CITATION: Oakville (Town) v. Read, 2010 ONSC 170
DIVISIONAL COURT FILE NO.: 86/08
DATE: 20100129
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Leitch, dambrot and swinton JJ.
B E T W E E N:
The Corporation of the Town of Oakville
Appellant
- and -
Wayne Read and Laura Duncan carrying on business as Read Farms
Respondents
R. Andrew Biggart, for the Appellant
A. M. Robinson and P. A. Milligan, for the Respondent
HEARD AT TORONTO: December 3, 2009
M. Dambrot J.:
[1] The respondents (collectively “Read Farms”) are tenants on a 400-acre parcel of land on the north side of Rebecca Street within the urban area of the Town of Oakville. They have been growing crops on the land since 2001. The land was formerly used as an oil refinery site, and is contaminated. Oakville’s Zoning By-law No. 1984-63 prohibits the use of the subject lands for farming or growing crops. The lands are zoned industrial. In 2002, Oakville charged the owners of the property with breaching this by-law. In response, Read Farms brought an application to the Normal Farm Practices Protection Board (“the Board”) for a stay of the by-law as against it pursuant to the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 (“the Act”). On January 23, 2008, the Board granted the application. Oakville appeals from that decision.
BACKGROUND
[2] In 2002, as I have noted, Oakville charged the owner of the property leased by Read Farms with “using land for a purpose not permitted, namely farming/growth of crops” contrary to Zoning By-law 1984-63. In response to the charge, Read Farms commenced an application to the Board pursuant to s. 6(1) of the Act. Section 6(1) provides that “[n]o municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.” Read Farms sought to have the by-law stayed against it, on the basis that it was carrying out “normal farm practices” as part of an agricultural operation on the site. It claimed to be a tenant farmer farming winter wheat. Before us, Read Farms characterized its activities as “assessment farming.”
[3] The subject lands are divided into two parcels, on either side of Rebecca Street, in the town of Oakville. The southern parcel consists of approximately 327 acres, and the northern parcel consists of 147 acres. These lands were once used as a refinery by Shell Canada Limited. In the mid-1980s, Shell commenced a remediation program of the lands, which was completed by 1989. The lands are now subject to Minister’s Orders made pursuant to s. 46 of the Environmental Protection Act, R.S.O. 1990, c. E.19 (“EPA”).
[4] Shell sold the lands in 1999. The southern lands have been remediated and developed with residential dwellings. The hearing at the Board concerned only the northern lands.
[5] The Minister’s Order with respect to the northern lands recites that:
- the land had been used for petroleum refinery purposes;
- waste had been deposited on parts of the land in a land treatment area and in a leaded tank scale area, which were approved as waste disposal sites under the EPA;
- waste had also been deposited on parts of the land in areas that were not approved as waste disposal sites, and in an equalization sludge pond area not approved as a waste disposal site;
- Shell carried out remedial activities and studies on the site establishing that the land is safe for commercial and industrial purposes, but not residential use unless the Ministry consents;
- Shell has determined that there are residual levels of Molybdenum and Selenium on the site at levels safe for commercial or industrial purposes but not for the grazing of ruminants or the growing of fodder for ruminants (in essence, grazing animals such as cattle, sheep and goats); and
- Shell undertook to investigate any apparent petroleum residues and take remedial measures.
[6] Section 46 of the EPA provides that no use shall be made of land that has been used for the disposal of waste unless approved by the Minister. In consideration of an indemnity provided by Shell, the Minister approved the use of the land “for the purposes of commercial and/or industrial development or use, but not for the grazing of ruminants, the growing of fodder for ruminants or residential use.”
[7] I note, by way of contrast, that the southern lands were approved for development for any purpose other than the grazing of ruminants or the growing fodder for ruminants.
[8] Read Farms is run primarily by Wayne Read and Laura Duncan. Wayne Read began the business (at a separate location from the subject lands) as a cow-calf operation in 1982. His operation grew and he began cultivating more acres to feed his livestock. In 1993, he ceased raising livestock and focused exclusively on cash-cropping. At the time of the hearing, Read Farms employed five people and had a gross annual income of over $2,200,000. It cultivated lands throughout the greater Toronto area.
