Citizen's Guide to the Normal Farm Practices Protection Board
Please Note: This Citizen's Guide is not intended to be a substitute
for legal advice and representation. The Ontario Ministry of Agriculture,
Food and Rural Affairs accepts no responsibility or liability for the
outcome of any hearing in which any party relies on this guide.
Table of Contents
-
Introduction
- Handling Conflicts
- The Hearing Application
- Before the Hearing
- Hearing
- Agreements Reached During the Hearing
- After the Hearing
- Conclusion
- Appendices
1. Introduction
1.a. Purpose
This guide assists farmers, rural residents living close to farms, and
other citizens in understanding the Farming and Food Production Protection
Act (FFPPA), the functions of the Normal Farm Practices Protection Board
(NFPPB), and the concept of "normal farm practice." It explains
how the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA)
and the NFPPB handle complaints about farm practices.
Please Note: This guide is not intended to be a substitute
for legal advice and representation. The Ontario Ministry of Agriculture,
Food and Rural Affairs accepts no responsibility or liability for the
outcome of any hearing in which any party relies on this guide.
1.b. The Farming and Food Production Protection Act (FFPPA)
Legislation to protect farmers from unreasonable nuisance complaints
has been in effect since December 15, 1988, when the Food Production Protection
Act (FPPA) came into force. The FPPA protected farmers from nuisance complaints
arising from odour, noise and dust. This protection proved inadequate,
however, as land development pressures increased in agricultural areas.
The Farming and Food Production Protection Act, 1998 (FFPPA) replaced
the FPPA. The act protects and encourages the development and improvement
of agricultural lands for the production of food, fibre, and other agricultural
and horticultural products. According to the preamble of the legislation,
the legislature was concerned that it was becoming increasingly difficult
for farmers to effectively produce these commodities because of discomfort
and inconveniences caused by farming operations to residents of adjacent
lands. The act was established to promote and protect agricultural uses
and normal farm practices in agricultural areas in a way that balances
the needs of the agricultural community with provincial health, safety
and environmental concerns.
There are two main themes in the FFPPA: protection of farming operations
from nuisance complaints and protection from restrictive municipal bylaws.
- Nuisance complaints: There are seven types of disturbances: odour,
noise, dust, flies, smoke, light and vibration. The act protects agricultural
operations (see guide section 1.d.) from nuisance complaints arising
from any of these disturbances, provided the disturbance is caused by
a normal farm practice (guide section 1.e).
- Municipal bylaws: Under the act, if a farmer is concerned that a municipal
bylaw is restricting a normal farm practice that is carried on as part
of an agricultural operation, the farmer may apply to the NFPPB for
an order that the bylaw would not apply at that location.
The act does not give farmers the right to pollute the natural environment
or to contravene the Environmental Protection Act, the Pesticides Act,
the Health Protection and Promotion Act, or the Ontario Water Resources
Act.
1.c. Normal Farm Practices Protection Board (NFPPB)
The Normal Farm Practices Protection Board (NFPPB) was established by
the FFPPA to resolve disputes regarding agricultural operations and to
determine what constitutes a normal farm practice. In performing that
function, the board seeks to achieve the stated goal of the legislature
in balancing the needs of the agricultural community with provincial health,
safety and environmental concerns (FFPPA Preamble).
Figure 1. More and more people are deciding to live in rural areas.
The NFPPB consists of at least five members appointed by the minister.
The minister also appoints the chair and vice-chair. NFPPB members serve
for three years but can be re-appointed to a maximum of six years. Members
include farmers from across the province engaged in many types of farming.
The chair and vice-chair are usually lawyers whose practices include agricultural
issues. Hearings are conducted by panels of three members, headed by the
chair or vice-chair.
The board tries to hold its hearings in the counties or regions where
the cases originate. To avoid conflict of interest, panel members for
a particular hearing are always selected from geographic areas away from
the area where the case arose.
Decisions by the NFPPB must be consistent with any directives, guidelines
or policy statements issued by the Minister of Agriculture, Food and Rural
Affairs in relation to agricultural operations or normal farm practices.
The NFPPB has been set up in such a way as to allow farmers and their
neighbours to represent themselves at hearings. This guide describes in
detail how hearings are structured and explains hearing procedures to
aid individuals who plan to participate in a hearing. People appearing
before the board are fully entitled to retain legal counsel to represent
them, if they so choose.
1.d. Agricultural Operation
The FFPPA defines an agricultural operation as an agricultural, aquacultural,
horticultural or silvicultural operation carried on in the expectation
of gain or reward, including the following:
- Draining, irrigating or cultivating land
- Growing, producing or raising:
- Livestock, including poultry and ratites
- Fur-bearing animals
- Bees
- Cultured fish
- Deer and elk
- Game animals and birds
- Any additional animals, birds or fish prescribed by the minister
- The production of agricultural crops, greenhouse crops, maple syrup,
mushrooms, nursery stock, tobacco, tree and turf grass, and any additional
agricultural crops prescribed by the minister
- The production of eggs, cream and milk
- The operation of agricultural machinery and equipment
- The application of fertilizers, soil conditioners and pesticides
- Ground and aerial spraying
- The storage, handling or use of organic wastes for farm purposes
- The processing by a farmer of the products produced primarily from
the farmer's agricultural operation
- Activities that are a necessary but ancillary part of an agricultural
operation such as the movement of transport vehicles for the purposes
of the agricultural operation
- Any other agricultural activity prescribed by the minister conducted
on, in or over agricultural land.
1.e. Normal Farm Practice
The act defines a normal farm practice as one that:
"(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."
The Normal Farm Practices Protection Board (NFPPB) is the authority established
by the legislation to determine what is or is not a normal farm practice.
In arriving at a decision in each case, the board takes several factors
into consideration as it seeks to balance the needs of the agricultural
community with provincial health, safety and environmental concerns. This
is especially relevant in cases involving municipal bylaws. The board
is required to consider the purpose of the bylaw, the effect of the farm
practice on adjoining lands and neighbours, and whether the bylaw reflects
a provincial interest under any other piece of legislation or provincial
policy statement.
Consequently, there is no definitive list of normal farm practices. A
practice may be ruled as a normal farm practice at a particular location
under a particular set of circumstances; the same practice could be ruled
as not a normal farm practice at a different location under a different
set of circumstances.
For example, consider a hearing about noise from equipment used to scare
birds from vineyards. The NFPPB might decide that it was normal to use
this equipment:
- In a location where few, if any, neighbours lived nearby, but not
normal if there were many residences nearby
- In a vineyard in the Region of Niagara, but not normal if used to
scare coyotes from sheep pastures in Bruce County;
- With a method of operation using automatic shutoff switches, but not
normal using manual shutoff switches
- When bird presence was greatest during the early morning and late
afternoon, but not normal during the middle of the day during hot weather
when birds eat less frequently.
1.f. Board Jurisdiction
The NFPPB is authorized by the act to rule on three types of cases: nuisance,
bylaw and bylaw involving vehicular travel.
- Nuisance case: Complaint by a neighbour of an agricultural operation
about a disturbance from a farm practice. The disturbances covered include
odour, noise, dust, flies, smoke, light and vibration. The board rules
on whether the practice causing the disturbance is a normal farm practice.
If it is, the agricultural operation can continue and is protected from
further similar complaints. (See guide section 7.a.)
- Bylaw case: Complaint by an agricultural operator that a municipal
bylaw is restricting a farm practice related to the agricultural operation.
The board rules on whether the practice affected by the bylaw is a normal
farm practice. If it is, the practice is exempt from the municipal bylaw.
