Reasonable Apprehension of Bias Strikes Farm Tribunal

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

Courts and tribunals in Canada are to be held to the highest standards of impartiality.  This is not just a matter of decision makers subjectively acting fairly and impartially (i.e. actually being fair and impartial) but just as importantly a matter of fairness and impartiality being demonstrated to the public.  As articulated by the English Chief Justice Lord Hewitt: “[it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”  A hearing will be unfair, and justice will not be seen to be done, if the words or actions of the decision maker give rise to a “reasonable apprehension of bias” to the “informed and reasonable observer”.  Decision makers must be fair and impartial and must also appear to be fair and impartial.  If there is an appearance of bias, then the decision maker is subject to review.

Impartiality has been described by the Supreme Court of Canada as “a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.”  Bias is the opposite: “a state of mind that is in some way predisposed to a particular result, or that is closed with regard to the particular issues.”  The words or actions of a decision maker will give rise to a reasonable apprehension of bias where “an informed person, viewing the matter realistically and practically – and having thought the matter through” would conclude that the decision maker was not impartial.  That “informed person” must have knowledge of all relevant circumstances, including “the social reality that forms the background to a particular case”, and must have more than a “mere suspicion” of impartiality.  The threshold for finding actual or perceived bias is high because it calls into a question an element of judicial integrity.

Reasonable apprehension of bias became an issue recently in a matter before the Normal Farm Practices Protection Board (the “NFPPB”).  The NFPPB is a tribunal with the power “to inquire into and resolve a dispute respecting an agricultural operation and to determine what constitutes a normal farm practice” and “to make the necessary inquiries and orders to ensure compliance with its decisions.”  A person directly affected by a disturbance from an agricultural operation can apply to the Board for a determination “as to whether the disturbance results from a normal farm practice.”  Farmers directly affected by a municipal by-law or “persons who want to engage in a normal farm practice as part of an agricultural operation on land in the municipality and have demonstrable plans for it” can apply to the Board for a determination “as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law.”

Following a seven-day hearing in 2022, the NFPPB dismissed an application made by cottage owners who complained of nuisances caused by a neighbouring farm operation.  The Applicants alleged improper storage of manure, an increase in manure odour and flies as a result of the farm’s damage to and/or removal of hedgerows and other vegetative buffers, nuisance caused by manure laden dust, and odour and flies caused by deadstock disposal.  The respondent farm had been operating in the same location for 50 years and the NFPPB noted that the cow calf farm was operated using practices similar to other cow calf operations.  The NFPPB dismissed the application on the basis that the Applicants did not show “substantial interference and discomfort which would not be tolerated by the ordinary occupier in their location” and did not demonstrate “unreasonable interference with the use and enjoyment of the Applicants’ land.”

The respondent farm applied for a costs award against the unsuccessful applicants, arguing that the application was “frivolous and/or vexatious”.  The NFPPB agreed that the application was frivolous because, while the Applicants alleged that the respondent farm had altered its practices intentionally to aggrieve the Applicants, the NFPPB determined that the respondent farm’s operations were “normal farm practices”.  The NFPPB also took note of the fact that the Applicants were pursuing other legal actions against the respondent farm outside of the NFPPB process, that the Applicants had raised a multitude of issues without presenting evidence on particular issues, and that the Applicants had through their conduct throughout the proceedings attempted to malign and vilify the respondent farm.  In the end, the NFPPB ordered that the Applicants pay the respondent farm $40,000 in costs.

The Applicants requested a review of the decision on costs, both on the issue of the amount of the costs awarded and on the issue of reasonable apprehension of bias.  On the latter issue, the Applicants raised a concern about the appearance of a conflict of interest on the part of one of the three members of the NFPPB panel who heard the application and delivered the decision on costs.  It turned out that one of the panel members had sat as an adjudicator on a panel of the Agriculture, Food and Rural Affairs Appeal Tribunal (“AFRAAT”) that also included as a member a senior partner in the law firm representing the respondent farm in the NFPPB proceeding.  That AFRAAT proceeding was taking place at or around the very same time as the NFPPB hearing in 2022. 

