Hill and Hill Farms Ltd. v. The Municipality of Bluewater

[Indexed as: Hill and Hill Farms Ltd. v. Bluewater (Municipality)]

82 O.R. (3d) 505

Court of Appeal for Ontario,

Weiler, Blair and Rouleau JJ.A.

September 18, 2006

Administrative law -- Judicial review -- Standard of review -- Standard of review of decision of Normal Farm Practices Protection Board that of reasonableness.

Administrative law -- Judicial review -- Boards and tribunals -- Normal Farm Practices Protection Board required under s. 9(1) of Farming and Food Production Protection Act to ensure that its decision was consistent with Ministry of Agriculture's Minimum Distance Separation guidelines -- Board permitting setback which was half of required setback under Ministry's MDS II guidelines -- Board's decision not reasonable -- Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, s. 9(1).

Municipal law -- By-laws -- Zoning by-laws -- Section 6(1) of Farming and Food Production Protection Act providing that no municipal by-law applies to restrict normal farm practice carried on as part of agricultural operation -- Divisional Court erring in interpreting "municipal by-law" as excluding zoning by-law -- Normal Farm Practices Protection Board having jurisdiction to determine whether particular zoning by-law restricted normal farm practice -- Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, s. 6(1).

The appellant owned and operated a pig farm. In 2001, the appellant applied to the respondent municipality for a building permit in order to increase the capacity of its pig farm, and also applied to the local Committee of Adjustment for three minor variances to accommodate the proposed construction. In a zoning by-law, the municipality had enacted the Ministry of Agriculture's Minimum Distance Separation ("MDS II") guidelines for the siting of livestock facilities from other uses. The application for variances was dismissed. The appellant then applied to the Normal Farm Practices Protection Board on the basis that its proposed expansion was a "normal farm practice" that the by-law restricted. Section 6(1) of the Farming and Food Production Protection Act, 1998 provides that "No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation." The Board held that the proposed expansion was not a normal farm practice, but that the appellant's operation would be a normal farm practice if it were relieved of the requirement under MDS II that a new or expanding agricultural operation that is located in the vicinity of an institutional use be sited double the distance required from an ordinary neighbour. The respondent appealed to the Divisional Court. The Divisional Court held that a "municipal by-law" as used in s. 6 of the Act does not include a zoning by-law, and that the Board had no jurisdiction to determine whether a zoning by-law restricts a normal farm practice. The appellant appealed.

Held, the appeal should be dismissed.

The Divisional Court erred in determining that the term "municipal by-law" as used in s. 6 of the Act does not include a zoning by-law. First, the ordinary [page506] meaning of the words "municipal by-law" includes a zoning by-law. Second, the preamble to the Act makes clear that it is not simply intended to address nuisances arising from agricultural operations but, more broadly, to address issues that arise from the competing interests of agricultural operations and adjacent properties. Because the Act is intended to address competing land uses, an inference can be drawn that the legislature intended the Board to have the power to consider zoning by-laws which regulate the use of land in a municipality. Third, s. 2(5) of the Act states that the Act is subject to the Environmental Protection Act, R.S.O. 1990, c. E.19, the Pesticides Act, R.S.O. 1990, c. P.11 and the Ontario Water Resources Act, R.S.O. 1990, c. O.40. It does not state that the Act is subject to the Planning Act, R.S.O. 1990, c. P.13. Fourth, the scheme of the Act is fleshed out by s. 6(15), which requires the Board, in deciding whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law, to consider, among other things, the effect of the practice on abutting lands and neighbours and whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement. Viewed in combination, ss. 2(5) and 6(15) lend strong support to the conclusion that the Board is empowered to consider competing land use issues and any provincial planning policies. Fifth, a narrow interpretation of the term "municipal by-law" would not accord with the purpose of the legislative scheme. The Divisional Court supported its conclusion that the term "municipal by-law" as used in s. 6(1) of the Act does not include a zoning by-law by reference to the fact that nothing in the preamble or the rest of the Act conferred authority on the Board to deal with matters that traditionally fell within the traditional scope of land use planning. Administrative law principles did not permit the Divisional Court to end the analysis after determining that the Act did not expressly empower the Board to deal with matters involving land use planning. The court was required to go on and determine whether the Board had implied jurisdiction to deal with the zoning by- law, a land use planning matter. The Divisional Court erred in holding that the Board did not have jurisdiction to consider whether the proposed expansion was a normal farm practice restricted by the zoning by-law.

Although there is a statutory right of appeal from decisions of the Board, the nature of the question before the court, a question of mixed fact and law, the expertise of the Board and its broad power to stipulate what would be a normal farm practice, suggest a more deferential standard of review than correctness. Thus, the appropriate standard of review of the Board's decision was reasonableness.

Section 9 of the Act requires that the Board's decisions under the Act be consistent with the Minister of Agriculture's directives, guidelines or policy statements. The exercise of the Board's power is therefore limited by s. 9. All that the zoning by-law in question did was enact the Ministry's MDS II guidelines. The Board's decision that the appellant need not comply with the minimum distance specified in the by-law for siting its barns was not consistent with the MDS II guidelines. The decision was therefore unreasonable.

