Table of Contents

Executive Summary

This report presents the activities and performance of the Normal Farm Practices Protection Board for the fiscal year April 1, 2009 to March 31, 2010. During this period, the Ministry of Agriculture, Food and Rural Affairs (OMAFRA) received 136 nuisance complaints about farm practices. Ministry agricultural and food engineers and environmental specialists resolved the majority of these complaints. Unresolved cases were brought to the Board for hearings. The Board held hearings in six cases; three were resolved, two by agreement between the parties and one by Board decision; the other three carried on into the fiscal year 2010-2011. The Board also issued a decision on a motion for awarding of costs brought by parties in one case. The annual report also details Board activities regarding assistance to clients, governance and meetings.

The Board successfully achieved performance standards for service and delivery in terms of minimizing the length of time to inform clients whether the Board will hear their applications, and the length of time to issue Board decisions after completion of hearings. There was one complaint about fairness in a Board decision regarding a motion. The Board's Public Complaints Policy was applied and a preliminary response was issued to the complainant within two days, in accordance with the policy's service quality standard. An investigation was held and a response issued to the complainant within 30 days of the initial complaint. The complainant did not pursue the matter further.

The Board does not have a separate operating fund. Board operations are provided by OMAFRA through the operating budget of the Environmental Management Branch (EMB). Consequently there are no separate financial statements. Board expenditures, which totalled $48,409.36 in 2009-2010, are managed by the Chair and the EMB Unit Manager.

Introduction

The Normal Farm Practices Protection Board ("the Board") is established under The Farming and Food Production Protection Act (FFPPA) to rule on issues pertaining to farm practices.

The Act protects farmers from nuisance complaints, provided the farmer is following normal farm practices. Nuisances covered are those arising from odour, dust, flies, light, smoke, noise and vibration. The Act also protects farmers from municipal by-laws which restrict their normal farm practices.

The Act defines "normal farm practice" as a farm practice that:

In responding to a complaint, the Board conducts a hearing to determine whether the farm practice involved is a "normal farm practice". The Board may rule that the practice:

If the Board rules that the farm practice is "normal", the farmer can continue it in spite of the nuisance complaint or the restrictive by-law. If the practice is ruled not normal, the farmer would have to stop it or follow the by-law. The Board may also rule that the practice would be normal if specific modifications are made.

Complaints about Farm Practices

OMAFRA received 136 complaints regarding farm practices in 2009-2010. Considering the last three years, the number of complaints have reduced from 203 in 2007-08. Table 1 shows the distribution of these complaints by nuisance type in each of the past three years. Noise and odour remain the highest sources of complaints. Noise complaints are most often associated with the use of noise-making equipment to protect vines from birds in Niagara vinelands. Odour complaints tend to arise from the spreading of manure or cleaning of livestock barns. While smaller numbers of dust complaints have occurred every year, other types (flies, smoke, light, vibration) are usually mentioned as secondary complaints associated with noise or odour. Over the past three years, however, there has been an increase in complaints about municipal by-laws, from two percent in 2007-08 to seven percent in 2009-2010.

Table 1. Farm Practice Complaints Received by OMAFRA

	Odour		Noise		Dust		Flies		Smoke		Light		Vibration		By-Law		Total
2009- 2010	43		72		6		4		2		0		0		9		136
	32%		53%		4%		3%		1%		0%		0%		7%		100%
2008- 2009	43		111		7		7		2		0		1		5		176
	24%		63%		4%		4%		1%		0%		1%		3%		100%
2007- 2008	103		71		17		5		3		0		0		4		203
	51%		35%		8%		2%		1%		0%		0%		2%		100%

Figure 1. Farm Practices Complaints Received by OMAFRA.

Figure 2. Percentages of NFPPB Complaints - April 2009 to March 2010 (Primary complaints only).

The distribution of complaints shown in Table 1 is illustrated in a bar graph in Figure 1. Figure 2 compares the incidence of the types of complaints in 2009-2010. "Primary" complaints refer to cases where the nuisance mentioned is the only or major cause of the complaint. Many cases include complaints about multiple nuisances. For example, a complaint about noise from tractors working at night may also name light and vibration; a complaint about odour from a manure pile may include flies. When the case involves multiple nuisances, the main nuisance is identified as a Primary Complaint; the others are Secondary Complaints.

Through conflict resolution, OMAFRA agricultural and food engineers and environmental specialists resolve the vast majority of farm practices complaints. In 2009-2010, the Board heard six cases. Board rules establish that complaints must go through OMAFRA's conflict resolution process before coming to a hearing.