[9] In 2001, Read Farms entered into a contractual relationship with the owner of the subject lands. According to the terms of the contract, the owner is required to pay Read Farms $300/acre to farm the northern lands and $200/acre to farm the southern lands. Read Farms is entitled to keep the proceeds from the harvest. Read Farms began cultivating the lands in 2001. Read Farms grew winter wheat on the property, which Ms. Duncan testified that she believed was permitted by the Minister’s Order. Read Farms also planted barley on the land every other year, because the lease required it to rotate the crops. According to Ms. Duncan, the growing of barley was not permitted by the Minister’s Order. As a result, the barley was ploughed under, so that crops were only harvested every other year.
[10] The reason for this arrangement, whereby the owner paid the tenants to farm the land (“reverse rent”), is that it enables the owner to benefit from the favourable property tax treatment accorded to farm land. Farm land is assessed at a lower value than residential, industrial or commercial land, and owners of farm land are required to pay lower taxes as a result. Oakville took the position at the Board that the situation was essentially a “tax grab”. Read Farms claimed to be a tenant farmer who farmed winter wheat on the subject lands, legitimately entitling the owners to pay lower taxes. As I have noted, before us, Read Farms characterized its activities as “assessment farming,” which it argues is entirely permissible, even in the face of zoning by-laws that preclude farming.
THE HEARING
[11] As I have already stated, s. 6(1) provides that “[n]o municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.” By virtue of ss. 6(2) and (3) of the Act, an application to the Board for a determination as to whether a practice is a normal farm practice for purposes of the “non-application” of a by-law can only be brought by farmers who are directly affected by the by-law.
[12] Amongst the arguments advanced by Oakville before the Board were the following:
- Read and Duncan were not farmers within the meaning of the Act;
- farming winter wheat upon the former refinery site in the manner conducted by Read Farms is not a “normal farm practice,” but rather an attempt to change the use of the land to a use that is not permitted by By-law 1984-63 enacted under the Planning Act, R.S.O. 1990, c. P.13; and
- farming winter wheat in the manner conducted by Read Farms was not part of an “agricultural operation.”
[13] Read Farms took the opposite position on each of these issues.
[14] With respect to the second issue raised by Oakville, a “normal farm practice”, as relevant here, is defined in s. 1(1) of the Act as a practice that is “conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances.”
[15] In support of its position that Read Farms was not conducting a normal farm practice, and so the by-law did not restrict a normal farm practice, Oakville relied on a formidable body of evidence including evidence that:
- Read Farms can only harvest winter wheat on the subject lands due to the contamination;
- the grain harvested from the subject site cannot be used for animal feed as a result of the Minister’s Orders;
- there were contamination issues with respect to the grain harvested from the subject site;
- despite this, the grain harvested from the subject site is used for human consumption, particularly the preparation of bread;
- the testing of the grain that is done before the grain is used for bread does not include testing for petroleum products or lead;
- although Read Farms conducts farming activities on over 2500 acres of land throughout the Greater Toronto and Hamilton area, this is its only property with a contamination issue;
- Read Farms has no idea where the contaminants are located on the subject lands;
- Ms. Duncan was unaware of any other farmers who farm on contaminated lands;
- Read Farms’ lease does not permit crops to be rotated, a restriction that Ms. Duncan conceded was “out of the normal realm”;
- barley is grown in non-harvest years only for the purposes of appearances for assessment officers;
- there is no topsoil on the site;
- a noxious weed has infested the site; and
- as a result, according to expert witnesses called by Oakville, far from conducting a normal farm practice, Read Farms had created only the illusion of farming.
[16] In determining whether a practice is a normal farm practice, s. 6(15) of the Act compels the Board to consider the following factors:
The purpose of the by-law that has the effect of restricting the farm practice.
The effect of the farm practice on abutting lands and neighbours.
Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.
The specific circumstances pertaining to the site.
[17] Oakville lead evidence on each of these factors.
[18] The first and third arguments made by Oakville, that Read and Duncan were not farmers within the meaning of the Act, and that farming winter wheat in the manner conducted by Read Farms was not performed as part of an “agricultural operation,” are really the same argument. I say this because a “farmer” is defined in the Act to mean the owner or operator of an agricultural operation (s. 1(1)). If Read Farms were not running an agricultural operation, then they were not farmers. If they were running an agricultural operation, then they were farmers.