APPEAL from the judgment of Then, Matlow and Pierce JJ. (2005), 2005 4202 (ON SCDC), 74 O.R. (3d) 352, [2005] O.J. No. 659 (Div. Ct.), allowing an appeal from the decision of the Normal Farm Practices Protection Board.

Cases referred to Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 100 B.C.L.R. (3d) 1, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, 93 C.R.R. (2d) 189, 18 C.P.R. (4th) 289, 2002 SCC 42; Canada 3000 Inc. (Re), [2006] 1 S.C.R. 865, [2006] S.C.J. No. 24, 2006 SCC 24; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, [2002] S.C.J. No. 1, 208 D.L.R. (4th) 107, 280 N.R. 268, [2002] SCC 3; [page507] Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217, [2005] S.C.J. No. 65, 204 O.A.C. 311, 259 D.L.R. (4th) 388, 341 N.R. 1, 2005 SCC 63, 19 R.F.L. (6th) 272; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24, 262 Sask. R. 1, 251 D.L.R. (4th) 604, 333 N.R. 1, 347 W.A.C. 1, [2005] 8 W.W.R. 1, 2005 SCC 25, 29 C.C.L.T. (3d) 1, 24 Admin. L.R. (4th) 1, 8 C.P.C. (6th) 199; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 219 Sask. R. 1, 211 D.L.R. (4th) 577, 286 N.R. 1, 272 W.A.C. 1, [2002] 7 W.W.R. 1, 30 M.P.L.R. (3d) 1, 2002 SCC 33, 10 C.C.L.T. (3d) 157; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 257 N.B.R. (2d) 207, 223 D.L.R. (4th) 577, 302 N.R. 1, 674 A.P.R. 207, 2003 SCC 20, 31 C.P.C. (5th) 1; Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, [2003] S.C.J. No. 54, 231 D.L.R. (4th) 385, 110 C.R.R. (2d) 233, 2003 SCC 54, 28 C.C.E.L. (3d) 1 (sub nom. Workers' Compensation Board (N.S.) v. Martin); Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, [2003] S.C.J. No. 34, 231 D.L.R. (4th) 448, 310 N.R. 122, 111 C.R.R. (2d) 292, 2003 SCC 55; Peacock v. Norfolk (County), 2006 21752 (ON CA), [2006] O.J. No. 2585, 269 D.L.R. (4th) 45, 22 C.E.L.R. (3d) 128, 213 O.A.C. 347, 22 M.P.L.R. (4th) 1 (C.A.); Pyke v. Tri Gro Enterprises Ltd. (2001), 2001 8581 (ON CA), 55 O.R. (3d) 257, [2001] O.J. No. 3209, 204 D.L.R. (4th) 400 (C.A.); Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 36 O.R. (3d) 418n, 154 D.L.R. (4th) 193, 221 N.R. 241, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006 (sub nom. Ontario Ministry of Labour v. Rizzo & Rizzo Shoes Ltd.; Adrien v. Ontario Ministry of Labour); Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, [2006] S.C.J. No. 14, 266 D.L.R. (4th) 287, 347 N.R. 144 Statutes referred to Civil Air Navigation Services Commercialization Act, S.C. 1996, c. 20, s. 55(1) Environmental Protection Act, R.S.O. 1990, c. E.19 Farm Practices Protection Act, 1988, S.O. 1988, c. 62 Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, ss. 1 [as am.], 2(5), 3, 5(4), 6, 8(2), 9 Health Protection and Promotion Act, R.S.O. 1990, c. H.7 Nutrient Management Act, 2002, S.O. 2002, c. 4, s. 6.1 Ontario Water Resources Act, R.S.O. 1990, c. O.40 Pesticides Act, R.S.O. 1990, c. P.11 Planning Act, R.S.O. 1990, c. P.13, ss. 3, 6 [as am.], 71 Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 Authorities referred to Driedger, E.A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002)

Anne-Marie Tymec and Michelle Kropp, for appellant. Valerie M'Garry, for respondent. John M. Buhlman and Megan Ferrier, for intervenor Ontario Pork Producers Marketing Board. [page508] William J. Manuel and Lise Favreau, for intervenor Ministry of the Attorney General for Ontario.

The judgment of the court was delivered by

WEILER J.A.: --

Overview

[1] This appeal concerns the jurisdiction of the Normal Farm Practices Protection Board under the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 (the "FFPPA") to grant relief from the application of a zoning by-law. Pursuant to subsections 6(3) and 6(6) of the FFPPA, the Board is empowered to determine whether an agricultural operation or proposed operation that is directly affected by a municipal by-law is a normal farm practice. [See Note 1 below] If so, then, pursuant to s. 6(1) of the Act:

6(1) No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.

[2] A central issue on this appeal is whether, as the Divisional Court held, the definition of the term "municipal by-law" in s. 6(1) of the FFPPA is narrower than the commonly understood meaning of the term so as to exclude a zoning by-law or whether, as the Board implicitly held"municipal by-law" includes a zoning by-law. If the Divisional Court's interpretation is correct, the Board has no jurisdiction to determine whether a zoning by-law restricts a normal farm practice.

[3] For the reasons that follow, I am of the opinion that the Divisional Court erred in law in adopting an interpretation of the words "municipal by-law" that excluded a zoning by-law. Thus, the Board had jurisdiction to determine whether the zoning-by-law in issue here restricted a normal farm practice.

