Corporation of the Town of New Tecumseth v. Stan Snieg

DIVISIONAL COURT FILE NO.: DC-996/16 DATE: 20180126

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Abrams, Matheson, Ryan Bell, JJ.

BETWEEN:

Corporation of the Town of New Tecumseth Respondent/Appellant in Appeal

– and –

Stan Snieg Applicant/Respondent in Appeal

COUNSEL: C. Butler/P. McKenna, for the Respondent (Appellant in Appeal) D. Scott, for the Applicant/Respondent in Appeal

HEARD at Oshawa: January 25, 2018

ORAL REASONS FOR DECISION

Matheson J. (Orally)

[1] The Town of New Tecumseth appeals under s. 8(2) of the Farming and Food Production Protection Act, 1998, S.O. 1998. c. 1 (“FFPPA” or the “Act”), from the order of the Normal Farm Practices Protection Board dated September 27, 2016 (the “Order”).

[2] The Order approved the respondent Stan Snieg’s proposed “normal farm practice”, subject to certain changes, under the FFPPA’s s. 6(16).

Brief Background

[3] The respondent purchased the property that is the focus of this matter and took certain steps toward using the property as a fruit farm, or more specifically an apple orchard.

[4] In 2012, the Town passed its Site Alteration and Fill By-Law, 2012-136 (the “By-Law”), which prohibited fill import and placement except where there was an exemption.

[5] “Fill” is broadly defined in the By-Law and includes among other things soil or earth, as planned for use on the respondent’s property.

[6] The property is zoned for agricultural operation. Part of it is also regulated by the Nottawasaga Valley Conservation Authority (NVCA). The NVCA-regulated portions are not subject to the Town’s By-Law and are not the subject of this appeal.

[7] The respondent applied to Town Council in 2014 seeking an exemption from the By-Law, but since no exemptions applied, the Town refused.

[8] The respondent then applied to the Board to determine if his proposal to import and re-grade his farm was a “normal farm practice” under the FFPPA and therefore permissible despite the By-Law. In keeping with the preamble to the FFPPA, s. 6(1) provides that: “No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.”

[9] The respondent’s application resulted in a five day hearing, beginning in late 2015 and concluding in early 2016. Considerable evidence was called at the hearing, including evidence from a number of expert witnesses put forward by both the respondent and the Town. As well, the Board received submissions from members of the community.

[10] The Board granted the respondent’s application. In doing so, the Board made certain findings, as set out in Section E of its Reasons for Decision as follows:

Based on the evidence and its consideration of the issues and legislation, the Board finds:

a) That the Applicant is a person entitled to apply to the Board pursuant to Subsection 6(3)(b).

b) That the Applicant’s proposed practice of land improvement by way of the importation of fill is a part of or ancillary to the proposed agricultural operation.

c) That Mr. Snieg has shown that he has demonstrable plans for the proposed practice.

d) That the proposed practice is a normal farm practice as it makes use of innovative technology provided that it is consistent with proper advanced farm management practices, such as the MOECC – Management of Excess Soil – A Guide for Best Management Practices, in this case.

e) That the Town of New Tecumseth By-Law No. 2012-136 restricts that normal farm practice.

[11] The Board concluded that the proposed farm practice would be a normal farm practice provided that the respondent took certain steps requiring the development and implementation of an environmentally compliant fill management plan.

Fresh evidence motions

[12] Each party to this appeal brought a fresh evidence motion. Those motions were heard and dismissed earlier today. There was no dispute about the test, which is variously set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 and Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208 (C.A.).

[13] In the appellant’s motion, the proposed evidence was an amended statement of defence in a civil action in which the respondent is a defendant. The pleading specifically relied upon by the appellant expressly relates to a definition of “fill” that is markedly different from the relevant definition in the By-Law, and we are satisfied on the evidence that was before the Board that the proposed practice relates to soil or earth, not the type of construction waste referred to in the pleading. We are not persuaded that the pleading meets the requirement for fresh evidence that if admitted it would likely be conclusive of an issue in the appeal.

[14] With respect to the respondent’s motion, he seeks to introduce a Ministry of Agriculture Fact Sheet regarding the importation of soil onto agricultural land that was released after the Board’s Order was made. The respondent submits that this Fact Sheet is supportive of a finding made by the Board that has been challenged by the appellant. We are not persuaded that the Fact Sheet meets the requirement for fresh evidence that if admitted it would likely be conclusive of an issue in the appeal.

Issues

[15] The Town submitted that there were four issues that grounded its appeal, specifically that the Board erred in these respects:

1. by its weighing of the evidence and mainly the expert evidence;

2. by failing to consider evidence supporting a finding that the fill application was for a commercial, not an agricultural, operation;

3. by its interpretation of the FFPPA, finding that fill importation was a “normal farm practice” and finding that fill importation met the FFPPA’s definition of “agricultural operation”; and,

4. by imposing a fill management plan on the Town without jurisdiction to do so.

