Annual Report of the Normal Farm Practices Protection Board - April 1, 2003 to March 31, 2004

Table of Contents

1. Introduction
2. Board Membership
3. Incidence of Hearings
4. Hearings
5. Internet Access
6. Performance Measurement
7. NFPPB Case Summary 2003-2004

Introduction

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.

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:

1. 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
2. makes use of innovative technology in a manner consistent with proper advanced farm management practices.

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:

1. is a normal farm practice,
2. is not a normal farm practice, or
3. must be modified in a specific manner to make it a normal farm 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.

During the fiscal year there were seven members on the Board:

• Chairperson: Robert Stephens, St. Marys, lawyer
• Vice-Chair: Glenn C. Walker, Ridgetown, lawyer
• Bill French, Mitchell, municipal official, dairy farmer
  
• John Markus, Beachville, dairy and swine farmer
  
• Andrew Millar, Fenelon Falls, beef farmer
  
• Linda O'Neill, Cambridge, former poultry farmer
  
• Ron Versteeg, Cumberland, dairy farmer

Incidence of Hearings

The NFPPB is a last resort for resolution of farm practices complaints. The vast majority of complaints are resolved by OMAF regional agricultural engineers, who receive training in conflict resolution. On average, 675 complaints are resolved each year by the engineering staff, totalling over 4,050 complaints since the FFPPA was enacted in 1998. Only one percent of these cases (41) became applications to the NFPPB. Of these, 23 actually went to hearing during the six-year period. The following table summarizes the number and type of cases which reached the NFPPB since 1998, and their resolution. (For specific details, see the Summary of all Cases in the Appendix.

*Included with another complaint

As illustrated in the table, the expansion of disturbances from three (odour, noise and dust) to seven did not cause a substantial increase in cases. Of a total of 41 cases coming to the NFPPB since the Act was proclaimed, none was due exclusively to any of the added disturbances. However, five cases concerning odour, noise or dust also involved added disturbances.

The inclusion of by-law cases has had a more significant impact. Eighteen of the 41 cases (44%) were about municipal by-laws. Hearings were completed in nine of these; six decisions were in favour of the municipality and three in favour of the farmer. The remaining by-law cases were either withdrawn, settled, went to litigation or were in progress at the end of the period covered by this report.

Hearings

To assist farmers and others appearing before the NFPPB, hearings are held in the municipality where the complaint originates. There is no charge for hearings. Legal counsel is not required, but parties may retain legal counsel if they wish, at their expense. When dealing with complex cases in which parties are not represented, the NFPPB often calls its own expert witnesses to assist with the case.

Approximately 675 complaints pertaining to farm practices are received each year by the Ontario Ministry of Agriculture and Food (OMAF). OMAF agricultural engineers mediate and resolve the vast majority of these complaints; on average only eight cases reach the Board annually. In 2003-2004 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 five cases which were decided:

Case 2002-01: Lyons v. Pan American Nursery Products Inc.

Address: Millgrove, R.M. of Hamilton-Wentworth
Issue: Noise, Light, Vibration
Dates of Hearing: December 3,4, 2003 (2 days)
Location of hearing: Millgrove Community Centre, Millgrove
Panel Members: Robert Stephens, Andy Millar, Ron Versteeg

Description:

A group of neighbours complained about noise, light and vibration from truck traffic serving a greenhouse nursery operation. They were also concerned about danger to their children from the truck traffic.

Decision:

The Board ruled that the truck traffic associated with the greenhouse operation was normal farm practice. The Board ruled that the evidence presented did not support the claim that the area children were at increased risk from the truck traffic.

Case 2003-01: Yake v. Town of Fort Erie

Address: Fort Erie, R.M. of Niagara
Issue: By-law: Tire Fence
Dates of Hearing: July 29, 30, 2003 (2 days)
Location of hearing: Municipal Building, Town of Fort Erie
Panel Members: Glenn Walker, John Markus, Linda O'Neill

Description:

A farmer applied for a Board ruling to allow him to keep his tire fences, which he considers to be normal farm practice. The farm was situated in the Town of Fort Erie. The municipal by-laws prohibited the use of tire fences.

Decision:

Based on the evidence presented regarding the potential for propagating West Nile Virus in tires, and the potential for fires, the Board ruled that the use of tires as tire fences in that location is not a normal farm practice. The farmer's application was therefore dismissed.