[4] My conclusion requires me to go on and review the decision of the Board. I am of the opinion that the Board's decision should be reviewed on a standard of reasonableness. Pursuant to s. 6(15) of the FFPPA, one of the four factors the Board is required to consider [page509] in determining whether a practice is a normal farm practice is whether the by-law reflects a provincial interest as set out in a policy statement. The Board held that its decision did not contradict the provincial policy statements issued under s. 3 of the Planning Act, R.S.O. 1990, c. P.13. The provincial policy statements require that new or expanding livestock facilities comply with the minimum distances separation formulae. Inasmuch as the Board's decision cut the required minimum distance separating Hill's proposed operation from the Stanley Complex in half, the Board's conclusion that its decision was in compliance with the provincial policy statements is simply not tenable and is unreasonable.

[5] More importantly, s. 9 of the FFPPA, requires that". . . the Board's decisions under this Act must be consistent with [the Minister of Agriculture's] directives, guidelines or policy statements". The exercise of the Board's power was therefore limited by s. 9. All that By-law 22-1985 of the Township of Stanley did was enact the Minimum Distance Separation ("MDS II") guidelines of the Ministry of Agriculture for the siting of livestock facilities from other uses. The Board's decision that Hill need not comply with the minimum distance specified in the by-law for siting his barns is not consistent with the MDS II guidelines. The Board's decision is therefore unreasonable; it surpasses the limitation imposed by s. 9 and therefore cannot stand.

[6] As a result, I would dismiss the appeal.

[7] Hill owns and operates a pig farm located within the geographic Township of Stanley, Huron County. The former Township of Stanley is now part of the amalgamated Municipality of Bluewater. The by-law in issue here is Stanley Township's zoning By-law 22-1985 and it continued to apply.

[8] In 2001, the appellant applied to the respondent Municipality for a building permit in order to increase the capacity of their pig farm from 700 pigs to 1,350 pigs. Hill also applied to the local Committee of Adjustment for three minor variances to accommodate the proposed construction. Section 4.5 of this by-law provides that the erection or expansion of a livestock facility must comply with the minimum distance separation (MDS II) for new or expanding livestock facilities set out by the Ontario Ministry of Agriculture, Food and Rural Affairs. Section 29 of the by-law stipulates how the MDS II requirements are to be calculated. Two of the variances sought by Hill were for relief from the MDS II requirements. MDS II requires that a new or expanding agricultural operation that is located in the vicinity of an institutional use be sited double the distance [page510] required from an ordinary neighbour, a requirement known as "the doubling factor".

[9] Hill's farm is located next to the Stanley Township Municipal Complex, a community centre and institution. The evidence appears to be undisputed that the land upon which the complex is located had been used for municipal purposes for a number of years before the Stanley Complex was built in 1984. It was often used for picnics and ball diamonds most evenings from May until September each year. The complex houses municipal offices and an auditorium that is rented for weddings and used for other community events on a regular basis.

[10] Following a hearing, the Municipality dismissed Hill's application for variances. Hill then reduced the size of its proposed expansion plans and the number of animal units, and made a fresh application for minor variances but this application was also dismissed. Hill did not appeal that decision to the Ontario Municipal Board within the time limits for appeal.

[11] Hill next applied to the Normal Farm Practices Protection Board on the basis that its proposed expansion was a "normal farm practice" that the by-law restricted. The Board, whose decision will be discussed in greater detail, held that the proposed expansion was not a normal farm practice. The Board held, however, that Hill's proposed operation would be a normal farm practice if he were relieved of the doubling factor and in effect held he did not have to comply with the by-law.

[12] The Municipality appealed the Board's decision to the Divisional Court. The essence of the court's reasons, reported at 2005 4202 (ON SCDC), 74 O.R. (3d) 352, at paras. 21 [and] 30, is contained in the following passages:

A " municipal by-law", as used in section 6, does not include a zoning by-law. Rather, section 6(1) and (2) are intended to refer to municipal by-laws which deal with matters prohibiting or regulating nuisances and disturbances of the type referred to in the preamble of [FFPPA]. This is one of those rare instances in which a court should not give effect to the literal meaning of a word where the context shows overwhelmingly that the Legislature intended that it should be given a more restricted interpretation. . . . . .

Accordingly, it is our view that the jurisdiction of the Board is confined generally to matters involving the protection of farmers who cause inevitable nuisances and disturbances to others by giving farms the right to do so provided that their farming operations fall within the definition of 'normal farming practice'. The Board has no jurisdiction to interfere with matters pertaining to land use such as arose in the circumstances of this case. Minor variances and spot rezoning are matters that fall exclusively within the various processes recognized by the [Planning Act R.S.O. 1990, c. P.13]. Moreover, section 71 of the Planning Act provides that, in the event of conflict [page511] between the provisions of that Act and any other general or special Act, the provisions of the Planning Act prevail.

[13] The Divisional Court gave several reasons in support of its conclusion. (1) Nothing in the preamble or FFPPA itself confers authority on the Board to deal with matters involving land use planning. (2) Minor variances and spot re-zoning are matters that fall exclusively under the Planning Act which provides that in the event of conflict between the provisions of that Act and any other Act the provisions of the Planning Act prevail. (3) Land use matters, especially those which involve zoning issues, can have enormous ramifications not only for owners of the land involved but also for the community as a whole. Therefore, they ought to be considered not by the Board, but rather by those persons who have expertise in areas of law and land planning and who are required to safeguard the public interest (e.g., Committees of Adjustment or municipal councils).