(See guide section 7.a.)
- By-law - vehicular travel: Complaint by an agricultural operator that
a municipal bylaw is restricting the times during which a vehicle, engaged
in a farm practice, can travel to or from the agricultural operation.
The board rules on whether the farm practice requiring the vehicular
travel is a normal farm practice. If it is, the operation of the vehicle
is exempt from the municipal bylaw. (See guide section 7.a.)
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2. Handling Conflicts
2.a. What to Do When a Nuisance Conflict Arises
Nuisance conflicts are conflicts arising from any of the seven disturbances
covered by the FFPPA (odour, noise, dust, flies, smoke, light and vibration).
When a resident living next to a farm has reason to believe he or she
is seriously affected by any of these disturbances, he or she should first
try resolving the matter by speaking with the farmer. Many complaints
are resolved this way. If the complaint is not resolved, the neighbour
or the farmer can seek assistance from the local Municipal Agricultural
Advisory Committee (if the municipality has one), from the municipality,
or directly from OMAFRA.
The Advisory Committee or the municipality may try to resolve the issue.
If this is unsuccessful, the Advisory Committee, the municipality or the
people involved may refer the issue to OMAFRA.
Figure 2. Residents living adjacent to farms should expect occasional
nuisances such as odour and noise.
Reach OMAFRA directly by calling the Agricultural Information Contact
Centre at 1-877-424-1300, or contact the regional OMAFRA agricultural
engineer directly. In either case, the agricultural engineer will, if
necessary, speak with both parties (the people involved on both sides
of the issue) and try to resolve the complaint through the Farm Practices
Conflict Resolution Process (see Appendix A). The goal of the conflict
resolution process is to resolve the conflict without recourse to a hearing.
Where necessary, the agricultural engineer may call upon other experts
with knowledge of agricultural issues. This process has proven to be very
successful in resolving conflicts about nuisances. Over 98 percent of
all such nuisance conflicts are resolved this way annually in Ontario.
Only after the conflict resolution process has been tried, and has failed
to resolve the dispute, will a case be considered for a hearing by the
NFPPB.
2.b. What to Do When a Bylaw Conflict Arises
A fraction of one percent of the complaints received by OMAFRA involve
municipal bylaws. This is because there is usually much consultation between
municipalities and OMAFRA when bylaws are being developed. Since any related
conflicts involve contravention of a bylaw, there is generally little
room for negotiation or mediation.
Farmers or municipalities involved in bylaw conflicts should call OMAFRA's
Agricultural Information Contact Centre (1-877-424-1300), and OMAFRA's
Farm Practices Conflict Resolution Process (see Appendix A) will be initiated.
The agricultural engineer will consult with the regional OMAFRA planner.
Some bylaw issues are related more to the Planning Act than to the FFPPA.
If the case involves the Planning Act, the planner will take over the
case and take appropriate action. Planning Act cases are outside the jurisdiction
of the NFPPB. If the case involves normal farm practices, the agricultural
engineer will proceed with the conflict resolution process. If the process
is unsuccessful, the case may then proceed to the NFPPB for a hearing.
A bylaw case will not be considered for a hearing by the board unless
the conflict resolution process has been applied and has failed to produce
a result that is acceptable to both parties.
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3. The Hearing Application
Note: The person making the application is called the
applicant. The person against whom the application is directed is called
the respondent. The applicant and respondent are the parties to the proceeding.
3.a. Applying for a Hearing
If the conflict is not resolved through the conflict resolution process,
the applicant may make a formal application to the NFPPB for a hearing.
Before the NFPPB will consider the application, it must first receive
a report from the OMAFRA agricultural engineer indicating that the process
has been applied, and that it has failed.
The application must be made by filling out and submitting an NFPPB Hearing
Application Form, shown in Appendix B. A copy of the form may be obtained
from the agricultural engineer or downloaded from the NFPPB website www.omafra.gov.on.ca/english/engineer/nfppb/nfppb.htm.
The form should be mailed, faxed or delivered to:
The Secretary
Normal Farm Practices Protection Board
Ontario Ministry of Agriculture, Food and Rural Affairs
1 Stone Road West, 3rd Floor
Guelph, Ontario N1G 4Y2
E-mail: finbar.desir@ontario.ca
Fax: 519-826-3259
3.b. How the Application is Processed
On receipt of the application, the board secretary checks it for completeness
and contacts the OMAFRA agricultural engineer for a report if one has
not been received. If the application is incomplete, the secretary writes
the applicant requesting the missing information.
All correspondence from the board to the applicant and respondent is
done by courier for rapid and secure delivery.
When the complete application is received, the secretary sends a letter
of acknowledgement to the applicant and a letter to the respondent notifying
him or her of the complaint.
The secretary forwards the completed application, along with the report
of the agricultural engineer, to the chair. The chair verifies from the
agricultural engineer's report that the conflict resolution process has
been applied to the case. Then the chair evaluates the information provided
in the application and in the engineer's report. This assists the chair
in establishing whether the case falls within the jurisdiction of the
NFPPB, whether the application may be deemed to be frivolous or otherwise
unjustified under section 8(1) of the FFPPA, and any other relevant factors.
Based on this evaluation, the chair decides whether to approve the application
for the hearing and notifies the secretary in writing of the decision.
The secretary then informs the applicant and the respondent in writing
of the board's decision concerning the request for a hearing.
If the request has not been granted, the applicant and respondent are
sent a notice that the board intends to dismiss the application. The notice
includes the board's reasons. This procedure is required by section 4.6
of the Statutory Powers Procedure Act (SPPA). The notice also informs
the applicant that he or she may respond to the board in writing within
a specified time. The board can finalize a decision to refuse an application
only after it has notified the applicant and considered the applicant's
response if received within the time specified.
If the request has been granted, the letter to the respondent will contain
a full copy of the applicant's application, including a copy of any supporting
documents submitted to the board as part of the application. This is to
enable the respondent to prepare a response for presentation at the hearing.
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4. Before the Hearing
4.a. Parties
As mentioned earlier, the applicant is a party to the hearing, and so
is the respondent. There may be one or more applicants and one or more
respondents. If the agricultural operation is incorporated, it must also
be identified as a respondent (or applicant) in the proceeding. This applies
to any incorporated business (such as a trucking or other company) that
is involved in a case before the board.
Separate hearing applications can be considered to be related either
because they involve similar complaints against the same respondent, or
because they are very similar in law or circumstances. The board can combine
the separate applications into one hearing, if the parties agree.
Sometimes there is a third party at NFPPB hearings. This is usually the
municipality, because of involvement or strong interest in a nuisance
issue. The municipality could be a respondent as well.
Other people in the immediate area who may be directly affected by the
board's decision may also apply to the board to be recognized as parties.
A party has the right to be represented by counsel, to cross-examine
witnesses called by the other parties and to present evidence.
4.b. Hearings in French
The board may conduct the hearing, or any part of the hearing, in French,
if requested by a party, and if the board considers it necessary for fairness.
The other parties remain entitled to participate in English. However,
the board can order the parties to provide any written evidence or submission
in both English and French. The Notice of Hearing (section 4.i.) must
indicate that both French and English will be used at the hearing. (Unless
otherwise specified, the sections quoted refer to this guide.)
4.c. Representation at the Hearing
The NFPPB has been set up in such a way as to allow farmers and their
neighbours to represent themselves at hearings. Parties are fully entitled
to retain legal counsel to represent them, if they so choose. Parties
sometimes choose legal representation because of many factors involving
their case, such as the level of difficulty of the case, high financial
stakes, complex legal issues, their own level of confidence, personal
considerations, and a wide range of other concerns.