The NFPPB Vice-Chair considering the review request determined that an appearance of bias did result from the fact that one of the NFPPB panelists had sat on another tribunal panel with a lawyer who indirectly was the lawyer for the respondent farm (that is, the respondent farm was technically a client of the lawyer’s law firm and, therefore, of the lawyer himself).  The Vice-Chair concluded: “When viewed from that perspective, an informed reasonable person viewing the matter realistically and practically, would conclude that the decision maker whether consciously or unconsciously would not decide fairly. There is the appearance of bias at the original hearing that would continue to exist for the subsequent costs decision.”  The Vice-Chair ordered a re-hearing on costs before a full panel of the NFPPB.

Read the decision at: 2023 ONNFPPB 3 (CanLII).

 

Normal Farm Practices Protection Board goes to the dogs

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

In 1987, the Ontario Government introduced Bill 83, An Act respecting the Protection of Farm Practices, which led to the enactment of Ontario’s first “right to farm” legislation, the Farm Practices Protection Act, 1988.  The Minister of Agriculture at the time, the Honourable Jack Riddell, explained to the Legislature:

Ontario farmers have been concerned for some years that normal farming practices may increasingly result in complaints and court actions under the common law of nuisance. Under the act, a Farm Practices Protection Board will be established. Individuals who complain about odours, noise and dust from farm practices may ask the board to investigate. The board will hold hearings on odour, noise or dust complaints referred to it. The board will have the power to dismiss complaints about a normal farming practice or to issue an order to rectify the problem if it is not normal. […]

The act will deal with current and future nuisance incidents arising from existing conditions. The long-term solution is a strong agricultural planning policy to avoid incompatible and competing uses in agricultural areas.

A decade later, perceived shortcomings in the original legislation were addressed in a new Farming and Food Production Protection Act, 1998 (“FFPPA”), which expanded nuisance liability protection to a number of modern farming activities, added to the list of disturbances covered by the protection, and addressed conflicts between agriculture and restrictive municipal by-laws.  This legislation remains in effect today.

The FFPPA protects “normal farm practices”, which are defined as practices either “conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances” or which “[make] use of innovative technology in a manner consistent with proper advanced farm management practices”.  Importantly when it comes to livestock operations, a practice that is inconsistent with the regulations made under the Nutrient Management Act, 2002 will not be considered a normal farm practice.

The first layer of protection for agriculture created by the FFPPA is the nuisance liability protection introduced in the original Farm Practices Protection Act, 1988.  At Common Law (“judge-made” law as opposed to statutory law passed by the Legislature), a person can be liable for use of his or her land in a way that substantially and unreasonably interferes with a neighbour’s enjoyment of his or her own property.  The FFPPA creates an exception by stating that a farmer will not be liable in nuisance for “a disturbance resulting from an agricultural operation carried on as a normal farm practice”.  The agricultural operation must be carried on “in the expectation of gain or reward” to be protected.  The disturbances covered by the FFPPA are odour, dust, flies, light, smoke, noise, and vibration.

The second layer of protection for agriculture in the FFPPA is the resolution of conflicts between normal farm practices and municipal by-laws in favour of normal farm practices.  According to the legislation, no municipal by-law can apply “to restrict a normal farm practice that is carried on as part of an agricultural operation.” 

The FFPPA creates the Normal Farm Practices Protection Board, which is a tribunal with the power “to inquire into and resolve a dispute respecting an agricultural operation and to determine what constitutes a normal farm practice” and “to make the necessary inquiries and orders to ensure compliance with its decisions.”  A person directly affected by a disturbance from an agricultural operation can apply to the Board for a determination “as to whether the disturbance results from a normal farm practice.”  Farmers directly affected by a municipal by-law or “persons who want to engage in a normal farm practice as part of an agricultural operation on land in the municipality and have demonstrable plans for it” can apply to the Board for a determination “as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law.”

At issue in one of the most recent cases decided by the Board was a complaint about a surprising source of disturbance – a barking dog acquired by a small farm operation to guard poultry from predators, namely coyotes.  The Applicant lived next door to the farm and alleged that he could hear the dog barking every night and sometimes during the day, and that the barking kept him and his family up during the night and terrified his young son.  The Applicant asked the Board to determine whether the alleged disturbance resulted from a normal farm practice.

The Board dismissed the application without having to determine whether having the guard dog on the farm was a normal farm practice entitled to the liability protection under the FFPPA.  Based on the evidence it heard, and taking into account all of the circumstances, the Board found that the Applicant failed to meet the threshold test – establishing that he was directly affected by the alleged disturbance.  To pass that test, the Applicant would have to have shown that the dog barking caused interference that was “substantial and would not be tolerated by the ordinary occupier in their location, an objective test.”