[14] The appellants sought and obtained leave to appeal the decision of the Divisional Court. The issues I propose to address on this appeal are:

(1) Did the Divisional Court err in determining that the term "municipal by-law" as it is used in s. 6 of the FFPPA does not include a zoning by-law? In other words, did the Divisional Court err in determining that the Board did not have jurisdiction to decide whether a practice is a normal farm practice when the by-law that allegedly restricts the practice is a zoning by-law?

(2) If the Divisional Court erred and the Board did have jurisdiction to consider Hill's application, what is the appropriate standard of review of the Board's decision?

(3) On a proper application of the standard of review can the decision of the Board be upheld?

Analysis

1. Did the Divisional Court err in determining that the term "municipal by-law" as it is used in [s. 6](https://www.canlii.org/en/on/laws/stat/so-1998-c-1/latest/so-1998-c-1.html) of the [FFPPA](https://www.canlii.org/en/on/laws/stat/so-1998-c-1/latest/so-1998-c-1.html) does not include a zoning by-law?

[15] The reasons that lead me to conclude that the court erred in its interpretation are derived from the application of the modern approach to statutory interpretation that is set out by E.A. Driedger in the Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87: [page512]

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[16] Driedger's modern approach has been cited and relied on by the Supreme Court of Canada on numerous occasions: See e.g., Rizzo v. Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2 at para. 21; Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24, at paras. 186-87; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, [2002] S.C.J. No. 1, at para. 27; Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, [2005] S.C.J. No. 65, at para. 19; and Canada 3000 Inc. (Re), [2006] 1 S.C.R. 865, [2006] S.C.J. No. 24, 2006 SCC 24, at para. 36.

[17] As I have indicated, a central issue on this appeal is the Divisional Court's interpretation of the term "municipal by-law" in s. 6(1) as excluding a zoning by-law. That interpretation led the court to conclude that the Board lacked jurisdiction to decide whether the Municipality's zoning by-law restricted a normal farm practice. Applying Driedger's approach to statutory interpretation, there are five reasons why the Divisional Court erred in its interpretation.

[18] First, the ordinary meaning of the words "municipal by- law" includes a zoning by-law and the Divisional Court acknowledged as much.

[19] Second, regard to the object of the Act and the legislator's intent in enacting the Act as a whole means consideration must be given to the preamble of the FFPPA. The preamble of the FFPPA makes clear that it is not simply intended to address nuisances arising from agricultural operations but, more broadly, to address issues that arise from the competing interests of agricultural operations and adjacent properties. The preamble states:

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. [page513]

Because the FFPPA is intended to address competing land uses, an inference can be drawn that the legislature intended the Board to have the power to consider zoning by-laws which regulate the use of land in a municipality.

[20] Third, s. 2(5) states that the FFPPA is subject to the Environmental Protection Act, R.S.O. 1990, c. E.19, the Pesticides Act, R.S.O. 1990, c. P.11 and the Ontario Water Resources Act, R.S.O. 1990, c. O.40. It does not state that the FFPPA is subject to the Planning Act.

[21] Fourth, the scheme of the Act is fleshed out by s. 6(15) of FFPPA which requires the Board, in deciding whether a practice is a normal farm practice for purposes of the non- application of a municipal by-law, to consider, among other things"[t]he effect of the [farm] practice on abutting lands and neighbours" and "[w]hether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement". Viewed in combination, ss. 2(5) and 6(15) lend strong support to the conclusion that the Board is empowered to consider competing land use issues and any provincial planning policies.

[22] Fifth, because meaning is derived from context, statutory interpretation requires us to determine whether the ordinary meaning of the words is rationally related to the purpose of the legislation. According to Ruth Sullivan, in Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002) at p. 223, modern drafters of legislation tend to write provisions using general language applicable to a number of situations, as opposed to drafting narrow, precise provisions. The result, in her opinion, is a legislative style that is often vague and over- rather than under-inclusive. When the ordinary meaning of legislation is too broad, Sullivan states that judges employ purposive analysis to narrow its scope"by excluding applications within the ordinary meaning that are not rationally related to the purpose". Canada 3000, supra, is an example where the Supreme Court employed a purposive analysis to adopt a narrower interpretation of the word "owner" in s. 55(1) of the Civil Air Navigation Services Commercialization Act, S.C. 1996, c. 20 so as to exclude legal titleholders from being liable to pay for civil air navigational services rendered. Binnie J. held that the intent of that Act was to create a "user-pay" scheme for civil air navigational services, and that the only "users" of the civil air navigational services within the contemplation of the Act were the airlines who lease the aircraft from the legal titleholders, not the legal titleholders themselves. [page514]

