WEBFAM FARMS LTD. PLAINTIFF - v. -, 2022 SKQB 148

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2022 SKQB 148 Date: 20 22 06 21 Docket: QBG 1569 of 2018 Judicial Centre: Regina BETWEEN: WEBFAM FARMS LTD. PLAINTIFF - and - SASKPOWER CORPORATION and DAVEY TREE EXPERT CO. OF CANADA, LIMITED DEFENDANTS Counsel: Kevin C. Mellor for Webfam Farms Ltd. Amy D. Banford for SaskPower Corporation Holli A. Kuski-Bassett for Davey Tree Expert Co. of Canada, Limited FIAT LAYH J.

June 21, 202 2 THE ISSUE [ 1 ] The issue in this application is whether by using Rule 7-1 of The Queen’s Bench Rules the court can determine a claim initiated by Webfam Farms Ltd. [Webfam Farms] in an action now over four years old.

Justice McCreary (as she then was) in a fiat of September 7, 2021 allowed the application by one of the defendants, SaskPower Corporation [SaskPower], that the matter might be determined as a question of law under Rule 7-1. [ 2 ] Subsequently, the parties agreed that the question could be stated as follows: Did SaskPower have authority, pursuant to the Easement Agreement dated July 19, 1977 between SaskPower Corporation and the Plaintiff’s predecessor in title, and/or

section 33 of The Power Corporation Act [ The Power Corporation Act , RSS 1978, c P-19 ], and

section 5 of SaskPower’s Terms and Conditions of Service, to cause its agent, Davey Tree, to enter upon the Plaintiff’s lands, being SE 7-19-20 W2 and NE 6-19-20 W2, on December 19, 2016 and remove the trees located within the area subject to the Easement Agreement, with the result that the Plaintiff is not entitled to any compensation or damages? [Brief of Law of SaskPower dated March 10, 2022] [ 3 ] Webfam Farms seeks damages concerning the loss of approximately 800 yards of 30-year-old ash trees that SaskPower’s agent, Davey Tree Expert Co. of Canada, Limited [Davey Tree], cut down and mulched on land owned by Webfam Farms that was subject to an easement in SaskPower’s favour.

Webfam Farms seeks damages of $200,000.00. [ 4 ] The question, as posed by the parties, requires me to decide whether, in the words of Rule 7-1(3), I am satisfied that I can determine whether a trial is necessary or can be abbreviated. Specifically, the Rule leaves me with certain options. I can completely determine the action and strike Webfam Farms’ claim if I find that s. 33 of The Power Corporation Act, RSS 1978, c P-19 [ Act ] bars Webfam Farms’ claim, as SaskPower suggests.

On the other hand, I may decide that, on the evidence before me, I am unable to decide whether s. 33 of the Act bars the claim and that the claim should advance to trial. THE EVIDENCE

[ 5 ] To understand the current lawsuit, one must look to July 19, 1977, when the then-owner of SE 7-19-20 and NE 6-19-20, Ralph Weber, signed a consent and agreement with respect to acquisition of and compensation for easement of right-of-way [1977 Easement]. The easement was over 15 metres of the most westerly portion of the two quarters. The 1977 Easement contemplated the construction of certain works on the land.

It read as follows, giving to SaskPower the right … … to use the land for the purpose of constructing or placing thereon a power line, with such apparatus and equipment as the Corporation considers necessary, and the right of entry on the land by the employees or agents of the Corporation for the purposes of constructing or placing thereon the said power line, with such apparatus and equipment as the Corporation considers necessary, and inspecting, repairing, replacing, maintaining and removing the same … [ 6 ] To acquire its rights, SaskPower paid Ralph Weber $250.00. Mr.

Weber was also allowed use of the land subject to the easement. The 1977 Easement stated that Ralph Weber had … … free access to and use of the said parcel of land … except insofar as it may be necessary for the Corporation to use the same for the purposes hereinbefore specified. … [ 7 ] However, Ralph Weber’s use of the land subject to the easement was with certain restrictions. The 1977 Easement specified that Mr.