[19] In respect of this argument, I note that an “agricultural operation” is defined in the Act as “an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward” (s. 1(1)).
[20] In support of its position that farming winter wheat in the manner conducted by Read Farms was not performed as part of an “agricultural operation,” Oakville relied on some of the same evidence I have outlined, and an additional formidable body of evidence, including evidence that:
- using Read Farms’ own expense and income statements disclosed during the hearing, Read Farms was spending $22 to $38 per bushel to produce a wheat product that is sold for $2.32 per bushel; and
- according to Ms. Duncan, Read Farms would be broke if it were not paid by the landowner/developer to “farm” the land.
THE DECISION
[21] In detailed, logical and persuasive reasons, Mr. Walker, the Chair of the Board, in dissent, concluded that Read Farms did not satisfy the definition of “farmer” under the Act, because their activities were not carried out “in the expectation of gain or reward.” As a result, he concluded that Read Farms had no standing to bring the application. He also concluded that Read Farms’ practice is not a normal farm practice, and so the by-law did not restrict a normal farm practice. He would have dismissed the application.
[22] The majority of the Board granted the application in a 16 page decision. The first 14 ½ pages of the reasons are nothing more than a synopsis of the history of the application. Most of this recitation consists of a summary of the evidence and arguments presented by the parties. The actual decision of the Board is found in two pages at the end of the reasons. In addition to the Order of the Board, these two pages are organized under two headings: “Factual Observations of the Majority of the Board,” and “Findings of the Majority of the Board.”
[23] Under the first of these two headings, the Board makes three pertinent comments, which I repeat in full:
1.34 The Majority of the Board confirmed that the Applicant carries on a legitimate agricultural operation.
1.35 The Majority of the Board confirmed that the Applicant was carrying on a normal farm practice.
1.36 The Board received evidence that the operations of the Applicant were adversely affected by the imposition of the Respondent’s By-law No. 1984-63 which negatively affected the Applicants’ enjoyment of their property within the meaning attributed thereto by Section 6 of The [sic] Farming and Food Protection Act – 1998 and the jurisprudence of The [sic] Normal Farm Practice Protection Board. [I note that s. 6 of the Act is not concerned with by-laws that adversely affect a farmer’s agricultural operation and negatively affect the farmer’s enjoyment of property. If there is jurisprudence of the Board that holds otherwise, it is not disclosed in the Board’s reasons.]
[24] Under the second of these headings, the Board stated, in full:
1.39 The Majority of the Board finds that the Town of Oakville By-law No. 1984-63 was appropriately and validly enacted with some modest ambiguities within its statutory authority as found under the The [sic] Planning Act and The [sic] Municipal Act as well as being consistent with all relevant policy statements from the Province or any relevant County or Municipal Official Plan provision or general policy statement. The Board finds that the extent of the ambiguity is not, of itself, sufficient to invalidate the said by-law. [I note the obvious: the Board has no authority to invalidate a by-law, and these findings were irrelevant to its task.]
1.40 The Majority of the Board finds that the enactment of Town of Oakville By-law No. 1984-63 constituted a ban within the meaning attributed thereto by the Act which negatively affected the Applicant’s use of the subject property within the meaning attributed thereto by Section 6 of The [sic] Farming and Food Protection Act – 1998 and the jurisprudence of The [sic] Normal Farm Practice Protection Board. [I repeat my observation respecting the Board’s paragraph 1.36 - that s. 6 is not concerned with by-laws that adversely affect a farmer’s agricultural operation and negatively affect the farmer’s enjoyment of property. This finding is also irrelevant.]
1.41 The Majority of the Board finds that the Applicant carries on a legitimate agricultural operation, including the planting, fertilizing, cultivating and harvesting of a farm crop on the subject property within the meaning attributed thereto by The [sic] Farming and Food Protection Act – 1998 and the jurisprudence of The [sic] Normal Farm Practice Protection Board.
1.42 The Majority of the Board finds that the Applicant was carrying on a normal farm practice within the meaning attributed thereto by The [sic] Farming and Food Protection Act – 1998 and the jurisprudence of The [sic] Normal Farm Practice Protection Board.
