Berendsen decision overturned by Ontario Court of Appeal

The Ontario Court of Appeal has overturned an award of damages of more than $1.7 million (plus costs of $655,000) to a farm family who claimed that the province of Ontario was liable for the contamination of their well water and the resulting health problems and under-production of their dairy herd. After a five-week trial, the Ontario Superior Court of Justice had ruled that Ontario was liable for the damage as a result of having dumped asphalt from a road project on the Berendsen farm in the 1960's. The Court of Appeal disagreed.

The Berendsens did not purchase the property until 1981. The previous owners of the farm had consented to the dumping by the province. On appeal, Ontario did not take issue with the trial judge's finding that damages were suffered or with the amount of her award. Instead, Ontario contended that it was not the cause of the damage and, in any event, had acted in accordance with the standard of care required (conduct will breach the standard of care, i.e. will be negligent, if it creates an unreasonable risk of harm).

The Court of Appeal found that for Ontario to have been negligent and liable for the damages alleged, the Berendsens needed to have shown that the risk of damage to their cattle was a reasonably forseeable consequence of the deposit of the asphalt on the farm in the 1960's. The Court noted that the risk of harm must be seen through the lens of public understanding of toxicity and contamination in the 1960's, not our understanding of the risk today. The Berendsens were unable to put forward evidence that the risk was forseeable in the 1960's.

What comes next is a decision on costs. The Court of Appeal will need to decide on the costs of the appeal and on what to do with the $655,000 in costs that was awarded to the Berendsens.

Read the Court of Appeal's decision at:

http://www.canlii.org/en/on/onca/doc/2009/2009onca845/2009onca845.html

B.C. landowner liable for breach of Terasen Right-of-Way agreements

In a decision rendered January 25, 2010, the British Columbia Supreme Court found Utzig Holdings (B.C.) Ltd. liable for possible damage caused to a Terasen (formerly B.C. Gas) pipeline by a landfill operation. The damage alleged is stated to be "possible" because no trial has yet been held on the issue of damages. It may be found that none were sustained. What has been decided is that Utzig, as owner of the land in question, is responsible to Terasen both under right-of-way agreements and the tort of nuisance.

Utzig owned the land, but leased it to two different landfill operations (which were found liable in an earlier trial). Terasen alleged that the landfill operations, which were conducted outside the statutory right-of-way, caused one of two pipelines to shift (on one occasion up to 1/2 a metre) and put the pipeline operation at risk. The trial judge found that this was the case. The trial judge also found that Utzig, although it had signed an Agreement of Purchase and Sale to sell the properties to the landfill operations, remained the "owner" for the purpose of the right-of-way agreements. The sale of the property, if it had occurred at all, had not been registered on title.

Because of the unique ownership situation in this case, the trial decision includes long discussions of fairly complex liability issues. However, what will be more interesting to see will be the decision on damages when it is made. The trial decision notes that the shift in the pipeline's position caused Terasen (then B.C. Gas) to shut down portions of the pipeline due to safety concerns and then build a replacement pipeline in another area.

Read the decision at:
http://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc90/2010bcsc90.html

CBC News - Money - Environmental panel's demands could kill Mackenzie project: Imperial

CBC News - Money - Environmental panel's demands could kill Mackenzie project: Imperial

Imperial Oil and other backers of the proposed Mackenzie Valley pipeline are asking the National Energy Board to reject several recommendations made by the Joint Review Panel set up to assess the project. For one thing, the project proponents claim that a restriction on noise from facilities installed within a 623 square kilometre bird sanctuary may prevent development of about two-thirds of the gas intended for the pipeline. The proponents also reject the suggestion that assessments be filed about the effects of construction on permafrost before trenching is begun.

The proponents comments on Joint Review Panel recommendations within the NEB's mandate are available at:

https://www.neb-one.gc.ca/ll-eng/livelink.exe?func=ll&objId=593186&objAction=browse

The proponents comments on Joint Review Panel recommendations outside the NEB's mandate are available at:

https://www.neb-one.gc.ca/ll-eng/livelink.exe?func=ll&objId=593190&objAction=browse

The report submitted by the Joint Review Panel is available at:

https://www.neb-one.gc.ca/ll-eng/livelink.exe?func=ll&objId=588326&objAction=browse

Enbridge discovers historical contamination near Wawanesa, MB

The NEB issued a letter (see link below) to Enbridge Pipelines Inc. today requesting information about the recent discovery of historical hydrocarbon contamination of soil during the construction of the Alberta Clipper pipeline near the crossing of Black Creek (near Wawanesa, Manitoba). It will be interesting to see the report Enbridge makes to the Board on its response to the discovery. I'll keep you posted.

https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/130635/593167/A1R5L3_-_Letter_and_Information_Request_to_Enbridge_Pipelines_Inc._Re._Historic_Contaminated_Soil_near_Wawanesa,_MB_Lettre_et_demande_d’information_à_Enbridge_Pipelines_Inc._concernant_l’historique_des_sols_contaminés_près_de_Wawanesa,_MB?nodeid=593168&vernum=0

Tractors on the lawn okay... just not in the city

Last December, Helene and David How of Saskatoon lost their appeal of convictions of violating Saskatoon city by-laws prohibiting the repair and storage of vehicles on their urban property. The vehicles in question were restored tractors. They had carried on the hobby of restoring and displaying the tractors while living on their farm outside the city, and when they moved into Saskatoon they continued with the hobby. Both the trial judge and the judge on appeal dismissed the idea that the repair and storage were permissible because they were done in the context of a "hobby". If that were the case, they concluded, then one person would be permitted to repair and store tractor-trailer units on a property as a hobby, while a neighbour would be prohibited from the same activity because it was done to make a living.

Read the decision at: http://www.canlii.org/en/sk/skqb/doc/2009/2009skqb490/2009skqb490.html

CBC News - Calgary - Oil and gas drilling to rise: forecast

CBC News - Calgary - Oil and gas drilling to rise: forecast

According to the Petroleum Services Association of Canada, western Canadian landowners can expect an increase in the number of gas and oil wells being drilled on their properties in 2010. 6,095 new wells are estimated for Alberta this year. British Columbia should see an additional 630 drilled. Saskatchewan and Manitoba should expect to see 1,935 and 300 new wells, respectively.

CBC News - Prince Edward Island - Farm fined for excess land holdings

CBC News - Prince Edward Island - Farm fined for excess land holdings

Go the above link to read an interesting story about land holding restrictions in PEI. The Lands Protection Act in PEI places limitations on the amount of land that can be owned and on non-resident ownership of land (see: http://www.irac.pe.ca/document.asp?file=legislation/LandsProtAct.asp). Given the size of the province, one can see why there would be such a limit on aggregate land ownership in addition to the non-resident limitation (which also existed in Saskatchewan).

NEB Joint Review Panel selected for Enbridge Northern Gateway Pipeline

Canada's Environment Minister Jim Prentice and the National Energy Board have appointed a three-member panel to review the Enbridge Northern Gateway Pipeline project. Two of the three appointees are members of the NEB: Sheila Leggett and Kenneth Bateman (Hans Matthews is the other). Of note, both Leggett and Bateman sat on the panels that heard and decided GH-5-2008 TransCanada's NOVA Application (transfer of jurisdiction from Alberta to Federal) and heard the Stream 3 Abandonment Funding hearing.

The NEB's announcement of the appointments can be viewed at:
http://www.neb-one.gc.ca/clf-nsi/rthnb/nwsrls/2010/nrthrngtwjrpstblshmnt-eng.pdf