Please Note: This guide is not intended to be a substitute
for legal advice and representation. The Ontario Ministry of Agriculture,
Food and Rural Affairs accepts no responsibility or liability for the
outcome of any hearing in which any party relies on this guide.
As soon as a party retains legal counsel, the secretary should be notified.
From then on, all correspondence between the party and the board will
be through the legal counsel.
If there is more than one applicant, they must appoint one person as
their representative to make their presentations to the board. Similarly,
if there is more than one respondent, they must appoint one person as
their representative to make their presentations to the board. This representative
performs the functions (described below) that would normally be performed
by legal counsel.
Except during a hearing or pre-hearing conference (see section 4.e.),
all correspondence and other communication between any party and the board
must be through the board secretary. This is a fundamental aspect of natural
justice and is meant to protect the board members from any perception
of bias.
4.d. Hearing Costs
The NFPPB does not charge participants for hearings. The NFPPB holds
hearings in the municipality where the complaint arose, in order to eliminate
or minimize travel and hotel costs to participants. Parties are entitled
to legal representation if they so choose; that, of course, would be at
their own expense.
4.e. Pre-Hearing Conference
The chair may order that a pre-hearing conference (pre-hearing) be held
before the actual hearing. The pre-hearing is a formal meeting between
the chair or vice-chair of the board (pre-hearing chair) and the representatives
of each party, to clarify issues and establish procedural matters for
the hearing. The representatives and all of the parties should be present.
No witnesses attend, because evidence (information relevant to the case)
is not presented.
Typical matters discussed would be:
- Establishing who are the applicants and respondents, including any
businesses or incorporated entities
- Identifying the issues to be addressed at the hearing
- Establishing how many witnesses (section 4.m.) will be called by each
party
- Identifying any expert witnesses (section 4.n.) either party may intend
to call
- Clarifying what documents should be exchanged between the parties,
and establishing a timetable for these exchanges (disclosure)
- Establishing the date(s) and duration of the hearing.
The pre-hearing is generally held in a location convenient to the pre-hearing
chair and the participants.
Notice of pre-hearing conferences must be issued to all parties by the
board secretary at least seven days before the pre-hearing, unless the
board decides otherwise.
Within four weeks of the pre-hearing, the pre-hearing chair issues an
order of the board (pre-hearing order), setting out his or her decisions
on the matters discussed. This is a formal order of the board, with the
same weight as a board decision (section 7), and it must be obeyed by
both parties. If a party has difficulty fulfilling any requirement in
the order, the party must submit a written request to the board (through
the secretary), as soon as the problem arises, to explain the problem
and seek to have the requirement changed. The pre-hearing chair may or
may not grant the request.
The board chair or vice-chair who conducts the pre-hearing as pre-hearing
chair may not participate in the full hearing, unless all parties consent.
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4.f. Motions
A "motion" is an application made in writing to the board,
by a party, seeking an interim board decision on a matter related to the
hearing. Motions are sometimes made to ask the board to stop the hearing
("stay the proceedings") on grounds of jurisdiction (section
1.f.). Motions are also made for other matters, such as asking the board
to order the other party to take a particular action. The motion is served
(officially presented) to the board and to the other party. A standard
form for motions is shown in Appendix C.
Figure 3. Farmers do their best to site their barns away from
residential properties to minimize complaints about odour and noise.
Like a pre-hearing, a motion is heard by either the NFPPB chair or vice-chair
(motion chair), and is generally attended by the representatives and one
or more of the parties. The motion hearing deals with only the matter
raised in the motion. The party making the motion (proposing party) presents
its case to the motion chair, including any evidence (relevant information;
see section 4.t.) that may be relevant. Evidence would not normally be
required in a motion on the board's jurisdiction; the party would simply
have to present arguments (section 5.e.), including former court or NFPPB
rulings, to support its position. Evidence may be required, though, if
the party is requesting that the board order the other party to take a
particular action, such as allowing access to a facility or providing
certain documents. Evidence is usually presented by way of affidavit (sworn
statement) unless otherwise allowed by the board.
After the presentation of the proposing party (who may be either the
applicant or the respondent), the responding party presents its evidence
and/or arguments to refute those of the proposing party.
Notice of the motion must be issued to all parties by the party making
the motion, at least seven days before the motion is heard, unless the
board decides otherwise. The notice must include:
- The names of the parties
- The statutory authority under which the motion is brought (FFPPA)
- The time, date and place where the motion will be heard
- The purpose of the motion
- The grounds for the motion
- A list of the documents that will be used in presenting the motion
- A copy of all supporting materials
- An indication of any oral evidence to be presented
- The ruling requested of the board
- A statement that if the party does not attend, the motion will proceed
and the party will not be entitled to any further notice of the motion.
For additional requirements on notices of motion, please consult sections
8 to 22 of the board's Rules of Practice and Procedure. For more information
on the Rules, including availability, see section 4.l.
Within four weeks of the motion hearing, the motion chair issues an order
of the board, setting out his or her decisions on the motion. This is
a formal order of the board, with the same weight as a board decision
(see section 7).
4.g.Scheduling of Hearing
If a pre-hearing (section 4.e.) is held, the pre-hearing order may specify
the date(s) of the full hearing. If not, the hearing date is established
by the board chair or vice-chair in consultation with the board secretary.
The NFPPB Rules (section 4.l.) require that the official notice of hearing
must be issued to parties at least 21 days before the hearing commences,
except by special order of the board. Subject to this condition, the board
is authorized to establish the date(s) of the hearing and the parties
are required to be there. Under the Statutory Powers Procedure Act, which
governs hearings of all government boards in Ontario, if a party fails
to attend a hearing after due notice, the hearing may proceed and the
party would not be entitled to any further notice of the proceedings.
The NFPPB attempts to accommodate time constraints of all parties when
scheduling a hearing. If, however, this process is causing what the board
considers to be unreasonable delays, the board may establish the date(s)
for the hearing and the parties will be required to attend on those dates.
The duration of a hearing depends on the complexity of the case, the
number of witnesses and expert witnesses involved, and the involvement
of legal counsel. The secretary consults with all parties in estimating
the amount of time to be scheduled for a hearing. The average duration
of NFPPB hearings is two and a half days.
4.h. Hearing Location
As stated in section 4.d., the NFPPB holds hearings in the municipality
where the complaint arose, to eliminate or minimize travel and hotel costs
to participants. In order to keep its own costs to a minimum, the NFPPB
is required to hold hearings in locations that are provided free to the
board. Consequently, hearings are generally held in municipal chambers,
because municipal governments graciously allow provincial government boards
to use their facilities free of charge.
4.i. Notice of Hearing
As stated in section 4.g., the NFPPB Rules (section 4.l.) require that
the official notice of hearing be issued to parties at least 21 days before
the hearing commences, except by special order of the board. The format
of the notice is specified in the Statutory Powers and Procedure Act,
which governs hearings of all government boards in Ontario. The notice
shows the date, time and place of the hearing, the purpose of the hearing,
and a warning that if the party does not attend, the hearing may proceed
and the party would not be entitled to any further notice of the proceedings.
The notice of hearing, and all other board correspondence from the board
to the parties, is sent by courier for rapid and secure delivery.
In nuisance cases (section 1.f.), the board is required to issue notices
of hearing to the parties through their representatives. In addition,
in bylaw cases (section 1.f.), the board is required to issue notices
of hearing to every owner of land that is within 120 metres of the area
in which the farm practice in question is occurring. Landowners who qualify
for notice, but who are not parties to the hearing, can be notified through
publication of the notice of hearing in a newspaper that serves the area.