Case 2003-02: Van Order v. Nolan

Address: Napanee, Lennox & Addington
Issue: Noise
Dates of Hearing: September 29, 30, 2003
Location of hearing: Municipal Building, Town of Napanee
Panel Members: Robert Stephens, Linda O'Neill, Andy Millar

Description:

A dairy farmer complained about noise from a neighbouring farm. The dairy farmer said that his family was unable to sleep at nights because of a bird banger being used all night at the neighbour's farm. The neighbouring farmer said he needed the banger to protect his tomatoes from deer at night.

Decision:

The Board ruled that it was not a normal farm practice to use a bird banger at night. The farmer was therefore ordered to stop the practice.

Case 2003-04: Sobczak v. Town of Carleton Place

Address: Carleton Place, R.M. of Ottawa-Carleton
Issue: By-law; Open burning on Christmas tree farm
Dates of Hearing: November 20, 2003 (1 day)
Location of hearing: Municipal Building, Carleton Place
Panel Members: Robert Stephens, Andy Millar; Ron Versteeg

Description:

A farmer applied for a Board ruling to allow him to burn infected trees on his Christmas tree farm in order to control pests. He said that the municipal fire control by-laws were preventing him from burning the trees, an activity which he considered to be a normal farm practice

Decision:

The Board ruled that burning of trees within the town was not a normal farm practice.

The farmer's application was dismissed.

Case 2003-06: Carson v. Werner

Address: Niagara-on-the-Lake, R.M. of Niagara
Issue: Dust
Dates of Hearing: March 22, April 7, 2004 (2 days)
Location of hearing: Municipal Building, Town of Niagara-on-the-Lake
Panel Members: Glenn Walker, John Markus, Bill French

Description:

A resident complained that dust from chicken litter blows onto his property from a neighbouring chicken operation and is affecting his family's health.

Decision:

A hearing was held, but before its completion the parties reached an agreement; the case was dismissed on the request of the parties.

A summary of all cases handled by the Board is presented in the Appendix.

Internet Access

Summaries of all NFPPB decisions are available on the NFPPB website, accessible through the OMAF website. Previously the full decisions were on the website; they were removed while Management Board of Cabinet reviews its policy on web posting of public documents containing personal information. All Board decisions are available electronically or in hard copy by contacting the NFPPB office through the following means:

The Secretary
Normal Farm Practice Protection Board
1 Stone Road West, 3^rd Floor
Guelph, Ontario N1G 4Y2
Telephone: 519-826-3549
Fax: 519-826-6611
Email: andrew.jamieson@ontario.ca

Performance Measurement

Following is a report on Board Performance Measures set in the Business Plan for 2003-2004. These goals were based on the performance management model suggested by the Agency Reform Secretariat of Management Board Secretariat:

1. Request for Hearing - Fairness: that all parties be satisfied that they are treated fairly when a request for a hearing is sent to the Board. No fairness complaints were to be received.
   Results: No fairness complaints were received.

2. Request for Hearing - Accessibility: that all parties be satisfied that they have reasonable access to relevant information when a hearing request is sent to the Board. No complaints about accessibility were to be received.
   Results: No complaints about accessibility were received.

3. Request for Hearing - Timeliness: reducing the time between receipt of a complete request for a hearing and a decision on acceptance of the request. This time period should not exceed 20 days.
   Results: The average time taken for the nine new cases handled in 2003-04 was 21 days.

4. Request for Hearing - Courtesy: that all parties be satisfied that they are treated with respect when dealing with the Board with regards to a hearing request.
   Results: No complaints were received about lack of courtesy or respect.

5. Schedule Hearing - Fairness: that all parties be satisfied that they are treated fairly in the scheduling of hearings. No complaints about fairness were to be received.
   Results: No complaints about fairness were received.

6. Hold Hearing - Fairness: that all parties be satisfied that they are treated fairly during hearings. No complaints about fairness were to be received.
   Results: No complaints were received about fairness during hearings.

7. Hold Hearing - Quality and Consistency: that high quality and consistency be maintained in the procedure and conduct of hearings. There were to be no complaints or appeals based on hearing procedure.
   Results: There were no complaints or appeals based on hearing procedure.

8. Hold Hearing - Transparency: that the policies and procedures followed in hearings be clear and understandable to everyone. There were to be no complaints based on lack of understanding of hearing procedure.
   Results: There were no complaints based on lack of understanding of hearing procedure.