Read the decision at: Normal Farm Practices Protection Board.

Normal Farm Practices Board shuts down greenhouse biodigester

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:  

In Ontario, a person affected by a disturbance from an agricultural operation, such as odour or noise, may apply to the Normal Farm Practices Protection Board for a determination as to whether the disturbance results from a “normal farm practice”.  If, following a hearing, the Board determines that the disturbance results from a practice that is not a normal farm practice, the Board must order the farmer involved to cease the practice.

On November 8, 2018, the Board issued its Reasons for Decision in a case involving allegations of disturbances due to odour, flies, dust, light, noise and vibration arising from the operation of a biodigester at a large greenhouse operation.  The Board determined that the operation of the biodigester was not a normal farm practice and ordered that the digester system be shut down immediately.  The Application was brought by a number of residents living in the vicinity of the operation in 2015.  A hearing of the Application was held by the Board over the course of 20 days in December, 2015, and January, April, June, and July, 2016.  In addition to hearing from no fewer than 25 witnesses, the Board received approximately 200 documentary exhibits into evidence.

The Board heard that the biodigester in question had been installed in or about 2008 by the greenhouse operator (now in receivership) at the rear of its greenhouses to provide an alternative source of energy.  Biogas produced by the digester ran a large electrical generator, and the electricity produced was used to heat water to heat the greenhouses.  The system included two enclosed digesters, a large generator, a flare for burning off excess gas, cement bunkers where feedstock for the digesters was stored, and both open and buried tanks for liquid digestate.  Feedstock for the digester has included material such as pet food, coffee grounds, vegetable and flower waste from grocery stores, solids from meat processing, and occasionally manure.

The rural area where the greenhouse operation was located is composed of small farms with narrow frontages, along with a number of residential lots that have been severed from larger farm properties.  Prior to the installation of the biodigester, the neighbourhood was considered to be "a relatively quiet, peaceful rural setting" where disturbances from agriculture were limited to the occasional sound of tractors operating and periodic odour from nearby chicken barns.  Following installation of the biodigester, however, significant disturbances were reported, including offensive odour noticeable almost daily, and an extreme increase in the number of flies around neighbours' homes.

In assessing the application, the first question for the Board was whether one or more of the applicants had proven that he or she was directly affected by a disturbance of odour, flies, dust, light, noise or vibration arising from a practice related to the greenhouse operation.  Although under the test applicable to the application, the Board would only need to find that one of the applicants had been directly affected by one of the alleged disturbances, the Board found that several of the applicants demonstrated that there had been:

"a substantial and repeated interference with the use of their properties by reason of the excessive odour and flies since 2009.  The character of the neighbourhood has been changed by the operation of the digester from a quiet, peaceful rural setting with the occasional sounds and smells of farming to one besieged by almost daily intense odour and hordes of flies."

The next question was whether the operation of the biodigester was a "normal farm practice", which is defined in the Farming and Food Production Protection Act, 1988 as a practice that: (a) “is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances”, or (b) “makes use of innovative technology in a manner consistent with proper advanced farm management practices."  If the Board found that the operation of the biodigester did not meet one or both of those definitions, the legislation would require the Board order the greenhouse operator to cease operation of the biodigester.

With respect to the first definition of "normal farm practice", being one that is conducted in a manner consistent with proper and acceptable customs and standards, the Board found that the greenhouse operator failed to provide sufficient evidence of other similar biodigester systems being used in similar circumstances as the biodigester at issue.  With respect to the second definition of "normal farm practice", being one that makes use of innovative technology, the Board accepted that the use of a biodigester in an agricultural setting, and the use of agricultural waste as feedstock, were innovative.  However, relying on the decision of the Ontario Court of Appeal in Pyke v. Tri Gro Enterprises Ltd., the Board ruled that operation of the biodigester was nevertheless not a "normal farm practice" on account of the intensity and severity of the disturbances caused and the change in the character of the neighbourhood surrounding the greenhouse operation.

The Board also found that the operation of the biodigester could not be modified so as to make it a “normal farm practice”, leaving no option but to shut the digester down.

Read the decision at:  2018 CanLII 107105 (ON NFPPB).