1.43 The Majority of the Board considered the burden which is placed upon an Applicant in proceedings before the Board to establish its position on a balance of probabilities. In that regard, the Board noted that the Applicant has satisfied that burden.
1.44 For the reasons set forth above, the Majority of the Board grants this Application.
[25] As can be seen, the majority of the Board gave no reasons for its decision, gave no consideration to the evidence relied on by Oakville, including whether or not it accepted some or all of the evidence, and why it did not result in a different outcome, and did not refer at all to the factors in s. 6(15) of the Act that it was obliged to consider when determining whether a practice is a normal farm practice. Its decision amounts to nothing more than a series of bald conclusions that barely address s. 6(1) of the Act at all.
ANALYSIS
[26] Oakville raised seven grounds of appeal. They can conveniently be consolidated into four questions:
(i) Did the Board err in concluding that Read Farms was a farmer?
(ii) Did the Board err in concluding that Read Farms was conducting a normal farm practice?
(iii) Did the Board err in concluding that Read Farms was engaged in an agricultural operation?
(iv) Did the Board fail to provide adequate reasons for its decision?
[27] I will begin with the fourth question.
INSUFFICIENT REASONS
[28] Oakville argues that by failing to give adequate reasons, the Board denied Oakville natural justice, and denied it the fundamental right to understand the reasons for the decision.
[29] Decisions of the Normal Farm Practices Protection Board are ordinarily reviewed on a standard of reasonableness: Hill and Hill Farms v. The Municipality of Bluewater (2006), 2006 31802 (ON CA), 82 O.R. (3d) 505 (C.A.). But where a tribunal is said to have failed to give a party natural justice, the court does not engage in an assessment of the appropriate standard of review, but instead evaluates whether the rules of procedural fairness or the duty of fairness have been adhered to: Ontario (Commissioner, Provincial Police) v. MacDonald, 2009 ONCA 805, [2009] O.J. No. 4834 (C.A.). The court assesses the specific circumstances and determines what safeguards were required to comply with the duty to act fairly: Megens v. The Ontario Racing Commission (2003), 2003 26509 (ON SCDC), 64 O.R. (3d) 142 (Div. Ct.) at para. 12, and Forestall v. Toronto Police Services Board (2007), 2007 31785 (ON SCDC), 228 O.A.C. 202 (Div. Ct.) at para. 38.
[30] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, the Supreme Court recognized that in some circumstances, the duty of procedural fairness will require the provisions of reasons for a decision. The Court stated, at para. 43:
In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required.
[31] In this case, where the decision limits the application of a municipal by-law enacted by an elected body, and where there exists a statutory right of appeal, there can be no doubt that there is a duty to provide reasons. But that duty would be meaningless if the requirement to provide reasons did not mean reasons that are sufficient to permit the parties to understand why the conclusion was reached.
[32] In Gray v. Ontario (Director of Disability Support Program) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364 at 374-5 (C.A.), the Court stated:
The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.
[33] More recently, in Diamond Auto Collision Inc. v. Economical Insurance Group, 2007 ONCA 487, [2007] O.J. No. 2551 (C.A.), Weiler J.A. stated, at paras. 11-12:
[11] In Sheppard, [2002 SCC 26, [2002] 1 S.C.R. 869] Binnie J. described the three functions of reasons for judgment at the trial level at para. 24. They are: 1) explaining to the losing party why he or she lost; 2) enabling informed consideration as to whether to appeal; and 3) enabling interested members of the public to see whether justice has been done. A shorthand way of describing reasons that fulfill these functional requirements is to say that the reasons permit meaningful appellate review.
[12] The determination as to whether reasons permit meaningful appellate review is a contextual one which takes into consideration a number of factors including the positions of the parties, implicit findings, and the extent to which the reason for the trial judge's conclusion is patent on the record. See e.g. Lawson v. Lawson, 2006 26573 (ON CA), [2006] O.J. No. 3179 (C.A.) at para. 13. Standing alone, conclusory and generic reasons, in the sense that they could apply equally to any other case, do not permit appellate review. In order for the court to determine whether there has been a proper application of legal principles, the pathway to the result is necessary: R. v. Minuskin (2003), 2003 11604 (ON CA), 68 O.R. (3d) 577 (C.A.) at paras. 2-4.