Weber could not … … without the prior written consent of the Corporation, excavate, drill, install or erect or permit to be excavated, drilled, installed or erected on or under the said parcel of land any pit, well, trench, foundation, pavement, building, or other structure or installation. [ 8 ] Again, the 1977 Easement contemplated that SaskPower was about to enter upon the land subject to the easement to construct and erect power lines.

SaskPower agreed to repair any fences, and in the event of any crop growing on the land being damaged, it agreed to pay reasonable compensation. [ 9 ] John Phillips, a current employee of SaskPower, states that from 1977 to 1978 SaskPower constructed electrical transmission lines across land subject to the 1977 Easement as part of the province’s electrical transmission system to transmit 230 kV electricity. [ 10 ] Finally, the 1977 Easement permitted SaskPower to apply a soil sterilizer to the base of power structures and such surrounding area as necessary to inhibit and control weed growth. [ 11 ] On August 29, 1977, approximately one and one-half months following Ralph Weber’s execution of the 1977 Easement, SaskPower provided to the Registrar of Titles a Notice of Requirement of Easement [Notice].

The Notice was signed by Ray Petrich, described in the Notice as Assistant Secretary of Saskatchewan Power Corporation. The Notice contained the similar clauses as the 1977 Easement but also seemingly augmented the terms of the 1977 Easement by stating as follows: (

a) The Corporation shall exercise its rights with due care and attention with a view to avoiding any unnecessary damage to the land or to trees, crops, buildings or other property situated thereon; (

b) The Corporation shall pay to the owner, or other person or persons entitled thereon, reasonable compensation for damage done to any buildings, fences, crops, timber or livestock on the land arising out of or attributable to the exercise of its rights under the easement. [ 12 ] In 1977, Ralph Weber sold the land to his son, David Weber, and in turn, in 1988, David Weber sold the land to his son, Lee Weber (now Webfam Farms). [ 13 ] In December 2016, SaskPower identified and determined that certain trees growing on the land subject to the 1977 Easement had to be removed to protect its power lines and transmission system.

SaskPower issued a work order to Davey Tree to remove the trees. Davey Tree mulched the ash trees to the ground. [ 14 ] Neither Davey Tree nor SaskPower gave any notice to Webfam Farms that the trees would be removed. Lee Weber states that the resultant mulched material was left on the land and was dragged into his fields causing problems with his air- seeder and plugging up his combine. [ 15 ] Lee Weber states that prior to the removal of the trees in December 2016, SaskPower had trimmed the trees as necessary, but it had never destroyed the trees. Mr.

Weber states that no one from SaskPower or Davey Tree contacted him to say SaskPower was changing its practice of trimming the trees and instead were going to cut down the trees and dispose of them without his knowledge or authorization.

As he states, SaskPower “… did not contact my family or me to ask if we wanted to take the trees down, transplant them, sell them, or do anything with them.” (Affidavit of Lee Weber sworn September 2, 2021 at para. 14) [ 16 ] SaskPower offers scant evidence other than it had determined that the trees had to be removed to protect the power lines and transmission system and that it contracted with Davey Tree to remove the trees. Davey Tree has provided no affidavit evidence. SaskPower relies upon its statutory authority under s. 33 of the Act .