Board Activites - Hearings

In 2009-10, the Board held hearings, pre-hearing/settlement conferences, and motion and scheduling teleconferences for six cases, and a Motion for Costs for one of the cases. These cases are presented below:

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Case 2008-03: Dubois v. Burkhardt

Address: Niagara-on-the-Lake, R.M. of Niagara
Issue: Noise
Date of Pre-Hearing Conference: February 27, 2009
Dates of Hearing: March 17-19, 2009; June 15-19, 2009
Location(s) of Hearing: Fonthill; Beamsville
Panel Members: Glenn Walker, Roger Pelissero, Hélène Blanchard

Description:

The applicants claimed that the neighbouring farmer was using his bird bangers to harass the applicants because they would not sell their property to him. They claimed that the farmer installed an excessive number of bird bangers close to the applicants' property, and would operate the bird bangers from May to January, sometimes all night.

Decision:

The Board ordered the farmer to modify his practice, specifying seven requirements to be met.

Start Date: October 22, 2008
End Date: Sept 25, 2009

Appeal:

The farmer appealed the Board's Decision to the Superior Court of Justice; the appeal was denied.

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Case 2008-03: Dubois v. Burkhardt – Motion for Costs

Address: Niagara-on-the-Lake, R.M. of Niagara
Issue: Motion for Costs
Date of Adjournment Teleconference: January 19, 2010
Date of Hearing: January 20, 2010
Location of Hearing: Beamsville
Panel Members: Glenn Walker, Roger Pelissero, Hélène Blanchard

Description:

Following the Decision in the case of Dubois v. Burkhardt, the applicants made a Motion for Costs to be awarded to the applicants against the respondents. The respondents responded with a Motion for Adjournment, Dismissal, and Costs against the applicants.

Decision:

The Board dismissed all Motions and did not award costs.

Start Date: November 9, 2009
End Date: February 25, 2010

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Case 2008-04: Haynes v. Bayview Flowers

Address: Jordan, R.M. of Niagara
Issue: Odour
Date of Pre-Hearing/Settlement Conference: February 18, 2009

Description:

The applicants complained that odour from the neighbouring farmer's anaerobic digester was preventing them from functioning outside their house, and they were concerned about potential negative health effects of the odour.

Status:

At the pre-hearing conference the Board held a Settlement Conference, initiating a second round of conflict resolution, in addition to the conflict resolution process always held before a case is accepted for a Board hearing. This resulted in an agreement between the parties, and the case was withdrawn.

Start Date: October 28, 2008
Withdrawal Date: April 29, 2009

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Case 2008-07: Wright v. Sajnovic

Address: Orillia, Simcoe County
Issue: Odour, Flies, Noise
Date of Pre-Hearing/Settlement Conference: March 22, 2010
Dates of Hearing: July 6,7,8. 2010
Location(s) of Hearing: Midhurst, Township of Springwater
Panel Members: Glenn Walker, Roger Pelissero, Marty Byl

Description:

The applicant complained about odour, flies and noise from two turkey barns on the neighbouring farm. The barns do not meet current minimum distance separation (MDS) requirements because MDS was not required by the municipality when the barns were built. The farmer contends that the structure on the applicant's property, where the applicant claims to be subject to the disturbances of odour, flies and noise, is not recognized by the municipality as a residence.

Status:

Though this case first came to the Board in March 2009, the conflict resolution process had not been applied. The case was not ready for Board processing until January 6, 2010. A Pre-Hearing/Settlement Conference was held on March 22, 2010. A hearing is scheduled for July 6-8, 2010.

Start Date: March 25, 2009
End Date:

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Case 2009-01: Van Dam v. County of Perth

Address: St. Pauls, Perth County
Issue: By-Law
Date of Pre-Hearing/Settlement Conference: June 26, 2009
Dates of Hearing: October 19, 20, 2009
Location of Hearing: Milverton, County of Perth East
Panel Members: Glenn Walker, Marty Byl, Tom Field

Description:

The farmer applied to the Board for a ruling that the municipal tree-cutting by-law was restricting his normal farm practices. He was charged by the municipality for cutting trees in contravention of the by-law. The farmer claimed that the trees he cut were trees which had grown in fields that were previously cropped.

Status:

During the hearing, the parties reached an agreement, and the hearing application was withdrawn on consent of all parties.