[34] The reasons here fall so far below the standard described in Gray as to amount to no reasons at all. Beyond summarizing the evidence and reciting the arguments of the parties, the reasons are nothing more than bald conclusions in the words of the requirements of the Act that communicate nothing of the reasoning process leading the majority to the conclusion it reached. The pathway to the result is neither apparent nor implicit. The reasons do not permit meaningful appellate review.
[35] I accept that in many cases, reasons that fall short of the prescription in Gray may still be adequate because, for one reason or another, the reasoning of the decision-maker is plain. Indeed, that is the submission made by the respondents here. They argue that it is clear why the majority reached the decision it reached. In view of the evidence of Ms. Duncan, and certain authorities they relied on, they say that “it is difficult to imagine how the Board could have come to a different conclusion.”
[36] I cannot agree. It is for this reason that I referred to the evidence lead by Oakville to the extent that I did. It could be said, contrary to the position of Read Farms, that in the face of this evidence, it is difficult to imagine how the Board reached the conclusion it reached. In any event, at the very least, Oakville’s evidence leads in a different direction. Oakville is entitled to know to what extent the majority rejected this evidence, and why the parts of the evidence it did not reject did not lead the Board to a different conclusion.
[37] For these reasons, I conclude that the Board denied natural justice to Oakville. It denied to Oakville the fundamental right to understand the reasons for its decision. Its reasons preclude meaningful appellate review. This would be sufficient to allow the appeal, set aside the decision of the Board, and order a new hearing. In this case, however, Oakville asks us to allow the appeal and dismiss Read Farms’ application. This request requires us to consider at least one of the other questions raised by Oakville’s appeal. I will consider the second question next.
DID THE BOARD ERR IN CONCLUDING THAT READ FARMS WAS CONDUCTING A NORMAL FARM PRACTICE?
[38] As I have just said, Oakville asks us to allow the appeal and dismiss Read Farm’s application. It argued that the Board erred in concluding that Read Farms was conducting a normal farm practice. As part of its submission on this issue, Oakville argued that the Board erred because there was no evidence before it of any normal farm practice being conducted by Read Farms, and because it failed to distinguish between a “normal farm practice” and a land use. As will be seen, we have concluded that we should dismiss Read Farms’ application based on resolution of this ground of appeal.
[39] Before discussing the merits of Oakville’s argument on this issue, it is necessary to consider whether or not we have the jurisdiction to substitute our decision for that of the Board.
[40] This matter comes before us as an appeal brought pursuant to s. 8(2) of the Act. That subsection provides:
Any party to a hearing under this Act may appeal an order or a decision of the Board on any question of fact, law or jurisdiction to the Divisional Court within 30 days of the making of the order or decision.
[41] This being an appeal, the Court may substitute its decision for that of the Board, rather than direct a new hearing, in appropriate cases. Section 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) provides:
- (1) Unless otherwise provided, a court to which an appeal is taken may,
(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from …
[42] Read together, s. 8(2) of the Act and s. 134(1)(a) of the CJA permit us to set aside the decision of the Board on the basis of an error of fact, such as an erroneous finding that Read Farms was carrying out a normal farm practice that was restricted by By-law 1984-63, and substitute what we consider to be the decision that the Board ought to have made. It is particularly tempting to make the decision that ought to have been made by the Board in this case, if we are able to, having regard to the fact that this Board has only five members. This leaves open the possibility that there are presently only two members who did not hear the original application available to hear the application afresh. At the same time, to the extent that making the decision that ought to have been made by the Board would require making findings of fact on disputed evidence that differ from the findings the Board originally made, it would be a rare case where we would be in a position to do so. Curial deference is ordinarily owed to the findings of fact of a board despite the existence of a right of appeal on a question of fact. (See Large v. The City of Stratford (1993), 1993 298 (ON CA), 16 O.R. (3d) 385 (C.A.), reversed without reference to this point 1995 73 (SCC), [1995] 3 S.C.R. 733.)