4.j. Public Access to Hearings
Except as stated below, all NFPPB hearings are open to the public, including
the press. Members of the public do not normally attend pre-hearing conferences
and motion hearings, but they are entitled to do so if they wish. The
board secretary generally seeks from the parties an indication of the
number of people expected to attend the hearing, in order to ensure that
the hearing location is adequate.
Hearings are held in municipal chambers and other locations that are
wheelchair-accessible.
Section 9 of the Statutory Powers and Procedure Act authorizes the board
to hold hearings in private, if the board is convinced that a public hearing
would very harmful to a person, because of the disclosure of intimate
financial, personal or other matters.
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4.k. Board File
At least two weeks before the hearing, the secretary sends a copy of
the board file to all parties. This file contains one copy of each of
the following:
- The notice of hearing
- The complete application, with all attached documents
- The municipal bylaw (in bylaw cases)
- All correspondence between all parties and the board
- The notice of pre-hearing conference (if there was one)
- The pre-hearing conference order (if there was one)
- The notice of motion (if there was one)
- The motion order (if there was one)
- The report of the OMAFRA agricultural engineer.
4.l. Rules of Procedure
Section 25 of the Statutory Powers and Procedure Act authorizes the board
to establish rules of practice and procedure to govern its proceedings
(hearings, pre-hearing conferences, motions, and related matters). Many
of these rules have been incorporated into this guide. The official version
of the rules of practice and procedure can be obtained by calling the
Agricultural Information Contact Centre (AICC) at 1-877-424-1300, by email
at ag.info.omafra@ontario.ca,
or from the NFPPB website.
4.m. Witnesses
Parties generally call witnesses to provide evidence at the hearing in
support of the party's position. The action of the witness in delivering
the evidence is called "testifying." The information given by
the witness is the witness's "testimony."
Every party is required to submit a list of its witnesses to the board
at least two weeks before the hearing. If there is a pre-hearing conference,
the deadline for submitting the witness lists may be included in the pre-hearing
order. At the beginning of the hearing, a party may seek the board's permission
to add additional witnesses if necessary.
Witnesses may give only "factual" evidence, not "opinion"
evidence. A witness can say what he or she sees or hears or feels (the
facts) but not his or her opinion about it. Opinions can be given only
by "expert witnesses."
4.n. Expert Witnesses
Expert witnesses are witnesses with recognized technical or special knowledge
of an issue. In addition to giving the facts, an expert witness may give
technical opinions about the issue, based on his or her qualifications.
For example, a party may call an expert witness to give an opinion about
whether a hog barn is being properly managed, or whether loud music is
an effective way of protecting vineyards from birds. The witness must
first be recognized by the board as an expert. To achieve this, the party
presenting the witness must present a curriculum vitae (CV) showing the
witness's qualifications and experience related to the issue before the
board. Each opposing party has the right to object, and to question the
witness' qualifications and/or experience related to the issue. The board
then decides whether to recognize the witness as an expert witness.
If a pre-hearing conference is held, the order may establish a deadline
for submitting the CVs of expert witnesses. Otherwise the CVs should be
sent to the board secretary at least two weeks before the hearing.
4.o. Board Witness
Sometimes the board itself may call one or more expert witness(es) to
give evidence at the hearing. It must be emphasized that the board cannot
take sides in the case. The purpose of the board witness is to provide
only technical or other expert information that the board deems important
in helping it understand the issues in the case, and that the parties
could not reasonably be expected to call. The board cannot provide expert
witnesses for any party. If it did, this would constitute bias (section
5.c.) in favour of that party and could result in the overturn of the
board's decision by the courts. Board witnesses are independent of both
parties, and they can be questioned by both parties.
4.p. Witness Statements
A witness statement is a written statement of the information (and opinions,
if expert witness) that the witness will give as evidence at the hearing.
Either on its own, or at the request of a party, the board may order that
witness statements be issued to the opposing party and the board by a
certain deadline. This is more common for expert witnesses. The witness
statement must include the date of the statement, the name and address
of the witness, the CV if he or she is an expert witness, a full but concise
statement of the evidence to be given, and identification of exhibits
(documents, plans, reports, etc.) the witness plans to use at the hearing.
4.q. Swearing in of Witnesses
As in court, witnesses are required to speak the truth at hearings. To
that end, the NFPPB requires that evidence be given under oath or affirmation.
Before giving evidence before the NFPPB, every witness has to swear (take
an oath) or affirm (state solemnly) that he or she will speak the truth.
Swearing is done on a Bible. People who do not want to swear on a Bible
must make a prescribed affirmation. A witness who refuses to take an oath
or make an affirmation can be subject to contempt of court proceedings
under section 13 of the Statutory Powers Procedure Act.
A person who lies under oath or affirmation is committing a criminal
act and can be subject to prosecution under the Criminal Code of Canada.
4.r. Summonses
At the request of a party, the board can issue a summons to a witness.
The summons is an order from the board for the person named to attend
the hearing on the day(s) specified, to bring along any documents or other
items requested, and to give evidence under oath or affirmation. The person
must be "served" personally with the summons, meaning that the
summons must be delivered personally to him or her. Under section 12 of
the Statutory Powers and Procedure Act, if the person served with the
summons does not attend the hearing and testify as ordered in the summons,
a Justice of the Ontario Superior Court of Justice may issue a "bench
warrant" to have the person arrested, brought to the hearing, and
detained in custody until the person testifies as ordered in the summons.
A summons is used to ensure that an important witness attends the hearing.
It is also used to help witnesses get time off from work to attend the
hearing.
The person who is summoned must be paid the same fees and allowances
paid to a person summoned by the Ontario Superior Court of Justice. These
fees and allowances are set by the Court and can be obtained by contacting
the Court. Civil servants who are to appear as witnesses must be summoned,
but they are not paid fees and allowances.
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4.s. Documents Required for the Hearing
Each party should bring to the hearing all documents, plans, maps and
other items that are important to its case. While presenting its evidence,
the party introduces individual documents and other items it wants the
board to consider. As each item is presented, it is entered by the board
as an exhibit and assigned an exhibit number. The exhibits are kept by
the board.
For hearings involving two parties, each party should bring six copies
of every document that is to be presented to the board. For cases involving
three parties, seven copies are needed.
Please note that documents sent to the board with the hearing application
will not be considered as evidence by the board during the hearing. Only
documents presented by the parties at the hearing itself will be considered
as evidence.
4.t. Evidence - Quality
"Evidence" is anything that tends to establish or prove something
is true. It includes the oral testimony of witnesses, documents, physical
items or anything else that a party considers important to its case. Not
all evidence is allowable at hearings, and not all evidence is treated
the same by the board. Here are some important considerations:
- Relevance: The evidence must be "relevant"; that is, it
must apply to the case. If an opposing party believes that the evidence
being presented is not relevant, the opposing party can raise an objection
to the board, and the presenting party must convince the board that
the evidence is relevant.
- Hearsay: Hearsay evidence is evidence from someone who is not present
at the hearing to give evidence in person. For example, suppose Mr.
B is not at the hearing, but Mr. A testifies that Mr. B smelled manure
on a certain day. Since Mr. B is not there to say what he smelled and
when he smelled it, Mr. A's testimony is "hearsay" evidence
and does not carry much weight (see below). If Mr. B's evidence is important
to the party's case, the party must ensure that Mr. B attends the hearing
to give his evidence himself.
