ONTARIO NORMAL FARM PRACTICES PROTECTION BOARD
Gardner et al v Greenwood Mushroom Farm 2000 ONNFPPB 11
STATUTE: Farming and Food Production Protection Act 1998
BETWEEN:
Jean Gardner, Robert Nixon, Wilson Paterson and Gerald Sydney Emm -- Applicants
and
Greenwood Mushroom Farm -- Respondents
REASONS FOR DECISION
These reasons for decision follow a motion brought by the Applicants on August 31, 2000 for the purpose of determining certain legal issues before the Board receives any oral evidence in this case. The preliminary issues to be determined focus upon the decision of Ferguson, J. in Pyke et al. v. Tri Gro Enterprises Ltd. et al., released August 23, 1999 in Ontario Superior Court of Justice File 69190/95. The issues argued before the Board were:
Whether the Normal Farm Practices Protection Board ("NFPPB") is bound by the decision by Ferguson, J. to find that Greenwood Mushroom Farm is not operating with normal farm practices under the Farming and Food Production Protection Act ("the Act") or whether the Board may make its own determination of that issue.
If the Board determines that it is bound by the decision of Ferguson, J., should we adjourn any pending proceedings before the Board until the Ontario Court of Appeal provides a ruling in action 69190/95.
Whether the Board should accept transcripts of evidence from the trial as evidence in the hearing before the NFPPB.
An issue which was not raised in the materials of the parties but which developed during argument is whether the NFPPB is correctly approaching the determination of normal farm practice under the Act as a result of certain observations made by Ferguson, J. While we would not have to provide a definitive answer to that question in order to conclude the motion, we do propose to provide our views of this matter since some of the parties are currently proceeding to the Ontario Court of Appeal and it would be expedient to provide any party which disagrees with our interpretation with an opportunity to have that matter clarified by an appellate court before the parties incur the significant expense of a hearing in this application.
ISSUE #1
Mr. Good submitted that the Board is bound by the fording of Ferguson, J. to the effect that the Respondent is not operating as a normal farm practice. We have reviewed the decision of Ferguson, J. who did arrive at the conclusion that the Respondent "was never in the category of normal farm practice" (page 36).
Mr. Good argued that we are bound by the conclusion of Ferguson, J. by virtue of the legal doctrines of issue estoppel or stare decisis. Mr. Colautti takes the position that neither of these legal principles is applicable to this situation.
In reviewing this issue, we note that Jean Gardner is the only Applicant in this proceeding who was also a Plaintiff at the trial. We therefore are not dealing with identical parties.
Mr. Good suggested that the authorities of Middleton v. Middleton [1983] O.J.= No. 716 and Canam Enterprises Inc. v. Coles et al. (2000) 2000 CanLII 22340 (ON SC), 47 O.R. (3d) 446 establish the test of issue estoppel. These decisions note older cases and conclude that the elements for a fording of issue estoppel are:
that the same question has been decided;
that the judicial decision which is said to create the issue estoppel was final; and
that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised.
The application before the NFPPB does not establish issue estoppel. While one might argue whether the decision of Ferguson, J. is final when it is currently before the Court of Appeal, there is no doubt that we are dealing with different parties. Jean Gardner is the only person who is both Plaintiff in the court action and Applicant before the Board.
Mr. Good argued that the other Applicants were "privies" of the other Plaintiffs in the court action. After reviewing the manner in which the word "privies" has been defined within the cases noted above, we conclude that the Applicants Nixon, Paterson and Emm are not privies and issue estoppel is not applicable to this situation.
We also conclude that we are not bound by the findings of Ferguson, J. as a result of stare decisis. Stare decisis is a concept which relates to legal principles that are to be followed in later cases. The Applicants submit that we are bound to follow the interpretation of the Act by Ferguson, J. and his factual conclusion that the Respondent is not in compliance with normal farm practice.
We have reviewed a number of decisions which support Mr. Colautti's argument that courts are to display a considerable degree of deference to a decision of a specialised tribunal on matters which fall squarely within the tribunal's expertise. These decisions include Pezim v. British Columbia 1994 CanLII 103 (SCC), [1994] 2 S.C.R. 557 (S.C.C.), Bell Canada v. CRTC 1989 CanLII 67 (SCC), [1989] 1 S.C.R. 1722 (S.C.C.) and National Corn Growers' Association v. Canada [1992] S.C.R. 1324 (S.C.C.).
Ferguson, J. noted that the Board "obviously has expertise relating to farm procedures which I do not" (page 31) and we are concerned that Ferguson, J. did not have the opportunity to consider the decision of this Board in Gunby et al. v. Mushroom Producers' Co-operative Inc. (NFPPB Decision 99-02). This decision was released shortly after the decision of Ferguson, J. In Gunby et al. v. Mushroom Producers' Co-operative Inc., the Board had an opportunity to determine normal farm practice in the context of large-scale mushroom composting operations. Perhaps the most important conclusion of the Board in that case was that current normal farm practices create significant odours and the Board anticipated that normal farm practice in this area would be the subject of substantial change.