[23] Here, having regard to the history of the legislation, another factor that comprises the "entire context" of the legislation, a narrow interpretation of the term "municipal by- law" would not accord with the purpose of the legislative scheme. The Act that preceded the existing legislation was the Farm Practices Protection Act, 1988, S.O. 1988, c. 62, which was repealed by the FFPPA effective May 11, 1998. The predecessor legislation protected a farmer from claims in nuisance for any odour, noise or dust resulting from the farmer's agricultural operation due to a normal farm practice provided that the farmer complied with "any land use control law", as well as with the Environmental Protection Act, the Pesticides Act, the Health Protection and Promotion Act, R.S.O. 1990, c. H.7, and the Ontario Water Resources Act. A "land use control law" under the 1998 Act was defined in s. 1 as "any Act and any regulation, plan or by-law made under the authority of an Act that restricts or prescribes the use to which land or premises may be put or the nature of business or activities that may be carried on on any land or premises". That definition captures a zoning by-law. The current FFPPA no longer requires compliance with these specified statutes before a farmer can bring an application for protection from nuisance claims: Pyke v. Tri Gro Enterprises Ltd. (2001), 2001 8581 (ON CA), 55 O.R. (3d) 257, [2001] O.J. No. 3209 (C.A.), at para. 19. However, in the event a farmer has a charge pending relating to a nuisance or disturbance due to his alleged non-compliance with the Environmental Protection Act, the Pesticides Act, the Health Protection and Promotion Act, or the Ontario Water Resources Act a court may issue an injunction or order that prohibits the farmer from carrying on the agricultural operation allegedly in contravention of the specified statutes. A "land use control law" has been omitted from the list of specified statutes for which an injunction may issue. Moreover, s. 2(5) now makes the FFPPA expressly subject to the Environmental Protection Act, Pesticides Act and the Ontario Water Resources Act. Again a "land use control law" has been omitted from the list. At the same time, the 1998 FFPPA introduced s. 6(1) which states that a municipal by-law does not apply if it restricts a normal farm practice. Assuming without deciding that the term "municipal by-law" was ambiguous and could be read either as including a zoning by-law or not, the reading that best gives effect to the intention of the legislator on a consistent basis is to be preferred over one that results in interpretations going in different directions. Here, the legislator's intention is that a "land use control law" no longer takes precedence over the FFPPA and consistency requires us to interpret municipal by-law as including a zoning by-law. For these reasons, the Divisional Court erred [page515] in interpreting the term "municipal by-law" so as to exclude zoning by-laws passed by municipalities.

[24] In omitting a "land use control law" from the FFPPA, the legislator's intention was not, however, to give the Board carte blanche to determine what constitutes a normal farm practice. The Board is required to consider four factors in determining whether a practice is a normal farm practice: s. 6(15). One of the factors is whether the by-law that allegedly restricts a normal farm practice reflects a provincial interest contained in other legislation or a policy statement: s. 6(15). Further, the Board's decision must be consistent with guidelines or policy statements of the Minister of Agriculture or those of another Ministry adopted by the Minister: s. 9. Thus, if a zoning by-law adopts a provincial policy statement of the Ministry of Agriculture, the Board's decision must be consistent with it. In addition, if a farm practice is consistent with a regulation under the Nutrient Management Act, 2002, S.O. 2002, c. 4, the Board must determine that the practice is a normal farm practice: s. 6.1.

[25] Before turning to the next issue in this appeal, further brief comment must also be made on the reasons the Divisional Court gave for its conclusion that a zoning by-law was not included in the definition of municipal by-law.

[26] In support of its conclusion that the Board did not have jurisdiction to consider zoning by-laws under s. 6(1) of the FFPPA, the Divisional Court observed that minor variances and spot re-zoning were matters coming exclusively within the various processes recognized by the Planning Act. Section 6 of the Planning Act implies that other boards will be involved in considering aspects of the Planning Act since it requires any government board or agency to consult with, and have regard for, the planning policies of the municipality.

6(1) In this section"ministry" means any ministry or secretariat of the Government of Ontario and includes a board, commission or agency of the Government.

Planning policies

(2) A ministry, before carrying out or authorizing any undertaking that the ministry considers will directly affect any municipality, shall consult with, and have regard for, the established planning policies of the municipality.

Thus, the legislature has contemplated that other administrative bodies may apply planning policies. To the extent that the Divisional Court was concerned that the Board lacked the expertise of other decision-making bodies, such as Committees of Adjustment or municipal councils, in land use matters, that fact is not, [page516] in itself, a reason for concluding that the Board should not decide the issue before it. See by analogy Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, [2006] S.C.J. No. 14.

[27] The Divisional Court also relied on s. 71 of the Planning Act which provides that, in the event of conflict between the provisions of that Act and any other general or special Act, the provisions of the Planning Act prevail. As Blair J.A. observed in dissent, but not on this point, in Peacock v. The Corporation of Norfolk (County), 2006 21752 (ON CA), [2006] O.J. No. 2585, 269 D.L.R. (4th) 45 (C.A.), at para. 82, s. 71 is not dispositive because". . . the conflict is not between the provisions of the two Acts . . .". Insofar as the Divisional Court relied on the supremacy of s. 71 of the Planning Act as a basis for holding that the Board did not have jurisdiction, the conflict is not between the provisions of the Planning Act and the Farming and Food Production Protection Act.