- Weight: The board may allow a wide range of evidence at the hearing,
but not all of it will be given the same degree of importance or weight.
For example, the board may allow hearsay evidence, but it will not be
given much weight. The same would apply to a report or document prepared
by a person who is not at the hearing. The opposing party cannot cross-examine
the person to test the information in the document. Therefore, the evidence
in the document would not carry much weight at the hearing and may not
be considered when the board is reaching its decision. This does not
mean that the board thinks the person who wrote the report is not telling
the truth. The board simply cannot base a legal ruling on evidence that
cannot be tested by cross-examination (section 5.j.3) at the hearing.
If it did, the ruling could easily be overturned if appealed to
a court.
Official or public documents that are widely recognized, such as
government and industry standards, are accepted without the need for
cross-examination. The weight given to the document will depend on
the source of the document. In determining weight to be assigned,
the board usually consults both parties at the hearing.
Information downloaded by a party from the Internet generally does
not carry much weight, unless the author of the document and the document
itself are well recognized. Depending on the document, the board may
consult both parties before assigning weight.
- Opinion: The evidence provided by witnesses must be factual, not "opinion"
evidence. Only expert witnesses (section 4.n) are allowed to give opinions,
and then only in the areas in which they have been qualified as expert.
- Credibility: The board has the authority to adjust the weight given
to a witness's testimony based on the credibility (believability) of
the person. The witness's behaviour or the manner in which the witness
testifies could raise doubt in the minds of the board members as to
the reliability of the witness's testimony. Credibility could also be
affected if the witness's testimony does not seem reasonable, does not
make sense, or appears to be exaggerated or contradictory.
4.u. Evidence - Onus
"Onus" refers to the responsibility of proving the issue before
the board. Generally, the applicant has the onus of proving his or her
complaint to the board. For example, an applicant complaining about noise
from a farming operation must produce evidence to establish that someone
is conducting an agricultural operation at a particular location, that
the operation produces noise, and that the level or amount or timing of
the noise is unreasonable. If the applicant is unable to do that, the
respondent may argue that the applicant has not established his or her
case and request dismissal of the case. If the board agrees, the case
can be dismissed even without considering the respondent's evidence. Of
course, the respondent should not depend on this happening. If the applicant
meets his or her onus, the onus then shifts to the respondent to prove
that the activity is a normal farm practice.
4.v. Evidence - Standard of Proof
"Standard of Proof" refers to the level of convincing needed
to prove a fact to the board. In the justice system there are two standards
of proof: "beyond a reasonable doubt" and "the balance
of probabilities." Beyond reasonable doubt is a very high standard
used in criminal cases in the courts. The prosecution must prove that
the defendant committed the crime, and the proof must be such that the
judge or jury is left with no reasonable doubt. If any reasonable doubt
remains, the judge or jury must acquit the defendant. Civil courts and
administrative tribunals like the NFPPB use the standard of the balance
of probabilities. This means that the board weighs all the evidence both
for and against, and decides according to the stronger evidence. Depending
on the importance of the issue, the winning evidence may have to be much
stronger in some cases than in others.
4.w. Hearing Transcripts
A transcript is a written record of the hearing proceedings. The board
does not make a written record of hearing proceedings, so no transcripts
are available. Any party may arrange to have a court reporter record a
hearing, at the party's expense. However, the board should be informed
in advance that this will occur. The party is required to supply to the
board, at no charge, a copy of the transcript as soon as it is complete,
for the board's record.
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5. Hearing
5.a. Public Conduct during a Hearing
Members of the public attending a hearing are expected to do so in a
manner respectful of the hearing. The board is authorized by the Statutory
Powers and Procedure Act to give directions and orders to maintain order,
and to have these directions and orders enforced by the police.
5.b. Access to the Board
While the hearing is in session, the party representatives may address
the board as appropriate. During breaks and other times when the hearing
is not in session, all communication between parties and the board must
be through the board secretary. Other than polite small talk, board members
are not allowed to have any discussions or to socialize with any parties
or other people at the hearing. This is to avoid the possibility of any
situation that could be perceived as potential bias (section 5.c) of board
members toward or against any party.
5.c. Fairness
As any other administrative board or court in the justice system, the
NFPPB must not only be fair in the treatment of all who appear before
it but also be seen to be fair. Therefore, any action or situation that
may call fairness into question must be avoided. That is why all correspondence
between the board and any party is shared with all parties. That is also
why all correspondence or communication between parties, their supporters,
or the audience and the board must be through the board secretary, and
not directly with the board members. There are two particular concepts
of fairness that apply at board hearings: perception of bias and conflict
of interest.
- Bias: There is a perception of bias when one party feels that the
board, or any member of the board panel (the three board members hearing
the case), favours the other party. To avoid perception of bias, board
members have to avoid contact or communication with parties or their
supporters. During hearing sessions, board members have to be unbiased
in their questioning of witnesses. All three members of the board panel
must be present for the complete hearing. In all its aspects, the hearing
must be conducted in such a manner that treats all parties uniformly.
If at any time during a hearing a party feels that there is a perception
of bias, the matter should be raised immediately, either to the chair
during the hearing or to the secretary between sessions.
- Conflict of interest: A conflict of interest would apply if any member
of the board panel is involved in business transactions or a personal
relationship with any of the parties appearing before the board panel.
There would be a perception that the board member may not be fair toward
all parties. To minimize the possibility of conflict of interest, panel
members are normally selected from communities far removed from the
municipality of the case. If a party feels that any of the panel members
may be in a conflict of interest regarding any of the parties, the matter
should be raised at the beginning of the hearing, and the chair will
rule as appropriate.
5.d. Layout of the Hearing Room
Board hearings are usually held in municipal council chambers, but they
can sometimes be held in community halls. In either case, the layout follows
a standard pattern. The board, consisting of a panel of three members,
sits at a table or desk facing the audience. Facing the board are two
tables, one for each party (three tables if there are three parties).
Normally, two people, the representative and one other person from the
group of applicants or respondents, sit at the tables. If there are other
applicants or respondents, they sit directly behind the applicant's or
the respondent's tables in the audience section. Off to one side, between
the board and the parties, is a small table at which the witness sits
to testify. This is the witness stand. The audience (supporters of the
parties, witnesses, members of the public, press agents if any) sit in
chairs behind the parties. There is usually a separate room to which the
board panel retreats when the hearing is not in session.
Figure 4. At certain times of the year, exhaust fans in barns
may produce increased noise levels.
5.e.Hearing Procedure
During a hearing, each party tries to convince the board to accept the
party's position and rule in favour of the party. To accomplish this,
the party has to perform two functions:
- Present evidence that supports the party's position and challenge
the evidence (cross-examination (see section 5.j.3) of the opposing
party
- Use the evidence presented, and applicable law, to develop and present
arguments to convince the board to rule in favour of the party.
These two functions are separate and distinct, and the hearing is structured
to deal with them separately. The first phase of the hearing deals only
with the presentation and challenging of evidence. This is the evidentiary
phase of the hearing. No argument is allowed in this phase.
The second phase deals only with argument. This is the argument phase.
No evidence is accepted in the argument phase.
The board may order parties to present argument in written form, as well
as, or instead of, oral presentation. When written arguments are
presented, parties will be given adequate opportunity to respond.
The hearing is divided into four main phases: introduction, optional
site visit, the evidentiary phase, and the argument phase. These are described
below.
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5.f. Introduction
As a sign of respect and in the interests of order, everyone is asked
to stand when the board panel enters the hearing room.
The chair identifies the board, the act under which the board operates,
and the panel members. The chair briefly explains the purpose and function
of the board.