9. Hold Hearing - Courtesy: that all parties be satisfied that they are treated with respect during a hearing. There were to be no complaints about lack of courtesy or respect to parties during hearings.
   Results: No complaints about courtesy were received.

10. Render Decision - Fairness: that all parties be satisfied that the Reasons given for the decision are fair. There were to be no complaints about fairness in Decisions.
    Results: No complaints about fairness were received

11. Render Decisions - Timeliness: the period between the date of the hearing and the issue of written Decision with Reasons was set at 60 days.
    Results: Decisions were issued for four hearings, at an average of 101 days. This long delay was due to the considerable period required for circulation of the draft and final versions of the decision between Board panel members. In one case, the decision was held up for 41 days awaiting submissions from counsel for the parties.

12. Render Decisions - Quality and Consistency: That Decisions be understandable, relevant and accurate with no errors in law or fact. There were to be no complaints or successful appeals based on errors in law or fact.
    Results: To date there have been no successful appeals. Two decisions have been appealed to Divisional Court; one has been rejected by the court; the other is in progress.

13. Render Decisions - Expertise: That Decisions be written with skill, knowledge and technical competence. There were to be no complaints about lack of understanding of written Decisions.
    Results: There were no complaints about lack of understanding of written Decisions.

Submitted this 30^th day of July, 2004.

___________________________

Robert Stephens
Chair

NFPPB Case Summary 2003-2004 - April 1, 2003 - March 31, 2004

Case 2003-09: Ruff v. Dejavu

Type: Odour

Applicant Address: Wheatley, Essex County

Issue: A resident complained about odours from composting at a greenhouse operation.

Pre-Hearing Conference/Location:

Hearing Date/Duration/Location:

Hearing Panel:

Status: A hearing is scheduled for June 28 and 29, 2004, in Wheatley. (Note: The hearing was postponed because of a death in the farmer's family.)

Case 2003-08: Tolley v. Parras

Type: Odour

Applicant Address: Williamsburg, Stormont-Dundas-Glengarry

Issue: A resident requested a hearing for a review of the approval of a hog expansion, and access to the approval documents.

Pre-Hearing Conference/Location:

Hearing Date/Duration/Location:

Hearing Panel:

Status: The request for a hearing was denied on the grounds that it is outside the Board's jurisdiction.

Case 2003-07: Mercier v. Haldimand-Norfolk

Type: By-law

Applicant Address: Simcoe, R.M. of Haldimand-Norfolk

Issue: An applicant applied to the Board for a ruling to allow him to operate a farm machinery repair shop, which is prohibited by a municipal by-law.

Pre-Hearing Conference/Location:

Hearing Date/Duration/Location:

Hearing Panel:

Status: The applicant was denied a hearing, on the grounds that his case was outside the jurisdiction of the Board.

Case 2003-06: Carson v. Werner

Type: Dust

Applicant Address: Niagara-on-the-Lake

Issue: A resident complained that dust from chicken litter blows onto his property from a neighbouring chicken operation and is affecting his family's health.

Pre-Hearing Conference/Location:

Hearing Date/Duration/Location: March 22, April 7/(2 days)/Niagara-on-the-Lake

Hearing Panel: Glenn Walker, John Markus, Bill French

Status: A hearing was held, but before its completion the parties reached an agreement; the case was dismissed on the request of the parties.

Case 2003-05: Gibson v. Northumberland Grain

Type: Noise, dust, light

Applicant Address: Brighton, Northumberland County

Issue: A resident complained about noise, dust and light from truck traffic associated with a neighbouring grain and feed operation.

Pre-Hearing Conference/Location:

Hearing Date/Duration/Location:

Hearing Panel:

Status: A pre-hearing conference was scheduled to determine Board jurisdiction, but the applicant moved away from the area and the case was withdrawn.

Case 2003-04: Sobczak v. Town of Carleton Place

Type: By-law

Applicant Address: Carleton Place, R.M. of Ottawa-Carleton

Issue: A farmer applied for a Board ruling to allow him to burn infected trees on his Christmas tree farm in order to control pests. He said that the municipal fire control by-laws were preventing him from burning the trees, an activity which he considered to be a normal farm practice.