Start Date: April 21, 2009
End Date: October 29, 2009

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Case 2009-02: Walker v. Township of Uxbridge

Address: Uxbridge, Township of Uxbridge
Issue: By-Law
Date of Pre-Hearing/Settlement Conference: November 27, 2009
Dates of Hearing: June 14, 2010; August 24, 2010
Location of Hearing: Uxbridge
Panel Members: Glenn Walker, John DeBruyn, Max Kaiser

Description:

The farmer applied to the Board for a ruling that the municipal property by-law was restricting his normal farm practices. He was charged by the municipality for failing to clear material, which the municipality considered to be junk, from his farm property in contravention of the by-law. The farmer claimed that the materials consisted of old inoperable vehicles and other old inoperable equipment which were still of some use to him, and that keeping this material constituted normal farm practice.

Status:

During the hearing, the parties reached a partial agreement, and requested an adjournment from the Board to try to complete their agreement. The Board adjourned the hearing and set an absolute date of August 24, 2010 for resumption if the parties were unsuccessful in reaching an agreement.

Start Date: August 27, 2009
End Date:

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Case 2009-03: Berry v. Sarantakos

Address: Fonthill, R.M. of Niagara
Issue: Odour, Flies
Date of Pre-Hearing/Settlement Conference: January 13, 2010
Dates of Hearing: October 13, 14, 15, 2010
Location(s) of Hearing: (To be announced)
Panel Members: (To be announced)

Description:

The applicant complained of odour and flies from chicken manure piles and from the burning of dead chickens, over a period of several years. According to the applicant, several agreements had been reached over the years, but the farmer did not honour them. At the Pre-Hearing/Settlement Conference, the farmer was represented by a lawyer, the applicant was not. Dates were established for a hearing, but in the Settlement Conference the parties started negotiations which later resulted in an agreement. The agreement later collapsed, and the applicant retained a lawyer.

Status:

The addition of the new lawyer resulted in scheduling difficulties. The Board chaired a Scheduling Teleconference, which established new hearing dates of October 13 to 15, 2010.

Start Date: October 26, 2009
End Date:

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Appeals of Board Decisions

Decisions of the Normal Farm Practices Protection Board may be appealed to the Superior Court of Justice. During the fiscal year 2009-2010, the Court ruled on appeals of three Board decisions. The Courts upheld two decisions and overturned one.

2002-06 Read Farms v. Town of Oakville: A farm tenant had applied to the Board for a ruling that a municipal zoning by-law was restricting his normal farm practice. The by-law was disallowing his farming operation on lands zoned industrial. The municipality had argued that the farming operation was not viable, and was being used solely to lower property tax assessments. The Board had issued a split decision in favour of the farmer. The municipality appealed, and the Court overturned the Board's majority decision, while supporting the minority decision.

2007-05 Sault Farm v. Young Sod Farms Inc.: A cabbage farmer had complained to the Board that dust from the neighbouring sod farm had destroyed his cabbages. The applicant said that the sod farmer had removed windbreaks from their fields, then tilled the soil during an extremely dry and windy summer. He said that the resultant dust and sandstorms had destroyed five acres of his cabbages. The Board had ruled that the practices of the sod farm were normal farm practices and had dismissed the application. The cabbage farmer appealed to the Superior Court. The Court upheld the Board decision.

2008-03: Dubois v. Burkhardt: The applicants claimed that the neighbouring farmer was using bird bangers to harass the applicants because they would not sell their property to him. The applicants claimed that the farmer installed an excessive number of bird bangers close to the applicants' property, and would operate the bird bangers from May to January, sometimes all night. The Board ordered the farmer to modify his practice, specifying seven requirements to be met. The farmer appealed the Board's Decision to the Superior Court of Justice; the appeal was denied.

Board Activities - Assisting Clients

Preparation for Hearings

The Board tries to make it easier for farmers and residents to attend hearings:

• It holds the hearing in the municipality where the complaint originates.
• There is no charge for applying for, or participating in, a hearing.
• Legal counsel is not required, but parties may, if they wish, retain legal counsel at their own expense.

To help parties who do not have legal counsel, the Board developed a Citizen's Guide to the FFPPA and the NFPPB in 2005. The guide explains:

• the purpose of the Act
• the role of the Board
• the concept of "normal farm practice"
• Board procedures
• the hearing process.

OMAFRA has also published two brochures to give residents and farmers a brief overview of the Act and the Board.

In addition to the Citizen's Guide, the Board has also published its Rules of Practice and Procedure. Lawyers refer to this document to help them prepare for Board hearings. The Citizen's Guide, Rules of Practice and other information on the Act and the Board are available online. People can also obtain them from the Agricultural Information Contact Centre at 1-877-424-1300.