Next, the chair calls on the parties to identify themselves; first, all
the applicants, including legal entities and corporations, and asks whether
they are represented by legal counsel. If not, he or she inquires who
will act as the party representative. Next, all respondents are similarly
identified, followed by the third party if there is one.
The chair then asks if there are any other parties, or any other persons
who wish to make a presentation to the board. There may be people who
simply wish to make a presentation to the board without the responsibilities
of being a party, and without being a witness for any of the parties.
This is the time for them to seek permission from the board so that they
can do so at a time appointed by the board.
The chair then briefly explains the hearing process. This may not be
necessary if all parties are represented by legal counsel.
The chair then announces whether there will be a site visit and, if so,
when it will be carried out.
5.g. Optional Site Visit
In many instances the board does a site visit to get a better appreciation
of the issues before it. The board has found this to be helpful in many
cases, especially those involving nuisances. Since the hearings are held
in the areas where the complaints originate, the board normally does not
have to travel far to reach the site.
The site visit is normally done with the accompaniment of the representatives
and/or any the parties who wish to attend. The visit includes the location
of the farm practice in question, the locations of the homes of the applicants,
if appropriate, and other locations important to the case. The whole trip
normally takes between one and two hours. The visit is not used to gather
evidence, but only to help the board understand the evidence presented
at the hearing. The board members get a better perspective of distances,
noise levels, odours, wind direction, trees, buildings and other physical
barriers, and other similar issues included in the evidence.
5.h. Evidentiary Phase
5.h.1 Opening Statements
Note: It was pointed out in section 4.a. that there
may be several applicants and several respondents. Section 4.c. explained
that if the group of applicants or respondents does not have legal counsel,
the group must appoint one person as its representative. For simplicity
in the following sections, the applicants' representative (whether legal
or not) will be referred to as the applicant, the respondents' representative
as the respondent, and the third party's representative as the third party.
The evidentiary phase begins with an opening statement from the applicant,
followed by the respondent and the third party (if any). This is a brief
statement describing the issues the party will address, and outlining
the evidence the party will present, the list of witnesses, the topics
to be covered, and an estimate of the amount of time required.
5.h.2 Exclusion of Witnesses
During a hearing, a party may request an order from the board that particular
witnesses be excluded from the hearing until they have given their testimony.
This is to ensure that the witnesses' testimony is not influenced by the
testimony of other witnesses.
Figure 5. Farmers understand the benefits of renewable energy.
Anaerobic digesters are able to convert manure into methane, then into
electricity for use on the farm or for sale to others.
5.h.3 Presentation of Applicant's Case
The applicant begins the presentation of his or her evidence. This is
done through witnesses. The applicant calls each witness in turn to the
witness stand for the testifying procedure described below. The applicant
decides the order in which he or she wants to call his or her witnesses,
including expert witnesses. All evidence to be presented to the board
must be presented through witnesses on the witness stand. If the
applicant is representing himself, and wants to testify, then he must
go on the witness stand to present his evidence.
Each witness goes through the following procedure:
-
Swearing-in: The witness must take an oath or make an affirmation
(section 4.q), administered by a member of the board panel.
-
Examination-in-chief: The applicant asks the witness questions to
bring out the evidence desired. In dealing with issues disputed by
the respondent, the applicant is not allowed to use "leading"
questions; that is, questions that suggest the answer desired. For
example, the witness should not be asked: "Wasn't that sound
driving you crazy?" That is considered a leading question. A
more acceptable type of question would be: "Did the sound affect
you?" Answer: "Yes, it did." Question: "How?"
Answer: "It almost drove me crazy."
-
Cross-examination: The respondent asks the witness questions to bring
out any inconsistencies or weaknesses in the evidence or to raise
new information favourable to the respondent. The respondent is not
allowed to use repetitive questions simply to try to get the answer
he or she wants. When the respondent is finished, the third party
(if present) will cross-examine the witness.
-
Redirect: The applicant can ask the witness questions related specifically
to issues raised in the cross-examination. This is to counter any
concerns that the respondent or third party may have raised. Redirect
must be limited and brief.
-
Board questions: The board panel members ask the witness questions
to clarify issues raised in the evidence.
-
Response questions - Applicant: The applicant can ask the witness
questions to respond only to issues raised by the board's questions.
-
Response questions - Respondent: The respondent can ask the witness
questions to respond only to issues raised by the board's questions.
- Response questions - Third party: The third party can ask the witness
questions to respond only to issues raised by the board's questions.
5.h.4 Presentation of Respondent's Case
-
When the applicant has finished presenting his or her witnesses,
it is the respondent's turn. The process is the same:
-
Swearing-in: The witness must take an oath or make an affirmation
(see section 4.q), administered by a member of the board panel.
-
Examination-in-chief: The respondent asks the witness questions to
bring out the evidence desired. As before, leading questions are not
allowed.
-
Cross-examination: The applicant asks the witness questions to bring
out any inconsistencies or weaknesses in the evidence or to raise
new information favourable to the applicant. The applicant is not
allowed to use repetitive questions simply to try to get the answer
he or she wants. When the applicant is finished, the third party (if
present) will cross-examine the witness.
-
Redirect: The respondent can ask the witness questions related specifically
to issues raised in the cross-examination. This is to counter any
concerns that the applicant may have raised. Redirect must be limited
and brief.
-
Board questions: The board panel members ask the witness questions
to clarify issues raised in the evidence.
-
Response questions - Respondent: The respondent can ask the witness
questions to respond only to issues raised by the board's questions.
-
Response questions - Applicant: The applicant can ask the witness
questions to respond only to issues raised by the board's questions.
-
Response questions -Third party: The third party can ask the witness
questions to respond only to issues raised by the board's questions.
5.h.5 Presentation of Third-Party's Case
If there is a third party, it will present its case at this time, following
the same format as the respondent. Cross-examination of third-party witnesses
is done by the applicant first, followed by the respondent.
5.h.6 Board Witnesses
If the board has its own expert witness, he or she will be called at
this stage of the hearing. The procedure for board witnesses follows:
- Swearing-in: The witness must take an oath or make an affirmation
(see section 4.q), administered by a member of the board panel.
- Board questions: The board panel members ask the witness questions
to clarify issues raised in the evidence.
- Response questions - Applicant: The applicant can ask the witness
questions to respond to issues raised by the board's questions.
- Response questions - Respondent: The respondent can ask the witness
questions to respond to issues raised by the board's questions.
- Response questions - Third party: The third party can ask the witness
questions to respond to issues raised by the board's questions.
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5.i Argument Phase
5.i.1 Argument by Applicant
As explained earlier, this is the phase of the hearing in which the applicant
uses the evidence that has been presented to develop arguments to convince
the board to rule in his or her favour. The applicant can refer to applicable
law and to precedents (former decisions of the board or the courts). However,
the applicant cannot bring in, or refer to, any new evidence that has
not been presented in the evidentiary phase of the hearing.
The argument should include suggestions to the board about how it should
rule.
5.i.2 Argument by Respondent
The respondent uses the evidence that has been presented to develop arguments
to convince the board to rule in his or her favour. The respondent can
refer to applicable law and to precedents (former decisions of the board
or the courts). However, the respondent cannot bring in, or refer to,
any new evidence that has not been presented in the evidentiary phase
of the hearing.
The argument should include suggestions to the board about how it should
rule.
