NORMAL FARM PRACTICES PROTECTION BOARD

IN THE MATTER OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT S.O. 1998, C.1

AND IN THE MATTER OF AN APPLICATION TO THE BOARD

UNDER SECTION 5 OF THE FARMING AND FOOD

PRODUCTION PROTECTION ACT

BOARD FILE NUMBER: 2001-07

AND BEFORE:

Glenn C. Walker, Vice-Chair

Bert Vorstenbosch

Andrew Millar

PARTIES:

Robert Wanless, Debbie Wanless, Dean Williams and Carol Williams, Applicants

and

Larry Horsburgh and 1524829 Ontario Inc., Respondents

and

The Corporation of the Town of Minto, Responding Party

APPEARANCES:

G. Edward Oldfield, for the Applicants

Phillip B. Morrissey, for the Respondents, Larry Horsburgh and 1524829 Ontario Inc.

Guildford W. Deverell, Q.C., for the Responding Party

DECISION

PURPOSE OF THE HEARING

This hearing resulted from an application made by Robert Wanless, Debbie Wanless, Dean Williams and Carol Williams, to this Board on or about December 7, 2001 for a determination of whether the practices of a swine facility comply with normal farm practices. In their application, the Applicants allege that the agricultural operation in question is carried on at Part Lot 19 and 20, Concession 5, Township of Minto, County of Wellington and that the registered owner of that property is 1358679 Ontario Inc. They also allege that the building permits for two barns on that property were obtained personally by Larry Horsburgh who they understand to be a principal of 1358679 Ontario Inc. and they request that both he and the corporation be named as Respondents to the application.

The application is made pursuant to section 5 of the Farming and Food Production Protection Act, 1998 (hereinafter called the “Act”) and the alleged disturbance arises from odour allegedly generated by two swine barns located on the subject property.

PROCEDURAL BACKGROUND

A Pre-Hearing Conference concerning this application was held before Glenn C. Walker, Vice-Chair, on March 20, 2002 at London, Ontario. A Pre-Hearing Conference Order was made by the Vice-Chair on March 21, 2002, a true copy of which is annexed hereto as Appendix “A”. Aside from procedural issues, the Order confirms that the parties agreed and consented to the Vice-Chair also participating in the hearing as Chair of the panel pursuant to Rule 27 of the Rules of Practice and Procedure of the Board. The Order also directed the Secretary of the Board, or his designate, to write to the Municipality of the Town of Minto advising of this application and indicating that the Municipality might be added as a party on request. The Pre-Hearing Conference Order also provided that the hearing would be split into two parts. The first part of the hearing would deal with whether or not there is a disturbance from an agricultural operation and whether or not the disturbance results from the normal farm practice under subsection 5(1) of the Act. The second part of the hearing will only be required if it is established by the Board that there was a disturbance from an agricultural operation which did not result from a normal farm practice.

The Corporation of the Town of Minto did request to be added as a party to these proceedings and was added as a Responding Party by Order of the Vice-Chair dated April 25, 2002.

On consent of the parties, an Order excluding witnesses was made.

During the hearing, the evidence disclosed that an amalgamation of corporations involving 1358679 Ontario Inc. had taken place since the commencement of this application and on consent the style of cause was amended to provide that the corporate Respondent’s name be changed to 1524829 Ontario Inc.

The Board heard evidence in this application over a number of days at the Town of Minto municipal building, 5941 Highway 89, Harriston, Ontario. Evidence was taken on September 9, 10, 11, 12; November 18, 19, 20, 21, 22; December 9, 12, 13 and 16, 2002, with argument being heard on December 18 and 19, 2002. A site visit was made by the panel on September 11, 2002, pursuant to Rule 53 of the Rules of Practice and Procedure of the Board, during the luncheon break, in the presence of the Applicants and the Respondents and their counsel. During the site visit, the panel attended at the residence of Mr. and Mrs. Williams, the residence of Mr. and Mrs. Wanless, as well as the location of the swine barns. The panel did not observe any inordinate amount of odour during the site visit.

During the hearing, there were several interlocutory decisions made, which counsel for the Applicants has asked the Board to include in its reasons. The three major issues were as follows:

a) The Respondents made a motion to the Board challenging the jurisdiction of the Board with respect to the subject matter of this application. The motion was dismissed.

b) During cross-examination of the witness, Myslik, Mr. Morrissey requested that he be allowed to do a site inspection of the subject barns and report back to the Board. Mr. Oldfield initially opposed this request but subsequently suggested that the Board could appoint Mr. Myslik as a Board witness for the purpose of doing the inspection. The Board rejected the request.

c) During the direct examination of the witness, Larry Love, by Mr. Morrissey, Mr. Oldfield objected to Mr. Love being qualified as an expert without having prepared and filed a written report. The Board ruled that it was not a requirement for a witness to have prepared a written report before being able to qualify him or her as an expert.

The reasons given by the Board for these three interlocutory decisions are appended hereto as Appendix “B”.

EVIDENCE

The Applicants called 12 witnesses. The Responding Party, the Corporation of the Town of Minto, called 5 witnesses. The Respondents called 14 witnesses for a total of 31 witness. In addition, 62 exhibits were received by the Board during the hearing. In accordance with the Pre-Hearing Conference Order, the parties had completed document disclosure and at the commencement of the hearing, each filed with the Board document briefs. Document Briefs # 1 and 2 were filed by the Applicants. Document Brief #3 was filed by the Corporation of the Town of Minto, Responding Party. Document Brief #4 was filed by the Respondents. In the Exhibit list and in evidence, volume and tab numbers correspond to these document briefs. Only Document Brief #3 was accepted by the Board in its totality on consent. Any documentation in the other three Briefs which was not specifically admitted as an exhibit does not form part of the record.

The witness lists of the parties are attached as Appendix “C”. The exhibit list is attached as Appendix “D”.

AGREED UPON FACTS

At the commencement of the hearing, counsel indicated that they had agreed upon certain facts as follows:

1. The chronology and statement of facts contained at Document Brief #3, Tab 1 was accepted by all parties.

2. Counsel indicated that no survey evidence would be called and that they had agreed upon certain distances contained in surveys found at Volume 1, Tabs 6 and 7. The pertinent measurements are as follows:

a) The exterior measurements of bank barn and lean-to are 63 feet by 80 feet;

b) The distance between the Williams residence and the closest corner of Barn #1 is 1,090 feet;

c) The distance between the Williams residence and the closest corner of Barn #2 is 1,157 feet;

d) The distance between the Wanless residence and the closest corner of Barn #1 is 1,374 feet;

e) The distance between the Wanless residence and the closest corner of Barn #2 is 1,215 feet.

WITNESSES FOR THE APPLICANTS

PAUL ARTHUR BROWN

Paul Arthur Brown is an insurance broker with Brown Insurance Brokers of Palmerston, Ontario. He identified the documents in Exhibit #2 which showed the insurance coverage for the buildings on the subject farm for both the previous owner and Mr. Horsburgh.

HUGH THOMPSON

Hugh Thompson owns approximately 20 acres with farm buildings which is located southwest of the Horsburgh barns. He is a secondary school teacher and lives on the 20 acres with his wife and four children where he has some crops and a small number of farm animals. He testified that there are other swine farms in the area besides Mr. Horsburgh’s operation at Lots 19 and 20, Concession 5, Township of Minto (hereinafter called the “O’Byrne farm”) but that before Horsburgh constructed the two new barns, there was no pig odour except during the spreading of manure.

He further testified that after June, 1998 when the first barn was constructed, there was no major change, but that they started to get odour after the second barn was constructed in 1999. The odour was described as “unpleasant” to “nauseating”, occurred most often on hot, humid days, sometimes when there was a southeast wind and sometimes not.

He testified that the odour had affected the lifestyle of himself and his family so that they can no longer eat outdoors or hang their washing outside to dry. They must keep the windows closed in the summer even though they have no air conditioning as the odour can permeate the house.

Together with Debbie Wanless and John Winger, Mr. Thompson arranged a community meeting concerning the Horsburgh barns. They were concerned that a third barn would soon be going up as some excavation had been done. The first meeting was held on July 3, 2001 with approximately 40 people present. Mr. Thompson chaired the meeting. Jon Foster and Larry Horsburgh were present from the swine operation. According to Mr. Thompson, Mr. Horsburgh said that he had already entered into a contract to construct a third barn and would be going ahead, but that he would look into additives to reduce the odour.

With the permission of Mr. Horsburgh, Mr. Thompson contacted a surveyor, Alex Wilson, to go on to Mr. Horsburgh’s property to measure distances. Thompson and Debbie Wanless started to research nutrient management plans and MDSII.

Another meeting was held on July 13, 2001 to which meeting Mr. Horsburgh was not invited. Apparently the survey information was available at this time and there was some suspicion that Mr. Horsburgh’s barns did not meet MDSII.

At this meeting, it was agreed that the neighbours’ concerns would be taken to town council and this was done on July 18, 2001. Written versions of the presentations can be found in Exhibit 10.

DEBBIE WANLESS

Debbie Wanless, one of the Applicants, resides at the east one-half of Lot 19, Concession 5, Township of Minto on 50 acres which she owns together with her husband and co-applicant, Robert Wanless, Jr. This property consists of farmland and contains a house, a music studio and a barn. She has lived at this location with her husband for the past 18 years.

Mrs. Wanless indicated that she had no complaint about odour at her home until the first Horsburgh barn was built. She described the odour as being “very offensive”, “nauseating”, and “intensive”. She was not able to ascertain any pattern as to when the odour comes, although it can be prevalent after a rain or on a hot, humid day. The intensity varies from mild to “gag level”.

Mrs. Wanless found that the odour events intensified and became more frequent after the second swine barn was built. She too testified that she was not able to hang her clothes outside or to keep the house windows open and the family had to install air conditioning in June of 2001 because of this. She also testified that the family could not entertain or eat outdoors as a result of the odour. If one were to leave the windows open, the odour could get in and it was difficult to get rid of. She described the odour, when it gets in her house, as having a “sewer-like quality”.

She also described that she has burning eyes, sore throat and chronic cough and that she has sought treatment and is taking medication for this. She, however, did not provide any evidence to support odour problems being responsible for her medical condition.

When Mrs. Wanless noticed David Kopp, Chief Building Official and his assistant, Mr. Podniewicz, doing measurements near her property, she spoke to Mr. Kopp about her concerns of a second barn being built. She testified that the frequency and intensity of the odour events has increased since the second barn was built.

Mrs. Wanless testified that when she and her husband first moved to Lot 19, Concession 5, Township of Minto, they did not own the property but that it was owned by Mr. Wanless’ parents, from whom they received title in 1993. There was also no house there when they moved but they brought in a mobile home and put it on the cement pad after obtaining a building permit.

ROBERT WANLESS

Robert Wanless is 50 years old and the husband of the last witness, Debbie Wanless. In addition to the 50 acres that he and Debbie own at Lot 19, Concession 5, he has a one-third interest in other farmlands across the road, together with his parents, consisting of approximately 330 acres.

He testified that before the first barn was built on the O’Byrne farm, he noticed no odour. After the first barn was built, he could smell swine odour, which he described as being “not pleasant”. This got two or three times worse after the second barn was built and he then described the odour as a “stink” or “stench”. He too described the effect of these odour events on the family’s lifestyle, such as not being able to have the windows of the house open, having to install air conditioning, not being able to eat outside or enjoy entertaining in their flower gardens in the summer. He indicated that when the smell gets in the house, it is “like sticking your head in a septic tank”. Mr. Wanless did admit that occasionally, they do have the smell of chicken manure from the McLaughlin property across the road.

Mr. Wanless is familiar with beef cattle operations as he and his father have about 120 beef cows and calves kept at the father’s farm. He recalled the old bank barn which was on the O’Byrne farm and which has since been removed. He indicated that as a beef farmer, he would put only 100 animals in that facility. Any more would be too crowded and the cattle would not gain weight. He recollected that he never saw too many cattle there when he drove by and they appeared to be beef feeders.

BOB BRAMHILL

Bob Bramhill resides on a 100 acre parcel at Lot 18, Concession 4 in the Township of Minto, which is located southeast of the O’Byrne farm. He has not farmed since 1983 and works for the Municipality.

He too testified that he never noticed any pig odour before the first barn was built. After that, he would notice it sometimes in the evenings. After the second barn was built, the odour events became more frequent and more intense.

Mr. Bramhill also described the effects of the odour on his lifestyle, such as not being able to barbeque outside in the summer and there being times when the windows had to stay shut, even though he has no air conditioning in his home. He testified that he attended both community meetings at the Wanless home. Having had experience in beef cattle, he did not think that there would be room enough for 300 beef feeders in the old bank barn and barn yard. However, on cross-examination by Mr. Morrissey, he agreed that 40 to 44 square feet per animal as suggested by Ron Bennett, or 45 square feet per animal as suggested by Hugh Fraser, for feedlot with barn access would be adequate.

The witness testified that for the last three or four years, there has been a substantial pile of chicken manure located, from time to time, on a small lot severed from his farm, which is owned by himself and Mr. McLaughlin. McLaughlin lives across the road from this small lot. He looks after spreading this chicken manure approximately twice per year.

DEAN WILLIAMS

Dean Williams is 36 years of age and is one of the co-applicants. He and his wife, Carol, commenced cohabitation in 1988 and married in 1991. They rented some land from Mr. and Mrs. Robert Wanless, Sr., at a location where there had previously been a mobile home on a cement pad occupied by the Wanless’ son, Brent. The Williams’ installed a modular home on the cement pad which was already there, then put on an addition.

