Normal Farm Practices Protection Board (NFPPB) Business Plan 2016-2019
April 1, 2016 - March 31, 2019
Table of Contents
The Normal Farm Practices Protection Board (the NFPPB or the Board) is established under the Farming and Food Production Protection Act, 1998 (the Act) to hear and rule on issues pertaining to farm practices. The Act provides that farmers are not liable in nuisance for a disturbance resulting from an agricultural operation that is carried on as a normal farm practice. Nuisances covered are those arising from odour, dust, flies, light, smoke, noise and vibration. The Act also provides that no municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.
In accordance with the Preamble of the Act, the Board seeks to balance the needs of the agricultural community with provincial health, safety and environmental concerns. Under the Act, the Board holds hearings on nuisance complaints about farm practices, applications seeking non-application of municipal by-laws, and referrals from judges. In all these cases, the Board rules on whether the farm practices at issue are "normal farm practices."
By protecting normal farm practices, the Board helps to preserve the competitiveness of Ontario farmers in the face of increasing external pressures.
Board hearings are less formal than court proceedings, but follow the rules of natural justice. Hearings are managed in such a way that any complainant or respondent may present their case with or without representation by legal counsel. This promotes access to the services of the Board for all citizens.
Board proceedings are subject to the Farming and Food Production Protection Act, 1998 ("the Act") and the Statutory Powers Procedure Act (SPPA).
The Board is governed by the Agency Appointments Directive (AAD), the Travel, Meal and Hospitality Expenses Directive, and other applicable Directives from Management Board of Cabinet and Treasury Board. Board members are made aware of the AAD and its requirements. All accountability and governance documents required for the Board have been published on the Board's web page in accordance with the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (ATAGAA). Reimbursements of Board members' expenses were all within the guidelines of the Travel, Meal and Hospitality Expenses Directive.
Key Achievements for 2015-2016
The Normal Farm Practices Protection Board (NFPPB) and the Ministry of Agriculture, Food and Rural Affairs (OMAFRA) established the Farm Practices Conflict Resolution Process in 2004. Its purpose is to help resolve conflicts about farm practices and reduce the need for Board hearings. The conflicts arise from nuisance complaints about odour, noise, dust, flies, light, smoke or vibration. The Process is also used for conflicts between farm practices and municipal by-laws. During the fiscal year, OMAFRA received 107 nuisance and municipal by-law complaints about farm practices. The conflict resolution process, conducted by OMAFRA agricultural engineers and environmental specialists, resolved 95 of these complaints (89 percent). The remaining 11 percent (12 complaints) proceeded to the Board to be considered for hearings. The Board also conducts settlement conferences to promote a resolution for the cases which it receives, in order to reduce the need for a hearing.
In addition to the new cases, the Board worked on two cases from previous years, bringing its total case load to fourteen. All fourteen cases met the Board's service standards in 2015-2016.
Commitments and Strategies for 2016-2019
The Board will be delivering on the following key commitments/strategies in 2016-2019:
Total operating expenditures for the 2015-2016 fiscal year were $115,279. This amounted to 72% percent over the budgeted amount of $67,000, for reasons explained in the section on Financial Performance. Also in that section, the Board presents its budget for the next three years: $125,000 in 2016-2017, $80,000 in 2017-2018 and $60,000 in 2017-2018. We expect hearing expenses to increase significantly in 2016-17 because of the high volume of cases currently before the Board. As time progresses, the estimates can be adjusted with greater accuracy.
Mandate and Mission Statement
The Act protects farmers from nuisance complaints, provided the farmers are following normal farm practices. The Preamble to the Act states: "It is desirable to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fibre and other agricultural or horticultural products. Agricultural activities may include intensive operations that may cause discomfort and inconveniences to those on adjacent lands. Because of the pressures exerted on the agricultural community, it is increasingly difficult for agricultural owners and operators to effectively produce food, fibre and other agricultural or horticultural products. 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."
Nuisances covered are those arising from odour, dust, flies, light, smoke, noise and vibration. The Act also protects farmers from municipal by-laws that restrict normal farm practices if carried on as part of an agricultural operation.