5.i.3 Argument by Third Party
The third party uses the evidence that has been presented to develop
arguments to convince the board to rule in his or her favour, or according
to his or her suggestions. The third party can refer to applicable law
and to precedents (former decisions of the board or the courts). However,
the third party cannot bring in, or refer to, any new evidence that has
not been presented in the evidentiary phase of the hearing.
The argument should include suggestions to the board about how it should
rule.
The applicant is then allowed a brief statement to reply to the points
made by the respondent or third party.
5.j. Adjournment
At the conclusion of the arguments, the chair thanks all parties and
gives an approximate time when the decision (section 7.a.) will be issued.
Decisions are never rendered at the hearing but are reserved. They are
normally issued in about 60 days in written form together with reasons.
The hearing is adjourned.
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6. Agreements Reached During the Hearing
Sometimes the parties may reach an agreement between themselves before
the hearing is completed. The parties may then jointly request the board
to sanction (support) the agreement. If the board supports the terms of
the agreement, the board will adjourn the hearing and issue a decision
supporting the agreement.
If the board does not support the terms of the agreement, the parties
have the following options:
-
The applicant can withdraw his or her case from the board. The board
will then adjourn the hearing and close the case.
-
The parties can change the agreement (without input from the board)
and re-apply for board sanction. Not having heard all the evidence
and arguments, the board cannot make suggestions toward improving
the agreement.
-
The applicant and/or the respondent can withdraw from the agreement
and continue the hearing.
7. After the Hearing
7.a. Decision
As stated earlier, the board never renders its decision at the hearing.
It is normally issued approximately 60 days later. The decision is always
contained in a comprehensive written document, which includes identification
of the parties, their representatives and the witnesses; a summary of
each witness's testimony; the applicable sections of the legislation;
the issues of the case; the findings of fact; the grounds on which the
board based its decision; and the decision.
In arriving at a decision, the NFPPB has only three options available
to it.
In a nuisance case, the board can either:
-
Decide that the farm practice in question is a normal farm practice,
and dismiss the application
-
Decide that the farm practice in question is not a normal farm practice,
and order the farmer to cease the practice
-
Decide that the farm practice in question would be a normal farm
practice if the farmer modifies the practice as specified by the board.
The decision would then list the modifications ordered.
If the board rules that the practice causing the disturbance is a normal
farm practice, the farmer is free to continue the practice under the protection
of the act. The board will not entertain further similar complaints unless
circumstances have changed appreciably.
In a bylaw case (including one that involves vehicular traffic), the
board can either:
-
Decide that the farm practice in question is a normal farm practice,
and therefore exempt from the municipal bylaw
- Decide that the farm practice in question is not a normal farm practice,
and therefore is subject to the municipal bylaw, and dismiss the application
-
Decide that the farm practice in question will be a normal farm practice
if the farmer modifies the practice as specified by the board. The
decision would then list the modifications ordered. With these modifications,
the practice would be exempt from the municipal bylaw.
After a decision has been issued, if the board considers it advisable,
the board is authorized under the Statutory Powers and Procedure Act to
review the decision and suspend, vary, cancel or confirm it. This may
become necessary if new evidence of vital importance comes to light after
the decision has been issued.
Please note that the board decision is specific to the particular site,
under the circumstances presented to the board. Board decisions are not
applicable indiscriminately to other cases. A practice ruled by the board
as a normal farm practice at one site, under a particular set of circumstances,
may be ruled as not a normal farm practice at a different site under a
different set of circumstances.
7.b. Distribution of the Decision
An original signed copy of the decision is sent by courier to each party's
representative. In addition, if a group of applicants or respondents does
not have legal representation, a copy of the decision may also be sent
to each applicant or respondent in the group, as established at the hearing.
Board decisions are public documents. Approximately one week after the
decision is sent to the parties, it is distributed to other interested
persons such as any media that request it. Summaries of all decisions
are available on the NFPPB website. Copies of the full decision can be
obtained by contacting the Agricultural Information Contact Centre (AICC)
at 1-877-424-1300, or email at ag.info.omafra@ontario.ca.
7c.Costs
If any of the parties in the hearing believe that another party has acted
clearly unreasonably, frivolously, in a vexatious manner, or in bad faith,
considering all of the circumstances, it may ask for an award of costs.
Clearly unreasonable, frivolous, vexatious, or bad faith conduct can include,
but is not limited to:
-
Failing to attend a hearing event or to send a representative when
properly given notice, without contacting the Board;
-
Failing to give notice or adequate explanation or lack of cooperation
during pre-hearing proceedings, changing a position without notice,
or introducing an issue or evidence not previously mentioned;
-
Failing to act in a timely manner or to comply with a procedural
Order or direction of the Board where the result causes undue prejudice
or delay;
-
Conduct necessitating unnecessary adjournments or delays or failing
to prepare adequately for hearing events;
-
Failing to present evidence, continuing to deal with issues, asking
questions or taking steps that the Board has determined to be improper;
-
Failing to make reasonable efforts to combine submission with parties
of similar interest;
-
Acting disrespectively or maligning the character of another party;
and
-
Knowingly presenting false or misleading evidence
The requesting party must notify the Board within 10 days after the written
decision is issued. The request must include the party who will be seeking
costs, the party against whom the costs are sought, and an indication
of the approximate amount of costs being south. The Board may then request
the party seeking costs and the party against whom costs are sought, to
appear before the Board to make oral submissions in regards to the request
for costs. Alternatively, the Board may ask the parties to make submission,
in writing. Any parties requesting cost must be prepared to provide the
Board the following documentation:
-
The reasons for the request and the amount requested;
-
An estimate of any extra preparation of hearing time caused by the
alleged misconduct;
-
Copies of supporting invoices for expenses claimed or an Affidavit
of a person responsible for payment of those expenses were properly
incurred; and
-
An Affidavit verifying that the costs claimed were incurred directly
and necessarily for the time period in question.
The Board will consider the seriousness of the misconduct and may deny
or grant the request or award a different amount.
7.d. Appeal
Any of the parties in the hearing can appeal the decision of the board,
or any order of the board, to Divisional Court within 30 days of the decision
or order. The appeal must be based on a question of fact, law or jurisdiction.
7.e. Enforcement of the Decision
NFPPB orders and decisions are enforced in the same way as civil court
decisions. The procedure for enforcement is established by section 19
of the Statutory Powers Procedure Act. First, one of the parties must
file a certified copy of the decision or order with the Ontario Superior
Court of Justice. The decision or order then becomes a decision or order
of the court and is enforced the same way that a decision of the Court
is enforced. The party seeking enforcement would bring a motion before
the court for contempt or other relief. A certified copy of the decision
can be obtained from the secretary of the board.
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8. Conclusion
If you would like to comment on the guide, please contact us through
the Agricultural Information Contact Centre. We can also be contacted
for further information on the act, the board, normal farm practices,
NFPPB decisions, and related matters.
9. Appendices
Appendix A: Conflict Resolution Process
Farm Practices Conflict Resolution Process
This conflict resolution process is a form of alternate dispute
resolution (ADR) mandated by the Normal Farm Practices Protection Board
(NFPPB).
The Farm Practices Conflict Resolution Process is established by the
Environmental Policy and Programs Branch of the Ontario Ministry of Agriculture,
Food and Rural Affairs (OMAFRA) to assist in resolving conflicts regarding
farm practices. When a conflict arises, parties (the people involved on
both sides of the issue) should try to resolve it by communicating with
each other, because this usually produces the most amicable solution.
If they need assistance, they may call the local Municipal Agricultural
Advisory Committee (if the municipality has one), the municipality, or
OMAFRA.
The advisory committee or the municipality may try to resolve the issue.