[28] The Divisional Court supported its conclusion that the term municipal by-law as used in s. 6(1) did not include a zoning by-law because nothing in the preamble or elsewhere in the FFPPA conferred authority on the Board to deal with matters that traditionally fell within the traditional scope of land use planning. Having made the determination that the Act did not expressly empower the Board to deal with matters involving land use planning, the Divisional Court, in accordance with administrative law principles, did not end its analysis there. The Divisional Court was required to go on and determine whether the Board had implied jurisdiction to deal with the zoning by-law, a land use planning matter. Assuming that the term"municipal by-law" is ambiguous, if a tribunal is empowered to decide questions of law, a presumption arises that it has implied jurisdiction to deal with other enactments that arise in the course of a case properly before it: Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, [2003] S.C.J. No. 54, at paras. 33 and 45; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585, [2003] S.C.J. No. 34, at paras. 8 and 41. The rationale for the presumption is that it is undesirable for a tribunal to shut its eyes to some of the law when deciding a legal issue and that doing so could ultimately lead to a denial of justice or other protracted proceedings. The presumption may be rebutted if the legislature has restricted the tribunal's jurisdiction because tribunals are creatures of statute.

[29] There can be no doubt the FFPPA gives the Board the implied power to determine questions of law. Section 8(2) of the FFPPA provides for an appeal from the decision of the Board on any question of fact, law or jurisdiction to the Divisional Court. As well, the Board may dismiss an application if it is of the [page517] opinion that the application is frivolous or vexatious. A further consideration is whether the Board fulfills a function that is adjudicative in nature. When, as here, the Board holds a hearing, and gives reasons for its decision, it is fulfilling a function that is adjudicative in nature. Nothing in the FFPPA specifically restricts the Board's power to deal with a zoning by-law enacted pursuant to the Planning Act, in determining what constitutes a normal farm practice. Thus, in addition to the modern approach to statutory interpretation, the application of administrative law principles would lead to the conclusion that the Board, in considering a question properly before it, namely, whether a farm practice was a normal farm practice, had jurisdiction to deal with the Municipality's zoning by-law.

[30] It is possible to read the Divisional Court's reasons as holding that s. 6(3) did not authorize the Board to consider whether a proposed expansion of a farming operation would be a normal farm practice as opposed to whether a proposed new operation would be a normal farm practice and that, as a result, the application was not properly before the Board. If so, I would respectfully disagree.

[31] For ease of reference s. 6(3) is reproduced below:

6(3) An application may be made by,

(a) farmers who are directly affected by a municipal by-law that may have the effect of restricting a normal farm practice in connection with an agricultural operation; and

(b) persons who want to engage in a normal farm practice as part of an agricultural operation on land in the municipality and have demonstrable plans for it.

[32] In relation to s. 6(3)(b), the Board held"We interpret this to mean that an Applicant may come to this Board with demonstrable plans for an expansion and ask the Board to determine whether or not the proposed expansion will be a normal farm practice for purposes of a non-application of a Municipal by-law." I agree with the Board's conclusion.

[33] Subsection 6(3)(b) empowers the Board to decide if a farm practice not yet engaged in would be a normal farm practice. Both new farming proposals and proposals for expansion are encompassed by the wording of the section"want to engage in a normal farm practice" and there is no principled reason to distinguish between them. Whether the proposed swine operation is a new operation or an expansion of an existing operation, the effect in terms of nuisance would be the same if the total number of animals is the same. In addition to the wording of the subsection, the preamble to FFPPA also supports the interpretation that the [page518] legislature intended to give the Board jurisdiction to deal with a proposed expansion. The preamble provides, in part, that"It is desirable to conserve, protect and encourage the development and improvement of agricultural lands . . . ." The use of the word "improvement" would clearly apply to expansions.

[34] My conclusion that the Divisional Court erred in holding that the Board did not have jurisdiction to consider whether the proposed expansion was a normal farm practice restricted by the zoning by-law is not, however, dispositive of this appeal. I must now go on to review the Board's decision. That exercise in turn requires me to determine the standard of review applicable to the Board's decisions, the second issue in this appeal.

2. What is the appropriate standard of review of the Board's decision?

[35] There are three standards for judicial review of administrative decisions: correctness, reasonableness and patent unreasonableness. In order to determine which standard applies, and therefore the extent of deference to be accorded to the decision of an administrative tribunal, a court must employ the pragmatic and functional approach. Pursuant to this approach, four factors are considered: (a) the presence or absence of a privative clause or statutory right of appeal (although the absence of a privative clause or existence of a broad right of appeal is not, in itself, determinative that less deference may be due to the tribunal's decisions); (b) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (c) the purposes of the legislation and the provision in particular; and (d) the nature of the question, namely, law, fact, or mixed fact and law: see Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 223 D.L.R. (4th) 577, at paras. 20, 27, 29.

[36] Applying those factors to the instant case, I conclude that the standard of review is reasonableness. FFPPA contains no privative clause. Rather, as noted pursuant to s. 8(2), there is a broad right of appeal to the Divisional Court on any question of fact, law or jurisdiction.

[37] However, the expertise of this Board was the subject of judicial comment by Charron J.A. in dissent, in Pyke v. Tri Gro Enterprises, supra, whose comments in this regard were adopted by the majority Sharpe and Abella JJ.A. Charron J.A. observed at para. 56 of her reasons that"The [Normal Farm Practices Protection] Board is an administrative tribunal that has been constituted with the particular expertise to achieve the purposes of the legislation. It also has the power to appoint [page519] experts to assist it in performing any of its functions: s. 8(3)." She went on to note that the Board's power to inquire into and resolve a dispute in an informal manner could present significant advantages over the traditional court system. In this regard, she pointed to the fact that all but about 1 per cent of the total complaints received by Ministry staff respecting nuisances under the FFPPA end in a Board hearing and even where a hearing does take place, the less formal hearings resulted in the entire process being more accessible to the unrepresented litigant. She also observed that the Board's extensive powers of relief could, in certain cases, be more suitable to the needs of the parties. Although the Board does not have exclusive jurisdiction over complaints created by agricultural operations, having regard to the expertise of the Board, the court was unanimous in its opinion that, absent special circumstances, such complaints should generally first be brought before the Board before any action in nuisance is brought in court.

[38] With regard to expertise, it is also important to note that the Board consists of not fewer than five members appointed by the Minister of Agriculture for a term not exceeding three years and those members of the Board who are not public servants of Ontario are paid for their services: see s. 3 generally and s. 3(7) in particular of the FFPPA. Thus, the Board is not necessarily an independent tribunal. The members of the Board need not be legally trained. They may, however, be in a better position than a court to understand how a particular agricultural operation will affect the local residents. In addition, as noted in Tri-Gro at para. 58, the Board has extensive powers of relief that may be more suitable to the needs of the parties. The Boards procedures are governed by the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22: s. 3(8) [FFPPA]. Thus, the Board's expertise favours a standard of deference on matters within its jurisdiction.

[39] Insofar as the nature of the question is concerned, the question of whether a farm practice is a normal farm practice is a question of mixed law and fact, since it involves the application of a legal standard to a set of facts: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, at para. 26.

[40] Adopting the pragmatic and functional approach, I would conclude that although there is a statutory appeal from decisions of the Board, the nature of the question before the court, a question of mixed fact and law, the expertise of the Board and its broad power to stipulate what would be a normal farm practice, suggest a more deferential standard of review than correctness. Thus, the appropriate standard of review of the Board's decision [page520] is reasonableness and this court may only intervene if the decision is shown to be unreasonable.

3. On a proper application of the standard of review, can the decision of the Board be upheld?

The Board's decision

[41] The Board considered whether Hill's proposed expansion would be a normal farm practice, and it concluded that it would not be. The Board concluded that:

Having reviewed the site specific circumstances it is our opinion that locating the swine barns where proposed by the Applicant, would not be a normal farm practice, because alternate suitable locations for the new barns are available which locations would provide an acceptable separation distance from the institutional use and at the same time be cost efficient in terms of construction, labour and management.

[42] The Board held that although the locating of the swine barns proposed by Hill would not be a normal farm practice, he should not have to bear an increased cost to expand his farming operation because of the MDS requirements in the by-law. The reasons expressed by the Board include the following: Hill was engaged in swine farming at the time the complex was built; he had no way of objecting to the by-law; it was foreseeable a conflict would develop; the purpose of the by-law was to minimize disturbance from institutional use and there had been no complaints from the existing operation.

[43] The Board also held that compliance with MDS II did not appear to be the sole determining factor as to whether a farmer was carrying on a normal farm practice. Pursuant to s. 6(15) of the FFPPA, the Board is required to consider four factors in determining whether a practice is a normal farm practice. They are:

(1) The purpose of the by-law that has the effect of restricting the farm practice.

(2) The effect of the farm practice on abutting lands and neighbours.

(3) Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement

(4) The specific circumstances pertaining to the site.

[44] Having already commented on the specific circumstances pertaining to Hill, the Board commented on the other three factors. It concluded that the purpose of requiring compliance with [page521] MDS II in the zoning by-law was to minimize the disturbance to institutional use, in this case, the odour from the expanded swine operation. As there was no evidence of complaint due to odour from Hill's existing operations, the Board "anticipated" that its decision would not have a negative effect upon the abutting land, that is, the complex, despite the increased size of the operation. The Board indicated an awareness of MDS II as being part of the agricultural code of practice as well as the 1996 Provincial Policy statement under s. 3 of the Planning Act. Section 3 of the Planning Act required that the Board"shall have regard to policy statements . . . ". The MDS II guidelines are an example of such a provincial policy statement. The Board also noted that in 1995, when MDS II was being adopted as a by-law, some local governments had adopted by-laws that lessened the setback distance for some institutional uses to a factor of 1.0. The Board further observed that municipal officials could grant a minor variance from MDS II after consulting with the Ontario Ministry of Agriculture, Food and Rural Affairs when considering a variance application.

[45] The Board held that its decision did not contradict the Policy statement.

[46] Under the heading "Decision", the Board stated:

Having considered all of the evidence, it is the opinion of this Board that the proposed expansion of the Applicant's present hog operation is not a Normal Farm Practice, but the proposed expansion would be consistent with Normal farm Practices if the Applicant makes the following specific modifications to the Practice [emphasis added]. The Board does hereby order as follows:

1. The proposed expansion must comply with (MDSII) without regard to the doubling factor with respect to the location of the institutional and recreational use, i.e. the lands of the Municipality of Bluewater, notwithstanding the provisions of the Township of Stanley Consolidated Zoning By-Law 22-185, as amended.

Comments respecting the Board's decision

[47] As noted, the Ontario Ministry of Agriculture, Food and Rural Affairs directive entitled "Minimum Distance Separation II (MDS II)" sets out minimum distance separation requirements for new or expanding livestock facilities from existing (or approved) development. In this case, compliance with MDS II guidelines required a setback of 604 metres (302 metres multiplied by a factor of two or double the distance that would ordinarily be required from the nearest neighbour). The Municipality enacted the provincial guidelines into its by-law. Section 9 of the FFPPA requires that the Board's decisions be consistent with Ministry of Agriculture directives, guidelines or policy statements. [page522]

[48] In commenting that certain municipalities had enacted by-laws requiring a lesser setback from institutional uses, the Board appears to have ignored the fact that, at the time the municipalities passed those by-laws, s. 9 did not exist.

[49] The fact that municipal officials may grant a minor variance to a by-law is irrelevant to the Board's jurisdiction. Administrative bodies only have the jurisdiction conferred on them directly or implicitly. The Board paid no heed to the limitation on the exercise of its power imposed by jurisdiction in s. 9 of the FFPPA.

[50] Moreover, the Board was engaged in determining whether an agricultural operation, which was directly affected by a municipal by-law, was a normal farm practice. The Board purported to make its order pursuant to s. 5(4)(c) of the FFPPA which gives it the power to order a farmer to modify his "practice" so that it is consistent with "normal farm practice". I have serious reservations as to whether the exercise undertaken by the Board resulted in the modification of a "normal farm practice". Both the comments of Sharpe J.A. for the majority at paras. 80 and 81, and Charron J.A., in dissent at para. 59, in Tri-Gro, supra, support the conclusion that a normal farm practice and, consequently, an order modifying that practice under s. 5(4)(c), relates to farming techniques and methods that are of a requisite standard or established and followed by similar agricultural operations, not to making orders that a farmer need not comply with a by- law concerning the minimum distance for locating his barn from another use.

[51] In deciding whether an agricultural operation that is directly affected by a municipal by-law is a normal farm practice, the Board is required to balance four factors. The third factor is whether the by-law reflects a provincial interest as expressed in a policy statement. This factor is to be considered and weighed with the other three factors. The Board did consider the guidelines in reaching its decision and therefore Hill submits that the Board had "regard for" the policy statement. [See Note 2 below]

[52] The Board's conclusion was a conclusion it drew after applying s. 6(15) of the FFPPA, not s. 9. Irrespective of what the Board may have concluded as to whether a practice is a normal farm practice after applying s. 6(15), s. 9 requires that the [page523] Board's decision be consistent with the Minister of Agriculture's directives, guidelines or policy statements.

[53] The Board's comment that its decision did not contradict the Policy statement was unreasonable. Subsection 2.1.4 of the Policy statement in effect at the relevant time required that ". . . new or expanding livestock facilities will comply with the minimum distance separation formulae". The Board's order directly contradicted the plain wording of the policy.

[54] The Board referred to the MDS II as being a "guideline". The Board, however, does not refer to the Farm Practices Position Statement issued by the Ontario Ministry of Agriculture Food and Rural Affairs in 1998, the year that the FFPPA was adopted. That Position Statement's purpose was to "clearly state the Ministry's position and to give direction on matters and issues related to farming and normal farm practices" (emphasis added). The last paragraph of the Statement refers to Minimum Distance Separation, stating, inter alia, that new or expanding livestock facilities are to comply with the MDS formulae "as per Provincial Policy Statement under the Planning Act". The direction given in this Position statement clearly falls within the provisions of s. 9 of the FFPPA. It was in effect at the time of the Board's determination. It constitutes more than a "guideline" and was binding by the Board.

[55] The Board was satisfied that the location of the barns as dictated by its decision adequately addressed the Municipality's concerns regarding separation distance. As I have indicated, the concerns were not those of the Municipality alone. The Municipality's by-law reflected a provincial policy directive with which the Board's decision was required to be consistent.

Conclusion

[56] The Board's decision cannot stand. Pursuant to s. 9(1) of the FFPPA, the Board was required to ensure that its decision in this case was consistent with the Ministry's MDS II guidelines. Compliance with the Ministry's MDS II guidelines would have required the appellant's closest proposed barn to be located 604 metres from the institutional zone occupied by the Stanley Complex. Instead, the Board permitted a setback of only 302 metres. This result -- a reduction by half of the required setback distance -- simply cannot be said to be consistent with the MDS II guidelines. The Board could not ignore s. 9 and render a decision that was inconsistent with the MDS II guidelines. Its decision was unreasonable.

[57] In the result I would dismiss the appeal. [page524]

[58] Costs of this appeal are payable by Hill to the Municipality of Bluewater and are fixed in the amount of $20,000 all inclusive.

Appeal dismissed.

Notes

Note 1: Normal Farm Practice is defined in s. 1(1). Normal Farm Practice means a practice that,

(a) 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

(b) makes use of innovatice technology in a manner consistent with proper advanced farm management practices.

Note 2: The Planning Act has since been amended and now required that decisions of Boards affecting planning matters "shall be consistent with" provincial policy statements.