The Act defines "normal farm practice" as a practice that:
In responding to a complaint, the Board conducts a hearing to determine whether the farm practice involved is a "normal farm practice." After a hearing, the Board shall,
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 cease from the practice or adhere to the by-law. The Board may also rule that the practice would be normal if specified modifications are made.
The Act is subject to the Environmental Protection Act, the Pesticides Act, the Health Protection and Promotion Act, and the Ontario Water Resources Act.
Hearing Application Process: Before the Board hears a dispute, OMAFRA's Conflict Resolution Process must first be applied. This is a requirement of the Board's Rules of Practice and Procedure. Conflict resolution is done by the regional OMAFRA engineers and environmental specialists, as appropriate. If the case is not resolved, the engineer or specialist refers it to the Board. The Chair then decides whether the Board has the jurisdiction to hear the matter and thus whether to hold a hearing.
Pre-Hearing/Settlement Conferences and Motions: Prior to a hearing, the Board holds a pre-hearing conference to clarify issues, identify all parties and settle procedural matters. This simplifies and shortens the hearing. After the pre-hearing conference, the Board may conduct a settlement conference to try to resolve the issues by mediation. This settlement conference is in addition to OMAFRA's Conflict Resolution Process conducted by the engineers or specialists before the case is brought to the Board. While OMAFRA's Conflict Resolution Process is successful in most cases, experience has shown that some parties become more inclined to settle their issues if faced with the prospect of a formal hearing. Thus, the settlement conference often leads to agreement between the parties. When this occurs, the applicant withdraws the hearing application. The Board does not become a party to the agreement.
Parties may also submit motions on matters such as Board jurisdiction or exchange of documents between parties.
Board Jurisdiction: The Board is authorized by the Act to rule on two types of cases: nuisance and by-law.
Hearings: A panel of at least three Board members (who, practically-speaking, usually have farming or municipal experience), including the Chair or Vice-Chair, hear disputes. To minimize costs for the parties, the Board usually holds the hearing in the community where the dispute arose. The hearing process follows the requirements of the SPPA. While all parties have the right to be represented by legal counsel, parties may participate without legal counsel if they so choose. The Board has issued a "Citizen's Guide to the Normal Farm Practices Protection Board" (the Citizen's Guide) which explains hearing procedures in detail. In addition, three pamphlets summarize the most important aspects of hearings in an easy-to-read format. The Citizen's Guide and the pamphlets are provided for informational purposes only. (To access the pamphlets or the Citizen's Guide, please refer to the Communication Plan on page 13).
Post-Hearing Process: The Board is required to issue written decisions according to a schedule presented under section "Speed of Decision" on page 11. The decision usually includes the identity of all witnesses and a summary of their testimony, the positions of the parties, the reasons for the Board's decision and the decision itself. All hearings are recorded by court reporters, but the Board does not provide transcripts of the proceedings. Parties requiring transcripts may purchase them directly from the court reporter. When a party chooses to purchase a transcript they are required to provide a copy of the transcript to the Board and the other party as per rule 39(5) of the Rules of Practice and Procedure of the Normal Farm Practices Protection Board.
A party may appeal the Board's decision to the Divisional Court of the Superior Court of Justice within 30 days of the issuance of the decision.
1. Increasing complexity of hearing applications, requiring legal advice on acceptance or rejection:
In recent years, some hearings have become more complex due to an increase in Motions regarding independent site visits, jurisdiction and parties seeking third party status. This tendency for greater complexity has spread to hearing applications. In the past two years, the Board dealt with four applications that contained complex issues of jurisdiction and three applications featuring members of the public seeking third party status.
Risks and Cost Implications: Before deciding to hear a case, the Chair reviews the application. The complexity of the application can increase the time required for this review from 15 minutes to several hours, potentially increasing the cost of each occurrence by thousands of dollars. Such complexity can also introduce a need for legal counsel, with associated costs. The increased complexity also tends to result in longer hearings. We anticipate more such occurrences in the coming years; estimate, three per year.
Operations: Since a complex application may require further review, additional staff time would be required. The amount of time would depend on the complexity of the application.