[16] The parties agree that the standard of review for issues (2) and (3) is reasonableness. The appellant submits that the other issues give rise to a correctness standard, rather than reasonableness, as submitted by the respondent. However, no pure legal error was ultimately put forward on the first issue, for which the appellant fairly conceded that the rules for experts are not as strict before this tribunal, and on the last issue, the appellant did not establish a question of jurisdiction requiring the standard of correctness.

[17] We conclude that the standard of review for all issues is reasonableness.

Analysis of Issues

[18] We conclude that issues (1) and (2) can be addressed together.

[19] The appellant questions the Board’s decision to accept Mr. Gilroy’s evidence over that of the appellant’s apple farming expert, and alleges that the evidence more generally before the Board did not support its conclusions on air and water drainage. The Town also seeks to reargue the evidence based upon which it invited the Board to conclude that this is really a commercial fill operation, not a proposed farm.

[20] The Board reasonably qualified Mr. Gilroy. He had 30 years of apple farming experience and was a former president of the Ontario Apple Growers. The Board was in the best position to evaluate and determine the weight to give the evidence provided, not only by Mr. Gilroy but more generally.

[21] We conclude that the findings made by the Board were open to it on all of the evidence before it, put forward during a five-day hearing, and that no reviewable error has been demonstrated by the Town.

[22] Issue (3) is an issue that questions the Board’s interpretation of its home statute. The Board is entitled to considerable deference in this area.

[23] The Town submits that the Board’s interpretation of “normal farm practice” did not employ both parts of the definition in the Act, and that the Board should have considered both if the proposed practice used “innovative technology” and if it is “consistent with proper advanced farm management practices.” The Town further submitted that the Board lacked evidence that such technology was innovative and that it erred by relying on the MOECC’s “Best Management Practices” as such evidence.

[24] We disagree. The Board reasonably applied plain and ordinary dictionary definitions of “innovative” and “technology”, to conclude that innovative means “new methods” and technology includes “the application of scientific knowledge for practical purposes”. The Board properly determined on the evidence before it that importing fill to establish an apple orchard was a new method and therefore innovative. The Board also had sufficient evidence to reasonably conclude that Mr. Snieg’s proposed fill plan used technology within the s. 1 definition in the Act. Further, we do not agree that for the Board to conclude that the definition was met, including regarding the need to be “consistent with proper advanced farm management practices”, the Board would need to be provided with a scientific study of the proposed method.

[25] With respect to the definition of “agricultural operation” in the FFPPA, the Town submitted that the Board failed to consider evidence that the Town submits shows that the plan is unnecessary and therefore cannot be considered a “necessary and ancillary part of an agricultural operation”. Again, there was sufficient evidence for the Board to reasonably come to its conclusion. Further, the subsection relied upon by the Town for the “necessary’ requirement, specifically s. 1(2)(j), does not restrict the broader meaning of “agricultural operation” as set out in s. 1(1) of the Act.

[26] Lastly, on issue (4), the Town questions the Board’s jurisdiction in one part of its Order, specifically paragraph (e). The prior paragraphs of the Order require that the respondent commission a fill management plan from a Qualified Person or QP (as defined in O. Reg 153/04) addressing a lengthy list of matters. The Order also requires that the respondent comply with all NVCA requirements and all other legal requirements. Lastly, in the disputed paragraph (e), the Board requires notice of the fill management plan to the Town and enforceability of the plan by the Town, but makes no provision for any consultation with the Town. The Town submits that this puts paragraph (e) beyond the Board’s statutory jurisdiction to make modifications to the proposed practice, as found in s. 6(16)(c) of the Act.

[27] We do not regard this as a pure question of jurisdiction. It is a matter of interpretation of the Act. However, the Board did not address this interpretive issue in its Reasons for Decision. Nor do we see a reasonable interpretation that could be made that supports a decision to order a fairly complex fill management plan to be enforced by the Town without it having any opportunity for input into it. As well, in submissions today, the respondent does not object to input from the Town, to be considered by the QP preparing the fill management plan.

[28] We conclude that this omission was unreasonable and can be addressed now, as set out in our order.

[29] The appeal is therefore granted in part. Paragraph (e) of the Order shall be amended as follows: The first sentence shall be deleted and replaced with the following: The Fill Management Plan must be submitted to the Chief Building Official for the Town of New Tecumseth within 30 days after its completion. Within 90 days of receipt of the Plan, the Town shall provide any comments to the QP and the applicant. The QP shall consider those comments and make any amendments the QP concludes ought to be made to the Plan. The revised Plan, or notice that no changes were made, shall be given to the Town and the applicant promptly after the above process is complete. After notice is given, and [joining to second sentence of para. (e)].

[30] In accordance with the agreement between the parties, and recognizing divided success on this appeal, the appellant shall pay costs to the respondent fixed at $15,000 all inclusive.

___________________________ Matheson J.

I agree

Abrams J.

I agree

Ryan Bell J.

Date of Reasons for Judgment: January 25, 2018

Date of Release: January 26, 2018