Pre-Hearing Conference/Location:

Hearing Date/Duration/Location: November 20, 2003/(1 day)/Carleton Place

Hearing Panel: Bob Stephens, Andy Millar, Ron Versteeg

Status: In favour of municipality; farmer's application dismissed. The Board ruled that burning of trees within the town was not a normal farm practice.

Case 2003-03: Guy v. Black River Matheson

Type: By-law

Applicant Address: Matheson, Cochrane County

Issue: A farmer applied for a Board ruling to allow him to keep his tire fences, which he considers to be normal farm practice. The municipality by-laws prohibited the use of tire fences.

Pre-Hearing Conference/Location:

Hearing Date/Duration/Location: June 4, 2004/(1 day)/Matheson

Hearing Panel: Glenn Walker, Andy Millar, Ron Versteeg

Status: This case was put on hold while a similar case was processed (2003-01:Yake v. Town of Fort Erie). A hearing was held June 4, 2004; decision pending.

Case 2003-02: Van Order v. Nolan

Type: Noise

Applicant Address: Napanee, Lennox & Addington

Issue: A dairy farmer complained about noise from a neighbouring farm. The dairy farmer said that his family was unable to sleep at nights because of a bird banger being used all night at the neighbour's farm. The neighbouring farmer said he needed the banger to protect his tomatoes from deer at night.

Pre-Hearing Conference/Location:

Hearing Date/Duration/Location: September 29, 30, 2003/(2 days)/Napanee

Hearing Panel: Bob Stephens, Andy Millar, Linda O'Neill

Status: In favour of applicant.

Case 2003-01: Yake v. Town of Fort Erie

Type: By-law

Applicant Address: Fort Erie, R.M. of Niagara

Issue: A farmer applied for a Board ruling to allow him to keep his tire fences, which he considers to be normal farm practice. The municipal by-laws prohibited the use of tire fences.

Pre-Hearing Conference/Location:

Hearing Date/Duration/Location: July 29, 30, 2003/(2 days)/Fort Erie

Hearing Panel: Glenn Walker, Linda O'Neill, John Markus

Status: In favour of municipality; farmer's application dismissed.

Case 2002-06: Read Farms v. Town of Oakville

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, 2003/Guelph; Motion Nov 24 & 25, 2003/Guelph

Hearing Date/Duration/Location:

Hearing Panel: Glenn Walker

Status: A pre-hearing conference was held on March 12,03 in Guelph, and the Order issued March 18. A Motion on jurisdiction was heard Nov 24, 25, 2003, Order issued Feb 10, 04. Case now on hold because Town of Oakville has appealed the Motion Order to the courts.

Case 2002-03: Hill v. Municipality of Bluewater

Application Date: June 6, 2002

Type: By-law

Applicant Address: Varna, Huron County

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

Status: In favour of farmer.

An interim decision was issued on January 15^th; 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 2002-01: Lyons v. Pan American Nursery Products Inc.

Application Date: April 10, 2002

Type: Noise, Light, Vibration

Applicant Address: Milllgrove, R.M. of Hamilton-Wentworth

Issue: A neighbour complained about noise, light and vibration from truck traffic serving a greenhouse nursery operation.

Pre-Hearing Conference/Location: July 16, 2002/OMAFRA building, Guelph

Hearing Date/Duration/Location: December 3 & 4 2003/(2 days)/Millgrove

Hearing Panel: Bob Stephens, Andy Millar, Ron Versteeg

Status: In favour of farmer.

Case 2000-01: Gardner et al v. Greenwood Mushroom

Application Date: November 21, 1995

Type: Odour

Applicant Address: Uxbridge, R.M. of Durham

Issue: The applicants complained about odours arising from a mushroom composting operation. The mushroom producer was taken to court and assessed to pay damages to his neighbours. The case was appealed to the Court of Appeal and to the Supreme Court. Following their decisions, the matter was returned to the Normal Farm Practices Protection Board.

Pre-Hearing Conference/Location: March 17, 2003/Guelph

Hearing Date/Duration/Location: June 16-20/(5 days)/Uxbridge

Hearing Panel: Bob Stephens, Glenn Walker, Linda O'Neill

Status: The Board appointed two experts to assess technological advances at the mushroom operation. Following their report, the applicants requested that the hearing proceed. A Motion was heard on March 17. The hearing is scheduled for the week of June 16-20, 2003.