If this is unsuccessful, the advisory committee, the municipality or the
parties involved may refer the issue to OMAFRA.
OMAFRA can be reached by calling the Agricultural Information Contact
Centre (AICC) at 1-877-424-1300. The AICC will refer the matter to the
most appropriate OMAFRA agricultural engineer. Sometimes the people affected
contact the regional OMAFRA agricultural engineer directly. In either
case, the agricultural engineer will, if necessary, speak with both parties
and try to resolve the complaint through the Farm Practices Conflict Resolution
Process. The goal of the conflict resolution process is to resolve the
conflict without a board hearing. Where necessary, the agricultural engineer
may call upon other experts with knowledge of agricultural issues. If
conflict resolution is not successful, a party may apply to the NFPPB
for a hearing under the Farming and Food Production Protection Act (FFPPA).
Before an application for a hearing can be considered by the
NFPPB, the Farm Practices Conflict Resolution Process must first have
been applied.
The Conflict Resolution Process
A. Nuisance Cases:
The majority (over 99 percent) of farm practice complaints received by
OMAFRA are nuisance complaints related to disturbances, such as odour,
noise, dust, flies, smoke, light and vibration. Of these, approximately
98.5 percent are resolved through conflict resolution by OMAFRA agricultural
engineers.
-
The agricultural engineer will receive the call either through the
AICC or directly from the affected party. For calls assigned by the
AICC, the AICC will copy the secretary of the NFPPB. For direct calls,
the engineer will make a note.
-
The engineer will contact the parties as necessary and engage in
conflict resolution.
-
If the engineer considers it necessary or advisable, he or she may
call upon other experts to aid the resolution process.
-
If the conflict is resolved, the engineer will make a note, including
the type of nuisance involved, for monthly farm practices reporting.
-
. If the resolution process proves unsuccessful, and any of the parties
wishes to apply for a hearing before the NFPPB, the engineer will
help the party obtain an application form.
-
The engineer will then issue a report to the NFPPB secretary, indicating
that the conflict resolution process has been applied.
B. Bylaw Cases:
Less than 1 percent of the complaints received by OMAFRA involve municipal
bylaws. This is because there is usually much consultation between municipalities
and OMAFRA when bylaws are being developed. Since any related conflicts
involve contravention of a bylaw, there is generally little room for negotiation
or mediation.
-
The agricultural engineer will receive the call either through the
AICC or directly from the affected party. For calls assigned by the
AICC, the AICC will copy the secretary of the NFPPB. For direct calls,
the engineer will make a note.
-
The agricultural engineer will consult with the regional OMAFRA planner.
Some bylaw issues are related more to the Planning Act than to the
FFPPA. If the case involves the Planning Act, the planner will take
over the case and take appropriate action. Planning Act cases are
outside the jurisdiction of the NFPPB.
-
If the case involves normal farm practices, the agricultural engineer
will proceed with the conflict resolution process.
-
The engineer will contact the parties as necessary and determine
potential for conflict resolution.
-
If the engineer considers it necessary or advisable, he or she may
call upon other experts to aid the resolution process.
-
If the conflict is resolved, the engineer will make a note for monthly
farm practices reporting.
-
If the resolution process proves unwarranted or unsuccessful, and
the farm operator wishes to apply for a hearing before the NFPPB,
the engineer will help the farmer obtain an application form.
- The engineer will then issue a report to the NFPPB secretary, indicating
that the conflict resolution process has been applied.
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Appendix B: Hearing Application Form
Normal Farm Practices Hearing Protection Board Application
Application Date (yyyy/mm/dd): ___________________________________
Note: Before an application for a hearing can be considered
by the Normal Farm Practices Protection Board, the matter must have
gone through the Farm Practices Conflict Resolution Process established
by the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA).
(For further information on the conflict resolution process, please
contact the OMAFRA Agricultural Information Contact Centre at 1-877-424-1300).
Have the issues involved in this application been considered in OMAFRA's
Normal Farm Practices Conflict Resolution Process?
Yes _______ No _______ Agricultural Engineer _______________________
The personal information on this form is collected under the authority
of The Farming & Food Production Protection Act. It will be used
only by the board to hear the applicant's case. If you have any questions
about this collection contact: Secretary, Normal Farm Practices Protection
Board, Ministry of Agriculture, Food and Rural Affairs, 1 Stone Rd.
W., Guelph, ON N1G 4Y2, 519-826-3549.
(Please print or type all information)
Name of Applicant:______________________________________________
(If there is more than one applicant, add separate sheet with their
information and signatures)
Mailing Address: _______________________________________________
_____________________________________________________________
City: _________________________________________________________
County: ______________________________________________________
Postal Code: __________________________________________________
Telephone Number: _____________________________________________
Fax Number: __________________________________________________
E-mail: _______________________________________________________
Applicant's Signature:
_____________________________________________________________
Name of person or municipality against whom the complaint is directed:
_____________________________________________________________
Address of farm or municipality: ___________________________________
_____________________________________________________________
City: _________________________________________________________
County: ______________________________________________________
Postal Code: __________________________________________________
Telephone Number: _____________________________________________
Fax Number: __________________________________________________
Nuisance Complaint (under Section 5 of the Farming and Food Production
Protection Act)
Complete this section only if you are directly affected by a disturbance
from an agricultural operation.
Nature of the Complaint (please check all that apply):
____ Odour
____ Noise
____ Dust
____ Flies
____ Smoke
____ Light
____ Vibration
Date(s) of the Disturbance (yyyy/mm/dd):
_____________________________________________________________
Describe how the disturbance has affected you (if this space is insufficient,
attach additional pages):
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
Please attach any additional information pertaining to the complaint.
Bylaw Complaint (under Section 6 of the Farming and Food Production
Protection Act)
Complete this section only if the farming practice in question is directly
affected by a municipal bylaw.
Information about the bylaw in question:
Bylaw Number:
_____________________________________________________________
Date the bylaw was passed (yyyy/mm/dd):
_____________________________________________________________
Municipality that passed the bylaw:
_____________________________________________________________
Address of the Municipal Office: ___________________________________
_____________________________________________________________
City: _________________________________________________________
Postal Code: __________________________________________________
Telephone Number: _____________________________________________
Fax Number: __________________________________________________
Describe how the bylaw is affecting the farming practice in question
(if this space is insufficient, attach additional pages):
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
Please attach a copy of the bylaw in question and any additional
information pertaining to the complaint.
Please forward the signed application and attachments to:
Normal Farm Practices Protection Board
Ministry of Agriculture, Food and Rural Affairs
1 Stone Road West Guelph, ON N1G 4Y2
Phone: (519) 826-3549,
Fax: (519) 826-3259
Email: finbar.desir@ontario.ca
Appendix C: Notice of Motion
Normal Farm Practice Protection Board
Between
_____________________________________________________________
(Applicant(s))
and
_____________________________________________________________
(Respondent(s))
Notice of Motion
Take Note
A motion will be made to the Board by :
_____________________________________________________________
(party making the motion)
at
_____________________________________________________________
(place of return of motion)
On _______________________, at __________ am/pm for the following
Order:
(date of return of motion) (time)
_____________________________________________________________
(set out the Order(s) requested)
The following material will be relied on at the hearing of the motion:
(set out affidavits or other material relied upon)
Take Notice: if you fail to appear at the hearing of this motion,
an Order may be made in your absence.
_____________________________________________________________
(Signature of party or party's lawyer/agent)
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For more information:
Toll Free: 1-877-424-1300
Local: (519) 826-4047
E-mail: ag.info.omafra@ontario.ca
|
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