In This Section | Annual Report of the Normal Farm Practices Protection Board April 1, 2002 to March 31, 2003
The Normal Farm Practices Protection Board ("the Board") is established by The Farming and Food Production Protection Act to adjudicate issues pertaining to farm practices. Under the Act, the Board consists of a minimum of five members appointed by the Minister of Agriculture and Food. The members are appointed from across the province, with various backgrounds and expertise in agriculture and municipal affairs. Table of Contents
IntroductionThe Normal Farm Practices Protection Board ("the Board") is a tribunal established by The Farming and Food Production Protection Act. The primary function of the Board is to adjudicate issues pertaining to farm practices.
The Act protects farmers from nuisance complaints by neighbours, provided they are following normal farm practices. Nuisance complaints covered by the Act are limited to those arising from odour, dust, flies, light, smoke, noise and vibration. Farmers are also protected from municipal by-laws which restrict their normal farm practices.
"Normal farm practice" is defined in the Act as a practice which:
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 his operation in spite of the nuisance complaint or the restrictive by-law. If the practice is deemed not normal, the Board may order either that it be stopped, or that it is subject to the by-law. When the Board orders modifications, the practice is considered a normal farm practice if the modifications are completed according to the Board’s order.
The Board may also rule that it does not have jurisdiction to hear the complaint. Board Membership
Under the Act, the Board consists of a minimum of five members appointed by the Minister of Agriculture and Food. The members are appointed from across the province, with various backgrounds and expertise in agriculture and municipal affairs. At the beginning of the fiscal year there were ten members on the Board. One member, Mr.Bert Vorstenbosch, completed his maximum allowable term (6 years). Mr. Vorstenbosch, a hog farmer, represented municipalities on the Board. He was replaced as a municipal representative by new member Mr. Bill French, a vice-chair of the Rural Ontario Municipal Association and a dairy farmer in Mitchell, Ontario. Another member, Claude Gravel, resigned because of ill health. The membership terms of Darlene Bowen and Paul Tiessen ended in October 2002, and applications for their reappointments are before the Minister. At the end of the period covered by this report there were seven fully appointed members on the Board, and two members awaiting possible reappointment: The members are:
Awaiting possible reappointment:
Hearings
Several hundred complaints pertaining to farm practices are received each year by the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA). OMAFRA agricultural engineers mediate and resolve the vast majority of these complaints; on average only eight cases reach the Board annually. In 2002-2003 the Board handled ten cases; four of which were continued from the previous year. At the end of the fiscal year, four hearings were completed; four cases were in progress and two were withdrawn by the applicants.
Following are the four cases which were decided: Case: 2001-06 Malloy v. ByfordAddress: Picton,
Prince Edward County Description:A neighbour complained that the farmer had located his cattle feeders too close to the neighbour’s house, and consequently he was affected by the resultant odour and flies. The applicant was represented by legal counsel; the respondent had no legal counsel but was represented by his son. Issues raised in the evidence included the legality of the fence location between the farm and the applicant’s property, and whether piles of garbage on the applicant’s property were contributing to the problem of odour and flies. Decision:The Board ruled that the farmer’s practices were normal farm practices, and dismissed the application. Case: 2001-07 Wanless and Williams v. Horsburgh et alAddress: Harriston, Wellington
County Description:A group of neighbours complained about odour from two swine barns, which they said did not meet minimum distance standards. Most of the neighbours were farmers. In addition to the applicants and respondents, the Town of Minto was granted party status because it had issued the building permits for the barns. All three parties were represented by Counsel. A pre-hearing conference was held on March 20, 2002, and a Motion brought by the applicants was heard on May 27, 2002. Evidence presented at the hearing covered a number of issues relating to minimum distance separation (MDS) measurements, such as the legality of the applicants homes, the capacity and actual occupancy of a pre-existing cattle barn, the grounds on which MDS measurements were based, and the grounds on which the building permits for both barns were based. There were 31 witnesses, including 12 expert witnesses, and 62 documents were submitted as exhibits. Decision:The Board ruled that the barns met minimum distance separation requirements and that the farming operation is normal farm practice. Case: 2001-08 Parker v. DemmersAddress: Port Perry, R.M. of Durham Description:A group of residents complained about excessive noise from a wind turbine generator operated by a farmer. The applicants were represented by legal counsel; the respondent represented himself. The wind turbine, a 10 kW "Bergey" unit, extended 100 feet into the air and was located 200 feet from the boundary of the residential area. In addition to excessive noise, the residents also complained about strobing light from the turbine blades reflecting the morning sun. Decision:During the hearing, with the Board’s permission, the parties negotiated a partial settlement. This settlement was incorporated into the Board’s decision. The Board ruled that the wind turbine must be dismantled, and set a minimum distance separation of 275 metres from residents’ homes for installation of a wind turbine. The residents shared in the cost of the dismantling. Case: 2002-03 Hill v. Municipality of BluewaterAddress: Varna, Huron County Description:A farmer said that the municipality built new facilities near his existing hog operation in 1984 and re-zoned the area, doubling the minimum distance separation (MDS) required. In 2001 the farmer applied for a permit to expand his operation; he said his application was refused on grounds of the doubled MDS. The farmer challenged the municipal decision before the Board. A resident who was a neighbour to both the farm and the municipal facilities was granted party status. All parties were represented by legal counsel. Evidence submitted at the hearing included policies of the surrounding townships regarding the calculation of MDS, and OMAFRA guidelines for MDS calculation Decision:The Board ruled that the farmer had to meet MDS, but not the doubled distance required by the municipality. The decision is being appealed to Divisional Court by the municipality.