In 1999, they began considering construction of a new home as the modular was getting too small and they approached Mr. and Mrs. Wanless, Sr. about selling a lot to them.

They agreed to purchase approximately one acre from Mr. and Mrs. Wanless, Sr. for $18,000.00 plus legal fees. Mr. and Mrs. Wanless, Sr. would obtain a severance. That severance was obtained on July 31, 1998. Mr. and Mrs. Williams obtained a building permit dated August 4, 1999 and subsequently, the property was conveyed to them by Mr. and Mrs. Wanless, Sr. Before the building permit could be issued to them, their old modular home had to be moved off the cement pad, but it remained on the lot and they continued to live in it until the house had been constructed.

At the time that building permit was issued, the first swine barn had been in place for approximately one year and Mr. Williams concedes that he probably heard that the second barn was going to be built. He conceded that he was quite content to go ahead and build a new home even though it would have two swine barns across the road.

Mr. Williams was unable to give much evidence to the Board with respect to odour. He indicated that the odour came once or twice a week but that he wasn’t home a lot and therefore, didn’t really know. He conceded that he had really no concern about the first and second barn, but was more concerned about Mr. Horsburgh building a third and fourth barn. Mr. Williams conceded that of all the Applicants, he is the closest to the swine barns.

When questioned on cross-examination as to what his motivation was for making the application, Mr. Williams admitted that he had discussed with Debbie Wanless that there may be a lawsuit for damages if this application was successful.

CAROL WILLIAMS

The next witness is the wife of the witness, Dean Williams, and also a co-applicant. As indicated by her husband, she has resided across from the O’Byrne farm since 1988 when they purchased a trailer and placed it on the cement pad on the Wanless, Sr. property. Mrs. Williams indicated that there was odour after the first barn was built and there hadn’t been any before. She smelled it in the mornings and evenings mostly. After the second barn was built, the odour became more intense. She described the odour as being “strong” or “unpleasant”.

She also described how it affected the lifestyle of the family in that they had to keep their windows closed and with no air conditioning, it would get very hot in the house. She testified that since the row of trees along the roadside across from their home were taken down, the odour seems to be more intense and more frequent.

During cross-examination by Mr. Deverell, the witness admitted that odour was not a “big issue” if more barns were not built. Having been raised in the city, when she moved to the country and saw agricultural operations all around her, she knew there would be some odour, noise, dust, etcetera, from them and she was prepared to accept that. She testified that she and her husband still went ahead with the purchase from Mr. and Mrs. Wanless, Sr. even though the two barns were up and operating because the odour was not a concern to her. She also indicated on a cross-examination that she is content as long as more barns are not built.

CLAUDE HEROUX

Mr. Heroux resides at Lot 21, Concession 4, across from Hugh Thompson on a one-acre parcel, with his wife and son. The O’Byrne farm is located approximately two kilometers to the west or southwest from his property.

He testified that since the first barn was built, he has noticed more odour, especially when the wind is from the east or there is low atmospheric pressure and that this odour became more intense after the second barn was built. He too described the odour events as being unpleasant and that they affected his family’s lifestyle in that they are not able to barbeque or eat outdoors, they have to keep their windows closed and that it gets very hot because they have no air conditioning. When the smell gets into the house, he described it as “disgusting” or “nauseating”. He also described not being able to hang clothing out to dry for the same reason.

DAVID MURRAY

David Murray was qualified by the Board as an expert witness for the purpose of determining beef animal capacity. His report is filed as Exhibit 19, which includes his Curriculum Vitae. The purpose of his testimony was to assist the Board in determining the capacity of the old bank barn on the O’Byrne farm.

Mr. Murray based his calculations on 800 pounds per beef feeder. He took the median with the animals coming in at 600 pounds and leaving at 1,000 pounds.

At the beginning of the hearing, all counsel had agreed that the outside dimensions of the old bank barn, including the lean-to, were 63 feet by 80 feet, or 5,040 square feet. In preparing his report, Mr. Murray concluded that the dimensions of the old bank barn, including the lean-to, were 54 feet by 76 feet, or 4,104 square feet. He also used a calculation of 6,180 square feet for the yard. On cross-examination, Mr. Morrissey brought out that counsel had agreed that the barn dimensions were 63 feet by 80 feet, or 5, 040 square feet, and that there would be evidence forthcoming that the yard surrounding the barn and lean-to was 150 feet by 100 feet, or 15,000 square feet, being 9,960 square feet excluding the building.

In his report, Mr. Murray used the Canada Plan 1000 which requires both 50 square feet of paved area and 30 square feet of barn space to house one animal. Based on Canada Plan 1000 and the barn and yard size used by Mr. Murray, the capacity was 126 beef feeders.

Mr. Murray also used the Canadian Farm Buildings Hand Book, which had minimum recommendations for heavy feeders of 53.82 square feet for the hard-surfaced yard and 32.29 square feet for the shed area. The conclusion based on the Canadian Farm Buildings Hand Book was a maximum capacity of 127 animals.

Mr. Murray was adamant that in the circumstances of the old bank barn, there must be room in the barn for all cattle to be there at one time, notwithstanding the size of the yard. He indicated that the reason for this was that it would not be appropriate in this part of Ontario to have cattle out of doors all year long without access to shelter.

When provided with the agreed size for the barn, Mr. Murray indicated that using this new figure the barn capacity would be 168 animals. Although you could put twice as many in the yard, you would still have to have room in the barn for all animals at one time.

JACKIE VAN DE VALK

Ms. Van De Valk was qualified by the Board as an expert with respect to the calculation of MDS II. Her Curriculum Vitae is found at Exhibit 23. In essence, her testimony consisted of reviewing various MDSII calculations which she had done based on various scenarios. She also assisted the Board in understanding how MDSII was calculated. The various calculations and scenarios are set out in Exhibits 25 through 29, inclusive.

Ms. Van De Valk was adamant that in calculating capacity, it is necessary to calculate the facility capacity and not use the actual number of animals present at any particular time. She also testified that in doing measurements for MDSII, the measurement is taken from building to closest building, or from building to closest residential zone.

DONNA MICHLOWSKI

This witness resides at Lot 100, Concession “D”, Township of Minto, with her husband. She has been familiar with farming all her life. She lives some distance from the Horsburgh barns. She drives by that farm every day to get her mail and can smell pig odour from time to time. She testified that she did not notice the smell until after the first barn was constructed and then it got worse after the second barn was built.

JOHN WINGER

Mr. Winger is a farmer and he resides on 50 acres of land west of the O’Byrne farm. He owns another 280 acres across the road in both Concessions 4 and 5, Township of Minto. He has been living at this location for approximately 30 years, where he runs a cow and calf operation and has approximately 100 chickens.

He testified that he noticed pig odour after the first barn was constructed and then it got worse after the second barn was constructed, especially on hot, humid days.

WITNESSES FOR THE RESPONDING PARTY, THE CORPORATION OF THE TOWN OF MINTO

GARY COUSINS

As the Director of Planning for the County of Wellington, Mr. Cousins was qualified by the Board as an expert to give planning evidence. His Curriculum Vitae was filed as Exhibit # 32.

Mr. Cousins’ evidence was used to establish a framework relative to the transfer of responsibility for establishing and calculating Minimum Distance Separation II (MDS II) from the Province to the lower tier local governments. Provincial policy statement approved by Order-in-Council #764-96, as amended, was made by the Province under section 3 of the Planning Act and came into effect May 22, 1996. It provides in subparagraph 2.1.4 that new land uses, including the creation of lots, and new or expanding livestock facilities will comply with the minimum distance separation formulae.

In a memorandum of understanding between the Province of Ontario and the County of Wellington regarding municipal plan review, essentially the responsibility for assessing the adequacy of planning applications, including MDS, was transferred to the upper tier local government, i.e. the County of Wellington. However, the memorandum of understanding does not deal with the issuing of building permits and therefore the responsibility with respect to the calculation of MDS II is vested in the lower tier municipality, i.e. the Town of Minto, or its predecessor, the Township of Minto. The Town of Minto has complied with the provincial policy statement by establishing MDS II in its zoning by-law. It has also passed a nutrient management by-law based on a prototype approved by the County of Wellington. Mr. Cousins testified that the County adopted an official plan in 1998 and that it was approved by the Province in 1999 but that the Town of Minto does not presently have an official plan.

LINDA DICKSON

Ms. Dickson was qualified by the Board as an expert witness with respect to planning evidence. Her Curriculum Vitae was filed as Exhibit #33. She is employed as a planner with the County of Wellington and has been involved for the last five to six years with planning issues for both the Township of Minto and its successor the Town of Minto.

The Town of Minto has a Committee of Adjustments which deals with minor variances but severance applications are dealt with by the Wellington County Land Division Committee. Ms. Dickson reviews applications for severances and is available for consultation with respect to other planning issues of the Municipality.

She testified that the zoning by-law for the Township of Minto number 15-94 was in effect in 1998 and grandfathered into the by-laws of the Town of Minto on January 1, 1999 after amalgamation. By-law 15-94 had been amended in 1996 to incorporate MDS I and MDS II. The County planning department is responsible for MDS I calculations in accordance with the memorandum of understanding with the Province, whereas MDS II calculations are usually done by the lower tier municipality in connection with an application for a building permit. When the building permit for the first Horsburgh barn was issued in 1998, therefore, a calculation of MDS II was necessary but no nutrient management plan was required. When the building permit for the second barn was issued in 1999, the nutrient management by-law required the preparation of a nutrient management plan as well as the calculation of MDS II.

She also testified that it is possible to obtain a minor variance from the Committee of Adjustment from the required distance separation calculated for MDS II. Municipal officials must consult with the Ontario Ministry of Agriculture and Food (OMAF) on any such minor variance applications.

A great deal of Ms. Dickson’s evidence related to the application for consent to sever made to the Wellington County Land Division Committee by Mr. and Mrs. Wanless, Sr. for a “retirement lot”. This severed lot would eventually be the lot purchased by Dean and Carol Williams. This lot was created after an application made by Mr. and Mrs. Wanless, Sr. filed on June 5, 1998. The application specified the type and purpose of the proposed conveyance was for a retirement lot, indicated that there was an existing “modular home and garage” and that the proposed use was a “permanent home”. She questioned the legality of the “modular home” which was really a mobile home not on a concrete foundation, which was probably in violation of the zoning by-law. In any event, the severance was granted subject to three conditions, i.e. that the owner remove the mobile dwelling unit and clean up the site in a manner satisfactory to the Township of Minto, that the owner convey the balance of the farm to be added to and merged on title with the adjacent home farm, and that the new lot comply with MDS I. However, the planning department took the position that since there was already an existing dwelling on the lot to be severed, compliance with MDS I was not required. In the result, the witness indicated that, with respect to the calculation of MDS II, you would take into consideration as a nearest neighbour’s dwelling, any dwelling whether it was there legally or illegally.

JAMES MYSLIK

James Myslik is an agricultural engineer in the employ of OMAF. His Curriculum Vitae is found in Exhibit #37. He gave lengthy evidence to the Board and was qualified as an expert to answer questions relating to what advice he would give to a Chief Building Official (CBO) or planner with respect to the implementation of MDS II.

From 1998 to the present time, he has been stationed at the Fergus OMAF office, which is the office which provides resources to the Town of Minto. During this period, he was involved in training provided by OMAF to municipal officials and would have gone through MDS II calculations with municipal officials, mostly over the telephone. He stated that the whole premise of MDS is that the further that you are from the source of the odour, the less odour there is likely to be.

During the period 1999 to 2001, his office received no official complaints about odour arising from Mr. Horsburgh’s barns.

According to Mr. Myslik’s evidence, there is a recognized policy in the Ministry that if a farmer is expanding, he can make use of the capacity of existing facilities to reduce his MDS II by constructing one barn at a time with at least one year between each expansion. To the best of the knowledge of the witness, this was an unwritten policy on which there was no official position statement.

With respect to determining capacity, the witness stated that the Canada Plan Service is referenced in the implementation guidelines for MDS I but not for MDS II. However, the witness explained that the use of this particular service is not mandatory but permissive only. Mr. Myslik does use Canada Plan Service on a regular basis.

Mr. Myslik testified that the MDS II calculation software was developed by OMAF, and that there were some problems with printing the results of the calculations in the earlier versions.

Mr. Myslik testified that he has never received any complaints about odour from the Horsburgh barns at any time. Debbie Wanless did contact OMAF concerning the chicken manure pile across from her home, he understands, but she spoke to Robert Chambers, another engineer.

Based on the Canada Plan Service for heavy beef feeders, you require 30 square feet under roof plus 50 square feet of outside lot. The witness indicated that he would be surprised if the evidence to come in this hearing showed that successful beef farmers only use 40 square feet per animal, 17 inside and 23 outside, as this is only one-half of the space recommended by the Canada Plan Service. He acknowledged, however, that farmers are not obligated to use the Canada Plan Service numbers to house their livestock.

The Hugh Fraser recommendations show 45 square feet for feedlot with barn access and the publication “Beef Husbandry in Ontario” prepared by OMAF, Exhibit #40 requires 20 to 25 square feet for barn with lot. However, Mr. Myslik did indicate that farmers are not required to follow any of these charts with respect to how they operate their farms. He would agree with David Murray that the capacity of the bank barn was well below 301 animals for MDS II purposes. For the purpose of MDS II the weight that is relevant is the finishing weight.

ROBERT CHAMBERS

Mr. Chambers is also an agricultural engineer employed by OMAF at the Fergus office. He was also qualified as an expert with respect to MDS issues and his Curriculum Vitae was filed as Exhibit #43.

He too confirmed Mr. Myslik’s evidence that if a first barn has a building permit issued at least one year before the application for the building permit for the second barn, then the first barn is considered to be an existing operation for the purpose of MDS II calculation. As far as he was aware, there was no written directive or position statement for this policy.

Mr. Chambers testified that it is the practice in his office to use Canada Plan Service for the purpose of calculation of barn capacity even though the MDS II implementation guidelines do not refer to the Canada Plan Service, which are referred to in the guidelines for MDS I.

With respect to consultations for minor variance applications for relief from MDS II, he testified that they would only support an application for a minor variance where there was a need to mitigate environmental impact. It would not be their recommendation to lessen MDS II if odour were the only issue.

Mr. Chambers is a ministry specialist in swine and poultry structures for the whole province. He was therefore able to comment on many aspects of the Respondent’s facility, such as dual ventilation, 365-day liquid manure storage capacity, slatted floors and the automated feeding and watering systems. He was also familiar with the contractor who constructed the Horsburgh barns, Fritz Concrete Inc. and was aware that this was one of the larger builders of swine barns, having built a good number of them.

Mr. Chambers recalled speaking to Hugh Thompson on at least two occasions, as well as Debbie Wanless. The gist of their conversations was that they wanted to be assured that the MDS II distances were being met. However, he received no official complaints concerning odour with respect to the first two Horsburgh barns until the third barn was contemplated by the Respondents.

DAVID KOPP

David Kopp was the Chief Building Official (CBO) for the Township of Minto in 1998 and the Town of Minto in 1999. He held that position from 1994 until 2002. His training was as a “resources engineer” and he had no training in school with respect to either the Agricultural Code of Practice or MDS I and MDS II. He acknowledged attending some part day courses provided by OMAF with respect to MDS II. The first course was a general outline of the implementation guidelines and the second was possibly about the use of the software to do the calculations.

Once the MDS requirements were incorporated into the Township of Minto zoning by-law in 1996, he would be called upon to do MDS II calculations in connection with building permits. Sometimes a farmer would call and would want information as to the setback required from the nearest neighbour’s dwelling. They would give him the data required to do the calculation, he would enter the stats into the software program and then give the enquirer the resultant MDS. Quite often, these inquiries would not materialize into anything and so he would not open a file or make notes of the conversation with the farmer or keep a copy of the result if it was printed. On occasion, it would be necessary to consult OMAF for technical information and on those occasions he would not usually keep a record of the call. He estimated that between 1996 and 1999 inclusive, he probably had to do between 20 and 25 MDS II calculations when issuing a building permit. Fifteen or so of these would be expansions and five or six or so would be new livestock facilities.

In 1998, Mr. Horsburgh made application for a new swine facility for 1,000 feeder hogs on the O’Byrne farm. At that time, the Township of Minto had an interim control by-law in place which put a freeze on new livestock buildings until a nutrient management by-law could be put in place. His recollection was that he knew he could not issue a building permit because of the interim control by-law and that it was necessary for Horsburgh to obtain relief with respect to this by-law in order to proceed.

In doing the MDS II calculation for the first barn, he recalls having to reduce the number of beef feeders which could remain in the barn to 100 head but couldn’t remember from what number it was reduced. He did not go out and view the old bank barn, nor did he measure it at any time. He accepted as capacity the number of cattle the applicant told him were in the barn at the time. He did not refer to any guidelines such as the Canada Plan 1000 but basically accepted the applicant’s response to being asked “what is the maximum number of animals you could put into that barn”, although he did qualify this by saying that if it sounded “out of whack” he might call OMAF for a consultation.

When Mr. Horsburgh applied for the building permit for the second barn in 1999, Mr. Kopp was involved in taking some measurements on site. He did this because the clerk of the Municipality at the time thought it would be a good idea to verify the information as submitted by the applicant. He recalls there being some concern on the part of Mr. Horsburgh that the two barns be lined up and that there was some difficulty in doing that and maintaining MDS II as calculated. When he did the measurements, he did not concur with the measurement to the Wanless property as shown on the site sketch.

WITNESSES FOR THE RESPONDENTS, LARRY HORSBURGH AND 1524829 ONTARIO INC

LARRY HORSBURGH

Mr. Horsburgh is one of the Respondents and was also a principle of 1358679 Ontario Inc. This corporation amalgamated with another on June 18, 2002 to eventually become 1524829 Ontario Inc. Mr. Horsburgh is a principle of that new corporation as well as an officer.

The witness is 55 years of age and has been farming in Minto Township since 1987. He resides on a 100 acre farm at Lot 23, Concession 3, Minto Township where he has and is raising both hogs and beef cattle. In 1997 he became aware that the Blake O’Byrne property (O’Byrne farm) at Lots 19 and 20, Concession 5, Minto Township might be available for lease and he went to view the property which contained an old house, an old bank barn and several smaller buildings. He subsequently entered into a lease with Mr. O’Byrne which lease contained an option to buy upon the death of Mr. O’Byrne’s mother. As part of the agreement, he was going to make certain improvements to the bank barn for the purpose of making it usable for beef cattle. Mr. O’Byrne was to pay for these improvements.

The improvements, including the building of a paved feedlot, were actually made by Brian Noble and John Cherry who were hired by Mr. Horsburgh to carry out these tasks. The footprint of the feedlot and barn was 150 feet by 100 feet. Mr. Horsburgh confirmed that the barn and attached lean-to have an exterior measurement of 63 feet by 80 feet as agreed by counsel at the beginning of the hearing.

Once the improvements to the bank barn had been completed, Mr. Horsburgh purchased cattle from P.D. Dale Enterprise Ltd. and had them trucked to the farm by E. Sauder Trucking Inc. Numerous invoices from both of these companies were tendered in evidence in an attempt to establish the various comings and goings of cattle to and from Mr. Horsburgh’s leased property and his home farm. His evidence was that as of March 24, 1998, he had a total of 301 beef feeders at the O’Byrne farm.

After Mr. O’Byrne’s mother’s death, Mr. Horsburgh exercised his option to purchase the farm, which he and his wife jointly did on May 5, 1998.

On May 27, 1998, Mr. Horsburgh applied to the Township of Minto for a building permit for a 1,000 head hog finishing barn. He testified that as at the date of the application there were 301 beef feeders located in the feedlot on the O’Byrne farm. He recollects speaking to Mr. Kopp, the CBO and advising him that he wished to construct a barn for 1,000 hogs. Mr. Kopp asked him what livestock there was on the farm at that time and he told him 300 beef feeders. Kopp did an MDS II calculation and advised Mr. Horsburgh that the minimum distance separation would be 1,309 feet from the nearest neighbour’s dwelling. He did not tell Mr. Horsburgh that there was an interim control by-law in place or that the Municipality was working on a nutrient management by-law. Mr. Kopp did not ask him anything about the size of the barn or feedlot, nor did they discuss housing capacity. Nor did Mr. Kopp give the witness any instructions with respect to the completion of the application for the building permit.

He completed the application for the building permit including the site plan which shows a distance of 1,309 feet from the proposed new barn to the trailer home occupied by the Applicants, Mr. and Mrs. Williams. It also shows a distance of 1,614 feet from the proposed new barn to the residence of the Applicants, Mr. and Mrs. Wanless, Jr. The application was completed and delivered to the Township on May 27, 1998. He subsequently received a telephone call from the Reeve advising that council did not want to approve his application for relief from the interim control by-law as they were concerned he would have too many livestock units on the farm in regard to nutrient management. The Reeve suggested that Mr. Horsburgh wait until the nutrient management by-law came in. Instead of waiting, Mr. Horsburgh indicated that he would just get rid of the beef feeders. The Reeve, Jim Connell, then suggested that perhaps he could just reduce the number of cattle.

In a conversation with Kopp subsequent to his conversation with Connell, Kopp indicated that he had measured from the Williams trailer to the well on the O’Byrne farm, and that he had put in a stake and that Mr. Horsburgh would have to build “back of that”. He did not give him any measurement at this time. Nor did he offer to provide him with a copy of an MDS II printout.

Several days before the building permit was issued, Tom Fritz and Bill Clancy from Fritz Concrete Inc. attended at the O’Byrne farm with Mr. Horsburgh to locate the four corners for the foundation. Mr. Horsburgh found what appeared to be a piece of fence sticking in the ground, which he assumed to be the marker placed by Kopp. Mr. Clancy was concerned that the barn would be located in the correct position and telephoned Kopp from his truck and apparently spoke to him concerning the setback. Clancy then verified the measurements himself, suggested that the building be moved back a little bit more (approximately five to six paces) and then established the four corners of the building for the foundation.

On June 15, 1998, council approved his application for a building permit on the condition that he provide a nutrient management plan and reduce the number of beef feeders in the bank barn to 100. Having previously been advised by Connell that this would be necessary, he had retained Cargill Limited to prepare one (Exhibit #42). The building permit for the first barn (Barn #1) was issued on June 18, 1998.

Barn #1 was constructed by Fritz Concrete Inc. shortly thereafter and received 1,000 pigs on July 20, 1998. On September 23, 1998, Mr. Horsburgh applied for a building permit to build a second barn for 1,000 hogs. At this point, he had received no complaints with respect to odour from the operation. Using the first application as a precedent, Mr. Horsburgh then completed the application for the second barn without any discussion with Kopp concerning capacity or MDS II. On the site plan, he showed the distance between the second proposed barn and the Williams house trailer to be 1,350 feet. He testified that he took the 1,309 feet off the previous application and added 41 feet because the second barn was going to be 40 feet east of the first barn and he assumed that if the first barn was far enough away, the second one would be. To get the distance to the Wanless residence, he took the 1,640 feet from the first application and added 40 feet for the distance between the two barns and an additional 50 for the width of the second barn. He did not do any measurements on this occasion. He also assumed that since the 1,309 foot minimum distance separation was based on 300 beef feeders and 1,000 hogs, that he would have plenty of room as the beef cattle had been reduced to 100.

At the council meeting on October 22, 1998, Mr. Horsburgh’s application for relief from the interim control by-law was denied.

In May of 1999, Mr. Horsburgh decided that he would reapply for a building permit for a second barn and telephoned Kopp who told him that he would need another nutrient management plan. Mr. Horsburgh then contacted Cargill Limited to set about the task of preparing a new nutrient management plan. On July 6, 1999, he was contacted by Kopp who advised him that the measurements shown on his building permit application originally dated September 23, 1998 would not meet MDS II. By that date, there were no cattle left in the bank barn and Mr. Horsburgh agreed to discontinue the use of the barn and remove it from the property as of August 30, 1999. He subsequently met Kopp and his assistant, Mr. Podniewicz at the O’Byrne farm on July 6, 1999. Kopp told him that he would have to make the barns 130 feet apart in order to comply with MDS II and Mr. Horsburgh decided to make that 150 feet to be safe. He testified that on that occasion, Kopp and Podniewicz measured from the proposed location of the second barn to both the Williams and Wanless residences and Kopp advised Horsburgh that the setback would be 1,138 feet from the Williams residence. Horsburgh added an additional 20 feet to this to be safe. He then placed a stake in the ground for the contractor.

Fritz Concrete Inc. constructed the second barn as well, identical to Barn #1 and the foundation was laid out by Bill Schmidt, an employee of Fritz Concrete Inc., using the stake planted by Mr. Horsburgh on July 6, 1999. While the foundation was being poured, Mr. Horsburgh received word from Schmidt that Debbie Wanless was complaining that the new barn would be too close to her house. Kopp and Podniewicz were called and measured to the Wanless residence and told Mr. Horsburgh that the setback from that residence was satisfactory. Barn #2 was completed and filled on August 20, 1999. Up to this point, there still had not been any complaint with respect to odour from the first barn.

On August 6, 1999, the O’Byrne farm was transferred from Mr. Horsburgh and his wife to 1358679 Ontario Inc., a company in which he held an interest, together with his son-in-law, Jon Foster and his brother, Richard Horsburgh.

Each of the barns contained the newest technology in swine husbandry. Everyone who enters and leaves the barns must shower in and out. There is a center isle with 18 10-foot wide pens on each side, each holding approximately 30 pigs. The floors of the pens are all slatted and there is both fan and natural ventilation through “curtains” located all along the side walls. All feeding and ventilation is computerized.

Mr. Horsburgh testified that he had no complaints concerning odour from the swine operation until he wanted to build a third barn. In July of 2001 he was invited by Hugh Thompson to attend a meeting at the home of Mr. and Mrs. Robert Wanless, Jr. This was his first inkling that there was any alleged problem with odour and Mr. Thompson advised him that people didn’t want the third barn and that if he built it, they would make life as difficult as possible for him. He attended the meeting with Jon Foster and they were both surprised at the number of people there from several concessions away, including the media and a councillor. He testified that he was asked for a commitment that he would not build a third barn, but he was not prepared to give that.

The witness also testified concerning a meeting with himself, Dean Williams and Dean Williams’ father, Larry Williams. Dean Williams’ wife, Carol Williams, was also there for part of the meeting. Dean’s father was concerned that if Mr. Horsburgh did not meet MDS II with respect to his son’s residence, that perhaps they might not meet MDS I and suggested an agreement that if either of them needed a minor variance then the other would not object. Dean Williams seemed fairly amenable to this agreement, however, his wife, Carol, did not want to put anything in writing and indicated that she was afraid that neighbours would be mad at her if she did.

With respect to his beef feeder operation, Mr. Horsburgh testified that he has had beef feeders since 1987 and has observed no difficulties with the cattle remaining outdoors in the colder weather during the winter as long as they had a place to get out of the wind. At the O’Byrne farm, he had put up windbreaks, constructed of stacked round bales of bean straw along two sides as a windbreak. His normal practice was to bring the feeders in at approximately 600 pounds but to move or sell them before finishing weight. He specifically disagreed with Mr. Myslik and Mr. Murray that all cattle should be able to get in the barn at one time.

WILLIAM F. SCHMIDT

Mr. Schmidt has been employed as a foreman by Fritz Concrete Inc. for 15 years. He is also a shareholder, director and officer of that company. Mr. Schmidt was involved in the construction of both Barn #1 and Barn #2 on the O’Byrne farm.

He recalls that in connection with Barn #1, the four corners of the proposed building were already staked out when he arrived, that Kopp came that morning and advised him that the proposed building was “awfully close” to the minimum distance separation figure, so Schmidt moved the closest corner stake back a further four feet.

In connection with Barn #2, he was advised by Clancy to line Barn #2 up with Barn #1 with a separation distance of 150 feet. He then used a transit to locate the four corners of the foundation of Barn #2.

BILL CLANCY

Mr. Clancy is also employed by Fritz Concrete Inc. as a general manager, in addition to being a shareholder, director and officer of the corporation. The company has constructed between 200 and 300 hog barns in the last 25 years. He testified that Barns #1 and #2 are identical and that he had been building structures of that design for about one year before Barn #1 was built. He testified that it is a common type of barn for finishing hogs in Ontario, being totally slatted with storage for liquid manure below the building, with dual ventilation, i.e. natural ventilation using curtains on the side walls and fans in the pit.

The witness testified that he is quite familiar with MDS II. In connection with construction of Barn #1, he verified with a 200 foot tape and a transit, the measurement from the front edge of the Williams trailer home to the proposed new building. Finding the result to be close to what Mr. Horsburgh said he needed, they moved the building back an additional 15 to 20 feet. Clancy then called Kopp to verify the measurement that Mr. Horsburgh had given him was the correct number. He testified that the extra 15 to 20 feet was added on as the stake that Kopp had placed was just meeting the setback. He also testified that he did the MDS II calculation on paper himself to satisfy himself that the building would be properly located. In connection with Barn #1, he also did measurements to the Williams residence, measurements to the Wanless residence and the Winger residence and found them both to be way greater than the measurement to the Williams residence which he found to be the closest neighbours dwelling.

In connection with the construction of Barn #2, he again checked with Kopp to check the MDS II setback and again checked measurements. He found that they had to move the second barn further to the east to obtain the correct setback from the Williams residence and recalled that there was just a cement pad where the Williams house is now located.

LARRY LOVE

Over the objection of counsel for the Applicants, this 48 year old farmer was qualified as an expert witness to be asked questions about his particular farming operation. Mr. Love operates beef feedlots where he keeps 700 to 750 head of cattle, raising them from 600 to 700 pounds to 1,100 to 1,200 pounds. He has been doing this for 30 years. This witness also was not concerned about getting all of the cattle indoors during the wintertime, indicating that the cattle themselves prefer to stay outside and that this is better for them as there is better ventilation. He allows 40 to 50 square feet per animal for feedlot and barn with respect to capacity. He was not familiar with the Canada Plan 1000 or the Canadian Farm Buildings Handbook which call for a larger square footage per animal.

RON BENNETT

This 55 year old beef farmer from Huron County was also qualified as an expert by the Board to give evidence about beef cattle husbandry. He has been in this type of business for 40 years. He operates one of the largest family owned beef operations in Ontario with approximately 7,000 head of cattle, which he finishes to market weight.

He allows 40 to 45 square feet per animal for barn and feedlot total combined area. He also testified that it should be the choice of the animal as to whether or not it wishes to be in the barn in the winter but that it is not necessary for all cattle to be able to enter the barn at one time, if you provide windbreaks.

EDGAR SAUDER

Mr. Sauder is the owner of E. Sauder Trucking Inc. and has been hauling livestock for Mr. Horsburgh for approximately ten years. The apparent purpose of his testimony was to confirm the delivery and removal of cattle from the O’Byrne farm and to introduce the invoices from his company entered into evidence as Exhibit #22. However, aside from being a conduit for tendering the invoices as exhibits, his evidence was unhelpful to the Board due to numerous contradictions in both his testimony and some of the invoices tendered.

BRIAN NOBLE

Mr. Noble is a 51 year old self-employed carpenter. He was hired by Mr. Horsburgh to assist in making the improvements at the bank barn on the O’Byrne farm. He confirmed that the footprint for the feedlot and bank barn, including lean-to, was 100 feet by 150 feet.

ALVIN WRIGHT

Mr. Wright is Mr. Horsburgh’s brother-in-law and was employed by him from August, 1997 until May, 1998 as a general farm labourer. He was able to confirm the footprint of the feedlot including the barn and lean-to as being 100 feet by 150 feet and confirmed that there were approximately 300 head of cattle at this location in the spring of 1998.

JIM CONNELL

Mr. Connell was the Reeve of Minto Township during its last ten years before amalgamation. With respect to the application for the building permit for Barn #1, he recalled there being as issue as to whether Mr. Horsburgh would have too many animal units on the O’Byrne farm and his thought was that if Mr. Horsburgh could eliminate some of the cattle in the bank barn, then he could build the barn. This appeared to be more of an issue in obtaining from council relief from the interim control by-law rather than meeting MDS II setback. He testified that a building permit was issued for Barn #1 on the condition that the number of cattle was to be reduced to 100 animals.

DEBORAH CAMPBELL

This witness is employed by Cargill Limited as an agronomist and certified crop adviser. She was qualified as an expert to give evidence with respect to the nutrient management plan for Barn #2 (Exhibit #11). She testified that she has had contact with Mr. Horsburgh and is familiar with the O’Byrne farm although the nutrient management plan for Barn #2 was done by Laura Neubrand, who is presently on maternity leave from Cargill Limited.

She testified that Mr. Horsburgh is in compliance with his nutrient management plan and she believes that he is a good steward of the land. She was not aware of any environmental problems in connection with the O’Byrne farm. She is on that particular farm an average of three times per year, in May, July and August. She has noticed odour when she was there, but it didn’t cause her any concern as some odour is always expected from that kind of facility.

ANNE SCHNEIDER

Ms. Schneider resides on the Fifth Line at Lot 2, Concession 4, Township of Minto, which is some distance from the O’Byrne farm, but she has to pass by it five days a week on her way to work at Palmerston Grain and she has done so for the past 20 years. She testified that she had smelled manure when driving by that location, usually when it was being spread. She further testified that she did not notice any increase in these odours after Mr. Horsburgh built his two hog barns.

MARK ARMSTRONG

Mr. Armstrong was qualified by the Board as an expert to deal with issues addressed in the report he co-authored with Ronald McDonald, which was made Exhibit #56. The report also contains his Curriculum Vitae. He is a design engineer employed by Agviro Inc. since 1997 and a large part of his work is designing hog buildings. He reviewed his inspection of Mr. Horsburgh’s facility as set out in his report. As a design engineer, he is very familiar with this type of building and has knowledge that Fritz Concrete Inc. has a very good reputation in the industry. He was also familiar with the Sun North Ventilation system.

His inspection found the facility to be very clean with a good building and good equipment and he did not notice the odours to be other than he would expect. He also found the animals to be in very good health. As part of his inspection, he took measurements of ammonia levels and hydrogen sulfide levels, both of which were well within accepted limits.

The witness was surprised that there had been evidence of significant odours given by the Applicants and their witnesses. He described the operation as being as well run as any in the industry and in the “higher end of things” and stated that there was not a whole lot more that Mr. Horsburgh could do to improve his operation.

RONALD McDONALD

Mr. McDonald, who is president of Agviro Inc., was qualified as an expert witness to give evidence in connection with the report co-authored with Mark Armstrong. His Curriculum Vitae was filed as part of Exhibit #56. Although this witness did not attend the O’Byrne farm before the report was produced, he has been there twice since then, on September 3, 2002 and October 6, 2002. On his first visit, he was impressed with the cleanliness of the pens and animals and indicated that they looked quite comfortable. He also took measurements of ammonia and hydrogen sulfide and found them to be well under tolerable limits. On the October 6, 2002 visit, he gave a tour to some of the neighbours and counsel for the Applicants and again he stated that there was no excessive odour and the ammonia and hydrogen sulfide levels were very low. He stated that Mr. Horsburgh was a good operator and manager and would be ranked in the top hog producers in Ontario for his operation and that he was shocked to find that neighbours like Mr. and Mrs. Wanless, Jr. could have a significant odour problem from this operation.

On cross-examination, he stated that a certain odour is expected from a practical barn and minimum distance separation is there to keep the distance between a barn and a neighbour’s dwelling, but that a dwelling that is supposed to be 1,000 feet away would have no more odour at 995 feet as this is not an exact science.

JAMES K. WEEDEN

Mr. Weeden was qualified by the Board as an expert to give evidence with respect to MDS II. His Curriculum Vitae was filed as Exhibit #59. Mr. Weeden worked for OMAF from 1971 to 2000 and has been involved with MDS since 1976. He is presently self-employed and reviews and develops nutrient management plans.

Mr. Weeden went through the history of MDS from the original version in the Agricultural Code of Practice. He then described his two attendances at the O’Byrne farm. Assuming that these are state of the art buildings and that Mr. Horsburgh is a good manager, he cannot explain why the neighbours are smelling significant odour.

With respect to the calculation of capacity, he has used the Canadian Farm Building Code, 1977 and also the Canadian Farm Buildings Handbook. However, he indicated that although these are helpful guides, none of these are the absolute requirement. He did think that 300 head at the O’Byrne facility would be a fairly high density. He had been asked by Mr. Horsburgh to do some MDS sample calculations and based on those he felt that both barns complied with MDS II.

His position with respect to calculation of capacity for beef cattle was that you should be able to get all cattle into the barn at one time.

THE LEGISLATION – THE FARMING AND FOOD PRODUCTION PROTECTION ACT, 1998 (THE “ACT”)

This Board was established by and this Application brought under the Act. At the outset, it is appropriate to look at the preamble for some guidance as to the purpose and interpretation of this legislation. It states as follows:

“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 agriculture 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.”

This Application was made under subsection 5(1) of the Act, which provides as follows:

“A person directly affected by a disturbance from an agricultural operation may apply to the Board, in a form acceptable to it, for a determination as to whether the disturbance results from a normal farm practice.”

After a hearing, the Board may take any one of the following actions:

“5(4) After a hearing, the Board shall,

(a) dismiss the application if the Board is of the opinion that the disturbance results from a normal farm practice;

(b) order the farmer to cease the practice causing the disturbance if it is not a normal farm practice; or

(c) order the farmer to modify the practice in the manner set out in the Order so as to be consistent with normal farm practice.”

In order to properly interpret subsection (5)(1) one must look at section 1 of the Act for various definitions. The relevant definitions for this Application are:

“disturbance” means odour, dust, flies, light, smoke, noise and vibration;”

“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 innovative technology in a manner consistent with proper advanced farm management practices;”

There is no question in this matter that the Respondents are not “farmers” within the meaning of the Act nor that their operation was an “agricultural operation” within the meaning of the Act. It was also admitted by counsel for the Applicants that the only disturbance being alleged was one of odour.

Finally, it was the position of the Board and confirmed by all counsel that the onus of proof fell on the Applicants to establish that they were persons directly affected by a disturbance from an agricultural operation and that once that had been proven, the onus shifted to the farmer to establish that his practice with respect to his agricultural operation was a normal farm practice within the meaning of the Act. Both parties, of course, need only meet the onus of proof on the balance of probabilities.

THE ISSUES

The following is a summary of the issues raised in this matter and which will be dealt with in full later on in the decision:

A) Have the Applicants established on the balance of probabilities that any one of them has been affected by a disturbance in the nature of odour from the agricultural operation of the Respondents?

1. Is it sufficient that any of the four Applicants be directly affected by a disturbance or must it be Mr. and Mrs. Williams, who by admission, are closest to the subject barns?

2. Have the Applicants met the threshold test described in this Board’s decision in Lucas et. al. v. Terpstra et. al.?

B) Assuming that the answer to A) is “yes”, then the Board must determine whether or not the Respondents’ practice is a normal farm practice within the meaning of the Act. If that is established, then the Application must be dismissed. If it is not, then the Board will continue with the second part of this hearing. In determining whether or not the Respondent’s practice is a normal farm practice, the following sub-issues will be addressed:

1. Do the Respondent’s swine buildings (hereinafter referred to as Barn #1 and Barn #2) on the O’Byrne farm comply with MDS II?

a) How does one determine “existing barn capacity” under Minimum Distance Separation II (MDS II)?

b) What was the existing barn capacity of the Respondent’s bank barn in 1998 when he applied for the building permit for Barn #1?

c) What is the proper minimum distance separation between Barn #1 and the nearest neighbour’s dwelling?

d) What is the proper minimum distance separation between Barn #2 and the nearest neighbour’s dwelling?

2. In the event that minimum distance separation between either of the barns and the nearest neighbour’s dwelling is not established, is the farmer’s practice still a normal farm practice?

FINDINGS AND REASONS

A) Have the Applicants established on the balance of probabilities that any one of them has been affected by a disturbance in the nature of odour from the agricultural operation of the Respondents?

It was established at the pre-hearing conference that only disturbance complaint of the Applicants was with respect to odour. It is therefore incumbent upon the Applicants to establish on the balance of probabilities that the disturbance in the nature of odour meets the threshold test in accordance with the Lucas et. al. and Terpstra et. al. decision. In reviewing the evidence of the Applicants’ witnesses with respect to odour, it would be helpful for the reader of this decision to refer to the aerial photograph found at Document Brief #3, Tab 6.

What we shall refer to as the O’Byrne farm is indicated to be the east one-half of Lot 20 and the west one-half of Lot 19, Concession 5 and marked “1358679 Ontario Inc.”. East of that, located on the east one-half of Lot 19, Concession 5, is the farm and residence of Mr. and Mrs. Robert Wanless, Jr. Directly west of the O’Byrne Farm at the west one-half of Lot 20, Concession 5, is the farm and residence of Mr. Winger.

South of the Fifth Concession, one can locate the residence of Dean and Carol Williams at Lot 20, Concession 4. Southwest of their residence, one can find the Hugh Thompson acreage and residence and directly west of that, the Heroux residence. To the southeast of the picture one can also see the Bramhill residence, which would appear to be part of Lot 18, Concession 4.

Hugh Thompson was the first witness to testify with respect to the odour complaint. He, together with Debbie Wanless and John Winger appeared to be the catalyst in opposing Mr. Horsburgh’s operation when they found that he planned to build a third barn. Although generally a credible witness, we must weigh his evidence carefully, especially when it is clear from both his evidence and the aerial photograph that he is not only a substantial distance from Barns #1 and #2, but that the Williams residence lies between he and the Barns and their evidence disclosed a less serious odour problem.

Debbie Wanless was the next witness to testify concerning odour. As with Mr. Thompson, she appears to be a major force in opposing the Horsburgh operation. Again, although generally credible, she used very strong terminology to describe the odour and its effects and once again, she and her husband live farther away from the Barns than Mr. and Mrs. Williams, although closer than Mr. Thompson.

Robert Wanless, Debbie Wanless’ husband, testified next concerning the odour, although his descriptions were not quite as intense.

Mr. Bramhill is located even farther away than the previous witnesses but still describes receiving significant odour from the hog barns. Claude Heroux also resides some distance away but used fairly strong language to describe the odour which is received at his property.

John Winger, who resides to the west of the O’Byrne farm, also testified concerning odour, stating that it got worse after the second barn was constructed.

It is interesting to note that although there was an order excluding witnesses made at the beginning of the hearing so that the witnesses other than the Applicants themselves were excluded for previous witnesses testimony, there is a constant theme which runs through the evidence of the Applicants with respect to odour. They all describe the effects of the odour in a similar way, i.e. not being able to barbecue or entertain outdoors, not being able to hang their washing outdoors to dry, and not being able to keep their windows open in the summertime. Although the Board finds all of these witnesses to be credible, one must be cautious in weighing this evidence with respect to the issue of quantity and degree of disturbance.

The evidence of Mr. and Mrs. Williams with respect to odour is highly relevant in that they are the neighbours who are nearest to the barns. It is also important to note that they decided to go ahead and build a new home in 1999 when the first swine barn had been in place for approximately one year and the second barn was either approved or going up. Mr. Williams evidence was frankly quite weak with respect to the odour issue and he admitted on cross-examination that there had been a discussion with Debbie Wanless about a possible lawsuit for damages against the Respondents concerning the odour problem.

Although Carol Williams evidence on this issue was somewhat stronger than her husband’s, she again did not use some of the intense language used by witnesses who are farther away. To her credit, she was quite honest in admitting that having been raised in a city and moving to the country, she knew she would have to expect some odour and was prepared to accept that. She also admitted that the odour was not a “big issue” if more barns were not built.

It became apparent during the hearing that Mr. and Mrs. Williams were made Applicants to this Application as they were “the nearest neighbours dwelling” with respect to the MDS II issue, although clearly not the ones most intensely affected by the alleged odour problem. It may be also noted that it was apparent that there was some pressure on them to cooperate in an effort to either assist or remain friendly with their rural neighbours.

In looking at this issue, it is also relevant to look at the evidence of other witnesses called by the other parties. Notably, those expert witnesses, such as Deborah Campbell, Mark Armstrong, Ronald McDonald and James Weeden, all of whom had from time to time occasion to attend at the O’Byrne farm and noticed no significant levels of odour. In fact, the panel members did not observe any inordinate amount of odour during their site visit as previously indicated in these reasons as the Board is allowed to indicate on the record any observations it considers significant pursuant to Rule 53(2) of the Rules of Practice and Procedure of the Board. There was no technical evidence given with respect to odour levels and all of the evidence on this issue is anecdotal. In analyzing the evidence, we conclude that some witnesses react more strongly to odours than others and atmospheric conditions also cause a variability in odour activity. As Robert Chambers stated people in general are not happy with a swine barn next door and as odours are subjective, “tend to smell with their eyes”. This Board has previously held that whether or not a person is directly affected by a disturbance is a threshold test. One must only meet that threshold test in order to have the onus of proof shift to the farmer to prove that his practice is a normal farm practice. Although we question the credibility of some of the Applicants’ witnesses with respect to the intensity and quantity of the disturbance, for the reasons given above, we find that there is sufficient credible evidence to establish the disturbance as alleged directly affected at least some or all of the four Applicants.

It was put to the Board by counsel for the Municipality that if Mr. and Mrs. Williams, who by admission are the closest to the subject barns, do not meet the threshold test with respect to a disturbance, then the Application should be dismissed. We disagree. As long as one of the four Applicants is found to be a person who is directly affected by a disturbance and the evidence with respect to that person meets the threshold test, then the Board will proceed to investigate the issue of whether or not there is a normal farm practice. At this juncture, the issue of MDS II is irrelevant as long as the evidence supports a finding of a disturbance from any of the Applicants no matter how far away they may be located from the alleged source of the disturbance. For this reason, we find it unnecessary to make a finding as to whether or not the evidence received from Mr. and Mrs. Williams would support a finding that they met the threshold test.

B) Is the Respondents’ practice a normal farm practice?

It will be helpful at this point to set out the chronology and statement of facts agreed to by the parties at the commencement of the hearing.

1. March 16, 1998 – The Township of Minto enacted the void interim control by-law 19-98 under section 38 of the Planning Act for intensive livestock farms (void because the statutory precondition concerning a by-law or resolution directing that a review or study be undertaken was not implemented).

2. May 5, 1998 – Blake and Colleen O’Byrne conveyed to Larry and Dianne Horsburgh as joint tenants the west one-half of Lot 19 and the east one-half of Lot 20, Concession 5, in the Township of Minto (now the Town of Minto) in the County of Wellington, registered as instrument number RO794119.

3. June 15, 1998 – Minto Township council by resolution purported to exempt Lots 19 and 20, Concession 5 from by-law number 19-98 (the void interim control by-law) to allow Larry Horsburgh to build hog Barn #1 based on the nutrient management plan submitted by Horsburgh and reviewed by James Myslik of OMAF.

4. June 18, 1998 – A building permit was issued to Larry and Dianne Horsburgh for hog Barn #1.

5. July 22, 1998 – The Wellington County Land Division Committee issued a provisional consent to Robert Wanless and Blanch Wanless for severance of a new lot now owned by the Applicants, Mr. and Mrs. Williams, on Lot 20, Concession 4, containing a mobile home dwelling unit across the road from the Horsburgh property in Concession 5.

6. September 23, 1998 – Larry Horsburgh signed an application to the Township of Minto for a building permit for a second hog barn to be situated east of the first hog barn.

7. October 22, 1998 – Larry Horsburgh attended the Township of Minto council meeting to request relief from the interim control by-law in order to construct a second hog barn. A motion to provide the requested relief was defeated.

8. November 24, 1998 – Township of Minto enacted an interim control by-law for livestock farms, by-law 35-98.

9. November 27, 1998 – The County of Wellington Planning and Development Department sent a letter to Wellington County Land Division Committee to advise that the MDS I provisional consent condition for the Robert and Blanch Wanless severance of the lot now occupied by the Applicants, Williams, was satisfied because no MDS I was required for the lot to be severed due to the fact that it had an existing residence (the mobile home) on it.

10. January 1, 1999 – The Township of Minto became amalgamated with the Towns of Palmerston and Harriston and the Village of Clifford to become The Corporation of the Town of Minto.

11. March 23, 1999 – The Town of Minto enacted nutrient management by-law 99-34 and repealed the interim control by-law 35-98 for intensive livestock farms.

12. June 11, 1999 – Dean and Carol Williams submitted an application for a building permit to the Town of Minto for the lot which was the subject of the Robert and Blanch Wanless application to the Wellington County Land Division Committee for consent for a severance.

13. June 28 – 1999 – A letter was sent by the Town of Minto CBO, David Kopp, to Wellington County Land Division Committee regarding the condition in the provisional consent for Robert and Blanch Wanless for the Robert and Blanch Wanless severance application stating “the owner has removed the mobile dwelling unit and cleaned up the site in a manner satisfactory to the Town of Minto and myself”.

14. July 6, 1999 – A building permit was issued to Larry Horsburgh for a second hog (application for a building permit redated to July 7, 1999 from September 23, 1998).

15. July 19, 1999 – Final consent to the Robert and Blanch Wanless severance application given by the Wellington County Land Division Committee as evidenced by the endorsement of the Secretary-Treasurer on Deed number RO807590.

16. July 21, 1999 – A deed for Part of Lot 20, Concession 4, in the Town of Minto (formerly Township of Minto), being Part 1 on Plan 61R-8011 (the severed lot) given by Robert David Wanless and Blanch Wanless to Blanch Wanless and registered as instrument number RO807590.

17. August 4, 1999 – A building permit was issued by David Kopp, CBO for the Town of Minto, to Dean and Carol Williams for a one-storey single family dwelling on the lands created by the consent to sever and conveyed to Blanch Wanless by deed number RO807590, registered July 21, 1999.

18. August 6, 1999 – A deed from Larry and Dianne Horsburgh to 1358679 Ontario Inc. for the lands conveyed to them on May 5, 1998 and being the subject of two building permits referred to in items 4 and 14 above, was registered as instrument number RO808116.

19. August 17 and 20, 1999 – A deed for the severed lot (Part 1 on Plan 61R-8011) signed by Blanch Wanless on August 17, 1999 in favour of Carol and Dean Williams, as joint tenants, was registered on August 20, 1999 as instrument number RO 808465.

Mr. Oldfield, on behalf of the Applicants, was very clear that he relied upon one point, and one point only, in asserting that the Respondents’ operation on the O’Byrne farm was not a normal farm practice. If the Respondents met the minimum distance separation, as properly calculated, with respect to the nearest neighbour’s dwelling, with respect to both Barns #1 and #2, their operation should be viewed as a normal farm practice. However, if they did not meet the minimum distance separation with respect to either barn then their operation was not a normal farm practice. We believe that this succinctly states the Applicants’ position on this issue.

A great deal of evidence was received by the Board relative to the MDS II document, its interpretation and shortcomings. It therefore behooves us to set out some of the background and findings made with respect to the evidence relative to MDS II.

What are now known as the MDS I and MDS II documents were initially devised and incorporated into the Agricultural Code of Practice in approximately 1976. The concept and process were developed by OMAF to provide a guideline for the location of intensive livestock operations relative to residential dwellings on the theory that the greater the separation, the less conflict between incompatible land uses. The mathematical process used takes into consideration, inter alia, the type of animal housed, existing livestock facilities and dry verses liquid manure collection and storage. In 1995 the MDS I and MDS II booklets presently used were prepared by Ministry staff and were originally used by them alone. Pursuant to a Provincial Policy Statement made under section 3 of the Planning Act, which came into effect on May 22, 1996, most municipalities including the Township of Minto incorporated MDS I and MDS II into their zoning by-laws. The Township of Minto zoning by-law 15-94 was amended in 1996 by adding thereto paragraph 4.27 which for all intents and purposes incorporated the MDS I and MDS II documents issued by OMAF. With respect to MDS II, it indicated that no livestock facility shall be erected or expanded unless it complied with MDS II.

The MDS II document consists of certain background statements, implementation guidelines including definitions, a Minimum Distance Separation II datasheet, Minimum Distance Separation II calculation form and four factor tables. There are several statements in the background section of the document which are relevant to this hearing. They are as follows:

“The agricultural community generally acknowledges that even with the best management, noise and dust cannot be eliminated from certain agricultural operations and that odours are associated with livestock production. Not all rural residents, including some farmers, can accept these conditions particularly when the nuisance is perceived to exceed acceptable levels.”

“The primary purpose and use of prime agricultural areas should be for agriculture. Non-farm residents who seek the advantages of country life must be aware of the noise, odour and dust associated with normal farm practices.”

“The Minimum Distance Separation (MDS) is a tool to determine a recommended distance between a livestock facility and another land use. The objective is to prevent land use conflicts and minimize nuisance complaints from odour. MDS does not account for noise and dust.”

“Ultimately, land use planning decisions (including MDS) and good farm practices must go hand in hand to promote harmony in the rural community and to ensure agriculture as an ongoing activity.”

The implementation guidelines provide, inter alia, as follows:

“7. Minor variances to the MDS II distances can be considered based on site specific circumstances. Municipal officials must consult with Ontario Ministry of Agriculture, Food and Rural Affairs staff when considering a variance application. Conditions that meet the intent, if not the precise distance of MDS II or mitigate environmental impacts, will receive further consideration.”

In this section, the following definitions are relevant:

“housing capacity: total maximum livestock/poultry capacity for the facility at any one time”

“livestock facilities: livestock/poultry barns where agricultural animals are housed and the associated manure storage”

At the same time as the booklets were developed by OMAF staff, they also developed a computer program to do the calculation of minimum distance separation. This program was described as being fairly simple although there were problems in earlier stages with being able to print out results. The calculation can also be done using the calculation form contained in the document as evidenced by the exercise Ms. Van de Valk took us through during her testimony.

In addition to the document itself, the evidence disclosed that there is at least one unwritten, unofficial policy adopted by OMAF in applying MDS II. According to Mr. Myslik’s evidence, there is a recognized policy in the Ministry that if a farmer is expanding, he can make use of the capacity of existing facilities to reduce his MDS II by constructing one barn at a time with at least one year between each expansion. This policy was confirmed by several other witnesses.

Numerous “scenario MDS II calculations” were submitted as exhibits during this hearing for the calculation of MDS II for both Barn #1 and Barn #2. However, with respect to Barn #1, the issue is distilled to one of the existing barn capacity for the old bank barn on the O’Byrne farm when Larry Horsburgh applied on May 27, 1998 for the building permit for his first hog barn. The datasheet in the MDS II document refers to “housing capacity, existing operation”, while the calculation form refers to “existing barn capacity”. It would appear that the intention of the drafter of the document was that “housing capacity” and “barn capacity” are to be interchangeable.

When one looks to the definition section, however, there is no definition of “barn capacity” although there is one for “housing capacity” as stated above. It became abundantly clear during the hearing that this definition was of very little assistance. It essentially defines capacity as being maximum capacity but gives no direction whatsoever as to how that capacity is to be determined.

When Mr. Horsburgh applied for his first building permit on May 27, 1998, the responsibility of determining whether or not the building permit should be issued fell to David Kopp, the Chief Building Official for the Township of Minto. Although he had been CBO from 1994, it had only become necessary for him to deal with MDS II calculations since 1996 when that responsibility was downloaded by the Province to the local municipality and MDS incorporated into the municipality’s zoning by-law. There was evidence that the OMAF provided voluntary one-day training sessions, one in 1995 and one in 1997 and Mr. Kopp testified that he attended some of these courses with respect to MDS II. He also received the OMAF software and some training with respect to that. He also had done 20 to 25 MDS calculations when issuing building permits between 1996 and 1999. The Chief Building Official failed to make notes or keep records with respect to the building permit applications made by Mr. Horsburgh, which was regrettable in the circumstances. Because of this, he was unable to recall details surrounding these applications and his dealings with Mr. Horsburgh and in general his evidence was very vague leading the Board to conclude that he was not a reliable witness. Where his evidence conflicts with that of any other credible witness, we are inclined to accept the other witness’s testimony as opposed to Mr. Kopp’s.

Although we were urged to find otherwise, we find Mr. Horsburgh to be a most credible witness, although he may have been unsophisticated when it came to MDS II calculations. In May of 1998, we find that he did in fact have approximately 300 beef feeders located in the old bank barn/feedlot facility on the O’Byrne farm. His own evidence was corroborated by the invoices from P.D. Dale Enterprise Ltd. and the evidence of his brother-in-law, Alvin Wright.

We accept Mr. Horsburgh’s testimony that he did not receive any instructions from Mr. Kopp with respect to the completion of the application for the building permit or the attached site plan and that the distance shown between the proposed new barn and the Williams trailer home of 1,309 feet was given orally by Mr. Kopp to Mr. Horsburgh as the necessary separation distance.

With respect to Kopp’s calculation of MDS II, we accept Mr. Horsburgh’s version which quite frankly was not contradicted by Kopp, that he was just asked by the CBO how many head of livestock he had at his beef facility at that time.

Before the building permit could be issued, however, Mr. Horsburgh had to obtain from the council for the Township of Minto relief with respect to the interim control by-law which no one had yet realized was void. Mr. Horsburgh did apply for relief from the interim control by-law and in order to obtain the consent of council agreed to reduce the number of cattle in the bank barn to 100 head. A building permit was subsequently issued to Mr. Horsburgh on June 18, 1998.

Whatever the drafters of the MDS II document intended by the definition of “housing capacity” it was certainly not intended to be the actual number of animals housed in that livestock facility at the date of the application for a building permit despite what Mr. Kopp may have thought it meant. This interpretation would be open to abuse by an applicant who could conceivably pack the facility to the rafters on the date of the application notwithstanding good husbandry standards. David Murray, on behalf of the Applicants, James Myslik and Robert Chambers, on behalf of the Municipality, and Larry Love, Ron Bennett and James K. Weeden, on behalf of the Respondents, all gave evidence with respect to the issue of capacity. Aside from Love and Bennett, who based their opinions on actual practice, the other expert witnesses all used some form of resource to determine the maximum capacity of a facility based on square footage per animal housed. For beef feeders, the category which would have been used for Mr. Horsburgh’s operation at that time, the choices were Canada Plan Service (Plan 1000) (Document Brief #1, Tab 10 E), The Canadian Farm Buildings Handbook (Document Brief #3, Tab 10 F), Estimating the Livestock/Poultry Housing Capacity of a Barn for MDS I and MDS II by Hugh Fraser (Document Brief #4, Tab 12 as updated by Exhibit #52), and Beef Husbandry in Ontario (Exhibit #40). The Canada Plan Service is suggested as a guide in the MDS I document but not in the MDS II document. In his report, Mr. Murray used both the Canada Plan Service (Plan 1000) and The Canadian Farm Buildings Handbook. Mr. Myslik uses the Canada Plan Service (Plan 1000) on a regular basis, as does Mr. Chambers. Mr. Weeden has used The Canadian Farm Building Code, 1977 and has also used The Canadian Farm Buildings Handbook. All were quick to point out however, that there were choices of resources and that the use of the Canada Plan Service (Plan 1000) was permissive and not mandatory.

Of all the resources available, the one developed by Hugh W. Fraser, for OMAF, seems the most relevant in view of the fact that it was intended to provide guidance to building officials in Ontario “to help verify that the information provided reflects generally accepted agricultural standards regarding the capacity of an existing or proposed new barn, or barn expansion” and the application of MDS I and MDS II. All of the other resources were developed on a Canada-wide basis. Furthermore, Mr. Fraser’s material has been updated (see Exhibit #52) and some of the other resources are over 25 years old. Therefore, for the purpose of establishing capacity of an existing facility, we feel that the most appropriate tool to be used is Hugh Fraser’s document.

We find that as of May 27, 1998, there was an existing beef feeder operation located on the O’Byrne farm and that the outside dimensions of the footprint enclosing the feedlot, bank barn and attached lean-to were 100 by 150 feet for an area of 15,000 square feet.

The Hugh Fraser document has a category for “beef feeders” with a finished weight of 850 to 1,100 pounds. We find that this is the correct category to use in connection with the type of operation which Mr. Horsburgh ran on the O’Byrne farm in 1998. For that type of cattle, there are three different barn styles being firstly, bedded manure pack with feed/manure alleys, secondly, totally slatted floor barn, or thirdly, feedlots with barn access. For the latter category, the square footage per animal housed is 45 square feet and accordingly we find that, using the footprint dimensions, the feedlot with barn access located on the O’Byrne farm in 1998 had a maximum capacity of 333 beef feeders, exceeding the actual number which Mr. Horsburgh testified were present at that time. This is consistent with the evidence received from the two experienced beef farmers, Larry Love and Ron Bennett, who allowed 40 to 50 square feet and 40 to 45 square feet respectively for barn and feedlot total combined area. We also accept the evidence of these witnesses as well as Mr. Horsburgh that it is not necessary that all of the cattle be able to have access to the building at the same time provided that there is sufficient protection from exposure by way of windbreak. We find at the relevant time that Mr. Horsburgh had constructed a windbreak of bean straw for this very purpose.

At the time of the application for the building permit for Barn #1, then the capacity of his existing beef facility was 333 animals. In fact, he had at that location on the date of the application approximately 300 animals. He subsequently agreed to reduce the number to 100 in order to obtain relief from the interim control by-law. At Document Brief #3, Tab 25B, we find a Minimum Distance Separation II calculation prepared by Jackie Van De Valk, one of the expert witnesses called in this hearing. It provides for an existing housing capacity for beef feeders of 300 reduced to 100 and adding additional housing for 1,000 feeder hogs. The resultant livestock units is 300 and the required minimum distance to the nearest neighbour’s dwelling is 323 metres, or 1,059.44 feet. The agreed upon distance to the Williams residence, the nearest neighbour’s dwelling, is 1,090 feet. Therefore, Barn #1 complies with MDS II. If a calculation of MDS II was done using an existing housing capacity of 333 animals, we estimate that the minimum distance separation would be 277 metres or 909 feet.

As part of the process to obtain a building permit for a second 1,000 hog barn, we find that Mr. Horsburgh agreed to get rid of the beef feeders and demolish the old bank barn and feedlot, which in fact he did. An MDS II calculation of minimum distance separation for Barn #2 can be found at Document Brief #3, Tab 24, page 3. It provides for an existing housing capacity for beef feeders of 100 being reduced to zero and an existing housing capacity for feeder hogs of 1,000, being increased to 2,000. The minimum distance separation to the nearest neighbour’s dwelling is 347 metres, or 1,138.45 feet. The actual distance from Barn #2 to the nearest neighbour’s dwelling, the residence of Mr. and Mrs. Williams, is 1,157 feet. Therefore Barn #2 also complies with MDS II.

In the result, the Respondents have proven compliance with MDS II and we therefore conclude that the Respondent’s operation is a normal farm practice and that this Application must be dismissed.

Although this Application will be dismissed for the reasons given above, there was a great deal of evidence and argument directed to the issue of whether or not strict compliance with MDS II is required in order to have a normal farm practice. Although any statements of the Board on this issue will be obiter dicta only, we believe that it is important that this issue be clarified. Let us assume for the purpose of this exercise that the existing housing capacity of the bank barn in 1998 was 160 beef feeders, which is the number suggested to us as being appropriate by counsel for the Applicants during argument. Based on the fourth scenario MDS II calculation done by Mr. Weeden and found at Exhibit #53, 160 beef feeders reduced to 100 and adding the first 1,000 feeder hog barn would result in a minimum distance separation of 401 metres or 1,316 feet, a shortfall of 226 feet from the actual measurement of 1,090 feet or a shortfall of approximately 17%. If this had been the finding of this Board, the Applicants argue that that alone should be sufficient for the Board to find that Mr. Horsburgh was not carrying on a normal farm practice. This, notwithstanding the fact that we accept all of the evidence of Mr. Horsburgh and his expert witnesses, who have testified as to the exemplary nature of his hog operation. We might add that this evidence was undisputed.

The compliance or non-compliance with MDS II, does not on its own, appear to us to be the sole determining factor as to whether or not a farmer is carrying on a normal farm practice. If a farmer who was in non-compliance with MDS II but otherwise practicing in accordance with the accepted standards of the industry is not carrying on a normal farm practice, then is a farmer who does not carry on his business using the accepted standards carrying on a normal farm practice just because he meets MDS II. We think unfortunately that the question is much more complex.

In his argument, Mr. Deverell touched on this issue by referring to the Ontario Court of Appeal decision in Pyke et. al. v. Tri Gro Enterprises Ltd. et. al (2001) 2001 CanLII 8581 (ON CA), 55 O.R. (3D) 257. At paragraph 71, Mr. Justice Sharpe, J.A. states:

“It appears to be common ground that the inquiry into whether a farming operation qualifies as a “normal farm practice” is both fact and site-specific. I agree with Charron J.A. at para. 42 that “the determination of what constitutes a “normal farm practice” must be made in a proper context, and that, depending on the practice under review, the context may be broad indeed, involving the consideration of many relevant factors including the proximity of neighbours and the use they make of their lands.”

In the dissenting opinion of Justice Charron the following appears at paragraph 42:

“I agree, and the parties do not dispute, that the determination of what constitutes a “normal farm practice” must be made in a proper context, and that, depending on the practice under review, the context may be broad indeed, involving the consideration of many relevant factors including the proximity of neighbours and the use they make of their lands.”

Justice Sharpe, J.A. later goes on to state at paragraph 78:

“In my opinion, a broad approach, relating the inquiry to the specific circumstances pertaining to the site with a view to striking an appropriate balance between the rights of affected property owners and nuisance creating farming operations is borne out by the language of the statute. I agree with the trial judge that the legislative language indicates that there should be a qualitative or evaluative element to the interpretation of “normal farm practice”. As I read both the 1988 and the 1998 Acts, farming operations do not automatically gain statutory protection by showing that they follow some abstract definition of industry standards.”

Continuing on at paragraph 79:

“First, both statutes require that the “circumstances”, be taken into consideration. This means that the same practice may qualify as a normal farm practice in one situation, but not in another where the circumstances are different. Section 6(15) directs the Board to consider, among other factors, “the specific circumstances pertaining to the site.” Although these provisions do not apply directly to the circumstances of the present case, the phrase “normal farm practice” should be given a consistent interpretation and, if “the specific circumstances pertaining to the site” bear upon the definition of “normal farm practice” in one context, it would be anomalous to exclude site-specific considerations from the definition in another context.”

We believe that if MDS II were not complied with there would be other considerations which would have to be taken into account in determining whether or not the Respondents were operating a normal farm practice. The following are some of the considerations which would be looked at:

1. The degree and extent of the disturbance.

As previously stated in these reasons, although the Board found that the threshold test had been met with respect to the odour complaint, the Board did not feel that the disturbance was as extensive or as serious as the Applicants’ witnesses may have wanted it to believe. In the Pyke decision, the trial judge did take both the degree and extent of the disturbance into consideration and the Court of Appeal confirmed that this was a proper approach.

2. Excellent operator.

Another relevant factor is the uncontroverted evidence of both Ronald McDonald and Mark Armstrong that Mr. Horsburgh ran a good operation which was as well run as any in the industry. Notwithstanding that both Mr. Armstrong and Mr. McDonald were retained by Mr. Horsburgh to prepare a report and to testify in these proceedings, the Board takes notice of the fact that expert witnesses are expected to remain impartial.

3. Legality of Williams and Wanless residences.

The issue was also raised and evidence tendered with respect to the legality of the Williams and Wanless residences and therefore their position to complain about Mr. Horsburgh’s operation.

With respect to the Wanless residence, the issue was raised that it is basically a mobile home located on a farm lot, albeit, with the issuance of a building permit. It was established to the satisfaction of the Board that the Township of Minto zoning by-law does not permit a mobile home on a farm in these circumstances and did not at the time that the mobile home was located at its present location. Linda Dickson, a planner with the County of Wellington, also confirmed that both a building permit and zoning compliance are required in order to establish a legal use.

There were a number of references in the evidence to the severance application made by Mr. and Mrs. Wanless, Sr. to sever the one-acre lot from their farm and sell it to Mr. and Mrs. Dean Williams. For whatever reason it was justified, the severance was granted and finalized. However, the meeting of one of the conditions on the severance and the issuing of a building permit to Mr. and Mrs. Williams was predicated on the opinion of a planner at the County level that Mr. and Mrs. Williams did not need to comply with MDS I as there had been an existing dwelling located on the lot before the severance. The question then arose as to whether or not this was a correct interpretation and there was some evidence to the effect that MDS I should have applied; however, no MDS I calculation was provided to us to show whether or not it was met.

These issues were raised directed to the point that the Applicants did not come to the Board with “clean hands” and therefore should not be granted relief. Although this is an equitable concept and there was no authority provided to us that an administrative tribunal such as this could recognize this as a defence, certainly it is one more factor to be taken into consideration in deciding whether or not the Respondents have been carrying on a normal farm practice.

4. Motive for Complaint.

In his evidence, Dean Williams made reference to discussions with Debbie Wanless of a possible lawsuit arising out of this fact situation. We accept his evidence that such a discussion took place and if in fact the motive of the Applicants in bringing this Application was to establish the groundwork for a legal action for damages, then that would become another factor for consideration.

5. Minor Variance.

The evidence supported the position that the MDS I and MDS II documents themselves are guidelines only. When incorporated into zoning by-laws, they become “enhanced” and compliance must be achieved in order to obtain a building permit. However, even then they are subject to minor variances to be based on site-specific circumstances. The very fact that these separation distances are subject to some variation in appropriate circumstances supports a position that there is some room to maneuver and still have a normal farm practice.

6. Willingness of the farmer to comply.

The Board was impressed by the evidence of Mr. Horsburgh and also of the employees of Fritz Concrete Inc. with respect to Horburgh’s attempts to comply with the minimum distance separation as indicated to him by the CBO, David Kopp. On several occasions, stakes and locations were moved just a little farther away to make sure that the separation distance was enough. And on the occasion of building both barns, Mr. Clancy checked the MDS calculation himself or spoke to Mr. Kopp and also checked measurements. All of the evidence points to a farmer who is trying his very best to comply with the legislation.

In conclusion, the Board would take all of the above factors into consideration in determining whether or not the Respondents were carrying on a normal farm practice, notwithstanding that there was a deficiency of 226 feet to the nearest neighbour’s dwelling, and would still conclude that the Respondents were carrying on a normal farm practice notwithstanding this deficiency.

We do not believe that the Lucas et. al. v. Terpstra et. al. stands for the proposition that non-compliance with MDS II by itself can determine whether or not an operation is a normal farm practice. As stated above, the issue is much more complex and a broad view rather than a narrow one must be taken.

In any event, the Lucas et. al. and Terpstra et. al. decision is distinguishable in many ways. In that particular case, the farmer made the choice to locate the buildings where he did with full knowledge that the chosen location did not meet provincial minimum distance separation guidelines and that a significant risk existed that the Applicants would be adversely affected by intensive odour. He did so without apparent concern for the impact the potential odour might have on his neighbours and the resulting location of the barns represented a violation of accepted customs of other agricultural operators locating their intensive livestock barns in that area. Furthermore, the minimum distance separation deficiency approached 50%, substantially more than the deficiency in this case if the capacity of the existing barn had been found to be 160 beef feeders.

DECISION

Having considered all of the evidence, it is the opinion of this Board that the farming operation of the Respondents does comply with MDS II and is a normal farm practice. Consequently, this Application is dismissed.

The panel wishes to take this opportunity to thank all counsel involved in this hearing for excellent and well prepared presentation of the evidence and argument during the course of this long hearing.

DATED: March , 2003 ____________________________

GLENN C. WALKER

BERT VORSTENBOSCH

ANDREW MILLAR

APPENDIX “A”

NORMAL FARM PRACTICES PROTECTION BOARD

IN THE MATTER OF AN APPLICATION TO THE BOARD

UNDER SECTION 5 OF THE FARMING AND FOOD

PRODUCTION PROTECTION ACT

BOARD FILE NUMBER 2001-07

BEFORE:

Glenn C. Walker, Vice-Chair

PARTIES:

Robert Wanless, Debbie Wanless, Dean Williams and Carol Williams, Applicants and

Larry Horsburgh and 1358679 Ontario Inc., Respondents

APPEARANCES:

G. Edward Oldfield, for the Applicants

Philip D. Morrissey, for the Respondents

PRE-HEARING CONFERENCE ORDER

A pre-hearing conference was conducted in this matter on March 20, 2002 at London, Ontario. Following submissions from the parties, the hearing will proceed on the following basis:

1. All of the parties have consented to the Vice-Chair, Glenn C. Walker, conducting this pre-hearing conference and also participating in the hearing, as Chair of the panel, pursuant to Rule 27 of the Rules of Practice and Procedure of the Board.

2. Mr. Oldfield raised the issue of the Municipality of the Town of Minto being added as a party to these proceedings. The secretary of the Board, or his designate, shall forthwith write to the Municipality of the Town of Minto advising it of this application, providing it with a copy of the applicant’s application dated December 7, 2001 and advising the Municipality that it may, by motion, apply to the Board to be added as a party if it has a direct interest in the result of the hearing or an interest in the proceedings.

3. Mr. Oldfield acknowledged on behalf of the applicants that the “disturbance” complained of is one of odour only, but the parties were not able to agree on any other issues, all of which will have to be dealt with at the hearing by way of evidence and argument.

4. Not less than thirty days before the date of the commencement of the hearing, the applicants shall serve on the respondents and file with the Board together with proof of service a list of all documents which the applicants intend to rely upon at the hearing, including all photographs, maps, plans and expert reports. The applicants shall include with the document list forwarded to the respondents only, legible copies of all documents including photographs, maps, plans and expert reports listed in the document list. On or before twenty days before the commencement date of the hearing, the respondent shall serve upon the applicants and file with the Board together with proof of service a list of all documents which the respondents intend to rely upon at the hearing, including all photographs, maps, plans and expert reports. The respondents shall include with the document list forwarded to the applicants only, legible copies of all documents including photographs, maps, plans and expert reports listed in the document list. No document, as referred to herein, shall be filed with the Board prior to the commencement of the hearing. No party shall tender as an exhibit or refer to in the testimony of any witness called by him, any document not listed on his document list, without leave of the Board.

5. Not less than thirty days before the date of the commencement of the hearing, the applicants shall serve on the respondents and file with the Board together with proof of service a list of all witnesses intended to be called at the hearing of this matter, including all expert witnesses. On or before twenty days before the commencement date of the hearing, the respondents shall serve upon the applicants and file with the Board together with proof of service a list of all witnesses intended to be called at the hearing of this matter, including all expert witnesses. No party shall call as a witness any witness not listed on his witness list, without leave of the Board.

6. Counsel for each of the parties has requested of the other by way of letter certain documents which they believe to be relevant to the proceeding and which have not yet been supplied in whole or in part. I have asked counsel to work out this matter of production between themselves, failing which, a motion for production may be brought provided that it is filed with the Board on or before the 19^th day of April, 2002.

7. The parties have agreed to permit the expert(s) of the opposing parties to attend on their respective properties for the purpose of conducting tests as to the quantitative aspect of the odour. It is understood that such testing may be done over a period of time and written notice of the intention to exercise this right shall be given by the party seeking to do the testing notifying the other party, through counsel, at least seven days prior to the commencement of the testing. The respondents also agree to allow any expert employed for this purpose by the applicants access to the interior of the barns in question and also agree to advise applicants’ counsel or the expert in question as to where the agricultural operation is in its “production cycle” and how many pigs are located in each barn at the time of the testing.

8. Neither counsel was able to give an exact number of witnesses intended to be called; however, it was agreed that the hearing would probably take five to seven days. Mr. Oldfield, on behalf of the applicants, suggested that the hearing be split into two separate hearings for distinct purposes. Mr. Morrissey had no objection to this proposal. After consideration, this would appear to be a wise plan in view of the projected length of the hearing and the anticipated expense which the parties may be put to for expert reports in connection with the remedial portion of the hearing. It is therefore ordered that the hearing will take place in two parts. The first part of the hearing will deal with whether or not there is a disturbance from an agricultural operation and whether or not the disturbance results from the normal farm practice under subsection 5(1) of the Act. The second part of the hearing will only be required if it is established by the Board that there was a disturbance from an agricultural operation which did not result from a normal farm practice and after the Board has given written reasons for that decision. In the event that the second part of the hearing is required, it will deal only with issues raised by subsection 5(4)(c) of the Act. If the second portion of the hearing is required, all evidence, inclusive of exhibits, which were received during the first part of the hearing shall apply to the second part of the hearing. Paragraphs 4 and 5 of this Order shall apply separately to both parts of the hearing, if applicable.

9. Due to prior court commitments, counsel are not available until the month of July, 2002. Accordingly, the Board will schedule four days for the first part of the hearing during the month of July, 2002, such hearing to be held at the Municipal offices of the Town of Minto at Harriston, Ontario, if possible.

Date: March 21, 2002 _____________________________

Glenn C. Walker

Vice-Chair

APPENDIX “B”

REASONS FOR INTERLOCUTORY DECISIONS

a) During the course of the hearing, the Respondents raised the issue of our jurisdiction to hear this case and Mr. Morrissey was allowed to bring an oral motion challenging the jurisdiction of the Board. After argument by all parties, the motion was dismissed and the Board indicated that it would provide written reasons at a later date.

In addressing a challenge to the jurisdiction of the Board, I think it is necessary to review the operative section of the Farming and Food Production Protection Act 1998, which in this case is section 5. The Board derives its jurisdiction from this section. This section needs to be viewed in light of the Application before the Board.

Subsection 5(1) of the Act provides that:

“A person directly affected by a disturbance from an agricultural operation may apply to the Board, in a form acceptable to it, for a determination as to whether the disturbance results from a normal farm practice.”

In their Application, the Applicants allege a disturbance, in the form of odour, which directly affects them. They further allege that the source of the odour is an agricultural operation carried on by the Respondents. Once those issues are raised, the Application falls squarely within the intended jurisdiction of this Board. Failing any legislation which would oust our jurisdiction, we believe that it is very clear that we are authorized and compelled to hold a hearing and make a determination. Subsection 5(3) of the Act provides that: “subject to section 8, the Board shall hold a hearing in respect of each application.” The word “shall” is mandatory and not permissive.

Subsection 8(1) provides that we may refuse to hear an application if in our opinion the subject of the matter of the application is trivial, the application is frivolous or vexatious, the application was not made in good faith, or the applicant has not a sufficient personal interest in the subject matter of the application. None of these issues are apparent on the face of the Application, nor were any of these issues raised by the Respondents on the motion challenging jurisdiction.

In fact, the thrust of Mr. Morrissey’s argument was that the Applicants’ proper remedy was to have appealed the issuance of the building permits issued to Mr. Horsburgh under The Building Code Act, 1992 because the Applicants’ position is solely based on non-compliance with MDS II. Mr. Oldfield’s position is that this is a case based on an odour complaint and that although it may be alleged that MDS II has not been complied with, the Act instructs the Board to deal with a broad scope of agricultural issues. In addition, Pyke et. al. and Tri Gro Enterprises Ltd. (2001), 2001 CanLII 8581 (ON CA), 55 O.R. (3D) 257, a decision of the Ontario Court of Appeal, acknowledges that complaints in the nature of the one brought forth by the Applicants shall be dealt with by this Board, who have an acknowledged expertise to deal with this particular area.

We do not find the Burns v. Perth South Township Chief Building Official (2001) 2001 CanLII 28064 (ON SC), 19 M.P.L.R. (3d) 170, case, a decision of Mr. Justice Killeen, to be of any assistance to us. Any references to our legislation in that decision are merely obiter dicta. In any event, as pointed out by Mr. Oldfield, Mr. Justice Killeen did not have the benefit of having the Pyke decision and he was not dealing with the issue of how the Act correlates with The Building Code Act.

It is certainly true that the Applicants or any one of them could have appealed the decision of the Chief Building Official on the issuance of either of the building permits. However, there are situations where there are overlapping jurisdictions between various Boards and even the Court. The Applicants had a right to appeal to the Ontario Superior Court of Justice from the decision of the Chief Building Official, but just as much have a right to bring an Application under section 5 of the Act as an alternative. As pointed out previously, each decision maker would be applying a different set of principles, the Court applying principles dealing only with MDS II compliance in the context of the issuing of a building permit and our Board applying the principles as set out in our operative statute.

The motion by the Respondents challenging the jurisdiction of this Board to continue this hearing is hereby dismissed.

b) During cross-examination of the witness, James Myslik, the Respondents requested that he be allowed to do a site inspection of the subject barns and report back to the Board. Mr. Oldfield initially opposed this request but subsequently suggested that the Board could appoint Mr. Myslik as a Board witness for the purpose of doing the inspection.

Rule 50 of the Normal Farm Practices Protection Board Rules of Practice and Procedure provides as follows:

“On the request of a party or on its own initiative, the Board may retain, at its own expense, any person having technical or special knowledge to assist the Board and to give evidence in respect of any matter before it. In such cases, the following procedures shall govern.

(1) Any such request shall be made by motion to the Board as soon as practicable after the appointment of the hearing panel or at a pre-hearing conference if one is held, and otherwise as soon as practicable after the need for such a witness is recognized by the parties;

(2) The Board must be satisfied that the proposed witness will be of assistance to the Board in understanding the issues before it;

(3) The Board shall decide who shall be appointed;

(4) The Board shall retain the right to settle all terms of any such appointment, including remuneration and scope of any inquiry, and may direct that such witness:

(a) provide a written report of findings and conclusions;

(b) attend the hearing during presentation of evidence by others expert and in the same field, and

(c) explain and evaluate such evidence as required by the Board.

(5) Any witness retained by the Board shall testify orally and be subject to cross-examination.”

Mr. Myslik was called as a witness by the Responding Party, the Corporation of the Town of Minto. This issue arose during his cross-examination by Mr. Morrissey on behalf of the other Respondents. We were provided with no authority whereby we might order a witness called by one of the parties to do a site inspection. With respect to a request by either Mr. Morrissey or Mr. Oldfield to have the Board assume Mr. Myslik as its own expert, we find that it would be a conflict of interest to do so in view of the fact that Mr. Myslik has already been called and testified on behalf of one of the parties. Furthermore, even if there was no conflict of interest, we feel that the objectives set out in Rule 50 would not be achieved.

First of all, the request was not made as soon as practicable as provided for in Rule 50(1). Secondly, we are not satisfied that Mr. Myslik would be of further assistance to the Board in understanding the issues before it in view of the fact that Mr. Morrissey had already advised the Board that he intended to call several expert witnesses who had had the opportunity of attending at the O’Byrne farm and would be testifying with respect to those site visits.

Consequently, the Board denied the request of Mr. Morrissey and Mr. Oldfield with respect to ordering a site visit by James Myslik.

c) During the direct examination of the witness, Larry Love, by Mr. Morrissey, Mr. Oldfield objected to Mr. Love being qualified as an expert without having prepared and filed a written report.

Mr. Love and subsequently Mr. Bennett were qualified by the Board as experts to give expert testimony with respect to their own beef cattle operations and nothing more. They had extensive experience but no particular specialized education with respect to these matters. They did not prepare written reports, but their names were disclosed to the opposing parties in the witness lists which were exchanged pursuant to the Pre-Hearing Conference Order. It should be noted that that Order did not contain a requirement that witness statements accompany the witness list.

Rule 49 of the Rules of Practice and Procedure of the Board deals with expert witnesses. It provides as follows:

“(1) A witness having technical or special knowledge, who is retained by a party or the Board to give evidence, shall provide at the request of the Board a written Curriculum Vitae of his or her qualifications and experience.

(2) Any party may challenge the qualifications of a witness having technical or special knowledge, before or during the course of his or her testimony. However, it is not normally the Board’s practice to hold a formal hearing to qualify a witness as an expert, provided that a degree of specialized knowledge is shown on the Curriculum Vitae.

(3) The Board, in its discretion, will determine the weight to be given each witness’ testimony and the witness’ qualifications and experience will be a factor in determining the weight to be given such testimony.”

A number of expert witnesses were called and testified at this hearing. Most had Curriculum Vitae which were filed as exhibits. Mr. Love and Mr. Bennett did not have written Curriculum Vitae but were questioned by the parties as to their technical or special knowledge before being qualified by the Board. The Board did not request a written Curriculum Vitae of the qualifications and experience of these witnesses.

It should be noted that this Rule does not require expert witnesses to provide written reports.

Pursuant to the Pre-Hearing Conference Order dated March 21, 2002, the parties were to exchange all documentary evidence which they intended to rely upon, including all expert reports. This did not however require that an expert witness provide a written report if it was not intended to have a report filed at the hearing.

In its decision to qualify Mr. Love and Mr. Bennett as expert witnesses to give expert evidence with respect to their own operations, the Board took into consideration that these gentlemen had special knowledge and experience which would assist the Board and that they would not normally be in the position of being called as expert witnesses and preparing written reports. Accordingly, the said witnesses were qualified and did testify with appropriate weight being given to their evidence based on their personal experience only.

APPENDIX “C”

NORMAL FARM PRACTICES PROTECTION BOARD

IN THE MATTER OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT S.O. 1998, C.1

AND IN THE MATTER OF AN APPLICATION TO THE BOARD

UNDER SECTION 5 OF THE FARMING AND FOOD

PRODUCTION PROTECTION ACT FOR A DETERMINATION

AS TO WHETHER A DISTURBANCE RESULTS FROM

A NORMAL FARM PRACTICE

BOARD FILE NUMBER: 2001-07

PARTIES:

Robert Wanless, Debbie Wanless, Dean Williams and Carol Williams, Applicants

and

Larry Horsburgh, 1524829 Ontario Inc., Respondents

and

The Corporation of the Town of Minto, Responding Party

WITNESS LIST FOR THE APPLICANTS

1. Paul Arthur Brown;

2. Hugh Thompson;

3. Debbie Wanless;

4. Robert Wanless, Jr.;

5. Bob Bramhill;

6. Dean Williams;

7. Carol Williams;

8. Claude Heroux;

9. David Murray;

10. Jackie Van De Valk;

11. Donna Michlowski;

12. John Winger.

WITNESS LIST FOR THE RESPONDING PARTY, TOWN OF MINTO

13. Gary Cousins;

14. Linda Dickson;

15. James Myslik;

16. Robert Chambers;

17. David Kopp.

WITNESS LIST FOR THE RESPONDENTS, LARRY HORSBURGH AND 1524829 ONTARIO INC.

18. Larry Horsburgh;

19. William F. Schmidt;

20. Bill Clancy;

21. Larry Love;

22. Ron Bennett;

23. Edgar Sauder;

24. Brian Noble;

25. Alvin Wright;

26. Jim Connell;

27. Deborah Campbell;

28. Anne Schneider;

29. Mark Armstrong;

30. Ronald MacDonald;

31. James K. Weeden.

APPENDIX “D”

NORMAL FARM PRACTICES PROTECTION BOARD

IN THE MATTER OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT S.O. 1998, C.1

AND IN THE MATTER OF AN APPLICATION TO THE BOARD

UNDER SECTION 5 OF THE FARMING AND FOOD

PRODUCTION PROTECTION ACT FOR A DETERMINATION

AS TO WHETHER A DISTURBANCE RESULTS FROM

A NORMAL FARM PRACTICE

BOARD FILE NUMBER: 2001-07

PARTIES:

Robert Wanless, Debbie Wanless, Dean Williams and Carol Williams, Applicants

and

Larry Horsburgh, 1524829 Ontario Inc., Respondents

and

The Corporation of the Town of Minto, Responding Party

LIST OF EXHIBITS

32. Document Brief of the Corporation of the Town of Minto (referred to as Document Brief #3);

33. Insurance documentation found at Tab 14 Document Brief #1 filed by the Applicants;

34. Aerial photo found at Volume 3, Tab 6;

35. Surveyor’s sketch found at Volume 1, Tab 7;

36. Aerial photograph found at Volume 4, Tab 5A;

37. Surveyor’s sketch found at Volume 4, Tab 6C;

38. Aerial photograph found at Volume 4, Tab 5B;

39. List of dates Hugh Thompson residence affected by odour, Volume 1, Tab 26, Page 2;

40. Application for building permit, building permit and MDSII calculation for Barn #1 found at Volume 1, Tab 12;

41. Presentation to council found at Volume 4, Tab 12A;

42. Nutrient Management Plan for Mr. Horsburgh found at Volume 2, Tab 27;

43. Photographs of old bank barn found at Volume 4, Tab 5D;

44. Application for building permit, building permit and MDSII calculation for barn #2 found at Volume 1, Tab 13;

45. List of dates when Wanless residence affected found at Volume 1, Tab 26, page 1;

46. Letter from James Myslik to Normal Farm Practices Protection Board dated February 12, 2002 found at Volume 4, Tab 12C;

47. Document entitled “Estimating the Livestock/Poultry Housing Capacity of a Barn for MDSI AND MDSII by Hugh Fraser” found at Volume 4, Tab 12;

48. Undated note prepared by Carol Williams found at Volume 1, Tab 26, page 3;

49. Fact sheet for DK Sarsa Nin 30;

50. David Murray report, including Curriculum Vitae, found at Volume 1, Tab 10;

51. Invoices from P. D. Dale Enterprise Ltd. found at Volume 1, Tab 1;

52. David Murray worksheet;

53. Trucking invoices from E. Sauder Trucking Inc., found at Volume 1, Tab 4;

54. Curriculum Vitae of Jackie A. Van De Valk, P.Ag. found at Volume 1, Tab 23;

55. MDSII document found at Volume 4, Tab 11B;

56. Letter from Jackie Van De Valk to Gil Deverell dated September 10, 2001 and attachments, found at Volume 4, Tab 10D;

57. Letter from Jackie Van De Valk to Ted Oldfield dated July 29, 2002 and attachments, found at Volume 1, Tab 20;

58. Letter from Jackie Van De Valk to Ted Oldfield dated July 30, 2002 and attachments, found at Volume 1, Tab 21;

59. Letter from Jackie Van De Valk to Ted Oldfield dated August 6, 2002 and attachments, found at Volume 1, Tab 22;

60. Letter from Jackie Van De Valk to Ted Oldfield dated September 3, 2002 and attachments;

61. Copy of documents received by Jackie Van De Valk from the Corporation of the Town of Minto and her notes;

62. MDSI document found at Volume 4, Tab 11A;

63. Curriculum Vitae for Gary A. Cousins;

64. Curriculum Vitae for Linda Dickson;

65. Extract from Minto Township Zoning By-law Number 3-77;

66. Extract of Minto Township Zoning By-Law Number 33-77;

67. Building permit for Robert Wanless Jr. residence;

68. Curriculum Vitae for James T. Myslik;

69. Document entitled “OMAFRA Perspective on Large Livestock Barns, Community Issues and the Role of the Municipality”;

70. Extract ??

71. Table 8 from Publication 509-Beef Husbandry in Ontario prepared by OMAF;

72. Planning Data Summary from Mark Armstrong;

73. Nutrient Management Plan for Horsburgh for Barn #1;

74. Curriculum Vitae for Robert Chambers;

75. Correspondence between Robert Chambers and Town of Minto;

76. Page 3 to Canada Plan 1000, the balance of which is found at Volume 1, Tab 10E;

77. Excerpts from David Kopp’s daytimer;

78. Assorted invoices found at Volume 4, Tab 2;

79. Invoices from P.D. Dale Enterprise Ltd. found at Volume 4, Tab 1;

80. Invoices from E. Sauder Trucking Inc. found at Volume 4, Tab 4;

81. Assorted veterinary invoices found at Volume 4, Tab 3;

82. Copy of Application to Amend Register re change of name of Horsburgh company;

83. Hugh Fraser update to be supplemental to exhibit #16;

84. Summary of MDSII calculations prepared on nine scenarios by Jim Weeden;

85. Brian Noble invoice dated December 9, 1997 found at Volume 4, Tab 2;

86. Note from Alvin Wright found at Volume 4, Tab 2, fourth last page;

87. Report from Agviro Inc. (Mark Armstrong and Ron MacDonald) found at Volume 4, Tab 14;

88. Copy of letter from Ron MacDonald to Phillip Morrissey dated October 7, 2002;

89. Corporation of the Town of Minto – tree removal report sworn August 23, 2002;

90. Curriculum Vitae for James K. Weeden;

91. Letter from James Weeden to Phillip Morrissey dated August 6, 2001;

92. MDSII calculations done by James Weeden found at Volume 4, Tab 10A;

93. Extract from Canada Farm Building Code (1977)