2. Increased Volume of applications for both nuisance complaints and by-law issues:
The Board is experiencing the highest volume of cases in it's 30 year history. There has been a total of 14 active cases this fiscal year. Twelve new cases were accepted this fiscal year and two active cases were carried forward from previous years.
Risks: Increased time requirements for the Secretary, Board and staff to manage the volume. Hearing delays for cases due to availability of the Board and Secretary.
Cost Implications: The additional hearings could increase operational costs of the Board.
Operations: Staff resources may need to be increased to handle the additional work of new cases annually.
3. Board ability to provide a timely Hearing:
The Act prescribes that the Board can only have one chair and one vice-chair as part of its membership. The Act also prescribes that a quorum for a Hearing must comprise of Chair or Vice-Chair and two other members. The Chair and Vice Chair are part time appointed positions. These individuals devote a significant amount of time for this public service.
Risks: This operational constraint, along with an increase in case load, will make it difficult to proceed with timely and efficient hearings.
Operations: No additional cost expected because it is tied to case load (volume of applications).
4. Site Alteration: By-Law:
The movement of excess soil from developed land to farm land has become a contentious issue, particularly, in the municipalities surrounding the Greater Toronto Area (GTA). The public's concerns range from nuisance (i.e. noise, dust) to ground water contamination. Municipalities are reacting to local concerns by enacting or revising their own site alteration by-laws. The approach has not been consistent across a number of municipalities in Ontario. For example, some municipalities have instituted an approval process that requires a technical review and others have outright banned the practice completely. Lastly, the Ministry of Environment and Climate Change (MOECC) is developing a policy framework to manage movement of excess soil in Ontario.
Risks: The Board is currently hearing a number of cases involving farmers who are challenging their local site alteration by-law. The decisions in these cases may be incorrectly interpreted as definitive rulings on whether or not the movement of excess soil to farm land is considered a normal farm practice in all instances.
Outcomes: In Cox v. Town of Mono (Board #2014-05), counsel for the Respondent sought a ruling from the Board that would definitively state that receiving large amounts of fill on farmland is not a normal farm practice. In its decision, the Board reiterated cases before the Board are site specific and the Board is not in the position to make statements on whether a practice is normal or not normal across the province.
5. Tree Cutting By-Law:
Municipalities have the authority under section 135 of the Municipal Act to pass by-laws for the purposes of regulating the destruction or injuring of trees. Some recent municipal by-laws provide exemptions for normal farm practices, but as decided by the the Board. Since 2013, the Board has received 5 applications regarding tree-cutting by-laws. To date, the Board has only rendered one decision, and is still actively managing the remaining four cases.
Risks: The most recent increase in applications (3 in the last year) has raised concerns this will be a trend that will result in an increased work load for the Board.
Operations: A new communications project is in early development by OMAFRA staff to raise farmer awareness of municipal by-laws for tree cutting.
The Board has developed the following three key strategic directions to help fulfill its mandate in its operating environment:
OMAFRA provides the resources that the Board needs, through the Environmental Management Branch. These resources include:
Details are provided in the sections on Human Resources (below) and Financial Budget Ipage 8).
Risk assessment and management is reviewed every quarter from the perspectives of both the Board and the Ministry. In Q2 of the 2015-16 fiscal year, the Board identified a high level risk because its membership dropped below a critical number of 8 members. The reduction in Board members put a number of cases at risk of being cancelled due to the availability of the current board membership. The Board, concurrently, sought the appointment of four new members. On October 26th, 2015, the Minister appointed two new members, who were immediately trained and assigned to two cases held in November and December 2015. The Q4 risk assessment did not identify any high level or medium level risks; all risks were assessed as low level from both Board and Ministry perspectives.
OMAFRA provides the following staff resources on full-time equivalent basis (FTE) to enable the Board to perform its duties. The following constitute staff assignments on an FTE basis:
The cost of these resources are reported in OMAFRA's planning and financial documents.
Two new board members were appointed through the recruitment process meeting the requirements of ATAGAA and the AAD. Jane Sadler Richards and Robert Brander joined the Board on October 26, 2015.
Andrew Jamieson was was appointed Board Secretary July 6, 2015. The new Seretary is a past Secretary and brings valuable experience to this position.
