Farmer ordered not to burn except in compliance with strict conditions

A 65-year old farmer in Waterdown (in the City of Hamilton, Ontario) has been ordered not to burn brush or tree limbs on his farm property except in accordance with conditions including:

1.      The fire is to be attended and supervised at all times.

2.      All fires are to be completely extinguished at the end of each working/burning day.

3.      Burning is not to take place when winds will cause smoke to be an annoyance to nearby property or roadways.

4.      All fires must be kept to a maximum size of 2m x 2m x 2m in height.

5.      Only the burning of brush and tree limbs is permitted.

6.      Equipment capable of extinguishing the fire at any time conditions warrant is to be on site at all times burning is carried out (i.e., Portable fire extinguishers, garden hose, portable pump and hose, bobcat etc.).

7.      The owner must contact the Ministry of Environment and comply with the Environment Protection Act.

8.      Open air burning shall not be carried out on Smog Alert days as declared by the City of Hamilton.

9.      No more than three piles at the current location to be burned at a single time.

10.  An area of 3m is to be cleared of all vegetation around the perimeter of each of the piles.

The fire inspection order was initially issued to the farmer in 2001.  In 2002, the order was appealed unsuccessfully to the Fire Safety Commission.  However, in 2004, the Superior Court of Justice allowed an appeal of the Commission decision on the basis of insufficient reasons.  A second Commission hearing was held in 2009.  Again the Commission upheld the inspection order.

Recently, the Superior Court of Justice heard an appeal by the farmer of the second Commission decision.  In dismissing the appeal, the Court ruled:

The Commission’s reasons, taken as a whole, are transparent, intelligible and justifiable.  We find no error, in fact or law, no misapprehension of the evidence and no miscarriage of justice.  It was open to the Commission to find that the appellant’s proposed burn without each of the conditions would, on a balance of probabilities, be unsafe and pose a potential fire hazard to him, his neighbours and drivers travelling on adjoining highways.  In doing so, the Commission considered the totality of the evidence and its findings were reasonable and well-supported by the evidence.  In particular, its findings in respect of each of the impugned conditions met the standard of reasonableness.

The decision of the Commission clearly falls within the range of possible, acceptable outcomes that are defensible from a factual and legal perspective.

Read the decision at: Veri v. Hamilton (City).