[43] But where the facts as found by the Board, or the undisputed facts, lead to a clear conclusion that differs from the conclusion reached by the Board, an appellate court would be free to reach that conclusion. For example, in Industrial Tanning Co. v. Reliable Leather Sportwear Ltd., 1953 345 (ON CA), [1953] 4 D.L.R. 522 (Ont. C.A.); aff’d 1955 407 (SCC), [1955] 2 D.L.R. 284 (S.C.C.), Hope J.A. stated:
On the other hand, an Appellate Court does not and cannot abdicate its right and its duty to consider the evidence and if it appears from the reasons given by the Trial Judge that he has misapprehended the effect of the evidence or failed to consider a material part of the evidence, and the evidence which has been believed by him when read fairly and considered as a whole leads the Appellate Court to a clear conclusion that the findings of the Trial Judge are erroneous, then it becomes the plain duty of the court to reverse those findings. There are ample and numerous authorities for this proposition.
[44] On this basis, the Court allowed the appeal from a counterclaim that had been allowed by the trial judge and, rather than ordering a new trial, dismissed the counterclaim.
[45] Tempting as it might be in this case to conclude, as a matter of fact, that placing wheat grown on contaminated lands that cannot be fed to cows, sheep or goats into the human food chain is not a normal farming practice, I will refrain from doing so. It would be equally tempting to conclude that growing wheat on contaminated land that, as a result of s.46 of the EPA and a Minister’s Order, may not be used for any purpose other than commercial and/or industrial development or use, is not a normal farm practice. But again, I will refrain from doing so, particularly because it appears that the Minister may not share my interpretation of what I consider to be the plain words of the Order. There was hearsay evidence before the Board that the Minister is of the view that the Order somehow precludes the farming of barley but does not preclude the farming of wheat.
[46] In fact, in considering whether or not to substitute our own decision for that of the Board in this case, we are at a particular disadvantage. We do not know how the Board reached the conclusion that Read Farms was conducting a normal farm practice. To the extent that this conclusion is a finding of fact based on disputed evidence, we could not even determine if the Board erred.
[47] But in the end, in my view, we are at liberty to decide for ourselves the question of whether or not Read Farms was conducting a normal farm practice because it is readily answered as a matter of law without the need to resolve any conflict in the evidence lead by the parties. Since our conclusion does not depend on any evidence that is in dispute, I will not further review the evidence lead in relation to this issue.
[48] The matter of law that I have in mind involves the proper interpretation of the Act. While ordinarily this Court is obliged to defer to a tribunal’s interpretation of its own statute, no deference is owed in a case such as this one where the majority makes no effort to explain either the meaning they attribute to the language of their home statute or its application to the evidence before them.
[49] In addressing the issue at hand, I begin by reiterating the prohibition found in s. 6(1) of the Act. The Act provides that “[n]o municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.” With this provision in mind, I will examine the “normal farm practice” that Read Farms advances as being carried on as part of an agricultural operation, and that is restricted by Oakville’s by-law, in the context of the proper interpretation of the Act.
[50] In answer to a question in oral argument, counsel for Read Farms identified its normal farm practice simply as “farming.” In its factum, Read Farms said that its normal farm practice is what it called “cash-cropping activity.” By this it meant an agricultural operation that included the planting, fertilizing, cultivating and harvesting of a farm crop - in other words, farming. In his dissenting reasons, Mr. Walker, the Chair of the Board, indicated that Read Farms argued before the Board that the normal farm practice in question was the actual use of the lands for agricultural purposes - again, farming.
[51] In my view, “farming” cannot, as a matter of law, be what is meant in the Act by a normal farm practice. Such an approach would conflate the requirement that a normal farm practice be restricted by the by-law, and the requirement that the normal farm practice be carried on as part of an agricultural operation. Normal farm practices are “farming techniques and methods that are of a requisite standard or established and followed by similar agricultural operations” (see Bluewater at para. 50). Farming itself is obviously not a farm practice. Nor is cash-cropping or assessment farming. Cash-cropping does no more than identify the category of agricultural operation carried on by Read Farms: farming crops for sale. Assessment farming simply describes the reason that Read Farms is engaged in farming at this location. These terms do no more than describe the use to which the land is being put. In no sense do they describe normal farm practices being carried on by Read Farms as part of an agricultural operation.
[52] While I reach my conclusion essentially as a matter of statutory interpretation, and independent of any evidence lead before the Board, it is interesting to note the evidence that was adduced on this issue. Mr. Stagl, a land use planner called by Oakville as a witness at the hearing, testified that Read Farms’ application was not about the prohibition of any practice by the by-law. Rather, he said, Read Farms sought an exemption from the by-law, which regulates land use. Even Ms. Duncan, when asked to describe the specific farm practice that Read Farms was prohibited from using, could not identify one. She simply stated that Read Farms was prohibited from farming.