The new Vice-Chair Glenn Walker was appointed May 11, 2015. The Vice-Chair was previously a member of the Board in 2012 and brings valuable knowledge and experience to this role.
New appointments will continue throughout the next fiscal year to replace Board members completing their term and to ensure a healthy number of members are available to provide service in a timely and effective manner.
Legal services to the Board are provided by the Ministry of the Attorney General (MAG) through the Legal Services Branch of OMAFRA. The cost of these services is reported in MAG's planning and financial documents.
On April 1st, 2016, the Ministry services dedicated to administrative support and budget of the Normal Farm Practices Protection Board has been delegated to the Agricultural, Food and Rural Affairs Tribunal (AFRAAT) Support Services Unit . A process is in place to transition the current Secretary role to these staff. These changes to admistrative support to the Board are not expected to affect Board operations or its service to the public.
Staff in the Innovation, Engineering and Program Delivery (IEPD) Unit of OMAFRA's Environmental Management Branch will continue to provide services "at arms length", as part of the conflict resolution process for minimizing the number of cases going to the board. Pre-hearing and Settlement conferences will generally be held in cases that come to the Board, to further reduce the number of hearings. In every case, Board policies will be applied according to the Board's Rules of Practice and Procedure, the hearing application process, the Risk Management Plan, the Travel, Meal and Hospitality Expenses Directive, the Accessibility for Ontarians with Disabilities Act (AODA), the French Language Services Act and all other applicable directives and guidelines.
The Board is funded by the ministry under a Memorandum of Understanding (MOU) signed by the Minister of Agriculture, Food and Rural Affairs and the Chair of the Board. The MOU sets out the relationship between the Board and the ministry, to enable the Board to operate "at arm's length" from the ministry. The "arm's length" relationship is vital to ensure that neither the ministry nor the Minister has any influence on the decisions of the Board regarding cases that come before it.
The Board does not have a separate funding allocation, though a specific cost centre was assigned in October 2011. Board expenditures have been covered by the Innovation, Engineering and Program Delivery (IEPD) Unit of OMAFRA's Environmental Management Branch. The ministry provides staff, office facilities and supplies, and covers Board operating expenses. Board expenditures are the responsibility of the Chair and are covered in this Business Plan. The cost of staff, office facilities and supplies are covered in OMAFRA's Business Plan. As of April 1, 2016, the cost centre will be transferred to the Business Services Branch.
Total operating expenditure for the 2015-2016 fiscal year was $115,279 (compared to $59,607 in 2014-15) (refer to Table 1). The expenditure exceeded the budget of $67,000 by 72 percent. This variation reflects the challenges of accurately predicting the incidence of the different types of hearings the Board may have to conduct (pre-hearings, motion hearings, full hearings), and the degree of complexity of the cases.
Table 1: NFPPB Financial Report 2014-2015
The Board presents its budget for the next three years in Table 2, below: $117,000 in 2016-2017, $80,000 in 2016-2017 and $60,000 in 2017-2018. We expect hearing expenses to increase significantly in 2016-17 because of the volume of cases currently before the Board. We anticipate that the increased volume is an abnormality given the number of recent by-law cases, and the amount of cases before the board will return to previous levels, hence the subsequent budget years are reduced.
Table 2: NFPPB Budget 2016-2019
The NFPPB measures the performance of its programs in four areas:
Following are the results of the Board's performance measures:
*No complaints were received by the Board regarding quality of service in 2015-2016.
Board documents are accessible to the public, as required by the Adjudicative Tribunals Accessibility, Governance and Appointments Act (ATAGAA), in formats as addressed in the Board's Accessibility Document under the Accessibility for Ontarians with Disabilities Act (AODA).
The following Board documents are accessible through the website:
Copies of full Board decisions are available electronically and in print from the Agricultural Information Contact Centre and from Board offices at 519-826-4049. They are also available online from CanLII.
Media requests made to the Board are handled by OMAFRA's Communications Branch.
All questions or queries regarding any matter pertaining to the Board may be directed to:
Kirk W. Walstedt, Chair
For more information:
Toll Free: 1-877-424-1300