A summary of all cases handled by the Board is presented in the Appendix. Annual Board Meeting
The Annual Board Meeting was held on March 20, 2003, at OMAFRA headquarters in Guelph. Joining the members for the meeting were senior OMAFRA Staff Tom Graham, Legal Counsel, George Garland, Engineering Manager, Charles Lalonde, Director, Resources Management, and Jim Wheeler, Assistant Deputy Minister (ADM).
The ADM informed the Board about a concern brought to the Minister about the length of hearings. This was in relation to a particular case which had continued for 15 days over a four-month period. The ADM emphasized that the Minister was in no way interfering with the work of the Board in any specific case; she was only wondering whether anything could be done to discourage very long hearings. In response, without mentioning any details of the case, the Vice-Chair explained that the case in question was complex; the solicitors for the three parties involved were experienced; there was no unnecessary evidence, no wasted time; and there were attempts at mediation. The Board has Rules of Procedure in place and uses tools such as pre-hearing conferences to minimize the length of hearings. Though this particular case took an unusually long time before the Board, it would have taken much longer and been far more expensive if it had been taken to court. The Vice-Chair pointed out that any perceived interference with the hearing process, such as limiting evidence or representation, could result in successful appeals of Board decisions. The Chair said that the Board can remind lawyers of the reason why this Board was established. The Board will continue to discourage duplication, reduce issues and minimize the amount of time required for hearings. The Director and the Engineering Manager explained the potential effects of the Nutrient Management Act (NMA) on the work of the Board. They said that during consultations, the agricultural sector expressed concern about the pace of implementation; therefore the regulations will be phased in over a longer period. During this 5- to 10-year transition period, it is uncertain whether municipal by-laws can supersede the NM regulations. This may generate many cases for the Board. The NMA itself encourages judges to refer cases to the Board.
Amendments to Rules of Practice:
At the Annual Meeting, the Board passed amendments to its Rules of Practice to establish rules for the following:
A motion which would have enabled the Board to award costs was defeated, because it would have exposed farmers to claims for reimbursing legal costs.
A clarification was issued relating to the 30-day period for appeals of Board decisions. When the Reasons for Decision are issued after the Decision, the 30-day appeal period begins from the date of release of the Reasons.
Performance Measurement
Following is a report on Board Performance Measures set in the Business Plan for 2002-2003. These goals were based on the performance management model suggested by the Agency Reform Secretariat of Management Board Secretariat:
Submitted this 15th day of September, 2003.
___________________________ Robert
Stephens
NFPPB Case Summary 2002-2003 - April 1, 2002 – March 31, 2003Case # 2002-06 Read Farms v. Town of OakvilleApplication Date: Jan 13, 2003 Type: By-law Applicant Address: Oakville, R.M. of Halton Issue: A farmer applied for a hearing to determine whether farming operations on a particular property, in opposition to a municipal by-law, constitutes a normal farm practice. Pre-Hearing Conference/Location: March 12,03/Guelph Hearing Date/Duration/Location: Hearing Panel: Status/Resolution: A pre-hearing conference was held on March 12,03 in Guelph, and the Order issued March 18. A Motion concerning jurisdiction is scheduled for July 7, 03. Case 2002-03: Hill v. Municipality of BluewaterApplication Date: June 6, 2002 Type: By-law Applicant Address: By-law Issue: A farmer said that the municipality built facilities near his hog operation in 1984 and re-zoned the site, doubling the minimum distance separation (MDS) required. In 2001 the farmer applied for a permit to expand his operation; he said his application was refused on grounds of the new MDS. The farmer challenged the municipal decision before the Board. Pre-Hearing Conference/Location: Hearing Date/Duration/Location: October 24, 25, 2002/2 days/Varna Hearing Panel: Bob Stephens, Glenn Walker, Linda O'Neill Status/Resolution: In favour of farmer. An interim decision was issued on January 15th; and the Reasons for Decision on April 22, 03. In its decision, the Board ruled that the farmer had to meet MDS, but not the doubled distance required by the municipality. The Decision is being appealed to Divisional Court. Case # 2002-02 |
This site is maintained by the Government of Ontario
Queen's Printer
for Ontario
Last Modified:
