Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 27, 2023 CASE NO(S).: OLT-23-000203
PROCEEDING COMMENCED UNDER subsection 9(1) of the Nutrient Management Act, 2002, S.O. 2002, c. 4
Appellant: Minten Family Farms Ltd. Subject: Stay Motion Description: Appellant is applying for a stay in the operation of the proposed conditions until final determination of all issues at the requested hearing Reference Number: 19899 Property Address: 7551 Churchill Line Municipality/UT: Warwick/Lambton OLT Case No.: OLT-23-000203 OLT Case Name: Minten Family Farms Ltd. v. Ontario (Agriculture, Food and Rural Affairs)
Heard: May 1, 2023 by Telephone Conference Call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Director, Ministry of the Environment, Conservation and Parks | N. Harris and J. Bradbury |
| Minten Family Farms Ltd. | R. Scriven |
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON MAY 1, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On March 6, 2023, James Mitchell, Director (“Director”), Ministry of the Agriculture, Food and Rural Affairs (“OMAFRA”), issued Notice of New or Amended Condition: Nutrient Management Strategy - 19899 Under Ontario Regulation 267/03 (“Director’s Order”) to Minten Family Farms Ltd. (“Appellant” or “Owner”). The Director’s Order is in relation to farm operations at the property located at 7551 Churchill Line, in Watford (“subject property”).
2The Appellant has appealed the Director’s Order under s. 9(1) of the Nutrient Management Act.
3The Appellant seeks the scheduling of a motion to stay the Director’s Order and is seeking an interim stay pending the disposition of the Stay Motion. On May 1, 2023, the Tribunal convened a Case Management Conference (“CMC”) to schedule dates for the Stay Motion and to consider the Appellant’s request for an interim stay.
4The Director’s Order amends conditions in the Appellant’s Nutrient Management Strategy for the subject property. The amended conditions are:
The Owner shall submit to the Director, an up-to-date Nutrient Management Strategy for the Approved Agricultural Operation by April 15, 2023, that is prepared by a certified person, contains the information required by the Regulation and the Nutrient Management Protocol (“Protocol”) and that is compliant with the Regulation and Protocol. This must include, in particular, an accurate description of the destination of all prescribed materials in accordance with section 5.2.2 of the Protocol, including any signed transfer agreements. The Nutrient Management Strategy required to be submitted by this condition shall be submitted to the Director at: 1 Stone Road West, Guelph, Ontario, N1G 4Y2 3rd Floor Attention James Mitchell.
The Owner shall submit to the Director, the Nutrient Management Plan that is required by the Regulation for the Approved Agricultural Operation by April 15, 2023. The Nutrient Management Plan required to be submitted by this condition shall be submitted to the Director at 1 Stone Road West, Guelph, Ontario, N1G 4Y2 3rd Floor Attention James Mitchell.
The Owner shall ensure that liquid prescribed materials are applied to the Farm Unit in a manner that does not permit the materials to travel off the farm field to which the liquid prescribed materials are applied.
The Owner shall provide written notice meeting the requirements of this condition before any application of liquid prescribed materials to the Farm Unit. The notice shall be provided to the local district office of the Ministry of the Environment, Conservation and Parks and the local Agricultural Environmental Officer at the following emails: environment.sarnia@ontario.ca and lee.bradshaw@ontario.ca.
The written notice must:
i. identify the specific day or days on which the application is to take place, in which case it must be given at least 24 hours and not more than seven days before the start of the application, or
ii. identify the week during which the application is to take place, in which case it must be given at least 24 hours and not more than seven days before the first day of the identified week.
The Owner shall keep records of the application of prescribed materials on the Farm Unit. For each application, those records must include the date and location of the application, the types of prescribed materials applied and application rates for each of the prescribed materials.
The Owner shall keep records of prescribed materials transferred off the Farm Unit. For each transfer, those records must include:
a. The date of the transfer;
b. The name and contact information of the transferee;
c. The location of the site receiving the transfer; and
d. The quantity, type and generating source for each of the prescribed materials transferred.
- The Owner shall keep the records referred to in conditions 6 and 7 for five years from the date of land application or transfer of the prescribed materials and shall keep those records in accordance with the requirements of s. 112 of the Regulation and at a location referred to in s. 113(1) of the Regulation.
LEGISLATION
5Section 10(1), (2), and (4) of the Nutrient Management Act sets out the Tribunal’s authority to stay a Director’s Order. It states:
No automatic stay
10(1) The commencement of a hearing before the Tribunal does not stay the operation of the certificate, licence, approval or order in respect of which the hearing is required, except if the order is an order to pay the costs of work made under section 36 or an order in respect of an administrative penalty.
Grant of stay
(2) The Tribunal may, on the application of a party to a hearing before it, stay the operation of the certificate, licence, approval or order in respect of which the hearing is required, except if the order is an order to monitor, record and report.
[…]
No stay
(4) The Tribunal shall not stay the operation of the certificate, licence, approval or order in respect of which the hearing is required if doing so would result in,
(a) danger to the health or safety of any person;
(b) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; or
(c) injury or damage or serious risk of injury or damage to any property or to any plant or animal life.
SUBMISSIONS
6The Appellant disputes the grounds for the Director’s Order. It submits that the Director has made serious allegations and the Director’s Order should be stayed until such time that the Director has provided disclosure and the allegations have been tested at a hearing. He submits that this proceeding before the Tribunal is running in parallel to Provincial Offences proceedings relating to the same subject matter and that the hearing of the present appeal should be delayed until those court proceedings have been resolved.
7The Director acknowledged that there are no statutory bars to issuing a stay for Conditions 2 and 3 of the Director’s Order on submission of an up-to-date Nutrient Management Strategy and Nutrient Management Plan. The Director’s main concern is regarding Condition 4, which requires the Appellant to ensure that liquid prescribed materials are applied in a manner that does not permit them to travel off the farm field to which they are applied. The Director argues that there is automatic stay under s. 10(1) of the Nutrient Management Act and a stay is not permitted under s. 10(4), which prohibits a stay where it could result in impairment or a serious risk of impairment to the environment. The Director submits that a stay of Condition 4 could have that result.
FINDINGS AND ANALYSIS
8As acknowledged by the Director, there are no statutory bars to issuing a stay regarding Conditions 2 and 3 of the Director’s Order on submission of an up-to-date Nutrient Management Strategy and Nutrient Management Plan. They do not constitute an order to monitor, record or report and a stay would not result in any of the harms enumerated in s. 10(4) of the Act. These conditions are at the heart of the dispute and to refuse an interim stay at this point of time could effectively render the appeal moot. Based on these considerations, the Tribunal finds that Conditions 2 and 3 should be stayed on an interim basis pending the disposition of the Stay Motion.
9Condition 4 requires that the Appellant shall ensure that liquid prescribed materials are applied in a manner that does not permit them to travel off the farm field to which they are applied. The Tribunal finds that this Condition ensures the protection of the environment and should not be stayed on an interim basis as required under s. 10(4) of the Act.
10Conditions 5 to 8 are standard conditions, which can be readily complied with, and are not at the heart of the dispute. The Tribunal finds that they should not be stayed on an interim basis.
SCHEDULING OF STAY MOTION
11Subsequent to the CMC, the Parties agreed to dates for the hearing of the Stay Motion. The Stay Motion shall be held by video hearing on Wednesday, July 19, 2023, commencing at 9 a.m.
https://global.gotomeeting.com/join/709076365
Access Code: 709-076-365
12Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections
13Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
14Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone : (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.
15Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
16The Tribunal orders that the Appellant’s motion for an interim stay is granted, in part. The Tribunal grants the Appellant’s request for an interim stay of Items 2 and 3 of the Director’s Order pending the disposition of the Stay Motion and denies the Appellant’s request for an interim stay of Items 4 to 8 of the Director’s Order.
17This Member is not seized.
18There will be no further notice.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.