All the documents described above were updated during the fiscal year 2009-2010.

Summaries of all NFPPB decisions can be found on the NFPPB website. Full decisions are available electronically or in hard copy by contacting the Agricultural Information Contact Centre at 1-877-424-1300 or ag.info.omafra@ontario.ca.

Board Activities - Governance

The Board took action to satisfy the requirements of Management Board of Cabinet regarding the governance of agencies, boards and commissions. This included requirements of the Accessibility for Ontarians with Disabilities Act (AODA), the Agency Establishment and Accountability Directive (AEAD) and the Travel, Meal and Hospitality Expenses Directive and the Public Complaints Policy.

AODA

The Board has met the requirements for government agencies under the Accessibility for Ontarians with Disabilities Act (AODA). The NFPPB Accessibility Document is presently on the website. The Accessibility Document presents NFPPB policies, practices and procedures for providing service to people with disabilities, in ways that respect their independence and dignity and allows them integration and equal opportunity. The Board completed online reporting of its AODA status to the Accessibility Directorate of Ontario (ADO) according to requirements. All Board members have taken the online training course "Serve-Ability" on serving clients with disabilities.

AEAD

The Agency Establishment and Accountability Directive (AEAD) was issued by Management Board of Cabinet, effective January 26, 2010, governing all agencies, boards and commissions of the provincial government. At the Annual Meeting, Board members were given an information session on the requirements of the AEAD.

The Travel, Meal and Hospitality Expenses Directive

Board members were trained on the requirements of the Travel, Meal and Hospitality Expenses Directive as it applies to their work for the Normal Farm Practices Protection Board. This was done at a teleconference on September 29, 2009.

Rules of Practice and Procedure

The Rules of Practice and Procedure were amended in a teleconference on September 29, 2009. There were three substantive amendments and five housekeeping amendments. The substantive amendments included:

The requirement for court reporters was based on the fact that hearings before the Board have become more complex and lengthy, sometimes with long time lapses between hearing dates. There has also been a trend towards more appeals of Board decisions. The Board pays only for the recording; any party requiring a transcript would pay the court reporter. Pre-hearing conferences were made mandatory because they shortened the length of hearings by clarifying issues and documents in advance of the hearing. The addition of settlement conferences provides a second chance for conflict resolution (initial conflict resolution is required before any case is accepted for hearing). Settlement conferences promote agreements between the parties, reducing the incidence of hearings.

Public Complaints Policy

The Board's Public Complaints Policy was upgraded to meet the requirements of the AODA Customer Service Standards. The Policy is available on the Board website.

Board Activities - Board Meetings

Teleconference

On September 29, 2009, the Board held a teleconference for three reasons:

Annual Meeting

The NFPPB held its Annual Meeting on February 25, 2010 at the Government of Ontario building at 1 Stone Road West in Guelph. All members attended. The meeting reviewed activities of the past year, including a discussion of the cases heard and decisions issued, and Court rulings on appeals of Board decisions.

The meeting also discussed the Accessibility for Ontarians with Disabilities Act (AODA), the Agency Establishment and Accountability Directive (AEAD) and the Travel, Meal and Hospitality Expenses Directive.

The Board did not make any amendments to its Rules of Practice and Procedure.

Operational Performance

Performance Measurement

The NFPPB measures its performance in two specific areas:

Values/Operating Principles

Values of the Normal Farm Practices Protection Board:

Because of the small number (seven this year) and the nature of hearings, the Board does not ask hearing participants to rate its performance on these issues. The Board relies on the incidence of complaints to assess its performance in these areas.

In 2009-2010, the Board received one complaint regarding fairness. At commencement of the hearing, it was apparent that the applicant had not complied with deadlines for presentation of materials as established in the Board's Pre-Hearing Conference Order. On these grounds, the respondent presented a Motion for Adjournment of the hearing for two weeks. The Board adjourned to the next morning, ruling that this would give the respondent sufficient time to review the materials. In addition, the Board downgraded the weight to be given to the applicant's materials because of the failure to observe the deadlines. After the hearing, the applicant lodged a complaint with the Board Secretary that the Board's decision on the Motion was unfair to the respondent. The Board's Public Complaints Policy was applied and an interim response was issued to the complainant within two days, in accordance with the policy's service quality standard. The interim response indicated that an investigation would be held, and a response issued within 45 days.