Normal Farm Practices Protection Board dismisses application by landowner whose farm tenants clear-cut trees

A corporate landowner in Grey County applied to the Normal Farm Practices Protection Board for a ruling that the County's Forest Management By-law restricted a normal farm practice.  The landowner was effectively seeking a ruling that would eliminate a charge that had been laid against the landowner under the By-law after the landowner's tenants cleared a large portion of the landowner's property that was covered "with a young ash tree stand".  The landowner contended that the clearing operation was a normal farm practice.

Neither the tenants nor the landowner had obtained a minor exemption or permit under the Forest Management By-law, which was required for the clearing work.  However, the Board could make a ruling under the Farming and Food Production Protection Act, 1998 that the By-law did not apply to the clearing operation on the basis that it was a normal farm practice carried on as part of an agricultural operation.  The Act provides that no municipal by-law applies to restrict such a practice.

The Board had three issues to determine:

1.      What is the specific practice the Applicant claims is being restricted by the by-law?

2.      Is that practice a normal farm practice in the circumstances of this farm operation?

3.      If the practice is a normal farm practice, is it restricted by the Forest Management By-Law No. 4341-06?

On the first issue, the specific practice in question in this case was the clear cutting of trees from the landowner's property to permit land to be farmed. 

On the second issue, the Board noted that the landowner, the Applicant, had the onus of proving that the clear cutting was a normal farm practice in the circumstances of its specific farm operation.  Here the landowner's case failed.  The Board found that the landowner failed to prove on a balance of probabilities that the tree cutting was a normal farm practice.  The only witness for the landowner, the corporation's president, submitted no evidence that the clear cutting was a normal practice or innovative technology.  And no expert evidence was presented on that issue either.

In the absence of any evidence, the Board dismissed the application.

Read the decision at: 759501 Ontario Limited v Corporation of the County of Grey.

Normal Farm Practices Protection Board examines tree clearing as a normal farm practice

Pursuant to Section 6 of the Farming and Food Protection Act (the "Act") in Ontario, municipal by-laws do not to apply to restrict a normal farm practice carried on as part of an agricultural operation.  Farmers or other persons wanting to engage in a normal farm practice (that is part of an agricultural operation) can apply to the Normal Farm Practices Protection Board (the "Board") for a determination as to whether a specific practice is a "normal farm practice" for the purposes of Section 6.  If the Board makes a determination that a specific practice is a "normal farm practice", then the municipal by-law in question, by operation of the Act, would not restrict the practice.

Recently the Board heard an application by landowners in the County of Norfolk who contended that the removal of trees from an irregularly shaped bush to "straighten up a field" was a normal farm practice.  On that basis, the landowners argued that the County of Norfolk's Forest Conservation By-Law did not apply to restrict the removal of trees for that purpose.

The County disagreed.  The County had already issued a stop work order to the landowners previously when a portion of the bush on their property was removed in 2013.  It advised the landowners at that time that, in the future, an application for a permit would be required for any future removal.  Late in 2015, a complaint was received about further removal of trees and a second stop work order was issued to the landowners.  The landowners appealed that stop work order to the By-law Appeals Committee for the County, but were unsuccessful.

The Board determined that, in this case, the tree clearing activities proposed by the landowners did not constitute a "normal farm practice".  The landowners did not call expert evidence on the question of whether tree removal to straighten a field is a normal farm practice.  They did not call evidence from any other agricultural operators to demonstrate that similar tree removal had been done under similar circumstances.  Absent evidence to support the notion that the tree removal was a "normal farm practice", the Board found that the landowners failed to prove on a balance of probabilities that it was a "normal farm practice".

Also, the Board went on to find that, in any event, the landowners' tree removal would not have been a "normal farm practice" because they had cleared more trees than "would be reasonably expected to be necessary to straighten a field line and, in fact, it amounts to an attempt to clear cut a portion of the bush."  And further, the Board noted as an aside (obiter dicta) that the County's tree by-law does not actually restrict a "normal farm practice" to the extent that straightening a field is a normal farm practice.  The Board referred to the fact that the by-law provides for a permit process and that the requirement of a permit, the application fee and any condition of reforestation or payment in lieu "are reasonable and would not be restrictive."

On that point, it is worth noting the following evidence given by the County's By-Law officer at the Board hearing:

Mr. [B]’s evidence was that Mr. and Mrs. [M] would have required a permit under Section 4 of the by-law in order to authorize the tree removal that they had done and wished to continue, that approximately 80% of exemption permits are supplied with respect to agricultural operations and that he has not seen any denied when they went to Council.

