being "goatsat" while the owner was away.

The Small Claims adjudicator ruled that the goat was to be considered a wild animal rather than a domesticated one for the purposes of the case:

The law divides animals into one of two categories.  The first category is wild by nature known as ferea naturae .  The second category would be those considered domesticated by nature and this category is known as mansuetae naturae.  I grant you it is sometimes difficult to categorize animals as wild by nature versus domesticated by nature. For example, is a cow a domesticated animal or a wild animal?  Is a Rottweiller or a Pitbull a wild animal or a domesticated animal?  These are questions that face the Small Claims Court on more than one occasion.  I think it is safe to say the goat would fit in to the first category of an animal that is wild by nature.  No doubt they can be trained to a certain extent but when you have an animal like a goat would you allow it to live in your home.  I suggest there is only so far you can go to training an animal like a goat.  The same could be said for a tiger.  While they may be well trained they are wild animals.  As such the law imposes a very high duty on the owner to prevent any kind of injury from such animals even if the owner believes in his own mind that the animal is harmless.  The owner of such an animal will be strictly liable for any injury caused by that animal, which is the case here.

Read the decision at: Pittman v. Morin.