[53] I do not believe that I am niggling in making a distinction between farming practice and land use. In my view, the distinction goes to the heart of the purpose of s. 6. Section 6 is intended as a shield to protect legitimate farmers with legitimate farming operations from having the use of normal farm practices restricted. This is consistent, in turn, with the fundamental purpose of the Act. As Weiler J.A. put it in Bluewater, at para. 19, the Act is intended to address “issues arising from the competing interests of agricultural operations and adjacent properties.”
[54] Weiler J.A. discerned this purpose from the preamble of the Act, which reads:
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 and horticultural products.
It is in the provincial interest that in agricultural areas, the 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.
[55] It is noteworthy that after acknowledging that agricultural activities may cause discomfort and inconvenience to those on adjacent lands, the preamble speaks of promoting and protecting normal farm practices in a balanced manner in agricultural areas. The preamble thus makes clear that the Act is concerned with conserving, protecting and encouraging the development and improvement of existing agricultural lands, or new agricultural lands within agricultural areas, despite some inconvenience to neighbours. It is not concerned with the creation of new agricultural lands in areas zoned residential, commercial or industrial.
[56] It is true that Weiler J.A. went on to say, at para. 19, that because the Act is intended to address competing land uses, an inference can be drawn that s. 6 was intended to give the Board the power to consider zoning by-laws that regulate the use of land in a municipality. She ultimately concluded, at para. 23, that the term “municipal by-law” in s. 6 includes a zoning by-law. But I see nothing in this to suggest that s. 6 can be used to permit a person to commence farming on land that it is zoned in a manner that precludes farming, for the reasons that I have already mentioned.
[57] It is significant to note the zoning by-law that was under consideration in Bluewater was entirely different than the one under consideration here. Bluewater concerned By-law 22-1985 of the Township of Stanley. By-law 22-1985 set out minimum distance separation requirements for new or expanding livestock facilities from existing (or approved) development. That by-law, quite obviously, was capable of restricting a normal farm practice carried on as part of an agricultural operation. Nothing in that judgment suggests that the Board can stay a zoning by-law governing the permitted uses of land in order to introduce a new agricultural use.
[58] In my view, conflating the terms “agricultural operation,” which is a land use, and “farm practice,” which is an activity forming part of the manner in which the use is performed, would result in an unintended expansion of the Board’s jurisdiction, and would authorize the Board to permit a new land use not permitted by a properly enacted zoning by-law. This, in turn, would undermine the scheme of the Planning Act. It amounts to a misinterpretation of the Act, and an error in law.
[59] Read Farms is attempting to use s. 6 of the Farming and Food Production Protection Act as a sword, enabling it to introduce a new farming use to land that has validly been zoned industrial. To the extent that the majority of the Board may have accepted Read Farms approach to this issue, their decision reflects a fundamental misunderstanding of s. 6 of the Act. In short, it was wrong in law. Regardless of whether or not Read Farms were farmers, or were carrying on an agricultural operation, its application should have been dismissed.
DISPOSITION
[60] The appeal is allowed, the decision of the Board is set aside and Read Farms’ application to the Board for a stay as against it of Oakville’s Zoning By-law No. 1984-63 is dismissed.
[61] The respondents argued that no costs should be awarded, if they were unsuccessful, because the Board gave inadequate reasons. As their application has been dismissed as a result of this appeal, costs of the appeal should follow the event. Their counsel took no issue with the quantum of $22,000.00. Therefore, we award costs to the appellant fixed at $22,000.00.
Dambrot J.
Leitch J.
Swinton J.
Released: January 29, 2010
CITATION: Oakville (Town) v. Read, 2010 ONSC 170
DIVISIONAL COURT FILE NO.: 86/08
DATE: 20100129
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Leitch, dambrot and swinton JJ.
B E T W E E N:
The Corporation of the Town of Oakville
Appellant
- and -
Wayne Read and Laura Duncan carrying on business as Read Farms
Respondents
REASONS FOR JUDGMENT
Dambrot J.
Released: January 29, 2010