The present application fee for a permit for a Council Exemption is $255.00.  The permit may come with conditions requiring reforestation or a fee payable to the Municipality in lieu of reforestation in the approximate amount of $1,900.00 per acre.  These monies are placed in a separate fund and are used for reforestation elsewhere in the County. [emphasis added]

Landowners who intend to remove trees from woodlot and woodland areas need to be aware of any applicable municipal tree by-laws or other regulations.  While compliance with by-law or regulatory requirements may seem a nuisance to farmers and landowners who have no intention of clear-cutting bush and only want to "straighten up a field", the price of obtaining necessary permits is often much less expensive than the consequences of non-compliance.  Although the Board's decision does not indicate that any prosecution was launched against the landowners, failure to comply with tree by-laws may result in the laying of charges and, in the case of a conviction, in greater restrictions on future tree removal than would have been applicable in the first place.

Read the decision at: Meijaard v Corporation of Norfolk County.

BC Horse Farm case sent back to Farm Industry Review Board - original decision was unreasonable

In 2009, PH constructed a new barn on her farm property in Kelowna, BC to accommodate an equestrian business.  Her neighbours to the south brought a claim before the Farm Industry Review Board claiming that they were suffering from the effects of noise, lights, flies and odour from the farm.  In March, 2013, the Board found that a section of the horse farm and equestrian centre was not a normal farm practice - turning out horses within 15 metres of the southerly property line was deemed not a normal farm practice based on the City of Kelowna's zoning by-law and the Ministry of Agriculture's Farm Practice Review Guide.

 

The Board dismissed the noise and light complaints and determined that the farm's manure management practices were normal farm practice.  However, the Board accepted the complaint concerning the location of "livestock area B", which was not set back from the southerly property line.  The Board ordered that the area be shifted at least 15 metres from the boundary.

 

PH appealed and, on judicial review, the BC Supreme Court found that the Board's decision was unreasonable; the matter was remitted to the Board for a re-hearing.

 

The Court found that the Board, on the whole, failed to consider evidence pertaining to similar farm businesses in similar circumstances.  The Board's decision was not justified or transparent and reasonable because of that.  The Court wrote:

Although it is important to conduct an evaluative function that addresses the "good neighbour" principle, etc., the BC legislature chose clear and specific features of normal farm practices, including "accepted", "established", and "followed" practices.  This language is a clear and specific direction from the legislature that instructs the [Board] that it can supplement but not substitute certain evidence - e.g. provincial guidelines or the "good neighbour" principle - in place of evidence that demonstrates "proper and accepted customs and standards as established and followed by similar farm businesses under similar circumstances".  Indeed, the [normal farm practices legislation] circumscribes the evidence the [Board] must consider in making its final determination of normal farm practice.

and,

The legislature was clear when it defined the normal farm practice as a practice consistent with "proper and accepted customs and standards as established and followed by similar farm businesses under similar circumstances"; the [Board] was required to determine whether practices and by laws comport with those established practices.

Read the decision at: Holt v. Farm Industry Review Board.

NS Supreme Court throws out spray drift case after Farm Practices Board rules farm practice was normal

The Supreme Court of Nova Scotia has dismissed a spray drift claim brought by landowners against a neighbouring farmer and his farm business.  The plaintiffs are organic farmers and alleged that, in 2007, the defendant farmer sprayed his lands with a herbicide that drifted onto their property causing various damage: significant health issues, crop damage, and miscarriages by four horses as a result of exposure to "overspray". 

In response to the claim, which was founded in negligence, the defendants relied on the provisions of the Farm Practices Act.  They stated that their farming activities were carried out in accordance with "normal farm practice" so that, under the legislation, they were protected from any civil action in "nuisance, negligence or otherwise, for any odour, noise, dust, vibration, light, smoke or other disturbance resulting from an agricultural operation."  Following a motion by the defendants, the civil action was stayed pending a determination by the Farm Practices Board of whether the activities in question constituted "normal farm practice".

The plaintiffs then made an application to the Board and a hearing took place in June, 2012.  In January, 2013, the Board ruled that the defendants had not acted in a manner inconsistent with "normal farm practice", and dismissed the plaintiffs' complaint.  That Board decision was appealed unsuccessfully by the plaintiffs.

With all of that completed, the plaintiffs returned to the Supreme Court of Nova Scotia to have the stay lifted so that they could proceed with their action for damages.  The defendants also asked for the stay to be lifted, but for the purpose of dismissing the claim.  The Court had to deal with the ruling by the Board that the activities in question, in particular the spraying, were "normal farm practice".  However, the Board decision was not automatically determinative of the civil action - the question for the Court was whether spray drift was "other disturbance" within the meaning of the Farm Practices Act.

If spray drift fell outside "other disturbance", then there would be no protection against a civil claim afforded by the Act.  Justice Murphy concluded on this point: "Absent contrary authority, I remain of the view that the activities the plaintiffs allege occurred, herbicidal overspray or drift and contaminated run-off from ditching, are "other disturbances" resulting from an agricultural operation as contemplated by section 10(1)(a) of the Act."  Therefore, the claims made by the plaintiffs were barred by the normal farm practices legislation and dismissed as such.

Read the decision at: Nauss v. Waalderbos.

NS Farm Practice Board decision on overspray upheld

Justice Scanlan of the Supreme Court of Nova Scotia heard an appeal of a decision of the Farm Practices Board (FPB) involving the following facts:

The matter arose as a result of two instances where [JW] sprayed a field directly across the road from the [N] property with what I understand to have been a herbicide. The Appellants argue this was done at a time when the wind speed and direction caused an overspray to spread onto their property, allegedly damaging raspberry canes and allegedly causing personal injury to both Mrs. [N] and to her horses. In addition, the Appellants complain about the impact of ditch excavation, as carried out by Mr. [W], and as to the placement of bales of hay or straw in the ditch, the escape of organic materials onto their property together with the impact or the potential impact that might have had on their well water. I emphasize repeatedly the word “allegedly.” The Appellants also allege, as I noted, that the herbicide impacted the health of their horses, specifically mares in foal. They say the mares were impacted and perhaps may have aborted as a result of the overspray. They allege, as I understand it, although I'm not reviewing in any great detail the allegations in the statement of claim, that it was not just the existing pregnancies that were impacted but the fertility of the mares on a go forward basis.

The issue that had been before the FPB was whether or not the farmer in this case complied with normal farm practices, in which case the practice would be protected from certain civil actions for damages or injunctive relief.  However, the farm protection legislation does not address "the potential impact of chemical use or misuse, including the impact on neighbouring properties."

In the end, Justice Scanlan determined that the FPB decision was reasonable, but pointed out its limitations - it did not deal with all of the allegations made by the complainants, including allegations about overspray.  Those other allegations would still have to be dealt with, if at all, in the civil action that the complainants had also commenced against the farmer in this case.  That action had been stayed pending the outcome of the FPB proceeding.

Read the decision at: Nauss v. Nova Scotia (Farm Practice Board).

Injunction granted against importation of fill for "farm practices"

A recent decision of the Ontario Superior Court of Justice begins with the following question: "Is it normal farming practice to alter the topography of lands by the depositing of large quantities of fill?".  A couple had purchased a 108-acre property on the Oak Ridges Moraine through a holding company and submitted to the local municipality a fill permit application to deposit 300,000 cubic metres of fill on the property (approximately 30,000 dump truck loads).  The municipality eventually brought a motion for injunctive relief to stop the unauthorized deposit of fill on the property.

According to the owners, the purpose of the fill was for the purposes of enhancing their ability to farm the property.  This was the position they took in response to the municipality's injunction application. Yet, in an affidavit sworn by the wife in support of an earlier application by the owners to quash a municipal by-law, it was stated that, "we were interested in purchasing the property for the purposes of using it as a "fill site" for clean fill".  The Court noted that in none of the owners' materials in the first application was there mention of any intention to use the property for farming.

In November, 2010, the municipality became aware that the owners were depositing more fill onto the property than was permitted by the applicable by-law.  The municipality issued a compliance order, but the deposits of fill continued.  The Court found that the owners did not comply with any of the orders issued by the municipality.  It also ruled that:

Based on the evidence that was placed before this court I am not satisfied that the depositing of the quantity of fill that has been observed, and specifically the intent of the respondents to ultimately deposit upwards of 30,000 truckloads of fill, in any way remotely resembles a normal farming operation.

The owners had argued that their operation was protected by the normal farm practices legislation.

The Court issued a permanent injunction against the owners restraining them from performing any further site alterations on their property and specifically restraining them from depositing any further fill or altering the grade of the property other than as permitted by a building permit, an agreement with the municipality and the site by-law.

Read the decision at: Township of Uxbridge v. Corbar Holdings Inc. et al.

Is clearing of trees a normal farm practice?

The Supreme Court of British Columbia is going to be dealing with the question of whether a farmer can be restrained from clearing trees on his property in spite of normal farm practices legislation.  A B.C. farmer purchased a Nanaimo property in 2006.  In December, 2005, the Regional District of Nanaimo had registered against title to the property a restrictive covenant that prohibits the removal of any vegetation from a 30 metre wide strip along the boundary of the property with an adjacent road.  After the farmer began to clear trees, Nanaimo sued under the restrictive covenant, and also applied for a pre-trial injunction to prohibit any further clearing.

The Supreme Court granted the injunction as requested.  In the course of deciding the injunction application, the Court examined the defences put forward in the action by the farmer.  The main defence appears to be that the farmer has not breached the covenant since it is invalid by reason of non-compliance with the Agricultural Land Commission Act, s. 22(2) and the Farm Practices Protection (Right to Farm) Act, s. 2(1).  The farmer claims that his clearing activities were farm operations.

We will have to wait and see what the Supreme Court makes of this argument and what implications its decision may have on similar situations in the future.

Read the decision at: Regional District of Nanaimo v. Buck.

Court prepared to determine what is "normal farm practice"

Madam Justice Stewart of the Ontario Superior Court of Justice says the Court is prepared, in the case of Rausch v. Pickering (City), to decide whether raising wild boars constitutes a "normal farm practice" for the purpose of the Farming and Food Protection Act, 1998.  In a decision released June 28, she declined to strike out James Rausch's claim that enforcement by the City of Pickering under its Exotic Animal By-law was an abuse of process or malicious prosecution (and that entry onto his property for the purpose of enforcement was a trespass).  Rausch had amended his claim to include a pleading that his raising of wild boars is a "normal farm practice" and is exempt from the By-law (essentially asserting a new claim that the City was negligent in breaching the Farming and Food Protection Act, 1998).

Justice Stewart found that it was not plain and obvious that Rausch's claim was doomed to fail.  Also, she ruled that it was not necessary for the parties to go to the Normal Farm Practices Protection Board to have the issue decided.  The Court could make a determination under the Act for the purposes of the litigation - it would serve no goal of fairness or economy to refer the issue to the Board for preliminary determination, given how intertwined the issue was with the other issues to be determined by the Court.

Read the decision at: James Rausch v. Corporation of the City of Pickering.

B.C. Tribunal rules propane cannons a "normal farm practice" for blueberry grower

The British Columbia Farm Industry Review Board has declined a request to order a Langley, B.C. blueberry operation to cease its use of two propane cannons on the farm.  The cannons are used to manage bird predation.  A neighbour of the operation complained about the continuous firing of the timer-activated cannons, at one time daily between 6:30 a.m. and noon and from 3 p.m. to 8 p.m.  The Board found that the farm used the cannons in accordance with the 2009 "Ministry Guidelines for the use of Audible Bird Scare Devices for South Coastal BC" and, therefore, such use constituted a protected "normal farm practice".

Read the decision at: Mitchell v. Bhullar Farm Produce.

So-called farm land "tax grab" appeal dismissed by Ontario Court of Appeal

Last February, I wrote a post about a Divisional Court decision that overturned a decision of the Normal Farm Practices Review Board involving a former oil refinery site (Normal Farm Practices Board decision overturned by Divisional Court ).  Why would normal farm practices be an issue for a former refinery site?  In the view of the municipality involved, the owners of the development land were attempting to circumvent municipal zoning laws and avoid non-agricultural property tax rates by using the land for agricultural purposes.  The Ministry of the Environment had earlier restricted the use of the .and to industrial or commercial use.  Read Farms, the tenants on the 400-acre parcel of land, were growing cash crops.

Read Farms appealed the Divisional Court ruling to the Court of Appeal, unsuccessfully.  Both the Divisional Court appeal and the appeal before the Court of Appeal determined that the Normal Farm Practices Protection Board did not have the authority in this case to invalidate or overrule the zoning by-law of the Town of Oakville which prohibited the use of the Read Farms land for farming purposes.  As the Court of Appeal wrote:

Therefore, when s. 6(1) [of the Farming Practices Protection Act, R.S.O. 1990, c. F-6] is read in conjunction with the preamble and other provisions of the Act, it is readily apparent that the Board only has jurisdiction to consider the applicability of by-laws to normal farming practices that are carried out on agricultural lands. The Act does not permit circumvention of legitimate municipal planning regarding the land use designations of various lands.