Because we have not yet heard evidence in this application, we cannot state whether we would agree or disagree with the conclusion of Ferguson, J. that the Respondent is not carrying on business in accordance with normal farm practice. However, we believe that this decision falls squarely within the primary role of the NFPPB and within the expertise of this Board.
Accordingly, we conclude that we are not bound by the decision of Ferguson, J. with regard to normal faun practice and that we do have the authority to receive evidence about these issues and to arrive at our own conclusions.
ISSUE #2
Because we have determined that we are not bound by the decision of Ferguson, J., it is unnecessary to deal further with this issue.
ISSUE #3
Mr. Good proposes that the Board should accept transcripts from the trial as evidence before the Board. The witnesses could provide any new evidence with regard to events that have occurred subsequent to the trial. Mr. Good's proposal would significantly reduce the time of the hearing and provide some financial savings for the parties. Mr. Colautti opposed this suggested course of action.
After reviewing the arguments, we have concluded that it would be appropriate for us to receive oral evidence from the witnesses. We are concerned that we may miss some of the important nuances within the evidence if we only review transcripts. We also anticipate that the questions asked by the lawyers in the two proceedings may differ, especially in light of the decision of this Board in Gunby et al. v. Mushroom Producers' Co-operative Inc.
Accordingly, while we certainly sympathise with the Applicants who wish to try to reduce the length and expense of the hearing through the use of transcripts, we conclude that we cannot conduct a full and fair hearing unless we receive evidence directly from the witnesses.
ISSUE #4
We believe it is appropriate to comment upon the manner in which the Board determines "normal farm practice" because we are concerned that Ferguson, J. did not fully appreciate the approach generally taken by the Board, especially pursuant to the current legislation.
The Board obviously does not have sufficient information to permit us to determine whether or not the Respondent is in compliance with normal farm practices. We have not heard any evidence on that issue and we will of course not make any determination until we do hear that evidence. However, we are concerned that Ferguson, J. placed too much weight upon the order in which competing land uses arrive in a particular area as a basis for determining normal farm practice. At pages 33-36 of his decision, Ferguson, J. reviewed the factors which led him to conclude that Greenwood Mushroom Farm was never in the category of normal farm practice. His first reason at page 35 is a conclusion that the Respondent was not in normal farm practice up until about the Spring of 1995 because the composting was not carried out properly.
The second reason of Ferguson, J. is more important to the issue which concerns us and deals with "the factors of similar circumstances, acceptability and competing land uses" (page 35).
Ferguson, J. commented that:
From the commencement of its operations GMF was not operating in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances and was not operating in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances because GMF commenced its operations in an area where the nuisance it produced was completely out of character. There is no evidence that such a fundamental change in an area's environment had ever been introduced anywhere else in similar circumstances. In any event, I do not think it is acceptable.
In my view, the intensity and frequency of the odours produced by GMF fundamentally changed the rural environment the plaintiffs enjoyed before.
The Act does not state that priority is given to the first land use in any particular area. We do not read the words "proper and acceptable" within a definition of normal farm practice to lead inevitably to a conclusion that an agricultural practice moving into an area cannot create offensive odours if that farm is otherwise operating in accordance with proper and acceptable practices.
Ferguson, J. concluded that there was "no evidence" of a similar fundamental change in an area's environment in any other similar circumstance. Ferguson, J. did not have the advantage of reading the decision of this Board in Gunby et al. v. Mushroom Producers' Co-operative Inc. where a mushroom composting facility was constructed in an existing community. We have not heard evidence which would permit us to compare the two communities and we do not intend to pre judge the situation.
However, we think it is important for the parties to be aware of the fact that the Gunby et al. v. Mushroom Producers' Co-operative Inc. situation may be the type of "fundamental change" (page 36) which was not brought to the attention of Ferguson, J. because the Board had not released its decision.
We find support for our view that priorities between competing land uses should not be determined in favour of the party which first arrived in the locality within the preamble to the Act which 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 or horticultural products.
It is in the provincial interest that in agricultural areas, 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.
Ferguson, J. also noted that "the legislature is entitled to make social policy even though it causes disadvantage to individuals" (page 29).
Accordingly, even though normal farm practices may cause "discomfort and inconvenience" to other persons, those discomforts and inconveniences are the price which may have to be paid if the Province of Ontario chooses to maintain viable agricultural businesses.
As we have recognised in the Gunby et al. v. Mushroom Producers' Cooperative Inc.,, the "proper and acceptable" practices which make up normal farm practice will change over time and we do expect farmers to develop technologies to reduce offensive odours.
In summary, we disagree with the comment of Ferguson, J. that:
It is not unreasonable to expect new types of farmers which provide a nuisance which is fundamentally different in intensity or frequency or both from those already existing in a rural area to make enquiries and desist from conducting, such operations in this new area (page 35).
Our interpretation of the Act is to the effect that new enterprises using normal farm practices may enter areas provided they satisfy the normal municipal requirements for zoning and minimum distance separation which may be applicable.
RESULT
The motion of the Applicants is dismissed. If neither party appeals any of the rulings contained in these reasons, the secretary of the NFPPB will schedule a time and place for the continuation of the hearing.
DATED this )./ day of September, 2000.
G. Edward Oldfield
Bert Vorstenbosch
Harvey Brown