POSITION ADVANCED BY THE PARTIES [ 17 ] As contrasted with the position advanced by SaskPower, which conclusively relies upon s. 33 of the Act to enter upon any land, including easement lands, and unilaterally decide to trim or remove trees to protect power lines without the consent of the landowner, Webfam Farms states that the court has a deficit of facts to determine the issue summarily. It finds that s. 33 of the Act does

not exonerate SaskPower from liability for damages and that resolution of this matter requires a detailed

interpretation of the Act , consideration of the terms of the 1977 Easement, consideration of the principle of indefeasibility of title under The Land Titles Act , 2000 , SS 2000, c L-5.1 , and consideration of the prior conduct of the parties. [ 18 ]

Section 33 of the Act , upon which SaskPower rests its power to remove trees without notice or compensation, reads as follows: Powers re land adjoining power lines 33(1) In this section: (a) “pipeline” means a pipeline within the meaning of

Part III: (b) “power line” means a power line within the meaning of

Part III: (c) “right of way” means a right of way acquired by the corporation for the purposes of its power lines, poles, structures, wires, conduits or pipelines.

(2) The corporation may enter on any land on either side of its power lines, poles, structures, wires, conduits or pipelines or any of its rights of way, for the purpose of: (

a) doing anything necessary for the construction, operation, maintenance, repair or replacement of any power line or part of a power line, pole, structure, wire, conduit or pipeline; or (

b) trimming or removing any trees or shrubs or removing other obstructions to the extent that, in the opinion of the corporation, is necessary to protect its power lines and any cross arms, wire or other attachments to power poles. …

(4) In the trimming of a tree or shrub pursuant to clause (2)(b), every care is to be taken to ensure that no damage is done to the tree or shrub other than damage that is unavoidable.

(5) The owner of land described in subsection (2) is not entitled to compensation with respect to the trimming or removal of a tree or shrub or the removal of an obstruction, and the owner of land described in subsection (3) is not entitled to compensation with respect to the overhanging of a cross arm, wire or other attachment to a power pole. [ 19 ] SaskPower suggests that the terms on the 1977 Easement and the Notice are largely irrelevant because s. 33 of the Act gives to SaskPower the unfettered right to “… enter on any land …” and to do “… anything necessary for the … maintenance … of any power line …” and specifically allows “… trimming or removing any trees … that, in the opinion of the corporation, is necessary to protect its power lines …” If the court accepts this position, then Webfam Farms’ claim is without merit and can be struck.

CONCLUSION [ 20 ] I agree with Webfam Farms that the scant evidence before the court does not permit a careful and thoughtful analysis of the application of s. 33 of the Act in light of the pre-existing 1977 Easement or the terms of the Notice.

In my estimation, as Webfam Farms suggests, it should be afforded the benefit and opportunity to explore unanswered factual and legal questions, which can be provided by the usual trial proceedings. [ 21 ] For example, inquiries and questions that as a trial judge I would be prepared to entertain as relevant, but are not before me, to determine the merits of Webfam Farms’ claim might include: (

a) inquiry into the terms of the work order that SaskPower issued to Davey Tree (as Webfam Farms has identified in its brief of law);

(

b) the history, times and reasons that SaskPower had previously trimmed rather than removed trees from the easement land (as Webfam Farms has alleged); (

c) whether s. 33(4), which states that damage to trees and shrubs must be kept to a minimum, and which contemplates both trimming and removal of trees, suggests the least invasive operation was appropriate; (

d) the interplay between s. 33 of the Act and the terms of the 1977 Easement and the Notice registered against the titles and whether the terms of the latter two documents are relevant in the application of s. 33 (as Webfam Farms suggests and SaskPower disavows); (

e) whether SaskPower had previously notified Webfam Farms of its operation and whether it was reasonable that SaskPower notify Webfam Farms of its intended operation to remove the trees; and (

f) whether, assuming SaskPower has incurred no liability respecting the removal of the trees, it had an obligation to remove mulched material from land adjacent to the land subject to the easement. [ 22 ] In conclusion, I am unprepared to grant the order sought by SaskPower to strike Webfam Farm’s claim. The matter must proceed in the ordinary course. [ 23 ] I also add that none of the inquiries I have posed may prove to be germane or relevant to the trial judge’s ultimate determination of this action. They are meant only as reasons why I do not accept that this action can be expeditiously determined by application of Rule 7-1. J. D.H. LAYH