Read the decision at: Oakville (Town) v. Read.

Residential Development on Simcoe County farms allowed to proceed

The Ontario Municipal Board (OMB) has allowed appeals by two landowners in the community of Colgan in Simcoe County that will permit development of farm land for over 600 detached dwellings plus a 170 bed retirement home.  Concern had been expressed by neighbours about increased traffic and the effect the development would have on farming activities on adjacent lands.  The OMB described the issues on the appeals as follows:

• The development of the two subdivisions on agricultural lands is contrary to the policies in the Provincial Policy Statement and local and county Official Plans that protect agricultural lands.
• The development of two subdivisions lack the required community plan because a secondary plan has not been approved for Colgan.
• The amount of development proposed exceeds the limits in the local growth management plan and the county Official Plan.
• The lack of servicing for water and waste water means that the proposed development is premature.
• The land uses abutting the Caldwell residence are incompatible as far as the proposed bungalow townhouses and the Commercial use and should be replaced with detached lots.
• The land use interface between the Manors of Colgan and McMann is inadequately buffered and should be replaced with a road.
• Mr. Milotic’s demand for a common boundary fence should be agreed to by Wayland Farms.

The OMB found in favour of the appellants on all of the issues, more or less.  It noted with respect to concerns about agricultural operations that, "The right to farm legislation protects Mrs. McMann's farm operation and normal farm practices are protected.  Mrs. McMann has weakened her argument for further protection by severing a residential lot from her own property."  The OMB agreed that a common boundary fence may be appropriate in one location, but suggested that it is open to the neighbour to request a fence view under the Line Fences Act and have the dispute settled in that manner.

Read the decision at: Wayland Farms v. Township of Adjala-Tosorontio.

Keep it down! MOE fines for discharge of contaminants including sound

On November 19 last year, GB Scrap Metal Ltd. and George Bois pled guilty to violations of Ontario's Environmental Protection Act for the discharge of contaminants - sound, vibrations and scrap metal. The charges related to an explosion at the scrap yard caused when an employee sheared a compressed gas cylinder that apparently hadn't been entirely emptied.

Read the MOE's press release at: http://www.ene.gov.on.ca/en/news/2010/010502.php

Under the Environmental Protection Act, R.S.O. 1990, c. E-19 ("EPA"), a contaminant means "any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect". Note, however, that certain noise and odour produced from farming activities may be exempt from restrictions under the EPA pursuant to normal farm practices protection legislation.

Normal Farm Practices Board decision overturned by Divisional Court

Read Farms, owned by Wayne Read and Laura Duncan, are tenants on a 400-acre parcel of land in Oakville. The land was formerly an oil refinery site and contaminated, but Read Farms has been growing crops on it since 2001. The lands are zoned industrial and Oakville's zoning by-law prohibits agricultural use of the land. In 2002, Oakville charged Read Farms with violating the by-law. In response, Read Farms went to the Normal Farm Practices Protection Board to seek a stay of the Oakville decision based on the Farming and Food Protection Act, 1998, that provides that no municipal by-law applies to restrict a normal farm practice that is carried on as part of a farming operation. The stay was granted and Oakville appealed the decision to the Divisional Court.

The Ministry of the Environment had earlier restricted use of the property to industrial or commercial, but under no circumstances could the land be used for grazing. Read Farms was cash cropping the land.

After noting the evidence in the case relating to an interesting attempt by the actual owner of the property to avoid property taxes (the decision is worth a read for this story alone), the Divisional Court made the following findings:

• The Board did not provide adequate reasons for its decision, denying natural justice to Oakville;
• The Board has jurisdiction over "farm practices" (the manner in which someone carries out a permitted use of the land); it does not have jurisdiction over the "agricultural operation" (i.e. the right to decide what land use is permitted and what is not); the Board in this case was wrong to expand its authority to overriding the power of the municipality to decide what land uses are permitted on specific lands.

In other words, it is the municipality that is empowered to permit or prohibit categories of land use (zoning). It is the role of the Normal Farm Practices Protection Board to look into the practices undertaken on lands where agricultural operations are permitted and determine whether or not they are "normal" and deserving of protection. The Board cannot exceed that jurisdiction.

Read the Divisional Court decision at: http://www.canlii.org/en/on/onscdc/doc/2010/2010onsc170/2010onsc170.html