Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: July 14, 2020
CASE NO: 19-031
PROCEEDING COMMENCED UNDER section 9(1) of the Nutrient Management Act, 2002, S.O. 2002, c.4
Appellant: Shermandale Farms Ltd. (File No. 19-031)
Appellant: Wessuc Inc. (File No. 19-032)
Respondent: Director, Ministry of Agriculture, Food & Rural Affairs
Subject to appeal: Refusal to issue an Approval of a Non-Agricultural Source Material (NASM) plan for the management of Category 2 and Category 3 NASM that includes the storage and application of NASM
Reference No.: NASM Plan 23440
Property Address/Description: 1693 Colborne Street East
Municipality: City of Brantford
ERT Case No.: 19-031
ERT Case Name: Shermandale Farms Ltd. v. Ontario (Agriculture, Food and Rural Affairs)
APPEARANCES:
Parties | Counsel
Shermandale Farms Ltd. and Wessuc Inc. | Peter Pickfield
Director, Ministry of Agriculture, Food, and Rural Affairs | Nadine Harris
HEARD: September 16-17, 2019 in Brantford, Ontario
ADJUDICATOR: Helen Jackson, Member
DECISION
Background
1On April 18, 2019, Len Senyshyn, Director, (“Director”) Ministry of Agriculture, Food and Rural Affairs (“Ministry”), refused approval of NASM (“non-agricultural source materials”) Plan 23440, which had been jointly submitted to the Ministry by Wessuc Inc. (“Wessuc”) and Shermandale Farms Ltd. (“Shermandale”) (jointly “Appellants”).
2NASM Plan 23440 proposes the revocation of six existing Shermandale NASM Plans and the consolidation of Wessuc and Shermandale’s NASM management activities under one NASM Plan, being NASM Plan 23440. The only new NASM management activity not currently governed by an existing NASM Plan issued to Shermandale is a new earthen lagoon (“Wessuc Lagoon”) proposed to be used for the storage of NASM, located on Wessuc’s property at 1693 Colborne Street East in Brantford, Ontario.
3The Director refused to approve NASM Plan 23440 on the grounds that “the proposed lagoon for storing NASM owned and controlled by Wessuc is not an ‘agricultural operation’ within the meaning of the Nutrient Management Act (“NMA”).”
4Pursuant to s. 9 (1) of the NMA, the Appellants appealed the Director’s decision to refuse to approve NASM Plan 23440 to the Environmental Review Tribunal (“Tribunal”) on May 3, 2019.
5The Tribunal heard the appeal over two days on September 16 and 17, 2019.
6At the start of the hearing, the parties agreed that there are no technical concerns with respect to the design and operation of the earthen Wessuc Lagoon as it relates to the proposed NASM Plan 23440 as described in the application, and no disagreement on the basic facts as they apply to this matter. As such, the parties agreed that the witness statements would be adopted into evidence as provided in order to streamline the hearing. On the first day of the hearing, the witnesses provided highlights of their respective witness statements to assist the Tribunal in understanding the key issues. On the second day of the hearing, the Tribunal heard the parties’ submissions.
Witnesses
7Hank Van Veen, Principal and Co-founder of Wessuc, provided background to Wessuc’s operations and the rationale for the current application.
8Nicole Di Filippo, a NASM Plan Developer, certified by the Ministry to prepare NASM plans and employed by Wessuc, provided technical evidence with respect to what is required for a NASM plan application. Ms. Di Filippo was responsible for the subject NASM plan application and liaising with the Ministry during the application process. The Tribunal heard that Ms. Di Filippo has successfully undertaken numerous NASM plan applications in the past.
9Steven Kelly Smith, farmer, co-owner and proprietor of Shermandale, provided a description of the farm operation and Shermandale’s role in the NASM plan application. He provided evidence on the value and need for NASM and the need for the Wessuc Lagoon.
10Mr. Senyshyn, the Director, provided evidence in relation to his interpretation of the NMA and Ontario Regulation 267/03 (“O. Reg. 267/03”) made thereunder and his understanding