Since the hearing was chaired by the Chair of the Board, the complaint was assigned to the Vice-Chair for investigation and response. The Vice-Chair was not a member of the Panel for this hearing, but had presided over the Pre-Hearing/Settlement Conference preceding the hearing, and had issued the Order with which the applicant had not complied. The Vice-Chair was provided with a transcript of the relevant proceedings for his investigation. After reviewing the Order and the transcript, the Vice-Chair concluded that the Board's decision on the Motion was not made in bad faith or with bias or unfairness, and that it was an attempt to allow the parties to have their dispute appropriately heard, considered and concluded in a timely, expeditious fashion. The Board's response was issued to the complainant within 30 days of the initial complaint. The complainant did not pursue the matter further.

There were no other complaints regarding any of the values and operating principles listed above.

Intent of the Act

In its Preamble, the FFPPA states:

It is in the provincial interest that in agricultural areas, agricultural uses and normal farm practices be promoted and protected in a way that balances the needs of the agricultural community with provincial health, safety and environmental concerns.

The Board continues to monitor it's effectiveness in supporting these principles. Below is a summary of the disposition of all cases handled by the Board since the Act was amended in 1998, and cases handled in 2009-2010. These results are tabulated in the Appendix:

1998-2010 - 66 cases

2009-10 - 6 cases

Financial Performance

The operation of the Normal Farm Practices Protection Board is funded by the Ontario Ministry of Agriculture, Food and Rural Affairs. Separate financial statements are not available since the Board does not have a separate funding allocation. Board expenditures are covered by the Innovation, Engineering and Program Delivery Unit, Environmental Management Branch of the ministry. The ministry provides staff, office facilities and supplies, and covers Board operating expenses.

Total operating expenditures for the 2009-2010 fiscal year was $48,409.36. This was lower than the budget estimate of $85,600 stated in the Annual Business Plan for 2009-2012. The difference is due to savings in hearing costs achieved through the pre-hearing/settlement process introduced in 2009-2010, to fewer cases than estimated, and to the substitution of online training for Board members in place of classroom settings.

Expenditure details are as follows:

Table 2. NFPPB Expenditures 2009 - 2010

	Budget	Expenditure
Board Member Per Diems	$54,700	$31,154.00
Travel Expenses	$21,000	$10,387.71
Training	$1,000	$0
Translation Services (Decision Summaries)	$100	$2,512.07
Publication ("Citizen's Guide")	$3,000	$656.64
Court Reporters	$5,300	$2,443.40
Miscellaneous	$500	$1,255.54
Total	$85,600.00	$48,409.36

Board Appointees

Under the Act, the Board consists of at least five members appointed by the Minister of Agriculture, Food and Rural Affairs. The members are appointed from across the province, with various backgrounds and expertise in agriculture and municipal affairs.

During the 2009-2010 fiscal year there were ten members on the Board. One member, Gordon Garlough, completed his term of appointment in October 2009. Following is the membership list as of March 31, 2010:

Board Members 2009-2010

Name	Address	Occupation	Original Appointment	Appointment Expiry Date
Glenn C. Walker, Chair	Ridgetown	lawyer	Nov 14, 2001	Jan 7, 2013
Anthony Little, Vice-Chair	London	lawyer	Apr 6, 2005	Apr 14, 2013
Dwayne Acres	Osgoode	cash crop and livestock farmer	June 3, 2005	July 16, 2013
Hélène Blanchard	Embrun	dairy farmer	June 3, 2005	July 16, 2013
John DeBruyn	Salford	swine farmer	Nov 10, 2005	Nov 13, 2013
Tom Field	Glencoe	dairy, beef, sheep, cash crop farmer	Feb 27, 2009	Feb 26, 2011
*Gordon Garlough	Williamsburg	cash crop and beef farmer	Oct 28, 2004	Oct 27, 2009
Marty Byl	Niagara-on-the-Lake	grape grower	July 17, 2007	July 16, 2011
Roger Pelissero	St Anns	poultry farmer	July 17, 2007	July 16, 2011
P. Maxwell Kaiser	Napanee	poultry farmer	July 17, 2007	July 16, 2011

*Gordon Garlough's term ended on October 27, 2009.

Acknowledgement

On behalf of the members of the Normal Farm Practices Protection Board, I wish to thank the Minister of Agriculture, Food and Rural Affairs for the services provided to the Board, and for facilitating the smooth and effective operation of the Board.

Submitted this 29th day of June, 2010.

Glenn C. Walker, NFPPB Chair

Normal Farm Practices Protection Board

Appendix

Table 3 shows the disposition of all cases brought to the Board (after conflict resolution by the Agricultural and Food Engineers and Environmental Specialists) since the Act was amended in 1998.

Table 3 Key: